Opinion
No. 09-09-00455-CV
Submitted on April 15, 2010.
Opinion Delivered June 24, 2010.
On Appeal from the 9th District Court Montgomery County, Texas, Trial Cause No. 07-05-05210-CV.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Dominguez appeals the trial court's dismissal of his lawsuit for want of prosecution and subsequent denial of a motion to reinstate. Dominguez asserts that the trial court erred in dismissing his case. Because the trial court denied Dominguez the opportunity to be heard on his motion to reinstate, and because the motion to reinstate set forth good cause for the case to be maintained, we reverse the judgment of the trial court and order that the case be reinstated.
BACKGROUND
Appellant, Ignacio Dominguez, initially brought suit against appellees, Jimmie F. Smith and Pro Energy Solutions of Houston, L.L.C., in May 2007 in the 221st District Court of Montgomery County, Texas. The case was set for trial on at least one occasion in the 221st District Court; however, after not being reached for trial, the case was transferred to the 9th District Court of Montgomery County on July 15, 2008, by order of the 221st District Court and designated as an E-file case. Court staff of the 9th District Court subsequently notified the parties that e-mail communication with the court was the preferred method of communication, as telephone calls are not always promptly returned. Dominguez's counsel complied with the court's directives for electronic and e-mail communications throughout the pendency of the litigation, and successfully communicated with court personnel via e-mail on several occasions.
On August 28, 2009, the attorneys for both parties appeared in the trial court for docket call and were advised that the underlying suit was set "number one" for trial on September 14, 2009. Because Dominguez lived out of state; his counsel attempted to verify the number one position of the trial setting prior to advising his client of the trial date. On September 1, 2009, Dominguez's counsel checked the court's online docket, which he understood to be "updated daily at 6 a.m." The court's online docket reflected that the case was set at the number thirteen position on the court's September 14, 2009, trial docket.
That same day, counsel contacted the court by e-mail to clarify the position of the trial setting. Counsel received no response to the email; however, counsel continued to monitor the position of Dominguez's trial setting on the court's online docket. On September 7, 2009, counsel still had not received a response from the court and contacted opposing counsel to determine if he had received any communication from the court regarding the trial setting. Counsel did not receive a response from opposing counsel.
On Friday, September 11, 2009, the trial setting was still in the number thirteen position on the court's online docket. Because the trial setting had not changed and because counsel had not received a response from either the court or opposing counsel, Dominguez's counsel sent another e-mail to the court in an attempt to clarify the discrepancy and determine when he should appear for trial on September 14th. By the close of business on September 11, 2009, Dominguez's counsel still had not received a response from the court or opposing counsel, and the case remained set for the number thirteen position on the court's online docket. Over the weekend, counsel monitored the court's online docket as well as all pertinent e-mail accounts and the firm's telephone recorder "to ensure that any contact from the [c]ourt would be promptly noted and acted upon."
Dominguez's counsel did not appear for trial on September 14, 2009. On the morning of September 15, 2009, the Court's online docket reflected that plaintiff's case was moved to the September 21, 2009, trial docket "due to not getting reached on 9/14/2009." In the afternoon of September 15, 2009, counsel received e-mail notice through the court's electronic filing database that the court had signed an order of dismissal. Thereafter, Dominguez's counsel filed a motion to reinstate the case. Although counsel requested an oral hearing, he was told that the court considered such motions by submission only, and no hearing was held on the motion to reinstate. Instead, on October 5, 2009, the trial court denied Dominguez's motion to reinstate the case. Dominguez timely filed this appeal.
On appeal, Dominguez argues that he was entitled to notice and a hearing prior to dismissal for want of prosecution. Dominguez further argues that the trial court abused its discretion in denying his motion to reinstate because counsel established good cause to retain the case.
ANALYSIS
Dismissal for want of prosecution is reviewed under an abuse of discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); see also Smith v. Babcock Wilcox Constr. Co., 913 S.W.2d 467, 467 (Tex. 1995). A trial court abuses its discretion when it acts "without reference to any guiding rules or principles," or in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).
The trial court's order states that the case was dismissed after Dominguez's counsel "failed to appear" for trial. Pursuant to Rule 165a of the Texas Rules of Civil Procedure, "[a] case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." TEX. R. CIV. P. 165a(1). "At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Id. Rule 165a also sets forth the procedure and standard for obtaining reinstatement following a dismissal for want of prosecution. TEX. R. CIV. P. 165a(3). Rule 165a(3) states:
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.
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 failure has been otherwise reasonably explained.
Id. The standard for reinstatement 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, 134 Tex. 388, 133 S.W.2d 124 (1939)). In Smith, the court stated:
A failure to appear is not 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. Also, conscious indifference means more than mere negligence.
Id. (citations omitted).
In his argument, Dominguez points out that the trial court denied his motion to reinstate without an oral hearing. An oral hearing is required on a motion to reinstate, and failure to hold such a hearing requires reversal. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam); Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.-Fort Worth 2004, no pet.); Rohus v. Licona, 942 S.W.2d 111, 112 (Tex. App.-Houston [1st Dist.] 1997, no writ); Bush v. Ward, 747 S.W.2d 43, 45 (Tex. App.-Beaumont 1988, no writ). "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." Smith, 145 S.W.3d at 305. In Bush, we explained:
When the rule was amended, it was apparently intended to remedy the problem associated with the filing of motions and the setting of hearings. The rule now clearly places the burden upon the clerk to deliver the motion to the judge who shall set a hearing. The rule further requires the judge to reinstate upon finding after a hearing that the failure was not intentional or as a result of conscious indifference or that the failure has been otherwise reasonably explained. When the intent clearly indicates that the word shall is intended to be mandatory, it is inconsistent with any idea of discretion and is mandatory. The rule clearly intends for the court to conduct a hearing and to make or refuse to make findings.
Bush, 747 S.W.2d at 45 (citations omitted); see also Matheson v. Am. Carbonics, 867 S.W.2d 146, 147 (Tex. App.-Texarkana 1993, no writ); Rohus, 942 S.W.2d at 112.
It is undisputed that the trial court failed to hold a hearing on Dominguez's motion to reinstate the case. Denying the motion to reinstate without giving Dominguez's counsel the opportunity to be heard on the motion constitutes reversible error. See Bush, 747 S.W.2d at 45. Additionally, counsel's failure to appear was not the result of "conscious indifference," but was due to counsel's mistaken reliance upon the court's online docket system and his inability to effectively and timely communicate with court personnel. Under the circumstances presented in this case, we hold that counsel's failure to appear was sufficiently "otherwise reasonably explained." See TEX. R. CIV. P. 165a(3); see generally Smith, 913 S.W.2d at 468 (concluding that attorney's absence was not grounds for dismissal when attorney attempted to resolve conflict regarding trial dates and mistakenly understood that a continuance would be granted).
While the trial court may have considered appropriate sanctions against Dominguez's counsel for failing to appear, a court imposing a sanction of dismissal "must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both." TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-19 (Tex. 1991) (finding that trial court's dismissal with prejudice was an unjust sanction when party failed to appear for its deposition). Nothing in the record indicates that Dominguez was responsible for counsel's decision not to appear at the September 14, 2009, trial setting. "[A] party should not be punished for counsel's conduct in which it is not implicated apart from having entrusted to counsel [his] legal representation." Id. at 917.
The trial court abused its discretion in denying the motion to reinstate. We reverse the trial court's order of dismissal and remand the case to the trial court with instructions to reinstate the case.
REVERSED AND REMANDED.