COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-344-CV
WANDA
LEE SMITH APPELLANT
V.
ROBERT
D. MCKEE, SR. APPELLEE
------------
FROM
THE 158TH DISTRICT COURT OF DENTON COUNTY
OPINION
Appellant
Wanda Lee Smith’s bill of review suit was dismissed by the trial court for
want of prosecution. We reverse and remand for a hearing on Appellant’s motion
to reinstate her suit.
Background
The
parties were divorced in 1986. There has been substantial litigation between the
parties since the time of their divorce. In 1995, Appellee Robert D. McKee, Sr.
obtained a judgment against Appellant for damages. On May 25, 1999, Appellant
filed the underlying bill of review seeking to set aside the 1995 judgment,
claiming it was obtained by fraud committed by Appellee. On July 15, 2003, the
trial court sent a letter to the parties notifying them of a dismissal setting
for August 27, 2003.
On
August 27, 2003, a hearing was held; Appellant represented herself and Appellee
was represented by counsel. At the conclusion of the hearing the trial court
dismissed the lawsuit for want of prosecution; the dismissal order was signed
that day. On September 25, 2003, Appellant timely filed a verified motion to
reinstate the case. See Tex. R.
Civ. P. 165a(3). On October 8, 2003, without setting the motion for a
hearing, the trial court denied Appellant’s motion to reinstate. See id.
On October 15, 2003, Appellant filed a motion requesting the trial court hold a
hearing on her motion to reinstate. No hearing was held and the trial court’s
plenary power expired on November 7, 2003.1 See
id.
In
four issues on appeal, Appellant contends the trial court: failed to apprise her
of its intent to dismiss for want of prosecution; should not have dismissed
before providing Appellant an opportunity to present evidence and to explain her
delay in prosecuting her case; and erred in failing to set a hearing on
Appellant’s motion to reinstate. Appellant proceeded pro se in the trial court
and is representing herself on appeal. Appellee, a licensed Texas attorney, has
been represented by counsel throughout these proceedings, including this appeal,
but has chosen not to file an appellee’s brief on appeal.2
Accordingly, this appeal was submitted to the court without the benefit
of an appellee’s brief to assist the court in determining the issues raised in
this appeal.
Trial Court’s
Authority To Dismiss For Want Of Prosecution
Appellant’s
first issue asserts the trial court failed to apprise Appellant of its intent to
dismiss for want of prosecution. A trial court's authority to dismiss for want
of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil
Procedure; and (2) the court's inherent power. See Villarreal v. San
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Veterans'
Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). A trial court may
dismiss under Rule 165a on “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 time standards promulgated by the Supreme Court.”
Tex. R. Civ. P. 165a(1)-(2). In
addition, the common law vests the trial court with 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
631; State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984).
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 power. See Tex. R. Civ.
P. 165a(1) (“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, and to each party not represented by an attorney”); Villarreal,
994 S.W.2d at 630. The requirements of notice and a hearing are necessary to
ensure the dismissed claimant has received due process. Tex. Sting Ltd. v.
R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.—San Antonio 2002, pet.
denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.
App.—Dallas 2001, pet. denied). The failure to provide adequate notice of the
trial court's intent to dismiss for want of prosecution requires reversal. Villarreal,
994 S.W.2d at 630-31.
Standard Of
Review
We
review a dismissal for want of prosecution under a clear abuse of discretion
standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Rotello,
671 S.W.2d at 509. A trial court abuses its discretion when it acts arbitrarily
or unreasonably, or without reference to guiding rules and principles. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986); Johnson-Snodgrass v. KTAO, Inc., 75
S.W.3d 84, 87 (Tex. App.—Fort Worth 2002, pet. dism’d).
Notice Of
Intent To Dismiss For Want Of Prosecution
On
July 15, 2003, the trial court sent the parties the following letter:
TO:
ALL ATTORNEYS/PRO SE PARTIES ON ATTACHED DISMISSAL DOCKET
RE:
See attached list of cases.
NOTICE OF NON-JURY DISMISSAL SETTING
THIS
SETTING IS ON THE COURT’S MOTION IN RESPONSE TO TIME STANDARDS FOR DISPOSITION
OF CASES BY THE DENTON COUNTY COURT RULES FOR DISTRICT COURTS.
The
above-referenced cause has been placed on the Court’s Docket for dismissal on
AUGUST 27, 2003, at 8:30 a.m. At this time, the attorneys are expected to
present a completed Scheduling Order to be approved by the Judge. Scheduling
Orders will not be accepted by
mail or by clients’ submission.
A
Scheduling Order needs to be entered with the following information:
1)Schedule
for Discovery;
2)A
( ) blank for a Pre-Trial Date,
or a statement that a Pre-Trial will not be necessary;
3)A
( ) blank for a Trial Date and
expected length of trial;
4)A
list of your Proposed Expert Witnesses along with the witnesses’ addresses,
telephone numbers and area of expertise. Any expert witness not listed shall not
be allowed to be called as a witness.;
5)SIGNATURE OF ALL CLIENTS!!
Plaintiff’s/Petitioner’s
failure to appear on this date will result in the case being dismissed for want
of prosecution. There will be NO CONTINUANCES of this setting!
Both
parties appeared at the August 27, 2003 hearing, after which the trial court
signed the following order:
On
the 27th day of August, 2003, the above styled and numbered cause having been
reached on the Court’s Dismissal Docket and no announcement having been
made, it is the opinion of the Court that the cause of action filed in this
cause should be dismissed for want of prosecution.
IT
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the cause of action filed in
the above styled and numbered cause be and is hereby dismissed. [Emphasis
added.]
Denton County Court Rules
Rule
1.123 of the “Uniform Rules Of Court For The District And Statutory County
Courts Of Denton Co.,” in effect at the time of Appellant’s dismissal
hearing, provided that civil non-jury cases “should be concluded within 12
months from appearance date.”3 Additionally, Rule
1.7 of the “Administrative Rules For The Courts Within Denton County, Texas”
contained identical language regarding disposition of civil non-jury cases.4
Adequacy Of
Notice Of Intent To Dismiss
The
trial court’s dismissal notice states that the August 27, 2003 setting is in
response to time standards for disposition of cases in Denton County district
courts. The dismissal notice then specifies that attorneys “are expected to
present a completed Scheduling Order” to be approved by the judge. Lastly, the
dismissal notice states that plaintiff’s “failure to appear on this date
will result in the case being dismissed for want of prosecution.”
This
is clearly notice to Appellant that the trial court will dismiss her case
pursuant to Rule 165a(1) if she fails to appear at the August 27, 2003 hearing.
It is undisputed that Appellant was present at the hearing, as reflected in the
court reporter’s transcription of the hearing. Therefore, although the trial
court’s dismissal order recites that “no announcement” was made at the
hearing, if the trial court dismissed Appellant’s case under Rule 165a(1) for
Appellant’s failure to appear at the August 27, 2003 hearing, this would
constitute an abuse of discretion.
The
trial court’s dismissal notice also places Appellant on notice that the case
is set on the court’s dismissal docket in response to time standards for
disposition of cases in Denton County, that is, the Denton County local rule
that non-jury cases should be concluded within twelve months from appearance
date.5 The notice informs the parties that the case
is set for dismissal on August 27, 2003, and tells the attorneys and pro se
litigants that they are expected to present a completed scheduling order at the
dismissal hearing. The question we must decide is whether the trial court’s
dismissal notice provided notice to Appellant that her case would be dismissed
under the trial court’s inherent power to dismiss independently of Rule 165a
of the Texas Rules of Civil Procedure when a plaintiff fails to prosecute his or
her case with due diligence.
In
support of her contention that she did not receive proper notice of the
court’s intent to dismiss under its inherent power, Appellant relies upon the
supreme court’s holding in Villarreal. 994 S.W.2d at 631-33. In that
case, the trial court’s dismissal notice stated the case was set for dismissal
and the party is “requested to be present and make your announcement. If no
announcement is made, this cause will be dismissed for want of prosecution.” Id.
at 629. The supreme court held that this provided the parties sufficient notice
that the case would be dismissed under Rule 165a(1) if they failed to appear at
the hearing, but did not provide notice of the trial court’s intent to dismiss
pursuant to its inherent power to do so. Id. at 632-33.
We
find Villarreal to be factually distinguishable from the instant case in
which the trial court’s notice of dismissal specifically informed Appellant
that the case was set for dismissal on August 27, 2003 in response to the
court’s standards for disposition that required civil non-jury cases be
disposed of within twelve months from appearance date. While the trial court’s
dismissal notice is not a model of clarity,6 it is
sufficient to apprise Appellant of the court’s intention to dismiss her case
pursuant to the court’s inherent power to do so for failure to diligently
prosecute her case.7 We hold that the trial
court provided adequate notice to Appellant of the court’s intent to dismiss
for want of prosecution under its inherent power. Accordingly, we overrule
Appellant’s first issue.
Failure To
Permit Appellant To Explain The Delay In Prosecution
In
her second issue, Appellant claims the trial court should not have dismissed for
want of prosecution without providing her an opportunity to present evidence and
to explain her delay in prosecuting the case. The trial court held a hearing on
August 27, 2003 at which time the court afforded Appellant an opportunity to
explain why the case should not be dismissed for want of prosecution because of
Appellant’s failure to prosecute her case with due diligence. Accordingly, we
overrule Appellant’s second issue.
Failure To Hold
A Hearing On Motion To Reinstate
Appellant’s
third and fourth issues assert the trial court erred in failing to hold a
hearing on her motion to reinstate her case. Appellant timely filed a verified
motion to reinstate, and a request for a hearing on the motion. Rule 165a(3)
provides:
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.
Tex. R. Civ. P. 165a(3) (emphasis
added). The same reinstatement procedures and timetable are applicable to all
dismissals for want of prosecution, including cases that are dismissed pursuant
to the court’s inherent power. Tex. R.
Civ. P. 165a(4). It is not within the discretion of the trial court to
fail to hold an oral hearing on a timely-filed, properly verified motion to
reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991); see
Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988)
(affirming court of appeals’ holding that trial court abused its discretion in
failing to hold hearing on motion to reinstate).8
We hold that the trial court abused its discretion in failing to hold a hearing
on Appellant’s timely-filed, verified motion to reinstate.9
Appellant’s third and fourth issues are sustained.
Conclusion
We
reverse the judgment of the trial court and remand this cause to the trial court
for a hearing on Appellant’s motion to reinstate.
DIXON
W. HOLMAN
JUSTICE
PANEL
B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
DELIVERED:
July 15, 2004
NOTES
1.
On November 13, 2003, Appellant filed an amended motion to reinstate. On
November 24, 2003, the trial court held a hearing on Appellant’s request to
reinstate. On November 26, 2003, Appellant objected to the court ruling on her
amended motion to reinstate, stating the court had lost jurisdiction to grant or
deny the motion. On December 8, 2003, the court signed an order denying
Appellant’s amended motion to reinstate. Because the trial court had already
lost plenary jurisdiction at the time it held the hearing and signed the order
denying the amended motion to reinstate, all proceedings that occurred after
November 7, 2003 are void and will not be considered a part of the record in
this appeal. See Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta,
776 S.W.2d 577, 578 (Tex. 1989) (orig. proceeding) (holding trial court's
plenary power over its judgment of dismissal ends 105 days after the order of
dismissal, and order of reinstatement must be signed during this period); In
re Dickason, 987 S.W.2d 570, 570-71 (Tex. 1998) (orig. proceeding) (holding
trial court order signed after expiration of plenary period is void); Walker
v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding) (“This
court has repeatedly held that the time limits provided in rule 165a are
mandatory and jurisdictional and that orders of reinstatement entered after
their expiration are void.”).
2.
Through counsel, Appellee previously filed a motion to abate this appeal and
remand the case to the trial court for a hearing on Appellant’s motion to
reinstate. Appellee requested this court take this action in the interest of
“judicial economy,” without citing any authority that would permit the
abatement procedure. Appellant objected to the proposed procedure, stating it
would violate her due process right to have this court review the
appropriateness of the trial court’s order dismissing her case for want of
prosecution. This court denied Appellee’s motion.
Appellee
subsequently filed a motion to dismiss for mootness and a motion for sanctions.
Appellee contended that when he notified this court that he did not object to
the remand for a hearing on Appellant’s motion to reinstate, this made the
appeal moot because the controversy between the parties ceased to exist.
Accordingly, Appellee argued that further prosecution of this appeal by
Appellant was frivolous, and Appellee should be awarded damages. Appellant
responded by seeking sanctions for Appellee’s actions on appeal. On April 6,
2004, this court denied both parties’ motions.
3.
Denton County (Tex.) Ct. Loc. Unif. R.
1.123 (effective Mar. 1, 1994; repealed May 4, 2004), available at <http://dentonbar.com/rules/lrules.htm>. The 1994 version of the Denton County Uniform Rules of
Court was repealed well after the August 27, 2003 dismissal hearing in the
instant case. We note that the recently-enacted version contains a new section
entitled “Rule 2.7: Dismissal for Want of Prosecution and Status
Conferences” which specifies in detail the reasons a case may be dismissed for
want of prosecution. Denton County (Tex.)
Ct. Loc. Unif. R. 2.7 (effective May 4, 2004), available at <http://www.co.denton.tx.us/dept/District_Clerk/Acrobat/Uniform_Rules_05_2004.pdf>.
However, Rule 2.7 is not relevant to this appeal inasmuch as it was not in
effect on August 27, 2003.
4. Denton County
(Tex.) Ct. Loc. Admin. R. 1.7, available at <http://dentoncounty.com/dept/main.asp?Dept=26&Link=71>.
5. The trial court’s dismissal notice does not mention
dismissing for want of prosecution because of non-compliance with the time
standards promulgated by the Texas Supreme Court. See Tex. R. Civ. P. 165a(2).
6. In Villarreal, the dissent suggested that the Bexar
County District Clerk’s office consider rewriting its standard notice of
intent to dismiss to include the phrase, ”The trial court is invoking its
inherent power to dismiss this case for want of prosecution.” 994 S.W.2d at
635 (Enoch, J., dissenting).
7. But cf. Johnson-Snodgrass, 75 S.W.3d at 89
(holding notice of dismissal pursuant to Rule 165a(2) did not provide notice to
plaintiff of trial court’s intent to dismiss under inherent power).
8. But cf. Rainbow Home Health, Inc. v. Schmidt, 76
S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied) (holding that although
motion to reinstate requested a hearing on the motion, appellant did not
properly notify trial court of request for a hearing when appellant never filed
a fiat, sent a letter, or made some other communication to the trial court
requesting a hearing on the motion). In the instant case, Appellant’s motion
to reinstate requested a hearing, and within the court’s plenary period,
Appellant filed a separate motion requesting a hearing on her motion to
reinstate.
9. We express no opinion whatsoever upon the merits of
Appellant’s motion to reinstate her lawsuit. That issue is not before us in
this appeal.