In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00089-CV
MICHELLE M. BUERGER, Appellant
V.
BRENDA L. GIBSON, LARRY C. GIBSON, PARIS HOUSING AUTHORITY, NANCY (JENNIFER) WINTON, L.C.S., ABC, DEF, AND XYZ, Appellees
On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 91617
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION
In this appeal, Michelle M. Buerger argues that the trial court abused its discretion by
dismissing her case for want of prosecution and by failing to reinstate her case. We find no
abuse of discretion in the trial court’s rulings on these matters. Accordingly, we affirm the trial
court’s dismissal order.
I. Factual and Procedural Background
In February 2023, Buerger sued Brenda L. Gibson, Larry C. Gibson, the Paris Housing
Authority, Nancy (Jennifer) Winton, L.C.S., and “ABC, DEF, and XYZ,” unknown individuals,
for breach of a lease agreement, among other things. Buerger’s pro se petition was not served on
anyone. As a result, on September 18, 2024, the trial court sent Buerger notice of its intent to
dismiss the case for want of prosecution after a November 14 hearing.
There is no reporter’s record from the November 14 hearing. Even so, it appears that the
trial court retained the case on the docket. Still, Buerger did not serve anyone, and there was no
movement in the case. Accordingly, on June 3, 2025, the trial court sent Buerger another notice
of its intent to dismiss the case for want of prosecution after a July 23, 2025, hearing. The trial
court’s notice warned Buerger that failure to appear at the hearing would result in dismissal of
the case. Even so, Buerger informed the trial court on July 15 that she did not intend to appear at
the July 23 hearing because she was out of the state due to family obligations. Because Buerger
2 did not appear at the July 23 dismissal hearing, the trial court dismissed the case for want of
prosecution.1
On August 22, Buerger filed a motion to reinstate the case on the trial court’s docket,
which simply stated she was unable to attend the dismissal hearing. The motion was denied by
the trial court.
II. Standard of Review
“We review a dismissal for want of prosecution under a clear abuse of discretion
standard; the central issue is whether the plaintiff[] exercised reasonable diligence.” MacGregor
v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). Similarly, “[a] trial court’s denial of a
reinstatement motion is addressed to the sound discretion of the trial court, and a reviewing court
will not disturb it absent a showing of abuse.” Ransom, 553 S.W.3d at 93 (quoting Clark v.
Yarbrough, 900 S.W.2d 406, 409 (Tex. App.—Texarkana 1995, writ denied)).
“A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner,
or when it acts without reference to any guiding principles.” Johnson v. Hawkins, 255 S.W.3d
394, 397 (Tex. App.—Dallas 2008, pet. denied) (citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)).
III. Analysis
Buerger’s pro se brief admits that no one was served with her petition. Even so, she
argues that the trial court erred by dismissing her case because the trial court gave her a “prior
1 Although not a point of error, Buerger questions whether the dismissal was with or without prejudice. Because the order specifies that it was a dismissal for want of prosecution, it shows that there was not a merits-based decision and that the dismissal was, therefore, without prejudice. See Ransom v. Gibson, 553 S.W.3d 89, 94 (Tex. App.— Texarkana 2018, no pet.) (citing Tex. Soc., Daughters of the Am. Revolution, Inc. v. Est. of Hubbard, 768 S.W.2d 858, 862 (Tex. App.—Texarkana 1989, no writ)). 3 oral allowance of a one-year period to perfect service” at the November 2024 hearing. Without a
reporter’s record from the hearing, nothing shows that the trial court gave Buerger an oral
allowance of one year to perfect service.
Moreover, “[a] plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable
diligence,’ failing which a trial court may dismiss for want of prosecution.” In re Levetz, No. 06-
19-00086-CV, 2019 WL 5444158, at *2 (Tex. App.—Texarkana Oct. 24, 2019, orig. proceeding)
(mem. op.) (second alteration in original) (quoting In re Conner, 458 S.W.3d 532, 534 (Tex.
2015) (per curiam) (orig. proceeding)). “A case may be dismissed for want of prosecution on
failure of any party seeking affirmative relief to appear for any hearing or trial of which the party
had notice.” TEX. R. CIV. P. 165a(1). “At the dismissal hearing, the court must dismiss for want
of prosecution unless there is good cause for the case to be maintained on the docket.” Id.
Buerger sought affirmative relief by her petition but failed to appear for the dismissal
hearing even though she had notice of it. Because she did not appear for the hearing, nothing
shows that there was good cause to retain the matter on the trial court’s docket. Consequently,
we do not find that the trial court abused its discretion by dismissing Buerger’s case for want of
prosecution.2 We overrule Buerger’s first point of error.
Buerger also filed a motion to reinstate the case. When a party seeking reinstatement
meets Rule 165a(3) of the Texas Rules of Civil Procedure prerequisites, the trial court must set a
hearing as soon as practicable. See TEX. R. CIV. P. 165a(3); Gulf Coast Inv. Corp. v. NASA 1
2 Although Buerger acknowledges that she received notice of the July dismissal hearing, she raises a general due process complaint for the first time on appeal. Buerger’s due process complaint is unpreserved. See TEX. R. APP. P. 33.1. Even so, we note that the trial court afforded her the process she was due by sending notice of the hearing with a warning that failure to appear would result in dismissal of the case. 4 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam) (orig. proceeding). Pursuant to Rule
165a(3), a motion to reinstate the case “shall be served on each attorney of record and each party
not represented by an attorney whose address is shown on the docket or in the papers on file.”
TEX. R. CIV. P. 165a(3). “The court shall reinstate the case upon finding after a hearing that the
failure of the party or h[er] 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.” Id. “The movant for reinstatement bears the burden to produce evidence supporting
the motion.” Ransom, 553 S.W.3d at 93 (quoting Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3–4
(Tex. App.—Houston [14th Dist.] 2006, pet.
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In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00089-CV
MICHELLE M. BUERGER, Appellant
V.
BRENDA L. GIBSON, LARRY C. GIBSON, PARIS HOUSING AUTHORITY, NANCY (JENNIFER) WINTON, L.C.S., ABC, DEF, AND XYZ, Appellees
On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 91617
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION
In this appeal, Michelle M. Buerger argues that the trial court abused its discretion by
dismissing her case for want of prosecution and by failing to reinstate her case. We find no
abuse of discretion in the trial court’s rulings on these matters. Accordingly, we affirm the trial
court’s dismissal order.
I. Factual and Procedural Background
In February 2023, Buerger sued Brenda L. Gibson, Larry C. Gibson, the Paris Housing
Authority, Nancy (Jennifer) Winton, L.C.S., and “ABC, DEF, and XYZ,” unknown individuals,
for breach of a lease agreement, among other things. Buerger’s pro se petition was not served on
anyone. As a result, on September 18, 2024, the trial court sent Buerger notice of its intent to
dismiss the case for want of prosecution after a November 14 hearing.
There is no reporter’s record from the November 14 hearing. Even so, it appears that the
trial court retained the case on the docket. Still, Buerger did not serve anyone, and there was no
movement in the case. Accordingly, on June 3, 2025, the trial court sent Buerger another notice
of its intent to dismiss the case for want of prosecution after a July 23, 2025, hearing. The trial
court’s notice warned Buerger that failure to appear at the hearing would result in dismissal of
the case. Even so, Buerger informed the trial court on July 15 that she did not intend to appear at
the July 23 hearing because she was out of the state due to family obligations. Because Buerger
2 did not appear at the July 23 dismissal hearing, the trial court dismissed the case for want of
prosecution.1
On August 22, Buerger filed a motion to reinstate the case on the trial court’s docket,
which simply stated she was unable to attend the dismissal hearing. The motion was denied by
the trial court.
II. Standard of Review
“We review a dismissal for want of prosecution under a clear abuse of discretion
standard; the central issue is whether the plaintiff[] exercised reasonable diligence.” MacGregor
v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). Similarly, “[a] trial court’s denial of a
reinstatement motion is addressed to the sound discretion of the trial court, and a reviewing court
will not disturb it absent a showing of abuse.” Ransom, 553 S.W.3d at 93 (quoting Clark v.
Yarbrough, 900 S.W.2d 406, 409 (Tex. App.—Texarkana 1995, writ denied)).
“A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner,
or when it acts without reference to any guiding principles.” Johnson v. Hawkins, 255 S.W.3d
394, 397 (Tex. App.—Dallas 2008, pet. denied) (citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)).
III. Analysis
Buerger’s pro se brief admits that no one was served with her petition. Even so, she
argues that the trial court erred by dismissing her case because the trial court gave her a “prior
1 Although not a point of error, Buerger questions whether the dismissal was with or without prejudice. Because the order specifies that it was a dismissal for want of prosecution, it shows that there was not a merits-based decision and that the dismissal was, therefore, without prejudice. See Ransom v. Gibson, 553 S.W.3d 89, 94 (Tex. App.— Texarkana 2018, no pet.) (citing Tex. Soc., Daughters of the Am. Revolution, Inc. v. Est. of Hubbard, 768 S.W.2d 858, 862 (Tex. App.—Texarkana 1989, no writ)). 3 oral allowance of a one-year period to perfect service” at the November 2024 hearing. Without a
reporter’s record from the hearing, nothing shows that the trial court gave Buerger an oral
allowance of one year to perfect service.
Moreover, “[a] plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable
diligence,’ failing which a trial court may dismiss for want of prosecution.” In re Levetz, No. 06-
19-00086-CV, 2019 WL 5444158, at *2 (Tex. App.—Texarkana Oct. 24, 2019, orig. proceeding)
(mem. op.) (second alteration in original) (quoting In re Conner, 458 S.W.3d 532, 534 (Tex.
2015) (per curiam) (orig. proceeding)). “A case may be dismissed for want of prosecution on
failure of any party seeking affirmative relief to appear for any hearing or trial of which the party
had notice.” TEX. R. CIV. P. 165a(1). “At the dismissal hearing, the court must dismiss for want
of prosecution unless there is good cause for the case to be maintained on the docket.” Id.
Buerger sought affirmative relief by her petition but failed to appear for the dismissal
hearing even though she had notice of it. Because she did not appear for the hearing, nothing
shows that there was good cause to retain the matter on the trial court’s docket. Consequently,
we do not find that the trial court abused its discretion by dismissing Buerger’s case for want of
prosecution.2 We overrule Buerger’s first point of error.
Buerger also filed a motion to reinstate the case. When a party seeking reinstatement
meets Rule 165a(3) of the Texas Rules of Civil Procedure prerequisites, the trial court must set a
hearing as soon as practicable. See TEX. R. CIV. P. 165a(3); Gulf Coast Inv. Corp. v. NASA 1
2 Although Buerger acknowledges that she received notice of the July dismissal hearing, she raises a general due process complaint for the first time on appeal. Buerger’s due process complaint is unpreserved. See TEX. R. APP. P. 33.1. Even so, we note that the trial court afforded her the process she was due by sending notice of the hearing with a warning that failure to appear would result in dismissal of the case. 4 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam) (orig. proceeding). Pursuant to Rule
165a(3), a motion to reinstate the case “shall be served on each attorney of record and each party
not represented by an attorney whose address is shown on the docket or in the papers on file.”
TEX. R. CIV. P. 165a(3). “The court shall reinstate the case upon finding after a hearing that the
failure of the party or h[er] 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.” Id. “The movant for reinstatement bears the burden to produce evidence supporting
the motion.” Ransom, 553 S.W.3d at 93 (quoting Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3–4
(Tex. App.—Houston [14th Dist.] 2006, pet. denied)).
Here, because Buerger had not served anyone, her motion for reinstatement was not
served on any opposing party. Yet, even assuming that Buerger met the requirements of Rule
165a(3), the failure of a trial court to hold a hearing on a motion to reinstate a case is subject to a
harmless error analysis. See TEX. R. APP. P. 44.1; see also Curnutt v. Conocophillips Co., 508
S.W.3d 641, 644 (Tex. App.—El Paso 2016, no pet.); Beames v. Hooks, No. 01-14-00103-CV,
2015 WL 162226, at *8 (Tex. App.—Houston [1st Dist.] Jan. 13, 2015, no pet.) (mem. op.);
Preslar v. Garcia, No. 03-13-00449-CV, 2014 WL 824201, at *4 (Tex. App.—Austin Feb. 26,
2014, no pet.) (mem. op.); Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 740
(Tex. App.—Waco 2005, pet denied).
Under Rule 44.1(a) of the Texas Rules of Appellate Procedure,
No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or 5 (2) probably prevented the appellant from properly presenting the case to the court of appeals.
TEX. R. APP. P. 44.1(a). Here, nothing shows that the failure to hold a hearing on the motion to
reinstate would have led to a different result or would have aided Buerger in the presentation of
her appeal to this Court.
Reinstatement was only required if Buerger’s failure to appear at the July dismissal
hearing was not intentional or the result of conscious indifference. “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.” Ransom, 553 S.W.3d at 93 (quoting
Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam)). “Proof
of such justification—accident, mistake or other reasonable explanation—negates the intent or
conscious indifference for which reinstatement can be denied.” Id. (quoting Smith, 913 S.W.2d
at 468). “Whether the party’s conduct was intentional or the result of conscious indifference is a
question of fact to be determined by the trial court in its discretion.” Id. (quoting Clark, 900
S.W.2d at 409).
Buerger was notified of the July 23, 2025, dismissal hearing on June 3. The body of
Buerger’s motion to reinstate simply states that she was not able to appear for the dismissal
hearing but did not state why. As a result, the motion shows that Buerger knew about the July
dismissal hearing but chose not to appear.
Even if the trial court had held a hearing in which Buerger could present the facts that
Buerger’s failure to appear was due to “family obligations,” nothing shows that the result would
6 be different since the trial court was free to determine that the nonappearance was intentional or
the result of conscious indifference. In light of these facts, we do not find that Buerger was
harmed by the trial court’s lack of a hearing on her motion to reinstate the case. See TEX. R. APP.
P. 44.1(a). We overrule Buerger’s second point of error.
IV. Conclusion
We affirm the trial court’s dismissal order.
Charles van Cleef Justice
Date Submitted: March 16, 2026 Date Decided: March 27, 2026