In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00260-CV
___________________________
APRIL POLLEFEYT, Appellant
V.
TEXAS HEALTH RESOURCES D/B/A ARLINGTON MEMORIAL HOSPITAL;
DR. JOSEPH BORRELLI; AND HOLLY DUNN, RN, Appellees
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-299269-18
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
Dissenting Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
April Pollefeyt appeals from an order dismissing her health care liability suit for
want of prosecution. Because Pollefeyt showed that her failure to attend the dismissal
hearing resulted from an accident or mistake, we reverse the trial court’s order.
Procedural Background
On April 24, 2018, Pollefeyt filed a pro se suit against appellants Texas Health
Resources d/b/a Arlington Memorial Hospital; Dr. Joseph Borrelli; and Holly Dunn,
R.N. for negligence, “malice[,] flagrant assault[,] and fraud” arising from Pollefeyt’s
medical treatment at Arlington Memorial Hospital from April 16–21, 2016. With her
petition, Pollefeyt filed a statement of inability to pay costs, which has never been
challenged. The record does not show that any of the appellants have been served
with citation in accordance with Rule 99. Tex. R. Civ. P. 99. 1
On January 7, 2019, the trial judge sent Pollefeyt a letter stating that the case
had been “set for dismissal for want of prosecution on February 22, 2019 at
1
The person requesting service is responsible for ensuring that citation is
properly served and that the return of service is reflected in the record. See Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). Pollefeyt claimed in many of her
pleadings and in her brief that she had served appellants with the petition via certified
mail. But such attempted service is invalid. See Tex. R. Civ. P. 103 (providing that only
clerk of court in which case is pending may effect service by certified mail unless
otherwise ordered by the trial court and that “no person who is a party to or
interested in the outcome of a suit may serve any process in that suit”), 106(a)(2)
(authorizing person allowed to serve process under Rule 103 to effect service via
certified mail, return receipt requested); Ikon Office Sols., Inc. v. Integrity Commc’ns, Ltd.,
No. 13-04-00243-CV, 2006 WL 1644670, at *3 (Tex. App.––Corpus Christi–Edinburg
June 15, 2006, pet. denied) (mem. op.).
2
9:30 a.m. in the 153rd District Court pursuant to Rule 165a of the Texas Rules of Civil
Procedure.” The letter further advised that a motion to retain should be filed no later
than 5:00 p.m. “the day before the dismissal hearing.”
Pollefeyt timely filed a motion to retain the suit on the trial court’s docket. She
asserted that she was entitled to a default judgment because the appellants had been
“properly served and [had] failed to answer.” She offered no other explanation for the
lack of activity in the case other than her entitlement to relief on the merits.
Nevertheless, the trial judge signed an order on February 22, 2019, retaining the case
on the court’s docket.
On March 6, 2019, less than two weeks later, the trial court sent a second
dismissal letter, identical to the first except for the hearing date:
The above referenced cause of action is set for dismissal for want of
prosecution on May 17, 2019 at 9:30 a.m. in the 153rd District Court
pursuant to Rule 165a of the Texas Rules of Civil Procedure.
Motions to retain must be filed no later than 5:00 p.m. on the day
before the dismissal hearing. The Court will consider all motions to
retain at the dismissal hearing.
If a motion to retain is granted[,] a docket control order will be
entered at the dismissal hearing.
Before May 17, 2019, Pollefeyt filed three motions to amend her pleading,
purporting to serve all of these documents on appellants via e-filing. In one of the
motions, filed just before noon the day before the dismissal hearing, she requested
seven days “to perfect and amend [her] pleading and enter the [e]vidence and
3
necessary requirements to pursue [the] claim.” She claimed that her “illness” resulting
from the appellants’ acts and omissions described in the health care liability claim had
“made her unable to participate in trying to obtain the necessary elements needed to
pursue” it.
On the day of the dismissal hearing, which Pollefeyt failed to attend, the trial
judge signed an order dismissing the suit “for want of prosecution.” Although there is
no record of the hearing, the trial court’s docket entry for that date states that
Pollefeyt was a “no show” and had not filed a motion to retain.
Eleven days later, Pollefeyt filed a Motion to Retain Case to the Docket seeking
reinstatement of the case. In that motion, which she electronically signed and attested
to the truth of under penalty of perjury,2 Pollefeyt asserted that she had mistakenly
believed that her motion to amend her pleadings was sufficient to retain the case on
the docket and that she did not realize the trial court had not granted her leave. 3 She
2
See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a); Tex. R. Civ. P. 1, 21(f)(7);
Gillis v. Harris Cty., 554 S.W.3d 188, 192–93 (Tex. App.––Houston [14th Dist.] 2018,
no pet.).
3
Specifically, she stated, “The act resulting in this dismissal was not intentional
or an conscious act or conscious indifference but was an accident or mistake of the
civil rules of procedure and the request for the court to allow me to take leave to
amend the pleading and be granted that request if the request was made 24 hours
prior to the hearing set for the dismissal in which I did not aware that the order was
not signed to grant me that leave.” Although this language is somewhat incoherent,
construing it liberally, as courts must under the circumstances, we construe it as
explaining that Pollefeyt thought filing the request to amend the pleading was the
same thing as filing the motion to retain referenced in the dismissal letter and that she
thought it would be granted as her prior motion had been.
4
also contended that the evidence she was going to attach to her pleadings “was lost
temporarily [because] the lapt[o]p in which the . . . medical documentation was
[located became] locked due to some unknown happening.”
The trial court set the motion for a July 12, 2019 hearing. A note on the setting
order indicates that it was emailed to Pollefeyt.
The day before the reinstatement hearing, Pollefeyt filed an unverified second
motion to retain the case on the docket, in which she clarified that she had mistakenly
thought that the trial court had extended the time for her to file a motion to retain
before dismissing the suit and that the District Clerk had misled her into believing
that service of her petition on the defendants by certified mail was sufficient.
The trial court’s docket sheet4 shows that on July 12, 2019, the trial court held a
hearing but that the trial judge did not sign “any orders.” It also notes that Pollefeyt
had not filed a motion for new trial and that the trial court advised Pollefeyt to hire an
attorney “ASAP”; a parenthetical connected to the attorney note states, “needed to
get case on docket.” Nothing in the record indicates that the trial judge considered
evidence at the hearing, and according to the court reporter, no record of the hearing
was taken.
Three days later, Pollefeyt filed a motion to vacate the trial court’s dismissal
order and another motion to amend her pleadings and reinstate the case. She also filed
4
Pollefeyt’s docketing statement filed with this court shows that there is no
reporter’s record and that Pollefeyt did not request one.
5
a document directed to the trial judge, not this court, stating her intention to “appeal[]
to the honorable court for an order vacating the order of dismissal and reinstating
th[e] case on the docket.” The District Clerk forwarded the document to this court as
a notice of appeal.
Over the next week, Pollefeyt filed in the trial court a second statement of
inability to pay costs, a motion to reinstate the case on the docket, another motion to
retain, and a memorandum of law supporting her motion to retain. By July 31, 2019,
the trial court still had not ruled on the motion to reinstate; thus, it was overruled by
operation of law. See In re R.C.M., Nos. 2-09-080-CV, 2-09-347-CV, 2010 WL
1267759, at *3 (Tex. App.––Fort Worth Apr. 1, 2010, no pet.) (mem. op.) (citing Tex.
R. Civ. P. 165a(3)).
Nevertheless, the trial judge set the motion to reinstate for another hearing on
August 9, 2019. The trial court’s docket entry for that day shows that it held a hearing
on the motion but that the court of appeals “has [the] case,” and the trial court has
“no plenary power.”5 Pollefeyt filed a motion for new trial on August 14, 2019; an
amended notice of appeal addressed to this court on August 19, 2019; and a motion
for judgment on her pleadings on August 21, 2019. The trial court did not rule on any
of these motions.
Contrary to this notation, the trial court’s plenary power to reinstate the case
5
ended on August 30, 2019, thirty days after the motion to reinstate was overruled by
operation of law. See R.C.M., 2010 WL 1267759, at *3.
6
Dismissal Without Ruling on Default Judgment Request Was Proper,
But Denial of Reinstatement Motion Was Abuse of Discretion
Pollefeyt challenges the dismissal in five issues, 6 contending that (1) the trial
court failed to issue a scheduling order when it retained the case on February 22,
2019; (2) the trial court failed to grant her motion for a default judgment; (3) she had
mistakenly assumed that the motion to amend she had filed the day before the
dismissal hearing was sufficient to retain the suit on the trial court’s docket; (4) the
trial court failed to adequately notify her of its intent to dismiss the case for failure to
attend the May 17, 2019 dismissal hearing and also erred by not granting her motions
to retain and reinstate her case; and (5) the doctrine of res ipsa loquitur should apply
to the underlying merits of her suit. We address only her dispositive issues.
Pollefeyt not entitled to default judgment
In her second issue, Pollefeyt contends that the trial court should have granted
her pending motion for a default judgment against the appellants rather than dismiss
the case. Rule 239 provides that a plaintiff is entitled to a default judgment if “the
return of service [has] been on file with the clerk for the length of time required by
Rule 107.” Tex. R. Civ. P. 239; see also Tex. R. Civ. P. 124 (“In no case shall judgment
be rendered against any defendant unless upon service, or acceptance or waiver of
process, or upon an appearance by the defendant, as prescribed in these rules, except
where otherwise expressly provided by law or these rules.”). Because the record does
She numbers her issues differently in different parts of her brief. We follow
6
the numbering she uses in her argument.
7
not show proper service on any appellant, the trial court did not abuse its discretion
by not granting Pollefeyt’s request for a default judgment. See Gibson v. Tex. Dep’t of
Criminal Justice, No. 11-17-00196-CV, 2019 WL 3333348, at *2 (Tex. App.––Eastland
July 25, 2019, no pet.) (mem. op.). We overrule her second issue.
Dismissal proper but denial of reinstatement was abuse of discretion
In her third issue, Pollefeyt contends that the trial court erred by dismissing her
case after she had filed a motion seeking seven additional days to amend her
pleadings, mistakenly believing either that the motion sufficed as a motion to retain or
that the trial court would grant the motion. This was also the argument in her timely
postdismissal reinstatement motion, 7 the denial of which she challenges in the
remainder of her fourth issue, contending in part that the trial court deprived her of
due process.
A party whose case is dismissed for want of prosecution may appeal both the
dismissal and the denial of the reinstatement motion. See Sellers v. Foster, 199 S.W.3d
385, 390 (Tex. App.––Fort Worth 2006, no pet.). We review both the dismissal and
the refusal to reinstate for an abuse of discretion. Id. In reviewing the refusal to
reinstate, we must first look to the basis for dismissal. Id.
A trial court’s authority to dismiss a suit for want of prosecution arises from
two sources: Texas Rule of Civil Procedure 165a and the trial court’s inherent
Although Pollefeyt titled this motion, “Motion to Retain Case to the Docket,”
7
her requested relief was to reinstate the case. See Tex. R. Civ. P. 71 (requiring court to
consider substance of motion rather than title).
8
authority to control its own docket. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck
& Equip., 994 S.W.2d 628, 630 (Tex. 1999). By specifically referencing only Rule 165a
in its dismissal letter, the trial court indicated its intent to dismiss under either
Rule 165a(1) or (2). See Tex. R. Civ. P. 165a(1), (2); Johnson-Snodgrass v. KTAO, Inc., 75
S.W.3d 84, 88–90 (Tex. App.––Fort Worth 2002, pet. dism’d); Lopez v. Harding, 68
S.W.3d 78, 79–80 (Tex. App.––Dallas 2001, no pet.); see also Patterson v. Herb Easley
Motors, Inc., No. 2-04-351-CV, 2005 WL 2044671, at *1, *3 (Tex. App.––Fort Worth
Aug. 25, 2005, no pet.) (mem. op.); see also Villarreal, 994 S.W.2d at 630–31.
A trial court may dismiss a suit under Rule 165a if (1) a party seeking
affirmative relief fails to appear for any hearing or trial of which the party had notice
or (2) the case is not disposed of within the time standards promulgated by the Texas
Supreme Court under its administrative rules. Tex. R. Civ. P. 165a(1), (2). Here, the
trial court could not have properly dismissed under Rule 165a(2) because the Supreme
Court’s administrative time standards run from an “appearance date,” Tex. R. Jud.
Admin. 6.1(a), and no appellant has yet appeared or is legally obligated to appear, see
Tex. R. Civ. P. 99(b)–(c), 120, 121–22. See Maida v. Fire Ins. Exch., 990 S.W.2d 836,
841–42 (Tex. App.––Fort Worth 1999, no pet.). We will thus review whether the trial court
correctly determined that its dismissal for failure to appear under Rule 165a(1) was proper.8
When the order does not specify a particular reason for the dismissal, we will
8
affirm only if a proper ground supports the dismissal. See Fox v. Wardy, 225 S.W.3d
198, 200 (Tex. App.––El Paso 2005, pet. denied).
9
Pollefeyt does not dispute that she failed to attend the May 17 hearing at which
the trial court dismissed her case, but she does contend that she did not receive
adequate notice of the trial court’s intent to dismiss if she failed to attend that hearing.
We disagree. Because the trial court’s notice specifically referenced Rule 165a, it
adequately informed Pollefeyt of the possibility of dismissal for her failure to appear.
Thus, the initial dismissal was proper under Rule 165a(1). See Polinard v. Medina,
No. 13-11-00403-CV, 2012 WL 2929617, at *4–5 (Tex. App.––Corpus Christi–
Edinburg July 19, 2012, pet. denied) (mem. op.). We overrule Pollefeyt’s third issue.
However, even after properly dismissing a case for want of prosecution for
failure to appear, the trial 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); Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). This
standard is essentially the same as that for setting aside a default judgment. See Smith,
913 S.W.2d at 468 (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.
[Comm’n Op.] 1939)). Under this standard, conscious indifference must be more than
mere negligence; even a deliberate failure to appear is not intentional or due to
conscious indifference unless it is without adequate justification. Id. Proof of accident,
mistake, or “other reasonable explanation” negates intent or conscious indifference
10
under Rule 165a. Id. Some excuse––not necessarily a good one––will suffice. Milestone
Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012).
When a verified motion to reinstate reasonably explains the failure to appear at
a dismissal hearing and the record contains no controverting evidence that the failure
was intentional or the result of conscious indifference, the trial court abuses its
discretion by denying the motion. See S. Pioneer Prop. & Cas. Ins. v. Wilson, No. 01-17-
00444-CV, 2018 WL 3384558, at *3 (Tex. App.—Houston [1st Dist.] July 12, 2018,
no pet.) (mem. op); Dalmex, Ltd. v. Apparel Enters., 455 S.W.3d 241, 244 (Tex. App.––
El Paso 2015, no pet.) (citing a Craddock new-trial case, Strackbein v. Prewitt, 671 S.W.2d
37, 38–39 (Tex. 1984), holding that trial and intermediate appellate courts were
required to accept uncontroverted affidavit evidence of accident or mistake as true,
even in absence of reporter’s record of new-trial hearing). 9 Thus, if the explanation in
9
In the absence of a clear indication in the record that the reinstatement hearing
was evidentiary, we presume that the trial court allowed the motion to be overruled by
operation of law based on the facts stated in the motion. See Anambra State Cmty. in
Hous., Inc. (ANASCO) v. Ulasi, No. 14-16-01001-CV, 2018 WL 1611644, at *4 (Tex.
App.––Houston [14th Dist.] Apr. 3, 2018, no pet.) (mem. op.) (citing Vernco Constr.,
Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015)); Ortiz v. Columbus Ins. Agency, No. 04-
07-00855-CV, 2008 WL 2923775, at *3 (Tex. App.––San Antonio July 30, 2008, no
pet.) (mem. op.) (citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782
(Tex. 2005)); Maida, 990 S.W.2d at 838 n.1 (“[A] motion to reinstate is similar to a
motion for new trial, and thus, necessary only to develop facts that otherwise would
not appear in the record.”); cf. Crown Asset Mgmt., LLC v. Burnett, No. 05-07-01186-
CV, 2008 WL 3197098, at *2 (Tex. App.––Dallas Aug. 8, 2008, no pet.) (mem. op.)
(applying same principle to dismissal hearing, rather than reinstatement hearing);
Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.––Fort
Worth 2004, no pet.) (holding case properly presented to court of appeals even
without reporter’s record of severance hearing because trial court is not required to
11
the verified motion is adequate to show mistake or accident, the movant need not
present evidence supporting it at the oral reinstatement hearing.10 Brooks-PHS Heirs,
LLC v. Bowerman, No. 05-18-00356-CV, 2019 WL 1219323, at *4 (Tex. App.—Dallas
Mar. 15, 2019, pet. denied) (op. on reh’g) (citing Dir., State Emps. Workers’ Comp. Div. v.
Evans, 889 S.W.2d 266, 268 (Tex. 1994)).
Pollefeyt contended in her motion to reinstate that she had mistakenly believed
that her motion to amend her pleadings was sufficient to retain the case on the docket
and that she did not realize the trial court had not granted it. This is a sufficient
excuse to show that her failure to attend the hearing was not intentional or due to
conscious indifference. See, e.g., S. Pioneer, 2018 WL 3384558, at *2–3; Microcheck Sys.,
hold an evidentiary hearing before severing a case); Retzlaff v. Retzlaff, No. 03-01-
00539-CR, 2002 WL 1804946, at *1 (Tex. App.––Austin Aug. 8, 2002, no pet.) (mem.
op.) (holding that court reporter is not required to record nonevidentiary hearing). But
cf. Wells Fargo Bank, N.A. v. Edwards, No. 04-11-00527-CV, 2012 WL 2021803, at *5
(Tex. App.––San Antonio June 6, 2012, no pet.) (mem. op.) (citing and relying on
cases with similar facts in which intermediate courts upheld dismissals for want of
prosecution under trial court’s inherent authority when appellants did not bring forward
record of dismissal hearing or reinstatement hearing); Childress v. Casa Del Mar Ass’n,
No. 01-10-00913-CV, 2011 WL 5617939, at *5–7 (Tex. App.––Houston [1st Dist.]
Nov. 17, 2011, pet. denied) (mem. op.) (same).
10
From the trial court’s docket entry, it appears the trial court held an oral
hearing. Pollefeyt does not complain that this oral hearing was nonevidentiary. Cf.
Tex. R. Civ. P. 165a(3) (requiring trial court to hold oral hearing on verified motion to
reinstate); Mortell v. Pruett, No. 02-19-00123-CV, 2019 WL 5608236, at *1 & n.1 (Tex.
App.––Fort Worth Oct. 31, 2019, no pet.) (mem. op.) (holding trial court erred by
denying motion to reinstate without first holding oral hearing); In re Marriage of Gilliam,
No. 12-12-00037-CV, 2012 WL 3991875, at *2 (Tex. App.––Tyler Sept. 12, 2012, no
pet.) (mem. op.) (same); Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.––Fort Worth
2004, no pet.) (same).
12
Inc. v. Smith, No. 01-10-00169-CV, 2011 WL 1632180, at *4–5 (Tex. App.––Houston
[1st Dist.] Apr. 28, 2011, no pet.) (mem. op.); Clark v. Yarbrough, 900 S.W.2d 406, 408–
10 (Tex. App.––Texarkana 1995, writ denied). But see Brown v. Bush, No. 2-03-272-CV,
2004 WL 816319, at *1–2 (Tex. App.––Fort Worth 2004, pet. denied) (per curiam)
(mem. op.) (affirming dismissal for want of prosecution under trial court’s inherent
authority when appellant had failed to serve defendants for the nine months the case
had been on file and the trial court’s dismissal notice specifically warned that trial
court was considering dismissal for failure to effect service). Accordingly, the trial
court abused its discretion by denying Pollefeyt’s reinstatement motion.
We sustain Pollefeyt’s fourth issue. Having done so, we need not address her
first and fifth issues. See Tex. R. App. P. 47.1.
Conclusion
Having concluded that the trial court abused its discretion by not reinstating
the case and allowing Pollefeyt’s motion to reinstate to be overruled by operation of
law, we reverse the trial court’s dismissal order and remand this case for further
proceedings consistent with this opinion.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: April 16, 2020
13