Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 123RD JUDICIAL DISTRICT COURT SHELBY COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J.,
Twelfth Court of Appeals, sitting by assignment.
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.
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.
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.
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
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.
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
sole issue, Velvin contends that the trial court abuse its
discretion by denying its motion for new trial.
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 ...