Court of Appeals of Texas, Dallas.

Jesus VARELA, Appellant,

v.

DANAL’S FOOD STORES, INC., Appellee.

No. 05-97-01391-CV.

|

Oct. 4, 1999.

Before Justices MORRIS, WHITTINGTON, and ROACH.

OPINION

ROACH.

*1 We must decide whether the trial court abused its discretion in refusing to reinstate this case dismissed for want of prosecution because Jesus Varela announced ready for trial twenty-five minutes late. Because we conclude Varela’s failure to timely announce ready for trial was not intentional or the result of conscious indifference, we sustain his first point of error. Accordingly, we reverse the trial court’s judgment and remand with instructions to reinstate this case.

Varela was employed by Danal’s Food Stores and injured his back moving heavy boxes. Varela sued for wrongful termination after Danal’s fired him for allegedly refusing to sign a waiver of his common law rights. Discovery proceeded, and the jury trial was set for Monday, May 12, 1997. On that date, the trial judge dismissed the case because Varela’s attorney failed to announce ready in accordance with the Dallas County Civil District Court Local Rules, which require plaintiff’s counsel to announce ready to the court clerk no later than 10:30 a.m. on the Friday before the scheduled trial date.¹

After learning of the dismissal, Varela’s attorney filed a verified motion to reinstate the case, asserting his assistant, Carmen Alba, called the court clerk and announced ready for trial just before 11 a.m. on Friday, May 9, 1997. The motion then asserted that Alba learned on Monday, May 12, that the case had been dismissed because she called twenty-five minutes late. Varela’s attorney argued his failure to announce ready by 10:30 a.m. Friday was not intentional or due to conscious indifference, but was the result of a mistake.

At the hearing on the motion, Alba testified she attempted to call the coordinator between 10 and 10:30 a.m. on Friday, May 9, and received a message that the coordinator was on vacation and to the call the court clerk to make an announcement. Alba said it was a busy morning and she took other calls before again calling the coordinator to “get the full message, so I could understand exactly what she-her instructions.” Then, she placed a third call to the clerk and announced ready for trial. According to Alba, the clerk told her the case was number one on the docket, and she would get a call on Monday if the trial was going on Tuesday. Alba said she was not told at that time that the case was being dismissed for calling too late. According to Alba, the law firm prepared throughout the weekend for the upcoming trial. On Monday, the firm learned the case had been dismissed.

At the hearing, defense counsel reminded the trial court that the case had already been reinstated once before after being dismissed for want of prosecution because Varela’s counsel failed to appear at a September 1996 trial. In his cross-examination of Alba, defense counsel asked questions concerning only the September 1996 dismissal and presented no evidence about the dismissal before the court. After hearing the evidence at the hearing, the trial court denied Varela’s motion to reinstate. This appeal ensued.

*2 In his first point of error, Varela argues the trial court erred in dismissing the case and/or refusing to reinstate it because his failure to timely announce ready was not intentional or due to conscious indifference but was, at most, the result of a mistake. We agree.

When the dismissal order lists a particular reason for the dismissal, then the appellate court’s review is limited to whether the dismissal was proper on the ground specified by the trial court. Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex.App.-Waco 1997, pet. denied). In this case, the order stated that the case was being dismissed for failure to announce ready for trial in accordance with the Dallas County local rules. The reinstatement provision of Texas Rule of Civil Procedure 165a governs cases dismissed because of failure of a party to appear or make an announcement. See Goff v. Branch, 821 S.W.2d 732, 733 (Tex.App.-San Antonio 1991, writ denied). Under this rule, “[t]he court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney [to make an announcement] 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). The operative standard is essentially the same as that for setting aside a default judgment. Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex.1995) (per curiam). A failure to timely make an announcement 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. Id. Proof of such justification-accident, mistake or other reasonable explanation-negates the intent or conscious indifference for which reinstatement can be denied. Id. Conscious indifference means more than mere negligence. Id. We review the trial court’s decision on reinstatement under an abuse of discretion standard. Id. at 468. A trial court abuses its discretion in denying reinstatement when the attorney’s explanation for failure to announce ready is reasonable. See id. at 467-68.

Initially, we note that this is not an instance where an attorney or his client failed to appear at a scheduled hearing or trial; rather, this case was dismissed because an announcement of ready was not made by 10:30 a.m. three days before the scheduled trial date. As the verified motion explained and as Alba testified, Alba placed a timely call to the court coordinator to announce ready only to receive a recorded message giving her other instructions. Alba followed the instructions and made the call, albeit twenty-five minutes late. Under these circumstances, we conclude Varela’s attorney reasonably explained his failure to call by 10:30 a.m. Even if he was not as conscientious as he should have been, his actions did not amount to conscious indifference. Accordingly, we conclude the trial court erred in refusing to reinstate the case. We sustain the first point of error. Because of our disposition of this point, we need not address Varela’s remaining two points of error.

*3 Danal’s brings two cross-points of error, both of which deal with the trial court’s denial of Danal’s special exceptions to Varela’s retaliatory discharge claim. First, it urges this Court to overrule its holding in Hodge v. BSB Investments, Inc., 783 S.W.2d 310, 313 (Tex.App.-Dallas 1990, writ denied), and conclude that the Worker’s Compensation Act does not apply to nonsubscriber employers, such as Danal’s.² Alternatively, it argues the special exception to the retaliatory discharge claim should have been sustained because the “cause of action applies only to claims or rights under the Worker’s Compensation Act.”

Any opinion from this Court as to whether the trial court should have sustained the special exceptions would not dispose of all of Varela’s claims; rather, the special exceptions were directed solely at a single cause of action. Having ordered the reinstatement of Varela’s lawsuit, we therefore consider any opinion on this subject advisory at this time. We have no jurisdicition to render advisory opinions or to determine questions not essential to our decision even though such questions may require adjudication in the future. Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ). We therefore dismiss the two cross-points of error.

We reverse the trial court’s judgment and remand this case to the trial court with instructions to reinstate the case.

	Footnotes
1		Rule 1.17 provides, in relevant part: a. In all contested jury cases set for trial in a particular week, counsel are requird to make announcements to the Court on the preceding Thursday and in any event, no later than 10:30 o’clock A.M. on the preceding Friday concerning their readiness for trial. Any unqualified announcement of “ready” or “ready subject to” another court engagement may be made to the Court Clerk in person, by telephone, or by letter. All other announcements shall be made to the Judge unless otherwise directed. * * * * c. When no announcement is made on behalf of Plaintiff by 10:30 o’clock A.M. on Friday preceding the week in which the case is set for trial, the case may be dismissed for want of prosecution. Dallas Civil District Court Rules 1.17. Local rule 1.28, which addresses nonjury cases, makes the same provision as above.
2		We note that Hodge was expressly overruled in Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 57 (Tex.1998), which held that an employee cannot assert an article 8307c claim against an employer that does not subscribe to the Texas Workers’ Compensation Act..