Hearing on Motion to Reinstate Can Cure Error in Notice or Render it Harmless

What is the effect of filing - and obtaining a hearing on - a motion to reinstate a case terminated by dismissal for want of prosecution? A recent appellate decision from the First Court of Appeals in Houston in a high-profile case supports the proposition that such a hearing provides a substitute for proper notice of intent to dismiss and an opportunity to object and be heard on the issue. Since the hearing on the motion to reinstate/for new trial after the DWOP allows the aggrieved party an opportunity to show why the case should remain on the court's docket, any due process violation would be cured at that point, or rendered harmless error, which does not provide grounds for reversal on appeal.

THE RELEVANT SECTION OF THE OPINION IS REPRODUCED BELOW, FOLLOWED BY THE CASE CITE

Dismissal for Want of Prosecution

Appellants argue in their second point of error that the trial court erred in dismissing their suit forwant of prosecution and request that the trial court’s dismissal be reversed.

The trial court signed an order on July 21, 2004, dismissing appellants’ suit for want of prosecution because no final arbitration hearing had commenced by July 9, 2004, as ordered.

As an initial matter, appellants claim that the trial court’s order threatening dismissal unless arbitration was commenced by July9, 2004 was not a notice of trial or “dispositive” setting and that the court could not dismiss until givingadditional notice of potential dismissal with a hearing on a date certain. Appellants further claim that theywere confused as to precisely what actions had to be taken to avoid dismissal. Finally, appellants claim that they received no notice of the trial court’s order informing them that “unless a final hearing on Plaintiff’sclaims has commenced before the American Arbitration Association on or before July 9, 2004, Plaintiff’sclaims shall be DISMISSED FOR WANT OF PROSECUTION.”

Even assuming that appellants received no notice of the trial court’s intention to dismiss their suit for want of prosecution, we hold that any such error was harmless because appellants were given an opportunity to be heard on their motion to reinstate, filed after the dismissal for want of prosecution. See Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied).

Appellants filed a “Motion for Reinstatement and/or New Trial,” which contained arguments identical to those presented on appeal. After a full hearing on August 20, 2004, the trial court denied appellants’ motion. If a party receives the same hearing before the trial court that it would have had before the dismissal was signed, no harmful error is committed. Id. at 403.

Jimenez v. Transwestern Property Company, 999 S.W.2d125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.), also shows that any error did not harm the appellants. In that case, the appellant was not given notice of the trial court’s intent to dismiss for want of prosecution but was given a hearing on the motion to reinstate. Id. at 129. The court held that the hearing on appellant’s motion to reinstate “satisfied the due process rights applicable to the dismissal of his case.”Id. Therefore, assuming without deciding that the trial court erred in dismissing appellants’ case, we hold thatsuch error was harmless. Id. We overrule appellants’ second point of error.

Conclusion

We affirm the judgment of the trial court.

Chambers vs. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Taft) (opinion on remand from the Texas Supreme Court) (mostly addressing arbitration issues)