Full Opinion (html_with_citations)

Reverse and Remand and Opinion Filed December 13, 2023




                                        In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-22-00997-CV

                          PENNY L. YATES, Appellant
                                     V.
                          WENDY HURTADO, Appellee

                On Appeal from the 193rd Judicial District Court
                             Dallas County, Texas
                     Trial Court Cause No. DC-18-13956

                         MEMORANDUM OPINION
                 Before Justices Pedersen, III, Garcia, and Kennedy
                          Opinion by Justice Pedersen, III
      Appellant Penny L. Yates appeals the trial court’s June 14, 2022 Order of

Dismissal with Prejudice, which dismissed her claim against appellee Wendy

Hurtado for failure to appear on the date scheduled for trial. In a single issue, Yates

contends that the trial court abused its discretion because she was not notified by the

court that she needed to appear for trial. We reverse the trial court’s denial of Yates’s

motion for new trial, vacate the Order of Dismissal with Prejudice, and remand the

case for further proceedings consistent with this opinion.
                                      BACKROUND

      Yates and Hurtado were involved in a motor vehicle accident in 2017. Hurtado

sued Yates, alleging that Yates was negligent and caused the accident by failing to

yield the right of way while making a left turn. Yates filed a counterclaim, alleging

that Hurtado was negligent and caused the accident by running a red light. Hurtado’s

claim was settled; Yates’s claim was set for trial on June 14, 2022. When the case

was called on that day, Hurtado’s counsel was present, but neither Yates nor her

attorney appeared. The trial court signed the Order of Dismissal with Prejudice based

on her failure to appear.

      Yates’s counsel filed a motion for new trial supported by the Affidavit of

Belinda Gutierrez, his legal assistant. The affidavit stated in relevant part:

      On Friday, June 10th at around 3:35 Ms. Cynthia Willis (Court
      Coordinator) called regarding our trial conflict letter that had been
      previously filed. I let her know that they can disregard that notice,
      because the case we were assigned to in Harris County had been settled
      and we can move forward with trial on Penny Yates. Ms. Willis then
      asked how many witness, I stated 2 or 3. She also asked about how
      many days we will need for trial. I stated 2 to 3 days. I asked her if we
      will need to be there on June 14th, 2022. Ms. Willis said she did not
      know yet. I asked her how I will know in time for us to make
      arrangements to get there from Houston. She said she will call us on
      Monday (the 13th) before the end of the day. I gave her my name,
      Belinda Gutierrez, and another legal assistant’s name (Tara Robinson)
      so when she called she could ask for one of us. I never heard back from
      her on Monday June 13th.

      The trial court held a hearing on Yates’s motion for new trial. At the hearing,

counsel for Yates stated the following;


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      Your Honor, this is a case that the reason we weren’t there [was]
      because I would be traveling from Houston, I had my office in contact
      with the coordinator. She had spoken with one of my assistants on
      Thursday and told us we were No. 3 and that she would let us know
      where we needed to be, if I needed to be up there as the docket
      progressed on Friday. She spoke with one of my assistants Belinda who
      I’ve attached [her] affidavit to a motion for new trial and we were told
      that – Belinda asked if we needed to be at trial on Tuesday and she said
      she would let us know before the end of the business day on Monday.
      So that I would be able to on Monday – so that I would have time to
      drive to Dallas to prepare for the trial. We didn’t receive a call on
      Monday. I actually also spoke with [Hurtado’s counsel] as late as 3:30
      in the afternoon and he hadn’t heard anything in the afternoon either.
The trial court asked counsel for Hurtado if he had anything to add to that recitation

of events, and counsel responded:

      No, Your Honor. I do concur with everything [Yates’s counsel] had
      informed – advised the Court. We had the same type of communication
      with [Yates’s counsel’s] office and with the Court coordinator and we
      don’t have anything to add.

The trial court took the matter under consideration.

      The motion for new trial was ultimately denied by operation of law, and this

appeal followed.

                                      DISCUSSION

      The trial court’s order states that Yates’s claim was dismissed “pursuant to

the Texas Rules of Civil Procedure, the Local Rules of the Civil District Courts of

Dallas County, and the Court’s inherent authority.” A trial court’s authority to

dismiss a case for want of prosecution can stem from two sources: (1) Texas Rule of

Civil Procedure 165a and (2) the court’s inherent authority under common law. TEX.

R. CIV. P. 165a; Tunchez v. Houk, No. 05-20-00330-CV,
2021 WL 5822839
, at *3
                                         –3–
(Tex. App.—Dallas Dec. 8, 2021, no pet.) (mem. op.). Rule 165a provides that “[a]

case may be dismissed for want of prosecution on failure of any party seeking

affirmative relief to appear for any hearing or trial of which the party had notice.”

TEX. R. CIV. P. 165a(1). The common law also vests the trial court with an inherent

power to dismiss if a plaintiff fails to prosecute her case with due diligence. Tunchez,
2021 WL 5822839
, at *3. Thus, it was within the court’s power to dismiss Yates’s

claim when she did not appear on the day her case was called for trial.

      However, rule 165a provides that when a case has been dismissed pursuant to

its terms, the court must grant a properly filed motion to reinstate if it finds “after a

hearing that the failure of the party or his attorney [to appear] 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.” TEX. R. CIV. P. 165a(3). This

standard and procedure for reinstatement apply to all dismissals for want of

prosecution, including cases dismissed pursuant to the trial court’s inherent power.

TEX. R. CIV. P. 165a(4). A failure to appear will not be deemed intentional or due to

conscious indifference within the meaning of the rule merely because it is deliberate.

Smith v. Babcock & Wilcox Const. Co., Inc.,
913 S.W.2d 467, 468
 (Tex. 1995).

Instead, the failure must also have been without justification.
Id.
 And proof of

justification—whether accident, mistake, or other reasonable explanation—will

negate intent or conscious indifference.
Id.
 As we have said, “[s]ome excuse—not



                                          –4–
necessarily a good one—will suffice.” Tunchez,
2021 WL 5822839
, at *5 (citing

Milestone Operating, Inc. v. ExxonMobil Corp.,
388 S.W.3d 307, 310
 (Tex. 2012)).

      We review a trial court’s dismissal for want of prosecution for an abuse of

discretion. Mansaray v. Phillips,
626 S.W.3d 402
, 405 (Tex. App.—Dallas 2021, no

pet.). Similarly, we review a trial court’s denial of reinstatement for an abuse of

discretion. Franklin v. Sherman Indep. Sch. Dist.,
53 S.W.3d 398, 401
 (Tex. App.—

Dallas 2001, pet. denied) (per curiam). A trial court abuses its discretion when it acts

without reference to any guiding rules and principles of law. Downer v. Aquamarine

Operators, Inc.,
701 S.W.2d 238
, 241–42 (Tex. 1985).

      Yates contends that she did not deliberately disregard the trial date and did

not act with conscious indifference to the potential dismissal of the case for want of

prosecution. Instead, she relied upon the court coordinator’s representation that she

would notify counsel if the case were going to be reached for trial. When the

coordinator did not call, Yates’s counsel believed that they would not be called to

trial on June 14th.

      Hurtado argues that the only evidence presented by Yates, the Gutierrez

affidavit, shows that Yates had actual notice of the trial setting. We agree, but this

case does not turn on whether Yates had notice of the setting. Instead, the question

before us is whether Yates’s failure to appear was intentional or the result of

conscious indifference, or whether it was the result of accident, mistake, or another

reasonably explained circumstance. If the movant’s explanation is adequate to show

                                          –5–
such a justification, then she need not present evidence at the reinstatement hearing.

Brooks-PHS Heirs, LLC v. Bowerman, No. 05-18-00356-CV,
2019 WL 1219323
, at

*4 (Tex. App.—Dallas Mar. 15, 2019, pet. denied) (mem. op. on reh’g) (citing Dir.,

State Emps. Workers’ Comp. Div. v. Evans,
889 S.W.2d 266, 268
 (Tex. 1994)).

      We conclude that Yates’s explanation of the reason she failed to appear is

reasonable and sufficient to negate any intentional or consciously indifferent

conduct. Here, counsel resided out of town and relied upon the representations of

the court coordinator to know whether and when he needed to drive to Dallas for

trial. Counsel for Hurtado did not challenge the factual basis for Yates’s counsel’s

absence and agreed that the coordinator had agreed to call the attorneys if the case

would be reached. We conclude that Yates has given a reasonable explanation for

her failure to appear when her case was called for trial. When an explanation is

reasonable, as Yates’s is, a trial court abuses its discretion in failing to reinstate. See

Welda v. Mangavalli, No. 05-21-01145-CV,
2023 WL 2607563
, at *2 (Tex. App.—

Dallas Mar. 23, 2023, no pet.) (mem. op.). Under these circumstances, we conclude

the trial court abused its discretion in allowing Yates’s motion for new trial to be

overruled by operation of law. See
id.

      We sustain Yates’s single appellate issue.




                                           –6–
                                 CONCLUSION

      We reverse the trial court’s denial of Yates’s motion for new trial, vacate the

June 14, 2022 Order of Dismissal with Prejudice, and remand this case for further

proceedings consistent with this opinion.




                                            /Bill Pedersen, III//
220997f.p05                                 BILL PEDERSEN, III
                                            JUSTICE




                                        –7–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

PENNY L. YATES, Appellant                    On Appeal from the 193rd Judicial
                                             District Court, Dallas County, Texas
No. 05-22-00997-CV          V.               Trial Court Cause No. DC-18-13956.
                                             Opinion delivered by Justice
WENDY HURTADO, Appellee                      Pedersen, III. Justices Garcia and
                                             Kennedy participating.

       In accordance with this Court’s opinion of this date, we REVERSE the trial
court’s denial of appellant’s motion for new trial, VACATE the June 14, 2022
Order of Dismissal with Prejudice, and REMAND this case to the trial court for
further proceedings consistent with this opinion.

      It is ORDERED that appellant Penny L. Yates recover her costs of this
appeal from appellee Wendy Hurtado.


Judgment entered this 13th day of December, 2023.




                                       –8–