Opinion
NO. 03-16-00670-CV
08-24-2017
Amy Coello, Appellant v. Kimberly Labarbera, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
NO. C2012-0706D , HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION
Amy Coello, appearing pro se, appeals from the trial court's order dismissing a lawsuit between her and Kimberly Labarbera for want of prosecution. Coello complains that the manner in which the trial court conducted a hearing on her motion to retain the case violated her due process rights and argues that the trial court abused its discretion in denying her motion to retain and dismissing her claims for want of prosecution. We will affirm.
The lawsuit was initially brought by Labarbera against Coello, who then filed counterclaims against Labarbera. Labarbera advocated for, and does not challenge, the court's dismissal of the entire case.
BACKGROUND
Labarbera filed her original petition in May 2012, asserting causes of action for defamation against Coello and the attorney who had represented Coello in connection with a suit Coello had previously filed against Labarbera's husband, Anthony Labarbera. In July 2012, Coello, representing herself, filed counterclaims for defamation, tortious interference with existing contracts, invasion of privacy and public disclosure of private facts, and intentional infliction of emotional distress. In September 2013, an attorney appeared for Coello and filed an amended counterclaim adding causes of action for libel. A final amended counterclaim was filed in March 2014 adding causes of action for tortious interference with business opportunity, business disparagement, and abuse of process.
Coello and Anthony Labarbera are the parents of a child, and the record reflects that the previous suit was related to child support for that child.
The record reflects that there was little activity in the case between its original filing and August 2016 when the case was placed on the court's dismissal docket. Coello's co-defendant was dismissed from the case by agreement in November 2013. Labarbera had filed some business records, and Coello filed motions to compel discovery in October 2013 and a response to a motion to quash in November 2013. The parties agreed to a mediation in April 2014, but did not reach a settlement, and Labarbera took Coello's deposition in July 2014. A year later Coello's attorney filed a motion to withdraw, which the trial court granted. The motion to withdraw indicates that as of July 2015, there was no trial setting for the case. Another year passed with no activity in the case. According to Coello's brief, she checked Comal County's online records in August 2016 and discovered that the case had been assigned to the court's "Drop Docket." According to Coello, she then called the court and also called counsel for Labarbera to "request a final trial date" but got no response. Coello then filed a motion to retain, which was set for a hearing on August 31, 2016.
After the hearing on the motion to retain, at which Coello and counsel for Labarbera appeared and presented argument, the trial court ordered the case dismissed without prejudice for want of prosecution. Coello then filed a motion to reinstate, which was overruled by operation of law. This appeal followed.
STANDARD OF REVIEW
A trial court may dismiss a case for want of prosecution under either rule 165a of the Texas Rules of Civil Procedure or the court's inherent power. Tex. R. Civ. P. 165a; Herrera v. Rivera, 281 S.W.3d 1, 5 (Tex. App.—El Paso 2005, no pet.). After scheduling a dismissal hearing, the trial court shall dismiss for want of prosecution unless there is good cause for the case to be maintained. Tex. R. Civ. P. 165a(1). The trial court may consider the entire history of the case, including the amount of time the case was on file, the amount of activity in the case, any requests for a trial setting, and any reasonable excuses for delay. City of Hous. v. Thomas, 838 S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ). The decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court and can only be disturbed on appeal if we find a clear abuse of discretion. Herrera, 281 S.W.3d at 6 (citing State v. Rotello, 671 S.W.2d 507, 508 (Tex. 1984), Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957)).
Under rule 165a, a trial court may dismiss a case for want of prosecution if a party seeking affirmative relief fails to appear for a hearing or trial of which he had notice or if he fails to comply with the time standards promulgated by the supreme court. Tex. R. Civ. P. 165a(1), (2).
A trial court has the inherent authority to dismiss a case that has not been diligently prosecuted. Maida v. Fire Ins. Exch., 990 S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.).
DISCUSSION
In her first issue on appeal, Coello contends that the trial court did not afford her due process before dismissing her case for want of prosecution. In her brief Coello argues that she "simply wanted to be afforded the opportunity to have a hearing in a meaningful way to show the court that she has never missed a deadline or hearing in four years" and "that she diligently has prosecuted this case." We understand Coello to complain that the trial court's hearing on her motion to retain before dismissing her suit did not provide her with "an opportunity to be heard." See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (before dismissal of case for want of prosecution under either rule 165a or under court's inherent authority, plaintiff must be provided with notice and opportunity to be heard). The question here, then, is whether the trial court provided Coello with the required opportunity to be heard before dismissing the case.
Generally, due process does not require an oral hearing on a motion but only an opportunity to respond at a meaningful time and in a meaningful manner. Long v. Yurrick, 319 S.W.3d 944, 948 (Tex. App.—Austin 2010, no pet.). This Court has previously held that due process does not require that an oral hearing be held before a court may dismiss a case for want of prosecution under its inherent power. See Enriquez v. Livingston, 400 S.W.3d 610, 617 (Tex. App.—Austin 2013, pet. denied) ("We see no reason why the 'opportunity to be heard' necessary for due process before a suit may be dismissed for want of prosecution under the court's inherent power should necessitate an oral hearing."). We also noted the "apparent disagreement among Texas courts as to whether the trial court is required to hold an oral hearing before dismissing a suit" pursuant to rule 165a. See id. at 617 n.2 (comparing Brown v. Brookshires Grocery Store, 10 S.W.3d 351, 354 (Tex. App.—Dallas 1999, pet. denied), with Comeaux v. Gage, No. 09-11-00254-CV, 2012 WL 1249236, at *2 (Tex. App.—Beaumont Apr. 12, 2012, pet. denied) (mem. op.)).
It is not clear on this record whether the trial court's dismissal was pursuant to rule 165a for failure to dispose of the case within the time standards promulgated by the Texas Supreme Court under its administrative rules or pursuant to the trial court's inherent power under the common law. It is not necessary to resolve this question, however, because the trial court did conduct an oral hearing on Coello's motion to retain the case on the court's docket. Coello's complaint is that she "was not permitted to bring forth adequate testimony" at the hearing in contrast to Labarbera's counsel who, according to Coello, "was allowed to properly present her [motion to dismiss] before the court." Coello argues that she was not given a meaningful opportunity by the trial court to show that she has diligently prosecuted her case. Thus, the essence of Coello's first issue is her dissatisfaction with the manner in which the trial court conducted the oral hearing and her disappointment that, in her view, she was prevented from making arguments she wanted to make and from introducing evidence she wanted to introduce.
The record reflects that Coello was present at the hearing on her motion to retain and made arguments to the trial court in support of that motion. Before the hearing, Coello filed a motion to retain in which she had an adequate opportunity to explain why her case should be retained on the court's docket. Coello could also have provided affidavits if necessary to support her arguments. Coello's discontentment with the proceedings does not establish a due process violation or the denial of her opportunity to be heard. Coello had an opportunity, both in writing and at the oral hearing, to respond to the proposed dismissal of her case at a meaningful time and in a meaningful manner, which is all that due process requires. See Long, 319 S.W.3d at 944. We overrule Coello's first issue.
While Coello seems to complain on appeal that she was not permitted to introduce relevant evidence at the hearing, she made no such objection in the trial court nor did she make an offer of proof of what evidence she believed the trial court erroneously excluded. Consequently, any complaint about the trial court's alleged refusal to admit evidence proffered at the hearing has been waived. See Tex. R. App. P. 33.1(a); see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants are held to same standards as licensed attorneys and are required to comply with applicable laws and rules of procedure).
In her second and third issues, Coello complains that the trial court abused its discretion by dismissing her case. Coello argues that despite evidence of her attempts to diligently prosecute her case and "good cause for her reasonable excuse for delay," the trial court dismissed her case, evidencing its failure to act with reference to guiding rules or principles. See Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (trial court abuses its discretion when it acts "arbitrarily or unreasonably, without reference to guiding rules or principles"). The trial court's dismissal order does not indicate whether the dismissal was pursuant to the court's inherent power or because it was not disposed of within the time standards promulgated by the Texas Supreme Court under its Administrative Rules. See Tex. R. Civ. P. 165a(2); Tex. R. Jud. Admin. 6.1(b), reprinted in Tex. Gov't Code, tit. 2, subtit. F app. (district court should ensure that all civil jury cases are brought to trial within 18 months from appearance date and all civil nonjury cases are brought to trial within 12 months from appearance date). There is no dispute, however, that the case was not disposed of within 18 months from the date that Coello filed her appearance. Thus, absent good cause for the delay, the trial court's dismissal would not have been arbitrary or unreasonable or without reference to guiding rules or principles. With respect to a dismissal pursuant to the trial court's inherent power, the record reflects a significant lack of activity in the case, including the fact that the only action taken on the case from the date Coello was deposed in August 2014 until the case was placed on the dismissal docket two years later was the withdrawal of Coello's counsel. By the time the trial court dismissed the case it had been on file for over four years and had never been set for trial.
Because the record does not contain findings of fact or conclusions of law specifying the reasons for the trial court's judgment, we must affirm the judgment on any applicable legal theory supported by the record. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Sellers v. Foster, 199 S.W.3d 385, 391 (Tex. App.—Fort Worth 2006, no pet.).
Coello maintains on appeal that this case is "complex" and that she therefore believed that she was not bound by the time standards for disposition of civil cases. See Tex. R. Jud. Admin. 6.1(e), reprinted in Tex. Gov't Code, tit. 2, subtit. F. app. ("It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards."). Coello did not, however, present the trial court with evidence or argument that her case was, or even that she believed it to be, sufficiently complex that it was not possible to adhere to the general time standards for civil cases. Nor is there anything on the face of her pleadings or elsewhere in the record that would so indicate.
In her motion to retain, Coello attributed the delay in prosecuting her claims against Labarbera to the fact that her attorney had withdrawn, and she argued that although she had attempted to retain new counsel, that had "proven to be very difficult and emotionally taxing" due to the fact that this is "a volatile case that is so close to the trial date." Coello's motion also stated that she "needed time to begin to recover from all of the emotional harm [Labarbera] inflicted on her" and "now needs time to pickup where her former attorney left off and prepare to try [the] case pro se." The motion to retain referred to "new witnesses" and stated that Coello "needed time to prove that her business and ministry were financially injured by [Labarbera's] harassment and defamatory acts." The motion to retain was not verified, nor was it supported by any affidavit or other evidence. Coello has not identified any of the new witnesses that she referenced in her motion to retain. At the hearing on the motion to retain, Coello again stated that she had been looking for a lawyer for over a year and that "it's been very difficult to find a lawyer because for a defamation case, you know, it is like $10,000."
On this record, we cannot conclude that the trial court acted arbitrarily or unreasonably in finding that Coello demonstrated a lack of diligence in prosecuting the case and that she did not provide a reasonable excuse for that delay. A party's lack of financial ability to prosecute the action does not provide a sufficient excuse. See Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 56-67 (Tex. App.—San Antonio 2002, pet. denied); Christian v. Christian, 985 S.W.2d 513, 515-16 (Tex. App.—San Antonio 1998, no pet.). Coello's inability to marshal the proof necessary to establish an essential element of her claim—damages—is likewise not a reasonable excuse for delay. Evidence that Coello's businesses and ministry suffered financial harm resulting from Labarbera's alleged actions should have been readily available to her.
Generally, a case will be properly dismissed when it has been on file for a considerable period of time with little or no substantive activity and there is no reasonable excuse offered for the failure to prosecute. See, e.g., Rainbow Home Health, 76 S.W.3d at 56 (record showed period of 23 months in which little to no activity had occurred in case); Brim Laundry Mach. Co. v. Washex Mach. Corp., 854 S.W.2d 297, 301, 302 (Tex. App.—Fort Worth 1993, writ denied) (case had been on file for five years and nothing in record indicated that appellant diligently attempted to secure trial setting). There was little activity in this case for the four years it was on file and, other than the withdrawal of Coello's counsel, there was no activity during the year preceding dismissal. The case had never been set for trial until Coello requested a trial setting in her motion to retain. See Christian, 985 S.W.2d at 516 (when failure to exercise due diligence has been established, "whether a party later becomes active and requests a trial setting is immaterial"). On this record we cannot say that the trial court abused its discretion in dismissing the case. Coello's second and third issues are overruled.
CONCLUSION
Having overruled Coello's three appellate issues, we affirm the trial court's order of dismissal without prejudice.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: August 24, 2017