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finding no abuse of discretion where trial court sent notice of intent to dismiss unless a motion to retain was filed within 15 days of such notice
Summary of this case from FORRESTER v. GINNOpinion
No. 05-05-01517-CV
Opinion Filed October 26, 2006.
On Appeal from the County Court, Grayson County, Texas, Trial Court Cause No. 2002-2-205CV.
Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG.
MEMORANDUM OPINION
The trial court dismissed appellant Amy M. Clark's lawsuit against Gary Frantz, d/b/a Frantz Enterprises and Gary Frantz, for want of prosecution and denied Clark's motion to reinstate. In a single issue, she claims the trial court abused its discretion in dismissing her case without notice and in failing to reinstate the case after hearing. We decide against Clark on her point and affirm the judgment of the trial court.
I. FACTUAL CONTEXT AND PROCEDURAL BACKGROUND
On June 10, 2002, Clark filed suit against her employer, Frantz, claiming negligence, after she suffered an injury at work. Frantz was not a subscriber to workers' compensation insurance. An answer was filed on November 4, 2002. On January 7, 2004, the trial court entered an order for mediation and set the case for a nonjury trial on April 16, 2004. Frantz announced ready for trial on April 6, 2004. The record does not reflect that Clark announced for trial. On April 8, 2004, the parties filed a joint motion for continuance, asserting discovery had not been completed in the case. The trial court granted the continuance and reset the case on the nonjury docket for July 16, 2004.
The reporter's record from the September 30, 2005 hearing on Clark's motion for reinstatement indicates that Frantz filed his answer on November 4, 2002; however, the clerk's record does not include a copy of Frantz's answer.
On July 6, 2004, Clark announced she was not ready to proceed to trial because mediation had not been completed and discovery had not been returned from Frantz. The parties again filed a joint motion for continuance on July 13, 2004, requesting a continuance of at least ninety days on the basis that mediation was appropriate for the case and had not been completed. Again, the trial court granted the continuance and reset the case for October 29, 2004.
On October 26, 2004, Frantz's attorney filed a suggestion of death, stating that Mr. Frantz had passed away. No further action was taken on the case until the trial court sent Clark notice of intention to dismiss, dated May 4, 2005. The notice stated that, "[i]n accordance with rule 165A, Texas Rules of Civil Procedure, this is to notify you that the court intends to dismiss the above entitled and numbered cause for failure to prosecute with due diligence unless a motion to retain is filed within fifteen (15) days of this notice." Clark filed a motion to retain the case on the docket on May 10, 2005, requesting a ninety-day continuance to await appointment of an executor since Frantz had passed away. There was no further action in the case until August 18, 2005 when the trial court ordered dismissal for want of prosecution under rule 165a(2).
Clark filed a motion to reinstate on September 8, 2005. The trial court held a hearing on that motion on September 30, 2005. At the hearing, the trial court noted that Clark's motion to retain requested ninety days for appointment of an executor for Frantz, an executor was appointed on July 15, 2005, and the order dismissing the case for want of prosecution was not entered until August 18, 2005. Clark's motion to reinstate was denied and this appeal followed.
II. STANDARD OF REVIEW
When reviewing a dismissal for want of prosecution, the sole issue is whether the appellant can demonstrate a clear abuse of discretion by the court. Brown v. Vann, 167 S.W.3d 627, 630 (Tex.App.-Dallas 2005, no pet.); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ); see State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984). We also apply an abuse of discretion standard in reviewing the denial of a motion to reinstate. Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 402 (Tex.App.-Dallas 2001, pet. denied); Wyatt v. Tex. Okla. Express, Inc., 693 S.W.2d 731, 732 (Tex.App.-Dallas 1985, no writ). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).
III. APPLICABLE LAW
A. Dismissal for Want of Prosecution
A trial court may exercise its discretion to dismiss for want of prosecution either under rule 165a of the Texas Rules of Civil Procedure or its inherent power. Vann, 167 S.W.3d at 630; see Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999); Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). Under rule 165a, a trial court may dismiss a suit 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 v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163 (Tex.App.-Waco 2004, no pet.). The applicable time standard for disposition of a nonjury trial is within twelve months after the appearance date. Tex. Gov't Code Ann. tit. 2, subtit. F app. (Vernon 2006).
B. Adequate Notice
Ordinarily, the trial court is required to provide notice of a hearing and conduct an oral hearing prior to dismissal, regardless of the grounds for dismissal. See Villarreal, 994 S.W.2d at 630-31; Franklin, 53 S.W.3d at 401. "The notice must advise the party of the basis for the potential dismissal." Boulden v. Boulden, 133 S.W.3d 884, 886 (Tex.App.-Dallas 2004, no pet.). Notice that the court is considering dismissal under rule 165a does not constitute adequate notice that the court may exercise its inherent authority to dismiss the case for want of prosecution. Id. at 886; Lopez v. Harding, 68 S.W.3d 78, 79-80 (Tex.App.-Dallas 2001, no pet.) (court erred in dismissing under inherent authority when notice referred only to rule 165a); see also Villarreal, 994 S.W.2d at 631-32; Goff v. Branch, 821 S.W.2d 732, 736 (Tex.App.-San Antonio 1991, writ denied).
The requirements of notice and a hearing are necessary to ensure the dismissed claimant receives due process. Franklin, 53 S.W.3d at 401; Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 163 (Tex.App.-Houston [14th Dist.] 1993, no writ) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 (1988)). Failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d at 163-64. However, Texas appellate courts, including this court, have uniformly concluded that "when the trial court holds a hearing on a motion to reinstate while the court had full control of its judgment, and the dismissed party thereby receives the same hearing with the same burden of proof it would have had before the order of dismissal was signed, no harmful error is shown." Franklin, 53 S.W.3d at 402-03; see also Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128-29 (Tex.App.-Houston [14th Dist.] 1999, no pet); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex.App.-Texarkana 1995, writ denied). Thus, a post-dismissal hearing obviates any due process concerns. Franklin, 53 S.W.3d at 403; see Montgomery Ward Co. v. Denton County Appraisal Dist., 13 S.W.3d 828, 830-31 (Tex.App.-Fort Worth 2000, pet. denied); F.D.I.C. v. Kendrick, 897 S.W.2d 476, 480 (Tex.App.-Amarillo 1995, no writ); Vautrain v. Dutch Garrett, Inc., 755 S.W.2d 486, 489-01 (Tex.App.-Fort Worth 1988, writ denied) (op. on reh'g); see also Steward, 143 S.W.3d at 165.
C. Motion to Reinstate
Clark argues that the trial court abused its discretion in failing to reinstate her case after hearing. The trial court's order of dismissal for want of prosecution states that, pursuant to rule 165a(2), the cause is dismissed. "To obtain reinstatement under rule 165a(2), a plaintiff must show good cause for the failure to prosecute the suit under the time standards promulgated by the Supreme Court." Steward, 143 S.W.3d at 165 (citing Franklin, 53 S.W.3d at 404). The burden is on the plaintiff to place evidence of diligent prosecution before the trial court at the hearing on the motion to reinstate. See Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 649 (Tex.App.-San Antonio 2002, pet. denied); Jimenez, 999 S.W.2d at 130.
IV. ANALYSIS
Clark argues that the trial court abused its discretion in dismissing her case for want of prosecution without notice. However, the trial court sent notice of the court's intent to dismiss on May 4, 2005, stating "[i]n accordance with rule 165a, Texas Rules of Civil Procedure, this is to notify you that the court intends to dismiss the above entitled and numbered case for failure to prosecute with due diligence unless a motion to retain is filed within fifteen (15) days from the date of this notice." Clark filed a motion to retain within fifteen days, requesting ninety days for appointment of an executor, but did not take any further action even though an executor was appointed on July 15, 2005. More than ninety days after Clark filed her motion to retain, the trial court issued an order of dismissal. At that time, the case had been pending for nearly three years. The applicable standard for disposition of nonjury trials is twelve months from appearance date. See Tex. Gov't Code Ann. tit. 2, subtit. F app. The record reflects the trial court provided Clark with notice of its intent to dismiss the case for want of prosecution, but did not provide notice of a setting on the dismissal docket or any further notice of intent to dismiss after Clark filed her motion to retain. However, any error in failing to provide Clark with further notice and a hearing prior to dismissal was cured because Clark participated in a hearing on her motion for reinstatement. Although the trial court should have held an oral hearing prior to dismissing the case under the mandatory language of rule 165a, the post-dismissal hearing on the motion for reinstatement rendered the trial court's error harmless. See Franklin, 53 S.W.3d at 404.
Clark also argues that the trial court abused its discretion in failing to reinstate the case after hearing. To obtain reinstatement under rule 165a(2), the burden was on Clark to show good cause for the failure to prosecute the suit under the time standards promulgated by the Supreme Court. Steward, 143 S.W.3d at 165. Appellant failed to show diligence in prosecution. Neither her motion for reinstatement, nor the trial court's recitation of the history of the case at the hearing on Clark's motion demonstrate diligent prosecution by Clark. We cannot conclude the trial court abused its discretion when it denied Clark's motion to reinstate.
V. CONCLUSION
Having decided against Clark on her issue, we affirm.