Opinion
No. 05-07-01647-CV
Opinion issued December 1, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-07-10765-A.
Before Justices BRIDGES, FITZGERALD, and LANG.
MEMORANDUM OPINION
Harris N.A. sued Eugenio Obregon for breach of contract, alleging that he had defaulted on a car loan. Three and a half months later, the trial court dismissed the case for want of prosecution. Harris appeals. We reverse and remand for further proceedings because the trial court did not give Harris adequate notice of the court's intent to dismiss the case.
I. Background
Harris filed this breach-of-contract suit against Obregon on July 24, 2007. Obregon was served with process on August 2, but he never answered or otherwise appeared. On August 7, the trial court issued a letter setting the case for dismissal on November 2 at 9:00 a.m. In that letter, the court advised that it expected Harris to prove up a default judgment on or before that deadline in the event Obregon failed to answer, and that Harris's "failure to have done so will result in the dismissal of the case on the above date."
On September 18, 2007, Harris filed a "Plaintiff's Soldier and Sailor Affidavit," a certificate of last known mailing address, and an affidavit intended to prove up its attorneys' fees in prosecuting the case. Our record next contains an unsigned letter from the trial judge to "Counsel of Record" dated September 24. By that letter, the trial court returned Harris's proposed default judgment unsigned because of six perceived deficiencies in Harris's pleadings and proof.
Harris responded to the trial court's deficiency letter by a letter from counsel dated October 5 and filemarked October 18. Harris included certain documents with that letter to address some of the perceived deficiencies, and it argued that other perceived deficiencies were not well-founded. In that letter, Harris requested a prompt hearing in the event the court did not deem the record sufficient for entry of a default judgment. On October 18, the trial judge signed an "Order to Amend Petition." In that order, the judge recited that she was returning Harris's proposed default judgment unsigned because of four perceived deficiencies in Harris's pleadings and proof. Moreover, the judge ordered Harris to amend its petition to correct the deficiencies within 30 days. The order recites, "Should the Plaintiff fail to amend and serve its amended petition in a timely manner, this case will be dismissed for want of prosecution on or after the 31st day after this Order is signed." Also on October 18, Harris filed a letter in which it requested a "hearing on the record for final disposition of this case on November 2, 2007 at 9:00 a.m." in the event the court did not render default judgment for Harris before then.
On October 26, Harris filed a motion requesting a hearing "on entry of default judgment" or alternatively a hearing regarding the court's intention to dismiss the case for want of prosecution. The record contains no order disposing of that motion. The next item in our record is a second deficiency letter from the trial court, dated October 28. That letter again recites that the court is returning Harris's proposed default judgment unsigned, and it identifies five perceived deficiencies in Harris's pleadings and proof. On November 2, the judge signed an order dismissing the case without prejudice for two reasons: (1) failure to appear for a hearing or trial of which notice was had, and (2) want of prosecution.
Harris timely perfected this appeal.
II. Analysis
In three issues, Harris complains of the trial court's order dismissing the case, the trial court's failure to render a default judgment for Harris, and the trial court's failure to set Harris's motion for hearing.
A. Default judgment
In its second issue, Harris complains of the trial court's refusal to render default judgment in its favor or set its motion for hearing. We review the denial of a default judgment for abuse of discretion. Resurgence Fin., LLC v. Taylor, No. 05-07-01492-CV, 2009 WL 2712387, at *3 (Tex. App.-Dallas Aug. 31, 2009, pet. filed). "With respect to factual matters, a trial court abuses its discretion if, under the record, it reasonably could have reached only one decision and it failed to do so. However, because a trial court has no discretion in determining what the law is or applying the law to the facts, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion." Moroch v. Collins, 174 S.W.3d 849, 864-65 (Tex. App.-Dallas 2005, pet. denied) (citations omitted). "Another way of stating the test is whether the act was arbitrary or unreasonable." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
We conclude that the trial court did not abuse its discretion by denying Harris's request for a default judgment on the ground that Harris's cause of action was not adequately pleaded. Harris pleaded that Obregon entered into a retail installment contract with Rodeo Ford to buy a pickup truck from Rodeo Ford. Harris attached the contract to its petition, and the contract reflects that the contracting parties were Obregon and Rodeo Ford. Harris did not allege that it loaned the purchase money to Obregon, nor did it allege that Rodeo Ford assigned the debt to Harris. The attached contract indicates that Rodeo Ford assigned away its interest in the contract, but the space for the name of the assignee is left blank. Given these facts, we conclude that the trial court did not act arbitrarily or unreasonably by refusing to render default judgment in favor of Harris.
As for the trial court's failure to conduct a hearing on Harris's request for default judgment, Harris does not support this part of its second issue with argument or authorities, so we decline to consider it. See In re M.A.S., 233 S.W.3d 915, 924 (Tex. App.-Dallas 2007, pet. denied) ("Failure to provide substantive analysis waives an issue on appeal."). Moreover, we note that the trial judge's operating rules provide that a party may obtain a hearing by contacting her clerks at a specified telephone number. Although Harris requested a hearing in writing several times, it does not argue that it ever called the court to request a hearing before the case was dismissed.
See http://www.judgedmetriabenson.com/Court%20Procedures.htm.
We resolve Harris's second issue against it.
B. Dismissal
In its first and third issues, Harris argues that the trial court erred by dismissing its case for want of prosecution. We review a dismissal for want of prosecution for abuse of discretion. Crown Asset Mgmt., L.L.C. v. Loring, No. 05-07-01418-CV, 2009 WL 2596101, at *2 (Tex. App.-Dallas Aug. 25, 2009, pet. filed) (en banc).
Harris argues that the trial court abused its discretion by dismissing its case without proper notice and an opportunity to be heard. The supreme court has held that "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." Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). In this case, the trial court initially gave Harris notice that it would dismiss the case for want of prosecution on November 2, 2007 at 9:00 a.m. But in its October 18 order to amend petition, the court gave Harris 30 days to amend its petition and further ordered, "Should the Plaintiff fail to amend and serve its amended petition in a timely manner, this case will be dismissed for want of prosecution on or after the 31st day after this Order is signed." Harris argues that the trial court deprived it of notice and hearing by dismissing on November 2 after thus notifying Harris that the case would not be dismissed until, at the earliest, November 18. We agree.
The trial court's October 18 order expressly gave Harris 30 days to file an amended petition that corrected certain specified deficiencies. The only way to give this order effect is to treat it as modifying the court's prior order advising that the case would be dismissed on November 2 at 9:00 a.m. unless Harris had previously proved up a default judgment. In other words, the October 18 order unambiguously extended Harris's time to take the necessary action until November 18. Thus, Harris was no longer on notice that its case could be dismissed for want of prosecution on November 2. This case is analogous to Crown Asset Management., L.L.C. v. Jackson, No. 05-07-01337-CV, 2008 WL 4648416 (Tex. App.-Dallas Oct. 22, 2008, no pet.) (mem. op.). In that case, the trial court set a dismissal date of September 28, 2007. Id. at *1. On September 20, it sent the plaintiff a letter advising that the plaintiff's motion for default judgment suffered from certain specified deficiencies. Id. On September 21, the court dismissed the case for want of prosecution. Id. We reversed, both because the trial court dismissed the case earlier than its notice had provided for and because the dismissal deprived the plaintiff of the opportunity to cure the deficiencies previously pointed out by the court. Id. at *2. We reach the same conclusion in this case. The trial court's failure to provide proper notice of its intent to dismiss for want of prosecution requires reversal.
III. Disposition
We reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.