Reversed and Remanded and Memorandum Opinion filed August 18, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00186-CV

                         SIGNORA LYNCH, Appellant
                                         V.
  KAREN GEORGE-BAUNCHAND AND JOHN C. OSBORNE, Appellees

                    On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-64880

                 MEMORANDUM                      OPINION

      In this appeal from a legal malpractice action, appellant Signora Lynch
appeals the trial court’s dismissal of her case against her former attorneys for want
of prosecution and the denial of her motion to reinstate the case. One of the
appellees, Karen George-Baunchand, includes in her responsive brief a motion for
sanctions against Lynch for filing a frivolous appeal. We reverse the trial court’s
judgment and remand. We also deny George-Baunchand’s motion for sanctions.
                   FACTUAL AND PROCEDURAL BACKGROUND

      Appellees Karen George-Baunchand and John C. Osborne represented
Lynch in an action for injuries Lynch allegedly sustained during arrests made by
Texas City Police. George-Baunchand and Osborne allegedly failed to properly
handle Lynch’s action against Texas City Police and the case was dismissed. On
October 31, 2012, Lynch filed the present action against her former attorneys for
negligence and breach of fiduciary duties.

      The trial court’s February 11, 2013 docket control order reflects a docket
call set for 9:00 a.m. on February 3, 2014. The docket control order notified the
parties that failure to appear at the docket call would be grounds for dismissal for
want of prosecution. The docket control order also reflected the name and address
of Lynch’s attorney. On February 3, 2014, Lynch and counsel failed to appear at
the docket call. On February 4, 2014, the trial court signed an order dismissing the
case for want of prosecution. Lynch filed a verified motion to reinstate, which the
trial court denied on February 14, 2014. This appeal followed.

                          ANALYSIS OF LYNCH’S ISSUES

      On appeal, Lynch contends that the trial court erred by denying her motion
to reinstate and dismissing her case. In the body of her brief, Lynch’s primary
complaint is that the trial court erred by dismissing her case without notice or a
hearing, but she also frames her statement of the issue on appeal as a complaint
that the trial court erred by denying her motion to reinstate. Therefore, we will
address both the trial court’s dismissal order and its order denying the motion to
reinstate. See Tex. R. App. P. 38.1(f); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.
2008) (“Appellate briefs are to be construed reasonably, yet liberally, so that the
right to appellate review is not lost by waiver.”). Finally, we address George-
Baunchand’s motion for sanctions for filing a frivolous appeal.
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I.    The Trial Court’s Dismissal of Lynch’s Case and Denial of Her
      Motion to Reinstate

      A.     Standard of Review

      We apply an abuse of discretion standard of review to a trial court’s
dismissal for want of prosecution and denial of a motion to reinstate. MacGregor v.
Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam) (dismissal for want of
prosecution); Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 467
(Tex.1995) (per curiam) (denial of motion to reinstate). A trial court abuses its
discretion if it acts without reference to any guiding rules or principles or acts in an
arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985); 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 541
(Tex. App.—Houston [14th Dist.] 2000, no pet.). Acting in a manner contrary to
case law also constitutes an abuse of discretion. 3V, Inc., 40 S.W.3d at 541. In
reviewing a trial court’s dismissal order, we look at the record in its entirety and
the procedural history of the case. See Olin Corp. v. Coastal Water Auth., 849
S.W.2d 852, 856 (Tex. App.—Houston [1st Dist.] 1993, no writ).

      B.     The Dismissal Order

      The trial court’s dismissal order reflects that Lynch’s case was dismissed for
want of prosecution based on the stated reason that Lynch failed to appear at the
court-ordered docket call. Lynch argues that the trial court abused its discretion
and violated her due process rights by dismissing her case for want of prosecution
without notice or a hearing. See Tex. R. Civ. P. 165a(1); Gen. Motors Acceptance
Corp. v. City of Houston, 857 S.W.2d 731, 733 (Tex. App.—Houston [14th Dist.]
1993, no writ) (“Before a lawsuit may be dismissed for want of prosecution, the
trial court must mail notice of its intention to dismiss to each attorney of record and
to each party not represented by an attorney, and to the address as shown on the

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docket or papers on file.”).

      A trial court’s authority to dismiss for want of prosecution stems from two
sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the court’s
inherent power. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,
630 (Tex. 1999). A trial court may dismiss under Rule 165a on the “failure of any
party seeking affirmative relief to appear for any hearing or trial of which the party
had notice,” or when a case is “not disposed of within time standards promulgated
by the Supreme Court.” Tex. R. Civ. P. 165a(1)–(2). In addition, the common law
vests the trial court with the inherent power to dismiss independently of the rules
of procedure when a plaintiff fails to prosecute his or her case with due
diligence. Tex. R. Civ. P. 165a(4); Villarreal, 994 S.W.2d at 630.

      A trial court generally must provide notice and a hearing before dismissing a
case under Rule 165a or its inherent power. See Tex. R. Civ. P. 165a(1); Villarreal,
994 S.W.2d at 630. The notice and hearing requirements ensure that the dismissed
claimant has received due process. Franklin v. Sherman Indep. Sch. Dist., 53
S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied) (per curiam); Hubert v. Ill.
State Assistance Comm’n, 867 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.]
1993, no writ). The failure to provide adequate notice of the trial court’s intent to
dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630.
When the notice specifies one ground for dismissal, as in this case, the trial court
cannot dismiss the case for any reason other than the stated ground. See id. at 632;
3V, Inc., 40 S.W.3d at 543. However, a lack of notice can be cured when the trial
court holds a hearing on the appellant’s motion to reinstate. Jimenez v.
Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.]
1999, no pet.).

      The record shows that the February 11, 2013 docket control order lists the

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date, place, and time of the docket call, and instructs the parties to “be prepared to
discuss all aspects of trial with the court on this date.” The docket control order
also warns: “Failure to appear will be grounds for dismissal for want of
prosecution.” Lynch does not contend she did not receive the docket control order;
indeed, Lynch’s counsel admitted in the verified motion for reinstatement that he
was aware of the trial court’s scheduling for the case, but chose not to appear at the
docket call. In the motion to reinstate, Lynch’s counsel explains:

      In late January of this year, William J. Robertson, Esquire approached
      me and conferred concerning his desiring [sic] on behalf of his client,
      Defendnat [sic] John C. Osborne to move this Court to reset the trial
      setting in this case, as Mr. Robertson had just lately been retained to
      act as Mr. Osborne’s counsel. I told Mr. Robertson that I would not
      object provided tha [sic] he sought and obtained a new scheduling
      Order from the Court. Mr. Robertson assured me that he would have
      the case reset. I then assumed that I could trust that would occur and I
      did not appear for the docket call of this case.
Lynch’s attorney also stated that he learned of the trial court’s dismissal when he
received the district clerk’s notice of dismissal on February 10, 2014. Lynch does
not address this evidence. Instead, Lynch argues that she was entitled to receive
“either notice of a dismissal docket setting or notice of the trial court’s order of
dismissal.”

      The docket control order was addressed to Lynch’s attorney at the address
on Lynch’s original petition. Although Lynch suggests that she was entitled to a
separate dismissal docket setting after failing to appear for the scheduled docket
call, she learned of the dismissal order in time to file a motion to reinstate and
obtain a hearing. Lynch was thus afforded her due process rights because she
received actual notice of the dismissal order in time to file a motion to reinstate,
and a hearing was held on the motion. See id. at 128–29; see also Davis v.
Friedson, No. 14-08-01098-CV, 2010 WL 1006644, at *10 (Tex. App.—Houston
                                          5
[14th Dist.] Mar. 16, 2010, no pet.) (substitute mem. op.). Further, the record
contains no indication that Lynch was denied an opportunity to be heard at the
hearing. See Davis, 2010 WL 1006644, at *10. We conclude that the hearing on
Lynch’s motion to reinstate satisfied the due process rights applicable to the
dismissal of her case.

      C.     The Motion to Reinstate

      When a case is dismissed for want of prosecution, “[t]he court shall reinstate
the case upon finding after a hearing 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). A failure 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. Smith, 913 S.W.2d at 468. 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. See id.

      As an initial matter, Osborne argues that because the trial court held a
hearing on Lynch’s motion to reinstate and Lynch has failed to provide a reporter’s
record of the hearing, we must presume that the trial court had the necessary facts
at the hearing to support its order. In support of this proposition, Osborne cites
Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex. App.—San Antonio
1989, writ denied). Since Bard was decided, however, the Supreme Court of Texas
has instructed that when the evidence is filed with the clerk and only arguments by
counsel are presented in open court, a reporter’s record is not required. See Vernco
Constr., Inc. v. Nelson, 460 S.W.3d 145, 150 & 151 n.4 (Tex. 2015) (per curiam)
(citing Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex.

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2005)). Absent a specific indication or assertion to the contrary, we are generally to
presume that the hearing is nonevidentiary. See id. at 150. The complaining party
is required to present a record of the hearing to establish harmful error only when
the proceeding’s nature, the trial court’s order, the party’s briefs, or other
indications show that an evidentiary hearing took place in open court. Id.

      Here, neither Osborne nor any other party contends that an evidentiary
hearing was held on Lynch’s motion to reinstate. The trial court’s February 14,
2014 order denying the motion to reinstate suggests that, although a hearing was
held, it was nonevidentiary: “Having fully considered the Motion, all responses,
replies, pleadings, arguments of counsel, and evidence on file, the Court finds that
Plaintiff’s Motion to Reinstate should be and is hereby Denied in its entirety”
(emphasis added). Further, in his brief, Osborne represents that “Lynch failed to
present any evidence” at the hearing. Because the record and the briefs contain no
specific indication or assertion that an evidentiary hearing was held, we are not
required to presume that an evidentiary hearing was held in which evidence
supporting the trial court’s judgment was presented. See id.; see also 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.) (holding that appellant who
did not bring forward a reporter’s record did not waive complaint that trial court
erred by denying motion to reinstate when record reflected the hearing on the
motion was nonevidentiary).

      Nevertheless, in a trial to the court in which no findings of fact are filed, the
trial court’s judgment implies all fact findings necessary to support it. See Pharo v.
Chambers Cnty., Tex., 922 S.W.2d 945, 948 (Tex. 1996). In determining whether
the trial court abused its discretion in refusing reinstatement, we review the entire
record and determine whether the evidence was sufficient to find that the failure of

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the   party     was    not    due     to   accident,     mistake,     or    other    reasonable
explanation. See Tex. Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex.
App.—San Antonio 1997, no writ). The party requesting reinstatement has the
burden of proof to establish the ground for reinstatement under Rule165a. See
Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3–4 (Tex. App.—Houston [14th Dist.]
2006, pet. denied).

       As discussed above, Lynch filed a verified motion to reinstate in which she
argued that the reason her counsel failed to appear for the docket call was that he
reasonably relied on opposing counsel’s representation that the trial date would be
reset.1 Osborne does not address this evidence, but George-Baunchand argues that
Lynch’s counsel’s failure to appear, when he was aware of the docket call setting
and was advised that the failure to appear could result in a dismissal for want of
prosecution, amounts to conscious indifference. In support of her position, George-
Baunchand cites Prince v. Prince, 912 S.W.2d 367, 370 (Tex. App.—Houston
[14th Dist.] 1995, no writ) (“We interpret conscious indifference to mean a failure
to take some action which would seem indicated to a person of reasonable
sensibilities under the same circumstances.”) (quoting Johnson v. Edmonds, 712
S.W.2d 651, 652–63 (Tex. App.—Fort Worth 1986, no writ)). However, Prince
was decided before the Supreme Court of Texas clarified the standard for
conscious indifference in Smith. See 913 S.W.2d at 648.

       1
          Lynch also argued that the Harris County district clerk’s case information showed that
the case had been actively prosecuted, which the appellees dispute. However, the trial court’s
dismissal order specifically stated that Lynch’s case was dismissed for failure to appear at the
docket call; therefore, Lynch only had the burden to prove her entitlement to reinstatement for
the failure to appear and was not required to show that she was entitled to reinstatement on all
possible grounds for the trial court’s dismissal. See Shook v. Gilmore & Tatge Mfg. Co., Inc., 951
S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied); see also Jackson v. Thurahan, Inc., No.
14-02-00308-CV, 2003 WL 1566386, at *4 (Tex. App.—Houston [14th Dist.] Mar. 27, 2003, no
pet.) (mem. op) (holding that trial court abused its discretion by denying reinstatement on
grounds other than those provided in the notice of intent to dismiss).

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      Here, Lynch’s attorney explained that he relied on Osborne’s attorney’s
assurance that he would obtain a new scheduling order and, because Lynch’s
attorney trusted that this would occur, he did not appear for the docket call.
Lynch’s attorney’s statement is uncontroverted. Although Lynch’s attorney may
not have been “as conscientious as he should have been” in failing to confirm for
himself that the docket call date had been changed, his actions did not amount to
conscious indifference. See Smith, 913 S.W.2d at 648; Davis, 2010 WL 1006644,
at *11; see also Microcheck Sys., Inc. v. Smith, No. 01-10-00169-CV, 2011 WL
1632180, at *4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (mem. op.)
(holding that trial court erred by refusing to reinstate case when attorney of record
provided uncontroverted testimony that her failure to appear at docket call was not
the result of conscious indifference but was due to her mistaken belief that she had
been replaced as counsel of record).

      Because Lynch’s verified motion to reinstate reasonably explained why
Lynch and her attorney failed to appear at the docket call, 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 the motion for
reinstatement.

                              APPELLATE SANCTIONS

      In her response brief, appellee George-Baunchand contends that, under
Texas Rule of Appellate Procedure 45, Lynch’s appeal is frivolous and requests
that we order Lynch to pay George-Baunchand $1,500.00 in attorney’s fees as
damages. See Tex. R. App. P. 45 (providing that if the appellate court determines
that an appeal is frivolous, it may award a prevailing party its “just damages”).
When deciding whether an appeal is objectively frivolous, we review the record
from the viewpoint of the advocate and decide whether the advocate had a

                                         9
reasonable basis to believe the case could be reversed on appeal. Lane-Valente
Indus. (Nat'l), Inc. v. J.P. Morgan Chase, N.A., ___ S.W.3d ___, No. 14-14-00028-
CV, 2015 WL 3485661, at *4 (Tex. App.—Houston [14th Dist.] June 2, 2015, no
pet.) (citing Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (en banc)). The imposition of sanctions is a
discretionary decision exercised with prudence and caution and only after careful
deliberation. Id.

      Although we have overruled Lynch’s complaint that she was denied notice
and a hearing on her motion to dismiss, we have sustained Lynch’s contention that
the trial court erred by denying her motion to reinstate. Therefore, we conclude that
Lynch’s appeal was not objectively frivolous and we deny George-Baunchand’s
motion for Rule 45 sanctions.

                                   CONCLUSION

      We reverse the trial court’s order denying Lynch’s motion to reinstate and
remand the case for further proceedings. We deny appellee George-Baunchand’s
Rule 45 motion for damages for a frivolous appeal.




                                       /s/    Ken Wise
                                              Justice



Panel consists of Justices Christopher, Brown, and Wise.




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