By petition for writ of mandamus, =
relators,=20
Shoreline Partners, L.L.C., Prentis B. Tomlinson, Jr., and Thomas =
E.=20
Hardisty (collectively, "Shoreline") challenge the trial court's =
February=20
27, 2006 orders reinstating the suit of real party in interest =
Petrogulf=20
Corporation ("Petrogulf") and granting default judgment to=20
Petrogulf.=20
(1)
Background
In 2004, Petrogulf sued Shoreline for =
repayment of=20
monies owed for the exploration and development of oil and gas =
prospects.=20
On August 26, 2005, the trial court dismissed the case for want of =
prosecution. On September 9, 2005, Petrogulf filed a motion to =
reinstate=20
and for default judgment. Several months later, on February 27, =
2006, the=20
trial court signed the order to reinstate and for default =
judgment.=20
Shoreline requests a writ of mandamus to require the trial court =
to vacate=20
its orders reinstating Petrogulf's case and granting default =
judgment=20
because the court's plenary power had expired when the trial court =
signed=20
the order granting the reinstatement. In a letter filed with this =
court,=20
Petrogulf states that it does not oppose the petition for writ of =
mandamus=20
and accordingly declines to file a response. Standard of =
Review
Mandamus is an extraordinary remedy =
available only=20
when (1) a trial court clearly abuses its discretion and (2) there =
is no=20
adequate remedy by appeal. In re Prudential Ins. Co. of=20
Am., 148 S.W.3d 124, 135=9636 (Tex. 2004); =
In re Supportkids, =
Inc., 124 S.W.3d 804, 807 (Tex. =
App.--Houston [1st=20
Dist.] 2003, orig. proceeding). A trial court clearly abuses its=20
discretion if it reaches a decision so arbitrary and unreasonable =
as to=20
amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). With =
respect to=20
a trial court's determination of legal principles, "a trial court =
has no=20
'discretion' in determining what the law is or applying the law to =
facts."=20
In re Prudential, 148 S.W.3d at 135 (quoting =
Walker, 827 S.W.2d at 840). Thus, a trial =
court's=20
failure to analyze or apply the law correctly will constitute an =
abuse of=20
discretion and may result in a reversal by extraordinary writ.=20
Walker, 827 S.W.2d at 840. Mandamus will issue =
when a=20
trial court erroneously reinstates a case after the expiration of =
the=20
court's plenary jurisdiction. Estate of Howley v. =
Haberman, 878 S.W.2d 139, 140 (Tex. 1994). =
Discussion
The date a trial court signs an order on =
dismissal=20
for want of prosecution determines the beginning of the period for =
the=20
court's plenary power to decide a motion to reinstate a case =
dismissed for=20
want of prosecution. Tex. R. Civ. P. 306(a)(1). A trial court has plenary =
power to=20
reinstate a case within 30 days after the order of dismissal is =
signed.=20
Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.--Houston [1st Dist.] 1995, no =
writ). A motion to reinstate extends the =
trial court's=20
plenary power until 30 days after such timely filed motions are =
overruled,=20
either by a written, signed order or by operation of law. =
Tex. R. Civ. P. 165a(3); South Main Bank v. =
Wittig, 909 S.W.2d 243, 244 (Tex. =
App.--Houston [14th=20
Dist.] 1995, orig. proceeding). If a motion to reinstate is not =
decided by=20
signed written order within 75 days after the judgment is signed, =
the=20
motion will be deemed overruled by operation of law. Tex. R. Civ. P. 165a(3). An order of reinstatement must =
be in writing=20
and signed during the trial court's plenary power=20
and jurisdiction. Emerald Oaks Hotel/Conference Ctr., =
Inc. v.=20
Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989). =
The trial court dismissed the instant =
case for=20
want of prosecution on August 26, 2005. The 75-day period for the =
court to=20
grant the motion to reinstate by signed order expired November 9, =
2005.=20
Accordingly, Petrogulf's motion to reinstate was overruled by =
operation of=20
law on November 9. The court's plenary power extended for an =
additional 30=20
days, until December 9, 2005. Tex. R. Civ. P. 165a(3). However, the district court did =
not sign=20
the order granting the motion to reinstate until February 27, =
2006, 185=20
days after signing the order to dismiss for want of prosecution. =
Because=20
the trial court's jurisdiction terminated on December 9, 2005, the =
orders=20
it signed reinstating the case and granting default judgment on =
February=20
27, 2006, are void. Conclusion
We hold that the trial court abused its =
discretion=20
by reinstating the case and granting default judgment after =
termination of=20
its plenary jurisdiction. We conditionally grant the writ of =
mandamus and=20
order the trial court to vacate its February 27, 2006 "Order on =
Motion to=20
Reinstate for Default Judgment" and February 27, 2006 Order for =
"Default=20
Judgment." We are confident that the trial court will promptly =
comply, and=20
our writ will issue only if it does not.
Evelyn V. Keyes,
Justice
Panel consists of Justices =
Taft, Keyes,=20
and Alcala.
1.
1 The underlying suit is =
Petrogulf Corporation v. Shoreline =
Partners,=20
L.L.C. Prentice B. Tomlinson, Jr., Individually, and Thomas E. =
Hardisty,=20
Individually, cause no. 2004-73726 in the 165th =
District Court=20
of Harris County, Texas, the Hon. Elizabeth Ray presiding.=20