Appeal from the 310th District Court Harris County, Texas
Trial Court Case No. 2017-41092
consists of Chief Justice Radack and Justices Higley and
CARTER HIGLEY JUSTICE
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.
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.
reverse and remand.
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.
answered the suit. He denied that he was C.A.M.'s father,
and he asserted that Martin's suit was barred by
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.
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
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."
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
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."
same day, Martin filed a verified motion to reinstate. The
verified motion, sworn to by ...