ACCEPTED 08-18-00018-CV EIGHTH COURT OF APPEALS 08-18-00018-CV EL PASO, TEXAS 5/25/2018 10:32 AM DENISE PACHECO CLERK
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS FILED IN 8th COURT OF APPEALS ____________________________________________________ EL PASO, TEXAS 5/25/2018 10:32:37 AM NO. 08-18-00018-CV DENISE PACHECO Clerk _____________________________________________________
ROSA MARIA ARZATE,
Appellant,
vs.
MATTHEW MANUEL ANDUJO and JUAN MIGUEL TORRES,
Appellees. ________________________________________________
BRIEF OF APPELLANT _________________________________________________
Scherr & Legate, PLLC 109 N. Oregon 12th Floor El Paso, Texas 79901 Telephone: (915) 544-0100 Fax: (915) 532-1759
Jeffrey B. Pownell Texas Bar No. 16222900 jpownell@scherrlegate.com Counsel for Appellant Rosa Maria Arzate
ORAL ARGUMENT WAIVED IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties, attorneys, and any other person
who has any interest in the outcome of this lawsuit:
The Honorable Louis Aguilar, Trial Judge Presiding 243rd Judicial District Court El Paso County Courthouse 500 E. San Antonio, Room 901 El Paso, Texas 79901 (915) 546-2168 – phone (915) 546-8107 – fax
Rosa Maria Arzate, Plaintiff/Appellant Jeffrey B. Pownell Scherr & Legate, PLLC 109 North Oregon, 12th Floor El Paso, Texas 79901 (915) 544-0100 – phone (915) 532-1759 – fax jpownell@scherrlegate.com
Matthew Manuel Andujo, Defendant/Appellee 301 Montestruc APT #1 El Paso, Texas 79901 and 1440 Goodyear El Paso, Texas 79936
Juan Miguel Torres, Defendant/Appellee 301 Montestruc APT #1 El Paso, Texas 79901 and 4302 Alameda El Paso, Texas 79905
ii TABLE OF CONTENTS
Identity of Parties and Counsel..................................................................... ii
Table of Contents......................................................................................... iii
Index of Authorities...................................................................................... iv
Statement of the Case................................................................................... 1
Issues Presented........................................................................................... 1
Statement of Facts........................................................................................ 1
Summary of the Argument............................................................................ 9
Argument and Authority................................................................................ 10
A. Standard of review and applicable law....................................... 10
B. The trial court erred in dismissing the case.................................. 12
1. No failure to comply with Rule 165a(1) or (2)................... 12
2. No notice based on the trial court’s inherent power to dismiss for failure to diligently prosecute the case (which would be an abuse of discretion in any case)........... 12
C. The trial court also erred in failing to reinstate the case.................15
Conclusion and Prayer..................................................................................... 18
Certificate of Compliance and Service............................................................ 20
Appendix ...................................................................................................... App Dismissal Order for Want of Prosecution (CR 290) Notice of Dismissal Hearing Under Rule 165a (CR 49)
iii INDEX OF AUTHORITIES Cases: Page
Brim Laundry Mach. Co. v. Washex Mach. Corp., 854 S.W.2d 297 (Tex. App. – Fort Worth 1993, writ denied)................ 11
Goff v. Branch, 821 S.W.2d 732 (Tex. App. – San Antonio 1991, writ denied)......................................... 11
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125 (Tex. App. – Houston [14th Dist.] 1993, no writ)......... 11
Johnson-Snodgrrass v. KTAO, Inc., 75 S.W.3d 84 (Tex. App. – Forth Worth 2002, pet. dism’d).......... ........ 10-14
Lopez v. Harding, 68 S.W.3d 78 (Tex. App. – Dallas 2001, no pet.)........................................................... 10
MacGregor v. Rich, 941 S.W.2d 74 (Tex. 1997)......................................... 10
Maida v. Fire Ins. Exch., 990 S.W.2d 836 (Tex. App. – Forth Worth 1999, no pet.).....................................10-11,14-15,18
Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294 (Tex. App. – Waco 1997, writ denied)........................... 12
Smith v. Babcock & Wilcox Const. Co.,913 S.W. 2d 467 (Tex. 1995)........... 12
Tex. Mut. Ins. v. Olivas, 323 S.W.3d 266 (Tex. App. – El Paso 2010, no pet.)......................................................... 14
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999).................................................................... 11
Statutes and Rules:
Tex. R. Civ. P. 165a.................................................................................... passim
iv STATEMENT OF THE CASE
This is an appeal from the trial court’s order of dismissal for want of
prosecution signed November 9, 2017, in the matter below styled Rosa Maria
Arzate v. Matthew Manuel Andujo, Juan Miguel Torres, and C.R.A.W. Oyster Bar
& Lounge, LLC a/k/a CRAW Oyster Bar & Lounge, LLC d/b/a CRAW Oyster Bar
& Lounge, No. 2017-DCV0567, in the 243rd Judicial District Court, Louis Aguilar,
judge presiding.1 (CR 290) (dismissal order). On February 7, 2018, Appellant Rosa
Maria Arzate (“Arzate” or “Plaintiff”) filed her notice of appeal. (CR 428-564).
ISSUES PRESENTED
The trial court erred when it dismissed the case for want of prosecution.
The trial court erred when it failed to reinstate the case.
STATEMENT OF FACTS
On February 17, 2017, Plaintiff filed her Original Petition for personal injuries
against Defendants MATTHEW MANUEL ANDUJO and JUAN MIGUEL
1 Defendant CRAW Oyster Bar & Lounge, LLC (“CRAW Oyster Bar”) was added as a defendant in Plaintiff’s First Amended Petition filed October 7, 2017, and had not been served or otherwise made an appearance at the time of the trial court’s order of dismissal signed November 9, 2017. However, Appellant has since entered into an Agreed Judgment with Defendant CRAW Oyster Bar in a re-filed suit, so appellant does not intend to seek any appellate relief in this appeal as to the trial court’s dismissal of her claims against CRAW Oyster Bar. Nevertheless, for purposes of this appeal, the trial court’s dismissal of Plaintiff’s claims against CRAW Oyster Bar for want of prosecution – slightly more than a month after Plaintiff brought her claims against it – remains relevant to the issues presented in this appeal of whether the trial court erred in dismissing the case for want of prosecution and in failing to reinstate the case.
1 TORRES, arising out of an incident that occurred on or about February 17, 2016, in
El Paso County, Texas. (CR 11-15). Among other things, Plaintiff alleged in her
petition that at such time and place, Plaintiff was traveling eastbound on 1-10 west
at approximately 12:10 a.m. when Defendant MATTHEW MANUEL ANDUJO,
who was intoxicated, entered the freeway from the 1-10 East Airway off ramp while
driving a vehicle owned by Defendant JUAN MIGUEL TORRES with his
permission, and thereafter drove into 1-10 eastbound traffic while driving the wrong
way, causing the collision of several vehicles, including the vehicle operated by
Plaintiff. Said occurrence caused substantial physical injuries to Plaintiff.
Defendant ANDUJO was negligent and grossly negligent. Defendant TORRES
negligently entrusted the vehicle to Defendant ANDUJO. (CR 12).
The record reflects on May 11, 2017, Defendant JUAN MIGUEL TORRES
was personally served with citation and a copy of Plaintiff’s Original Petition, by
process server Eric Bogle, delivering same to him in person at 4302 Alameda, El
Paso, Texas 79905, at 1:35 p.m. (CR 62-63) (Motion for Default Judgment, Ex B).
Thus, Defendant JUAN MIGUEL TORRES’s deadline to file an answer or appear
in the case was on Monday, June 05, 2017, and citation and proof of service had
been on file with the clerk at least 10 (ten) days, excluding day of filing and day of
hearing, on Plaintiff’s Motion for Default Judgment filed September 22, 2017, and
2 heard October 12, 2017. (CR 51-75 (Motion for Default Judgment filed September
22, 2017); (RR 1, pp. 3-5) (Motion for Default Judgment heard October 12, 2017).
The record reflects on May 12, 2017, Defendant MATTHEW MANUEL
ANDUJO was personally served with citation and a copy of Plaintiff’s Original
Petition on May 12, 2017, by process server Eric Bogle, delivering same to him in
person at 1440 Goodyear, El Paso, Texas 79936, at 12:08 p.m. (CR 59-60)
(Motion for Default Judgment, Ex. A). Thus, Defendant MATTHEW ANDUJO’S
deadline to file an answer or appear in the case was on Monday, June 5, 2017, and
citation and proof of service had been on file with the clerk at least ten (10) days,
excluding day of filing and day of hearing, on Plaintiff’s Motion for Default
Judgment filed September 22, 2017, and heard October 12, 2017. (CR 51-75
(Motion for Default Judgment filed September 22, 2017); (RR 1, pp. 3-5) (Motion
for Default Judgment heard October 12, 2017).
On July 17, 2017, Defendants’ insurance carrier sent a letter to Plaintiff’s
counsel regarding the case, stating in relevant part that “although every effort has
been made to contact our insured, we have been unable to complete our
investigation into the above referenced claim due to their non-cooperation” and
“[c]onsequently, we must deny all claims arising from this loss. If in the future
they choose to cooperate in our investigation, we may reopen this file for
3 consideration.” (CR 74) (Motion for Default Judgment, Ex. D).
Thereafter, on September 22, 2017, Plaintiff filed her Motion for Default
Judgment and requested that the Court enter default judgment against Defendants
JUAN MIGUEL TORRES and MATTHEW MANUEL ANDUJO, due to their
failure to answer or otherwise appear in the case following their June 5, 2017
deadlines to do so (CR 51-75), and on September 28, 2017, the matter was set for
hearing for October 12, 2017. (CR 76).
Shortly before the default judgment hearing, on October 7, 2017, Plaintiff filed
her First Amended Petition and added Defendant C.R.A.W. OYSTER BAR &
LOUNGE, LLC, a/k/a CRAW OYSTER BAR & LOUNGE, LLC d/b/a CRAW
OYSTER BAR & LOUNGE, a Texas corporation (“CRAW OYSTER BAR”), and
added dram-shop claims against Defendant CRAW OYSTER BAR for negligently
providing intoxicating alcoholic beverages to Defendant MATTHEW ANDUJO when
Defendant had actual or constructive knowledge of his intoxication and knew or should
have known that continuing to provide alcoholic beverages to Defendant MATTHEW
ANDUJO created a danger to others driving on the roadways, including Plaintiff, in
violations of relevant provisions of the Texas Alcohol and Beverage Code and other
relevant laws and ordinances of the City of El Paso and State of Texas. (CR 264-70).
On October 12, 2017, hearing was held before the trial court on Plaintiff’s
4 Motion for Default Judgment against Defendants MATTHEW ANDUJO and JUAN
MIGUEL TORRES, whose deadline to answer or otherwise appear in the case had
expired on June 5, 2017. (RR 1, pp. 3-4). Plaintiff’s counsel Rolando Morales was
present at the hearing, along with Plaintiff, who was present to provide testimony to
the Court on the issue of her damages. Plaintiff’s counsel had also prepared a notebook
for the Court’s reference at the hearing that provided relevant copies of evidence
reflecting that Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES had
been personally served with the suit on May 11, 2017 and May 12, 2017 (CR 345-386)
(Exhibits 1-6), along with evidence of Plaintiff’s property damages and medical bills
and medical summary for injuries she sustained as a result of the incident (CR 387-424)
(Exhibits 9-15). See CR 301-302; CR 306 (statements contained in Motion to
Reinstate verified as true and correct); CR 345-424 (“Plaintiff’s Exhibit List” notebook
with Exhibits 1-15).
Without hearing evidence from Plaintiff, the trial court summarily denied
Plaintiff’s Motion for Default Judgment (RR 1, pp. 3-4) and the same day (October 12,
2017), sua sponte set the matter for a dismissal hearing under Rule 165a for November
9, 2017 by issuing a “NOTICE OF DISMISSAL HEARING UNDER RULE 165a,
TEXAS RULES OF CIVIL PROCEDURE.” (CR 262). The notice states “In
compliance with Rule 165a, Texas Rules of Civil Procedures (T.R.C.P.), you are
5 hereby notified a dismissal for want of prosecution hearing has been set in the above-
styled and numbered cause 20167 DCV10567 as per attached” (CR 262). The notice
of dismissal does not provide any notice of the court’s intent to dismiss based on its
inherent powers. (CR 262).
On November 9, 2017, Plaintiff’s counsel Rolando Morales attended the
dismissal hearing. (RR 1, pp. 5-6). At the hearing, the Court summarily dismissed the
case for want of prosecution (RR 1, pp. 5-6) and the same day signed a “Dismissal
Order for Want of Prosecution” (CR 290) that states in pertinent part:
DISMISSAL ORDER FOR WANT OF PROSECUTION
BE IT REMEMBERED THAT THE COURT, AFTER DUE NOTICE TO THE ATTORNEY/PRO SE OF RECORD IN THE ABOVE STYLED AND NUMBERED CAUSE THAT SAID CAUSE WOULD BE DISMISSED ON October 12, 2017 FOR WANT OF PROSECUTION, ON THE GROUNDS STATED IN THE NOTICE OF INTENT TO DISMISS FOR WANT OF PROSECUTION, UNLESS THERE WAS GOOD CAUSE BEING SHOWN. ....
IT IS THE ORDER OF THE COURT THAT THE ABOVE STYLED AND NUMBERED CAUSE BE DISMISSED FOR WANT OF PROSECUTION. COURT COSTS ARE TAXED AGAINST PLAINTIFF.
(CR 290) (underline in order added; underline in title and boldface in order).
At the time the case was dismissed for want of prosecution, Plaintiff’s claims
6 against Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES had
been pending for less than nine months from the date suit was filed, and less than six
months from the date of personal service on Defendants (on May 11, 2017 and May
12, 2017); and her claims against Defendant CRAW OYSTER BAR (set forth in
Plaintiff’s First Amended Petition filed October 7, 2017 (CR 264-70)) had been
pending for little more than a month from the time the amended petition was filed.2
On December 7, 2017, Plaintiff filed her Verified Motion to Reinstate
Pursuant to Rule 165a, with supporting documentation, and requested the trial court
reinstate the case for good cause shown. (CR 299-426). On December 12, 2017,
the trial court set the matter for hearing for February 1, 2018. (CR 427). On
February 1, 2018, Plaintiff’s counsel Jeff Pownell and Rolando Morales were
present at the hearing. (RR 1, p. 6). After hearing arguments of counsel, the trial
court denied the motion. (RR 1, pp. 6-10).
Plaintiff’s counsel appeared at all hearings in the case as reflected on the case
docket sheet. (CR 302 ¶ 9; CR 306 (statements contained in Motion to Reinstate
verified as true and correct)). At the time of dismissal, pendency of the case was
well within the time standards promulgated by the Supreme Court under the
Administrative Rules. (CR 302 ¶ 9; CR 306).
2 Defendant CRAW Oyster Bar had not been served at the time of dismissal.
7 The record also demonstrates that Plaintiff prosecuted her case with
diligence. In addition to seeking default judgment, the record shows Plaintiff served
written discovery on defendants contemporaneously with filing her claims against
them. See CR 22-27, 28-32 (Plaintiff’s Request for Production of Documents
served on Defendants Andujo and Torres with Original Petition); CR 33-37, 38-42
(Plaintiff’s First Set of Interrogatories served on Defendants Andujo and Torres with
Original Petition ); CR 43-45 (Plaintiff’s Request for Disclosure served on
Defendants Andujo and Torres with Original Petition); CR 271-76; 277-83; 284-87
(Plaintiff’s First Set of Interrogatories, First Request for Production of Documents,
and Request for Admissions to Defendant CRAW Oyster Bar, filed with First
Amended Petition). The record also demonstrates that Plaintiff filed her “Notice of
Intent to Use Medical [and Business] Records” with records and billings from her
medical providers to prepare for trial or other disposition. See CR 77-83
(Plaintiff’s Notice of Intent to Use Medical and Business Records of Mehta Nilesh,
MD, filed October 2, 2017); CR 84-141 (Plaintiff’s Notice of Intent to Use Medical
and Business Records of El Paso Orthopedic Surgery Group, filed October 2,
2017); CR 142-257; 258-61 (Plaintiff’s Notice of Intent to Use Medical Records of
University Medical Center of El Paso and Notice of Intend to Use Business Records
of University Medical Center of El Paso, both filed October 3, 2017).
8 SUMMARY OF THE ARGUMENT
The trial court erred when it dismissed the case for want of prosecution under
Rule 165a. Plaintiff’s counsel appeared at all hearings in the case. At time of
dismissal, Plaintiff’s claims against Defendants Andujo and Torres had been
pending less than nine months from the date suit was filed and less than six months
from the date they were served, and Plaintiff’s amended petition with claims against
Defendant CRAW Oyster Bar had been pending little more than a month.
The trial court did not provide notice of any intent to dismiss based on its
inherent authority, but even if it did, Plaintiff prosecuted her case with diligence.
Plaintiff served Defendants Andujo and Torres with suit and extensive written
discovery. After being informed that their insurer would not provide a defense,
Plaintiff filed a Motion for Default Judgment and set the matter for hearing. At the
hearing, the trial court summarily denied Plaintiff’s motion and the same day sua
sponte set the matter for dismissal hearing under Rule 165a less than a month later.
The trial court also erred when it failed to reinstate the case, as Plaintiff’s
verified motion to reinstate, with supporting documentation, established good cause
to reinstate the case. The trial court’s order of dismissal should be vacated and the
case reversed and remanded to the trial court for trial or other disposition on the
merits.
9 ARGUMENT AND AUTHORITY
A. Standard of review and applicable law.
A trial court’s authority to dismiss a case for want of prosecution derives
from two sources: Rule 165a of the Texas Rules of Civil Procedure and the trial
court’s inherent power. See Tex. R. Civ. P. 165a(1); Lopez v. Harding, 68 S.W.3d
78, 79 (Tex. App. – Dallas 2001, no pet.). The Court reviews a trial court’s order
of dismissal under either source for an abuse of discretion. MacGregor v. Rich, 941
S.W.2d 74, 75 (Tex. 1997). A trial judge abuses his discretion when he acts
arbitrarily or unreasonably, or without reference to guiding rules and principles. See
Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).
Under Rule 165a(1), a trial court may dismiss a case for want of prosecution
is a party fails to appear at trial or a hearing. Tex. R. Civ. P. 165a(1); Johnson-
Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex. App. – Fort Worth 2002, pet.
dism’d) (citing Maida v. Fire Ins. Exch., 990 S.W.2d 836, 841 (Tex. App. – Fort
Worth, no pet.). Under Rule 165a(2), a trial court may dismiss a case for want of
prosecution , when the case is not disposed of in accordance with the time standards
prescribed by the supreme court. Tex. R. Civ. P. 165a(2). The time standard
governing civil jury cases (other than family law cases) encourages final disposition
of the case within eighteen months from appearance date. Tex. R. Jud. Admin. 6,
10 reprinted in Tex. Gov’t Code Title 2, Subtitle F App.; Maida, 990 S.W. at 842.
A trial court also has the inherent authority to dismiss a case that has not been
diligently prosecuted, which derives from its power to maintain and control its
docket. See Johnson-Snodgrass, 75 S.W.3d at 88; Maida, 990 S.W.2d at 842
(citing Brim Laundry Mach. Co. v. Washex Mach. Corp., 854 S.W.2d 297, 301
(Tex. App. – Fort Worth 1993, writ denied)). However, a party must be provided
with adequate notice of the trial court’s intent to dismiss for want of prosecution
based on its inherent authority (i.e., for failure to diligently prosecute a case) rather
than for violation(s) of Rule 165a. Villarreal v. San Antonio Truck & Equip., 994
S.W.2d 628, 630 (Tex. 1999).
Moreover, notice that a case may be dismissed for grounds under Rule 165a
does not constitute adequate notice that the trial court may exercise its inherent
authority to dismiss for failure to diligently prosecute. Villarreal, 994 S.W. 2d at
630; Harding, 68 S.W.3d at 79; Goff v. Branch, 821 S.W.2d 732, 736 (Tex. App. –
San Antonio 1991, writ denied). The omission of such notice is a denial of due
process under the Fourteenth Amendment. See Villarreal, 994 S.W.2d at 630;
Jimenez v. Transwestern Prop. Co., 999 S.W. 2d 125, 128 (Tex. App. – Houston
[14th Dist.] 1993, no writ).
Denial of a motion to reinstate is also reviewed under an abuse of discretion
11 standard. See Smith v. Babcock & Wilcox Const. Co., 913 S.W.2d 467, 467 (Tex.
1995); Goff, 821 S.W.2d at 733. In reviewing a court’s refusal to reinstate, the
reviewing Court first looks to the trial court’s basis for dismissal, which provides
the measure whereby the Court may then determine if the trial judge abused his
discretion in refusing to reinstate. See, e.g., Shook v. Gilmore & Tatge Mfg. Co.,
951 S.W.2d 294, 296 (Tex. App. – Waco 1997, writ denied).
B. The trial court erred in dismissing the case.
The trial court abused its discretion and so erred in dismissing the case for
want of prosecution under Rule 165a. The evidence is undisputed that (1) Plaintiff
or her counsel did not fail to appear at any hearing or trial, and (2) the case was well
within the supreme court’s disposition time standards at the time of dismissal. See
Statement of Facts pp. 2-8 (incorporated into this argument section by reference as
if fully set forth herein). The trial court’s dismissal for want of prosecution under
Rule 165a therefore was an abuse of discretion and requires reversal and remand.
See Johnson-Snodgrass, 75 S.W.3d at 86-87 (when evidence established dismissal
was not authorized under Rule 165a(1) or (2), “any dismissal of [plaintiff’s] suit
under Rule 165a constituted an abuse of discretion” requiring reversal and remand).
Moreover, any dismissal based on the trial court’s inherent authority (to
dismiss for failure to diligently prosecute the case) also constitutes an abuse of
12 discretion, because the trial court’s “Notice of Dismissal Hearing Under Rule 165a,
Texas Rules of Civil Procedures” (CR 262) and “Dismissal Order for Want of
Prosecution” (CR 290) both expressly provide that notice of dismissal was pursuant
to Rule 165a, not pursuant to his inherent authority.
Accordingly, dismissal of the case based on the trial court’s inherent authority
violates Plaintiff’s due process rights and constitutes an abuse of discretion that
requires reversal. See Johnson-Snodgrass, 75 S.W.3d at 88-90 (sustaining
appellant’s issue “that the trial court could not exercise its inherent authority to
dismiss her suit because the dismissal notice indicated only that the case was subject
to dismissal for noncompliance with the supreme court’s time standards [under Rule
165a(2)], noting “[b]ecause Snodgrass was never notified that the trial court was
considering exercising its inherent authority to dismiss her lawsuit but was instead
told in the notice of dismissal and in the dismissal order that the dismissal was
initiated pursuant to rule 165a, she was deprived of the opportunity to intelligently
refute or respond to the proposed dismissal executed under the trial court’s inherent
authority [citations omitted] . . . [t]hus, Snodgrass’s due process rights were
violated, and we cannot agree with appellees’ contention to the contrary”) and
concluding the trial court abused his discretion in dismissing lawsuit under either
rule 165a or under its inherent authority).
13 Even if the trial court had provided notice of dismissal pursuant to his
inherent authority, dismissal on this ground would still be an abuse of discretion that
requires reversal and remand under the circumstances of this case. Factors a trial
court may consider when deciding whether to dismiss under its inherent power
include (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) whether there were any
reasonable excuses for the delay. Maida, 990 S.W.2d at 842; Texas Mut. Ins. v.
Olivas, 323 S.W.3d 266, 274 (Tex. App. – El Paso 2010, no pet.).
Here, the record demonstrates (1) the case was on file a relatively short
period of time (less than nine months from the date suit was filed and less than six
months from the date Defendants Andujo and Torres were served; (2) extensive
activity took place in the case in the relatively short time the case was on file; (3)
Plaintiff (in effect) requested a “trial setting” by filing her Motion for Default
Judgment and affirmatively seeking default judgment against Defendants Andujo
and Torres after they failed to appear; and (4) Plaintiff reasonably explained the
short delay between the time Defendants Andujo and Torres were served and
Plaintiff’s filing her Motion for Default Judgment, because Plaintiff hoped that
Defendants would cooperate with their insurance carrier and would provide them a
defense, while obtaining a default judgment against them would be virtually certain
14 to result in lack of insurance coverage for Plaintiff’s claim. See Statement of Facts
pp. 2-9 (incorporated by reference herein).
Accordingly, even if the trial court had provided notice that he intended to
dismiss for failure to diligently prosecute the case based on his inherent authority,
which it did not, under the record presented in this case, dismissal on this ground
would in any case constitute an abuse of discretion that requires reversal and
remand. See Maida, 990 S.W. 2d at 842-43 (trial court abused its discretion in
dismissing case based on its inherent authority for failure to diligently prosecute,
when (1) case was on file for 17 months and dismissed 15 months from appearance
date, not in excess of supreme court standards, (2) significant discovery had
occurred, (3) case had been set for trial and was continued over Plaintiff’s objection,
(4) trial court sent dismissal notice after case was removed from its trial setting).
C. The trial court erred in failing to reinstate the case.
The trial court also abused its discretion and so erred in failing to reinstate the
case. On December 7, 2017, Plaintiff filed her Verified Motion to Reinstate
Pursuant to Rule 165a, with supporting documentation, and requested the trial court
reinstate the case for good cause shown. (CR 299-426). On December 12, 2017,
the trial court set the matter for hearing for February 1, 2018. (CR 427). On
February 1, 2018, Plaintiff’s counsel Jeff Pownell and Rolando Morales were
15 present at the hearing and explained to the Court that Plaintiff had not earlier sought
default judgment against Defendant Andujo and Torres because a default judgment
likely would invalidate coverage under the insurance policy under which they were
both “Insured Persons” (as permissive driver (Andujo) and owner (Torres) of the
vehicle. (RR 1, pp. 6-10), but the trial court denied the motion. (RR 1, pp. 10).
Rule 165a(3) provides in relevant part:
Reinstatement. A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.
The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.
See Tex. R. Civ. P. 165a (3).
In her Motion to Reinstate, Plaintiff alleged and verified that:
“[Good cause exists to reinstate the case and Plaintiff’s failure to obtain judgment against Defendants was not intentional or the result of conscious indifference but may be reasonably explained. Plaintiff’s counsel has appeared on behalf of Plaintiff at all hearings in this case, and Plaintiff has also personally appeared at hearings in the case.
16 Plaintiff diligently prosecuted her case against Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES by first effectuating personal service on said Defendants on May 11, 2017 and May 12, 2017; then after being notified that said Defendants’ insurance company would not tender a defense in this case due to their alleged non-cooperation, Plaintiff thereafter sought to obtain a default judgment against Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES by (1) filing a Motion for Default Judgment with relevant evidence establishing Plaintiff’s right to default judgment against said Defendants, (2) setting the motion for hearing before the Court on October 12, 2017, and (3) attending the default judgment hearing on October 12, 2017, with evidence of Defendants’ personal service on May 11, 2017 and May 12, 2017, and evidence of Plaintiff’s property damages and medical bills and her personal presence to provide testimony to the Court as to her damages suffered as a result of the incident. See Exhibit D.
Plaintiff also exercised diligence in adding Defendant CRAW OYSTER BAR as a party – without the benefit of any discovery obtained from Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES, but through Plaintiff’s counsel own efforts in determining the whereabouts of Defendant MATTHEW ANDUJO prior to the incident – by way of her First Amended Petition filed October 7, 2017, that added Plaintiff’s claims against Defendant CRAW OYSTER BAR alleging dram-shop liability claims against it. See Exhibit C.
At the time the case was dismissed on November 9, 2017, Plaintiff’s claims against Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES had been pending for less than nine months (and less than six months from date of service of Defendants MATTHEW ANDUJO and JUAN MIGUEL TORRES on May 11, 2017 and May 12, 2017); and her claims against Defendant CRAW OYSTER BAR set forth in Plaintiff’s First Amended Petition had been pending for one month. At the time of dismissal the pendency of the case was well within the time standards promulgated by the Supreme Court under the Administrative Rules.
17 For these reasons, good cause exists to reinstate the case and any failure of the Plaintiff or her attorney to obtain judgment prior to dismissal was not intentional or the result of conscious indifference, but was due to an accident or mistake and has been reasonably explained. Pursuant to Rule 1665a, the Court should reinstate the case.
See CR 299-426 (Plaintiff’s Verified Motion to Reinstate with attached exhibits).
Under these circumstances, the trial court also abused its discretion and so
erred in failing to reinstate the case pursuant to Rule 165a(3). See Maida, 990
S.W.2d at 842-43 (“[b]ecause we hold that the court abused its discretion in
dismissing the case under its inherent authority, it was also an abuse of discretion to
fail to reinstate a case improperly dismissed.”).
CONCLUSION AND PRAYER
The trial court erred when it dismissed the case for want of prosecution under
Rule 165a. The trial court did not provide notice of any intent to dismiss based on
its inherent authority, but even if it did, Plaintiff prosecuted her case with diligence.
The trial court erred when it failed to reinstate the case, as Plaintiff’s verified motion
to reinstate, with supporting documentation, established good cause to reinstate the
case. The trial court’s order of dismissal should be vacated and the case reversed
and remanded to the trial court for trial or other disposition on the merits.
18 WHEREFORE, PREMISES CONSIDERED, Appellant Rosa Maria
Arzate requests the Court vacate the trial court’s dismissal order and reverse and
remand the case back to the trial court for trial or other disposition on the merits,
and for such other relief to which appellant may be justly entitled.
Respectfully submitted,
SCHERR & LEGATE, PLLC. 109 North Oregon, 12th Floor El Paso, Texas 79901 (915) 544-0100 – phone (915) 532-1759 – fax
/s/ Jeffrey B. Pownell JEFFREY B. POWNELL State Bar No. 16222900 jpownell@scherrlegate.com Attorneys for Appellant Rosa Maria Arzate
19 CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of the TRAP because this brief contains 5,227 words, including the parts of the brief exempted under TRAP, and complies with the new typeface requirements because this brief has been prepared in a proportionally spaced typeface using WordPerfect 12 in Times New Roman, 14 point font (footnotes in 12 point font).
/s/ Jeffrey B. Pownell Jeffrey B. Pownell Dated: May 25, 2018
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of May, 2018, a true and correct copy of the foregoing was mailed through the United States Postal Service, certified mail, return receipt requested, to the following last known address(es) of Appellees in the manner specified below:
Via Certified Mail, Return Receipt Requested Matthew Manuel Andujo 301 Montestruc APT #1 El Paso, Texas 79901 and 1440 Goodyear El Paso, Texas 79936
Juan Miguel Torres 301 Montestruc APT #1 El Paso, Texas 79901 and 4302 Alameda El Paso, Texas 79905
/s/ Jeffrey B. Pownell Jeffrey B. Pownell
20 APPENDIX IN THE DISTRICT COUR,T OF EL PASO CO['NTY, TEXAS ?ÆIÚ JIJDICIAL IIISTRICT e( ROSA MARTA ARZATE a, v CauseNo. 2017DCV0567
MATTHEW MANUEL ANDUJO and ruAN MIGUEL TORRES
DISMISSAI. ORDER. FOR, TVANT OF PROSECUTION
BE IT REMEMBERED THAT THE COURT, AFTER DUE NOTICE TO THE ATTORNEY/PRO SE OF RECORD IN THE ABOVE STYLED AND NT.JMBERED CAUSE THAT SAID CAUSE WOULD BE DISMTSSED ON Ocûober 12. 2017. FOR WANT OF PROSECUTION, ON THE GROTJNDS STATED IN TIIE NOTICE OF INTENT TO DISMTSS FOR WANT OF PROSECUTION, I.JNLESS THERE WAS GOOD CAUSE BEINC SHOWN.
PURSUANT TO THE LOCAT RULES OF EL PASO COUNTY, RTJLE 3.01(E) AND (F), YOU ARE HEREBY ORDERED TO STRICTLY COMpLy WTrH THE AFOREMENTIONED RULE, AND IN THE EVENT THIS LAWSUIT IS RE-FILED, YOU WILL ADVISE THE DISTRICT CLERK TO ASSICN THIS CASE TO lHE ORIGINAL COURT.
IT IS THE ORDER OF THE COURT THAT THE ABOVE STYLED AND NI.IMBERED CAUSE BE DISMISSED FOR WANT OF PROSECUTION. COURT COSTS ARE TAXED AGAINST PLATNTIFF.
STGNED: NOVEMBER 20t7.
. LIIIS 2!.3.d Dbtrict Court
ORIGINAL TO BE FILED
290 El Paso County -243rd District Court Filed 1011212017 3:06 PM Norma Favela Barceleau District Clerk: El Paso County: 2017DCV0567.
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