MAJORITY OPINION On May 13, 2020, relator Oprona, Inc. filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition relator asks this court to compel the Honorable Cory Don Sepolio, presiding judge of the 269th District Court in Harris County, Texas, to set aside his April 1, 2020 order granting the real party in interest’s motion for new trial and May 3, 2020 order denying relator’s motion to void the April 1, 2020 new trial order. We deny the petition. BACKGROUND The underlying case involves a claim for wrongful termination. Erika Arroyo, who was employed by Oprona as a finance manager, alleged that Oprona terminated her employment after she had refused to write a check to the Internal Revenue Service for payment of an Oprona executive’s personal income taxes. On March 3, 2016, Arroyo sued Oprona, alleging that her termination was the culmination of a course of conduct that was brought about by her refusal to act in violation of the law. Arroyo sued Oprona under the Racketeer Influenced and Corrupt Organizations Act (“RICO”)[1] and under the Sabine Pilot doctrine, which prohibits discharging an employee in Texas “for the sole reason that the employee refused to perform an illegal act.”[2] Oprona removed the case to federal court and, after Arroyo’s RICO claim was dismissed, the Sabine Pilot claim was remanded to the trial court. On January 9, 2020, Oprona filed a notice of a hearing for February 14, 2020, on its “forthcoming Motion for Summary Judgment.” Oprona filed its motion for traditional summary judgment on Arroyo’s Sabine Pilot claim on January 24, 2020. Arroyo’s counsel, David T. Lopez, on February 12, 2020, emailed the deputy district clerk and Oprona’s counsel, claiming that he had not been served with the motion for summary judgment. Lopez asserted that he only became aware of the motion when he saw it on the trial court’s docket. Lopez asked Oprona’s counsel to provide him with the identity of the service provider. The next day, Oprona filed a proof of service of the notice of the hearing and its motion for summary judgment, stating that it had served the notice of the hearing on Lopez via e-file.TXcourts.gov and the motion for summary judgment via prodocefile.com. Oprona attached the receipts and transaction pages showing service of the notice and the motion for summary judgment. On February 14, 2020, the trial court held a hearing on Oprona’s motion for summary judgment and granted the motion the same day, dismissing all of Arroyo’s claims with prejudice “[u]pon consideration of the Motion, any arguments in support or opposition, the pleading on file, and applicable law.” Lopez did not appear at the hearing on Arroyo’s behalf, request a continuance, or seek leave of the trial court to file a late response to the motion for summary judgment. Arroyo filed a verified motion to reinstate on February 17, 2020. In the motion, Arroyo argued that Lopez’s failure to appear at the hearing on her behalf was not the result of intentional or conscious indifference. Arroyo claimed, as Lopez had previously advised in his email to the deputy district clerk and Oprona’s counsel, that Lopez was not served with the motion for summary judgment and was not aware of the motion until Lopez noticed, on February 12, 2020, that it was on the trial court’s docket. According to the motion to reinstate, Lopez had been having problems receiving e-filed documents and had previously made Oprona’s counsel aware of the issue. The motion to reinstate also averred that Oprona’s counsel made no mention of the hearing during the February 12, 2020 exchange of communications with Lopez, who assumed no hearing had been set. In the motion, Arroyo acknowledged that Lopez had received the notice of the hearing but “did not open the file of the notice of hearing because it had a significantly different date from the one containing the motion [he] had already downloaded from the online docket.” Oprona responded that Arroyo’s motion to reinstate was not governed by Rule 165a,[3] but asserted that the motion was governed by “an exacting standard that must be met when a party seeks a new trial following an adverse summary judgment ruling to which the party did not timely respond.” Oprona argued that because Arroyo had notice of hearing and the means to modify the deadlines under Rule 166a[4], equitable standards to other requests for new trial do not apply. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 684 (Tex. 2002). On February 26, 2020, the trial court signed the order denying Arroyo’s motion to reinstate. On March 11, 2020, Arroyo filed a motion for new trial, arguing that the trial court abused its discretion by granting the motion for summary judgment merely because Arroyo was not represented at the summary judgment hearing. Arroyo also asserted that she had a meritorious defense. Arroyo asked that the trial court vacate the summary judgment, restore the case to the trial docket, and issue a new scheduling order. Oprona responded that the trial court lacked plenary power to grant Arroyo’s motion for new trial because Arroyo’s motion to reinstate was actually a motion for new trial because the trial court had ruled on the merits of the summary judgment motion. According to Oprona, having filed one motion for new trial, which was overruled, Arroyo could not file a second motion for new trial within 30 days of the summary judgment. Arroyo replied that her motion for new trial addressed elements distinctly different from those of her motion to reinstate and the motion to reinstate did not affect the trial court’s plenary power to grant her timely-filed motion for new trial. On April 1, 2020, the trial court signed the order granting Arroyo’s motion for new trial as follows: Plaintiff’s Motion for New Trial is GRANTED. Summary Judgment is vacated. This cause will be set on the trial docket and no additional docket control order will be issued by this Court. Oprona filed a motion to declare the April 1, 2020 order void and for expedited consideration or, alternatively, to stay. On May 3, 2020, the trial court signed the following order denying Oprona’s motion: The Court finds that . . . Plaintiff Arroyo’s Motion to Reinstate was not a Motion for New Trial and Court’s disposition of the Motion to Reinstate did not relate to a new trial. The cause was not dismissed for want of prosecution so a motion to reinstate was a procedurally erroneous request and accordingly denied. Accordingly, Oprona’s motion that the Order granting new trial be declared void is DENIED. In addition[,] the Texas Supreme Court’s April 27, 2020 12th Emergency Order gives this Court authority to extend deadlines during the Covid 19 Pandemic. This Court hereby grants relief in extending Plaintiff’s Deadline to file their [sic] Motion for New Trial. In this mandamus proceeding, Oprona complains of the trial court’s April 1, 2020 order granting a new trial and May 3, 2020 order denying the motion to declare the new trial court void. STANDARD OF REVIEW Ordinarily, to be entitled to a writ of mandamus, the relator must show that the trial court abused its discretion and relator does not have an adequate remedy by appeal. In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 130 (Tex. 2018) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). Courts are to assess the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). ANALYSIS Oprona argues that Arroyo’s February 17, 2020 motion to reinstate was in substance a motion for new trial. Therefore, according to Oprona, Arroyo’s March 11, 2020 motion for new trial was actually her second motion for new trial. A motion for new trial filed within 30 days after judgment, but after a motion for new trial has been overruled, is not “timely” for purposes of extending plenary power under Texas Rule of Civil Procedure329b(e).[5] In re Brookshire Grocery Co., 250 S.W.3d 66, 67 (Tex. 2008) (orig. proceeding). Arroyo’s motion to reinstate was denied by the trial court on February 26, 2020. Oprona asserts that the trial court had plenary power to set aside the summary judgment until March 27, 2020, rendering the April 1, 2020 order granting a new trial void. A motion to reinstate “shall set forth the grounds therefore and be verified by the movant or his attorney.” Tex. R. Civ. P. 165a(3). “The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Id. Arroyo asserted in her motion to reinstate that her failure to appear was not intentional or the result of conscious indifference but was the result of accident or mistake and Arroyo explained why her attorney did not appear. Arroyo did not argue the merits of Oprona’s summary judgment motion. The motion to reinstate was not the appropriate motion to file because the trial court did not dismiss the case for want of prosecution. However, the substance of the February 17, 2020 motion was that of a motion to reinstate, not a motion for new trial. Therefore, we conclude that Arroyo’s March 11, 2020 motion for new trial was not her second motion for new trial and the trial had plenary power to grant Arroyo’s timely-filed motion for new trial. The trial court did not abuse its discretion by (1) finding that the motion to reinstate was not a motion for new trial; (2) granting a new trial; or (3) denying Oprona’s motion to set aside the new trial order. Because we have found that the February 17, 2020 motion was a motion to reinstate and the trial court had plenary power to grant the March 11, 2020 motion for new trial, it is not necessary to address the trial court’s holding in the May 3, 2020 order that the Texas Supreme Court’s Twelfth Emergency Order Regarding the Covid-19 State of Disaster extended the deadline for a party to file a motion for new trial. CONCLUSION Relator has not established that it is entitled to mandamus relief. Accordingly, we deny relator’s petition for writ of mandamus. We lift our corrected stay order issued on May 14, 2020. /s/ Margaret Poissant Justice Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant (Frost, C.J., dissenting).
