Jackson v. Thurahan

Full title: DONALD JACKSON, Appellant v. THURAHAN, INC., d/b/a DOWNTOWN TRANSMISSION…

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 27, 2003

No. 14-02-00308-CV (Tex. App. Mar. 27, 2003)

Opinion

No. 14-02-00308-CV.

Opinion filed March 27, 2003.

Appeal from the County Civil Court at Law Number One, Harris County, Texas, Trial Court Cause No. 749,636.

Reversed and Remanded.

Panel consists of Justices YATES, ANDERSON, and FOWLER.

MEMORANDUM OPINION

LESLIE BROCK YATES, Justice.

Appellant, Donald Jackson, brought suit against Thurahan, Inc., alleging various causes of action arising from repair work to his automobile. After Jackson failed to appear when the case was called to trial, the trial court dismissed the case for want of prosecution and subsequently denied Jackson's motion to reinstate the case. In three points of error, Jackson argues that the trial court erred in (1) dismissing his case without a hearing, (2) refusing to reinstate the lawsuit after Jackson established that the failure to appear resulted from a clerical error and was not intentional or the result of conscious indifference, and in (3) refusing to reinstate the case due to a separate lawsuit pending between the same parties. We reverse and remand.

FACTUAL BACKGROUND

This case arises out of a dispute over repairs to a 1991 BMW 735I automobile. Originally set for trial on October 15, 2001, the case was continued at the request of Thurahan. The trial court signed an order resetting the case for February 4, 2002. When the court called the case to trial, Jackson failed to appear either in person or through counsel.

On February 7, the trial court sent a "Motion for Entry/Notice of Intent to Dismiss" to both parties. The notice stated that a hearing was set for entry of judgment on February 22, 2002, and that "failure to appear on the date set will subject this case to being dismissed for want of prosecution." However, on February 13, a visiting judge signed an order of dismissal without prejudice. Also on February 13, Jackson filed his verified "Motion to Retain Case After Notice of Dismissal Without Prejudice," in which he argued trial counsel "failed to docket the trial setting on his trial docket or to notify Jackson of the trial setting as a result of the failure to docket the trial setting on his computer, and on the office's appointment book."

On March 4, 2002, an oral hearing was held. At the hearing, Jackson argued that the case should be reinstated because the failure to appear was accidental. Thurahan objected to reinstatement on the grounds that (1) an "identical" case between the same parties was pending in another court¹ and (2) Jackson had not responded to Thurahan's discovery request. At the hearing, the court stated:

1 The pending litigation was an appeal from small claims court. Jackson, at that time unrepresented, obtained a judgment against Thurahan in small claims court. Thurahan appealed to the County Court at Law No. 3. Jackson subsequently retained counsel, who determined there were "additional causes of action [and damages] that had arisen after the time of appeal." However, the trial court struck the new causes of action. Jackson then filed this lawsuit in the County Court at Law No. 1.

I'm not going to contradict what Judge Bradsaw-Hull did or divvy it up and put it in another court. That is not judicial economy. At this time I will deny the motion to reinstate on multiple grounds, including the one we have just been discussing.

The court then denied the motion to reinstate, and this appeal ensued.

STANDARD OF REVIEW

A trial court's authority to dismiss a case for want of prosecution derives from two sources: Texas Rule of Civil Procedure 165a and the court's inherent power. Tex.R.Civ.P. 165a(1); Johnson-Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex.App.-Fort Worth 2002, pet. filed). When reviewing a dismissal for want of prosecution, the sole issue is whether appellant can demonstrate a clear abuse of discretion by the trial court. Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex.App. — Houston [14th Dist.] 1999, no pet.) (affirming dismissal for want of prosecution pursuant to trial court's inherent power). To determine whether there is an abuse of discretion, the reviewing court must determine whether the trial court acted without reference to any guiding rules or principles. See Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).

ANALYSIS

In his first point of error, Jackson argues the trial court erred in entering a dismissal order without a hearing. A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution pursuant to either Rule 165a or its inherent authority. Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). A failure to provide adequate notice of the court's intent to dismiss for want of prosecution requires reversal. Id. However, where a trial court subsequently grants a hearing on a motion to reinstate, the error may be cured.

In Jimenez, substitute counsel appeared and informed the court that plaintiff was not ready to proceed. 999 S.W.2d at 128. The trial court dismissed the cause for want of prosecution. Id. The parties did not dispute that the trial court failed to provide the plaintiff with notice of the dismissal. Id. The plaintiff filed a verified motion to reinstate and had a hearing on the merits of that motion. Id. Noting that a hearing on a reinstatement motion is the very same hearing with the same burden of proof that a plaintiff should be given before an order of dismissal is signed, we held that the hearing on Jimenez's reinstatement motion satisfied the due process rights applicable to the dismissal of his case. Id. Though Jimenez was not provided with notice of the trial court's intent to dismiss the case for want of prosecution prior to the dismissal hearing, he was nevertheless afforded his due process rights because he received actual notice of the dismissal order in time to file a motion to reinstate, and a hearing was held on that motion. Id.

Similarly, other courts have found that, when the trial court grants essentially the same notice and burden of proof at the hearing on a motion to reinstate, the moving party can establish no harmful error for lack of notice. See Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 402-03 (Tex.App.-Dallas 2001, pet. denied); F.D.I.C. v. Kendrick, 897 S.W.2d 476, 480 (Tex.App. — Amarillo 1995, no writ); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex.App.-Texarkana 1995, writ denied).

In the instant case, Jackson filed a timely and proper motion to reinstate the case. He was afforded the opportunity for a full evidentiary hearing at which he had the same burden of proof that he would have had at a hearing on the order of dismissal. Thus, Jackson cannot establish harm for lack of notice. Accordingly, his first point of error is overruled.

In his second point of error, Jackson contends that the trial court erred in refusing to reinstate the lawsuit where trial counsel's failure to appear for the trial resulted from clerical error and was not conscious, deliberate, or intentional. A trial court may dismiss a case for want of prosecution (1) when a party fails to appear at a hearing or at trial, (2) when the case has not been disposed of within the supreme court's guidelines, and (3) when a case has not been prosecuted with due diligence. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex.App. — Houston [14th Dist.] 1993, no writ). Rule 165a provides that the trial court must 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 accident or mistake. See Tex.R.Civ.P. 165a(3); Weidner v. Sanchez, 14 S.W.3d 353, 362-63 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The party requesting reinstatement has the burden to bring forth a record establishing that reinstatement is required. See Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex.App. — San Antonio 1996, writ denied). The operative standard is essentially the same as that for setting aside a default judgment. See Smith v. Babcock Wilcox Const. Co., 913 S.W.2d 467, 468 (Tex. 1995) (adopting test from Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939), and noting that a "failure to appear is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification"). Proof of accident, mistake, or another reasonable explanation negates the intent or conscious indifference for which reinstatement can be denied. Id. Conscious indifference means more than mere negligence. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966). When all three elements of the Craddock test are met, the trial court abuses its discretion by not granting a new trial. See Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).

Eric C. Hixon, Jackson's trial counsel, swore in his affidavit in support of the motion:

My failure to appear for the trial of this case was not intentional, or the result of conscious indifference. This matter was not docketed on my trial schedule, and I was unaware of the Court's trial setting until I received a Notice of Intent to Dismiss on February 11, 2002. My client, Donald Jackson, is willing to move forward on the trial on this matter. Plaintiff request [sic] the Court to set this matter for trial at the next available date.

Furthermore, at the hearing on the motion, Hixon explained that the motion for reinstatement was premised upon a "clerical error."

The court should reinstate the cause if it finds the failure of the party or counsel to appear has been reasonably explained. Tex.R.Civ.P. 165a(3). Here, the motion for reinstatement states Hixon's failure to appear was not intentional nor was it the result of conscious indifference and that it was due to accident or mistake. The motion was verified by Hixon, who reiterated at the hearing on the motion that the failure to appear was the result of a clerical error. Because Jackson's counsel reasonably explained the failure to appear in this case and because there was no evidence that his failure was intentional or the result of conscious indifference, the trial court abused its discretion when it denied the motion for reinstatement. Jackson's second point of error is sustained.

In his third and final point of error, Jackson contends that the trial court erred in refusing to reinstate the case based on the pendency of another lawsuit between the same parties. In articulating his opposition to the motion to reinstate, Thurahan's counsel stated "there [was] an identical case that was previously in County Court at Law No. 3 in Cause No. 733,698." Thurahan also argued at the hearing on the motion to reinstate, and argues on appeal, that Jackson failed to establish a "meritorious defense."² The pendency of the original suit became the primary basis of Thurahan's opposition to the motion to reinstate and, at least in part, the reason for the trial court's refusal to reinstate the case.³ However, this reason was not mentioned in either the "Motion for Entry/Notice of Intent to Dismiss" or the premature dismissal order signed by the visiting judge.

2 A meritorious defense is not a prerequisite to a successful motion to reinstate. The parties' confusion may stem from the Texas Supreme Court's recent comparison of the standard of review in a motion to reinstate setting to that used in reviewing a motion to set aside a default judgment under Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939). In Smith v. Babcock Wilcox Const. Co., the Texas Supreme Court stated that the operative standard in reviewing a motion to reinstate is " essentially the same as that for setting aside a default judgment" as set forth in Craddock. See 913 S.W.2d 467, 468 (Tex. 1995) (emphasis added). In Craddock, the supreme court found that a default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. 133 S.W.2d at 393. However, in Babcock Wilcox Const. Co., the supreme court discussed only the culpability prong of the Craddock test when analyzing Rule 165a. 913 S.W.2d at 468. Rule 165a does not require that the party seeking to reinstate the case establish a "meritorious" claim or defense, nor do we read Babcock Wilcox Const. Co. as requiring such. Compare Tex.R.Civ.P. 165a with Craddock, 133 S.W.2d at 393.

3 In opposing the motion to reinstate, Thurahan advances the same argument required of a plea in abatement based upon the theory of dominant jurisdiction. As a general rule, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts, and any subsequent suit involving the same parties and the same controversy must be dismissed if a party to the subsequent suit calls the second court's attention to the pendency of the prior suit by a plea in abatement. See Mower v. Boyer, 811 S.W.2d 560, 563 n. 2 (Tex. 1991); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247-48 (Tex. 1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court's attention to the pendency of the prior suit by a plea in abatement. Wyatt, 760 S.W.2d at 247; Curtis, 511 S.W.2d at 267. As Jackson noted at oral argument, a pleading alleging the existence of another suit pending in this State between the same parties involving the same claim must be verified. Tex.R.Civ.P. 93(3). Thurahan did not file such a motion.

We have previously held that a trial court is precluded from dismissing a case for want of prosecution for any reason other than that set forth in the notice of dismissal. 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 543-44 (Tex.App.-Houston [14th Dist.] 2000, no pet.) In 3V, the notice of intent to dismiss warned the parties of the trial court's intent to dismiss the case for want of prosecution because the court believed there had been a "settlement, verdict, or decision dispositive of the case," yet no final order had been filed. Id. Based on information later acquired, the court learned that a settlement or other dispositive event had not occurred, and thus, the trial court could not dismiss the case for failure to file a final order. Id. Although the trial court might have had the authority under its inherent power to dismiss the case for failure to prosecute, we held that it could not do so as the notice did not give the trial court the authority to dismiss for failure to prosecute. Id. Thus constrained by the language of its own notice of intent to dismiss, the trial court could not dismiss for the failure to prosecute because it had not given sufficient notice that the court might dismiss for that reason. Id.

We find 3V sufficiently analogous to the case at bar. Noting that the case would be dismissed for "want of prosecution," the language of the notice of dismissal was broader than that in 3V. However, this language necessarily limits the dismissal to one for want of prosecution — either for the reasons set forth in Rule 165a or under circumstances which traditionally trigger a court's inherent authority to dismiss for want of prosecution. Moreover, the dismissal order by the visiting judge specified the reason for the dismissal of the case was the failure of Jackson's attorney to appear when the case was called to trial, a reason specifically contemplated by Rule 165a. Thus, Jackson was on notice that he need only prove the failure to appear was not intentional or the result of conscious indifference at the reinstatement hearing. See Tex.R.Civ.P. 165a(3); Shook v. Gilmore Tatge Mfg. Co., 951 S.W.2d 294, 297 (Tex.App.-Waco 1997, pet. denied). Because the trial court refused to reinstate the case on grounds other than those provided in the notice of intent to dismiss, we find that the trial court abused its discretion, and we sustain appellant's third point of error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and remanded to the trial court with instructions to reinstate the case.