Opinion
No. 05-05-00936-CV
Opinion Filed November 30, 2005.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV98-03789-E.
Affirm.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Bernard J. Dolenz, Trustee, appeals the trial court's order of dismissal for want of prosecution. In his sole issue, Dolenz asserts that the trial court erred in denying his motion to reinstate his case because he had no notice of the hearing to dismiss for want of prosecution. The facts are known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm the trial court's judgment.
Dolenz sued appellees to recover on theories of breach of contract, negligence, fraud, and violations of the Texas Deceptive Trade Practices Act. In January 2000, the trial court entered a take-nothing judgment for appellees after Dolenz failed to appear for trial. In March 2001, this Court reversed and remanded Dolenz's claims to the trial court for further proceedings. See Dolenz v. Corpus Christi Int'l School of Sailing, Inc., No. 05-00-00692-CV (Tex.App.-Dallas March 16, 2001, no pet.) (not designated for publication). After the remand, the record reveals Dolenz filed an October 2002 motion to stay, but took no action on the merits of the case. In February 2005, the trial court dismissed the case for want of prosecution. On March 15, 2005, Dolenz filed a motion to reinstate asserting he had received no notice of the trial court's intent to dismiss. Dolenz attended the trial court's May 10, 2005 hearing on the motion to reinstate. Although Dolenz filed a reporter's record, it is not a record of the hearing on the motion to reinstate. The record before us shows that Dolenz did not ask to make a record of the hearing until after the trial court signed the order denying the motion to reinstate.
In his sole issue, Dolenz argues the trial court abused its discretion in denying his motion to reinstate because he did not have notice of the hearing on the trial court's intent to dismiss his case for want of prosecution. He asserts that his due process rights under the 14th Amendment to the Constitution and Article 1, Section 19 of the Texas Constitution were violated. We disagree.
First, 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 Property Co., 999 S.W.2d 125, 129 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Absent any record of what evidence the trial court considered, an appellate court may presume the trial court passed on all necessary facts to support an order overruling a motion to reinstate a case dismissed for want of prosecution. City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ). We conclude that Dolenz has not shown an abuse of discretion by the trial court.
Additionally, even if appellant was not given notice of the hearing on the dismissal for want of prosecution, he was afforded due process rights because he received actual notice of the dismissal order in time to file a motion to reinstate. Texas Sting, Ltd. v. R.B. Foods, Inc. 82 S.W3d 644, 648-49 (Tex.App.-San Antonio 2002, pet. denied) (stating that even when plaintiff had not received notice of dismissal hearing, due process was satisfied because a post-hearing dismissal hearing was held); Jimenez, 999 S.W.2d at 128-29 (holding that although plaintiff was not provided notice of intent to dismiss, due process rights were satisfied because of hearing on timely motion to reinstate). As the supreme court noted in State v. Rotello, the parties bear the same burdens of proof at a hearing on a motion to reinstate as they have at the hearing regarding a dismissal of the case for want of prosecution. See 671 S.W.2d 507, 508 (Tex. 1984). We conclude that Dolenz's due process rights have been satisfied by the hearing on his motion to reinstate.
We resolve his sole issue against him and affirm the trial court's order of dismissal for want of prosecution.