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IN THE COUNTY COURT AT LAW NUMBER THREE
EL PASO COUNTY, TEXAS
DONALD L. THOMPSON,
Plaintiff, Pro-Sevs. Cause No. 94-12,817
ALLSTATE INSURANCE COMPANY
and ROBERT WILSON,
DefendantsRESPONSE TO MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Defendant ALLSTATE INSURANCE COMPANY by and through its attorney, and in response to the motions filed by the Plaintiff to set aside the judgment of March 17, 1999, would show to the Court as follows:
I. MATTER OF JURISDICTION
The question before the Court is not one of justice, but a question of jurisdiction. On March17, 1999, the Court entered an Order entitled Dismissal Order for Want of Prosecution. That order became final by operation of law thirty days after its signing. Rule 306a(1), Texas Rules of Civil Procedure. In order to invoke continued jurisdiction of this Court, a timely filed Motion for New Trial must be made under Rule 329b, TRCP. No such motion was made.
II. OUT OF TIME MOTION
Plaintiff has now filed, on or about June 13,1999, some 88 days after the signing of the Judgment, a document entitled Plaintiff's Motion for New Trial or Notice of Appeal. The notice is not timely under Rule 329b, which requires that such a motion be filed within thirty days of the date of signing of the Judgment. Nor is the motion timely under Rule 165a to set aside a judgment of dismissal for want of prosecution.
III. RULE 306a(4) EXCEPTION
Rule 306a, subparagraph 4, provides an exception for the situation in which a party does not receive notice within twenty days of the signing of a judgment. In order to invoke the power of the Court under Rule 306a(4), the petitioning party must file a "sworn motion", Rule 306a(5), TRCP. The motion filed on or about June 13,1999, did not satisfy that requirement. The filing of such a motion is jurisdictional. The time limits of Rule 306a(4) have a limit of 90 days and no properly verified motion was filed within the ninety day period. Plaintiffs motion, filed on the 88th day, fails to comply with the requirements of Rule 306a(5) and fails to properly invoke the jurisdiction of this Court. A similar situation has already been addressed in this County. In Carrera vs Marsh, 847 S.W2d 337 (Ct App-El Paso, 1993), the Eighth Court of Appeals considered the application for mandamus against Judge Marsh who had entered an order setting aside a judgment under the auspices of Rule 306a, but had done so when no verified motion had been timely filed. The same holding in that case applies to this case. The same rule would apply to a "Dismissal for Want of Prosecution" under Rule 165a because Rule 165a now incorporates Rule 306a for any extension of time purposes.
IV. SUBSEQUENT FILINGS
Plaintiff has filed two additional documents, Plaintiffs Original Petition for Bill of Review, and Plaintiffs Motion to Reinstate. Both of these documents contain a page containing a notary's signature; however, the documents do not constitute a oath upon personal knowledge as to the facts contained in these documents and, as such, do not satisfy the requirement for "sworn motion" or "verified motion". The contents on the motion, to be properly filed and timely filed, must be upon "personal knowledge." In Interest of Simpson, 932 S.W.2d 674 (Ct.App. 1996).
WHEREFORE, Defendant requests that the Court decline to take any action upon the motions filed by Plaintiff because the Court lacks plenary jurisdiction.
Respectfully submitted,
THE LAW OFFICE OF VICTOR F. POULOS, P.C.
Attorneys for Defendant
1520 N. Campbell Street
El Paso, Texas 79902
(915) 533-6363
FAX (915) 533-0555By:
VICTOR F. POULOS State Bar No.16184700
ROBERT E. HEDICKE State Bar No.09370300
CERTIFICATE OF SERVICE
I hereby certify that I have served, pursuant to Rule 21a, a true and correct copy of the above and foregoing to Mr. Donald L. Thompson, Plaintiff, 534 E. Mountain, Seguin, TX 78155; on _____ day of June, 1999.
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