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Price v. University of Texas at Brownsville Texas Southmost College

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 16, 2017

JOAN PRICE, Appellant,
v.
THE UNIVERSITY OF TEXAS AT BROWNSVILLE TEXAS SOUTHMOST COLLEGE, Appellee.

         On appeal from the 357th District Court of Cameron County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         Appellant Joan Price contends that the trial court erred in dismissing her petition for bill of review. Price sought by her petition to vacate an earlier judgment denying reinstatement of a suit she filed against appellee, the University of Texas at Brownsville-Texas Southmost College (UTB-TSC).[1] By one issue, Price argues that she was entitled to a hearing on the petition because she met all the requirements for a bill of review. We affirm.

         I. Background

         A. Underlying Suit

         Price filed suit against UTB-TSC in August of 2011 for disability discrimination and retaliation under the Texas Labor Code. See Tex. Lab. Code Ann. ch. 21 (West, Westlaw through 2017 1st C.S.). Specifically, she alleged that she was forced to resign from her position as an art historian in 2005, that UTB-TSC discriminated against her when it failed to rehire her in 2009, and that she was retaliated against when it failed to rehire her in 2010.

         UTB-TSC answered the suit generally denying the allegations and setting forth various affirmative defenses. On April 11, 2012, the trial court rendered an "Order Setting Trial Date Telephonic Conference" stating that a conference would be held on April 24, 2012, and that "[t]he purpose of this hearing is to agree on a Trial date." On June 4, 2012, the trial court rendered an "Agreed Docket Control Order" setting various discovery deadlines and setting a trial date of November 5, 2012.

         On October 3, 2012, UTB-TSC filed a plea to the jurisdiction and motion for summary judgment asserting that Price's suit is barred by sovereign immunity because, among other things: (1) there was no position available for which she could be hired, and (2) the suit was untimely filed. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex. 2008) (holding that sovereign immunity is waived for discrimination suits brought under the labor code if "the procedures outlined in the statute have been met"); see also LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (holding that, to show discrimination, a plaintiff must show that there was an "available employment position" for which he or she was qualified but not hired). The trial court set a hearing on the plea to the jurisdiction and summary judgment motion for October 29, 2012. UTB-TSC then filed a "Motion for Extension of Docket Control Order [or] Alternatively Motion For Continuance" (the Motion to Continue) asking to delay the discovery deadlines and the trial setting because UTB-TSC's counsel was set for trial in another cause on October 29, 2012 and had a conference in federal court scheduled for October 31, 2012.[2] The trial court ordered that the Motion to Continue be heard on October 29, 2012 along with the other motions.

         Price's counsel then faxed a letter to the trial court coordinator dated October 25, 2012, stating that he also had conflicts on October 29 to 31, 2012 and would not be available on those dates. Price's counsel stated in the letter that he is in agreement with UTB-TSC's Motion to Continue, and he requested that the court "not penalize my client for my failure to appear on October 29, 2012." He attached to the letter a copy of an "Agreed Motion for Extension of Docket Control Order [or] Alternatively Motion For Continuance" which he signed but which was not signed by UTB-TSC's counsel.[3]

          Nevertheless, the hearing went forward on October 29, 2012. UTB-TSC's counsel appeared, but Price's counsel did not. At the hearing, the trial court remarked that there was nothing in his file indicating that Price's counsel had communicated his unavailability to the court. The trial court then granted UTB-TSC's plea to the jurisdiction without addressing its motion for summary judgment or its Motion to Continue. A written judgment granting the plea to the jurisdiction and dismissing Price's suit was rendered that day.

         B. Motion to Reinstate

         On November 28, 2012, Price filed a motion to reinstate the case under Texas Rule of Civil Procedure 165a(3), arguing that her counsel provided "sufficient justification" for his failure to appear on October 29, 2012, [4] and requesting an oral hearing on the matter. See Tex. R. Civ. P. 165a(3) (providing that, after dismissing a suit 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 ...


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