In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00088-CV
MICHELLE M. BUERGER, Appellant
V.
WADE SPARKS, KAREN SPARKS, AND ABC, DEF, AND XYZ, Appellees
On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 90758
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin 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 November 2021, Buerger sued Wade Sparks, Karen Sparks, and unknown defendants
“ABC, DEF, and XYZ” for defamation, slander, and libel arising out of their use of “self-help”
to evict Buerger from their “pastureland,” among other things. Buerger’s pro se petition was not
served on anyone. As a result, on September 17, 2024, the trial court sent Buerger notice of its
intent to dismiss the case for want of prosecution after a November 14 hearing.
At the November hearing, the trial court told Buerger that it would retain the case but that
she would “have a year to do something with it” because no one had been served. The trial court
warned Buerger, “[i]f nothing has been done in the next year, I’m going to dismiss [the case].
[It] can’t just sit there forever.”
Still, Buerger did not serve anyone, and there was no movement in the case. 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
2 the state due to family obligations. Because Buerger 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 docket,
which simply stated she was unable to attend the dismissal hearing but did not list any reason for
missing the 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. Although
the trial court told Buerger that she had a year to do something with the case, the trial court’s
notice of its intent to dismiss the case earlier clearly instructed Buerger that she had to appear at
the July dismissal hearing to retain the case on the trial court’s docket.2 She did not take
advantage of that opportunity.
“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.) (alteration in original) (quoting In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (per curiam)
(orig. proceeding)). “A trial court may dismiss a suit for want of prosecution either under its
inherent power or pursuant to Rule 165a of the Texas Rules of Civil Procedure.” Id. (quoting
In re Crawford, 560 S.W.3d 357, 364 (Tex. App.—Texarkana 2018, orig. proceeding) (citing In
re Conner, 458 S.W.3d at 534)).
“Any case not disposed of within time standards promulgated by the Supreme Court
under its Administrative Rules may be placed on a dismissal docket.” TEX. R. CIV. P. 165a(2).
Further, “[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.
2 Had Buerger appeared at the July dismissal hearing, it is possible that the trial court would have granted her request for additional time to serve the defendants. 4 Buerger’s petition was filed in November 2021. Under Rule 6.1 of the Texas Rules of
Judicial Administration, the trial court was encouraged to dispose of the case within no more
than eighteen months. See TEX. R. JUD. ADMIN. 6.1. That time passed without anyone being
served. Moreover, 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. In her
pro se brief, Buerger does not deny her failure to appear for the July 2025 dismissal hearing, nor
does she challenge the trial court’s inherent authority to dismiss the case based on inattentive
prosecution. Consequently, nothing shows that the trial court abused its discretion by dismissing
Buerger’s case for want of prosecution.3 We overrule Buerger’s first point of error.
Buerger also filed a motion to reinstate the case. When a party seeking reinstatement
Free access — add to your briefcase to read the full text and ask questions with AI
In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00088-CV
MICHELLE M. BUERGER, Appellant
V.
WADE SPARKS, KAREN SPARKS, AND ABC, DEF, AND XYZ, Appellees
On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 90758
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin 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 November 2021, Buerger sued Wade Sparks, Karen Sparks, and unknown defendants
“ABC, DEF, and XYZ” for defamation, slander, and libel arising out of their use of “self-help”
to evict Buerger from their “pastureland,” among other things. Buerger’s pro se petition was not
served on anyone. As a result, on September 17, 2024, the trial court sent Buerger notice of its
intent to dismiss the case for want of prosecution after a November 14 hearing.
At the November hearing, the trial court told Buerger that it would retain the case but that
she would “have a year to do something with it” because no one had been served. The trial court
warned Buerger, “[i]f nothing has been done in the next year, I’m going to dismiss [the case].
[It] can’t just sit there forever.”
Still, Buerger did not serve anyone, and there was no movement in the case. 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
2 the state due to family obligations. Because Buerger 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 docket,
which simply stated she was unable to attend the dismissal hearing but did not list any reason for
missing the 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. Although
the trial court told Buerger that she had a year to do something with the case, the trial court’s
notice of its intent to dismiss the case earlier clearly instructed Buerger that she had to appear at
the July dismissal hearing to retain the case on the trial court’s docket.2 She did not take
advantage of that opportunity.
“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.) (alteration in original) (quoting In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (per curiam)
(orig. proceeding)). “A trial court may dismiss a suit for want of prosecution either under its
inherent power or pursuant to Rule 165a of the Texas Rules of Civil Procedure.” Id. (quoting
In re Crawford, 560 S.W.3d 357, 364 (Tex. App.—Texarkana 2018, orig. proceeding) (citing In
re Conner, 458 S.W.3d at 534)).
“Any case not disposed of within time standards promulgated by the Supreme Court
under its Administrative Rules may be placed on a dismissal docket.” TEX. R. CIV. P. 165a(2).
Further, “[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.
2 Had Buerger appeared at the July dismissal hearing, it is possible that the trial court would have granted her request for additional time to serve the defendants. 4 Buerger’s petition was filed in November 2021. Under Rule 6.1 of the Texas Rules of
Judicial Administration, the trial court was encouraged to dispose of the case within no more
than eighteen months. See TEX. R. JUD. ADMIN. 6.1. That time passed without anyone being
served. Moreover, 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. In her
pro se brief, Buerger does not deny her failure to appear for the July 2025 dismissal hearing, nor
does she challenge the trial court’s inherent authority to dismiss the case based on inattentive
prosecution. Consequently, nothing shows that the trial court abused its discretion by dismissing
Buerger’s case for want of prosecution.3 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) 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 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
3 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. 5 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
(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.
6 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 missed the hearing and could not attend it,
without providing any reason why. As a result, the motion to reinstate shows that Buerger knew
about the July dismissal hearing but chose not to appear, which would support the trial court’s
finding that the lack of an appearance 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.
7 IV. Conclusion
We affirm the trial court’s dismissal order.
Jeff Rambin Justice
Date Submitted: March 16, 2026 Date Decided: March 27, 2026