Dismissal of PI suit against Metro for want of prosecution affirmed

James v. Metropolitan Transit Authority (Metro),
No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011)

MEMORANDUM OPINION

Appellant David James appeals the dismissal of his personal injury suit against the Metropolitan Transit Authority ("Metro") on the grounds that (1) the trial court abused its discretion when it failed to perform ministerial duties and rule on appellant's motions, and (2) the trial court failed to notify appellant of the dismissal for want of prosecution and to hold hearings. We affirm.

Background

On March 29, 2004, appellant was injured while riding on a Metro bus that was involved in an accident. On February 13, 2006, appellant filed a personal injury suit against Metro, which was dismissed for want of prosecution on May 21, 2007. Appellant did not appeal from the 2007 dismissal. On October 8, 2008, appellant filed a petition for bill of review seeking reinstatement of his personal injury suit. There is no evidence in the record that Metro was served with appellant's bill of review. In response to a notice that the bill of review would be dismissed for want of prosecution, appellant filed a "Verified Motion to Retain."

On December 17, 2009, the trial court retained the bill of review on its docket. On May 3, 2010, the court sent another notice that appellant's suit was eligible for dismissal for want of prosecution. On August 16, 2010, the trial court signed an order denying appellant's motion to retain due to lack of service on the defendant. The court specifically found "that the record lacks any indication that Petitioner has attempted to serve Respondent with the Petition for Bill of Review." The court noted that, "Although the motion includes a certificate of service, it does not indicate service on Respondent." On October 7, 2010, the trial court dismissed appellant's petition for bill of review.

Dismissal for Want of Prosecution

In two issues, appellant argues the trial court wrongly dismissed his suit for want of prosecution. A trial court's authority to dismiss for want of prosecution stems from the express authority of rule 165a of the Texas Rules of Civil Procedure as well as from the court's inherent power to manage its own docket. Villarreal v. San Antonio Truck & Equip. Co., 994 S.W.2d 628, 630 (Tex. 1999); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 541 (Tex. App.-Houston [14th Dist.] 2000, no pet.). A trial court may dismiss a case when (1) it finds that the case has not been prosecuted with due diligence; (2) the case has not been disposed of within the Texas Supreme Court's time standards; or (3) a party fails to appear at a hearing or trial. Villarreal, 994 S.W.2d at 630. In determining whether a plaintiff has prosecuted his case with due diligence, the trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting and the existence of reasonable excuses for delay. Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App.-Houston [1st Dist .] 1996, no writ). We may reverse a trial court's dismissal of a claim for want of prosecution only if the court clearly abused its discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).

In his brief appellant argues the trial court abused its discretion because he attempted to have Metro served on March 8, 2006 and March 23, 2006. Appellant further contends he filed a motion for default judgment on August 21, 2006, but the court failed to rule on the motion. Appellant appears to be complaining about the trial court's dismissal of his personal injury suit in 2007. Appellant, however, failed to appeal that judgment; therefore, we have no jurisdiction to consider the propriety of the first dismissal. See generally Tex. R. App. P. 26.1. The judgment appellant appealed is the dismissal of his petition for bill of review.

The record reflects that appellant made no attempt to serve Metro with his petition for bill of review. The Texas Rules of Civil Procedure permit a party to request the court clerk to issue and deliver citations to the defendant. See Tex. R. Civ. P. 99(a). A party may rely on the clerk to serve the defendant within a reasonable time. Auten v. DJ Clark, Inc., 209 S.W.3d 695, 705 (Tex. App.-Houston [14th Dist.] 2006, no pet.).

When a party learns, or by exercise of due diligence should have learned, that the clerk failed to fulfill his duty under Rule 99, the party must ensure the defendant is properly served. Id. Because appellant failed to exercise due diligence to ensure proper service on Metro, the trial court did not abuse its discretion in dismissing appellant's petition for bill of review for want of prosecution. Appellant's two issues are overruled.

The judgment of the trial court is affirmed.

Affirmed.

James v. Metropolitan Transit Authority (Metro), Theresa Chang, et al
No. 14-10-01055-CV (Tex.App. - Houston [14th Dist.] Sep. 22, 2011)

Dismissal based on no-show at trial or hearing

Dismissal of the Consumers' Counterclaims in Capital One Auto Finance, Inc.'s Suit on Car Note

A trial court may dismiss a party's claims for affirmative relief if the party fails to appear for a hearing or trial of which the party had notice. TEX. R. CIV. P. 165a(1). "Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk . . . to each party not represented by an attorney. . . ." Id. "At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Id. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal if not cured. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

The [consumers] assert that they did not receive a notice of intent to dismiss and that the trial court never held a pre-dismissal hearing. However, the [consumers] have failed to provide any evidence that they did not receive notice of intent to dismiss.[3] Rather, in their request for documents to be included in the clerk's record, the [consumers] referred to a notice of intent to dismiss signed on February 12, 2010, which stated that the case was set for March 8, 2010 at 9:30 a.m. We conclude that the [consumers] have failed to show that they did not receive notice of intent to dismiss.

Failure to Reinstate the Consumers' Counterclaims

A party may file a verified motion to reinstate within 30 days after the order of dismissal is signed. TEX. R. CIV. P. 165a(3). "The court shall reinstate the case upon finding after a hearing that the failure of the party . . . was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." Id. We review a trial court's decision on a motion to reinstate for an abuse of discretion. Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 903 (Tex. App.-Houston [1st Dist.] 1991, writ denied).

The trial court signed the final judgment dismissing the [consumers'] counterclaims on February 24, 2010, and the [consumers] filed their motion to reinstate on May 21, 2010. Because they failed to file their motion to reinstate by the 30-day deadline, the trial court did not abuse its discretion by allowing their motion to reinstate to be overruled by operation of law. See TEX. R. CIV. P. 165a(3).

SOURCE: First Court of Appeals (Houston) - No 01-10-00447-CV - 7/28/11
Click below to read the entire opinion in Lewis v. CAPITAL ONE AUTO FINANCE, INC.,

Appealing a dismissal for want of prosecution

What is the standard of review in an appeal from an order dismissing a case for want of prosecution? In a recent case, the Seventh Court of Appeals sitting in Amarillo, Texas explains the applicable criteria and the underlying source of authority for dismissal as follows:

We review a trial court's grant of a motion to dismiss for want of prosecution under an abuse of discretion standard. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 773 (Tex.App.-Amarillo 2009, pet. denied); Christian v. Christian, 985 S.W.2d 513, 514 (Tex.App.-San Antonio 1998, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption that the action of the trial court was justified. FDIC v. Kendrick, 897 S.W.2d 476, 479 (Tex.App.-Amarillo 1995, no writ). If the order of dismissal does not specify the ground for dismissal we will affirm on any authorized ground for dismissal supported by the record. See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex.App.-San Antonio 1998, pet. denied) (discussing burden of appellant challenging denial of motion to reinstate if order of dismissal is silent on basis for dismissal).

A trial court is authorized to dismiss a case for want of prosecution by Rule 165a and by exercise of its inherent power to manage its docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

Under Rule 165a(2) a case may be dismissed if it is "not disposed of within the time standards promulgated by the Supreme Court . . . ." Tex. R. Civ. P. 165a(2). District and statutory county court judges should finally dispose of all civil jury cases (other than family law cases) within eighteen months of appearance day. Tex. R. Jud. Admin. 6(b)(1), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F-Appendix (West Supp. 2010).

Through the exercise of its inherent power to manage its docket, a trial court may dismiss a case that has not been prosecuted with due diligence. Ozuna v. Southwest Bio-Clinical Labs., 766 S.W.2d 900, 901 (Tex.App.-San Antonio 1989, writ denied), disapproved on other grounds by Villarreal, 994 S.W.2d at 633; Rampart Capital Corp. 974 S.W.2d at 197.

SOURCE: Amarillo Court of Appeals - No. 07-09-00383-CV - 3/11/11
To read the entire opinion, click the link below