Summary
holding that unverified motion to reinstate does not extend the trial court's jurisdiction to hear case
Summary of this case from Unifund CCR, LCC v. WhitakerOpinion
No. D-0215.
October 10, 1990. Rehearing Overruled January 9. 1991.
Appeal from District Court No. 149, Brazoria County, Robert E. May, J.
Gary L. McConnell, Angleton, for relator.
James S. Munson, Wharton, for respondent.
In this original proceeding, Relator Gary L. McConnell (McConnell) seeks a writ of mandamus directing the trial judge to vacate his July 2, 1990 order granting Plaintiff C.D. Blanchard's unverified motion to reinstate. Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of the court conditionally grants the writ of mandamus.
On April 18, 1990, Blanchard's suit against McConnell was dismissed for want of prosecution. On April 24, 1990, Blanchard filed an unverified motion to reinstate. On July 2, 1990, the trial judge granted Blanchard's motion. McConnell argues that the trial judge abused his discretion when he granted Blanchard's unverified motion to reinstate. We agree.
"A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed. . . ." TEX.R.CIV.P. 165a(3) (emphasis added). A proper motion to reinstate must be verified and filed with the clerk within 30 days of the signing of the order of dismissal. Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986). See Christopher v. Fuerst, 709 S.W.2d 266, 268 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.); George v. George, 564 S.W.2d 172, 174 (Tex.Civ.App. — Tyler 1978, no writ); Matter of Marriage of Parr, 543 S.W.2d 433, 437 (Tex.Civ.App. — Corpus Christi 1976, no writ). Since Blanchard did not file a verified motion to reinstate within 30 days of the signing of the order of dismissal, the trial court's jurisdiction to reinstate the case expired. See Butts, 705 S.W.2d at 697; Christopher v. Fuerst, 709 S.W.2d at 268.
Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of the court conditionally grants the writ of mandamus. The writ will issue only if the trial judge refuses to act in accordance with this opinion.