Opinion
No. 10-06-00170-CV
Opinion delivered and filed August 8, 2007.
Appeal from the County Court at Law McLennan County, Texas Trial Court No. 20050757 CV1.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Harvest Credit Management IV B, LLC sued Mary E. Thornton for a credit card debt. When neither Harvest nor its attorney appeared for trial, the trial court dismissed Harvest's case for want of prosecution. Harvest filed a motion for new trial requesting reinstatement of its case. The trial court denied the motion. In a single issue, Harvest contends that the trial court abused its discretion by denying Harvest's motion for new trial and refusing to reinstate the case. We reverse and remand.
Thornton did not file an appellee's brief in this proceeding.
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). 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. TEX. R. CIV. P. 165a(3); see Smith v. Babcock Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). We review a dismissal for want of prosecution and the denial of a motion to reinstate under an abuse-of-discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); see also Smith, 913 S.W.2d at 468.
Although labeled a motion for new trial, Harvest's motion is essentially one to reinstate. See Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) ("we look to the substance of a motion to determine the relief sought, not merely to its title").
At the hearing on Harvest's motion for new trial, the trial court recognized that notice "went out on December 14, 2005" and apparently denied Harvest's motion on that basis. However, in an affidavit attached to Harvest's motion, Harvest's counsel states that he did not receive notice of the trial setting until three days after the scheduled trial date and first became aware of the trial date on the day notice was received. He further states that his firm's "standard business practice" is to open mail upon receipt and stamp the enclosed document with the receipt date. Attached to counsel's affidavit is a copy of the trial court's notice on which the date of receipt is stamped February 13, three days after trial. These facts are uncontroverted.
There appears to be no dispute that the trial court's notice was properly addressed and mailed. However, counsel's uncontroverted affidavit establishes that the notice was not received. See Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987) (presumption that a properly addressed and mailed notice of trial setting was "duly received by the addressee" "vanishes when opposing evidence [of nonreceipt] is introduced"); see also Limestone Constr. v. Summit Commer. Indus. Props., 143 S.W.3d 538, 544-45) (Tex.App.-Austin 2004, no pet.) (same).
Accordingly, Harvest presented evidence reasonably explaining its failure to appear. We cannot say that Harvest's failure to appear was "intentional or the result of conscious indifference." TEX. R. CIV. P. 165a(3). The trial court abused its discretion by denying Harvest's motion for new trial and refusing to reinstate the case. See id; see also Smith, 913 S.W.2d at 468. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.