Opinion
NO. 01-17-00444-CV
07-12-2018
SOUTHERN PIONEER PROPERTY & CASUALTY INSURANCE COMPANY, Appellant v. PATRICIA M. WILSON, Appellee
On Appeal from County Civil Court at Law No. 1 Harris County, Texas
Trial Court Case No. 1083133
MEMORANDUM OPINION
Appellant Southern Pioneer Property & Casualty Insurance Company is appealing the dismissal of its suit against appellee Patricia M. Wilson for want of prosecution. In three issues, Southern Pioneer argues that (1) the trial court abused its discretion by denying its verified motion to reinstate, (2) the trial court erred by denying Southern Pioneer's original motion for default judgment, and (3) the trial court erred by denying Southern Pioneer's amended motion for default judgment. Because we conclude that the trial court abused its discretion by denying Southern Pioneer's motion to reinstate, we reverse the trial court's judgment and remand the case for further proceedings.
Background
Many of the facts recited in this section are based on statements Southern Pioneer made in its verified motion to reinstate. Because Wilson did not respond to the motion or object to Southern Pioneer's request for reinstatement, we must accept these factual statements as true. See Dalmex, Ltd. v. Apparel Enters., Inc., 455 S.W.3d 241, 244 (Tex. App.—El Paso 2015, no pet.).
On September 21, 2016, Southern Pioneer, as subrogee of its insured, Carolyn Perez, sued Wilson for damages Perez sustained in a motor vehicle accident.
Wilson was served with citation and requests for admissions on October 31, 2016. The return of service, which was filed on January 6, 2017, states that service was executed by delivering the citation and petition to Wilson at "750 Willow Dr. Sheperd TX." Wilson did not file an answer to the petition, respond to the requests for admissions, or otherwise make an appearance in the case.
Trial was set for March 27, 2017. On March 8, 2017, Southern Pioneer filed a motion for default judgment in which it attempted to prove its damages by deemed admissions. That same day, the trial court notified Southern Pioneer that its motion was incomplete and "ha[d] not been considered due to the absence" of a "damage affidavit." The notice further stated that, "Once the corrections are made please amend your motion for default with the revised documents, and resubmit your proposed judgment, certificate of last known address, and current military websearch."
Southern Pioneer's counsel learned of the trial court's notice on March 14, 2017, and made several attempts to obtain a damages affidavit from Southern Pioneer. Counsel, however, was unable to obtain a properly executed affidavit until March 28, 2017. By that time, the trial court had already dismissed the case for want of prosecution because Southern Pioneer's counsel did not appear at the docket call on March 27, 2017. Counsel's office received a copy of the dismissal order on March 30, 2017.
On April 5, 2017, Southern Pioneer filed a verified motion to reinstate and a first amended motion for default judgment accompanied by an affidavit of damages. Southern Pioneer averred in its motion to reinstate that its counsel's failure to appear for the docket call on March 27, 2017 "was due to accident, inadvertence and mistake and was not intentional or the result of conscious indifference." Specifically, Southern Pioneer asserted: "Counsel mistakenly believed that having filed his MDJ and having received a deficiency notice regarding same, the case would be taken off the trial docket while the deficiency was being addressed. It is counsel's impression many courts have that policy and thus he did not appear for docket call on March 27, 2017 which resulted in the case being dismissed."
Southern Pioneer set its motion to reinstate and its amended motion for default judgment for a hearing on May 17, 2017.
The day before the hearing, trial court personnel contacted Southern Pioneer's counsel and notified counsel that the first amended motion for default judgment was deficient because the officer who served Wilson did not include her zip code on the return of citation. Southern Pioneer filed a supplement to its first amended motion for default judgment the same day, and requested the court take judicial notice that the zip code for Wilson's address, as verified by the U.S. Postal Service's website, was the same as the zip code listed on the citation issued by the clerk's office.
After a hearing on May 17, 2017, the trial court denied the motion to reinstate. As a result of its ruling, the court did not consider Southern Pioneer's amended motion for default judgment.
Verified Motions to Reinstate
In its first issue, Southern Pioneer argues that the trial court abused its discretion by denying the verified motion to reinstate because the motion established that Southern Pioneer's counsel did not appear at the docket call on March 27, 2017 because he mistakenly believed that the case had been taken off the trial docket to give him time to remedy his deficient motion for default judgment. Southern Pioneer argues that counsel's explanation establishes that his failure to appear was due to accident, inadvertence, and mistake and was not intentional or the result of conscious indifference.
A. Standard of Review
We review an order denying a motion to reinstate for an abuse of discretion. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). A trial court abuses its discretion when it acts "arbitrarily or unreasonably, without reference to guiding rules or principles." Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242.
Texas Rule of Civil Procedure 165a requires a trial court to reinstate a case "upon finding after a hearing that the failure of the party or his 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." TEX. R. CIV. P. 165a; Smith, 913 S.W.2d at 468. A failure of the party or his attorney 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." Smith, 913 S.W.2d at 468. "Proof of such justification—accident, mistake or other reasonable explanation—negates the intent or conscious indifference for which reinstatement can be denied." Id. "Conscious indifference . . . means failing to take some action that would seem to be indicated to a person of reasonable sensibilities under similar circumstances," and it requires more than negligence. Sellers v. Foster, 199 S.W.3d 385, 400 (Tex. App.—Fort Worth 2006, no pet.); see also Smith, 913 S.W.2d at 468.
A trial court abuses its discretion in denying reinstatement following a dismissal for want of prosecution when an attorney's explanation for a failure to appear is reasonable. Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.—San Antonio 1996, writ denied) (citing Smith, 913 S.W.2d at 467-68). Some excuse, not necessarily a good excuse, is enough to show lack of conscious indifference. Whitworth v. Blumenthal, 59 S.W.3d 393, 401 (Tex. App.—Dallas 2001, pet. dism'd by agr.). "An excuse need not be a good one to suffice." Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (per curiam) (quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006)).
In this case, Southern Pioneer's uncontradicted verified motion to reinstate establishes that its counsel did not appear for the docket call on March 27, 2017 because he mistakenly assumed that the case had been taken off the trial docket to allow him time to file an affidavit of damages in support of his motion for default judgment. Because Wilson did not respond to the motion or object to Southern Pioneer's request for reinstatement, we must accept these factual statements to be true. See Dalmex, Ltd. v. Apparel Enters., Inc., 455 S.W.3d 241, 244 (Tex. App.—El Paso 2015, no pet.). Although counsel may not have been "as conscientious as he should have been" in failing to confirm that the case had, in fact, been taken off the trial court's docket pending resolution of his motion for default judgment, counsel's actions did not amount to conscious indifference. See Smith, 913 S.W.2d at 468; see also Microcheck Sys., Inc. v. Smith, No. 01-10-00169-CV, 2011 WL 1632180, at *4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (mem. op.).
Because Southern Pioneer's verified motion to reinstate reasonably explained why its counsel failed to appear at the docket call, and because the record contains no evidence that the failure was intentional or the result of conscious indifference, the trial court abused its discretion when it denied the motion for reinstatement.
We sustain Southern Pioneer's first issue.
Motions for Default Judgments
In its second and third issues on appeal, Southern Pioneer argues that the trial court abused its discretion by failing to grant its original and amended motions for default judgment. Ordinarily, the denial of a default judgment is an interlocutory order not subject to appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014 (West Supp. 2017). The denial of a motion for default judgment, however, is appealable after a final judgment or order, including an order dismissing a case for want of prosecution. See Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating appellate courts have reviewed denial when challenged appeal from final judgment or order). By filing the amended motion for default judgment, Southern Pioneer superseded its original motion for default judgment. See generally Retzlaff v. Tex. Dep't of Criminal Justice, 135 S.W.3d 731, 737-38 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (amended motion for summary judgment supersedes prior motion for summary judgment).
We do not address Southern Pioneer's third issue challenging the trial court's failure to rule on its first amended motion for default judgment because nothing in the record indicates that the trial court ruled on the motion or that Southern Pioneer brought the motion to the trial court's attention for it to rule on. See In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (stating trial court is not required to consider motion not brought to its attention and holding filing motion with court clerk is not proof motion was brought to court's attention or presented to court with request for ruling). Although Southern Pioneer filed its amended motion with the clerk and set the motion for hearing at the same time as its motion to reinstate, there is no reporter's record from the hearing or anything in the clerk's record indicating that the trial court considered the amended motion or that Southern Pioneer brought the amended motion to the trial court's attention. See Quintana v. CrossFit Dall., L.L.C., 347 S.W.3d 445, 448-49 (Tex. App.—Dallas 2011, no pet.) (holding record did not show that motion for continuance was brought to trial court's attention before rendition of final judgment, even though motion was filed with clerk and noticed for hearing at same time as another motion that was ruled on after hearing).
We overrule Southern Pioneer's second and third issues.
Conclusion
Because we conclude that the trial court abused its discretion by denying Southern Pioneer's motion to reinstate, we reverse the trial court's judgment and remand the case for further proceedings.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Jennings, and Lloyd.