Affirmed and Opinion Filed June 28, 2013 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-11-01296-CV 

AMY SELF, Appellant 

V. 

TINA KING AND ELIZABETH TUCKER, Appellees 

On Appeal from the County Court at Law No. 1 

Collin County, Texas 

Trial Court Cause No. 001-1286-2010 

MEMORANDUM OPINION 

Before Justices FitzGerald and Lang-Miers1

Opinion by Justice FitzGerald 

Appellant Amy Self sued appellees for personal injuries she allegedly sustained in an 

automobile accident. The trial judge put the case on a dismissal docket and ultimately dismissed 

the case. The trial judge then refused to rule on Self’s motion to reinstate on the ground that her 

plenary power over the dismissal had expired. We conclude that the trial judge did have plenary 

power to rule on the motion to reinstate, and that the motion to reinstate was subsequently 

overruled by operation of law. Ultimately, we affirm the dismissal of Self’s case. 

 1

 The Honorable Mary L. Murphy was on the panel and participated at the submission of this case. Due to her retirement from the Court on 

June 7, 2013, she did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1(a), (b). 
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I. BACKGROUND

Self filed her original petition against appellees Tina King and Elizabeth Tucker in May 

2010. She alleged that Tucker negligently entrusted a car to King, and that King negligently and 

recklessly caused an auto accident in which Self was injured. Appellees answered. The judge 

set the case for trial on December 13, 2010. 

The judge later granted a motion for continuance by appellees and reset the case for trial 

on March 21, 2011. On March 18, 2011, Self filed an agreed motion for continuance. On March 

21, the trial judge signed an order in which she granted the motion. The record next contains a 

March 24, 2011 letter from the court to all counsel setting the case for trial on May 16, 2011, and 

instructing the parties to sign and return an enclosed scheduling order. The letter further advised, 

“If the discovery control plan and scheduling order is not received by 8:00 a.m. April 8, 2011, 

this matter may be placed on the court[’]s dismissal docket.” On April 7, 2011, an attorney for 

appellees filed a letter indicating that he was enclosing a proposed discovery control plan and 

scheduling order signed only by him. He explained that he had attempted unsuccessfully to 

confer with Self’s counsel about the plan on three different days, so he was submitting the 

proposed order without the signature of Self’s counsel. 

Next, the record contains notices by the trial court and addressed to the parties’ attorneys 

advising that the case was set for hearing at 10:00 a.m. on April 21, 2011, regarding whether the 

case should be dismissed for want of prosecution. The notices are dated April 8, 2011. On April 

21, the judge signed an order of dismissal that stated as follows: 

 The Court, having set this Cause for dismissal on April 21, 2011, and 

having found that neither Plaintiff nor her counsel have appeared, is of the 

opinion that said Cause should be dismissed with prejudice. 

 IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that all 

claims in this lawsuit are hereby dismissed with prejudice. All costs of court are 

assessed against Plaintiff. 
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On July 15, 2011, Self filed a document captioned “Agreed Motion to Reinstate and 

Vacate Order of Dismissal.” In that motion she averred she was not aware of the dismissal until 

June 18, and that neither she nor her attorney had received notice of “any setting or hearing or 

trial date.” Self’s attorney verified the motion. Appellees filed a response in which they asserted 

that the motion was not agreed. On August 17, 2011, the trial judge held a hearing on the motion 

to reinstate. The judge stated on the record that she did not believe she had jurisdiction to 

reinstate the case, and she accordingly declined to rule on the motion to reinstate. She further 

stated on the record that she would deny the motion to reinstate if she believed she had 

jurisdiction to do so. The judge never signed an order disposing of Self’s motion to reinstate. 

Self filed her notice of appeal on September 15, 2011. 

II. APPELLATE JURISDICTION

After oral argument we sent the parties a letter advising that we questioned our 

jurisdiction over this appeal because it appeared that Self’s notice of appeal was not timely. See

TEX. R. APP. P. 4.2(c); Nedd–Johnson v. Wells Fargo Bank, N.A., 338 S.W.3d 612 (Tex. App.—

Dallas 2010, no pet.). Self filed a motion asking for an abatement of the appeal, and we granted 

the motion, abated the appeal, and ordered the trial judge to issue an order finding the date on 

which Self or her counsel first either received notice or acquired actual knowledge of the 

dismissal, pursuant to Texas Rule of Appellate Procedure 4.2(c). The trial judge complied, and 

we have received a supplemental clerk’s record that contains the trial judge’s order and fact 

finding. In an order signed May 1, 2013, the judge found that “June 18, 2011 is the date when 

the Plaintiff or her attorney first either received notice or acquired actual knowledge that the 

Dismissal Order in this cause was signed.” 

Thus, the appealable order in the case was the dismissal order signed on April 21, 2011. 

The judge’s May 1, 2013 order establishes that Self and her attorney did not receive notice or 
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actual knowledge of the dismissal order until June 18, 2011, which was fifty-eight days after the 

dismissal order was signed. Thus, Self’s appellate deadlines began to run on June 18, 2011. See

TEX. R. APP. P. 4.2(a)(1). Self timely filed her motion to reinstate on July 15, 2011, which was 

within thirty days of June 18. This extended her deadline to file her notice of appeal to ninety 

days after June 18, or September 16. See TEX. R. APP. P. 26.1(a). Thus, Self’s notice of appeal 

filed on September 15, 2011, was timely. 

We have appellate jurisdiction over this appeal. 

III. ANALYSIS

Self presents three issues on appeal. In her first issue, she argues that the trial judge erred 

by concluding that she lacked the power to determine whether Self’s motion to reinstate was 

untimely. In her second issue, she argues that the trial judge erred by dismissing the case 

without proper notice to Self. In her third issue, Self argues that the trial judge erroneously 

concluded that evidence of mailing of a notice created an irrebuttable presumption that Self 

received that notice. 

Based on the trial judge’s recent fact finding, we agree with Self’s first issue on appeal. 

The trial judge has now found that Self and her attorney did not receive notice or acquire actual 

knowledge of the dismissal until June 18, 2011. This extended Self’s deadline to file a motion to 

reinstate until July 18, 2011. See TEX. R. CIV. P. 165a(3) (providing that motion to reinstate 

must be filed within thirty days of dismissal or “within the period provided by Rule 306a”); TEX.

R. CIV. P. 306a(4) (providing for extensions of deadlines if party and its attorney receive notice 

of appealable order late). Accordingly, Self’s motion to reinstate filed on July 15, 2011 was 

timely. The trial judge erred by concluding that she lacked plenary power to rule on Self’s 

motion to reinstate. 
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In her second issue, Self argues that the trial judge abused her discretion by not granting 

her motion to reinstate. As previously stated, the trial judge did not sign an order deciding Self’s 

motion to reinstate, believing she had no jurisdiction to do so. However, she stated on the record 

that she would have denied the motion to reinstate if she thought she had jurisdiction to do so. 

With the benefit of the trial judge’s recent finding, we can determine that the motion to reinstate 

was effectively overruled by operation of law seventy-five days after June 18, 2011 by virtue of 

Texas Rules of Civil Procedure 165a and 306a. See TEX. R. CIV. P. 165a(3) (allowing seventyfive-day period to commence “as may be allowed by Rule 306a”); TEX. R. CIV. P. 306a(1), (4) 

(deferring commencement of postjudgment deadlines when party and attorney do not receive 

notice or acquire actual knowledge of judgment within twenty days after its signing). We can 

review Self’s second issue as a challenge to the overruling of her motion by operation of law. 

We conclude Self has not shown reversible error in her second issue on appeal because 

she does not address all possible grounds for the dismissal of her case. If a dismissal order does 

not state the grounds for the dismissal, a plaintiff seeking reinstatement must negate all possible 

grounds. Hatcher v. TDCJ–Institutional Div., 232 S.W.3d 921, 925 (Tex. App.—Texarkana 

2007, pet. denied); Manning v. North, 82 S.W.3d 706, 713 (Tex. App.—Amarillo 2002, no pet.); 

see also Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.) 

(“An appellant must attack all independent bases or grounds that fully support a complained of 

ruling or judgment.”). In this case, although the trial judge included a factual recital in the 

dismissal order that Self did not appear at the dismissal hearing, the order is silent as to the 

ground or grounds for the dismissal. The record shows that another possible reason for the 

dismissal—and the apparent reason the court set the case on the dismissal docket in the first 

place—was Self’s previous noncompliance with the trial court’s letter requiring all parties to 

participate in the submission of a discovery control plan and scheduling order on pain of 
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dismissal. Self did not address this possible ground for dismissal in her motion to reinstate or at 

the reinstatement hearing. Nor does she address it in her appellate brief, which is limited to an 

argument about the reason she did not appear at the dismissal hearing. Accordingly, she has not 

shown reversible error. See Oliphant Fin. LLC, 295 S.W.3d at 424 (stating that when appellant 

fails to challenge all independent grounds supporting the judgment, “we must accept the validity 

of that unchallenged independent ground,” and any error identified by appellant is harmless). 

In her third issue, Self argues that the trial judge erred by treating the presumption that 

Self’s counsel received the mailed notices as irrebuttable. In light of our disposition of Self’s 

first issue, it is unnecessary for us to address this issue. 

IV. CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment. 

111296F.P05 

/Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

AMY SELF, Appellant 

No. 05-11-01296-CV V. 

TINA KING and ELIZABETH TUCKER, 

Appellees 

 On Appeal from the County Court at Law 

No. 1, Collin County, Texas 

Trial Court Cause No. 001-1286-2010. 

Opinion delivered by Justice FitzGerald. 

Justice Lang-Miers participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

 It is ORDERED that appellees TINA KING and ELIZABETH TUCKER recover their 

costs of this appeal from appellant AMY SELF. 

Judgment entered June 28, 2013 

/Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE