Affirmed and Memorandum Opinion filed July 1, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-01146-CV

                    BANK OF AMERICA, N.A., Appellant
                                        V.
       JUAN M. GALLEGOS AND CHRISTINE S. ROWE, Appellees

                    On Appeal from the 113th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-04351

                 MEMORANDUM                      OPINION


      Appellant Bank of America, N.A. appeals the trial court’s dismissal of its
case for want of prosecution. In two issues, which we address together, Bank of
America contends the trial court abused its discretion in dismissing the case
because the court had the burden to appoint an attorney ad litem to represent one of
the two defendants and failed to do so. Because the trial court did not clearly
abuse its discretion in concluding that Bank of America has not reasonably
explained its failure to appear for trial, we affirm.

                                  BACKGROUND

        In August 2002, Juan M. Gallegos and Christine S. Rowe made, executed,
and delivered a promissory note and deed of trust to Bank of America. The note
provided for Gallegos and Rowe to make payments to Bank of America on all
principal and interest. The deed of trust secured the note by granting a lien on
certain real property.

        Bank of America demanded payment on the note when Gallegos and Rowe
defaulted. After obtaining a default judgment against both Gallegos and Rowe for
the amount owed on the note, Bank of America filed the underlying petition for
judicial foreclosure on the property described in the deed of trust.

        Bank of America properly served Gallegos with citation and a copy of Bank
of America’s petition. Gallegos subsequently filed his original answer in August
2011.

        Bank of America unsuccessfully attempted to serve Rowe between April
2011 and March 2012. On April 4, 2012, the trial court signed an order permitting
Bank of America to serve Rowe by publication. Bank of America published the
notice in June and July 2012, but Rowe never filed an answer. In early September
2012, Bank of America filed a Motion for Appointment of Attorney Ad Litem to
represent Rowe and a motion for continuance of the pending September 17, 2012
trial setting. The trial court did not make the appointment. Bank of America failed
to appear for the hearing on its motion for continuance and the trial court denied
the continuance.

        On September 24, 2012, the trial court called the suit to trial. Mr. R. Scott
Wolfrom advised the trial court that he was appearing for Bank of America “only

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for the pretrial matter”; that is, Mr. Wolfrom appeared for Bank of America solely
to urge its motion for rehearing on the continuance. The trial court denied the
motion for rehearing. The trial court then stated: “The case is called to trial. Is
anybody here for Plaintiff or Defendant?         No one?     All right.   The case is
dismissed for want of prosecution, costs of court to be paid by party incurring
same.” The order dismissing the case expressly stated that the dismissal was
because no party announced ready or made an appearance.

      Bank of America filed a motion to reinstate the case on October 12, 2012.
In the motion, Bank of America argued that it was impossible for it to proceed to
trial because the court failed to appoint an attorney ad litem for Rowe. The trial
court denied Bank of America’s motion, and this appeal followed.

                                     ANALYSIS

      Bank of America argues that the trial court clearly abused its discretion
when it dismissed Bank of America’s petition for want of prosecution due to its
failure to appear and announce ready for trial. It does not challenge the denial of
its motion for continuance or the denial of the motion for rehearing on the
continuance. It also does not challenge whether the trial court gave proper notice
of dismissal, nor does it challenge the trial court’s denial of its motion to reinstate.
Because Bank of America provided no explanation for its failure to appear at trial,
we conclude that the trial court did not clearly abuse its discretion.

I.    Standard of review and applicable law

      The decision to dismiss a suit for want of prosecution rests in the sound
discretion of the trial court, and we review that decision to determine whether the
court clearly abused its discretion. Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex.
1957); Ellmossallamy v. Huntsman, 830 S.W.2d 299, 300 (Tex. App.—Houston


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[14th Dist.] 1992, no writ). A trial court abuses its discretion if it misinterprets or
misapplies the law or acts arbitrarily or unreasonably. See Tanglewood Homes
Ass’n v. Feldman, No. 14-11-01088-CV, 2014 WL 1711198, at *22 (Tex. App.—
Houston [14th Dist.] April 30, 2014, no pet. h.).

      Texas Rule of Civil Procedure 165a expressly authorizes trial courts to
dismiss a case 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.” Tex. R. Civ.
P. 165a(1). Unless there is “good cause for the case to be maintained on the
docket,” the court shall dismiss for want of prosecution at a dismissal hearing. Id.

      In this case, there was no dismissal hearing prior to the dismissal itself. But
this Court and other courts have recognized that a motion to reinstate provides the
same hearing with the same burden of proof that a plaintiff would receive under
the “good cause” standard for dismissal. See Texas Sting, Ltd. v. R.B. Foods, Inc.,
82 S.W.3d 644, 648 (Tex. App.—San Antonio 2002, pet. denied); Jimenez v.
Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.]
1999, no pet.). When a motion to reinstate is filed, the court shall 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.” Tex. R. Civ. P. 165a(3). This
standard is also “essentially the same as that for setting aside a default judgment.”
Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995).

      Under this standard, “a failure to appear is not intentional or due to
conscious indifference merely because it is deliberate; it must also be without
adequate justification.” Id. An adequate justification, such as accident, mistake, or
another reasonable explanation, negates the intent or conscious indifference
grounds that would otherwise cause a motion seeking reinstatement to be denied.

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Id.

II.   The trial court did not clearly abuse its discretion in dismissing for want
      of prosecution because Bank of America provided no explanation for
      failing to appear for trial.
      Here, the trial court’s dismissal order states that it dismissed the case for
want of prosecution because Bank of America did not announce ready or make an
appearance after the court called the suit to trial. In both its motion to reinstate and
its brief on appeal, Bank of America’s only proposed justification for failing to
appear at trial was the trial court’s failure to appoint an attorney ad litem for Rowe.

      Bank of America is correct in stating that when, as here, a defendant served
by publication does not file an answer, the trial court must appoint an attorney ad
litem to defend the suit on behalf of that defendant. Tex. R. Civ. P. 244; Cahill v.
Lyda, 826 S.W.2d 932, 933 (Tex. 1992). There is no burden on a plaintiff to move
the court to make the appointment. Barnes v. Domain, 875 S.W.2d 32, 33 (Tex.
App.—Houston [14th Dist.] 1994, no writ).

      In this case, however, the trial court explicitly dismissed the case for want of
prosecution because Bank of America failed to appear for trial. Unlike Barnes,
upon which Bank of America relies, the record shows that Bank of America chose
not to appear for trial or to send a representative to appear for all purposes at the
trial setting. And, unlike Barnes, there is nothing in this record to suggest that the
trial court dismissed the cause for a failure by Bank of America to seek
appointment of an attorney ad litem. Rather, the trial court dismissed the case for
Bank of America’s failure to appear for a trial setting. Nothing in Barnes, or any
other authority provided by Bank of America, suggests that a party may
unilaterally ignore a trial setting when the trial court has failed to appoint an
attorney ad litem for an absent defendant.      Appellant’s proffered “justification”


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was an explanation for why the trial court should have granted the continuance.
But Bank of America does not challenge the trial court’s orders denying its
continuance, so we need not determine whether a trial court would abuse its
discretion in denying a continuance of trial despite its failure to appoint an attorney
ad litem.

      In summary, while the trial court did not appoint an attorney ad litem for
Rowe as Rule 244 required, this failure in no way justifies Bank of America’s
failure to appear at trial. See Texas Sting, Ltd., 82 S.W.3d at 649-50 (trial court did
not abuse discretion in dismissing case due to plaintiff’s failure to prosecute
diligently when only evidence challenging dismissal involved trial court’s failure
to comply with notice requirements, rather than evidence of diligent prosecution).

      Bank of America offers no reason why it failed to appear for trial and, for
example, prove its entitlement to a post-answer default judgment against the
absent, properly served Gallegos. See Tex. R. Civ. P. 240; Stoner v. Thompson,
578 S.W.2d 679, 682 (Tex. 1979); Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex.
App.—Houston [14th Dist.] 2007, no pet.). Instead, it only attempts to shift the
blame to the trial court for its strategic decision not to appear for trial. But Bank of
America had the burden to provide good cause for maintaining this case on the
docket—that is, a reasonable explanation for failing to appear at a trial. Tex. R.
Civ. P. 165a(1), (3); Smith, 913 S.W.2d at 468. Given its failure to provide any
reason why it did not appear to seek judgment against Gallegos, the trial court did
not clearly abuse its discretion in concluding that Bank of America failed to meet
its burden.

                                   CONCLUSION

      For these reasons, we hold that the trial court did not clearly abuse its
discretion in dismissing the case for want of prosecution.           Accordingly, we
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overrule Bank of America’s issues on appeal and affirm the trial court’s dismissal.




                                      /s/       J. Brett Busby
                                                Justice



Panel consists of Justices McCally, Busby, and Brown.




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