stating that courts of appeals are not required to search the record without guidance from appellant to determine whether it has produced evidence raising a genuine issue of material fact on the elements challenged by appellees
How later courts described this case
- stating that courts of appeals are not required to search the record without guidance from appellant to determine whether it has produced evidence raising a genuine issue of material fact on the elements challenged by appellees
- concluding that party’s actions during purported illness supported trial court’s finding that absence from hearing was result of conscious indifference
Written by the judges who cited it.
The opinion
DISSENTING OPINION FROM DENIAL OF EN BANC REVIEW
O’CONNOR, Justice.
I dissent. I would reverse and remand for trial. This case was barely 18 months old at the time of dismissal.
*739 In its docket control order mailed to the parties on June 17, 1994, the trial court set the case for trial for a two-week period beginning January 16,1996. Two of the parties in this case did not receive that order, the plaintiffs and one of the defendants. The plaintiffs actually learned their case was set for trial on December 14, 1994, when the defendant who did not get the order called to ask the plaintiffs to agree to a continuance. The plaintiffs consented to that defendant’s motion for continuance, and filed their own motion. In them motion for continuance, the plaintiffs alleged they had not yet designated expert witnesses, and that their lawyer had a planned business trip to London from January 18 to January 23, 1995 and a four-week vacation in Pakistan beginning February 23, 1995. The trial court overruled the motion for continuance on January 9, 1995. At a hearing on January 13, the trial court postponed the trial until the week of January 23, 1995, and gave the plaintiffs until January 17, 1995, to designate an expert.
Neither the plaintiffs nor their attorney appeared at the pretrial conference hearing set for January 17 or for the trial setting on January 23. The court coordinator called the plaintiffs’ lawyer’s office on January 23 and was told he had just returned from London and was suffering from food poisoning. The court refused to believe that the attorney was ill and set the ease for trial on the following day. On January 24, another attorney appeared for the plaintiffs and asked for a continuance based on the illness of the plaintiffs’ counsel. The court signed an order dismissing the case on January 30.
After the court dismissed the case, the plaintiffs filed a motion to reinstate based on the illness of their attorney. In the motion, the plaintiffs stated that the attorney had been seriously ill. Attached to the motion were two medical affidavits. One was the affidavit of a doctor who stated he examined the plaintiffs’ attorney on January 17, and that he had food poisoning. The other affidavit was by a doctor at Ben Taub Hospital that he examined the plaintiffs’ attorney on January 22 and 23, and he was ill and he advised him to stay in bed and take prescribed medication. The court overruled the motion to reinstate and entered a lengthy order explaining its reasons for its ruling.
Reason for denying first motion for continuance
The primary reason the court gave for denying the first motion for continuance was that the court coordinator testified at a hearing that she mailed the notice to all parties. The court concluded that it was incredible that some of the parties received the notice and the plaintiffs did not. Thus, the court found that the plaintiffs received notice of the hearing several months before the trial setting.
The fact of mailing creates a rebuttable presumption that it was received. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994). When the plaintiffs filed an affidavit verifying that he did not receive the notice, that information rebutted the presumption that the notice was not received. Id.; Cliff v. Huggins, 124 S.W.2d 778, 780 (Tex.1987). The presumption of receipt is not evidence and vanishes when opposing evidence is introduced that the notice was not received. Cliff, 724 S.W.2d at 780; see also Roob v. Von Beregshasy, 866 S.W.2d 765, 767 (Tex.App.—Houston [1st Dist.] 1993, writ denied) (court could not disregard the appellant’s verified and uncontradicted motion for continuance in which he stated he did not receive the notice).
The Cliff case is instructive because it mirrors the facts (but not the result) in this case. In Cliff , the trial court rendered a post-answer default based on a notice sent to the plaintiffs of a trial setting. The plaintiffs filed an affidavit that they did not receive the notice. The Supreme Court reversed and remanded to the trial court because the affidavit was sufficient to overcome the presumption of receipt. Id. We should do the same. 1
*740 Reason for refusing to reinstate
The reason the trial court gave for refusing to reinstate the case was that it did not believe the plaintiffs’ attorney was too ill to attend the hearing on January 17 and the trial on January 24. The trial court held that the lawyer’s illness was too close to his vacation to be believable. The defendants did not file controverting affidavits that challenged the veracity of those affidavits.
I do not believe the trial court had the option to disbelieve the medical doctors’ affidavits. When a party files an affidavit from a doctor who verifies that the person is too ill to attend trial, unless the evidence is controverted, the court cannot disbelieve the affidavits. The trial court did not have the discretion to reject the uncontroverted facts in the doctors’ affidavits. See Roob, 866 S.W.2d at 767 ; Verkin v. Southwest Center One, Ltd., 784 S.W.2d 92, 94 (Tex.App.—Houston [1st Dist.] 1989, writ denied).
Technical faults of the brief
The majority takes the plaintiffs to task for not providing citation to the record. The record in this ease consists of a transcript, and it is only 77 pages long. I would hold that the issue of dismissal is so simple that the failure to cite to the transcript is not an error that should be considered by the Court.
Summary
I believe the trial court abused its discretion in refusing to reinstate this case.
. Under Tex.R.Civ.P. 245, the parties are entitled to 45 days notice of the trial setting. The plaintiffs did not get the required notice and the trial court should have granted the motion for continuance.