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


CAROL GANTT, Appellant,
v.
RUBY GETZ et al, Appellees

No. 14-10-00003-CV.
Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed May 12, 2011.
Panel consists of Justices Brown, Boyce, and Jamison.

MEMORANDUM OPINION

WILLIAM J. BOYCE, Justice.

Appellant Carol Gantt filed this suit against her former husband, Jerry Gantt, as well as Ruby Getz, individually, Alan J. Getz, deceased, by and through Ruby Getz, as Independent Executrix, Ram Enterprises, Inc., Getz Family Partnership, Ltd., Sign Services & Products, Inc., Signs By Sun-Up, Inc., C&G Classic Cars, Inc., Architectural Signage Corp. of America, American Novelty Co., Piedmont Contractors, Inc., Janice Foster Gantt, and Frost National Bank (collectively, "appellees"). Carol alleges that the appellees conspired to defraud the community estate of assets she was awarded when she and Jerry divorced. The trial court dismissed the case for want of prosecution nine years later. We affirm.

BACKGROUND

This appeal takes place after the conclusion of protracted divorce and bankruptcy litigation between Carol and Jerry. To construct the general history of these prior proceedings, we rely on certain undisputed facts recited in our previous opinion in the divorce litigation in Gantt v. Gantt, 208 S.W.3d 27 (Tex. App.-Houston [14th Dist.] 2006, pet. denied), as well as the Fifth Circuit's opinion in the bankruptcy litigation in In re Gantt, 284 Fed. App'x 151 (5th Cir. 2008) (per curiam).

I. Divorce Litigation

Jerry and Carol were divorced by a decree issued on October 30, 1996. Gantt, 208 S.W.3d at 29. The Thirteenth Court of Appeals affirmed the divorce decree on appeal, but reversed and remanded certain claims that had been dismissed by the trial court. Id. The trial court vacated the 1996 divorce decree on remand, held another jury trial, and entered a new divorce judgment on March 31, 2003. Id. This court held on appeal that the trial court lacked jurisdiction to vacate the 1996 divorce decree, retry the case, and enter a new divorce judgment. Id. at 31. This court dismissed the appeal, vacated the new judgment, and reinstated the 1996 divorce decree. Id. The Texas Supreme Court denied the petition for review on June 1, 2007. We issued our mandate to the trial court on August 31, 2007.

II. Bankruptcy Litigation

Jerry filed a Chapter 7 bankruptcy petition in 1996. Id. at 29. Carol sought a determination in that proceeding that Jerry's obligations under the 1996 divorce decree were exempted from discharge. In re Gantt, 284 Fed. App'x at 152. The final bankruptcy judgment was appealed to the federal district court, which reversed in part. Id. The Fifth Circuit held the appeal in abeyance pending a final resolution of the divorce litigation in state court. Id. at 151. Upon receiving confirmation from counsel for both Jerry and Carol "that nothing remains to be done" in the divorce litigation, the Fifth Circuit reinstated the appeal and affirmed the judgment of the federal district court. Id. at 151-52. The Fifth Circuit remanded the case with directions for the bankruptcy court to enter a new final judgment in conformity with the federal district court's decision. Id. at 153. The bankruptcy court entered a final judgment on August 28, 2008.

III. Present Litigation

Carol filed her original petition in this case on May 25, 2000. She claimed, among other things, that Jerry and the other appellees conspired to defraud the community estate of assets she was awarded when she and Jerry divorced. The appellees moved to abate this suit in September 2000. They argued that the case should be abated because the claims in Carol's pleading are the same as the claims remanded by the Thirteenth Court of Appeals, and the remanded claims were still pending in the divorce litigation at that time. The trial court signed an order of abatement on October 20, 2000. The order states:

IT IS ORDERED that this cause is hereby abated until a judgment as to all issues and causes of action becomes final in the [divorce] proceeding pending in the 245th Judicial Court of Harris County, Texas under Cause No. 1995-020186, styled In the Matter of the Marriage of Jerry Gantt and Carol B. Gantt.

In 2003, Carol filed a motion to lift the abatement, which the trial court denied. The trial court periodically requested updates on the status of the other litigation, which Carol provided in 2005, 2006, and 2007. Carol re-urged her request that the trial court lift the abatement in her 2005 and 2006 status reports.

The trial court sent the following notice of dismissal for want of prosecution ("DWOP notice") to the parties on September 2, 2009:

Notice is hereby given that a hearing is scheduled for Tuesday at 11:00 A.M., OCTOBER 6, 2009, for Dismissal for Want of Prosecution of the PLAINTIFF'S ORIGINAL PETITION, filed on 5/25/2000. If you do not wish for this matter to be dismissed from the Court's docket, you are hereby notified to appear and present a Motion to Retain which will be heard by the Court at that time. Your failure to appear will result in dismissal by the Court pursuant to Rule 165a of the Texas Rules of Civil Procedure and the Court's inherent power.
Carol appeared and filed a motion to retain, requesting that the trial court "retain the matter on its docket, lift the abatement, and allow the parties to proceed with the litigation set forth in Carol Gantt's pleadings." She asserted that the divorce and bankruptcy litigation had become final, and that there was "no longer a legitimate basis to abate this matter." The trial court denied the motion to retain and dismissed the case on October 7, 2009. The trial court stated in its dismissal order: "The Court finds that notice of this dismissal was properly given to all necessary parties; and that the Plaintiff appeared and has failed to prosecute this matter and has failed to show good cause for such failure."

Carol filed a motion to reinstate, arguing that she did not fail to prosecute the case because she repeatedly asked the trial court to lift the abatement. She argued that the "litigation involving the original 1996 Judgment" did not end until the federal bankruptcy court issued its August 28, 2008 judgment. She stated in her motion:

[T]he Court is allowing the Defendants to benefit from their years of obstreperous foot dragging. It is simply unfair to dismiss the matter despite Carol Gantt's multiple attempts to lift the abatement and have this matter adjudicated.
* * *
Carol Gantt has simply been waiting and continues to wait for this Court's lifting of its abatement.
The trial court denied the motion to reinstate, and Carol filed a timely notice of appeal.

ANALYSIS

Carol argues in her first issue on appeal that the trial court abused its discretion in dismissing the case for want of prosecution because (1) the trial court did so without first lifting the abatement; and (2) "the entire history of the case exemplifies the reasonableness of the delay in this matter." She argues in her second issue that the trial court erred in denying her motion to reinstate the case. She argues in her third issue that the DWOP notice did not sufficiently inform Carol that the case could be dismissed if she did not show good cause for failing to prosecute the matter. We address Carol's issues out of order.

I. DWOP Notice

Carol argues in her third issue that the trial court erred in dismissing the case because the trial court's DWOP notice was inadequate. She claims that the DWOP notice did not inform her that the trial court would dismiss the case if she did not show good cause for failing to prosecute the case with due diligence. She contends that the DWOP notice only informed her that the trial court would dismiss the case if she did not "appear and present a Motion to Retain" at the scheduled hearing, which she did. She further argues that the DWOP notice "referred only to a motion to retain; it did not specify any particular content."

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, Carol 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, Carol'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).

We overrule Carol's third issue.

II. Dismissal for Want of Prosecution

Carol argues in her first issue that the trial court abused its discretion in dismissing the case for want of prosecution because (1) the trial court did so without first lifting the abatement; and (2) "the entire history of the case exemplifies the reasonableness of the delay in this matter."

A trial court's power 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 authority to manage its own docket. See Tex. R. Civ. P. 165a; Villareal, 994 S.W.2d at 630; 3V, 40 S.W.3d at 540. Rule 165a enables a trial court to dismiss when a plaintiff fails to appear for any scheduled hearing, or when the case is not disposed of within the time periods set by the Texas Supreme Court. See Tex. R. Civ. P. 165a(1), (2). The trial court also has inherent authority to dismiss independently of procedural rules when a plaintiff fails to prosecute her case with due diligence. Villareal, 994 S.W.2d at 630; 3V, 40 S.W.3d at 539-40.

The trial court's order dismissing this case for want of prosecution states: "The Court finds that . . . the Plaintiff appeared and has failed to prosecute this matter and has failed to show good cause for such failure . . . ." It is not clear from this statement whether the trial court dismissed the case pursuant to Rule 165a(2) or its inherent authority to do so.[1] If the trial court does not enter findings of fact or conclusions of law, and the trial court's order dismissing a case for want of prosecution does not specify a particular reason for the dismissal, we will affirm if any proper ground supports the dismissal. See City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.-Houston [1st Dist.] 1992, no writ). Because we can affirm the dismissal based on the trial court's proper exercise of its inherent authority to manage its own docket, we analyze only that basis for dismissal.

A. Authority to Dismiss

Carol first argues that the trial court had no authority to dismiss the case without first lifting the abatement order. "`An abatement is a present suspension of all proceedings in a suit.'" 3V, 40 S.W.3d at 539 (quoting America Online, Inc. v. Williams, 958 S.W.2d 268, 272 (Tex. App.-Houston [14th Dist.] 1997, no pet.)). "In this context, `suspend' means `to interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily, but with an expectation or purpose of resumption.'" Id. (quoting America Online, Inc., 958 S.W.2d at 272). "Generally, an abatement is sought to challenge the plaintiff's pleadings by asserting that facts outside the pleadings prevent the suit from going forward in its present condition." Id. (citing Tex. Highway Dep't v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967), and Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex. App.-San Antonio 1999, no pet.)). "By granting an abatement, the court gives the plaintiff an opportunity to cure the defect." Id. (citing Martin, 2 S.W.3d at 354). "Once granted, an abatement precludes the trial court from going forward on a case until the defect or obstacle is removed." Id. (citing America Online, Inc., 958 S.W.2d at 272).

The record does not indicate that the trial court lifted the abatement before it dismissed the case. Carol therefore argues that any action taken by the trial court during this uninterrupted abatement period was a legal nullity — including the dismissal for want of prosecution. Carol's argument relies heavily on this court's decision in In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522 (Tex. App.-Houston [14th Dist.] 1998, orig. proceeding), in which the court stated: "Unless otherwise specified in the abatement order, any action taken by the court or the parties during the abatement is a legal nullity." Kimball, 969 S.W.2d at 527. Kimball is distinguishable.

Kimball addressed a trial court's noncompliance with the statutorily required abatement period under the Residential Construction Liability Act. Id. at 524. Kimball held that the case should have been automatically abated to allow the plaintiff to comply with the 60-day notice period as required by the statute. Id. at 527. Kimball further held that the trial court's order denying the motion to abate and the plaintiffs' subsequently amended petition were therefore void. Id. It was in this context that the court stated that "any action taken by the court or the parties" during the statutorily required abatement period was void. Id.

We do not agree with Carol that this statement in Kimball, which arose in a different context, precluded the trial court from dismissing this case during the abatement period. Courts are allowed to take appropriate actions during an abatement period. See, e.g., In re Gen. Motors Corp., 296 S.W.3d 813, 825 (Tex. App.-Austin 2009, no pet.) (citing De Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935, 938 n.5 (Tex. 1993) (joinder of parties held proper during abatement); United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 846 (Tex. App.-Corpus Christi 1999, no pet.) (nonsuit and approval of agreed judgment held proper during abatement); and Parker v. Three Rivers Flying Serv., Inc., 220 S.W.3d 160, 163 (Tex. App.-Eastland 2007, no pet.) (affirming trial court's authorization of parties to proceed by agreement on matters that were contrary to abatement order)).

As this court recognized in 3V, the existence of an abatement order does not necessarily deprive the trial court of the authority to dismiss for failure to diligently prosecute. See 3V, 40 S.W.3d at 539-40 (overruling appellant's argument that the trial court had no authority to dismiss the case according to its "duty and obligation to maintain control of the docket and to require parties to prosecute their suits with diligence" during the abatement previously ordered by this court); see also id. at 540 n.4 (distinguishing Kimball on the grounds that the Kimball trial court's order denying the motion to abate was void because it was entered during a statutorily mandated abatement period); In re Gen. Motors Corp., 296 S.W.3d at 827 ("[A] court's action in dismissing a case for want of prosecution may or may not be error, but it is not a void act or a nullity simply because the case has been abated by the court. The court retains the power to dismiss claims over which it does not have jurisdiction and cases that it believes — however erroneously or inadvertently — have not been prosecuted with sufficient diligence.").

Carol does not argue that any statute or other rule prevented the trial court from dismissing this case instead of continuing the abatement. We therefore conclude that the abatement order did not deprive the trial court of the authority to dismiss in this case. See 3V, 40 S.W.3d at 539-40.

B. Failure to Prosecute with Due Diligence

We next consider Carol's argument that the trial court did not properly exercise its authority to dismiss for Carol's failure to prosecute the case with due diligence.

"When an unreasonable delay in the prosecution of a case occurs, it is presumed that the case has been abandoned." Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex. App.-Houston [14th Dist. 1993, no writ). If the plaintiff does not provide a sufficient explanation for delay, the presumption of abandonment is conclusive and the court shall dismiss. Id. A 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. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 4-5 (Tex. App.-Houston [14th Dist.] 2006, pet. denied); Bilnoski, 858 S.W.2d at 58. 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. The central issue is whether Carol exercised due diligence in prosecuting her case. See id.

The record reveals that the case was on file for approximately five months between the filing of Carol's original petition and the trial court's October 20, 2000 abatement order. The trial court ordered the case abated "until a judgment as to all issues and causes of action becomes final in the [divorce] proceeding." The case remained abated for almost nine years before the trial court sent the DWOP notice on September 2, 2009.

In its dismissal order, the trial court did not identify the date on which the "judgment as to all issues and causes of action" in the divorce proceeding became final. The finality of the judgment in the divorce proceeding is relevant because it is the earliest point at which Carol could have successfully asked the trial court to lift the abatement and proceed with the case.

The appellees argue that the judgment in the divorce proceeding became final when (1) this court issued our decision in the divorce litigation on August 31, 2006 (three years before the DWOP notice); (2) the Texas Supreme Court denied the petition for review on June 1, 2007 (27 months before the DWOP notice); or (3) this court issued its mandate to the trial court on August 31, 2007 (two years before the DWOP notice).

Carol instead argues that "the basis for obtaining the abatement was still present" until the federal bankruptcy court entered its final judgment on remand in the bankruptcy litigation on August 28, 2008. In that judgment, the court found certain amounts owed by Jerry to Carol under the 1996 divorce decree to be exempted from discharge. Even giving Carol the benefit of the doubt and assuming that the "judgment as to all issues and causes of action" in the divorce proceeding became final on that date, this case remained pending but inactive on the trial court's docket for more than 12 months after August 28, 2008. Dismissals based on similar lengths of inactivity have been upheld on appeal. See, e.g., Fox v. Wardy, 225 S.W.3d 198, 200 (Tex. App.-El Paso 2005, pet. denied) (seven months of inactivity, with exception of two amendments to petition); City of Houston, 838 S.W.2d at 298 (almost 12 months of inactivity, with exception of motion to retain); see also Douglas v. Douglas, No. 01-06-00925-CV, 2008 WL 5102270, at *2 (Tex. App.-Houston [1st Dist.] Dec. 4, 2008, pet. denied) (mem. op.) (eight months of inactivity, with exception of filing of appellant's original petition for bill of review, his motion for summary judgment, and his motion for a bench warrant or video or telephone conference); Maughan v. Employees Retirement Sys., No. 03-07-00604-CV, 2008 WL 2938867, at *5 (Tex. App.-Austin Aug. 1, 2008, no pet.) (mem. op.) (13 to 14 months of inactivity, with exception of defendant's answer).

Carol argues that she "requested that the trial court lift the abatement on multiple occasions and each time was faced with opposition." The record reveals that Carol asked the trial court to lift the abatement order on July 13, 2003; August 8, 2003; September 19, 2003; March 4, 2005; and March 24, 2006. These requests were based on Carol's argument that "the matters before this Court should not be contingent" on the resolution of the appeal in the divorce litigation. The appellees opposed the 2003 requests.[2] The record does not reflect that Carol re-urged this argument for lifting the abatement after 2006 or during the 12-month period following the bankruptcy court's August 28, 2008 judgment.[3]

Carol also stated in her 2005 and 2006 status reports that she would advise the trial court when the divorce appeal was resolved. She informed the trial court in her 2007 status report that her petition for review in the divorce litigation was pending before the Texas Supreme Court. Carol provided no additional updates after 2007 or during the 12-month period following the bankruptcy court's August 28, 2008 judgment.

Carol asserts on appeal that she "sought to proceed in this matter throughout the lengthy abatement." Although Carol did certify to the trial court that she requested certain discovery from the parties before the matter was abated, the record does not indicate that Carol took any other steps to prosecute her case or requested a trial setting. Moreover, she stated in her motion to retain: "Effectively, Carol Gantt will require time to prosecute those claims which have been long abated."

Carol provided no explanation in response to the DWOP notice for her failure to update the trial court or ask the trial court to lift the abatement after (1) she exhausted her appeals in state court; or (2) the bankruptcy court entered its August 28, 2008 judgment. Carol cannot rely on the trial court's failure to sua sponte lift the abatement to excuse her failure to update the trial court on the resolution of the divorce and bankruptcy litigation and prosecute the case. Cf. Southwell Inv. Group, III v. Indwell Res., Inc., No. 14-08-00695-CV, 2010 WL 1379987, at *2 (Tex. App.-Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem. op.) ("Southwell does not explain how the absence of a scheduling order shows that it exercised diligence in prosecuting the case. Nor does Southwell explain why it did not request the trial court to enter a docket-control order before the court issued its notice to intent to dismiss for want of prosecution."); Van Dyke v. Boswell, O'Toole, Davis & Pickering, No. 14-93-00323-CV, 1994 WL 276875, at *4-5 (Tex. App.-Houston [14th Dist.] June 23, 1994, writ denied) (not designated for publication) (rejecting plaintiff's contention that her delay in prosecution was reasonable because she was waiting for trial court to set her case for trial).

Based on the record before us, we conclude that the trial court acted within its discretion to dismiss the case for want of prosecution. Keough, 204 S.W.3d at 4-5; Bilnoski, 858 S.W.2d at 58.

We overrule Carol's first issue.

III. Motion to Reinstate

Carol argues in her second issue that the trial court erred in denying Carol's motion to reinstate. We review the trial court's denial of a motion to reinstate for abuse of discretion. Keough, 204 S.W.3d at 3. When a trial court relies on its inherent authority to dismiss a case and then denies a motion to reinstate, we consider whether the trial court abused its discretion in determining that the plaintiff did not prosecute its case with due diligence. See id. at 4-5; Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 95-96 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).[4]

Carol states in her brief that "[d]uring the hearing on the motion to reinstate, sufficient explanation was given to amount to a reasonable excuse for the delay in this particular case." However, her motion to reinstate and her brief on appeal do not include any arguments that differ from the ones she made to the trial court to avoid dismissal.[5] The motion to reinstate therefore amounted to a reconsideration of the dismissal judgment.

We have already concluded that the trial court did not abuse its discretion in dismissing the case for Carol's failure to prosecute her case with due diligence. We further hold that the trial court acted within its discretion in also denying her motion to reinstate. Keough, 204 S.W.3d at 4-5; Polk, 165 S.W.3d at 95-97.

We overrule Carol's second issue.

CONCLUSION

Having overruled Carol's issues on appeal, we affirm the judgment of the trial court.


[1] The record does not indicate and the parties do not argue that the dismissal was ordered under Rule 165a(1) because Carol failed to appear for a hearing or trial. See Tex. R. Civ. P. 165a(1).


[2] Appellees may have opposed the later requests; however, the record contains no responses to the later requests or transcripts from hearings on those requests.


[3] The record contains a notice regarding a status conference scheduled to be heard on March 1, 2007. Carol argued in her motion to reinstate that "the Court indicated [at the March 1, 2007 status conference] that it would consider whether to lift the abatement and make a ruling. No such ruling has ever been issued by this Court." The record does not contain a transcript of the March 1, 2007 status conference, and we cannot confirm that Carol re-urged her request that the abatement be lifted at that time.


[4] As this court has noted in the past, not all courts of appeals apply the same standard to review a denial of a motion to reinstate when the trial court relies on its inherent authority to dismiss a case. See Southwell Inv. Group, III, 2010 WL 1379987, at *4. Other courts apply the standard set out in Rule 165a(3), regardless of whether the trial court dismissed the case under Rule 165a or whether it dismissed the case under its inherent authority. Id. (citing Cappetta v. Hermes, 222 S.W.3d 160, 164-67 (Tex. App.-San Antonio 2006, no pet.) (en banc), and Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 902-03 (Tex. App.-Houston [1st Dist.] 1991, writ denied)). Under Rule 165a(3), the court must reinstate the case if it is shown that 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 had been otherwise reasonably explained." Tex. R. Civ. P. 165a(3). Our conclusion about Carol's motion to reinstate is the same under either standard because she did not give the trial court any explanation for her failure to update the trial court or ask the trial court to lift the abatement during the 12-month period preceding the DWOP notice.


[5] Carol argued in her motion to reinstate that she "most certainly did not consciously or deliberately fail to prosecute this matter. At worst, any failures by Carol Gantt were the result of accident or miscommunication or other reasonable explanation." However, she states on appeal: "The delay was justified as the delay was not intentional or the result of conscience [sic] indifference, but rather was the result of a prolonged divorce proceeding that suffered the fate of various appeals and bankruptcy proceedings." This argument does not differ from those already made to the trial court to avoid dismissal.