In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00212-CV
___________________________
GLENDA BROWN AND WILLIAM JONES, Appellants
V.
RUTH SANDERS, Appellee
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 17-3609-158
Before Kerr, Birdwell, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
The trial court dismissed appellants Glenda Brown’s and William Jones’s claims
against appellee Ruth Sanders for want of prosecution. In a single issue, Brown and
Jones (collectively, Appellants) complain that the trial court abused its discretion by
denying their motion to reinstate. We will affirm.
I. Background
In October 2016, Appellants sued Sanders in Dallas County for injuries that
they allegedly sustained in an October 2014 motor-vehicle collision with her.1
A Dallas County District Court granted Sanders’s motion to transfer venue in April
2017, and the case was transferred to Denton County.
Nearly four years later, in February 2021, the trial court sent the parties a
“Notice of Dismissal Setting” notifying them that the trial court had set the case on
its “docket for dismissal on April 23, 2021, at 3:00 PM,” pursuant to the Texas
Supreme Court’s time standards for disposition of cases and the Denton County rules
for district courts. The notice warned that there would be no continuances of the
dismissal setting and that the trial court would dismiss the case at that time unless:
1) Any party seeking affirmative relief has effectuated service of
process upon the opposing party(s).
AND
1
Appellants requested a jury trial. See Tex. R. Civ. P. 216.
2
2) The attorneys and/or pro se parties present an agreed
“Scheduling Order and Discovery Control Plan ” for entry by the
Court, and :
a. they must contact the Court Administrator no later than 10 days
prior to the dismissal setting to request a trial date and a pre-trial
date (if applicable);
b. the Order must contain completed deadlines and discovery
limitations as indicated;
c. the Order must include the client’s signature if represented by
counsel; and
d. the Order must be submitted no later than 7 days prior to the
dismissal setting.
OR
3) The attorneys and/or pro se parties appear at the dismissal setting
and present a proposed “Scheduling Order and Discovery
Control Plan ” compliant with 2a.-c. above. At that time, the Court
will hear any objections of any other attorney and/or pro se party to
the proposed Order.
No scheduling order and discovery control plan was prepared and filed, and
none of the parties or their attorneys appeared at the April 23, 2021 dismissal setting.
The trial court thus signed an order dismissing the case for want of prosecution. The
lack of appearances was noted in the order’s recitals, but the order’s decretal language
did not state the specific ground upon which the dismissal was based. The parties did
not request findings of fact and conclusions of law, and the trial court did not file any.
See Tex. R. Civ. P. 296, 297.
Appellants timely filed a verified motion to reinstate, see Tex. R. Civ. P. 165a(3),
asserting that
3
Plaintiffs’ failure to announce was not intentional or the result of
conscious indifference. The failure to announce was the result of mistake
or accident, and Plaintiffs have been diligent in prosecuting this case.
Due to an oversight[,] the DWOP date was not on the master calendar.
Plaintiffs state that there is good cause to maintain this case on the
docket[,] and there is no injury to the Defendant.
Appellants’ attorney attached no evidence to corroborate these statements, and he
provided no details to further explain why he had failed to appear or failed to present
a proposed scheduling order and discovery-control plan. More than 30 days after the
trial court’s dismissal order was signed, Appellants filed a verified supplemental
reinstatement motion that outlined the case’s procedural history, cited to attached
email correspondence between the parties’ attorneys and the trial court regarding jury-
trial settings, and reiterated that Appellants’ failure to appear was the result of mistake
or accident because “it was an oversight that the DWOP date was not placed on the
office master calendar.”
On June 14, 2021, the trial court considered Appellants’ motion to reinstate
without a hearing2 and denied the motion. The trial court stated in its order that it had
“considered the Motion [to Reinstate], the [p]rocedural [h]istory, the evidence, and
arguments of counsel” in denying the motion. But the trial court did not state the
2
A trial court is required to hold an oral hearing on a verified motion to
reinstate. See Tex. R. Civ. P. 165a(3); 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.); Smith
v. McKee, 145 S.W.3d 299, 305 (Tex. App.—Fort Worth 2004, no pet.) (“It is not
within the discretion of the trial court to fail to hold an oral hearing on a timely-filed,
properly verified motion to reinstate [under Rule 165a].”). But Appellants do not
complain about the trial court’s failing to hold a hearing.
4
basis for its denial or file any findings of fact or conclusions of law. See Tex. R. Civ. P.
296, 297. This appeal followed.
II. Standard of Review
We review a trial court’s refusal to reinstate a case dismissed for want of
prosecution for an abuse of discretion. Pollefeyt v. Tex. Health Res., No. 02-19-00260-
CV, 2020 WL 1888870, *4 (Tex. App.—Fort Worth Apr. 16, 2020, no pet.) (mem.
op.) (citing Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.—Fort Worth 2006, no
pet.)). A trial court abuses its discretion if it acts without reference to any guiding rules
or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d
609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
appellate court cannot conclude that a trial court abused its discretion merely because
the appellate court would have ruled differently in the same circumstances. E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
III. Trial Court’s Authority to Dismiss for Want of Prosecution
A trial court derives its authority to dismiss a suit for want of prosecution from
two independent sources: (1) Texas Rule of Civil Procedure 165a and (2) a trial court’s
inherent power to maintain and control its own docket. See Tex. R. Civ. P. 165a;
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Sellers, 199
S.W.3d at 390. Under Rule 165a, a trial court may dismiss a case on either the “failure
of any party seeking affirmative relief to appear for any hearing or trial of which the
party had notice,” or when the case is “not disposed of within time standards
5
promulgated by the Supreme Court.” Tex. R. Civ. P. 165a(1), (2). The common law
vests a trial court with the inherent power to dismiss independently of the procedural
rules when a plaintiff fails to prosecute his case with due diligence. Villarreal, 994
S.W.2d at 630; Sellers, 199 S.W.3d at 390–91. Each of these three dismissal grounds
provides an independent basis on which a trial court may dismiss a case for want of
prosecution. Cummings v. Billman, 634 S.W.3d 163, 168 (Tex. App.—Fort Worth 2021,
no pet.) (mem. op.).
IV. The Trial Court’s Dismissal Notice and Order
When reviewing a trial court’s refusal to reinstate a case dismissed for want of
prosecution, we look first to the trial court’s basis for dismissal.3 Sellers, 199 S.W.3d at
390; Maida v. Fire Ins. Exch., 990 S.W.2d 836, 839 (Tex. App.—Fort Worth 1999, no
pet.). To determine the possible dismissal grounds, we must look to the trial court’s
dismissal notice. Here, the notice stated that the dismissal setting was “BEING
MADE PURSUANT TO TIME STANDARDS FOR DISPOSITION OF CASES
BY THE TEXAS SUPREME COURT AND THE DENTON COUNTY COURT
RULES FOR DISTRICT COURTS.” See Tex. R. Civ. P. 165a(2). The notice warned
that unless the parties (1) prepared an agreed scheduling order and discovery control
plan and filed it with the trial court or (2) appeared at the dismissal setting and
Appellants do not challenge the trial court’s dismissal for want of prosecution;
3
they challenge only the trial court’s failure to reinstate the case.
6
presented a proposed scheduling order and discovery control plan, the trial court
would dismiss the case. See Tex. R. Civ. P. 165a(1).
This notice sufficed to notify the parties that the trial court intended to dismiss
the case on all three independent grounds. The trial court’s setting the case on the
dismissal docket pursuant to the Texas Supreme Court’s and Denton County’s case-
disposition time standards4 notified the parties that the case was subject to dismissal
under Rule 165a(2) and under the trial court’s inherent authority. See Tex. R. Civ. P.
165a(2); Cummings, 634 S.W.3d at 169 (“Here, the trial court set the case on its
dismissal docket because Appellants’ case had not been disposed of within the time
standards set out in Rule 6.1(a)(1) of the Rules of Judicial Administration and was
thus subject to dismissal under Rule 165a(2).”); McKee, 145 S.W.3d at 303–05
(concluding that notice setting case for dismissal “on the court’s motion in response
to time standards for disposition of cases by the Denton County Court Rules for
4
The Rules of Judicial Administration—which are promulgated by the Texas
Supreme Court—provide that nonfamily-law civil-jury cases should be brought to trial
or final disposition within 18 months from the appearance date. See Tex. R. Jud.
Admin. 6.1(a)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app.
Denton County’s local rules—Uniform Rules of Court for the District and
Statutory County Courts of Denton County, Texas—provide that a case may be
dismissed for want of prosecution for several reasons: (1) the plaintiff’s failure “to
request a setting or take other appropriate action after the case has been pending for
more than 60 days”; (2) plaintiff’s counsel’s failure “to appear for pretrial, docket call,
other preliminary hearing, or trial”; (3) Plaintiff’s counsel’s failure “to make an
announcement of ‘ready’ when a case is called for trial or hearing of any preliminary
matters”; and (4) “[f]or any other reasons provided for by these Rules, the Texas
Rules of Civil Procedure, or the general law.” Denton (Tex.) Dist. & Cnty. Ct. Loc. R.
2.7.1.
7
District Courts” provided notice of the trial court’s intent to dismiss the case under its
inherent authority). The notice also sufficed to notify the parties that the case would
be dismissed if they did not appear at the April 23, 2021 dismissal setting. See
Cummings, 634 S.W.3d at 169–70 (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
847, 852 (Tex. 2004)).
Turning to the order itself, as noted, the trial court did not specify upon which
ground it relied in dismissing Appellants’ case. See id. at 166 (“Appellants’ failure to
appear at the dismissal hearing was noted in the recitals of the order, but the decretal
language of the order did not state a specific ground upon which the dismissal was
based.”); Self v. King, No. 05-11-01296-CV, 2013 WL 3353327, at *3 (Tex. App.—
Dallas June 28, 2013, pet. denied) (mem. op.) (“In this case, although the trial judge
included a factual recital in the dismissal order that [plaintiff] did not appear at the
dismissal hearing, the order is silent as to the ground or grounds for the dismissal.”).
Because the dismissal order did not specify the grounds for dismissal, Appellants were
required to address and negate all three possible independent dismissal grounds in
their reinstatement motion and on appeal. See, e.g., Henderson v. Blalock, 465 S.W.3d
318, 323 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Self, 2013 WL 3353327, at
*3; Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3–5 (Tex. App.—Houston [14th Dist.]
2006, pet. denied) (op. on reh’g); see also Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422,
424 (Tex. App.—Dallas 2009, no pet.) (“If an independent ground fully supports the
complained-of ruling or judgment, but the appellant assigns no error to that
8
independent ground, we must accept the validity of that unchallenged independent
ground, and thus any error in the grounds challenged on appeal is harmless because
the unchallenged independent ground fully supports the complained-of ruling or
judgment.”); cf. Sellers, 199 S.W.3d at 391 (“Because the record in this case does not
contain formal findings of fact or conclusions of law and the dismissal order does not
specify the reason for dismissal other than to generally dismiss for ‘want of
prosecution,’ we must affirm the trial court’s judgment on any theory supported by
the record.”).
V. Analysis
In their sole issue, Appellants argue that the trial court abused its discretion by
denying their verified motion to reinstate because “the error that led to the dismissal
was due to unintentional mistake or oversight and not conscious indifference.” They
assert that the trial court was required to grant their motion to reinstate because they
reasonably explained why their counsel did not appear at the dismissal hearing: “the
date had not been entered into counsel’s master [c]alendar.” See Tex. R. Civ. P.
165a(3) (“The court shall reinstate the case upon finding after a hearing that the
failure of the party or his attorney 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.”).
We have said that Rule 165a(3)’s conscious-indifference standard applies only
to cases dismissed for failure to appear. See Maida, 990 S.W.2d at 840–41. Here, the
9
trial court’s order did not state the grounds upon which it denied the reinstatement
motion. Appellants do not argue that the trial court abused its discretion by denying
their reinstatement motion to the extent that the motion challenged the trial court’s
dismissal under the other two possible dismissal grounds: under Rule 165(a)(2)
because the case was not disposed of within the supreme court’s time standards, or
under the trial court’s inherent power.5 Because Appellants have failed to challenge all
independent grounds fully supporting the trial court’s ruling denying their
reinstatement motion, they have not shown reversible error. See Self, 2013 WL
3353327, at *3; Oliphant Fin. LLC, 295 S.W.3d at 424.
But even assuming that the trial court dismissed the case solely under Rule
165a(1) due to Appellants’ failure to appear at the dismissal hearing, we cannot
conclude that the trial court abused its discretion by refusing to reinstate the case. A
trial court must grant a properly filed reinstatement motion 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.” Pollefeyt, 2020 WL 1888870, at *5
(quoting Tex. R. Civ. P. 165a(3)). The standard for reinstatement in Rule 165a(3) “is
5
Appellants’ supplemental motion was filed more than 30 days after the trial
court dismissed the case but before the trial court ruled on appellants’ reinstatement
motion. See Tex. R. Civ. P. 165a(3) (requiring a motion to reinstate to be filed within
30 days after the dismissal order is signed). We assume without deciding that this
supplemental motion was properly before the trial court and that the trial court
considered its contents in denying reinstatement.
10
essentially the same as that for setting aside a default judgment.” Smith v. Babcock &
Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). As we have recently explained,
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. Proof
of accident, mistake, or “other reasonable explanation” negates intent or
conscious indifference under Rule 165a. Some excuse—not necessarily a
good one—will suffice.
Pollefeyt, 2020 WL 1888870, at *5 (citations omitted). The party seeking reinstatement
bears the burden of proof to establish grounds for reinstatement. Keough, 204 S.W.3d
at 3–4.
Here, Appellants’ counsel’s only justification for failing to appear was, “Due to
an oversight[,] the DWOP date was not on the master calendar.”6 This conclusory
statement was unsupported by further explanation or evidence elaborating why the
DWOP date was not on the calendar or any other information, such as counsel’s
practices relating to calendaring or scheduling. Unsupported, conclusory justifications
are insufficient to negate intent or conscious indifference under Rule 165a. See
Henderson, 465 S.W.3d at 323; cf. Nichols v. TMJ Co., 742 S.W.2d 828, 831 (Tex. App.—
Dallas 1987, no writ). Appellants’ counsel’s statement, without more, is insufficient to
6
Appellants’ supplemental reinstatement motion reiterated that “counsel did
not have the DWOP date on the master calendar. It was an oversight, an error, a
mistake but clearly unintentional as affirmed by this officer of the Court.”
11
provide an adequate justification.7 See Henderson, 465 S.W.3d at 323 (holding that
justification that attorney “overlooked the trial setting” without any contextual
information or evidentiary explanation was insufficient to negate intent or conscious
indifference under Rule 165a). The trial court thus did not abuse its discretion by
denying Appellants’ motion to reinstate. See id.
Accordingly, we overrule Appellants’ only issue.
VI. Conclusion
Having overruled Appellants’ sole issue, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: June 9, 2022
7
Quoting our Pollefeyt opinion, Appellants point out that “[s]ome excuse—not
necessarily a good one—will suffice,” 2020 WL 1888870, at *5, and cite two cases
from our sister courts—Wolf Creek Estates Homeowners’ Ass’n v. Jones, No. 05-17-00051-
CV, 2018 WL 1417407 (Tex. App.—Dallas Mar. 22, 2018, no pet.) (mem. op.), and
Dalmex, Ltd. v. Apparel Enterprises, Inc., 455 S.W.3d 241 (Tex. App.—El Paso 2015, no
pet.)—in support of their contention that they negated intent or conscious
indifference. In those cases, however, the appellants offered more than a mere
conclusory statement to make the requisite showing under Rule 165a(3).
12