Opinion
NO. 14-15-00193-CV
07-21-2016
JOYCE HENDERSON, Appellant v. NAEL MASALMA D/B/A SUPER STOP FOOD MART, Appellee
On Appeal from the 333rd District Court Harris County, Texas
Trial Court Cause No. 2013-02717
MEMORAMDUM OPINION
This appeal arises from the trial court's dismissal of a personal-injury suit on the defendant's motion. Appellant, Nathan Henderson, the Independent Administrator of Joyce Henderson's estate, brings this appeal claiming that the trial court abused its discretion by dismissing the suit and then denying his motion to reinstate. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joyce Henderson ("Joyce") filed suit against Nael Masalma d/b/a Super Stop Food Mart ("Masalma") on April 23, 2013, for injuries arising from a "slip and fall" on the Mart's premises. On May 1, 2013, Masalma entered an appearance and made demand for a jury and paid the jury fee. Joyce died on August 29, 2013. Masalma filed a Suggestion of Death on November 15, 2013, and requested that the Clerk issue scire facias for the heirs, administrator, or executor of Joyce's estate to appear and prosecute the suit. On June 12, 2014, Malsama requested issuance of the writ and on July 18, 2014, appellant was served.
A scire facias under Texas Rule of Civil Procedure 151 is a writ served on the deceased plaintiff's heirs or the deceased plaintiff's administrator or executor commanding the heirs, administrator, or executor to appear and prosecute the suit in place of the deceased plaintiff. Tex. R. Civ. P. 151. If the writ of scire facias is served on the decedent's heirs or the decedent's administrator or executor, and the served party or parties fail to appear in the lawsuit within the time provided, the trial court may dismiss the lawsuit. Id.
On September 16, 2014, Joyce's will was admitted to probate in Probate Court Number One of Harris County, Texas. The trial court appointed appellant as Independent Administrator of Joyce's estate. On December 15, 2014, Malsama moved to dismiss the lawsuit on two independent grounds: (1) under Texas Rule of Civil Procedure 151 because appellant failed to appear in the lawsuit within the time provided in the writ of scire facias, and (2) under Texas Rule 165a for want of prosecution. Joyce's trial counsel was served with notice an oral hearing was to be held January 23, 2015. On December 18, 2014, the trial court signed the order granting the motion to dismiss without specifying the basis for the dismissal. In the order, the trial court recited that proper notice had been given and that all requirements of the law had been met.
Appellant moved to reinstate the personal injury suit on January 7, 2015. The motion included a Fifth Amended Petition naming appellant, as Executor of the Estate of Joyce Henderson, Deceased, as plaintiff. The motion stated that it was appellant's understanding that Masalma's "Motion to Dismiss for Want of Prosecution" would be heard on January 23, 2015, but the trial court dismissed the case for want of prosecution on December 18, 2014, "which was more than 30 days before the original hearing date." In the background section of the motion, appellant stated that he resides over eight hundred miles away and "works a variety of hours at his job." These were the only reasons asserted by appellant as to why the trial court should grant his motion to reinstate. The trial court denied the motion on January 29, 2015, without a hearing.
Although appellant did not argue the trial court should grant his motion to reinstate based on these facts, for the sake of argument we will presume he did.
II. MOTION TO DISMISS
As noted above, Masalma's motion to dismiss was based on both appellant's failure to appear as ordered by the writ of scire facias and want of prosecution. See Tex. R. Civ. P. 151 and 165a. The order of dismissal does not specify on which ground it was based. The record does not reflect appellant requested findings of fact and conclusions of law and none were filed. To show that the trial court erred in dismissing the lawsuit, appellant must show that the trial court erred in dismissing based on Rule 151 and based on Rule 165a. See Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 96 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
Appellant first argues that, when the writ of scire facias was served on him, he was not Joyce's heir, administrator, or executor and therefore the trial court erred in dismissing under Rule 151 because the service of the writ did not comply with Rule 151 and was of no legal effect. Although appellant had the opportunity to present this argument to the trial court as a basis for setting aside the order of dismissal, appellant did not raise this argument in the trial court. We therefore conclude that appellant failed to preserve error in the trial court as to this challenge to the trial court's dismissal. See Tex. R. App. P. 33.1(a)(1)(A); Burnett v. Carnes Funeral Home, Inc., No. 14-12-01159-CV, 2014 WL 2601567, at *6 (Tex. App.—Houston [14th Dist.] June 10, 2014, no pet.) (mem. op.). Therefore, we must affirm the trial court's ruling on that basis.
Appellant also argues on appeal that the trial court granted the motion to dismiss on December 18, 2014, yet the only notice of hearing provided to his counsel set a hearing date of January 23, 2015. Therefore, appellant asserts, the trial court gave him no notice of the date and place of the hearing on the motion to dismiss. Appellant also asserts the trial court violated Rule 3.3.3 of the Rules of the Civil Trial Division of the Harris County District Courts, which provides the date for motions to be heard by written submission must be at least ten days from the date of filing. For these reasons, appellant asserts the trial court did not provide him with a meaningful opportunity to be heard and deprived him of due process. In the trial court's dismissal order, the court recited that proper notice had been given and that all requirements of the law had been met. We presume the trial court heard the motion to dismiss only after proper notice to the parties, and appellant would have the burden to affirmatively show that he was not given proper notice. See Boateng v. Trailblazer Health Enterprises, L.L.C., 171 S.W.3d 481, 492 n.4 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Jones v. Tex. Dept. of Public Safety, 803 S.W.2d 760, 761 (Tex. App.—Houston [14th Dist.] 1991, no writ).
In the trial court, appellant did not assert any of the following: (1) after service of the writ of scire facias, Texas law requires that additional notice be given to the party served with the writ before the trial court may dismiss the lawsuit under Rule 151; (2) the notice of hearing setting a hearing date of January 23, 2015, was the only notice provided to appellant's counsel; (3) the trial court gave appellant no notice of the date and place of the hearing on the motion to dismiss; (4) the trial court did not provide appellant with a meaningful opportunity to be heard; (5) the trial court deprived appellant of due process; or (6) the trial court violated Rule 3.3.3 of the Rules of the Civil Trial Division of the Harris County District Courts. By failing to voice these complaints in the trial court despite an opportunity to do so, appellant failed to preserve error as to these challenges to the trial court's dismissal. See Tex. R. App. P. 33.1(a)(1)(A); Burnett, 2014 WL 2601567, at *6 (holding party failed to preserve error in trial court as to lack of notice complaint); Levy v. CACH, L.L.C., No. 14-12-00905-CV, 2013 WL 6237273, at *4 (Tex. App.—Houston [14th Dist.] Dec. 3, 2013, pet. denied) (mem. op.) (holding party waived due-process complaint by failing to object in trial court).
Masalma has argued that no such notice is required.
III. MOTION TO REINSTATE
Appellant also claims the trial court abused its discretion when it failed to hold a hearing on his motion to reinstate in accordance with Texas Rule of Civil Procedure 165a(3). See Tex. R. Civ. P. 165a(3). The record reflects that contained within the motion to reinstate is a request for an oral hearing. However, two days later appellant's counsel filed a notice of submission which states the motion "will be set on the Court's Submission Docket for Monday, January 19, 2015 @ 9 am without the necessity of an Oral Hearing unless one is requested by you."
We presume, without deciding, that the reinstatement procedure of Rule 165a applies to dismissals under Rule 151 and that this argument relates to the dismissal under Rule 151. See State v. Davis, No. 12-04-00010-CV, 2005 WL 737016, at *2 (Tex. App.—Tyler Mar. 31, 2005, pet. denied) (mem. op.); Alfred v. Digital Equip. Corp., No. 05-96-01580-CV, 1998 WL 427259, at *1-2 (Tex. App.—Dallas July 30, 1998, no pet.) (not designated for publication).
Rule 165a(3) requires a trial court to set an oral hearing on any timely filed and properly verified motion to reinstate after dismissal of a suit for want of prosecution. See Tex. R. Civ. P. 165a(3); Thordson v. City of Houston, 815 S.W.2d 550 (Tex. 1991). However, "before trial court error can be found in the failure to set a hearing on a motion to reinstate the movant must request a hearing." Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 618-19 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (stating that a party may not lead a trial court into error and then complain about it on appeal). See also Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied) (holding trial court did not err in failing to conduct a hearing on motion for reinstatement when appellants failed to call to the trial court's attention the need for a hearing). Although a hearing was initially requested, it was then expressly waived. Accordingly, appellant did not preserve error as to this complaint that the trial court failed to hold an oral hearing on his motion to reinstate. See Johnson v. Sepulveda, 178 S.W.3d 117, 119-20 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Cabrera, 834 S.W.2d at 618-19.
Lastly, appellant contends the trial court erred in denying his motion to reinstate because his failure to appear was not due to conscious indifference. In the trial court, appellant did not address whether his failure to appear was intentional or due to conscious indifference; appellant did not assert that the trial court should set aside its dismissal or reinstate the case because his failure to appear was not due to conscious indifference. By failing to voice this complaint in the trial court despite an opportunity to do so, appellant failed to preserve error as to this challenge. See Tex. R. App. P. 33.1(a)(1)(A); Burnett, 2014 WL 2601567, at *6.
We presume, without deciding, that this assertion would be a valid basis for setting aside a dismissal under Rule 151 and that this argument challenges the dismissal under Rule 151.
IV. CONCLUSION
Having concluded that appellant failed to preserve error in the trial court as to all of his appellate arguments in which he arguably challenges the dismissal of the lawsuit under Rule 151, we overrule appellant's sole issue. The judgment of the trial court is affirmed.
Because we conclude appellant failed to preserve error, we do not reach the merits of his Rule 151 arguments. --------
/s/ John Donovan
Justice Panel consists of Chief Justice Frost and Justices Christopher and Donovan.