Heather Mortell v. Daniel Jessie Pruett and Bonita Polk Steger ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00123-CV
___________________________
HEATHER MORTELL, Appellant
V.
DANIEL JESSIE PRUETT AND BONITA POLK STEGER, Appellees
On Appeal from County Court at Law No. 1
Parker County, Texas
Trial Court No. CIV-17-0812
Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Heather Mortell sued appellees Daniel Jessie Pruett and Bonita Polk
Steger for damages arising out of a motor-vehicle collision. Over a year later, the trial
court sent the parties a “Notice of Intent to Dismiss,” stating that the case was eligible
for dismissal for want of prosecution and setting a docket call. When none of the
parties filed a motion to retain or appeared at the docket call, the trial court signed an
order dismissing the case for want of prosecution.
Mortell timely filed a verified motion to reinstate the case and asked the trial
court to set the motion for a hearing. See Tex. R. Civ. P. 165a(3). The trial court
denied the motion without a hearing. Mortell appealed from the dismissal order,
contending in one of her issues that the trial court abused its discretion by denying
her motion to reinstate without holding a hearing on the motion.
Because the trial court’s error in failing to hold a hearing1 prevented the proper
presentation of this case on appeal and the trial court could correct that error, we
abated the appeal and remanded the case to the trial court to conduct an oral hearing
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When a party files a verified motion to reinstate, the trial-court clerk must
deliver a copy to the judge, “who shall set a hearing on the motion as soon as
practicable.” Tex. R. Civ. P. 165a(3). Additionally, the court is required to “notify all
parties or their attorneys of record of the date, time and place of the hearing.” Id.
Consequently, a trial court must conduct an oral hearing on any timely filed motion to
reinstate under Rule 165a. See Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex.
1991); Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988). “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 [under Rule 165a].” Smith v. McKee, 145
S.W.3d 299, 305 (Tex. App.—Fort Worth 2004, no pet.).
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on Mortell’s motion to reinstate. See Tex. R. App. P. 44.4; Roush v. Metro. Life Ins., 551
S.W.3d 903, 905 (Tex. App.—Amarillo 2018, order) (per curiam) (abating appeal
under Rule 44.4 for mandatory hearing on motion to reinstate under Rule 165a). In
accordance with our abatement order, the trial court heard Mortell’s motion to
reinstate. The trial court granted the motion and set the case for trial.
After the appeal was automatically reinstated upon the filing of supplemental
clerk’s and reporter’s records, we informed the parties that it appeared that the trial
court’s granting Mortell’s motion to reinstate rendered this appeal moot. We warned
the parties that the appeal would be dismissed as moot unless any party desiring to
continue the appeal filed a response showing grounds for continuing the appeal.
None of the parties filed a response.
Accordingly, on this court’s own motion, we dismiss the appeal as moot. See
Tex. R. App. P. 42.3(a), 43.2(f); Chancellor v. JPMorgan Chase Bank, N.A., No. 02-10-
00394-CV, 2010 WL 4676927, at *1 (Tex. App.—Fort Worth Nov. 18, 2010, no pet.)
(mem. op.) (dismissing appeal as moot after trial court granted appellant’s motion to
reinstate).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: October 31, 2019
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