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Velvin Oil Co. Inc. v. R & S Trucking

Court of Appeals of Texas, Twelfth District, Tyler

April 10, 2019

VELVIN OIL COMPANY, INC., APPELLANT
v.
R & S TRUCKING, A PARTNERSHIP, ET AL, APPELLEES

          APPEAL FROM THE 123RD JUDICIAL DISTRICT COURT SHELBY COUNTY, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

          MEMORANDUM OPINION

          Bill Bass Justice

         Velvin Oil Company, Inc. (Velvin) appeals from an order denying a motion to reinstate a suit to collect a debt following dismissal for want of prosecution. In one issue, Velvin complains that the trial court abused its discretion in failing to reinstate its case. We affirm.

         Background

         On April 20, 2012, Velvin sued R&S Trucking, a partnership of Tommy E. Eaves, Rebecca A. Eaves, and Steven E. Eaves, and its successor, R&S Trucking, LLC, for an unpaid debt for fuel oil. Appellees denied the existence of a partnership and denied that they are individually liable for the debt alleged in Velvin's suit. The trial court entered an interlocutory summary judgment against R&S Trucking, LLC on October 11, 2013. The claims against Tommy, Rebecca, and Steven Eaves, and the alleged partnership were left unresolved. On February 18, 2016, Velvin sought a non-jury trial setting in September or October.

         On August 15, 2016, Velvin's trial counsel died. Fourteen months later, on October 17, 2017, the trial court granted Velvin's motion to substitute new counsel.

         The case remained on the non-jury docket until June 25, 2018, when the trial court served notice that the case had been placed on the dismissal docket set for July 27, 2018. In its notice, the court stated that "[g]ood cause must be shown as to why each case should remain pending on this [c]ourt's docket and not be dismissed for [w]ant of [p]rosecution." The notice further stated, "Motions to Retain must be filed in the District Clerk's office no later than 5 pm on Wednesday, July 11, 2018 and must be argued on July 27, 2018 at 9:00 a.m. in order to avoid dismissal."

         Velvin filed its motion to retain on July 12, 2018, one day after the trial court's stated deadline for such motions. Appellees filed a response to Velvin's motion. On July 27, 2018, Velvin failed to appear at the hearing on its motion. The trial court denied Velvin's motion and dismissed for want of prosecution Velvin's claims against Tommy, Rebecca, and Steven Eaves, individually and as partners in any alleged partnership.

         Velvin timely filed a motion for new trial (treated as a motion to reinstate) supported by its attorney's affidavit that counsel's failure to appear was not the result of conscious indifference, but instead was the result of accident or mistake. Velvin's motion failed to show good cause why the case should remain on the docket and the trial court denied Velvin's motion on September 28, 2018. This proceeding followed.

         Failure to Reinstate

         In its sole issue, Velvin contends that the trial court abuse its discretion by denying its motion for new trial.

         Standard of Review

         An order denying a motion to reinstate is reviewed for abuse of discretion. See Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or ...


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