Kenley v. Quintana Petroleum Corp.

931 S.W.2d 318, 1996 WL 71288
CourtCourt of Appeals of Texas
DecidedJuly 1, 1996
Docket04-95-00052-CV
StatusPublished
Cited by36 cases

This text of 931 S.W.2d 318 (Kenley v. Quintana Petroleum Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 1996 WL 71288 (Tex. Ct. App. 1996).

Opinions

OPINION

LÓPEZ, Justice.

Edd Kenley, Clay Kenley, Marie Kenley Shirey, and the Kenley & Shirey partnership (Kenleys), appellants, challenge the trial court’s actions in dismissing and failing to reinstate their surface damage suit against appellees Quintana Petroleum Corporation, Bass Enterprises Production Company, TNT Petroleum Company, Inc., Sage Energy Company, and Dawson Geophysical Company.

The suit was filed by the Kenleys in the 81st District Court of LaSalle County on August 19, 1993 against the five named ap-pellees, alleging surface damage in violation of a mineral lease provision under which appellees were lessees. Answers were filed in September and October of 1993 and requests for production and answers by all parties were filed between November of 1993 and July of 1994. Three of the five appellees filed counter-claims and in March of 1994 a motion was made by appellees for a partial summary judgment. A summary judgment hearing was held on May 17, 1994, in which the trial judge suggested that the parties agree on an order of severance. It is disputed whether any action took place after the last filing of responses to a production request on July 18, 1994. The trial court dismissed the case for want of prosecution on November 23,1994.

The Kenleys timely filed a motion to reinstate on December 7, 1994. The motion alleged that the attorney for the Kenleys received no notice of the dismissal hearing and failure to attend was due to accident or mistake. At the reinstatement hearing on December 19, 1994, the trial court did not rule, but requested letter briefs. Both parties filed letter briefs but no further action was taken by the court, and the motion for reinstatement was overruled by operation of law.

The Kenleys contend, in points of error one, two, and three, that the trial court abused its discretion in dismissing the case for want of prosecution because 1) the Ken-ley’s lead counsel did not receive notice; 2) LaSalle County local Rule 13 contradicts both Rule 8 and Rule 165a of the Texas Rules of Civil Procedure; and 3) the court did not consider accepted factors in determining whether the case should be dismissed.

Rule 165a requires that when a case is considered for dismissal based on want of prosecution, “[njotice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record_” Tex. R.CrvP. 165a (emphasis added). However, Rule 165a also allows dismissal “for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing of which the party had notice.” Id.; see also Balla v. Northeast Lincoln Mercury, 717 S.W.2d 183, 184 (Tex.App.—Fort Worth 1986, no writ). We will uphold the trial court’s action absent a showing that the court abused its discretion and did not act in accordance with any guiding principles or law. Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex.1957); State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984).

It is clear from the record that local co-counsel of record for the Kenleys, Leslie Kinsel, received notice of the hearing on dismissal. Ms. Kinsel was present at the hearing because she had other cases set for dismissal. However, she did not announce when the Kenleys’ case was called as she was unaware of the status of the case, having been involved only on a very limited basis. The documents in the record indicate that F. Franklin Honea of Payne & Vendig in Dallas is the attorney in charge for the Kenleys. Leslie Kinsel of Cotulla is named as co-counsel on only a few documents out of the 600 page transcript.

Because the district court received no response when it called the case on the dismissal docket, it correctly exercised its power under Rule 165a to dismiss the case for want of prosecution. Although local Rule 13 purports to impute knowledge of notice on the attorneys, it also includes a provision that the attorney of record in each case will receive notice of a dismissal hearing. We cannot say that a trial court abuses its discretion in following a local rule that has not been [321]*321previously challenged or found to contradict the Rules of Civil Procedure. Furthermore, the trial court cannot be expected to investigate whether proper notice was sent to each attorney of record on every case set for dismissal. We find that because the trial court was not aware of any deficiencies at the dismissal hearing, it was not an abuse of discretion to dismiss the case and points of error one, two, and three are overruled. The error in this case, however, lies in the district court’s actions after being advised as to the surrounding circumstances of the dismissal. In their last point of error, the Kenleys contend that the district court erred in failing to grant their motion to reinstate. We agree.

In determining if the court erred, we will uphold the ruling on a motion to reinstate absent a showing that the court abused its discretion. Goff v. Branch, 821 S.W.2d 732, 738 (Tex.App.—San Antonio 1991, writ denied); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 843 (Tex.App.—San Antonio 1989, writ denied). The party requesting reinstatement has the burden to bring forth a record establishing that reinstatement was required. Bard, 767 S.W.2d at 845. An affidavit or other competent evidence is required to affirmatively show that no notice was received. Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex.App.—Corpus Christi 1994, no writ); Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex.App.—Houston [14th Dist.] 1994, no writ).

Rule 165a provides that “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 otherwise been reasonably explained.” Tex R.Crv.P. 165a (emphasis added); Smith et al. v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 467-68 (1995). The trial court abuses its discretion in denying reinstatement when the attorney’s explanation for failure to appear is reasonable. Smith, 913 S.W.2d at 467-68.

Rule 8 requires that “all communication from the court or other counsel with respect to a suit shall be sent to the attorney in charge.” TexR.Civ.P. 8. LaSalle County Local Rule 13 provides:

(1) ... all unscheduled civil cases of every kind ... which have been on file for more than six months, shall be automatically set for hearing for all parties to show cause why same should not be dismissed.... While counsel and parties MAY BE NOTIFIED ... this rule shall constitute notice of such hearing, and counsel, and all parties not represented by counsel, shall keep informed as to the length of time their case has been on file....

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Bluebook (online)
931 S.W.2d 318, 1996 WL 71288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenley-v-quintana-petroleum-corp-texapp-1996.