Opinion
No. 14-04-00660-CV
Opinion filed December 15, 2005.
On Appeal from County Civil Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 705,133.
Reversed and Remanded.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN. (GUZMAN, J., dissenting.)
MAJORITY OPINION
Ann Keough appeals the denial of her motion to reinstate this personal injury action on the ground that her attorney's disbarment, effectively terminating the attorney-client relationship, and her lack of knowledge of the disbarment or trial setting, were good cause for her failure to appear at trial. We reverse and remand.
See Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1991, no writ).
Dismissal and Reinstatement Generally
A trial court's authority to dismiss for want of prosecution arises from: (1) Texas Rule of Civil Procedure 165a; and (2) the court's inherent power. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004). As relevant to this case, a trial court may dismiss under rule 165a on the failure of a party seeking affirmative relief to appear at trial for which the party had notice. TEX. R. CIV. P. 165a(1); Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). Additionally, a trial court has inherent power under the common law, independent of the rules of procedure, to dismiss where the plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 630.
However, a court may not dismiss a case for want of prosecution under either rule 165a or its inherent authority without first providing a party notice and an opportunity to be heard. Id. Failure to provide adequate notice of such intent to dismiss requires reversal. Id. Thus, a court may not dismiss on a ground other than those for which it gave notice of an intent to dismiss. See id. at 632-33 (holding that where notice informed only of a possible dismissal for failure to appear, court could not dismiss for failure to prosecute diligently). Nor does notice under one ground "charge" a party with notice under any other ground. Id. at 633. However, a party may be charged with notice of intent to dismiss under the court's inherent authority for lack of diligent prosecution by his attorney's knowledge of a local rule providing sufficient notice of: (1) the circumstances in which a case may be put on the dismissal docket; (2) the time and place at which a hearing is set on the dismissal; and (3) the showing necessary to avoid dismissal. See State v. Rotello, 671 S.W.2d 507, 508 (Tex. 1984). Where a dismissal hearing is held, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. TEX. R. CIV. P. 165a(1).
After a case has been dismissed for want of prosecution, it must be reinstated if: (1) a timely, verified motion to reinstate is filed; and (2) after a hearing, the trial court finds 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). A failure to appear is not intentional or due to conscious indifference for this purpose merely because it is negligent or even deliberate; it must also be without adequate justification. Smith v. Babcock Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995). Proof of such justification, i.e., accident, mistake, or other reasonable explanation, negates the intent or conscious indifference for which reinstatement can be denied. Id.
The dismissal and reinstatement procedure set forth in rule 165a is cumulative of the rules and laws governing any other procedures available to the parties in such cases and is applicable to all dismissals for want of prosecution, including those under the court's inherent power, whether or not a motion to dismiss has been filed. TEX. R. CIV. P. 165a(4).
The denial of a motion to reinstate is reviewed for abuse of discretion. Smith, 913 S.W.2d at 468.
Dismissal and Motion to Reinstate in this Case
In this case, no notice of intent to dismiss for failure to diligently prosecute under the trial court's inherent authority was pending on the date the case was set for trial. The trial court's order of dismissal recites:
BE IT REMEMBERED that on Tuesday, February 3, 2004, the clerk called this case for trial. DEFENDANTS appeared in person and through their attorney of record, and announced ready for trial, however, PLAINTIFF and her attorney failed to appear. Whereupon, Defendants moved this Court to dismiss this action for want of prosecution. The Court finds that this current trial date was the seventh trial setting of this matter, with the first trial setting of this matter set for May 6, 2002. The Court further finds that proper notice was sent to counsel of record advising them of this current trial setting. Accordingly, the Court finds Defendants' Motion to Dismiss meritorious and should in all things be granted.
Our record does not reflect the content of, or grounds asserted in, appellees' motion to dismiss. Regardless of those grounds, however, without having given notice of an intent to dismiss, and without giving notice of, and holding, a hearing at which Keough was given an opportunity to show good cause for the case to be maintained on the docket, the trial court had no discretion to dismiss for any reason other than failure to appear. Therefore, rather than presume that the trial court committed reversible error (by dismissing under its inherent authority for failure to diligently prosecute), we will interpret the dismissal order in favor of a construction that correctly applies the law and review this case as a dismissal and motion to reinstate for failure to appear.
See Reiss v. Reiss, 118 S.W.3d 439, 442 (Tex. 2003).
Failure to Appear
Keough's verified motion for reinstatement asserted that her failure to appear was "unavoidable" because her counsel of record was unable to practice law due to a pending disciplinary proceeding. However, attached to appellees' response to the motion to reinstate was an exhibit showing that Keough's counsel had been disbarred roughly six weeks before the trial date which had been set over two months before the date of disbarment. Therefore, it was not apparent at the time of the denial of reinstatement why Keough's failure to appear was unavoidable due to her attorney's previous disbarment; that is, why it prevented her from hiring new counsel or at least appearing in court to request a continuance. In addition, although Keough contends on appeal that she did not know of the disbarment or the trial setting, the record contains no evidence to support these allegations.
Importantly, however, the justification necessary to require reinstatement does not require a reasonable justification for making the mistake, but only a justification consisting of a mistake, as contrasted from conscious indifference. Therefore, even if Keough's failure to appear in this case resulted from a complete lack of diligence, the explanation she provided in her motion to reinstate did not amount to conscious indifference, and the trial court did not have discretion to deny it.
See Smith, 913 S.W.2d at 468. By contrast, a motion for continuance requires a showing of sufficient cause supported by affidavit, consent of the parties, or operation of law. TEX. R. CIV. P. 251. Even the absence of counsel is generally not good cause for this purpose. TEX. R. CIV. P. 253. This discrepancy between the standards for granting a continuance and reinstatement creates an apparent anomaly in which a party who is not diligent enough to appear for trial can effect a continuance (through dismissal and reinstatement), whereas a party who is diligent enough to appear, but lacks sufficient cause for a continuance, cannot.
Dissent
The dissenting opinion in this case contends that the judgment should be affirmed as a dismissal under the court's inherent authority for failure to diligently prosecute because Keough received notice of the dismissal, and because notice of either an intent to dismiss or of the order of dismissal is sufficient to satisfy the notice requirement. We do not agree that this is a correct statement of the law.
In Rotello, the Texas Supreme Court upheld a dismissal for want of prosecution, despite a lack of express notice of any intent to dismiss, because the Rotellos were charged with notice of that intent by their attorney's knowledge of the local rule pursuant to which the case was dismissed for failure to prosecute with due diligence. See Rotello, 671 S.W.2d at 508. The opinion then went on to state:
It is therefore unnecessary to consider the effect of the hearing on the Rotellos' motion for reinstatement. We would observe, however, that the hearing was held at a time the trial court had full control of the judgment. Also, the Rotellos were given the same hearing with the same burden of proof they would have been given before the order of dismissal was signed.
Id. (citations omitted). Therefore, although Rotello did not expressly so hold, it at least suggested that a hearing on a motion for reinstatement can cure a lack of advance notice of intent to dismiss, with two important qualifications.
First, to whatever extent Rotello indicates that a hearing on a motion for reinstatement can cure a lack of advance notice of the intent to dismiss, it does not remotely suggest, as the dissent would hold, that a notice of dismissal alone, i.e., a mere opportunity to file a motion to reinstate, can ever cure such a lack of notice. On the contrary, if notice of dismissal had such an effect, the Texas Supreme Court's opinion in Villarreal would have been unnecessary because, in that case, Villarreal not only had notice of the dismissal, he was present at the hearing where the trial court rendered its decision to dismiss (but did not seek reinstatement in the trial court). See Villarreal v. San Antonio Truck Equip., Inc., 974 S.W.2d 275, 276 (Tex.App.-San Antonio 1998), rev'd, 994 S.W.2d 628 (Tex. 1999).
Second, Rotello does not suggest that even a hearing on a motion for reinstatement can overcome a lack of advance notice of intent to dismiss unless (among other things) the dismissed party has the same burden of proof at the hearing on the motion to reinstate as he would have had at a dismissal hearing if one had been held (the "same hearing requirement"). Thus, in a case such as Rotello, where the dismissal and reinstatement hearing would each require a showing of good cause to maintain the case on the docket, a plaintiff is no worse off having notice of the requirement to make that showing at either one than the other.
In this case, however, unlike Rotello, not only did Keough not receive any actual or constructive notice of any requirement to show good cause on the date set for trial in order to avoid dismissal, she had no such requirement. Instead, if she had appeared for trial on that date, the trial court would have had no discretion to then dismiss for lack of diligent prosecution or failure to show good cause because it had given no notice of any such intent. See Villarreal, 994 S.W.2d at 632-33.
Even if the notice of dismissal can be read to apprise Keough (after the fact) that the case was dismissed for failure to diligently prosecute (as well as for the failure to appear), and, thus, that reinstatement would require a showing of good cause to maintain the case on the docket (as well as justification for the failure to appear), this is a different burden of proof than would have applied on the trial date if Keough had not failed to appear. Therefore, the same hearing requirement of Rotello was not met in this case, a hearing on Keough's motion to reinstate (if one had been held, which it was not) could not have cured the lack of notice of intent to dismiss for failure to diligently prosecute, and the denial of reinstatement cannot properly be affirmed under the court's inherent authority to dismiss for lack of diligence based on Keough's receipt of the notice of dismissal.
In addition, because a trial court's discretion to deny reinstatement for failure to diligently prosecute is, as a practical matter, broader than that for failure to appear, and thus more difficult to show an abuse, the dissent's position would put plaintiffs in older cases at greater peril for failure to appear than: (1) plaintiffs in more recently filed cases; and (2) what is suggested in rule 165a(3) as the standard for reinstatement for failure to appear.
Accordingly, Keough's sole issue is sustained, the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings.
DISSENTING OPINION
Because the majority concludes the trial court lacked discretion to deny appellant's motion to reinstate where appellant offered no evidence that she was unaware of her attorney's disbarment or of the trial setting, and no explanation of her failure to attend trial or to obtain other counsel, I respectfully dissent. As an independent basis for dissent, I disagree with the majority's conclusion that the trial court lacked the authority to dismiss the case for want of prosecution where the appellant's lack of advance notice of the dismissal was subsequently cured.
I. ISSUE PRESENTED
As stated by the majority, the sole issue presented for review is whether the trial court abused its discretion in denying appellant's motion to reinstate after dismissing appellant's case for want of prosecution. A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). We begin with the presumption that the action of the trial court was proper, and the burden rests on appellant to show a clear abuse of discretion. Stromberg Carlson Leasing Corp. v. Central Welding Supply Co., 750 S.W.2d 862, 864 (Tex.App.-Houston [14th Dist.] 1988, no writ). This is a heavy burden, in which the controlling question is whether appellant exhibited due diligence in prosecuting her case. Id. Appellant has not demonstrated such due diligence, but instead has only attempted to show justification for her counsel's failure to appear at trial.
1. The trial court did not abuse its discretion in denying appellant's motion to reinstate where the dismissal was based on failure to appear pursuant to TEX. R. CIV. P. 165a(1).
Appellant's verified motion to reinstate stated only the following:
This case was dismissed by an order signed on the 9th of February, 2004, for want of prosecution due to the inability of the counsel of record to appear before this court and prosecute this action. This failure was not intentional or the result of conscious indifference but unavoidable, in that counsel of record, Zerrie L. Hines, was and remains under disciplinary proceedings before the Board of Disciplinary Appeals, and therefore, unable to engage in the practice of law pending the favorable outcome of his appeal.
Appellant did not claim she was unaware her attorney had been disbarred, that she was unable to secure other counsel, or that she was unaware of the trial setting. Although appellant makes such claims on appeal, she failed to present evidence to the trial court. It was appellants' burden to place evidence supporting reinstatement before the trial court. See Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 649 (Tex.App.-San Antonio 2002, pet. denied); Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex.App.-Houston [14th Dist.] 1975, no writ) (failure of the plaintiff to offer proof of his grounds for reinstatement justified the court's denial of his motion); see also HRN, Inc. v. Shell Oil Co., 102 S.W.3d 205, 217 (Tex.App.-Houston [14th Dist.] 2003), rev'd on other grounds, Shell Oil Co. v. HRN, Inc., 144 S.W.3d 429 (Tex. 2004) (where parties were dismissed from suit for failure to comply with discovery, motion to reinstate that alleged compliance with discovery order but produced no evidence of such compliance was properly denied). In the absence of such proof, the trial court properly denied appellant's motion to reinstate. See Smith v. Babcock Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995) (" [p]roof of such justification — accident, mistake or other reasonable explanation — negates the intent or conscious indifference for which reinstatement can be denied") (emphasis added) (citing Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992)).
In fact, it did not even state that her attorney had been disbarred. The only evidence of the disbarment was presented by appellees.
The majority cites Smith for the proposition that the justification necessary to require reinstatement does not require a reasonable justification for making the mistake, but only a justification consisting of a mistake. Smith, 913 S.W.2d at 468. I agree that Smith excuses an attorney's failure to appear at trial where that failure is based on a mistake, even if the mistake may not have been reasonable. However, this proposition does not apply to the present case. Appellant did not allege that a mistake caused her attorney's failure to appear at trial, or that she was mistaken regarding the trial setting. She did not blame her failure to appear at trial or to obtain substitute counsel on a mistake.
Based on appellant's failure to offer evidence explaining her failure to appear for trial or to secure substitute counsel, I would find that the trial court did not abuse its discretion in denying appellant's motion to reinstate.
2. The trial court did not abuse its discretion in denying appellant's motion to reinstate where court's failure to supply notice of the intent to dismiss was cured by actual notice of the dismissal in time for appellant to file a motion to reinstate and to exercise the opportunity to be heard.
The order dismissing the case does not state the grounds on which it was based. The court may have dismissed the case pursuant to TEX. R. CIV. P. 165a(1) based upon the failure of appellant and her counsel to appear at trial, as discussed above. It is also possible that the court dismissed the case pursuant to its own inherent authority to dismiss cases for want of prosecution, to which I now turn.
Appellant concedes that where an order dismissing a case does not state the grounds on which it was granted, the party seeking reinstatement must negate all possible grounds for dismissal. See Shook v. Gilmore Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex.App.-Waco 1997, pet. denied). Appellant's motion to reinstate claims that the case was dismissed "for want of prosecution due to the inability of the counsel of record to appear before this court and prosecute this action." This statement misrepresents the content of the order of dismissal. The court did not restrict the basis of its dismissal order to the failure of appellant's counsel to appear at trial, although that was one of the factors it considered. Because the record does not contain the motion to dismiss we do not know what grounds for dismissal were originally asserted. But, we note that appellees' responses to appellant's motion to reinstate did not limit the argument to the failure of appellant and her counsel to appear at trial. To the contrary, appellees consistently urged dismissal pursuant to the trial court's inherent power to dismiss for want of prosecution, as well as TEX. R. CIV. P. 165a.
Because the grounds for dismissal were not stated, appellant bore the burden not only to reasonably explain her absence and that of her counsel, but also to show that she had diligently prosecuted her case. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 130 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (movant for reinstatement bears the burden of producing proof of diligent prosecution, and trial court does not abuse discretion in denying reinstatement where movant fails to produce such evidence). Even agreeing with the majority that appellant's verified motion to reinstate offers a reasonable explanation for her prior counsel's absence from trial, it does not explain the appellant's absence, her failure to secure other counsel, or her failure to request a continuance. Though appellant's successor counsel later asserted that appellant had no knowledge of either the trial setting or of the disciplinary proceedings, no evidence was offered in support of these allegations. Moreover, these matters pertain only to the appellant's failure to appear and to prosecute the case on the date of trial, and do not address the lack of diligent prosecution at any other time.
It is true that the trial court failed to give appellant advance notice of its intent to dismiss the case. It is also true that no motion to dismiss was pending on the date the case was set for trial. The majority therefore concludes that the trial court could not dismiss the case pursuant to its inherent authority for want of prosecution, but only pursuant to TEX. R. CIV. P. 165a(1) for failure of the appellant and her counsel to appear at trial. I disagree that lack of notice necessarily has this effect.
The majority finds it significant that no motion to dismiss for want of prosecution was pending on the trial date, and points out that appellant would have had no requirement to show good cause to retain the case on the docket on that date. But, it is also true that no motion to dismiss on any basis was filed until after the trial setting, and until the court or opposing counsel moved to dismiss the case on some basis, appellant was not required to respond. Once the court or opposing counsel sought to have the case dismissed, appellant was required to respond to the grounds raised. Because we do not know the basis of the motion to dismiss, we have no reason to assume that it did not address want of prosecution in addition to failure to appear. We also have no reason to assume that no one raised the issue of want of prosecution after the trial setting simply because the issue was not pending on the trial date. In fact, the case had been dismissed and reinstated on these grounds before.
This court, among others, has long held that the trial court does not abuse its discretion by denying a motion to reinstate where the appellant (a) receives notice of the actual order of dismissal in time to file a motion to reinstate, and (b) has an opportunity to be heard on the motion to reinstate. See, e.g., Polk v. Southwest Crossing Homeowners Ass'n, 165 S.W.3d 89, 94-95 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Jimenez v. Transwestern Property Co., 999 S.W.2d 125, 128 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Wright v. Texas Dept. of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648-50 (Tex.App.-San Antonio 2002, pet. denied); Franklin v. Sherman Independent School Dist., 53 S.W.3d 398, 400-04 (Tex.App.-Dallas 2001, pet. denied). Because the issues and burden of proof on a motion to reinstate are the same as those for a motion to dismiss, the lack of notice is cured where the appellant has the opportunity to address them through a motion to reinstate. See Polk, 165 S.W.3d at 95. The due process concerns raised by lack of notice apply equally to dismissals pursuant to the court's inherent authority and to those arising under TEX. R. CIV. P. 165a. Regardless of the basis for the dismissal, the dismissal is subject to cure where the appellant receives notice of the actual order of dismissal in time to file a motion to reinstate and an opportunity to be heard. See Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648-50 (Tex.App.-San Antonio 2002, pet. denied) (discussing cure of late notice with regard to dismissals under the court's inherent authority and pursuant to TEX. R. CIV. P. 165a). Appellant received actual notice of the order of dismissal, and timely filed a motion to reinstate. There is no indication that she did not have the opportunity to be heard. The trial court's lack of notice of intent to dismiss was therefore cured. As a result, the court could properly deny the motion to reinstate, regardless of the basis on which the dismissal was based.
Though no hearing was held on the motion, appellant did not request a hearing. 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 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Appellant had the opportunity to be heard, regardless of whether she chose to use that opportunity.
3. The trial court did not err in denying appellant's motion to reinstate a case dismissed pursuant to the court's inherent authority to dismiss for want of prosecution where appellant failed to provide evidence of diligent prosecution.
When deciding whether to dismiss a case for want of prosecution, the court may consider the amount of activity in the case, the length of time the case was on file, requests for a trial date, and the existence of reasonable excuses for delay. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex.App.-Houston [14th Dist.] 1993, no writ). In its order dismissing the case, the trial court points out that notice of the trial setting had been properly sent to appellant's counsel, and that both appellant and her counsel failed to appear when the case was called for trial; however, the court did not limit its consideration to this non-appearance, but further observed that this was the seventh trial setting of the matter in approximately twenty-one months. The order denying appellant's motion to reinstate further reveals that the trial court reviewed the pleadings and docket entries in the matter. These are all factors properly considered by the trial court when dismissing a case for want of prosecution. The record shows that the case had been on file since 1998, that it had already been reinstated once after a prior dismissal for want of prosecution, and that previous trial settings had been continued on more than one occasion at appellant's request. Given this history and appellant's own failure to produce any evidence in support of the motion, I would not hold that the court abused its discretion in denying reinstatement.
II. CONCLUSION
Because (a) the lack of advance notice of intent to dismiss was cured, (b) the case could therefore have been properly dismissed under TEX. R. CIV. P. 165a(1), (c) the case could have been properly dismissed under the court's inherent authority to dismiss for want of prosecution, and (c) appellant failed to produce any evidence in support of the motion to reinstate, I would hold appellant did not meet her burden to show the trial court had abused its discretion. I would therefore affirm the judgment of the court below.