                         In the
                    Court of Appeals
            Second Appellate District of Texas
                     at Fort Worth
                  ___________________________
                       No. 02-19-00260-CV
                  ___________________________

                   APRIL POLLEFEYT, Appellant

                                 V.

TEXAS HEALTH RESOURCES D/B/A ARLINGTON MEMORIAL HOSPITAL;
     DR. JOSEPH BORRELLI; AND HOLLY DUNN, RN, Appellees



               On Appeal from the 153rd District Court
                       Tarrant County, Texas
                   Trial Court No. 153-299269-18


       Dissenting Memorandum Opinion by Chief Justice Sudderth
                   DISSENTING MEMORANDUM OPINION

       Because I would hold that the trial court did not abuse its discretion, I

respectfully dissent.

       A trial court abuses its discretion if it acts without reference to any guiding

rules or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

An appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same circumstances.

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,

221 S.W.3d at 620.

       Under the Craddock test, Appellant April Pollefeyt was first required to establish

that her failure to appear at the dismissal hearing was “not intentional, or the result of

conscious indifference . . . but was due to a mistake or an accident.” Craddock v.

Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939). As the majority

points out, Pollefeyt’s evidence on this first prong of the Craddock test consists of a

statement contained in her verified “Motion to Retain Case to the Docket”:

       [t]he act resulting in this dismissal was not intentional or an [sic]
       conscious act or conscious indifference but was an accident or mistake
       of the civil rules of procedure and the request for the court to allow me
       to take leave to amend the pleading and be granted that request if the
       request was made 24 hours prior to the hearing set for the dismissal in
       which I did not [sic] aware that the order was not signed to grant me that
       leave. The evidence that was to be attached to amended pleading was
       lost temporarily due to the laptp [sic] in which the evidence of the
       medical documentation was locked due to some unknown happening.

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       The phrase, “[t]he act resulting in this dismissal was not intentional or an [sic]

conscious act or conscious indifference but was an accident or mistake of the civil

rules of procedure,” is conclusory and establishes nothing.

      As for the remaining phrase in the first sentence, “and the request for the court

to allow me to take leave to amend the pleading and be granted that request if the

request was made 24 hours prior to the hearing set for the dismissal in which I did not

[sic] aware that the order was not signed to grant me that leave,” it fails to articulate a

reason for failing to attend the dismissal hearing.1

      In her motion, Pollefeyt does not state that she failed to appear because of

anything. She does not state that her failure to appear was due to anything. She does

not state that her request for leave to amend the pleading and her lack of awareness

that her motion for leave had not been granted was the basis for her failing to appear at

the hearing or that it caused anything at all. Cause and effect, or any connection

between attending a hearing and amending a pleading, being conspicuously absent,

Pollefeyt wholly failed to connect these dots (assuming these dots were somehow

connectable).

      The majority not only assumes that the dots are connectable but also

generously connects the dots in Pollefeyt’s favor by reading words into her statement


       The last sentence about the “unknown happening” likewise adds no
       1

information of value to answer the question of why Pollefeyt failed to attend the
hearing.

                                            3
that do not appear there. The majority speculates that what Pollefeyt meant to say was

that “she had mistakenly believed that her motion to amend her pleadings was

sufficient to retain the case on the docket.”2 See Maj. Op. at 4. If we are to speculate

as to her meaning, it is also plausible that she intended to say that she simply decided

not to bother attending the hearing because she had not been made aware that the

trial judge did not grant leave. The latter, unfavorable reading, would prove conscious

indifference. Because words must be added to reach either conclusion, we should

neither tip the scales one way or the other through charitable interpretation nor

require that the trial court do so. Especially when the trial court was presented with a

record replete with rambling, dubious, and illogical claims,3 I would not find an abuse


      2
        I agree with the majority that in Pollefeyt’s unverified second motion to retain
the case on the docket, she asserted that she “was I’ll [sic] due to the Parasitic
infection the Plaintiffs [sic] contracted from the defendants,” and that she “thought
that the Court had indeed granted the request for the additional time” to appear in
court. But Pollefeyt cannot rely on an unverified pleading to satisfy her burden of
proof. We have held that parties seeking to set aside default judgments bear the
burden of submitting competent evidence—through testimony or affidavits—to
establish accident or mistake, as opposed to conscious indifference. In re E.P.C.,
No. 02-10-00050-CV, 2010 WL 5187691, at *2 (Tex. App.—Fort Worth Dec. 23,
2010, no pet.) (mem. op.). The trial court cannot be faulted for following the law and
requiring more than Pollefeyt’s unverified motion to satisfy her burden of establishing
the first prong of the Craddock test.
      3
       By way of example, paragraph 19 of Pollefeyt’s “Complaint” states:

      Holly Dunn acting alone or in collusion with various staff of Arlington
      Memorial namely Blane Camel did in fact attempt to edit or rewrite the
      medical record of Ms. Pollefeyt to falsely state that the Plaintiff was
      positive for an illicit narcotic and other falsehoods in a [sic] effort to
      cover up the incident that is written in the complaint above proven by

                                           4
of discretion in the trial court’s failure to attribute words to Pollefeyt that she did not

utter.

         If Pollefeyt had established, as the majority contends, that “she had mistakenly

believed that her motion to amend her pleadings was sufficient to retain the case on

the docket,” then I would agree that the trial court abused its discretion by denying

her motion to reinstate. But Pollefeyt did not say this. What she said fell woefully

short of this.     Therefore, I would hold that the trial court’s interpretation of

Pollefeyt’s written words was not without reference to any guiding rules or principles

but was instead based upon guiding rules and principles, i.e., basic English language

semantics. See Low, 221 S.W.3d at 614; Cire, 134 S.W.3d at 838–39. Nor would I find

the trial court’s decision to be arbitrary or unreasonable.

         I would affirm.

                                                        /s/ Bonnie Sudderth

                                                        Bonnie Sudderth
                                                        Chief Justice

Delivered: April 16, 2020




         the 2nd set of medical records that contain the “audit trail” which these
         portions are not included in the 3rd set of records.

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