Signora Lynch v. Karen George-Baunchand and John C. Osborne
14-14-00186-CV
Tex. App.Aug 18, 2015Background
- Lynch sued her former attorneys (George-Baunchand and Osborne) for malpractice after an underlying claim was dismissed; she filed this suit on October 31, 2012.
- The trial court issued a docket control order (Feb. 11, 2013) scheduling a docket call for Feb. 3, 2014 and warning that failure to appear could lead to dismissal for want of prosecution.
- Lynch and her counsel did not appear at the docket call; the court dismissed the case on Feb. 4, 2014 for failure to appear.
- Lynch filed a verified motion to reinstate, explaining her counsel relied on opposing counsel’s assurance that the trial setting would be reset; the court denied reinstatement on Feb. 14, 2014.
- Lynch appealed both the dismissal and denial of reinstatement; appellee George-Baunchand also moved for appellate sanctions claiming the appeal was frivolous.
- The Fourteenth Court of Appeals reversed the denial of reinstatement, remanded for further proceedings, and denied appellee’s motion for appellate sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for want of prosecution violated due process because there was no notice or hearing | Lynch: dismissal occurred without required notice/hearing | Appellees: docket control order provided notice; Lynch’s counsel knew scheduling | Court: Lynch received actual notice in time to move to reinstate and a nonevidentiary hearing was held; due process satisfied |
| Whether the trial court abused its discretion by denying motion to reinstate after dismissal for failure to appear | Lynch: counsel’s failure to appear was a reasonable mistake based on opposing counsel’s assurance that the setting would be reset | George-Baunchand: counsel’s awareness of docket call and warning shows conscious indifference | Court: verified explanation was uncontroverted and constituted a reasonable explanation; denial was an abuse of discretion; reinstatement should have been granted |
| Whether an evidentiary reporter’s record was required to challenge the denial of reinstatement | Osborne: absence of reporter’s record requires presumption that evidence supported court | Lynch: hearing appears nonevidentiary and evidence was filed with clerk | Court: presumption of evidentiary hearing not required where record indicates nonevidentiary hearing; no reporter’s record needed to review error |
| Whether the appeal was frivolous warranting Rule 45 sanctions | George-Baunchand: appeal objectively frivolous; requests attorney’s fees | Lynch: appeal raised viable challenge to reinstatement denial | Court: because reversal was required on reinstatement issue, appeal not frivolous; sanctions denied |
Key Cases Cited
- Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008) (appellate briefs construed liberally to avoid waiver)
- MacGregor v. Rich, 941 S.W.2d 74 (Tex. 1997) (abuse of discretion standard for dismissal for want of prosecution)
- Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467 (Tex. 1995) (standard on denying reinstatement; conscious indifference requires more than deliberate failure)
- Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) (notice and hearing required before dismissal for want of prosecution)
- Gen. Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731 (Tex. App.—Houston [14th Dist.] 1993) (notice mailing requirements before dismissal)
- Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145 (Tex. 2015) (when evidence is filed and only argument presented, reporter’s record may be unnecessary)
- Pharo v. Chambers Cnty., Tex., 922 S.W.2d 945 (Tex. 1996) (trial court findings implied in bench trial without explicit findings)