REVERSE and REMAND and Opinion Filed March 15, 2019

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00356-CV

BROOKS-PHS HEIRS, LLC, BROOKS-PSC HEIRS, LLC; BROOKS-WTC HEIRS, 

LLC; ALASTAIR TRICKETT; PENELOPE TRICKETT; HEATHER ELIZABETH

OLSEN; MARILYN HOLMES TULLOCH; NANCY LEE HALSTED WOODMANSEE;

JUNE C. HAACK; MARILYN HALSTED; JOSEPH EDWIN HALSTED; THOMAS

ARTHUR HALSTED; ROBERT BRUCE HALSTED; MARGARET H. REYNOLDS; 

MARY P. HALSTED; JANE DECOSKY; CAROL CANFIELD CLARKE-TERRILL, 

FORMERLY CAROL C. SWEARINGEN, AS TRUSTEE OF THE ROBERT G. 

SWEARINGEN REVOCABLE TRUST DECEMBER 19, 2001; MARCELLE BRANNEN; 

AND ROBERT G. MCLEOD, ALSO KNOWN AS BOB MCLEOD, Appellants

V.

RICHARD HOWARD BOWERMAN, INDIVIDUALLY AND AS INDEPENDENT 

EXECUTOR OF THE ESTATE OF ROBERT BOWERMAN, DECEASED; STEVEN 

ROBERT BOWERMAN, INDIVIDUALLY; AND ESTHER MICHELE DAUGHERTY,

INDIVIDUALLY, Appellees

On Appeal from the 225th District Court

Bexar County, Texas

Trial Court Cause No. 2013-CI-10924

MEMORANDUM OPINION

Before Justices Schenck, Reichek, and Nowell

Opinion by Justice Schenck

On our own motion, we withdraw our opinion and vacate our judgment of February 11, 

2019, and substitute this opinion in its place. Appellants appeal the trial court’s dismissal of their 

quiet title action. In two issues, appellants contend the trial court abused its discretion in 

dismissing their action for want of prosecution and in denying their motion to reinstate. For the 

reasons that follow, we reverse the trial court’s denial of appellants’ motion to reinstate and remand 
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the case for further proceedings consistent with this opinion. Because all issues are settled in law, 

we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Claralyn Trickett owned an undivided 1/32 royalty interest in mineral estates in property

located in Bexar and LaSalle Counties at the time of her death on December 24, 1972, at the age 

of 48. Both appellants and appellees claim to have inherited the royalty interests in these mineral 

estates. Appellants claim they inherited the interest directly as the legal heirs, or, indirectly, as the 

heirs, successors, or assigns of the legal heirs, of Claralyn Trickett; appellees claim they inherited 

the interest as the legal heirs of Robert Bowerman, who, they claim, was legally married to 

Claralyn Trickett at the time of her death. In 2010 and 2011, appellees filed various affidavits of 

heirship and deeds in the records of Bexar and La Salle Counties purporting to establish their 

ownership of the royalty interests. 

On July 1, 2013, appellants brought a quiet title action against appellees seeking both a 

declaration that appellees in fact have no valid ownership interest in the mineral estates and the 

removal of the affidavits and deeds appellants claim clouded their title. Appellants asserted the 

Tijuana marriage of Robert Bowerman to Claralyn Trickett was void because Robert Bowerman

was still married to his second wife when he purportedly married Claralyn Trickett. Appellees

generally denied appellants’ claims, challenged appellants’ capacity and standing to sue, asserted 

the affirmative defenses of estoppel, limitations, laches, and waiver, and brought a counterclaim 

for fees. 

Appellees sought abatement of the case claiming appellants had not shown that they were 

the proper parties to bring such a suit because they had not conducted an heirship proceeding in 

accordance with sections 48 and 49 of the probate code to determine the identity of all of the heirs 

at law of Claralyn Trickett. On October 9, 2013, the trial court signed an Agreed Abatement Order 
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providing that “[u]pon written motion of Defendants, and with the consent of counsel for Plaintiffs, 

and for good cause shown, the Court orders the above-captioned suit is to be abated in part1for a 

period of nine (9) months or until the completion of a suit for determination of heirship of Claralyn 

Trickett, also known as Claralyn Bowerman, whichever is earlier, at which time the parties will 

report back to this Court.” 

On June 7, 2016, the trial court dismissed the case for want of prosecution. The trial court 

set aside that dismissal on June 13, 2016, due to improper notice. The trial court then set the case 

for dismissal on September 13, 2016. Appellants objected to the dismissal indicating that: On 

March 25, 2015, they filed an Application to Determine Heirship of Claralyn Trickett in the County 

Court of La Salle County; that case was later transferred to the Probate Court in Bexar County and 

is set for a jury trial on February 21, 2017; and a judicial ruling on the heirship issue is legally

necessary before they can proceed in the quiet title case, as appellees had alleged in originally 

obtaining an abatement. By agreement of the parties, or action of the trial court, the case was 

carried on the trial court’s November 15, 2016, May 23, 2017, August 22, 2017, and January 9, 

2018 dismissal dockets. On January 9, 2018, the trial court dismissed the case.

On January 30, 2018, appellants filed a Verified Motion to Reinstate the case. The trial 

court held a hearing on appellants’ motion to reinstate on February 13, 2018. When the trial court 

inquired whether there were any new developments since the dismissal, appellants indicated that 

the only new development was that the probate court had set the heirship determination proceeding 

for trial on May 21, 2018. The judge indicated she was not going to reconsider or undo something 

 

1 The trial court ordered that, by agreement of the parties, discovery would proceed while the case is abated.
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that another one of her fellow district court judges had already determined,

2 and denied the motion. 

This appeal followed.3

DISCUSSION

A party seeking appellate review of a dismissal for want of prosecution may frame its

argument variously as: the trial court erred in dismissing the case; the trial court erred in refusing

to reinstate the case; or both. Kirkpatrick v. Silva, No. 05-17-00146-CV, 2018 WL 521628, at *3 

n.1 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (mem. op.) (citing Maida v. Fire Ins. Exch.,

990 S.W.2d 836, 838 (Tex. App.—Fort Worth 1999, no pet.)). Each challenge, if sustained, is 

independently sufficient to obtain reinstatement of the case. Id.

Here, appellants challenge both the dismissal and the denial of reinstatement. We address 

appellants’ second issue challenging the denial of their motion to reinstate because it is dispositive 

of this appeal and pretermit the remaining arguments. 

We review the denial of a motion to reinstate following a dismissal for want of prosecution 

under an abuse of discretion standard. Regent Care Ctr. at Med. Ctr. v. Hollis, No. 04-16-00131-

CV, 2017 WL 1337652, at *2 (Tex. App.—San Antonio Apr. 12, 2017, no pet.) (mem. op.). In

reviewing whether there was an abuse of discretion, the key question is whether the trial court

acted without reference to any guiding rules and principles, or in an arbitrary or unreasonable

manner. Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.). 

When a case is dismissed for want of prosecution, the trial court shall reinstate the case 

upon finding that the failure of the party or his attorney was not intentional or the result of 

 

2

Judge Arteaga heard the motion to reinstate. She also signed the order of dismissal on January 9, 2018. Given her statements during the 

hearing on the motion to reinstate, it is not clear whether she actually presided over the dismissal of the case on January 9, 2018, or if she merely 

signed the order after a decision was made. 

3 The Texas Supreme Court transferred this case from the Fourth District Court of Appeals to this Court. See TEX. GOV’T CODE ANN. 

§ 73.001. In this procedural posture, we are bound to apply the precedent of that court. TEX. R. APP. P. 41.3.
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conscious indifference but was due to an accident or mistake or that the failure has been otherwise 

reasonably explained. TEX. R. CIV. P. 165a(3); Smith v. Babcock & Wilcox Constr. Co., 913

S.W.2d 467, 468 (Tex. 1995) (per curiam); Cappetta, 222 S.W.3d at 167. This standard is 

essentially the same as the standard for setting aside a default judgment. Smith, 913 S.W.2d at 468 

(citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (1939)). A failure to diligently prosecute 

is not intentional or due to conscious indifference merely because it is deliberate; it must also be 

without adequate justification. Id.; Cappetta, 222 S.W.3d at 167. Proof of such justification, 

whether it be by accident, mistake, or other reasonable explanation, negates the intent or conscious 

indifference for which reinstatement can be denied. Smith, 913 S.W.2d at 468; Cappetta, 222

S.W.3d at 167. 

The record before us indicates that, in denying appellants’ motion to reinstate, the trial 

court did not consider whether appellants’ failure to move forward in the quiet title action was 

intentional or the result of conscious indifference or was not justified.4 TEX. R. CIV. P. 165a(3). 

In other words, the trial court did not adhere to rule 165a(3)’s mandate and did not apply the 

Craddock factors applicable to this case. See Smith, 913 S.W.2d at 468. Rather, the trial court 

merely indicated some new material factual development since the dismissal was necessary to 

warrant reinstatement in view of the earlier dismissal having been signed by another judge. But 

this is not the standard for reinstatement. The decision to grant or deny a motion to reinstate is 

like any other discretionary decision in the sense that discretion should be exercised, not elided or 

stuck on auto pilot. See United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998) (per curiam) 

(holding that “refusal to exercise discretion accorded [the court] by law . . . constitutes an error of 

law”). By conditioning a consideration of appellants’ motion to reinstate on a showing of an event 

 

4 The trial court stated “What I need to know is there’s a judge who’s already determined this on January 9th. That judge disagreed and 

dismissed it. So you want me to reconsider. I’m not going to reconsider or I’m not going to undo something that another one of my [fellow] district 

court judges has already determined.” 
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subsequent to the dismissal, the trial court effectively refused to exercise its discretion and acted 

without reference to the controlling legal standard. See Telfair v. Zim Israel Navigation Co., 428 

F.2d 127, 128 (5th Cir. 1970); Gonzalez v. Reliant Energy, 159 S.W.3d 615, 624 (Tex. 2005) 

(failure to apply the law correctly constitutes abuse of discretion). We may correct such an error 

on appeal. Ramco Oil & Gas v. Anglo Dutch, 171 S.W.3d 905, 910 (Tex. App.—Houston [14th

Dist.] 2005 no pet.); TEX. R. APP. P. 43.2(c).

Accordingly, we will review the record to determine whether appellants met their burden 

of proof under rule 165a(3) and Smith, applying a standard similar to Craddock in cases involving 

motions to reinstate after courts dismiss cases for want of prosecution to determine whether the 

court might have properly denied the motion under that standard. See Martinez v. Benavides, No. 

04-15-00465-CV, 2016 WL 3085913, at *2 (Tex. App.—San Antonio June 1, 2016, no pet.) (mem. 

op.). 

Appellants’ Motion to Reinstate was verified by appellants’ attorney Randall Calvert.5 The 

motion set forth the following relevant facts:

 At one time, the trial court had abated the case recognizing that its jurisdiction to 

hear the case depended on appellants’ standing to bring their claims and that a 

determination of heirship was a prerequisite to proceeding in this case;

 Appellants had to hire a genealogy expert and conduct extensive searches in both 

North America and the United Kingdom for potential heirs of Claralyn Trickett; 

 Following the completion of the expert’s genealogy report, appellants Marcelle 

Swearingen and Nancy Lee Woodmansee, on behalf of the legal heirs of Claralyn 

Trickett, filed an application to determine heirship in the county court of LaSalle 

County;

 The La Salle County case was transferred to the Bexar County probate court;

 Appellant Marcelle Swearingen filed in the heirship proceeding a petition to 

recover money belonging to the estate/rightful heirs, seeking to recover oil and gas 

proceeds the appellants claim were incorrectly paid to the Bowermans; 

 

5 The verification was subscribed and sworn to by Randall Calvert before a notary public and states that he is capable of making the 

verification, he has read the motion to reinstate, and that the facts and matters stated in it are within his personal knowledge and are true and correct. 
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 The quiet title action, the application to determine heirship, and the petition to 

recover money, are interrelated because each turn on whether Robert Bowerman 

was legally married to Claralyn Trickett, and that issue would be resolved by a jury 

in the application to determine heirship proceeding; 

 Appellants had attempted to transfer and consolidate this case with the heirship 

determination proceeding and appellees had opposed those efforts, despite having 

urged abatement on that account;

 Appellants had complied with the deadlines set forth in the probate court’s docket 

control order in the heirship determination case, the parties had attempted to settle 

their dispute and when settlement discussions broke down, appellants promptly 

requested that the probate court enter a new docket control order, resulting in a trial 

setting on May 21, 2018, a mere 4 months after dismissal of this case; and

 Once the heirship determination proceeding goes to trial, appellants will be in a 

position to quickly proceed to trial in this case.

6

At the hearing on the motion to reinstate, Mr. Calvert reiterated that after the settlement 

discussions broke down, plaintiffs/appellants moved to have a new docket control order and a new 

trial date in the determination of heirship case, defendants/appellees objected to that request, the 

probate judge set the heirship determination case for trial on May 21st, defendants/appellees claim 

the heirship determination proceeding is a prerequisite to this case and that case will resolve 

virtually all the issues in this case, and this case can be quickly resolved as soon as the heirship 

determination case goes to trial. He further indicated that plaintiffs/appellants attempted to transfer 

this case and consolidate the cases, defendants/appellees objected to the transfer and consolidation, 

and plaintiffs/appellants complied with all the docket control orders, and all of the discovery in the 

heirship determination case.

Citing Bard v. Frank B. Hall & Co., appellees claim the trial court did not abuse its 

discretion in denying appellants’ motion to reinstate because appellants did not offer any evidence 

 

6 After the trial in the heirship proceeding, appellants attempted to include in the record before this Court the jury’s verdict in that proceeding 

finding Robert Bowerman was not legally married to Claralyn Trickett. The jury’s verdict in the heirship proceeding does not impact our disposition 

of this appeal. Consequently, we need not determine whether it is properly before this Court. 
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at either the hearing on dismissal or on the motion to reinstate the cause. 767 S.W.2d 839, 845 

(Tex. App.—San Antonio 1989, writ denied) (citing Frank v. Canavati, 612 S.W.2d 221, 222–23 

(Tex. App.—San Antonio 1980, writ ref’d n.r.e.) (finding no abuse in discretion in dismissing 

plaintiff’s claims when the plaintiff offered no evidence, explanation or excuse for the 

unreasonable delay in prosecuting his claim at the dismissal hearing and the hearing on the motion 

to reinstate)). Appellees’ contention necessarily discounts the effect of a properly verified motion 

to reinstate and the filing of the reporter’s record on appeal. A trial court abuses its discretion in 

denying a motion to reinstate where a verified motion to reinstate reasonably explains the failure 

to appear at docket call or at a hearing, and the record contains no evidence that the failure was 

intentional or the result of conscious indifference. See S. Pioneer Prop. & Cas. Ins. Co. v. Wilson, 

No. 01-17-00444-CV, 2018 WL 3384558, at *3 (Tex. App.—Houston [1st Dist.] July 12, 2018,

no pet.) (mem. op). No separate presentation of evidence at a hearing is required if the verified 

motion is adequate. Cf. Director, State Empls. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 

268 (Tex. 1994) (motion for new trial challenging post-answer default judgment); Tex. Farmers 

Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 WL 2024664, at *3 (Tex. App.—San Antonio May 

2, 2018, pet. filed) (mem. op.) (motion for new trial challenging a no-answer default judgment); 

Drawe v. McGuffin, 355 S.W.2d 738 (Tex. App.—San Antonio 1961, no writ) (a motion to 

reinstate is in the nature of a motion for new trial). 

Moreover, in Bard, unlike here, Bard failed to provide a reporter’s record on appeal, despite 

having had a hearing on his motion to reinstate. The court in Bard concluded that “with no 

statement of facts [transcript from the hearing] or findings of fact before us, we must presume that 

the presiding judge at the dismissal hearing and the trial judge at the hearing on plaintiff’s motion 

to reinstate the cause had before them, at the respective hearings, all necessary facts to support the 

orders and passed on such facts which were necessary to support the orders.” Id. at 845. Here, we 
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have both the reporter’s record and a properly verified motion to reinstate. Thus, we can consider 

the explanations provided in the verified motion and operate without any presumption that the trial 

judge heard and credited contrary evidence refuting the averments in the motion in accordance 

with the resulting judgment. 

This case is more akin to the situation in Kenley v. Quintana Petro. Corp., 931 S.W.2d 318, 

321 (Tex. App.—San Antonio 1996, writ denied). There, as here, the motion to reinstate included 

counsel’s affidavit verifying that all facts in the motion were true and correct. Id. The motion 

stated plaintiff’s counsel had not received notice of the dismissal hearing. Id. At the hearing on 

the motion to reinstate, counsel re-urged the inadequate notice issue, and local counsel described 

the circumstances of her failure to announce. Id. In that case, the San Antonio Court of Appeals 

concluded the trial court abused its discretion by not granting the motion to reinstate. Id. 

Appellants’ motion to reinstate included Mr. Calvert’s verification that all facts in the 

motion were within his personal knowledge and were true and correct. Those facts are set forth 

supra. At the February 13, 2018 hearing on the motion to reinstate, Mr. Calvert re-urged the 

interrelatedness of the heirship determination and the quiet title actions, his attempts to consolidate 

the cases without success, due in part to the opposition of appellees, and the necessity of

concluding the heirship determination case prior to proceeding to trial in this case, which can be 

accomplished quickly after that case goes to trial on May 21, 2018.

We conclude the above facts constitute a reasonable explanation of appellants’ failure to 

move forward with the quiet title action. The actions were not “intentional” or a result of 

“conscious indifference.” Logically, heirship had to be decided before the district court could 

determine whether appellants had standing to bring the quiet title action and whether appellees had 

improperly clouded the title to the mineral interests at issue. Moreover, Texas courts have a strong

policy supporting resolution of cases on their merits, and in promoting the predictability of 
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property ownership and reliability of land titles, both of which strongly support the reinstatement 

of appellants’ claims. See Cosgrove v. Cade, 468 S.W.3d 32, 34 (Tex. 2015); Sutherland v. 

Spencer, 376 S.W.3d 752, 756 (Tex. 2012).

We conclude the trial court abused its discretion in failing to reinstate appellants’ case 

because it did not consider or apply the Craddock factors applicable to this case and, had it done 

so, it should have concluded that appellants’ failure to proceed with their quiet title action without 

first having the heirship determined was not intentional or due to conscious indifference, but was 

justified under the unique facts of this case. Accordingly, we sustain appellants’ second issue. 

Having concluded the trial court abused its discretion in refusing to reinstate the case, we pretermit

consideration of appellants’ first issue challenging the dismissal for want of prosecution. TEX. R.

APP. P. 47.1.

CONCLUSION

We reverse the trial court’s order denying appellants’ motion to reinstate, reinstate 

appellants’ lawsuit, and remand the case to the trial court for further proceedings. 

180356F.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

BROOKS-PHS HEIRS, LLC, BROOKSPSC HEIRS, LLC; BROOKS-WTC 

HEIRS, LLC; ALASTAIR TRICKETT; 

PENELOPE TRICKETT; HEATHER 

ELIZABETH OLSEN; MARILYN 

HOLMES TULLOCH; NANCY LEE 

HALSTED WOODMANSEE; JUNE C. 

HAACK; MARILYN HALSTED; JOSEPH 

EDWIN HALSTED; THOMAS ARTHUR 

HALSTED; ROBERT BRUCE HALSTED; 

MARGARET H. REYNOLDS; MARY P. 

HALSTED; JANE DECOSKY; CAROL 

CANFIELD CLARKE-TERRILL, 

FORMERLY CAROL C. SWEARINGEN, 

AS TRUSTEE OF THE ROBERT G. 

SWEARINGEN REVOCABLE TRUST 

DECEMBER 19, 2001; MARCELLE 

BRANNEN; AND ROBERT G. MCLEOD, 

ALSO KNOWN AS BOB MCLEOD, 

Appellants

No. 05-18-00356-CV V.

RICHARD HOWARD BOWERMAN, 

INDIVIDUALLY AND AS 

INDEPENDENT EXECUTOR OF THE 

ESTATE OF ROBERT BOWERMAN, 

DECEASED; STEVEN ROBERT 

BOWERMAN, INDIVIDUALLY; AND 

ESTHER MICHELE DAUGHERTY, 

INDIVIDUALLY Appellees

On Appeal from the 225th District Court, 

Bexar County, Texas

Trial Court Cause No. 2013CI10924.

Opinion delivered by Justice Schenck. 

Justices Reichek and Nowell participating.

In accordance with this Court’s opinion of this date, we VACATE the judgment of 

February 11, 2019. This is now the judgment of the Court. 
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The trial court order denying appellants’ motion to reinstate is REVERSED and this cause 

is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellants BROOKS-PHS HEIRS, LLC ET AL. recover their costs 

of this appeal from appellees RICHARD HOWARD BOWERMAN ET AL.

Judgment entered this 15th day of March, 2019.