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

Courts of Appeals have their own dismissal rule.

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

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).

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

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