Sunday, November 25, 2007
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. 10-06-00174-CV (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).
Friday, November 16, 2007
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.
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.
Saturday, November 10, 2007
Naik v. Wu (Tex.App.- Houston [1st Dist.] Feb. 16, 2006)(Keyes)[DWOP, multiple continuances, motion to reinstate denied]AFFIRM TC JUDGMENT: Opinion by Justice KeyesBefore Justices Nuchia, Keyes and Hanks01-04-01127-CV Bharatkumar D. Naik and Janki B. Naik v. Jo-Chin WuAppeal from Co Civil Ct at Law No 4 of Harris County (Hon. Cynthia Crowe)
MEMORANDUM OPINION
Appellant, Bharatkumar D. Naik, brought suit in 1999 against Jo-Chin Wu, appellee, for personal injuries sustained in an automobile accident. The trial court dismissed the case for want of prosecution in 2004. In two issues on appeal, appellant argues that the trial court’s denial of his motion for continuance, order of dismissal, and refusal to reinstate the case constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights.
We affirm.
BACKGROUND
Appellant filed suit against appellee in September 1999, after the two were involved in an automobile accident. Following some discovery activity, the case entered a prolonged period of relative dormancy, being reset approximately ten times between December 21, 2000 and June 29, 2004. Although a number of the resets appear to have been initiated by the trial court itself, at least three resulted from motions filed by appellant. These included the following:
1.On December 8, 2000, appellant filed a verified motion for continuance. Appellant’s motion asserted that his counsel would not be available for trial—then set for January 15, 2001—due to illness. The motion included an affidavit from Douglas J. Stockwell, M.D., indicating that appellant’s counsel, Leonard Cruse, continued to experience complications from a stroke suffered in 1996. Dr. Stockwell’s letter stated that Cruse was expected to make a full recovery. The trial court granted appellant’s motion, which appellee did not oppose.
2.On May 13, 2002, appellant filed a second verified motion for continuance. Appellant’s motion indicated that the scheduled trial date of June 24, 2002 conflicted with appellant’s previously planned vacation to Europe. The trial court granted appellant’s motion, which appellee did not oppose.
3.On June 29, 2004, appellant submitted a third verified motion for continuance. The motion again asserted that Cruse would not be available for trial, which was set to begin on approximately June 29, 2004,
The exact date the trial was scheduled to begin is not clear from the record, although it isclear that the trial was set sometime during the week of June 24, 2004.
because of illness. It included a letter from a physician at the Clear Creek Clinic
The physician’s signature on the letter is not legible.
indicating that Cruse would be unable to perform his duties “for the next two weeks.” The trial court granted appellant’s motion, which appellee did not oppose.
After appellant’s June 29, 2004 motion had been granted, the trial date was reset for July 19, 2004. On or about July 19, 2004, appellant submitted a fourth verified motion for continuance.
It is not clear from the record precisely when this motion was submitted, although thedocket sheet indicates that it was denied on July 19, 2004.
In this motion, which appellee again did not oppose, Cruse indicated that continuing medical conditions precluded him from conducting a trial on July 19. The motion included a letter, again from Dr. Stockwell, indicating that Cruse continued to suffer complications from a stroke he “suffered a few years ago” and that he should be excused from work “for at least the next month.” The trial court denied appellant’s motion, maintaining a trial date of July 19, 2004.
Neither Cruse nor appellant appeared at trial on July 19. Noting that appellant had failed to appear despite being notified of the trial date, the trial court ordered appellant’s action “dismissed for want of prosecution.” Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, appellant filed a motion for reinstatement on August 20, 2004. See Tex. R. Civ. P. 165a(3). Appellee filed a response opposing appellant’s motion for reinstatement on August 30, 2004. After an August 31, 2004 hearing, the trial court denied appellant’s motion for reinstatement. This appeal followed.
DISCUSSION
In two issues on appeal, appellant, in effect, contends that the trial court’s decision to dismiss the case for want of prosecution constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights. Appellant argues that the trial court abused its discretion and violated appellant’s due process rights by denying his fourth motion for continuance, dismissing the case, and denying his motion for reinstatement.
Dismissal and Reinstatement Generally
A trial court possesses the power to dismiss a case pursuant to its inherent authority or Texas Rule of Civil Procedure 165a. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R. Civ. P. 165a. Under Rule 165a, a trial court may dismiss a case 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). Independent of the Texas Rules of Civil Procedure, a trial court may also order a dismissal when a plaintiff fails to prosecute a case with due diligence. See Villarreal, 994, S.W.2d at 630. Whether it acts under Rule 165a or its inherent authority, a court must provide a party with notice and an opportunity to be heard prior to entering an order of dismissal. Id.; see also Tex. R. Civ. P. 165a(1). Failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal on due process grounds. See Villarreal, 994 S.W.2d at 630–31. Participation in a hearing on a motion to reinstate, however, cures any due process concerns stemming from a failure to provide notice of intent to dismiss. See Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 94–95 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
If a case is dismissed, the adversely affected party may file a verified motion to reinstate. Tex. R. Civ. P. 165a(3). If a motion to reinstate is filed, the 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. A failure to appear is not considered intentional or due to conscious indifference simply because it is negligent or even deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).
Standard of Review
We review a denial of a motion for continuance, a dismissal for want of prosecution, and a denial of a motion to reinstate under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (stating that an abuse of discretion standard of review applies to dismissal for want of prosecution); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating that abuse of discretion standard of review applies to decisions to grant or deny motion for continuance). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether or not to grant a motion for continuance, dismissal, or reinstatement, a trial court may consider the entire history of a case, “including the length of time the case was on file, the amount of activity in the case . . . and the existence of reasonable excuses for delay.” See Nawas v. R&S Vending, 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex. App.—Waco 1985, no writ) (stating that in ruling on motion for continuance trial court must examine entire record).
Appellant’s Abuse of Discretion Claims
In his first issue on appeal, appellant claims the trial court abused its discretion by denying appellant’s fourth motion for continuance, ordering dismissal of the case, and rejecting appellant’s motion for reinstatement. The crux of appellant’s argument concerns the trial court’s denial of appellant’s fourth motion for continuance on July 19, 2004. Appellant contends that because the assertions regarding Cruse’s inability to participate at trial on July 19 were not controverted, the trial court was required to accept them as true. According to appellant, if Cruse’s illness irrefutably prevented him from performing his duties, the trial court could not deny appellant’s motion for continuance without abusing its discretion.
We find appellant’s argument to be unpersuasive. First, the cases appellant cites in support of his contention that the trial court must accept uncontroverted facts as true when considering a motion for continuance refer specifically to a party’s first motion, not its fourth.
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See Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.]1989, writ denied); Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App.—San Antonio 1985,writ ref’d n.r.e.); Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.App.—Galveston 1946, writ ref’d n.r.e.).
Nevertheless, even assuming that the trial court was required to accept the assertions in appellant’s fourth motion for continuance as true, we cannot say that the trial court abused its discretion by denying appellant’s motion.
Because there is no reporter’s record or findings of fact and conclusions of law, it isimpossible to know whether or not the trial court accepted as true appellant’s contentionsregarding Cruse’s medical condition. Therefore, we must affirm on the basis of any legaltheory supported by the record. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
The trial court need not have doubted that Cruse was medically unfit for trial to deny appellant’s motion without abusing its discretion. Twice appellant had sought and received continuances due to Cruse’s medical condition, the onset of which appears to have dated to 1996. When appellant sought a third continuance due to Cruse’s same medical condition, it was reasonable for the trial court to conclude that Cruse’s condition might not resolve itself within a reasonable amount of time. Indeed, appellant’s motion indicated that Cruse was suffering complications identical to those he reported in his December 8, 2000 motion for continuance, suggesting that Cruse’s condition had not improved in four years. Considering that trial courts possess wide latitude to manage their dockets,
See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). Close it was reasonable for the court here, absent any certainty that Cruse would recover within a reasonable time, to deny appellant’s motion.
Once one concludes that it was not an abuse of discretion to deny appellant’s fourth motion for continuance, it logically follows that the trial court did not abuse its discretion when it dismissed appellant’s case after appellant failed to appear for trial on July 19, 2004. See e.g. Tex. R. Civ. P. 165a(1) (stating that trial courts may dismiss cases for failure to appear). Thus, we turn to appellant’s contentions regarding the trial court’s denial of his motion to reinstate.
As noted, Texas Rule of Civil Procedure 165a(3) provides that when a case is dismissed for want of prosecution, “the court shall reinstate the case upon finding, after a hearing, that the failure of the party or his attorney [to appear] 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.” Tex. R. Civ. P. 165a(3). Appellant contends that the trial court was required to reinstate his case because his failure to appear was “otherwise reasonably explained” by the existence of Cruse’s medical condition. Thus in effect, appellant argues that the trial court was required to grant his motion for reinstatement on the exact same grounds that it rejected his motion for continuance. Appellant’s contention ignores the trial court’s legitimate concerns regarding the ability of Cruse to be fit for trial within a reasonable time. Because appellant advanced no new arguments at the hearing for reinstatement, simply reiterating the fact that Cruse was ill, we conclude that appellant did not provide an adequate justification for his failure to appear. See Smith, 913 S.W.2d at 468.
We overrule appellant’s first issue on appeal.
Appellant’s Due Process Claims
In his second issue on appeal, appellant in effect contends that his right to due process was violated when the trial court dismissed his suit and denied his motion for reinstatement. Rule 38 of the Texas Rules of Appellate Procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(h); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). The failure to adequately brief an issue by not providing authorities and record citations waives any error on appeal. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“The Court does not represent the appellant and has no duty to search for pertinent authority.”). In view of appellant’s failure to provide authorities or record citations for his due process claims,
Appellant generally refers to due process rights under the Fourteenth Amendment of theU.S. Constitution and article I, section 19 of the Texas Constitution. See U.S. Const.amend. XIV; Tex. Const. art. I, § 19.
we conclude that appellant has waived his second issue.
We overrule appellant’s second issue on appeal. CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
MEMORANDUM OPINION
Appellant, Bharatkumar D. Naik, brought suit in 1999 against Jo-Chin Wu, appellee, for personal injuries sustained in an automobile accident. The trial court dismissed the case for want of prosecution in 2004. In two issues on appeal, appellant argues that the trial court’s denial of his motion for continuance, order of dismissal, and refusal to reinstate the case constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights.
We affirm.
BACKGROUND
Appellant filed suit against appellee in September 1999, after the two were involved in an automobile accident. Following some discovery activity, the case entered a prolonged period of relative dormancy, being reset approximately ten times between December 21, 2000 and June 29, 2004. Although a number of the resets appear to have been initiated by the trial court itself, at least three resulted from motions filed by appellant. These included the following:
1.On December 8, 2000, appellant filed a verified motion for continuance. Appellant’s motion asserted that his counsel would not be available for trial—then set for January 15, 2001—due to illness. The motion included an affidavit from Douglas J. Stockwell, M.D., indicating that appellant’s counsel, Leonard Cruse, continued to experience complications from a stroke suffered in 1996. Dr. Stockwell’s letter stated that Cruse was expected to make a full recovery. The trial court granted appellant’s motion, which appellee did not oppose.
2.On May 13, 2002, appellant filed a second verified motion for continuance. Appellant’s motion indicated that the scheduled trial date of June 24, 2002 conflicted with appellant’s previously planned vacation to Europe. The trial court granted appellant’s motion, which appellee did not oppose.
3.On June 29, 2004, appellant submitted a third verified motion for continuance. The motion again asserted that Cruse would not be available for trial, which was set to begin on approximately June 29, 2004,
The exact date the trial was scheduled to begin is not clear from the record, although it isclear that the trial was set sometime during the week of June 24, 2004.
because of illness. It included a letter from a physician at the Clear Creek Clinic
The physician’s signature on the letter is not legible.
indicating that Cruse would be unable to perform his duties “for the next two weeks.” The trial court granted appellant’s motion, which appellee did not oppose.
After appellant’s June 29, 2004 motion had been granted, the trial date was reset for July 19, 2004. On or about July 19, 2004, appellant submitted a fourth verified motion for continuance.
It is not clear from the record precisely when this motion was submitted, although thedocket sheet indicates that it was denied on July 19, 2004.
In this motion, which appellee again did not oppose, Cruse indicated that continuing medical conditions precluded him from conducting a trial on July 19. The motion included a letter, again from Dr. Stockwell, indicating that Cruse continued to suffer complications from a stroke he “suffered a few years ago” and that he should be excused from work “for at least the next month.” The trial court denied appellant’s motion, maintaining a trial date of July 19, 2004.
Neither Cruse nor appellant appeared at trial on July 19. Noting that appellant had failed to appear despite being notified of the trial date, the trial court ordered appellant’s action “dismissed for want of prosecution.” Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, appellant filed a motion for reinstatement on August 20, 2004. See Tex. R. Civ. P. 165a(3). Appellee filed a response opposing appellant’s motion for reinstatement on August 30, 2004. After an August 31, 2004 hearing, the trial court denied appellant’s motion for reinstatement. This appeal followed.
DISCUSSION
In two issues on appeal, appellant, in effect, contends that the trial court’s decision to dismiss the case for want of prosecution constituted (1) an abuse of discretion and (2) a violation of appellant’s due process rights. Appellant argues that the trial court abused its discretion and violated appellant’s due process rights by denying his fourth motion for continuance, dismissing the case, and denying his motion for reinstatement.
Dismissal and Reinstatement Generally
A trial court possesses the power to dismiss a case pursuant to its inherent authority or Texas Rule of Civil Procedure 165a. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R. Civ. P. 165a. Under Rule 165a, a trial court may dismiss a case 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). Independent of the Texas Rules of Civil Procedure, a trial court may also order a dismissal when a plaintiff fails to prosecute a case with due diligence. See Villarreal, 994, S.W.2d at 630. Whether it acts under Rule 165a or its inherent authority, a court must provide a party with notice and an opportunity to be heard prior to entering an order of dismissal. Id.; see also Tex. R. Civ. P. 165a(1). Failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal on due process grounds. See Villarreal, 994 S.W.2d at 630–31. Participation in a hearing on a motion to reinstate, however, cures any due process concerns stemming from a failure to provide notice of intent to dismiss. See Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 94–95 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
If a case is dismissed, the adversely affected party may file a verified motion to reinstate. Tex. R. Civ. P. 165a(3). If a motion to reinstate is filed, the 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. A failure to appear is not considered intentional or due to conscious indifference simply because it is negligent or even deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).
Standard of Review
We review a denial of a motion for continuance, a dismissal for want of prosecution, and a denial of a motion to reinstate under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (stating that an abuse of discretion standard of review applies to dismissal for want of prosecution); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating that abuse of discretion standard of review applies to decisions to grant or deny motion for continuance). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In determining whether or not to grant a motion for continuance, dismissal, or reinstatement, a trial court may consider the entire history of a case, “including the length of time the case was on file, the amount of activity in the case . . . and the existence of reasonable excuses for delay.” See Nawas v. R&S Vending, 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex. App.—Waco 1985, no writ) (stating that in ruling on motion for continuance trial court must examine entire record).
Appellant’s Abuse of Discretion Claims
In his first issue on appeal, appellant claims the trial court abused its discretion by denying appellant’s fourth motion for continuance, ordering dismissal of the case, and rejecting appellant’s motion for reinstatement. The crux of appellant’s argument concerns the trial court’s denial of appellant’s fourth motion for continuance on July 19, 2004. Appellant contends that because the assertions regarding Cruse’s inability to participate at trial on July 19 were not controverted, the trial court was required to accept them as true. According to appellant, if Cruse’s illness irrefutably prevented him from performing his duties, the trial court could not deny appellant’s motion for continuance without abusing its discretion.
We find appellant’s argument to be unpersuasive. First, the cases appellant cites in support of his contention that the trial court must accept uncontroverted facts as true when considering a motion for continuance refer specifically to a party’s first motion, not its fourth.
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See Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.]1989, writ denied); Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App.—San Antonio 1985,writ ref’d n.r.e.); Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d 853, 856 (Tex.App.—Galveston 1946, writ ref’d n.r.e.).
Nevertheless, even assuming that the trial court was required to accept the assertions in appellant’s fourth motion for continuance as true, we cannot say that the trial court abused its discretion by denying appellant’s motion.
Because there is no reporter’s record or findings of fact and conclusions of law, it isimpossible to know whether or not the trial court accepted as true appellant’s contentionsregarding Cruse’s medical condition. Therefore, we must affirm on the basis of any legaltheory supported by the record. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d241, 252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
The trial court need not have doubted that Cruse was medically unfit for trial to deny appellant’s motion without abusing its discretion. Twice appellant had sought and received continuances due to Cruse’s medical condition, the onset of which appears to have dated to 1996. When appellant sought a third continuance due to Cruse’s same medical condition, it was reasonable for the trial court to conclude that Cruse’s condition might not resolve itself within a reasonable amount of time. Indeed, appellant’s motion indicated that Cruse was suffering complications identical to those he reported in his December 8, 2000 motion for continuance, suggesting that Cruse’s condition had not improved in four years. Considering that trial courts possess wide latitude to manage their dockets,
See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). Close it was reasonable for the court here, absent any certainty that Cruse would recover within a reasonable time, to deny appellant’s motion.
Once one concludes that it was not an abuse of discretion to deny appellant’s fourth motion for continuance, it logically follows that the trial court did not abuse its discretion when it dismissed appellant’s case after appellant failed to appear for trial on July 19, 2004. See e.g. Tex. R. Civ. P. 165a(1) (stating that trial courts may dismiss cases for failure to appear). Thus, we turn to appellant’s contentions regarding the trial court’s denial of his motion to reinstate.
As noted, Texas Rule of Civil Procedure 165a(3) provides that when a case is dismissed for want of prosecution, “the court shall reinstate the case upon finding, after a hearing, that the failure of the party or his attorney [to appear] 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.” Tex. R. Civ. P. 165a(3). Appellant contends that the trial court was required to reinstate his case because his failure to appear was “otherwise reasonably explained” by the existence of Cruse’s medical condition. Thus in effect, appellant argues that the trial court was required to grant his motion for reinstatement on the exact same grounds that it rejected his motion for continuance. Appellant’s contention ignores the trial court’s legitimate concerns regarding the ability of Cruse to be fit for trial within a reasonable time. Because appellant advanced no new arguments at the hearing for reinstatement, simply reiterating the fact that Cruse was ill, we conclude that appellant did not provide an adequate justification for his failure to appear. See Smith, 913 S.W.2d at 468.
We overrule appellant’s first issue on appeal.
Appellant’s Due Process Claims
In his second issue on appeal, appellant in effect contends that his right to due process was violated when the trial court dismissed his suit and denied his motion for reinstatement. Rule 38 of the Texas Rules of Appellate Procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(h); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). The failure to adequately brief an issue by not providing authorities and record citations waives any error on appeal. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“The Court does not represent the appellant and has no duty to search for pertinent authority.”). In view of appellant’s failure to provide authorities or record citations for his due process claims,
Appellant generally refers to due process rights under the Fourteenth Amendment of theU.S. Constitution and article I, section 19 of the Texas Constitution. See U.S. Const.amend. XIV; Tex. Const. art. I, § 19.
we conclude that appellant has waived his second issue.
We overrule appellant’s second issue on appeal. CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
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