Beverly Rasco v. Ducars Investment, LLC.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00375-CV
___________________________

BEVERLY RASCO, Appellant

V.

DUCARS INVESTMENT, LLC, Appellee

On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 20-0123-431

Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
 MEMORANDUM OPINION

I. INTRODUCTION

This is an appeal from an order of dismissal for want of prosecution. The trial

court dismissed Appellant Beverly Rasco’s case for failing to comply with certain

instructions contained in its standard notice of dismissal setting and for failing to

appear at the dismissal hearing. Rasco timely filed a motion to reinstate, which the

trial court denied after a hearing. On appeal, Rasco brings a single issue, arguing that

the trial court abused its discretion in denying her motion to reinstate. We will reverse

and remand.

II. BACKGROUND

In 2018, Rasco purchased a vehicle from Appellee Ducars Investment, LLC.

In January 2020, Rasco sued Ducars for fraud and violations of the Texas Deceptive

Trade Practices Act, alleging Ducars had made false representations concerning the

condition of the vehicle. Ducars filed an answer to Rasco’s petition on March 31,

2020.

In June 2021, the trial court issued a notice of dismissal setting1 warning all

parties that the case would be dismissed if certain requirements were not met.2 One

Dismissals pursuant to this notice have been the subject of other appeals to
1

this court. See generally Mondragon v. Collins, No. 02-21-00400-CV, 2022 WL 3273599
(Tex. App.—Fort Worth Aug. 11, 2022, no pet. h.) (mem. op.); Brown v. Sanders,
No. 02-21-00212-CV, 2022 WL 2071782 (Tex. App.—Fort Worth June 9, 2022, no
pet.) (mem. op.); In re Stanton, No. 02-21-00224-CV, 2022 WL 714584 (Tex. App.—
Fort Worth Mar. 10, 2022, no pet.) (mem. op.).

2
of these requirements was to submit an agreed scheduling order by August 20, 2021.

In an effort to comply with the trial court’s deadline for the submission of the agreed

scheduling order, Rasco’s counsel began taking necessary first steps3 in early July—

well in advance of the trial court’s deadline. Rasco’s counsel submitted an agreed

2
The notice of dismissal setting read in pertinent part as follows:

The above-referenced cause has been set on the Court’s docket for
dismissal on August 20, 2021, at 3:00 PM, at which time this cause will
be DISMISSED UNLESS:

1) Any party seeking affirmative relief has effectuated service of
process upon the opposing party(s).
AND
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) at denise.spalding@dentoncounty.gov;
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 must 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.
3
These preliminary steps included contacting the court coordinator regarding
available trial dates; conferring with opposing counsel regarding a trial date, the choice
of mediator, and a mediation date; and contacting the agreed upon mediator to
schedule a date for mediation.

3
scheduling order by the deadline, but it did not comply with all of the trial court’s

requirements.4 Shortly before the scheduled dismissal setting—and after the deadline

set by the trial court—Rasco’s counsel submitted an amended scheduling order that

she thought corrected all of the defects of the original.5 Believing that she had

complied with the trial court’s requirements,6 Rasco’s counsel did not appear at the

dismissal hearing. However, the notice of dismissal setting required all parties to

appear at the dismissal hearing to present a proposed scheduling order unless they

had, among other things, previously submitted a compliant agreed scheduling order

by the court’s stated deadline, which Rasco had not done. Because neither Rasco nor

her counsel appeared at the dismissal hearing with a proposed scheduling order, the

trial court dismissed the case for want of prosecution.

4
This proposed scheduling order filed in the clerk’s record bears the notation,
“REJECT: This has not been set with the Court, and clients have not signed. ds.”
Denise Spalding is the trial court coordinator.
5
This amended scheduling order filed in the clerk’s record bears the following
notation: “REJECT: The [attorneys] still have not set the trial with the court, the
Order is not readable, AND the deadline to efile the scheduling order was 8/13/21.
The [attorney] must appear on Friday with a signed, readable Scheduling Order.” At
the hearing on the motion to reinstate, the trial court stated, contrary to the notation,
that he “was actually able to read it.” In addition, both Rasco’s counsel and the trial
court appeared to believe that a trial date had been requested in accordance with the
dismissal notice.
6
Rasco’s counsel was unaware of the court coordinator’s notations, which
appear to have been made electronically, until after the dismissal hearing. As she
stated in the affidavit attached to her motion to reinstate, “I noticed the e-filing notice
of ‘Accepted’ and did not open the document; therefore, I did not see the writing on
the submitted Amended Scheduling Order.”

4
 Rasco timely filed a verified motion to reinstate the case. In her three-page

affidavit attached to the motion, Rasco’s counsel set out facts detailing why she did

not appear at the hearing, explaining that she did not appear “because [she] believed

all requirements with regard to the [s]cheduling [o]rder had been met and that no

hearing would, therefore, be held.” At the hearing on the motion to reinstate, Rasco’s

counsel outlined the progress made in the case—including the completion of

discovery, the disclosure of Rasco’s expert witness, and the scheduling of both

mediation and trial dates—and described her good faith efforts to comply with the

court’s notice. She reiterated that her failure to attend the dismissal hearing was due

to her misunderstanding of the notice and her mistaken belief that the amended

scheduling order was sufficiently compliant to excuse the need for a hearing. Rasco’s

counsel also offered to pay the attorney’s fees Ducars incurred due to Rasco’s motion

to reinstate. Nevertheless, the trial court denied the motion. This appeal followed.

III. DISCUSSION

In her sole issue on appeal, Rasco argues that the trial court abused its

discretion in denying her verified motion to reinstate.7 Ducars, taking the position

that the appellate record speaks for itself, declined to file a brief.

7
Rasco does not dispute that she failed to attend the dismissal hearing after
receiving proper notice and therefore does not contend that the trial court erred in its
initial dismissal of the case. See, e.g., Pollefeyt v. Tex. Health Res., No. 02-19-00260-CV,
2020 WL 1888870, at *4 (Tex. App.—Fort Worth Apr. 16, 2020, no pet.) (mem. op.)
(holding initial dismissal was proper under Rule 165a(1) because appellant received
adequate notice and did not dispute her failure to attend the hearing). Rather, she

5
A. 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, 2020 WL 1888870, at *4 (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).

B. 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 based on either

the “failure of any party seeking affirmative relief to appear for any hearing or trial of

which the party had notice” or the case’s failure to be “disposed of within time

standards promulgated by the Supreme Court.” Tex. R. Civ. P. 165a(1), (2). The

argues only that the trial court abused its discretion by not granting her motion to
reinstate following dismissal.

6
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—Rule 165a(1), Rule 165a(2), and inherent authority—provides an

independent basis on which a trial court may dismiss a case for want of prosecution.

Mondragon, 2022 WL 3273599, at *3; Brown, 2022 WL 2071782, at *2; Cummings v.

Billman, 634 S.W.3d 163, 168 (Tex. App.—Fort Worth 2021, no pet.) (mem. op.).

C. 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. Brown, 2022 WL

2071782, at *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 examine both the trial court’s dismissal notice and the order dismissing the

case. Brown, 2022 WL 2071782, at *3.

We have held that the same notice used in this case adequately informs the

parties of the trial court’s intent to dismiss under all three grounds and that when a

dismissal order pursuant to this notice does not expressly state the particular dismissal

ground, a party challenging the denial of reinstatement must “address and negate all

three possible independent dismissal grounds in [its] reinstatement motion and on

appeal.” Mondragon, 2022 WL 3273599, at *3 (quoting Brown, 2022 WL 2071782, at

*3).

7
 Turning to the order itself, we note that the trial court did not specify upon

which ground it relied in dismissing Rasco’s case. Rasco’s failure to appear at the

dismissal setting with a completed scheduling order 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. Because the

dismissal order did not specify the grounds for dismissal, Rasco was required to

address all three possible independent dismissal grounds in her reinstatement motion

and on appeal. See Brown, 2022 WL 2071782, at *3; Henderson v. Blalock, 465 S.W.3d

318, 323 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Self v. King, No. 05-11-

01296-CV, 2013 WL 3353327, at *3 (Tex. App.—Dallas June 28, 2013, pet. denied)

(mem. op.); 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 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.”); 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

8
dismiss for ‘want of prosecution,’ we must affirm the trial court’s judgment on any

theory supported by the record.”).

D. Analysis

As noted above, because the dismissal order did not specify the grounds on

which the trial court dismissed the case, to determine whether the trial court abused

its discretion in denying Rasco’s motion to reinstate, we must consider all three

independent grounds for dismissal and whether Rasco has satisfactorily addressed

each of them. See Brown, 2022 WL 2071782, at *3. We will consider each of these

independent grounds in turn.

First, we must consider whether Rasco has adequately addressed her failure to

appear at the dismissal setting, which was grounds for dismissal under Rule 165a(1).

Rule 165a(3), which governs motions for reinstatement after dismissal for failure to

appear under Rule 165a(1), provides that 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 under Rule 165a(3) “is 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 based on long-standing

precedent,

9
 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 (citing Smith, 913 S.W.2d at 468; Milestone Operating,

Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012)). Thus, proof of a

mistake—even an unreasonable one—is sufficient to negate intent or conscious

indifference. See Clark v. Yarbrough, 900 S.W.2d 406, 410 (Tex. App.—Texarkana

1995, writ denied) (reversing dismissal under Rule 165a despite the fact that plaintiff’s

actions “clearly were negligent and unreasonable” because a mistake does not

constitute conscious indifference); see also Milestone Operating, Inc., 388 S.W.3d at 310.

If a party proves that its failure was due to a mistake or otherwise negates intent or

conscious indifference, the trial court must reinstate the suit. Renfro v. Davis, No. 01-

21-00540-CV, 2022 WL 3031605, at *3 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022,

no pet. h.) (mem. op.).

Numerous courts have held that an attorney’s failure to appear is not

intentional or the result of conscious indifference when it is due to confusion about

the trial court’s procedures or a misunderstanding regarding the status of a motion or

other court filing. See Tunchez v. Houk, No. 05-20-00330-CV, 2021 WL 5822839, at *5

(Tex. App.—Dallas Dec. 8, 2021, no pet.) (mem. op.) (holding plaintiff’s attorney’s

mistaken belief that motion to retain was sufficient to reset dismissal hearing “was a

10
sufficient excuse to show that her failure to attend the hearing was not intentional or

due to conscious indifference”); Pollefeyt, 2020 WL 1888870, at *6 (holding that

plaintiff’s contentions 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 constituted “a sufficient excuse to show that her

failure to attend the hearing was not intentional or due to conscious indifference”);

Microcheck Sys., 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.) (holding attorney’s

mistaken belief that she had been replaced as counsel of record—though motion for

substitution had not been filed or granted by the court—was sufficient to show failure

to appear was not a result of conscious indifference); Lambert v. Mufarrige, No. 14-95-

01221-CV, 1997 WL 71738, at *2 (Tex. App.—Houston [14th Dist.] Feb. 20, 1997, no

writ) (not designated for publication) (holding that attorney’s confusion regarding the

trial court’s docket following pretrial conference was sufficient to show that his failure

to appear for trial was not a result of conscious indifference); cf. Smith, 913 S.W.2d at

468 (“The Smiths’ attorney reasonably explained his failure to appear for trial. He was

actually in trial in another county and believed, based upon his credible explanation,

that the court would grant a continuance for that reason.”).

Here, similar to the facts in the cases above, Rasco’s counsel’s failure to appear

at the dismissal setting was due to both her misunderstanding concerning the trial

court’s procedural requirements and her mistaken belief that the amended scheduling

11
order had been accepted by the trial court.8 Accordingly, it was neither intentional

nor the result of conscious indifference. See Tunchez, 2021 WL 5822839, at *5; Pollefeyt,

8
Rasco’s counsel’s subjective belief—albeit mistaken—that the amended
scheduling order’s compliance obviated her attendance at the dismissal hearing is
uncontroverted. See Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex. 1984) (holding
that when factual allegations in new-trial movant’s affidavits are uncontroverted, “a
conscious indifference question must be determined in the same manner as a claim of
meritorious defense”; therefore, “[i]t is sufficient that the movant’s motion and
affidavit set forth facts which, if true, would negate intentional or consciously
indifferent conduct”). The closest any evidence in the record comes to controverting
this subjective belief is both sides’ acknowledgement at the reinstatement hearing that
at 11:04 a.m. on the day of the dismissal hearing, Ducars’s counsel’s paralegal sent
Rasco’s counsel an email stating, “I looked online at the DWOP setting for today.
Still showing up. I’m going to confirm if you are going to appear or not. I see there
is a note from the Judge regarding the scheduling order not being signed.” Rasco
responded, “I’m sorry. I got so busy I did not get around to checking. We did get the
client’s signature, which was [the] original objection, so I hope that is sufficient. I did
not make it to court this morning. We will just have to wait and see.” However, at
most, this evidence goes only to Rasco’s counsel’s conscientiousness, not her
subjective belief that she did not need to appear at the dismissal setting. Indeed, the
email exchange actually affirms that she subjectively believed that her appearance was
unnecessary. Rasco’s counsel’s email response indicates that she understood the
paralegal’s reference to “the scheduling order not being signed” to mean that the
amended scheduling order had not yet been signed by the judge, which would not be
surprising since it had only recently been submitted. This understanding was
confirmed by Rasco’s counsel’s statements on the record at the reinstatement hearing.
Thus, her email response aligns with her stated belief that the amended scheduling
order was “sufficient” and just needed to be signed by the judge. Moreover, Rasco’s
counsel’s statement that she “did not make it to court this morning” reflects her
mistaken belief that the dismissal hearing had been set for earlier that day. Thus,
believing that the dismissal setting had already passed and that the amended
scheduling order was compliant, Rasco’s counsel did not see the paralegal’s email for
what it actually was—a strong suggestion made out of professional courtesy that she
should attend the later-scheduled dismissal hearing. Rather, believing she had already
missed the dismissal setting, she thought that she had no recourse but to “wait and
see” if the trial court would sign the order. While this email exchange shows Rasco’s
counsel was not as conscientious as she could have been, it does not controvert the
other record evidence of her subjective belief that she did not need to attend the

12
2020 WL 1888870, at *6; Microcheck Sys., Inc., 2011 WL 1632180, at *5; Lambert,

1997 WL 71738, at *2. Both in the affidavit attached to the motion to reinstate and in

her statements to the trial court at the reinstatement hearing, Rasco’s counsel

described in detail how she thought that submitting a compliant scheduling order

when she did—even though untimely—obviated the need to appear at the hearing.

She also chronicled her good-faith efforts to comply with the requirements set forth

in the trial court’s notice, including contacting the court coordinator to obtain a trial

date and filing both an original and an amended scheduling order. While Rasco’s

counsel was not as conscientious as she should have been, she presented ample

evidence to show that her failure to appear was due to a mistake, which was sufficient

to negate intent or conscious indifference under Rule 165a. See Smith, 913 S.W.2d at

468; Microcheck Sys., Inc., 2011 WL 1632180, at *5; see also Clark, 900 S.W.2d at 410

(reversing dismissal under Rule 165a(1) despite plaintiff’s “clearly . . . negligent and

unreasonable” actions because “negligence is not enough” to satisfy the conscious

indifference standard). Because Rasco sufficiently addressed her failure to attend the

dismissal hearing, the trial court was required to reinstate the case unless it had proper

grounds for dismissal under Rule 165a(2) or its inherent authority. See Tex. R. Civ. P.

165a(3).

dismissal hearing. See Smith, 913 S.W.2d at 468 (holding that though lawyer was not as
conscientious as he could have been, his actions did not amount to conscious
indifference); Microcheck Sys., Inc., 2011 WL 1632180, at *5 (same).

13
 We next consider whether Rule 165a(2) provided a valid basis for the trial

court’s dismissal of this case.9 Rule 165a(2) authorizes a trial court to place a case on

the dismissal docket when it is not disposed of in accordance with the time standards

prescribed by the supreme court. Tex. R. Civ. P. 165a(2); Maida, 990 S.W.2d at 841.

Under those time standards, district courts are to ensure that civil jury cases10 are tried

or otherwise disposed of within 18 months from the appearance date. Tex. R. Jud.

Admin. 6.1(a)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app.

In the present case, the appearance date was March 31, 2020, the day Ducars

filed its original answer. See Maida, 990 S.W.2d at 842. The trial court dismissed the

case on August 20, 2021. Thus, Rasco’s case was dismissed less than 17 months from

9
While Rasco did not cite Rule 165a(2) specifically in her reinstatement motion
and appellate brief, she did argue in her motion that there was a reasonable
explanation for her failure to prosecute the case, and in her brief, she detailed the
concrete steps she had taken in prosecuting the case. See In re Conner, 458 S.W.3d 532,
535 (Tex. 2015) (orig. proceeding) (holding that whether reasonable explanation for
delay exists is a consideration in a Rule 165a(2) analysis); see also St. John Missionary
Baptist Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020) (per curiam) (“We have often
held that a party sufficiently preserves an issue for review by arguing the issue’s
substance, even if the party does not call the issue by name.”); First United Pentecostal
Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017) (urging appellate courts
to construe briefing “reasonably, yet liberally”).
10
While the appellate record does not reflect that either party had made a
formal written demand for a jury trial in accordance with Tex. R. Civ. P. 216(a), both
the original and amended agreed scheduling orders submitted to the trial court
reflected the parties’ selection of a jury trial, not a bench trial. Moreover, the trial
court’s statements on the record at the hearing on the motion to reinstate reflect its
understanding that the 18-month time standard for jury cases applied. We therefore
presume that this is a “civil jury case” for purposes of Tex. R. Jud. Admin. 6.1(a)(1).

14
the appearance date. Accordingly, Rule 165a(2) does not provide a valid basis for

dismissal, and the trial court could not have denied reinstatement on that basis. See

id.; cf. Mondragon, 2022 WL 3273599, at *3 n.6 (noting that—although not briefed—the

record showed that “appellants had not failed to comply with the Texas Supreme

Court’s time standards for disposition of cases . . . because the suit had not yet been

pending for twelve months after appellees’ appearance dates”).

Finally, we consider the trial court’s inherent authority to dismiss a case that

has not been diligently prosecuted. See Villarreal, 994 S.W.2d at 630; Sellers,

199 S.W.3d at 390–91. “Factors a trial court may consider in dismissing under its

inherent power include the length of time the case was on file, the extent of activity in

the case, whether a trial setting was requested, and the existence of reasonable excuses

for delay.” Maida, 990 S.W.2d at 842 (citing King v. Holland, 884 S.W.2d 231, 237 (Tex.

App.—Corpus Christi 1994, writ denied)); see also In re Seidler Oil & Gas Dev., LLC,

No. 12-22-00009-CV, 2022 WL 1038102, at *2 (Tex. App.—Tyler Apr. 6, 2022, orig.

proceeding) (mem. op.) (identifying similar factors).

In her motion to reinstate and the supporting affidavit, at the hearing on the

motion, and in her brief to this court, Rasco addressed many factors relevant to

dismissal under a court’s inherent authority.11 Specifically, Rasco pointed out that the

11
While Rasco did not expressly articulate her challenge to the trial court’s
dismissal of her case under its inherent authority in her briefing before this court, as
noted above, both her motion to reinstate and her appellate brief address many of the
factors relevant to such a challenge. See Maida, 990 S.W.2d at 842 (enumerating

15
parties had conducted discovery; Rasco had disclosed her expert; the parties had

agreed on both a mediator and a mediation date; and a trial setting had been obtained

from the court and agreed upon by the parties. According to Rasco, the case is ready

for mediation and, if necessary, trial. At the hearing on the motion to reinstate,

Ducars did not dispute Rasco’s statements concerning the extent of activity in the

case or its readiness for mediation and trial. To the contrary, in the interests of

candor to the court, Ducars’s counsel acknowledged the veracity of Rasco’s account

of the case’s status. Given the amount of activity in this case and its readiness for

mediation and trial, to the extent that the trial court dismissed the case under its

inherent authority, it abused its discretion in denying Rasco’s motion to reinstate. See

Maida, 990 S.W.2d at 842 (citing numerous cases for the proposition that where a

party is ready for trial and has secured a trial setting or is otherwise making a diligent

effort to get the case to trial, the case should not be dismissed for lack of

prosecution).

factors). Thus, consistent with the Texas Supreme Court’s urging to construe
pleadings, including briefs, “reasonably, yet liberally,” we consider Rasco’s brief
sufficient to challenge dismissal on these grounds. First United Pentecostal Church of
Beaumont, 514 S.W.3d at 222; see also St. John Missionary Baptist Church, 595 S.W.3d at
214; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000)
(recognizing that Texas employs a “fair notice” standard for pleading and that under
this standard a pleading “is sufficient if it gives fair and adequate notice of the facts
upon which the pleader bases his claim” (quoting Roark v. Allen, 633 S.W.2d 804, 810
(Tex. 1982))).

16
 Having determined that Rasco has sufficiently explained her failure to appear at

the dismissal hearing and that neither Rule 165a(2) nor the trial court’s inherent

authority provided a valid basis for the dismissal of this case, we conclude that the

trial court abused its discretion in denying Rasco’s motion to reinstate. We emphasize

the fact-specific nature of our holding and stress that an evaluation of whether the

dismissal of a case for want of prosecution is appropriate requires an examination of

the case’s unique circumstances.12 See Douglas v. Amer. Title Co., No. 14–08–00676–

CV, 2009 WL 3851674, at *2 (Tex. App.—Houston [14th Dist.] Nov. 19, 2009, no

pet.) (per curiam) (mem. op.) (noting that in reviewing a trial court’s dismissal for

12
This fact-specific nature is highlighted by our previous consideration of
dismissals pursuant to the same notice of dismissal setting involved in this case, all of
which were affirmed. See Mondragon, 2022 WL 3273599, at *3; Brown, 2022 WL
2071782, at *5; Stanton, 2022 WL 714584, at *10. Each of these prior cases is
distinguishable from the present one. In Mondragon, we never reached the merits
because the appellants did not address and negate all possible grounds for dismissal of
the case. See Mondragon, 2022 WL 3273599, at *3. In Brown, we likewise did not reach
the merits but noted in dicta that the appellants had not sufficiently negated conscious
indifference under Rule 165a(1) because appellants’ counsel offered only a conclusory
statement to explain his failure to appear at the dismissal hearing. See Brown, 2022 WL
2071782, at *4. This is in sharp contrast to the detailed, thorough explanation
provided by Rasco’s counsel in this case. Finally, the appellant in Stanton—which
involved an inmate’s petition to take the depositions of both the assistant district
attorney who prosecuted him and the trial attorney who defended him in a prior
criminal matter to investigate potential claims under Texas Rule of Civil Procedure
202—wholly failed to comply with the requirements set forth in the notice and did
not attend the dismissal hearing because the trial court, in its sound discretion,
implicitly denied his request for a bench warrant or to appear by alternate means. See
Stanton, 2022 WL 714584, at *4–7. This is considerably different from the facts of this
case in which Rasco attempted in good faith to comply with the trial court’s
requirements and explained that her failure to attend the dismissal hearing was due to
a mistake.

17
want of prosecution, an appellate court must “look at the entire history of the case

and perform a fact intensive, case-by-case determination” (citing Olin Corp. v. Coastal

Water Auth., 849 S.W.2d 852, 856–58 (Tex. App.—Houston [1st Dist.] 1993, no

writ))); see also Daley v. Powerscreen Tex. Holdings, Inc., No. 14-00-00435-CV, 2001 WL

1195616, at *2 (Tex. App.—Houston [14th Dist.] Oct. 11, 2001, pet. denied) (not

designated for publication) (noting that “[a] decision to dismiss for want of

prosecution is fact-specific and should be based on an evaluation of all the

circumstances of a case” (citing State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984))).

Given the facts and circumstances of this case and bearing in mind “the policy that

‘an adjudication on the merits is preferred in Texas,’” we sustain Rasco’s sole issue.

Kramer v. Kastleman, 508 S.W.3d 211, 227 (Tex. 2017) (quoting Sutherland v. Spencer,

376 S.W.3d 752, 756 (Tex. 2012)).

IV. CONCLUSION

Having sustained Rasco’s sole issue, we reverse the trial court’s judgment

dismissing the case for want of prosecution and remand this case to the trial court.

/s/ Dana Womack

Dana Womack
Justice

Delivered: September 22, 2022

18