In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00101-CV
________________
ALEX NEAL JONES, Appellant
V.
HIROMI JONES, Appellee
________________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 21-04-04774-CV
________________________________________________________________________
MEMORANDUM OPINION
After the trial court dismissed the child custody claims of the suit Alex Jones
filed seeking to divorce his wife, Hiromi Jones, and to establish custody over their
children based on Hiromi’s Special Appearance and Answer asserting the parties
were involved in another suit involving the same claims in California, the trial court
dismissed the remainder of Alex’s claims which concerned the divorce for want of
prosecution. Alex appeals and he complains the trial court abused its discretion in
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dismissing his petition for want of prosecution. See Tex. R. Civ. P. 165a(3). We
affirm.
I. Background
Alex and Hiromi Jones were married in Japan in 1996. During their marriage,
they had two children and lived in Japan, Illinois, and California. When the parties
separated in 2020, Alex moved to Texas. Hiromi and the children remained in
California.1 In late March of 2021, Hiromi sued for divorce and to establish the
parties’ rights to the custody to their children in California. Soon thereafter, Alex
filed the same claims in the suit he filed in Texas.2
On the date scheduled for a hearing on temporary orders, May 13, 2021,
Hiromi filed a Special Appearance, objecting to the jurisdiction of the court to
adjudicate child custody issues under the Uniform Child Custody Jurisdiction and
Enforcement Act (U.C.C.J.E.A.) and alleging the court lacked subject matter
jurisdiction to adjudicate marital issues in Texas. See Tex. Fam. Code § 152.201. In
her special appearance, Hiromi averred that the proper court to adjudicate the issues
Alex had raised was in the suit she had filed in California, as that suit involved the
parties’ divorce and the issues that involved the respective parties’ rights to the
custody of the children. On that same day the trial court requested that the parties
1
For ease of reference, we use the parties’ first names.
2
Hiromi filed a special appearance shortly after the Texas suit was filed
alleging that Texas courts had no jurisdiction over her person or property.
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file UCCJEA affidavits, by May 14, so the court could consider the special
appearance and confer with the California court. On June 3, both attorneys and Alex
appeared but the trial court did not rule on any motions. On June 9, the court issued
its Docket Control Order, set the trial for October 25, 2021, and established certain
pretrial deadlines that included a deadline requiring the parties to file inventories 45
days before trial and to complete mediation before October 15.
On June 11, the trial court conferred with the judge of the California court,
determined the court in Texas lacked jurisdiction under the UCCJEA as to the child
custody issues, and dismissed those issues for lack of jurisdiction. The trial court
signed an order dismissing Alex’s claims as to the child custody claims on June 15,
2021.
On October 14, the parties filed an agreed motion for continuance,
representing that they had recessed mediation and needed more time “to investigate
the property issues.” That same day the court granted the agreed continuance and
issued a new Docket Control Order, which set the parties for trial on January 31,
2022, with a pretrial setting for January 21.
On January 21, however, neither Alex nor Hiromi attended the pretrial
conference, even though they were specifically required to do so by the trial court’s
Docket Control Order. That said, their attorneys appeared, and the court questioned
Alex’s counsel about the jurisdictional issues, as follows:
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THE COURT: . . . A determination has already been made by this court that
this court does not have child custody jurisdiction. I do not see a date of
separation in the petition, Mr. Parchman.
MR. PARCHMAN: I’ll fix that.
THE COURT: When did these people separate?
MR. PARCHMAN: I believe they separated around February of last year. I
have --
THE COURT: Of 2021.
MR. PARCHMAN: I don’t want to misspeak. I have to look at my file and
verify.
THE COURT: Where did they last live together before they separated?
MR. PARCHMAN: In California.
THE COURT: Did they ever reside together in Texas?
MR. PARCHMAN: No.
THE COURT: How would I have jurisdiction to divide the marital estate?
MR. PARCHMAN: Because he had lived here the requisite time.
THE COURT: Do you want to borrow my book and show me that?
MR. PARCHMAN: Sure.
THE COURT: Got you on hold.
MR. PARCHMAN: Thank you.
(Whereupon a recess was taken.)
After a brief recess, the following exchange occurred:
THE COURT: . . . I think Mr. Parchman was looking for something to show
me in the Family Code.
MR. PARCHMAN: Yes, Judge, 6.305(a)2.
THE COURT: Okay. So you recognize, or you’re acknowledging to me, by
skipping (a)1, that Texas is not the last marital residence of the two parties?
MR. PARCHMAN: That’s correct.
THE COURT: And since it wasn’t, obviously, this suit was not filed before
the second anniversary on the date before the date of the marital residence
ended.
MR. PARCHMAN: That’s correct.
THE COURT: If I’m hearing you correctly, this suit was filed in April of 2021
and in February of 2021, these parties were living together as husband and
wife in the state of California.
MR. PARCHMAN: No. I believe that’s incorrect.
THE COURT: Well, the petition doesn’t say a date of separation. That’s why
I asked.
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MR. PARCHMAN: I understand. I have to amend the petition, but he was
living here for six months.
THE COURT: All right. Has either party filed an inventory?
MR. PARCHMAN: No, Your Honor. We’re --we did file a continuance,
though, this morning.
THE COURT: The joint motion for continuance claimed that this is the first
trial setting which is not true. The case has been continued once before.
MR. PARCHMAN: Okay. Second.
THE COURT: Has anybody filed an inventory?
MR. CAIN: No, Judge.
THE COURT: All right. Case is going to be dismissed for want of prosecution
today. Y’all are free to go.
After the exchange, the trial court dismissed the case for want of prosecution.
The trial court’s order noted that the parties did not appear, that both attorneys
appeared, and that no inventories had been filed, and that final mediation had not
occurred prior to the final pretrial conference on January 21.
Alex filed a motion to reinstate arguing that the failure to file an inventory and
to complete mediation resulted from the need to have account statements that were
in Japanese translated into English. Alex claimed these failures were “not due to
conscious indifference but inadvertent.” Specifically, he represented he didn’t
comply with the deadline to file his inventory because the parties were waiting for
the account statements to be translated; he further noted that because the mediation
was started but not completed, the parties had filed an agreed motion for
continuance.
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II. Standard of Review
We review a trial judge’s dismissal for want of prosecution and a court’s
ruling on a motion to reinstate for an abuse of discretion. See MacGregor v. Rich,
941 S.W.2d 74, 75 (Tex. 1997) (dismissal for want of prosecution); Smith v. Babcock
& Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (denial of motion to
reinstate). “A trial court abuses its discretion when it acts with disregard of guiding
rules or principles or in an arbitrary or unreasonable manner.” In re Kappmeyer, 668
S.W.3d 651, 655 (Tex. 2023).
III. Analysis
A trial court has the authority to dismiss a case for want of prosecution, but it
must “reinstate the case upon a 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.” 3 Tex. R. Civ. P. 165a(1), (3); Villarreal v. San Antonio Truck & Equip.,
994 S.W.2d 628, 630-31 (Tex. 1999) (discussing a trial court’s power to dismiss a
case for want of prosecution).
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No one disputes that the motion to reinstate was timely filed, that it was
verified, or that it failed to set for the grounds on which it was based. See Tex. R.
Civ. P. 165a(3). Cf. Watson v. Clark, No. 14-14-00031-CV, 2015 Tex. App. LEXIS
1707, at **5-6 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.).
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In Smith, our Supreme Court held that even a calculated but erroneous act or
omission will not be considered “intentional or due to conscious indifference within
the meaning of the rule merely because it is deliberate; it must also be without
adequate justification. Proof of such justification -- accident, mistake or other
reasonable explanation -- negates the intent or conscious indifference for which
reinstatement can be denied.” 913 S.W.2d at 468 (emphasis added). In the instant
case, the trial court found Alex’s explanations for failing to comply with the trial
court’s Docket Control Deadlines insufficient given the fact that before dismissing
the case, the trial court had given the parties a continuance.4
The trial court’s Scheduling Order apprised the parties of the court’s
deadlines, specifically, that the parties had to file sworn inventories 45 days before
trial, and to complete mediation 15 days before trial. The trial court’s Scheduling
Order includes a requirement that the parties be present for the pretrial conference,
as it states:
DOCKET CALL-PRETRIAL CONFERENCE. (TIME: 9:00
a.m.). Parties shall be present and prepared to discuss all aspects of trial
with the court on this date. Parties shall comply with the enclosed Trial
Preparation Order –Family.
4
The trial court’s Order of Dismissal notes that Alex and Hiromi failed to
appear at docket call, that no inventories were filed, and states “no mediation[,]”
which we understand as meaning the mediation the parties represented they had
started before obtaining the continuance the trial court gave them in October 2021
was then not completed before the January 2022 pretrial conference deadline.
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NOTICE OF INTENT TO DISMISS ON DOCKET CALL-
PRETRIAL CONFERENCE DATE: THIS CASE MAY BE
DISMISSED FOR WANT OF PROSECUTION ON OR AFTER THE
DATE OF THE DOCKET CALL-PRETRIAL CONFERENCE if by
said date there is no:
a. Service with citation;
b. Answer or properly executed Waiver on file;
c. Mediation; or
d. Completion of approved PARENT EDUCATION PROGRAM, if
applicable.
Failure to appear at DOCKET CALL-PRETRIAL CONFERENCE
may result in the dismissal of the case, appropriate sanctions and/or
the exclusion of some or all of that party’s evidence.
(emphasis original)
The record supports the trial court’s order finding that Alex acted with
conscious indifference by failing to comply with the second of the trial court’s
Docket Control Orders. In the trial court, Alex had the burden to prove that his failure
to comply with the trial court’s orders resulted from an accident, mistake, or to
provide the trial court with a reasonable explanation for his failure to comply with
the trial court’s order. Alex did not appear for the January 21, 2022, final pretrial.
Alex failed to file an inventory 45 days before trial—even an inventory subject to
supplementation or amendment when the information from Japan was translated.
Alex provided no evidence of how long he had possession of the information written
in Japanese and did not provide evidence that he could not understand how to
translate the Japanese information himself, or through a Japanese interpreter (or even
“Google Translate”) at least 45 days prior to trial. Alex presented no evidence that
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he had sent the documents to be translated, when they were sent, calls to the
translation service to see when they would be back, or any explanation about why
an inventory couldn’t be timely filed. The trial court noted that the motion for
continuance heard on January 21, 2022, had averred that this was the first
continuance when, in fact, it was the second motion for continuance filed. This
indicates a potential intention to be less than frank with the court. It appears that the
only accident or mistake was in believing that the trial court would not follow
through on the stated requirements of the second Docket Control Order and dismiss
the case. Under these circumstances, we cannot say that the trial court abused its
discretion by impliedly finding that Alex’s failures were not merely inadvertent, but
were, instead, “intentional or due to conscious indifference.” Smith, 913 S.W.2d at
468; see also Coston v. Coston, No. 12-09-00458-CV, 2010 Tex. App. LEXIS 6645,
at **3-7, 15 (Tex. App.—Tyler Aug. 18, 2010, pet. denied) (mem. op.) (discussing
implied findings of conscious indifference in the context of affirming a default
judgment and noting that it is a fact question for the trial court to resolve). We also
cannot say that the trial court’s implied conclusion that the explanation given for
violating the second Docket Control Order was not reasonable. Id. at 15.
The trial court did not abuse its discretion in making this implied finding; we
therefore overrule Alex’s sole appellate point.
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IV. Conclusion
Because the trial court did not abuse its discretion by denying Appellant’s
motion to reinstate the suit, we affirm the judgment.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on June 2, 2023
Opinion Delivered October 5, 2023
Before Golemon, C.J., Horton and Wright, JJ.
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