REVERSE and REMAND and Opinion Filed March 15, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00356-CV
BROOKS-PHS HEIRS, LLC, BROOKS-PSC HEIRS, LLC; BROOKS-WTC HEIRS,
LLC; ALASTAIR TRICKETT; PENELOPE TRICKETT; HEATHER ELIZABETH
OLSEN; MARILYN HOLMES TULLOCH; NANCY LEE HALSTED WOODMANSEE;
JUNE C. HAACK; MARILYN HALSTED; JOSEPH EDWIN HALSTED; THOMAS
ARTHUR HALSTED; ROBERT BRUCE HALSTED; MARGARET H. REYNOLDS;
MARY P. HALSTED; JANE DECOSKY; CAROL CANFIELD CLARKE-TERRILL,
FORMERLY CAROL C. SWEARINGEN, AS TRUSTEE OF THE ROBERT G.
SWEARINGEN REVOCABLE TRUST DECEMBER 19, 2001; MARCELLE BRANNEN;
AND ROBERT G. MCLEOD, ALSO KNOWN AS BOB MCLEOD, Appellants
V.
RICHARD HOWARD BOWERMAN, INDIVIDUALLY AND AS INDEPENDENT
EXECUTOR OF THE ESTATE OF ROBERT BOWERMAN, DECEASED; STEVEN
ROBERT BOWERMAN, INDIVIDUALLY; AND ESTHER MICHELE DAUGHERTY,
INDIVIDUALLY, Appellees
On Appeal from the 225th District Court
Bexar County, Texas
Trial Court Cause No. 2013-CI-10924
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Nowell
Opinion by Justice Schenck
On our own motion, we withdraw our opinion and vacate our judgment of February 11,
2019, and substitute this opinion in its place. Appellants appeal the trial court’s dismissal of their
quiet title action. In two issues, appellants contend the trial court abused its discretion in
dismissing their action for want of prosecution and in denying their motion to reinstate. For the
reasons that follow, we reverse the trial court’s denial of appellants’ motion to reinstate and remand
the case for further proceedings consistent with this opinion. Because all issues are settled in law,
we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Claralyn Trickett owned an undivided 1/32 royalty interest in mineral estates in property
located in Bexar and LaSalle Counties at the time of her death on December 24, 1972, at the age
of 48. Both appellants and appellees claim to have inherited the royalty interests in these mineral
estates. Appellants claim they inherited the interest directly as the legal heirs, or, indirectly, as the
heirs, successors, or assigns of the legal heirs, of Claralyn Trickett; appellees claim they inherited
the interest as the legal heirs of Robert Bowerman, who, they claim, was legally married to
Claralyn Trickett at the time of her death. In 2010 and 2011, appellees filed various affidavits of
heirship and deeds in the records of Bexar and La Salle Counties purporting to establish their
ownership of the royalty interests.
On July 1, 2013, appellants brought a quiet title action against appellees seeking both a
declaration that appellees in fact have no valid ownership interest in the mineral estates and the
removal of the affidavits and deeds appellants claim clouded their title. Appellants asserted the
Tijuana marriage of Robert Bowerman to Claralyn Trickett was void because Robert Bowerman
was still married to his second wife when he purportedly married Claralyn Trickett. Appellees
generally denied appellants’ claims, challenged appellants’ capacity and standing to sue, asserted
the affirmative defenses of estoppel, limitations, laches, and waiver, and brought a counterclaim
for fees.
Appellees sought abatement of the case claiming appellants had not shown that they were
the proper parties to bring such a suit because they had not conducted an heirship proceeding in
accordance with sections 48 and 49 of the probate code to determine the identity of all of the heirs
at law of Claralyn Trickett. On October 9, 2013, the trial court signed an Agreed Abatement Order
–2–
providing that “[u]pon written motion of Defendants, and with the consent of counsel for Plaintiffs,
and for good cause shown, the Court orders the above-captioned suit is to be abated in part1 for a
period of nine (9) months or until the completion of a suit for determination of heirship of Claralyn
Trickett, also known as Claralyn Bowerman, whichever is earlier, at which time the parties will
report back to this Court.”
On June 7, 2016, the trial court dismissed the case for want of prosecution. The trial court
set aside that dismissal on June 13, 2016, due to improper notice. The trial court then set the case
for dismissal on September 13, 2016. Appellants objected to the dismissal indicating that: On
March 25, 2015, they filed an Application to Determine Heirship of Claralyn Trickett in the County
Court of La Salle County; that case was later transferred to the Probate Court in Bexar County and
is set for a jury trial on February 21, 2017; and a judicial ruling on the heirship issue is legally
necessary before they can proceed in the quiet title case, as appellees had alleged in originally
obtaining an abatement. By agreement of the parties, or action of the trial court, the case was
carried on the trial court’s November 15, 2016, May 23, 2017, August 22, 2017, and January 9,
2018 dismissal dockets. On January 9, 2018, the trial court dismissed the case.
On January 30, 2018, appellants filed a Verified Motion to Reinstate the case. The trial
court held a hearing on appellants’ motion to reinstate on February 13, 2018. When the trial court
inquired whether there were any new developments since the dismissal, appellants indicated that
the only new development was that the probate court had set the heirship determination proceeding
for trial on May 21, 2018. The judge indicated she was not going to reconsider or undo something
1
The trial court ordered that, by agreement of the parties, discovery would proceed while the case is abated.
–3–
that another one of her fellow district court judges had already determined,2 and denied the motion.
This appeal followed.3
DISCUSSION
A party seeking appellate review of a dismissal for want of prosecution may frame its
argument variously as: the trial court erred in dismissing the case; the trial court erred in refusing
to reinstate the case; or both. Kirkpatrick v. Silva, No. 05-17-00146-CV, 2018 WL 521628, at *3
n.1 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.) (citing Maida v. Fire Ins. Exch.,
990 S.W.2d 836, 838 (Tex. App.—Fort Worth 1999, no pet.)). Each challenge, if sustained, is
independently sufficient to obtain reinstatement of the case. Id.
Here, appellants challenge both the dismissal and the denial of reinstatement. We address
appellants’ second issue challenging the denial of their motion to reinstate because it is dispositive
of this appeal and pretermit the remaining arguments.
We review the denial of a motion to reinstate following a dismissal for want of prosecution
under an abuse of discretion standard. Regent Care Ctr. at Med. Ctr. v. Hollis, No. 04-16-00131-
CV, 2017 WL 1337652, at *2 (Tex. App.—San Antonio Apr. 12, 2017, no pet.) (mem. op.). In
reviewing whether there was an abuse of discretion, the key question is whether the trial court
acted without reference to any guiding rules and principles, or in an arbitrary or unreasonable
manner. Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.).
When a case is dismissed for want of prosecution, the trial court shall reinstate the case
upon finding that the failure of the party or his attorney was not intentional or the result of
2
Judge Arteaga heard the motion to reinstate. She also signed the order of dismissal on January 9, 2018. Given her statements during the
hearing on the motion to reinstate, it is not clear whether she actually presided over the dismissal of the case on January 9, 2018, or if she merely
signed the order after a decision was made.
3
The Texas Supreme Court transferred this case from the Fourth District Court of Appeals to this Court. See TEX. GOV’T CODE ANN.
§ 73.001. In this procedural posture, we are bound to apply the precedent of that court. TEX. R. APP. P. 41.3.
–4–
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); Smith v. Babcock & Wilcox Constr. Co., 913
S.W.2d 467, 468 (Tex. 1995) (per curiam); Cappetta, 222 S.W.3d at 167. This standard is
essentially the same as the standard for setting aside a default judgment. Smith, 913 S.W.2d at 468
(citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (1939)). A failure to diligently prosecute
is not intentional or due to conscious indifference merely because it is deliberate; it must also be
without adequate justification. Id.; Cappetta, 222 S.W.3d at 167. Proof of such justification,
whether it be by accident, mistake, or other reasonable explanation, negates the intent or conscious
indifference for which reinstatement can be denied. Smith, 913 S.W.2d at 468; Cappetta, 222
S.W.3d at 167.
The record before us indicates that, in denying appellants’ motion to reinstate, the trial
court did not consider whether appellants’ failure to move forward in the quiet title action was
intentional or the result of conscious indifference or was not justified.4 TEX. R. CIV. P. 165a(3).
In other words, the trial court did not adhere to rule 165a(3)’s mandate and did not apply the
Craddock factors applicable to this case. See Smith, 913 S.W.2d at 468. Rather, the trial court
merely indicated some new material factual development since the dismissal was necessary to
warrant reinstatement in view of the earlier dismissal having been signed by another judge. But
this is not the standard for reinstatement. The decision to grant or deny a motion to reinstate is
like any other discretionary decision in the sense that discretion should be exercised, not elided or
stuck on auto pilot. See United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998) (per curiam)
(holding that “refusal to exercise discretion accorded [the court] by law . . . constitutes an error of
law”). By conditioning a consideration of appellants’ motion to reinstate on a showing of an event
4
The trial court stated “What I need to know is there’s a judge who’s already determined this on January 9th. That judge disagreed and
dismissed it. So you want me to reconsider. I’m not going to reconsider or I’m not going to undo something that another one of my [fellow] district
court judges has already determined.”
–5–
subsequent to the dismissal, the trial court effectively refused to exercise its discretion and acted
without reference to the controlling legal standard. See Telfair v. Zim Israel Navigation Co., 428
F.2d 127, 128 (5th Cir. 1970); Gonzalez v. Reliant Energy, 159 S.W.3d 615, 624 (Tex. 2005)
(failure to apply the law correctly constitutes abuse of discretion). We may correct such an error
on appeal. Ramco Oil & Gas v. Anglo Dutch, 171 S.W.3d 905, 910 (Tex. App.—Houston [14th
Dist.] 2005 no pet.); TEX. R. APP. P. 43.2(c).
Accordingly, we will review the record to determine whether appellants met their burden
of proof under rule 165a(3) and Smith, applying a standard similar to Craddock in cases involving
motions to reinstate after courts dismiss cases for want of prosecution to determine whether the
court might have properly denied the motion under that standard. See Martinez v. Benavides, No.
04-15-00465-CV, 2016 WL 3085913, at *2 (Tex. App.—San Antonio June 1, 2016, no pet.) (mem.
op.).
Appellants’ Motion to Reinstate was verified by appellants’ attorney Randall Calvert.5 The
motion set forth the following relevant facts:
At one time, the trial court had abated the case recognizing that its jurisdiction to
hear the case depended on appellants’ standing to bring their claims and that a
determination of heirship was a prerequisite to proceeding in this case;
Appellants had to hire a genealogy expert and conduct extensive searches in both
North America and the United Kingdom for potential heirs of Claralyn Trickett;
Following the completion of the expert’s genealogy report, appellants Marcelle
Swearingen and Nancy Lee Woodmansee, on behalf of the legal heirs of Claralyn
Trickett, filed an application to determine heirship in the county court of LaSalle
County;
The La Salle County case was transferred to the Bexar County probate court;
Appellant Marcelle Swearingen filed in the heirship proceeding a petition to
recover money belonging to the estate/rightful heirs, seeking to recover oil and gas
proceeds the appellants claim were incorrectly paid to the Bowermans;
5
The verification was subscribed and sworn to by Randall Calvert before a notary public and states that he is capable of making the
verification, he has read the motion to reinstate, and that the facts and matters stated in it are within his personal knowledge and are true and correct.
–6–
The quiet title action, the application to determine heirship, and the petition to
recover money, are interrelated because each turn on whether Robert Bowerman
was legally married to Claralyn Trickett, and that issue would be resolved by a jury
in the application to determine heirship proceeding;
Appellants had attempted to transfer and consolidate this case with the heirship
determination proceeding and appellees had opposed those efforts, despite having
urged abatement on that account;
Appellants had complied with the deadlines set forth in the probate court’s docket
control order in the heirship determination case, the parties had attempted to settle
their dispute and when settlement discussions broke down, appellants promptly
requested that the probate court enter a new docket control order, resulting in a trial
setting on May 21, 2018, a mere 4 months after dismissal of this case; and
Once the heirship determination proceeding goes to trial, appellants will be in a
position to quickly proceed to trial in this case.6
At the hearing on the motion to reinstate, Mr. Calvert reiterated that after the settlement
discussions broke down, plaintiffs/appellants moved to have a new docket control order and a new
trial date in the determination of heirship case, defendants/appellees objected to that request, the
probate judge set the heirship determination case for trial on May 21st, defendants/appellees claim
the heirship determination proceeding is a prerequisite to this case and that case will resolve
virtually all the issues in this case, and this case can be quickly resolved as soon as the heirship
determination case goes to trial. He further indicated that plaintiffs/appellants attempted to transfer
this case and consolidate the cases, defendants/appellees objected to the transfer and consolidation,
and plaintiffs/appellants complied with all the docket control orders, and all of the discovery in the
heirship determination case.
Citing Bard v. Frank B. Hall & Co., appellees claim the trial court did not abuse its
discretion in denying appellants’ motion to reinstate because appellants did not offer any evidence
6
After the trial in the heirship proceeding, appellants attempted to include in the record before this Court the jury’s verdict in that proceeding
finding Robert Bowerman was not legally married to Claralyn Trickett. The jury’s verdict in the heirship proceeding does not impact our disposition
of this appeal. Consequently, we need not determine whether it is properly before this Court.
–7–
at either the hearing on dismissal or on the motion to reinstate the cause. 767 S.W.2d 839, 845
(Tex. App.—San Antonio 1989, writ denied) (citing Frank v. Canavati, 612 S.W.2d 221, 222–23
(Tex. App.—San Antonio 1980, writ ref’d n.r.e.) (finding no abuse in discretion in dismissing
plaintiff’s claims when the plaintiff offered no evidence, explanation or excuse for the
unreasonable delay in prosecuting his claim at the dismissal hearing and the hearing on the motion
to reinstate)). Appellees’ contention necessarily discounts the effect of a properly verified motion
to reinstate and the filing of the reporter’s record on appeal. A trial court abuses its discretion in
denying a motion to reinstate where a verified motion to reinstate reasonably explains the failure
to appear at docket call or at a hearing, and the record contains no evidence that the failure was
intentional or the result of conscious indifference. See S. Pioneer Prop. & Cas. Ins. Co. v. Wilson,
No. 01-17-00444-CV, 2018 WL 3384558, at *3 (Tex. App.—Houston [1st Dist.] July 12, 2018,
no pet.) (mem. op). No separate presentation of evidence at a hearing is required if the verified
motion is adequate. Cf. Director, State Empls. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266,
268 (Tex. 1994) (motion for new trial challenging post-answer default judgment); Tex. Farmers
Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 WL 2024664, at *3 (Tex. App.—San Antonio May
2, 2018, pet. filed) (mem. op.) (motion for new trial challenging a no-answer default judgment);
Drawe v. McGuffin, 355 S.W.2d 738 (Tex. App.—San Antonio 1961, no writ) (a motion to
reinstate is in the nature of a motion for new trial).
Moreover, in Bard, unlike here, Bard failed to provide a reporter’s record on appeal, despite
having had a hearing on his motion to reinstate. The court in Bard concluded that “with no
statement of facts [transcript from the hearing] or findings of fact before us, we must presume that
the presiding judge at the dismissal hearing and the trial judge at the hearing on plaintiff’s motion
to reinstate the cause had before them, at the respective hearings, all necessary facts to support the
orders and passed on such facts which were necessary to support the orders.” Id. at 845. Here, we
–8–
have both the reporter’s record and a properly verified motion to reinstate. Thus, we can consider
the explanations provided in the verified motion and operate without any presumption that the trial
judge heard and credited contrary evidence refuting the averments in the motion in accordance
with the resulting judgment.
This case is more akin to the situation in Kenley v. Quintana Petro. Corp., 931 S.W.2d 318,
321 (Tex. App.—San Antonio 1996, writ denied). There, as here, the motion to reinstate included
counsel’s affidavit verifying that all facts in the motion were true and correct. Id. The motion
stated plaintiff’s counsel had not received notice of the dismissal hearing. Id. At the hearing on
the motion to reinstate, counsel re-urged the inadequate notice issue, and local counsel described
the circumstances of her failure to announce. Id. In that case, the San Antonio Court of Appeals
concluded the trial court abused its discretion by not granting the motion to reinstate. Id.
Appellants’ motion to reinstate included Mr. Calvert’s verification that all facts in the
motion were within his personal knowledge and were true and correct. Those facts are set forth
supra. At the February 13, 2018 hearing on the motion to reinstate, Mr. Calvert re-urged the
interrelatedness of the heirship determination and the quiet title actions, his attempts to consolidate
the cases without success, due in part to the opposition of appellees, and the necessity of
concluding the heirship determination case prior to proceeding to trial in this case, which can be
accomplished quickly after that case goes to trial on May 21, 2018.
We conclude the above facts constitute a reasonable explanation of appellants’ failure to
move forward with the quiet title action. The actions were not “intentional” or a result of
“conscious indifference.” Logically, heirship had to be decided before the district court could
determine whether appellants had standing to bring the quiet title action and whether appellees had
improperly clouded the title to the mineral interests at issue. Moreover, Texas courts have a strong
policy supporting resolution of cases on their merits, and in promoting the predictability of
–9–
property ownership and reliability of land titles, both of which strongly support the reinstatement
of appellants’ claims. See Cosgrove v. Cade, 468 S.W.3d 32, 34 (Tex. 2015); Sutherland v.
Spencer, 376 S.W.3d 752, 756 (Tex. 2012).
We conclude the trial court abused its discretion in failing to reinstate appellants’ case
because it did not consider or apply the Craddock factors applicable to this case and, had it done
so, it should have concluded that appellants’ failure to proceed with their quiet title action without
first having the heirship determined was not intentional or due to conscious indifference, but was
justified under the unique facts of this case. Accordingly, we sustain appellants’ second issue.
Having concluded the trial court abused its discretion in refusing to reinstate the case, we pretermit
consideration of appellants’ first issue challenging the dismissal for want of prosecution. TEX. R.
APP. P. 47.1.
CONCLUSION
We reverse the trial court’s order denying appellants’ motion to reinstate, reinstate
appellants’ lawsuit, and remand the case to the trial court for further proceedings.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
180356F.P05
–10–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BROOKS-PHS HEIRS, LLC, BROOKS- On Appeal from the 225th District Court,
PSC HEIRS, LLC; BROOKS-WTC Bexar County, Texas
HEIRS, LLC; ALASTAIR TRICKETT; Trial Court Cause No. 2013CI10924.
PENELOPE TRICKETT; HEATHER Opinion delivered by Justice Schenck.
ELIZABETH OLSEN; MARILYN Justices Reichek and Nowell participating.
HOLMES TULLOCH; NANCY LEE
HALSTED WOODMANSEE; JUNE C.
HAACK; MARILYN HALSTED; JOSEPH
EDWIN HALSTED; THOMAS ARTHUR
HALSTED; ROBERT BRUCE HALSTED;
MARGARET H. REYNOLDS; MARY P.
HALSTED; JANE DECOSKY; CAROL
CANFIELD CLARKE-TERRILL,
FORMERLY CAROL C. SWEARINGEN,
AS TRUSTEE OF THE ROBERT G.
SWEARINGEN REVOCABLE TRUST
DECEMBER 19, 2001; MARCELLE
BRANNEN; AND ROBERT G. MCLEOD,
ALSO KNOWN AS BOB MCLEOD,
Appellants
No. 05-18-00356-CV V.
RICHARD HOWARD BOWERMAN,
INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE
ESTATE OF ROBERT BOWERMAN,
DECEASED; STEVEN ROBERT
BOWERMAN, INDIVIDUALLY; AND
ESTHER MICHELE DAUGHERTY,
INDIVIDUALLY Appellees
In accordance with this Court’s opinion of this date, we VACATE the judgment of
February 11, 2019. This is now the judgment of the Court.
–11–
The trial court order denying appellants’ motion to reinstate is REVERSED and this cause
is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellants BROOKS-PHS HEIRS, LLC ET AL. recover their costs
of this appeal from appellees RICHARD HOWARD BOWERMAN ET AL.
Judgment entered this 15th day of March, 2019.
–12–