In Resurgence Financial, L.L.C. v. Foster, the Dallas Court of Appeals followed and applied the Texas Supreme Court‘s opinion in Thordson v. City of Houston. From the moment that Resurgence filed its suit the trial court notified Resurgence that the case would be placed on the dismissal docket unless an answer were filed by a date specified. On October 23, 2007, Resurgence filed a motion for substituted service, supported by affidavit. The trial court returned the motion with an unsigned letter stating that Resurgence had failed to establish sufficient attempts to serve the defendant. On the same day the trial court returned the motion, it dismissed the suit for want of prosecution. Resurgence filed a motion to reinstate and asked for a hearing in its motion. The record showed no indication that the trial court heard the motion, but there was a docket entry indicating that the judge was aware of the filing. The motion to reinstate was overruled as a matter of law.
On appeal, Resurgence raised a single issue to complain about the lack of a hearing on its motion to reinstate. The court of appeals holds that "the trial court’s failure to comply with rule 165a(3) is erroneous and requires reversal." The court’s opinion may be found here.