DWOP Law and Case Citations from the Dallas Court of Appeals (in Pro Se Prisoner Appeal)

DISMISSAL FOR WANT OF PROSECUTION

In his sole issue on appeal, appellant contends the trial court judge abused her 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.

A. Standard of Review

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); Crown Asset Mgmt., L.L.C. v. Bogar, 264 S.W.3d 420, 422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption the action of the trial court was justified. Bogar, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).

B. Applicable Law

A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Id. (citing Villareal v. San Antonio Truck & Equip., 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 Court. See Footnote 1 See 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. Bogar, 264 S.W.3d at 422 (citing Villareal, 994 S.W.2d at 630).

As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support the judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Oliphant Fin. LLC v. Angiano, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); Crown Asset Mgmt., L.L.C. v. Strayhorn, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); see also Britton v. Tex. Dep't of Crim. Justice, 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).

C. Application of Law to Facts

In its August 21, 2008 “Notice of Hearing,” the trial court informed appellant he “must contact the 95th District Court Administrator, in person or by telephone 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 “ [f]ailure to appear at [the September 2, 2008] hearing shall result in dismissal of this case for want of prosecution.” (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.

In its “Order of Dismissal for Want of Prosecution” dated September 4, 2008, the trial court stated in part

Plaintiff did not take certain action heretofore specified by the Court within the 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 September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,

IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.

(emphasis original).

Appellant asserts the trial court erred by dismissing this case “as a result of [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. Cf. Keough v. Cyrus USA, Inc., 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
pursuant to such basis.

Because the trial court may have dismissed this case for want of prosecution 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. See Nobility Homes of Tex., Inc., 557 S.W.2d at 83; Oliphant Fin. LLC, 2009 WL 2648125, at *1; Strayhorn, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. See Rotello, 671 S.W.2d at 509; Bogar, 264 S.W.3d at 422. Appellant's sole issue is decided against him.

SOURCE: Dallas Court of Appeals Opinion in Cause No. 05-08-01485-CV (11/3/09)

Unifund v. Credit Card Holder: Another DWOP Order Affirmed

Fifth Court of Appeals continues its string of opinions (see Dallas DWOP Redux) affirming dismissals of consumer debt suits on procedural grounds.

MEMORANDUM OPINION BY JUSTICE FITZGERALD

Appellant Unifund CCR Partners sued appellee Travis Jackson for breach of contract. Jackson never appeared, and Unifund moved for default judgment. The trial court eventually dismissed the case for want of prosecution. On appeal, Unifund raises a single issue complaining that the trial court erred by not granting its motion for default judgment. We affirm.

I. Background

Unifund sued Jackson in July 2006. The trial court set the case for dismissal in December. The court advised that it expected Unifund to prove up a default judgment by the dismissal date if Jackson did not answer. The court eventually extended the dismissal date to April 20, 2007.

Our record contains only one executed return of service. The return indicates that the process server effected substituted service of process on February 8, 2007, by attaching the process to the main entrance of a certain apartment. See Footnote 1

Unifund filed a motion for default judgment in March. On April 23, 2007, the trial judge signed an order retaining the case on the court's dismissal docket until June 22, 2007.

On July 3, 2007, the trial judge signed an order dismissing the case without prejudice for two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution,” and (2) want of prosecution. On July 30, 2007, Unifund filed a motion to reinstate and a second motion for default judgment. The record contains no order on Unifund's motion to reinstate or on either of its motions for default judgment.

Unifund appealed the order dismissing its case. Jackson has not filed a brief or otherwise appeared in this appeal.

II. Analysis

In Unifund's only issue on appeal, it attacks the trial court's failure to grant a default judgment against Jackson. We conclude that Unifund did not preserve error in the trial court.

To preserve a complaint for appellate review, a party must make the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling by the trial court, (2) an implicit ruling by the trial court, or (3) a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. Tex. R. App. P. 33.1(a)(2). This record contains no express ruling on either
of Unifund's motions for default judgment, nor does it contain any objection by Unifund to the trial court's refusal to rule, if any.

We conclude that the trial court's order dismissing the case does not constitute an implicit ruling on Unifund's first motion for default judgment. An order of dismissal for want of prosecution does not implicitly deny a pending motion for default judgment when the record does not demonstrate that the motion for default judgment was brought to the trial court's attention and the dismissal order does not address or acknowledge the motion for default judgment. Unifund CCR Partners v. Smith, No. 05-07-01449-CV, 2009 WL 2712385, at *2 (Tex. App.-Dallas Aug. 31, 2009, no pet. h.) (mem. op.).

In this case, the court's April 23, 2007 order retaining the case on the court's docket does not mention Unifund's default-judgment motion. Neither the dismissal order nor anything else in the record indicates that the trial court considered Unifund's first motion for default judgment when the court dismissed the case.

On similar facts, we held in Smith that the plaintiff failed to preserve error. See id. We follow Smith and conclude that the dismissal order preserved no error as to Unifund's first motion for default judgment. As for Unifund's postjudgment motion for default judgment, the trial court made no rulings at all after Unifund filed that motion.

Thus, there is no judicial action from which we could infer an implicit ruling on that motion either. See AIS Servs., LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1 (Tex. App.- Dallas Aug. 27, 2009, no pet. h.) (mem. op.) (“An implicit ruling is one that is unstated but
can be inferred from something else.”).

We resolve Unifund's sole issue on appeal against it and affirm the judgment of the trial court.

KERRY P.
FITZGERALD
JUSTICE

-------------------
Footnote 1 We note that the appellate record contains no order
authorizing the use of substituted service of process.
-------------------
File Date[09/23/2009]

September 23, 2009

05-07-01226-CV AFFIRM - Docket Sheet Unifund CCR Partners v. Jackson, Travis Opinion by: Justice Kerry P. FitzGerald Memorandum Opinion Case Type: CONTRACT [credit card debt]

See: Other Unifund CCR Partners debt collection cases in Texas courts of appeals

DWOP: Dismissal of creditor's suit on credit card debt affirmed

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.

Hudson & Keyse, LLC v. Gipson
(Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings) (credit card debt suit, DWOP, substitute service, motion to reinstate, failure to appear)
Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland
01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson
Appeal from County Civil Court at Law No 1 of Harris County (Judge Jack Cagle)
Disposition: Affirmed trial court judgment of dismissal

MEMORANDUM OPINION

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.

Factual and Procedural Background

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.

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," (1) 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."

The clerk's record does not show that the trial court ruled on Hudson's motion for substitute service. (2) 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.

On January 5, 2007, the trial court granted Hudson a continuance. (3) 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."

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.

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.

Dismissal for Want of Prosecution

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.

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.).

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.

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.

In regard to Hudson's motion to reinstate, 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).

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).

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.
We overrule Hudson's first issue.

Substitute Service

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."

Texas Rule of Civil Procedure 106(b) provides,

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

(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

(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.
Tex. R. Civ. P. 106(b).

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.).

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).

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.

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, we hold that the trial court did not abuse its discretion in not authorizing substitute service. 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).

We overrule Hudson's second issue.

Conclusion

We affirm the order of the trial court dismissing the case for want of prosecution.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1. The process server stated, without any explanation, that the Gipsons place of abode "was established personally in [her] efforts."
2. Although Hudson, in its briefing, asserts that the trial court denied its motion for substitute service, the clerk's record contains no such order.
3. 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.

Pro Se Suit against Clerk dismissed for failure to serve citation

Amarillo court of appeals affirms dismissal in the absence of evidence of service of process on the clerk of the 5th Circuit.

Laurance Kriegel v. William C. Zapalac, Counsel of the Clerk's Office, No. (Tex.App.- Amarillo, Nov. 28, 2007)(Opinion by Justice Campbell)(pro se litigants, dismissal for failure to serve defendant affirmed)(Before Chief Justice Quinn, Justices Campbell and Pirtle)
Appeal from 287th District Court of Parmer County

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

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.


Background

Also appearing pro se in the trial court, Kriegel filed suit on January 3, 2007.
if( bInlineFloats )

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).

Kriegel contended appellee William Zapalac, counsel to the Clerk’s Office for the United States Court of Appeals for the Fifth Circuit,
if( bInlineFloats )

Hereinafter the United States Court of Appeals for the Fifth Circuit is identified asthe “Fifth Circuit.”

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.
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.
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.
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.
Issue
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:
“Appellant presented information to the Court showing service was lawfully presented on Appellee.”

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).

Discussion

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.
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.
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).
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.

James T. Campbell
Justice

TRCP 165a - Refusal to Reinstate After DWOP Affirmed

HOLDING: 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.

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. (Tex.App.- Waco, Nov. 21, 2007)(Opinion by Justice Vance)(DWOP, motion to reinstate denied) (Before Chief Justice Gray, Justices Vance and Reyna)
Appeal from 82nd District Court of Falls County

MEMORANDUM Opinion

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.

Background

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.

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.
Dismissal for Want of Prosecution

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)).

A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a[1] 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.

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).

The Johnsons claim that the motion to retain should not have been denied for several reasons.

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).

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)).

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.

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.

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.

Motion to Reinstate

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.

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.

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. 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.

Conclusion

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.

BILL VANCE
Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna

Affirmed

Opinion delivered and filed November 21, 2007


[1] 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).

165a - DWOP and Motion to Reinstate

Tex. R. Civ. P. 165a DISMISSAL FOR WANT OF PROSECUTION

1. Failure to Appear for Trial or Hearing
2. Non-compliance with Time Standards
3. Reinstatement [Procedure the get case re-instated by Motion to Reinstate]
4. Cumulative Remedies

Other vehicles: Motion to Set Aside Dismissal Order - Motion for New Trial