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

• Court: Court of Appeals of Texas
• Decided: December 15, 2023
• Docket: 05-22-01332-CV
• Status: Published

Opinion

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

–2– 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). –3– 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.

–4– 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

–5– 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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