Opinion
No. 05-07-01758-CV
Opinion Filed July 1, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-07-02769-A.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MOSELEY.
OPINION
In this appeal, Resurgence Financial, L.L.C. challenges the trial court's dismissal of its lawsuit against Walter S. Foster and Pam Foster for want of prosecution. Among Resurgence's arguments in its single issue is that the trial court's failure to hold a hearing on its verified motion to reinstate violated Texas Rule of Civil Procedure 165a and due process. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. Because the trial court did not conduct a hearing on Resurgence's verified motion to reinstate, we reverse the judgment of dismissal and remand this case to the trial court for further proceedings.
The dismissal shows the plaintiff as "Resurgence Financial Inc." However, the original petition and the notice of appeal show the party as "Resurgence Financial, L.L.C."
In February 2007, Resurgence sued the Fosters over a credit card account they had established with Citibank (South Dakota); Resurgence alleged it was now the owner and holder of the account. Resurgence requested a judgment for the account balance, plus interest and attorney's fees. By letter dated one week after suit was filed, the trial court advised Resurgence that, pursuant to rule of civil procedure 165a, the case was set for dismissal on June 29, 2007, and that if no answer had been filed, or if the answer filed was insufficient as a matter of law to place any of the alleged facts at issue, it was expected to have moved for and have heard a summary judgment or have proved up a default judgment on or before that date.
Resurgence had difficulty in serving the Fosters and filed several motions for substituted service supported by affidavits. After the first set of motions for substituted service, the trial court advised Resurgence, by letter dated June 29, 2007, that a non-jury trial was scheduled for July 6, 2007, and instructed Resurgence to cross-serve the notice on adverse parties. The court's letter was not received until August 9, 2007. Resurgence's counsel contacted the court and was notified that the case in fact had not been dismissed and that there was no setting in the case.
On October 23, 2007, Resurgence filed another motion for substituted service, also supported by affidavit. On October 26, 2007, the trial court returned a motion for substituted service to Resurgence, via an unsigned letter noting that the supporting affidavit failed to establish sufficient attempts to serve defendant in the most recent three months. On the same day, the trial court dismissed Resurgence's suit for want of prosecution, noting it failed to take action after notice of intent to dismiss for want of prosecution in accordance with the rule 165a letter.
Resurgence states in its brief that it filed two "sets of motions for substituted service." Only one such motion file-stamped June 5 and one file-stamped October 23 appear in the record on appeal, although the trial court's docket sheet notes as follows: "6-5-07 mot subst ser (2)" and "10/23/07 motion subst. service." Also, in its motion for reinstatement, Resurgence states it filed motions for substituted service for the second time on October 10, 2007. Its brief acknowledges that these motions were not file stamped until October 23. We note these discrepancies between the brief and the record, although they are not material to this appeal.
It is not clear which motion was returned.
On November 21, 2007, Resurgence filed a verified motion to reinstate. The motion recounts the history of the suit, including Resurgence's efforts to obtain service and to obtain an order allowing substituted service. In the prayer, Resurgence "now moves the Court to set this case for hearing on this Motion to Reinstate, and that upon such hearing this cause of action be reinstated on the Court's docket and the motions for substituted service be granted." The motion includes a certificate of service that it had been sent to the defendants.
Nothing in the record shows the trial court heard the motion, and it was overruled by operation of law. However, the trial court's docket sheet contains the hand-written notation "11-21-07 Pltf Mot to Reinstate."
In pertinent part, rule 165a, regarding dismissal for want of prosecution, provides:
3. Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. . . .
Tex. R. Civ. P. 165a(3) (emphasis added). The supreme court has held that when a verified motion to reinstate has been filed under rule 165a(3), an oral hearing is required, and a failure to hold such a hearing requires reversal. See Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). See Reed v. City of Dallas, 774 S.W.2d 384, 385 (Tex.App.-Dallas 1989, writ denied); NASA 1 Bus. Ctr. v. Am. Nat'l Ins. Co., 747 S.W.2d 36, 38-39 (Tex.App.-Houston [14th Dist.]), writ denied sub nom Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152 (Tex. 1988) (per curiam); Bush v. Ward, 747 S.W.2d 43, 45 (Tex.App.-Beaumont 1988, no writ). See also 5 Roy W. McDonald Elaine G. Carlson, Texas Civil Practice § 28:37 (2d ed. 1999) ("The hearing is mandatory and the failure to conduct such a hearing is an abuse of discretion."). Further, unlike Weir v. Baraki, No. 05-07-00223-CV, 2008 WL 588917, at *1 (Tex.App.-Dallas Mar. 5, 2008, no pet.) (mem. op.), the notation on the court's docket sheet clearly indicates the trial court was aware of the motion to reinstate.
Under the circumstances of this case and authorities cited above, we conclude the trial court's failure to comply with rule 165a(3) is erroneous and requires reversal. See, e.g., Thordson, 815 S.W.2d 550; Reed, 747 S.W.2d at 385. To this extent, we resolve Resurgence's first issue in its favor.
Because of our disposition of this argument, we need not address Resurgence's other arguments. We reverse the trial court's judgment of dismissal and remand the case to the trial court to conduct a hearing on Resurgence's motion to reinstate.