Opinion · Texas Supreme Court
Smith v. Babcock & Wilcox Construction Co.
913 S.W.2d 467
- Type
- Opinion
- Court
- Texas Supreme Court
- Jurisdiction
- Texas
- Date
- 1996-02-09
- Topic
- litigation
holding that failure to appear at trial was not consciously indifferent when party’s attorney requested continuance and mistakenly understood continuance would be granted | holding that failure to appear at trial was not consciously indifferent when party‘s attorney requested continuance and mistakenly understood continuance would be granted | holding that failure to appear at trial was not consciously indifferent when party’s attorney requested continuance and mistakenly understood continuance would be granted | holding that though lawyer was not as conscientious as he could have been, his actions did not amount to conscious indifference | holding that a failure to appear at trial was not consciously indifferent when the party’s attorney requested a continuance and mistakenly understood that a continuance would be granted | holding that a failure to appear at trial was not consciously indifferent when the party‘s attorney requested a continuance and mistakenly understood that a continuance would be granted | stating that the standard for determining if a case dismissed for want of prosecution should be reinstated is the Craddock standard | recognizing standard for reinstatement is essentially same as standard for setting aside default judgment | concluding the trial court abused its discretion by dismissing case because attorney who had conflicting case settings failed to appear 7 for trial after the court denied his motion for continuance | dismissing insurance carrier's cause of action when the employee's cause of action was dismissed for want of prosecution | dismissing insurance carrierÂs cause of action when the employeeÂs cause of action was dismissed for want of prosecution | dismissing insurance carrier’s cause of action when the employee’s cause of action was dismissed for want of prosecution | stating standard for reinstatement of case after dismissal for want of prosecution is essentially same as standard for setting aside default judgment set forth in Craddock | stating that conscious indifference “means more than mere negligence” | adopting test from Craddock v. Sunshine Bus Lines , 133 S.W.2d 124 (Tex. 1939 | "Proof of such justificationaccident, mistake or other reasonable explanationnegates the intent or conscious indifference for which reinstatement can be denied." | "Proof of . . . accident, mistake or other reasonable explanation [] negates the intent or conscious indifference for which [an extension] can be denied." | both reversing trial court’s determination that proffered explanations for failure to appear was unreasonable, under abuse-of-discretion standard | “Proof of . . . accident, mistake or other reasonable explanation [] negates the intent or conscious indifference for which [an extension] can be denied.” | “Proof of such justification—accident, mistake, or other reasonable explanation—negates the intent or conscious indifference for which reinstatement can be denied.” | plaintiff’s counsel was in trial in another county and believed the dismissing court would grant continuance | plaintiff's counsel was in trial in another county and believed the dismissing court would grant continuance | A Proof of such justification C accident, mistake or other reasonable explanation C negates the intent or conscious indifference for which reinstatement can be denied. @ | defendant’s attorney’s failure to appear did not amount to conscious indifference when he credibly explained that he was in trial in another county and believed the court would grant a continuance for that reason | “The Smiths’ attorney reasonably explained his failure to appear for trial. He was actually in trial in another county and believed, based upon his credible explanation, that the court would grant a continuance for that reason.” | abuse of discretion review of a denial of motion to reinstate | employing Craddock rules in applying Rule 165a(3) | employing Craddock rules in applying Rule 165a(3) | denial of motion to reinstate |
Citator
- Cited by
- 88 opinions
We decide in this case whether the trial court abused its discretion in refusing to reinstate a case dismissed for want of prosecution when plaintiffs’ attorney failed to appear for trial. The court of appeals affirmed the dismissal. 915 S.W.2d 22. We reverse.
James Smith was injured on a construction jobsite while employed by a subcontractor and received compensation benefits from Lumbermen’s Mutual Casualty Co. Smith and his wife then filed this suit for damages in Travis County against the general contractor, Babcock & Wilcox Construction Co., and the project owner, the City of Austin (together, Babcock). Lumbermen’s intervened to assert its subrogation rights. After the Smiths’ attorney obtained a date for trial, he requested a trial setting for an unrelated case in Freestone County which had been filed after this case and involved a more recent incident. Trial of the case in Freestone County was set on the same date as trial of the Smiths’ case.
The Smiths’ attorney did not notify the parties or the court in this case of the conflicting setting until twelve days before trial, in an unverified motion for continuance. The motion misstated that the Freestone County case was older and preferentially set. The trial court heard argument by telephone and denied the continuance. No record was made of this conference call. Following the call the Smiths’ attorney stated in a letter to the trial court that he understood from what the court had said during the call that it would reconsider his motion for continuance on the date of trial if the Freestone County case actually went to trial at the same time. The other parties did not share this understanding. The Smiths’ attorney never requested a continuance in the Freestone County case and never mentioned the conflict to that trial court.
*468 Neither the Smiths nor their attorney appeared on the trial date. Apparently anticipating this occurrence, Babcock’s attorney came to court with a prepared motion to dismiss the case with prejudice for want of prosecution, together with exhibits and an order. Lumbermen’s counsel appeared, advised the court that the Smiths’ attorney was in trial in Freestone County, and re-urged the continuance. The court denied the continuance and granted Babcock’s motion to dismiss. The court later denied the Smiths’ and Lumbermen’s motions to reinstate the case. The court of appeals affirmed. 915 S.W.2d 22.
When a ease 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 [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). The operative standard is essentially the same as that for setting aside a default judgment. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). 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. Proof of such justification — accident, mistake or other reasonable explanation — negates the intent or conscious indifference for which reinstatement can be denied. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.1992). Also, conscious indifference means more than mere negligence. Ivy v. Carrell 407 S.W.2d 212, 213 (Tex.1966).
The Smiths’ attorney reasonably explained his failure to appear for trial. He was actually in trial in another county and believed, based upon his credible explanation, that the court would grant a continuance for that reason. Even if the Smiths’ attorney was not as conscientious as he should have been, his actions did not amount to conscious indifference. Also, while the Smiths’ attorney was wrong to state in his motion for continuance that the Freestone County suit was older and preferentially set when it was neither, that misconduct would be ground for sanctions, not dismissal or denial of reinstatement.
Babcock argues that the Smiths’ attorney was obliged to attempt to postpone the Freestone County trial, citing Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891, 892 (1948). In that case we held that a trial court did not abuse its discretion in proceeding to trial when defendant’s counsel was in trial in another county because, among other things, he had made no effort to resolve the conflicting settings and had failed to contact the judge on the day of trial to tell him of his whereabouts. By contrast, the Smiths’ attorney tried to resolve the conflict by moving for continuance in this case, and mistakenly understood that a continuance would be granted. His explanation was reasonable.
The denial of the Smiths’ and Lumbermen’s motions for reinstatement was an abuse of discretion. Accordingly, a majority of the Court grants the Smiths’ application for writ of error and, without hearing oral argument, reverses the judgment of the court of appeals and remands this case to the trial court with instructions to reinstate the case. Tex.R.App.P. 170.