Two Alternative Legal Bases for DWOP Dismissal

Dallas Court of Appeals, in another one of a series of recent appeals from debt collection cases that were dismissed by the county court, discusses the two sources of authority for a judge to dismiss a lawsuit for want of prosecution in Texas (TRCP 165a and the court's inherent power), and finds that neither supports dismissal of the case at bar.

FROM THE OPINION:

A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of Civil Procedure 165a, and (2) the trial court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

A trial court may dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated” by the supreme court. Tex. R. Civ. P. 165a(1), (2). See Tex. R. Jud. Admin. 6 (requiring judges to ensure, so far as reasonably possible, that civil nonjury cases are brought to trial or final disposition within twelve months from appearance date, and that civil jury cases are brought to trial or final disposition within eighteen months from appearance date).

In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied).

Lack of diligence need not amount to abandonment for a case to be properly dismissed. WMC Mortgage Corp., 200 S.W.3d at 752. In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.B.

Discussion

1. Dismissal under Rule 165(a)

The dismissal lists as a reason for dismissal “failure to take action after notice of intent to dismiss for want of prosecution,” in accordance with its “rule 165a letter.” However, a trial court may dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated” by the supreme court. Tex. R. Civ. P. 165a(1), (2). Although the dismissal order provides “failure to appear for a hearing or trial of which notice was had” as a reason for dismissal, the trial court did not check this reason for dismissal. In addition, the record shows that Oliphant filed suit on August 15, 2007, and moved for default judgment on October 18, 2007. The trial court dismissed it on November 30, 2007. This case was not pending beyond the time standards set by the supreme court. We conclude the record does not support dismissal pursuant to rule of civil procedure 165(a). See Tex. R. Civ. P. 165a(1), (2).

2. Dismissal under Inherent Power

In its October 19, 2007 Order to Amend Petition, the trial court ordered Oliphant to amend its petition for several specific reasons and cautioned Oliphant that failure to amend would result in dismissal for want of prosecution. The trial court's dismissal letters advised Oliphant that failure to move for and have heard a summary judgment or prove up a default judgment before specific dates would result in dismissal.

Because we have concluded Oliphant proved up a default judgment on its breach of contract claim, none of these grounds will support dismissal for want of prosecution for failure to amend as ordered under the trial court's inherent power.

Further, we conclude the record does not show a lack of diligence by Oliphant in prosecuting its claim. See Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp., 200 S.W.3d at 752.

Accordingly, we conclude the trial court abused its discretion in dismissing this case. See Downer, 701 S.W.2d at 241-42; Vann, 244 S.W.3d at 614. We resolve Oliphant's issue in its favor to this extent. We need not discuss the trial court's alternative summary judgment condition for dismissal.

SOURCE: Oliphant Financial, LLC v. Galvaniz, No. 05-07-01730-CV (Tex.App.- Dallas Oct. 26, 2009) (debt collector's pleadings, motion for default judgment and attached evidence - including deemed admissions - sufficient to support default judgment; denial of default judgment and dismissal for want of prosecution reversed and case remanded for further proceedings)