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Quevedo v. Le8/31/2001
Manolo Quevedo and Mildred Quevedo, appellants, challenge the trial court's dismissal of their personal injury suit for want of prosecution. We reverse and remand for a hearing on the motion to reinstate.
Facts
After appellants' failure to appear the previous day for a pretrial conference, the trial court dismissed appellants' case for want of prosecution without conducting a hearing. Appellants' counsel claims he did not receive notice of the pretrial conference or the dismissal until two months after the dismissal. Two weeks after receiving notice, counsel filed a verified motion to reinstate. Hieu Trong Le, Appellee, filed a response to the motion to reinstate, which did not contradict or refute any of the factual allegations in appellants' motion to reinstate. The motion to reinstate was overruled by operation of law, and there was no hearing conducted on the motion.
In point of error one, appellants argue the trial court erred when it dismissed their case for want of prosecution without a hearing. In point of error two, appellants argue the trial court erred when it failed to hold an oral hearing on their motion to reinstate, thus denying them an opportunity to present evidence showing why their case should not have been dismissed and should have been reinstated. Because we find the second point of error dispositive, we address only it.
Texas Rule of Civil Procedure 165a(3) provides that, after the motion to reinstate has been filed, "the clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable." Under the language of Texas Rule of Civil Procedure 165a(3), "it is clear that an oral hearing is required on any timely filed motion to reinstate under rule 165a." Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991). Accordingly, we hold the trial court erred in refusing to conduct a hearing on appellants' motion to reinstate.
We sustain point of error two.
Conclusion
We reverse the judgment and remand the cause to the trial court for a hearing on the motion to reinstate.
Do not publish. Tex. R. App. P.
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