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).