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Martin v. Sanders

Court of Appeals of Texas, First District

July 2, 2019

CYNTHIA MARTIN, Appellant
v.
RICHARD WAYNE SANDERS, Appellee

          On Appeal from the 310th District Court Harris County, Texas Trial Court Case No. 2017-41092

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.

          MEMORANDUM OPINION

          LAURA CARTER HIGLEY JUSTICE

         Cynthia Martin sued Richard Wayne Sanders, seeking to establish that he is the father of her daughter and requesting retroactive child support. When Martin and her counsel did not appear in court on the scheduled trial date, the trial court dismissed Martin's suit for want of prosecution. She filed a verified motion to reinstate, asserting that her failure to appear was accidental, not intentional or the result of conscious indifference. After a hearing, the trial court denied the motion.

         In one issue, Martin contends that the trial court abused its discretion when it denied her motion to reinstate. Because the record shows that the failure of Martin and her counsel to appear at trial was not intentional or the result of conscious indifference, we agree that the trial court abused its discretion when it did not reinstate her case.

         We reverse and remand.

         Background

         On June 20, 2017, Martin filed suit, requesting that Sanders be adjudicated the father of Martin's 19-year-old daughter, C.A.M. She also requested that Sanders be ordered to pay retroactive child support.

         Sanders answered the suit. He denied that he was C.A.M.'s father, and he asserted that Martin's suit was barred by limitations.

         On November 7, 2017, Martin filed a motion to compel Sanders to undergo genetic testing to determine whether he is C.A.M.'s father, and she served Sanders with discovery. Trial was set for December 13, 2017. Because the hearing on the motion to compel genetic testing was set for the same date as trial, Martin filed a motion for continuance. On December 8, 2017, the parties signed a Rule 11 agreement to reset trial until March 21, 2018. A couple of weeks later, Sanders filed a motion to substitute counsel, indicating that he had retained a new attorney.

         Sanders's new attorney agreed to continue the March 21 trial date, and the parties filed a joint motion for continuance. They informed the court that the case was "not ready for trial" because they had "just completed paternity testing and the results are still pending, discovery has not been completed and the parties have not attended mediation in this matter."

         The trial court granted the motion, and trial was reset for May 16, 2018. A couple of weeks before trial, Martin filed a motion for continuance, asserting the case was not ready for trial because it had not been mediated. Martin informed the trial court that she was ready for mediation to occur, and all discovery had been completed. Martin said that she had been "actively attempting to schedule mediation at a time convenient" for Sanders and his attorney, but she had become aware "of the unexpected and tragic death" of the father of Sanders's attorney, which had "severely impacted" the ability "to prepare for and to participate in mediation." Martin had "made several attempts to schedule mediation and to move for continuance in this case, but [had] been unable to get a response from [Sanders's] counsel."

         The hearing on Martin's motion for continuance was scheduled for May 16, 2018, the same day that trial was set. When May 16 arrived, however, neither Martin nor her counsel appeared in court.

         The next day, May 17, the trial court signed an "Order of Dismissal," ordering the case dismissed for want of prosecution. The order indicated that the reason for the dismissal was because trial had been set, and there was "no announcement by attorneys or parties hereto."

         That same day, Martin filed a verified motion to reinstate. The verified motion, sworn to by ...


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