Oral Hearing Required on a Motion to Reinstate

Posted on July 13, 2009 by Mike Northrup

In Resurgence Financial, L.L.C. v. Foster, the Dallas Court of Appeals followed and applied the Texas Supreme Court's opinion in Thordson v. City of Houston.  From the moment that Resurgence filed its suit the trial court notified Resurgence that the case would be placed on the dismissal docket unless an answer were filed by a date specified.  On October 23, 2007, Resurgence filed a motion for substituted service, supported by affidavit.  The trial court returned the motion with an unsigned letter stating that Resurgence had failed to establish sufficient attempts to serve the defendant.  On the same day the trial court returned the motion, it dismissed the suit for want of prosecution.  Resurgence filed a motion to reinstate and asked for a hearing in its motion.  The record showed no indication that the trial court heard the motion, but there was a docket entry indicating that the judge was aware of the filing.  The motion to reinstate was overruled as a matter of law.

On appeal, Resurgence raised a single issue to complain about the lack of a hearing on its motion to reinstate.  The court of appeals holds that "the trial court's failure to comply with rule 165a(3) is erroneous and requires reversal."  The court's opinion may be found here.

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Challenging Void Orders and Motion to Reinstate

Posted on February 11, 2009 by Mike Northrup

 Void orders of a trial court may occur in a number of different circumstances.  The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.

The trial court dismissed the State's action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified.  More than 30 days after the dismissal, the trial court granted the motion to reinstate.  The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court's order of reinstatement was void.

The Court holds that the trial court's plenary power was not extended by the motion to reinstate because such a motion must either be verified or supported by an affidavit or other evidence serving as an adequate substitute (Note: the Court does not say what an adequate substitute might be).  Because the State's motion did not satisfy this criteria, the motion did not extend plenary power and therefore the trial court did not have jurisdiction to sign its order of reinstatement, making the order void.

The Court also holds that a party affected by a void order may challenge the order by mandamus as the Silgueros did, but if the party also appeals, an appellate court may declare the order void in the appeal.  The Court's opinion may be found at this link.
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