Jay Roger Owens v. Brock Agency, Inc. and Mark Taylor ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00336-CV
__________________
JAY ROGER OWENS, Appellant
V.
BROCK AGENCY, INC. AND MARK TAYLOR, Appellees
__________________________________________________________________
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 21-10-14257-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant Jay Roger Owens (“Plaintiff,” “Appellant,” or “Owens”) appeals
from the trial court’s Order of Dismissal for Want of Prosecution and its Order
denying his Motion to Reinstate his lawsuit against Appellees Brock Agency, Inc.
and Mark Taylor (collectively “Defendants” or “Appellees”). For the reasons
explained below, we affirm the trial court’s Order of Dismissal for Want of
Prosecution, but we reverse the trial court’s order denying the Motion to Reinstate
and remand the case to the trial court.
1
Background Information
On October 12, 2021, Owens filed an Original Petition against Brock Agency,
Inc., and Mark Taylor. Owens alleged that he was a “stage hand” and that he worked
for the Defendants at the Conroe Cajun Catfish Festival, where he fell off the stage
and injured himself. Owens asserted a claim for negligence against the Defendants.
The Petition was e-signed by attorney M.G., and attorneys P.S. and M.G. were both
listed as attorneys for Plaintiff under the signature block.1 The Defendants filed an
Answer and denied the allegations.
The trial court signed a Docket Control Order (“DCO”) on December 8, 2021.
Pertinent to this appeal, the DCO set a trial date of September 6, 2022, required pre-
trial materials to be exchanged and filed fourteen days before trial, and required
expert witness designations to be filed by the Plaintiff 150 days before trial. On
August 25, 2022, the trial court sent a Hearing Notification to the parties. The
Notification set a trial date of September 6, 2022, and stated, “You are to appear for
Pre-Trial at 8:00AM in the 457th District Court . . . on 09/06/22. Voir Dire will be
held at 9:00AM following the Pre-Trial.” The notification also stated the trial court
would dismiss the case for want of prosecution if the parties failed to timely file a
The record reflects that several attorneys with the same law firm represented
1
Owens during the case. We refer to the attorneys by their initials.
2
Joint Notice, that the trial court would set the pre-trial and provide notice thereof,
and that the parties should monitor the court’s web site for updates.
On August 23, 2022, the Defendants timely filed a “Joint Trial Notice,” stating
that Defendants were ready for trial. The same day, Defendants also filed a Trial
Witness List and a Trial Exhibit List. The Plaintiff did not provide the Defendant
with Plaintiff’s portion of the Joint Trial Notice.
On August 24, 2023, Plaintiff filed an Unopposed Motion for Continuance,
requesting that the trial court grant a continuance from the scheduled trial date of
September 6, 2022. According to the motion, Plaintiff’s deposition was scheduled
in July 2022 but was cancelled, and Plaintiff requested a continuance for Plaintiff to
be deposed and “to allow the parties to conduct further negotiations in an attempt to
settle the matter before trial.” The same day, Plaintiff also filed his own “Trial
Notice” stating he was not ready for trial, that Plaintiff had not been deposed, and
that Plaintiff’s counsel had responded to Defendants’ counsel’s emails about
rescheduling the deposition. Plaintiff also filed a Trial Witness List, a First Amended
Trial Witness List, and a Trial Exhibit List that day.
On August 24, 2022, the trial court entered a dismissal Order for failure to file
a Joint Pre-trial Notice as per the DCO, and then later marked the dismissal Order
“vacated” with a notation that “Joint Notice was filed and was not in case due to
efile issues.”
3
On August 25, 2022, the trial court sent the parties a Hearing Notification, via
email, notifying the attorneys that
Judge Vince Santini will be presiding over the above styled and
numbered cause on Tuesday, 09/06/2022 at 9:00 AM. Currently #10 on
the trial lineup.
You are to appear for Pre-Trial at 8:00AM in the 457th District Court
located at 301 North Main, 2nd Floor, Suite 209, Conroe, Texas 77301
on 09/06/22. Voir Dire will be held at 9:00AM following the Pre-Trial.
Please continue to monitor our webpage for trial line-up updates.
At 8:00 a.m. on September 6, 2022, the trial court called the case for the pre-trial.
The Defendants’ attorney appeared, but neither the Plaintiff nor the Plaintiff’s
attorney were present in the court when the case was set for the pre-trial or when the
case was called. Subsequently, the trial court signed an Order of Dismissal for Want
of Prosecution stating,
No party seeking affirmative relief to said suit appeared, and the Court,
having considered the facts surrounding same, finds that this cause of
action should be dismissed for lack of prosecution; therefore it is
ORDERED, ADJUDGED AND DECREED that the above-styled and
numbered cause is dismissed, and same is hereby removed from the
docket of this Court.
On September 8, 2022, Plaintiff filed a “Verified Motion to Reinstate” stating
therein that the “failure to comply with time standards” for appearing on September
6th was not intentional nor due to indifference but rather due to a calendaring error,
and that “Plaintiff was reasonably diligent in preparing for trial and negotiating the
case.” According to the motion, Plaintiff’s attorney appeared “within thirty minutes
4
of the 8:00am setting incorrectly thinking the setting was for 8:30am.” The motion
alleged that Plaintiff’s counsel had filed all necessary pre-trial filings and had been
“in constant contact” with Defendants’ counsel. Plaintiff argued that, under Texas
Rule of Civil Procedure 165a, the trial court should grant the Motion to Reinstate
because the failure to appear on September 6 was due to a calendaring mistake. The
Motion to Reinstate was e-signed by attorney P.S., and it lists P.S. and J.N. as
attorneys for Plaintiff. The Motion includes a sworn and notarized “Verification” by
one of Plaintiff’s attorneys, P.S., that reads,
BEFORE ME, the undersigned authority, on this day personally
appeared [P.S.], attorney with the law firm [], attorney for Plaintiff in
the above entitled and numbered cause, who, having been duly sworn
under oath swears that the facts contained in the foregoing Plaintiff’s
Motion to Re-instate are true and correct.
The Motion does not say why Owens, the Plaintiff, did not appear.
Defendants filed a response and opposition to the Motion to Reinstate and
attached several emails between counsel for the parties as exhibits to the response.
Defendants argued that “Plaintiff’s behavior in this matter shows a clear pattern of
conscious indifference to the prosecution of this case for which Plaintiff has offered
no adequate justification.” Defendants pointed out that Plaintiff filed his pretrial
materials “a day late on August 24, 2022” and that Plaintiff failed to serve his Rule
194.4 Pre-Trial Disclosures on August 5, 2022, and that counsel’s own emails
5
indicate he was aware of the trial setting for September 6, 2022, showing a
“conscious indifference” to the prosecution of the case.2
The trial court held a hearing on the Motion to Reinstate on September 23,
2022, and Plaintiff’s counsel, J.N., appeared on behalf of the Plaintiff. At the
hearing, the trial court commented on the record that the motion “[s]eems to be
verified. So, looks like it’s in proper form.” The court then stated that the case had
been dismissed for want of prosecution on September 6th, the morning of trial,
because no one had appeared for the Plaintiff. Plaintiff’s counsel explained on the
record that he was under the mistaken impression that it was scheduled for 8:30 a.m.,
and due to a calendaring error, he appeared thirty minutes late, and he stated that the
mistake was not due to “conscious indifference.” Plaintiff’s counsel also told the
court that, when he arrived at about “8:30ish[],” that court was not in session,
numbers were being placed in the pews for a voir dire, and he spoke with court staff
2
In an email dated August 23, 2022, defense counsel indicated they could not
sign an “agreed continuance” but that they would not oppose a continuance. The
record reflects that on August 24, 2022, Plaintiff’s counsel filed what is styled as
“Plaintiff’s Unopposed Motion for Continuance.” In another email dated September
1, 2022, and attached to the Response to the Motion to Reinstate Plaintiff’s counsel,
J.N., wrote,
I just got off the phone with the court. They indicated that an Agreed
Continuance would be granted with no appearance necessary early
Tuesday morning. Because we are actively working to get this case
mediated later next month we can agree to continue. See attached and
add your signature block and I will file.
On that same date, Defense counsel responded, “We are still not agreed to a
continuance.”
6
to tell them that he had appeared, but he did not have the opportunity to state his
presence on the record. Defense counsel explained at the hearing that the Defense
counsel had appeared at 8:00 a.m. and the Plaintiff’s counsel did not appear. The
court stated,
I’m sure I called the case, and I’m sure that no one replied. And I’m
sure I probably even gave some grace time. I normally give a little bit
of grace time, at least five, ten minutes of grace time. Or if you call or
something and say, “Hey, I’m running late,” at least I know.
Plaintiff’s counsel stated that if he had known he was running late, he would have
called the court, but his calendar “indicated 8:30[,]” which was when he arrived. The
following exchange occurred at the hearing on the Motion to Reinstate:
[Plaintiff’s counsel]: Yes, Your Honor, it was DWOP’d on the morning
of September 6th. Our firm was under the impression, by mistake, that
the trial was at 8:30. I was here in the courtroom as voir dire was about
to begin, had went and spoke to court staff a little after 8:30 when I
realized the mistake had been made. It was not due to conscious
indifference as evidenced by the fact that I did get out here that Tuesday
morning in order to appear in front of you. It was just simply a
calendaring error; and I was 30 minutes late, Your Honor.
THE COURT: Okay. Did you make an appearance on the record?
[Plaintiff’s counsel]: The Court was not in session when I arrived. I
spoke to court staff in the court offices and indicated -- had them
indicate on the docket sheet that I did appear -- or did arrive on the
premises, but I did not have the opportunity to state my presence on the
record as I believe a trial was about to start or voir dire, at least, was
about to start in the courtroom at that time.
THE COURT: Okay. So we were in court when you arrived?
7
[Plaintiff’s counsel]: When I arrived the numbers were being placed --
it was about, you know, probably 8:20, 8:30ish. Numbers were being
placed in the pews for what I presumed to be a voir dire. I waited for a
second wondering if court was going to be called into session. When I
realized I was the only person waiting in the gallery, I went into the
offices, Your Honor.
Plaintiff’s counsel did not offer any explanation as to why Plaintiff himself did not
appear on the date and time designated for trial. The docket sheet entry for
September 6, 2022, states “Case called; Plaintiff did not appear; Case Dismissed for
Want of Prosecution. Judge Vincenzo Santini, 457th; CSR Lorri Lucas[.]”
Defense counsel opposed the Motion to Reinstate and explained on the record,
Our response is just that Plaintiff’s counsel has shown a pattern
of conscious indifference in this case. They have turned in their pretrial
materials late. We were forced to turn in a joint notice on our own. They
reference on September 1st in an e-mail to us, they reference the early
start time on Tuesday, September 6th. So they clearly had the August
25th trial notice at hand.
We believe that no proof of any mistake has been shown as is
required by the rules, and we would ask the Court to deny the motion.
The trial court then asked the Plaintiff’s attorney about the nature of Plaintiff’s
claim, and Plaintiff’s counsel responded that it was a premises liability claim
wherein Plaintiff alleged he was injured “when he fell off a stage that he was
breaking down after a festival” and subsequently underwent surgery. The trial court
stated that no designations of experts had been filed by Plaintiff pursuant to the
docket control order. The court then stated,
I am going to deny the motion. . . . I’m not seeing any designation
of experts on this matter on file. I’m not seeing any. So even if it were
8
to be reinstated, there’s -- there would be no proof of causation in this
case.
So I’m going to deny the motion.
The same day, the trial court signed an Order denying the Motion to Reinstate. The
record includes no findings of fact or conclusions of law by the trial court, and none
were requested. Plaintiff filed his notice of appeal on October 21, 2022.
Issue
In a single issue, Appellant argues that the trial court abused its discretion and
erred by failing to grant his Verified Motion to Reinstate because counsel’s failure
to appear was not due to conscious indifference, but rather due to a calendaring error.
According to Appellant, there was a reasonable explanation for counsel’s failure to
appear—namely, an unintentional scheduling error. Appellant also argues that the
circumstances did not warrant a dismissal for want of prosecution because the case
was only “just over a year old[,]” there had been “ample activity” in the case, and
there had been no substantial delay in the case. Appellant argued that he had
disclosed “all treating providers and thus experts” timely, and that the failure to
designate experts “does not rise to the level of wholly failing to prosecute a case with
diligence.” Appellant asks this Court to reverse the trial court’s order denying his
Verified Motion to Reinstate and to reverse the trial court’s order dismissing the case
for want of prosecution.
9
Rule 165a Dismissal
A trial court has authority to dismiss a case for want of prosecution under
either Rule 165a of the Texas Rules of Civil Procedure or the court’s inherent power
to maintain and control its docket. Tex. R. Civ. P. 165a; Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under Rule 165a(1), a trial court
may dismiss a case for want of prosecution on the failure of a party seeking
affirmative relief to appear for a hearing or trial if the party had notice that dismissal
could result from the party’s failure to appear. Tex. R. Civ. P. 165a(1). The Texas
Supreme Court has held that Rule 165a(1) encompasses the failure to appear for a
pretrial scheduling conference. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
851-52 (Tex. 2004). After a plaintiff’s case has been dismissed for want of
prosecution, the plaintiff’s remedy to obtain a reinstatement from the trial court is to
file a motion to reinstate. See Gillis v. Harris Cty., 554 S.W.3d 188, 191 (Tex.
App.—Houston [14th Dist.] 2018, no pet.). Rule 165a(3) requires the motion to
reinstate to be “verified by the movant or his attorney.” Tex. R. Civ. P. 165a(3); see
also Guest v. Dixon, 195 S.W.3d 687, 688-89 (Tex. 2006). To satisfy the verification
requirement, the motion must either be verified or provide the functional equivalent
of a verified motion. See Young v. Di Ferrante, 553 S.W.3d 125, 129-30 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied).
10
Appellees argue for the first time on appeal that the “Verification” attached to
Appellant’s Motion to Reinstate was insufficient to verify the Motion because the
affiant failed to state that he had “personal knowledge” of the facts contained in the
Motion. Appellees contend that a verification that is not based on personal
knowledge is not a valid verification, that the Motion to Reinstate in this case was
therefore unverified and did not extend the deadline to file a notice of appeal, that
Appellant’s Notice of Appeal was untimely filed, and this Court should dismiss the
appeal for lack of jurisdiction. 3
Jurisdiction
We are obligated to review issues affecting jurisdiction. See M.O. Dental Lab
v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). An appellate court generally has
jurisdiction over a case if a notice of appeal is filed within thirty days after the
judgment is signed unless one of the deadline-extending circumstances listed in
Texas Rule of Appellate Procedure 26.1 exists. See Tex. R. App. P. 26.1; Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); Young, 553
S.W.3d at 128. Under Rule 26.1, filing a verified motion to reinstate under Texas
Rule of Civil Procedure 165a within thirty days of an order of dismissal extends the
deadline to perfect appeal to ninety days after the trial court signed the dismissal
order. See Unifund CCR, LLC v. Whitaker, No. 09-19-00420-CV, 2021 Tex. App.
3
Appellant did not file a Reply brief.
11
LEXIS 10190, at *3 (Tex. App.—Beaumont Dec. 30, 2021, no pet.) (mem. op.);
Young, 553 S.W.3d at 128 (citing Tex. R. App. P. 26.1; Tex. R. Civ. P. 165a; Watson
v. Clark, No. 14-14-00031-CV, 2015 Tex. App. LEXIS 1707, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.)).
An unverified motion to reinstate does not extend the trial court’s plenary
jurisdiction or the time in which to file a notice of appeal. See McConnell v. May,
800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding); see also Westbrook v. Heirs of
Crockett, No. 09-17-00073-CV, 2018 Tex. App. LEXIS 3500, at *4 (Tex. App.—
Beaumont May 17, 2018, no pet.) (mem. op.). Although Rule 165a states that a
motion to reinstate must be verified, the Rule does not define “verified.” See Tex. R.
Civ. P. 165a; Young, 553 S.W.3d at 128. That said, Texas courts have held that a
verification or statement must be based on personal knowledge. See Young, 553
S.W.3d at 128-30 (“A statement not based on personal knowledge is not the
functional equivalent of a verification.”); In re Valliance Bank, 422 S.W.3d 722, 726
n.1 (Tex. App.—Fort Worth 2012, orig. proceeding) (“Verification must be based
on personal knowledge.”); Twist v. McAllen Nat’l Bank, 294 S.W.3d 255, 260-63
(Tex. App.—Corpus Christi 2009, pet. dism’d) (rejecting an attorney’s verification
on a motion to reinstate that did not indicate he had personal knowledge of any facts);
Brown v. Dallas Cty., No. 05-96-01192-CV, 1998 Tex. App. LEXIS 651, at **8-9
(Tex. App.—Dallas Feb. 2, 1998, no pet.) (mem. op.) (“A party’s attorney may
12
verify the motion [to reinstate] where he has knowledge of the facts, but an attorney
does not have authority to verify based merely on his status as counsel.”); see also
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (“An affidavit showing no basis
for personal knowledge is legally insufficient.”); Humphreys v. Caldwell, 888
S.W.2d 469, 470 (Tex. 1994) (“An affidavit which does not positively and
unqualifiedly represent the facts as disclosed in the affidavit to be true and within
the affiant’s personal knowledge is legally insufficient.”).
In Young, for example, the Houston Fourteenth Court of Appeals concluded
that a purported verification from a party to the suit that stated it was “‘true and
correct to the best of my belief and personal knowledge[]’” did not show personal
knowledge and did not satisfy the personal-knowledge requirement to verify the
motion to reinstate. See 553 S.W.3d at 127, 129. In Twist, the Corpus Christi Court
of Appeals concluded that a purported verification that stated that the facts in the
motion to reinstate were, “within his personal knowledge and/or belief, as indicated,
and are true and correct[]” was not an effective verification because it did not
identify which facts the affiant was verifying based on personal knowledge and
which were based only on his belief. See 294 S.W.3d at 258, 262.
Here, the attorney’s Verification states,
BEFORE ME, the undersigned authority, on this day personally
appeared P[.] S[.], attorney with the law firm of [], attorney for Plaintiff
in the above entitled and numbered cause, who, having been duly sworn
13
under oath swears that the facts contained in the foregoing Plaintiff’s
Motion to Re-instate are true and correct.
The Verification fails to contain a statement that the attorney signing the verification
had “personal knowledge” that the facts contained in the Motion to Reinstate are
true and correct.
That said, here the Defendants did not object to the Verification in the trial
court for failing to show it was based on “personal knowledge.” Generally, a party
must object in the trial court to preserve a complaint about a defect in an affidavit’s
form, such as a complaint that the affidavit is not based on personal knowledge. See
Tex. R. App. P. 33.1; In re Marriage of Sandoval, 619 S.W.3d 716, 722 (Tex. 2021)
(applying the Craddock standard to a motion for new trial and holding that by failing
to object, party did not preserve complaint about a defective jurat on an affidavit
filed in support of the motion for new trial). 4 We need not decide today whether an
4
The following cases addressed the waiver issue in the context of an affidavit
submitted as summary judgment evidence: Grand Prairie Indep. Sch. Dist. v.
Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (concluding that appellant’s complaint
that an affiant lacked personal knowledge was waived for failure to object in the trial
court); Gaber v. U.S. Bank Nat’l Ass’n as Legal Title Tr. for Truman 2016 Title Tr.,
No. 02-19-00243-CV, 2020 Tex. App. LEXIS 7213, at *5, **8-9 (Tex. App.—Fort
Worth Sept. 3, 2020, pet. denied) (mem. op.) (failure to secure a ruling on an
objection that a summary-judgment affidavit failed to show it was made on personal
knowledge waived appellate complaint); Washington DC Party Shuttle, LLC v.
IGuide Tours, LLC, 406 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (en banc) (after reviewing Texas cases, concluding that “a litigant must
object and obtain a ruling from the trial court to preserve a complaint that an affidavit
fails to reveal the basis for the affiant’s personal knowledge”); Lewis v. Lamb, No.
09-06-201-CV, 2007 Tex. App. LEXIS 5414, at **10-11 (Tex. App.—Beaumont July
14
alleged defect for lack of a statement based on “personal knowledge” can be waived
when it affects jurisdiction,5 because we conclude on the record before us that the
evidence in the record at the time the trial court heard the Motion to Reinstate
established the attorneys had personal knowledge of the facts stated within the
Motion to Reinstate. First, we note that the attorney that signed the affidavit is the
lead attorney on the case and he should have been aware of the settings and the
calendaring of his cases. And, while that attorney may not have been the attorney
who appeared late on the day of the trial setting in this case, it does not mean he
lacked personal knowledge on the calendaring mistake, nor does it necessarily
deprive this court of jurisdiction. See generally Guest, 195 S.W.3d at 689.
Here, in addition to the Verification from one of the Plaintiff’s attorneys that
fails to include a statement saying the attorney had “personal knowledge” of the facts
regarding the reason the Plaintiff’s attorney failed to appear at 8:00 a.m., co-counsel,
J.N., who is with the same law firm as the attorney who signed the Verification,
explained at the hearing on the Motion to Reinstate that he is the attorney who
12, 2007, no pet.) (mem. op.) (appellant waived complaint about affiant’s lack of
personal knowledge by failing to raise the issue in the trial court).
5
Our sister court has concluded that because a verification is required for a
motion to reinstate to extend the appellate timetable, and because a timely notice of
appeal affects the jurisdiction of the appellate court to hear an appeal, a defect in a
verification to a motion to reinstate is not waived by failing to raise it in the trial
court. See Twist v. McAllen Nat’l Bank, 294 S.W.3d 255, 263 (Tex. App.—Corpus
Christi 2009, pet. dism’d).
15
appeared late, and he provided statements to the trial court on the record at the
hearing about the calendaring mistake and his mistaken belief he did not have to be
at the pre-trial until 8:30 a.m. So, even if the form of the Verification lacked a
statement regarding “personal knowledge,” we conclude under the limited facts of
this case that the Verification together with the supplemented statements made by
the attorney at the hearing on the Motion to Reinstate, established the facts as
verified were based on the personal knowledge of the attorneys.
The hearing on the Motion to Reinstate was held within the thirty-day period
following the dismissal. We note that even if the motion had been completely
unverified, a party may still cure or remedy a lack of a verification by tendering an
affidavit or “other evidence” supporting the motion, provided it is submitted within
the same thirty-day period as required for filing the motion to reinstate. See In re
Valliance Bank, 422 S.W.3d at 727 (“to ‘cure’ an unverified motion to reinstate, an
affidavit or other evidence supporting the motion is acceptable, but it must be filed
within the same thirty-day period as required for filing of the motion to reinstate[]”)
(citing In re Garcia, 94 S.W.3d 832, 833 (Tex. App.—Corpus Christi 2002, orig.
proceeding)); In re Dobbins, 247 S.W.3d 394, 396-97 (Tex. App.—Dallas 2008,
orig. proceeding) (even though a motion to reinstate was unverified and lacked any
supporting affidavit, a special master within the thirty days conducted a hearing
“presumably on the very facts that would be alleged in a motion to reinstate[,]”
16
within the thirty-day period and recommended reinstatement, and therefore
reinstatement was proper).
“Normally, an attorney’s statements must be under oath to be considered
evidence.” See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (citations
omitted). That said, the Texas Supreme Court explained that the requirement that an
attorney’s in-court statement should be made under oath may be waived when no
objection is raised and when the circumstances clearly indicate that the attorney was
tendering evidence on the record based on personal knowledge. See id.; see also
Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (citing Banda, 955 S.W.2d
at 272 (holding that an attorney’s unsworn statements tendered as evidence were
sufficient absent any objection thereto)).
This Court has previously explained in other contexts that
[u]nsworn factual statements and representations by an attorney in open
court can constitute evidence when the opponent to the testimony
waives the oath requirement by failing to object in circumstances that
clearly indicated that the attorney was tendering evidence on the record
based on the attorney’s personal knowledge regarding the contested
issues.
Martin v. Jasper Indep. Sch. Dist., No. 09-17-00195-CV, 2018 Tex. App. LEXIS
4335, at *9 (Tex. App.—Beaumont June 14, 2018, pet. denied) (mem. op.) (citing
Mathis, 166 S.W.3d at 745; In re Estate of Arndt, 187 S.W.3d 84, 87 (Tex. App.—
Beaumont 2005, no pet.)) (unsworn statements from attorney at hearing on plea to
the jurisdiction); see also Lastor v. Jackson, No. 09-18-00146-CV, 2019 Tex. App.
17
LEXIS 1088, at *3, *9 (Tex. App.—Beaumont Feb. 14, 2019, no pet.) (mem. op.)
(attorneys’ unsworn factual statements about matters within their personal
knowledge constituted evidence at trial). We apply these same principles to the
specific facts before us here, where we have a Verified Motion to Reinstate and
where further statements from the attorney with personal knowledge are provided at
a hearing as reflected in the reporter’s record and held within the thirty-day period
after dismissal.
At the hearing on the Motion to Reinstate, the Plaintiff’s attorney, J.N., stated
on the record that his failure to appear was not due to “conscious indifference,” that
he personally appeared at about 8:30 a.m. on September 6th, that the court was not
in session when he arrived, and that he spoke with court staff “a little after 8:30 when
[he] realized the mistake had been made.” He explained there was a calendaring
mistake and he thought he was supposed to be present at 8:30 a.m.
The attorney made his statements on the record, and it is clear from the record
before us that the attorney’s statements at the motion to reinstate hearing were based
on the attorney’s personal knowledge regarding “the contested issues.” See Martin,
2018 Tex. App. LEXIS 4335, at *9; see also In re Estate of Arndt, 187 S.W.3d at 87(concluding that the trial court could rely on unobjected-to representations made by
counsel in open court concerning matters within their personal knowledge). Defense
counsel did not object to J.N.’s statements to the court and thereby waived any
18
objection that the attorney’s statements to the trial court at the hearing were unsworn.
See Banda, 955 S.W.2d at 272; Grand Prairie Indep. Sch. Dist. v. Vaughan, 792
S.W.2d 944, 945 (Tex. 1990). So, we conclude the Verified Motion to Reinstate
extended the timeline for filing a notice of appeal, and Owens timely appealed. See
Young, 553 S.W.3d at 128. Having jurisdiction, we now address whether the trial
court abused its discretion in dismissing the case, and whether the trial court abused
its discretion in failing to reinstate the case.
Dismissal of Case
We review a trial court’s dismissal for want of prosecution under an abuse of
discretion standard. Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467,
468 (Tex. 1995); Vandergriff v. Kinsey, No. 09-20-00295-CV, 2022 Tex. App.
LEXIS 7953, at *3 (Tex. App.—Beaumont Oct. 27, 2022, no pet.) (mem. op.). Here,
the Plaintiff and his attorneys had notice of the trial setting and the time to be in
court for pretrial matters, and the Appellant does not complain about the adequacy
of the notice and whether it also notified the Plaintiff of the possibility of dismissal
under Rule 165a for a failure to appear. See Pollefeyt v. Tex. Health Res., No. 02-
19-00260-CV, 2020 Tex. App. LEXIS 3200, at *4 (Tex. App.—Fort Worth Apr. 16,
2020, no pet.) (mem. op.). On this record, we conclude the trial court did not abuse
its discretion by dismissing the case for want of prosecution due to the failure of the
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Plaintiff or his attorney to appear at the pre-trial hearing on September 6, 2022. See
Tex. R. Civ. P. 165a(1); Alexander, 134 S.W.3d at 851-52.
Denial of Motion to Reinstate
Next, we must decide whether the trial court abused its discretion in denying
the motion to reinstate the case. See Smith, 913 S.W.2d at 467; Vandergriff, 2022
Tex. App. LEXIS 7953, at *3 (appellate review of a trial court’s ruling on a motion
to reinstate is conducted under an abuse of discretion standard). “When a case is
dismissed for want of prosecution, ‘[t]he court shall reinstate the case upon finding
after a hearing that the failure of the party or his attorney [to appear] 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.’” Smith, 913
S.W.2d at 468 (quoting Tex. R. Civ. P. 165a(3)). This standard is essentially the
same as that for setting aside a default judgment. Id. (citing Craddock v. Sunshine
Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939)). A failure to appear is not intentional
or due to conscious indifference under Rule 165a merely because it is deliberate; it
must also be without adequate justification. Id. Proof of such justification—accident,
mistake, or other reasonable explanation—will negate the intent or conscious
indifference for which reinstatement can be denied. Id. (citing Bank One, Tex., N.A.
v. Moody, 830 S.W.2d 81, 84 (Tex. 1992)). Conscious indifference means more than
mere negligence. Id. (citing Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966)). When
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a verified motion to reinstate includes a reasonable explanation for the failure to
appear at trial or a dismissal hearing and the record contains no controverting
evidence that the failure was intentional or the result of conscious indifference, the
trial court abuses its discretion by denying the motion. Pollefeyt, 2020 Tex. App.
LEXIS 3200, at **10-11; Brooks-PHS Heirs, LLC v. Bowerman, No. 05-18-00356-
CV, 2019 Tex. App. LEXIS 2112, at **10-11 (Tex. App.—Dallas Mar. 15, 2019,
pet. denied) (op. on reh’g) (citations omitted) (“A trial court abuses its discretion in
denying a motion to reinstate where a verified motion to reinstate reasonably
explains the failure to appear [], and the record contains no evidence that the failure
was intentional or the result of conscious indifference.”); S. Pioneer Prop. & Cas.
Ins. Co. v. Wilson, No. 01-17-00444-CV, 2018 Tex. App. LEXIS 5264, at *6 (Tex.
App.—Houston [1st Dist.] July 12, 2018, no pet.) (mem. op.) (“A trial court abuses
its discretion in denying reinstatement following a dismissal for want of prosecution
when an attorney’s explanation for a failure to appear is reasonable.”).
The record indicates that the Plaintiff’s attorney failed to appear at the
scheduled time for the pretrial because the Plaintiff’s attorney mistakenly believed
he was supposed to be there at 8:30 a.m. because of a calendaring mistake. The only
evidence before the trial court showed the failure to appear was sufficiently
“otherwise reasonably explained[]” by the attorney as a calendaring error or mistake
within Rule 165a(3). See Tex. R. Civ. P. 165a(3); see also McPeters v. Montgomery
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Cty., No. 09-09-00451-CV, 2010 Tex. App. LEXIS 4132, at **8-9 (Tex. App.—
Beaumont May 27, 2010, pet. denied) (mem. op.). While the trial court might have
considered sanctions against J.N. for appearing late, 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, 918-19 (Tex. 1991) (finding that trial
court’s dismissal with prejudice was unjust where party failed to appear for
deposition and the record did not make it clear whether the failure to appear was the
party’s fault or his counsel’s).
The record before us provides nothing to indicate that Owens was aware of or
responsible for his attorney’s calendaring mistake. The record contains no
controverting evidence from which the trial court could conclude that the failure to
appear at 8:00 a.m. was intentional or the result of conscious indifference.
Accordingly, we conclude that the trial court abused its discretion by denying the
motion. See Smith, 913 S.W.2d at 468 (citing Tex. R. Civ. P. 165a(3)); Dalmex, Ltd.
v. Apparel Enterprises, Inc., 455 S.W.3d 241, 244 (Tex. App.—El Paso 2015, no
pet.) (uncontroverted evidence that the hearing was not placed on attorney’s calendar
by mistake was sufficient to show that failure to appear was not intentional and
refusal to reinstate was abuse of discretion) (citing Dir., State Emps. Workers’ Comp.
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Div. v. Evans, 889 SW.2d 266, 268-69 (Tex. 1994)). The trial court’s action in
denying the Motion to Reinstate cannot be affirmed on this record.
We sustain Appellant’s issue, and we reverse the order of the trial court
denying the Motion to Reinstate and remand the case to the trial court with
instructions to reinstate the case.
REVERSED AND REMANDED.
_________________________
LEANNE JOHNSON
Justice
Submitted on April 10, 2023
Opinion Delivered June 1, 2023
Before Horton, Johnson & Wright, JJ.
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