In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00445-CV 

MAILING HENDERSON, APPELLANT 

 

V. 

 

DAVID LEWIS, APPELLEE 

 

On Appeal from the 68th District Court 

Dallas County, Texas 

Trial Court No. DC-13-01518, Honorable Martin J. Hoffman, Presiding 

 

May 15, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Appellant Mailing Henderson appeals from a dismissal of her lawsuit against 

appellee David Lewis. She had sued him for breach of fiduciary duty, shareholder 

oppression, and conversion with respect to her investment in multiple limited 

partnerships. When her attorneys failed to appear for trial, the trial court dismissed the 

lawsuit and later denied a motion to reinstate. Henderson has appealed from the trial 

court’s denial of that motion. We affirm.
2

We review a trial court’s ruling on a motion to reinstate for abuse of discretion. 

See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995). Such an 

abuse occurs when the trial court acts without reference to guiding rules and principles 

or its decision was arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 

701 S.W.2d 238, 241-42 (Tex. 1985). Furthermore, we are obligated to defer to the trial 

court’s resolution of factual disputes under that standard of review. In re Labatt Food 

Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009). 

Next, a court may reinstate a case upon a finding after a hearing that the failure 

of the party or his attorney to appear was not intentional or the result of conscious 

indifference but was due to an accident or mistake or is otherwise reasonably explained. 

TEX. R. CIV. P. 165a(3). A failure to appear is not intentional or the result of conscious 

indifference merely because it is deliberate, but it must be without justification. Smith v. 

Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d at 468. Additionally, “[w]hether the 

party's or attorney's conduct was ‘not intentional or the result of conscious indifference,’

is a fact-finding within the trial court's discretion.” Price v. Firestone Rubber & Fire Co.,

700 S.W.2d 730, 733 (Tex. App.—Dallas 1985, no writ). “After this finding is made, the 

language of the rule is mandatory.” Id.

Here, the record discloses that the cause had previously been set for trial on May 

6, 2014, and notices had been sent informing the litigants that a failure to appear would 

subject the case to dismissal. Henderson does not contend that she failed to receive 

that notice.1 Before that scheduled trial date, an agreed scheduling order was signed by 

 

1

The case was originally filed in the 193rd District Court of Dallas County. The clerk’s file 

contains a copy of a document entitled “193rd Judicial District Court’s Standing Scheduling Order” in 

which it states that “[u]nless otherwise notified by the Court Coordinator, all Counsel must appear on the 

morning of the Trial Date, with witnesses on one-hour standby. Counsel should be advised that, if their 
3

the trial court, which order reset trial for November 18, 2014. A week before that trial

date, Henderson’s attorneys filed a second motion to withdraw from representing her

due to irreconcilable differences.2 The court coordinator represented to the court that 

she contacted Henderson’s counsel on the Thursday prior to trial.3 When she asked if 

Henderson was ready for trial, she was informed by the attorney she spoke to that 

Henderson was not because there was a motion to withdraw pending.4 The court 

coordinator stated that she told the attorney that he still needed to appear. So too did 

she represent that she also spoke to another of Henderson’s attorneys and made it 

clear that Henderson needed to appear.

5

 

Also of record is evidence that a legal assistant for Henderson’s attorney called 

the court coordinator on the Monday before trial and informed her that the hearing on 

the motion to withdraw would be cancelled. At that time, according to the record, the 

court coordinator told the caller that the attorneys needed to appear for trial on 

November 18th. Finally, the court coordinator represented that she never told the 

attorneys they were on standby. 

 

case is not reached on the morning of the trial date, they are subject to being held-over on standby for the 

rest of the week.” On Henderson’s motion, this case was later transferred to the 68th District Court. 

Under the original scheduling order, trial was scheduled for January 7, 2014. 

2

There is indication in the record that the first motion to withdraw was denied. 

3

The court coordinator was not sworn in as a witness, but the trial judge questioned her on the 

record, and Henderson’s attorney did not object. See Johnson v. Hawkins, 255 S.W.3d 394, 398 (Tex. 

App.—Dallas 2008, pet. ref’d) (noting that while the appellate court did not endorse a trial judge’s decision 

to call and question a witness, because there was no objection, the testimony could be considered by the 

trial court); see also Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding that a party can waive 

the oath requirement by failing to object when the opponent knows or should have known that an 

objection was necessary). Moreover, Henderson’s attorney stated he was “not going to challenge what 

she says.” 

4

That motion was withdrawn on November 17, 2014. 

5

That attorney believed they only talked about the position of Henderson’s case on the docket,

which was third. 
4

Henderson’s counsel contended that they misunderstood the circumstances and 

believed they were on standby based on their practice in Houston courts and their 

interpretation of a local rule. Whether that is true is a factual determination lying within 

the bailiwick of the trial court’s discretion. Whether to believe counsel’s testimony or 

that of the court coordinator also lay within the trial court’s discretion. Wilson v. Wilson, 

No. 01-06-00908-CV, 2010 Tex. App. LEXIS 4856, at *28-29 (Tex. App.—Houston [1st

Dist.] June 24, 2010, no pet.) (mem. op.) (stating that the trial court could have 

disbelieved testimony from the attorney that the court clerk had told him that the case 

had been reset as an explanation for his failure to appear). Indeed, it is “in the best 

position to determine the weight to give” a witness’s testimony. Id. And, given the 

decision to deny reinstatement, the trial court must have believed his court coordinator.

More importantly, this case was transferred to this court from the Dallas Court of 

Appeals; thus, we must follow its precedent. TEX. R. APP. P. 41.3. And such precedent 

exists in Johnson v. Hawkins, 255 S.W.3d 394 (Tex. App.—Dallas 2008, pet. denied). 

There, the trial court considered whether an attorney’s failure to appear constituted 

accident or mistake when the attorney did not appear because he also believed the 

cause was on standby and that he would be contacted if he needed to appear. There, 

like here, the court coordinator also testified she told counsel he “‘needed to be here.’” 

Id. at 398. Upon hearing this evidence, the trial court refused to vacate its dismissal 

and reinstate the cause. On appeal, the reviewing court held that the trial court could 

have found that the attorney was told he needed to be present, he failed to appear, and 

his reliance on procedures used by a previous judge and court coordinator without 

confirming that a new judge would use the same procedures showed the attorney acted 
5

with conscious indifference in failing to appear. Id. at 398-99. We do not see a material 

distinction between these facts and those before us. See also Garcia v. Barreiro, 115 

S.W.3d 271, 277 (Tex. App.—Corpus Christi 2003, no pet.) (holding that there was no 

error in denying a motion to reinstate when the attorney left court and relied upon the 

fact that two cases were ahead of his case on the docket without any assurance that his 

case would not be reached for trial). Consequently, we are obligated to comply with the 

reasoning and holding in Johnson.

Appellant cites to Smith v. Babcock & Wilcox Constr. Co. in support of her 

position that the failure to appear was an accident or mistake. In that case, the attorney 

failed to appear because he was in trial in another county, he had informed the court of 

that fact, and he believed that the court would grant a continuance even though it had 

previously denied one. The court found that the attorney’s actions did not amount to 

conscious indifference. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d at 467-68. 

The facts before us are distinguishable. Here, there was evidence, which the trial court 

chose to believe, that the attorneys had been told to appear even though their case was 

third on the docket. There was no evidence that the attorneys were trying another case 

about which they had informed the court. 

Concluding that the trial court did not abuse its discretion in refusing to reinstate 

the cause, we overrule the sole issue before us.

Accordingly, the order of dismissal is affirmed. 

Per Curiam