Opinion
No. 04-17-00146-CV
01-24-2018
Natalie KIRKPATRICK, Appellant v. Samuel S. SILVA, Appellee
MEMORANDUM OPINION
From the County Court, Guadalupe County, Texas
Trial Court No. 2015-CV-0303
Honorable Robin V. Dwyer, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED
In a single issue, Natalie Kirkpatrick argues the trial court abused its discretion in denying a motion to reinstate her case after it was dismissed for want of prosecution. We affirm.
BACKGROUND
On September 21, 2015, Kirkpatrick filed a negligence suit against Samuel Silva. Silva answered the suit and eventually moved for summary judgment. On September 23, 2016, the trial court signed an amended order denying Silva's summary judgment motions and ordering the parties to mediation. The order stated:
IT IS THEREFORE ORDERED that the [summary judgment] motions be DENIED; the case be placed on the Jury Docket for April 24 to April 27, 2017 with Mediation to be completed by November 30, 2016, and a Pretrial of March 15, 2017. If no mediation occurs by December 31, 2016 the Jury Trial setting will be cancelled unless a Motion to Waive mediation for good cause is granted pursuant to rule after a hearing on that matter. If no such motion is filed within 30 days of November 30, 2016, it will not be entertained or set.On the same day, Silva filed a motion asking the trial court to reconsider the denial of his summary judgment motions.
On November 2, 2016, the trial court held a hearing on Silva's motion to reconsider the denial of his summary judgment motions. After hearing arguments from counsel, the trial court decided to take Silva's motion to reconsider under advisement. Kirkpatrick's counsel then asked the trial court if it would allow the parties to waive mediation so they could go straight to trial. In response, the trial court directed counsel to its September 23, 2016 order and stated: "If you want me to waive mediation, you're required to file a motion within a certain period of time. It's set out in detail in that order." The trial court also stated: "You want to waive mediation, I told you, 'File a motion, file it by this certain period of time, and if you don't do it by that certain period of time, it's going to be denied.'" Additionally, the trial court stated: "[T]he order says clearly exactly how you have to do it . . . but you've got to at least read the . . . order so you know what . . . to do. If that's what you want to do, you better file the motion because time is running." Finally, the trial court stated, "By that order, it said you had to do something by the 30th of November. Today's the 2nd of November . . . ."
On January 10, 2017, the trial court signed an order denying Silva's motion to reconsider the denial of his summary judgment motions. This order also cancelled the April 2017 jury trial setting because no motion to waive mediation had been filed in accordance with the deadline set in the September 23, 2016 order, and set a February 15, 2017 hearing "as to why [the] case should not be dismissed for Want of Prosecution."
On February 2, 2017, Kirkpatrick filed a motion asking the trial court to retain the case on docket, to waive mediation, and to set the case for jury trial. On February 15, 2017, the trial court held a dismissal hearing, where it considered Kirkpatrick's motion to retain. After finding that no mediation had occurred and no timely motion to waive mediation had been filed, the trial court denied Kirkpatrick's motion to retain and dismissed her case for want of prosecution.
On February 16, 2017, Kirkpatrick filed a verified motion to reinstate the case on the trial court's docket. In the motion, Kirkpatrick argued that her failure to set a mediation or to file a timely motion to waive mediation was not intentional or the result of conscious indifference, but was the result of a mistake. Specifically, Kirkpatrick argued that "counsel's staff" (1) had failed to calendar the deadlines set forth in the September 23, 2016 order, and (2) was under the misunderstanding that the case was "on hold" until the trial court ruled on Silva's motion to reconsider the denial of his summary judgment motions.
On March 8, 2017, the trial court held a hearing on Kirkpatrick's motion to reinstate and denied the motion. Kirkpatrick appealed.
APPLICABLE LAW
A trial court's authority to dismiss for want of prosecution stems from two sources: rule 165a and the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under rule 165a, the trial court may dismiss "on failure of any party seeking relief to appear at any hearing or trial of which the party had notice," TEX. R. CIV. P. 165(a)(1), or when a case is "not disposed of within the time standards promulgated by the Supreme Court...." TEX. R. CIV. P. 165(a)(2). Under the common law, the trial court has the inherent power to dismiss when the plaintiff fails to prosecute her case with due diligence. Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 728 (Tex. App.—San Antonio 2012, pet. denied). Before a trial court may dismiss a case for want of prosecution, the plaintiff must be provided with notice and an opportunity to be heard. Villarreal, 994 S.W.2d at 630. When the notice of dismissal specifies a particular basis for dismissal, the dismissal may be granted only on that basis. Morales v. Cotulla Indep. Sch. Dist., No. 04-13-00363-CV, 2014 WL 2158403, at *2 (Tex. App.—San Antonio 2014, no pet.).
A motion to reinstate is a mechanism to prevent cases from being improperly dismissed. Id. The trial court "shall reinstate the case upon a finding after a hearing that the failure of the party or his attorney was not 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). The "failure" that must be explained is the one that led to dismissal. Morales, 2014 WL 2158403, at *2. This court applies the rule 165a standard to all dismissals for want of prosecution, regardless of the source of the trial court's dismissal authority. Id. (citing Cappetta v. Hermes, 222 S.W.3d 160, 166-67 (Tex. App.—San Antonio 2006, no pet.)).
The standard for reinstatement under rule 165a(3) is essentially the same as the standard for setting aside a default judgment. Id. The party seeking reinstatement must prove that the failure or omission that led to dismissal was the product of an accident or mistake, or must otherwise reasonably explain that her actions were not intentional or consciously indifferent. Id.; Cappetta, 222 S.W.3d at 167. A failure 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. Morales, 2014 WL 2158403, at *2. Proof of accident, mistake, or other reasonable explanation negates the intent or conscious indifference for which reinstatement can be denied. Id. Conscious indifference means more than mere negligence. Id.
We review an order denying a motion to reinstate for an abuse of discretion. Cappetta, 222 S.W.3d at 164. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Id. With respect to factual matters, an abuse of discretion occurs only when the record shows "the trial court could reasonably have reached only one decision." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
DISCUSSION
In this appeal, Kirkpatrick only challenges the trial court's order denying her motion to reinstate her case. Kirkpatrick does not challenge the trial court's order dismissing her case.
When a trial court dismisses a case for want of prosecution and denies a motion to reinstate the case, an appellant has three options for presenting her issues on appeal: the appellant may argue that the trial court erred in dismissing her case, or that the trial court erred in denying her motion to reinstate, or both. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 838 (Tex. App.—Fort Worth 1999, no pet.). Any of these issues, if sustained, is independently sufficient to obtain reinstatement. Id.
Although we review the trial court's ruling on a motion to reinstate under an abuse of discretion standard, the scope of our review depends on whether the dismissal order specified the ground for dismissal. Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet. denied); Shook v. Gilmore & Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied). When the dismissal order is silent as to the reason for dismissal, the plaintiff seeking reinstatement must negate all possible grounds for dismissal; however, when the dismissal order lists a specific ground, the plaintiff seeking reinstatement must negate only the reason stated in the dismissal order. Rampart, 974 S.W.2d at 197; Shook, 951 S.W.2d at 296. Therefore, the reason for dismissal specified in the dismissal order in this case is important to determining whether Kirkpatrick met her burden to prove her entitlement to reinstatement. See Rampart, 974 S.W.2d at 197; Shook, 951 S.W.2d at 296.
Here, the order dismissing the case for want of prosecution states:
In an order dated September 23, 2016 this Court denied the Summary Judgment motions and the case was placed on the Jury Docket for April 24-27, 2017 with Mediation to be completed by November 30, 2016 and a Pre Trial date on March 15, 2017. The Order further provided that "If no mediation occurs by December 31, 2016 the Jury Trial setting will be cancelled unless a Motion to Waive Mediation for good cause is granted pursuant to rule after a hearing on that
matter. If no such motion is filed within 30 days of November 30, 2016, it will not be entertained or set." On January 10, 2017 a Show Cause Order was issued.Thus, the reason for dismissal was the failure to mediate the case or to file a motion to waive mediation in accordance with the deadlines set by the trial court. Therefore, in order to have the case reinstated, Kirkpatrick was required to prove that her failure to mediate the case or to file a motion to waive mediation was not intentional or the result of conscious indifference. See Rampart, 974 S.W.2d at 197; Shook, 951 S.W.2d at 296.
The court finds that as of February 15, 2017 no mediation occurred and no such motion to waive mediation for good cause was filed within the time ordered.
IT IS THEREFORE ORDERED that the above captioned case be and same is hereby dismissed for Want of Prosecution . . . .
In her motion to reinstate, Kirkpatrick argued that her failure to mediate or to file a timely motion to waive mediation was not intentional or the result of conscious indifference, but was the result of a mistake. Specifically, Kirkpatrick argued that "counsel's staff" (1) had failed to calendar the deadlines set forth in the September 23, 2016 order, and (2) was under the misunderstanding that the case was "on hold" until the trial court ruled on Silva's motion to reconsider the denial of his summary judgment motions. Attached to the motion to reinstate was an affidavit in which Kirkpatrick's counsel stated: "Plaintiff's attorney's staff failed to calendar the deadlines set forth in the September 23, 2016 Order. Plaintiff's counsel's staff was under the misunderstanding that because Defendant filed a Motion to Reconsider the Ruling on his Summary Judgment, the events on this case were on hold until the Court made a ruling on Defendant's motion." Kirkpatrick's counsel further stated that he was "not intentionally or consciously [] indifferen[t] to the September 23, 2016 Order."
At the hearing on her motion to reinstate, Kirkpatrick's counsel claimed that he did not receive the September 23, 2016 order, but he also admitted that the trial court had referred to the order at the November 2, 2016 hearing. Additionally, Kirkpatrick's counsel claimed that his failure to file a timely motion to waive mediation was due to a calendaring mistake. Finally, Kirkpatrick's counsel pointed out that he filed a motion to waive mediation five days after the deadline set by the trial court.
On appeal, Kirkpatrick argues that the trial court should have reinstated her case because her "failure to strictly comply with the trial court['s] order regarding mediation was not intentional or the result of conscious indifference but was due to accident, mistake, or mere negligence." Kirkpatrick argues that, based on the trial court's comments at the November 2, 2017 hearing, her counsel could reasonably have believed that the case was "in limbo" and "not even alive pending the trial court's ruling on the motion to reconsider." Additionally, to demonstrate that her counsel was not consciously indifferent, Kirkpatrick points to the fact that her counsel filed a motion to waive mediation as soon as he realized the case was being placed on the dismissal docket. According to Kirkpatrick, the trial court abused its discretion by not reinstating her case because she met her burden to prove that her failure to file a timely motion to waive mediation was the result of a mistake and was not intentional or the result of conscious indifference.
Kirkpatrick relies on Smith v. Babcock & Wilson Constr. Co., Inc., 913 S.W.2d 467 (Tex. 1995), and Asplundh Tree Expert Co. v. City of Garland, No. 05-02-00694-CV, 2003 WL 187428 (Tex. App.—Dallas Jan. 29, 2003, no pet.), to support her argument. In Smith, the Texas Supreme Court held that the trial court abused its discretion by denying the plaintiffs' motion to reinstate. 913 S.W.2d at 468. There, the trial court dismissed the plaintiffs' case for want of prosecution after the plaintiffs' counsel failed to appear at trial. Id. The supreme court determined that the plaintiffs' counsel reasonably explained his failure to appear at trial by stating that he was actually in trial in another county and he believed, based upon his credible explanation, that the trial court would grant a continuance for that reason. Id. The supreme court concluded that the plaintiffs' counsel was not as conscientious as he should have been, but his actions did not rise to the level of conscious indifference. Id.
In Asplundh, the Dallas court of appeals held that the plaintiff's counsel's failure to appear for trial was not the result of conscious indifference when the parties had participated in mediation shortly before trial and had entered into a rule 11 agreement in which they agreed to continue the mediation for sixty days, which was beyond the trial setting. 2003 WL 187428, at *1. At the hearing on the motion to reinstate, plaintiff's counsel testified that the mediator was supposed to contact the court to determine how to handle the conflict between the trial setting and the mediation. Id. Instead, the mediator faxed a letter to plaintiff's counsel stating that the plaintiff needed to file a motion for continuance, but because of "staffing problems" plaintiff's counsel never saw the letter and did not file the motion as instructed. Id. The court of appeals held that the inaction of plaintiff's counsel did not amount to conscious indifference because he mistakenly believed that the mediator had taken care of the conflict between the trial date and the continued mediation. Id., at *2.
The present case is not like Smith or Asplundh and does not require the same result. Here, the record shows that at the November 2, 2016 hearing, after the trial court informed the parties that it was taking Silva's motion to reconsider the denial of the summary judgment motions under advisement, Kirkpatrick's counsel asked the trial court if it would allow the parties to waive mediation so they could go straight to trial. In response, the trial court directed counsel to its September 23, 2016 order, stating: "If you want me to waive mediation, you're required to file a motion within a certain period of time. It's set out in detail in that order." The trial court further stated: "You want to waive mediation, I told you, 'File a motion, file it by this certain period of time, and if you don't do it by that certain period of time, it's going to be denied.'" Additionally, the trial court stated: "[T]he order says clearly exactly how you have to do it . . . but you've got to at least read the . . . order so you know what to do. If that's what you want . . . to do, you better file the motion because time is running." Finally, the trial court stated, "By that order, it said you had to do something by the 30th of November. Today's the 2nd of November...." Thus, the record shows that at the November 2, 2016 hearing, the trial court reinforced to Kirkpatrick's counsel that, if he wanted to avoid dismissal, he was required to file a timely motion to waive mediation. The trial court further advised him that the deadlines set out in its September 23, 2016 order were quickly approaching, and, in fact, that one of the deadlines was November 30, 2016. Furthermore, the trial court's comments plainly demonstrated that even though Silva had filed a motion to reconsider the denial of his summary judgment motions, the case was not "on hold" pending a ruling on this motion.
We conclude that the trial court did not abuse its discretion in refusing to find that Kirkpatrick's failure to mediate or to file a motion to waive mediation in accordance with the September 23, 2016 order was the result of a mistake or was reasonably explained. In his affidavit, Kirkpatrick's counsel stated that his failure to comply with the trial court's mediation deadlines was due to (1) his staff's failure to properly calendar the deadlines imposed in the September 23, 2016 order, and (2) his staff's misunderstanding that the case was "on hold" pending a ruling on Silva's motion for reconsideration. However, the trial court could have found that these explanations were not credible or that they were irrelevant because the trial court had advised Kirkpatrick's counsel of the importance of the mediation deadlines notwithstanding Silva's motion for reconsideration. After the trial court took Silva's motion under advisement at the November 2, 2016 hearing, Kirkpatrick's counsel asked the trial court if it would waive mediation. The trial court responded by referring to the deadlines set out in the September 23, 2016 order. The trial court further emphasized that Kirkpatrick's counsel needed to take immediate action to obtain a waiver of mediation and warned Kirkpatrick's counsel that an untimely motion to waive mediation would be denied. Additionally, the trial court advised Kirkpatrick's counsel that the deadline for filing a motion to waive mediation was approaching and that he needed to act promptly to comply with the September 23, 2016 order.
Based on the record presented, the trial court could have reasonably found that Kirkpatrick's failure to mediate or to file a motion to waive mediation in accordance with the trial court's deadlines was intentional or the result of conscious indifference and that Kirkpatrick failed to meet her burden to prove her entitlement to reinstatement. Therefore, we conclude the trial court did not abuse its discretion in denying Kirkpatrick's motion to reinstate.
CONCLUSION
The trial court's judgment is affirmed.
Karen Angelini, Justice