In Re Marriage of Seals

83 S.W.3d 870, 2002 Tex. App. LEXIS 5215, 2002 WL 1677487
CourtCourt of Appeals of Texas
DecidedJuly 25, 2002
Docket06-01-00167-CV
StatusPublished
Cited by24 cases

This text of 83 S.W.3d 870 (In Re Marriage of Seals) 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
In Re Marriage of Seals, 83 S.W.3d 870, 2002 Tex. App. LEXIS 5215, 2002 WL 1677487 (Tex. Ct. App. 2002).

Opinions

OPINION

Opinion by Justice ROSS.

Joseph Noel Seals appeals the order dismissing his petition for divorce from his wife, Jacklyn Seals. Jacklyn filed no brief and does not contest the dismissal of her counterclaim. Joseph contends the trial court abused its discretion and denied him due process of law by dismissing his case for want of prosecution.

Joseph, a federal prisoner, filed an original petition for divorce pro se on July 13, 2000, on the grounds that the couple had ceased living together in 1983 and the marriage had become insupportable. His petition stated that there were no children born or adopted of the marriage and that “there is no division of the estates or valuable property in this suit.” He requested the court to compel his wife to change her name. Six days after Joseph filed his original petition, he filed a letter with the court advising of his incarceration and inability to appear in person, but stating, “If it is extremely required you shall then contact the institution’s Warden here at FCI Texarkana,.... ” Joseph further stated, “Consequently, due to the aforementioned, the Decree of Divorce shall be issued in absentia.” On July 31, 2000, Jacklyn filed her original answer, in which she entered a general denial and a counterclaim for divorce, and requested the court to make an equitable division of the parties’ estate.

Almost a year later, June 29, 2001, Joseph filed another letter with the court. In this letter, he specifically requested his case be expedited and again advised the court of his inability to attend any hearings regarding his divorce unless the court “request this institution’s Warden to transfer me to your Court or county.” Less than four months later, on October 23, the [873]*873court clerk issued a notice to both Jacklyn, through her counsel, and to Joseph of the court’s intent to dismiss the case for want of prosecution pursuant to Rule 165a. The notice stated the dismissal hearing was set for November 5, 2001. On the date of the dismissal hearing, Joseph filed a document entitled “Waiver of Citation,” agreeing “that the cause may be taken up and considered by the Court without further notice to me,” and again notifying the court he was incarcerated and stating the petition for divorce should be granted in ab-sentia. The court dismissed his case for want of prosecution the next day.

Joseph contends the trial court abused its discretion when it dismissed his divorce case under Rule 165a. Rule 165a provides that a judge may dismiss a case for want of prosecution when any party seeking affirmative relief fails 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 under its Administrative Rules unless, at a dismissal hearing about which the parties are provided adequate notice, good cause is shown for the case to be maintained on the docket. Tex.R. Crv. P. 165a(l), (2).

A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority. See Tex.R. Civ. P. 165a(l) (“Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record,.... ”); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex.1991); Gutierrez v. Lone Star Nat’l Bank, 960 S.W.2d 211, 214 (Tex.App.-Corpus Christi 1997, pet. denied) (requiring notice for dismissals under Rule 165a); see also Callahan v. Staples, 139 Tex. 8,161 S.W.2d 489, 491 (Tex.1942) (requiring notice for dismissals under the court’s inherent power). The failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal. See Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 (Tex.App.-Houston [1st Dist.] 1996, writ denied); Davis v. Laredo Diesel, Inc., 611 S.W.2d 943, 946 — 47 (Tex.Civ.App.-Waco 1981, writ ref d n.r.e.). Dismissal may only be granted on the basis stated in the notice of dismissal. Villarreal, 994 S.W.2d at 632.

The notice of dismissal in this case specifically stated:

Pursuant to Rule 165a, T.R.C.P., the court has set the above case for a dismissal hearing:
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The court will dismiss the case for want of prosecution at his [sic] time unless an attorney or pro se party appears in person and shows good cause for maintaining the case on the docket.

Under Rule 165a, the trial court may dismiss the case for two reasons: the failure of a party to appear at a hearing or trial, or for noncompliance with time standards. Because the trial court did not specify under which section it dismissed the case, we will review the dismissal under both. And because the dismissal order does not specify the reason for dismissal, it will be affirmed on appeal if any proper ground supports the dismissal. Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex.App.-Waco 1997, pet. denied).

The standard of review for dismissal for want of prosecution is abuse of discretion. See Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex.App.-Houston [1st Dist.] 1996, no writ). The test for abuse of [874]*874discretion is whether the trial court acted without reference to any guiding rules or principles or, equivalently, whether, under all the circumstances of the particular case, the trial court’s action was arbitrary or unreasonable. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990). The trial court may consider the entire history of the case, including: 1) the length of time the case was on file; 2) the extent of activity in the case; 3) whether a trial setting was requested; and 4) the existence of reasonable excuse for the delay. Cf. King v. Holland, 884 S.W.2d 231, 237 (Tex.App.-Corpus Christi 1994, writ denied); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ).

At the time the notice of the court’s intent to dismiss was sent, no hearing had been set in the case, so Joseph had never failed to appear. Joseph did not appear at the hearing, but after the notice was sent, he filed a ‘Waiver of Citation,” in which he reminded the court of his incarceration and again requested the trial court to grant the divorce in absentia.

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Bluebook (online)
83 S.W.3d 870, 2002 Tex. App. LEXIS 5215, 2002 WL 1677487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-seals-texapp-2002.