Armentrout v. Murdock

779 S.W.2d 119, 1989 Tex. App. LEXIS 2553, 1989 WL 119724
CourtCourt of Appeals of Texas
DecidedOctober 12, 1989
Docket01-88-00423-CV
StatusPublished
Cited by10 cases

This text of 779 S.W.2d 119 (Armentrout v. Murdock) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armentrout v. Murdock, 779 S.W.2d 119, 1989 Tex. App. LEXIS 2553, 1989 WL 119724 (Tex. Ct. App. 1989).

Opinion

OPINION

MIRABAL, Justice.

This is an appeal from a dismissal for want of prosecution.

In six points of error, appellant, Joe Maurice Armentrout, contends that the trial court erred in dismissing the case, and in overruling appellant’s motion to reinstate.

The appellate standard of review of a dismissal for want of prosecution or the overruling of a motion to reinstate is whether there has been a clear abuse of discretion by the trial court. Moore v. Armour & Co., 748 S.W.2d 327, 329 (Tex.App. — Amarillo 1988, no writ); Speck v. Ford Motor Co., 709 S.W.2d 273, 276 (Tex. App. — Houston [14th Dist.] 1986, no writ).

The Galveston County local rules of the district courts, as amended effective February 1, 1984, provide for an annual “Drop Docket” as follows:

Rule VI — Drop Docket
a) Civil causes which have been on file over two (2) years, which are not set for trial will be placed on the Drop Docket by the Court in which the cause pends.
b) When a cause has been placed on the Drop Docket the Court will send notice to the last known address of counsel for all parties as shown in the records of said cause, and to the last known address of any party who is unrepresented. A copy of such notice shall be filed with the papers of the cause with notation thereon made by the District Clerk showing the name and address of all counsel or parties to whom notice was mailed and the date of mailing.
*120 e) Unless a written motion to retain said cause has been filed and heard prior to the expiration of thirty (30) days after the mailing by the Court of such notice, such cause shall be dismissed for want of prosecution.
d) A motion to retain a cause will be set for hearing by the Court upon the Mov-ant’s request. Movant shall notify all opposing counsel, and any unrepresented party, of such hearing, giving at least three (3) days notice.
e) An order retaining said cause on the active docket shall, unless good cause be shown for not doing so, set the cause for trial on the merits on a day certain.
f) Any cause dismissed for want of prosecution may be reinstated by complying with the provisions of Rule 165a of the Texas Rules of Civil Procedure.

On May 11, 1984, appellant brought suit to recover damages sustained from a fire at his place of business, which he rented from appellees, John and Joann E. Mur-dock. The parties engaged in pretrial discovery, including the taking of three depositions, and responding to interrogatories, requests for production and requests for admissions. Appellees filed a counterclaim.

In July 1986, counsel for appellant moved their offices, and sometime thereafter they gave notice to the court clerk of their change of address.

On March 2, 1987, the Galveston County district clerk mailed a notice of drop docket to counsel for both parties. On March 9, 1987, appellant filed a motion to retain, and a trial setting request for the week of May 11, 1987. On April 8, 1987, after a hearing, the trial court retained the case.

On April 29, 1987, appellant filed a second trial setting request, designating the week of June 15, Í987. The court’s docket sheet states that appellant failed to make an announcement at the docket call on May 15, 1987, prompting the court to remove the case from the active docket for four months, as authorized by the local rules.

On August 5, 1987, appellant filed a third trial setting request, designating the week of October 5, 1987. The court’s docket sheet states that no announcement was made at docket call on September 18, 1987.

On December 11, 1987, appellant filed a fourth trial setting request, designating the week of March 14, 1988. The court’s docket sheet states that appellant failed to make an announcement at docket call on February 12, 1988, again prompting the court to remove the case from the active docket for the next four months. On February 15, 1988, appellees filed a motion for summary judgment. On February 16, 1988, appellant filed a motion to retain and reinstate the case on the active trial docket. On February 17, 1988, the trial court reinstated the case on the active trial docket. The court’s notation on the docket sheet states that the case was reinstated by agreement. On February 18, 1988, appellant filed a fifth trial setting request for the week of May 16, 1988.

On February 22, 1988, the Galveston County district clerk mailed to counsel for each of the parties a notice that the case had been placed on the annual drop docket. On February 25, 1988, appellant filed his motion to retain, stating that the parties had agreed to the May 16, 1988 trial setting, and requesting a preferential trial setting for May 16, 1988. On March 18, 1988, appellant filed his response to appellees’ motion for summary judgment, and a first amended petition.

On March 29, 1988, upon appellant’s failure to appear at the hearing on his motion to retain, the trial court dismissed the case for want of prosecution. On April 15, 1988, appellant filed a motion to reinstate. On May 2, 1988, after a hearing, the trial court denied appellant’s motion to reinstate. Appellant perfected this appeal.

In his first point of error, appellant contends that the trial court’s dismissal of the case for want of prosecution violated Tex. R.Civ.P. 165a.

In his fifth point of error, appellant asserts that the trial court abused its discretion by dismissing the case when appellant had announced ready, requested a final setting and stood ready to go to trial.

*121 Rule 165a(l) provides that the trial court may dismiss a case 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.” Appellant points out that Rule 165a was amended effective January 1, 1976 to delete the words “or docket call” after the word “trial.” Appellant relies on Degen v. General Coatings, Inc., 705 S.W.2d 734, 735 (Tex.App. — Houston [14th Dist.] 1986, no writ), where the court, after discussing the 1976 amendment to Rule 165a, held that a suit cannot be dismissed for failure to appear at a docket call.

Appellees argue that the trial court did not dismiss the case solely because appellant failed to appear at the three docket calls, but also because appellant failed to appear at the hearing on his motion to retain on March 29, 1988, even though appellant had proper notice of the hearing.

A trial court has the authority to dismiss a case for want of prosecution pursuant to its inherent powers, as well as under Rule 165a. Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976).

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Cite This Page — Counsel Stack

Bluebook (online)
779 S.W.2d 119, 1989 Tex. App. LEXIS 2553, 1989 WL 119724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armentrout-v-murdock-texapp-1989.