In re LOH Elkhart, LLC d/b/a Elkhart Oaks Care Center, Live Oak Healthcare, LLC, Senior Living Properties, LLC, SLP Management Holdings, LLC, and LOH Management, LLC, 12-26-00062-CV, May 20, 2026.
On appeal from 369th District Court in Anderson County, Texas
Synopsis
Rule 306a remains a strict gateway, not a fallback excuse. If a party claims delayed notice of a dismissal order, post-judgment deadlines shift only if the party proves the date of first notice or actual knowledge by sworn motion and notice under Rule 306a(5); an unverified motion to reinstate does not do that work and does not extend plenary power.
Relevance to Family Law
This opinion matters in family law because docket dismissals, missed status conferences, inactive SAPCRs, enforcement actions, and post-decree modification suits regularly generate Rule 165a reinstatement fights. In divorce, custody, and property litigation, lawyers often assume lack of clerk notice preserves a path back into the case; this decision is a reminder that it does not, unless counsel strictly satisfies Rule 306a with a sworn filing establishing the date notice or actual knowledge was first received. In practical terms, that means a dismissed modification, enforcement, or property-division proceeding can be permanently lost if reinstatement papers are unverified or if Rule 306a proof is not timely and properly presented.
Case Summary
Fact Summary
The underlying case was a medical liability suit that the trial court dismissed for want of prosecution on August 21, 2025. According to the appellate record, the district clerk sent the dismissal order by email on September 4. The real party in interest did not file a motion to reinstate within thirty days of the dismissal order. Instead, on November 3, she filed an unverified motion to reinstate alleging lack of service of the notice of intent to dismiss. She did not invoke Rule 306a, and she did not state when she first received notice or actual knowledge of the dismissal order.
Only later, on January 5, 2026, did she file a verified supplement asserting that counsel first learned of the dismissal on October 31, 2025, when the court coordinator advised that the case had been dismissed. Two days later, on January 7, the trial court signed an order reinstating the case, finding the failure to appear was not intentional or the result of conscious indifference. The relators then sought mandamus, arguing the reinstatement order was signed after the trial court’s plenary power had already expired and was therefore void.
Issues Decided
- Whether Rule 306a(5) requires a sworn motion and notice proving the date the adversely affected party or counsel first received notice or actual knowledge of the dismissal order before post-judgment deadlines can run from that later date.
- Whether an unverified motion to reinstate satisfies Rule 165a(3) and extends plenary power.
- Whether a later verified supplement can retroactively cure the failure to timely file a verified Rule 165a motion or a proper Rule 306a motion.
- Whether a reinstatement order signed after plenary power expires is void and subject to mandamus relief.
Rules Applied
The court relied principally on Texas Rules of Civil Procedure 165a(3) and 306a(4)-(5).
Under Rule 165a(3), a motion to reinstate must be verified by the movant or counsel and must be filed within thirty days after the dismissal order is signed, unless Rule 306a extends the timetable. A timely verified motion to reinstate extends the trial court’s plenary power; an unverified one does not.
Under Rule 306a(4), if a party adversely affected by an appealable order does not receive notice or acquire actual knowledge of the order within twenty days after signing, then post-judgment periods run from the date notice or actual knowledge is first received. But Rule 306a(5) imposes a procedural condition precedent: the party must prove in the trial court, on sworn motion and notice, the date on which notice or actual knowledge was first received and that this occurred more than twenty days after signing.
The court’s reasoning tracks the Texas Supreme Court’s strict treatment of these rules, including In re Lynd Co., 195 S.W.3d 682 (Tex. 2006), and McConnell v. May, 800 S.W.2d 194 (Tex. 1990). The opinion also cites authority confirming that an unverified motion to reinstate does not extend plenary power and that orders signed after plenary power expires are void and correctable by mandamus.
Application
The Tyler Court of Appeals approached the case from a jurisdictional premise: whether the trial court still had plenary power when it signed the reinstatement order on January 7. That question turned entirely on whether the plaintiff had properly invoked either Rule 165a or Rule 306a.
The court first held that the November 3 motion to reinstate failed under Rule 165a because it was unverified. That defect mattered jurisdictionally, not merely procedurally. A motion to reinstate must be verified to extend plenary power. Because this one was not, it had no tolling effect. The court further observed that even if the motion had been verified, it was filed more than thirty days after the August 21 dismissal order, so it was untimely unless Rule 306a had been properly invoked.
That led to the second and decisive point: Rule 306a was never timely and properly triggered. The November 3 motion complained about lack of service of dismissal-related notices, but it did not identify the date counsel first received notice or actual knowledge of the signed dismissal order. It also was not sworn. In the court’s view, that meant the movant failed to satisfy the strict proof mechanism in Rule 306a(5). Without that sworn showing, the ordinary post-judgment deadlines continued to run from the date the dismissal order was signed.
The January 5 verified supplement came too late to save the reinstatement effort. By then, the trial court’s ordinary plenary power had long expired. A late verification or late Rule 306a factual showing could not retroactively resurrect jurisdiction that had already lapsed. As a result, when the trial court signed the January 7 reinstatement order, it acted outside its plenary power, rendering the order void.
Holding
The court held that Rule 306a is strictly enforced. A party seeking to shift post-judgment deadlines from the date an order was signed to the date of later notice or actual knowledge must comply with Rule 306a(5) by filing a sworn motion, with notice, proving the date notice or actual knowledge was first received and that the date fell more than twenty days after signing. Mere allegations of lack of notice, without the required sworn Rule 306a proof, are insufficient.
The court also held that an unverified motion to reinstate does not satisfy Rule 165a(3) and therefore does not extend the trial court’s plenary power. Because the plaintiff’s November 3 motion was unverified and untimely under the ordinary thirty-day timetable, and because Rule 306a was not properly invoked, plenary power expired before the trial court signed the reinstatement order.
Finally, the court held that a reinstatement order signed after plenary power expires is void, and mandamus is the proper remedy to correct it. The writ was conditionally granted.
Practical Application
For family-law litigators, this is a deadline-discipline case masquerading as a procedural technicality opinion. It should immediately change how you respond to DWOPs in modification suits, enforcement actions, partition/property disputes carried under the Family Code, and post-divorce proceedings that languish on dismissal dockets. If your client did not receive timely notice of the dismissal order, do not assume the absence of notice itself preserves jurisdiction. The rule is not equitable; it is procedural and exacting.
In a divorce or SAPCR setting, the trap is common. Counsel misses a dismissal docket, later learns from a coordinator or from the online docket that the case was dismissed, and files a motion to reinstate alleging lack of notice. If that motion is unsworn, or if it fails to state and prove the exact date of first notice or actual knowledge of the signed order, it may not extend anything. By the time a hearing is held, the trial court may no longer have power to reinstate.
This opinion also offers an offensive tool. If your opponent secures reinstatement after a DWOP in a custody modification or enforcement matter, examine the reinstatement record immediately. Was the motion verified? Was it timely? Did the movant strictly comply with Rule 306a(5)? Did the motion identify the date notice or actual knowledge of the signed dismissal order was first received? If not, the reinstatement order may be void, and mandamus may be available.
Where property issues are involved, the leverage can be significant. A void reinstatement in a post-divorce property suit can unwind months of litigation, defeat interim strategic gains, and force the opposing party into limitations or refiling problems. In child-related cases, attacking a void reinstatement can eliminate a pending modification or enforcement action altogether, shifting settlement posture immediately.
Checklists
When Your Family Law Case Is Dismissed for Want of Prosecution
- Calendar the dismissal signing date immediately.
- Calculate the standard thirty-day deadline under Rule 165a(3).
- Obtain the signed dismissal order, not just docket information or a coordinator email.
- Determine the exact date counsel or client first received notice or actual knowledge of the signed order.
- Preserve the evidence of that date, including email metadata, screenshots, affidavits, and correspondence.
To Properly Invoke Rule 306a
- File a sworn motion.
- Give notice of the motion and hearing.
- State the exact date the party or counsel first received notice or actual knowledge of the signed dismissal order.
- Allege and prove that this date was more than twenty days after the order was signed.
- Attach competent supporting proof, such as counsel affidavit, email records, or clerk correspondence.
- Obtain a trial-court ruling establishing the Rule 306a date as early as possible.
To Properly File a Motion to Reinstate Under Rule 165a
- Verify the motion by the movant or counsel.
- File it within thirty days of the signed dismissal order unless Rule 306a is properly invoked.
- Plead the grounds for reinstatement with specificity.
- If lack of notice is part of the theory, separately satisfy Rule 306a(5); do not assume Rule 165a allegations are enough.
- Set the motion for hearing promptly.
- Secure a signed order before plenary power expires.
To Attack an Opponent’s Reinstatement Order
- Check whether the motion to reinstate was verified.
- Check the filing date against the dismissal signing date.
- Check whether Rule 306a was expressly invoked.
- Check whether the movant filed a sworn motion proving the date of first notice or actual knowledge.
- Check whether the trial court signed reinstatement after ordinary plenary power expired.
- Consider mandamus promptly if the reinstatement order appears void.
Office-System Safeguards for Family Law Dockets
- Audit all dismissal docket notices and standing dismissal settings weekly.
- Use a dual-calendar system for dismissal dates and post-dismissal deadlines.
- Train staff to escalate any returned or undelivered e-service notices immediately.
- Maintain a standard Rule 306a affidavit template for rapid filing.
- Require verification review before any motion to reinstate is filed.
- Confirm the court’s plenary-power calculation before presenting any reinstatement order for signature.
Citation
In re LOH Elkhart, LLC d/b/a Elkhart Oaks Care Center, Live Oak Healthcare, LLC, Senior Living Properties, LLC, SLP Management Holdings, LLC, and LOH Management, LLC, No. 12-26-00062-CV, 2026 WL ___ (Tex. App.—Tyler May 20, 2026, orig. proceeding) (mem. op.).
Full Opinion
Family Law Crossover
This civil ruling can be weaponized in family court in two directions. Defensively, if your client’s divorce, modification, enforcement, or property suit is dismissed, you must build a Rule 306a record immediately and formally, because equitable pleas about lack of notice will not preserve jurisdiction without a sworn motion proving the date of first notice or actual knowledge. Offensively, if opposing counsel obtains reinstatement after a DWOP, this case gives you a clean mandamus theory: no verified Rule 165a motion, no proper Rule 306a(5) proof, no extended plenary power, and therefore no valid reinstatement order. In a high-conflict custody or property case, that can be outcome-determinative.
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