tag:blogger.com,1999:blog-8413310418169432642024-02-08T03:48:54.511-08:00TRCP DWOP CaselawAppellate Cases and Case Law relating to the DWOP Rule and Postjudgment Motions. Tex. R. Civ. P. 165a (Dismissal for Want of Prosecution and Reinstatement)& Dismissal of Appeals for want of prosecutionTHE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.comBlogger28125tag:blogger.com,1999:blog-841331041816943264.post-40300379457415425342011-09-28T16:45:00.000-07:002011-09-28T17:23:33.853-07:00Dismissal of PI suit against Metro for want of prosecution affirmed<em><strong><span style="color: #990000;">James v. Metropolitan Transit Authority (Metro), </span></strong></em><br />
<span style="font-size: x-small;">No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011) </span><br />
<br />
<span style="color: #0b5394;"><strong>MEMORANDUM OPINION</strong></span><br />
<br />
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.<br />
<br />
Background<br />
<br />
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 <a href="http://www.houston-opinions.com/law-bill-of-review.html">bill of review</a> 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." <br />
<br />
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 <a href="http://www.houston-opinions.com/law-certificate-of-service.html">certificate of service</a>, it does not indicate service on Respondent." On October 7, 2010, the trial court dismissed appellant's petition for bill of review.<br />
<br />
<strong>Dismissal for Want of Prosecution</strong><br />
<br />
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. <em>Villarreal v. San Antonio Truck & Equip. Co</em>., 994 S.W.2d 628, 630 (Tex. 1999); 3V<em>, Inc. v. JTS Enterprises, Inc</em>., 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. <em>Villarreal</em>, 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. <em>Nawas v. R & S Vending</em>, 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. <em>MacGregor v. Rich</em>, 941 S.W.2d 74, 75 (Tex. 1997).<br />
<br />
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. <em>See generally</em> Tex. R. App. P. 26.1. The judgment appellant appealed is the dismissal of his petition for bill of review.<br />
<br />
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. <em>Auten v. DJ Clark, Inc</em>., 209 S.W.3d 695, 705 (Tex. App.-Houston [14th Dist.] 2006, no pet.). <br />
<br />
When a party learns, or <a href="http://www.houston-opinions.com/law-diligence-in-serving-defendant-SoL.html">by exercise of due diligence</a> should have learned, that the clerk failed to fulfill his duty under Rule 99, the <a href="http://www.houston-opinions.com/law-service-of-process.html">party must ensure the defendant is properly served</a>. <em>Id</em>. Because appellant failed to <a href="http://www.houston-opinions.com/law-diligence-in-serving-defendant-SoL.html">exercise due diligence to ensure proper service</a> 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.<br />
<br />
The judgment of the trial court is affirmed.<br />
<br />
Affirmed.<br />
<br />
<em>James v. Metropolitan Transit Authority (Metro),</em> Theresa Chang, et al <br />
No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011)THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-10446359794343977542011-09-02T09:23:00.000-07:002011-09-02T09:23:30.838-07:00Dismissal based on no-show at trial or hearing<br />
<b><span class="Apple-style-span" style="color: #0b5394;">Dismissal of the Consumers' Counterclaims in Capital One Auto Finance, Inc.'s Suit on Car Note </span></b><br />
<br />
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. . . ." <i>Id</i>. "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."<i> Id</i>. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal if not cured. <i>Villarreal v. San Antonio Truck &amp</i>; <i>Equip</i>., 994 S.W.2d 628, 630 (Tex. 1999).<br />
<br />
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.<br />
<br />
<b><span class="Apple-style-span" style="color: #0b5394;">Failure to Reinstate the Consumers' Counterclaims</span></b><br />
<br />
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." <i>Id</i>. We review a trial court's decision on a motion to reinstate for an abuse of discretion. <i>Brown v. Howeth Invs., Inc</i>., 820 S.W.2d 900, 903 (Tex. App.-Houston [1st Dist.] 1991, writ denied).<br />
<br />
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. <i>See</i> TEX. R. CIV. P. 165a(3).<br />
<br />
SOURCE: First Court of Appeals (Houston) - No 01-10-00447-CV - 7/28/11 <br />
Click below to read the entire opinion in <i>Lewis v. CAPITAL ONE AUTO FINANCE, INC.</i>,<br />
<br />
<a name='more'></a><br />
<br />
SAM LEWIS and SHIRLEY LEWIS, Appellants,<br />
v.<br />
CAPITAL ONE AUTO FINANCE, INC., Appellee.<br />
<br />
No. 01-10-00447-CV.<br />
Court of Appeals of Texas, First District, Houston.<br />
<br />
Opinion issued July 28, 2011.<br />
Panel consists of Justice KEYES, HIGLEY and MATTHEWS.[5]<br />
<br />
MEMORANDUM OPINION<br />
<br />
LAURA CARTER HIGLEY, Justice.<br />
<br />
Appellants, Sam Lewis and Shirley Lewis, appearing pro se,[1] appeal a post-answer default judgment rendered in favor of appellee, Capital One Auto Finance, Inc. ("Capital One"), on its claim for breach of contract and on their counterclaims. In seven issues, the Lewises contend that the trial court erred by (1) failing to file findings of fact and conclusions of law and asking Capital One to prepare the same, (2) the manner in which it held trial, granted judgment, and dismissed their counterclaims, which it then refused to reinstate, (3) refusing to rule on and grant their motion for summary judgment, (4) refusing to rule on and grant their other motions, (5) refusing to allow them a trial by jury, (6) allowing Capital One to continue in the cause of action without curing or pleading in regards to their special exceptions, lack of standing, lack of jurisdiction, statute of limitations, waiver, failure of consideration, repudiation, failure to mitigate, and failure to prove the elements of the cause of action, and (7) granting damages and attorney's fees that were not provided for by the contract. For the reasons stated below, we affirm.<br />
<br />
Background<br />
<br />
In June 2004, the Lewises purchased a new truck from Sonic Automotive of Texas LP, doing business as Lone Star Ford, pursuant to an installment-sale contract. Under the contract, the Lewises agreed to make monthly payments for six years. The contract assigned without recourse the seller's interest in the contract to Capital One.<br />
<br />
Beginning in August, the Lewises made regular monthly payments under the contract. However, after July 2007, the Lewises stopped making further payments, leaving a remaining balance of $15,722.21.<br />
<br />
In March 2009, Capital One sued the Lewises for breach of contract and attorney's fees. In July, the Lewises filed their original answer and counterclaims. In October, they filed their first supplement to their original answer and counterclaims. Under the caption "Special Exception," they asserted that Capital One had failed to (1) plead or address limitations, (2) plead lack of jurisdiction or venue, (3) clearly define or list the names of all plaintiffs, (4) prove capacity and standing, (5) prove the elements of the claims, (6) clearly and completely define or list its claims, or (7) prove the facts or claims contained in their supplement.<br />
<br />
In October, the trial court issued an order setting the case for trial on January 20, 2010. On December 14, the Lewises filed responses and objections in which they stated, "The cause of action is scheduled for trial in approximately thirty (30) days." The day before trial, the Lewises filed an emergency motion for a continuance.<br />
<br />
On January 20, 2010, the trial court conducted a bench trial. The Lewises failed to appear. Capital One offered into evidence the installment-sale contract, the transaction history of the Lewises' account, and the affidavit of Capital One's attorney of record in support of attorney's fees. In his affidavit, Capital One's attorney attests that pursuant to sections 38.003 and 38.004 of the Texas Civil Practices and Remedies Code, reasonable, customary, and usual attorney's fees for this case were $3,144.44.<br />
<br />
On February 24, the trial court signed the final judgment against the Lewises, awarding Capital One $15,722.21 in actual damages for breach of contract and $3,144.44 in attorney's fees with post-judgment interest to accrue at 5% per year and disposing of all other claims in this cause of action, including the Lewises' counterclaims.<br />
<br />
On March 16, the Lewises requested findings of fact and conclusions of law.<br />
<br />
On March 24, the Lewises filed a motion for new trial, asking whether a secret ex parte nonjury trial took place without their knowledge.<br />
<br />
On April 22, the trial court requested Capital One submit its proposed findings of fact and conclusions of law. On April 28, the trial court entered findings of fact and conclusions of law. The trial court found that it had personal jurisdiction over all the parties, that it had subject-matter jurisdiction over the case, that all the parties were properly notified of the trial setting, but that the Lewises failed to appear. The court also found that Capital One proved the elements of its claim by presenting evidence at the trial and that it denied the Lewises' counterclaims due to their failure to appear. Having considered the Lewises' motion for new trial and the subsequent objections and replies, the court also found that there was insufficient ground to grant a new trial because the Lewises failed to provide sufficient evidence of a good cause for their failure to appear or that they had a meritorious defense.<br />
<br />
On May 21, the Lewises filed a verified motion to reinstate. On May 28, the Lewises filed their appeal with this Court.<br />
<br />
Special Exceptions<br />
<br />
In their sixth issue, the Lewises contend that the trial court erred by allowing Capital One to continue in the cause of action without curing or pleading in regard to their special exceptions concerning Capital One's lack of standing, the lack of jurisdiction, their defense of limitations, their defense of waiver, their defense of failure of consideration, their defense of repudiation, their defense of failure to mitigate damages, and Capital One's failure to prove the elements of the cause of action. However, in the absence of a written order on a special exception, the special exception is waived. Gallien v. Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 862 (Tex. App.-Texarkana 2006, no pet.); see also Winfield v. Pietsch, No. 07-09-0261-CV, 2011 WL 336131, at *6 (Tex. App.-Amarillo Feb. 3, 2011, no pet.) (mem. op.); In re D.C.M., No. 14-06-00844-CV, 2008 WL 4146785, at *6 (Tex. App.-Houston [14th Dist.] Sept. 9, 2008, pet. denied) (mem. op.). Because the Lewises failed to obtain a written order on their special exceptions, they waived their special exceptions.<br />
<br />
We overrule the Lewises' sixth issue.<br />
<br />
Lewises' Motions<br />
<br />
In their third and fourth issues, the Lewises contend that the trial court erred by refusing to rule on or grant their many pre- and post-trial motions, including their motion for summary judgment. In support, they proffer two arguments. First, they note that Capital One did not file a response to any of their motions other than their motion for new trial. Thus, they contend that their motions were unopposed and that the trial court should have granted their motions. However, the Lewises failed to provide any argument or citation to legal authority supporting this conclusion. See TEX. R. APP. P. 38.1(i) ("[An appellant's] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").<br />
<br />
Second, they contend that a trial court abuses its discretion by refusing to rule on a motion or objection within a reasonable time. See, e.g., Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) ("When a motion is properly filed and pending before a trial court, . . . a trial court must consider and rule upon the motion within what, when all the surrounding circumstances are taken into account, constitutes a reasonable time. . . . [A] trial court has no discretion to refuse to act."); see also Grant v. Wood, 916 S.W.2d 42, 45 (Tex. App.-Houston [1st Dist.] 1995, orig. proceeding) (citing Cooke v. Millard, 854 S.W.2d 134, 135 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding)).[2] Assuming the trial court abused its discretion by failing to rule, we nevertheless conclude that the Lewises have failed to show any harm. A judgment may be reversed on appeal on the ground that the trial court made an error of law only if (A) the error probably caused the rendition of an improper judgment or (B) the error probably prevented the appellant from properly presenting the case to the court of appeals. TEX. R. APP. P. 44.1(a). Although they broadly assert that the trial court's refusal to rule on their many motions harmed them by causing a judgment to be rendered against them, the Lewises fail to show that, had the trial court ruled on their motion, it would have granted their motions. Additionally, the Lewises fail to show how the granting of their motions would have lessened the probability of an improper judgment.<br />
<br />
We overrule the Lewises' third and fourth issues.<br />
<br />
Manner in Which Court Held Trial and Granted Judgment<br />
<br />
In their second issue, the Lewises contend that the trial court erred by the manner in which it held the trial and granted the judgment and by dismissing their counterclaims and failing to reinstate.<br />
<br />
A. Default Judgment on Capital One's Contract Claim<br />
<br />
A default judgment should be set aside and a new trial granted when the defaulting party establishes that (1) the failure to appear was not intentional or the result of conscious indifference but was the result of an accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939); see Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966) (applying Craddock test to post-answer default judgments). We review a trial court's decision on a motion for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987).<br />
<br />
The Lewises offer only one explanation for their failure to appear at the January 20 trial setting: They assert that they did not receive notice. However, the Lewises have failed to provide any citation to the record indicating that they did not receive notice of the January 20 trial setting. Likewise, they failed to attach to their motion for new trial any evidence of their purported failure to receive notice. Moreover, we note that in their responses and objections filed on December 14, 2009, the Lewises stated, "The cause of action is scheduled for trial in approximately thirty (30) days." We conclude that the Lewises have failed to show that their failure to appear was not intentional or the result of conscious indifference but was the result of an accident or mistake.<br />
<br />
B. Dismissal of the Lewises' Counterclaims<br />
<br />
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).<br />
<br />
The Lewises 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 Lewises 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 Lewises 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 Lewises have failed to show that they did not receive notice of intent to dismiss.<br />
<br />
C. Failure to Reinstate the Lewises' Counterclaims<br />
<br />
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).<br />
<br />
The trial court signed the final judgment dismissing the Lewises' counterclaims on February 24, 2010, and the Lewises 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).<br />
<br />
D. Capital One's Attorney at Trial<br />
<br />
Also in their second issue, the Lewises assert that Capital One did not attend the January 20 trial because counsel other than Capital One's attorney of record appeared. However, the Lewises fail to provide any citation to the record indicating that the attorney who appeared was not authorized to represent Capital One. In their reply brief, the Lewises note that the reporter's record does not indicate that the trial court ever asked the attorney to identify himself. However, they fail to cite to any legal authority establishing that the reporter's record's silence on this issue constitutes error. Moreover, the Lewises also fail to show how the attorney's appearance caused them harm—that is, how it probably caused the rendition of an improper judgment or how it probably prevented the appellant from properly presenting the case to the court of appeals.<br />
<br />
We overrule the Lewises' second issue.<br />
<br />
No Trial By Jury<br />
<br />
In their fifth issue, the Lewises contend that the trial court abused its discretion by refusing to allow them a trial by jury. They Lewises provide no argument or citation to legal authority to support this proposition. We conclude that the Lewises have waived their first issue for failure to adequately brief. See TEX. R. APP. P. 38.1(i).<br />
<br />
We overrule the Lewises' fifth issue.<br />
<br />
Findings of Fact and Conclusions of Law<br />
<br />
In their first issue, the Lewises contend that the trial court erred by failing to file its own findings of fact and conclusions of law and by asking Capital One to prepare the same. They further assert that this action hinted of a possible bias, fraud, and conspiracy. According to the Lewises, a trial court has a responsibility to prepare its own findings of fact and conclusions of law. However, the Lewises provide no argument or citation to legal authority to support their assertions. We conclude that the Lewises have waived their first issue for failure to adequately brief. See TEX. R. APP. P. 38.1(i).<br />
<br />
We overrule the Lewises' first issue.<br />
<br />
Award of Damages and Attorney's Fees Not Provided for By Contract<br />
<br />
In their seventh issue, the Lewises contend that the trial court erred by granting damages and attorney's fees that were not provided for by the contract. Specifically, the Lewises assert that prior to signing the contract, they struck out certain terms concerning remedies and the recovery of attorney's fees in the event of their default.<br />
<br />
The installment sale contract at issue is a form contract printed on both sides of a long piece of paper. On the front, the contract displays the Lewises' signatures and the material terms of the bargain, including a description of the vehicle; the amount borrowed; the interest rate; and the number, frequency, and amount of payments due. Also on the front, immediately underneath the Lewises' signatures, appears the phrase, "See back for other important agreements." The terms that the Lewises alleged that they struck out appear on the backside of the contract, which they attached as an exhibit to their original answer.[4]<br />
<br />
However, at trial, Capital One admitted into evidence only the front side of the contract. Capital One also admitted a transaction history for the Lewises' account, which displayed a remaining balance of $15,722.21, and an affidavit from its attorney attesting that reasonable, customary, and usual attorney's fees for this case were $3,144.44. The trial court awarded damages in exactly these amounts. The Lewises failed to appear, and thus they offered no contravening evidence. Because the purportedly altered terms were not admitted at trial, the trial court did not erred by awarding damages and attorney's fees.<br />
<br />
We overrule the Lewises' seventh issue.<br />
<br />
Conclusion<br />
<br />
We affirm.<br />
<br />
[5] The Honorable Sylvia Matthews, judge of the 281st District Court of Harris County, participating by assignment.<br />
<br />
[1] "We note that parties who appear pro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys." Douglas v. Williams, No. 01-09-00777-CV, 2011 WL 2499886, at * 1 n.1 (Tex. App.-Houston [1st Dist.] June 23, 2011, no pet h.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.-Houston [1st Dist.] 1985, no writ)).<br />
<br />
[2] We note that the only legal authorities that the Lewises cite in support of the proposition that a trial court abuses its discretion by refusing to rule on a properly filed motion concern the context of a mandamus proceeding, not a direct appeal, as in the present case. They provide no argument or authority to support the proposition that the same legal standard applies on direct appeal.<br />
<br />
[3] We note that the Lewises alleged in their verified motion to reinstate that they did not receive notice of intent to dismiss. However, as explained below, the Lewises' motion to reinstate was not timely filed.<br />
<br />
[4] The copy of the backside of the contract that the Lewises attached to their original answer appears in pertinent part as follows:<br />
<br />
You may have to pay all you owe at once. If you break your promises (default), or if the contract is impaired, we may demand that you pay all you owe on this contract at once. You will be in default if:<br />
<br />
• You do not pay any amount when due;<br />
<br />
• You file bankruptcy, bankruptcy is filed against you, or the vehicle becomes involved in a bankruptcy.<br />
<br />
• You allow a judgment to be entered against you or the collateral; or<br />
<br />
• You break any of your promises in this contract.<br />
<br />
. . . .<br />
<br />
You may have to pay collection costs. If we hire an attorney who is not a salaried employee to collect what you owe; you will pay any reasonable attorney's fees plus any court costs and disbursement as the law allows.<br />
<br />
Even as supposedly modified, the contract still provides that the Lewises "may have to pay all you owe at once . . . [and] may have to pay collection costs." Although the contract may not expressly authorize attorney's fees, it does not prohibit them either.<br />
<br />
<br />
<br />
THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com8tag:blogger.com,1999:blog-841331041816943264.post-4116448832996662802011-09-02T09:07:00.000-07:002011-09-02T09:11:45.097-07:00Appealing a dismissal for want of prosecution<br />
<i><span class="Apple-style-span" style="color: #660000; font-size: large;">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: </span></i><br />
<br />
We review a trial court's grant of a motion to dismiss for want of prosecution under an abuse of discretion standard. <i>In re Fifty-One Gambling Devices</i>, 298 S.W.3d 768, 773 (Tex.App.-Amarillo 2009, pet. denied); <i>Christian v. Christian</i>, 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. <i>Worford v. Stamper</i>, 801 S.W.2d 108, 109 (Tex. 1990) (<i>citing Downer v. Aquamarine Operators, Inc.</i>, 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. <i>FDIC v. Kendrick</i>, 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. <i>See Rampart Capital Corp. v. Maguire</i>, 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).<br />
<br />
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. <i>Villarreal v. San Antonio Truck & Equip.</i>, 994 S.W.2d 628, 630 (Tex. 1999).<br />
<br />
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).<br />
<br />
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. <i>Ozuna v. Southwest Bio-Clinical Labs</i>., 766 S.W.2d 900, 901 (Tex.App.-San Antonio 1989, writ denied), disapproved on other grounds by <i>Villarreal</i>, 994 S.W.2d at 633; Rampart Capital Corp. 974 S.W.2d at 197.<br />
<br />
SOURCE: Amarillo Court of Appeals - No. 07-09-00383-CV - 3/11/11<br />
To read the entire opinion, click the link below<br />
<br />
<a name='more'></a><br />
<br />
THE STATE OF TEXAS, Appellant,<br />
v.<br />
FORTY-TWO (42) GAMBLING DEVICES, AND THIRTY-SEVEN THOUSAND EIGHTY-ONE DOLLARS AND EIGHTY-NINE CENTS ($37,081.89) IN UNITED STATES CURRENCY, Appellee.<br />
<br />
No. 07-09-00383-CV.<br />
Court of Appeals of Texas, Seventh District, Amarillo.<br />
<br />
March 11, 2011.<br />
Panel A: Before CAMPBELL and HANCOCK and PIRTLE, JJ.<br />
<br />
MEMORANDUM OPINION<br />
<br />
JAMES T. CAMPBELL, Justice.<br />
<br />
The State appeals an order dismissing the underlying forfeiture case for want of prosecution. Finding no abuse of discretion by the trial court, we will affirm.<br />
<br />
Background<br />
<br />
In May 2002, the State initiated a proceeding seeking forfeiture of asserted gambling devices and gambling proceeds.[1] The real parties in interest, Mike Lewis and Ryan Lewis (Lewis), filed an answer the next month. Lewis made written demand for trial by jury and paid the requisite fee. The State filed a motion for summary judgment in July 2003. The motion was set for hearing in August 2003, but the hearing was continued by the trial court to an unspecified date.<br />
<br />
In January 2004, Lewis moved for summary judgment. The State's motion remained pending. Although it contains no ruling on the summary judgment motions, the record indicates the trial court denied both motions. A docket sheet entry in September 2004 states the case was placed on the dismissal docket. No motion to retain or order retaining the case follows in the record.<br />
<br />
Inactivity in the case followed until the court issued a show cause order in July 2005, setting a trial date of August 19, 2005. Between August 5 and August 11, Lewis filed what the State characterizes "a number of dilatory motions." The filings included a motion for continuance and a motion for recusal of the trial judge. Lewis withdrew the recusal motion on August 11, and this was recognized by an August 25 order.[2]<br />
<br />
The record reflects no activity in the case during 2006, nor before May of 2007, when it again was placed on a dismissal docket. In a motion to retain filed May 29, the State expressed its readiness for trial and requested a trial setting. By a July 23, 2007 order, the court retained the case and set it for trial in February 2008.<br />
<br />
During December 2007 and January 2008, Lewis filed five motions including a second motion to recuse the trial judge. This recusal motion was granted by order of an assigned judge on June 20, 2008. And by order signed June 25, but effective September 1, the regional presiding administrative judge assigned the Honorable H. Bryan Poff responsibility for presiding over the case.<br />
<br />
After Judge Poff's assignment, the record reflects no activity in the case for some fourteen months, until October 28, 2009, when Lewis filed a motion to dismiss for want of prosecution grounded on the inherent power of the court to manage its docket and Rule of Civil Procedure 165a(2). In a response, the State indicated it was ready for trial and argued it previously requested a trial setting and, according to Rule of Civil Procedure 245, was not required to make a subsequent request. Following a November 4 hearing, Judge Poff dismissed the case for want of prosecution. The order of dismissal does not recite the grounds for dismissal. The State filed a verified motion to reconsider which was overruled by operation of law.<br />
<br />
Analysis<br />
<br />
The State brings two issues on appeal. First, it asserts dismissal for want of prosecution was an abuse of discretion because it complied with Rule 245. Second, it contends Lewis invited error by filing a "spate of dilatory motions" resulting in trial delay. Because of their interrelation, we will discuss the issues jointly.<br />
<br />
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).<br />
<br />
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.<br />
<br />
The State points to Rule 245's language providing that when a case previously has been set for trial, the court may reset it to a later date on any reasonable notice to the parties. Tex. R. Civ. P. 245. But the State cites no authority for its contention the operation of Rule 245 precludes dismissal of a case when it has once been set for trial, and we are aware of none. We cannot agree that a representation of readiness for trial alone relieves a plaintiff of responsibility to prosecute its case diligently or within the applicable time standard, on peril of dismissal. See Knight v. Trent, 739 S.W.2d 116, 118 (Tex.App.-San Antonio 1987, no writ), disapproved on other grounds by Villarreal, 994 S.W.2d at 633 (plaintiff bears burden of prosecuting case with due diligence);Sustala v. El-Romman, 712 S.W.2d 164, 166 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.) (case subject to dismissal even if plaintiff represents no intention to abandon suit and current readiness for trial).<br />
<br />
Moreover, the State's contention runs counter to established case law holding that when resolving a question of diligent prosecution, a court may consider the entire history of the litigation, and no single factor controls the analysis. Ozuna, 766 S.W.2d at 902; see Straus v. Auto Mgmt., No. 01-07-0158-CV, 2010 Tex. App. Lexis 541, at *4 (Tex.App.-Houston [1st Dist.] Jan. 28, 2010, no pet.) (mem. op.); Herrera v. Rivera, 281 S.W.3d 1, 6 (Tex.App.-El Paso 2005, no pet.); In re Marriage of Seals, 83 S.W.3d 870, 874 (Tex.App.-Texarkana 2002, no pet.); Lopez v. Harding, 68 S.W.3d 78, 80 n.2 (Tex.App.-Dallas 2001, no pet.).<br />
<br />
The State cites also our opinion in Moore v. Armour & Co., Inc., 660 S.W.2d 577 (Tex.App.-Amarillo 1983, no writ). There, after the filing of a motion to dismiss for lack of prosecution, plaintiff Moore employed new counsel, who asked the court to set the case for trial. The court set the case for trial during the week of September 8, 1981, and Moore announced ready at the September 4 docket call. Because the case was eighth on the jury docket, however, it was not reached for trial that week. A few days later, on September 18, the trial court heard and granted the motion to dismiss for lack of prosecution. On appeal, we reversed, finding dismissal of the case after Moore announced ready, secured a trial setting and stood ready to go to trial, was an abuse of discretion. Id. at 578. Moore is readily distinguishable from the case at bar. The court here did not dismiss the State's forfeiture action a few days after having set it for trial and hearing the plaintiff's announcement of ready, but after a lengthy period of inactivity.<br />
<br />
The State further posits the trial court abused its discretion by allowing Lewis to delay final disposition through numerous motions and then reap the benefit of dismissal for want of prosecution. According to the State, this amounts to "invited error" by Lewis. "The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal." In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (citing Tittizer v. Union Gas Corp., 171 S. W.3d 857, 862 (Tex. 2005)). In other words, "a party cannot complain on appeal that the trial court took a specific action that the complaining party requested . . . ." Tittizer, 171 S.W.3d at 862. Here, Lewis does not complain on appeal of the trial court's ruling. The invited error doctrine has no application in this appeal.<br />
<br />
Although it is not clearly indicated by the record, we discern the August 2005 and February 2008 trial settings were vacated because Lewis filed recusal motions. See Tex. R. Civ. P. 18a(c) (prior to further proceedings, judge shall recuse or request presiding judge to assign judge to hear motion). The State argues the facts here are no different from those of In re Fifty-One Gambling Devices where we found the trial court did not abuse its discretion by denying a motion to dismiss for want of prosecution. 298 S.W.3d 768. We disagree. In the present matter, prosecution was no doubt delayed by Lewis's two recusal motions, the second of which was successful, but the delays do not explain the significant periods of inactivity, including the period immediately before the dismissal. Just as the trial court did not abuse its discretion by denying the motion in Fifty-One Gambling Devices, it did not abuse it by granting the motion here. Some evidence supported the trial court's action there, and the same is true here. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (if some evidence reasonably supports trial court's decision, there is no abuse of discretion).<br />
<br />
On this record, the trial court could have found an unreasonable delay in prosecution of the case occurred when it was not disposed of within the time standards promulgated by the supreme court. Tex. R. Civ. P. 165a(2). The court further could have found the State's explanation for delay based on Rule 245 and the invited error doctrine insufficient. See Maughan v. Employees Ret. Sys. of Tex., No. 03-07-0604-CV, 2008 Tex. App. Lexis 5822, at *9 (Tex.App.-Austin Aug. 1, 2008, no pet.) (mem. op.) (trial court may dismiss case pending longer than supreme court's time frames if plaintiff fails to show good cause for delay); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 541 (Tex.App.-Houston 14th Dist. 2000, no pet.) (when unreasonable delay in prosecution of case occurs, presumed that case has been abandoned; if delay is not sufficiently explained, presumption of abandonment is conclusive and case will be dismissed) (citations omitted).<br />
<br />
Moreover, in considering the entire history of the case the trial court could take into account 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. City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.App.-Houston [1st Dist.] 1992, no writ). See Douglas v. Douglas, No. 01-06-0925-CV, 2008 Tex. App. Lexis 9031, at *4-*5 (Tex.App.-Houston [1st Dist.] Dec. 4, 2008, pet. denied) (mem. op.) (case on file for eight months properly dismissed under exercise of trial court's inherent power when record showed limited activity and no request for a trial setting). Given the complete history of the present case including the explanation offered for its delayed prosecution, we conclude also it was not an abuse of discretion for the trial court to dismiss the case through an exercise of its inherent power.<br />
<br />
We overrule the State's two issues on appeal, and affirm the judgment of the trial court.<br />
<br />
<span class="Apple-style-span" style="font-size: x-small;">[1] See Tex. Code Crim. Proc. Ann. art. 18.18 (West Supp. 2010).</span><br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[2] Although not specified by order in the record, it appears Lewis's recusal motion caused the August 19 setting to be vacated. See Tex. R. Civ. P. 18a(c).</span><br />
<br />
<br />
THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-10267076539413550722011-09-02T08:56:00.000-07:002011-09-02T09:11:04.418-07:00Due Process requires Notice and Hearing prior to DWOP Dismissal<i><span class="Apple-style-span" style="color: #660000; font-size: large;"><br />
</span></i><br />
<i><span class="Apple-style-span" style="color: #660000; font-size: large;">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:</span></i><br />
<br />
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. <i>Villareal v. San Antonio Truck & Equip</i>., 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. <i>Id.</i> A notice of dismissal must inform a plaintiff of the exact reason for dismissal; otherwise, it violates the party's due process rights. <i>3V, Inc. v. JTS Enters., Inc.</i>, 40 S.W.3d 533, 543 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (<i>citing Villareal</i>, 994 S.W.2d at 628).<br />
<br />
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. <i>See Jiminez v. Transwestern Prop. Co</i>., 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."); <i>see also Wright v. Tex. Dept. of Criminal Justice—Institutional Div.</i>, 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."); <i>Franklin v. Sherman Ind. Sch. Dist</i>., 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.'") (<i>quoting Jiminez</i>, 999 S.W.2d at 128).<br />
<br />
SOURCE: Fourteenth Court of Appeals in Houston - No. 14-10-00003-CV - 11/12/11<br />
To see the entire opinion, follow the link below<br />
<br />
<a name='more'></a><br />
CAROL GANTT, Appellant,<br />
v.<br />
RUBY GETZ et al, Appellees <br />
<br />
No. 14-10-00003-CV.<br />
Court of Appeals of Texas, Fourteenth District, Houston.<br />
<br />
Memorandum Opinion filed May 12, 2011.<br />
Panel consists of Justices Brown, Boyce, and Jamison.<br />
<br />
MEMORANDUM OPINION<br />
<br />
WILLIAM J. BOYCE, Justice.<br />
<br />
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.<br />
<br />
BACKGROUND<br />
<br />
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).<br />
<br />
I. Divorce Litigation<br />
<br />
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.<br />
<br />
II. Bankruptcy Litigation<br />
<br />
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.<br />
<br />
III. Present Litigation<br />
<br />
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:<br />
<br />
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.<br />
<br />
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.<br />
<br />
The trial court sent the following notice of dismissal for want of prosecution ("DWOP notice") to the parties on September 2, 2009:<br />
<br />
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.<br />
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."<br />
<br />
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:<br />
<br />
[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.<br />
* * *<br />
Carol Gantt has simply been waiting and continues to wait for this Court's lifting of its abatement.<br />
The trial court denied the motion to reinstate, and Carol filed a timely notice of appeal.<br />
<br />
ANALYSIS<br />
<br />
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.<br />
<br />
I. DWOP Notice<br />
<br />
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."<br />
<br />
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).<br />
<br />
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).<br />
<br />
We overrule Carol's third issue.<br />
<br />
II. Dismissal for Want of Prosecution<br />
<br />
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."<br />
<br />
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.<br />
<br />
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.<br />
<br />
A. Authority to Dismiss<br />
<br />
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).<br />
<br />
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.<br />
<br />
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.<br />
<br />
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)).<br />
<br />
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.").<br />
<br />
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.<br />
<br />
B. Failure to Prosecute with Due Diligence<br />
<br />
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.<br />
<br />
"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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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).<br />
<br />
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).<br />
<br />
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]<br />
<br />
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.<br />
<br />
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."<br />
<br />
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).<br />
<br />
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.<br />
<br />
We overrule Carol's first issue.<br />
<br />
III. Motion to Reinstate<br />
<br />
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]<br />
<br />
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.<br />
<br />
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.<br />
<br />
We overrule Carol's second issue.<br />
<br />
CONCLUSION<br />
<br />
Having overruled Carol's issues on appeal, we affirm the judgment of the trial court.<br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[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).</span><br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[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.</span><br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[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.</span><br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[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.</span><br />
<span class="Apple-style-span" style="font-size: x-small;"><br />
</span><br />
<span class="Apple-style-span" style="font-size: x-small;">[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.</span><br />
<br />
THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-23420713730669084062011-08-27T14:37:00.000-07:002011-08-27T14:47:30.622-07:00Dismissal of appeal for failure to file clerk's record<i><span class="Apple-style-span" ><span class="Apple-style-span">
<br /><span >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. </span></span>
<br /></span></i>
<br />M. R. YOUNG
<br />v.
<br />CITIBANK (SOUTH DAKOTA) N.A.<div>
<br /><span class="Apple-style-span">Court of Appeals of Texas, Eleventh District, Eastland.
<br /><span class="Apple-style-span" >Panel[1] consists of: Wright, C.J., McCall, J., and Hill, J.[2]</span></span>
<br />
<br /><span class="Apple-style-span" ><b>MEMORANDUM OPINION</b></span>
<br />
<br />PER CURIAM.
<br />
<br />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.
<br />
<br />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.
<br />
<br />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.
<br />
<br /><span class="Apple-style-span" >[1] Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.
<br />
<br />[2] John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.</span>
<br />
<br />SOURCE: Eastland Court of Appeal
<br />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.
<br /></div><div>
<br /></div><div>
<br /></div>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-37144462183489682522011-08-27T14:24:00.001-07:002011-08-27T14:35:11.158-07:00Appeals also subject to DWOP<b><span class="Apple-style-span" ><div><b><span class="Apple-style-span" >
<br /></span></b></div>Courts of Appeals have their own dismissal rule. </span></b><div><b><span class="Apple-style-span">
<br /></span></b></div><div><span class="Apple-style-span" ><i>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.</i></span>
<br />
<br /><span class="Apple-style-span" ><b>PER CURIAM MEMORANDUM OPINION </b></span></div><div><span class="Apple-style-span" ><b>BY HOUSTON's FIRST COURT OF APPEALS </b></span>
<br />
<br />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). <div>
<br /></div><div>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.
<br />
<br />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.
<br />
<br />Appellant's motion for extension of time to file appellant's brief is denied.
<br />
<br />This appeal is dismissed for want of prosecution.
<br />
<br />SOURCE: Houston's First Court of Appeals.
<br />No. 01-07-01041-CV - Dismissed on March 31, 2011
<br />
<br /></div></div>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-6536915385568484722011-08-20T10:57:00.000-07:002011-08-20T11:09:32.690-07:00Dismissal Standard<strong><span style="color:#000099;">Dismissal of Lawsuit
<br /></span></strong>
<br /><span style="color:#660000;"><strong>Standard of Review and Applicable Law </strong></span>
<br />
<br />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.
<br />
<br />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).
<br />
<br />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.
<br />
<br />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.
<br />
<br /><span style="color:#660000;"><strong>Dismissal Under Rule 165a
<br /></strong></span>
<br />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.
<br />
<br />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]
<br />
<br />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.
<br />
<br />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).
<br />
<br />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.
<br />
<br />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).
<br />
<br />SOURCE: Dallas Court of Appeals - 05-10-00635-CV - 8/16/11
<br />THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-25875043472084983042009-11-09T18:22:00.000-08:002009-11-09T18:32:33.863-08:00DWOP Law and Case Citations from the Dallas Court of Appeals (in Pro Se Prisoner Appeal)<span style="color:Black;"><span style="font-weight: bold; color: rgb(0, 0, 153);"><br />DISMISSAL FOR WANT OF PROSECUTION</span><br /></span><div align="left"><span style="color:Black;"><br /></span><span style=";font-size:100%;color:Black;" > In his sole issue on appeal, appellant contends the trial court judge abused her </span><span style=";font-size:100%;color:Black;" >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.<br /><br /></span><div align="center"><span style="font-weight: bold; color: rgb(102, 0, 0);"><i>A. Standard of Review</i><br /></span><div align="left"><span style="color:Black;"><br /></span><span style=";font-size:100%;color:Black;" > We review a dismissal for want of prosecution under an abuse of discretion </span><span style=";font-size:100%;color:Black;" >standard. <i>State v. Rotello</i>, 671 S.W.2d 507, 509 (Tex. 1984); <i>Crown Asset Mgmt., L.L.C. v. Bogar</i>, 264 S.W.3d 420, </span><span style=";font-size:100%;color:Black;" >422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an </span><span style=";font-size:100%;color:Black;" >abuse of discretion because there is a presumption the action of the trial court was justified. <i>Bogar</i>, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. <i>Id. </i>(citing <i>Cire v. Cummings</i>, 134 S.W.3d 835, 839 (Tex. 2004)).<br /><br /></span><div align="center"><span style="font-weight: bold; color: rgb(102, 0, 0);"><i>B. Applicable Law</i><br /></span><div align="left"><span style="color:Black;"><br /></span><span style=";font-size:100%;color:Black;" > A trial court's power to dismiss a suit for want of prosecution originates from </span><span style=";font-size:100%;color:Black;" >two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. <i>Id. </i>(citing <i>Villareal v. San Antonio Truck & Equip.</i>, 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 <a name="081485F-F1"></a>Court. </span><span style=";font-size:78%;color:Black;" ><i>See Footnote</i></span><span style=";font-size:100%;color:Black;" > <a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_10.ask+B+081485F%2dR1#081485F-R1"><i>1</i></a> <i>See</i> 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. <i>Bogar</i>, 264 S.W.3d at 422 (citing <i>Villareal</i>, 994 S.W.2d at 630).<br /></span><span style=";font-size:100%;color:Black;" ><br /> As a general rule, we must affirm a trial court's judgment if an appellant does </span><span style=";font-size:100%;color:Black;" >not challenge all independent bases or grounds that fully support the judgment. <i>See Nobility Homes of Tex., Inc. v. Shivers</i>, 557 S.W.2d 77, 83 (Tex. 1977); <i>Oliphant Fin. LLC v. Angiano</i>, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); <i>Crown Asset Mgmt., L.L.C. v. Strayhorn</i>, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); <i>see also Britton v. Tex. Dep't of Crim. Justice</i>, 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).<br /></span><div align="center"><span style="color:Black;"><i><br /><span style="font-weight: bold; color: rgb(102, 0, 0);">C. Application of Law to Facts</span></i><br /></span><div align="left"><span style="color:Black;"><br /></span><span style=";font-size:100%;color:Black;" > In its August 21, 2008 “Notice of Hearing,” the trial court informed appellant </span><span style=";font-size:100%;color:Black;" >he “must contact the 95th District Court Administrator, <b>in person or by telephone </b>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 “<b> [f]ailure to appear at </b>[the September 2, 2008] <b>hearing shall result in dismissal of this case for want of prosecution.</b>” (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.<br /></span><span style=";font-size:100%;color:Black;" ><br /> In its “Order of Dismissal for Want of Prosecution” dated September 4, </span><span style=";font-size:100%;color:Black;" >2008, the trial court stated in part<br /></span><span style=";font-size:100%;color:Black;" ><br /> Plaintiff did not take certain action heretofore specified by the Court within the </span><span style=";font-size:100%;color:Black;" >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 <b>September 2, 2008 at 1:00 p.m.</b> and did not take the necessary action. Accordingly,</span><span style=";font-size:100%;color:Black;" ><br /></span><span style=";font-size:100%;color:Black;" ><br /> IT IS ORDERED that the case is dismissed for want of prosecution with costs </span><span style=";font-size:100%;color:Black;" >taxed against Plaintiff for which execution issue.<br /></span><span style=";font-size:100%;color:Black;" ><br /></span><span style=";font-size:100%;color:Black;" >(emphasis original).<br /><br /></span><span style=";font-size:100%;color:Black;" > Appellant asserts the trial court erred by dismissing this case “as a result of </span><span style=";font-size:100%;color:Black;" >[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. <i>Cf. Keough v. Cyrus USA, Inc.</i>, 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<br />pursuant to such basis.<br /></span><span style=";font-size:100%;color:Black;" ><br /> Because the trial court may have dismissed this case for want of prosecution </span><span style=";font-size:100%;color:Black;" >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. <i>See Nobility Homes of Tex., Inc., </i>557 S.W.2d at 83; <i>Oliphant Fin. LLC</i>, 2009 WL 2648125, at *1; <i>Strayhorn</i>, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. <i>See Rotello</i>, 671 S.W.2d at 509; <i>Bogar</i>, 264 S.W.3d at 422. Appellant's sole issue is decided against him.<br /><br />SOURCE: </span><span style="color:Black;"> Dallas Court of Appeals Opinion in Cause No. <a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_10.ask+D+1685380">05-08-01485-CV</a> (11/3/09)<br /><br /></span></div></div></div></div></div></div></div>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-59077685229322211882009-10-27T14:02:00.000-07:002009-10-27T14:15:52.985-07:00Two Alternative Legal Bases for DWOP Dismissal<span style="color:#000099;"></span><br /><span style="color:#000099;">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.</span><br /><br /><span style="color:#660000;">FROM THE OPINION:</span><br /><br />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).<br /><br />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).<br /><br />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).<br /><br />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.<br /><br /><span style="color:#000099;"><strong>Discussion </strong></span><br /><span style="color:#000099;"><strong></strong></span><br /><span style="color:#000099;"><strong>1. Dismissal under Rule 165(a)</strong></span><br /><br />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).<br /><br /><strong><span style="color:#000099;">2. Dismissal under Inherent Power</span></strong><br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br /><span style="font-size:85%;">SOURCE: </span><a href="http://www.texas-opinions.com/files/05-07-01730-CV-DWOP-and-Denial-of-Default-Judgment-in-Debt-Suit-Reversed-Oliphant-Financial-LLC-v-Galvaniz.html"><span style="font-size:85%;">Oliphant Financial, LLC v. Galvaniz</span></a><span style="font-size:85%;">, No. </span><span style="font-size:85%;"><a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071730.htm">05-07-01730-CV</a></span><span style="font-size:85%;"> (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) </span>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-43551791010271836782009-10-27T13:56:00.000-07:002009-10-27T14:02:05.328-07:00Standard of Review Applied by Appellate Court in Reviewing Propriety of Dismissal for Want of Prosecution Order Entered by the Trial Court<span style="color:#000099;"></span><br /><span style="color:#000099;">CHALLENGING A DWOP ORDER: </span><br /><span style="color:#000099;"></span><br /><span style="color:#000099;">Standard of Review on Appeal, as stated by the Dallas Court of Appeals: </span><br /><span style="color:#000099;"></span><br />We review a dismissal for want of prosecution under an abuse of discretion standard. See Vann v. Brown, 244 S.W.3d 612, 614 (Tex. App.-Dallas 2008, no pet.). See also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles).<br /><br /><a href="http://www.texas-opinions.com/files/05-07-01730-CV-DWOP-and-Denial-of-Default-Judgment-in-Debt-Suit-Reversed-Oliphant-Financial-LLC-v-Galvaniz.html"><strong>Oliphant Financial, LLC v. Galvaniz</strong></a><strong>,</strong><br />No. <a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071730.htm">05-07-01730-CV</a> (Tex.App.- Dallas Oct. 26, 2009)THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-10827175435318238272009-10-07T20:58:00.000-07:002009-10-07T21:22:57.038-07:0015-day Extension to File Notice of Appeal Not Automatic<span style="color:#000099;"></span><br /><span style="color:#000099;">The Texas Rules of Appellate Procedure (TRAP) allow for a notice of appeal to be filed fifteen (15) days late, but not without a reasonable explanation being set forth in a proper motion. What qualifies as reasonable, and what doesn't? The Dallas Court of Appeals yesterday answered that question, at least in part. Its </span><span style="color:#000099;">opinion dismissing the attempted - untimely - appeal provides a reminder that the 15 extra days cannot be taken for granted. Specifically, the court held, that waiting for a ruling on a motion for new trial was not a reasonable explanation for delay in filing the notice of appeal, particularly when the motion had already been overruled by operation of law.</span><br /><br /><strong><span style="color:#660000;">MEMORANDUM OPINION</span></strong><br /><br />The Court has before it appellant's September 22, 2009 motion to extend time to file his notice of appeal and appellee's response in opposition to the motion. For the reasons set forth below, we deny the extension motion and dismiss the appeal.<br /><br />The trial court's judgment was signed on May 20, 2009 and appellant filed a timely motion for new trial. Therefore, his notice of appeal was due by August 18, 2009. See Tex. R. App. P. 26.1(a). The notice of appeal was filed on September 2, 2009, within the fifteen-day period provided by rule 26.3. See Tex. R. App. P. 26.3(a). Therefore, we directed appellant to file a motion to extend time to file his notice of appeal setting forth a reasonable explanation for the need of the extension. See Tex. R. App. P. 10.5(b), 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).<br /><br />In his extension motion, appellant asserted, “Plaintiff's motion for new trial was timely filed on June 19, 2009. The hear [sic] date of motion for new trial was set on Sept. 2nd, 2009; Therefore whether to appeal only could be determined after the hearing of motion for new trial.”<br /><br />Appellee responded that appellant did not provide a reasonable explanation because the motion for new trial had already been overruled by operation of law on August 3, 2009, and appellant did not file his notice of appeal until the 105th day after the trial court's judgment was signed.<br /><br />We agree that appellant has not provided a reasonable explanation for the need of the extension.<br /><br />The Texas Supreme Court has defined “reasonable explanation” to mean “'any plausible statement of circumstance indicating that failure to file within the [required] period was not deliberated or intentional, but was the result of inadvertence, mistake, or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (internal citation omitted). “Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. . . .” Id. at 670.<br /><br />Texas courts have rejected as unreasonable explanations that show a defendant's conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding unreasonable appellant's explanation he failed to file notice of appeal until he found attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 (Tex. App.-Amarillo 2000, no pet.) (holding unreasonable explanation that when State disclosed, after expiration of time for filing notice of appeal, its intent to indict appellant for other crimes, appellant decided to appeal to preserve eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. App.-Amarillo 1999, no pet.) (op. on reh'g) (holding unreasonable explanations counsel miscalculated due date for filing notice of appeal when he failed to file notice of appeal on miscalculated date and counsel's preoccupation with other cases without detailed explanation of complexities and relevant deadlines of other cases); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding unreasonable appellant's explanation that his lawyer told him if he appealed case while trial court still had authority to reinstate case, trial court would reinstate case and appellant would have difficult time prosecuting claim because of trial court's displeasure with appellant).<br /><br />This Court has likewise rejected as unreasonable explanations that showed an appellant's decision to wait to file a notice of appeal was not due to inadvertence, mistake, or mischance, but was due to a conscious decision to ignore the appellate timetable in favor of the trial court's jurisdictional timetable. See Crossland v. Crossland, No. 05-06-00228-CV, 2006 WL 925032 (Tex. App.-Dallas Apr. 11, 2006, no pet.) (mem. op.) (per curiam).<br /><br />Because appellant's explanation in this case shows he was aware of the deadline for filing his notice of appeal, but consciously ignored the deadline in favor of waiting for a ruling on his motion for new trial, we conclude appellant has not provided a reasonable explanation for the need of the extension.<br /><br />We deny his motion to extend time to file his notice of appeal.<br /><br />We dismiss the appeal for want of jurisdiction.<br /><br />PER CURIAM<br /><br /><strong>Zhao, Yumin v. Lone Star Engine Installation Center, Inc.,</strong> No. <a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?command=search&file=c05_10.ask,c05_09.ask,c05_08.ask,c05_07.ask,c05_06.ask,c05_05.ask,c05_04.ask,c05_03.ask,c05_02.ask,c05_01.ask,c05topin.ask,c05_00.ask,c05_99.ask,c05_98.ask,c05_97.ask,c05_96.ask,c05_93.ask,c05_89.ask&request=05-09-01055-CV&maxhits=10&NumLines=1">05-09-01055-CV</a> (Tex.App.- Dallas Oct. 6, 2009)<br /><a href="http://www.5thcoa.courts.state.tx.us/files/05/09/05091055.HTM">Docket Sheet</a><br />Case Type: CONTRACTTHE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-1807409973473556772009-10-05T12:54:00.000-07:002009-10-05T14:06:16.944-07:00Hearing on Motion to Reinstate Can Cure Error in Notice or Render it Harmless<strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">What is the effect of filing - and obtaining a hearing on - a motion to reinstate a case terminated by dismissal for want of prosecution? A recent appellate decision from the First Court of Appeals in Houston in a high-profile case supports the proposition that such a hearing provides a substitute for proper notice of intent to dismiss and an opportunity to object and be heard on the issue. Since the hearing on the motion to reinstate/for new trial after the DWOP allows the aggrieved party an opportunity to show why the case should remain on the court's docket, any due process violation would be cured at that point, or rendered harmless error, which does not provide grounds for reversal on appeal.</span></strong><br /><br /><span style="color:#000099;"><span style="font-size:85%;">THE RELEVANT SECTION OF THE OPINION IS REPRODUCED BELOW, FOLLOWED BY THE CASE CITE</span> </span><br /><br /><strong>Dismissal for Want of Prosecution</strong><br /><br />Appellants argue in their second point of error that the trial court erred in dismissing their suit forwant of prosecution and request that the trial court’s dismissal be reversed.<br /><br />The trial court signed an order on July 21, 2004, dismissing appellants’ suit for want of prosecution because no final arbitration hearing had commenced by July 9, 2004, as ordered.<br /><br />As an initial matter, appellants claim that the trial court’s order threatening dismissal unless arbitration was commenced by July9, 2004 was not a notice of trial or “dispositive” setting and that the court could not dismiss until givingadditional notice of potential dismissal with a hearing on a date certain. Appellants further claim that theywere confused as to precisely what actions had to be taken to avoid dismissal. Finally, appellants claim that they received no notice of the trial court’s order informing them that “unless a final hearing on Plaintiff’sclaims has commenced before the American Arbitration Association on or before July 9, 2004, Plaintiff’sclaims shall be DISMISSED FOR WANT OF PROSECUTION.”<br /><br />Even assuming that appellants received no notice of the trial court’s intention to dismiss their suit for want of prosecution, we hold that any such error was harmless because appellants were given an opportunity to be heard on their motion to reinstate, filed after the dismissal for want of prosecution. See Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied).<br /><br />Appellants filed a “Motion for Reinstatement and/or New Trial,” which contained arguments identical to those presented on appeal. After a full hearing on August 20, 2004, the trial court denied appellants’ motion. If a party receives the same hearing before the trial court that it would have had before the dismissal was signed, no harmful error is committed. Id. at 403.<br /><br />Jimenez v. Transwestern Property Company, 999 S.W.2d125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.), also shows that any error did not harm the appellants. In that case, the appellant was not given notice of the trial court’s intent to dismiss for want of prosecution but was given a hearing on the motion to reinstate. Id. at 129. The court held that the hearing on appellant’s motion to reinstate “satisfied the due process rights applicable to the dismissal of his case.”Id. Therefore, assuming without deciding that the trial court erred in dismissing appellants’ case, we hold thatsuch error was harmless. Id. We overrule appellants’ second point of error.<br /><br /><strong>Conclusion</strong><br /><br />We affirm the judgment of the trial court.<br /><br /><a href="http://www.1stcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=87081"><strong>Chambers vs. O'Quinn</strong></a> (<a href="http://www.houston-opinions.com/1stCoA-2009-Oct.html">Tex.App.- Houston [1st Dist.] Oct. 1, 2009</a>)(Taft) (opinion on remand from the Texas Supreme Court) (mostly addressing arbitration issues)THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-11501625303650529742009-10-02T15:13:00.000-07:002009-10-02T15:23:00.208-07:00Motion to Reinstate Must Be Verified (Sworn)<strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">Reminder from the Fifth Court of Appeals: Motion to Reinstate dwopped case that is not verified (sworn to) does not extend appellate deadline. Consequences of noncompliance are dire: Untimely attempted appeal dismissed for want of jurisdiction (DWOJ):</span></strong><br /><br /><strong><span style="color:#666600;">PER CURIAM OPINION</span></strong><br /><br />Appellant Lakeith Amir-Sharif appeals the trial court's judgment dismissing the case for want of prosecution and the trial court's failure to grant appellant's motion to reinstate.After reviewing the record, we questioned our jurisdiction over this appeal.<br /><br /><a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+97168">Amir-Sharif v. Hawkins</a>, No. 05-08-01388-CV (Tex.App.- Dallas, Oct. 1, 2009)<br /><br />By letter dated August 31, 2009, we notified appellant of this Court's concern regarding its jurisdiction over this appeal and directed appellant to file a letter brief regarding the jurisdictional question by September 10, 2009 and directed appellee to file any response to appellant's letter brief by September 17, 2009, at which time the Court would resolve the jurisdictional question. Appellant filed a brief on September 21, 2009.<br /><br />We dismiss this appeal for lack of jurisdiction.<br /><br />The law is well settled and we therefore issue this memorandum opinion. See Tex. R. Civ. P. 47.1.Pursuant to rule of civil procedure 165a and the court's inherent power, on August 7, 2008 the trial court signed an order of dismissal for want of prosecution for appellant's “having failed to take actions heretofore specified by the Court within the time period prescribed, and for failing to announce for trial scheduled for August 4, 2008.”<br /><br />On August 21, 2008, appellant filed an unverified “Motion to Reinstate Complaint.” Appellant filed his notice of appeal on October 13, 2008, more than thirty days after the August 7, 2008 order of dismissal. Because his motion to reinstate was not verified, the notice of appeal was due 30 days after the dismissal order was signed. See Tex. R. Civ. P. 165a(3) (motion to reinstate shall be verified by the movant or his attorney); Tex. R. App. P. 26.1.<br /><br />An unverified motion to reinstate does not extend the trial court's plenary power or the deadline for appealing the dismissal of the case. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam); Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex. App.-Dallas 1992, orig. proceeding); Sierra Club v. Tex. Comm'n on Envtl. Quality, 188 S.W.3d 220, 223 (Tex. App.-Austin 2005, no pet.).We conclude appellant's notice of appeal was untimely.<br /><br />We therefore lack jurisdiction over this appeal. See Footnote 1 We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 26.1.<br /><br />LINDA THOMASCHIEF JUSTICE<br /><br /><br />Footnote 1 We note a prior appeal of this appellant was dismissed for lack of jurisdiction on the identical basis. See Amir-Sharif v. State Farm Mut. Ins. Co., No. 05-07-01254-CV, 2009 WL 104777, at *1 (Tex. App.-Dallas Jan. 16, 2009, no pet.).<br />-------------------<br />File Date[10/01/2009]THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-33327038788779713292009-09-25T08:54:00.000-07:002009-09-25T09:37:36.567-07:00Unifund v. Credit Card Holder: Another DWOP Order Affirmed<span style="color: rgb(0, 0, 153); font-weight: bold;"><br />Fifth Court of Appeals continues its string of opinions </span>(see <a href="http://www.reverseandrender.com/2009/09/articles/opinions-judgments/dallas-dwop-redux/">Dallas DWOP Redux</a>) <span style="color: rgb(0, 0, 153); font-weight: bold;">affirming dismissals of consumer debt suits on procedural</span> <span style="color: rgb(0, 0, 153); font-weight: bold;">grounds. </span><br /><br /><span style="color:Black;"><span style="font-weight: bold; color: rgb(102, 0, 0);">MEMORANDUM OPINION BY JUSTICE FITZGERALD</span><br /></span><span style="color:Black;"><br /></span><span style="color:Black;"> Appellant Unifund CCR Partners sued appellee Travis Jackson for </span><span style="color:Black;">breach of contract. Jackson never appeared, and Unifund moved for </span><span style="color:Black;">default judgment. The trial court eventually dismissed the case for want </span><span style="color:Black;">of prosecution. On appeal, Unifund raises a single issue complaining</span><span style="color:Black;"> that the trial court erred by not granting its motion for default</span><span style="color:Black;"> judgment. We affirm.<br /><br /></span><span style="color:Black;"> <span style="font-weight: bold;">I. Background</span><br /></span><span style="color:Black;"> <br />Unifund sued Jackson in July 2006. The trial court set the case</span><span style="color:Black;"> for dismissal in December. The court advised that it expected Unifund to </span><span style="color:Black;">prove up a default judgment by the dismissal date if Jackson did not </span><span style="color:Black;">answer. The court eventually extended the dismissal date to April 20, </span><span style="color:Black;">2007.<br /><br /></span><span style="color:Black;"> Our record contains only one executed return of service. The</span><span style="color:Black;"> return indicates that the process server effected substituted service of</span><span style="color:Black;"> process on February 8, 2007, by attaching the process to the main</span><span style="color:Black;"> entrance of a certain apartment. See Footnote 1<br /><br />Unifund filed a </span><span style="color:Black;">motion for default judgment in March. On April 23, 2007, the trial judge </span><span style="color:Black;">signed an order retaining the case on the court's dismissal docket until</span><span style="color:Black;"> June 22, 2007.<br /></span><span style="color:Black;"> <br />On July 3, 2007, the trial judge signed an order dismissing the</span><span style="color:Black;"> case without prejudice for two reasons: (1) “[f]ailure to take action</span><span style="color:Black;"> after notice of intent to dismiss for want of prosecution,” and (2) want</span><span style="color:Black;"> of prosecution. On July 30, 2007, Unifund filed a motion to reinstate</span><span style="color:Black;"> and a second motion for default judgment. The record contains no order</span><span style="color:Black;"> on Unifund's motion to reinstate or on either of its motions for default</span><span style="color:Black;"> judgment.<br /></span><span style="color:Black;"> <br />Unifund appealed the order dismissing its case. Jackson has not</span><span style="color:Black;"> filed a brief or otherwise appeared in this appeal.<br /></span><span style="color:Black;"><br /><span style="font-weight: bold;">II. Analysis</span><br /></span><span style="color:Black;"> <br />In Unifund's only issue on appeal, it attacks the trial court's</span><span style="color:Black;"> failure to grant a default judgment against Jackson. We conclude that</span><span style="color:Black;"> Unifund did not preserve error in the trial court.<br /></span><span style="color:Black;"> <br />To preserve a complaint for appellate review, a party must make</span><span style="color:Black;"> the complaint to the trial court by a timely request, objection, or</span><span style="color:Black;"> motion. Tex. R. App. P. 33.1(a)(1). Preservation also requires one of</span><span style="color:Black;"> three things: (1) an express ruling by the trial court, (2) an implicit</span><span style="color:Black;"> ruling by the trial court, or (3) a refusal to rule by the trial court,</span><span style="color:Black;"> coupled with an objection to that refusal by the complaining party. Tex.</span><span style="color:Black;"> R. App. P. 33.1(a)(2). This record contains no express ruling on either<br /></span><span style="color:Black;">of Unifund's motions for default judgment, nor does it contain any</span><span style="color:Black;"> objection by Unifund to the trial court's refusal to rule, if any.<br /></span><span style="color:Black;"> <br />We conclude that the trial court's order dismissing the case </span><span style="color:Black;">does not constitute an implicit ruling on Unifund's first motion for</span><span style="color:Black;"> default judgment. An order of dismissal for want of prosecution does not</span><span style="color:Black;"> implicitly deny a pending motion for default judgment when the record</span><span style="color:Black;"> does not demonstrate that the motion for default judgment was brought to</span><span style="color:Black;"> the trial court's attention and the dismissal order does not address or</span><span style="color:Black;"> acknowledge the motion for default judgment. Unifund CCR Partners v.</span><span style="color:Black;"> Smith, No. 05-07-01449-CV, 2009 WL 2712385, at *2 (Tex. App.-Dallas Aug.</span><span style="color:Black;"> 31, 2009, no pet. h.) (mem. op.).<br /><br />In this case, the court's April 23, </span><span style="color:Black;">2007 order retaining the case on the court's docket does not mention </span><span style="color:Black;">Unifund's default-judgment motion. Neither the dismissal order nor </span><span style="color:Black;">anything else in the record indicates that the trial court considered </span><span style="color:Black;">Unifund's first motion for default judgment when the court dismissed the </span><span style="color:Black;">case.<br /><br />On similar facts, we held in Smith that the plaintiff failed to</span><span style="color:Black;"> preserve error. See id. We follow Smith and conclude that the dismissal</span><span style="color:Black;"> order preserved no error as to Unifund's first motion for default</span><span style="color:Black;"> judgment. As for Unifund's postjudgment motion for default judgment, the</span><span style="color:Black;"> trial court made no rulings at all after Unifund filed that motion.<br /></span><span style="color:Black;"><br />Thus, there is no judicial action from which we could infer an implicit</span><span style="color:Black;"> ruling on that motion either. See AIS Servs., LLC v. Mendez, No.</span><span style="color:Black;"> 05-07-01224-CV, 2009 WL 2622391, at *1 (Tex. App.- Dallas Aug. 27, 2009,</span><span style="color:Black;"> no pet. h.) (mem. op.) (“An implicit ruling is one that is unstated but<br /></span><span style="color:Black;">can be inferred from something else.”).<br /></span><span style="color:Black;"> <br />We resolve Unifund's sole issue on appeal against it and affirm</span><span style="color:Black;"> the judgment of the trial court.<br /></span><span style="color:Black;"> <br /></span><span style="color:Black;"> KERRY P.<br /></span><span style="color:Black;">FITZGERALD<br /></span><span style="color:Black;"> JUSTICE<br /></span><span style="color:Black;"><br /></span><span style="color:Black;">-------------------<br /></span><span style=";font-size:85%;color:Black;" >Footnote 1 We note that the appellate record contains no order<br /></span><span style="color:Black;"><span style="font-size:85%;">authorizing the use of substituted service of process.</span><br /></span><span style="color:Black;">-------------------<br /></span><span style=";font-size:85%;color:Black;" >File Date[09/23/2009] </span><br /><br /><table style="border-width: 0pt;" border="0"><tbody><tr><td valign="top" width="140" align="right"><span style="font-size:85%;"><em><strong>September 23, 2009</strong></em></span></td> <td width="50"><span style="font-size:85%;"><em><strong><img src="http://www.5thcoa.courts.state.tx.us/Graphics/dot_clear.gif" width="1" height="1" /></strong></em></span></td> <td width="350"> <span style="font-size:85%;"><b><a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?command=search&file=c05_10.ask,c05_09.ask,c05_08.ask,c05_07.ask,c05_06.ask,c05_05.ask,c05_04.ask,c05_03.ask,c05_02.ask,c05_01.ask,c05topin.ask,c05_00.ask,c05_99.ask,c05_98.ask,c05_97.ask,c05_96.ask,c05_93.ask,c05_89.ask&request=05-07-01226-CV&maxhits=10&NumLines=1">05-07-01226-CV</a> AFFIRM</b> - <a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071226.HTM">Docket Sheet</a><br /><b>Unifund CCR Partners</b> v. <b>Jackson, Travis</b><br /><b> Opinion by: </b>Justice Kerry P. FitzGerald<br />Memorandum Opinion<br /><b>Case Type: </b>CONTRACT [credit card debt]<br /></span></td></tr></tbody></table><br />See: Other <a href="http://www.houston-opinions.com/cases-Unifund-CCR-Partners-plaintiff-in-credit-card-debt-suits-brought-as-assignee.html">Unifund CCR Partners debt collection cases in Texas courts of appeals</a>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-9215420481073571132009-09-09T13:42:00.000-07:002009-09-09T13:53:33.684-07:00Procrastination Results in Dismissal of Appeal<span style="color:#000099;"><em></em></span><br /><span style="color:#000099;"><em>Although it is not governed by Rule 165a of the Rules of Civil Procedure, dismissal for want of prosecution also occurs on appeal. There may be a certain amount of leniency when it comes to deadline extensions for filing the brief, but procrastination is risky business, as seen in an opinion on DWOP issued by the Austin Court of Appeals today:</em></span><br /><br /><span style="color:#990000;"><strong>M E M O R A N D U M O P I N I O N</strong><br /></span><br />Appellant Jay Sandon Cooper's notice of appeal was filed in this Court on July 23, 2008. The cause was stayed for appellant's bankruptcy proceeding on November 19, 2008. On March 10, 2009, we reinstated the cause and informed appellant that his brief was due April 9, 2009. On May 1, we sent appellant notice that his brief was overdue, giving him until May 11 to respond. On May 11, appellant informed this Court by telephone that he was placing a motion for extension of time in the mail that same day; the motion was received by this Court on May 20 and asked for an extension to May 18. On May 22, we granted appellant's motion and on May 29, we sent notice that appellant's brief was overdue, giving him until June 8 to respond. On June 8, we again received a phone call from appellant informing us that he was mailing a motion for extension of time that day; the motion was not received by this Court until June 22, and it asked us to extend the filing deadline to July 6. On June 29, we received correspondence from appellee's counsel informing us that he opposed the most recent motion for extension of time and that he was not contacted by appellant regarding the motion, as represented in appellant's certificate of conference. On July 3, 2009, we ordered that the brief be filed no later than July 10.<br /><br />On July 16, appellant filed a motion seeking to have the clerk's record supplemented, explaining that he was almost finished with his brief when he realized several documents had been omitted. He said he had submitted a request to the trial court clerk and asked that we "reset" the briefing schedule once the record was supplemented to give him another thirty days. On July 20, we sent appellant a letter stating that the trial court had not received a request for supplementation as represented in appellant's motion and gave him until July 27 to file a copy of his request to the trial court clerk.<br /><br />We stated that we would allow the record to be supplemented and said, "Once the record is supplemented, your brief will be due ten days later. No further extensions will be granted." The clerk's record was supplemented on July 30, and we sent appellant notice of the supplementation on August 5. Under our July 20 letter, appellant's brief was due August 10, ten days after the record was supplemented. However, even if we allow appellant ten days after we sent our letter informing him of the supplementation, the brief was due no later than August 17.<br /><br />To date, appellant has not filed his brief. We therefore dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3.<br /><br />SOURCE: 03-08-00443-CVTHE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-60458936547314106202009-09-09T13:06:00.000-07:002009-09-10T21:45:11.556-07:00Debt Collection Suit Results in DWOP rather than Default Judgment<span style="color:#000099;"></span><br /><em><span style="color:#000099;">Debt buyer - purported assignee of charged-off Citibank credit card debt - failed to prove up its damages in moving for default judgment -- even though it had deemed admissions in its favor -- and had its debt collection suit dismissed for want of prosecution. Dallas Court of Appeals affirms the DWOP order, along with a bevy of other affirmances in debt suits that were dismissed by couty court judge for one reason or another. </span><br /><span style="color:#000099;"></span><br /></em><span style="color:#000099;"><em><strong>Moral</strong>: Even debt collectors have to comply with procedural requirements, including deadlines, and have to prove up their case. Victory is not to be taken for granted, even where the defendant/debtor defaults and does not answer requests for admissions. To wit:</em> </span><br /><br /><span style="color:#990000;"><strong>OPINION BY JUSTICE MARTIN RICHTER</strong><br /></span><br />Resurgence Financial, LLC appeals the dismissal of its breach of contract suit against Freeman Taylor. In two issues, Resurgence argues the trial court erred when it dismissed the suit for want of prosecution and denied its motion for default judgment.<br /><br />Because we conclude that Resurgence failed to prove it was entitled to a default judgment, we affirm the trial court's judgment.<br /><br /><strong><span style="color:#000099;">Background</span></strong><br /><br />On January 4, 2007, Resurgence filed its original petition against Freeman Taylor asserting a claim for breach of contract for failure to pay a credit card account. The petition partially identified Taylor's social security number and credit card account number and stated that Resurgence had purchased the account from Citibank and was currently the owner of the account.<br /><br />According to the petition, Citibank and Taylor entered into an account agreement the (“Agreement”) that allowed Taylor to receive cash advances and to purchase goods and services from merchants who honored the Citibank credit card. The petition asserted that Taylor had acquired cash and/or goods and services in accordance with the Agreement and had promised to pay for the account but had failed to do so.<br /><br />Resurgence claimed it was damaged in the amount of $8,928.49, together with interest and attorney's fees as provided for in the Agreement. Resurgence specified that it was entitled to at least $2,976.16 in reasonable attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code.<br /><br />The affidavit of John Over, Resurgence's designated agent, was attached to the petition (the “Over Affidavit”). The Over Affidavit attested to the facts asserted in the petition and included a summary of Taylor's account as an attachment. The account summary reflects that Taylor's last payment was made on August 10, 2004 and the interest rate on the account is 6%. The statement shows that the total amount due is $8,928.49 as of October 31, 2006. Of this amount, $8,128.15 is designated as principal and $800.34 is designated as interest.<br /><br />A request for disclosures and requests for admission were embedded in the petition. Taylor did not answer the petition or the discovery. On February 8, 2007, Resurgence filed a motion for default judgment.<br /><br />The motion was supported by an attorney's fees affidavit and a non-military affidavit. On July 27, 2007, the trial court returned the default judgment unsigned with a form notice on which the court had checked off several perceived deficiencies.<br /><br />The deficiencies selected by the trial court included: (1) petition does not give fair notice of claim against defendant; (2) judgment relies on cause of action not adequately pleaded; (3) damages cannot be accurately calculated, no written instrument attached to petition; (4) no evidence of sale and delivery of merchandise or performance of services; (5) no evidence that the amount of the account or price charged is in accordance with an express contract or usual, customary and reasonable; and (6) no evidence of a systemic record kept and supported by affidavit.<br /><br />On August 1, 2007, Resurgence filed another motion for default judgment. The motion requested judgment on the debt owed by Taylor in the amount of $8,928.49 with interest in accordance with the Agreement and as supported by the documents attached to the original petition and the request for admissions. In further support of the requested judgment, Resurgence attached an attorney's fees affidavit and the affidavit of its designated agent. By letter dated August 6, 2007, the trial court again returned the default judgment unsigned and accompanied by the same form letter identifying the same perceived deficiencies. See Footnote 1<br /><br />On August 7, 2007, the trial court issued a notice stating that the case was set for dismissal on August 24, 2007 pursuant to Rule 165a of the Texas Rules of Civil Procedure. The notice advised: If no answer has been filed, or if the answer is insufficient as a matter of law to place any of the facts alleged in your petition in issue, you will be expected to have moved for, and to have heard a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in dismissal of the case on the above date. See Footnote 2<br /><br />On August 23, 2007 and August 24, 2007, Resurgence filed trial briefs in support of its motion for default judgment. On October 1, 2007, Resurgence filed another motion for default judgment. Like the prior motions, the motion requested judgment on the debt owed by Taylor in the amount of $8,928.49 with interest in accordance with the Agreement and as supported by the documents attached to the petition and the deemed admissions. An attorney's fees affidavit and a non-military affidavit were attached to the motion. In further support of the motion, Resurgence included the Over Affidavit, which describes the sale and assignment of Taylor's account from Citibank to Resurgence, the account number, the balance owed on the account, and the date of the last payment. Attachments to the Over Affidavit included two documents entitled Bill of Sale, Assignment, and Assumption Agreement (the “Assignments”), the Citibank Card Agreement, four months of Taylor's 2004 account statements and one 2005 account statement.<br /><br />The account statements reflect payments that were made on the account and applied to the outstanding balance, including the August 10, 2004 payment referenced in the Over Affidavit.<br /><br />The Assignments show that certain accounts were transferred from Citibank to a limited liability company and then transferred from the limited liability company to Resurgence. Although the Assignments reference attachments that enumerate the specific accounts sold and assigned, the attachments are not included with the Assignments. Therefore, it is not possible to determine whether Taylor's account was among those sold and transferred.<br /><br />The motion for default judgment was further supported by the affidavit of James Hull (the “Hull Affidavit”), counsel for Resurgence. The Hull Affidavit states that Resurgence's requests for admission were served on Taylor with the original petition as evidenced by the return of citation on file with the clerk and that Taylor failed to respond to the admissions within 50 days after service. In addition to the motion for default judgment and supporting documents, Resurgence also filed a request for a hearing on its motion for default judgment. See Footnote 3<br /><br />On October 9, 2007, the trial court dismissed the case.<br /><br />The reasons for dismissal stated in the dismissal notice included “failure to take action after notice of intent to dismiss” and “dismiss for want of prosecution.” This appeal followed.<br /><br /><span style="color:#000099;"><strong>Discussion</strong></span><br /><br />Resurgence contends the trial court erred in denying the motion for default judgment and dismissing the case for want of prosecution. On this record, we disagree.The denial of a motion for default judgment is reviewed under an abuse of discretion standard. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston [14th Dist.] 2005, no pet.). A plaintiff may seek a default judgment if the time has passed for the defendant to answer, the defendant has not answered, and the citation with the officer's return has been on file with the clerk for ten days. See Tex. R. Civ. P. 107, 239.<br /><br />In a no-answer default judgment, the failure to file an answer operates as an admission of the material facts alleged in the petition, except as to unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).<br /><br />A claim for damages is liquidated if the amount of damages can accurately be calculated by the court from the factual, as opposed to the conclusory allegations in the petition and written instruments. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.); see also Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was liquidated claim proved by written instruments where plaintiff attached original instruments to verified petition and motion for default judgment).<br /><br />When damages are unliquidated, the judge must “hear” evidence on the damages. See Argyle Mech., Inc., 156 S.W.3d at 687; see also Tex. R. Civ. P. 243. In contrast, “if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered therefor . . . .” Tex. R. Civ. P. 241.<br /><br />Here, the pleadings provide the requisite factual allegations to prove Resurgence's claim for breach of contract. Recovery under a breach of contract claim requires proof of four elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Orix Capital Mkts., L.L.C. v. Wash. Mut. Bank, 260 S.W.3d 620, 623 (Tex. App.-Dallas 2008, no pet.). The petition states that Taylor opened the account with Citibank, used the account to buy goods and services, promised to pay for the account, but failed to do so. The contract is further evidenced by the Agreement attached to the petition. The petition also states that Resurgence purchased the account from Citibank and is the current owner of the account entitled to payment. The Over Affidavit further attests to the sale of the account.The account is specifically identified by the partial disclosure of Taylor's social security number, the account number, and Taylor's name and address. Account statements, an account summary and supporting affidavits establish the amount due on the account as of the date of default, the date of the last payment, and the application of payments to the outstanding balance. The amount of attorney's fees for which judgment is requested is stated in the petition and supported by affidavit. The admissions provide further proof in support of a judgment. The admissions were embedded in the petition, and the record demonstrates the petition was properly served. See Footnote 4<br /><br />Because Taylor failed to object or timely answer the admissions, they were deemed admitted as a matter of law. See Tex. R. Civ. P. 198.2(c). Deemed admissions may be employed as proof. Sherman Acquisition II L.P. v. Garcia, 229 S.W.3d 802, 812 (Tex. App.-Waco 2007, no pet.) (default judgment); Elkins v. Jones, 613 S.W.2d 533, 534 (Tex. Civ. App.-Austin 1981, no writ) (summary judgment). Once admissions are deemed admitted by operation of law and fully support each element of a cause of action, including damages, they will fully support a judgment thereon. Sherman, 229 S.W. 3d at 812. Answers constituting admissions of law, however, are of no effect and are not binding on the court. See Esparza v. Diaz, 802 S.W.2d 772, 775 (Tex. App.-Houston [14th Dist.] 1990, no writ); Neal v. Wis. Hard Chrome, Inc., 173 S.W.3d 891, 894 (Tex. App.-Texarkana 2005, no pet.).<br /><br />By failing to answer the requests for admissions, Taylor admitted that (1) he applied for the credit card and requested that the account be opened; (2) he understood that use of the account resulted in a loan that he was obligated to pay; (3) he made purchases and took cash advances on the account; (4) the account is due; (5) the $8,928.49 balance stated in the petition is the correct amount due on the account; (6) he received monthly statements showing the amount of charges and specifying the amount due; (7) the monthly statements advised him of his right to dispute any error and he has never given any notice of an error or dispute; (8) he promised to pay for the account; (9) payment was requested but has not been made; (9) the contractual interest rate is 6% and the Agreement provides for late and over the credit limit fees; and (11) $2,976.16 is a reasonable amount of attorney's fees for the prosecution of this suit.<br /><br />The petition and supporting documents give fair notice of Resurgence's breach of contract claim based on the unpaid credit card account. See Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (fair notice standard met when opposing party can ascertain nature of the claim, basic issues, and evidence that might be relevant to the controversy). But the evidence Resurgence proffered did not provide sufficient information for the trial court to render a damage award.<br /><br />There was not only insufficient information from which to calculate the interest due on the outstanding account balance, the evidence that was submitted conflicted as to the rate of interest to be charged. Specifically, the Over Affidavit and deemed admissions state that the contract rate of interest is 6%, but neglect to state whether this is computed as simple interest.<br /><br />Four of the five credit card statements reflect that the periodic interest rate for purchases and advances is 0.06573%, with an annual percentage rate of 23.990%. But the 2005 statement reflects that the periodic rate is 0.06915%, with an annual percentage rate of 25.240%. The Agreement provides for a default rate of up to 24.99% and also provides for late fees to be assessed based upon the outstanding balance. Although the default rate appears to have been charged on one of the monthly statements, the other statements reflect that a different interest rate was applied.<br /><br />The record reflects that the outstanding balance on the account as of October 31, 2006 was $8,928.49, but provides no definitive basis for calculating the principal and interest due beyond that point.<br /><br />Because Resurgence's evidence was insufficient to support the default judgment it requested, we conclude the trial court did not err in denying the motion.<br /><br />The trial court's notice required Resurgence to move for and have heard a summary judgment or prove up a default judgment by August 24, 2007. Although Resurgence filed a motion for default judgment, it failed to establish its entitlement to the judgment it requested.<br /><br />Under these facts and circumstances, we cannot conclude the trial court erred in dismissing the case for want of prosecution. See Crown Asset Mgmt. LLC v. Loring, 05-07-01418-CV (Tex. App.-Dallas August 27, 2009) (holding dismissal for want of prosecution permissible when plaintiff fails to show entitlement to a default judgment by court-ordered deadline).<br /><br />We affirm the trial court's dismissal order.<br /><br />MARTIN RICHTER JUSTICE<br /><br />Date decision handed down: August 31, 2009<br />Appellate Cause No.: <a href="http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?command=search&file=c05_09.ask,c05_08.ask,c05_07.ask,c05_06.ask,c05_05.ask,c05_04.ask,c05_03.ask,c05_02.ask,c05_01.ask,c05topin.ask,c05_00.ask,c05_99.ask,c05_98.ask,c05_97.ask,c05_96.ask,c05_93.ask,c05_89.ask&request=05-07-01492-CV&maxhits=10&NumLines=1">05-07-01492-CV</a><br />Disposition on Appeal: AFFIRM trial court's dismissal order - <a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071492.HTM">Docket Sheet</a><br />Resurgence Financial, LLC v. Taylor, Freeman<br />Opinion by: Justice Martin E. Richter<br />Case Type: CONTRACT (credit card debt)THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-27750335995044418922009-09-04T14:57:00.000-07:002009-09-10T21:41:22.406-07:00DWOP Dismissal of Deficiency Suit Affirmed<em><span style="color:#000099;">In another opinion in a series of recently-decided appeals brought by debt collectors challenging a county court judge's proactive and efficient clean-up of her debt collection docket by means of DWOP warnings & orders, a panel of the Dallas Court of Appeals once more upholds the trial judge's dismissal of a collection lawsuit (with one member dissenting) - this time a deficiency suit, rather than a credit card default. Bad week for debt collectors. Shoddy pleadings and documentation combined with poor lawyering don't survive judicial scrutiny on appeal either. Time for some civil procedure CLE beyond the prescribed minimum, it appears. </span></em><br /><br /><strong><span style="color:#cc0000;">TEXT OF SEP. 4, 2009 MEMORANDUM OPINION BY JUSTICE LANG-MIERS</span></strong><br /><br />Appellant Crown Asset Management, LLC appeals the trial court's order dismissing its breach of contract suit against Luisa and James Dunavin for want of prosecution. In two issues, Crown contends that the trial court erred by not granting its motion for default judgment and by dismissing its suit. We affirm the trial court's order.<br /><br /><span style="color:#000099;">Background</span><br /><br />Crown sued the Dunavins to collect on an alleged deficiency of $8,090.78 after a foreclosure on unidentified collateral securing a contract. After the lawsuit was filed, the trial court sent a letter advising that the case had been placed on the dismissal docket and would be dismissed on September 14, 2007 unless Crown took one of several actions, one of which was to prove up a default judgment if no sufficient answer was filed.<br /><br />The Dunavins did not answer and Crown moved for a default judgment. Various exhibits were attached to the motion, including affidavits in support of the judgment and in support of a request for attorneys' fees. On July 31, 2007, the trial court sent Crown a letter advising that it was returning the proposed default judgment unsigned because of several perceived substantive deficiencies:<br /><br />* Petition does not give fair notice of claim against Defendant;<br />* Judgment relies on causes of action that are not adequately pleaded;<br />* Damages cannot be accurately calculated, no written instrument attached to petition;<br />* No evidence that the amount of the account or price charged is in accordance with an express contract or is usual, customary and reasonable; [and]<br />* No evidence of a systematic record kept and supported by an affidavit.<br /><br />Crown did not respond, and on September 20, 2007, the trial court signed an order dismissing the case for two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER)” and (2) for want of prosecution.<br /><br /><span style="color:#000099;"><strong>Analysis<br /></strong></span><br /><span style="color:#000099;"><strong>Crown's Lawsuit Against Luisa Dunavin</strong></span><br /><br />Crown sued both James Dunavin and Luisa Dunavin, but refers to them in Crown's appellant's brief collectively as “DUNAVIN.” In its brief, Crown states that “DUNAVIN were served with process” and that “DUNAVIN never filed an answer or otherwise appeared.” There is no evidence in the record, however, demonstrating that Luisa Dunavin was served with process in accordance with the rules of civil procedure. The record does not include a citation for Luisa Dunavin or the return of service of citation on her, and there is nothing in the record demonstrating that Crown requested that these documents be included in the appellate record.<br /><br />Although Texas Rule of Appellate Procedure 35.3(a) places the burden to timely prepare, file, and certify the clerk's record on the trial court clerk, “the appellant bears the burden to bring forward an appellate record that enables this Court to determine whether the appellant's complaints constitute reversible error.” Resurgence Fin., L.L.C. v. Moseley, No. 05-07-01225-CV, 2009 WL 92444, at *1 (Tex. App.-Dallas Jan. 15, 2009, no pet.) (mem. op.). “Without proper service of citation, a trial court does not have in personam jurisdiction to enter a default judgment.” Credigy Receivables, Inc. v. Holt, No. 05-07- 01577-CV, 2009 WL 679590, at *2 (Tex. App.-Dallas Mar. 17, 2009, no pet.) (mem. op.).<br /><br />As a result, without evidence that Luisa Dunavin was properly served with process, we cannot conclude that the trial court erred by not granting a default judgment against her. See id.; see also Moseley, 2009 WL 92444, at *1 (“When, as here, the issues on appeal necessarily involve consideration of documents omitted from the appellate record, we must presume the missing documents support the trial court's ruling.”).<br /><br />We also cannot conclude that the trial court erred by dismissing Crown's lawsuit against Luisa Dunavin for want of prosecution. The inquiry for us on appeal is whether a trial judge reasonably could have concluded that the plaintiff failed to prosecute its case with reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam).<br /><br />The trial court may consider the entire history of the litigation, periods of activity, intervals of inactivity, reasons for lack of attention, and the passage of time. Lopez v. Harding, 68 S.W.3d 78, 80 n.2 (Tex. App.-Dallas 2001, no pet.). Here, the trial court warned Crown that its lawsuit would be dismissed four months after it was filed if Crown did not take one of several actions after service of the petition.<br /><br />In this case, the record does not demonstrate that Crown even served the petition on Luisa Dunavin. Consequently, there is no evidence that Crown took any action as to Luisa Dunavin within the time specified by the trial court. Based on the record in this case, we cannot conclude that Crown prosecuted its claim against Luisa Dunavin with reasonable diligence, or that the trial court abused its discretion when it dismissed Crown's claims against Luisa Dunavin for want of prosecution. We overrule Crown's two issues as against Luisa Dunavin.<br /><br /><strong><span style="color:#000099;">Crown's Lawsuit Against James Dunavin</span></strong><br /><br />Because our record demonstrates that James Dunavin was served with process, we separately resolve Crown's two issues on appeal as to him. In Crown's second issue, it complains that the trial court erred by denying its motion for default judgment. We may consider the trial court's denial of a motion for default judgment when, as here, the denial is challenged in an appeal from a final judgment or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In this case, the issue is properly preserved for appellate review because the trial court's written notice about the perceived deficiencies in the motion for default judgment was an adverse ruling on the motion for default judgment. See Crown Asset Mgmt., L.L.C. v. Loring, No. 05-07-01418-CV, 2009 WL 2596101, at *1 (Tex. App.-Dallas Aug. 25, 2009, no pet. h.) (en banc).<br /><br />As we explained in Loring, a trial court cannot grant a motion for default judgment if the petition does not give fair notice to the defendant of the claim asserted. Id. at *1. In its petition, Crown alleged only the following:<br /><br />FACTS. In the usual course of business, funds were advanced to Defendants pursuant to a contract. To secure the payment of the contract, Defendants executed a security agreement granting a security interest in the goods described therein. Plaintiff is the owner and holder of this contract and is entitled to receive all money due under its terms.<br /><br />DEFAULT. Defendants defaulted in making required payments pursuant to the contract which is the subject of this suit. Plaintiff foreclosed its security interest in the collateral, which was sold in accordance with Texas law. The balance due Plaintiff is $8090.78 after all just and lawful offsets, credits, and payments. Plaintiff has demanded that Defendants pay this amount, but Defendants have not done so.<br /><br />The petition in this case does not provide any identifying information about the underlying contract, such as a loan or account number or the original lender, nor does it contain any identifying information regarding the alleged collateral or the sale of the collateral.<br /><br />It is impossible to determine from the petition with whom or for what the Dunavins allegedly contracted.<br /><br />Given the complete absence of even basic information, we conclude that the petition does not provide sufficient notice to James Dunavin to prepare a defense; consequently, Crown was not entitled to a default judgment. See id. at *2. We overrule Crown's second issue.<br /><br />In Crown's first issue, Crown argues that the trial court erred when it dismissed Crown's suit for want of prosecution. We review a dismissal for want of prosecution for abuse of discretion. Id. A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Id.<br /><br />The trial court may dismiss a case for want of prosecution under its inherent power to control its docket if the case has not been prosecuted with diligence. Id. Lack of diligence need not amount to abandonment for a case to be properly dismissed. Id.<br /><br />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.<br /><br />The trial court advised Crown that its case would be dismissed on September 14, 2007 if it did not prove up a default judgment before that date. After the trial court returned Crown's motion for default judgment unsigned because of numerous perceived deficiencies, Crown did not amend its motion, nor did it seek a clarification, a continuance, or any other action from the trial court. The case was dismissed on September 20.<br /><br />Crown has raised no complaint regarding the default setting notice it received. Instead, Crown only generally complains that “this court could not have dismissed this case for failure to prosecute with diligence.”<br /><br />Given the history of this case, and the circumstances surrounding the dismissal, we cannot conclude that the trial court abused its discretion by dismissing the case after notifying Crown of specific deficiencies in its motion for default judgment that were not corrected, particularly in light of the fact that we have determined that Crown was not entitled to a default judgment.<br /><br />We overrule Crown's first issue.<br /><br /><span style="color:#000099;"><strong>Conclusion</strong><br /></span><br />We overrule Crown's two issues and affirm the trial court's order.<br /><br />ELIZABETH LANG-MIERS<br />JUSTICE<br /><br />FitzGerald, J., concurring in part.<br /><br /><span style="color:#cc0000;"><strong>TEXT OF CONCURRING [DISSENTING] OPINION BY JUSTICE FITZGERALD<br /></strong></span><br />I continue to believe that Crown Asset Management, L.L.C. v. Loring, No. 05-07-01416-CV, 2009 WL 2596101 (Tex. App.-Dallas Aug. 25, 2009, no pet. h.) (en banc), was wrongly decided for the reasons stated in my dissenting opinion in that case. I concur in the majority's judgment in this case with respect to Crown's claims against James Dunavin only because this panel is bound to follow the en banc decision in Loring. I join the majority opinion with respect to the analysis and disposition of Crown's claims against Luisa Dunavin.<br /><br />KERRY P. FITZGERALD<br />JUSTICE<br /><br /><span style="font-size:85%;">CASE DETAILS:<br />Dallas Court of Appeals Appellate Cause No. 05-07-01367-CV </span><a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071367.htm"><span style="font-size:85%;">Docket Sheet</span></a><br /><span style="font-size:85%;">Style: Crown Asset Management, LLCv. Dunavin, Luisa and James </span><br /><span style="font-size:85%;">Date Filed: 10/09/2007 Date Decision and Opinion released: 9/4/2009</span><br /><span style="font-size:85%;">Case Type: OTHER CIVIL </span><br /><span style="font-size:85%;">County: DALLAS - Court: COUNTY COURT AT LAW # 1 </span><br /><span style="font-size:85%;">Trial Judge: D'Metria Benson </span><br /><span style="font-size:85%;">Disposition: DWOP Dismissal Order Affirmed by Panel Majority with Concurring & Dissenting Opinion by One Justice</span>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-89671298616831547872009-09-04T12:27:00.000-07:002009-09-04T12:51:47.099-07:00Dismissal of Credit Card Debt Collection Suit for Want of Prosecution Affirmed<span style="color:#990000;"><strong>DALLAS COURT OF APPEALS' </strong><strong>MEMORANDUM OPINION IN DEBT COLLECTOR'S APPEAL FROM DWOP ORDER </strong></span><br /><strong><span style="color:#990000;"></span></strong><br /><strong><span style="color:#990000;">BY JUSTICE LANG</span></strong><br /><br />Crown Asset Management appeals the trial court's order dismissing its lawsuit for breach of contract against Paul R. Strayhorn, Jr. Crown Asset raises two issues arguing the trial court erred when it: (1) dismissed its lawsuit for want of prosecution; and (2) denied its motion for default judgment. Strayhorn did not make an appearance in the trial court and has not filed a brief on appeal.<br /><br />We conclude the trial court did not err when it dismissed Crown Asset's lawsuit or when it denied Crown Asset's motion for default judgment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.<br /><br />The trial court's judgment dismissing Crown Asset's lawsuit is affirmed.<br /><br /><strong><span style="color:#000099;">I. FACTUAL AND PROCEDURAL BACKGROUND</span></strong><br /><br />On August 2, 2007, Crown Asset filed its lawsuit against Strayhorn alleging breach of contract and attaching discovery requests. On August 7, 2007, the trial court sent Crown Asset a letter that stated, pursuant to Texas Rule of Civil Procedure 165a, the case was set for dismissal on November 9, 2007, at 9:00 a.m. Also, the letter stated:<br /><br />If no answer has been filed, or if the answer is insufficient as a matter of law to place any of the facts alleged in your petition in issue, you will be expected to have moved for, and to have heard, a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in the dismissal of the case on the above date.<br /><br />On August 8, 2007, Strayhorn was served with the citation. However, Strayhorn failed to file an answer to the lawsuit or the discovery requests. As a result, on October 9, 2007, Crown Asset filed a motion for default judgment, indicating the damages were unliquidated and attaching an affidavit it claimed proved up those damages.<br /><br />On October 12, 2007, the trial court sent Crown Asset an unsigned form letter to “Counsel of Record” that identified the cause number and stated the proposed default judgment was being returned unsigned. The Dallas County, Texas crest was at the top of the first page directly above the trial judge's name and court.<br /><br />The form letter included a list of items under two separate headings, “Procedural Issues” and “Substantive Issues.” A blank space was provided to the left of each “issue.” No procedural issues were checked on the unsigned form letter. However, the following substantive issues were checked, indicating the proposed default judgment was being returned for one or more of the following reasons “concerning the motion for default judgment”:<br /><br />(1) the petition did not give Strayhorn fair notice of the claim;<br />(2) the judgment relied on a cause of action that was not properly pleaded;<br />(3) the damages could not be accurately calculated and no written instrument was attached to the pleading;<br />(4) there was no evidence of sale and delivery of the merchandise or performance of services; (5) there was no evidence the amount of the account or price charged was in accordance with an express contract or was usual, customary and reasonable;<br />(6) there was no evidence of a systematic record kept and supported by an affidavit; and<br />(7) the requests for admissions were deficient.<br /><br />The letter also stated, “it is NOT NECESSARY to re-file all the paperwork associated with the Motion for Default Judgment, only the items identified above as necessary before a Default Judgment can be signed.” The record does not show Crown Asset responded, in any manner, to the trial court's form letter.<br /><br />The trial court signed a judgment dated November 9, 2007, dismissing Crown Asset's lawsuit with the following two out of seven listed grounds for dismissal marked: (1) “Failure to appear for a hearing or trial of which notice was had”; and (2) “Dismiss for Want of Prosecution.”<br /><br />Crown Asset appealed.<br /><br /><span style="color:#000099;">II. JUDGMENT OF DISMISSAL AND ORDER DENYING DEFAULT JUDGMENT</span><br /><br />In issues one and two, Crown Asset argues the trial court erred when it: (1) dismissed its lawsuit for want of prosecution; and (2) denied its motion for default judgment.<br /><br /><span style="color:#000099;">A. Applicable Law</span><br /><br />An appellant must challenge all independent bases or grounds that fully support the trial court's judgment. See Univ. of Houston v. Barth, 265 S.W.3d 607, 615 (Tex. App.-Houston [1st Dist.] 2008, pet. filed). When a separate independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm the trial court's judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977) (concluding appellant's failure to challenge separate and independent ground of recovery for negligence required judgment to be affirmed); Midway Nat'l Bank v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460, 461 (Tex. 1970) (per curiam) (affirming judgment when appellant failed to attack independent legal conclusion that “fully supported” judgment); Long v. Long, 196 S.W.3d 460, 468 (Tex. App.-Dallas 2006, no pet.) (appellants did not challenge trial court's findings of fact and conclusions of law with respect to breach of contract action). An appellate court may not reverse the trial court's judgment for a reason not raised by the parties on appeal. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1983).<br /><br /><span style="color:#000099;">B. Dismissal For Want of Prosecution</span><br /><br />In issue one, Crown Asset argues the trial court erred when it dismissed Crown Asset's lawsuit for want of prosecution. It claims it moved for a default judgment by November 9, 2007, as required by the trial court's August 7, 2007 letter. Also, it claims affirmative defenses and special exceptions are waived if not specifically pleaded. The trial court should not have raised these defenses and objections on behalf of Strayhorn in its October 12, 2007 unsigned form letter. Further, the dismissal of the suit was “arbitrary.”<br /><br />The trial court's judgment dismissed Crown Asset's lawsuit for: (1) “Failure to appear for a hearing or trial of which notice was had”; and (2) “Dismiss for Want of Prosecution.” Crown Asset has not challenged a distinct ground for the trial court's judgment of dismissal, i.e., “Failure to appear for a hearing or trial of which notice was had.” Crown Asset argues only that the trial court abused its discretion when it dismissed Crown Asset's lawsuit for want of prosecution. Accordingly, we conclude the trial court did not abuse its discretion because Crown Asset has not challenged a ground for the trial court's judgment.<br /><br />When a separate independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm the trial court's judgment. See Nobility, 557 S.W.2d at 83; Midway Nat'l Bank, 453 S.W.2d at 461.<br /><br />Issue one is decided against Crown Asset.<br /><br /><span style="color:#000099;">C. Motion For Default Judgment</span><br /><br />In issue two, Crown Asset argues the trial court erred when it denied Crown Asset's motion for default judgment. Crown Asset argues all allegations, except for the amount of damages, were deemed admitted because Strayhorn did not answer the lawsuit. Also, it claims the trial court did not have discretion to refuse to deem the admissions because Strayhorn did not respond to its requests for admission. See Tex. R. Civ. P. 198.2(c) (if response to request for admissions not timely served, request is considered admitted without necessity of court order).<br /><br />Assuming without deciding the trial court abused its discretion when it refused to deem the admissions, Crown Asset fails to challenge the other reasons the trial court denied its request for a default judgment. In addition to denying the motion for default judgment because the requests for admissions were deficient, the trial court denied the motion because: (1) the petition did not give Strayhorn fair notice of the claim; (2) the judgment relied on a cause of action that was not properly pleaded; (3) the damages could not be accurately calculated and no written instrument was attached to the pleading; (4) there was no evidence of sale and delivery of the merchandise or performance of services; (5) there was no evidence the amount of the account or price charged was in accordance with an express contract or was usual, customary and reasonable; and (6) there was no evidence of a systematic record kept and supported by an affidavit.<br /><br />Accordingly, we conclude the trial court did not abuse its discretion because Crown Asset has not challenged the other grounds for the trial court's order. See Nobility, 557 S.W.2d at 83; Midway Nat'l Bank, 453 S.W.2d at 461.<br /><br />Issue two is decided against Crown Asset.<br /><br /><span style="color:#000099;">III. CONCLUSION</span><br /><br />Having decided Crown Asset's issues against it, we affirm the trial court's judgment dismissing Crown Asset's suit.<br /><br />DOUGLAS S. LANG<br />JUSTICE<br /><br /><span style="font-size:85%;">CASE DETAILS:</span><br /><span style="font-size:85%;">Decision of the Dallas Court of Appeals, Appellate Case No. 05-07-01603-CV </span><a href="http://www.5thcoa.courts.state.tx.us/files/05/07/05071603.htm"><span style="font-size:85%;">Docket Sheet</span></a><br /><span style="font-size:85%;">Case Style: Crown Asset Managment LLCv. Strayhorn, Paul R. Jr. Date </span><br /><span style="font-size:85%;">Filed: 11/26/2007 </span><br /><span style="font-size:85%;">Case Type: CONTRACT County: DALLAS </span><br /><span style="font-size:85%;">Court: COUNTY COURT AT LAW NO 1 - Trial Judge: Benson, D'Metria </span>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-30833951364354831592009-09-04T12:19:00.000-07:002009-09-04T12:52:25.978-07:00Divorce Decree Signed After DWOP Order Found Void - Dismissal order was final and had not been appealed<span style="color:#000099;">PLENARY JURISDICTION HAD EXPIRED</span><br /><br />A trial court may not dismiss for want of prosecution unless notice of the intent to dismiss is sent to each represented party's attorney and to each pro se party. Tex. R. Civ. P. 165a(1). Notice of a dismissal must be mailed to the parties immediately. See Tex. R. Civ. P. 165a(1), 306a(3). Unless a party files a timely motion that extends the trial court's plenary power, the court's plenary power expires thirty days after a judgment is signed. Tex. R. Civ. P. 329b(d).<br /><br />After the court's plenary power expires, the "judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law," although the court may render a judgment nunc pro tunc to correct a clerical error and may sign an order declaring an earlier order void because it was signed after the court's plenary power had expired. Tex. R. Civ. P. 329b(f).<br /><br />A judgment rendered in violation of rule or statute but signed by a court with proper jurisdiction over the cause is voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)) ("Errors other than lack of jurisdiction, such as 'a court's action contrary to a statute or statutory equivalent,' merely render the judgment voidable so that it may be 'corrected through the ordinary appellate process or other proper proceedings.'").<br /><br />On July 19, 2007, the trial court signed the order dismissing the cause for want of prosecution. Regardless of whether notice was provided before or after the dismissal, the trial court had jurisdiction at the time it signed the order, and the dismissal is merely voidable. See id. The trial court lost plenary power thirty days later and thus was without jurisdiction to proceed any further as of August 20, 2007. Ms. Stepherson's inquiries and the trial court's instructions related to the motion to enforce occurred a year later.<br /><br />The trial court had no jurisdiction over the case at the time it heard Mrs. Gerstacker's motion to enforce and signed the final divorce decree.<br /><br />A party may file a bill of review to overturn an improper judgment within four years of the judgment's signing. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); see Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (when plaintiff did not receive notice of trial court's intent to dismiss for want of prosecution, dismissal is erroneous and plaintiff is entitled to pursue reinstatement through bill of review); see also Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) ("When extrinsic evidence is necessary to challenge a judgment, the appropriate remedy is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity to consider and weigh factual evidence."). A bill-of-review petitioner who did not receive notice of a trial court's intent to dismiss for want of prosecution must show she was not negligent in failing to seek to retain the case on the trial court's docket. See Caldwell v. Barnes, 154 S .W.3d 93, 96 (Tex. 2004) (bill of review petitioner generally must prove (1) meritorious defense (2) that she was prevented from making by opposing party or official mistake, (3) unmixed with her own fault or negligence, but petitioner claiming non-service is relieved of first two elements).<br /><br />The motion to enforce filed by Mrs. Gerstacker is not a bill of review and does not allege any of the required elements of a bill of review. See id. The motion seeks only to enforce a prior order related to child support and does not refer to the dismissal in any form.<br /><br />The July 2007 dismissal order was a final, appealable order entered in this case, and because there was no notice of appeal filed within thirty days of that order, we are without jurisdiction to consider the appeal. See State ex. rel Latty, 907 S.W.2d at 486.<br /><br />We therefore have no choice but to declare the divorce decree void and dismiss the appeal for want of jurisdiction.<br />__________________________________________<br />David Puryear, Justice<br />Before Justices Patterson, Puryear and Pemberton<br />Dismissed for Want of Jurisdiction<br />Filed: September 4, 2009<br /><br />CASE ID: 03-<a name="1">09</a>-00<a name="2">022</a>-CV (9/4/09)THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-89357595726893854652008-02-03T13:13:00.000-08:002009-09-04T12:50:51.965-07:00DWOP: Dismissal of creditor's suit on credit card debt affirmed<em><span style="color:#000099;">Plaintiff committed procedural errors, did not show diligence in securing and documenting efforts to serve citation on defendant, and did not properly preserve error for appellate review. Court of appeals holds that dismissal was proper, and affirms trial court's order.</span></em><br /><br /><a href="http://www.houston-opinions.com/files/1stCoA-2008-Hudson-v-Gipson-by-Jennifer.mht">Hudson & Keyse, LLC v. Gipson</a><br /><span style="font-size:85%;">(Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings) (</span><a href="http://www.houston-opinions.com/Texas-consumer-credit-cards-debt-collection-case-law-cases.html"><span style="font-size:85%;">credit card debt suit</span></a><span style="font-size:85%;">, DWOP, substitute service, motion to reinstate, failure to appear)<br />Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland<br />01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson<br />Appeal from County Civil Court at Law No 1 of Harris County (</span><a href="http://www.houston-opinions.com/HC-CCCL1-Judge-Cagle-Jack.html"><span style="font-size:85%;">Judge</span></a><a href="http://www.houston-opinions.com/HC-CCCL1-Judge-Cagle-Jack.html"><span style="font-size:85%;"> Jack Cagle</span></a><span style="font-size:85%;">)<br />Disposition: Affirmed trial court judgment of dismissal<br /></span><br /><strong><span style="color:#990000;">MEMORANDUM OPINION<br /></span></strong><br />Appellant, Hudson & Keyse, L.L.C. ("Hudson"), challenges the trial court's order of dismissal of its suit against appellees, Lavern W. Gipson and Emmett Gipson, to recover an outstanding credit card balance. In two issues, Hudson contends that the trial court erred in dismissing the case for want of prosecution and denying its motion for substitute service. We affirm.<br /><br /><span style="color:#000099;">Factual and Procedural Background<br /></span><br />On May 23, 2006, Hudson filed suit against the Gipsons, alleging that they defaulted in making required payments pursuant to a credit card agreement. On May 25, 2006, citation was issued. On June 22, 2006, Hudson filed a motion for substitute service, stating that it had unsuccessfully attempted to serve the Gipsons, who "[could] probably be found" at 808 Junell Street in Houston, Texas, and that the Gipsons could be given notice of the suit through substitute service.<br /><br />In support of its motion, Hudson attached an affidavit from its process server, who testified that she "attempted to make personal delivery" on the Gipsons at their "place of abode,"<a href="mhtml:http://www.houston-opinions.com/files/1stCoA-2008-Hudson-v-Gipson-by-Jennifer.mht!x-usc:http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=85110#N_1_"> (1)</a> but had "deemed" such service "impractical." She believed that the Gipsons could be given notice of the suit "by delivering to anyone over the age of sixteen (16) at the [Gipsons'] usual place of abode or by attaching [the citation and petition] to the front entrance of the [Gipsons'] usual place of abode." The process server had previously attempted to serve the Gipsons at the Junell Street address on five occasions--May 31, June 2, June 3, June 5, and June 10, 2006--but there was no answer at the door. Thus, she left her card on the door. On June 6, 2006, she received a telephone call from a male individual who identified himself as Emmett Gipson and told her that she "should not come back to his house because neither he nor his wife [would] take anything that [she] had."<br /><br />The clerk's record does not show that the trial court ruled on Hudson's motion for substitute service.<a href="mhtml:http://www.houston-opinions.com/files/1stCoA-2008-Hudson-v-Gipson-by-Jennifer.mht!x-usc:http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=85110#N_2_"> (2)</a> Moreover, there is no evidence in the record that Hudson ever again attempted to serve the Gipsons during the following eight months in which the suit remained pending or that Hudson filed any additional requests for substitute service supported by any new evidence.<br /><br />On January 5, 2007, the trial court granted Hudson a continuance.<a href="mhtml:http://www.houston-opinions.com/files/1stCoA-2008-Hudson-v-Gipson-by-Jennifer.mht!x-usc:http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=85110#N_3_"> (3)</a> Three months later, on March 5, 2007, the trial court signed an order of dismissal "for want of prosecution," stating that the parties had been notified of the trial date and had "failed to appear."<br /><br />On March 28, 2007, Hudson filed a motion to reinstate, in which it stated that it had filed a second motion for continuance on February 28, 2007, "explain[ing] that it was having difficulties serving [the Gipsons]." Although this motion for continuance is not contained in the clerk's record, Hudson, in its appellate briefing represents that it filed this second motion for continuance "prior to dismissal indicating to the trial court that it was having continuing difficulties with service." (Emphasis added). However, there is no evidence in the record that Hudson made continuing service efforts following its five service attempts in late May and early June 2006. In its motion to reinstate, Hudson also asserted that Harris County Appraisal District ("HCAD") records established that the Gipsons owned "homestead property" at the Junell Street address and that the Gipsons had not been home or were avoiding service. However, Hudson did not attach the referenced HCAD records to its motion, and they are not contained in the record before us.<br /><br />On April 5, 2007, the trial court signed an order stating that it heard Hudson's motion to reinstate and that the motion was "not well taken." Thus, the trial court denied the motion to reinstate. Although the order recites that a hearing was held on the motion, there was no reporter's record filed with this Court.<br /><br /><span style="color:#000099;">Dismissal for Want of Prosecution</span><br /><br />In its first issue, Hudson argues that the trial court erred in dismissing the case for want of prosecution because Hudson attempted service on five different occasions, it provided proof that it made these service attempts at the Gipsons' homestead, the trial court should have allowed substitute service, and it exercised diligence.<br /><br /><span style="color:#000099;">A court may dismiss a case for want of prosecution "on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Tex. R. Civ. P. 165a(1). In fact, "[a]t 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. In addition to the express authority under Rule 165, the common law vests trial courts with the inherent power to dismiss a case when the plaintiff fails to prosecute the case with due diligence. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a trial court's order dismissing a case for want of prosecution for an abuse of discretion. Wright v. Tex. Dep't of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.).</span><br /><span style="color:#000099;"></span><br />Here, the trial court, in its March 5, 2007 dismissal order, recited that the parties had been notified of the trial date and failed to appear. In its appellate briefing, Hudson does not address the consequence of failing to appear on the trial date. Hudson does not contend that the trial court failed to provide it with the required notice. See Tex. R. Civ. P. 165a(1) (setting forth notice requirements before case may be dismissed for want of prosecution for failure to appear). Nor does Hudson assert any specific reason as to why it was not required to appear.<br /><br />Moreover, Hudson does not challenge the trial court's statement in the dismissal order that Hudson, in fact, failed to appear. We note that although Hudson, in its subsequently-filed motion to reinstate, referred to the filing of a February 28, 2007 motion for continuance prior to the trial court's dismissal, there is no copy of any such motion in the record. On this record, we cannot conclude that the trial court abused its discretion in dismissing the case for want of prosecution under Rule 165 when Hudson failed to appear on the trial date on March 5, 2007. See id.<br /><br />In regard to Hudson's motion to reinstate, <span style="color:#000099;">a party may file a motion setting forth grounds for reinstatement, and the trial court "shall set a hearing on the motion." Tex. R. Civ. 165a(3). The trial court "shall reinstate the case upon finding after a hearing 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 has been otherwise reasonably explained." Id. We review a trial court's ruling on a motion for reinstatement for an abuse of discretion. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.--Dallas 2006, pet. denied).</span><br /><br />Here, in its first issue, Hudson has not specifically challenged the trial court's denial of its motion to reinstate. However, to the extent that it seeks to challenge this ruling, it has not cited anything in the record to show that the trial court would have abused its discretion in not making the requisite finding to reinstate the case, i.e., the finding that Hudson's failure was not intentional or the result of conscious indifference but was due to an accident or mistake or that Hudson's failure has been otherwise reasonably explained. Tex. R. Civ. 165a(3).<br /><br />In considering whether the record would support such a finding, we note that although the order denying the motion to reinstate suggests that a hearing was held on Hudson's motion, there was no reporter's record taken at the hearing. Thus, we are not aware of what additional evidence, if any, was considered by the trial court in denying the motion to reinstate. Furthermore, although Hudson, in its appellate briefing, suggests that it was having continuing difficulties with service, the only evidence in the record is that Hudson made five service attempts in an eleven-day period from May 31 to June 10, 2006. There is no evidence as to what service efforts, if any, Hudson undertook during the subsequent eight-month period from June 2006 until March 2007, when the case was dismissed. Accordingly, we hold that the trial court did not err in dismissing the case for want of prosecution and denying Hudson's motion to reinstate.<br />We overrule Hudson's first issue.<br /><br /><span style="color:#000099;">Substitute Service</span><br /><br />In its second issue, Hudson argues that the trial court erred in denying its motion for substitute service because it made five separate service attempts at the Gipsons' residence and that the Gipsons would not "cooperate in the service process." Hudson asserts that "[c]learly they were evading service and substituted service was the only means available to serve them" and that the "quality and quantity" of its service attempts shows "extreme diligence." Hudson also asserts that the trial court's error "caused this case to remain pending without any disposition until the trial court dismissed it for want of prosecution."<br /><br /><span style="color:#000099;">Texas Rule of Civil Procedure 106(b) provides,<br /></span><br /><span style="color:#000099;">Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service<br /></span><br /><span style="color:#000099;">(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or </span><br /><span style="color:#000099;"><br />(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.<br />Tex. R. Civ. P. 106(b).<br /></span><br /><span style="color:#000099;">We examine a trial court's denial of a motion for substitute service for an abuse of discretion. See Izen v. Sjostrom, No. 14-06-00142-CV, 2007 WL 968841, at *4 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (mem. op.).</span><br /><br />Initially, we note that the record does not contain an order denying Hudson's motion for substitute service. It appears that the trial court simply did not rule on Hudson's motion. See Tex. R. App. P. 33.1 (providing that as prerequisite to presenting complaint for appellate review, record must show that trial court ruled on motion, expressly or implicitly, or refused to rule on motion, and complaining party objected to refusal).<br /><br />Nevertheless, contrary to Hudson's assertions that it exercised "extreme diligence," the record does not establish that Hudson made continuous efforts to serve the Gipsons throughout the underlying proceedings. Rather, the record shows that Hudson's process server made five attempts during an eleven-day period to serve the Gipsons at their purported home address shortly after Hudson filed suit.<br /><br />There is nothing in the record to indicate that, after these initial attempts, Hudson ever made any additional service attempts or that Hudson ever filed any additional motions for substitute service, supported by any additional evidence. Accordingly, <span style="color:#cc0000;"><strong>we hold that the trial court did not abuse its discretion in not authorizing substitute service</strong></span>. See Izen, 2007 WL 968841, at *4 (holding that trial court did not abuse its discretion in denying motion for substitute service after plaintiff attempted to serve defendant at his residence on four separate occasions).<br /><br />We overrule Hudson's second issue.<br /><br /><span style="color:#000099;">Conclusion</span><br /><br />We affirm the order of the trial court dismissing the case for want of prosecution.<br /><a href="http://www.houston-opinions.com/Justice-Jennings-2008-Civil-Appeals-Opinions.html">Terry Jennings</a><br />Justice<br />Panel consists of Chief Justice Radack and Justices Jennings and Bland.<br /><br /><a name="N_1_"><span style="font-size:85%;">1. </span></a><span style="font-size:85%;">The process server stated, without any explanation, that the Gipsons place of abode "was established personally in [her] efforts."<br /></span><a name="N_2_"><span style="font-size:85%;">2. </span></a><span style="font-size:85%;">Although Hudson, in its briefing, asserts that the trial court denied its motion for substitute service, the clerk's record contains no such order.<br /></span><a name="N_3_"><span style="font-size:85%;">3. </span></a><span style="font-size:85%;">The clerk's record does not contain a copy of any motion supporting Hudson's request for a continuance, nor does it contain any evidence as to the basis for the continuance. </span>THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-11840187919711837062007-12-02T15:21:00.000-08:002007-12-02T15:29:22.292-08:00Pro Se Suit against Clerk dismissed for failure to serve citation<em><span style="color:#000099;">Amarillo court of appeals affirms dismissal in the absence of evidence of service of process on the clerk of the 5th Circuit.</span></em><br /><br />Laurance Kriegel v. William C. Zapalac, Counsel of the Clerk's Office, No. <a class="BreadCrumbs" href="http://www.7thcoa.courts.state.tx.us/opinions/case.asp?FilingID=10876">07-07-00342-CV</a> (Tex.App.- Amarillo, Nov. 28, 2007)(<a class="TextNormal" href="http://www.7thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=12274" target="_blank">Opinion by Justice Campbell</a>)(pro se litigants, dismissal for failure to serve defendant affirmed)(Before Chief Justice Quinn, Justices Campbell and Pirtle)<br />Appeal from 287th District Court of Parmer County<br /><br />Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.<br /><br />MEMORANDUM OPINION<br /> <br />Appellant Laurance Kriegel, appearing pro se, appeals the trial court’s dismissal of his suit for want of prosecution. Finding the trial court did not abuse its discretion, we affirm.<br /><br /><br />Background<br /> <br />Also appearing pro se in the trial court, Kriegel filed suit on January 3, 2007. <a href="javascript:WPShow("></a><br />if( bInlineFloats )<br /><br />Because the original clerk’s record filed with this court did not contain a copy ofKriegel’s petition, and to understand the substance of his complaint, we obtained a copyof his live petition in a supplemental clerk’s record. See Tex. R. App. P. 34.5 (c)(1).<br /><br />Kriegel contended appellee William Zapalac, counsel to the Clerk’s Office for the United States Court of Appeals for the Fifth Circuit, <a href="javascript:WPShow("></a><br />if( bInlineFloats )<br /><br />Hereinafter the United States Court of Appeals for the Fifth Circuit is identified asthe “Fifth Circuit.”<br /><br />and unnamed other members of the office of that court’s clerk, failed to docket a matter brought before the Fifth Circuit by Kriegel. In particular, Kriegel asserted Zapalac owed him a fiduciary duty which was breached when Kriegel’s matter was not docketed or calendared with the Fifth Circuit. Kriegel asked the state trial court to: (1) order the clerk’s office of the Fifth Circuit to calendar and docket his matter; and (2) consider removing employees of the Fifth Circuit who violate their “fiduciary duty” to Kriegel.<br /> The record reveals that on July 25, 2007, the trial court dismissed Kriegel’s suit, without prejudice, for want of prosecution. In its order of dismissal, the court found that no proper citation with proof of service on Zapalac appeared of record. The court further found that on May 29, 2007, it notified Kriegel of its intent to dismiss for lack of service of citation on Zapalac and granted Kriegel until June 19, 2007, to request a continuance. The court found Kriegel made no showing of good cause for a continuance. Accordingly, it dismissed Kriegel’s suit.<br /> Kriegel filed a notice of appeal on August 1, 2007. With no record from the trial court, he nevertheless filed a document bearing the primary heading “Brief” with this court on August 13, 2007. On September 24, 2007, the clerk’s record was filed, consisting of the order of dismissal, Kriegel’s notice of appeal, and the court’s docket sheet.<br /> Because it appeared Kriegel’s complaint was the trial court improperly dismissed his suit for failure to serve Zapalac, and as the clerk’s record did not contain citation with return, we notified Kriegel of the contents of the record by letter of September 28, 2007. We granted Kriegel until October 15, 2007, to file a supplemental clerk’s record containing additional documents he believed material to his appeal. Kriegel made no response to the letter and no supplemental clerk’s record was received by October 15, 2007.<br />Issue<br /> Kriegel’s brief fails to comply with the requirements of Tex. R. App. P. 38.1 in several respects and for the essential requirements of an appellant’s brief we refer Kriegel to the text of Rule 38.1. However, in a single issue Kriegel argues:<br />“Appellant presented information to the Court showing service was lawfully presented on Appellee.”<br /><br />In support of his issue, Kriegel asks us to consider an assortment of documentsattached to his brief. The documents Kriegel references are not part of the clerk’s recordand we may not give them consideration. See Goode v. Shoukfeh, 915 S.W.2d 666, 671n.6 (Tex.App.–Amarillo 1996), aff'd, 943 S.W.2d 441 (Tex. 1997).<br /> <br />Discussion<br /><br /> We review an order of dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). A trial court's authority to dismiss a case for want of prosecution proceeds from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the common law, which vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999). The record here provides no indication that the trial court acted under Rule 165a so we interpret the basis of its dismissal authority to be its inherent power.<br /> Merely filing suit did not bring Zapalac within the jurisdiction of the trial court. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (defendant’s actual knowledge of suit not sufficient to invoke court’s jurisdiction to render default judgment; jurisdiction dependent on citation issued and served in manner provided by law). It was for Kriegel to request process and ensure its proper service on Zapalac. "Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." Tex. R. Civ. P. 99(a) (emphasis supplied). Kriegel’s failure to properly bring Zapalac before the court meant his suit lay dormant on the trial court’s docket. Moreover, it was Kriegel’s failure to properly obtain service and file the return that prompted the trial court’s warning of impending dismissal.<br /> Despite Kriegel’s claim in this court that he provided proof of service for the trial court before June 19, 2007, the record, which is the sole object of our review, speaks otherwise. The court’s order of dismissal states the court’s finding “that no citation, or process under Rules 108 or 108a, TRCP, with proper proof of service on William C. Zapalac, has been filed with the clerk of the court.” The record before us contains no proof that at any time Kriegel either requested citation issue or undertook steps to make certain its proper service. His failure to do so came to the attention of the trial court prompting a warning of impending dismissal unless “a written request for continuance showing good cause was made on or before June 19, 2007, at 9:30 a.m.” The court found Kriegel failed to comply with this requirement and dismissed his case. The record does not reveal whether Kriegel filed a request for continuance that the court found inadequate or filed nothing. In either instance, we presume the evidence of Kriegel’s action or inaction supports the court’s finding that Kriegel “made no showing of good cause for continuance.” See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (in the absence of a record showing the trial court abused its discretion, the appellate court presumes the evidence before the trial court supports the judgment); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.–San Antonio 1989, writ denied) (when nothing in the record contradicts a judgment’s recitals, they are taken as true).<br /> The record before us reflects that Kriegel did nothing to obtain proper service of Zapalac and then did not follow an order of the court specifying the means for avoiding dismissal. On such a record, we cannot say the trial court abused its discretion by dismissing Kriegel’s case for want of prosecution. Accordingly, we overrule Kriegel’s sole issue, and affirm the trial court’s order of dismissal.<br /><br /> James T. Campbell<br /> JusticeTHE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-37421547535674150532007-11-25T21:30:00.000-08:002007-11-25T21:41:37.573-08:00TRCP 165a - Refusal to Reinstate After DWOP Affirmed<u><span style="color:#0066cc;"></span></u><br />HOLDING: <em><span style="color:#000099;">Because the trial court could properly dismiss the Johnson's case for failure of diligent prosecution or for failure to comply with the Rule 165a(2) time standards or under its inherent authority, we do not find that the trial court abused its discretion in refusing to reinstate the case under Rule 165a(3). Having overruled Johnson’s two issues, we affirm the trial court's dismissal.</span></em><br /><br />Linda Johnson and Stephen Wayne Johnson, Individually, and as Guardians of Keashia McLinn, a Minor v. Robert Thigpen, Jr., Individually, and d/b/a Thigpen Cattle Company and Thigpen Cattle Company, an Unidentified Company, No. <a class="BreadCrumbs" href="http://www.10thcoa.courts.state.tx.us/opinions/case.asp?FilingID=8059">10-06-00174-CV</a> (Tex.App.- Waco, Nov. 21, 2007)(<a class="TextNormal" href="http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8628" target="_blank">Opinion by Justice Vance</a>)(DWOP, motion to reinstate denied) (Before Chief Justice Gray, Justices Vance and Reyna)<br />Appeal from 82nd District Court of Falls County<br /><br />MEMORANDUM Opinion<br /><br />Stephen and Linda Johnson, individually and as guardians of Keashia McLinn, a minor (“the Johnsons”) appeal from an order denying their motion to reinstate their suit against Robert Thigpen and Thigpen Cattle Company (“Thigpen.”). The trial court had dismissed the suit for want of prosecution. In two points of error, the Johnsons complain that the court abused its discretion in dismissing the suit because (1) the original suit was improperly dismissed and (2) the motion to reinstate should have been granted. We will affirm the decision of the trial court.<br /><br />Background<br /><br />After being involved in a collision when some of Thigpen’s cattle wandered onto the road, the Johnsons filed suit against Thigpen for failure to maintain fences on his property. Thigpen filed a motion for summary judgment, which was overruled, and the trial court requested that the parties proceed to mediation as soon as the necessary depositions were complete. After the case was inactive for a period of sixteen months, the trial court sent a notice to the parties stating that the case had been set on the dismissal docket for February 14, 2006. It notified both parties that their “presence was not required,” but that a motion to retain could be filed. The Johnsons filed a motion to retain, and on February 10, 2006, it was granted.<br /><br />Thigpen’s attorney, unaware of the motion to retain, arrived at the dismissal hearing on February 14. At the hearing, the court notified Thigpen’s attorney that a motion to retain had been granted, but he contested it. He argued before the court that he had attempted to set up depositions and select a mediator but never received any response from the Johnsons. On these facts, the trial court withdrew its order granting the motion to retain and dismissed the case for want of prosecution. Upon receipt of the trial court’s order dismissing the case, the Johnsons filed a motion to reinstate, which the trial court denied. The Johnsons now appeal.<br />Dismissal for Want of Prosecution<br /><br />The Johnsons’ first issue asserts that the trial court erred when it dismissed their case for want of prosecution. 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); In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex. App.—Texarkana 2002, no pet.). We employ the same standard in reviewing the denial of a motion to reinstate. Franklin v. Sherman Indep. School Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).<br /><br /><span style="color:#000099;">A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a</span><a title="" href="http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8628#_ftn1" name="_ftnref1"><span style="color:#000099;">[1]</span></a><span style="color:#000099;"> and (2) the trial court's inherent authority. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Steward v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.—Waco 2004, no pet.); Binner v. Limestone County, 129 S.W.3d 710, 712 (Tex. App.—Waco 2004, pet. denied). A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2) when a suit is not disposed of within the time standards given by the Supreme Court. Tex. R. Civ. P. 165a(1), (2); Steward, 143 S.W.3d at 163-64. Independent of the rules of civil procedure, a trial court may also dismiss a suit under the inherent authority given to it by common law. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d at 163-64.</span><br /><span style="color:#000099;"></span><a name="sp_999_2"></a><a name="SDU_2"></a><a name="#HN;F2"></a><a name="B22007570334"></a><br /><span style="color:#000099;">The trial court may consider the entire history of the case, including: 1) the length of time the case was on file; 2) the extent of activity in the case; 3) whether a trial setting was requested; and 4) the existence of reasonable excuse for the delay. King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex. App.—Houston [14th Dist.] 1992, no writ).</span> <br /><br />The Johnsons claim that the motion to retain should not have been denied for several reasons.<br /><br />First, the dismissal notice made no reference to Rule 165a or the authority it used to dismiss the case, which they allege is erroneous under Villareal. Thigpen counters that even if the trial court’s order fails to specify the reason for its dismissal of a case, the dismissal must be upheld as long as the record supports some proper ground for dismissal. Shook v. Gilmore and Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ).<br /><br />The Johnsons did not request findings of fact or conclusions of law, and the trial court did not specify the standard of dismissal used. Therefore, we must affirm on the basis of any legal theory supported by the record. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).<br /><br />We disagree with the Johnsons. We have held that “a dismissal notice containing no reference to Rule 165a or the court's inherent authority [is] sufficient to put an appellant on notice that the court could dismiss under Rule 165a(1), Rule 165a(2), or its inherent authority.” Steward, 143 S.W.3d at 164 (citing Binner, 129 S.W.3d at 712). Because the law does not require a dismissal notice to reference Rule 165a or the court’s authority to dismiss, the notice sent to the Johnsons was adequate. Id.<br /><br />Finally, the Johnsons argue that it was error for the court to notify them that their presence was not required at the dismissal hearing but then to allow opposing counsel to act ex parte and argue against the motion to retain. We construe the Johnsons’ argument to mean that it was error for the court to reconsider its order granting the motion to retain. However, any error was cured by the trial courts’ hearing on the motion to reinstate.<br /><br />We have held that conducting a motion to reinstate hearing cures any potential problems created by dismissing a case for want of prosecution. See Dueitt v. Arrowhead Lakes Property Owners, Inc., 180 S.W.3d 733 (Tex. App.—Waco 2005, pet. denied). We have agreed with several other courts of appeals that the filing of a motion to reinstate and participation in the hearing on the motion to reinstate (as in this case) cures any due process concerns that may result. Binner, 129 S.W.3d at 713; Steward, 143 S.W.3d at 165. Therefore, even if dismissal was improper, it was cured by the hearing on the motion to reinstate. Accordingly, we overrule the Johnsons’ first issue.<br /><br />Motion to Reinstate<br /><br />In their second issue, the Johnsons argue that the trial court erred in denying their motion to reinstate. Specifically, the Johnsons assert that after their motion to retain was granted, the trial court failed to set a trial date before dismissing the case. See Seals, 83 S.W.3d at 875 (holding that a trial court has an independent duty to set a case for trial once a motion to retain is granted). They further contend that under Seals, it is an abuse of discretion for a court to dismiss a case based on failure to comply with Rule 165a if a motion to retain has been granted and a trial date has not been set. Id.<br /><br />The Johnsons’ reliance on Seals is misplaced for two reasons. First, the trial court initially granted the Johnsons’ motion to retain on February 10, 2006. The dismissal hearing was held on February 14, 2006. Failing to set a trial date in a four-day window does not reach the error found in Seals, in which a trial date was not set for fifteen months and caused the case to be inactive beyond the Texas Supreme Court’s eighteen month guideline. Second, it was not the court’s fault that no action was taken in this case. Since the summary judgment hearing, more than 18 months had elapsed, and the Johnsons had failed to comply with the court’s request to engage in discovery and mediation. These facts alone provide support for the trial court’s dismissal for want of prosecution under the abuse of discretion standard.<br /><br /><span style="color:#ff0000;">The Johnson’s failure to participate in discovery and mediation gave ample reason for the suit to be dismissed. The Johnsons did nothing to move the case toward a resolution for over eighteen months.</span> And from the evidence before it, the trial court was free to disbelieve that various medical ailments prevented both Linda Johnson and her counsel from actively participating in this case. We cannot say that the trial court abused its discretion on the record before us, and we overrule the Johnsons’ second issue.<br /><br />Conclusion<br /><br />Because the trial court could properly dismiss the Johnson's case for failure of diligent prosecution or for failure to comply with the Rule 165a(2) time standards or under its inherent authority, we do not find that the trial court abused its discretion in refusing to reinstate the case under Rule 165a(3). Having overruled Johnson’s two issues, we affirm the trial court's dismissal.<br /><br />BILL VANCE<br />Justice<br /><br />Before Chief Justice Gray,<br /> Justice Vance, and<br /> Justice Reyna<br /><br />Affirmed<br /><br />Opinion delivered and filed November 21, 2007<br /><br /><br /><a title="" href="http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=8628#_ftnref1" name="_ftn1">[1]</a> Rule 165a provides that a judge may dismiss a case for want of prosecution when any party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice or when the case is not disposed of within the time standards promulgated by the Texas Supreme Court under its Administrative Rules unless, at a dismissal hearing about which the parties are provided adequate notice, good cause is shown for the case to be maintained on the docket. Tex. R. Civ. P. 165a(1), (2).THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-21983233240120067922007-11-16T16:17:00.000-08:002007-11-23T21:53:53.661-08:00Motion to Reinstate does not restart appellate time-table<em>Clock for filing notice of appeal starts ticking when dismissal order is signed. Denial of motion to reinstate is not separately appealable.</em><br /><br />Terms: void order, judgment, voidable, non-suit, dismissal, deadline for appeal<br /><br /><a href="http://www.houston-opinions.com/files/14thCoA-2007-McCoy-v-North-Forest-ISD-by-PC-motion-to-reinstate.mht">McCoy v. North Forest ISD</a> (Tex.App.- Houston [14th Dist.] Nov. 15,2 007)(per curiam)(motion to reinstate, appellate time-table, DWOJ)<br /><br />M E M O R A N D U M O P I N I O N<br /><br />Barney L. McCoy attempts to appeal from an order signed March 20, 2007, denying his motion to reinstate the underlying case, in which an order of non-suit was signed May 24, 2001. McCoy filed a motion for rehearing of the denial of his motion to reinstate, and he filed a notice of appeal on June 13, 2007. We dismiss the appeal for want of jurisdiction.<br /><br />Janice Jackson filed suit against the school district seeking judicial review of a final decision of the Texas Workers' Compensation Commission. McCoy was Jackson's attorney. Pursuant to a settlement agreement, Jackson moved to non-suit the school district, and the trial court signed an order of non-suit on May 24, 2001. On March 1, 2007, McCoy, as a "Party in Interest," moved to reinstate the case, claiming the school district refused to honor the settlement because the underlying judgment is void. Section 410.258(a) of the Texas Labor Code requires any proposed judgment or settlement to be mailed to the executive director of the Workers' Compensation Commission at least 30 days before the judgment is entered. It is undisputed that the proposed judgment was not sent to the director in this case. Section 410.258(f) provides that "[a] judgment entered or settlement approved without complying with the requirements of this section is void." Tex. Lab. Code Ann. ' 410.258(f).<br /><br />Because it appeared from the record that this court lacks jurisdiction to consider an appeal from a case in which a non-suit was signed in 2001, we notified the parties of our intention to dismiss the appeal for want of jurisdiction unless McCoy filed a response demonstrating both our jurisdiction over this appeal and his standing to bring the appeal as an "Interested Party." See Tex. R. App. P. 42.3(a). McCoy's response fails to demonstrate that this court has jurisdiction over the appeal.<br /><br />As to his standing to bring this appeal, McCoy asserts that Jackson's current attorney gave his permission, on Jackson's behalf, for him to pursue having the trial court set aside its void judgment. McCoy was not a party to the suit and does not have standing to pursue this appeal. See Gore v. Peck, 191 S.W.3d 927, 929 (Tex. App.-Dallas 2006, no pet.); Johnston v. Crook, 93 S.W.3d 262, 268-69 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).<br /><br />On the jurisdictional question, McCoy cites to Metropolitan Transit Authority v. Jackson, for the proposition a trial court may set aside its void judgment at any time. 212 S.W.3d 797, 802 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). We respectfully disagree with our sister court.<br /><br />The Texas Supreme Court explicitly disapproved of the proposition that "if a judgment rendered by a trial court is void it may be set aside by that court at any time." Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). After the time has passed to timely file a motion for new trial or regular appeal, the exclusive means by which parties can challenge a final judgment based on an allegation that it is void are by filing a writ of error (now restricted appeal) or by filing a bill of review. McEwen v. Harrison, 345 S.W.2d 706, 709‑11 (Tex. 1961); <a href="http://faculty-rights-coalition.com/files/14thCoA-Skadden-v-Tarquis-2006-by-Frost.htm">Skadden v. Alfonso</a>, 217 S.W.3d 611, 619 (Tex. App.-Houston [14 Dist.] 2006, pet. filed).<br /><br />In its response, the school district agrees that the May 24, 2001, judgment is void for failure to comply with section 410.258 of the Labor Code. It contends, however, that the notice requirement in the Labor Code is a statutory prerequisite and failure to comply did not deprive the trial court of jurisdiction. See Dubai Pet. Co. v. Kazi, 12 S.W.3d 71, 71 (Tex. 2000). Even a void judgment can become final for the purposes of appeal. See Newsom v. Ballinger I.S.D., 213 S.W.3d 375, 380 (Tex. App.-Austin 2006, no pet.); In re Vlasak, 141 S.W.3d 233, 238 (Tex. App.-San Antonio 2004, orig. proceeding).<br /><br />The May 24, 2001, judgment is final. McCoy's motion to reinstate was untimley. The trial court's order denying McCoy's untimely motion to reinstate the case is not a separately appealable order from which the appellate timetable is calculated. See Weik v. Second Baptist Church, 988 S.W.2d 437, 438 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding that deadline for perfecting appeal runs from date of dismissal order, not from date of trial court's ruling on motion to reinstate); Overka v. Bauri, No. 14‑06‑00083‑CV, 2006 WL 2074688, at *1 (Tex. App.-Houston [14 Dist.] July 27, 2006, no pet.) (mem. op.) (order denying motion for new trial is not appealable). Therefore, the notice of appeal was filed too late to appeal the judgment in this case.<br /><br />Accordingly, the appeal is ordered dismissed.<br /><br />PER CURIAM<br /><br />Judgment rendered and Memorandum Opinion filed November 15, 2007.<br />Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-76073576642115622212007-11-10T08:18:00.000-08:002007-11-10T08:22:08.637-08:00<a href="http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht">Naik v. Wu</a> (Tex.App.- Houston [1st Dist.] Feb. 16, 2006)(Keyes)[<a href="http://faculty-rights-coalition.com/DWOP.html">DWOP</a>, multiple continuances, motion to reinstate denied]AFFIRM TC JUDGMENT: Opinion by Justice KeyesBefore Justices Nuchia, Keyes and Hanks01-04-01127-CV Bharatkumar D. Naik and Janki B. Naik v. Jo-Chin WuAppeal from Co Civil Ct at Law No 4 of Harris County (Hon. Cynthia Crowe)<br /><br />MEMORANDUM OPINION<br /><br /> Appellant, Bharatkumar D. Naik, brought suit in 1999 against Jo-Chin Wu, appellee, for personal injuries sustained in an automobile accident. The trial court dismissed the case for want of prosecution in 2004. In two issues on appeal, appellant argues that the trial court’s denial of his motion for continuance, order of dismissal, and refusal to reinstate the case constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights.<br /> We affirm.<br /><br />BACKGROUND<br /><br /> Appellant filed suit against appellee in September 1999, after the two were involved in an automobile accident. Following some discovery activity, the case entered a prolonged period of relative dormancy, being reset approximately ten times between December 21, 2000 and June 29, 2004. Although a number of the resets appear to have been initiated by the trial court itself, at least three resulted from motions filed by appellant. These included the following:<br /><br />1.On December 8, 2000, appellant filed a verified motion for continuance. Appellant’s motion asserted that his counsel would not be available for trial—then set for January 15, 2001—due to illness. The motion included an affidavit from Douglas J. Stockwell, M.D., indicating that appellant’s counsel, Leonard Cruse, continued to experience complications from a stroke suffered in 1996. Dr. Stockwell’s letter stated that Cruse was expected to make a full recovery. The trial court granted appellant’s motion, which appellee did not oppose.<br /><br />2.On May 13, 2002, appellant filed a second verified motion for continuance. Appellant’s motion indicated that the scheduled trial date of June 24, 2002 conflicted with appellant’s previously planned vacation to Europe. The trial court granted appellant’s motion, which appellee did not oppose.<br /><br />3.On June 29, 2004, appellant submitted a third verified motion for continuance. The motion again asserted that Cruse would not be available for trial, which was set to begin on approximately June 29, 2004, <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /><span style="font-size:78%;"> The exact date the trial was scheduled to begin is not clear from the record, although it isclear that the trial was set sometime during the week of June 24, 2004.</span><br /><br />because of illness. It included a letter from a physician at the Clear Creek Clinic <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /> <span style="font-size:78%;">The physician’s signature on the letter is not legible.</span><br /><br />indicating that Cruse would be unable to perform his duties “for the next two weeks.” The trial court granted appellant’s motion, which appellee did not oppose.<br /> After appellant’s June 29, 2004 motion had been granted, the trial date was reset for July 19, 2004. On or about July 19, 2004, appellant submitted a fourth verified motion for continuance. <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /> It is not clear from the record precisely when this motion was submitted, although thedocket sheet indicates that it was denied on July 19, 2004.<br /><br /> In this motion, which appellee again did not oppose, Cruse indicated that continuing medical conditions precluded him from conducting a trial on July 19. The motion included a letter, again from Dr. Stockwell, indicating that Cruse continued to suffer complications from a stroke he “suffered a few years ago” and that he should be excused from work “for at least the next month.” The trial court denied appellant’s motion, maintaining a trial date of July 19, 2004.<br /><br /> Neither Cruse nor appellant appeared at trial on July 19. Noting that appellant had failed to appear despite being notified of the trial date, the trial court ordered appellant’s action “dismissed for want of prosecution.” Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, appellant filed a motion for reinstatement on August 20, 2004. See Tex. R. Civ. P. 165a(3). Appellee filed a response opposing appellant’s motion for reinstatement on August 30, 2004. After an August 31, 2004 hearing, the trial court denied appellant’s motion for reinstatement. This appeal followed.<br /><br />DISCUSSION<br /><br /> In two issues on appeal, appellant, in effect, contends that the trial court’s decision to dismiss the case for want of prosecution constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights. Appellant argues that the trial court abused its discretion and violated appellant’s due process rights by denying his fourth motion for continuance, dismissing the case, and denying his motion for reinstatement.<br /><br /> Dismissal and Reinstatement Generally<br /><br /> A trial court possesses the power to dismiss a case pursuant to its inherent authority or Texas Rule of Civil Procedure 165a. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R. Civ. P. 165a. Under Rule 165a, a trial court may dismiss a case on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.” Tex. R. Civ. P. 165a(1). Independent of the Texas Rules of Civil Procedure, a trial court may also order a dismissal when a plaintiff fails to prosecute a case with due diligence. See Villarreal, 994, S.W.2d at 630. Whether it acts under Rule 165a or its inherent authority, a court must provide a party with notice and an opportunity to be heard prior to entering an order of dismissal. Id.; see also Tex. R. Civ. P. 165a(1). Failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal on due process grounds. See Villarreal, 994 S.W.2d at 630–31. Participation in a hearing on a motion to reinstate, however, cures any due process concerns stemming from a failure to provide notice of intent to dismiss. See Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 94–95 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).<br /><br /> If a case is dismissed, the adversely affected party may file a verified motion to reinstate. Tex. R. Civ. P. 165a(3). If a motion to reinstate is filed, the court “shall reinstate the case upon finding after a hearing 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 has been otherwise reasonably explained.” Id. A failure to appear is not considered intentional or due to conscious indifference simply because it is negligent or even deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).<br /><br /> Standard of Review<br /><br /> We review a denial of a motion for continuance, a dismissal for want of prosecution, and a denial of a motion to reinstate under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (stating that an abuse of discretion standard of review applies to dismissal for want of prosecution); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating that abuse of discretion standard of review applies to decisions to grant or deny motion for continuance). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether or not to grant a motion for continuance, dismissal, or reinstatement, a trial court may consider the entire history of a case, “including the length of time the case was on file, the amount of activity in the case . . . and the existence of reasonable excuses for delay.” See Nawas v. R&S Vending, 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex. App.—Waco 1985, no writ) (stating that in ruling on motion for continuance trial court must examine entire record).<br /><br /> Appellant’s Abuse of Discretion Claims<br /><br /> In his first issue on appeal, appellant claims the trial court abused its discretion by denying appellant’s fourth motion for continuance, ordering dismissal of the case, and rejecting appellant’s motion for reinstatement. The crux of appellant’s argument concerns the trial court’s denial of appellant’s fourth motion for continuance on July 19, 2004. Appellant contends that because the assertions regarding Cruse’s inability to participate at trial on July 19 were not controverted, the trial court was required to accept them as true. According to appellant, if Cruse’s illness irrefutably prevented him from performing his duties, the trial court could not deny appellant’s motion for continuance without abusing its discretion.<br /><br /> We find appellant’s argument to be unpersuasive. First, the cases appellant cites in support of his contention that the trial court must accept uncontroverted facts as true when considering a motion for continuance refer specifically to a party’s first motion, not its fourth. <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br />if( bInlineFloats )<br /><br /><span style="font-size:78%;"> See Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.]1989, writ denied); Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App.—San Antonio 1985,writ ref’d n.r.e.); Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.App.—Galveston 1946, writ ref’d n.r.e.).</span><br /><br />Nevertheless, even assuming that the trial court was required to accept the assertions in appellant’s fourth motion for continuance as true, we cannot say that the trial court abused its discretion by denying appellant’s motion. <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /><span style="font-size:78%;"> Because there is no reporter’s record or findings of fact and conclusions of law, it isimpossible to know whether or not the trial court accepted as true appellant’s contentionsregarding Cruse’s medical condition. Therefore, we must affirm on the basis of any legaltheory supported by the record. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).</span><br /> <br /> The trial court need not have doubted that Cruse was medically unfit for trial to deny appellant’s motion without abusing its discretion. Twice appellant had sought and received continuances due to Cruse’s medical condition, the onset of which appears to have dated to 1996. When appellant sought a third continuance due to Cruse’s same medical condition, it was reasonable for the trial court to conclude that Cruse’s condition might not resolve itself within a reasonable amount of time. Indeed, appellant’s motion indicated that Cruse was suffering complications identical to those he reported in his December 8, 2000 motion for continuance, suggesting that Cruse’s condition had not improved in four years. Considering that trial courts possess wide latitude to manage their dockets, <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /> See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPHide(">Close</a> it was reasonable for the court here, absent any certainty that Cruse would recover within a reasonable time, to deny appellant’s motion.<br /> Once one concludes that it was not an abuse of discretion to deny appellant’s fourth motion for continuance, it logically follows that the trial court did not abuse its discretion when it dismissed appellant’s case after appellant failed to appear for trial on July 19, 2004. See e.g. Tex. R. Civ. P. 165a(1) (stating that trial courts may dismiss cases for failure to appear). Thus, we turn to appellant’s contentions regarding the trial court’s denial of his motion to reinstate.<br /> As noted, Texas Rule of Civil Procedure 165a(3) provides that when a case is dismissed for want of prosecution, “the court shall reinstate the case upon finding, after a hearing, that the failure of the party or his attorney [to appear] 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). Appellant contends that the trial court was required to reinstate his case because his failure to appear was “otherwise reasonably explained” by the existence of Cruse’s medical condition. Thus in effect, appellant argues that the trial court was required to grant his motion for reinstatement on the exact same grounds that it rejected his motion for continuance. Appellant’s contention ignores the trial court’s legitimate concerns regarding the ability of Cruse to be fit for trial within a reasonable time. Because appellant advanced no new arguments at the hearing for reinstatement, simply reiterating the fact that Cruse was ill, we conclude that appellant did not provide an adequate justification for his failure to appear. See Smith, 913 S.W.2d at 468.<br /> We overrule appellant’s first issue on appeal.<br /> Appellant’s Due Process Claims<br /> In his second issue on appeal, appellant in effect contends that his right to due process was violated when the trial court dismissed his suit and denied his motion for reinstatement. Rule 38 of the Texas Rules of Appellate Procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(h); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). The failure to adequately brief an issue by not providing authorities and record citations waives any error on appeal. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“The Court does not represent the appellant and has no duty to search for pertinent authority.”). In view of appellant’s failure to provide authorities or record citations for his due process claims, <a href="mhtml:http://faculty-rights-coalition.com/files/1stCoA-2006-Naik-v-Wu-by-Keyes-DWOP-reinstatement-denied.mht!x-usc:javascript:WPShow("></a><br /><br /><br /><span style="font-size:78%;"> Appellant generally refers to due process rights under the Fourteenth Amendment of theU.S. Constitution and article I, section 19 of the Texas Constitution. See U.S. Const.amend. XIV; Tex. Const. art. I, § 19.</span><br /><br />we conclude that appellant has waived his second issue.<br /> <br />We overrule appellant’s second issue on appeal. CONCLUSION<br /> <br />We affirm the judgment of the trial court. <a name="start"></a><br /><br /><br /> Evelyn V. Keyes<br /> Justice<br /><br />Panel consists of Justices Nuchia, Keyes, and Hanks.THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0tag:blogger.com,1999:blog-841331041816943264.post-62272557514266228492007-11-10T07:52:00.000-08:002007-11-10T08:07:47.044-08:00TRCP 165a - Keough v. Cyrus (Tex.App.- Houston [14th Dist.] 2006)<a href="http://faculty-rights-coalition.com/files/14thCoA-Keough-v-Cyrus-USA-2006-by-Guzman-motion-to-reinstate-denied.htm">Keough v. Cyrus</a> , No. 14-04-00660 (Tex.App.–Houston [14th Dist.] July 13, 2006)(majority opinion by Justice Eva Guzman on motion for rehearing)(dismissal to suit for failure to appear, dismissed for want of prosecution, DWOP, denial of motion to reinstate affirmed, lack of evidence to support motion]<br />Full case style: Ann Keough v. Cyrus USA Inc. d/b/a Ace Limousine Services and Hamid Reza Mirabi<br />Appeal from Co Civil Ct at Law No 4 of Harris County<br /><a href="http://faculty-rights-coalition.com/files/14thCoA-Keough-v-Cyrus-USA-Inc-2006-Dissent-by-Edelman.htm">D</a><a href="http://faculty-rights-coalition.com/files/14thCoA-Keough-v-Cyrus-USA-Inc-2006-Dissent-by-Edelman.htm">issenting</a><a href="http://faculty-rights-coalition.com/files/14thCoA-Keough-v-Cyrus-USA-Inc-2006-Dissent-by-Edelman.htm"> Opinion by Justice Edelman</a> (on motion for rehearing)<br /><br />M A J O R I T Y O P I N I O N O N R E H E A R I N G<br /><br />We grant appellees' motion for rehearing, withdraw the majority and dissenting opinions issued on December 15, 2005, and issue the following majority and dissenting opinions on rehearing.<br />In this appeal, we determine whether the trial court abused its discretion by denying appellant Ann Keough's motion to reinstate her lawsuit. Because Keough offered no evidence: (1) she was unaware of her attorney's disbarment or of the trial setting, (2) supporting her explanation for her failure to attend trial or to obtain other counsel, and (3) she diligently prosecuted her case, we affirm.<br /><br />I. Factual and Procedural History<br /><br />Keough filed this suit on September 2, 1998 against appellees Cyrus U.S.A., Inc. d/b/a Ace Limousine Service and Hamid Reza Mirabi (collectively, "Cyrus"). Over the course of five-and-one-half years, the case was dismissed for want of prosecution, reinstated, continued five times, and repeatedly reset for trial.<br /><br />On February 3, 2004, Keough and her counsel failed to appear for trial, and Cyrus moved to dismiss the case. On February 9, 2004, the trial court ordered the case dismissed with prejudice. In its order of dismissal, the trial court noted that both Keough and her counsel failed to appear at trial; that proper notice was sent to counsel of record advising counsel of the trial setting; and that the case had been set for trial seven times in the preceding twenty-one months. In response to the dismissal, Keough filed a verified motion to reinstate alleging:<br />This case was dismissed by an order signed on the 9th of February, 2004, for want of prosecution due to the inability of the counsel of record to appear before this court and prosecute this action. This failure was not intentional or the result of conscious indifference but unavoidable, in that counsel of record, Zerrie L. Hines, was and remains under disciplinary proceedings before the Board of Disciplinary Appeals, and therefore, unable to engage in the practice of law pending the favorable outcome of his appeal.<br /><br />No evidence accompanied Keough's motion; however, Cyrus responded with evidence that Keough's attorney had been disbarred on December 22, 2003. The trial court denied Keough's motion to reinstate without stating its reasons, and this appeal ensued.<br /><br />II. Issue Presented<br /><br />The sole issue presented for review is whether the trial court abused its discretion by denying Keough's motion to reinstate. At the outset, we note that the trial court may have dismissed the case because Keough and her counsel failed to appear at trial. See Tex. R. Civ. P. 165a. Alternatively, it may have dismissed the case pursuant to its inherent authority to dismiss cases for want of prosecution. See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We therefore discuss both grounds. Because the dissent would reverse based in part on its assumption that the trial court failed to notify Keough of its intent to dismiss the case, we also address that subject.<br /><br />III. Standard of Review<br /><br />We review a trial court's denial of a motion to reinstate for abuse of discretion. Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 96 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). If an order dismissing a case does not state the grounds on which it was granted, the party seeking reinstatement must negate all possible grounds for dismissal. See Shook v. Gilmore & Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex. App.-Waco 1997, pet. denied); see also Polk, 165 S.W.3d at 96-97 (affirming denial of reinstatement when the plaintiff produced evidence her trial counsel was absent from trial due to illness, but failed to produce evidence the case had been diligently prosecuted). The movant for reinstatement bears the burden to produce evidence supporting the motion. See Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. App.-Houston [14th Dist.] 1975, no writ) ("The failure of the plaintiff to offer proof of his grounds for reinstatement justified the court's denial of his motion . . . ."); see also HRN, Inc. v. Shell Oil Co., 102 S.W.3d 205, 217 (Tex. App.-Houston [14th Dist.] 2003), rev'd on other grounds, 144 S.W.3d 429 (Tex. 2004) (affirming denial of reinstatement when movant alleged compliance with discovery orders but produced no evidence of compliance).<br /><br />IV. Discussion<br /><br />A. Failure to Appear at Trial<br /><br />Keough asserts she was unaware her attorney had been disbarred or trial had been set, and argues she was unable to secure other counsel before trial. She did not produce evidence supporting these contentions to the trial court. In the absence of evidence, a trial court does not abuse its discretion by denying a motion to reinstate. See Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995) ("Proof of such justification - accident, mistake or other reasonable explanation - negates the intent or conscious indifference for which reinstatement can be denied.").<a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftn1" name="_ftnref1">[1]</a><br /><br />B. Want of Prosecution<br /><br />Keough contends the trial court dismissed her case and denied reinstatement based on her counsel's failure to appear at trial. As a result, Keough does not address alternative grounds for these orders. Thus, even if we agreed with the dissent that Keough offered a reasonable explanation for her attorney's failure to appear at trial, this omission would still lead us to conclude the trial court did not abuse its discretion by denying reinstatement.<br /><br />In dismissing the case and denying reinstatement, the trial court expressly considered factors other than the failure of Keough and her counsel to appear at trial. In its order dismissing the case, the trial court emphasized the case had been set for trial seven times in approximately twenty-one months. The trial court also states in its order that it reviewed the pleadings and docket entries in the matter. The record shows the case had been on file since 1998; it already had been reinstated after a prior dismissal for want of prosecution; and previous trial settings had been continued at Keough's request on more than one occasion.<br /><br />These factors pertain to diligent prosecution, and the trial court need not have considered them if it dismissed the case solely because Keough and her counsel did not appear at trial. See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.CHouston [14th Dist.] 1993, no writ) (when deciding whether to dismiss a case for want of prosecution, the court may consider the amount of activity in the case, the length of time the case was on file, requests for a trial date, and the existence of reasonable excuses for delay). Because the trial court may have dismissed the case for want of prosecution, Keough was required to address this basis for dismissal in her motion to reinstate and on appeal.<br /><br />Given the history of the case and Keough's failure to produce evidence supporting her motion to reinstate, we hold the trial court did not abuse its discretion by denying reinstatement. Even if we agreed with the dissent that Keough's verified motion to reinstate offers a reasonable explanation for her prior counsel's absence from trial, the motion does not explain her own absence, her failure to secure other counsel, or her failure to request a continuance. Though Keough's successor counsel asserted Keough had no knowledge of the trial setting or the disciplinary proceedings, Keough offered no evidence supporting these contentions. Moreover, these arguments only pertain to failure to appear and prosecute the case on the date of trial, and do not address Keough's failure to diligently prosecute her case at any other time.<br /><br />C. Notice of Intent to Dismiss<br /><br />The rules of civil procedure and due process require trial courts to provide litigants with notice and an opportunity to be heard before the court dismisses the case. Tex. R. Civ. P. 165a; Polk, 165 S.W.3d at 94. Although Keough does not claim the trial court failed to notify her or trial counsel of its intent to dismiss her case, the dissent assumes such a failure occurred, and would reverse based in part on this assumption.<a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftn2" name="_ftnref2">[2]</a><br /><br />Because the record is silent as to whether the trial court notified Keough or her counsel of its intent to dismiss, no error is apparent on the face of the record. See Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 849B50 (Tex. 2004) ("[M]ere silence as to whether notice [of intent to dismiss] was sent does not establish that notice was not sent . . . ."). Moreover, if no notice was sent, Keough=s failure to raise the issue in the trial court and to brief it on appeal waives the error. See Tex. R. App. P. 33.1, 38.1(h). Even assuming for the sake of argument that no notice was sent and that we properly may raise the issue sua sponte, a trial court does not abuse its discretion by denying a motion to reinstate if the movant (a) receives notice of the actual order of dismissal in time to file a motion to reinstate, and (b) has an opportunity to be heard on the motion. See, e.g., Polk, 165 S.W.3d at 94B95; Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex. App.-Houston [14th Dist.] 1999, no pet.); 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.); Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648-50 (Tex. App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 400-04 (Tex. App.-Dallas 2001, pet. denied). Keough received actual notice of the order of dismissal and timely filed a motion to reinstate. There is no indication she did not have an opportunity to be heard.<a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftn3" name="_ftnref3">[3]</a> Thus, if the trial court failed to notify Keough of its intent to dismiss her case, the error was cured.<br /><br />V. Conclusion<br /><br />Because the trial court could properly dismiss Keough=s case pursuant to Rule 165a or its inherent authority to dismiss cases for want of prosecution, and because Keough failed to produce evidence in support of her motion to reinstate negating both of these grounds for dismissal, the trial court did not abuse its discretion by denying her motion for reinstatement. The judgment of the court below is affirmed.<br /><br />/s/ Eva M. Guzman, Justice<br /><br />Judgment rendered and Majority and Dissenting Opinions on Rehearing filed July 13, 2006.<br />Panel consists of Justices Edelman, Seymore, and Guzman. (Edelman, J., dissenting).<br /><br /><a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftnref1" name="_ftn1">[1]</a> The dissent cites Smith for the proposition that justification requiring reinstatement does not require a reasonable justification for making the mistake, but only a justification consisting of a mistake. While Smith excuses an attorney=s failure to appear at trial when that failure is based on a mistake, even if the mistake is not reasonable, this proposition does not apply to the present case. In her motion to reinstate, Keough did not allege an accident or mistake caused her or her attorney to be absent from trial. See Tex. R. Civ. P. 165a(3) (the trial court must reinstate a case dismissed for failure to appear if it finds the failure "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."). Moreover, Smith requires proof of accident or mistake, and Keough produced no such evidence. See also Nichols v. TMJ Co., 742 S.W.2d 828, 831 (Tex. App.-Dallas 1987, no writ) ("In determining whether [a party] has met his burden of negating intentional or consciously indifferent conduct, however, a court need not accept unsupported conclusory statements.").<br /><a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftnref2" name="_ftn2">[2]</a> On appeal, Keough contends the trial court=s notice to her prior counsel of the February 3, 2004 trial setting does not constitute notice to her because the attorney-client relationship was terminated as a matter of law when her counsel was disbarred. Because this argument was not presented to the trial court, it does not constitute grounds for reversal on appeal. See Tex. R. App. P. 33.1. Moreover, Keough's trial counsel sought and obtained the February, 2003 trial setting more than two months before he was disbarred; thus, his knowledge of the trial setting is imputed to Keough. See McMahan v. Greenwood, 108 S.W.3d 467, 480B81 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (knowledge acquired by an attorney during the existence of an attorney‑client relationship, and while acting in the scope of his or her authority, is imputed to the client).<br /><a title="" href="http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82314#_ftnref3" name="_ftn3">[3]</a> The record does not show Keough requested a hearing. Before trial court error can be found in the failure to set a hearing on a motion to reinstate, the movant must request a hearing. Cabrera v. Cedarapids, Inc., 834 S.W.2d 615, 618 (Tex. App.-Houston [14th Dist.] 1992, writ denied).THE GERMAN PARALEGALhttp://www.blogger.com/profile/14891779974556180789noreply@blogger.com0