Summary
concluding that where appellant appealed a dismissal for want of prosecution but did not file a motion to reinstate in the trial court, the only issue for review was whether the trial court abused its discretion by dismissing the case based on the rules for dismissal for want of prosecution
Summary of this case from Cummings v. BillmanOpinion
No. 05-15-00105-CV
03-03-2016
DARRELL W. COOK P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION, Appellant v. AMERICAN LITHO GRAPHICS, INC., Appellee
On Appeal from the 162nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-08073
MEMORANDUM OPINION
Before Justices Bridges, Evans, and O'Neill
Opinion by Justice O'Neill
The Hon. Michael J. O'Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment. --------
Appellant appeals the trial court's December 29, 2014 order dismissing its case for want of prosecution. In three issues, appellant contends the trial court erred by denying its motion for default judgment and dismissing the case for want of prosecution. However, appellant's arguments are not responsive to the issues that the trial court dismissed the case on—appellant's failure to file a written response to the trial court's October 29, 2014 letter and failure to appear at the dismissal hearing set by the same letter. We affirm the trial court's dismissal order.
Background
On July 29, 2014, appellant filed suit against appellee alleging breach of contract. The suit alleged that appellant "agreed to provide legal services" to appellee, that appellant provided those services, and appellee's failure to pay constituted a breach of contract. Appellant claimed that appellee owed $1,747.97 and pre-judgment interest under an unpaid April 1, 2014 invoice.
On October 29, 2014, the trial court sent appellant a notice of its intent to dismiss. In this notice, the trial court requested appellant's written response regarding the case's arbitration status at least three days before the case's submission hearing date of December 5, 2014. The letter also stated that failure to show good cause as to why the case should stay on the trial court's docket would result in a dismissal. On December 29, 2014, the trial court dismissed appellant's case for failure to file a written response to the trial court's October 29, 2014 letter and failure to appear at the dismissal hearing set by the same letter. Appellant did not file a motion to reinstate, but it did file a notice of appeal challenging the dismissal order.
Dismissal for Want of Prosecution
In its first and second issues, appellant challenges the trial court's order dismissing the case for want of prosecution. We review a trial court's dismissal for want of prosecution under an abuse of discretion standard. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied). The question is whether the trial court acted without reference to any guiding rules or principles, or whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The appellant bears the burden of producing a record that shows the district court abused its discretion. Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987).
Texas Rule of Civil Procedure 165a provides a court may dismiss a case after notice and a hearing for want of prosecution. TEX. R. CIV. P. 165a(1). A court may dismiss pursuant to rule 165a for two reasons: (1) failure to appear; or (2) failure to comply with the Supreme Court of Texas' time standards. Summons v. Herrington, No. 05-00-00664-CV,, at *3-4 (Tex. App.— Dallas June 12, 2001, no pet.) (citing TEX. R. CIV. P. 165a). Additionally, "[t]he common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence." Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A party seeking reinstatement of a case dismissed for want of prosecution must file a verified motion that sets forth the grounds for reinstatement. TEX. R. CIV. P. 165a(3).
The record indicates that the trial court sent appellant notice of its intention to dismiss on October 29, 2014. The notice requested a written response from the appellant in regards to the case's arbitration status. On December 29, 2014, the trial court dismissed appellant's case for want of prosecution, citing appellant's failure to file a written response to the court's October 29, 2014 letter and failure to appear at the dismissal hearing set by the same letter. The record is silent as to whether appellant ever corresponded with the court regarding the status of the case's arbitration following the court's notice of intent to dismiss. Appellant did not file a verified motion to reinstate to challenge the grounds on which the trial court dismissed its case for want of prosecution. Even appellant's brief is silent as to whether he responded to the court's October 29, 2014 notice of intent to dismiss or appeared at the December 5, 2014 submission hearing. Rather than argue that it responded to the trial court's October 29, 2014 notice with an update about the case's arbitration status, appellant argues that the trial court never had the authority to require the parties to participate in arbitration. Because appellant failed to produce a record that included evidence of a written response to the trial court's October 29, 2014 notice or an appearance at the December 5, 2014 submission hearing, we cannot conclude that the trial court abused its discretion when it dismissed appellant's case for want of prosecution. Accordingly, we overrule appellant's first and second issues.
Denial of Motion for Default Judgment
We need not address appellants' third issue because our decisions on the first and second issues are dispositive. TEX. R. APP. P. 47.1 ("The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.") (emphasis added); El Campo Ice, Light & Water Co. v. Texas Machinery & Supply Co., 147 S.W. 338, 340 (Tex. Civ. App.—Dallas 1912, writ denied) ("[W]e have not considered the other points made in the brief, since to do so would not change the disposition made of the appeal."); McAlister v. Hatbreeze Props., L.L.C., No. 02-11-00060-CV, 2012 WL 579436, at *3 (Tex. App.—Fort Worth Feb. 23, 2012, no pet.) (addressing only those issues that were "potentially dispositive"); Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.—Fort Worth 2006, no pet.) (addressing only those issues that were "dispositive").
Conclusion
We resolve appellant's issues against him and affirm the trial court's order.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED 150105F.P05
JUDGMENT
On Appeal from the 162nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-08073.
Opinion delivered by Justice O'Neill. Justices Bridges and Evans participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee AMERICAN LITHO GRAPHICS, INC. recover its costs of this appeal from appellant DARRELL W. COOK P.C. D/B/A DARRELL W. COOK & ASSOCIATES, A PROFESSIONAL CORPORATION. Judgment entered this 3rd day of March, 2016.