Smith v. Babcock & Wilcox Const. Co., Inc.

• Decision Date: 18 May 1994
• Docket Number: No. 3-93-112-CV,3-93-112-CV
• Citation: 915 S.W.2d 22
• Parties: James SMITH and Wife, Shirley Anne Smith, and Lumbermens Mutual Casualty Company, Appellants, v. BABCOCK & WILCOX CONSTRUCTION COMPANY, INC., and the City of Austin, Appellees.
• Court: Texas Court of Appeals

Page 22

915 S.W.2d 22

James SMITH and Wife, Shirley Anne Smith, and Lumbermens Mutual Casualty Company, Appellants, v. BABCOCK & WILCOX CONSTRUCTION COMPANY, INC., and the City of Austin, Appellees.

No. 3-93-112-CV.

Court of Appeals of Texas Austin.

May 18, 1994.

Publication Ordered Feb. 14, 1996.

Charles T. Frazier, Jr., Cowles & Thompson, P.C., Dallas, for Lumbermens Mutual Casualty Company.

Charles B. Lord, Law Offices of C.L. Ray, Austin, for James Smith & Shirley Anne Smith.

David S. Lill, Clark, Thomas & Winters, Austin, for Appellees.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.

ABOUSSIE, Justice.

Appellants James Smith and Shirley Anne Smith and Lumbermens Mutual Casualty Company ("Intervenor" or "Lumbermens") appeal from an order dismissing their cause of action against appellees Babcock & Wilcox Construction Company ("Babcock") and the City of Austin. Appellants further appeal the order denying their motions to reinstate

the case. We will affirm both orders of the trial court.

BACKGROUND

The City of Austin hired Babcock as its general contractor to perform and supervise certain improvements to a power generation plant. Babcock subcontracted part of the work to J. Graves Insulating Company, a company at which James Smith was employed. Smith allegedly was injured while working on the project, and he and his wife filed suit against the City of Austin and Babcock for damages related to his injuries. Lumbermens, the workers' compensation carrier for J. Graves, intervened in the cause to enforce its subrogation claim for benefits it previously had paid to Smith.

The record indicates that on or before June 15, 1992, Jeff Badders, the Smiths' attorney, requested that this matter be set for trial on the merits in Travis County on November 2, 1992. By letter dated August 10, 1992, to the Freestone County District Clerk, Badders requested that another case, Shirley Alexander v. National Union Fire Insurance Company of Pittsburgh, No. 91-306-A (87th Dist. Ct., Freestone County, Tex.) [hereinafter "the Alexander case"], also be set for trial on November 2, 1992, in Freestone County. On October 21, 1992, Badders filed an unverified motion for continuance in the instant cause, alleging that the Alexander case was preferentially set and was an older workers' compensation matter. On October 23, Judge Paul Davis conducted a hearing by teleconference on the Smiths' motion and denied the continuance. The record contains no statement of facts from this telephone conference. Four days later, Badders wrote a letter to the trial court stating that he understood from the teleconference that although the court was overruling his motion for continuance, Judge Davis would not require him to come to Travis County for trial on November 2 if, in fact, he was called to trial in the Alexander case. In the letter, Badders again referred to the Alexander case as a priority setting. On October 28, Judge Davis signed the order denying the motion for continuance. Badders never sought a continuance in the Alexander case.

On November 2, Badders went to trial in Freestone County in the Alexander case and did not appear in Travis County. Counsel for Lumbermens appeared in the instant cause and re-urged the Smiths' motion for continuance. Counsel for Babcock and the City of Austin filed a motion to dismiss for want of prosecution based upon the failure of the Smiths or Badders to appear. See Tex.R.Civ.P. 165a. Judge Pete Lowry, who was presiding, declined further continuance and dismissed the cause for want of prosecution.

Appellants filed motions to reinstate the case and Judge Davis held a hearing on the motions on December 21, 1992. At the hearing, Badders argued that he understood section 23.101 of the Texas Government Code to give preference to workers' compensation cases and, thus, he assumed the Alexander case was entitled to priority as a matter of law over the instant case. ¹ Counsel for Babcock and the City of Austin responded that section 23.101 merely applies to a court's internal ordering of its cases, and not to an ordering of cases among the various courts. Badders further argued that he had understood the judge's ruling on the motion for continuance to mean that Badders could proceed preferentially on the Alexander case,

                but that if that case did not proceed to trial, Badders' presence would be required in Travis County on November 2. 2  Badders admitted that, in fact, the Alexander case was not an older case and was not set preferentially, but argued he was mistaken when he misrepresented this to the court.  When Judge Davis asked Badders why he had not attempted to have the Alexander case rescheduled, Badders stated it was because he thought it was entitled to priority.  After hearing the arguments of counsel and the evidence presented, Judge Davis denied the motions
                

STANDARD OF REVIEW

In reviewing a dismissal for want of prosecution or the overruling of a motion to reinstate under Rule 165a, an appellate court applies the abuse-of-discretion standard to the trial court's actions. Goff v. Branch, 821 S.W.2d 732, 733 (Tex.App.--San Antonio 1991, writ denied); Melton v. Ryander, 727 S.W.2d 299, 301 (Tex.App.--Dallas 1987, writ ref'd n.r.e.); Price v. Firestone Tire & Rubber Co., 700 S.W.2d 730, 733 (Tex.App.--Dallas 1985, no writ); Wyatt v. Texas Oklahoma Exp., Inc., 693 S.W.2d 731, 732 (Tex.App.--Dallas 1985, no writ). In reviewing whether a trial court has abused its 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. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). "The mere fact that a trial court may decide a matter within its discretionary authority differently from what a reviewing court would decide in similar circumstances does not demonstrate that an abuse of discretion has occurred." Id. (citing Southwestern Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959)).

DISCUSSION

In their first point of error, appellants argue that the trial court erred when it refused to reinstate the case because Badders' failure to appear was not "intentional or the result of conscious indifference" under Rule 165a of the Texas Rules of Civil Procedure. Tex.R.Civ.P. 165a. Rule 165a states in relevant part:

1. Failure to Appear. A case may be dismissed 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....

* * * * * *

3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney.... The 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....

Id. (emphasis added).

Appellants argue that Badders' failure to appear for trial in Travis County on November 2 was not intentional or the result of conscious indifference because he understood that Judge Davis had given him permission to proceed with the Alexander trial and because Badders believed that the Alexander case was entitled to priority under section 23.101 of the Texas Government Code. Badders argues his absence was the result of these factual and legal "mistakes" and that the trial court should have reinstated the case under Rule 165a. We disagree.

Badders filed a motion for continuance twelve days before trial, and Judge Davis overruled it. Despite this ruling, Badders did not appear for trial, but rather had counsel for Lumbermens attend trial and re-urge an overruled motion on his behalf. Badders never attempted to reschedule the Alexander case. Finally, Badders admitted he had misrepresented to the court in an unverified motion that the Alexander case was an older and preferentially set case.

We conclude the trial court did not abuse its discretion in refusing to reinstate the case. The trial court reasonably could have believed that Badders' actions in the case, culminating in his absence from court on November 2, were not the result of an "accident" or "mistake." Appellants cite two cases as examples of "mistakes" requiring the reinstatement of a case under Rule 165a; however, we find these cases to be distinguishable from the instant cause. See Quita, Inc. v. Haney, 810 S.W.2d 469, 470 (Tex.App.--Eastland 1991, no writ) (attorney mistaken as to date of trial); Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex.App.--San Antonio 1988, writ denied) (attorney appeared in wrong courtroom). Accordingly, we overrule appellants' first point of error.

In their second point of error, appellants complain that their case should not have been dismissed "with prejudice." As a general rule, "[w]hen a case is dismissed for want of prosecution, it is error for the trial court to dismiss the case with prejudice." Melton, 727 S.W.2d at 303 (citations omitted); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568 (Tex.App.--Houston [14th Dist.] 1990, writ denied). However, although appellants filed a motion to reinstate, they did not present this complaint to the trial court as required. Torres v. Rios, 869 S.W.2d 555, 556 (Tex.App.--Corpus Christi 1993, n.w.h.); McCain v. NME Hospitals, Inc., 856 S.W.2d 751, 755 (Tex.App.--Dallas 1993, no writ); Andrews, 800 S.W.2d at 568-69. Accordingly, we overrule appellants' second point of error. ³

In their third and fourth points of error, appellants argue the trial court erred in dismissing and refusing to reinstate the case because Lumbermens' appearance at trial was sufficient to preclude dismissal under Rule 165a. Appellants further argue that because section 6a(a) of the Texas Workers' Compensation...