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Alexis Rivera v. Todd Thurkettle D/B/A Lone Star Brick & Stone ( 2024 )


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  • Reversed and Remanded and Memorandum Opinion filed April 23, 2024.
    In The
    Fourteenth Court of Appeals
    NO. 14-23-00059-CV
    ALEXIS RIVERA, Appellant
    V.
    TODD THURKETTLE D/B/A LONE STAR BRICK & STONE, Appellee
    On Appeal from the County Civil Court at Law No. 4
    Harris County, Texas
    Trial Court Cause No. 1168857
    MEMORANDUM OPINION
    Appellant Alexis Rivera (“Rivera”) appeals the trial court’s order dismissing
    for want of prosecution his lawsuit against appellee Todd Thurkettle d/b/a Lone
    Star Brick & Stone (“Lone Star”). In one issue, Rivera argues the trial court abused
    its discretion when it denied his motion to reinstate the lawsuit. We reverse and
    remand for further proceedings.
    I.    BACKGROUND
    On May 5, 2021, Rivera filed a lawsuit against Lone Star seeking to recover
    for services Rivera provided as a subcontractor for Lone Star in the construction of
    new homes. The trial court held a status conference on September 30, 2022, and
    Rivera’s counsel failed to appear. The trial court signed an order of dismissal for
    want of prosecution that same day and canceled trial scheduled for October 3,
    2022.
    Rivera filed a verified motion to reinstate in which Rivera’s counsel stated
    that the case
    was dismissed for want of prosecution on September 30, 2022 as a
    result of [appellant’s] failure to appear at trial. [Rivera’s] failure to
    appear was neither intentional nor the result of conscious indifference.
    There was an error in the docketing of the trial date. Therefore,
    movant did not appear on the scheduled trial date and pretrial
    conference.
    The trial court denied Rivera’s motion to reinstate, and this appeal followed.
    II.   DISCUSSION
    In his sole issue, Rivera argues the trial court erred when it denied his
    motion to reinstate.
    A.      APPLICABLE LAW & STANDARD OF REVIEW
    A trial court may dismiss a case for want of prosecution under either Rule
    165a of the Texas Rules of Civil Procedure or the trial court’s inherent common-
    law power to dismiss a case when a plaintiff fails to prosecute it with due
    diligence. In re Conner, 
    458 S.W.3d 532
    , 534 (Tex. 2015) (orig. proceeding) (per
    curiam); Villarreal v. San Antonio Truck & Equip., 
    994 S.W.2d 628
    , 630 (Tex.
    1999); see also Tex. R. Civ. P. 165a. Rule 165a provides two grounds for
    dismissal. A trial court may dismiss a case under Rule 165a(1) on the “failure of
    2
    any party seeking affirmative relief to appear for any hearing or trial of which the
    party had notice,” or under Rule 165a(2) when a case is “not disposed of within the
    time standards promulgated by the Supreme Court under its Administrative Rules.”
    Tex. R. Civ. P. 165a; Villarreal, 994 S.W.2d at 630.
    A motion to reinstate is the only remedy available to a party whose case has
    been dismissed for want of prosecution. Id. at *2. We review a trial court’s denial
    of a motion to reinstate for an abuse of discretion. Burlington Ins. V. Just Indus.
    Servs., LLC, No. 01-22-00207-CV, 
    2023 WL 4003298
    , at *3 (Tex. App.—Houston
    [1st Dist.] June 15, 2023, no pet.) (mem. op.). “A trial court abuses its discretion in
    denying a motion for reinstatement when an attorney’s explanation for the failure
    to appear is reasonable.” Mack v. Ret. Hous. Found., 
    627 S.W.3d 391
    , 394 (Tex.
    App.—Houston [14th Dist.] 2021, no pet.).
    B.    ANALYSIS
    Here, the trial court dismissed Rivera’s lawsuit for lack of prosecution for
    his failure to appear and prosecute the case at the status conference scheduled
    before trial. Rivera’s verified motion provides a reasonable explanation of his
    counsel’s absence: that counsel did not appear at the pretrial conference and trial
    date because the trial date was mis-calendared.        Because plaintiff’s counsel’s
    failure to appear was not intentional or the result of conscious indifference, but was
    due to mistake, we conclude the trial court abused its discretion when it denied
    Rivera’s motion to reinstate. See id.; see also, e.g., Quita, Inc. v. Haney, 
    810 S.W.2d 469
    , 470 (Tex. App.—Eastland 1991, no writ) (reversing dismissal where
    appellant’s counsel failed to appear at trial and was attending trial elsewhere
    because of confusion or mistake regarding the date the case would actually
    commence trial).
    We sustain Rivera’s sole issue.
    3
    III.   CONCLUSION
    We reverse the trial court’s order and remand for further proceedings.
    /s/   Margaret “Meg” Poissant
    Justice
    Panel consists of Justices Hassan, Poissant, and Wilson.
    4
    

Document Info

Docket Number: 14-23-00059-CV

Filed Date: 4/23/2024

Precedential Status: Precedential

Modified Date: 4/28/2024