Opinion
No. 05-16-00738-CV
04-06-2017
ROBERTO RAMIREZ, Appellant v. CRISTA LYNN ANDRESEN, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-11797
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
This case involves the trial court's failure to conduct a hearing on a motion to reinstate after a rule 165 dismissal for want of prosecution. Appellant argues, and appellee agrees, that the trial court abused its discretion by not conducting a hearing. We reverse the trial court's dismissal order and remand for further proceedings consistent with this opinion.
The underlying case was filed in October 2014, and the first trial setting was in August 2015. The court moved the setting to November after a joint motion for continuance. Both parties announced ready for trial, but the case was not reached, and was reset to March 2016. Both parties announced ready for trial in March, but were not reached. Two days later, the court dismissed the case for want of prosecution.
Appellant filed a verified, unopposed motion to reinstate on April 22, 2106. The motion was set for hearing on July 8, 2016. But there was a sniper ambush in downtown Dallas, and the courthouse was closed that day. The hearing could not be rescheduled before the court's plenary power expired on August 5.
We take judicial notice of the fact that the courthouse was closed. See TEX. R. EVID. 201; see also Sanders v. Construction Equity, Inc., 42 S.W.3d 364, 368 (Tex. App.—Beaumont 2001, pet. denied) (taking judicial notice of holiday when courthouse was closed).
A trial court may dismiss a case based on "the failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice," or when a case is "not disposed of within the time standards promulgated by the Supreme Court." TEX. R. CIV. P. 165A(1),(2). We review a dismissal for want of prosecution for an abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).
A verified motion to reinstate must be filed thirty days after a dismissal is signed, and the rules provide that "the judge . . . shall set a hearing on the motion as soon as practicable." TEX. R. CIV. P. 165a (3). The court has no discretion to fail to hold a hearing, and a reversal and remand to conduct that hearing is required. See Reed v. City of Dallas, 774 S.W.2d 384, 385 (Tex. App.—Dallas 1989, writ denied) (court's duty is clear and the rule is mandatory).
Appellant's verified motion was timely filed. Notwithstanding the emergency that prevented the hearing on the scheduled date, the court was still required to hear the motion before its plenary power expired. The court's failure to do so is an abuse of discretion and requires reversal. Id.
We therefore reverse the judgement of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 160738F.P05
JUDGMENT
On Appeal from the 298th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-11797.
Opinion delivered by Justice Whitehill. Justices Francis and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that Appellant Roberto Ramirez bear the costs of this appeal. Judgment entered April 6, 2017.