                                                                              ACCEPTED
                                                                          08-18-00018-CV
                                                               EIGHTH COURT OF APPEALS
                   08-18-00018-CV                                        EL PASO, TEXAS
                                                                       5/25/2018 10:32 AM
                                                                        DENISE PACHECO
                                                                                   CLERK

                  COURT OF APPEALS
             EIGHTH DISTRICT OF TEXAS
                    EL PASO, TEXAS                  FILED IN
                                             8th COURT OF APPEALS
  ____________________________________________________
                                                 EL PASO, TEXAS
                                                  5/25/2018 10:32:37 AM
                  NO. 08-18-00018-CV                 DENISE PACHECO
                                                           Clerk
 _____________________________________________________

                 ROSA MARIA ARZATE,

                                 Appellant,

                           vs.

MATTHEW MANUEL ANDUJO and JUAN MIGUEL TORRES,

                              Appellees.
    ________________________________________________

                BRIEF OF APPELLANT
   _________________________________________________

                                 Scherr & Legate, PLLC
                                 109 N. Oregon 12th Floor
                                 El Paso, Texas 79901
                                 Telephone: (915) 544-0100
                                 Fax: (915) 532-1759

                                 Jeffrey B. Pownell
                                 Texas Bar No. 16222900
                                 jpownell@scherrlegate.com
                                 Counsel for Appellant
                                 Rosa Maria Arzate

              ORAL ARGUMENT WAIVED
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of the parties, attorneys, and any other person

who has any interest in the outcome of this lawsuit:

The Honorable Louis Aguilar, Trial Judge Presiding
243rd Judicial District Court
El Paso County Courthouse
500 E. San Antonio, Room 901
El Paso, Texas 79901
(915) 546-2168 – phone
(915) 546-8107 – fax

Rosa Maria Arzate, Plaintiff/Appellant
Jeffrey B. Pownell
Scherr & Legate, PLLC
109 North Oregon, 12th Floor
El Paso, Texas 79901
(915) 544-0100 – phone
(915) 532-1759 – fax
jpownell@scherrlegate.com

Matthew Manuel Andujo, Defendant/Appellee
301 Montestruc APT #1
El Paso, Texas 79901
and
1440 Goodyear
El Paso, Texas 79936

Juan Miguel Torres, Defendant/Appellee
301 Montestruc APT #1
El Paso, Texas 79901
and
4302 Alameda
El Paso, Texas 79905


                                          ii
                                        TABLE OF CONTENTS

Identity of Parties and Counsel.....................................................................           ii

Table of Contents.........................................................................................     iii

Index of Authorities......................................................................................     iv

Statement of the Case...................................................................................       1

Issues Presented...........................................................................................    1

Statement of Facts........................................................................................     1

Summary of the Argument............................................................................            9

Argument and Authority................................................................................        10

         A.       Standard of review and applicable law....................................... 10

         B.       The trial court erred in dismissing the case.................................. 12

                  1.       No failure to comply with Rule 165a(1) or (2)................... 12

                  2.       No notice based on the trial court’s inherent power to
                           dismiss for failure to diligently prosecute the case
                           (which would be an abuse of discretion in any case)........... 12

         C.       The trial court also erred in failing to reinstate the case.................15

Conclusion and Prayer..................................................................................... 18

Certificate of Compliance and Service............................................................ 20

Appendix ...................................................................................................... App
     Dismissal Order for Want of Prosecution (CR 290)
     Notice of Dismissal Hearing Under Rule 165a (CR 49)

                                                          iii
                                   INDEX OF AUTHORITIES
Cases:                                                                                              Page

Brim Laundry Mach. Co. v. Washex Mach. Corp.,
   854 S.W.2d 297 (Tex. App. – Fort Worth 1993, writ denied)................                          11

Goff v. Branch, 821 S.W.2d 732
  (Tex. App. – San Antonio 1991, writ denied).........................................                 11

Jimenez v. Transwestern Prop. Co.,
   999 S.W.2d 125 (Tex. App. – Houston [14th Dist.] 1993, no writ)......... 11

Johnson-Snodgrrass v. KTAO, Inc.,
   75 S.W.3d 84 (Tex. App. – Forth Worth 2002, pet. dism’d).......... ........ 10-14

Lopez v. Harding, 68 S.W.3d 78
  (Tex. App. – Dallas 2001, no pet.)........................................................... 10

MacGregor v. Rich, 941 S.W.2d 74 (Tex. 1997)......................................... 10

Maida v. Fire Ins. Exch., 990 S.W.2d 836
   (Tex. App. – Forth Worth 1999, no pet.).....................................10-11,14-15,18

Shook v. Gilmore & Tatge Mfg. Co.,
   951 S.W.2d 294 (Tex. App. – Waco 1997, writ denied)........................... 12

Smith v. Babcock & Wilcox Const. Co.,913 S.W. 2d 467 (Tex. 1995)........... 12

Tex. Mut. Ins. v. Olivas, 323 S.W.3d 266
   (Tex. App. – El Paso 2010, no pet.)......................................................... 14

Villarreal v. San Antonio Truck & Equip.,
    994 S.W.2d 628 (Tex. 1999).................................................................... 11

Statutes and Rules:

Tex. R. Civ. P. 165a.................................................................................... passim


                                                       iv
                            STATEMENT OF THE CASE

       This is an appeal from the trial court’s order of dismissal for want of

prosecution signed November 9, 2017, in the matter below styled Rosa Maria

Arzate v. Matthew Manuel Andujo, Juan Miguel Torres, and C.R.A.W. Oyster Bar

& Lounge, LLC a/k/a CRAW Oyster Bar & Lounge, LLC d/b/a CRAW Oyster Bar

& Lounge, No. 2017-DCV0567, in the 243rd Judicial District Court, Louis Aguilar,

judge presiding.1 (CR 290) (dismissal order). On February 7, 2018, Appellant Rosa

Maria Arzate (“Arzate” or “Plaintiff”) filed her notice of appeal. (CR 428-564).

                                    ISSUES PRESENTED

       The trial court erred when it dismissed the case for want of prosecution.

       The trial court erred when it failed to reinstate the case.

                                 STATEMENT OF FACTS

       On February 17, 2017, Plaintiff filed her Original Petition for personal injuries

against Defendants MATTHEW MANUEL ANDUJO and JUAN MIGUEL


       1
         Defendant CRAW Oyster Bar & Lounge, LLC (“CRAW Oyster Bar”) was added as a
defendant in Plaintiff’s First Amended Petition filed October 7, 2017, and had not been served or
otherwise made an appearance at the time of the trial court’s order of dismissal signed November
9, 2017. However, Appellant has since entered into an Agreed Judgment with Defendant CRAW
Oyster Bar in a re-filed suit, so appellant does not intend to seek any appellate relief in this appeal
as to the trial court’s dismissal of her claims against CRAW Oyster Bar. Nevertheless, for
purposes of this appeal, the trial court’s dismissal of Plaintiff’s claims against CRAW Oyster Bar
for want of prosecution – slightly more than a month after Plaintiff brought her claims against it –
remains relevant to the issues presented in this appeal of whether the trial court erred in dismissing
the case for want of prosecution and in failing to reinstate the case.

                                                  1
TORRES, arising out of an incident that occurred on or about February 17, 2016, in

El Paso County, Texas. (CR 11-15). Among other things, Plaintiff alleged in her

petition that at such time and place, Plaintiff was traveling eastbound on 1-10 west

at approximately 12:10 a.m. when Defendant MATTHEW MANUEL ANDUJO,

who was intoxicated, entered the freeway from the 1-10 East Airway off ramp while

driving a vehicle owned by Defendant JUAN MIGUEL TORRES with his

permission, and thereafter drove into 1-10 eastbound traffic while driving the wrong

way, causing the collision of several vehicles, including the vehicle operated by

Plaintiff. Said occurrence caused substantial physical injuries to Plaintiff.

Defendant ANDUJO was negligent and grossly negligent. Defendant TORRES

negligently entrusted the vehicle to Defendant ANDUJO. (CR 12).

       The record reflects on May 11, 2017, Defendant JUAN MIGUEL TORRES

was personally served with citation and a copy of Plaintiff’s Original Petition, by

process server Eric Bogle, delivering same to him in person at 4302 Alameda, El

Paso, Texas 79905, at 1:35 p.m. (CR 62-63) (Motion for Default Judgment, Ex B).

Thus, Defendant JUAN MIGUEL TORRES’s deadline to file an answer or appear

in the case was on Monday, June 05, 2017, and citation and proof of service had

been on file with the clerk at least 10 (ten) days, excluding day of filing and day of

hearing, on Plaintiff’s Motion for Default Judgment filed September 22, 2017, and

                                           2
heard October 12, 2017. (CR 51-75 (Motion for Default Judgment filed September

22, 2017); (RR 1, pp. 3-5) (Motion for Default Judgment heard October 12, 2017).

      The record reflects on May 12, 2017, Defendant MATTHEW MANUEL

ANDUJO was personally served with citation and a copy of Plaintiff’s Original

Petition on May 12, 2017, by process server Eric Bogle, delivering same to him in

person at 1440 Goodyear, El Paso, Texas 79936, at 12:08 p.m. (CR 59-60)

(Motion for Default Judgment, Ex. A). Thus, Defendant MATTHEW ANDUJO’S

deadline to file an answer or appear in the case was on Monday, June 5, 2017, and

citation and proof of service had been on file with the clerk at least ten (10) days,

excluding day of filing and day of hearing, on Plaintiff’s Motion for Default

Judgment filed September 22, 2017, and heard October 12, 2017. (CR 51-75

(Motion for Default Judgment filed September 22, 2017); (RR 1, pp. 3-5) (Motion

for Default Judgment heard October 12, 2017).

      On July 17, 2017, Defendants’ insurance carrier sent a letter to Plaintiff’s

counsel regarding the case, stating in relevant part that “although every effort has

been made to contact our insured, we have been unable to complete our

investigation into the above referenced claim due to their non-cooperation” and

“[c]onsequently, we must deny all claims arising from this loss. If in the future

they choose to cooperate in our investigation, we may reopen this file for

                                          3
consideration.” (CR 74) (Motion for Default Judgment, Ex. D).

       Thereafter, on September 22, 2017, Plaintiff filed her Motion for Default

Judgment and requested that the Court enter default judgment against Defendants

JUAN MIGUEL TORRES and MATTHEW MANUEL ANDUJO, due to their

failure to answer or otherwise appear in the case following their June 5, 2017

deadlines to do so (CR 51-75), and on September 28, 2017, the matter was set for

hearing for October 12, 2017. (CR 76).

      Shortly before the default judgment hearing, on October 7, 2017, Plaintiff filed

her First Amended Petition and added Defendant C.R.A.W. OYSTER BAR &

LOUNGE, LLC, a/k/a CRAW OYSTER BAR & LOUNGE, LLC d/b/a CRAW

OYSTER BAR & LOUNGE, a Texas corporation (“CRAW OYSTER BAR”), and

added dram-shop claims against Defendant CRAW OYSTER BAR for negligently

providing intoxicating alcoholic beverages to Defendant MATTHEW ANDUJO when

Defendant had actual or constructive knowledge of his intoxication and knew or should

have known that continuing to provide alcoholic beverages to Defendant MATTHEW

ANDUJO created a danger to others driving on the roadways, including Plaintiff, in

violations of relevant provisions of the Texas Alcohol and Beverage Code and other

relevant laws and ordinances of the City of El Paso and State of Texas. (CR 264-70).

      On October 12, 2017, hearing was held before the trial court on Plaintiff’s

                                          4
Motion for Default Judgment against Defendants MATTHEW ANDUJO and JUAN

MIGUEL TORRES, whose deadline to answer or otherwise appear in the case had

expired on June 5, 2017. (RR 1, pp. 3-4). Plaintiff’s counsel Rolando Morales was

present at the hearing, along with Plaintiff, who was present to provide testimony to

the Court on the issue of her damages. Plaintiff’s counsel had also prepared a notebook

for the Court’s reference at the hearing that provided relevant copies of evidence

reflecting that Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES had

been personally served with the suit on May 11, 2017 and May 12, 2017 (CR 345-386)

(Exhibits 1-6), along with evidence of Plaintiff’s property damages and medical bills

and medical summary for injuries she sustained as a result of the incident (CR 387-424)

(Exhibits 9-15). See CR 301-302; CR 306 (statements contained in Motion to

Reinstate verified as true and correct); CR 345-424 (“Plaintiff’s Exhibit List” notebook

with Exhibits 1-15).

      Without hearing evidence from Plaintiff, the trial court summarily denied

Plaintiff’s Motion for Default Judgment (RR 1, pp. 3-4) and the same day (October 12,

2017), sua sponte set the matter for a dismissal hearing under Rule 165a for November

9, 2017 by issuing a “NOTICE OF DISMISSAL HEARING UNDER RULE 165a,

TEXAS RULES OF CIVIL PROCEDURE.” (CR 262). The notice states “In

compliance with Rule 165a, Texas Rules of Civil Procedures (T.R.C.P.), you are

                                           5
hereby notified a dismissal for want of prosecution hearing has been set in the above-

styled and numbered cause 20167 DCV10567 as per attached” (CR 262). The notice

of dismissal does not provide any notice of the court’s intent to dismiss based on its

inherent powers. (CR 262).

      On November 9, 2017, Plaintiff’s counsel Rolando Morales attended the

dismissal hearing. (RR 1, pp. 5-6). At the hearing, the Court summarily dismissed the

case for want of prosecution (RR 1, pp. 5-6) and the same day signed a “Dismissal

Order for Want of Prosecution” (CR 290) that states in pertinent part:

          DISMISSAL ORDER FOR WANT OF PROSECUTION

           BE IT REMEMBERED THAT THE COURT, AFTER DUE
       NOTICE TO THE ATTORNEY/PRO SE OF RECORD IN THE
       ABOVE STYLED AND NUMBERED CAUSE THAT SAID
       CAUSE WOULD BE DISMISSED ON October 12, 2017 FOR
       WANT OF PROSECUTION, ON THE GROUNDS STATED IN
       THE NOTICE OF INTENT TO DISMISS FOR WANT OF
       PROSECUTION, UNLESS THERE WAS GOOD CAUSE BEING
       SHOWN.
                                ....

          IT IS THE ORDER OF THE COURT THAT THE ABOVE
       STYLED AND NUMBERED CAUSE BE DISMISSED FOR
       WANT OF PROSECUTION. COURT COSTS ARE TAXED
       AGAINST PLAINTIFF.

(CR 290) (underline in order added; underline in title and boldface in order).

      At the time the case was dismissed for want of prosecution, Plaintiff’s claims


                                          6
against Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES had

been pending for less than nine months from the date suit was filed, and less than six

months from the date of personal service on Defendants (on May 11, 2017 and May

12, 2017); and her claims against Defendant CRAW OYSTER BAR (set forth in

Plaintiff’s First Amended Petition filed October 7, 2017 (CR 264-70)) had been

pending for little more than a month from the time the amended petition was filed.2

      On December 7, 2017, Plaintiff filed her Verified Motion to Reinstate

Pursuant to Rule 165a, with supporting documentation, and requested the trial court

reinstate the case for good cause shown. (CR 299-426). On December 12, 2017,

the trial court set the matter for hearing for February 1, 2018. (CR 427). On

February 1, 2018, Plaintiff’s counsel Jeff Pownell and Rolando Morales were

present at the hearing. (RR 1, p. 6). After hearing arguments of counsel, the trial

court denied the motion. (RR 1, pp. 6-10).

      Plaintiff’s counsel appeared at all hearings in the case as reflected on the case

docket sheet. (CR 302 ¶ 9; CR 306 (statements contained in Motion to Reinstate

verified as true and correct)). At the time of dismissal, pendency of the case was

well within the time standards promulgated by the Supreme Court under the

Administrative Rules. (CR 302 ¶ 9; CR 306).

      2
          Defendant CRAW Oyster Bar had not been served at the time of dismissal.

                                                7
      The record also demonstrates that Plaintiff prosecuted her case with

diligence. In addition to seeking default judgment, the record shows Plaintiff served

written discovery on defendants contemporaneously with filing her claims against

them. See CR 22-27, 28-32 (Plaintiff’s Request for Production of Documents

served on Defendants Andujo and Torres with Original Petition); CR 33-37, 38-42

(Plaintiff’s First Set of Interrogatories served on Defendants Andujo and Torres with

Original Petition ); CR 43-45 (Plaintiff’s Request for Disclosure served on

Defendants Andujo and Torres with Original Petition); CR 271-76; 277-83; 284-87

(Plaintiff’s First Set of Interrogatories, First Request for Production of Documents,

and Request for Admissions to Defendant CRAW Oyster Bar, filed with First

Amended Petition). The record also demonstrates that Plaintiff filed her “Notice of

Intent to Use Medical [and Business] Records” with records and billings from her

medical providers to prepare for trial or other disposition. See CR 77-83

(Plaintiff’s Notice of Intent to Use Medical and Business Records of Mehta Nilesh,

MD, filed October 2, 2017); CR 84-141 (Plaintiff’s Notice of Intent to Use Medical

and Business Records of El Paso Orthopedic Surgery Group, filed October 2,

2017); CR 142-257; 258-61 (Plaintiff’s Notice of Intent to Use Medical Records of

University Medical Center of El Paso and Notice of Intend to Use Business Records

of University Medical Center of El Paso, both filed October 3, 2017).

                                           8
                       SUMMARY OF THE ARGUMENT

      The trial court erred when it dismissed the case for want of prosecution under

Rule 165a. Plaintiff’s counsel appeared at all hearings in the case. At time of

dismissal, Plaintiff’s claims against Defendants Andujo and Torres had been

pending less than nine months from the date suit was filed and less than six months

from the date they were served, and Plaintiff’s amended petition with claims against

Defendant CRAW Oyster Bar had been pending little more than a month.

      The trial court did not provide notice of any intent to dismiss based on its

inherent authority, but even if it did, Plaintiff prosecuted her case with diligence.

Plaintiff served Defendants Andujo and Torres with suit and extensive written

discovery. After being informed that their insurer would not provide a defense,

Plaintiff filed a Motion for Default Judgment and set the matter for hearing. At the

hearing, the trial court summarily denied Plaintiff’s motion and the same day sua

sponte set the matter for dismissal hearing under Rule 165a less than a month later.

      The trial court also erred when it failed to reinstate the case, as Plaintiff’s

verified motion to reinstate, with supporting documentation, established good cause

to reinstate the case. The trial court’s order of dismissal should be vacated and the

case reversed and remanded to the trial court for trial or other disposition on the

merits.

                                            9
                        ARGUMENT AND AUTHORITY

A.    Standard of review and applicable law.

      A trial court’s authority to dismiss a case for want of prosecution derives

from two sources: Rule 165a of the Texas Rules of Civil Procedure and the trial

court’s inherent power. See Tex. R. Civ. P. 165a(1); Lopez v. Harding, 68 S.W.3d

78, 79 (Tex. App. – Dallas 2001, no pet.). The Court reviews a trial court’s order

of dismissal under either source for an abuse of discretion. MacGregor v. Rich, 941

S.W.2d 74, 75 (Tex. 1997). A trial judge abuses his discretion when he acts

arbitrarily or unreasonably, or without reference to guiding rules and principles. See

Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).

      Under Rule 165a(1), a trial court may dismiss a case for want of prosecution

is a party fails to appear at trial or a hearing. Tex. R. Civ. P. 165a(1); Johnson-

Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex. App. – Fort Worth 2002, pet.

dism’d) (citing Maida v. Fire Ins. Exch., 990 S.W.2d 836, 841 (Tex. App. – Fort

Worth, no pet.). Under Rule 165a(2), a trial court may dismiss a case for want of

prosecution , when the case is not disposed of in accordance with the time standards

prescribed by the supreme court. Tex. R. Civ. P. 165a(2). The time standard

governing civil jury cases (other than family law cases) encourages final disposition

of the case within eighteen months from appearance date. Tex. R. Jud. Admin. 6,

                                          10
reprinted in Tex. Gov’t Code Title 2, Subtitle F App.; Maida, 990 S.W. at 842.

      A trial court also has the inherent authority to dismiss a case that has not been

diligently prosecuted, which derives from its power to maintain and control its

docket. See Johnson-Snodgrass, 75 S.W.3d at 88; Maida, 990 S.W.2d at 842

(citing Brim Laundry Mach. Co. v. Washex Mach. Corp., 854 S.W.2d 297, 301

(Tex. App. – Fort Worth 1993, writ denied)). However, a party must be provided

with adequate notice of the trial court’s intent to dismiss for want of prosecution

based on its inherent authority (i.e., for failure to diligently prosecute a case) rather

than for violation(s) of Rule 165a. Villarreal v. San Antonio Truck & Equip., 994

S.W.2d 628, 630 (Tex. 1999).

      Moreover, notice that a case may be dismissed for grounds under Rule 165a

does not constitute adequate notice that the trial court may exercise its inherent

authority to dismiss for failure to diligently prosecute. Villarreal, 994 S.W. 2d at

630; Harding, 68 S.W.3d at 79; Goff v. Branch, 821 S.W.2d 732, 736 (Tex. App. –

San Antonio 1991, writ denied). The omission of such notice is a denial of due

process under the Fourteenth Amendment. See Villarreal, 994 S.W.2d at 630;

Jimenez v. Transwestern Prop. Co., 999 S.W. 2d 125, 128 (Tex. App. – Houston

[14th Dist.] 1993, no writ).

      Denial of a motion to reinstate is also reviewed under an abuse of discretion

                                            11
standard. See Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 467 (Tex.

1995); Goff, 821 S.W.2d at 733. In reviewing a court’s refusal to reinstate, the

reviewing Court first looks to the trial court’s basis for dismissal, which provides

the measure whereby the Court may then determine if the trial judge abused his

discretion in refusing to reinstate. See, e.g., Shook v. Gilmore & Tatge Mfg. Co.,

951 S.W.2d 294, 296 (Tex. App. – Waco 1997, writ denied).

B.    The trial court erred in dismissing the case.

      The trial court abused its discretion and so erred in dismissing the case for

want of prosecution under Rule 165a. The evidence is undisputed that (1) Plaintiff

or her counsel did not fail to appear at any hearing or trial, and (2) the case was well

within the supreme court’s disposition time standards at the time of dismissal. See

Statement of Facts pp. 2-8 (incorporated into this argument section by reference as

if fully set forth herein). The trial court’s dismissal for want of prosecution under

Rule 165a therefore was an abuse of discretion and requires reversal and remand.

See Johnson-Snodgrass, 75 S.W.3d at 86-87 (when evidence established dismissal

was not authorized under Rule 165a(1) or (2), “any dismissal of [plaintiff’s] suit

under Rule 165a constituted an abuse of discretion” requiring reversal and remand).

      Moreover, any dismissal based on the trial court’s inherent authority (to

dismiss for failure to diligently prosecute the case) also constitutes an abuse of

                                           12
discretion, because the trial court’s “Notice of Dismissal Hearing Under Rule 165a,

Texas Rules of Civil Procedures” (CR 262) and “Dismissal Order for Want of

Prosecution” (CR 290) both expressly provide that notice of dismissal was pursuant

to Rule 165a, not pursuant to his inherent authority.

      Accordingly, dismissal of the case based on the trial court’s inherent authority

violates Plaintiff’s due process rights and constitutes an abuse of discretion that

requires reversal. See Johnson-Snodgrass, 75 S.W.3d at 88-90 (sustaining

appellant’s issue “that the trial court could not exercise its inherent authority to

dismiss her suit because the dismissal notice indicated only that the case was subject

to dismissal for noncompliance with the supreme court’s time standards [under Rule

165a(2)], noting “[b]ecause Snodgrass was never notified that the trial court was

considering exercising its inherent authority to dismiss her lawsuit but was instead

told in the notice of dismissal and in the dismissal order that the dismissal was

initiated pursuant to rule 165a, she was deprived of the opportunity to intelligently

refute or respond to the proposed dismissal executed under the trial court’s inherent

authority [citations omitted] . . . [t]hus, Snodgrass’s due process rights were

violated, and we cannot agree with appellees’ contention to the contrary”) and

concluding the trial court abused his discretion in dismissing lawsuit under either

rule 165a or under its inherent authority).

                                              13
      Even if the trial court had provided notice of dismissal pursuant to his

inherent authority, dismissal on this ground would still be an abuse of discretion that

requires reversal and remand under the circumstances of this case. Factors a trial

court may consider when deciding whether to dismiss under its inherent power

include (1) the length of time the case was on file, (2) the extent of activity in the

case, (3) whether a trial setting was requested, and (4) whether there were any

reasonable excuses for the delay. Maida, 990 S.W.2d at 842; Texas Mut. Ins. v.

Olivas, 323 S.W.3d 266, 274 (Tex. App. – El Paso 2010, no pet.).

      Here, the record demonstrates (1) the case was on file a relatively short

period of time (less than nine months from the date suit was filed and less than six

months from the date Defendants Andujo and Torres were served; (2) extensive

activity took place in the case in the relatively short time the case was on file; (3)

Plaintiff (in effect) requested a “trial setting” by filing her Motion for Default

Judgment and affirmatively seeking default judgment against Defendants Andujo

and Torres after they failed to appear; and (4) Plaintiff reasonably explained the

short delay between the time Defendants Andujo and Torres were served and

Plaintiff’s filing her Motion for Default Judgment, because Plaintiff hoped that

Defendants would cooperate with their insurance carrier and would provide them a

defense, while obtaining a default judgment against them would be virtually certain

                                           14
to result in lack of insurance coverage for Plaintiff’s claim. See Statement of Facts

pp. 2-9 (incorporated by reference herein).

      Accordingly, even if the trial court had provided notice that he intended to

dismiss for failure to diligently prosecute the case based on his inherent authority,

which it did not, under the record presented in this case, dismissal on this ground

would in any case constitute an abuse of discretion that requires reversal and

remand. See Maida, 990 S.W. 2d at 842-43 (trial court abused its discretion in

dismissing case based on its inherent authority for failure to diligently prosecute,

when (1) case was on file for 17 months and dismissed 15 months from appearance

date, not in excess of supreme court standards, (2) significant discovery had

occurred, (3) case had been set for trial and was continued over Plaintiff’s objection,

(4) trial court sent dismissal notice after case was removed from its trial setting).

C.    The trial court erred in failing to reinstate the case.

      The trial court also abused its discretion and so erred in failing to reinstate the

case. On December 7, 2017, Plaintiff filed her Verified Motion to Reinstate

Pursuant to Rule 165a, with supporting documentation, and requested the trial court

reinstate the case for good cause shown. (CR 299-426). On December 12, 2017,

the trial court set the matter for hearing for February 1, 2018. (CR 427). On

February 1, 2018, Plaintiff’s counsel Jeff Pownell and Rolando Morales were

                                           15
present at the hearing and explained to the Court that Plaintiff had not earlier sought

default judgment against Defendant Andujo and Torres because a default judgment

likely would invalidate coverage under the insurance policy under which they were

both “Insured Persons” (as permissive driver (Andujo) and owner (Torres) of the

vehicle. (RR 1, pp. 6-10), but the trial court denied the motion. (RR 1, pp. 10).

      Rule 165a(3) provides in relevant part:

      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.

See Tex. R. Civ. P. 165a (3).

      In her Motion to Reinstate, Plaintiff alleged and verified that:

      “[Good cause exists to reinstate the case and Plaintiff’s failure to
      obtain judgment against Defendants was not intentional or the result of
      conscious indifference but may be reasonably explained. Plaintiff’s
      counsel has appeared on behalf of Plaintiff at all hearings in this case,
      and Plaintiff has also personally appeared at hearings in the case.

                                           16
Plaintiff diligently prosecuted her case against Defendants MATTHEW
ANDUJO and JUAN MIGUEL TORRES by first effectuating personal
service on said Defendants on May 11, 2017 and May 12, 2017; then
after being notified that said Defendants’ insurance company would not
tender a defense in this case due to their alleged non-cooperation,
Plaintiff thereafter sought to obtain a default judgment against
Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES by
(1) filing a Motion for Default Judgment with relevant evidence
establishing Plaintiff’s right to default judgment against said
Defendants, (2) setting the motion for hearing before the Court on
October 12, 2017, and (3) attending the default judgment hearing on
October 12, 2017, with evidence of Defendants’ personal service on
May 11, 2017 and May 12, 2017, and evidence of Plaintiff’s property
damages and medical bills and her personal presence to provide
testimony to the Court as to her damages suffered as a result of the
incident. See Exhibit D.

Plaintiff also exercised diligence in adding Defendant CRAW
OYSTER BAR as a party – without the benefit of any discovery
obtained from Defendants MATTHEW ANDUJO and JUAN
MIGUEL TORRES, but through Plaintiff’s counsel own efforts in
determining the whereabouts of Defendant MATTHEW ANDUJO
prior to the incident – by way of her First Amended Petition filed
October 7, 2017, that added Plaintiff’s claims against Defendant
CRAW OYSTER BAR alleging dram-shop liability claims against it.
See Exhibit C.

At the time the case was dismissed on November 9, 2017, Plaintiff’s
claims against Defendants MATTHEW ANDUJO and JUAN
MIGUEL TORRES had been pending for less than nine months (and
less than six months from date of service of Defendants MATTHEW
ANDUJO and JUAN MIGUEL TORRES on May 11, 2017 and May
12, 2017); and her claims against Defendant CRAW OYSTER BAR
set forth in Plaintiff’s First Amended Petition had been pending for one
month. At the time of dismissal the pendency of the case was well
within the time standards promulgated by the Supreme Court under the
Administrative Rules.

                                   17
      For these reasons, good cause exists to reinstate the case and any
      failure of the Plaintiff or her attorney to obtain judgment prior to
      dismissal was not intentional or the result of conscious indifference, but
      was due to an accident or mistake and has been reasonably explained.
      Pursuant to Rule 1665a, the Court should reinstate the case.

See CR 299-426 (Plaintiff’s Verified Motion to Reinstate with attached exhibits).

      Under these circumstances, the trial court also abused its discretion and so

erred in failing to reinstate the case pursuant to Rule 165a(3). See Maida, 990

S.W.2d at 842-43 (“[b]ecause we hold that the court abused its discretion in

dismissing the case under its inherent authority, it was also an abuse of discretion to

fail to reinstate a case improperly dismissed.”).

                    CONCLUSION AND PRAYER

      The trial court erred when it dismissed the case for want of prosecution under

Rule 165a. The trial court did not provide notice of any intent to dismiss based on

its inherent authority, but even if it did, Plaintiff prosecuted her case with diligence.

The trial court erred when it failed to reinstate the case, as Plaintiff’s verified motion

to reinstate, with supporting documentation, established good cause to reinstate the

case. The trial court’s order of dismissal should be vacated and the case reversed

and remanded to the trial court for trial or other disposition on the merits.




                                            18
      WHEREFORE, PREMISES CONSIDERED, Appellant Rosa Maria

Arzate requests the Court vacate the trial court’s dismissal order and reverse and

remand the case back to the trial court for trial or other disposition on the merits,

and for such other relief to which appellant may be justly entitled.

                                         Respectfully submitted,

                                         SCHERR & LEGATE, PLLC.
                                         109 North Oregon, 12th Floor
                                         El Paso, Texas 79901
                                         (915) 544-0100 – phone
                                         (915) 532-1759 – fax

                                         /s/ Jeffrey B. Pownell
                                         JEFFREY B. POWNELL
                                         State Bar No. 16222900
                                         jpownell@scherrlegate.com
                                         Attorneys for Appellant
                                         Rosa Maria Arzate




                                           19
                       CERTIFICATE OF COMPLIANCE

       This brief complies with the type-volume limitations of the TRAP because
this brief contains 5,227 words, including the parts of the brief exempted under
TRAP, and complies with the new typeface requirements because this brief has been
prepared in a proportionally spaced typeface using WordPerfect 12 in Times New
Roman, 14 point font (footnotes in 12 point font).

                                           /s/ Jeffrey B. Pownell
                                         Jeffrey B. Pownell
                                         Dated: May 25, 2018


                           CERTIFICATE OF SERVICE

       I hereby certify that on this 25th day of May, 2018, a true and correct copy of the
foregoing was mailed through the United States Postal Service, certified mail, return
receipt requested, to the following last known address(es) of Appellees in the manner
specified below:

Via Certified Mail, Return Receipt Requested
Matthew Manuel Andujo
301 Montestruc APT #1
El Paso, Texas 79901
and
1440 Goodyear
El Paso, Texas 79936

Juan Miguel Torres
301 Montestruc APT #1
El Paso, Texas 79901
and
4302 Alameda
El Paso, Texas 79905

                                           /s/ Jeffrey B. Pownell
                                         Jeffrey B. Pownell

                                           20
APPENDIX
           IN THE DISTRICT COUR,T OF EL PASO CO['NTY, TEXAS
                        ?ÆIÚ JIJDICIAL IIISTRICT
                                                                       e(
ROSA MARTA ARZATE
                                                                    a,
v                                            CauseNo. 2017DCV0567

MATTHEW MANUEL ANDUJO and
ruAN MIGUEL TORRES

             DISMISSAI. ORDER. FOR, TVANT OF PROSECUTION

     BE IT REMEMBERED THAT THE COURT, AFTER DUE NOTICE TO THE
ATTORNEY/PRO SE OF RECORD IN THE ABOVE STYLED AND NT.JMBERED CAUSE
THAT SAID CAUSE WOULD BE DISMTSSED ON Ocûober 12. 2017. FOR WANT OF
PROSECUTION, ON THE GROTJNDS STATED IN TIIE NOTICE OF INTENT TO DISMTSS
FOR WANT OF PROSECUTION, I.JNLESS THERE WAS GOOD CAUSE BEINC SHOWN.

     PURSUANT TO THE LOCAT RULES OF EL PASO COUNTY, RTJLE 3.01(E) AND
(F), YOU ARE HEREBY ORDERED TO STRICTLY COMpLy WTrH THE
AFOREMENTIONED RULE, AND IN THE EVENT THIS LAWSUIT IS RE-FILED, YOU
WILL ADVISE THE DISTRICT CLERK TO ASSICN THIS CASE TO lHE ORIGINAL
COURT.


     IT IS THE ORDER OF THE COURT THAT THE               ABOVE STYLED AND
NI.IMBERED CAUSE BE DISMISSED FOR WANT OF PROSECUTION. COURT COSTS
ARE TAXED AGAINST PLATNTIFF.


     STGNED: NOVEMBER           20t7.




                                        .   LIIIS
                                            2!.3.d     Dbtrict Court




ORIGINAL TO BE FILED




                                                                            290
El Paso County -243rd District Court                                                                                                                                             Filed 1011212017 3:06 PM
                                                                                                                                                                                        Norma Favela Barceleau
                                                                                                                                                                                                   District Clerk:
                                                                                                                                                                                                El Paso County:
                                                                                                                                                                                                2017DCV0567.




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