Pro Se Suit against Clerk dismissed for failure to serve citation

Amarillo court of appeals affirms dismissal in the absence of evidence of service of process on the clerk of the 5th Circuit.

Laurance Kriegel v. William C. Zapalac, Counsel of the Clerk's Office, No. (Tex.App.- Amarillo, Nov. 28, 2007)(Opinion by Justice Campbell)(pro se litigants, dismissal for failure to serve defendant affirmed)(Before Chief Justice Quinn, Justices Campbell and Pirtle)
Appeal from 287th District Court of Parmer County

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Laurance Kriegel, appearing pro se, appeals the trial court’s dismissal of his suit for want of prosecution. Finding the trial court did not abuse its discretion, we affirm.


Background

Also appearing pro se in the trial court, Kriegel filed suit on January 3, 2007.
if( bInlineFloats )

Because the original clerk’s record filed with this court did not contain a copy ofKriegel’s petition, and to understand the substance of his complaint, we obtained a copyof his live petition in a supplemental clerk’s record. See Tex. R. App. P. 34.5 (c)(1).

Kriegel contended appellee William Zapalac, counsel to the Clerk’s Office for the United States Court of Appeals for the Fifth Circuit,
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Hereinafter the United States Court of Appeals for the Fifth Circuit is identified asthe “Fifth Circuit.”

and unnamed other members of the office of that court’s clerk, failed to docket a matter brought before the Fifth Circuit by Kriegel. In particular, Kriegel asserted Zapalac owed him a fiduciary duty which was breached when Kriegel’s matter was not docketed or calendared with the Fifth Circuit. Kriegel asked the state trial court to: (1) order the clerk’s office of the Fifth Circuit to calendar and docket his matter; and (2) consider removing employees of the Fifth Circuit who violate their “fiduciary duty” to Kriegel.
The record reveals that on July 25, 2007, the trial court dismissed Kriegel’s suit, without prejudice, for want of prosecution. In its order of dismissal, the court found that no proper citation with proof of service on Zapalac appeared of record. The court further found that on May 29, 2007, it notified Kriegel of its intent to dismiss for lack of service of citation on Zapalac and granted Kriegel until June 19, 2007, to request a continuance. The court found Kriegel made no showing of good cause for a continuance. Accordingly, it dismissed Kriegel’s suit.
Kriegel filed a notice of appeal on August 1, 2007. With no record from the trial court, he nevertheless filed a document bearing the primary heading “Brief” with this court on August 13, 2007. On September 24, 2007, the clerk’s record was filed, consisting of the order of dismissal, Kriegel’s notice of appeal, and the court’s docket sheet.
Because it appeared Kriegel’s complaint was the trial court improperly dismissed his suit for failure to serve Zapalac, and as the clerk’s record did not contain citation with return, we notified Kriegel of the contents of the record by letter of September 28, 2007. We granted Kriegel until October 15, 2007, to file a supplemental clerk’s record containing additional documents he believed material to his appeal. Kriegel made no response to the letter and no supplemental clerk’s record was received by October 15, 2007.
Issue
Kriegel’s brief fails to comply with the requirements of Tex. R. App. P. 38.1 in several respects and for the essential requirements of an appellant’s brief we refer Kriegel to the text of Rule 38.1. However, in a single issue Kriegel argues:
“Appellant presented information to the Court showing service was lawfully presented on Appellee.”

In support of his issue, Kriegel asks us to consider an assortment of documentsattached to his brief. The documents Kriegel references are not part of the clerk’s recordand we may not give them consideration. See Goode v. Shoukfeh, 915 S.W.2d 666, 671n.6 (Tex.App.–Amarillo 1996), aff'd, 943 S.W.2d 441 (Tex. 1997).

Discussion

We review an order of dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). A trial court's authority to dismiss a case for want of prosecution proceeds from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the common law, which vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999). The record here provides no indication that the trial court acted under Rule 165a so we interpret the basis of its dismissal authority to be its inherent power.
Merely filing suit did not bring Zapalac within the jurisdiction of the trial court. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (defendant’s actual knowledge of suit not sufficient to invoke court’s jurisdiction to render default judgment; jurisdiction dependent on citation issued and served in manner provided by law). It was for Kriegel to request process and ensure its proper service on Zapalac. "Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." Tex. R. Civ. P. 99(a) (emphasis supplied). Kriegel’s failure to properly bring Zapalac before the court meant his suit lay dormant on the trial court’s docket. Moreover, it was Kriegel’s failure to properly obtain service and file the return that prompted the trial court’s warning of impending dismissal.
Despite Kriegel’s claim in this court that he provided proof of service for the trial court before June 19, 2007, the record, which is the sole object of our review, speaks otherwise. The court’s order of dismissal states the court’s finding “that no citation, or process under Rules 108 or 108a, TRCP, with proper proof of service on William C. Zapalac, has been filed with the clerk of the court.” The record before us contains no proof that at any time Kriegel either requested citation issue or undertook steps to make certain its proper service. His failure to do so came to the attention of the trial court prompting a warning of impending dismissal unless “a written request for continuance showing good cause was made on or before June 19, 2007, at 9:30 a.m.” The court found Kriegel failed to comply with this requirement and dismissed his case. The record does not reveal whether Kriegel filed a request for continuance that the court found inadequate or filed nothing. In either instance, we presume the evidence of Kriegel’s action or inaction supports the court’s finding that Kriegel “made no showing of good cause for continuance.” See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (in the absence of a record showing the trial court abused its discretion, the appellate court presumes the evidence before the trial court supports the judgment); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.–San Antonio 1989, writ denied) (when nothing in the record contradicts a judgment’s recitals, they are taken as true).
The record before us reflects that Kriegel did nothing to obtain proper service of Zapalac and then did not follow an order of the court specifying the means for avoiding dismissal. On such a record, we cannot say the trial court abused its discretion by dismissing Kriegel’s case for want of prosecution. Accordingly, we overrule Kriegel’s sole issue, and affirm the trial court’s order of dismissal.

James T. Campbell
Justice

TRCP 165a - Refusal to Reinstate After DWOP Affirmed

HOLDING: Because the trial court could properly dismiss the Johnson's case for failure of diligent prosecution or for failure to comply with the Rule 165a(2) time standards or under its inherent authority, we do not find that the trial court abused its discretion in refusing to reinstate the case under Rule 165a(3). Having overruled Johnson’s two issues, we affirm the trial court's dismissal.

Linda Johnson and Stephen Wayne Johnson, Individually, and as Guardians of Keashia McLinn, a Minor v. Robert Thigpen, Jr., Individually, and d/b/a Thigpen Cattle Company and Thigpen Cattle Company, an Unidentified Company, No. (Tex.App.- Waco, Nov. 21, 2007)(Opinion by Justice Vance)(DWOP, motion to reinstate denied) (Before Chief Justice Gray, Justices Vance and Reyna)
Appeal from 82nd District Court of Falls County

MEMORANDUM Opinion

Stephen and Linda Johnson, individually and as guardians of Keashia McLinn, a minor (“the Johnsons”) appeal from an order denying their motion to reinstate their suit against Robert Thigpen and Thigpen Cattle Company (“Thigpen.”). The trial court had dismissed the suit for want of prosecution. In two points of error, the Johnsons complain that the court abused its discretion in dismissing the suit because (1) the original suit was improperly dismissed and (2) the motion to reinstate should have been granted. We will affirm the decision of the trial court.

Background

After being involved in a collision when some of Thigpen’s cattle wandered onto the road, the Johnsons filed suit against Thigpen for failure to maintain fences on his property. Thigpen filed a motion for summary judgment, which was overruled, and the trial court requested that the parties proceed to mediation as soon as the necessary depositions were complete. After the case was inactive for a period of sixteen months, the trial court sent a notice to the parties stating that the case had been set on the dismissal docket for February 14, 2006. It notified both parties that their “presence was not required,” but that a motion to retain could be filed. The Johnsons filed a motion to retain, and on February 10, 2006, it was granted.

Thigpen’s attorney, unaware of the motion to retain, arrived at the dismissal hearing on February 14. At the hearing, the court notified Thigpen’s attorney that a motion to retain had been granted, but he contested it. He argued before the court that he had attempted to set up depositions and select a mediator but never received any response from the Johnsons. On these facts, the trial court withdrew its order granting the motion to retain and dismissed the case for want of prosecution. Upon receipt of the trial court’s order dismissing the case, the Johnsons filed a motion to reinstate, which the trial court denied. The Johnsons now appeal.
Dismissal for Want of Prosecution

The Johnsons’ first issue asserts that the trial court erred when it dismissed their case for want of prosecution. We review a dismissal for want of prosecution under an abuse of discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, no pet.). We employ the same standard in reviewing the denial of a motion to reinstate. Franklin v. Sherman Indep. School Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a[1] and (2) the trial court's inherent authority. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Steward v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.—Waco 2004, no pet.); Binner v. Limestone County, 129 S.W.3d 710, 712 (Tex. App.—Waco 2004, pet. denied). A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2) when a suit is not disposed of within the time standards given by the Supreme Court. Tex. R. Civ. P. 165a(1), (2); Steward, 143 S.W.3d at 163-64. Independent of the rules of civil procedure, a trial court may also dismiss a suit under the inherent authority given to it by common law. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d at 163-64.

The trial court may consider the entire history of the case, including: 1) the length of time the case was on file; 2) the extent of activity in the case; 3) whether a trial setting was requested; and 4) the existence of reasonable excuse for the delay. King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex. App.—Houston [14th Dist.] 1992, no writ).

The Johnsons claim that the motion to retain should not have been denied for several reasons.

First, the dismissal notice made no reference to Rule 165a or the authority it used to dismiss the case, which they allege is erroneous under Villareal. Thigpen counters that even if the trial court’s order fails to specify the reason for its dismissal of a case, the dismissal must be upheld as long as the record supports some proper ground for dismissal. Shook v. Gilmore and Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ).

The Johnsons did not request findings of fact or conclusions of law, and the trial court did not specify the standard of dismissal used. Therefore, we must affirm on the basis of any legal theory supported by the record. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).

We disagree with the Johnsons. We have held that “a dismissal notice containing no reference to Rule 165a or the court's inherent authority [is] sufficient to put an appellant on notice that the court could dismiss under Rule 165a(1), Rule 165a(2), or its inherent authority.” Steward, 143 S.W.3d at 164 (citing Binner, 129 S.W.3d at 712). Because the law does not require a dismissal notice to reference Rule 165a or the court’s authority to dismiss, the notice sent to the Johnsons was adequate. Id.

Finally, the Johnsons argue that it was error for the court to notify them that their presence was not required at the dismissal hearing but then to allow opposing counsel to act ex parte and argue against the motion to retain. We construe the Johnsons’ argument to mean that it was error for the court to reconsider its order granting the motion to retain. However, any error was cured by the trial courts’ hearing on the motion to reinstate.

We have held that conducting a motion to reinstate hearing cures any potential problems created by dismissing a case for want of prosecution. See Dueitt v. Arrowhead Lakes Property Owners, Inc., 180 S.W.3d 733 (Tex. App.—Waco 2005, pet. denied). We have agreed with several other courts of appeals that the filing of a motion to reinstate and participation in the hearing on the motion to reinstate (as in this case) cures any due process concerns that may result. Binner, 129 S.W.3d at 713; Steward, 143 S.W.3d at 165. Therefore, even if dismissal was improper, it was cured by the hearing on the motion to reinstate. Accordingly, we overrule the Johnsons’ first issue.

Motion to Reinstate

In their second issue, the Johnsons argue that the trial court erred in denying their motion to reinstate. Specifically, the Johnsons assert that after their motion to retain was granted, the trial court failed to set a trial date before dismissing the case. See Seals, 83 S.W.3d at 875 (holding that a trial court has an independent duty to set a case for trial once a motion to retain is granted). They further contend that under Seals, it is an abuse of discretion for a court to dismiss a case based on failure to comply with Rule 165a if a motion to retain has been granted and a trial date has not been set. Id.

The Johnsons’ reliance on Seals is misplaced for two reasons. First, the trial court initially granted the Johnsons’ motion to retain on February 10, 2006. The dismissal hearing was held on February 14, 2006. Failing to set a trial date in a four-day window does not reach the error found in Seals, in which a trial date was not set for fifteen months and caused the case to be inactive beyond the Texas Supreme Court’s eighteen month guideline. Second, it was not the court’s fault that no action was taken in this case. Since the summary judgment hearing, more than 18 months had elapsed, and the Johnsons had failed to comply with the court’s request to engage in discovery and mediation. These facts alone provide support for the trial court’s dismissal for want of prosecution under the abuse of discretion standard.

The Johnson’s failure to participate in discovery and mediation gave ample reason for the suit to be dismissed. The Johnsons did nothing to move the case toward a resolution for over eighteen months. And from the evidence before it, the trial court was free to disbelieve that various medical ailments prevented both Linda Johnson and her counsel from actively participating in this case. We cannot say that the trial court abused its discretion on the record before us, and we overrule the Johnsons’ second issue.

Conclusion

Because the trial court could properly dismiss the Johnson's case for failure of diligent prosecution or for failure to comply with the Rule 165a(2) time standards or under its inherent authority, we do not find that the trial court abused its discretion in refusing to reinstate the case under Rule 165a(3). Having overruled Johnson’s two issues, we affirm the trial court's dismissal.

BILL VANCE
Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna

Affirmed

Opinion delivered and filed November 21, 2007


[1] Rule 165a provides that a judge may dismiss a case for want of prosecution when any party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice or when the case is not disposed of within the time standards promulgated by the Texas Supreme Court under its Administrative Rules unless, at a dismissal hearing about which the parties are provided adequate notice, good cause is shown for the case to be maintained on the docket. Tex. R. Civ. P. 165a(1), (2).

Motion to Reinstate does not restart appellate time-table

Clock for filing notice of appeal starts ticking when dismissal order is signed. Denial of motion to reinstate is not separately appealable.

Terms: void order, judgment, voidable, non-suit, dismissal, deadline for appeal

McCoy v. North Forest ISD (Tex.App.- Houston [14th Dist.] Nov. 15,2 007)(per curiam)(motion to reinstate, appellate time-table, DWOJ)

M E M O R A N D U M O P I N I O N

Barney L. McCoy attempts to appeal from an order signed March 20, 2007, denying his motion to reinstate the underlying case, in which an order of non-suit was signed May 24, 2001. McCoy filed a motion for rehearing of the denial of his motion to reinstate, and he filed a notice of appeal on June 13, 2007. We dismiss the appeal for want of jurisdiction.

Janice Jackson filed suit against the school district seeking judicial review of a final decision of the Texas Workers' Compensation Commission. McCoy was Jackson's attorney. Pursuant to a settlement agreement, Jackson moved to non-suit the school district, and the trial court signed an order of non-suit on May 24, 2001. On March 1, 2007, McCoy, as a "Party in Interest," moved to reinstate the case, claiming the school district refused to honor the settlement because the underlying judgment is void. Section 410.258(a) of the Texas Labor Code requires any proposed judgment or settlement to be mailed to the executive director of the Workers' Compensation Commission at least 30 days before the judgment is entered. It is undisputed that the proposed judgment was not sent to the director in this case. Section 410.258(f) provides that "[a] judgment entered or settlement approved without complying with the requirements of this section is void." Tex. Lab. Code Ann. ' 410.258(f).

Because it appeared from the record that this court lacks jurisdiction to consider an appeal from a case in which a non-suit was signed in 2001, we notified the parties of our intention to dismiss the appeal for want of jurisdiction unless McCoy filed a response demonstrating both our jurisdiction over this appeal and his standing to bring the appeal as an "Interested Party." See Tex. R. App. P. 42.3(a). McCoy's response fails to demonstrate that this court has jurisdiction over the appeal.

As to his standing to bring this appeal, McCoy asserts that Jackson's current attorney gave his permission, on Jackson's behalf, for him to pursue having the trial court set aside its void judgment. McCoy was not a party to the suit and does not have standing to pursue this appeal. See Gore v. Peck, 191 S.W.3d 927, 929 (Tex. App.-Dallas 2006, no pet.); Johnston v. Crook, 93 S.W.3d 262, 268-69 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

On the jurisdictional question, McCoy cites to Metropolitan Transit Authority v. Jackson, for the proposition a trial court may set aside its void judgment at any time. 212 S.W.3d 797, 802 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). We respectfully disagree with our sister court.

The Texas Supreme Court explicitly disapproved of the proposition that "if a judgment rendered by a trial court is void it may be set aside by that court at any time." Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). After the time has passed to timely file a motion for new trial or regular appeal, the exclusive means by which parties can challenge a final judgment based on an allegation that it is void are by filing a writ of error (now restricted appeal) or by filing a bill of review. McEwen v. Harrison, 345 S.W.2d 706, 709‑11 (Tex. 1961); Skadden v. Alfonso, 217 S.W.3d 611, 619 (Tex. App.-Houston [14 Dist.] 2006, pet. filed).

In its response, the school district agrees that the May 24, 2001, judgment is void for failure to comply with section 410.258 of the Labor Code. It contends, however, that the notice requirement in the Labor Code is a statutory prerequisite and failure to comply did not deprive the trial court of jurisdiction. See Dubai Pet. Co. v. Kazi, 12 S.W.3d 71, 71 (Tex. 2000). Even a void judgment can become final for the purposes of appeal. See Newsom v. Ballinger I.S.D., 213 S.W.3d 375, 380 (Tex. App.-Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 238 (Tex. App.-San Antonio 2004, orig. proceeding).

The May 24, 2001, judgment is final. McCoy's motion to reinstate was untimley. The trial court's order denying McCoy's untimely motion to reinstate the case is not a separately appealable order from which the appellate timetable is calculated. See Weik v. Second Baptist Church, 988 S.W.2d 437, 438 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding that deadline for perfecting appeal runs from date of dismissal order, not from date of trial court's ruling on motion to reinstate); Overka v. Bauri, No. 14‑06‑00083‑CV, 2006 WL 2074688, at *1 (Tex. App.-Houston [14 Dist.] July 27, 2006, no pet.) (mem. op.) (order denying motion for new trial is not appealable). Therefore, the notice of appeal was filed too late to appeal the judgment in this case.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 15, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Naik v. Wu (Tex.App.- Houston [1st Dist.] Feb. 16, 2006)(Keyes)[DWOP, multiple continuances, motion to reinstate denied]AFFIRM TC JUDGMENT: Opinion by Justice KeyesBefore Justices Nuchia, Keyes and Hanks01-04-01127-CV Bharatkumar D. Naik and Janki B. Naik v. Jo-Chin WuAppeal from Co Civil Ct at Law No 4 of Harris County (Hon. Cynthia Crowe)

MEMORANDUM OPINION

Appellant, Bharatkumar D. Naik, brought suit in 1999 against Jo-Chin Wu, appellee, for personal injuries sustained in an automobile accident. The trial court dismissed the case for want of prosecution in 2004. In two issues on appeal, appellant argues that the trial court’s denial of his motion for continuance, order of dismissal, and refusal to reinstate the case constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights.
We affirm.

BACKGROUND

Appellant filed suit against appellee in September 1999, after the two were involved in an automobile accident. Following some discovery activity, the case entered a prolonged period of relative dormancy, being reset approximately ten times between December 21, 2000 and June 29, 2004. Although a number of the resets appear to have been initiated by the trial court itself, at least three resulted from motions filed by appellant. These included the following:

1.On December 8, 2000, appellant filed a verified motion for continuance. Appellant’s motion asserted that his counsel would not be available for trial—then set for January 15, 2001—due to illness. The motion included an affidavit from Douglas J. Stockwell, M.D., indicating that appellant’s counsel, Leonard Cruse, continued to experience complications from a stroke suffered in 1996. Dr. Stockwell’s letter stated that Cruse was expected to make a full recovery. The trial court granted appellant’s motion, which appellee did not oppose.

2.On May 13, 2002, appellant filed a second verified motion for continuance. Appellant’s motion indicated that the scheduled trial date of June 24, 2002 conflicted with appellant’s previously planned vacation to Europe. The trial court granted appellant’s motion, which appellee did not oppose.

3.On June 29, 2004, appellant submitted a third verified motion for continuance. The motion again asserted that Cruse would not be available for trial, which was set to begin on approximately June 29, 2004,

The exact date the trial was scheduled to begin is not clear from the record, although it isclear that the trial was set sometime during the week of June 24, 2004.

because of illness. It included a letter from a physician at the Clear Creek Clinic

The physician’s signature on the letter is not legible.

indicating that Cruse would be unable to perform his duties “for the next two weeks.” The trial court granted appellant’s motion, which appellee did not oppose.
After appellant’s June 29, 2004 motion had been granted, the trial date was reset for July 19, 2004. On or about July 19, 2004, appellant submitted a fourth verified motion for continuance.

It is not clear from the record precisely when this motion was submitted, although thedocket sheet indicates that it was denied on July 19, 2004.

In this motion, which appellee again did not oppose, Cruse indicated that continuing medical conditions precluded him from conducting a trial on July 19. The motion included a letter, again from Dr. Stockwell, indicating that Cruse continued to suffer complications from a stroke he “suffered a few years ago” and that he should be excused from work “for at least the next month.” The trial court denied appellant’s motion, maintaining a trial date of July 19, 2004.

Neither Cruse nor appellant appeared at trial on July 19. Noting that appellant had failed to appear despite being notified of the trial date, the trial court ordered appellant’s action “dismissed for want of prosecution.” Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, appellant filed a motion for reinstatement on August 20, 2004. See Tex. R. Civ. P. 165a(3). Appellee filed a response opposing appellant’s motion for reinstatement on August 30, 2004. After an August 31, 2004 hearing, the trial court denied appellant’s motion for reinstatement. This appeal followed.

DISCUSSION

In two issues on appeal, appellant, in effect, contends that the trial court’s decision to dismiss the case for want of prosecution constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights. Appellant argues that the trial court abused its discretion and violated appellant’s due process rights by denying his fourth motion for continuance, dismissing the case, and denying his motion for reinstatement.

Dismissal and Reinstatement Generally

A trial court possesses the power to dismiss a case pursuant to its inherent authority or Texas Rule of Civil Procedure 165a. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R. Civ. P. 165a. Under Rule 165a, a trial court may dismiss a case on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.” Tex. R. Civ. P. 165a(1). Independent of the Texas Rules of Civil Procedure, a trial court may also order a dismissal when a plaintiff fails to prosecute a case with due diligence. See Villarreal, 994, S.W.2d at 630. Whether it acts under Rule 165a or its inherent authority, a court must provide a party with notice and an opportunity to be heard prior to entering an order of dismissal. Id.; see also Tex. R. Civ. P. 165a(1). Failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal on due process grounds. See Villarreal, 994 S.W.2d at 630–31. Participation in a hearing on a motion to reinstate, however, cures any due process concerns stemming from a failure to provide notice of intent to dismiss. See Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 94–95 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

If a case is dismissed, the adversely affected party may file a verified motion to reinstate. Tex. R. Civ. P. 165a(3). If a motion to reinstate is filed, the court “shall reinstate the case upon finding after a hearing that the failure of the party or his attorney 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.” Id. A failure to appear is not considered intentional or due to conscious indifference simply because it is negligent or even deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).

Standard of Review

We review a denial of a motion for continuance, a dismissal for want of prosecution, and a denial of a motion to reinstate under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (stating that an abuse of discretion standard of review applies to dismissal for want of prosecution); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating that abuse of discretion standard of review applies to decisions to grant or deny motion for continuance). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether or not to grant a motion for continuance, dismissal, or reinstatement, a trial court may consider the entire history of a case, “including the length of time the case was on file, the amount of activity in the case . . . and the existence of reasonable excuses for delay.” See Nawas v. R&S Vending, 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex. App.—Waco 1985, no writ) (stating that in ruling on motion for continuance trial court must examine entire record).

Appellant’s Abuse of Discretion Claims

In his first issue on appeal, appellant claims the trial court abused its discretion by denying appellant’s fourth motion for continuance, ordering dismissal of the case, and rejecting appellant’s motion for reinstatement. The crux of appellant’s argument concerns the trial court’s denial of appellant’s fourth motion for continuance on July 19, 2004. Appellant contends that because the assertions regarding Cruse’s inability to participate at trial on July 19 were not controverted, the trial court was required to accept them as true. According to appellant, if Cruse’s illness irrefutably prevented him from performing his duties, the trial court could not deny appellant’s motion for continuance without abusing its discretion.

We find appellant’s argument to be unpersuasive. First, the cases appellant cites in support of his contention that the trial court must accept uncontroverted facts as true when considering a motion for continuance refer specifically to a party’s first motion, not its fourth.
if( bInlineFloats )

See Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.]1989, writ denied); Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App.—San Antonio 1985,writ ref’d n.r.e.); Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.App.—Galveston 1946, writ ref’d n.r.e.).

Nevertheless, even assuming that the trial court was required to accept the assertions in appellant’s fourth motion for continuance as true, we cannot say that the trial court abused its discretion by denying appellant’s motion.

Because there is no reporter’s record or findings of fact and conclusions of law, it isimpossible to know whether or not the trial court accepted as true appellant’s contentionsregarding Cruse’s medical condition. Therefore, we must affirm on the basis of any legaltheory supported by the record. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

The trial court need not have doubted that Cruse was medically unfit for trial to deny appellant’s motion without abusing its discretion. Twice appellant had sought and received continuances due to Cruse’s medical condition, the onset of which appears to have dated to 1996. When appellant sought a third continuance due to Cruse’s same medical condition, it was reasonable for the trial court to conclude that Cruse’s condition might not resolve itself within a reasonable amount of time. Indeed, appellant’s motion indicated that Cruse was suffering complications identical to those he reported in his December 8, 2000 motion for continuance, suggesting that Cruse’s condition had not improved in four years. Considering that trial courts possess wide latitude to manage their dockets,

See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). Close it was reasonable for the court here, absent any certainty that Cruse would recover within a reasonable time, to deny appellant’s motion.
Once one concludes that it was not an abuse of discretion to deny appellant’s fourth motion for continuance, it logically follows that the trial court did not abuse its discretion when it dismissed appellant’s case after appellant failed to appear for trial on July 19, 2004. See e.g. Tex. R. Civ. P. 165a(1) (stating that trial courts may dismiss cases for failure to appear). Thus, we turn to appellant’s contentions regarding the trial court’s denial of his motion to reinstate.
As noted, Texas Rule of Civil Procedure 165a(3) provides that when a case is dismissed for want of prosecution, “the court shall reinstate the case upon finding, after a hearing, that the failure of the party or his attorney [to appear] 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). Appellant contends that the trial court was required to reinstate his case because his failure to appear was “otherwise reasonably explained” by the existence of Cruse’s medical condition. Thus in effect, appellant argues that the trial court was required to grant his motion for reinstatement on the exact same grounds that it rejected his motion for continuance. Appellant’s contention ignores the trial court’s legitimate concerns regarding the ability of Cruse to be fit for trial within a reasonable time. Because appellant advanced no new arguments at the hearing for reinstatement, simply reiterating the fact that Cruse was ill, we conclude that appellant did not provide an adequate justification for his failure to appear. See Smith, 913 S.W.2d at 468.
We overrule appellant’s first issue on appeal.
Appellant’s Due Process Claims
In his second issue on appeal, appellant in effect contends that his right to due process was violated when the trial court dismissed his suit and denied his motion for reinstatement. Rule 38 of the Texas Rules of Appellate Procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(h); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). The failure to adequately brief an issue by not providing authorities and record citations waives any error on appeal. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“The Court does not represent the appellant and has no duty to search for pertinent authority.”). In view of appellant’s failure to provide authorities or record citations for his due process claims,


Appellant generally refers to due process rights under the Fourteenth Amendment of theU.S. Constitution and article I, section 19 of the Texas Constitution. See U.S. Const.amend. XIV; Tex. Const. art. I, § 19.

we conclude that appellant has waived his second issue.

We overrule appellant’s second issue on appeal. CONCLUSION

We affirm the judgment of the trial court.


Evelyn V. Keyes
Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.

TRCP 165a - Keough v. Cyrus (Tex.App.- Houston [14th Dist.] 2006)

Keough v. Cyrus , No. 14-04-00660 (Tex.App.–Houston [14th Dist.] July 13, 2006)(majority opinion by Justice Eva Guzman on motion for rehearing)(dismissal to suit for failure to appear, dismissed for want of prosecution, DWOP, denial of motion to reinstate affirmed, lack of evidence to support motion]
Full case style: Ann Keough v. Cyrus USA Inc. d/b/a Ace Limousine Services and Hamid Reza Mirabi
Appeal from Co Civil Ct at Law No 4 of Harris County
Dissenting Opinion by Justice Edelman (on motion for rehearing)

M A J O R I T Y O P I N I O N O N R E H E A R I N G

We grant appellees' motion for rehearing, withdraw the majority and dissenting opinions issued on December 15, 2005, and issue the following majority and dissenting opinions on rehearing.
In this appeal, we determine whether the trial court abused its discretion by denying appellant Ann Keough's motion to reinstate her lawsuit. Because Keough offered no evidence: (1) she was unaware of her attorney's disbarment or of the trial setting, (2) supporting her explanation for her failure to attend trial or to obtain other counsel, and (3) she diligently prosecuted her case, we affirm.

I. Factual and Procedural History

Keough filed this suit on September 2, 1998 against appellees Cyrus U.S.A., Inc. d/b/a Ace Limousine Service and Hamid Reza Mirabi (collectively, "Cyrus"). Over the course of five-and-one-half years, the case was dismissed for want of prosecution, reinstated, continued five times, and repeatedly reset for trial.

On February 3, 2004, Keough and her counsel failed to appear for trial, and Cyrus moved to dismiss the case. On February 9, 2004, the trial court ordered the case dismissed with prejudice. In its order of dismissal, the trial court noted that both Keough and her counsel failed to appear at trial; that proper notice was sent to counsel of record advising counsel of the trial setting; and that the case had been set for trial seven times in the preceding twenty-one months. In response to the dismissal, Keough filed a verified motion to reinstate alleging:
This case was dismissed by an order signed on the 9th of February, 2004, for want of prosecution due to the inability of the counsel of record to appear before this court and prosecute this action. This failure was not intentional or the result of conscious indifference but unavoidable, in that counsel of record, Zerrie L. Hines, was and remains under disciplinary proceedings before the Board of Disciplinary Appeals, and therefore, unable to engage in the practice of law pending the favorable outcome of his appeal.

No evidence accompanied Keough's motion; however, Cyrus responded with evidence that Keough's attorney had been disbarred on December 22, 2003. The trial court denied Keough's motion to reinstate without stating its reasons, and this appeal ensued.

II. Issue Presented

The sole issue presented for review is whether the trial court abused its discretion by denying Keough's motion to reinstate. At the outset, we note that the trial court may have dismissed the case because Keough and her counsel failed to appear at trial. See Tex. R. Civ. P. 165a. Alternatively, it may have dismissed the case pursuant to its inherent authority to dismiss cases for want of prosecution. See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We therefore discuss both grounds. Because the dissent would reverse based in part on its assumption that the trial court failed to notify Keough of its intent to dismiss the case, we also address that subject.

III. Standard of Review

We review a trial court's denial of a motion to reinstate for abuse of discretion. Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 96 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). If an order dismissing a case does not state the grounds on which it was granted, the party seeking reinstatement must negate all possible grounds for dismissal. See Shook v. Gilmore & Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex. App.-Waco 1997, pet. denied); see also Polk, 165 S.W.3d at 96-97 (affirming denial of reinstatement when the plaintiff produced evidence her trial counsel was absent from trial due to illness, but failed to produce evidence the case had been diligently prosecuted). The movant for reinstatement bears the burden to produce evidence supporting the motion. See Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. App.-Houston [14th Dist.] 1975, no writ) ("The failure of the plaintiff to offer proof of his grounds for reinstatement justified the court's denial of his motion . . . ."); see also HRN, Inc. v. Shell Oil Co., 102 S.W.3d 205, 217 (Tex. App.-Houston [14th Dist.] 2003), rev'd on other grounds, 144 S.W.3d 429 (Tex. 2004) (affirming denial of reinstatement when movant alleged compliance with discovery orders but produced no evidence of compliance).

IV. Discussion

A. Failure to Appear at Trial

Keough asserts she was unaware her attorney had been disbarred or trial had been set, and argues she was unable to secure other counsel before trial. She did not produce evidence supporting these contentions to the trial court. In the absence of evidence, a trial court does not abuse its discretion by denying a motion to reinstate. See Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995) ("Proof of such justification - accident, mistake or other reasonable explanation - negates the intent or conscious indifference for which reinstatement can be denied.").[1]

B. Want of Prosecution

Keough contends the trial court dismissed her case and denied reinstatement based on her counsel's failure to appear at trial. As a result, Keough does not address alternative grounds for these orders. Thus, even if we agreed with the dissent that Keough offered a reasonable explanation for her attorney's failure to appear at trial, this omission would still lead us to conclude the trial court did not abuse its discretion by denying reinstatement.

In dismissing the case and denying reinstatement, the trial court expressly considered factors other than the failure of Keough and her counsel to appear at trial. In its order dismissing the case, the trial court emphasized the case had been set for trial seven times in approximately twenty-one months. The trial court also states in its order that it reviewed the pleadings and docket entries in the matter. The record shows the case had been on file since 1998; it already had been reinstated after a prior dismissal for want of prosecution; and previous trial settings had been continued at Keough's request on more than one occasion.

These factors pertain to diligent prosecution, and the trial court need not have considered them if it dismissed the case solely because Keough and her counsel did not appear at trial. See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.CHouston [14th Dist.] 1993, no writ) (when deciding whether to dismiss a case for want of prosecution, the court may consider the amount of activity in the case, the length of time the case was on file, requests for a trial date, and the existence of reasonable excuses for delay). Because the trial court may have dismissed the case for want of prosecution, Keough was required to address this basis for dismissal in her motion to reinstate and on appeal.

Given the history of the case and Keough's failure to produce evidence supporting her motion to reinstate, we hold the trial court did not abuse its discretion by denying reinstatement. Even if we agreed with the dissent that Keough's verified motion to reinstate offers a reasonable explanation for her prior counsel's absence from trial, the motion does not explain her own absence, her failure to secure other counsel, or her failure to request a continuance. Though Keough's successor counsel asserted Keough had no knowledge of the trial setting or the disciplinary proceedings, Keough offered no evidence supporting these contentions. Moreover, these arguments only pertain to failure to appear and prosecute the case on the date of trial, and do not address Keough's failure to diligently prosecute her case at any other time.

C. Notice of Intent to Dismiss

The rules of civil procedure and due process require trial courts to provide litigants with notice and an opportunity to be heard before the court dismisses the case. Tex. R. Civ. P. 165a; Polk, 165 S.W.3d at 94. Although Keough does not claim the trial court failed to notify her or trial counsel of its intent to dismiss her case, the dissent assumes such a failure occurred, and would reverse based in part on this assumption.[2]

Because the record is silent as to whether the trial court notified Keough or her counsel of its intent to dismiss, no error is apparent on the face of the record. See Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 849B50 (Tex. 2004) ("[M]ere silence as to whether notice [of intent to dismiss] was sent does not establish that notice was not sent . . . ."). Moreover, if no notice was sent, Keough=s failure to raise the issue in the trial court and to brief it on appeal waives the error. See Tex. R. App. P. 33.1, 38.1(h). Even assuming for the sake of argument that no notice was sent and that we properly may raise the issue sua sponte, a trial court does not abuse its discretion by denying a motion to reinstate if the movant (a) receives notice of the actual order of dismissal in time to file a motion to reinstate, and (b) has an opportunity to be heard on the motion. See, e.g., Polk, 165 S.W.3d at 94B95; Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex. App.-Houston [14th Dist.] 1999, no pet.); see also Wright v. Tex. Dept. of Criminal Justice-Institutional Div., 137 S.W.3d 693, 695 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648-50 (Tex. App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 400-04 (Tex. App.-Dallas 2001, pet. denied). Keough received actual notice of the order of dismissal and timely filed a motion to reinstate. There is no indication she did not have an opportunity to be heard.[3] Thus, if the trial court failed to notify Keough of its intent to dismiss her case, the error was cured.

V. Conclusion

Because the trial court could properly dismiss Keough=s case pursuant to Rule 165a or its inherent authority to dismiss cases for want of prosecution, and because Keough failed to produce evidence in support of her motion to reinstate negating both of these grounds for dismissal, the trial court did not abuse its discretion by denying her motion for reinstatement. The judgment of the court below is affirmed.

/s/ Eva M. Guzman, Justice

Judgment rendered and Majority and Dissenting Opinions on Rehearing filed July 13, 2006.
Panel consists of Justices Edelman, Seymore, and Guzman. (Edelman, J., dissenting).

[1] The dissent cites Smith for the proposition that justification requiring reinstatement does not require a reasonable justification for making the mistake, but only a justification consisting of a mistake. While Smith excuses an attorney=s failure to appear at trial when that failure is based on a mistake, even if the mistake is not reasonable, this proposition does not apply to the present case. In her motion to reinstate, Keough did not allege an accident or mistake caused her or her attorney to be absent from trial. See Tex. R. Civ. P. 165a(3) (the trial court must reinstate a case dismissed for failure to appear if it finds the failure "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."). Moreover, Smith requires proof of accident or mistake, and Keough produced no such evidence. See also Nichols v. TMJ Co., 742 S.W.2d 828, 831 (Tex. App.-Dallas 1987, no writ) ("In determining whether [a party] has met his burden of negating intentional or consciously indifferent conduct, however, a court need not accept unsupported conclusory statements.").
[2] On appeal, Keough contends the trial court=s notice to her prior counsel of the February 3, 2004 trial setting does not constitute notice to her because the attorney-client relationship was terminated as a matter of law when her counsel was disbarred. Because this argument was not presented to the trial court, it does not constitute grounds for reversal on appeal. See Tex. R. App. P. 33.1. Moreover, Keough's trial counsel sought and obtained the February, 2003 trial setting more than two months before he was disbarred; thus, his knowledge of the trial setting is imputed to Keough. See McMahan v. Greenwood, 108 S.W.3d 467, 480B81 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (knowledge acquired by an attorney during the existence of an attorney‑client relationship, and while acting in the scope of his or her authority, is imputed to the client).
[3] The record does not show Keough requested a hearing. Before trial court error can be found in the failure to set a hearing on a motion to reinstate, the movant must request a hearing. Cabrera v. Cedarapids, Inc., 834 S.W.2d 615, 618 (Tex. App.-Houston [14th Dist.] 1992, writ denied).

TRCP165a - Guest v. Dixon (Tex. 2006)

Guest v. Dixon, M.D., No. 04-0128 (Tex. Jun. 16, 2006)(per curiam opinion)(dismissal for want of prosecution, DWOP, reinstatement, requisites for motion to reinstate DWOPPED case, appellate procedure, time table for filing appeal, extension of dealine to file notice of appeal)

Rule 165a(3) of the Texas Rules of Civil Procedure provides that a timely motion to reinstate a case that has been dismissed for want of prosecution extends the deadline to perfect appeal.[1]

The rule also states: “A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney.” A divided court of appeals held that a motion to reinstate supported only by the affidavit of the movant’s former attorney in the case does not extend the deadline for appeal. 153 S.W.3d 466 (Tex. App.–Amarillo 2004). We disagree.

Petitioner Anita Guest and her husband James sued respondent Dr. Austin Dixon and others for medical malpractice. Nearly seven years later, and five years after James had died, Dixon, the only remaining defendant, moved to dismiss the case for want of prosecution. Guest took five months to respond to the motion, and after a hearing, the trial court granted it. Guest then filed a motion to reinstate[2] supported by the affidavit of a lawyer who had acted as co-counsel for her along with other lawyers in his firm for almost all of the time the case had been pending but who, according to his affidavit, had withdrawn from the firm before the case was dismissed. The affidavit discussed the history of the prosecution of the case based on the lawyer’s personal knowledge. The trial court denied the motion, and Guest filed a notice of appeal 89 days after the judgment was signed.

The court of appeals dismissed the appeal for want of jurisdiction, holding that “because the motion to reinstate was not properly verified, it did not operate to extend the deadline for filing the notice of appeal”.[3] The court believed that a contrary case, 3V, Inc. v. JTS Enterprises, Inc.,[4] was distinguishable.[5] The dissent argued that the motion was sufficiently verified.[6]

We held in Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986) (per curiam), and again in McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam), that an unverified motion to reinstate does not extend the deadline for perfecting appeal. Since those cases we have repeatedly stressed that procedural rules should be construed and applied so that the right of appeal is not unnecessarily lost to technicalities.[7] Assuming that the rule in Butts and McConnell survives our later cases, we think the motion in this case was properly verified because it was supported by the affidavit of Guest’s attorney for much of the time the case was pending, who was aware of the facts regarding its prosecution. That was sufficient to satisfy Rule 165a. To hold that the motion could not be supported by the affidavit of Guest’s former attorney could deprive the party of the best evidence available. The rule does not require such a result.
Dixon also argues that the motion to reinstate was not properly verified because Guest’s former attorney ceased his representation nearly two years before the motion was filed and therefore could not account for any lack of activity during that period. But while the attorney’s lack of knowledge may go to the merits of the reinstatement motion, it does not deprive the court of jurisdiction.

Accordingly, we grant Guest’s petition for review and, without hearing oral argument, Tex. R. App. P. 59.1, reverse the judgment of the court of appeals and remand the case to that court for consideration of the other arguments raised by the appeal.

Opinion delivered: June 16, 2006.

[1] Tex. R. Civ. P. 165a(3) (“In the event for any reason a motion for reinstatement is not decided by signed written order within seventy‑five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.”).
[2] As the court of appeals’ opinion reflects, the motion was filed 32 days after the judgment was signed. Id. at 467. The record does not reflect whether the motion was timely. Neither Dixon nor the court of appeals asserts that the motion was not timely.
[3] 153 S.W.3d at 468.
[4] 40 S.W.3d 533 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (rejecting the contention as “a hypertechnical argument we cannot sustain” that a motion to reinstate was not verified because it was supported by affidavits of the movant’s arbitration lawyers, neither of whom was a lawyer in the case, explaining how the arbitration proceedings had delayed the case).
[5] 153 S.W.3d at 468 (concluding that even though the lawyers did not represent the corporation in the case, they were nevertheless its agents).
[6] Id. at 469 (Campbell, J., dissenting).
[7] Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616‑617 (Tex. 1997)); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 717 (Tex. 2003) (referring to “our oft‑repeated position that a party should not lose the right to appeal because of an ‘overly technical’ application of the law”); Verburgt, 959 S.W.2d at 616-617 (“[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.”); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (“It is our policy to construe rules reasonably but liberally, when possible, so that the right to appeal is not lost by creating a requirement not absolutely necessary from the literal words of the rule.”); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121‑122 (Tex. 1991) (stating that procedural rules should be “liberally construed so that the decisions of the courts of appeals turn on substance rather than procedural technicality”).

Alexander v. Lynda's Boutique (Tex. 2004)

Texas Supreme Court disagrees with court of appeal on whether court's notice of intent to dismiss was adequate. Trial court had dismissed case for failure to appear at pretrial conference. Plaintiff's new attorney did not file motion to reinstate, but filed restriced appeal instead. Supreme Court holds that affidavit submitted in the court of appeals explaining problems with the case constituted extrinsic evidence that may not be considered in restricted appeal. Such evidence may be presented and considered on motion for new trial in the court below, or in bill of review proceeding. Court of Appeals' ruling favoring plaintiff is reversed. Supreme Court renders dismissal judgment in favor of defendant.

Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (Tex. Sup. Ct.) (case properly dismissed for failure to appear at pretrial conference; notice of intent to dismiss in notice of pretrial conference was adequate under Rule 165a; no separate dismissal hearing necessary)

There are two issues in this restricted appeal. The first is whether Texas Rule of Civil Procedure 165a(1)[1] requires that a separate hearing to adjudicate dismissal be held before a trial court may dismiss a case for want of prosecution for failure to appear at a pre-trial hearing when notice of that pre-trial hearing stated that failure to appear may result in dismissal.

The second issue is whether the notice of a pre-trial conference in this case adequately reflected the trial court's intent to dismiss for failure to appear. We hold that Rule 165a(1) does not require a separate hearing and that the notice in this case adequately apprised the parties of the trial court's intent to dismiss for failure to attend a pre-trial conference. Because the trial court did not err in dismissing this case, we accordingly reverse the court of appeals' judgment[2] and render judgment dismissing the plaintiff's case.

I

Lynda's Boutique and George Alexander d/b/a Zentner's Daughter Steakhouse (Alexander) are businesses located adjacent to one another in San Angelo, Texas. On May 6, 1999, Lynda's Boutique sued Alexander for negligence and gross negligence after a fire spread from Alexander's building to Lynda's Boutique.

In an order signed January 18, 2000, the trial court directed the parties to appear at a Rule 166[3] pre-trial scheduling conference on March 6, 2000. The court's order stated:

ATTENDANCE IS MANDATORY. The Court may excuse counsel under the following circumstances ONLY:

1. Submission by counsel of a proposed Agreed Scheduling Order . . . Counsel is not excused from attendance unless notified that the Court has approved the Agreed Scheduling Order.

2. For other compelling and urgent reason deemed appropriate by the Court.

Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate.

Lynda's Boutique did not appear at the scheduling conference. The trial court dismissed the case for want of prosecution four days after the hearing in an order dated March 10, 2000. There is no indication in the record that the court gave further notice or held an additional hearing before dismissing the case.

Lynda's Boutique did not file a motion to reinstate under Rule 165a(3).[4] On July 12, 2000, it filed notice of a restricted appeal challenging the trial court's dismissal order.[5] On appeal, Lynda's Boutique asserted that it did not discover the case had been dismissed until July 5, 2000, after the deadline to file a motion to reinstate had passed.[6] Lynda's Boutique contended that there were errors apparent from the face of the record, which it said were: 1) the trial court's record does not reflect that notice of the March 6, 2000 scheduling conference was sent; 2) the trial court failed to hold a dismissal hearing; and 3) the trial court's record does not reflect that the order dismissing the case was sent to counsel of record's address.

The court of appeals ordered the trial court to reinstate the case, holding that the order setting the scheduling conference did not sufficiently apprise the parties of the trial court's intent to dismiss the case for want of prosecution because the order said that dismissal for want of prosecution was only "one of the possible sanctions listed in the order" for failure to attend.[7]

The court of appeals further held that Rule 165a(1) requires a trial court to give notice of and hold a separate dismissal hearing "where a party may be provided an opportunity to explain his failure to appear" before the court can dismiss a case for failure of a party to attend a scheduled hearing.[8]

Because the notice of the scheduling conference met the requirements of Rule 165a(1), and because the trial court did not err in dismissing the case, we reverse the court of appeals' judgment.

II

To prevail on its restricted appeal, Lynda's Boutique must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.[9]

Only the fourth element is at issue.

Counsel for Lynda's Boutique relies in part on an affidavit that was executed after the case had reached this Court.[10] However, we may not consider it. The affidavit constitutes extrinsic evidence that cannot be considered in a restricted appeal. As we explained in General Electric Co. v. Falcon Ridge Apartments, Joint Venture,[11] if extrinsic evidence is necessary, it should be presented in a motion for new trial or a bill of review:

The rule has long been that evidence not before the trial court prior to final judgment may not be considered in a writ of error proceeding. . . . Our system is founded upon a belief that trial courts should first be given the opportunity to consider and weigh factual evidence. Permitting challenge to a judgment based on affidavits first filed in the appellate court undermines this judicial structure. The appropriate remedy when extrinsic evidence is necessary to the challenge of a judgment is by motion for new trial, Tex.R.Civ.P. 320, or by bill of review filed in the trial court.[12]

Our decision in General Electric is dispositive of another issue in this appeal, which is whether the failure of the record to affirmatively show that notice of the pre-trial hearing was sent to counsel or that notice of the order dismissing the case was sent to counsel at a particular address is error on the face of the record. It is not.

In General Electric, the plaintiff whose case had been dismissed for want of prosecution filed an appeal by writ of error pursuant to former Texas Rule of Appellate Procedure 45. (The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30.) The record in General Electric was devoid of any indication that notice of a dismissal hearing had been issued or sent, and the plaintiff alleged that it had not received any notice that the trial court intended to dismiss for want of prosecution. The plaintiff tendered affidavits of its counsel and the district clerk averring that notice was neither given nor received. After explaining why we could not consider the affidavits, we held that when the record is silent as to whether notice was provided, there is no error apparent on the face of the record: "The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error."[13]

The absence of proof from the face of the record either way was just that - an absence of proof of error. We explained that this was not "an impermissible presumption in favor of the judgment, which is prohibited in a writ of error proceeding."[14] That is because the clerk has an affirmative duty under Rule 165a to give notice, but no duty to affirmatively show in the record that such notice was given:

Rule 165a, Texas Rules of Civil Procedure, which governs dismissals for want of prosecution, directs the district clerk to mail to counsel of record and to each party not represented by counsel a notice containing the date and place of the hearing at which the court intends to dismiss. A similar notice of the signing of the order of dismissal is also required. Tex.R.Civ.P. 165a, 306a. The rules do not, however, impose upon the clerk the duty to note on the docket sheet the fact of mailing such notices. Consequently, in cases dismissed for want of prosecution, the record is ordinarily silent as to whether or not the required notices were given.

There is thus nothing in the transcript before us that affirmatively indicates that notice was given, nor any notation to establish that notice was omitted. . . . The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error.[15]

Accordingly, the fact that the record is silent about the sending of notices under Rule 165a does not establish error on the face of the record. And mere silence as to whether notice was sent does not establish that notice was not sent or that it was sent to the wrong address. Accordingly, when the record does not reflect whether notice was sent, that is insufficient to establish reversible error in a restricted appeal proceeding.

Lynda's Boutique argues that General Electric is distinguishable because the record in this case is not entirely silent, at least as to whether notice of the order actually dismissing the case was sent to Lynda's Boutique. The order dismissing the case says at the bottom:

Xc: Webb, Frank J.
Bale, Larry W.

Lynda's Boutique argues that the absence of an address for Frank J. Webb, its attorney of record at the time the order was signed, is error on the face of the record. Lynda's Boutique cites General Motors Acceptance Corp. v. City of Houston.[16] In that case, the notice of intent to dismiss, and subsequently the dismissal order sent by the trial court, omitted part of the law firm name of appellant's counsel and the suite number of the building in which that firm was located. This incomplete firm name and address had been supplied by appellant's counsel in a motion it had previously filed, although the complete address was included in appellant's original petition instituting suit and the service of citation. The court of appeals held that the incomplete address on the notice of intent to dismiss and on the order dismissing the case constituted errors apparent on the face of the record.[17] We need not decide whether General Motors Acceptance Corp. was correctly decided. It is factually distinguishable.

In this case, the record does not reflect the addresses to which either the notice of the pre-trial hearing or the notice of the dismissal order were mailed. There is no indication from the face of the record that either notice was sent to an incorrect address. The face of the record therefore gives no indication that the trial court failed to provide Lynda's Boutique notice of either the pre-trial hearing or the order dismissing the case for failure to attend that hearing.

III

We now consider whether the order setting the pre-trial hearing comports with Rule 165a(1) and whether Rule 165a(1) permitted the trial court to dismiss this case for failure to appear without setting an additional hearing.

A court may dismiss a case for want of prosecution under either Rule 165a or under its common law inherent authority.[18]

This case concerns only the trial court's authority to dismiss under Rule 165a(1). Rule 165a(1) states in pertinent part:

1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket.[19]

The rule clearly states that a trial court may dismiss a case "on failure of any party seeking affirmative relief to appear for any hearing or trial." It also requires that notice of the court's intention to dismiss and the date and place of "the dismissal hearing" be sent to each attorney of record. Lynda's Boutique argues that the trial court's order setting the pre-trial conference does not give notice that the purpose of that hearing was to determine whether the case should be dismissed for want of prosecution. The court of appeals agreed, concluding that because the order setting the scheduling conference stated that dismissal was only one of a number of possible consequences for failure to appear, it was "unclear whether dismissal [would] automatically result without the benefit of a hearing."[20] The court of appeals further concluded that the scheduling order did not give Anotice of the date and location of a dismissal hearing,"[21] saying:

It is clear from this notation on the docket sheet that the sole purpose of the hearing set for March 6 was to conduct a scheduling conference, that the case was dismissed for want of prosecution as a direct result of counsel's failure to appear at the scheduling conference, and that the trial court did not first conduct a noticed dismissal hearing. We thus conclude that the trial court did not provide sufficient notice of its intent to dismiss, did not afford Lynda's Boutique an opportunity to be heard, and that this error is apparent on the face of the record.[22]

We disagree with this analysis. The order setting the pre-trial conference plainly warned the litigants that they could expect the trial court to dismiss the case for want of prosecution if Lynda's Boutique failed to attend: "Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate." The fact that the trial court said that it might order sanctions in addition or as an alternative to dismissal did not diminish the warning that dismissal was at issue. The fact that the order in this case explicitly states that the court could order lesser or alternative sanctions does nothing more than state the court's inherent authority.

Both Lynda's Boutique and the court of appeals have cited Brown v. Brookshires Grocery Store[23] for the proposition that a failure to conduct a dismissal hearing is error that is apparent from the face of the record. But the notice in Brown is different from the notice in this case. The notice in Brown said that the case would be dismissed for want of prosecution unless a written request for a setting or written showing for a continuance was made within fifteen days, but no definite date or time was set for a hearing on any matter. The plaintiff responded to the trial court's letter, referring to a request for a jury trial filed several months earlier along with payment of the jury fee. Despite this response, the trial court signed an order dismissing the case for want of prosecution, citing Rule 165a. The court of appeals concluded the notice was insufficient under Rule 165a because it did not include a date and place for a dismissal hearing.[24] The court also held that the trial court's failure to provide an opportunity for an oral hearing before dismissal was reversible error.[25]

Here, the parties were told to appear on a specific day at a specific time and that if they did not do so, the case could be dismissed for want of prosecution. They were told when and where to appear and what the adverse consequences could be if they did not appear.

The notice and Lynda's Boutique's conduct in this case also differ from the notice and the plaintiff's conduct at issue in Villareal v. San Antonio Truck & Equipment.[26] In Villareal, the notice informed the plaintiff, "YOU ARE REQUESTED TO BE PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS MADE, THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION."[27] Counsel for the plaintiff appeared at the hearing, announced that he was ready, and filed a motion to set the case on the jury docket. The trial court nevertheless dismissed the case. We held this was error because the plaintiff did precisely what the notice said was necessary to avoid dismissal B appear and announce ready for trial.[28]

Unlike the plaintiff in Villareal, Lynda's Boutique did not comply with the express requirements of the trial court's order setting the pre-trial conference, which gave Lynda's Boutique notice of at least two things. First, there was to be a scheduling hearing, and second, dismissal could result if Lynda's Boutique did not appear at that hearing. Rule 165a(1) does not preclude a trial court from scheduling a pre-trial hearing, giving notice that failure to attend that hearing may result in dismissal for want of prosecution, and also deciding at that hearing whether the case should be dismissed for want of prosecution if a party seeking relief fails to attend.

All Rule 165a(1) requires is notice of intent to dismiss and of a date, time, and place for the hearing.

Because the notice in this case clearly set a date and time for a hearing and clearly stated that the parties could expect the court to dismiss the case for want of prosecution for nonattendance, the order satisfies any requirement that there be notice and an opportunity to be heard before a case is dismissed for want of prosecution.[29]

The right to seek reinstatement as provided in Rule 165a(3), a restricted appeal in the appropriate case, and procedures for a bill of review will generally satisfy any due process concerns that might arise in this context.[30]
* * * * *
For the foregoing reasons, we hold that the trial court did not err in dismissing this case for want of prosecution. We therefore reverse the court of appeals' judgment and render judgment dismissing Lynda's Boutique's claims against Alexander.

____________________________________
Priscilla R. Owen
Justice

OPINION DELIVERED: May 14, 2004

[1] Tex. R. Civ. P. 165a.
[2] 96 S.W.3d 328.
[3] Tex. R. Civ. P. 166.
[4] Id. 165a(3) ("The Court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney 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.").
[5] See Tex. R. App. P. 30. Rule 30 provides:

Rule 30. RESTRICTED APPEAL TO COURT OF APPEALS IN CIVIL CASES

A party who did not participate - either in person or through counsel- in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.

[6] See Tex. R. Civ. P. 165a(3) (motion to reinstate must be filed within thirty days after the trial court signs the dismissal order); id. 306a(4) (if party does not receive notice or actual knowledge within twenty days of the signing of a judgment or other appealable order, the time period runs from the date the party receives notice or has actual knowledge, but in no event shall periods begin more than ninety days after the judgment or order is signed); see also Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) ("A party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement.").
[7] 96 S.W.3d at 331 (emphasis in original).
[8] Id. at 331-32.
[9] Tex. R. App. P. 26.1(c), 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999).
[10] The affidavit of counsel, Russell Bowman, says that when this case was in the trial court, an associate was counsel of record. That associate's employment was terminated at the end of February 2000, more than a month after the trial court signed the January 18, 2000 order directing the parties to attend the pre-trial scheduling conference. The affidavit further says that by the end of March 2000, the transfer of files from the associate to Bowman was completed, and that "it took some time for me to get up to speed on the cases." Counsel avers that he filed a "notice of attorney in charge" on July 3, 2000, began reviewing this case July 4, 2000 and called the clerk's office July 5, 2000, when he was told the case had been dismissed for want of prosecution on March 10, 2000. The affidavit also states that counsel began reviewing all mail addressed to his former associate from the end of February 2000 on, and that no notice of the pre-trial conference was in that mail. The affidavit says that the former associate did not inform counsel of the pre-trial conference at the time he was terminated and that the former associate took his calendar with him. It further says that counsel did not receive the "file documents" in this case, including the pleadings, until after the March 6, 2000 hearing had occurred. The affidavit does not say that notice of the hearing was missing from the files that counsel received from his former associate. Nor does it say that counsel of record for Lynda's Boutique in January and February of 2000 failed to receive notice of the pre-trial hearing.
[11] 811 S.W.2d 942 (Tex. 1991).
[12] Id. at 944 (citations omitted).
[13] Id.
[14] Id. at 943.
[15] Id. at 943-44.
[16] 857 S.W.2d 731 (Tex. App.-Houston [14th Dist.] 1993, no writ).
[17] Id. at 733-34.
[18] Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
[19] Tex. R. Civ. P. 165a(1).
[20] 96 S.W.3d at 331.
[21] Id.
[22] Id. at 332.
[23] 10 S.W.3d 351 (Tex. App.BDallas 1999, pet. denied).
[24] Id. at 353-54.
[25] Id. at 354.
[26] 994 S.W.2d 628 (Tex. 1999).
[27] Id. at 629.
[28] Id. at 632.
[29] See id. at 630. But see generally Link v. Wabash R.R., 370 U.S. 626 (1962) (the U.S. Constitution does not require prior notice of intent to dismiss and a hearing before a case can be dismissed for want of prosecution).
[30] See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86 (1988)).
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Practice lesson: On taking over a pending case, check all deadlines and settings with the court/clerk, rather than merely reviewing the content of the law firm or attorney file.

165a - DWOP and Motion to Reinstate

Tex. R. Civ. P. 165a DISMISSAL FOR WANT OF PROSECUTION

1. Failure to Appear for Trial or Hearing
2. Non-compliance with Time Standards
3. Reinstatement [Procedure the get case re-instated by Motion to Reinstate]
4. Cumulative Remedies

Other vehicles: Motion to Set Aside Dismissal Order - Motion for New Trial