Due Process requires Notice and Hearing prior to DWOP Dismissal

Trial courts may not dismiss for want of prosecution without giving plaintiffs notice of their intention to do so and an opportunity to take action to avoid dismissal. As one of the two courts of appeals in Houston explained in in a recent appellate opinion:

The trial court must provide a party with notice and an opportunity to be heard before the trial court can dismiss a case for want of prosecution. Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal. Id. A notice of dismissal must inform a plaintiff of the exact reason for dismissal; otherwise, it violates the party's due process rights. 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 543 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (citing Villareal, 994 S.W.2d at 628).

Even if we assume that the DWOP notice was insufficient, [Plaintiff] was nevertheless afforded her due process rights because she received notice of the grounds for dismissal in the trial court's order in time to file a motion to reinstate, and a hearing was held on that motion while the trial court still had full control of the judgment. Thus, [Plaintiff's] due process rights were adequately protected. See Jiminez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.-Houston [14th Dist.] 1999, no pet.) ("We hold the hearing on Jimenez's reinstatement motion satisfied the due process rights applicable to the dismissal of his case."); see also Wright v. Tex. Dept. of Criminal Justice—Institutional Div., 137 S.W.3d 693, 695 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ("We hold that, when an appellant has the time and opportunity to file a motion for reinstatement that could raise a claimed error, he waives any due process rights if he fails to file such a motion."); Franklin v. Sherman Ind. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.-Dallas 2001, pet. denied) ("We agree with the Jiminez court that where the dismissed party is afforded an oral hearing on a motion to reinstate, application of Villareal `would obfuscate what we perceive as a bright line precedent regarding satisfaction of a litigant's due process rights applicable to a dismissal of a case for want of prosecution.'") (quoting Jiminez, 999 S.W.2d at 128).

SOURCE: Fourteenth Court of Appeals in Houston - No. 14-10-00003-CV - 11/12/11
To see the entire opinion, follow the link below

Divorce Decree Signed After DWOP Order Found Void - Dismissal order was final and had not been appealed

PLENARY JURISDICTION HAD EXPIRED

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).

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).

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.'").

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.

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.

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).

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.

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.

We therefore have no choice but to declare the divorce decree void and dismiss the appeal for want of jurisdiction.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: September 4, 2009

CASE ID: 03-09-00022-CV (9/4/09)