REVERSE and REMAND; and Opinion Filed February 11, 2019.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00356-CV

  BROOKS-PHS HEIRS, LLC, BROOKS-PSC HEIRS, LLC; BROOKS-WTC HEIRS,
  LLC; ALASTAIR TRICKETT; PENELOPE TRICKETT; HEATHER ELIZABETH
OLSEN; MARILYN HOLMES TULLOCH; NANCY LEE HALSTED WOODMANSEE;
  JUNE C. HAACK; MARILYN HALSTED; JOSEPH EDWIN HALSTED; THOMAS
  ARTHUR HALSTED; ROBERT BRUCE HALSTED; MARGARET H. REYNOLDS;
  MARY P. HALSTED; JANE DECOSKY; CAROL CANFIELD CLARKE-TERRILL,
    FORMERLY CAROL C. SWEARINGEN, AS TRUSTEE OF THE ROBERT G.
SWEARINGEN REVOCABLE TRUST DECEMBER 19, 2001; MARCELLE BRANNEN;
     AND ROBERT G. MCLEOD, ALSO KNOWN AS BOB MCLEOD, Appellants
                                V.
   RICHARD HOWARD BOWERMAN, INDIVIDUALLY AND AS INDEPENDENT
  EXECUTOR OF THE ESTATE OF ROBERT BOWERMAN, DECEASED; STEVEN
 ROBERT BOWERMAN, INDIVIDUALLY; AND ESTHER MICHELE DAUGHERTY,
                       INDIVIDUALLY, Appellees

                           On Appeal from the 225th District Court
                                    Bexar County, Texas
                            Trial Court Cause No. 2013-CI-10924

                             MEMORANDUM OPINION
                         Before Justices Schenck, Reichek, and Nowell
                                  Opinion by Justice Schenck
       Appellants challenge the trial court’s dismissal of their quiet title action. In two issues,

appellants contend the trial court abused its discretion in dismissing their action for want of

prosecution and in denying their motion to reinstate. For the reasons that follow, we reverse the

trial court’s denial of appellants’ motion to reinstate and remand the case for further proceedings
consistent with this opinion. Because all issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.4.

                                            BACKGROUND

        Claralyn Trickett owned an undivided 1/32 royalty interest in mineral estates in property

located in Bexar and LaSalle Counties at the time of her death on December 24, 1972, at the age

of 48. Both appellants and appellees claim to have inherited the royalty interests in these mineral

estates. Appellants claim they inherited the interest directly as the legal heirs, or, indirectly, as the

heirs, successors, or assigns of the legal heirs, of Claralyn Trickett; appellees claim they inherited

the interest as the legal heirs of Robert Bowerman, who, they claim, was legally married to

Claralyn Trickett at the time of her death. In 2010 and 2011, appellees filed various affidavits of

heirship and deeds in the records of Bexar and La Salle Counties purporting to establish their

ownership of the royalty interests.

        On July 1, 2013, appellants brought a quiet title action against appellees seeking both a

declaration that appellees in fact have no valid ownership interest in the mineral estates and the

removal of the affidavits and deeds appellants claim clouded their title. Appellants asserted that

the Tijuana marriage of Robert Bowerman to Claralyn Trickett was void because Robert

Bowerman was still married to his second wife when he purportedly married Claralyn Trickett.

Appellees generally denied appellants’ claims, challenged appellants’ capacity and standing to sue,

asserted the affirmative defenses of estoppel, limitations, laches, and waiver, and brought a

counterclaim for fees.

        Appellees sought abatement of the case claiming appellants had not shown that they were

the proper parties to bring such a suit because they had not conducted an heirship proceeding in

accordance with sections 48 and 49 of the probate code to determine the identity of all of the heirs

at law of Claralyn Trickett. On October 9, 2013, the trial court signed an Agreed Abatement Order

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providing that “[u]pon written motion of Defendants, and with the consent of counsel for Plaintiffs,

and for good cause shown, the Court orders the above-captioned suit is to be abated in part1 for a

period of nine (9) months or until the completion of a suit for determination of heirship of Claralyn

Trickett, also known as Claralyn Bowerman, whichever is earlier, at which time the parties will

report back to this Court.”

           On June 7, 2016, the trial court dismissed the case for want of prosecution. The trial court

set aside that dismissal on June 13, 2016, due to improper notice. The trial court then set the case

for dismissal on September 13, 2016. Appellants objected to the dismissal indicating that: On

March 25, 2015, they filed an Application to Determine Heirship of Claralyn Trickett in the County

Court of La Salle County; that case was later transferred to the Probate Court in Bexar County and

is set for a jury trial on February 21, 2017; and a judicial ruling on the heirship issue is legally

necessary before they can proceed in the quiet title case, as appellees had alleged in originally

obtaining an abatement. By agreement of the parties, or action of the trial court, the case was

carried on the trial court’s November 15, 2016, May 23, 2017, August 22, 2017, and January 9,

2018 dismissal dockets. On January 9, 2018, the trial court dismissed the case.

           On January 30, 2018, appellants filed a Verified Motion to Reinstate the case. In support

of their motion appellants stated:

          They had to hire a genealogy expert and conduct extensive searches in both North
           America and the United Kingdom for potential heirs of Claralyn Trickett;

          Following the completion of the expert’s genealogy report, appellants Marcelle
           Swearingen and Nancy Lee Woodmansee, on behalf of the legal heirs of Claralyn
           Trickett, filed an application to determine heirship in the county court of LaSalle
           County;

          The La Salle County case was transferred to the Bexar County probate court;




   1
       The trial court ordered that, by agreement of the parties, discovery would proceed while the case is abated.

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          Appellant Marcelle Swearingen filed in the heirship proceeding a petition to
           recover money belonging to the estate/rightful heirs, seeking to recover oil and gas
           proceeds the appellants claim were incorrectly paid to the Bowermans;

          The quiet title action, the application to determine heirship, and the petition to
           recover money, are interrelated because each turn on whether Robert Bowerman
           was legally married to Claralyn Trickett, and that issue would be resolved by a jury
           in the application to determine heirship proceeding;

          Appellants requested that the probate court transfer the quiet title case and
           consolidate the cases, appellees opposed their requests, and the probate court denied
           their requests;

          The parties had nominally reached a settlement in May 2017, which settlement took
           a significant amount of time to consummate because appellees insisted on
           appellants proving their relationship to Claralyn Trickett, and, thereafter, in
           November 2017, appellees withdrew from the settlement; and

          The probate court then set the application for determination of heirship for trial on
           May 21, 2018.2

           The trial court heard appellants’ motion to reinstate on February 13, 2018. When the trial

court inquired whether there were any new developments since the dismissal, appellants indicated

that the only new development was that the probate court had set the heirship determination

proceeding for trial on May 21, 2018. The judge indicated she was not going to reconsider or undo

something that another one of her fellow district court judges had already determined,3 and denied

the motion. This appeal followed.4




      2
        After the trial in the heirship proceeding, appellants attempted to include in the record before this Court the jury’s verdict in that proceeding
finding Robert Bowerman was not legally married to Claralyn Trickett. The jury’s verdict in the heirship proceeding does not impact our disposition
of this appeal. Consequently, we need not determine whether it is properly before this Court.
     3
       Judge Arteaga heard the motion to reinstate. She also signed the order of dismissal on January 9, 2018. Given her statements during the
hearing on the motion to reinstate, it is not clear whether she actually presided over the dismissal of the case on January 9, 2018, or if she merely
signed the order after a decision was made.
     4
       The Texas Supreme Court transferred this case from the Fourth District Court of Appeals to this Court. See TEX. GOV’T CODE ANN.
§ 73.001. In this procedural posture, we are bound to apply the precedent of that court. TEX. R. APP. P. 41.3.



                                                                         –4–
                                            DISCUSSION

       A party seeking appellate review of a dismissal for want of prosecution may frame its

argument variously as: the trial court erred in dismissing the case; the trial court erred in refusing

to reinstate the case; or both. Kirkpatrick v. Silva, No. 05-17-00146-CV, 2018 WL 521628, at *3

n.1 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.) (citing Maida v. Fire Ins. Exch.,

990 S.W.2d 836, 838 (Tex. App.–Fort Worth 1999, no pet.)). Each challenge, if sustained, is

sufficient to obtain reinstatement of the case. Id.

       Here, appellants challenge both the dismissal and the denial of reinstatement. We address

appellants’ second issue challenging the denial of their motion to reinstate because it is dispositive

of this appeal and pretermit the remaining arguments.

       We review the denial of a motion to reinstate following a dismissal for want of prosecution

under an abuse of discretion standard. Regent Care Ctr. at Med. Ctr. v. Hollis, No. 04-16-00131-

CV, 2017 WL 1337652, at *2 (Tex. App.—San Antonio Apr. 12, 2017, no pet.) (mem. op.). In

reviewing whether there was an abuse of discretion, the key question is whether the trial court

acted without reference to any guiding rules and principles, or in an arbitrary or unreasonable

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

       When a case is dismissed for want of prosecution, the trial 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); Smith v. Babcock & Wilcox Constr. Co., 913

S.W.2d 467, 468 (Tex. 1995) (per curiam); Cappetta, 222 S.W.3d at 167. This standard is

essentially the same as the standard for setting aside a default judgment. Smith, 913 S.W.2d at 468

(citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (1939)). A failure to diligently prosecute

is not intentional or due to conscious indifference merely because it is deliberate; it must also be

                                                 –5–
without adequate justification. Id.; Cappetta, 222 S.W.3d at 167. Proof of such justification,

whether it be by 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.

       The record before us indicates that, in denying appellants’ motion to reinstate, the trial

court did not consider whether appellants’ failure to move forward in the quiet title action was

intentional or the result of conscious indifference or was not justified. TEX. R. CIV. P. 165a(3). In

other words, the trial court did not adhere to rule 165a(3)’s mandate and did not apply the

applicable Craddock factors to this case. Rather, the trial court merely indicated some new

material factual development since the dismissal was necessary to warrant reinstatement in view

of the earlier dismissal having been signed by another judge. But this is not the standard for

reinstatement. Accordingly, we will review the record to determine whether appellants met their

burden of proof under rule 165a(3) and Smith, applying a standard similar to Craddock in cases

involving motions to reinstate after courts dismiss cases for want of prosecution. See Martinez v.

Benavides, No. 04-15-00465-CV, 2016 WL 3085913, at *2 (Tex. App.—San Antonio June 1,

2016, no pet.) (mem. op.).

       Appellants’ attorney reasonably explained that, at one time, the trial court had abated the

case recognizing that its jurisdiction to hear the case depended on appellants’ standing to bring

their claims and that a determination of heirship was a prerequisite to proceeding in this case. He

further indicated that appellants had attempted to transfer and consolidate this case with the

heirship determination proceeding and that appellees had opposed those efforts, despite having

urged abatement on that account. Moreover, appellants noted that they had complied with the

deadlines set forth in the probate court’s docket control order in the heirship determination case,

that the parties had attempted to settle their dispute and that when settlement discussions broke

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down, appellants promptly requested that the probate court enter a new docket control order,

resulting in a trial setting on May 21, 2018, a mere 4 months after dismissal of this case.

Appellants’ counsel indicated that once the heirship determination proceeding went to trial,

appellants would be in a position to quickly proceed to trial in this case.

       We conclude the above facts constitute a reasonable explanation of appellants’ failure to

move forward with the quiet title action. The actions were not “intentional” or a result of

“conscious indifference.” Logically, heirship had to be decided before the district court could

determine whether appellants had standing to bring the quiet title action and whether appellees had

improperly clouded the title to the mineral interests at issue. Moreover, Texas courts have a strong

policy supporting resolution of cases on their merits, and in promoting the predictability of

property ownership and reliability of land titles, both of which strongly support the reinstatement

of appellants’ claims. See Cosgrove v. Cade, 468 S.W.3d 32, 34 (Tex. 2015); Sutherland v.

Spencer, 376 S.W.3d 752, 756 (Tex. 2012).

       We conclude the trial court abused its discretion in failing to reinstate appellants’ case

because it did not consider or apply the Craddock factors and had it done so it should have

concluded that appellants’ failure to proceed with their quiet title action without first having the

heirship determined was not intentional or due to conscious indifference, but was justified under

the unique facts of this case. Accordingly, we sustain appellants’ second issue. Having concluded

the trial court abused its discretion in refusing to reinstate the case, we pretermit consideration of

appellants’ first issue challenging the dismissal for want of prosecution. TEX. R. APP. P. 47.1.




                                                 –7–
                                           CONCLUSION

        We reverse the trial court’s order denying appellants’ motion to reinstate, reinstate

appellants’ lawsuit, and remand the case to the trial court for further proceedings.




                                              /David J. Schenck/
                                              DAVID J. SCHENCK
                                              JUSTICE



180356F.P05




                                                –8–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               JUDGMENT

BROOKS-PHS HEIRS, LLC, BROOKS-            On Appeal from the 225th District Court,
PSC HEIRS, LLC; BROOKS-WTC                Bexar County, Texas
HEIRS, LLC; ALASTAIR TRICKETT;            Trial Court Cause No. 2013CI10924.
PENELOPE TRICKETT; HEATHER                Opinion delivered by Justice Schenck.
ELIZABETH OLSEN; MARILYN                  Justices Reichek and Nowell participating.
HOLMES TULLOCH; NANCY LEE
HALSTED WOODMANSEE; JUNE C.
HAACK; MARILYN HALSTED; JOSEPH
EDWIN HALSTED; THOMAS ARTHUR
HALSTED; ROBERT BRUCE HALSTED;
MARGARET H. REYNOLDS; MARY P.
HALSTED; JANE DECOSKY; CAROL
CANFIELD CLARKE-TERRILL,
FORMERLY CAROL C. SWEARINGEN,
AS TRUSTEE OF THE ROBERT G.
SWEARINGEN REVOCABLE TRUST
DECEMBER 19, 2001; MARCELLE
BRANNEN; AND ROBERT G. MCLEOD,
ALSO KNOWN AS BOB MCLEOD,
Appellants

No. 05-18-00356-CV     V.

RICHARD HOWARD BOWERMAN,
INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE
ESTATE OF ROBERT BOWERMAN,
DECEASED; STEVEN ROBERT
BOWERMAN, INDIVIDUALLY; AND


                                    –9–
 ESTHER MICHELE DAUGHERTY,
 INDIVIDUALLY Appellees

        In accordance with this Court’s opinion of this date, the trial court order denying
appellants’ motion to reinstate is REVERSED and this cause is REMANDED to the trial court
for further proceedings consistent with this opinion.

        It is ORDERED that appellants BROOKS-PHS HEIRS, LLC ET AL. recover their costs
of this appeal from appellees RICHARD HOWARD BOWERMAN ET AL.


Judgment entered this 11th day of February, 2019.




                                            –10–
