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
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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
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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
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