Summary
holding that plaintiff's failure to appear for dismissal hearing supported trial court's dismissal for want of prosecution
Summary of this case from Bechem v. Reliant Energy Retail Servs.Opinion
No. 04-16-00131-CV
04-12-2017
REGENT CARE CENTER AT MEDICAL CENTER, Appellant v. William HOLLIS, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 380950
Honorable Karen A. Crouch, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Regent Care Center at Medical Center appeals the trial court's dismissal of its suit against William Hollis for want of prosecution and the trial court's denial of its motion to reinstate. Regent Care argues the trial court abused its discretion because Regent Care diligently prosecuted its suit. We affirm the trial court's judgment.
BACKGROUND
On October 1, 2012, Regent Care filed an original petition suing Hollis to recover on unpaid medical bills. Its claims included a suit on a sworn account, breach of contract, and equitable claims. Hollis was served on October 5, 2012, and he filed an answer on October 29, 2012. In November 2012, Regent Care filed a certificate of written discovery, stating it had served Hollis with several discovery requests. Neither party requested a jury trial. The record reflects no action was taken in the case for more than two years thereafter.
On March 16, 2015, Regent Care filed a motion to substitute counsel with another lawyer at the same firm representing Regent Care. The motion did not explain why Regent Care sought to substitute counsel, and the record does not contain any indication the motion was set for a hearing or ruled on by the trial court. The record reflects there were no filings for the next six months.
On September 9, 2015, the trial court issued a notice indicating the case was set for a September 23, 2015 hearing to determine whether the case should be dismissed for want of prosecution. Two days before the hearing, Regent Care filed a motion to retain the case on the trial court's docket. Regent Care alleged Hollis's counsel "suggested" Hollis would file a counterclaim and serve discovery requests, but Hollis's counsel had not done so. Regent Care also alleged it desired to pursue the case "within a reasonable length of time." At the September 23, 2015 hearing, the trial court granted Regent Care's motion to retain. The trial court's order set another dismissal hearing for December 16, 2015. On November 4, 2015, the trial court sent a notice to the parties regarding the December 16, 2015 dismissal hearing. The notice advised the case would be dismissed if a party seeking affirmative relief did not appear at the hearing.
On October 21, 2015, Regent Care filed a traditional motion for summary judgment on only its sworn-account claim. On December 3, 2015, the trial court heard and denied the motion. Before the hearing, Regent Care filed its second motion to retain, alleging the parties were "currently attempting to negotiate an amicable resolution." At the December 16, 2015 dismissal hearing, the trial court dismissed Regent Care's suit for want of prosecution. A transcript of the December 16, 2015 dismissal hearing has not been made part of the appellate record. However, the trial court's dismissal order recites that Regent Care "failed to appear in person or by attorney, or make an announcement."
Regent Care filed a motion to reinstate on January 13, 2015, alleging it was ready to set a trial date when the trial court denied its motion for summary judgment. Regent Care argued that if the trial court reinstated the suit, Regent Care would "immediately file a Motion to Set on Non-Jury Docket and request a trial date within sixty days, or sooner if the Court prefers." The trial court heard the motion to reinstate, and Regent Care's counsel stated the long delay "was at [Hollis]'s request because [he] wanted to file an appeal with the insurer that denied his coverage." Hollis's counsel responded Hollis "won that appeal . . . more than two years ago," and Regent Care "did nothing for two years." Counsel for Regent Care also stated he was assigned to the case in March 2015, the Regent Care representative who had worked on this matter "had left the company," and Regent Care was working with Hollis "to spare the litigation." Hollis's counsel mentioned the trial court dismissed the suit because the trial court had previously set a "drop dead day." At no time during the suit did Regent Care set the case for trial. The trial court denied Regent Care's motion, and Regent Care appeals.
DISCUSSION
We review a trial court's dismissal for want of prosecution and its denial of a motion to reinstate for an abuse of discretion. Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 55 (Tex. App.—San Antonio 2002, pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Id. at 56. A trial court does not abuse its discretion when it bases its decision on conflicting evidence or when some evidence of substantive and probative character exists to support the trial court's decision. Johnson v. Hawkins, 255 S.W.3d 394, 397 (Tex. App.—Dallas 2008, pet. denied). "As the fact-finder, the trial court is the sole judge of the credibility of the witnesses and evidence." Prince v. Am. Bank of Tex., 359 S.W.3d 380, 382 (Tex. App.—Dallas 2012, no pet.). An abuse of discretion with respect to factual matters occurs only if the record establishes the trial court could reasonably have reached only one decision but failed to do so. Rainbow Home Health, 76 S.W.3d at 56.
A. Dismissal for Want of Prosecution
A trial court may place a case on its dismissal docket when the case has not been brought to trial or finally disposed of within the time standards provided by the supreme court. Id. (citing TEX. R. CIV. P. 165a.3). The supreme court has instructed trial courts to ensure all nonjury civil cases, other than family law cases, are brought to trial or finally disposed of within twelve months from an appearance date. TEX. R. JUD. ADMIN. 6.1(b)(2). Neither party requested a jury trial, and this case is not a family law case. Regent Care filed suit and Hollis filed an answer in October 2012. The trial court set the case on its dismissal docket in September 2015 and again in December 2015. Because the suit was not brought to trial or finally disposed of for over three years, the trial court did not abuse its discretion by placing the case on its dismissal docket. See Rainbow Home Health, 76 S.W.3d at 56.
"At the dismissal hearing, 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. A trial court may also dismiss a case for want of prosecution "on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Id. The trial court's dismissal order recites that Regent Care failed to appear at the dismissal hearing. "[W]e presume recitations in the final judgment are correct absent any evidence to the contrary." Vernon v. Perrien, 390 S.W.3d 47, 58 (Tex. App.—El Paso 2012, pet. denied). There is no record of the dismissal hearing, and Regent Care does not argue it appeared at the dismissal hearing and showed good cause for the case to be maintained on the trial court's docket.
At the January 2016 hearing on Regent Care's motion to reinstate, Regent Care asserted it was present at the second dismissal hearing. When an appellant does not meet its burden to see that a record is presented to show error requiring reversal, we must indulge every presumption in favor of the trial court's ruling. Curry v. Tex. Dep't of Pub. Safety, 472 S.W.3d 346, 350 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Without a record of the dismissal hearing, we must indulge the presumption that, even if Regent Care appeared at the second dismissal hearing, it did not show good cause for the case to be maintained on the trial court's docket. See id.
Regent Care argues it alleged in its motion to retain it was "ready to proceed with setting a trial date if no resolution [with Hollis] is reached." "Pleadings, however, are not evidence." San Miguel v. City of Windcrest, 40 S.W.3d 104, 111 (Tex. App.—San Antonio 2000, no pet.). And "stated readiness to proceed to trial does not conclusively establish diligence." Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 739 (Tex. App.—Waco 2005, pet. denied). Because Regent Care is unable to demonstrate that it appeared for the December 2015 dismissal hearing and showed good cause for the case to be maintained on the trial court's docket, we cannot say the only reasonable decision the trial court could have reached was to retain the suit on its docket. See TEX. R. CIV. P. 165a.1; Rainbow Home Health, 76 S.W.3d at 56.
B. Denial of Regent Care's Motion to Reinstate
"The court shall reinstate the case upon finding after a hearing 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. This standard is essentially the same as that for setting aside a default judgment. Johnson, 255 S.W.3d at 398. Under this standard, courts look to the knowledge and the acts of the movant to determine whether it satisfied its burden to show its failure was not intentional or the result of conscious indifference. Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 309 (Tex. 2012) (per curiam). A movant satisfies its burden when its factual assertions, if true, negate intentional or consciously indifferent conduct and the factual assertions are not controverted by the other party. Id. We review the entire record to ascertain whether there was enough evidence for the trial court to find that the failure of the party was not due to accident, mistake, or other reasonable explanation. Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no writ).
We note the record supports two bases for the trial court's dismissal of Regent Care's suit. First, Regent Care failed to appear for the December 2015 dismissal hearing. See TEX. R. CIV. P. 165a.1. Second, Regent Care did not diligently prosecute its suit. When an appellant does not challenge all possible grounds supporting a trial court's ruling, we must affirm the ruling on the unchallenged ground. Ten Hagen Excavating, Inc. v. Castro-Lopez, 503 S.W.3d 463, 493 (Tex. App.—Dallas 2016, pet. filed). Regent Care does not argue on appeal that it appeared at the December 16, 2015 dismissal hearing or that its failure to appear was due to accident, mistake, or other reasonable explanation. See Deck, 954 S.W.2d at 112.
The record also supports the trial court's denial of Regent Care's motion to reinstate on the ground that Regent Care did not show good cause for failing to diligently prosecute the case. After both parties filed their original pleadings, Regent Care did not file any motions for over two years. Regent Care filed a motion to substitute counsel in March 2015, but Regent Care did not set a hearing, obtain a ruling on the motion, or otherwise explain the two-year delay. Regent Care did not file any motions until after the trial court placed the case on the dismissal docket the first time in September 2015. Regent Care then filed a motion for partial summary judgment on only one of its several claims against Hollis. The record shows Regent Care knew the trial court twice placed the case on its dismissal docket, but Regent Care never attempted to set a trial date despite being given a "drop dead date" by the trial court.
Regent Care does not argue its failure to prosecute was due to accident or mistake. It argues only that it reasonably explained its failure to prosecute. At the hearing on Regent Care's motion to reinstate, Regent Care's explanations for the delay were that (1) Hollis wanted to delay the suit to appeal his health insurer's denial of his coverage; (2) Regent Care was attempting to settle with Hollis to avoid further litigation; and (3) there was turnover at Regent Care. Counsel for Regent Care did not explain how the turnover at Regent Care caused any significant delay in this case. Furthermore, Hollis's counsel responded that Hollis won his appeal two years before the summary judgment hearing, and his insurance company agreed to pay the medical bills, but Regent Care simply failed to bill the insurance company. Hollis's counsel raised this same issue at the summary judgment hearing. When the trial court asked Regent Care's counsel to explain why Regent Care had not billed the insurance company, counsel for Regent Care responded, "I don't have an answer for that, Your Honor." The explanations provided by Regent Care's counsel were vague, disputed, and unsupported. After considering the entire record and deferring to the trial court's determinations, we hold Regent Care did not reasonably explain its failure to prosecute. See id.; Prince, 359 S.W.3d at 382. We therefore conclude the trial court did not abuse its discretion by denying Regent Care's motion to reinstate.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice