In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00263-CV
ERIC HINES, Appellant
V.
TIFFANY SHAVONNE STEVENSON HINES, Appellee
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 23-08-12570-CV
MEMORANDUM OPINION
Appellant, Eric Hines, asserts the trial court abused its discretion in dismissing
without prejudice his petition for divorce for want of prosecution, in refusing to enter
judgment in accordance with a mediated settlement pursuant to section 6.602 of the
Texas Family Code, and in denying his verified motion to reinstate the case. See
Tex. Fam. Code Ann. § 6.602. Finding no abuse of discretion, we affirm.
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Background
In August 2023, Eric 1 filed an Original Petition for Divorce. The trial court’s
docket indicates a scheduling order was issued in October 2023, but the scheduling
order is not included in the appellate record. In March 2024, 2 the trial court granted
a continuance, which stated, in part,
Accordingly, IT IS ORDERED, ADJUDGED and DECREED that the
trial of this matter is now set for June 03, 2024 at 9:00 a.m., and that
a Docket Call-Pretrial Conference is set for May 24, 2024 at 9:00 a.m.
All other deadlines imposed by the Scheduling Order previously
rendered in this matter shall remain in full force and effect as calculated
from the new trial date.
On March 15, the parties filed a Mediated Settlement Agreement (“MSA”)
signed by both parties.
Eric’s counsel claims to have emailed the trial court’s staff on May 21, asking
whether he needed to appear for the Docket Call-Pretrial Conference on May 24, to
which the staff replied that the MSA had been approved by the associate judge, there
is no need to appear on May 24, and the “trial date is set for entry or dismissal.” The
email chain is not in the record.
At 5:11 p.m. on May 21, Tiffany filed a Motion to Set Aside Mediated
Settlement Agreement arguing that Eric failed to disclose the mortgage on their
1
Because the parties share the same last name, we will refer to them by their first names in this opinion.
2
All dates from this point forward were in 2024.
2
home was in his name only, that he lied to Tiffany about the terms of the mortgage
and that she and Eric did not understand the document they signed.
Neither party nor their attorneys appeared for Docket Call-Pretrial Conference
on May 24.
On May 31, Eric filed a Motion for Entry of Agreed Final Decree of Divorce
asserting a proposed Agreed Final Decree of Divorce was “attached” to the motion,
but the proposed decree is neither attached to the motion nor included in the record.
In the motion, Eric asserts that on May 2, his counsel provided Tiffany’s counsel a
proposed order that he “believe[d]” to be in conformity with the MSA and when
Tiffany’s counsel responded by claiming Tiffany was “not aware of the loan
modification[,]” Eric’s counsel, on May 14, provided Tiffany’s counsel a copy of
the loan modification signed by Tiffany. The motion alleges that any delay or
deviation by Tiffany is a “tactic[] to stall the process of finalizing this divorce.”
On June 3, the trial court signed an Order of Dismissal for Want of
Prosecution in which it dismissed the case without prejudice. The Order states, “The
parties and attorneys appeared but had passed pretrial conference indicating that they
will have an agreed decree on their trial date and no agreed decree was ready (one
side wanted to set aside the MSA).” The record does not contain a transcript of the
proceedings on June 3.
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Also on June 3, Eric filed Petitioner’s Verified Motion to Reinstate Case on
Docket asserting,
1. This case was dismissed for want of prosecution on the court’s pretrial conference docket on or about Friday, May 24, 2024.
2. Petitioner’s counsel mistakenly missed the pre-trial setting
appearance in this matter. Counsel for Petitioner believed counsel need
not appear at the pre-trial conference since the parties entered into a
mediated settlement agreement on March 14, 2024. Counsel for
Petitioner believed that Petitioner need only appear at Court on the trial
date to prove up the mediated settlement agreement and enter a Final
Decree of Divorce.
Eric’s Motion to Reinstate was heard on July 18. The record contains a
transcript of the hearing, which included the following colloquy:
THE COURT: I’m assuming that you were aware prior to the scheduled
pretrial conference that [Tiffany] had filed a motion to set aside the
mediated settlement agreement, correct?
[ERIC’S TRIAL COUNSEL]: I was in trial, your Honor, and I wasn’t
--THE COURT: Well, her certificate of service claims that she sent you
a copy of it --[ERIC’S TRIAL COUNSEL]: No doubt.
THE COURT: -- on May 21st. The pretrial conference was May 24th.
[ERIC’S TRIAL COUNSEL]: This is true, Judge.
THE COURT: So --[ERIC’S TRIAL COUNSEL]: I may have just missed it.
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THE COURT: -- were you aware prior to the scheduled pretrial
conference that the other side was trying to set aside the mediated settlement agreement?
[ERIC’S TRIAL COUNSEL]: Did I receive notice? Yes. Was I aware
of it? No.
THE COURT: So this is my standing order. It’s been the same for years. It’s a carrot, and it’s a stick. There’s an order. Every single case is ordered to mediate prior to pretrial conference. Okay? The pretrial conference, the whole purpose of that is to figure out which cases have done what they were supposed to do that are ready to and need to be tried and which cases haven’t. The carrot is if you did what you were ordered to do and mediated and settled, you don’t have to come to pretrial if we’re just going to enter a decree based on the MSA. The stick is if you don’t come to pretrial, I’m going to dismiss your case. If you pass the pretrial based on an MSA, you’re set for entry or dismissal on your trial date. The fact that neither of you showed up for your pretrial conference on May 24th when you knew there was an issue or a dispute is not good. Are we on the same page?
[TIFFANY’S TRIAL COUNSEL]: Yes, your Honor.
[ERIC’S TRIAL COUNSEL]: Yes, your Honor, but --THE COURT: Why would you pass it -- why would you -- are you the
one, [Eric’s trial counsel], that passed the pretrial conference?
[ERIC’S TRIAL COUNSEL]: No, your Honor. I’m the one who asked
the Court if we needed to be there, but --THE COURT: So you’re telling me you called my staff and asked if
you needed to be at the pretrial conference and my staff said no, you don’t have to be there?
[ERIC’S TRIAL COUNSEL]: I sent an email, and in the email, it says: “Judge Wonderly has approved your MSA. There is no need to appear for pretrial. Your trial date is set for entry or dismissal.” That’s what I received.
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THE COURT: Because somebody, presumably a lawyer, contacted my
staff and said we have an MSA --[ERIC’S TRIAL COUNSEL]: I did, on --THE COURT: -- can we skip pretrial?
[ERIC’S TRIAL COUNSEL]: On May 21st, yes.
THE COURT: And on May 21st, you already knew that they weren’t
in agreement with the MSA anymore, right?
[ERIC’S TRIAL COUNSEL]: It had never been set for hearing. There
was no hearing on the motion.
THE COURT: All right. Are you the one asking me to reinstate the
case?
[ERIC’S TRIAL COUNSEL]: Well --THE COURT: Yes?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: So let me make sure I understand correctly. [Eric’s trial counsel], you asked to not appear for the pretrial conference because you had an MSA.
[ERIC’S TRIAL COUNSEL]: Yes.
THE COURT: And when you did that, you knew that the other side was trying to set aside the MSA, correct?
[ERIC’S TRIAL COUNSEL]: No. I was -- I mean, they sent me notice. I didn’t -- I didn’t -- I wasn’t looking at it --THE COURT: They sent you notice --[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
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THE COURT: -- of their motion to set aside the MSA, correct?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: So can someone give me a logical explanation as to why no one appeared for the pretrial conference on May 24th when y’all knew that there was a dispute over entering a judgment on the mediated settlement agreement prior to that date?
[ERIC’S TRIAL COUNSEL]: . . . Yes, your Honor. So on May 21st
when we sent the email, I can only presume that Judge Wonderly and your staff would have had access to the clerk’s record and would have seen that the motion had been filed, which is why we sent the email. If it was necessary for us to show up to the pretrial, I can only assume that your staff would have told us or Judge Wonderly would have told us. And so when we get an email --....
THE COURT: I would like to assume that you understand that I’m
having an issue and a concern with why no one appeared for the pretrial conference.
[ERIC’S TRIAL COUNSEL]: It was an honest mistake, Judge.
THE COURT: But bear with me. You -- do you agree and acknowledge
that that appears to be my question and concern?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: Okay. If you were doing that, you were aware that there was pretrial conference, yes?
[ERIC’S TRIAL COUNSEL]: Yes.
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THE COURT: If you were aware that there was a pretrial conference, you were aware of it because you had received this Court’s scheduling order, yes?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: If you had received this Court’s scheduling order, I’m assuming you had read this Court’s scheduling order, yes?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: If you had read this Court’s scheduling order, it says, I believe, in all capital letters, bolded and underlined, failure to appear would result in a dismissal. Yes?
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: Yet for some reason or another, you initiated
communication with my staff prior to the pretrial conference --[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: -- to determine whether you needed to show up.
[ERIC’S TRIAL COUNSEL]: Yes, your Honor.
THE COURT: Which tells me that those all capitalized, bolded, and underlined letters in the scheduling order didn’t make it clear to you. Or, alternatively, you were aware of this Court’s policy, which is a standing order, that says if you have a mediated settlement agreement, you can pass the pretrial conference, meaning you’re representing to the Court we’re going to enter a decree based on the MSA on the trial date. It’s one of those two things. Would you agree?
[ERIC’S TRIAL COUNSEL]: No.
THE COURT: There's a third option?
[ERIC’S TRIAL COUNSEL]: Yes.
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THE COURT: Okay. What is the third option that happened in this
case?
[ERIC’S TRIAL COUNSEL]: We have a mediated settlement
agreement, and there was nothing that was done by the Court to vacate
it. Hence, we’re entitled to a judgment based on that MSA.
At the conclusion of the hearing, the trial court denied Eric’s motion. Eric
filed this appeal.
Analysis
In his first issue, Eric argues that a trial court is required to reinstate a case
when the party’s failure to appear “was not the result of conscious indifference but
was due to accident or mistake or is otherwise reasonably explained.” See Tex. R.
Civ. P. 165a(3). Eric attributes his failure to appear at the May 24 pretrial conference
to confusion regarding whether his attendance was required in light of Tiffany’s
dispute of the mediated settlement agreement. He argues his counsel attempted to
“resolve any confusion by emailing the court coordinator to determine if they still
needed to attend” and relied on the coordinator’s reply that there was no need.
“A trial court’s authority to dismiss a case for want of prosecution stems from
two sources: (1) Texas Rule of Civil Procedure 165a; and (2) the court’s inherent
authority under common law.” Tunchez v. Houk, No. 05-20-00330-CV, 2021 Tex.
App. LEXIS 9804, at *8 (Tex. App.—Dallas Dec. 8, 2021, no pet.) (mem. op.)
(citing Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d
628, 630 (Tex. 1999)). “A court may dismiss pursuant to rule 165a when a party
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seeking affirmative relief fails to appear for any hearing or trial of which the party
had notice, or when a case is not disposed within the Supreme Court of Texas’ time
standards” Id. “The trial court also has the inherent authority to dismiss a civil suit
when a plaintiff fails to prosecute [his] case with due diligence.” Renfro v. Davis,
No. 01-21-00540-CV, 2022 Tex. App. LEXIS 5401, at *6 (Tex. App.—Houston [1st
Dist.] Aug. 2, 2022, no pet.) (mem. op.). “This authority stems from the trial court’s
power to control its docket.” Id. (citing Maida v. Fire Ins. Exch., 990 S.W.2d 836,
839 (Tex. App.—Fort Worth 1999, no pet.)).
Nevertheless, Rule 165a(3) contemplates that a case should be reinstated if
the party’s failure to appear was due to an accident or mistake or is otherwise
reasonably explained. Tex. R. Civ. P. 165a(3). “The operative standard is essentially
the same as that for setting aside a default judgment.” Smith v. Babcock & Wilcox
Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam); see Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (1939). “A failure to appear is not
intentional or due to conscious indifference within the meaning of the rule merely
because it is deliberate; it must also be without adequate justification.” Smith, 913
S.W.2d at 468. “Proof of such justification—accident, mistake or other reasonable
explanation—negates the intent or conscious indifference for which reinstatement
can be denied.” Id. (citing Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.
1992)). “The party seeking reinstatement has the burden and must provide some
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proof of an adequate justification for the failure that negates intent or conscious
indifference.” Gulf Coast Lease Serv. v. Rise Petro. Invs. LLC, No. 14-25-00006-CV, 2026 Tex. App. LEXIS 3998, at *6 (Tex. App.—Houston [14th Dist.] Apr. 30,
2026, no pet.) (mem. op.).
A trial court’s ruling on a motion to reinstate is reviewed for abuse of
discretion. See Smith, 913 S.W.2d at 468. A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or when it acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985). “Whether the party’s or attorney’s conduct was ‘not intentional
or the result of conscious indifference,’ is a fact-finding within the trial court’s
discretion.” Price v. Firestone Tire & Rubber Co., 700 S.W.2d 730, 733 (Tex.
App.—Dallas 1985, no writ) (quoting Tex. R. Civ. P. 165a). “The fact-finder is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.” Wilson v. Wilson, No. 01-06-00908-CV, 2010 Tex. App. LEXIS 4856,
at *26 (Tex. App.—Houston [1st Dist.] June 24, 2010, no pet.) (mem. op.). We must
defer to a trial court’s firsthand assessments of credibility. See Hoa Dao v. Md. Cas.
Co., No. 09-13-00353-CV, 2015 Tex. App. LEXIS 4893, at *19 (Tex. App.—
Beaumont May 14, 2015, no pet.) (mem. op.).
Although the trial court’s scheduling order is not in the record, the trial court
characterized its order during the hearing on the motion to reinstate as containing
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“capitalized, bolded, and underlined letters” indicating there was no need to appear
at the pretrial if the only thing left to do was to enter a final divorce decree based on
an MSA, but if pretrial was passed based on the existence of an MSA, the parties
and attorneys would need to appear on the trial date whereupon a final decree would
be entered pursuant to the MSA or the case would be dismissed. Consistent with
how the scheduling order was described, the dismissal order indicates this case was
dismissed because the parties and their attorneys failed to appear for the pretrial
conference “indicating that they will have an agreed decree on their trial date and no
agreed decree was ready (one side wanted to set aside the MSA).”
During the hearing on the motion to reinstate, Eric’s counsel was unclear
regarding when he became aware that Tiffany was contesting the mediated
settlement agreement; he acknowledged having been served with Tiffany’s May 21
motion to set aside the MSA, but he denied actual awareness of the motion since he
was in trial and “may have just missed it.” However, according to Eric’s motion for
entry of judgment, Eric’s counsel knew no later than May 14 that Tiffany was
contesting at least one of the terms of the MSA because the motion states he provided
Tiffany’s counsel a proposed decree on May 2 and then provided her a copy of the
loan modification on May 14 in response to Tiffany’s allegation that she was
unaware that the loan had been modified. Therefore, regardless of whether Eric’s
counsel was actually aware of Tiffany’s motion to set aside the MSA, the trial court
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may have reasonably concluded that Eric’s counsel was actually aware as of May 14
that the parties were in a state of disagreement concerning the final decree. And,
according to the trial court’s description of its own scheduling order, the order
clearly and conspicuously informed counsel that unless the parties were prepared to
enter an agreed final decree on the June 3 trial date, counsel were required to appear
for the May 24 docket call and pretrial conference, else the case would be dismissed.
Because the record does not include a copy of the emails exchanged between
Eric’s counsel and the trial court’s staff on May 21, it is unclear whether the email
from Eric’s counsel was sent before or after Tiffany’s motion was filed at 5:11 p.m.
that day. It is also unclear whether Tiffany’s motion had already been filed or
whether the trial court’s staff was aware of it when the staff responded that there was
no need to appear on May 24 since the MSA had been approved by the associate
judge. The trial court may have reasonably concluded that the emails were
exchanged earlier in the day, and that once Tiffany’s motion was filed later that same
day, the staff’s email did not provide a reasonable justification for missing the docket
call and pretrial conference on May 24 in light of the instructions in the scheduling
order. “The burden is on the appellant to see that a sufficient record is presented to
show error requiring reversal.” Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990). Without the email chain, we are unable to conclude the trial court abused its
discretion in impliedly finding that Eric’s counsel was not entitled to rely on the
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staff’s email after Tiffany filed a motion to set aside the MSA on May 21. Likewise,
without the scheduling order, we cannot evaluate the clarity with which counsel was
warned that the case would be dismissed for failing to appear for docket call on May
24 or for failing to be ready to enter an agreed final decree on June 3.
On this record, we cannot say that the trial court abused its discretion by
impliedly finding that Eric’s failures were not merely inadvertent, but were, instead,
deliberate and without reasonable justification. Eric, therefore, failed to carry his
burden to negate intent or conscious indifference. See Smith, 913 S.W.2d at 468; see
also Wilson, 2010 Tex. App. LEXIS 4856, at *28-29 (holding the trial court did not
abuse its discretion by denying appellant’s motion to reinstate, because although trial
counsel testified that the court clerk told him the case had been reset, he provided no
evidence of such, and the trial court as the determiner of credibility was in the
position to determine the weigh to give trial counsel’s testimony). Because the
record does not support Eric’s assertions that the trial court abused its discretion in
denying the motion to reinstate, we overrule Eric’s first issue.
Issues Two and Three
In his second and third issues, Eric argues the trial court abused its discretion
in dismissing the case instead of entering a final decree based on the parties’ MSA
pursuant to section 6.602 of the Texas Family Code and in creating a rule that
abridges Eric’s rights under section 6.602, which provides:
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(b) A mediated settlement agreement is binding on the parties if the
agreement:
(1) provides, in a prominently displayed statement that is in
boldfaced type or capital letters or underlined, that the agreement
is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the
time the agreement is signed.
(c) If a mediated settlement agreement meets the requirements of this
section, a party is entitled to judgment on the mediated settlement
agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or
another rule of law.
Tex. Fam. Code Ann. § 6.602(b), (c). An MSA “is binding on the parties and requires
the rendition of a divorce decree that adopts the parties’ agreement.” Milner v.
Milner, 361 S.W.3d 615, 618 (Tex. 2012) (citing Tex. Fam. Code Ann. § 6.602(b)-(c)). Several courts of appeals have held that a trial court is not required to enforce
an MSA that is illegal or procured by fraud, duress, coercion, or other dishonest
means. See Morse v. Morse, 349 S.W.3d 55, 56 (Tex. App.—El Paso 2010, no pet.);
Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 242 (Tex. App.—Austin
2007); In re Marriage of Joyner, 196 S.W.3d 883, 890 (Tex. App.—Texarkana
2006, pet. denied); Boyd v. Boyd, 67 S.W.3d 398, 403-05 (Tex. App.—Fort Worth
2002, no pet.); In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.—Houston [14th
Dist.] 1999, orig. proceeding). Tiffany’s motion to set aside the MSA is based on
such allegations, but Eric argues that in the absence of evidence supporting Tiffany’s
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allegations, Eric was entitled to entry of a final divorce decree consistent with the
MSA. Without a record of the proceedings on June 3, we are unable to determine
whether Tiffany presented any evidence of fraud, duress or dishonesty. And without
a proposed final divorce decree, we are unable to evaluate whether the proposed
decree is consistent with the MSA that was filed on March 15.
As indicated above, the trial court’s dismissal order indicates the case was
dismissed because when the parties and attorneys appeared on June 3, “no agreed
decree was ready (one side wanted to set aside the MSA).” It was Eric’s burden to
bring forth a record sufficient to demonstrate reversible error on the part of the trial
court. See Christiansen, 782 S.W.2d at 843. On this record, we are unable to
conclude that the trial court abused its discretion in dismissing the case for counsel’s
failure to either: (1) appear for docket call on May 24, or (2) appear on June 3 with
a final divorce decree that conformed to the MSA. We overrule Eric’s second and
third issues.
Conclusion
Having overruled Eric’s issues, we affirm the trial court’s orders.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on March 12, 2026
Opinion Delivered July 30, 2026
Before Golemon, C.J., Johnson and Chambers, JJ.
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