Michael Richardson v. Melissa S. Mejia, Maria Cortez, and Hector Mejia-Cervantes ( 2023 )

Reversed and Remanded and Opinion Filed December 15, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01332-CV
MICHAEL RICHARDSON, Appellant
V.
MELISSA S. MEJIA, MARIA CORTEZ, AND HECTOR MEJIA-
CERVANTES, Appellee
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-21-03920-A
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Breedlove
Opinion by Justice Breedlove
The trial court dismissed the underlying case for want of prosecution and
denied appellant Michael Richardson’s motion to reinstate. Richardson appeals,
complaining that the trial court abused its discretion in failing to reinstate the case.
Richardson’s verified motion to reinstate provides a reasonable explanation for his
failure to appear at the dismissal hearing which is not contradicted in the record;
therefore, the trial court abused its discretion in denying the motion to reinstate. We
reverse the trial court’s judgment and remand the case to the trial court.
I. BACKGROUND
On September 14, 2021, Richardson filed suit against appellee Melissa S.
Mejia who was driving a vehicle owned by appellees Maria Cortez and Hector
Mejia-Cervantes that struck Richardson’s vehicle. Richardson requested service of
citation and the petition on appellees. Cortez was personally served, but attempts
to serve Mejia and Mejia-Cervantes were unsuccessful. Richardson requested
alternative service, which the trial court authorized. Mejia and Mejia-Cervantes
were served through substitute service. None of the appellees filed answers, and on
January 13, 2022, Richardson filed a motion for default judgment.
The trial court sent a notice of deficiency on March 9, 2022, and Richardson
filed amended certificates of last known address and also filed amended affidavits
of service for each of the three appellees. After holding a dismissal hearing on
August 26, 2022, at which Richardson did not appear, the trial court dismissed the
case on August 30, 2022.
On September 29, 2022, Richardson filed a verified motion to reinstate the
case, asserting that there had been a miscommunication between Richardson’s
attorney and the attorney covering for Richardson’s attorney while she was out on
maternity leave, and that this miscommunication had caused Richardson’s lack of
appearance at the August 26, 2022 hearing. On October 31, 2022, the trial court
held a hearing on Richardson’s motion. The trial court denied Richardson’s motion,
and the case was not reinstated. Richardson appealed the trial court’s denial on
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December 13, 2022. In two issues, Richardson complains that the trial court erred
in refusing to reinstate the case.1 Appellees did not file a response.
II. DISCUSSION
A trial court’s denial of a motion to reinstate after a dismissal for want of
prosecution is reviewed under an abuse of discretion standard. Smith v. Babcock &
Wilcox Constr. Co., Inc., 913 S.W.2d 467, 467 (Tex. 1995). When a case is
dismissed for want of prosecution, the trial court should 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. Id., 913 S.W.2d
at 468; see also TEX. R. CIV. P. 165a(3).
A failure to appear is not intentional or due to conscious indifference within
the meaning of Rule 165a(3) merely because it is deliberate; it must also be without
adequate justification. Id. Proof of such justification such as accident, mistake, or
other reasonable explanation negates the intent or conscious indifference for which
reinstatement can be denied. Id. Moreover, conscious indifference means more than
negligence. Id.
1
Richardson’s first issue deals with the trial court’s focus on whether it had jurisdiction to reinstate the
case. Our independent review of the record demonstrates no apparent jurisdictional issues that would
prevent the trial court from granting the motion to reinstate. Therefore, we focus our analysis on whether
Richardson provided sufficient evidence that his failure 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. See Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995).
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When a verified motion to reinstate reasonably explains the failure to appear
at a dismissal hearing and the record contains no controverting evidence that the
failure was intentional or the result of conscious indifference, a trial court abuses its
discretion by denying the motion. Tunchez v. Houk, No. 05-20-00330-CV, 2021
WL 5822839 at *4 (Tex. App.—Dallas, Dec. 8, 2021, no pet.) (mem. op.) (internal
citations omitted). If the explanation in the verified motion is adequate to show
mistake or accident, the movant need not present evidence supporting it at the oral
reinstatement hearing. Id.; Brooks-PHS Heirs, LLC v. Bowerman, No. 05-18-00356-
CV, 2019 WL 1219323, at *4 (Tex. App.—Dallas, Mar. 15, 2019, pet. denied) (op.
on reh’g) (citing Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266,
268 (Tex. 1994)). Moreover, some excuse–not necessarily a good one–will suffice.
Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 306, 310 (Tex. 2012).
In the present case, Richardson filed a verified motion to reinstate. In that
motion, Richardson explains that his counsel, Layla A. Benjamin, had been on
maternity leave the week before and was due to be out of town at a conference the
week of the hearing. Benjamin was under the mistaken impression that the attorney
who had been covering her cases while she was out on maternity leave would be
covering the dismissal hearing, but due to a miscommunication, that did not happen.
Richardson provided a reasonable explanation in the verified motion that is not
contradicted by the record. Therefore, the trial court abused its discretion by not
granting the motion to reinstate. See Smith, 913 S.W.2d at 468.
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III. CONCLUSION
We reverse the trial court’s judgment and remand the case for further
proceedings consistent with this opinion.
/Maricela Breedlove/
221332f.p05 MARICELA BREEDLOVE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL RICHARDSON, On Appeal from the County Court at
Appellant Law No. 1, Dallas County, Texas
Trial Court Cause No. CC-21-03920-
No. 05-22-01332-CV V. A.
Opinion delivered by Justice
MELISSA S. MEJIA, MARIA Breedlove. Justices Partida-Kipness
CORTEZ, AND HECTOR MEJIA- and Reichek participating.
CERVANTES, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 15th day of December 2023.
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