Motion to Retain or Reinstate in Vickie Polk vs. DeMarkus Sanders| Trellis.Law

On December 22, 2017 a Motion,Ex Parte was filed involving a dispute between Polk, Vickie, and Sanders, Demarkus, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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I
DALLAS COUNTY
6/12/2018 11:10 AM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-17-17525

VICKIE POLK, IN THE DISTRICT COURT
Plaintiff

1628? JUDICIAL DISTRICT

DeMARKUS SANDERS,
Defendants DALLAS COUNTY, TEXAS

PLAINTIFF’S MOTION FOR REINSTATEMENT
AND REQUEST FOR HEARING THEREON
OR, IN THE ALTERNATIVE,
THAT THE COURT SUA SPONTE, REINSTATE THE CASE

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Vickie Polk, Plaintiff in the above- entitled and numbered cause, files this,

Plaintiff’ s Motion for Reinstatement and Request for Hearing Thereon, Or, In the Altemative, That

the Court Sua Sponte, Reinstate
the Case, and in support of this motion would show unto the Court

as follows:

This case arises out of a motor vehicle accident which occurred on or about April 9, 2016,

which resulted in bodily injuries to Plaintiff.

IL.

When negotiations with the insurance company failed and the claim did not settle, alawsuit

was filed on December
22, 2017. As per the process server's affidavit, service
of process was

attempted
at 13 Bryan Court Mansfield, Texas 76063. Said personal service
was unsuccessful as

set forth in the Plaintiffs Motion for Substituted Service, a true
and correct copy of which is

attached hereto and labeled as Exhibit 1 and which is incorporated herein by reference as if set

forth at length, which Plaintiff asks the Court to take judicial notice of.

Plaintiff's Motion to Reinstate
1) 01/16/18 - Wendy Santiago sent a message to Defendant on Facebook to contact her
regarding legal papers. There was no response.

2) 03/13/18- Mrs. Santiago was contacted by Defendant and stated he would call the next
day to discuss time and location for service. Defendant suggested service at his parent’s house
located at 13 Bryan Court, Mansfield, Texas 76063.

3) On 03/16/18 @ 1:25 P.M. - Process server Wendy Santiago attempted to reach
Defendant and left a detailed voicemail message.

A) On 03/21/18@ 9:10 A.M. - Mrs. Santiago again attempted to reach Defendant and left
a detailed voicemail message.

5) Finally, on 03/29/18 @ 8:00 A.M - Mrs. Santiago again attempted
to reach Defendant
and again left a detailed voicemail message.

Til.

On March 27, 2018, the Court issued a Notice of Intent of Intent to Dismiss (for failure to

prosecute diligently), a true and correct
copy of which is attached hereto and labeled
as Exhibit 3,

which is incorporated herein by reference as if set forth herein at length, therein stating in relevant

patt, as follows: “Thisis
not an oral hearing. Sulmission Hearing Date is set for 05/25/18 at 9:00

am, Your written response must be received by the C ourt 3 days before the above date and

time.”

On or about April 10, 2018, Plaintiff filed a response
to the Notice of Intent to Dismiss via

a Motion for Substituted Service, (Exhibit 1), therein detailing the repeated attempts to contact the

defendant in order to serve him at the agreed upon location, to wit, his parents’ home.

Unfortunately, the defendant reneged on the agreement to be served at his parents’ address.

As the Notice of Intent to Dismiss was set by submission on May 25, 2018, Plaintiff’s

counsel did not appear for any hearing thereon, because, he believed that no hearing would be had.

on the matter. If your undersigned’s counsel’s belief was in error, it was not intentional or the

result of conscious indifference
but was the result of a mistake or accident.

Plaintiff's Motion to Reinstate
On May 29, 2018, the Court signed an Order of Dismissal for Want of Prosecution, a tue

and correct copy of whichis attached hereto and labeled
as Exhibit4, which is incorporated herein

by reference as if set forth herein at length.

However, with all due respect
to the Court, the order may be incorrect wherein it states that

“Plaintiff(s) failed to file a written response’ . “and failed to appear at the dismissal hearing”

Again, the Plaintiff filed a response via a Motion for Substituted Service. (Exhibit 1). And, the

Plaintiff did not fail to appear at the dismissal hearing because there was no hearing as the matter

was set by submission. (Exhibit 4).

Argument and Authorities

It is noted that a trial court can reinstate the case on its own initiative without a motion

within thirty (30) days after dismissal. Request is hereby made for the C ourt to consider this

option, without the need for hearing, within thirty (30) days of the Order of Dismissal for

‘Wantof Prosecution. Neesev. Wray, 893 S.W.2d 169, 170 (Tex.App.— Houston [1* Dist] 1995,

no writ). In Texas DPS v. Deck, 954 S.W.2d 108, 111-112 (Tex.App.—San Antonio 1997, no

writ), the court held that it could not conclude
that the trial court abused its discretion
by reinstating

the case and therein stated that in part that “[O]ther courts have found that a court, on its own, can

reinstate a case after dismissal. See Stelter v. Langoria, 687 S.W.2d 498, 499 (Tex.App.-Houston

[14th Dist.] 1985, no writ) (noting that motion to reinstate does not have to be filed in order for

court to reinstate case); cf. Charles L. Hardtke, Inc. *112 v. Katz, 813 S.W.2d 548, 550 (Tex.App.-

Houston
[1st Dist.] 1991, no writ) (determining that sua sponte docket entry by court was sufficient

to order reinstatement of case previously dismissed). On the face of the present record, the court

sua sponte reinstated
the case. By reinstating
the case on its own motion, the court
was not

Plaintiff's Motion to Reinstate
obligated under Rule 165a(3) to notify the DPS of an adversarial hearing since none was held nor
”
necessaly.

A trial court is authorized
to dismiss a case for want of prosecution
by mule of civil

procedure 165a and by exercise of its inherent power to manage its docket. Villarreal v. San

Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial court may dismiss a case under

tule 165a on "failure of any party seeking affirmative relief to appear for any hearing or trial of

which the party had notice" or when a case is "not disposed of within the time standards

promulgated" by the supreme court. Tex. R. Civ. P. 165a(1), (2).

The trial court also has the inherent power to dismiss, independent of the rules of civil

procedure
when a plaintiff fails to prosecute its case with diligence. Villareal, 994 S.W.2d at 630;

Oliphant Fin., LLC v Galaviz, 299 S.W.3d 829, 839 (Tex. App.-Dallas 2009, no pet.). The trial

court generally considers four factors before dismissing a case for want of prosecution: (1) the

length of time a case has been on file; (2) the extent of activity in the case; (3) whether a trial

setting was requested; and (4) the existence of reasonable excuses for the delay. WMC Mortg.

Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied); Bilnoski v. Pizza Inn,

Inc., 858 S.W.2d 55, 58 (Tex. App.-Houston [14th Dist.] 1993, no writ). No single factor is

dispositive.

Vv.

In the instant case, when the court served its Notice of Intent to Dismiss, the case
had only

been on file three
(3) months and the statute of limitation had not yet expired. (It would have

expired on Apnil 16, 2018). As per the citation, the citation was issued by the district clerk on

December 29, 2017. However, as per the firm's records, it was not received
via email by

Plaintiff’
s firm until January 8, 2018, at which time, it was sent out for service. No trial setting had

Plaintiff's Motion to Reinstate
been requested as of that date because it was a new case on which service had not been

accomplished.

VI.

Any delay and inability in obtaining service is solely the fault of the defendant. To be quite

blunt, it was the defendant that led the process server to believe that he could be served with

process
at his parents’ house located
at 13 Bryan Court, Mansfield, Texas 76063. When that

failed (due solely to the actions or omissions of the defendant), altemative means had to be

attempted, which included Lexis/Nexis searches, and a vehicle registration search (which

confirmed
the address of 13 Bryan Court, Mansfield, Texas 76063 as a good. address). And, when

those attempts were unsuccessful, the decision was made to wait to see if the defendant renewed

the registration on his vehicle which was set to expire at the end of February 2018, in the hopes

that it might disclose a new or better address. Unfortunately, in March 2018, it was discovered

that the defendant’s vehicle had been sold. Therefore, on April 10, 2018, as discussed

hereinabove, Plaintiff filed a Motion for Substitute Service. But, no order was submitted with the

motion, which wes not intentional or the result of conscious indifference but was a mistake or

accident. (See the affidavit
of Esther Aldaba, a true and correct copy of which is attached hereto

and which is labeled
as Exhibit 2, which is incorporated herein by reference
as if set forth herein

at length).

VIL.

Whether a case is dismissed
under rule 165a or the trial court's inherent power, the trial

court must reinstate the case if it determines the failure of the party or his attomey "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." Emphasis added. Tex. R. Civ. P. 165a(3), (4).

Plaintiff's Motion to Reinstate
A failure 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. Emphasis added. Smith v.

Babcock& Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). Proof of accident,

mistake, or other reasonable explanation negates the intent or conscious indifference for which

reinstatement
can be denied. Id. Also, conscious indifference means more than mere negligence.

See also Johnson v. Hawkins, 255 S.W.3d 3%, 398 (Tex.App.—Dallas, 2008, pet. denied)

(whether failure to appear was not intentional or the result of conscious indifference if fact-finding

within the trial court’s discretion).

VII.

Plaintiffs counsel would show unto the Court that he (and former counsel with the same

Plaintiff’s law firm) have clearly exercised due diligence in the prosecution of this case. All of

the “filed” activity in the case is contained in the Court’s Docket Sheet, including, but not limited

to, the following:

1) Lawsuit filed

2) Personal Service attempted at address (assigned to the license plate on Defendant’

vehicle)

3) Attempts
by process server to serve with the consent of the defendant at parents’ address

4) Motion for Substituted Service

In addition, also as set forth hereinabove, the following additional attempts were made to

obtain another address for the defendant as follows:

1) Intemet searches;

2) The registration information on Defendant’s vehicle was checked and it was

determined that the address for the defendant was indeed correct;

Plaintiff's Motion to Reinstate
3) When the official address for the defendant’s vehicle was monitored via vehicle

registration records and it was determined that the registration was scheduled to be

renewed at the end of February 2018, Plaintiff’s counsel waited to see if the vehicle

was re-registered
at the same address. Plaintiff’
s counsel contacted
his colleague who

advised that Defendant had sold the subject vehicle.

4) Plaintiff’s counsel’s colleague advised regarding the church where Defendant attended.

However, that information could not be confirmed.

Aplaintiff is reasonably diligent if it acted as an ordinary, prudent person would have under

the same or similar circumstances. Manning v. North, 82 S.W.3d 706 (Tex.App.—Amanillo

2002, no pet.). Asshown hereinabove, Plaintiff did what was reasonable under the circumstances.

WHEREFORE, Plaintiff prays that this matter be set for hearing and that the Court reinstate

this case, or, in the altemative, that the Court, sua sponte, sign an order reinstating
the case within

thirty (30) days of the signing of the Order of Dismissal for Want of Prosecution, and for such

other and further relief to which Plaintiff may show herself to be justly entitled.

Respectfully submitted,

RASANSKY LAW FIRM

/s/Joe P. Lopez, IV

JEFFREY H. RASANSKY
State Bar No. 16551150
jdawfirm.com
JOE P. LOPEZ, IV
State Bar No. 12566435
jlopez@jdawfirm.com

Plaintiff's Motion to Reinstate
2525 McKinnon, Suite 550
Dallas, TX 75201
Telephone: (214) 651-6100
Facsimile: (214) 651-6150

ATTORNEYS FOR PLAINTIFF

Plaintiff's Motion to Reinstate
VERIFICATION

STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undesigned notary public, on this day personally appeared, Joe P. Lopez.
IV, who, after being duly sworn stated under oath, that he has read Plaintiff's Motion to Reinstate.
Or, In the Alternative, That the Court Sua Sponte, Reinstate the Case and that the statements
contained in Roman Numerals I, II, and V, are within his personal knowledge, and are true and
correct.

- Po Taper, IV

SUBSCRIBED AND SWORN TO BEFORE ME on this the[ 7 day of June, 2018.

PAOLA MESTA
Notary 10 #129783803
My Commission Expires
Youd, Wuntew
Notary Public in and for the State of Texas
May 21, 2022

Plaintiff's Motion to Reinstate
FILED
DALLAS COUNTY
4/10/2018 4:11 PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO, DC-17-17525

VICKIE POLK, IN THE DISTRICT COURT
Plaintiff

§ 162%? JUDICIAL DISTRICT

DeMARKUS SANDERS,
Defendants DALLAS COUNTY, TEXAS

PLAINTIFE’S MOTION FOR SUBSTITUTED SERVICE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, VICKIE POLK (hereinafier “Plaintiff”), and files this, her

Plaintiff's Motion for Substituted Service, pursuant to Texas Rule of Civil Procedure §

106(b), and in support thereof would respectfully show the Court the following:

[

As stated in the affidavit of Wendy M. Santiago, Authorized Process Server. .

attached hereto and incorporated herein as if fully set forth for all purposes as Exhibit A.

Defendant's parents reside at 13 Bryan Court, Mansfield. Texas 76063.

As set forth in the attached affidavit of Wendy M. Santiago, she communicated

with Defendant, DeMARKUS SANDERS, on the following occasions:

1) 01/16/18 — Mrs, Santiago sent a message to Defendant on Facebook to contact

her regarding legal papers. There was no response.

2) 03/13/18 — Mrs. Santiago was contacted by Defendant and stated he would call

the next day to discuss time and location for service. Defendant suggested

service at his parent’s house located at 13 Bryan Court, Mansfield, Texas

76063.

Ftaintill’s
Plaintiff's Motion
Motion for stituted Service
for Substituted Service
3) On 03/16/18 @ 1:25 P.M. ~ Mrs. Santiago attempted to reach Defendant and

left a detailed voicemail message.

4) On 03/21/18 @ 9:10 A.M. — Mrs. Santiago again attempted to reach Defendant
and left a detailed voicemail message.

5) Finally, on 03/29/18 @ 8:00 A.M — Mrs, Santiago again attempted to reach
Defendant and again lett a detailed voicemail message.

It is clear that Wendy M. Santiago has made sufficient investigation to conclude

that Defendant's parents reside at 13 Bryan Court, Mansfield, Texas 76063, and that

affixing a copy of the citation and petition to the residence will be sufficient to apprise the

Defendant of the existence and nature of the lawsuit against him. In the alternative, a person

over the age of sixteen (16) at the residence can be entrusted with the documents. It is the

opinion of Mrs. Santiago, a certified process server, that cither of these methods of service

would be sufficient to give Defendant notice of the claims against him.

TIL.

In March, 2018, Plaintiffs counsel's colleague also attempted to locate Defendant

via Texas vehicle registration system which indicated that Defendant had sold the vehicle

which was involved in the accident which made the basis of this lawsuit and therefore no

additional information was obtained. Pursuant to TEXAS RULE OF CIVIL PROCEDURE

106(b), service on Defendant DeMARKUS SANDERS should be effected by leaving a

copy of the citation, with a copy of the petition attached. with anyone over the age of

sixteen (16) at 13 Bryan Court, Mansfield, Texas 76063, or by affixing a copy of the

citation, with a copy of the petition attached. to the door at 13 Bryan Court, Mansfield,

Texas 76063.

Plaintiff's Motion for Substituted Service Page 2
WIHTEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that

the Court order service upon Defendant DeMARKUS SANDERS by ordering substituted

service under Rule 106(b) of the TEXAS RULES OF CIVIL PROCEDURE or in such other

manner as the Court finds would be reasonably effective to give Defendant DoeMARKUS

SANDERS notice of this suit, and that a true copy of such order for substituted service be

attached to and included with the Citation and Petition to be so served.

PRAYER
Plaintiff prays that the Court grant this Motion for Substituted Service, pursuant to

Texas Rule of Civil Procedure § 106(b), and for such other and further relief to which she

may show herself justly entitled.

Respectfully submitted,

RASANSKY LAW FIRM

/s/ Joe P. Lopez, IV

JEFFREY H. RASANSKY
State Bar No. 16551150
jrasansky@jrlawfirm.com
JOE P. LOPEZ, IV
State Bar No. 12566435
jlopez@jrlawfirm.com

2525 McKinnon, Suite $50
Dallas, TX 75201
Telephone: (214) 651-6100
Facsimile: (214) 651-6150

ATTORNEYS FOR PLAINTIFF

Plaintiff's Motion for Substituted Service Page 3
Affidavit in Support of Motion for Substitute Service

State of Texas County of Dallas 162nd Judicial District Court
Case Number: 0C-17-17525
Plaintiff.
Vickie Polk
vs.
Defendant:
DeMarkus Sanders

For:
Justin H. King
Rasansky Law Firm
2525 McKinnon Street
Suite 550
Dallas, TX 75201
Received by Elite Deposition Technologies on the 21st day of March, 2018 at 4:53
pm to be served on
DeMarkus Dion Sanders, 13 Bryan Court, Mansfield, TX 76963.

I : Wendy M. Santiago, being duly sworn, depose and say that on the 28th day of
March, 2018 at 8:00 am,
f

deemed it impractical to personal y deliver the Citation and Plaintiff's Original Petition and Requests
for Disclosure to the named defendant DeMarkus Dion Sanders in the above numbered and styled
cause, | have attempted to make personal delivery to
DeMarkus Dion Sanders, at his/her place of
Abode, being 13 Bryan Court, Mansfield, Tarrant County, TX 76063 which was established
personally in my efforts.

| believe the Defendant can and will be given notice of these proceedings by delivering
to anyone over the
age of sixteen (16) at 13 Bryan Court, Mansfield, Tarrant County, TX 76063 or
by securly fastening to
the front door of said Abode,

Additional Information pertaining to this Service:
On January 16, 2078 at 11:08 am, | sent a messa gé to DeMarkus Sanders on Facebook
to please contact
me regarding legal papers. Mr. Sanders' Facebook page indicates he lives in Mansfield,
Texas. On March
13, 2018, Mr. Sanders contacted me from (817) 361 -2862. He stated he was currently
living in Arlington.
He stated he would contact me the next day to arrai nigé a time and location for service.
He suggested
service at his parents’ house located at 13 Bryan Ci ‘curt, Mansfield, Texas 76063.
| attempted to contact Mr.
Sanders on several occasions since that March 14, 2018 and he has not returned any calls.
3/16/2018 1:25 pm | attempted to reach Mr. Sanders at {817} 361-2862.
| left a detailed veicemait
message.
3/21/2018 9:10 am | attempted to reach Mr. Sanders at (817} 361-2862. | left a detailed voicemail
message.
3/29/2018 8:60 ami | attempted te reach Mr. Sanders at (817) 361-2862. / left a detailed voicemail
Affidavit in Support of Motion for Substitute Service For DC-17-17525

| certify that | am over the age of 18, have no interest in the above action, and am authorized
to serve
pursuant to Rule 103 of the Texas Rules of Civil Procedure and the Supreme Court of Texas Order.

Before me, a notary public, on this day personally
appeared the above named person. known to me to
lings
Wendy M. Santi: igo
be the person whose name is subscribed te the PSC#12491, Exp. 2/29/2020
foregoing decument and, being by me first duly
sworn, declared that the statements therein Elite Deposition Technologies
contained are within his/her personal knowledge and
400 N. Saint Paul Street
experience to be true and correct. Given under my Suite 1110
Mand and $@di of office on the 9th day of April, 2018
Dallas, TX 75204

Lt 4
NOTARY PUBLIC
Our Job Serial Number: EDE-2048000020
Ref: Poik v. Sanders

ey,
s AMADO SANTIAGO.
Notary Public, State of Texas)
Comm. Expires 04-04-2021
% eae Notary 1D 128375816
i Ne
AFFIDAVIT OF ESTHER ALDABA

Before me, the undersigned authority, personally appeared the undersigned affiant, who.

being by me duly sworn, deposed as follows:

“My name is Esther Aldaba, I am over the age of 18 and am fully competent to make this
affidavit. | have never been convicted of a felony and I am of sound mind, capable of making this
affidavit, and have personal knowledge of the facts herein stated all of which are true and correct.’

“Lam a paralegal at Rasansky Law Firm for Plaintiff's counsel, Joe P. Lopez, IV.”

“On April 10, 2018, I inadvertently failed to file a proposed order along with Plaintiff's
Motion for Substituted Service. On May 23, 2018, I made a telephone call to the Court and spoke
with a clerk for the 162" Judicial District of Dallas. As a result of that conversation, my
understanding was that Mr. Joe P. Lopez, IV, Plaintiff's counsel was not required to attend the
submission hearing on May 25, 2018 at 9:00 A.M. as long as a written response to Notice of Intent to
Dismiss had been filed with the Court.”

“On May 31,2018, I logged onto the Dallas County Court’s website and noticed that the case
had been dismissed so | immediately called the Court and 1 spoke with Melinda Thomas, Court
Coordinator for the 162" Judicial District of Dallas to inquire why the case was dismissed, Based
upon my conversation with her, my understanding was that although we had filed Plaintiff's Motion
for Substituted Service, we did not file a proposed order, which would have taken care of the case
not being dismissed But, since no proposed order was on file with the Court there was nothing for
the judge to sign and therefore, the case was dismissed.”

“My failure to file a proposed order was not intentional or the result of conscious indifference
but was the result of accident or mistake.”

ON, Ql cba
ESTHER ALDABA

SUBSCRIBED AND SWORN TO before me the |‘2. day of JUN . 2018,
to certify which witness my hand and seal of office.

KS TR PAOLA MESTA
sx
NOTARY PUBLIC IN AND FOR
\\ Notary ID #129783803
AL «| My Commission Expires THE STATE OF TEXAS
OEE May 22, 2022
In The District Court
of Dallas County, Texas
162nd District Court
March 27, 2018

JUSTIN H KING
2525 MCKINNON STREET
SUITE 550
DALLAS TX 75201

IN RE: DC-17-17525
Vickie Polk vs. DeMarkus Sanders

Notice of Intent to Dismiss
Please take notice that, pursuant to Rule 165a of the Texas Rules of Civil Procedure and
that the Court’s inherent power, the Court intends to dismiss the above captioned action
for want of prosecution for one or more of the following reasons:

Failure to provide judgment following announcement of settlement
pursuant to Local Rules.

Failure to prosecute diligently. (obtain service and/or file Motion for Default
Judgment timely)

Failure to submit Judgment after jury or non-jury trial.

Other reasons reflected in file.

This is not an oral hearing.
Submission Hearing Date is set for 05/25/2018 at 9:00 AM. Your written
response must be received by the Court 3 days before the above date
and time. Failure to show good cause why this case should be continued
on the Court’s docket will result in dismissal.
Sincerely,

Maricela Moore
District Judge

600 Commerce Street — Room 740
— George L, Allen, Sr., Courts Building— Dallas, Texas 75202 - 214-653-7156
—s

DC-17-17525

Vickie Polk In the District Court
vs. Dallas County, Texas
DeMarkus Sanders 162nd District Court

ORDER OF DISMISSAL FOR WANT OF PROSECUTION

Plaintiff(s) failed to file a written response to this court’s letter of MARCH 27, 2018, and
failed to appear at the dismissal hearing set by the same letter. The court has therefore
determined that the cause should be dismissed for want of prosecution.

It is therefore, ORDERED, ADJUDGED AND DECREED that this cause be and is
hereby DISMISSED and that all court costs shall be taxed against the Plaintiff(s), for
which let execution issue. It is further ORDERED that execution may issue in favor of
the officers of the court against said party or parties, for all costs by each incurred.

Signed this the 2A day of MAY, 2018.

cela Moore.
Juige Presiding

ce: All Counsel of Record and/or Pro Se Litigant(s)

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MOORE, MARICELA Track Judge’s New Case

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Document Filed Date

June 12, 2018

Case Filing Date

December 22, 2017

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Motion,Ex Parte: Vickie Polk vs. DeMarkus Sanders

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