ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 21 P12:50 Lisa Matz CLERK

Transcription

1 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 21 P12:50 Lisa Matz CLERK

2 NO CV IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT OF TEXAS AT DALLAS Debby Fisher, Appellant, v. Prestonwood Baptist Church Inc., Appellee. On Appeal from County Court at Law No.1 Collin County, Texas IDENTITY OF PARTIES AND COUNSEL Appellant: Appellant's Counsel: Debby Fisher LaVern D. Richards, Jr. Law Office of Vern D. Richards -1-

3 2591 Dallas Parkway, Ste. 300 Frisco, TX Telephone: (972) Facsimile: (972) com Appellee: Appellee's Counsel: Prestonwood Baptist Church Inc. Glynis L. Zavarelli Wentz & Zavarelli, L.L.P. Urban Towers 222 W. Las Colinas Blvd., Suite 1900N Irving, TX Telephone: (469) Facsimile: (469) ii-

4 TABLE OF CONTENTS Identity of Parties and Counsel Table of Contents Index of Authorities Statement of the Case Statement of Jurisdiction Issues Presented Statement of Facts Standard and Scope of Review Argument and Authorities Point I. iii iv vi vii vii The court erred in dismissing Plaintiff's case for failure to appear for pre-trial scheduling conference without scheduling a separate, subsequent hearing or applying a lesser remedy. Point II. 4 The court erred in denying Plaintiff's Motion to Reinstate for insufficiency of the affidavit attached to the motion because Tex. R.Civ.P. 165a(3) does not require an affidavit and could have allowed the mistake to be proven by other means including testimony at the hearing on the motion. Conclusion and Prayer Certificate of Service Appendix

5 INDEX OF AUTHORITIES CASES Alexander v. Lynda's Boutique, S.W.3d 845 (Tex. 2004). Bard v. Frank B. Hall & Co., S.W.2d 839 (Tex.App.-Fort Worth 2002, pet. dism'd). Capetta v.hermes, 2&3 222 S.W.3d 160 (Tex.App.-San Antonio 2006, no pet). Director, State Employees Workers' Camp. Div. v. Evans, S.W.2d 266 (Tex. 1994). Kenley v. Quintana Petroleum Corp., S.W.2d 318 (Tex.App.-San Antonio 1996, writ denied). MacGregor v. Rich, S.W.2d 74 (Tex. 1997). Mayad v. Rizk, S.W.2d 835 (Tex.Civ.App. -Houston[14th Dist.] 1977, writ ref'd n.r.e.). Olin Corp. v. Coastal Water Authority, S.W.2d 852 (Tex.App.-Houston [1 81 Dist.] 1993). Shook v. Gilmore & Tatge Manufacturing Co., Inc S.W.2d 294 (Tex. App.-Waco 1997). Smith v. Babcock & Wilcox Canst. Co., S.W.2d 467 (Tex. 1995). -iv-

6 Villareal v. San Antonio Truck & Equip., S.W.2d 628 (Tex. 1999). Wyatt v. Texas Okla. Express, Inc., S.W.2d 731 (Tex.App-Dallas 1985, no writ). STATUTES AND RULES Tex. R. Civ. P. 165(a) and (c) 3 -v-

7 STATEMENT OF THE CASE Nature of the Case: This is a premises liability case. Plaintiff brought suit against Prestonwood Baptist Church Inc. For injuries sustained in a fall on their premises on August 19, (CR 8-15) Trial Court: The Honorable Corrine Mason presiding in the County Court at Law No. 1, Collin County, Texas. Course of Proceedings: The court dismissed Plaintiff's case for Want of Prosecution when Plaintiff's attorney failed to appear at a scheduling conference on November 11, (CR 49). Plaintiff filed a Motion to Reinstate on December 9, (CR 50-57). The court denied the Motion to Reinstate in a hearing on January 20, (CR 91) Trial Court Disposition: The trial court dismissed the case for Want of Prosecution on November 11, (CR 49) Parties in this Appeal: Appellant is Debby Fisher Appellee is Prestonwood Baptist Church, Inc. -Vl-

8 STATEMENT OF JURISDICTION The court has jurisdiction to review the judgment of the trial court pursuant to Texas Rule of Appellate Procedure 25.1 (b) as Appellant, Debby Fisher, timely filed a notice of appeal. (CR 93-94) ISSUES PRESENTED ISSUE N0.1: The court erred in dismissing Plaintiff's case for failure to appear for pretrial scheduling conference without scheduling a separate, subsequent hearing or applying a lesser remedy. ISSUE NO.2: The court erred in denying Plaintiff's Motion to Reinstate for insufficiency of the affidavit attached to the motion because Tex. R.Civ.P. 165a(3) does not require an affidavit and could have allowed the mistake to be proven by other means including testimony at the hearing on the motion. -vn-

9 STATEMENT OF FACTS Debby Fisher regularly attends services at Prestonwood Baptist Church, and her son is enrolled in Prestonwood Academy, a private school located on the same property as the church. On August 19, 2007, Debby Fisher arrived at the church to deliver some cupcakes to her son's class to celebrate his birthday. She entered the premises and tripped on a bent metal grate covered by a rug in the alcove between the two entry doors. Debby Fisher injured both knees when she fell, and has required surgery to correct her injury. On August 17, 2009, Debby Fisher filed suit against Prestonwood Baptist Church Inc. for the personal injuries she suffered in her fall. [CR-8-15] On September 9, 2011, Defendant filed their Original Answer in this suit. [CR-21-26] On September 21, 2011, the trial court sent notice to all parties to file a scheduling order or appear at a scheduling conference set for November 11, [CR ] On November 11, 2011, the court held the scheduling conference. Plaintiff's counsel failed to appear, and had not filed a scheduling order. Defendant's counsel attended the scheduling conference. The court issued an Order of Dismissal for Want of Prosecution. [CR-49] On December 9, 2011, Plaintiff's counsel filed a Motion to Reinstate with an affidavit attached. [CR ) A hearing on Plaintiff's Motion to Reinstate was scheduled for January 20,

10 On January 16, 2012, Defendant filed a Response to Plaintiff's Motion to Reinstate objecting to Plaintiff's evidence in support of the Motion to Reinstate. [CR ] At the hearing on Plaintiff's Motion to Reinstate, Defendant argued that Plaintiff's affidavit was insufficient evidence in support of the Motion to Reinstate, (TR 7-10and the court denied Plaintiff's Motion to Reinstate. [CR- 91] Plaintiff filed her Notice of Appeal on February 8, [CR ] STANDARD AND SCOPE OF REVIEW The standard of review for a dismissal for want of prosecution under Tex.R.Civ.Proc. Rule 165(a) is an abuse of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74,75 (Tex. 1997). Capetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App. -San Antonio 2006, no pet.). The same standard of review is used for the denial of a motion to reinstate. Capetta, 222 S.W.3d at 164; Wyatt v. Texas Okla. Express, Inc., 693 S.W.2d 731, 732 (Tex.App. -Dallas 1985, no writ). ARGUMENT AND AUTHORITIES ISSUE N0.1: The court erred in dismissing Plaintiff's case for failure to appear for pre-trial scheduling conference without scheduling a separate, subsequent hearing or applying a lesser remedy. -2-

11 A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of Civil Procedure 165a, and (2) the trial court's inherent power. Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999). A trial court may dismiss a case under rule 165a on "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice" or when a case is "not disposed of within the time standards promulgated" by the Texas Supreme Court. Tex.R.Civ.P. 165a(1 ), (2). The court dismissed this case for failure to appear at a scheduling conference. The trial court is required by Rule 165a to provide notice of a dismissal hearing and conduct an oral hearing before dismissal. Villareal, 994 S.W.2d at 630. Dismissing a case for failure to attend a scheduling conference is equivalent to using a meat cleaver to perform surgery. The court has many tools for managing its docket. The use of the ultimate penalty of dismissal should be reserved for those circumstances where the conduct of a party is egregious. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 854 (Tex. 2004). Using the threat of a dismissal for failure to appear for a scheduling conference is an abuse of judicial power. The role of the judge is to ensure that justice is served, not simply to push cases through as quickly as possible. ~3-

12 ISSUE NO.2: The court erred in denying Plaintiff's Motion to Reinstate for insufficiency of the affidavit attached to the motion because Tex. R.Civ.P. 165a(3) does not require an affidavit and could have allowed the mistake to be proven by other means including testimony at the hearing on the motion. The party reinstatement has the burden to bring forth a record establishing that reinstatement was required. Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.-San Antonio 1996, writ denied). The plaintiff is not required to address whether reinstatement would be proper under other grounds for dismissal which were not specified by the trial judge as reasons for the dismissal of the case. Shook v. Gilmore & Tatge Mfg. Co., Inc., 952 S.W.2d 294 (Tex. App -Waco 1997 pet. denied). The trial court must reinstate a case upon finding, after a hearing, that the failure of the party or his attorney to appear was not intentional or the result of conscious indifference, but was due to accident or mistake. See Tex. R. Civ.P. 165a(3); Cappetta, 222 S.W.3d at 167. A failure to prosecute: [i]s 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. Proof of such justification-accident, mistake, or other -4-

13 reasonable explanation-negates the intent or conscious indifference for which reinstatement can be denied. Also, conscious indifference means more than mere negligence. Cappetta, 222 S.W.3d at 167 (quoting Smith v. Babcock & Wilcox Canst. Co., 913 S.W.2d 467, 468 (Tex. 1995)). The trial court abuses its discretion in denying reinstatement when the attorney's explanation for failure to appear is reasonable. Smith, 913 S.W.2d at "Some excuse, not necessarily a good one, is sufficient." Mayad v. Rizk, 554 S.W.2d 835, 838 (Tex.Civ.App.-Houston [14 1 h Dist.] 1977, writ ref'd n.r.e.). The court ruled that the affidavit in support of Plaintiff's Motion to reinstate was insufficient. (TR 10, 17-21). Tex.R.Civ.P. 165a(3) requires that a hearing be held on a Motion to Reinstate. Appendix A. The court has discretion in ruling on a Motion to Reinstate and should consider pleadings, testimony, and the record, not merely the statements included in the affidavit attached to the verified pleading. Bard v. Frank B. Hall & Company, 767 S.W.2d 839, 845 (Tex.App. -San Antonio 1989, writ denied). In fact, Plaintiff is not required to introduce the affidavit into evidence at the hearing on the Motion to Reinstate. Director, State Employees Workers' Camp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The court should have considered the statements in Plaintiff's Motion to Reinstate (CR 50-57), the explanation offered by Plaintiff's attorney in argument before the court (TR 3,21-25 to 4, 1-8). -5-

14 In ruling on the Motion to Reinstate, the court should have been mindful of'the mandate of Tex.R.Civ.P. 1, which provides that the purpose of the Rules of Civil Procedure is to obtain a fair, just, and equitable adjudication of rights under established principles of substantive law. Olin Corp. v. Coastal Water Authority, 849 S.W.2d 852 (Tex.App -Houston [1 51 Dist.] 1993). Failing to reinstate the case for her attorney's failures, impacts Plaintiff and not her attorney. The denial of the Motion to Reinstate is a denial of Plaintiff's rights to due process and to the fair adjudication of her claim. This is an inequitable result. CONCLUSION AND PRAYER Debby Fisher brought this premises liability claim against Prestonwood Baptist Church after she tripped and fell on a damaged door grate and injured her knees. She has done everything possible to pursue her claim properly. Debby Fisher is entitled to a trial on the merits of her claim. Debby Fisher accordingly prays that this court reverse the judgment of the trial court and remand this case for further proceedings. Debby Fisher prays for such other and further relief as to which she may be entitled. -6-

15 2591 Dallas Parkway, Ste. 300 Frisco, TX Telephone: (972) Facsimile: (972) Attorney for Appellant, Debby Fisher Certificate of Service I hereby certify that the foregoing Appellant's Brief was served on the following counsel of record via facsimile and certified mail on June 21, Glynis L. Zavarelli Wentz & Zavarelli, L.L.P. Urban Towers 222 W. Las Colinas Blvd., Suite 1900N Irving, TX Telephone: (469) Facsimile: (469) Counsel for Appellee, Prestonwood Baptist Church -7-

16 APPENDIX A. Tex. R. Civ. P. 1 B. Tex. R. Civ. P. 165(a) and (c) C. Order of Dismissal for Want of Prosecution (CR 49) D. Order Denying Plaintiff's Motion to Reinstate ( CR 91) -8-

17 Casemaker - Browse Texas Rules TEXAS RULES OF CIVIL PROCEDURE Part I. GENERAL RULES As amended through March 1, 2012 Rule 1. OBJECTIVE OF RULES The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.

18 I of2 6/ :35 PM Casemaker- Browse Texas Rules TEXAS RULES OF CIVIL PROCEDURE Part II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS 7. ABATEMENT AND DISCONTINUANCE OF SUIT. As amended through March 1, 2012 Rule 165a. DISMISSAL FOR WANT OF PROSECUTION 1. Failure to Appear. 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. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, filing of all pleadings, the making of a response or supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule. 2. Non-Compliance With Time Standards. Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket. 3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate 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. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. The court shall reinstate the 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. In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first. 4. Cumulative Remedies. This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to

19 2 of2 6/ :35 PM Casemaker- Browse dismiss has been filed.

20 01/16/ : WENTZ ZAVARELLI..., 11/15/ :18 AM Scanned ( PAGE 15/27 Cause Number: 001 m Debby Fisher vs County Court at Law Number One Prestonwood Church, Inc. Baptist C...ollin County, Te:7(as,PRDER OF Ql~M.JSSAL FOR~~ OF PRQS.ECUTIOZS: i. ' On the 11th day ofnovember, 2011, this cause was scheduled fur either a pretrial conference or a trial, but no party with a claim for affinnative relief appeared. Consequently, the Court is of the opinion that the claims fur affirmative relief of all pm;ties should be dismissed for want of prosccution 1 and that those parties pay their own costs~ plus the CO$ts of all parties having no claims fur afl'irrnative relief. IT IS THEREFORE ORDERED, ADIDDGED and DECREED that every pending olaim for aflir:mative relief is dismissed for want ofprosecution, and that parties with claims for affirmative relief pay their own cost, pjus the costs of all parties having no claims fur affirmative relief,. fur all ofwhich let execution issue. All relief prayed 'lbr but not e":pressly granted herein is denied. SIGNED TI US 11th day ofnovember, (.. Q~J1. - Corinne A. Maso~ Judge Presiding

21 CAUSE NO DEBBY FISHER, IN THE COUNTY COURT :. l Plailltijf ij vs.,,. I. '! ATLAWNO.l il PRESTONWOOD BAPTIST CHURCH, INC. :I? 1 :J Defendant COLLIN COUNTY, TEXAS ORDER DENYING PLAINTIFF'S MOTION TO REINSTATE ii ON THIS DATE the Court heard Plaintiff Debby Fisher's Motion to Reinstate. The Court, having considered Plaintiffs Motion, the Response filed by Defendant Preston wood Baptist Church, Inc., the evidence presented, and the arguments of counsel, finds that Plaintiff Debby Fisher's Motion to Reinstate should be DENIED. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED that Plaintiff Debby Fisher's Motion to Reinstate be, and hereby is, DENIED. SIGNED on THIS 13 DAY of January, JUDGE PRESIDING ORDER DENYING PLAINTIFF'S MOTION TO REINSTATE