AFFIRMED; Opinion Filed October 19, 2015.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00893-CV
REFUGIO GOMEZ; ELBA GOMEZ, INDIVIDUALLY AND AS NEXT FRIEND OF RAFAEL GOMEZ, TONY GOMEZ, AND NANCY GOMEZ, MINORS; and CAMELIA GOMEZ, INDIVIDUALLY AND AS NEXT FRIEND OF RODOLFO GOMEZ, A MINOR; Appellants V. LY SOL, Appellee
On Appeal from the Dallas County Court at Law No. 4 Trial Court Cause No. cc-11-06613-d
MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Lang The Gomez family appeals the trial court’s denial of their motion to reinstate their lawsuit
after dismissal for want of prosecution and raises two issues. First, they assert that the trial court
abused its discretion in disqualifying their trial counsel. Second, they assert that the trial court
abused its discretion in denying their motion to reinstate. We affirm the judgment of the trial
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants and Ly1 were involved in an automobile collision on or about November 6, 2009.
On September 21, 2011, appellants filed a suit to recover damages asserting negligence and
1 The appellee, Sol Ly, is incorrectly named in this case as “Ly Sol.” We will refer to her by her last name. negligence per se against Ly. On July 17, 2013, the case was called to trial. A mistrial was
declared for reasons not relevant to this appeal.
Ly was represented by Herald, Farish, Palmorozzi and Hughes (the “Herald firm”). Tim
Brandenburg had been employed by the Herald firm from September 2012 through March 2013,
at which point he became employed by the law office of Domingo Garcia, counsel for the
appellants. A second trial date was set for September 12, 2013. When the case was called for
trial, Brandenburg participated with other lawyers representing the appellants regarding jury
selection. Ly orally objected to the trial court as to Brandenburg’s participation, contending that
because he was previously with the Herald firm after this suit was filed, a conflict of interest
existed. In response to this objection, the trial court declared a mistrial and instructed counsel for
Ly to file a written motion to disqualify Brandenburg.
On September 27, 2013, as directed by the trial court, Ly filed a written motion to disqualify
Brandenburg and the law office of Domingo Garcia on the basis that Brandenburg’s participation
in the litigation created a conflict of interest.2 The trial court conducted a hearing on the motion
and signed an order dated September 30, 2013 granting the motion. Appellants sought no
mandamus review of the order disqualifying their counsel.
The appellants’ lawsuit was set for trial a third time on April 22, 2014. On that date, the
appellants failed to appear for trial. As a result, the trial court dismissed the case for want of
prosecution. On May 21, 2014, Refugio Gomez, pro se, filed a Motion to Vacate the Order of
Dismissal or Alternatively, Reinstate (“Motion to Reinstate”) the lawsuit on behalf of all the
appellants. In the motion, he stated in part:
“I am upset that my attorneys at the Law Offices of Domingo Garcia, P.C. have been disqualified from representing me in this cause. Apparently this occurred because Tim Brandenburg was hired by my attorneys for a few months, but he
2 No reporter’s record has been filed with this Court as to the proceedings of the September 12, 2013 trial. However, Ly’s motion to disqualify identified these facts which appellants do not contest.
–2– never worked on my case, and I never even met him. Tim Brandenburg quit working for the Law Office of Domingo Garcia, P.C. on October 23, 2013. Consequently, I request this Court not dismiss this cause for Want of Prosecution as I am adamant to pursue my personal injury and damages claim against the Defendant. I also request this Court vacate the Order Of Dismissal for Want of Prosecution dated April 22, 2014.”
After a hearing, the trial court denied the appellant’s Motion to Reinstate and this appeal was
perfected.
II. DISMISSAL FOR WANT OF PROSECUTION AND MOTION TO REINSTATE A. Standard of Review
We review the denial of a motion to reinstate a lawsuit dismissed for want of prosecution for
an abuse of discretion. Wyatt v. Tex. Okla. Express, Inc., 693 S.W.2d 731, 732 (Tex. App.–
Dallas 1985, no writ). To determine whether there is an abuse of discretion, we must determine
whether the trial court acted without reference to any guiding rules and principles. See Morrow v.
H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).
B. Applicable Law
Texas Rule of Civil Procedure 165a provides a court may dismiss a case after notice and a
hearing for want of prosecution. TEX. R. CIV. P. 165a. A court may dismiss pursuant to Rule
165a for two reasons: (1) failure to appear; or (2) failure to comply with the Supreme Court of
Texas’ time standards. Summons v. Herrington, No. 05-00-00664-CV, , at *3–4 (Tex. App.–
Dallas June 12, 2001, no pet.) (citing TEX. R. CIV. P. 165a). Additionally, “[t]he common law
vests the trial court with the inherent power to dismiss independently of the rules of procedure
when a plaintiff fails to prosecute his or her case with due diligence.” Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
In considering a motion to reinstate a lawsuit under Rule 165a(3), the trial court must
conduct a hearing and determine whether the failure to prosecute the lawsuit was “intentional or
the result of conscious indifference, or whether it was due to an accident or mistake or was –3– otherwise reasonably explained.” Summons, 2001 WL 641997, at *8–9. A failure to appear is not
intentional or due to conscious indifference merely because it is deliberate; instead, it must also
be without adequate justification. Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468
(Tex. 1995). “Proof of such justification–accident, mistake or other reasonable explanation–
negates the intent or conscious indifference for which reinstatement can be denied.” Id. Finally,
conscious indifference means more than mere negligence. Id.
C. Application of the Law to the Facts
Appellants’ Motion to Reinstate argues only that disqualification of its legal counsel was
improper. Nowhere in the Motion to Reinstate did appellants explain why they failed to appear
on April 22, 2014. Accordingly, they did not meet their burden under Rule 165(a)(3) to show
that their failure to appear for trial was adequately justified. See Smith, 913 S.W.2d at 468; see
also Summons, 2001 WL 641997, at *8–9. We cannot conclude the trial court abused its
discretion in denying appellants’ Motion to Reinstate. This issue is decided adversely to
appellants.
We need not address appellants’ first issue because our decision on the second issue is
dispositive. TEX. R. APP. P. 47.1 (2015) (“The court of appeals must hand down a written opinion
that is as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”) (emphasis added); El Campo Ice, Light & Water Co. v. Texas
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AFFIRMED; Opinion Filed October 19, 2015.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00893-CV
REFUGIO GOMEZ; ELBA GOMEZ, INDIVIDUALLY AND AS NEXT FRIEND OF RAFAEL GOMEZ, TONY GOMEZ, AND NANCY GOMEZ, MINORS; and CAMELIA GOMEZ, INDIVIDUALLY AND AS NEXT FRIEND OF RODOLFO GOMEZ, A MINOR; Appellants V. LY SOL, Appellee
On Appeal from the Dallas County Court at Law No. 4 Trial Court Cause No. cc-11-06613-d
MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Lang The Gomez family appeals the trial court’s denial of their motion to reinstate their lawsuit
after dismissal for want of prosecution and raises two issues. First, they assert that the trial court
abused its discretion in disqualifying their trial counsel. Second, they assert that the trial court
abused its discretion in denying their motion to reinstate. We affirm the judgment of the trial
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants and Ly1 were involved in an automobile collision on or about November 6, 2009.
On September 21, 2011, appellants filed a suit to recover damages asserting negligence and
1 The appellee, Sol Ly, is incorrectly named in this case as “Ly Sol.” We will refer to her by her last name. negligence per se against Ly. On July 17, 2013, the case was called to trial. A mistrial was
declared for reasons not relevant to this appeal.
Ly was represented by Herald, Farish, Palmorozzi and Hughes (the “Herald firm”). Tim
Brandenburg had been employed by the Herald firm from September 2012 through March 2013,
at which point he became employed by the law office of Domingo Garcia, counsel for the
appellants. A second trial date was set for September 12, 2013. When the case was called for
trial, Brandenburg participated with other lawyers representing the appellants regarding jury
selection. Ly orally objected to the trial court as to Brandenburg’s participation, contending that
because he was previously with the Herald firm after this suit was filed, a conflict of interest
existed. In response to this objection, the trial court declared a mistrial and instructed counsel for
Ly to file a written motion to disqualify Brandenburg.
On September 27, 2013, as directed by the trial court, Ly filed a written motion to disqualify
Brandenburg and the law office of Domingo Garcia on the basis that Brandenburg’s participation
in the litigation created a conflict of interest.2 The trial court conducted a hearing on the motion
and signed an order dated September 30, 2013 granting the motion. Appellants sought no
mandamus review of the order disqualifying their counsel.
The appellants’ lawsuit was set for trial a third time on April 22, 2014. On that date, the
appellants failed to appear for trial. As a result, the trial court dismissed the case for want of
prosecution. On May 21, 2014, Refugio Gomez, pro se, filed a Motion to Vacate the Order of
Dismissal or Alternatively, Reinstate (“Motion to Reinstate”) the lawsuit on behalf of all the
appellants. In the motion, he stated in part:
“I am upset that my attorneys at the Law Offices of Domingo Garcia, P.C. have been disqualified from representing me in this cause. Apparently this occurred because Tim Brandenburg was hired by my attorneys for a few months, but he
2 No reporter’s record has been filed with this Court as to the proceedings of the September 12, 2013 trial. However, Ly’s motion to disqualify identified these facts which appellants do not contest.
–2– never worked on my case, and I never even met him. Tim Brandenburg quit working for the Law Office of Domingo Garcia, P.C. on October 23, 2013. Consequently, I request this Court not dismiss this cause for Want of Prosecution as I am adamant to pursue my personal injury and damages claim against the Defendant. I also request this Court vacate the Order Of Dismissal for Want of Prosecution dated April 22, 2014.”
After a hearing, the trial court denied the appellant’s Motion to Reinstate and this appeal was
perfected.
II. DISMISSAL FOR WANT OF PROSECUTION AND MOTION TO REINSTATE A. Standard of Review
We review the denial of a motion to reinstate a lawsuit dismissed for want of prosecution for
an abuse of discretion. Wyatt v. Tex. Okla. Express, Inc., 693 S.W.2d 731, 732 (Tex. App.–
Dallas 1985, no writ). To determine whether there is an abuse of discretion, we must determine
whether the trial court acted without reference to any guiding rules and principles. See Morrow v.
H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).
B. Applicable Law
Texas Rule of Civil Procedure 165a provides a court may dismiss a case after notice and a
hearing for want of prosecution. TEX. R. CIV. P. 165a. A court may dismiss pursuant to Rule
165a for two reasons: (1) failure to appear; or (2) failure to comply with the Supreme Court of
Texas’ time standards. Summons v. Herrington, No. 05-00-00664-CV, , at *3–4 (Tex. App.–
Dallas June 12, 2001, no pet.) (citing TEX. R. CIV. P. 165a). Additionally, “[t]he common law
vests the trial court with the inherent power to dismiss independently of the rules of procedure
when a plaintiff fails to prosecute his or her case with due diligence.” Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
In considering a motion to reinstate a lawsuit under Rule 165a(3), the trial court must
conduct a hearing and determine whether the failure to prosecute the lawsuit was “intentional or
the result of conscious indifference, or whether it was due to an accident or mistake or was –3– otherwise reasonably explained.” Summons, 2001 WL 641997, at *8–9. A failure to appear is not
intentional or due to conscious indifference merely because it is deliberate; instead, it must also
be without adequate justification. Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468
(Tex. 1995). “Proof of such justification–accident, mistake or other reasonable explanation–
negates the intent or conscious indifference for which reinstatement can be denied.” Id. Finally,
conscious indifference means more than mere negligence. Id.
C. Application of the Law to the Facts
Appellants’ Motion to Reinstate argues only that disqualification of its legal counsel was
improper. Nowhere in the Motion to Reinstate did appellants explain why they failed to appear
on April 22, 2014. Accordingly, they did not meet their burden under Rule 165(a)(3) to show
that their failure to appear for trial was adequately justified. See Smith, 913 S.W.2d at 468; see
also Summons, 2001 WL 641997, at *8–9. We cannot conclude the trial court abused its
discretion in denying appellants’ Motion to Reinstate. This issue is decided adversely to
appellants.
We need not address appellants’ first issue because our decision on the second issue is
dispositive. TEX. R. APP. P. 47.1 (2015) (“The court of appeals must hand down a written opinion
that is as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”) (emphasis added); El Campo Ice, Light & Water Co. v. Texas
Machinery & Supply Co., 147 S.W. 338, 340 (Tex. Civ. App.–Dallas 1912, writ denied) (“[W]e
have not considered the other points made in the brief, since to do so would not change the
disposition made of the appeal.”); McAlister v. Hatbreeze Props., L.L.C., No. 02-11-00060-CV,
2012 WL 579436, at *3 (Tex. App.–Fort Worth Feb. 23, 2012, no pet.) (addressing only those
issues that were “potentially dispositive”); Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.–
–4– Fort Worth 2006, no pet.) (addressing only those issues that were “dispositive”). The trial court’s
judgment is affirmed.
V. CONCLUSION
We cannot conclude the trial court abused its discretion in denying appellants’ Motion to
Reinstate. The trial court’s judgment is affirmed.
/Douglas S. Lang/ DOUGLAS S. LANG JUSTICE
140893F.P05
–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
REFUGIO GOMEZ; ELBA GOMEZ, On Appeal from the County Court at Law INDIVIDUALLY AND AS NEXT FRIEND No. 4, Dallas County, Texas OF RAFAEL GOMEZ, TONY GOMEZ, Trial Court Cause No. CC-11-06613-D. AND NANCY GOMEZ, MINORS; and Opinion delivered by Justice Lang. Justices CAMELIA GOMEZ, INDIVIDUALLY Evans and Whitehill participating. AND AS NEXT FRIEND OF RODOLFO GOMEZ, A MINOR; Appellants
No. 05-14-00893-CV V.
SOL LY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Sol Ly recover her costs of this appeal from appellants Refugio Gomez; Elba Gomez, individually and as next friend of Rafael Gomez, Tony Gomez, and Nancy Gomez, minors; and Camelia Gomez, individually and as next friend of Rodolfo Gomez, a minor.
Judgment entered this 19th day of October, 2015.
–6–