Summary
In Asplundh, the Dallas court of appeals held that the plaintiff's counsel's failure to appear for trial was not the result of conscious indifference when the parties had participated in mediation shortly before trial and had entered into a rule 11 agreement in which they agreed to continue the mediation for sixty days, which was beyond the trial setting.
Summary of this case from Kirkpatrick v. SilvaOpinion
No. 05-02-00694-CV.
Opinion Filed January 29, 2003.
Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. CC-01-05582-D.
REVERSE and REMAND.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
MEMORANDUM OPINION.
We must decide whether the trial court abused its discretion in refusing to reinstate this case which was dismissed after appellant Asplundh Tree Expert Co. failed to appear at trial. Because we conclude appellant's failure to appear was not intentional or the result of conscious indifference, we sustain the sole point of error. Accordingly, we reverse the trial court's order of dismissal and remand with instructions to reinstate the case.
Appellant sued the City of Garland on a sworn account. The City denied the claim and also asserted various counterclaims against appellant. The case was set for trial on January 7, 2002. On December 12, the parties attended a mediation and entered a rule 11 agreement agreeing to continue mediation for sixty days (which was beyond the trial setting). The parties were to reconvene before March 1, 2002 to continue the mediation. On the day of trial, appellant did not appear. That same day, the City nonsuited its counterclaims and the trial court signed an order dismissing the cause without prejudice.
Appellant filed a verified motion to reinstate the case, asserting that its failure to appear at trial was not intentional or the result of conscious indifference. At the hearing on the motion, appellant's attorney testified the mediator was to contact the court to determine how the court wanted to handle the conflict between the trial setting and mediation. The mediator subsequently faxed a letter saying appellant needed to file a motion for continuance. The fax, however, "fell through the cracks" because of staffing problems, and the attorney did not see it and thus did not file the motion. Appellant's attorney further explained that courts allow cases to be reset without a formal motion. On cross-examination, the attorney acknowledged that he knew the trial was set for January 7. The trial court denied appellant's motion to reinstate. Appellant challenges that ruling on appeal.
The reinstatement provision of Texas Rule of Civil Procedure 165a governs cases dismissed because of failure of a party to appear for trial. See Goff v. Branch, 821 S.W.2d 732, 733 (Tex.App.-San Antonio 1991, writ denied). Under this rule, "[t]he 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." Tex.R.Civ.P. 165a.3. The operative standard is essentially the same as that for setting aside a default judgment. Smith v. Babcock Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). 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. We review a trial court decision on reinstatement under an abuse of discretion standard. Id.
In this case, the attorney mistakenly believed the mediator had taken care of the conflict between the trial date and continued mediation. While the attorney's failure either to ensure that the trial had been rescheduled or to file a motion for continuance might be negligence or evidence that he was not as conscientious as he should have been, his inaction does not amount to conscious indifference. Accordingly, we conclude the trial court erred in refusing to reinstate the case. We sustain the sole point of error.
We reverse the trial court's order of dismissal and remand to the trial court with instructions to reinstate the case.