Texas Judiciary Online - HTML Opinion

A trial = court=3Ds authority to = dismiss for want=20 of prosecution stems from the express authority of rule 165a of = the Texas=20 Rules of Civil Procedure as well as from the court=3Ds inherent power to = manage its=20 own docket. Villarreal v. San Antonio Truck & = Equip., 994=20 S.W.2d 628, 630 (Tex. 1999); 3V, Inc. v. JTS Enterprises, = Inc., 40=20 S.W.3d 533, 541 (Tex. App.CHouston [14th Dist.] = 2000, no=20 pet.). A trial court may dismiss under rule 165a on the = Afailure of any party = seeking=20 affirmative relief to appear for any hearing or trial of which the = party=20 had notice,@ or when a case is = Anot disposed of = within the time=20 standards promulgated by the Supreme Court.@ Tex. R. Civ. P. = 165a(1), Tex. R. Civ. P. = 165a(2). In=20 addition, under the common law, a trial court has inherent power = to=20 dismiss independently of the rules of procedure when a plaintiff = fails to=20 prosecute his or her case with due diligence. = Villarreal, 994=20 S.W.2d at 630. Still, a party must be provided with notice = and an=20 opportunity to be heard before a court may dismiss a case for want = of=20 prosecution under either rule 165a or its inherent = authority. See=20 Tex. R. Civ. P. = 165a(1)=20 (notice of the court=3Ds intention to = dismiss and the=20 date and place of dismissal hearing shall be sent by the clerk to = each=20 attorney of record, and to each party not represented by an = attorney);=20 Gen. Elec. Co., v. Falcon Ridge Apts., J.V., 811 S.W.2d = 942, 943=20 (Tex. 1991). The failure to provide adequate notice of = the =20 trial court=3Ds intent to dismiss = for want of=20 prosecution requires reversal. Villarreal, 994 S.W.2d = at=20 630. Here, the trial court granted=20 appellants=3D motion to retain = their case on=20 the court=3Ds docket. The = order=20 reads: AIT IS ORDERED that = the above=20 [sic] Plaintiff=3Ds Verified Motion to = Retain, be=20 hereby retained in the courts of Harris County, Houston, Texas, = and that=20 the Clerk of [the] Court notify all counsel of record for 60=20 days.@ The fact that = the order=20 retained the case for 60 days does not divest the trial court of = its=20 obligation to notify parties of any subsequent intent to dismiss = the=20 case. The trial court was still required to notify the = Forresters of=20 its intent to dismiss the case after it retained their case on its = docket. See Taylor v. Fluker, 843 S.W.2d 234, 235 = (Tex.=20 App.CHouston [14th Dist.] = 1992, no=20 writ) (holding that an order reinstating a case for 30 days cannot = be=20 dismissed thereafter without notifying parties of its intent to = dismiss=20 after original order retaining case on court=3Ds docket). = Here, the face=20 of the record reveals that there was no notification of the trial=20 court=3Ds intent to dismiss = the=20 Forresters=3D case or a dismissal = hearing=20 after the order retaining the case was signed. See = id. =20 As a result, appellants were not afforded an opportunity to be=20 heard.

We hold=20 that the error complained ofB the=20 trial court failed to notify appellants of its intent to dismiss = their=20 suitB = is=20 apparent on the face of the record. Having found that the = trial=20 court failed to notify appellants of its intent to dismiss their = lawsuit,=20 we hold that the Forresters have met all elements of a restricted=20 appeal. See Villarreal, 994 S.W.2d at 630 = (the failure to = provide adequate=20 notice of the trial court=3Ds intent to dismiss = for want of=20 prosecution requires reversal). We sustain=20 appellants=3D = sole=20 issue on rehearing. =20

We reverse the trial court=3Ds judgment dismissing the case and = remand the case=20 for further proceedings consistent with this opinion.

/s/ =20 Adele Hedges

Chief Justice

Judgment rendered and = Majority=20 and Dissenting Opinions on Rehearing filed January 10, = 2008.

Panel consists of = Chief Justice=20 Hedges, Justice Guzman, and Senior Justice Hudson.* = (Guzman,=20 J. dissenting.)

* Senior=20 Justice J. Harvey Hudson sitting by assignment.

^{^[1]} To the extent that the = Bousquet and=20 Orr courts rely on Bowles for the proposition that a = motion=20 to retain, alone without a hearing, can be sufficient = participation to=20 preclude a restricted appeal, we disagree. See Orr, = 2004 WL=20 637898, at *3 (finding that appellant participated at trial where=20 appellant filed a motion to retain and trial court dismissed the = case=20 without holding a hearing because the motion to retain was = Ainadequate@); Bousquet, 2001 WL 780538, at = *3=20 (holding, without mention of a hearing held in the trial court to = decide=20 issue of dismissal, that appellant participated at trial where he = filed a=20 motion to retain). Bowles was decided in the context = of a=20 summary judgment proceeding, where an oral hearing on a motion for = summary=20 judgment is not required and the disposition of the summary = judgment is=20 decided by the written pleadings and evidence. Tex. R. Civ. P. = 166a(c);=20 Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d = 357, 359=20 (Tex. 1998). In that situation, a motion or response to a = motion for=20 summary judgment would be directly involved in the decision-making = event,=20 as the court makes its decision based solely on those written=20 pleadings. In the context of a dismissal for want of = prosecution,=20 however, the court is required to conduct an oral hearing and = allow the=20 parties to present evidence. Tex. R. Civ. P. 165a;=20 Villarreal v. San Antonio Truck & Equip., 994 S.W.2d = 628, 630=20 (Tex. 1999); Brown v. Brookshires Grocery Store, 10 S.W.3d = 351, 354=20 (Tex. App.CDallas 1999, pet. denied). The = trial court=20 commits reversible error if it dismisses a case for want of = prosecution=20 without holding a hearing. See Alexander, 134 S.W.3d = at 852=20 (distinguishing its facts from Brown, 10 S.W.3d at 354, in = which=20 the court held a trial court=3Ds failure to provide an opportunity for = a hearing=20 before dismissal is reversible error). Therefore, a motion = to retain=20 alone, without a hearing, cannot be sufficient participation = because the=20 decision-making eventCthe hearingCdid not occur.

^{^[2]} Appellees argue that we should = not consider=20 the clerk=3Ds supplemental record because it became = a part of=20 the record after we issued our first opinion in this case. See = Skadden=20 v. Alfonso, 217 S.W.3d 611, 628-29 (Tex. App.CHouston [14th Dist.] 2006, pet. denied); = Tex.=20 First Nat=3Dl Bank v. Ng, 167 S.W.3d 842, 866 (Tex. = App.CHouston [14th Dist.] 2005, pet. granted, = judm=3Dt vacated w.r.m.). Though = disfavored, we=20 have discretion to consider supplements to the appellate record = that are=20 filed after issuance of the opinion and rendition of the = judgment. =20 See Tex. R. App. = P.=20 55(b).

^{^[3]} Relying on = Lynda=3Ds Boutique, the dissent would deny = appellant=3Ds motion for rehearing on the = basis that the=20 record is silent as to whether notice was sent to appellant. = In=20 Lynda=3Ds Boutique, the appellant attempted to use = affidavits=20 stating that no notice was mailed to it to support the argument = that there=20 was error on the face of the record. = Lynda=3Ds Boutique, 134 S.W.3d 845, 848. The Texas = Supreme=20 Court reasoned that the affidavits were extrinsic, as they had = been filed=20 after the case reached the Texas Supreme Court. = Id. =20 Ultimately, the court held that the record was silent because = Athere [wa]s nothing in the [record] = before [the=20 Court] that affirmatively indicate[d] that notice was given, nor = any=20 notation to establish that notice was omitted.@ Id. (emphasis = added). The=20 facts are different in the instant appeal. Unlike=20 Lynda=3Ds Boutique, there is an affirmative = notation on the=20 clerk=3Ds record that no record of notice had = been=20 located. =