In re Mast

1

IN RE JOHN GEORGE MAST

No. 13-23-00305-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 23, 2023

On Petition for Writ of Mandamus.

Before Chief Justice Contreras and Justices Benavides and Longoria

MEMORANDUM OPINION

DORI CONTRERAS CHIEF JUSTICE. ^[1]

Relator John George Mast filed a petition for writ of mandamus asserting that the trial court^[2] abused its discretion by reinstating the underlying case after the expiration of its plenary power. We conditionally grant the petition for writ of mandamus.

I. Background

On July 10, 2017, real party in interest Jennifer Adcock filed suit against Mast and others for personal injuries that she incurred in an automobile accident. According to Adcock's pleadings, she was traveling northbound on U.S. Highway 77 behind Mast's vehicle when Mast lost consciousness and his vehicle decelerated. In response, Adcock reduced her vehicle's speed. Adcock's vehicle was rear-ended by Amy Nicole Smith, who was driving a car owned by Delaney Jeffers.^[3] Adcock pleaded a negligence cause of action against Mast and Smith and negligent entrustment against Jeffers.

On February 20, 2019, the trial court issued notice that the case was set to be heard on the court's dismissal docket on March 8, 2019. The trial court's notice required the parties to appear with proposed pretrial orders or show cause why the case should not be dismissed. Adcock appeared at the dismissal hearing on March 8, 2019, and the trial court signed a pretrial order setting the case for trial on December 9, 2019. On December 2, 2019, Adcock filed an agreed motion for a continuance of the trial setting. The trial court granted Adcock's agreed motion and set the case for trial on March 25, 2020, then issued an amended order setting the case for trial on March 23, 2020. On March 18, 2020 Adcock filed a second agreed motion for continuance and request for a new docket control order. The trial court did not issue a ruling on this motion, but the case did not proceed to trial.

On April 1, 2021, the trial court again issued notice that the case was set for hearing on the dismissal docket on April 23 2021. As before, the court's notice required the parties to appear with proposed pretrial orders or show cause why the case should not be dismissed. Adcock's counsel failed to appear at the dismissal hearing on April 23, 2021. On April 26, 2021, the trial court signed an order dismissing the case for want of prosecution.

On September 8, 2022, Adcock filed a motion to reinstate the case, but did not set the motion for hearing. In this motion, Adcock asserted that her counsel did not receive notice of the trial court's April 26, 2021 order dismissing the case for want of prosecution. According to this motion, Adcock's "counsel's firm name changed and became effective on January 8, 2019," and its "email, telephone and fax numbers remained the same," but "the [firm's] address changed in April 2019." The motion to reinstate provided that Adcock's "counsel did not miss the deadline for purposes of delay but by inadvertence," and requested the court to reinstate the case "in the interest of justice, not for prejudice or delay." Adcock's motion to reinstate was supported by a verification supplied by Adcock's counsel in which he stated that the facts therein were "true and correct based either upon information and belief and/or personal knowledge."^[4] Although Adcock's counsel updated the firm's address in the signature block of their filings beginning in December 2019, Adcock's counsel did not file a change of address with the trial court.

The record shows that the clerk's notice of the April 26, 2021 dismissal, which was mailed to counsel's former address, was returned to the district clerk with the designation "RETURN TO SENDER[,] NO MAIL RECEPTACLE[,] UNABLE TO FORWARD." On September 12, 2022,^[5] the trial court granted Adcock's motion and reinstated the case.

On July 10, 2023, Mast filed this original proceeding. By one issue, Mast asserts that the trial court erred by granting Adcock's motion to reinstate because its plenary power had expired, rendering the order of reinstatement void. According to Mast, the trial court dismissed this case for want of prosecution on April 26, 2021; no plenary power-extending motions were filed within thirty days; the trial court's plenary power expired on May 27, 2021; Adcock filed a motion to reinstate on September 8, 2022; and the trial court reinstated the case on September 12, 2022, over fifteen months after its plenary power expired.

This Court requested Adcock, or any others whose interests might be directly affected by the relief sought, to file a response to the petition for writ of mandamus. See Tex. R. App. P. 52.4, 52.8. By response, Adcock contends that this Court should deny Mast's request for mandamus relief because he delayed filing his petition for writ of mandamus. Adcock further asserts that this case presents "a textbook case of a clerical mistake that caused rendition of a judgment based upon the mushy and imprecise notion of 'want of prosecution.'" Adcock thus contends that the trial court did not abuse its discretion in reinstating the case because she was unaware of the dismissal "due to an official mistake."

II. Mandamus

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must ordinarily show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

When a trial court issues an order "beyond its jurisdiction," mandamus is proper because such an order is void ab initio. In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (per curiam) (quoting In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam)). Thus, mandamus relief is available "when a trial court issues an order after its plenary power has expired." In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (orig. proceeding). In such an event, the relator need not show that it lacks an adequate appellate remedy. See In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding) (per curiam); In re Sw. Bell Tel. Co., 35 S.W.3d at 605.

III. Delay

Adcock asserts that Mast waived his right to seek mandamus relief because he waited approximately ten months to file his petition for writ of mandamus. The record indicates that the order of reinstatement was signed on September 12, 2022, and this original proceeding was filed on July 10, 2023.

Mandamus is not an equitable remedy; however, its issuance is discretionary and is largely controlled by equitable principles. In re First Reserve Mgmt., L.P., 671 S.W.3d 653 (Tex. 2023) (orig. proceeding). "One such principle is that '[e]quity aids the diligent and not those who slumber on their rights.'" In re Am. Airlines, Inc., 634 S.W.3d 38, 42 (Tex. 2021) (orig. proceeding) (quoting Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) and Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941) (orig. proceeding)). "Thus, a relator who unduly or unreasonably delays filing a petition for mandamus relief may waive its right to such relief unless the delay is justified." In re Am. Airlines, Inc., 634 S.W.3d at 43; see In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting its rights and also the moving party's good faith and detrimental change in position because of the opposing party's delay. In re Laibe, 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989); In re Mabray, 355 S.W.3d 16, 22 (Tex. App.-Houston [1st Dist.] 2010, orig. proceeding [mand. denied]).

However, equitable doctrines such as laches are not applicable when the order subject to the mandamus proceeding is void. See In re Timberlake, 501 S.W.3d 105, 108 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding); In re Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.-Fort Worth 2012, orig. proceeding [mand. denied]); Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.-Corpus Christi-Edinburg 1996, orig. proceeding). As we have stated, when mandamus

is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of jurisdiction.

Zimmerman, 941 S.W.2d at 262. Therefore, if the order is void, laches is not a bar to mandamus relief in this case. We reject Adcock's arguments otherwise.

III. Analysis

Texas Rule of Civil Procedure 165a governs dismissals for want of prosecution and the procedure for reinstating such cases. See Tex. R. Civ. P. 165a. "When a plaintiff's lawsuit is dismissed for want [of] prosecution, the only available remedy is to file a motion for reinstatement." Gillis v. Harris County 554 S.W.3d 188, 191 (Tex. App.-Houston [14th Dist.] 2018, no pet.). In relevant part, a motion for reinstatement following a dismissal "shall be filed with the clerk within 30 days...