                                   MEMORANDUM OPINION
                                            No. 04-09-00818-CV

                                      David BATES and Ellen Bates,
                                              Appellants

                                                       v.

                          SUNSHARE RV, LTD., Bob Lyons, Brian Coyle,
                             Clay Weger, and Vacations In Style, LLC,
                                            Appellees

                        From the County Court at Law, Kendall County, Texas
                                   Trial Court No. 07-137-CCL
                             Honorable Bill R. Palmer, Judge Presiding 1

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 15, 2010

REVERSED AND REMANDED

           David Bates and Ellen Bates appeal the trial court’s dismissal of the underlying cause for

want of prosecution and its denial of the Bates’ motion to reinstate. We reverse the trial court’s

order denying the Bates’ motion to reinstate and remand the cause for further proceedings.




1
  The Honorable Keith Williams signed the order dismissing the underlying cause, and the Honorable Bill R. Palmer
signed the order denying the motion to reinstate.
                                                                                       04-09-00818-CV


                                           BACKGROUND

       The Bates filed the underlying lawsuit on March 21, 2007, alleging various causes of

action arising from the rental of their recreational vehicle. After engaging in a continuous period

of discovery, the parties were referred to mediation. On November 13, 2008, the Bates filed a

motion to set the cause on the jury docket, and the cause was set for trial on May 11, 2009. On

November 14, 2008, the trial court signed a scheduling order that required proposed jury

instructions, definitions, and questions to be provided to the trial court by noon on the Monday

preceding the week of the trial date. On May 5, 2009, the trial court signed an order stating that

the parties had failed to comply with the scheduling order and, as a result, the trial court dropped

the May 11, 2009 trial setting.

       On June 29, 2009, the Bates filed a second motion to set the cause on the jury docket, and

the cause was set for trial on October 13, 2009. On October 6, 2009, the trial court signed an

order stating that the parties failed to comply with the scheduling order. In addition to dropping

the trial setting, the trial court’s order set a dismissal hearing. At the hearing, the Bates’ attorney

explained that no scheduling order was entered after the case was reset, and the Bates were ready

to proceed with trial. The trial court noted that the lawsuit had been pending since March of

2007, and had been set twice with no compliance with the trial court’s scheduling order. After

the hearing, the trial court signed an order on November 23, 2009, dismissing the cause for want

of prosecution.

       On November 30, 2009, the Bates filed a verified motion to reinstate. The affidavit of

the Bates’ attorney was attached to the motion. In the affidavit, the Bates’ attorney detailed the

discovery and other actions undertaken in pursuing the case. The attorney also stated that he

filed a motion for continuance on May 6, 2009, which he believed was the reason the first trial



                                                 -2-
                                                                                     04-09-00818-CV


setting was dropped. The appellate record in this case, however, does not contain a motion for

continuance. The attorney further stated both in the affidavit and at the hearing that he believed

a new scheduling order would be issued when the case was reset and believed the November 14,

2008 scheduling order pertained only to the first trial setting. The trial court responded that the

order was worded to carry over. The trial court asked the attorney why he failed to submit

special issues or instructions prior to the first trial setting, and the attorney responded that his

office had failed to note the deadline on the calendar by mistake. The attorney also stated he

would immediately file special issues and would proceed with trial at the court’s convenience.

The trial court denied the motion to reinstate.

                                            DISCUSSION

       “We review an order denying a motion to reinstate under an abuse of discretion

standard.” Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.).

“A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without

reference to any guiding rules or principles.” Id.

       When a case is dismissed for want of prosecution, the trial court must reinstate the case

upon finding 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. Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468

(Tex. 1995); Cappetta, 222 S.W.3d at 167. A failure is not intentional or due to conscious

indifference merely because it is deliberate; it must also be without adequate justification. Smith,

913 S.W.2d at 468; Cappetta, 222 S.W.3d at 167. Proof of such justification — accident,

mistake, or other reasonable explanation — negates the intent or conscious indifference for

which reinstatement can be denied. Smith, 913 S.W.2d at 468; Cappetta, 222 S.W.3d at 167.



                                                  -3-
                                                                                     04-09-00818-CV


Also, conscious indifference means more than mere negligence. Smith, 913 S.W.2d at 468;

Cappetta, 222 S.W.3d at 167.

       In this case, the Bates’ attorney explained that the failure to comply with the scheduling

order in relation to the first trial setting was due to a mistake in calendaring. Furthermore, the

attorney explained that the failure to comply with the scheduling order in relation to the second

trial setting was based on the attorney’s understanding that a new scheduling order would be

entered after the trial was reset.    The attorney’s understanding is consistent with existing

precedent. See Killam Ranch Properties, Ltd. v. Webb County, No. 04-08-00105-CV, 2008 WL

4958452, at *4 (Tex. App.—San Antonio Nov. 19, 2008, no pet.) (stating resetting nullifies

previous deadlines set forth in pretrial guideline order) (mem. op.); Daniels v. Yancey, 175

S.W.3d 889, 893 (Tex. App.—Texarkana 2005, no pet.) (same); Felker v. Petrolon, Inc., 929

S.W.2d 460, 467 n.9 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (noting trial court

overruled objection that expert was not properly designated according to scheduling order based

on cases trial court cited that held scheduling order deadlines are no longer in effect when a trial

is reset); J.G. v. Murray, 915 S.W.2d 548, 550 (Tex. App.—Corpus Christi 1995, no writ)

(holding trial resetting nullifies deadlines set by docket control order); but see G.R.A.V.I.T.Y.

Enterprises, Inc. v. Reece Supply Co., 177 S.W.3d 537, 543 n.2 (Tex. App.—Dallas 2005, no

pet.) (noting resetting did not affect deadlines where scheduling order expressly provided, “Reset

or continuance of the Initial Trial Setting [May 19, 2003] will not alter any deadlines established

in this Order or established by the Texas Rules of Civil Procedure, unless otherwise provided by

order.”). The attorney’s affidavit and testimony established that the failure to comply with the

scheduling order was not intentional or due to conscious indifference and that the Bates had




                                                -4-
                                                                                                     04-09-00818-CV


diligently pursued their claims. Accordingly, the trial court abused its discretion in denying the

Bates’ motion to reinstate. 2

                                                   CONCLUSION

         The trial court’s order denying the Bates’ motion to reinstate is reversed, and the cause is

remanded to the trial court for further proceedings.

                                                           Catherine Stone, Chief Justice




2
  Because we reverse the trial court’s order denying the motion to reinstate, we do not separately address whether
the trial court abused its discretion in dismissing the cause. See TEX. R. APP. P. 47.1 (opinions should address only
issues necessary to final disposition).

                                                         -5-
