Opinion
14-21-00497-CV
02-17-2022
EX PARTE Z.H.
On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2020-16503
Panel consists of Justices Jewell, Bourliot, and Poissant.
MEMORANDUM OPINION
PER CURIAM.
Appellant Z.H., proceeding pro se, appeals the trial court's dismissal of his expunction proceeding for failure to prosecute. Finding no reversible error in the issues appellant contests, we affirm.
Background
On March 2, 2020, appellant filed a petition for expunction of record with the trial court. His proceeding concerns a criminal charge made against him in 2011, but which was disposed of by the prosecuting attorney on April 2, 2013. Contemporaneous with his petition, appellant filed a "Motion for Bench Warrant or in the Alternative Motion for Hearing by Conference Call," which asked the trial court to either allow appellant to attend a final hearing on his petition or hold a telephonic hearing on the petition at which appellant could attend and participate by phone. At the end of his motion, appellant included a short form order for the trial court to sign, in which the trial court could specify the time and date of the hearing.
On March 19, 2020, the trial court signed appellant's proposed order setting a hearing date. However, because of how text was entered into the order, the time and date for the hearing cannot be discerned from the order. Even so, the trial court clerk sent notices of expunction hearing on March 30, 2020, though the notices did not themselves contain a date or time for the hearing.
As near as can be determined from the record, no hearing took place in this matter in May 2020, and neither appellant nor the trial court took any further action on the case until May 18, 2021. On that date, the trial court sent notices of disposition deadline to appellant and several government entities listed in appellant's petition. The notices stated the disposition deadline for the case was June 23, 2021, and that if the case was not set and heard before the deadline, the case would be dismissed for want of prosecution on that date without further notice. The notice further stated that hearing dates could be obtained from the trial court's coordinator and noted that any questions about the notice should be directed to the court coordinator, whose phone number was provided in the notice.
Although appellant states he filed a motion to retain in the trial court before June 23, 2021, there is no indication appellant attempted to schedule a hearing on his petition prior to the disposition deadline. Consequently, on June 25, 2021, the trial court signed an order of dismissal, dismissing the case without prejudice.
Appellant did not include the motion to retain in the appellate record.
On July 26, 2021, appellant mailed by first-class United States mail a motion to reinstate to the trial court, and that motion was filed on July 28, 2021.Contemporaneous with mailing that motion, appellant mailed a notice of appeal from the order of dismissal, which was filed by the trial court clerk on July 28, 2021. The trial court did not issue a ruling on the motion to reinstate.
Because the motion was received by the trial court clerk within 10 days of the deadline for filing motions to reinstate, the motion was timely filed. See Tex. R. Civ. P. 4 (noting that the time period for filing documents, when it would otherwise end on a weekend, "runs until the end of the next day which is not a [weekend] or legal holiday"); Tex.R.Civ.P. 5 (deeming documents to be timely when they are "sent to the proper clerk by first-class United States mail . . . and is deposited in the mail on or before the last day for filing same, [and] received by the clerk not more than ten days tardily"); Tex.R.Civ.P. 165a(3) (requiring motions to reinstate to be "filed with the clerk within 30 days after the order of dismissal is signed").
Appellant subsequently filed a notice of appeal with the trial court on August 23, 2021, complaining of the trial court's failure to rule on his motions prior to dismissing his case. However, the outcomes of both the pre- and post-judgment motions relating to the dismissal are already within the scope of appellant's original notice of appeal from the dismissal order. See, e.g., Mansaray v. Phillips, 626 S.W.3d 402, 404-07 (Tex. App-Dallas 2021, no pet.) (evaluating the merits of the denial of a motion to reinstate a case dismissed for want of prosecution, despite the notice of appeal being filed contemporaneously with the motion to reinstate); Morris v. Royal Office Sys., Inc., No. B14-88-00746-CV, 1990 WL 8495, at *1-2 (Tex. App-Houston [14th Dist.] Feb. 1, 1990, no writ) (upholding the denial of a pre-judgment motion to retain as part of an appeal from an order dismissing a case for want of prosecution).
Analysis
We review challenges to a trial court's dismissal for want of prosecution as well as subsequent denials of motions to reinstate for abuse of discretion. Henderson v. Blalock, 465 S.W.3d 318, 321-22 (Tex. App.-Houston [14th Dist] 2015, no pet.). This standard authorizes reversal of such decisions only if the trial court has acted arbitrarily or without reference to guiding rules and principles. Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 96 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). In addressing this matter, we are to construe appellant's pro se filings liberally. Sorrow v. Harris Cnty. Sheriff, 622 S.W.3d 496, 500 (Tex. App.-Houston [14th Dist.] 2021, pet. denied).
There are two sources for trial courts to dismiss suits for want of prosecution: Texas Rule of Civil Procedure 165a, and trial courts' inherent authority. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Rule 165a authorizes trial courts to dismiss for want of prosecution "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). Trial courts also possess inherent authority to dismiss a case when a plaintiff fails to prosecute it with due diligence. Villarreal, 994 S.W.2d at 630. But regardless of which source of authority a trial court relies on, it must provide the party subject to dismissal "with notice and an opportunity to be heard." Id.
The record reflects that appellant was given notice that a hearing needed to be set and held by June 23, 2021, and that failing to do so would result in dismissal. This itself provided sufficient notice for a dismissal pursuant to Rule 165a. See Bechem v. Reliant Energy Retail Servs., LLC, No. 01-18-00878-CV, 2019 WL 4065274, at *3 (Tex. App.-Houston [1st Dist] Aug. 29, 2019, pet. denied). All that remains is to determine whether the dismissal was proper.
In one issue implicating this court's jurisdiction, appellant contends that he has been denied the ability to appeal from the trial court's dismissal because, in his telling, his motion to retain and his motion to reinstate remain pending due to the trial court's failure to rule on them. Appellant is mistaken; he has retained and has used the opportunity to appeal from this dismissal even though the trial court did not rule on either of those motions. As the dismissal order fully disposed of appellant's entire case, it was a final judgment that could properly be appealed from and over which this court could properly exercise appellate jurisdiction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195, 200 (Tex. 2001). Although appellant subsequently filed a motion to reinstate, that motion was denied by operation of law on September 8, 2021, 75 days after the dismissal order was signed. Tex.R.Civ.P. 165a(3). As all matters before the trial court have been disposed of, there is no obstacle to appellant appealing the trial court's dismissal order as he has done, and we conclude appellant's first issue is not grounds for any relief.
Appellant's next issue contends his motion to retain could itself provide a basis for avoiding dismissal. But there is no indication appellant's motion to retain set the hearing the trial court required in its notice of disposition deadline, which stated the court coordinator could provide hearing dates and answer questions about the notice at a phone number listed in the notice, and appellant has not shown how he contacted the trial court's coordinator or otherwise attempted to schedule the hearing required by that notice. We see no abuse of discretion in the trial court rejecting appellant's motion to retain as an alternative to what the court's notice required him to do. See Stromberg Carlson Leasing Corp. v. Cent. Welding Supply Co., 750 S.W.2d 862, 865 (Tex. App.-Houston [14th Dist.] 1988, no writ) (upholding dismissal of a case for failure to prosecute when, despite the court requiring the appellant to request trial at a date certain, the appellant instead filed a motion to retain lacking such a request). We reject this second issue.
Appellant's final issue contends the trial court's setting a hearing for a date in May 2020 itself prevented it from dismissing the case in 2021. Broadly construed, appellant's brief contends both the May 2020 setting itself and his own efforts to set that hearing prevented the trial court from dismissing his case in June 2021. But those two aspects are no obstacles to dismissal. Irrespective of whether appellant was sufficiently prosecuting his lawsuit at the outset of this litigation, the trial court was nevertheless empowered to dismiss his lawsuit if, at the time of dismissal, appellant was not prosecuting his petition for expunction with reasonable diligence. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). We see no abuse of discretion in the trial court dismissing this lawsuit when, despite his initial activities, appellant let his case remain static for more than a year. See City of Houston v. Thomas, 838 S.W.2d 296, 298 (Tex. App.- Houston [1st Dist.] 1992, no writ) (finding no abuse of discretion in a trial court's dismissal of a case pending for a year with no substantial activity in the interim). Accordingly, we reject appellant's final issue.
Because the trial court acted within its discretion under Rule 165a in dismissing this case, this court has no need to address whether the dismissal would have been proper under the trial court's inherent authority. Cf. Henderson, 465 S.W.3d at 321 (acknowledging that because a contested dismissal for want of prosecution could be affirmed based on a trial court's inherent authority, it was "not necessary . . . to evaluate whether the trial court's order was proper under Rule 165a").
As appellant has failed to demonstrate he warrants relief from the trial court's dismissal of his case for want of prosecution, we affirm.