In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00136-CV _________________
AUTUMN BONIFAZI, Appellant
V.
GARY MICHAEL BIRCH, Appellee ________________________________________________________________________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 10-03-02210-CV ________________________________________________________________________
MEMORANDUM OPINION
This appeal is from the trial court’s dismissal for want of prosecution of a
petition to modify the parent-child relationship filed by Autumn Bonifazi. In two
issues, Bonifazi contends the trial court erred in denying her motion to reinstate the
case and in denying her motion without an oral hearing. We reverse the trial
court’s order of dismissal.
1 Background
On December 9, 2013, the trial court dismissed Bonifazi’s modification for
want of prosecution. The court’s order stated, “Autumn Bonifazi and her attorney
failed to appear and also failed to submit a proposed final order.” The trial court’s
docket sheet shows that on December 2, 2013, the court noted that counsel for
Birch appeared for entry of enforcement order, but counsel for Bonifazi did not
appear. A notation on the docket sheet further indicates that on that same day, the
court “advised that case on modification is set for entry or DWOP on 12-9-
13[.]”There is no indication in the record that Bonifazi or her counsel was given
notice of the December 9, 2013 setting or that her case might be dismissed. The
court’s docket sheet indicates that on December 9, 2013, counsel for Birch
appeared, but that neither Bonifazi nor her counsel was present at the hearing.
On January 7, 2014, Bonifazi filed a verified motion to reinstate her case on
the court’s docket.1 In the motion, Bonifazi’s attorney swore that he did not receive
notice that the case had been set for entry or DWOP on December 9, 2013, and that
is why he failed to appear. He averred that his failure to appear was not intentional
or the result of conscious indifference. Bonifazi’s attorney requested the court to
reinstate Bonifazi’s case. He also filed a request for an oral hearing on the motion 1 Bonifazi’s motion to reinstate was timely filed within thirty days of the date the trial court ordered the case dismissed. See Tex. R. Civ. P. 165a(3). 2 to reinstate at the “[c]ourt’s earliest convenience.” Birch did not file a response to
Bonifazi’s motion to reinstate. Bonifazi’s motion for reinstatement was overruled
by operation of law. 2 Bonifazi filed her notice of appeal.
Standard of Review
We review a trial court’s judgment dismissing a case for want of prosecution
and a court’s ruling on a motion to reinstate under an abuse of discretion standard.
See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); Smith v.
Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam);
Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no
pet.); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—
Dallas 2001, pet. denied) (per curiam). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or when it acts without reference to
any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985).
Dismissal for Want of Prosecution and Reinstatement
A trial court’s authority to dismiss a suit for want of prosecution arises from
Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power.
2 In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, the motion shall be deemed overruled by operation of law. See Tex. R. Civ. P. 165a(3). 3 Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex.
R. Civ. P. 165a. According to Rule 165a, the trial court may dismiss a case for
want of prosecution on the “failure of any party seeking affirmative relief to appear
for any hearing or trial of which the party had notice” or when the case is not
disposed of within the time standards promulgated by the Texas Supreme Court.
Tex. R. Civ. P. 165a(1), (2). Further, the common law grants a trial court “the
inherent power to dismiss independently of the rules of procedure when a plaintiff
fails to prosecute his or her case with due diligence.” Villarreal, 994 S.W.2d at
630; see Tex. R. Civ. P. 165a(4). A trial court is required to notify the parties of its
intention to dismiss a case and give the parties an opportunity to be heard before
dismissing a case for want of prosecution. See Villarreal, 994 S.W.2d at 630; Tex.
R. Civ. P. 165a(1). The only evidence in the record indicates that Bonifazi did not
receive the notice contemplated by Rule 165a(1). See Tex. R. Civ. P. 165a(1).
There is also no evidence that the clerk of the court sent Bonifazi notice of the
dismissal hearing.
Once a trial court dismisses a case for want of prosecution, Rule 165a
provides the procedures and standards for reinstatement that the trial court must
employ whether the dismissal was rule-based or based on the trial court’s inherent
powers. See Tex. R. Civ. P. 165a(3), (4); see also Brown Mech. Servs., Inc. v.
4 Mountbatten Sur. Co., 377 S.W.3d 40, 44 n. 1 (Tex. App.—Houston [1st Dist.]
2012, no pet.); Capetta, 222 S.W.3d at 165-66. Upon receiving a timely-filed,
properly verified motion to reinstate the case, the trial court “shall set a hearing on
the motion as soon as practicable” and “shall notify all parties or their attorneys of
record of the date, time and place of the hearing.” Tex. R. Civ. P. 165a(3). The
Texas Supreme Court has explained that it is not within the discretion of the trial
court to fail to hold a hearing on a timely-filed, properly verified motion to
reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per
curiam); see Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.—Fort Worth 2004,
no pet.). Here, it is undisputed that Bonifazi filed a timely, properly verified
motion to reinstate and properly requested an oral hearing on the motion. The
record demonstrates that the trial court did not conduct an oral hearing on
Bonifazi’s motion to reinstate. 3 Based on the record before us, we conclude the
trial court failed to hold an oral hearing on Bonifazi’s motion to reinstate her case
3 There is a computer printout in the clerk’s record that appears to be from the court’s case management system. On the printout, there is a comment dated February 6, 2014, which seems to suggest that Bonifazi’s counsel passed the hearing on the motion to reinstate.
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00136-CV _________________
AUTUMN BONIFAZI, Appellant
V.
GARY MICHAEL BIRCH, Appellee ________________________________________________________________________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 10-03-02210-CV ________________________________________________________________________
MEMORANDUM OPINION
This appeal is from the trial court’s dismissal for want of prosecution of a
petition to modify the parent-child relationship filed by Autumn Bonifazi. In two
issues, Bonifazi contends the trial court erred in denying her motion to reinstate the
case and in denying her motion without an oral hearing. We reverse the trial
court’s order of dismissal.
1 Background
On December 9, 2013, the trial court dismissed Bonifazi’s modification for
want of prosecution. The court’s order stated, “Autumn Bonifazi and her attorney
failed to appear and also failed to submit a proposed final order.” The trial court’s
docket sheet shows that on December 2, 2013, the court noted that counsel for
Birch appeared for entry of enforcement order, but counsel for Bonifazi did not
appear. A notation on the docket sheet further indicates that on that same day, the
court “advised that case on modification is set for entry or DWOP on 12-9-
13[.]”There is no indication in the record that Bonifazi or her counsel was given
notice of the December 9, 2013 setting or that her case might be dismissed. The
court’s docket sheet indicates that on December 9, 2013, counsel for Birch
appeared, but that neither Bonifazi nor her counsel was present at the hearing.
On January 7, 2014, Bonifazi filed a verified motion to reinstate her case on
the court’s docket.1 In the motion, Bonifazi’s attorney swore that he did not receive
notice that the case had been set for entry or DWOP on December 9, 2013, and that
is why he failed to appear. He averred that his failure to appear was not intentional
or the result of conscious indifference. Bonifazi’s attorney requested the court to
reinstate Bonifazi’s case. He also filed a request for an oral hearing on the motion 1 Bonifazi’s motion to reinstate was timely filed within thirty days of the date the trial court ordered the case dismissed. See Tex. R. Civ. P. 165a(3). 2 to reinstate at the “[c]ourt’s earliest convenience.” Birch did not file a response to
Bonifazi’s motion to reinstate. Bonifazi’s motion for reinstatement was overruled
by operation of law. 2 Bonifazi filed her notice of appeal.
Standard of Review
We review a trial court’s judgment dismissing a case for want of prosecution
and a court’s ruling on a motion to reinstate under an abuse of discretion standard.
See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); Smith v.
Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam);
Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no
pet.); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—
Dallas 2001, pet. denied) (per curiam). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or when it acts without reference to
any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985).
Dismissal for Want of Prosecution and Reinstatement
A trial court’s authority to dismiss a suit for want of prosecution arises from
Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power.
2 In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, the motion shall be deemed overruled by operation of law. See Tex. R. Civ. P. 165a(3). 3 Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex.
R. Civ. P. 165a. According to Rule 165a, the trial court may dismiss a case for
want of prosecution on the “failure of any party seeking affirmative relief to appear
for any hearing or trial of which the party had notice” or when the case is not
disposed of within the time standards promulgated by the Texas Supreme Court.
Tex. R. Civ. P. 165a(1), (2). Further, the common law grants a trial court “the
inherent power to dismiss independently of the rules of procedure when a plaintiff
fails to prosecute his or her case with due diligence.” Villarreal, 994 S.W.2d at
630; see Tex. R. Civ. P. 165a(4). A trial court is required to notify the parties of its
intention to dismiss a case and give the parties an opportunity to be heard before
dismissing a case for want of prosecution. See Villarreal, 994 S.W.2d at 630; Tex.
R. Civ. P. 165a(1). The only evidence in the record indicates that Bonifazi did not
receive the notice contemplated by Rule 165a(1). See Tex. R. Civ. P. 165a(1).
There is also no evidence that the clerk of the court sent Bonifazi notice of the
dismissal hearing.
Once a trial court dismisses a case for want of prosecution, Rule 165a
provides the procedures and standards for reinstatement that the trial court must
employ whether the dismissal was rule-based or based on the trial court’s inherent
powers. See Tex. R. Civ. P. 165a(3), (4); see also Brown Mech. Servs., Inc. v.
4 Mountbatten Sur. Co., 377 S.W.3d 40, 44 n. 1 (Tex. App.—Houston [1st Dist.]
2012, no pet.); Capetta, 222 S.W.3d at 165-66. Upon receiving a timely-filed,
properly verified motion to reinstate the case, the trial court “shall set a hearing on
the motion as soon as practicable” and “shall notify all parties or their attorneys of
record of the date, time and place of the hearing.” Tex. R. Civ. P. 165a(3). The
Texas Supreme Court has explained that it is not within the discretion of the trial
court to fail to hold a hearing on a timely-filed, properly verified motion to
reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per
curiam); see Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.—Fort Worth 2004,
no pet.). Here, it is undisputed that Bonifazi filed a timely, properly verified
motion to reinstate and properly requested an oral hearing on the motion. The
record demonstrates that the trial court did not conduct an oral hearing on
Bonifazi’s motion to reinstate. 3 Based on the record before us, we conclude the
trial court failed to hold an oral hearing on Bonifazi’s motion to reinstate her case
3 There is a computer printout in the clerk’s record that appears to be from the court’s case management system. On the printout, there is a comment dated February 6, 2014, which seems to suggest that Bonifazi’s counsel passed the hearing on the motion to reinstate. We note that Birch does not contend that Bonifazi waived the hearing on her motion to reinstate. The reference in the record is itself unclear, and there is no indication from whom the comment originated, why it was made, or what precisely is meant by the comment. This reference alone is insufficient to show that Bonifazi affirmatively waived her right to an oral hearing on her motion to reinstate her case. 5 and, therefore, abused its discretion. See Thordson, 815 S.W.2d at 550; see also
Smith, 145 S.W.3d at 305-06.
In this case, Bonifazi did not receive notice of the dismissal hearing before
the court dismissed her case, and she did not receive an oral hearing on her motion
to reinstate despite her request for one. Thus, Bonifazi had no opportunity to be
heard on the merits of the trial court’s dismissal of her case.
While some courts have indicated that due process concerns over what suffices for sufficient notice are satisfied by providing a party with the order of dismissal and then subsequently giving the party an opportunity to address the merits of the dismissal at a hearing, no comparable opportunity to be heard occurred here.
Durbin v. Muchow, 309 S.W.3d 758, 761 (Tex. App.—Beaumont 2010, no pet.).
Because Bonifazi did not receive notice of the trial court’s intent to dismiss before
the trial court dismissed her case, we reverse the trial court’s order of dismissal and
remand the case to the trial court with instructions to reinstate the case. See
Villarreal, 994 S.W.2d at 630 (“The failure to provide adequate notice of the trial
court’s intent to dismiss for want of prosecution requires reversal.”); see also
Sangster v. Walker, No. 09-14-00199-CV, 2015 WL 5042142, at *2 (Tex. App.—
Beaumont Aug. 27, 2015, no pet.) (mem. op.); Durbin, 309 S.W.3d at 761-62.
6 REVERSED AND REMANDED.
______________________________ CHARLES KREGER Justice
Submitted on December 8, 2014 Opinion Delivered December 10, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.