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.,

Hearing on Motion to Reinstate Can Cure Error in Notice or Render it Harmless

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.

THE RELEVANT SECTION OF THE OPINION IS REPRODUCED BELOW, FOLLOWED BY THE CASE CITE

Dismissal for Want of Prosecution

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.

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.

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.”

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).

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.

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.

Conclusion

We affirm the judgment of the trial court.

Chambers vs. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Taft) (opinion on remand from the Texas Supreme Court) (mostly addressing arbitration issues)

Motion to Reinstate Must Be Verified (Sworn)

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):

PER CURIAM OPINION

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.

Amir-Sharif v. Hawkins, No. 05-08-01388-CV (Tex.App.- Dallas, Oct. 1, 2009)

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.

We dismiss this appeal for lack of jurisdiction.

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.”

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.

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.

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.

LINDA THOMASCHIEF JUSTICE


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.).
-------------------
File Date[10/01/2009]

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).

Motion to Reinstate does not restart appellate time-table

Clock for filing notice of appeal starts ticking when dismissal order is signed. Denial of motion to reinstate is not separately appealable.

Terms: void order, judgment, voidable, non-suit, dismissal, deadline for appeal

McCoy v. North Forest ISD (Tex.App.- Houston [14th Dist.] Nov. 15,2 007)(per curiam)(motion to reinstate, appellate time-table, DWOJ)

M E M O R A N D U M O P I N I O N

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.

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).

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.

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).

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.

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); Skadden v. Alfonso, 217 S.W.3d 611, 619 (Tex. App.-Houston [14 Dist.] 2006, pet. filed).

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).

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.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 15, 2007.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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