Refugio Gomez v. Sol Ly
05-14-00893-CV
Tex. App.Oct 19, 2015Background
- On September 21, 2011, the Gomez family sued Sol Ly for negligence arising from a November 6, 2009 automobile collision.
- Trial was set multiple times: first trial in July 2013 ended in a mistrial; at the September 12, 2013 call, defense objected to participation by Tim Brandenburg (recent hire of plaintiffs’ counsel) and the court declared a mistrial and ordered a written disqualification motion.
- Ly moved to disqualify Brandenburg and the Law Office of Domingo Garcia; the trial court granted the disqualification on September 30, 2013. Appellants did not seek mandamus review of that order.
- The case was set for a third trial on April 22, 2014; the appellants failed to appear and the trial court dismissed the case for want of prosecution.
- Refugio Gomez, pro se, filed a motion to reinstate (May 21, 2014) asserting the dismissal was improper because counsel had been disqualified; the motion did not explain the failure to appear.
- The trial court denied the motion to reinstate; the Court of Appeals affirmed, concluding appellants failed to justify their nonappearance and thus denial was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion by denying motion to reinstate after dismissal for want of prosecution | Reinstate because dismissal resulted from improper disqualification of plaintiffs’ counsel | Denial proper because appellants offered no explanation for failing to appear at trial | Affirmed: appellants failed to justify nonappearance under Rule 165a(3) and court did not abuse discretion |
Key Cases Cited
- Wyatt v. Tex. Okla. Express, Inc., 693 S.W.2d 731 (Tex. App.–Dallas 1985) (standard of review for denial of motion to reinstate is abuse of discretion)
- Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986) (abuse-of-discretion analysis requires court act with reference to guiding rules and principles)
- Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) (trial court has inherent power to dismiss for failure to prosecute)
- Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467 (Tex. 1995) (failure to appear is not excused merely because deliberate; must have adequate justification)
- El Campo Ice, Light & Water Co. v. Texas Machinery & Supply Co., 147 S.W. 338 (Tex. Civ. App.–Dallas 1912) (appellate courts may limit opinion to dispositive issues)