COURTLAND BUILDING COMPANY INC v. LOZAJO INVESTMENTS LLC ND2NO LLC (2026)

OPINION

Appellant Courtland Building Company, Inc. appeals from the trial court's orders denying its motion to retain and dismissing without prejudice for want of prosecution claims it had asserted against appellees Lozajo Investments, LLC doing business as ND2NO Network, Lozajo Management, LLC, and Lori Hagee. In two issues, Courtland argues the trial court abused its discretion in denying: (1) its motion to retain because it diligently prosecuted its claims; and (2) its motion to reinstate without holding a hearing. We affirm.

I. Background

According to Courtland's original petition, on November 14, 2014, ND2NO Network, an entity affiliated with Hagee, leased real property from Courtland. Four years later, on November 14, 2018, Courtland sued appellees for their alleged failure to comply with the written lease agreement, including failing to make payments owed under it. Appellees answered with a general denial, and they asserted several affirmative defenses, including laches and accord and satisfaction. After the initial pleadings, the clerk's record contains counterclaims and a third-party petition filed by Hagee and answers related to these counterclaims and third-party petition. These filings occurred in 2019 and 2020. In August 2022, Courtland moved to compel written discovery. Next, Hagee was deposed on February 15, 2023.

After Hagee's deposition, the next filing in the clerk's record is on September 12, 2024, wherein the trial court issued a sua sponte “Notice of Dismissal Docket.” The notice provides in relevant part:

THIS CASE WILL NOT BE MAINTAINED ON THE DOCKET UNLESS:

(1) At least seven (7) days prior to the dismissal hearing, a written motion is filed with the District Clerk setting out specific facts showing good cause for maintaining the case on the docket, with a copy of such motion being furnished to each opposing counsel or pro se party. Oral hearing will be conducted on all timely filed Motions to Retain, on the date and time set out above. NO MOTIONS TO RETAIN WILL BE CONSIDERED BY THE COURT WITHOUT AN ORAL HEARING, OR:

(2) At least seven (7) days prior to the dismissal hearing, a written docket control order with a trial setting date, approved by all attorneys or pro se parties is submitted and signed by the Court.

On October 15, 2024, Courtland filed a motion to retain, which provides, in its entirety, the following:

I.

This is a meritorious case that deserves to be retained on the Court's docket. This case is set for dismissal on October 28, 2024.

II.

The Court should not dismiss the Plaintiff's lawsuit against the Defendants, because there is good cause to maintain it on the Court's docket. See Tex. R. Civ. P. 165a(1).

The Plaintiff and Defendant agreed to take the deposition of Lori Hagee and began her deposition. However during the deposition it was suspended, as Lori Hagee asserted she was only prepared to be deposed in her individual capacity and not as a corporate representative of the Defendant. The parties have since been unable to reschedule the deposition of the corporate representative of the Defendant. Accordingly, Plaintiff asks the court to retain the case, so that the deposition of the corporate representative can be taken, issue a Docket control order and set the matter for trial.

Based upon the above and foregoing, Plaintiff moves this Court to retain its docket, to allow time for Plaintiff to complete the Deposition and prepare the case for trial.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff hereby prays that this case be retained on the Court's docket, new DCO entered to include setting the case for trial, and for such other and further relief, at law and in equity, to which it may be entitled.

Courtland attached no exhibits to its motion to retain.

On the morning of the October 28, 2024 dismissal hearing, Hagee filed a written response to Courtland's motion to retain. Hagee acknowledged that a deposition of her in her individual capacity was taken, but she asserted that Courtland had not properly noticed her as a corporate representative. See Tex. R. Civ. P. 199.2(b)(1) (“If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested.”). Hagee's response argued that Courtland's motion to retain “offers no proof of having made any effort to” reschedule the deposition of a corporate representative of any of the corporate defendants.

On October 28, 2024, the trial court signed two orders. First, the trial court signed an order denying Courtland's motion to retain that provides it considered “the pleadings on file and any arguments of counsel.” Second, the trial court signed an order of dismissal that dismissed Courtland's claims without prejudice.

On November 26, 2024, Courtland filed a single document that contained a motion to reconsider its motion to retain, motion to reinstate case, and motion for new trial. Regarding Hagee's deposition, Courtland asserted that “unexpectedly in the course of taking Ms. Hagee's deposition, counsel for the [appellees] objected to completing the same in all her capacities, which meant that counsel for [appellant] had to start the process all over again.”² Courtland argued that its failure to prosecute was not intentional or the result of conscious indifference, but rather due to excusable neglect stemming from accidents or mistakes. Courtland asserted three additional excuses for its delay. First, Courtland emphasized that over the course of the litigation, appellees had changed counsel three times.³ Second, Courtland pointed to three Houston-area weather events: (a) a hard freeze in January and February 2024; (b) a “Derecho” storm in May 2024; and (c) Hurricane Beryl, which struck on July 8, 2024. Third, Courtland noted that, between January 2023 and October 2024, its counsel had 135 actual trial settings “many of which were tried.” Courtland's filing concluded by praying that “upon a hearing of these motions that the relief requested herein be granted, the dismissal against it be set aside, a new trial ordered, and for such other and further relief to which the Plaintiff is entitled.” Courtland's filing was not accompanied by a fiat or proposed order setting hearing.

Courtland's motion to reinstate was overruled by operation of law on Monday, January 13, 2025.⁴ See Tex. R. Civ. P. 165a(3) (“In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, ․ the motion shall be deemed overruled by operation of law.”). On January 17, 2025, Courtland filed a request for oral hearing with the trial court. No hearing was held. Courtland timely filed a notice of appeal.

II. Discussion

A. Standard of Review

Trial courts are generally granted considerable discretion in managing their dockets. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam). A plaintiff must prosecute her suit with reasonable diligence or the trial court may dismiss it for want of prosecution. Id. We review a trial court's decision to dismiss a case for want of prosecution and failure to reinstate the case under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial court abuses its discretion when it acts without reference to any guiding rules and principles such that its ruling was arbitrary or unreasonable. In re Newkirk Logistics, Inc., 718 S.W.3d 240, 246 (Tex. 2025) (orig. proceeding) (per curiam).

We note that the appellate record contains no reporter's record from the October 28, 2024 dismissal hearing.⁵ The party who complains on appeal that a trial court abused its discretion has the burden “to bring forth a record showing such abuse.” McGilvray v. Graceland Logistics, LLC, No. 07-23-00364-CV, 2024 WL 3614747, at *2 (Tex. App.—Amarillo Jul. 31, 2024, pet. denied) (mem. op.) (quoting Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987)). “Without a reporter's record, an appellate court cannot know what evidence, if any, was presented to the trial court at the [dismissal] hearing.” McGilvray, 2024 WL 3614747, at *2. “Absent a record showing an abuse of discretion, we must presume that the evidence before the trial court was adequate to support its decision.” Id. (citing Herrera v. Rivera, 281 S.W.3d 1, 6–7 (Tex. App.—El Paso 2005, no pet.); Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 861 (Tex. Civ. App.—San Antonio 1976, writ ref'd n.r.e.)).

B. Motion to Retain

In Courtland's first issue, it complains that the trial court abused its discretion in denying its motion to retain. Appellees generally argue that Courtland's failure to take any action in the case in the eighteen months between Hagee's deposition and the trial court's dismissal notice evidences a lack of diligence.

1. Applicable Law

A trial court may dismiss a cause for want of prosecution for three reasons: (1) failure to appear; (2) failure to comply with the Texas Supreme Court time standards; and (3) pursuant to a trial court's inherent power. See Tex. R. Civ. P. 165a(1), (2), (4); Tex. R. Jud. Admin. 6.1(b)(1); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“[T]he common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.”). Before a trial court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority, it must provide a party with notice and an opportunity to be heard. Villarreal, 994 S.W.2d at 630.

“In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay.” Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.). “No single factor is dispositive, and a belated trial setting or stated readiness to proceed to trial does not conclusively establish diligence.” Id.

2. Analysis

In this case, suit was filed in 2018, and parties were added and counterclaims asserted through 2020. The clerk's record reflects a lull in activity coinciding with the COVID-19 pandemic and then a discovery dispute in August 2022. However, after Hagee's deposition on February 15, 2023, the case saw no activity for eighteen months.

On appeal, Courtland raises several excuses for the inactivity since Hagee's deposition, but its motion to retain only referenced — in a conclusory fashion and without any supporting evidence — difficulties in rescheduling Hagee's deposition. The trial court did not abuse its discretion for failing to consider excuses that were absent from Courtland's motion to retain. See In re Harvest Communities of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, no pet.) (orig. proceeding) (“We can only consider the record that was before the trial court at the time of the hearing in determining whether the trial court's ruling was in accordance with the guiding rules and principles ․”). Moreover, without a reporter's record, we cannot ascertain whether these excuses — and any related evidence — were orally presented to the trial court. See McGilvray, 2024 WL 3614747, at *2. Accordingly, the trial court did not abuse its discretion in concluding that Courtland failed to diligently prosecute its claims. See Scoville, 9 S.W.3d at 204.

Courtland's first issue is overruled.

C. Hearing on Motion to Reinstate

In Courtland's second issue, it argues the trial court abused its discretion in failing to set a hearing on its motion to reinstate. Appellees contend Courtland waived the hearing requirement by failing to properly and timely request a hearing.

1. Applicable Law & Analysis

Texas Rule of Civil Procedure 165a(3) provides that “[t]he clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.” Tex. R. Civ. P. 165a(3) (emphasis added). Courtland argues that the trial court abused its discretion under Rule 165a(3)'s mandatory provision and the holding in Thordson v. City of Houston, 815 S.W.2d 550 (Tex. 1991) (per curiam), wherein the Texas Supreme Court held that “it was not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate.”

Appellees argue Courtland waived its complaint by failing to properly request a hearing. Appellees reference the trial court's local rules requiring that every motion include a certificate of conference, stating that counsel has conferred with the opposing party and whether the parties could agree on a date for submission or hearing. See 451st (Tex.) Dist. Ct. Loc. R. III(B)(d) (Kendall County). This local rule also requires that, when filing any motion that requires a setting by the trial court, a formal request for oral hearing or submission “must be filed with the pleading ․” Id. Appellees highlight that Courtland did not file a request for oral hearing with its motion to reinstate on November 26, 2024, as the local rules require, but instead filed it over seven weeks later, on January 17, 2025. Appellees reference our opinion in Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied), wherein we held:

A review of the record reflects that the preamble to Appellants' motion specifically states Appellants “move[ ] for reinstatement of their claims pursuant to Rule 165a of the Texas Rules of Civil Procedure, move[ ] for a hearing on said motion and file[ ] this brief in support of said motion ․” (Emphasis added). However, there is no evidence in the record that Appellants filed a fiat, sent a letter, or made some other communication to the trial court in which they requested a hearing on the motion. As such, there was no mechanism by which to call to the trial court's attention the need for a hearing. Under these circumstances, we conclude that the trial court did not err in failing to conduct a hearing on Appellants' motion for reinstatement.

Id. (internal citation omitted; emphasis in original).

In this case, as in Schmidt, Courtland mentioned a hearing in its motion to reinstate. In contravention of the trial court's local rules, Courtland failed to contemporaneously file a fiat, letter, or other communication to the trial court requesting a hearing on its motion. Moreover, Courtland waited until after its motion was overruled by operation of law to file a proposed order setting hearing. In the context of a motion for new trial that requires the presentation of evidence, a trial court does not abuse its discretion when the movant fails to call its motion for new trial to the trial court's attention through a request for hearing and instead allows it to be overruled by operation of law. H & H Wrecker v. Koctar, No. 14-15-00311-CV, 2016 WL 3634258, at *2 (Tex. App.—Houston [14th Dist.] Jul. 7, 2016, no pet.) (mem. op.); see also Weiss v. JPMorgan Chase Bank, N.A., No. 05-06-00940-CV, 2007 WL 2069627, at *4 (Tex. App.—Dallas Jul. 20, 2007, pet. denied) (mem. op.) (“In summary, the trial court acted within its discretion because Weiss did not set his motion for new trial for hearing before the motion was overruled by operation of law, and did not demonstrate diligence in attempting to do so.”). The holdings in Koctar and Weiss are persuasive. Thus, we expand our holding in Schmidt to provide that a trial court does not abuse its discretion by failing to hold a hearing on a motion to reinstate where a movant does not call its motion to reinstate to the trial court's attention through a request for hearing filed before it is overruled by operation of law. Accord Schmidt, 76 S.W.3d at 57, with Koctar, No. 14-15-00311-CV, 2016 WL 3634258, at *2; Weiss, 2007 WL 2069627, at *4. Accordingly, the trial court did not abuse its discretion when Courtland failed to call its motion to reinstate to the trial court's attention through a request for hearing and instead allowed it to be overruled by operation of law.

2. New Complaint

We have analyzed the properly presented portion of Courtland's second issue. In the interest of thoroughness, we note the portion of Courtland's second issue that it made in only its reply brief. Courtland's opening brief asserts that “the Trial Court refused to schedule a hearing on the Motion to Reinstate despite multiple attempts for the same by Appellant's counsel in the form of phone calls to the Court Clerk.” In response, appellees aptly emphasize that Courtland's brief provided no record citation for its assertion. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Appellees argue that “Courtland does not state in its brief any dates on which any such calls were placed, to whom appellant spoke, or what the person(s) said to appellant's counsel.” Appellees further argue “[i]f a hearing was not set due to appellant's counsel's failure to comply with the local rules for doing so, then there was a waiver of the hearing requirement, not a refusal by the trial court to comply with it.” In Courtland's reply brief, it argues — for the first time — that staff for its counsel emailed court staff on January 3 and 7, 2025. Courtland attached to its reply brief emails between a legal assistant for Courtland's counsel and an “administrative specialist” at the trial court. Notably, appellees' counsel is not copied on these emails, and the emails are not included in the appellate record.

Courtland's belated reference to the January 3 and 7, 2025 emails, if true, and its reliance on them that are not in the appellate record and where appellee's counsel was not copied raises a new issue, which we decline to address. See Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (“A reply brief is not intended to allow an appellant to raise new issues.”).

Courtland's second issue is overruled.

III. Conclusion

We affirm the trial court's order of dismissal for want of prosecution.

CONCURRING AND DISSENTING OPINION

I agree that the trial court did not abuse its discretion by denying Courtland Building Company, Inc.'s motion to retain, and I concur with the majority in affirming that ruling. I part ways on the second issue: whether the trial court erred by failing to hold a hearing on Courtland's timely filed, verified motion to reinstate.

Before the courthouse doors may be shut after a dismissal for want of prosecution, a plaintiff is entitled to avail itself of the reinstatement procedure in Texas Rule of Civil Procedure 165a(3). Because a prior panel of this court held in Rainbow Home Health, Inc. v. Schmidt that a trial court need not hold a Rule 165a(3) hearing unless the movant separately requests a setting, the panel is bound to follow that holding. See 76 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied); Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022). But stare decisis does not compel the majority to “expand” Rainbow Home Health by grafting motion-for-new-trial preservation rules onto Rule 165a(3). Ante at 9. Courtland requested a hearing in its verified motion to reinstate and asked again in a separate written request filed while the trial court could still act. Under the majority's expansion neither sufficed because the second request came after the motion was overruled by operation of law. This timing requirement appears nowhere in Rainbow Home Health or in the rule.

Furthermore, the full court is not powerless to correct Rainbow Home Health. Six months ago, this court withdrew this appeal from panel submission on its own motion and submitted it en banc. A majority of the en banc court has now returned the appeal to the panel without a decision or a public explanation. That procedural detour leaves a demonstrably erroneous precedent on the books—and has produced a panel opinion that widens the error—in a class of cases where litigants can least afford the cost of further review. Because I would not extend Rainbow Home Health, and because I believe Rule 165a(3) means what it says, I dissent in part.

1 Rule 165a(3) Places the Duty to Set a Reinstatement Hearing on the Trial Court

1.1 The text and history of Rule 165a(3) leave no room for an extra-textual presentment requirement.

Texas Rule of Civil Procedure 165a(3) governs reinstatement after a dismissal for want of prosecution. The rule assigns the movant four tasks: set forth the grounds for reinstatement, verify the motion, file it “with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a,” and serve a copy on every attorney of record and unrepresented party. Tex. R. Civ. P. 165a(3). Once the movant completes these tasks, the rule's remaining commands run to the clerk and the trial court:

The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.

Id.

These procedures apply to every dismissal for want of prosecution, whether based on Rule 165a or the trial court's inherent authority. Id. R. 165a(4); Gilbert v. Huber, Hunt, Nichols, Inc., 671 S.W.2d 869, 870 (Tex. 1984) (per curiam); Cappetta v. Hermes, 222 S.W.3d 160, 165–67 (Tex. App.—San Antonio 2006, no pet.) (en banc). And the Supreme Court of Texas has twice held that the hearing required by Rule 165a(3) is mandatory and leaves the trial court no discretion but to hold an oral hearing on a timely filed, verified motion to reinstate—even if the grounds stated in the motion “may not trigger mandatory reinstatement.” Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam); accord Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam) (“It is clear that an oral hearing is required on any timely filed motion to reinstate under [Rule] 165a.”). The majority does not distinguish either decision.

Nothing in Rule 165a(3) requires the movant to file a fiat, submit a separate request for a setting, or otherwise bring the motion to the trial judge's attention. By its plain terms, the rule holds the courthouse door open for a litigant whose case has been dismissed, and it assigns the clerk and the judge, not the movant, the task of bringing the motion to a hearing before that door closes.

The history of Rule 165a confirms that this allocation of duties was deliberate. As originally adopted in 1973, Rule 165a directed the trial court to set a motion to reinstate for hearing as soon as practicable, but it did not specify how the motion would be presented to the judge. See Bush v. Ward, 747 S.W.2d 43, 44 (Tex. App.—Beaumont 1988, no writ) (quoting Tex. R. Civ. P. 165a (West 1979)); Enriquez v. Livingston, 400 S.W.3d 610, 619–20 (Tex. App.—Austin 2013, pet. denied). Drawing from case law governing motions for new trial, courts filled that gap by requiring a movant to present the motion and draw the judge's attention to the need for a hearing within the 30-day reinstatement period then allowed by the rule.¹ See, e.g., Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. Civ. App.—Houston [14th Dist.] 1975, no writ) (“Failure of the judge to set a hearing on the motion within the thirty day period, when he was not asked to make such a setting, is not ground for reversal of his order denying the reinstatement.”); Laird v. Jobes, 580 S.W.2d 413, 416–17 (Tex. Civ. App.—San Antonio 1979, no writ) (citing Calaway). In December 1983, the Supreme Court of Texas amended Rule 165a(3) to close that gap: in addition to extending the post-dismissal timetable so that a motion to reinstate is overruled by operation of law after 75 days, the amendment clarified that the clerk is to deliver the motion to the judge, who must then set a hearing as soon as practicable and notify the parties of the setting.²

“Easy cases at times produce bad law.” Heckler v. Chaney, 470 U.S. 821, 840 (1985) (Marshall, J., concurring in judgment).³ Instead of giving effect to the 1983 amendment, Rainbow Home Health followed a line of authority that carried the pre-1983 presentment rule forward as if the rule's text had never changed. See 76 S.W.3d at 57 (citing Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 618–19 (Tex. App.—Houston [14th Dist.] 1992, writ denied); Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex. App.—Houston [1st Dist.] 1993, no writ)). Asserting that without a fiat, letter, or other communication from the movant “there was no mechanism by which to call to the trial court's attention the need for a hearing,” Rainbow Home Health overlooked the mechanism the 1983 amendment expressly added to Rule 165a(3). Id.

Neither of the cases Rainbow Home Health relies on is persuasive. Cabrera relied on pre-1983 authority without accounting for the amended text. See 834 S.W.2d at 618–19; see also Enriquez, 400 S.W.3d at 619–20 (criticizing Cabrera and declining to follow cases that place the burden to set a hearing on the movant). And Kelly was an invited-error case in which the movants affirmatively placed their motion on the trial court's submission docket—their notice of submission stated that the motion would be presented for ruling “without the necessity of an oral hearing unless demand for one is made by you”—while expressly declining to decide whether the amended rule otherwise requires a separate request. 848 S.W.2d at 371 & n.2. As a majority of Texas intermediate courts to address the 1983 amendment have recognized, Rainbow Home Health's reading cannot be squared with the amended rule's text or with supreme court precedent.⁴

Rather than adding unwritten requirements that make reinstatement proceedings more complex, reading Rule 165a(3) to mean what it says would align with comparable provisions across Texas law. When a statute or rule directs that the court “shall set a hearing,” that language places the duty to schedule the hearing on the court, not the litigant. See, e.g., Tex. Code Crim. Proc. art. 55A.254(a) (“The court shall set a hearing on an ex parte petition for expunction ․”); Tex. Fam. Code § 8.057(b) (providing that on a motion to modify spousal maintenance, “[a] court shall set a hearing on the motion”); id. § 157.061(a) (providing that on the filing of a motion for enforcement requesting contempt, “the court shall set the date, time, and place of the hearing”); id. § 158.309(a) (providing that if a motion to stay income withholding is timely filed, “the court shall set a hearing on the motion”); Tex. Gov't Code § 23.303(a)(1) (requiring the trial court to set a motion for summary judgment “for a hearing by oral argument or by submission” within prescribed deadlines); Tex. R. Civ. P. 166a(c) (“Upon the motion's filing, the clerk must immediately call the motion to the court's attention. The court must set the motion for an oral hearing or submission ․”).

Indeed, this court has recognized that section 157.061(a)'s command that “the court shall set the date, time, and place of the hearing” imposes a “statutorily required ministerial duty” on the trial court to set a hearing. In re R.G., 362 S.W.3d 118, 123 (Tex. App.—San Antonio 2011, pet. denied) (quoting In re Taylor, 39 S.W.3d 406, 413 (Tex. App.—Waco 2001, orig. proceeding)). When the Legislature or the Supreme Court of Texas wants to condition a hearing on a party's separate request or presentment, it says so expressly. See, e.g., Tex. Fam. Code § 157.061(b) (requiring the court, when an enforcement motion does not request contempt, to set a hearing “on the request of a party”); Tex. R. App. P. 21.6 (requiring a criminal defendant to “present the motion for new trial to the trial court” within 10 days of filing). Rule 165a(3) contains no such language.

1.2 Stare decisis does not justify expanding Rainbow Home Health.

Even though this panel must follow Rainbow Home Health, flaws and all, until the en banc court or the supreme court overrules it, horizontal stare decisis requires adherence only to “materially indistinguishable decisions of earlier panels of the same court.” Mitschke, 645 S.W.3d at 256. Here, the majority does not stop at applying Rainbow Home Health. Instead, relying on two decisions from other courts regarding motions for new trial,⁵ the majority announces that “we expand our holding in [Rainbow Home Health v.] Schmidt to provide that a trial court does not abuse its discretion by failing to hold a hearing on a motion to reinstate where a movant does not call its motion to reinstate to the trial court's attention through a request for hearing filed before it is overruled by operation of law.” Ante at 9.

The need to “expand” Rainbow Home Health is itself telling. Courtland requested a hearing twice. It prayed for one in its verified motion to reinstate, and it then filed a separate written request for an oral hearing on January 17, 2025, while the trial court retained plenary power to reinstate the case. See Tex. R. Civ. P. 165a(3). Rainbow Home Health tells us to disregard the first request: because the movants there did not file “a fiat,” send “a letter,” or make “some other communication to the trial court in which they requested a hearing,” the request inside their motion supplied “no mechanism by which to call to the trial court's attention the need for a hearing.” 76 S.W.3d at 57. It says nothing about the second. A separate written request is the very communication Rainbow Home Health found missing. To reach its result, the majority must add a deadline found in neither Rainbow Home Health nor the rule: apparently, the request must be filed “before [the motion] is overruled by operation of law.” Ante at 9.

This expansion is unwarranted. The two cases the majority relies on—Koctar and Weiss—concern motions for new trial under Rule 329b, and Rule 329b differs markedly from Rule 165a(3). Rule 329b contains no directive that the clerk deliver a motion for new trial to the judge, no command that the judge set a hearing as soon as practicable, and no requirement that the court hold an oral hearing on every timely filed, verified motion. Compare Tex. R. Civ. P. 329b, with id. R. 165a(3); cf. Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank at Dallas, 703 S.W.2d 356, 358 (Tex. App.—Dallas 1985, no writ) (explaining, in the motion-for-new-trial context, that trial judges “cannot be expected to examine sua sponte all papers filed in their courts” and “must rely on counsel to see that motions are set for hearing”).⁶ A timing rule developed for motions the trial court has no duty to hear (motions for new trial) has no place under a rule of civil procedure that commands the trial court to hear the motion. The result of the majority's expansion is a second extra-textual hurdle, layered on a presentment requirement that itself finds no support in the rule.

The majority's borrowing is also selective. Its new rule rests on the premise that a motion for new trial—and, under its novel holding, a motion to reinstate—“requires the presentation of evidence” and therefore must be called to the trial court's attention before it is overruled by operation of law. Ante at 9. That is the reasoning of Shamrock and its progeny, and this court has never adopted it. In Carpenter v. Carpenter, No. 04-24-00817-CV, 2026 WL 1020545 (Tex. App.—San Antonio Apr. 8, 2026, no pet.) (mem. op.), we noted that the Austin court “refused to follow” Shamrock's presentment rule “precisely because an evidentiary hearing is not required” to decide a motion for new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Carpenter, 2026 WL 1020545, at *2 (citing Limestone Constr., Inc. v. Summit Com. Indus. Props., Inc., 143 S.W.3d 538, 546 (Tex. App.—Austin 2004, no pet.)). Instead, “[w]here factual allegations in a movant's affidavits are uncontroverted, it is sufficient that the motion for new trial and accompanying affidavits set forth facts which, if true, would satisfy the Craddock test.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); see Carpenter, 2026 WL 1020545, at *2 (quoting Holt Atherton). We then reviewed the merits, taking the movant's uncontroverted affidavits as true. Id. at *2–3.

The Austin court's decision in Limestone is closer still. There, the nonmovant argued that the movant “waived its right to relief by failing to comply with the Williamson County local rules for obtaining a hearing on its motion.” 143 S.W.3d at 540. The court declined to follow Shamrock and held that because no hearing was held, the trial court was required to take the movant's affidavit as true, so the movant “did not waive its rights by failing to obtain such a hearing.” Id. at 546–47.

Under the motion-for-new-trial framework the majority invokes, then, Courtland did not waive review when it asked for a hearing, and the court should review the merits of its verified motion, taking the sworn allegations as true. The majority never reaches the merits of the motion, holding instead that the trial court could let the motion be overruled by operation of law because Courtland did not separately request a setting. The majority thus imports the motion-for-new-trial rules that make it harder to obtain reinstatement while leaving behind rules that make it easier.⁷ That omission matters, because the standard for evaluating the merits of a motion to reinstate is generous. Rule 165a(3) directs the trial court to reinstate the case upon finding that the failure “was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained,” Tex. R. Civ. P. 165a(3), and the Supreme Court of Texas has described that standard as “essentially the same as that for setting aside a default judgment” under Craddock. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam); see Cappetta, 222 S.W.3d at 167 (quoting Smith).

The majority's reliance on local rules fares no better. See ante at 8–10 (citing 451st (Tex.) Dist. Ct. Loc. R. III(B)(d) (Kendall County)). Under Texas Rule of Civil Procedure 3a(b), a local rule “must not be inconsistent with state or federal law or rules adopted by the Supreme Court of Texas.” Because Rule 165a(3) assigns a duty to deliver the motion and set a hearing to the clerk and the trial judge, a local rule cannot shift that burden back onto the movant or shut the courthouse door on a litigant for relying on the statewide rule's allocation of responsibility. Suggesting otherwise implies that a local rule or custom may supersede the Texas Rules of Civil Procedure.

Nor did Courtland waive its right to be heard. Waiver is “the intentional relinquishment or abandonment of a known right.” Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). Unlike the movants in Kelly, who affirmatively placed their motion on a submission docket to be decided without an oral hearing, 848 S.W.2d at 371, Courtland expressly prayed in its verified motion that the trial court grant reinstatement “upon a hearing of these motions” and then filed a separate written request for an oral hearing while the trial court still retained plenary power under Rule 165a(3).⁸ Praying for a hearing in a timely, verified motion to reinstate—and then asking again when no setting is forthcoming—is anything but an intentional relinquishment of the right to be heard.

2 En Banc Review

Even if the panel considers itself bound by Rainbow Home Health, the en banc court is not. See Mitschke, 645 S.W.3d at 263 n.22 (“A court of appeals sitting en banc does not need to accord deference to a panel opinion.”). Under Texas Rule of Appellate Procedure 41.2(c), en banc consideration is warranted when “necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration.”⁹ Recently, this court convened en banc on its own motion to overrule a panel preservation precedent that had imposed an extra-textual requirement not found in the rules of procedure, recognizing that forcing litigants to take redundant preservation steps is “unnecessary and a waste of resources.” Schumacher v. Trois, 705 S.W.3d 854, 867 (Tex. App.—San Antonio 2024, pet. denied) (en banc). And this court has taken a reinstatement question en banc on its own initiative before, to settle inconsistency in its own Rule 165a decisions. See Cappetta, 222 S.W.3d at 162 (“On our own initiative, we have taken the appeal en banc to revisit the standard that applies to reinstatement motions.”).

Six months ago, this court likewise withdrew this appeal from panel submission on its own motion and ordered it submitted en banc. Sua sponte en banc submission is rare. It reflects an institutional judgment that the question presented warrants the attention of every justice sitting together, pulling the appeal out of its ordinary course and committing the full court's time and staff resources to resolve the issue. See Michael J. Ritter, En Banc Review in Texas Courts of Appeals, 39 Rev. Litig. 377, 435–36 (2020) (explaining that the judicial-efficiency costs of en banc review include “the judges' and staff attorneys' time to decide or redecide the case, as well as the delay for the parties”). Over the ensuing five months, the court did that work.

Then, without a public explanation, a majority of the en banc court withdrew the en banc submission and returned the case to the original panel. The work of an appellate court is largely invisible to the public, and during deliberation that opacity is a strength: it allows judges to test arguments and reconsider initial impressions without external pressure. But deliberation is meant to end in a reasoned decision. What could have been a prompt correction of our inconsistent precedent is now contingent on Courtland's filing a motion for en banc reconsideration or a petition for review. The integrity of the law applied in the 32 counties this court serves ¹⁰ should not depend on whether a particular litigant elects to file a post-opinion motion. Nor should we kick the can to the supreme court to fix problems our own decisions have created.¹¹

The cost of leaving Rainbow Home Health intact—and now expanding it—falls on litigants least equipped to bear it.¹² Appeals from dismissals for want of prosecution rarely arrive in postures that invite favorable appellate rulings. By definition, these cases reach us because something has already gone awry in the trial court: a deadline was missed, a docket notice went unanswered, counsel stumbled, or a pro se litigant failed to follow local courthouse custom. When a case is dismissed for want of prosecution, a verified motion to reinstate under Rule 165a(3) is the safety valve for distinguishing an honest mistake or accident from conscious indifference. For most litigants in that situation, the court of appeals is the court of last resort in fact if not in name: a party whose lawsuit was dismissed after a procedural misstep will rarely have the resources to pursue a motion for en banc reconsideration or a petition for review in the Supreme Court of Texas solely to win the right to an oral hearing on remand. See Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 Wash. L. Rev. 213, 213 (1999) (observing that the federal courts of appeals “effectively have become the courts of last resort for most litigants”). By layering an erroneous, extra-textual hurdle on top of Rule 165a(3) and then declining to correct that error when the case was already before the full court, we needlessly delay justice.

Conclusion

Texas law favors resolving litigation on the merits rather than on procedural technicalities. Mitschke, 645 S.W.3d at 260. Rule 165a(3) effectuates that policy by requiring the trial court clerk to deliver a timely, verified motion to reinstate to the trial judge and requiring the judge to set an oral hearing as soon as practicable.

This should be an easy case. Courtland filed a timely, verified motion to reinstate and requested a hearing—twice. It is entitled to that hearing before the courthouse doors may be shut. Because I would not expand Rainbow Home Health to excuse the trial court's failure to hold a hearing, I would sustain Courtland's second issue, reverse the trial court's order to the extent it allowed the motion to reinstate to be overruled without a hearing, and remand the cause for a hearing on Courtland's motion to reinstate.

This court had an opportunity to correct Rainbow Home Health. Instead, it leaves that error undisturbed and extends it by imposing a timing requirement found nowhere in Rule 165a(3). In doing so, the majority deprives Courtland of the hearing the rule guarantees and transforms a judicially created exception into an even greater departure from the rule's text. I cannot join that result.

FOOTNOTES

2.   Courtland made no reference to appellees' contention that it had failed to follow Texas Rule of Civil Procedure 199.2(b)(1).

3.   We note that, according to filings in the clerk's record, appellees' current counsel has represented appellees since at least August 15, 2022.

4.   The seventy-fifth day fell on Saturday, January 11, 2025. Thus, the period was extended to the following Monday. See Tex. R. Civ. P. 4 (“The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.”).

5.   In a notification of late record, the court reporter stated that, “[u]pon review of my files, I found that there was no record taken down for the hearing being requested.”

1.   Before Rule 165a took effect in 1973, motions to reinstate a cause dismissed for want of prosecution were “treated as motions for new trial.” Gilbert, 671 S.W.2d at 870 (citing Gen. Motors Corp. v. Lane, 496 S.W.2d 533, 534 (Tex. 1973)). And courts had long required a party moving for a new trial to present the motion—to call it to the trial court's attention—before complaining that the court failed to act on it. See Cecil v. Smith, 804 S.W.2d 509, 511 & n.3 (Tex. 1991) (discussing the history of the presentment requirement). Presentment was then an express requirement of former Rule 329b, applicable to motions for new trial. The supreme court removed presentment when the rule was rewritten in 1981. See id. at 511 n.3 (“[T]he 1981 amendments to Rule 329b eliminated that Rule's former requirement that a movant call a motion for new trial to the trial court's attention.”).

2.   The Supreme Court of Texas approved the amendment by order dated December 5, 1983, and the amended rule took effect on April 1, 1984. Opinions accordingly refer to it both as the 1983 amendment and as the 1984 amendment. Compare Matheson v. Am. Carbonics, 867 S.W.2d 146, 148 (Tex. App.—Texarkana 1993, no writ) (referring to the amendment as occurring in 1983), with Enriquez, 400 S.W.3d at 620 (referring to “the 1984 amendment”). For consistency, I refer to it as the 1983 amendment.

3.   Justice Marshall explained why: “in the rush to reach a clearly ordained result, courts may offer up principles, doctrines, and statements that calmer reflection, and a fuller understanding of their implications in concrete settings, would eschew.” Heckler, 470 U.S. at 840 (Marshall, J., concurring in judgment).

4.   The division among the courts of appeals is less even than it appears at first glance. The courts in the majority examine the amended rule's text and conclude that the burden is on the trial court to set a hearing. The courts in the minority cite Cabrera, place the burden on the movant, and make no attempt to reconcile their holdings with the amended text. Compare Interra Credit Union v. Laboy, No. 15-25-00164-CV, 2026 WL 1871546, at *2–3 (Tex. App.—15th Dist. June 30, 2026, no pet.) (mem. op.) (applying Third Court of Appeals precedent and holding that the burden to set a Rule 165a(3) hearing “falls on the trial judge, not the movant”), Parker v. Cain, 505 S.W.3d 119, 123 (Tex. App.—Amarillo 2016, no pet.) (holding that Rule 165a(3) places the burden to set a hearing on the trial court), Enriquez, 400 S.W.3d at 619–20 (holding that a timely, verified motion to reinstate obligates the trial court to hold an oral hearing regardless of whether the movant requests a setting, files a fiat, or otherwise communicates a request to the court), Matheson, 867 S.W.2d at 148 (“Whether or not the movant requests a hearing on a motion to reinstate is irrelevant; a hearing is required unless waived.”), and Bush, 747 S.W.2d at 45 (holding that the 1983 amendment “clearly places the burden upon the clerk to deliver the motion to the judge who shall set a hearing”), with Carson v. Webster, No. 11-23-00225-CV, 2024 WL 4701579, at *3 (Tex. App.—Eastland Nov. 7, 2024, no pet.) (mem. op.) (holding that “it was Appellant's responsibility to request a hearing on his motion”), Wright v. R.R. Comm'n of Tex., No. 01-22-00490-CV, 2023 WL 4003302, at *4 (Tex. App.—Houston [1st Dist.] June 15, 2023, no pet.) (mem. op.) (finding no error where the motion to reinstate was unverified and the movant never requested a hearing), Johnson v. Sepulveda, 178 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (requiring a separate request), Rainbow Home Health, 76 S.W.3d at 57 (same), and Cabrera, 834 S.W.2d at 618–19 (same); see also Abraham v. Acton, 539 S.W.3d 521, 524 (Tex. App.—El Paso 2018, no pet.) (noting the division among the courts of appeals without taking a side); 5 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 27:55 (2d ed., Feb. 2026 update) (noting the division).

5.   The majority cites H & H Wrecker v. Koctar, No. 14-15-00311-CV, 2016 WL 3634258, at *2 (Tex. App.—Houston [14th Dist.] July 7, 2016, no pet.) (mem. op.), and Weiss v. JPMorgan Chase Bank, N.A., No. 05-06-00940-CV, 2007 WL 2069627, at *4 (Tex. App.—Dallas July 20, 2007, pet. denied) (mem. op.). Neither case is binding on this court.

6.   Even in the motion-for-new-trial context, the Supreme Court of Texas has held that when a motion presents a complaint on which evidence does not need to be heard, a party need not call the motion to the trial court's attention to preserve error if the motion is overruled by operation of law. See Cecil, 804 S.W.2d at 511–12 & n.5.

7.   To the extent the majority means to adopt Shamrock's reasoning for motions to reinstate, it does so without saying. Contra Carpenter, 2026 WL 1020545, at *2 (passing on question of whether Shamrock should be adopted by the Fourth Court in the default judgment context).

8.   Because Rule 165a(3) required the trial court to set and hold a hearing upon the timely filing of Courtland's verified motion to reinstate, the extra-record emails attached to Courtland's reply brief are immaterial, and the majority's discussion of them is unnecessary. See ante at 10–11; Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied). And because Courtland's verified motion stated facts that had not been presented at the motion-to-retain stage—including three severe Houston-area weather events in 2024 and counsel's 135 trial settings between January 2023 and October 2024—the trial court's failure to hold the mandatory oral hearing prevented Courtland from making an evidentiary record and cannot be dismissed as harmless under Texas Rule of Appellate Procedure 44.1(a). Cf. Curnutt v. ConocoPhillips Co., 508 S.W.3d 641, 644–45 (Tex. App.—El Paso 2016, no pet.) (holding that any error in failing to hold a reinstatement hearing was harmless where the movant had a full opportunity to present evidence at the dismissal hearing and “the motion to reinstate offers no new arguments, and contains no additional or newly discovered evidence”); Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 741 (Tex. App.—Waco 2005, pet. denied) (holding that the failure to hold a reinstatement hearing was harmless where the movants “did not promulgate any new arguments or advocate the discovery of new evidence” in their motion to reinstate).

9.   See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003) (per curiam) (recognizing that although “en banc consideration is generally disfavored,” the appellate rules “authorize courts of appeals to consider a case en banc if the circumstances require and the court votes to do so”); O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding) (explaining that a court of appeals is a “single, unitary body, even though it may sit in panels,” and that a nonpanel justice's dissent from the denial of en banc review serves “salutary purposes,” chiefly “promoting the uniformity and correctness of the court's decisions”); see also Monticello Asset Mgmt., Inc. v. Wells, 714 S.W.3d 117, 118 (Tex. App.—Dallas 2024, no pet.) (Partida-Kipness, J., dissenting from denial of en banc reconsideration) (observing that declining en banc review when a panel opinion departs from statewide standards allows a minority of the court to bind the full court in future cases); In re State ex rel. Wice, 634 S.W.3d 370, 374–75 (Tex. App.—Houston [1st Dist.] 2021, orig. proceeding) (Guerra, J., dissenting from denial of en banc reconsideration) (arguing that the court must analyze the question correctly “not only to provide consistent guidance, but also to ensure the efficient administration of justice”); Twigland Fashions, Ltd. v. Miller, 335 S.W.3d 206, 226 (Tex. App.—Austin 2010, no pet.) (Jones, C.J., concurring in denial of en banc reconsideration) (noting that “ ‘extraordinary circumstances’ include such matters as (1) addressing legal issues on which Texas courts of appeals are split ․ and (3) overruling an earlier decision of this Court”).

10.   See Tex. Gov't Code § 22.201(e).

11.   See Mitschke, 645 S.W.3d at 263 (noting that a Third Court justice had written separately “to ask the supreme court to clarify its position” on a precedent, “which we may have done had a party brought a petition in that case to this Court”).

12.   Both sides to an appeal incur fees and costs that are rarely recoverable. See, e.g., In re Greystar Dev. & Constr., L.P., No. 24-0293, 2026 WL 2793919, at *1–2 (Tex. Sept. 18, 2026) (orig. proceeding) (Hawkins, J., statement respecting denial of reh'g) (discussing recovery of supersedeas bond costs under the Texas Rules of Appellate Procedure).

Rebeca C. Martinez, Chief Justice