Opinion
No. 05-20-00160-CV
03-17-2021
NORGUARD INSURANCE CO., Appellant v. A.N.D. HOME HEALTHCARE, LLC D/B/A HELPING HANDS HOME SERVICES, Appellee
On Appeal from the County Court at Law No. 7 Collin County, Texas
Trial Court Cause No. 007-03097-2019
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Schenck
Norguard Insurance Co. appeals the trial court's dismissal of its action for want of prosecution. Norguard sued appellee A.N.D. Home Healthcare, LLC, alleging A.N.D. failed to pay insurance premiums owed to Norguard. In a single issue, Norguard argues the trial court erred by dismissing its causes of action with prejudice and seeks modification of the dismissal order to be "without prejudice." We so modify the trial court's dismissal to be "without prejudice" and affirm the order as modified. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On September 27, 2019, Norguard filed a petition against A.N.D., asserting claims of breach of contract, unjust enrichment, sworn account, and open book account and alleging Norguard had provided agreed upon insurance coverages and services but A.N.D. had failed, refused, and continued to fail and refuse to pay the agreed premium amount. On November 4, 2019, A.N.D. filed its verified original answer and counterclaims.
The record contains a docket entry noting the filing date and description of A.N.D.'s answer and counterclaims, but the record does not contain a copy of that pleading, nor do the parties describe what counterclaims A.N.D. asserted.
On December 20, 2019, the trial court held a pre-trial conference at which A.N.D. appeared, but not Norguard. The trial court's docket has a notation, "Dismissal order forthcoming." That same day, Norguard filed a motion to set aside dismissal, stating its counsel had not received notice of the pre-trial conference hearing until after 2 p.m. on December 20, 2019. On January 3, 2020, the trial court signed an order dismissing the matter with prejudice. That order began by noting an agreed scheduling order had not been filed and that presence of both parties was required at the pre-trial conference hearing and concluded that the court "hereby dismisse[d] this matter for want of prosecution."
On January 21, 2020, Norguard filed a motion to reinstate the dismissed case, alleging neither Norguard nor its counsel had received the court's November 5, 2019 letter requiring counsel to file an agreed scheduling order and that Norguard's counsel did not intentionally fail to appear on December 20, 2019. Norguard's motion also alleged it had received no notice of the trial court's dismissal hearing. The trial court signed a January 28, 2020 order denying Norguard's motion for reinstatement without a hearing.
On February 4, 2020, Norguard filed a motion to modify the order of dismissal for want of prosecution to be "without prejudice." That motion was later overruled by operation of law. See TEX. R. CIV. P. 329b. That same day, Norguard filed its notice of appeal of the trial court's January 3, 2020 dismissal order.
DISCUSSION
In its sole issue on appeal, Norguard argues the trial court lacked the authority to dismiss the matter for want of prosecution with prejudice. We agree.
Norguard's prayer for relief requests this Court "modify the judgment of the trial court" but does not request reversal. Nor does any other portion of the brief indicate Norguard requests any further relief than modification of the judgment. --------
We review a trial court's dismissal for want of prosecution for abuse of discretion. See Wolf Creek Estates Homeowners' Ass'n, Inc. v. Jones, No. 05-17-00051-CV, 2018 WL 1417407, at *2 (Tex. App.—Dallas Mar. 22, 2018, no pet.) (mem. op.).
A dismissal with prejudice is an adjudication of the parties' rights; a dismissal without prejudice is not. See id. at *3. A dismissal for want of prosecution is not a trial on the merits therefore the proper order is a dismissal without prejudice rather than a dismissal with prejudice. See id. Therefore, when a case is dismissed for want of prosecution, it is error for the trial court to dismiss the case with prejudice. See id. (citing Melton v. Ryander, 727 S.W.2d 299, 303 (Tex. App.—Dallas 1987, writ ref'd n.r.e.)).
The order of dismissal in this case was not an adjudication of the rights of the parties; instead, it simply placed them in the position they were in prior to the filing of the suit. See id. Because the rights of the parties have not been adjudicated, the court abused its discretion in dismissing Norguard's suit with prejudice. See id. We, therefore, reform the judgment to strike the words "with prejudice" from the judgment entered.
A.N.D. argues in its response brief that Norguard failed to preserve its issue on appeal because it failed to raise the issue of whether the matter should be dismissed with or without prejudice until its February 4, 2020 motion to modify filed more than thirty days after the trial court's January 3, 2020 order of dismissal. A.N.D. urges that because Norguard failed to file its motion to modify within the trial court's plenary period, it failed to preserve its issue for appeal.
As discussed above, within thirty days of the dismissal order, Norguard filed motions to set aside the dismissal order and to reinstate the matter. Even assuming such motions did not encompass the issue of whether the trial court improperly dismissed the matter "with prejudice," and even assuming such issue must have been preserved at the trial court for our review, we disagree with A.N.D.'s argument that Norguard failed to timely raise this issue.
Rule 329b provides a motion to modify a judgment shall be filed and determined within the time prescribed by this rule for a motion for new trial. See TEX. R. CIV. P. 329b(g). If a motion for new trial is timely filed, the trial court has plenary power to modify the judgment until thirty days after all such timely-filed motions are overruled. See TEX. R. CIV. P. 329b(e). Within thirty days of the January 3, 2020 dismissal order, Norguard filed its January 21, 2020 motion to reinstate. Such a motion to reinstate extended the court's plenary power to thirty days after that motion was overruled by written order on January 28, 2020. See In re Haloftis, No. 05-16-01047-CV, 2016 WL 5401516, at *1 (Tex. App.—Dallas Sept. 27, 2016, no pet.) (mem. op.). Accordingly, we conclude Norguard's February 4, 2020 motion to modify was timely filed.
CONCLUSION
We reform the January 3, 2020 dismissal order to strike the words "with prejudice" and affirm as modified.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 200160F.P05
JUDGMENT
On Appeal from the County Court at Law No. 7, Collin County, Texas
Trial Court Cause No. 007-03097-2019.
Opinion delivered by Justice Schenck. Justices Smith and Garcia participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The trial court's dismissal is "without prejudice" instead of "with prejudice."It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellant NORGUARD INSURANCE CO. recover its costs of this appeal from appellee A.N.D. HOME HEALTHCARE, LLC D/B/A HELPING HANDS HOME SERVICES. Judgment entered this 17th day of March, 2021.