Beverly Rasco v. Ducars Investment, LLC. ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00375-CV
___________________________
BEVERLY RASCO, Appellant
V.
DUCARS INVESTMENT, LLC, Appellee
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 20-0123-431
Dissenting Memorandum Opinion by Justice Wallach
DISSENTING MEMORANDUM OPINION
The majority holds that Rasco successfully established that the trial court
abused its discretion in refusing to grant her motion to reinstate her case after it was
dismissed for want of prosecution. Because I would hold that the trial court did not
abuse its discretion, I respectfully dissent.
Central to my conclusion that the trial court did not abuse its discretion is the
fundamental principle, acknowledged by the majority, that an appellate court cannot
conclude that a trial court abused its discretion merely because the appellate court
would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co.
v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). In a trial to the court where no findings
of fact or conclusions of law are filed, like here, the trial court’s judgment implies all
findings of fact necessary to support it. Sellers v. Foster, 199 S.W.3d 385, 392 (Tex.
App.—Fort Worth 2006, no pet.). A trial court does not abuse its discretion in
denying a motion to reinstate “when it bases its decision on conflicting evidence or
when some evidence of a substantive and probative character exists to support the
trial court’s decision.” Johnson v. Hawkins, 255 S.W.3d 394, 397 (Tex. App.—Dallas
2008, pet denied); see also In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig.
proceeding); Richmond Condos. v. Skipworth Com. Plumbing, Inc., 245 S.W.3d 646, 664
(Tex. App.—Fort Worth 2008, no pet.). In the context of a motion to reinstate after
dismissal, the question of whether a party’s failure to appear was intentional or the
result of conscious indifference is a fact question to be decided by the trial court in its
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discretion. Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex. App.—Texarkana 1995, writ
denied); see also Ransom v. Gibson, 553 S.W.3d 89, 93 (Tex. App.—Texarkana 2018, no
pet.). But see Dolgencorp of Tex. Inc. v Lerma, 288 S.W.3d 922, 925–27 (Tex. 2009); Smith
v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (both reversing trial
court’s determination that proffered explanations for failure to appear was
unreasonable, under abuse-of-discretion standard). While conscious indifference
means more than mere negligence, it has been defined to mean “the failure to take
action that would seem obvious to a reasonable person under the same
circumstances.” McLeod v. Gyr, 439 S.W.3d 639, 655 (Tex. App.—Dallas 2014, pet.
denied); Sellers, 199 S.W.3d at 400 (“Conscious indifference, on the other hand, means
failing to take some action that would seem to be indicated to a person of reasonable
sensibilities under similar circumstances.”); see also Martin v. Sanders, No. 01-18-00726-
CV, 2019 WL 2750598, at *3 (Tex. App.—Houston [1st Dist.] July 2, 2019, no pet.)
(mem. op.). Thus, in the absence of findings of fact in this case, the trial court’s
judgment implies the finding that Rasco’s failure to appear was not adequately
justified and therefore due to intentional or consciously indifferent conduct. See Sellers,
199 S.W.3d at 392.
The record reveals that there is evidence of a substantive and probative
character to support a finding of conscious indifference in Rasco’s failure to attend
the dismissal hearing. The Notice of Dismissal Setting (dismissal notice) was sent on
June 4, 2021, to all counsel, setting a dismissal hearing on August 20, 2021, at 3:00
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p.m., unless certain specific steps were taken within certain designated times. Rasco’s
counsel therefore had seventy-eight days to file the appropriate paperwork to avoid a
dismissal hearing. Not until August 11, 2021, at 2:05 p.m. did Rasco file a proposed
scheduling order which, according to the court coordinator’s electronic note on the
filing, was rejected because the case had not been set for trial with the court and the
scheduling order had not been signed by the clients. Both requirements were clearly
set out in the dismissal notice. At the reinstatement hearing Rasco’s counsel stated
that she misunderstood the client-signature requirements to be only for pro se cases.
This explanation is nonsensical since the dismissal notice expressly states that the
client’s signature is required if the party is represented by counsel. Rasco’s counsel
also said that she had contacted the court and obtained a trial setting, which was
controverted by the coordinator’s notation.
Rasco’s counsel filed a second proposed scheduling order on August 17, 2021,
just three days ahead of the dismissal hearing date. The notice required the proposed
order to be filed no later than ten days before the hearing, so the second proposed
order was submitted late.1 The court coordinator rejected this proposed order with
the notation, “REJECT: The attys still have not set the trial with the court, the Order
is not readable, AND the deadline to efile the Scheduling Order was 8/13/21. The
atty must appear on Friday with a signed, readable Scheduling Order.” Rasco’s
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Rasco’s counsel, for some unexplained reason, allegedly thought the order was
due no later than forty-eight hours before the hearing.
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counsel denied having seen this rejection before the dismissal hearing.2 However,
both sides’ counsel acknowledged to the trial court at the reinstatement hearing that
Ducars’s counsel had its paralegal send an email to Rasco’s counsel at 11:04 a.m. on
August 20, stating “I looked online at the DWOP setting for today. Still showing up.
I’m going to confirm if you are going to appear or not. I see there is a note from the
Judge regarding the scheduling order not being signed.”
Rasco’s counsel responded at 11:04 a.m. on the day of the hearing, “I’m sorry. I
got so busy I did not get around to checking. We did get the client’s signature, which
was original objection, so I hope that is sufficient. I did not make it to court this
morning. We will just have to wait and see.”3
Rasco’s counsel admitted that she should have called and checked on the
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compliance status but was too busy at the time.
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Ducars’s counsel read this email to the trial court at the hearing on Rasco’s
motion to reinstate. A party seeking reinstatement is entitled to an evidentiary hearing
on the motion to reinstate. Parker v. Cain, 505 S.W.3d 119, 122–23 (Tex. App.—
Amarillo 2016, pet. denied). When, during an evidentiary hearing, counsel makes
unsworn factual statements as an officer of the court, on the record and without
objection from opposing counsel, such statements are properly considered as
evidence. Est. of Hodges, No. 02-20-00020-CV, 2022 WL 1420976, at *9 (Tex. App.—
Fort Worth May 5, 2022, no pet. h.) (mem. op.); see also Banda v. Garcia, 955 S.W.2d
270, 272 (Tex. 1997) (holding that attorney’s unsworn statements attempting to prove
up oral settlement agreement were properly considered as some evidence because
opposing counsel did not object to statements that were clearly intended as
evidentiary in nature); Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 WL
2223582, at *11–12 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.);
Kern v. Spencer, No. 2-06-199-CV, 2008 WL 2854657, at *3 n.3 (Tex. App.—Fort
Worth July 24, 2008, no pet.) (mem. op.).
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So, almost four hours before the dismissal hearing was to start, Ducars’s
counsel sent an email to Rasco’s counsel alerting her to the existence of a problem
with the scheduling order and the pendency of the dismissal hearing and wanting to
know if she was going to attend. Her response was, “We will just have to wait and
see” what the court does. Wisely, Ducars’s counsel chose to attend the dismissal
hearing.
Johnson v. Hawkins is instructive on the issue of conscious indifference. Johnson
failed to appear for trial, and the case was dismissed for failure to appear and “all
other grounds supported by the file.” 255 S.W.3d at 396. A motion to reinstate was
filed and overruled. Id. at 397–98. On appeal, Johnson contended that the trial court
erred in overruling the motion to reinstate because his failure to appear was not
intentional or the result of conscious indifference but was due to an accident or
mistake. The court summarized the testimony as follows:
Appellant does not dispute he had notice of the trial setting and that
neither appellant nor his counsel appeared for trial. Rather, appellant
argues the failure to appear was not intentional or due to conscious
indifference because Clark [appellant’s counsel] believed the case was on
standby and he would be contacted if the case was called to trial. In
support of this position, Clark testified about the procedure used by the
trial court in September 2006, pursuant to which only the top four cases
were required to appear at docket call. King [appellant’s counsel’s
paralegal] testified he announced ready for the February 20, 2007 trial
setting, learned the case was not in the top four, and was not told by the
court coordinator that appellant and his lawyers had to be present at
docket call. In contrast, Rhone [court coordinator] testified she told
King that “they needed to be here.”
Id. at 398.
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The Johnson court affirmed the denial of the motion to reinstate, noting,
In considering the conflicting evidence, Judge Ginsberg could properly
find (1) Rhone told King that appellant and his counsel needed to be
present at trial; (2) appellant and his attorney failed to appear; and
(3) Clark’s reliance on the procedures used by the previous judge and
coordinator of the 193rd Judicial District Court, without confirming the
new judge would utilize the same procedures, showed appellant and his
attorney acted intentionally or with conscious indifference in failing to
appear. See Garcia v. Barreiro, 115 S.W.3d 271, 277 (Tex. App.—Corpus
Christi[-Edinburg] 2003, no pet.) (trial court did not err in denying
motion to reinstate when attorney left court, relying on fact two cases
were ahead of appellant’s case on trial docket, without assurance from
court coordinator case would not be reached for trial). Because there was
conflicting evidence before the trial court, it did not abuse its discretion
in denying appellant’s motion to reinstate. See Nawas v. R & S Vending,
920 S.W.2d 734, 738 (Tex. App.—Houston [1st Dist.] 1996, no writ)
(trial court did not abuse its discretion in denying motion to reinstate
when there was conflicting evidence regarding whether counsel was too
ill to appear at trial).
Id. at 398–99.
The same analysis is applicable here. There was a dispute about whether
counsel’s subjective belief that she did not need to appear and why counsel behaved
in the manner she did, were reasonable. At a minimum, Rasco’s counsel was made
aware by Ducars’s counsel on the morning of the dismissal hearing that the court had
advised them of a problem with the proposed scheduling order and that the dismissal
hearing was still on the docket, and he wanted to know if she was going to attend.
Rasco’s counsel had not checked to see if the court coordinator had advised of any
problems since she filed the second proposed scheduling order, and she did not do so
after being alerted to a problem by Ducars’s counsel. A person of ordinary intelligence
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and diligence under that circumstance would be expected to look for the problem
upon being alerted by opposing counsel. A quick review of the dismissal notice would
have shown that the hearing was scheduled for 3:00 p.m. that afternoon, and a review
of the court’s docket (as had been done by opposing counsel) would have disclosed
that the second order had not been signed by the court, confirming what opposing
counsel had told her and alerting her to go to the hearing at 3:00 p.m. None of this
was done. Instead, she just chose to simply “wait and see” what the court was going
to do. Further, Rasco’s counsel’s repeated inattention to the clear and direct
instructions in the dismissal notice could have been viewed by the trial court as a
pattern of conscious indifference. See Levine v. Shackelford, Melton & McKinley, L.L.P.,
248 S.W.3d 166, 168–69 (Tex. 2008).
Because the trial court denied the motion to reinstate after hearing evidence
that supports its implied finding that Rasco’s counsel’s failure to appear at the
dismissal hearing was the result of conscious indifference, instead of a justifiable
excuse, I would hold that there was no abuse of discretion, and I would affirm the
judgment of the trial court.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: September 22, 2022
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