DISMISSAL FOR WANT OF PROSECUTION
In his sole issue on appeal, appellant contends the trial court judge abused her discretion “when she entered an order of dismissal for want of prosecution as a result of [appellant's] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00.” Specifically, appellant argues the trial court's dismissal of this case for want of prosecution “based on [his] failure to appear at dismissal hearing” was “fundamentally unfair and denied [him] access to the courts, where [he] was unable to appear personally because he was incarcerated, the trial court denied his request for a bench warrant, and he was unable to appear by alternative means, such as telephone, affidavit, because trial court denied his motion to appear by such alternative means.” No brief was filed in this Court by appellees.
A. Standard of Review
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); Crown Asset Mgmt., L.L.C. v. Bogar, 264 S.W.3d 420, 422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption the action of the trial court was justified. Bogar, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).
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); Crown Asset Mgmt., L.L.C. v. Bogar, 264 S.W.3d 420, 422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption the action of the trial court was justified. Bogar, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).
B. Applicable Law
A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Id. (citing Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)). Under rule 165a, a trial court may dismiss a suit when (1) a party fails to appear for a trial or hearing or (2) a suit is not disposed of within the time standards set by the Texas Supreme Court. See Footnote 1 See Tex. R. Civ. P. 165a. Independent of the rules of civil procedure, a trial court may dismiss a suit under its inherent authority if the plaintiff fails to prosecute the case with due diligence. Bogar, 264 S.W.3d at 422 (citing Villareal, 994 S.W.2d at 630).
As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support the judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Oliphant Fin. LLC v. Angiano, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); Crown Asset Mgmt., L.L.C. v. Strayhorn, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); see also Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (basis for rule is appellate court must accept validity of unchallenged independent ground and thus any error in ground challenged on appeal is harmless).
C. Application of Law to Facts
In its August 21, 2008 “Notice of Hearing,” the trial court informed appellant he “must contact the 95th District Court Administrator, in person or by telephone on or before the [September 2, 2008] hearing to report the status of this cause.” (emphasis original). Appellant does not assert, and the record does not show, he contacted the court administrator in person or by telephone as directed. Additionally, in that same notice, appellant was informed “ [f]ailure to appear at [the September 2, 2008] hearing shall result in dismissal of this case for want of prosecution.” (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.
In its “Order of Dismissal for Want of Prosecution” dated September 4, 2008, the trial court stated in part
Plaintiff did not take certain action heretofore specified by the Court within the time period prescribed, and having not disposed of this case, the Court finds that this cause should be dismissed for want of prosecution pursuant to Texas Rule of Civil Procedure 165a. The Court finds that Plaintiff was duly notified of a dismissal hearing set on September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,
IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.
(emphasis original).
Appellant asserts the trial court erred by dismissing this case “as a result of [his] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00.” However, based on the wording of the trial court's August 21, 2008 notice and September 4, 2008 order, it is possible the trial court dismissed this case pursuant to its inherent authority to dismiss cases for want of prosecution because appellant did not contact the court administrator as directed. Cf. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (noting that where trial court's order of dismissal was unclear as to whether it was based upon rule 165a or inherent authority, either ground may have been relied upon). Appellant does not address this potential alternative, independent basis for dismissal or assert error regarding dismissal
pursuant to such basis.
Because the trial court may have dismissed this case for want of prosecution pursuant to its inherent authority based on appellant's failure to contact the court administrator in person or by telephone as directed in the August 21, 2008 notice, appellant was required to address this independent basis for dismissal on appeal. See Nobility Homes of Tex., Inc., 557 S.W.2d at 83; Oliphant Fin. LLC, 2009 WL 2648125, at *1; Strayhorn, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. See Rotello, 671 S.W.2d at 509; Bogar, 264 S.W.3d at 422. Appellant's sole issue is decided against him.
SOURCE: Dallas Court of Appeals Opinion in Cause No. 05-08-01485-CV (11/3/09)
A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Id. (citing Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)). Under rule 165a, a trial court may dismiss a suit when (1) a party fails to appear for a trial or hearing or (2) a suit is not disposed of within the time standards set by the Texas Supreme Court. See Footnote 1 See Tex. R. Civ. P. 165a. Independent of the rules of civil procedure, a trial court may dismiss a suit under its inherent authority if the plaintiff fails to prosecute the case with due diligence. Bogar, 264 S.W.3d at 422 (citing Villareal, 994 S.W.2d at 630).
As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support the judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Oliphant Fin. LLC v. Angiano, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); Crown Asset Mgmt., L.L.C. v. Strayhorn, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); see also Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (basis for rule is appellate court must accept validity of unchallenged independent ground and thus any error in ground challenged on appeal is harmless).
C. Application of Law to Facts
In its August 21, 2008 “Notice of Hearing,” the trial court informed appellant he “must contact the 95th District Court Administrator, in person or by telephone on or before the [September 2, 2008] hearing to report the status of this cause.” (emphasis original). Appellant does not assert, and the record does not show, he contacted the court administrator in person or by telephone as directed. Additionally, in that same notice, appellant was informed “ [f]ailure to appear at [the September 2, 2008] hearing shall result in dismissal of this case for want of prosecution.” (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.
In its “Order of Dismissal for Want of Prosecution” dated September 4, 2008, the trial court stated in part
Plaintiff did not take certain action heretofore specified by the Court within the time period prescribed, and having not disposed of this case, the Court finds that this cause should be dismissed for want of prosecution pursuant to Texas Rule of Civil Procedure 165a. The Court finds that Plaintiff was duly notified of a dismissal hearing set on September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,
IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.
(emphasis original).
Appellant asserts the trial court erred by dismissing this case “as a result of [his] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00.” However, based on the wording of the trial court's August 21, 2008 notice and September 4, 2008 order, it is possible the trial court dismissed this case pursuant to its inherent authority to dismiss cases for want of prosecution because appellant did not contact the court administrator as directed. Cf. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (noting that where trial court's order of dismissal was unclear as to whether it was based upon rule 165a or inherent authority, either ground may have been relied upon). Appellant does not address this potential alternative, independent basis for dismissal or assert error regarding dismissal
pursuant to such basis.
Because the trial court may have dismissed this case for want of prosecution pursuant to its inherent authority based on appellant's failure to contact the court administrator in person or by telephone as directed in the August 21, 2008 notice, appellant was required to address this independent basis for dismissal on appeal. See Nobility Homes of Tex., Inc., 557 S.W.2d at 83; Oliphant Fin. LLC, 2009 WL 2648125, at *1; Strayhorn, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. See Rotello, 671 S.W.2d at 509; Bogar, 264 S.W.3d at 422. Appellant's sole issue is decided against him.
SOURCE: Dallas Court of Appeals Opinion in Cause No. 05-08-01485-CV (11/3/09)
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