Seigle v. Hollech

892 S.W.2d 201, 1994 Tex. App. LEXIS 3172, 1994 WL 715805

• Court: Court of Appeals of Texas
• Decided: December 29, 1994
• Docket: A14-94-00097-CV
• Status: Published

Opinions

MAJORITY OPINION

J. CURTIS BROWN, Chief Justice.

Thomas and Lorraine Seigle appeal from a dismissal for want of prosecution. Appellants bring three points of error. We reverse the judgment.

According to the trial court docket sheet, this ease was filed on July 18, 1991. Appellants’ suit alleged property damage, loss of use and enjoyment, and mental anguish as a result of actions by appellees in elevating their property and impeding the natural runoff of rainwater from appellants’ property. The case was called to trial on October 4, 1993 and was dismissed on that same date, on appellees’ oral motion, for appellants’ failure to appear for trial. Appellants filed a motion to reinstate and, after a hearing, the trial court denied this motion.

In points of error one and two, appellants contend the trial court abused its discretion in dismissing this case for want of prosecution and in denying appellants’ motion to reinstate because appellants’ attorney had a trial conflict and the local rules provide a method of determining ease priority where a conflict exists. Appellants contend local rules provide for a judge to put a case on hold or to reset the case if one of the attorneys for the parties advises the judge that he is assigned to another trial. Appellants, however, have not provided us with a copy of the local rules. Without a certified copy of the local rules in the record, we refuse to take judicial notice of them. See Gallagher v. Balasco, 789 S.W.2d 618, 619 (Tex.App.—Houston [1st Dist.] 1990, writ denied). Although the supreme court held in State v. Rotello, 671 S.W.2d 507 (Tex.1984) that an appellate court may take judicial notice of local rules, Rotello was decided before approval of local rules by the supreme court was required. Id. at 508. On April 1, 1984, Tbx.R.Cxv.P. 3a became effective and required supreme court approval of local rules. Tex.R.Civ.P. 3a; Rotello, 671 S.W.2d at 508, n. 1. Furthermore, under Tex.R.Civ.Evid. 201, a court is required to take judicial notice only if a party requests it and the party supplies the court with the necessary information. Tex.R.Civ.Evid. 201(d). Because appellants have not provided us a copy, certified or otherwise, of the local rules, we apply case law and the Texas rules of procedure in addressing this point of error.

The standard of review of a dismissal for want of prosecution is whether the trial court committed a clear abuse of discretion. Ellmossallamy v. Huntsman, 880 S.W.2d 299, 300 (Tex.App.—Houston [14th Dist.] 1992, no writ). An abuse of discretion occurs if the trial court acts without reference to any guiding rules or principles. Id. Rule 165a provides that a case may be dismissed for want of prosecution on the failure of any party seeking affirmative relief to appear for trial. Tex.R.Civ.P. 165a. See also Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 618 (Tex.App.—Houston [14th Dist.] 1992), writ denied, 847 S.W.2d 247 (Tex.1993). Rule 165a should be liberally construed. Mayad v. Rizk, 554 S.W.2d 835, 838 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.). Under this rule, a trial court should reinstate a case if the party provides a reasonable excuse for the failure to appear. Tex.R.Cxv.P. 165a(3). “Some excuse, not necessarily a good one, is sufficient.” Mayad, 554 S.W.2d at 838.

The standard for review of a trial court’s refusal to reinstate is also whether the trial court abused its discretion. Brown v. Howeth Inv., Inc., 820 S.W.2d 900, 903 (Tex.App.—Houston [1st Dist.] 1991, no writ). We must determine whether the trial court properly applied the standard from Rule 165a(3): whether the failure to prosecute the suit was intentional or the result of conscious indifference, or whether it was due to an accident or mistake or was otherwise reasonably explained. Id.

This case was called to trial in the 133rd District Court before Judge Casseb on August 11, 1993. After motions in limine were heard, the trial was continued to September 23, 1993. On September 22, 1993, Judge Casseb continued the trial until October 4, 1993. Appellants admit that they agreed to this date “subject to any conflict of scheduling.” Judge Casseb, however, made it clear that a motion for continuance had to be filed if a problem arose.

Appellants contend that on October 4, 1993, their counsel was involved in a criminal trial in the 263rd District Court before Judge Guerrero. Appellants’ counsel had agreed to a trial setting in that court on August 18, 1993 and the case was set for trial on October 4, 1993. The criminal trial actually began, however, on October 1, 1993.

The trial coordinator for the 133rd District Court, Ms. DeJean, had called to remind appellants’ counsel of the trial setting on October 4, 1993 and counsel advised her of his criminal trial conflict. Appellants’ counsel thereafter sent a letter to Judge Casseb in the 133rd District court regarding the “preferential” criminal trial setting. Upon receiving this letter, Ms. DeJean called the court coordinator for the 268rd District Court, who said that the criminal case was on the trial docket, but was not preferentially set. Judge Guerrero also stated that the criminal case was not preferentially set. Ms. DeJean again called appellants’ counsel and told him that he was expected to appear for trial. Appellants and their counsel failed to appear on October 4,1993. The court granted appellees’ oral motion to dismiss and entered an order dismissing the case with prejudice. The trial court overruled appellants’ motion to reinstate the case.

In support of their argument that a scheduling conflict is a reasonable explanation for the failure to appear, appellants cite Dancy v. Daggett, 809 S.W.2d 629 (Tex.App.—Houston [14th Dist.] 1991) (orig. proceeding). In that case, a panel of our court denied leave to file mandamus, stating we did not have the power to find an abuse of discretion by the trial court. Id. at 630. The supreme court disagreed, however, and conditionally granted the writ. Dancy v. Daggett, 815 S.W.2d 548 (Tex.1991) (orig. proceeding). In that case, Judge Daggett was aware of a scheduling conflict and granted a motion for continuance until the following morning. Id. at 549. Although the judge in the other court called to advise that the conflict would continue, Judge Daggett refused to continue the hearing and entered temporary orders in the divorce suit. Id.

Despite appellants’ failure to file a motion for continuance, their explanation was sufficient to support reinstatement. Appellants’ counsel explained that he believed the criminal trial was preferentially set. Appellants’ counsel also claimed he relied on statements in the local rules that a preferentially set case has priority over cases not preferentially set and that a criminal case has priority over a civil case. Furthermore, appellants’ counsel advised both trial judges of the conflict before either trial began. The trial court abused its discretion in dismissing the case and in refusing to reinstate the case. We sustain points of error one and two. Having sustained these points of error, we need not address point of error three.

We reverse the judgment and remand the case for trial.