Memorandum Opinion by Justice Garcia, 05-25-00175-CV, February 05, 2026.
On appeal from the 14th Judicial District Court, Dallas County, Texas.
Synopsis
The Dallas Court of Appeals held that a trial court abuses its discretion by denying a motion to reinstate under Rule 165a(3) when a party’s failure to appear results from a clerical calendaring error or a mistaken belief regarding a proposed scheduling order. The court clarified that the “accident or mistake” standard is a low bar that negates conscious indifference even if the attorney’s mistake was objectively unreasonable or negligent.
Relevance to Family Law
Family law practitioners often operate in a state of “procedural limbo” while awaiting the entry of agreed orders, mediated settlement agreements, or proposed parenting plans. This opinion is vital for those managing high-volume dockets where trial settings are frequently shifted by Rule 11 agreements or pending scheduling orders. It confirms that if a trial setting is missed because a firm’s staff prematurely cleared the calendar—or because the attorney incorrectly assumed a proposed order had been signed—the case must be reinstated. This provides a critical safeguard against the terminal dismissal of custody or property divisions due to administrative oversights during the pendency of settlement negotiations.
Case Summary
Fact Summary
In this civil litigation matter, the trial court entered a uniform scheduling order setting a trial date for December 3, 2024. In the months leading up to trial, Hernandez’s counsel circulated proposed amended scheduling orders and purportedly entered into a Rule 11 agreement intended to vacate all pending deadlines until a new order was entered. However, these orders were never signed by the court, and the Rule 11 agreement was neither filed nor included in the record.
Operating under the assumption that the trial date would be moved, a member of the law firm’s staff removed the December 3 setting from the master calendar. Consequently, neither party appeared when the case was called, and the trial court dismissed the action for want of prosecution (DWOP). Hernandez filed a verified motion to reinstate, supported by a declaration explaining the staff’s clerical error and counsel’s mistaken belief that the court coordinator’s communications implied the trial would be reset. The trial court denied the motion.
Issues Decided
The court addressed whether the trial court abused its discretion in denying the motion to reinstate under Texas Rule of Civil Procedure 165a(3). Specifically, the court looked at whether an attorney’s “unreasonable” reliance on an unsigned order constitutes “conscious indifference” or a “mistake” that mandates reinstatement.
Rules Applied
The court’s analysis centered on Texas Rule of Civil Procedure 165a(3), which mandates that a trial court shall reinstate a case if, after a hearing, it finds that the failure to appear was not intentional or the result of conscious indifference, but was due to accident or mistake.
The court looked to Smith v. Babcock & Wilcox Constr. Co. and the seminal Craddock v. Sunshine Bus Lines standard, noting that the “conscious indifference” standard used in reinstatement is the same as that used for setting aside default judgments. Crucially, the court applied the principle that “conscious indifference” means more than mere negligence; it requires a failure to appear without any adequate justification.
Application
The court’s application of the law to the facts turned on the distinction between an “unreasonable” excuse and “conscious indifference.” The trial court had original grounds to be skeptical: the attorney’s declaration was vague, failed to name the specific staff member who spoke to the court coordinator, and admitted to a failure to verify whether the judge had actually signed the proposed order. Under a standard of “reasonableness,” the trial court’s denial appeared sound.
However, the Dallas Court of Appeals reversed this logic. The court reasoned that while the attorney’s presumption was indeed “unreasonable,” the Rule 165a(3) standard does not require the mistake to be reasonable. The court followed the Texarkana Court’s reasoning in Clark v. Yarbrough, holding that even if actions are “clearly negligent,” they do not constitute conscious indifference if they were based on a genuine (albeit mistaken) belief. Because the failure to appear was rooted in a clerical error and a misunderstanding of the court’s intent to sign an order, it was a “mistake” as a matter of law, thereby stripping the trial court of its discretion to deny reinstatement.
Holding
The Court of Appeals held that the trial court abused its discretion in denying the motion to reinstate. The court determined that counsel’s explanation of a clerical calendaring error and a mistaken belief regarding the status of the trial setting established that the failure to appear was not intentional or the result of conscious indifference.
In a separate but related holding, the court emphasized that because the “accident or mistake” hurdle is such a “low bar,” a trial court cannot refuse reinstatement simply because the attorney failed to exercise due diligence or acted negligently, provided the failure was not a purposeful disregard of the court’s authority.
Practical Application
For the family law litigator, this case serves as an essential “get out of jail free” card when administrative failures occur. If a trial setting is missed because the office assumed a case had been moved due to a pending MSA or an agreed motion to continuance, the motion to reinstate must be verified and must detail the specific clerical or cognitive mistake that led to the absence. This case is powerful authority to remind trial judges that they cannot punish a client with dismissal for an attorney’s “unreasonable” but non-intentional calendaring mistake.
Checklists
Establishing the Right to Reinstatement
- Verify the Motion: Ensure the motion to reinstate is verified by the attorney or the party within 30 days of the dismissal order.
- Identify the “Mistake”: Clearly distinguish between an “intentional act” and a “mistake.”
- Detail Clerical Errors: Use declarations from staff to explain how the trial date was removed from the calendar.
- Cite the Subjective Belief: State clearly that counsel believed the trial had been vacated or reset, even if that belief was not confirmed by a signed order.
- Argue the Low Bar: Explicitly cite the Hernandez opinion to argue that even if the court finds the mistake was “negligent” or “unreasonable,” it does not legally rise to the level of “conscious indifference.”
Avoiding the DWOP in Family Litigation
- Rule 11 Filing: Never rely on an unfiled Rule 11 agreement to protect a trial date.
- The “Signed Order” Rule: Do not remove a trial setting from the firm’s master calendar until a signed order of continuance is uploaded to the court’s portal.
- Coordinator Confirmation: Maintain a log of communications with the court coordinator, including dates and names, to bolster any future “accident or mistake” declarations.
Citation
Hernandez v. Lounnarath, No. 05-25-00175-CV, 2026 WL ______ (Tex. App.—Dallas Feb. 5, 2026, no pet. h.).
Full Opinion
Family Law Crossover
This ruling can be effectively weaponized in a Texas divorce or custody case when an opposing party attempts to “win by default” through a DWOP. If your client’s case is dismissed while you were waiting for a signature on a complex Decree or a QDRO, Hernandez allows you to force a reinstatement even if you were technically negligent in monitoring the docket.
Strategically, if you are the party opposing reinstatement, you must now move beyond proving the other side was “careless.” To keep a case dismissed in the Fifth District, you must present evidence that the failure to appear was a tactical choice or a purposeful defiance of the court’s scheduling order. Simple negligence is no longer a sufficient basis to deny a family law litigant their day in court.
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