Melanie Lynn Bass Lindsey, as Independent of the Estate of Betty Schwettmann v. Roger E. Haynes, as Independent of the Estate of Earl Ray Schwettman

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00484-CV
Melanie Lynn Bass LINDSEY, as Independent Executrix of the Estate of Betty Jeannette
Schwettmann,
Appellant
v.
Roger E. HAYNES, as Independent Executor of the Estate of Earl Ray Schwettmann,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 15124
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: December 28, 2022
REVERSED AND REMANDED
Appellant Melanie Lindsey, as the independent executrix of the estate of Betty Jeanette
Schwettmann, appeals the trial court’s order dismissing her suit for want of prosecution and the
trial court’s order denying her verified motion to reinstate the case. We reverse the trial court’s
order denying the motion to reinstate and remand the cause with instructions to reinstate the case.
BACKGROUND
On September 20, 2017, Betty Schwettmann filed a trespass to try title, quiet title, and
declaratory judgment suit against Roger E. Haynes in his capacity as independent executor of the
04-21-00484-CV
estate of Earl Ray Schwettmann. In July 2018, Betty Schwettmann died and the executrix of her
estate, Melanie Lindsey, continued to pursue the litigation on behalf of Betty Schwettmann’s
estate. See TEX. R. CIV. P. 150 (“Where the cause of action is one which survives, no suit shall
abate because of the death of any party thereto before the verdict or decision of the court is
rendered, but such suit may proceed to judgment as hereinafter provided.”); TEX. R. CIV. P. 151
(“If the plaintiff dies, the heirs, or the administrator or executor of such decedent may appear and
upon suggestion of such death being entered of record in open court, may be made plaintiff, and
the suit shall proceed in his or their name.”). Notwithstanding the suggestion of death filed by
Lindsey, the case proceeded with Betty Schwettmann as the named plaintiff. 1
The parties engaged in litigation until the trial court entered an agreed order setting the jury
trial on April 13, 2020. The agreed order setting the trial date was signed on October 2, 2019,
before the COVID-19 pandemic began.
On March 17, 2020, the trial court coordinator (“the coordinator”) informed the parties in
an email that the trial court was cancelling all non-essential hearings “until at least after April 1st
[and] perhaps later.” The coordinator asked whether the summary judgment hearing set for
March 25, 2020 was considered “essential” or “emergent.” The parties agreed to cancel the
summary judgment hearing and Haynes’s counsel suggested the parties also postpone the pretrial
hearing and the April 13, 2020 trial setting. Lindsey’s counsel replied, “while I would like to see
this case resolved sooner rather than later, I do believe it is prudent to put off the pretrial and trial
settings in this case.” The coordinator stated she would cancel the summary judgment hearing,
pretrial hearing, and trial setting upon agreement of counselors and further stated “[w]e can work
on re-set dates later.” After conferring with Lindsey’s counsel, Haynes’s counsel emailed the
1
The record before us does not contain the suggestion of death. However, other pleadings in the record reference the
suggestion of death and Haynes concedes a suggestion of death was filed in the case.
-2-
04-21-00484-CV
coordinator that “[a]ll counsel have agreed to pass on the 3/25 MSJ hearing, the 4/6 pretrial setting,
and the 4/13 trial setting. We will coordinate with you for reset dates once we have more clarity.”
On March 31, 2020, the trial court entered an order cancelling the summary judgment hearing, the
pretrial hearing, and the trial setting.
The record reflects that the parties renewed settlement negotiations in January 2021 and
came to a tentative agreement in May 2021. However, a written settlement agreement was never
drafted.
On June 1, 2021, the trial court sua sponte issued a notice of intent to dismiss the case for
want of prosecution based on Rule 165a of the Texas Rules of Civil Procedure and the Local Rules
of Practice. Lindsey failed to appear at the dismissal hearing and the trial court entered an order
dismissing the case for want of prosecution on August 6, 2021. Specifically, the trial court’s
dismissal order stated notice was sent to the parties and it “appeared to the Court at the dismissal
docket call of August 6, 2021, that since good cause was not shown for the case to be maintained
on the docket that this cause should be Dismissed for Want of Prosecution.”
On September 3, 2021, Lindsey filed a verified motion to reinstate the case averring that
counsel’s failure to appear at the dismissal hearing “was the result of a calendaring error but was
neither intentional nor the result of conscious indifference.” Lindsey subsequently filed a verified
brief in support of the motion to reinstate (“the reinstatement brief”) reasserting in more detail that
her failure to appear was due to a calendaring error. 2 The reinstatement brief also stated the parties
had renewed negotiations earlier that year, and the case was ready for trial, but that jury trials had
been postponed due to the COVID-19 pandemic. Finally, the reinstatement brief stated Lindsey’s
counsel was waiting on the trial court to inform him that jury trials were resuming. Haynes filed
2
The motion to reinstate and the reinstatement brief were both verified by Lindsey’s counsel.
-3-
04-21-00484-CV
a response to the motion to reinstate and a response to the reinstatement brief opposing
reinstatement.
It appears the trial court never set a hearing on Lindsey’s motion to reinstate. On
October 14, 2021, the trial court denied Lindsey’s motion to reinstate the case. Lindsey appeals.
MOTION TO CORRECT PARTY NAME
As a preliminary matter, we must consider Lindsey’s Notice of Correction and Motion to
Substitute pending in this appeal. As mentioned above, the case proceeded with Betty
Schwettmann as the named plaintiff even though Lindsey, in her capacity as executor of
Schwettmann’s estate, was supposed to be substituted as the plaintiff in the case upon the
suggestion of Betty Schwettmann’s death. Betty Schwettmann is the plaintiff listed in the style of
the trial court’s dismissal order and the notice of appeal states that Betty Schwettmann is appealing
the trial court’s dismissal order. Lindsey’s motion seeks to amend the notice of appeal and
substitute “Melanie Lynn Bass Lindsey, Independent Executrix of the Estate of Betty Jeannette
Schwettmann” as the named appellant in this appeal. See TEX. R. APP. P. 25.1 (g) (“After the
appellant’s brief is filed, the notice [of appeal] may be amended only on leave of the appellate
court and on such terms as the court may prescribe.”).
In his response opposing the motion, Haynes contends the appeal should be dismissed
because Betty Schwettmann is no longer a party to the case and the correct party, Lindsey, in her
capacity as executrix of Schwettmann’s estate, did not file a notice of appeal. Haynes urges us to
deny the motion, arguing that any amendment to the notice of appeal at this late juncture violates
the requirement that any party seeking to alter a judgment must file a timely notice of appeal. See
TEX. R. APP. P. 25.1(c).
-4-
04-21-00484-CV
Lindsey argues Haynes was aware that Lindsey has been prosecuting this case on behalf of
Schwettmann’s estate since the suggestion of death was filed in the trial court, and the motion to
correct the appellant’s name does not unduly surprise or prejudice Haynes.
In an analogous case, the Texas Supreme Court held the court of appeals erred by denying
a motion for leave to file an amended notice of appeal. See Warwick Towers Council of Co-
Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 838–39
(Tex. 2008) (holding the insurer made a bona fide attempt to appeal by filing a notice of appeal in
the name of its insured and the court of appeals erred by not allowing it to amend its notice of
appeal to name itself); see also Rice v. Lewis Energy Grp., L.P., No. 04-19-00234-CV, 2020 WL
6293454, at *3–4 (Tex. App.—San Antonio Oct. 28, 2020, no pet.) (mem. op.) (granting appellant
leave to amend the notice of appeal to add the appellants’ attorneys as named appellants in the
appeal). “Our consistent policy has been to apply rules of procedure liberally to reach the merits
of the appeal whenever possible.” Warwick Towers, 244 S.W.3d at 839. “If the appellant timely
files a document in a bona fide attempt to invoke the appellate court’s jurisdiction, the court of
appeals, on appellant’s motion, must allow the appellant an opportunity to amend or refile the
instrument required by law or our [r]ules to perfect the appeal.” Id. (internal quotation marks and
alterations omitted).
Here, it was Lindsey, in her capacity as the executrix of Betty Schwettmann’s estate, who
filed the document in a bona fide attempt to invoke the appellate court’s jurisdiction even though
the notice of appeal names “Betty Schwettmann” as the appellant. Consistent with our obligation
to construe the appellate rules in a manner that allows us to reach the merits of an appeal whenever
reasonably possible, we grant Lindsey’s motion to amend the notice of appeal and correct the
notice of appeal to reflect “Melanie Lynn Bass Lindsey, Independent Executrix of the Estate of
Betty Jeannette Schwettmann” as the appellant in this appeal.
-5-
04-21-00484-CV
STANDARD OF REVIEW
“We review an order denying a motion to reinstate under an abuse of discretion standard.”
Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.). “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 regard to factual matters, an abuse of discretion occurs if
the record establishes that the ‘trial court could reasonably have reached only one decision.’”
Dalmex, Ltd. v. Apparel Enters., Inc., 455 S.W.3d 241, 243 (Tex. App.—El. Paso 2015, no pet.)
(quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).
DISMISSAL FOR WANT OF PROSECUTION
In her first issue, Lindsey argues the trial court erred when it denied her timely-filed,
verified motion to reinstate. Lindsey asserts the motion to reinstate conclusively established that
her counsel’s failure to appear to the dismissal hearing was due to a calendaring mistake rather
than conscious indifference.
Haynes argues Lindsey’s failure to appear at the dismissal hearing was one of many delays
caused by Lindsey and is indicative of her conscious indifference to prosecute the case. Haynes
also argues the mandate under rule 165a(3) of the Texas Rules of Civil Procedure—that the court
shall reinstate the case upon a finding that the failure was not intentional or the result of conscious
indifference—does not apply in this case because the trial court dismissed the case under its
inherent power rather than its rule 165a authority. See TEX. R CIV. P. 165a(3). However, this court
has held that rule 165a(3)’s reinstatement “standard applies to all dismissals for want of
prosecution[,]” whether rule-based or inherent power-based. See Cappetta, 222 S.W.3d at 165–
67.
Moreover, it is clear the trial court dismissed the case under rule 165a(1) for failure to
appear. Rule 165a(1) states “[a] case may be dismissed for want of prosecution on failure of any
-6-
04-21-00484-CV
party seeking affirmative relief to appear for any hearing or trial of which the party had notice.”
See TEX. R. CIV. P. 165a(1). The rule further states: “At the dismissal hearing, the court shall
dismiss for want of prosecution unless there is good cause for the case to be maintained on the
docket.” Id. Here, the trial court’s notice of the dismissal hearing is titled “Notice of Hearing on
Court’s Intention to Dismiss Case for Want of Prosecution—TRC 165a” and states in the notice
that “the court shall dismiss this case for want of prosecution unless there is good cause shown for
the case to be maintained on the docket.” The trial court’s dismissal order cites the August 6
dismissal hearing that Lindsey failed to appear at and repeats the “good cause” standard set forth
in rule 165a(1), stating “that since good cause was not shown [at the dismissal hearing] for the
case to be maintained on the docket that this cause should be Dismissed for Want of Prosecution.”
Thus, it is Lindsey’s failure to appear at the dismissal hearing that must be explained in her motion
to reinstate the case. See Kirkpatrick v. Silva, No. 04-17-00146-CV, 2018 WL 521628, at *2 (Tex.
App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.) (“The ‘failure’ that must be explained is
the one that led to dismissal.”).
“Reinstatement after a dismissal for want of prosecution is governed by Rule of Civil
Procedure 165a(3), which requires a motion to reinstate to be verified; to set forth the grounds for
reinstatement; and, in most circumstances, to be filed within [thirty] days of the order of dismissal.”
See E&M Plumbing Ltd. v. W. Hous. Winnelson Co., No. 01-17-00601-CV, 2018 WL 3542916, at
*2 (Tex. App.—Houston [1st Dist.] July 24, 2018, no pet.) (mem. op.). If a motion to reinstate
complying with rule 165a(3) is filed, “the court shall reinstate the case upon finding after a hearing
that the failure of the party or [her] 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 v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995)
(alterations omitted) (quoting TEX. R. CIV. P. 165a(3)). “The operative standard is essentially the
-7-
04-21-00484-CV
same as that for setting aside a default judgment.” Smith, 913 S.W.2d at 468. “A failure to appear
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.” Id. “Proof of such justification—
accident, mistake, or other reasonable explanation—negates the intent or conscious indifference
for which reinstatement can be denied.” Id. “Also, conscious indifference means more than mere
negligence.” Id.
“A trial court abuses its discretion in denying reinstatement following a dismissal for want
of prosecution when an attorney’s explanation for failure to appear is reasonable.” Dalmex, Ltd.,
455 S.W.3d at 244 (citing Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex.
App.—San Antonio 1996, writ denied)). A calendaring error is a sufficient “accident or mistake”
that negates intent or conscious indifference under rule 165a(3). See E&M Plumbing, 2018 WL
3542916, at *3 (holding counsel’s verified explanation that he inadvertently failed to record the
date of the dismissal hearing in his calendar “sufficiently establishes ‘accident or mistake’ under
[r]ule 165a(3)”).
Here, Lindsey filed a motion to reinstate that stated: “[Lindsey’s] failure to appear for the
August 6, 2021 Dismissal Hearing was the result of a calendaring error but was neither intentional
nor the result of conscious indifference.” The motion was verified by Lindsey’s counsel and was
timely filed. Lindsey also filed a verified brief in support of her motion to reinstate that states her
counsel “does not know when [the notice of the dismissal hearing] was received and has no
recollection of seeing it until after the case was dismissed.” 3 The brief further states Lindsey’s
3
Haynes argues we should not consider Lindsey’s brief in support of her motion to reinstate because it was filed more
than thirty days after the trial court dismissed the case. However, “[a] proper amended motion to reinstate filed within
the period the court has plenary power could be found sufficient for reinstatement of a dismissed case.” Mandujano
v. Oliva, 755 S.W.2d 512, 514 (Tex. App.—San Antonio 1988, writ denied). “If a motion to reinstate is timely filed
by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the
case until [thirty] days after all such timely filed motions are overruled, either by a written and signed order or by
-8-
04-21-00484-CV
counsel “does not know why the setting was not properly calendared but just knows it did not
make it on his calendar.” There was not a hearing on the motion to reinstate and Haynes did not
provide the court with any other evidence negating Lindsey’s excuse for counsel’s failure to
appear. Accordingly, the trial court could have only reached one result: Lindsey’s counsel’s failure
to appear was due to a calendaring mistake and not intentional or due to conscious indifference.
See Dalmex, Ltd., 455 S.W.3d at 243 (holding an abuse of discretion occurs when the record shows
“the trial court could reasonably have reached only one decision” and the trial court did not reach
that decision). Because Lindsey’s counsel provided the trial court with a reasonable excuse for
her counsel’s failure to appear, the trial court abused its discretion when it denied Lindsey’s motion
to reinstate.
Even if we were to conclude the trial court dismissed the case under its inherent power or
for failure to dispose of the case within the time standards promulgated by the Texas Supreme
Court under rule 165a(2) of the Texas Rules of Civil Procedure, the disposition would be
unchanged. To avoid dismissal for failure to timely prosecute the case, Lindsey was required to
demonstrate to the trial court that she had exercised reasonable diligence in prosecuting her suit.
See Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729 (Tex. App.—San Antonio 2012,
pet. denied). “To decide the diligence issue, trial courts consider the entire history of the case
including whether the plaintiff requested a trial setting, the amount of activity in the case, the
passage of time, and the plaintiff’s excuses for the delay.” Id.operation of law, whichever occurs first.” See TEX. R. CIV. P. 165a(3) (“In the event for any reason a motion for
reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, . . . the
motion shall be deemed overruled by operation of law.”). Here, the trial court dismissed the case on August 6, 2021.
Lindsey filed the motion to reinstate on September 3, 2021, and the reinstatement brief on October 7, 2021. The trial
court signed the order denying reinstatement on October 14, 2021. Thus, the trial court had plenary power until thirty
days after its October 14, 2021 order denying reinstatement. Because the trial court had plenary power when Lindsey
filed the reinstatement brief, the trial court could properly consider the reinstatement brief. Moreover, in its order
denying reinstatement, the trial court expressly states it considered “Plaintiff’s Motion to Reinstate, the brief in
support, and the responses filed by Defendant” in reaching its decision.
-9-
04-21-00484-CV
Although the case was initiated in September 2017, Betty Schwettmann died in July 2018.
This required Lindsey to initiate probate proceedings before she could have the authority to step
in and prosecute this case. Notwithstanding the inherent delays caused by probate proceedings,
Lindsey filed a suggestion of death on February 4, 2019, and the case was ready to be set for trial
in October 2019. The trial court set the case for trial in April 2020 and dismissed the case
seventeen months later in August 2021.
However, this passage of time is not without excuse. By the time of the trial setting in
April 2020, “the COVID-19 pandemic had disrupted every facet of life in this state.” Skelton v.
Gray, No. 04-22-00007-CV, 2022 WL 16625851, at *3 (Tex. App.—San Antonio Nov. 2, 2022,
no pet.) (mem. op.). “The Texas Supreme Court had issued emergency orders prohibiting in-
person proceedings and jury trials, with certain exceptions, due to safety concerns associated with
the pandemic.” Id.; see also, e.g., Eighteenth Emergency Order Regarding COVID-19 State of
Disaster, 609 S.W.3d 122, 123 (Tex. June 29, 2020). Although the Texas Supreme Court began
to lift many restrictions on jury trials in January 2021, Lindsey’s counsel averred that he was
waiting for an announcement that the court was resuming jury trials.4 See Thirty-Third Emergency
Order Regarding COVID-19 State of Disaster, 629 S.W.3d 179, 180–81 (Tex. Jan. 14, 2021).
Lindsey’s brief in support of her motion to reinstate conclusively establishes that the case was set
for trial in April 2020, but the trial was cancelled due to the COVID-19 pandemic. Email exhibits
attached to the brief show that the coordinator stated, “we could work on re-set dates later” and
Haynes’s counsel responded “[w]e will coordinate with you for reset dates once we have more
clarity.”
4
While it is the plaintiff’s burden to obtain a trial setting, we note that, under the facts of this case and the
representations made by the coordinator, Lindsey’s counsel’s explanation—that he was waiting for an announcement
from the trial court that it was resuming trials during the pandemic—is reasonable.
- 10 -
04-21-00484-CV
Even though Lindsey was waiting for an announcement that the trial court was resuming
jury trials during the pandemic, she still made progress on the case. Lindsey’s reinstatement brief
states, and Haynes does not dispute on appeal, that the parties renewed settlement negotiations
from January 2021 to May 2021. Again, there was not a hearing on the motion to reinstate and
Haynes did not provide any evidence disputing Lindsey’s verified motion to reinstate or her
verified brief in support of her motion to reinstate.
Here, Lindsey explained how COVID-19 affected the case and postponed her ability to try
the case. Considering the massive disruption to every facet of life caused by the COVID-19
pandemic, acknowledging that Lindsey had obtained a trial setting prior to the pandemic, and
recognizing that Lindsey pursued settlement negotiations while the trial setting was postponed, we
conclude Lindsey’s excuse for failure to obtain a trial setting or otherwise dispose of the case
within the time standards promulgated by the Supreme Court was reasonably explained. Because
Lindsey’s purported failure to timely prosecute the case was not intentional or due to conscious
indifference, the trial court abused its discretion when it denied Lindsey’s motion to reinstate the
case. See TEX. R. CIV. P. 165a(3) (“The court shall reinstate the case upon finding after a hearing
that the failure of the party or his attorney 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.”).
CONCLUSION
We grant Lindsey’s motion to amend the notice of appeal and correct the notice of appeal
to reflect “Melanie Lynn Bass Lindsey, Independent Executrix of the Estate of Betty Jeannette
Schwettmann” as the appellant in this appeal. We reverse the trial court’s order denying Lindsey’s
- 11 -
04-21-00484-CV
motion to reinstate the case and remand the cause to the trial court to reinstate Lindsey’s case on
the trial court’s docket.
Irene Rios, Justice
- 12 -