Unifund CCR, LLC v. Rice, 14-21-00386-CV

CourtCourt of Appeals of Texas
Writing for the CourtMargaret Meg Poissant Justice
PartiesUNIFUND CCR, LLC, Appellant v. GALEN B. RICE, Appellee
Docket Number14-21-00386-CV
Decision Date22 November 2022


GALEN B. RICE, Appellee

No. 14-21-00386-CV

Court of Appeals of Texas, Fourteenth District

November 22, 2022

On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1154334

Panel consists of Justices Wise, Poissant, and Wilson.


Margaret "Meg" Poissant Justice

Appellant Unifund CCR, LLC ("Unifund") appeals the denial of its motion to reinstate its lawsuit against appellee Galen B. Rice ("Rice"). In one issue, Unifund argues that the trial court erred when it denied its motion to reinstate the case on the trial court's docket. We reverse and remand to the trial court for further proceedings.


I. Background

On April 4, 2020, Unifund filed a lawsuit against Rice, asserting a claim for breach of contract and attorney's fees. On June 19, 2020, Unifund filed a combined no-evidence and traditional motion for summary judgment.

On February 11, 2021, the trial court issued an "Order For Trial Setting Via Video Conference," setting the case for a bench trial on April 20, 2021. The order contained the names and addresses of counsel of record. On April 23, 2021, Unifund filed a "Notice of Re-setting Zoom Hearing on Plaintiff's Traditional and No-Evidence Motion For Summary Judgment," setting a hearing on Unifund's combined motion for summary judgment for June 21, 2021. Unifund did not appear at the bench trial on April 20, 2021, and eight days later, the trial court signed an order dismissing Unifund's lawsuit for want of prosecution.

On June 16, 2021, Unifund filed a verified motion to reinstate the case, arguing that Unifund's counsel "inadvertently failed to attend the trial on April 20, 2021 because counsel did not receive notice of trial setting." Unifund further averred that it first learned of the dismissal on June 1, 2021. Rice filed a response and objection to Unifund's motion to reinstate, arguing that the conduct of Unifund leading to dismissal was the result of conscious indifference and not due to accident or mistake because the trial court (1) "mailed out its Order for Oral Setting via Video Conference on February 11, 2021, but [Unifund] failed to appear"; and (2) "timely mailed out its Order of Dismissal on April 28, 2021 giving [Unifund] knowledge of the signing of the order of dismissal within 20 days after the order was signed." Rice's response to Unifund's motion to reinstate attached the clerk's notices of the trial order and the dismissal order showing


Unifund's counsel's name and address. On June 28, 2021, following a hearing,[1] the trial court denied Unifund's motion to reinstate. This appeal followed.

II. Discussion

In its sole issue, Unifund argues that the trial court erred when it denied its motion to reinstate the case.

A. Standard of Review

We review a trial court's decision to dismiss for want of prosecution for a clear abuse of discretion. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

B. Applicable Law

A defendant who has made an appearance in a case is entitled to notice of the trial setting. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam). Furthermore, a party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either its inherent powers or Texas Rule of Civil Procedure 165a. See Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

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. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by
an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service

Tex. R. Civ. P. 165a(1). "A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney." Tex.R.Civ.P. 165a(3). The motion shall be filed with the clerk within thirty days after the order of dismissal is signed or within the period provided by Rule 306a. Id. 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.

The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to

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