Philip W. Stephens v. David Darnell, Individually and D/B/A Darnell Conservation and Darnell Conservation Contractors, Inc.

NO. 12-04-00346-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS PHILIP W. STEPHENS, § APPEAL FROM THE 294TH APPELLANT V. § JUDICIAL DISTRICT COURT OF DAVID DARNELL, INDIVIDUALLY AND d/b/a DARNELL CONSERVATION CONTRACTORS, INC., APPELLEE § VAN ZANDT COUNTY, TEXAS MEMORANDUM OPINION Philip W. Stephens appeals from the dismissal of his breach of contract case against David Darnell, individually and doing business as Darnell Conservation Contractors, Inc. Stephens asserts the trial court erred in failing to hold a hearing on his motion to reinstate. We reverse and remand. Background Stephens filed his original petition on November 6, 1991. On May 25, 2004, the trial court sent Stephens notice that the case would be dismissed for want of prosecution unless, within thirty days, he made a written request to leave the case on the docket. Stephens promptly made that request. Shortly thereafter, Darnell filed a motion to dismiss for want of prosecution. After a hearing, the trial court granted the motion and dismissed the case. Stephens filed a motion to reinstate, requesting a hearing on the motion, which was overruled by operation of law. This appeal followed. Motion to Reinstate In his sole issue, Stephens asserts the trial court erred when it failed to set a hearing on his motion to reinstate. He argues that Rule of Civil Procedure 165a(3) requires a hearing and that the court’s failure to adhere to the mandatory rule requires reversal. We agree. Dismissals for want of prosecution and a litigant’s efforts at reinstatement are governed in large part by Rule of Civil Procedure 165a. See Tex. R. Civ. P. 165a. With regard to motions to reinstate a case after its dismissal for want of prosecution, rule 165a(3) provides that the trial judge “shall set a hearing on the motion as soon as practicable.” Tex. R. Civ. P. 165a(3). The supreme court has determined that this language leaves the trial court no discretion on whether to hold an oral hearing on the motion to reinstate. Thordson v. Houston, 815 S.W.2d 550, 550 (Tex. 1991). Therefore, the court erred in failing to hold a hearing on Stephens’s motion to reinstate. Darnell argues that the trial court did not abuse its discretion in declining to set a hearing because Stephens’s motion to reinstate was not properly verified. He asserts the affidavit attached to the motion is not an adequate substitution for verification because it did not verify facts relating to a ten year time period in the case’s history, it failed to reference the motion, and it did not verify all statements in the motion. The motion was signed by Stephens’s counsel and referenced an attached affidavit of counsel. In the affidavit, counsel stated he had personal knowledge of all facts stated therein. He explained the history of the case, including the fact that it was filed in 1991 and he was not aware of its existence until 2001, and his actions in pursuing the case. He stated that he has prosecuted the case with due diligence and has not acted in a consciously indifferent manner. The affidavit was sworn to before a notary. The affidavit was sufficient to verify the claim set out in the motion that Stephens was acting with due diligence in pursuing the case. See 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 538 (Tex. App.–Houston [14th Dist.] 2000, no pet.). Darnell cites Guest v. Dixon, 153 S.W.3d 466 (Tex. App.–Amarillo 2004, pet. filed) for the proposition that the affidavit is incomplete because it fails to cover a portion of the case’s history. While the Amarillo court did note that the affidavit under consideration there did not address a twenty-four month period of the case history, the case actually turned on the fact that the affidavit was provided by Guest’s former attorney. The affidavit did not constitute a verification because the agency relationship had ceased to exist. Id. at 468. It would be accurate to say Stephens’s motion to reinstate was not entirely verified because the affidavit did not speak to the ten year period before counsel took over the case. However, a hearing is required even where the motion is partly verified. See Daley v. Powerscreen Texas Holdings, Inc., No. 14-98-00132-CV, 1999 Tex. App. LEXIS 7243 at *5-6 (Tex. App.–Houston [14th Dist.] September 30, 1999, no pet.) (not designated for publication). Likewise, the fact that the affidavit failed to refer specifically to some statements made in the motion is not fatal. Id. Stephens was entitled to a hearing on his motion to reinstate. We sustain Stephens’s issue. Disposition We reverse the trial court’s order and remand the case for an oral hearing on Stephens’s motion to reinstate. DIANE DEVASTO Justice Opinion delivered February 22, 2006. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (PUBLISH)