Opinion issued July 2, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00726-CV
                            ———————————
                        CYNTHIA MARTIN, Appellant
                                        V.
                   RICHARD WAYNE SANDERS, Appellee


                    On Appeal from the 310th District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-41092


                          MEMORANDUM OPINION

      Cynthia Martin sued Richard Wayne Sanders, seeking to establish that he is

the father of her daughter and requesting retroactive child support. When Martin and

her counsel did not appear in court on the scheduled trial date, the trial court

dismissed Martin’s suit for want of prosecution. She filed a verified motion to
reinstate, asserting that her failure to appear was accidental, not intentional or the

result of conscious indifference. After a hearing, the trial court denied the motion.

      In one issue, Martin contends that the trial court abused its discretion when it

denied her motion to reinstate. Because the record shows that the failure of Martin

and her counsel to appear at trial was not intentional or the result of conscious

indifference, we agree that the trial court abused its discretion when it did not

reinstate her case.

      We reverse and remand.

                                       Background

      On June 20, 2017, Martin filed suit, requesting that Sanders be adjudicated

the father of Martin’s 19-year-old daughter, C.A.M. She also requested that Sanders

be ordered to pay retroactive child support.

      Sanders answered the suit. He denied that he was C.A.M.’s father, and he

asserted that Martin’s suit was barred by limitations.

      On November 7, 2017, Martin filed a motion to compel Sanders to undergo

genetic testing to determine whether he is C.A.M.’s father, and she served Sanders

with discovery. Trial was set for December 13, 2017. Because the hearing on the

motion to compel genetic testing was set for the same date as trial, Martin filed a

motion for continuance. On December 8, 2017, the parties signed a Rule 11




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agreement to reset trial until March 21, 2018. A couple of weeks later, Sanders filed

a motion to substitute counsel, indicating that he had retained a new attorney.

      Sanders’s new attorney agreed to continue the March 21 trial date, and the

parties filed a joint motion for continuance. They informed the court that the case

was “not ready for trial” because they had “just completed paternity testing and the

results are still pending, discovery has not been completed and the parties have not

attended mediation in this matter.”

      The trial court granted the motion, and trial was reset for May 16, 2018. A

couple of weeks before trial, Martin filed a motion for continuance, asserting the

case was not ready for trial because it had not been mediated. Martin informed the

trial court that she was ready for mediation to occur, and all discovery had been

completed. Martin said that she had been “actively attempting to schedule mediation

at a time convenient” for Sanders and his attorney, but she had become aware “of

the unexpected and tragic death” of the father of Sanders’s attorney, which had

“severely impacted” the ability “to prepare for and to participate in mediation.”

Martin had “made several attempts to schedule mediation and to move for

continuance in this case, but [had] been unable to get a response from [Sanders’s]

counsel.”




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      The hearing on Martin’s motion for continuance was scheduled for May 16,

2018, the same day that trial was set. When May 16 arrived, however, neither Martin

nor her counsel appeared in court.

      The next day, May 17, the trial court signed an “Order of Dismissal,” ordering

the case dismissed for want of prosecution. The order indicated that the reason for

the dismissal was because trial had been set, and there was “no announcement by

attorneys or parties hereto.”

      That same day, Martin filed a verified motion to reinstate. The verified

motion, sworn to by Martin’s attorney, provided as follows:

             [T]his case was dismissed without prejudice by the Court due to
      the failure of all parties to appear. . . . [Martin’s counsel] was attending
      a deposition in a federal court case in which he is a witness, namely, . .
      . Secretary of Labor, United States Department of Labor vs. Arizona
      Logistics, Inc. d/b/a Diligent Delivery Systems, et al., and
      unintentionally forgot to appear at the scheduled hearing on the motion
      for continuance.

             In the instant SAPCR case, the parties have recently completed
      the genetic testing and determined that Richard Wayne Sanders is the
      biological father of [C.A.M.]. All discovery in the case is now
      complete. Aware that this Court requires mediation before trial,
      [Martin’s attorney] has attempted several times, although
      unsuccessfully, to set a mediation at a time convenient for [Sanders’s
      attorney] and Sanders. [Martin’s attorney] learned that [the] father [of
      Sanders’s attorney] recently and unexpectedly passed away, and this
      has of course severely impacted her ability to prepare for and participate
      in mediation.

      ....



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             The Court should reinstate this case because [Martin] has
      diligently prosecuted this case. In fact, the parties have recently
      completed the genetic testing and determined that Richard Wayne
      Sanders is the biological father of [C.A.M.]. All discovery in the case
      is now complete. This case has been diligently prosecuted and is
      appropriate and ready for mediation.

      Martin requested the trial court to reinstate the case “so that a mediation can

occur in a timely manner and the trial can be reset.” Sanders did not file a response

to the motion.

      On July 31, 2016, the trial court conducted a hearing on Martin’s motion to

reinstate the case. The parties’ respective counsel attended the hearing. Martin’s

counsel explained that, before the May 16 trial date, he had contacted Sanders’s

counsel about mediation. Sanders’s counsel had “informed [him] that her father had

died and that as a result, we would need to reset the case for a later date.” He said

that he had then filed a motion for continuance, and “and it got set for the exact same

time as the trial setting [on May 16].”

      Martin’s counsel explained that he had not appeared in the trial court on May

16 because “[u]nfortunately I had two daylong back-to-back depositions scheduled

for the 15th and the 16th of May. They were as a result of two—a Fair Labor

Standards Act case out of Arizona. I was to be a witness.” Martin’s counsel further

explained: “What happened is on the 15th I was in deposition all day long. I finished

up at 6:00 o’clock, went home on the 15th. The 16th was the day that we were

supposed to be down here. I went back to the deposition, completely forgot about
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the hearing down here.” The trial court responded, “I hate to say it. That happens to

all of us.”

       Sanders’s counsel was also empathetic to opposing counsel’s failure to

appear. She said, “I understand . . . I miss hearings. I get that, Judge . . . .” She

nonetheless argued that the case should not be reinstated. Although the dismissal

order provided that the case was dismissed because Martin had not appeared on the

trial date, Sanders’s counsel asserted that the case should not be reinstated because

it had been pending for 13 months, claiming Martin had not been actively

prosecuting the case. She also argued that it was proper to dismiss the suit because

it was not “fair” to Sanders, asserting Sanders has no money, has health issues, and

should not be held liable for back-child support after so many years.

       The trial court denied Martin’s motion to reinstate the case. This appeal

followed.

                               Verified Motion to Reinstate

       In her sole issue, Martin contends that that the trial court abused its discretion

by denying the verified motion to reinstate. Martin asserts that the motion

established that her counsel did not appear in court for trial—which was also when

the hearing on her motion for continuance was scheduled—because, on that day, he

was testifying as a witness in a deposition in a federal case in Arizona; he had also

testified there the previous day. Because he was preoccupied with testifying in that


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case, he had forgotten about appearing in court for the hearing on the motion for

continuance that was set on the trial date. Martin asserts that counsel’s explanation

establishes that his failure to appear was due to accident, inadvertence, and mistake

and was not intentional or the result of conscious indifference.

A.    Applicable Legal Principles

      We review an order denying a motion to reinstate for an abuse of discretion.

See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). A

trial court abuses its discretion when it acts “arbitrarily or unreasonably, without

reference to guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011);

see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

      Texas Rule of Civil Procedure 165a requires a trial court to 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 an accident

or mistake or that the failure has been otherwise reasonably explained.” TEX. R. CIV.

P. 165a; see Smith, 913 S.W.2d at 468. The operative standard is essentially the same

as that for setting aside a default judgment under Craddock v. Sunshine Bus Lines,

Inc., 133 S.W.2d 124, 126 (Tex. 1939). Smith, 913 S.W.2d at 468.

      A failure of the party or his attorney to appear is 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.” Id. “Proof of such


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justification—accident, mistake or other reasonable explanation—negates the intent

or conscious indifference for which reinstatement can be denied.” Id. “Conscious

indifference . . . means failing to take some action that would seem to be indicated

to a person of reasonable sensibilities under similar circumstances,” and it requires

more than negligence. Sellers v. Foster, 199 S.W.3d 385, 400 (Tex. App.—Fort

Worth 2006, no pet.); see Smith, 913 S.W.2d at 468.

      A trial court abuses its discretion in denying reinstatement following a

dismissal for want of prosecution when an attorney’s explanation for a failure to

appear is reasonable. Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321

(Tex. App.—San Antonio 1996, writ denied) (citing Smith, 913 S.W.2d at 467–68).

Some excuse, not necessarily a good excuse, is enough to show lack of conscious

indifference. Whitworth v. Blumenthal, 59 S.W.3d 393, 401 (Tex. App.—Dallas

2001, pet. dism’d by agr.). “An excuse need not be a good one to suffice.” Milestone

Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (quoting

Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006)).



B.    Analysis

      Trial court abused its discretion

      Here, Martin’s uncontradicted verified motion to reinstate establishes that her

counsel did not appear in court on the trial date, May 16, because he had been


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testifying as a witness in depositions that day and the day before in a federal case.

At the reinstatement hearing, Martin’s counsel explained that the depositions were

in Arizona. He had testified at the Arizona deposition on May 15, finishing that day

at 6 p.m. and then continued his testimony the next day, which resulted in him failing

to appear in court in this case. In the verified motion to reinstate and at the hearing,

Martin’s counsel indicated that his testifying in the federal Arizona case had caused

him to forget to appear in court here; he said that his non-appearance on the trial date

had not been intentional.

      Sanders asserts in his brief that “the trial court could have failed to credit this

explanation.” He contends that “[t]he trial court could have reasonably inferred” that

Martin’s counsel “made a conscious choice to attend the deposition” rather than

appear in the trial court. We disagree.

      Because Sanders did not file a response to Martin’s motion or otherwise

controvert the sworn facts, the trial court was required to accept the factual

allegations in the motion to reinstate as true.1 See S. Pioneer Prop. & Cas. Ins. Co.


1
      At the hearing on the motion to reinstate, Sanders argued that dismissal for want of
      prosecution was proper because Martin had not diligently prosecuted the case. The
      dismissal order specified that the case was dismissed because Martin and her
      attorney did not appear on the trial date. When, as here, a dismissal order identifies
      a specific ground for dismissal, the plaintiff seeking reinstatement must negate only
      the reason stated in the dismissal order. Rampart Capital Corp. v. Maguire, 974
      S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet. denied); Shook v. Gilmore &
      Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied). Thus,
      Sanders’s assertion that Martin did not use due diligence in prosecuting the case
      cannot support the trial court’s refusal to reinstate. In any event, the record shows
                                            9
v. Wilson, No. 01-17-00444-CV, 2018 WL 3384558, at *3 (Tex. App.—Houston

[1st Dist.] July 12, 2018, no pet.) (mem. op.); Dalmex, Ltd. v. Apparel Enters., Inc.,

455 S.W.3d 241, 244 (Tex. App.—El Paso 2015, no pet.). If the uncontroverted facts

negated intentional or consciously indifferent conduct, then the trial court was

required to grant the motion to reinstate. See Dalmex, 455 S.W.3d at 244.

      By analogy, in the context of a Craddock analysis, courts have determined

that an attorney’s failure to answer suit is not intentional or the result of conscious

indifference when the cause of the failure to answer was forgetfulness. See, e.g.,

Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.—Corpus Christi 1990, writ denied)

(holding that attorney’s forgetting about citations does not amount to conscious

indifference); Republic Bankers Life Ins. Co. v. Dixon, 469 S.W.2d 646, 647 (Tex.

Civ. App.—Tyler 1971, no writ) (determining that attorney forgetting to prepare

answer because his secretary misplaced file was not conscious indifference).

Similarly, here, counsel’s uncontroverted, sworn explanation shows that he did not

appear in court on the day of trial because he was preoccupied with testifying in out-

of-state depositions, causing him to forget to appear in this case.

      Although he may not have been “as conscientious as he should have been” in

forgetting to appear, counsel’s conduct did not amount to conscious indifference nor


      that Martin had been actively engaged in the litigation process in the year preceding
      trial by moving for genetic testing, completing discovery, and taking steps to
      schedule mediation.
                                           10
was it intentional. See Smith, 913 S.W.2d at 468. Because Martin’s verified motion

to reinstate reasonably explained why her counsel failed to appear in court on the

day of trial, and because the record contains no evidence that the failure was

intentional or the result of conscious indifference, the trial court abused its discretion

when it denied Martin’s motion to reinstate.

      Error was harmful

      Sanders also asserts that any error by the trial court in denying the motion to

reinstate was harmless error. An error is harmful if it “(1) probably caused the

rendition of an improper judgment; or (2) probably prevented the appellant from

properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a).

      Sanders argues that any error in dismissing the suit for want of jurisdiction is

harmless because he is also entitled to dismissal of Martin’s suit to adjudicate his

paternity based on the statute of limitations. Sanders relies on Family Code Section

160.607(a), which provides that, when a child already has a presumed father, a

proceeding to adjudicate parentage “shall be commenced not later than the fourth

anniversary of the date of the birth of the child.” TEX. FAM. CODE § 160.607(a).

Sanders asserts that, if he is C.A.M.’s presumed father, then the four-year limitations

provision applies to bar the suit, and he is entitled to its dismissal, rendering harmless

any error in dismissing the suit for want of prosecution.




                                           11
      Family Code Section 160.204 defines under what circumstances a man is

considered a “presumed father.” Id. § 160.204. For example, the statute provides that

a man is a presumed father if he was married to the child’s mother when the child

was born. Id. § 160.204(a)(1).

      Sanders points out that Martin refers to him twice in her petition as C.A.M.’s

presumed father. He claims that this constitutes a judicial admission that he is

C.A.M.’s “presumed father.”

      A judicial admission is a clear, deliberate, and unequivocal assertion of fact

that is conclusively established in live pleadings, making the introduction of other

pleadings or evidence unnecessary. Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 905 (Tex. 2000). Here, Martin’s petition provides no contextual

indication that Sanders qualifies as a presumed father as defined by Section 160.204

or that Martin had the statute in mind when she made the references. That is, it is not

clear that Martin was referring to Sanders as C.A.M.’s presumed father in the

statutorily-defined sense rather than in some colloquial sense. Thus, Sanders’s status

as C.A.M.’s presumed father is not conclusively established in the petition. See id.

      And, although he raised limitations as an affirmative defense in his answer,

Sanders never pursued summary judgment based on limitations. See In re B.L.A., No.

05-07-00933-CV, 2008 WL 2313658, at *1 (Tex. App.—Dallas June 6, 2008, no pet.)

(mem. op.) (“[A] party seeking dismissal of a case based on an affirmative defense, such


                                          12
as the statute of limitations, should ordinarily raise that request in a motion for summary

judgment.”). The issue of limitations was never developed in the trial court, and,

under the circumstances of this case, we cannot conclude that it renders error

harmless that is otherwise harmful, that is, error that caused the rendition of an

improper judgment.

      We sustain Martin’s sole issue.

                                      Conclusion

      We reverse the trial court’s judgment and remand the case for further

proceedings.



                                                 Laura Carter Higley
                                                 Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.




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