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.
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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.