in Re Valliance Bank
422 S.W.3d 722
| Tex. App. | 2012Background
- Relator Valliance Bank seeks mandamus to void an order reinstating a dismissed case.
- The underlying suit by Real Parties Linda R. Tedesco and Lucille W. Shiver was filed April 23, 2008.
- The trial court dismissed for want of prosecution on July 12, 2010.
- Relator moved to reinstate on July 19, 2010 without a verified filing.
- An unsworn-verification appeared on the motion; no proper verification within 30 days.
- Affidavit by Real Parties’ counsel was filed after 30 days, and the court reinstated on September 13, 2010; plenary power expired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unverified motion to reinstate extends plenary power beyond 30 days | Relator: unverified motion is null; cannot extend jurisdiction | Real Parties: late affidavit cures verification; extends power | Unverified motion does not extend power; reinstatement void |
| Whether a late-filed attorney affidavit can substitute for verification | Relator: no cure after 30 days | Real Parties: affidavit cures defect | Late affidavit cannot cure; rule 165a(3) requires timely verified motion |
| Whether the order of reinstatement is void for lack of timely verification | Relator: void due to expired plenary power | Real Parties: merits should be reached; not void | Order void; mandamus to set aside granted |
| Whether delay in seeking mandamus affects relief | Relator timely seeks mandamus; no waiver | Real Parties: delay prejudices case | Delay does not bar relief where order is void; mandamus granted in effect required |
Key Cases Cited
- McConnell v. May, 800 S.W.2d 194 (Tex. 1990) (unverified motion cannot extend jurisdiction)
- Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696 (Tex. 1986) (unverified motion cannot extend jurisdiction; timing matters)
- In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008) (mandamus relief when void order issued after plenary power ends)
- Estate of Howley v. Haberman, 878 S.W.2d 139 (Tex. 1994) (mandamus when trial court reinstates after plenary power expires)
- Twist v. McAllen Nat’l Bank, 294 S.W.3d 255 (Tex. App.—Corpus Christi 2009) (unverified motion requires timely support; cure within period not after expiry)
- In re Garcia, 94 S.W.3d 832 (Tex. App.—Corpus Christi 2002) (substituting affidavits for verification limited to within thirty days)
- Owen v. Hodge, 874 S.W.2d 301 (Tex. App.—Houston 1st Dist. 1994) (verification must be personal knowledge; attorney signature not substitute)
- Dobbins, 247 S.W.3d 394 (Tex. App.—Dallas 2008) (evidence within 30 days can substitute; context mattered)