Reverse and Remand and Opinion Filed June 28, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00800-CV
COURTNEY CHRISTOPHER, Appellant
V.
JUAN ECHEVARRIA, Appellee
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-11780
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Bridges
Courtney Christopher appeals the trial court’s dismissal of her underlying personal injury
suit for want of prosecution and the trial court’s failure to conduct a hearing or rule on her motion
to reinstate. In two issues, Christopher argues the trial court erred in failing to conduct a hearing
on her motion to reinstate and reinstate the case. We reverse and remand this cause for a hearing
on the motion to reinstate.
In September 2015, Christopher sued Juan Echevarria and asserted claims arising out of a
car accident in which Echevarria was the driver and Christopher was the passenger. On April 12,
2017, Christopher’s case was dismissed for want of prosecution. On May 10, 2017, Christopher
filed a motion to reinstate. The verified motion contained the affidavit of Christopher’s attorney
who stated he was not aware the case was set for hearing or called to trial on or about April 12,
2017, and he did not receive notice of a hearing being set, the case being called to trial, or any
other party announcing for trial. The motion stated further that the failure of [Christopher’s]
attorney to appear for a hearing or trial was not intentional or the result of conscious indifference
but was due to an accident or mistake and the failure has been otherwise reasonably explained.
Therefore, the motion requested that the case should be set for hearing and reinstated. The trial
court took no action on the motion to reinstate, and Christopher filed her notice of appeal on July
10, 2017.
In her first issue, Christopher argues the trial court erred in failing to conduct a hearing on
her motion to reinstate. In response, Echevarria argues this Court lacks jurisdiction over this
appeal and the trial court did not abuse its discretion by failing to set the motion to reinstate for
hearing because the motion to reinstate was deficient due to the omission of a certificate of
conference required by rule 2.07(a) of the Local Rules of the Civil Courts of Dallas County, Texas.
Echevarria argues further that, because the motion to reinstate was deficient, it did not extend the
time for filing Christopher’s appeal. Thus, Echevarria argues, Christopher’s notice of appeal filed
more than thirty days after the trial court’s order dismissing her case for want of prosecution was
untimely.
Rule 2.07(a) provides that “[N]o counsel for a party shall file, nor shall any clerk set for
hearing, any motion unless accompanied with a ‘Certificate of Conference.’” Although the rule
prohibits counsel from filing and clerks from setting for hearing “any motion” without a certificate
of conference, the rule does not render void any motion filed without a certificate of conference in
violation of the rule. See Starnes v. Holloway, 779 S.W.2d 86, 96 Tex. App.—Dallas 1989, writ
denied) (local rule requiring motion for consolidation to be filed in earliest case filed did not
purport to render void any order based on erroneously filed motion). Further, in view of the fact
that parties may freely file motions and clerks may freely set hearings, the local rule is purely
–2–
procedural. See id. In addition, if violation of the local rule rendered void any motion without a
certificate of conference, the local rule might well be in conflict with the Texas Rules of Civil
Procedure and the Texas Constitution. See id. (rejecting argument that violation of local rule
regarding motions for consolidation rendered consolidation order void). We conclude the absence
of a certificate of conference from Christopher’s motion to reinstate did not render the motion
void. Therefore, the motion to reinstate extended the time for filing an appeal. Federal Lanes,
Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App. —Houston [1st Dist.] 1995, writ denied)
(verified motion to reinstate, filed after dismissal under rule of civil procedure 165a, has the same
effect as a motion for new trial in extending time for perfecting appeal to within ninety days after
dismissal order is signed).
Under rule of civil procedure 165a(3), a motion to reinstate shall set forth the grounds
therefor and be verified by the movant or his attorney. TEX. R. CIV. P. 165a(3). The clerk shall
deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as
practicable. Id. The Texas Supreme Court has held that the hearing required by rule 165a(3) is
mandatory and that failure to hold such a hearing requires reversal. Thordson v. City of Houston,
815 S.W.2d 550, 550 (Tex. 1991) (per curiam); see Welborn v. American Medical Response of
Texas, Inc., 313 S.W.3d 884, 886 (Tex. —Dallas 2010, no pet.).
Because Christopher timely filed a verified motion to reinstate stating the grounds therefor,
the trial court was required to hold a hearing on the motion. See TEX. R. CIV. P. 165a(3). The
court’s failure to do so was error and requires reversal. See Thordson, 815 S.W.2d at 550; Welborn,
313 S.W.3d at 886. We sustain Christopher’s first issue. Because of our disposition of this issue,
we need not consider Christopher’s remaining issue.
–3–
We reverse the trial court’s judgment and remand to the trial court to conduct a hearing on
Christopher’s motion to reinstate.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
170800F.P05
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
COURTNEY CHRISTOPHER, Appellant On Appeal from the 298th Judicial District
Court, Dallas County, Texas
No. 05-17-00800-CV V. Trial Court Cause No. DC-15-11780.
Opinion delivered by Justice Bridges.
JUAN ECHEVARRIA, Appellee Justices Brown and Boatright participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for a hearing on Courtney
Christopher's motion to reinstate.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered June 28, 2018.
–5–