                         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


             Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
                Memorandum Opinion by Justice Birdwell
       Dissenting Memorandum Opinion by Chief Justice Sudderth
                             MEMORANDUM OPINION

       April Pollefeyt appeals from an order dismissing her health care liability suit for

want of prosecution. Because Pollefeyt showed that her failure to attend the dismissal

hearing resulted from an accident or mistake, we reverse the trial court’s order.

                                 Procedural Background

       On April 24, 2018, Pollefeyt filed a pro se suit against appellants Texas Health

Resources d/b/a Arlington Memorial Hospital; Dr. Joseph Borrelli; and Holly Dunn,

R.N. for negligence, “malice[,] flagrant assault[,] and fraud” arising from Pollefeyt’s

medical treatment at Arlington Memorial Hospital from April 16–21, 2016. With her

petition, Pollefeyt filed a statement of inability to pay costs, which has never been

challenged. The record does not show that any of the appellants have been served

with citation in accordance with Rule 99. Tex. R. Civ. P. 99. 1

       On January 7, 2019, the trial judge sent Pollefeyt a letter stating that the case

had been “set for dismissal for want of prosecution on February 22, 2019 at


       1
         The person requesting service is responsible for ensuring that citation is
properly served and that the return of service is reflected in the record. See Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). Pollefeyt claimed in many of her
pleadings and in her brief that she had served appellants with the petition via certified
mail. But such attempted service is invalid. See Tex. R. Civ. P. 103 (providing that only
clerk of court in which case is pending may effect service by certified mail unless
otherwise ordered by the trial court and that “no person who is a party to or
interested in the outcome of a suit may serve any process in that suit”), 106(a)(2)
(authorizing person allowed to serve process under Rule 103 to effect service via
certified mail, return receipt requested); Ikon Office Sols., Inc. v. Integrity Commc’ns, Ltd.,
No. 13-04-00243-CV, 2006 WL 1644670, at *3 (Tex. App.––Corpus Christi–Edinburg
June 15, 2006, pet. denied) (mem. op.).

                                              2
9:30 a.m. in the 153rd District Court pursuant to Rule 165a of the Texas Rules of Civil

Procedure.” The letter further advised that a motion to retain should be filed no later

than 5:00 p.m. “the day before the dismissal hearing.”

       Pollefeyt timely filed a motion to retain the suit on the trial court’s docket. She

asserted that she was entitled to a default judgment because the appellants had been

“properly served and [had] failed to answer.” She offered no other explanation for the

lack of activity in the case other than her entitlement to relief on the merits.

Nevertheless, the trial judge signed an order on February 22, 2019, retaining the case

on the court’s docket.

       On March 6, 2019, less than two weeks later, the trial court sent a second

dismissal letter, identical to the first except for the hearing date:

       The above referenced cause of action is set for dismissal for want of
       prosecution on May 17, 2019 at 9:30 a.m. in the 153rd District Court
       pursuant to Rule 165a of the Texas Rules of Civil Procedure.

              Motions to retain must be filed no later than 5:00 p.m. on the day
       before the dismissal hearing. The Court will consider all motions to
       retain at the dismissal hearing.

             If a motion to retain is granted[,] a docket control order will be
       entered at the dismissal hearing.

       Before May 17, 2019, Pollefeyt filed three motions to amend her pleading,

purporting to serve all of these documents on appellants via e-filing. In one of the

motions, filed just before noon the day before the dismissal hearing, she requested

seven days “to perfect and amend [her] pleading and enter the [e]vidence and


                                              3
necessary requirements to pursue [the] claim.” She claimed that her “illness” resulting

from the appellants’ acts and omissions described in the health care liability claim had

“made her unable to participate in trying to obtain the necessary elements needed to

pursue” it.

      On the day of the dismissal hearing, which Pollefeyt failed to attend, the trial

judge signed an order dismissing the suit “for want of prosecution.” Although there is

no record of the hearing, the trial court’s docket entry for that date states that

Pollefeyt was a “no show” and had not filed a motion to retain.

      Eleven days later, Pollefeyt filed a Motion to Retain Case to the Docket seeking

reinstatement of the case. In that motion, which she electronically signed and attested

to the truth of under penalty of perjury,2 Pollefeyt asserted that she had mistakenly

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

the docket and that she did not realize the trial court had not granted her leave. 3 She


      2
         See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a); Tex. R. Civ. P. 1, 21(f)(7);
Gillis v. Harris Cty., 554 S.W.3d 188, 192–93 (Tex. App.––Houston [14th Dist.] 2018,
no pet.).
      3
        Specifically, she stated, “The act resulting in this dismissal was not intentional
or an 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 aware that the order was
not signed to grant me that leave.” Although this language is somewhat incoherent,
construing it liberally, as courts must under the circumstances, we construe it as
explaining that Pollefeyt thought filing the request to amend the pleading was the
same thing as filing the motion to retain referenced in the dismissal letter and that she
thought it would be granted as her prior motion had been.

                                            4
also contended that the evidence she was going to attach to her pleadings “was lost

temporarily [because] the lapt[o]p in which the . . . medical documentation was

[located became] locked due to some unknown happening.”

      The trial court set the motion for a July 12, 2019 hearing. A note on the setting

order indicates that it was emailed to Pollefeyt.

      The day before the reinstatement hearing, Pollefeyt filed an unverified second

motion to retain the case on the docket, in which she clarified that she had mistakenly

thought that the trial court had extended the time for her to file a motion to retain

before dismissing the suit and that the District Clerk had misled her into believing

that service of her petition on the defendants by certified mail was sufficient.

      The trial court’s docket sheet4 shows that on July 12, 2019, the trial court held a

hearing but that the trial judge did not sign “any orders.” It also notes that Pollefeyt

had not filed a motion for new trial and that the trial court advised Pollefeyt to hire an

attorney “ASAP”; a parenthetical connected to the attorney note states, “needed to

get case on docket.” Nothing in the record indicates that the trial judge considered

evidence at the hearing, and according to the court reporter, no record of the hearing

was taken.

      Three days later, Pollefeyt filed a motion to vacate the trial court’s dismissal

order and another motion to amend her pleadings and reinstate the case. She also filed


      4
       Pollefeyt’s docketing statement filed with this court shows that there is no
reporter’s record and that Pollefeyt did not request one.

                                            5
a document directed to the trial judge, not this court, stating her intention to “appeal[]

to the honorable court for an order vacating the order of dismissal and reinstating

th[e] case on the docket.” The District Clerk forwarded the document to this court as

a notice of appeal.

       Over the next week, Pollefeyt filed in the trial court a second statement of

inability to pay costs, a motion to reinstate the case on the docket, another motion to

retain, and a memorandum of law supporting her motion to retain. By July 31, 2019,

the trial court still had not ruled on the motion to reinstate; thus, it was overruled by

operation of law. See In re R.C.M., Nos. 2-09-080-CV, 2-09-347-CV, 2010 WL

1267759, at *3 (Tex. App.––Fort Worth Apr. 1, 2010, no pet.) (mem. op.) (citing Tex.

R. Civ. P. 165a(3)).

       Nevertheless, the trial judge set the motion to reinstate for another hearing on

August 9, 2019. The trial court’s docket entry for that day shows that it held a hearing

on the motion but that the court of appeals “has [the] case,” and the trial court has

“no plenary power.”5 Pollefeyt filed a motion for new trial on August 14, 2019; an

amended notice of appeal addressed to this court on August 19, 2019; and a motion

for judgment on her pleadings on August 21, 2019. The trial court did not rule on any

of these motions.



       Contrary to this notation, the trial court’s plenary power to reinstate the case
       5

ended on August 30, 2019, thirty days after the motion to reinstate was overruled by
operation of law. See R.C.M., 2010 WL 1267759, at *3.

                                            6
     Dismissal Without Ruling on Default Judgment Request Was Proper,
        But Denial of Reinstatement Motion Was Abuse of Discretion

       Pollefeyt challenges the dismissal in five issues, 6 contending that (1) the trial

court failed to issue a scheduling order when it retained the case on February 22,

2019; (2) the trial court failed to grant her motion for a default judgment; (3) she had

mistakenly assumed that the motion to amend she had filed the day before the

dismissal hearing was sufficient to retain the suit on the trial court’s docket; (4) the

trial court failed to adequately notify her of its intent to dismiss the case for failure to

attend the May 17, 2019 dismissal hearing and also erred by not granting her motions

to retain and reinstate her case; and (5) the doctrine of res ipsa loquitur should apply

to the underlying merits of her suit. We address only her dispositive issues.

Pollefeyt not entitled to default judgment

       In her second issue, Pollefeyt contends that the trial court should have granted

her pending motion for a default judgment against the appellants rather than dismiss

the case. Rule 239 provides that a plaintiff is entitled to a default judgment if “the

return of service [has] been on file with the clerk for the length of time required by

Rule 107.” Tex. R. Civ. P. 239; see also Tex. R. Civ. P. 124 (“In no case shall judgment

be rendered against any defendant unless upon service, or acceptance or waiver of

process, or upon an appearance by the defendant, as prescribed in these rules, except

where otherwise expressly provided by law or these rules.”). Because the record does

      She numbers her issues differently in different parts of her brief. We follow
       6

the numbering she uses in her argument.

                                             7
not show proper service on any appellant, the trial court did not abuse its discretion

by not granting Pollefeyt’s request for a default judgment. See Gibson v. Tex. Dep’t of

Criminal Justice, No. 11-17-00196-CV, 2019 WL 3333348, at *2 (Tex. App.––Eastland

July 25, 2019, no pet.) (mem. op.). We overrule her second issue.

Dismissal proper but denial of reinstatement was abuse of discretion

       In her third issue, Pollefeyt contends that the trial court erred by dismissing her

case after she had filed a motion seeking seven additional days to amend her

pleadings, mistakenly believing either that the motion sufficed as a motion to retain or

that the trial court would grant the motion. This was also the argument in her timely

postdismissal reinstatement motion, 7 the denial of which she challenges in the

remainder of her fourth issue, contending in part that the trial court deprived her of

due process.

       A party whose case is dismissed for want of prosecution may appeal both the

dismissal and the denial of the reinstatement motion. See Sellers v. Foster, 199 S.W.3d

385, 390 (Tex. App.––Fort Worth 2006, no pet.). We review both the dismissal and

the refusal to reinstate for an abuse of discretion. Id. In reviewing the refusal to

reinstate, we must first look to the basis for dismissal. Id.

       A trial court’s authority to dismiss a suit for want of prosecution arises from

two sources: Texas Rule of Civil Procedure 165a and the trial court’s inherent

       Although Pollefeyt titled this motion, “Motion to Retain Case to the Docket,”
       7

her requested relief was to reinstate the case. See Tex. R. Civ. P. 71 (requiring court to
consider substance of motion rather than title).

                                             8
authority to control its own docket. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck

& Equip., 994 S.W.2d 628, 630 (Tex. 1999). By specifically referencing only Rule 165a

in its dismissal letter, the trial court indicated its intent to dismiss under either

Rule 165a(1) or (2). See Tex. R. Civ. P. 165a(1), (2); Johnson-Snodgrass v. KTAO, Inc., 75

S.W.3d 84, 88–90 (Tex. App.––Fort Worth 2002, pet. dism’d); Lopez v. Harding, 68

S.W.3d 78, 79–80 (Tex. App.––Dallas 2001, no pet.); see also Patterson v. Herb Easley

Motors, Inc., No. 2-04-351-CV, 2005 WL 2044671, at *1, *3 (Tex. App.––Fort Worth

Aug. 25, 2005, no pet.) (mem. op.); see also Villarreal, 994 S.W.2d at 630–31.

       A trial court may dismiss a suit under Rule 165a if (1) a party seeking

affirmative relief fails to appear for any hearing or trial of which the party had notice

or (2) the case is not disposed of within the time standards promulgated by the Texas

Supreme Court under its administrative rules. Tex. R. Civ. P. 165a(1), (2). Here, the

trial court could not have properly dismissed under Rule 165a(2) because the Supreme

Court’s administrative time standards run from an “appearance date,” Tex. R. Jud.

Admin. 6.1(a), and no appellant has yet appeared or is legally obligated to appear, see

Tex. R. Civ. P. 99(b)–(c), 120, 121–22. See Maida v. Fire Ins. Exch., 990 S.W.2d 836,

841–42 (Tex. App.––Fort Worth 1999, no pet.). We will thus review whether the trial court

correctly determined that its dismissal for failure to appear under Rule 165a(1) was proper.8



       When the order does not specify a particular reason for the dismissal, we will
       8

affirm only if a proper ground supports the dismissal. See Fox v. Wardy, 225 S.W.3d
198, 200 (Tex. App.––El Paso 2005, pet. denied).

                                             9
       Pollefeyt does not dispute that she failed to attend the May 17 hearing at which

the trial court dismissed her case, but she does contend that she did not receive

adequate notice of the trial court’s intent to dismiss if she failed to attend that hearing.

We disagree. Because the trial court’s notice specifically referenced Rule 165a, it

adequately informed Pollefeyt of the possibility of dismissal for her failure to appear.

Thus, the initial dismissal was proper under Rule 165a(1). See Polinard v. Medina,

No. 13-11-00403-CV, 2012 WL 2929617, at *4–5 (Tex. App.––Corpus Christi–

Edinburg July 19, 2012, pet. denied) (mem. op.). We overrule Pollefeyt’s third issue.

       However, even after properly dismissing a case for want of prosecution for

failure to appear, the trial court must grant a properly filed motion to reinstate if it

finds “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(3); Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). This

standard is essentially the same as that for setting aside a default judgment. See Smith,

913 S.W.2d at 468 (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.

[Comm’n Op.] 1939)). Under this standard, conscious indifference must be more than

mere negligence; even a deliberate failure to appear is not intentional or due to

conscious indifference unless it is without adequate justification. Id. Proof of accident,

mistake, or “other reasonable explanation” negates intent or conscious indifference



                                            10
under Rule 165a. Id. Some excuse––not necessarily a good one––will suffice. Milestone

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

       When a verified motion to reinstate reasonably explains the failure to appear at

a dismissal hearing and the record contains no controverting evidence that the failure

was intentional or the result of conscious indifference, the trial court abuses its

discretion by denying the motion. See S. Pioneer Prop. & Cas. Ins. 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., 455 S.W.3d 241, 244 (Tex. App.––

El Paso 2015, no pet.) (citing a Craddock new-trial case, Strackbein v. Prewitt, 671 S.W.2d

37, 38–39 (Tex. 1984), holding that trial and intermediate appellate courts were

required to accept uncontroverted affidavit evidence of accident or mistake as true,

even in absence of reporter’s record of new-trial hearing). 9 Thus, if the explanation in


       9
         In the absence of a clear indication in the record that the reinstatement hearing
was evidentiary, we presume that the trial court allowed the motion to be overruled by
operation of law based on the facts stated in the motion. See Anambra State Cmty. in
Hous., Inc. (ANASCO) v. Ulasi, No. 14-16-01001-CV, 2018 WL 1611644, at *4 (Tex.
App.––Houston [14th Dist.] Apr. 3, 2018, no pet.) (mem. op.) (citing Vernco Constr.,
Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015)); Ortiz v. Columbus Ins. Agency, No. 04-
07-00855-CV, 2008 WL 2923775, at *3 (Tex. App.––San Antonio July 30, 2008, no
pet.) (mem. op.) (citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782
(Tex. 2005)); Maida, 990 S.W.2d at 838 n.1 (“[A] motion to reinstate is similar to a
motion for new trial, and thus, necessary only to develop facts that otherwise would
not appear in the record.”); cf. Crown Asset Mgmt., LLC v. Burnett, No. 05-07-01186-
CV, 2008 WL 3197098, at *2 (Tex. App.––Dallas Aug. 8, 2008, no pet.) (mem. op.)
(applying same principle to dismissal hearing, rather than reinstatement hearing);
Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181, 188 (Tex. App.––Fort
Worth 2004, no pet.) (holding case properly presented to court of appeals even
without reporter’s record of severance hearing because trial court is not required to

                                            11
the verified motion is adequate to show mistake or accident, the movant need not

present evidence supporting it at the oral reinstatement hearing.10 Brooks-PHS Heirs,

LLC v. Bowerman, No. 05-18-00356-CV, 2019 WL 1219323, at *4 (Tex. App.—Dallas

Mar. 15, 2019, pet. denied) (op. on reh’g) (citing Dir., State Emps. Workers’ Comp. Div. v.

Evans, 889 S.W.2d 266, 268 (Tex. 1994)).

      Pollefeyt contended in her motion to reinstate that she had mistakenly believed

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

and that she did not realize the trial court had not granted it. This is a sufficient

excuse to show that her failure to attend the hearing was not intentional or due to

conscious indifference. See, e.g., S. Pioneer, 2018 WL 3384558, at *2–3; Microcheck Sys.,


hold an evidentiary hearing before severing a case); Retzlaff v. Retzlaff, No. 03-01-
00539-CR, 2002 WL 1804946, at *1 (Tex. App.––Austin Aug. 8, 2002, no pet.) (mem.
op.) (holding that court reporter is not required to record nonevidentiary hearing). But
cf. Wells Fargo Bank, N.A. v. Edwards, No. 04-11-00527-CV, 2012 WL 2021803, at *5
(Tex. App.––San Antonio June 6, 2012, no pet.) (mem. op.) (citing and relying on
cases with similar facts in which intermediate courts upheld dismissals for want of
prosecution under trial court’s inherent authority when appellants did not bring forward
record of dismissal hearing or reinstatement hearing); Childress v. Casa Del Mar Ass’n,
No. 01-10-00913-CV, 2011 WL 5617939, at *5–7 (Tex. App.––Houston [1st Dist.]
Nov. 17, 2011, pet. denied) (mem. op.) (same).
       10
         From the trial court’s docket entry, it appears the trial court held an oral
hearing. Pollefeyt does not complain that this oral hearing was nonevidentiary. Cf.
Tex. R. Civ. P. 165a(3) (requiring trial court to hold oral hearing on verified motion to
reinstate); Mortell v. Pruett, No. 02-19-00123-CV, 2019 WL 5608236, at *1 & n.1 (Tex.
App.––Fort Worth Oct. 31, 2019, no pet.) (mem. op.) (holding trial court erred by
denying motion to reinstate without first holding oral hearing); In re Marriage of Gilliam,
No. 12-12-00037-CV, 2012 WL 3991875, at *2 (Tex. App.––Tyler Sept. 12, 2012, no
pet.) (mem. op.) (same); Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.––Fort Worth
2004, no pet.) (same).

                                            12
Inc. v. Smith, No. 01-10-00169-CV, 2011 WL 1632180, at *4–5 (Tex. App.––Houston

[1st Dist.] Apr. 28, 2011, no pet.) (mem. op.); Clark v. Yarbrough, 900 S.W.2d 406, 408–

10 (Tex. App.––Texarkana 1995, writ denied). But see Brown v. Bush, No. 2-03-272-CV,

2004 WL 816319, at *1–2 (Tex. App.––Fort Worth 2004, pet. denied) (per curiam)

(mem. op.) (affirming dismissal for want of prosecution under trial court’s inherent

authority when appellant had failed to serve defendants for the nine months the case

had been on file and the trial court’s dismissal notice specifically warned that trial

court was considering dismissal for failure to effect service). Accordingly, the trial

court abused its discretion by denying Pollefeyt’s reinstatement motion.

       We sustain Pollefeyt’s fourth issue. Having done so, we need not address her

first and fifth issues. See Tex. R. App. P. 47.1.

                                        Conclusion

       Having concluded that the trial court abused its discretion by not reinstating

the case and allowing Pollefeyt’s motion to reinstate to be overruled by operation of

law, we reverse the trial court’s dismissal order and remand this case for further

proceedings consistent with this opinion.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Delivered: April 16, 2020




                                             13
