James v. Metropolitan Transit Authority (Metro),
No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011)
MEMORANDUM OPINION
Appellant David James appeals the dismissal of his personal injury suit against the Metropolitan Transit Authority ("Metro") on the grounds that (1) the trial court abused its discretion when it failed to perform ministerial duties and rule on appellant's motions, and (2) the trial court failed to notify appellant of the dismissal for want of prosecution and to hold hearings. We affirm.
Background
On March 29, 2004, appellant was injured while riding on a Metro bus that was involved in an accident. On February 13, 2006, appellant filed a personal injury suit against Metro, which was dismissed for want of prosecution on May 21, 2007. Appellant did not appeal from the 2007 dismissal. On October 8, 2008, appellant filed a petition for bill of review seeking reinstatement of his personal injury suit. There is no evidence in the record that Metro was served with appellant's bill of review. In response to a notice that the bill of review would be dismissed for want of prosecution, appellant filed a "Verified Motion to Retain."
On December 17, 2009, the trial court retained the bill of review on its docket. On May 3, 2010, the court sent another notice that appellant's suit was eligible for dismissal for want of prosecution. On August 16, 2010, the trial court signed an order denying appellant's motion to retain due to lack of service on the defendant. The court specifically found "that the record lacks any indication that Petitioner has attempted to serve Respondent with the Petition for Bill of Review." The court noted that, "Although the motion includes a certificate of service, it does not indicate service on Respondent." On October 7, 2010, the trial court dismissed appellant's petition for bill of review.
Dismissal for Want of Prosecution
In two issues, appellant argues the trial court wrongly dismissed his suit for want of prosecution. A trial court's authority to dismiss for want of prosecution stems from the express authority of rule 165a of the Texas Rules of Civil Procedure as well as from the court's inherent power to manage its own docket. Villarreal v. San Antonio Truck & Equip. Co., 994 S.W.2d 628, 630 (Tex. 1999); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 541 (Tex. App.-Houston [14th Dist.] 2000, no pet.). A trial court may dismiss a case when (1) it finds that the case has not been prosecuted with due diligence; (2) the case has not been disposed of within the Texas Supreme Court's time standards; or (3) a party fails to appear at a hearing or trial. Villarreal, 994 S.W.2d at 630. In determining whether a plaintiff has prosecuted his case with due diligence, the trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting and the existence of reasonable excuses for delay. Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App.-Houston [1st Dist .] 1996, no writ). We may reverse a trial court's dismissal of a claim for want of prosecution only if the court clearly abused its discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).
In his brief appellant argues the trial court abused its discretion because he attempted to have Metro served on March 8, 2006 and March 23, 2006. Appellant further contends he filed a motion for default judgment on August 21, 2006, but the court failed to rule on the motion. Appellant appears to be complaining about the trial court's dismissal of his personal injury suit in 2007. Appellant, however, failed to appeal that judgment; therefore, we have no jurisdiction to consider the propriety of the first dismissal. See generally Tex. R. App. P. 26.1. The judgment appellant appealed is the dismissal of his petition for bill of review.
The record reflects that appellant made no attempt to serve Metro with his petition for bill of review. The Texas Rules of Civil Procedure permit a party to request the court clerk to issue and deliver citations to the defendant. See Tex. R. Civ. P. 99(a). A party may rely on the clerk to serve the defendant within a reasonable time. Auten v. DJ Clark, Inc., 209 S.W.3d 695, 705 (Tex. App.-Houston [14th Dist.] 2006, no pet.).
When a party learns, or by exercise of due diligence should have learned, that the clerk failed to fulfill his duty under Rule 99, the party must ensure the defendant is properly served. Id. Because appellant failed to exercise due diligence to ensure proper service on Metro, the trial court did not abuse its discretion in dismissing appellant's petition for bill of review for want of prosecution. Appellant's two issues are overruled.
The judgment of the trial court is affirmed.
Affirmed.
James v. Metropolitan Transit Authority (Metro), Theresa Chang, et al
No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011)
Wednesday, September 28, 2011
Friday, September 2, 2011
Dismissal based on no-show at trial or hearing
Dismissal of the Consumers' Counterclaims in Capital One Auto Finance, Inc.'s Suit on Car Note
A trial court may dismiss a party's claims for affirmative relief if the party fails to appear for a hearing or trial of which the party had notice. TEX. R. CIV. P. 165a(1). "Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk . . . to each party not represented by an attorney. . . ." Id. "At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Id. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal if not cured. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
The [consumers] assert that they did not receive a notice of intent to dismiss and that the trial court never held a pre-dismissal hearing. However, the [consumers] have failed to provide any evidence that they did not receive notice of intent to dismiss.[3] Rather, in their request for documents to be included in the clerk's record, the [consumers] referred to a notice of intent to dismiss signed on February 12, 2010, which stated that the case was set for March 8, 2010 at 9:30 a.m. We conclude that the [consumers] have failed to show that they did not receive notice of intent to dismiss.
Failure to Reinstate the Consumers' Counterclaims
A party may file a verified motion to reinstate within 30 days after the order of dismissal is signed. TEX. R. CIV. P. 165a(3). "The court shall reinstate the case upon finding after a hearing that the failure of the party . . . 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. We review a trial court's decision on a motion to reinstate for an abuse of discretion. Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 903 (Tex. App.-Houston [1st Dist.] 1991, writ denied).
The trial court signed the final judgment dismissing the [consumers'] counterclaims on February 24, 2010, and the [consumers] filed their motion to reinstate on May 21, 2010. Because they failed to file their motion to reinstate by the 30-day deadline, the trial court did not abuse its discretion by allowing their motion to reinstate to be overruled by operation of law. See TEX. R. CIV. P. 165a(3).
SOURCE: First Court of Appeals (Houston) - No 01-10-00447-CV - 7/28/11
Click below to read the entire opinion in Lewis v. CAPITAL ONE AUTO FINANCE, INC.,
Appealing a dismissal for want of prosecution
What is the standard of review in an appeal from an order dismissing a case for want of prosecution? In a recent case, the Seventh Court of Appeals sitting in Amarillo, Texas explains the applicable criteria and the underlying source of authority for dismissal as follows:
We review a trial court's grant of a motion to dismiss for want of prosecution under an abuse of discretion standard. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 773 (Tex.App.-Amarillo 2009, pet. denied); Christian v. Christian, 985 S.W.2d 513, 514 (Tex.App.-San Antonio 1998, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption that the action of the trial court was justified. FDIC v. Kendrick, 897 S.W.2d 476, 479 (Tex.App.-Amarillo 1995, no writ). If the order of dismissal does not specify the ground for dismissal we will affirm on any authorized ground for dismissal supported by the record. See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex.App.-San Antonio 1998, pet. denied) (discussing burden of appellant challenging denial of motion to reinstate if order of dismissal is silent on basis for dismissal).
A trial court is authorized to dismiss a case for want of prosecution by Rule 165a and by exercise of its inherent power to manage its docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
Under Rule 165a(2) a case may be dismissed if it is "not disposed of within the time standards promulgated by the Supreme Court . . . ." Tex. R. Civ. P. 165a(2). District and statutory county court judges should finally dispose of all civil jury cases (other than family law cases) within eighteen months of appearance day. Tex. R. Jud. Admin. 6(b)(1), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F-Appendix (West Supp. 2010).
Through the exercise of its inherent power to manage its docket, a trial court may dismiss a case that has not been prosecuted with due diligence. Ozuna v. Southwest Bio-Clinical Labs., 766 S.W.2d 900, 901 (Tex.App.-San Antonio 1989, writ denied), disapproved on other grounds by Villarreal, 994 S.W.2d at 633; Rampart Capital Corp. 974 S.W.2d at 197.
SOURCE: Amarillo Court of Appeals - No. 07-09-00383-CV - 3/11/11
To read the entire opinion, click the link below
Due Process requires Notice and Hearing prior to DWOP Dismissal
Trial courts may not dismiss for want of prosecution without giving plaintiffs notice of their intention to do so and an opportunity to take action to avoid dismissal. As one of the two courts of appeals in Houston explained in in a recent appellate opinion:
The trial court must provide a party with notice and an opportunity to be heard before the trial court can dismiss a case for want of prosecution. Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal. Id. A notice of dismissal must inform a plaintiff of the exact reason for dismissal; otherwise, it violates the party's due process rights. 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 543 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (citing Villareal, 994 S.W.2d at 628).
Even if we assume that the DWOP notice was insufficient, [Plaintiff] was nevertheless afforded her due process rights because she received notice of the grounds for dismissal in the trial court's order in time to file a motion to reinstate, and a hearing was held on that motion while the trial court still had full control of the judgment. Thus, [Plaintiff's] due process rights were adequately protected. See Jiminez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ("We hold the hearing on Jimenez's reinstatement motion satisfied the due process rights applicable to the dismissal of his case."); 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.) ("We hold that, when an appellant has the time and opportunity to file a motion for reinstatement that could raise a claimed error, he waives any due process rights if he fails to file such a motion."); Franklin v. Sherman Ind. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.-Dallas 2001, pet. denied) ("We agree with the Jiminez court that where the dismissed party is afforded an oral hearing on a motion to reinstate, application of Villareal `would obfuscate what we perceive as a bright line precedent regarding satisfaction of a litigant's due process rights applicable to a dismissal of a case for want of prosecution.'") (quoting Jiminez, 999 S.W.2d at 128).
SOURCE: Fourteenth Court of Appeals in Houston - No. 14-10-00003-CV - 11/12/11
To see the entire opinion, follow the link below
Saturday, August 27, 2011
Dismissal of appeal for failure to file clerk's record
Appellate Courts may dismiss an appeal for a number of procedural reasons, including failure to make arrangements for filing of the record on appeal (clerk's record), and failure to pay for such record and/or appellate filing fee.
M. R. YOUNG
v.
CITIBANK (SOUTH DAKOTA) N.A.
Court of Appeals of Texas, Eleventh District, Eastland.
Panel[1] consists of: Wright, C.J., McCall, J., and Hill, J.[2]
MEMORANDUM OPINION
PER CURIAM.
This is an appeal from a final summary judgment. The trial court signed the judgment on January 4, 2011. Appellant, Melissa R. Young, has timely filed a notice of appeal. However, neither a clerk's record nor the required filing fee has been filed. We dismiss the appeal for want of prosecution.
The clerk of the trial court has notified this court that appellant has neither filed a written designation specifying the matters to be included in the clerk's record nor made arrangements to pay for the clerk's record. On March 9, 2011, the clerk of this court wrote appellant and requested that she forward proof that she has filed a designation of the clerk's record and made arrangements to pay for the clerk's record by March 21, 2011. The clerk's letter of March 9, 2011, additionally informed appellant that the failure to provide the requested proof by the date indicated could result in the dismissal of this appeal. There has been no response to the clerk's letter of March 9, 2011.
The failure to file the clerk's record appears to be due to appellant's acts and omissions. Therefore, pursuant to TEX. R. APP. P. 37.3(b) and 42.3(b), the appeal is dismissed for want of prosecution.
[1] Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.
[2] John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
SOURCE: Eastland Court of Appeal
Young v. Citibank (South Dakota) N.A. No. 11-11-00043-CV (Debt suit by Citibank Attorney Allen Adkins). Debtor's appeal dismissed April 28, 2011.
Appeals also subject to DWOP
After several extensions and warnings, Houston Court of Appeals dismissed case in which pro-se appellant had failed to file appellate brief for want of prosecution. Appeal had been filed more than three years earlier and had been interrupted by a bankruptcy filing.
PER CURIAM MEMORANDUM OPINION
PER CURIAM MEMORANDUM OPINION
BY HOUSTON's FIRST COURT OF APPEALS
This appeal has been pending since November 2007. In July 2008, the appeal was abated due to bankruptcy. The bankruptcy proceeding was dismissed in January 2009. After notice to the parties, to which the Court received no response, we reinstated and dismissed the appeal for want of prosecution on May 28, 2009. See TEX. R. APP. P. 42.3 (b) (providing that appellate courts may dismiss appeal for want of prosecution after giving notice to all parties).
This appeal has been pending since November 2007. In July 2008, the appeal was abated due to bankruptcy. The bankruptcy proceeding was dismissed in January 2009. After notice to the parties, to which the Court received no response, we reinstated and dismissed the appeal for want of prosecution on May 28, 2009. See TEX. R. APP. P. 42.3 (b) (providing that appellate courts may dismiss appeal for want of prosecution after giving notice to all parties).
However, appellant filed a motion for rehearing requesting that the Court withdraw its opinion and judgment of May 28, 2009 and reinstate the appeal, which we granted. The appeal was again reinstated in September 2009.
After rehearing was granted, appellant still failed to file an appellant's brief. The Clerk of this Court again sent the parties notice that appellant's brief had not been filed and the case could be dismissed for want of prosecution anytime after ten days from the date of the notice. Appellant filed a motion for extension of time to file his brief, which we granted, giving appellant until February 21, 2010 to file his brief. Appellant did not file a brief. Appellant ultimately filed a second suggestion of bankruptcy, but public records demonstrate that the bankruptcy referenced by appellant was dismissed by the bankruptcy court in November 2010. We sent appellant another notice that his appellant's brief had not been filed and his appeal could be dismissed for want of prosecution anytime after ten days from the date of the notice. See TEX. R. APP. P. 38.8(a); 42.3(b). In response, appellant did not file a brief but did file a request for an extension of additional time to file his brief. The reasons provided by appellant as necessitating more time do not justify further extension of this appeal after over three years pending without an appellant's brief.
Appellant's motion for extension of time to file appellant's brief is denied.
This appeal is dismissed for want of prosecution.
SOURCE: Houston's First Court of Appeals.
No. 01-07-01041-CV - Dismissed on March 31, 2011
After rehearing was granted, appellant still failed to file an appellant's brief. The Clerk of this Court again sent the parties notice that appellant's brief had not been filed and the case could be dismissed for want of prosecution anytime after ten days from the date of the notice. Appellant filed a motion for extension of time to file his brief, which we granted, giving appellant until February 21, 2010 to file his brief. Appellant did not file a brief. Appellant ultimately filed a second suggestion of bankruptcy, but public records demonstrate that the bankruptcy referenced by appellant was dismissed by the bankruptcy court in November 2010. We sent appellant another notice that his appellant's brief had not been filed and his appeal could be dismissed for want of prosecution anytime after ten days from the date of the notice. See TEX. R. APP. P. 38.8(a); 42.3(b). In response, appellant did not file a brief but did file a request for an extension of additional time to file his brief. The reasons provided by appellant as necessitating more time do not justify further extension of this appeal after over three years pending without an appellant's brief.
Appellant's motion for extension of time to file appellant's brief is denied.
This appeal is dismissed for want of prosecution.
SOURCE: Houston's First Court of Appeals.
No. 01-07-01041-CV - Dismissed on March 31, 2011
Saturday, August 20, 2011
Dismissal Standard
Dismissal of Lawsuit
Standard of Review and Applicable Law
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); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App..Dallas 2001, pet. denied) (per curiam). We employ the same standard in reviewing the denial of a motion to reinstate. Franklin, 53 S.W.3d at 401. A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Franklin, 53 S.W.3d at 401-02.
A trial court is authorized to dismiss a case for want of prosecution by rule of civil procedure 165a and by exercise of its inherent power to manage its docket. 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, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (West Supp. 2010) (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).
The trial court also has the inherent power to dismiss, independent of the rules of procedure, when a plaintiff fails to prosecute its case with diligence. Villareal, 994 S.W.2d at 630; Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 839 (Tex. App.-Dallas 2009, no pet.). The central issue is whether the plaintiff exercised reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). The trial court generally considers four factors before dismissing a case for want of prosecution: (1) the length of time a case has been on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied); Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.-Houston [14th Dist.] 1993, no writ). No single factor is dispositive. Starkey, 200 S.W.3d at 752. We review the entire record and reverse the dismissal order only if the trial court clearly abused its discretion. Bilnoski, 858 S.W.2d at 58.
Whether a case is dismissed under rule 165a or the trial court's inherent power, the trial court must reinstate the case if it determines 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." Tex. R. Civ. P. 165a(3), (4). A failure is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).[4] Proof of accident, mistake, or other reasonable explanation negates the intent or conscious indifference for which reinstatement can be denied. Id.
Dismissal Under Rule 165a
The trial court may dismiss a case under rule 165a based on a party's failure to appear at a 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). The trial court indicated that it was dismissing the case because Elite failed to appear at a hearing of which it had notice and failed to take action "in accordance with rule 165a letter." Although the dismissal order does not identify the hearing at which Elite failed to appear, on this record, it could refer only to the March 12, 2010 dismissal hearing. Elite does not dispute that it failed to appear at the dismissal hearing, but asserts it did not receive notice of the hearing.
Before a trial court may dismiss a suit, it generally is required to afford the parties notice and the opportunity to be heard. Villarreal, 994 S.W.2d at 630; Franklin, 53 S.W.3d at 402. To ensure that the party's right to due process is preserved, the trial court ordinarily must provide notice of the time, place, and date of an oral hearing on dismissal. Franklin, 53 S.W.3d at 401. However, Texas appellate courts, including this Court, have uniformly held that "when the trial court holds a hearing on a motion to reinstate while the court had full control of its judgment, and the dismissed party thereby receives the same hearing with the same burden of proof it would have had before the order of dismissal was signed, no harmful error is shown." Id. at 402-03.[5]
The trial court held a hearing on Elite's motion for new trial and to reinstate and Elite had the opportunity to be heard. See Franklin, 53 S.W.3d at 403 ("the courts of appeal are in agreement that a post dismissal hearing obviates any due process concerns"); Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 273 (Tex. App..El Paso 2010, no pet.) ("motion to reinstate with the opportunity for a hearing cures due process violations"). Accordingly, Elite has not shown it was harmed by the trial court's failure to give it an opportunity to be heard prior to the dismissal of the case. See Franklin, 53 S.W.3d at 403. We next consider whether the trial court erred by denying Elite's motion for new trial or to reinstate on the ground that Elite had a reasonable explanation for failing to appear at the dismissal hearing. See Tex. R. Civ. P. 165a(3). In Thacker's affidavit attached to Elite's motion for new trial and to reinstate, Thacker stated she was Elite's attorney and that she received no correspondence from the trial court between the February 5, 2010 status conference and the March 18, 2010 order of dismissal. The order to amend entered by the trial court at the February 5 status conference does not contain notice of the March 12, 2010 dismissal hearing.
We conclude Elite established its failure to appear at the March 12, 2010 dismissal hearing was not intentional or the result of conscious indifference, but was reasonably explained. Therefore, the trial court erred by denying Elite's motion for new trial or to reinstate on the ground that Elite's failure to appear at the dismissal hearing was due to lack of notice. See Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.-San Antonio 1996, writ denied) (trial court abused its discretion by denying motion to reinstate after being apprised of inadequate notice).
We next turn to whether the trial court properly dismissed the case under rule 165a because the case was not disposed of within the time standards promulgated by the supreme court. The record shows that Elite filed its petition on February 23, 2009 and served Tapia with process on February 26, 2009. On October 9, 2009, Elite sent a proposed default judgment on liability to the trial court. Elite's counsel appeared at a scheduled hearing on December 11, 2009, and was advised the default judgment could not be entered because Elite had not filed a Soldiers' and Sailors' Affidavit with the trial court. On December 17, 2009, Elite filed a Soldiers' and Sailors' Affidavit. Elite's counsel attended a status conference on February 5, 2010 and filed a Certificate of Last Known Address prior to the hearing. At the status conference, Elite's counsel was prepared to offer evidence as to Elite's unliquidated damages. The trial court refused to allow Elite's counsel to offer the evidence and ordered Elite to amend its petition and re-serve Tapia.
On this record, we conclude Elite took action to resolve this case within the time standards set by the supreme court and attempted to diligently prosecute its case. See Galaviz, 299 S.W.3d at 839 (plaintiff diligently prosecuted case by serving defendant and seeking default judgment within time standards set by supreme court). Therefore, the record does not support dismissal pursuant to rule of civil procedure 165a(2).
SOURCE: Dallas Court of Appeals - 05-10-00635-CV - 8/16/11
Standard of Review and Applicable Law
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); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App..Dallas 2001, pet. denied) (per curiam). We employ the same standard in reviewing the denial of a motion to reinstate. Franklin, 53 S.W.3d at 401. A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Franklin, 53 S.W.3d at 401-02.
A trial court is authorized to dismiss a case for want of prosecution by rule of civil procedure 165a and by exercise of its inherent power to manage its docket. 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, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (West Supp. 2010) (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).
The trial court also has the inherent power to dismiss, independent of the rules of procedure, when a plaintiff fails to prosecute its case with diligence. Villareal, 994 S.W.2d at 630; Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 839 (Tex. App.-Dallas 2009, no pet.). The central issue is whether the plaintiff exercised reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). The trial court generally considers four factors before dismissing a case for want of prosecution: (1) the length of time a case has been on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied); Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.-Houston [14th Dist.] 1993, no writ). No single factor is dispositive. Starkey, 200 S.W.3d at 752. We review the entire record and reverse the dismissal order only if the trial court clearly abused its discretion. Bilnoski, 858 S.W.2d at 58.
Whether a case is dismissed under rule 165a or the trial court's inherent power, the trial court must reinstate the case if it determines 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." Tex. R. Civ. P. 165a(3), (4). A failure is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).[4] Proof of accident, mistake, or other reasonable explanation negates the intent or conscious indifference for which reinstatement can be denied. Id.
Dismissal Under Rule 165a
The trial court may dismiss a case under rule 165a based on a party's failure to appear at a 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). The trial court indicated that it was dismissing the case because Elite failed to appear at a hearing of which it had notice and failed to take action "in accordance with rule 165a letter." Although the dismissal order does not identify the hearing at which Elite failed to appear, on this record, it could refer only to the March 12, 2010 dismissal hearing. Elite does not dispute that it failed to appear at the dismissal hearing, but asserts it did not receive notice of the hearing.
Before a trial court may dismiss a suit, it generally is required to afford the parties notice and the opportunity to be heard. Villarreal, 994 S.W.2d at 630; Franklin, 53 S.W.3d at 402. To ensure that the party's right to due process is preserved, the trial court ordinarily must provide notice of the time, place, and date of an oral hearing on dismissal. Franklin, 53 S.W.3d at 401. However, Texas appellate courts, including this Court, have uniformly held that "when the trial court holds a hearing on a motion to reinstate while the court had full control of its judgment, and the dismissed party thereby receives the same hearing with the same burden of proof it would have had before the order of dismissal was signed, no harmful error is shown." Id. at 402-03.[5]
The trial court held a hearing on Elite's motion for new trial and to reinstate and Elite had the opportunity to be heard. See Franklin, 53 S.W.3d at 403 ("the courts of appeal are in agreement that a post dismissal hearing obviates any due process concerns"); Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 273 (Tex. App..El Paso 2010, no pet.) ("motion to reinstate with the opportunity for a hearing cures due process violations"). Accordingly, Elite has not shown it was harmed by the trial court's failure to give it an opportunity to be heard prior to the dismissal of the case. See Franklin, 53 S.W.3d at 403. We next consider whether the trial court erred by denying Elite's motion for new trial or to reinstate on the ground that Elite had a reasonable explanation for failing to appear at the dismissal hearing. See Tex. R. Civ. P. 165a(3). In Thacker's affidavit attached to Elite's motion for new trial and to reinstate, Thacker stated she was Elite's attorney and that she received no correspondence from the trial court between the February 5, 2010 status conference and the March 18, 2010 order of dismissal. The order to amend entered by the trial court at the February 5 status conference does not contain notice of the March 12, 2010 dismissal hearing.
We conclude Elite established its failure to appear at the March 12, 2010 dismissal hearing was not intentional or the result of conscious indifference, but was reasonably explained. Therefore, the trial court erred by denying Elite's motion for new trial or to reinstate on the ground that Elite's failure to appear at the dismissal hearing was due to lack of notice. See Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.-San Antonio 1996, writ denied) (trial court abused its discretion by denying motion to reinstate after being apprised of inadequate notice).
We next turn to whether the trial court properly dismissed the case under rule 165a because the case was not disposed of within the time standards promulgated by the supreme court. The record shows that Elite filed its petition on February 23, 2009 and served Tapia with process on February 26, 2009. On October 9, 2009, Elite sent a proposed default judgment on liability to the trial court. Elite's counsel appeared at a scheduled hearing on December 11, 2009, and was advised the default judgment could not be entered because Elite had not filed a Soldiers' and Sailors' Affidavit with the trial court. On December 17, 2009, Elite filed a Soldiers' and Sailors' Affidavit. Elite's counsel attended a status conference on February 5, 2010 and filed a Certificate of Last Known Address prior to the hearing. At the status conference, Elite's counsel was prepared to offer evidence as to Elite's unliquidated damages. The trial court refused to allow Elite's counsel to offer the evidence and ordered Elite to amend its petition and re-serve Tapia.
On this record, we conclude Elite took action to resolve this case within the time standards set by the supreme court and attempted to diligently prosecute its case. See Galaviz, 299 S.W.3d at 839 (plaintiff diligently prosecuted case by serving defendant and seeking default judgment within time standards set by supreme court). Therefore, the record does not support dismissal pursuant to rule of civil procedure 165a(2).
SOURCE: Dallas Court of Appeals - 05-10-00635-CV - 8/16/11
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