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Appeals court rules plaintiff not to blame for confusion caused by attorney

By Steve Korris | Jun 2, 2010


Montgomery County District Judge Fred Edwards shut down a suit against the county three times in three ways, and now he must reopen it.

On May 27, Texas Ninth District appeals judges ordered Edwards to reinstate a suit that Karen McPeters brought against Montgomery County.

The Ninth District opinion didn't explain the nature of the suit, noting only that Edwards set it for trial June 8, 2009.

But due to a scheduling conflict, Edwards delayed it until Sept. 14.

Then Edwards signed an order dismissing the suit for want of prosecution on Aug. 11.

On Aug. 31, he wrote "vacated" across the order in capital letters, but he did not sign or initial the change.

McPeters filed a motion to vacate the order and reinstate the case on Sept. 8. The next day, the court coordinator told McPeters' lawyer, Robert Mays, that Edwards would consider the motion on the submission docket for Sept. 25.

But on Sept. 11, Mays told the coordinator his client would not appear for trial on the 14th. On the 14th, with neither McPeters nor Mays on hand, Edwards granted the motion to vacate the order.

He reinstated the case but immediately signed another order dismissing it for want of prosecution.

For McPeters, Mays moved again to reinstate. At a hearing on Oct. 2, Mays said he failed to appear for trial because he believed the case had been dismissed on Aug. 11.

Edwards said, "You have done this to yourself. Either you over-thought this or you think you know more than anybody else about how things should be done."

He said, "You were aware of the trial setting. I am not reinstating this case. This matter is over with."

It wasn't over with at the Ninth District.

Justice Hollis Horton wrote that McPeters failed to appear for trial because Mays mistakenly believed the court could act no further on her case.

"The record reflects that the trial court's attempt to withdraw its order of dismissal without signing a written order of dismissal contributed to Mays's confusion about whether he was required to appear for the trial setting," he wrote.

"The record before us provides nothing to indicate that McPeters was personally responsible for or even aware about Mays' decision not to appear for trial," he wrote.

Horton wrote that dismissing was not a just sanction for McPeters' failure to appear because a party should not be punished for counsel's conduct.

Justices David Gaultney and Charles Kreger agreed.

Rayborn Johnson represented Montgomery County.

Appeals Court Case No. 09-09-00451-CV

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