                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-16-00216-CV


      RONALD GENE PARKER ET UX, MELISSA DANE PARKER, APPELLANTS

                                            V.

                         TRACY DYLAN CAIN, JR., APPELLEE

                          On Appeal from the 223rd District Court
                                    Gray County, Texas
              Trial Court No. 36,363, Honorable Phil N. Vanderpool, Presiding

                                   November 15, 2016

                                       OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Ronald Gene Parker and Melissa Dane Parker (collectively, “Parker”) appeal

from orders of the trial court that dismissed their pending lawsuit against Tracy Dylan

Cain, Jr. Through three issues, Parker contends that the trial court abused its discretion

by: (1) failing to hold an evidentiary hearing on Parker’s motion to reinstate; (2) allowing

Parker’s motion to reinstate and/or motion for new trial to be overruled by operation of

law; and (3) overruling Parker’s first amended motion to retain the case. We will affirm

in part and reverse and remand in part.
                                Factual and Procedural Background


       On January 26, 2011, Parker filed an original petition against Cain contending

that Cain was negligent in causing a collision with the rear end of Parker’s vehicle.

Parker further alleged that, as a result of Cain’s negligence, Parker suffered personal

injuries that required medical treatment and would require additional medical treatment

in the future. Cain answered the lawsuit by a general denial filed on February 17, 2011.

The clerk’s record reveals no further action on the case until Cain’s attorney requested

a trial setting in a letter to the trial court on February 18, 2016.                     The trial court

responded with a letter on February 23, stating that the trial court’s review of the file

revealed no activity on the case in the previous three and one-half years and that the

matter “is eligible for dismissal for want of prosecution.” The trial court enclosed a

“Court’s Notice of Intent to Dismiss for Want of Prosecution.” The notice from the trial

court indicated that, pursuant to Texas Rule of Civil Procedure 165a, the trial court

intends to dismiss the case for want of prosecution at 9:30 a.m. on March 17. See TEX.

R. CIV. P. 165a.1 A dismissal hearing was scheduled for that time and date.


       Parker’s counsel responded with an original and first amended motion to retain

the case on the trial court’s docket. After calling the case at the time specified in the

notice of intent to dismiss, the trial court entered its order dismissing the case pursuant

to Rule 165a. There is no reporter’s record indicating what the trial court heard prior to

ordering dismissal. In the order dismissing the case, the trial court found that there was

no good cause to maintain the case on its docket. The trial court’s order dismissed the

cause with prejudice.

       1
           Further reference to the Texas Rules of Civil Procedure will be by reference to “Rule ____.”

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        Following the trial court’s order of dismissal, Parker filed a motion for new trial on

April 18, and a motion to reinstate the case on the same date. There was no hearing

held on either motion and they were both subsequently overruled by operation of law.

        Parker properly perfected appeal and now presents three issues for the Court’s

consideration. Parker’s contentions are that the trial court abused its discretion: (1) by

failing to hold an evidentiary hearing on the motion to reinstate; (2) by allowing the

motion to reinstate and/or the motion for new trial to be overruled by operation of law;

and (3) by overruling the first amended motion to retain the case on the docket. We will

affirm in part and reverse and remand in part.


                                      Denial of Motion to Retain


        We will address Parker’s third issue first because a resolution of that issue would

provide the greatest relief to Parker. See TEX. R. APP. P. 47.1. By this issue, Parker

contends that the trial court’s action in denying the motion to retain was an abuse of

discretion.2


Standard of Review and Applicable Law


        We review a trial court’s decision to dismiss a case for want of prosecution under

a clear abuse of discretion standard. Enriquez v. Livingston, 400 S.W.3d 610, 614 (Tex.

App.—Austin 2013, pet. denied) (op. on reh’g) (citing MacGregor v. Rich, 941 S.W.2d

74, 75 (Tex. 1984) (per curiam)). A trial court abuses its discretion if it acts without

reference to any guiding rules and principles, or if its action is arbitrary or unreasonable


        2
           Contained within Parker’s third issue is the contention that the abuse of discretion complained of
also applies to Parker’s motion to reinstate. Those matters will be addressed in conjunction with Parker’s
first and second issue.

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under the circumstances of the particular case. Manning v. North, 82 S.W.3d 706, 709

(Tex. App.—Amarillo 2002, no pet.). The burden of proof rests upon the litigant urging

an abuse of discretion. Id. Finally, a trial court has the authority to dismiss a case for

want of prosecution under either: (1) Rule 165a; or (2) the court’s inherent power under

common law. See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding)

(per curiam).


Analysis


       In an effort to retain their case on the trial court’s docket, Parker’s attorney filed a

motion to retain the case. Contained within that motion was the affidavit of Parker’s trial

counsel. The allegations contained in the affidavit boil down to the following particulars:


       1. Trial counsel has problems with his voice if a trial lasts more than one
          or two days. Trial counsel is approaching 80 years of age and lacks
          the stamina to try cases.
       2. Trial counsel estimates the case will take three to four days to try.
       3. The various steps that trial counsel has taken over a period of the
          preceding three to four years to hire an associate or engage another
          attorney to assist in the trial of the case.
       4. The fact that the deposition of Melissa Parker has been taken.
       5. Trial counsel’s efforts, along with those of his legal assistant, in
          reviewing and cataloging approximately 1,500 pages of medical
          records.
       6. That the newly retained attorney could be prepared to go to trial within
          the 45-day period suggested by opposing counsel in his letter
          requesting a setting on the case.


All of these factual matters were presented by the written motion to retain the case.

Whether any other evidence was received or arguments of counsel were heard by the

trial court is not apparent in the record before us.




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       However, what the clerk’s record does disclose is that, after the original answer

of Cain was filed on February 17, 2011, there was nothing else filed in the clerk’s file

until Cain’s letter requesting a setting on February 23, 2016. That is a period of just

over five years with no apparent activity. Based upon the record before the Court, we

cannot say that the trial court abused its discretion in dismissing the case for want of

prosecution. See Manning, 82 S.W.3d at 714. Accordingly, Parker’s third issue is

overruled.


                  Failure to Hold a Hearing on the Motion to Reinstate


       By the first and second issue, Parker contends that the trial court abused its

discretion when it failed to conduct an evidentiary hearing on the motion to reinstate or

the motion for new trial. Because of our resolution of this matter, we will focus only on

the motion to reinstate.


Standard of Review and Applicable Law


       The standard of review for the trial court’s denial of a motion to reinstate is abuse

of discretion. Enriquez, 400 S.W.3d at 614. A trial court abuses its discretion if it acts

without reference to any guiding rules and principles, or if its action is arbitrary or

unreasonable under the circumstances of the particular case. Manning, 82 S.W.3d at

709.


       Rule 165a(3) sets forth the procedure of filing a motion for reinstatement and the

requirements for the court’s clerk and the trial court regarding a motion to reinstate.

Rule 165a(3) provides, as pertinent to this matter,



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       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.


(emphasis added). There is no dispute that the motion to reinstate filed by Parker was

verified and that it was filed timely. The record reflects no request for a hearing was

attached to the motion to reinstate. However, the record further reveals that the motion

to reinstate the case was filed and noted on the trial court’s docket sheet on April 18,

2016. The sole question is whether the trial court was required to hold an evidentiary

hearing on the motion.


       Parker cites the Court to Thordson for the proposition that Rule 165a requires the

trial court to hold a hearing as soon as practicable. See Thordson v. Houston, 815

S.W.2d 550 (Tex. 1991) (per curiam). However, Thordson is factually distinguishable

from the case before the Court. In Thordson, the Texas Supreme Court held that it was

an abuse of discretion for the trial court not to hold a hearing on a proper motion to

reinstate with a timely request for hearing. Id. In the present matter, there is nothing in

the record to indicate that Parker’s attorney requested a hearing on the motion. This

leads to the ultimate question before us: if counsel does not affirmatively request a

hearing on the motion to reinstate, does the trial court abuse its discretion when no

hearing is held.




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        Counsel for Cain emphatically states that it is incumbent on the movant in a

motion to reinstate to request a hearing, citing Calaway v. Gardner, 525 S.W.2d 262,

264 (Tex. Civ. App.—Houston [14th Dist.] 1975, no pet.) In Calaway, the 14th District

Court held that, “[t]hat language [requiring the court to set the motion for hearing] does

not relieve the movant of the duty to procure a setting within the time allowed for

reinstatement.”   Id.   This is the same language before us today.           However, the

intermediate appellate courts are not in agreement on this issue.


        Cain posits that this Court has held that it is the movant’s responsibility to

procure a setting in Scott v. King, No. 07-11-00233-CV, 2012 Tex. App. LEXIS 4679

(Tex. App.—Amarillo June 13, 2012, no pet.) (mem. op.). However, Scott does not so

hold.   In Scott, the issue was that the trial court held a hearing on the motion for

reinstatement after the motion was overruled by operation of law. Id. at *2-3. The Court

held it was not an abuse of discretion to hold a hearing after the motion was overruled

by law but before the trial court lost its plenary jurisdiction. Id. at *3-4. As such, Scott

does not address the duty to procure a setting and, as such, does not control our

disposition of Parker’s issue.


        In considering whether the trial court abused its discretion in failing to hold a

hearing on the motion to reinstate, we find that the record before us does not indicate

that the trial court held any type of evidentiary hearing on the motion to retain the case

on the docket. Under these facts, we believe that the better reasoned case is that of

Enriquez from the Third Court of Appeals. There, the court recognized that, for many

types of motions, the movant has the responsibility and burden to set the matter for a

hearing before the trial court. Enriquez, 400 S.W.3d at 618-19. However, when dealing

                                             7
with a motion for reinstatement pursuant to Rule 165a(3), the burden falls on the trial

court because of the specific language of the rule. See id. at 619-20. Moreover, Rule

165a(3) requires the clerk to deliver the motion to reinstate to the trial court and for the

trial court to set the matter for hearing as soon as practicable. Rule 165a(3). Our

record indicates that someone, most probably the clerk, noted the filing of the motion to

reinstate on the trial court’s docket sheet. In reviewing cases from other intermediate

appellate courts, we find that they have held that Rule 165a(3) requires that the court

set a properly filed motion to reinstate for a hearing and that such a hearing is

mandatory with the trial court. See George v. State, No. 06-11-00071-CV, 2012 Tex.

App. LEXIS 296, at *5 (Tex. App.—Texarkana Jan. 13, 2012, no pet.) (mem. op.); see

also Stephens v. Darnell, No. 12-04-00346-CV, 2006 Tex. App. LEXIS 1430, at *2-3

(Tex. App.—Tyler Feb. 22, 2006, no pet.) (mem. op.); Smith v. McKee, 145 S.W.3d 299,

305-06 (Tex. App.—Fort Worth 2004, no pet.).


       We believe that the rationale set forth in the above mentioned opinions reflects

the better reasoning, as applied to the facts before us. Therefore, we find that the trial

court abused its discretion in failing to hold a hearing on Parker’s motion to reinstate.

See Enriquez, 400 S.W.3d at 620. We sustain Parker’s first issue in regard to the

motion to reinstate.


                                        Conclusion


       We affirm that portion of the trial court’s judgment denying the motion to retain

the subject case on the trial court’s docket but reverse the case for failure to hold a




                                             8
hearing on the motion to reinstate the case and remand the matter to the trial court to

hold a hearing on the motion.



                                                     Mackey K. Hancock
                                                       Justice




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