Doa v. Le (pdf) (Tex.App.- Houston [14th Dist.] Jan. 26, 2010)(Sullivan)
(
DWOP dismissal for failure to appear in person for trial reversed, TRCP 7, subpoena not to be enforced
by dismissal)
REVERSED AND REMANDED: Opinion by
Justice Kent Sullivan        
14-08-01113-CV  Paulene Hong Dao and Hung Anh Le a/k/a Hong Le v. Mong Cong Le    
Appeal from Co Civil Ct at Law No 3 of Harris County
Trial Court Judge:
Linda Storey   

MEMORANDUM OPINION

     In this personal injury case, appellants Paulene Hong Dao and Hung Anh Le, a/k/a/ Hong Le, appeal
from the trial court’s order dismissing their case for want of prosecution.  Concluding the trial court abused
its discretion when it dismissed the case because appellants did not personally appear on the day of trial,
we reverse and remand.

I.  BACKGROUND

     On December 31, 2001, appellee Mong Cong Le allegedly failed to yield the right of way at a stop sign
and his vehicle collided with the vehicle in which appellants were riding.  On May 10, 2003, appellants filed
suit against appellee.

     Between August 2004 and May 2008, the trial date was set and reset more than ten times.  On May 20,
2008, appellants were not present for trial.  The court reset the trial for August 25, 2008, and, over
appellants’ counsel’s objection, stated, “If they do not show up for the next trial, I will dismiss their claims.”  
Additionally, both appellants were subpoenaed to appear to testify at the trial on August 25.

On August 25, 2008, the case was again called to trial.  Again, neither appellant personally appeared, and
the court ordered the case “dismissed for want of prosecution.”  Plaintiffs’ counsel objected, indicating he
was prepared to present the case through appellants’ depositions.  The court subsequently issued a single
conclusion of law, stating the case was “DISMISSED FOR PLAINTIFF’S [sic] FAILURE TO APPEAR TO
PROSECUTE CASE on the day of Trial.”

Appellants filed a verified motion to reinstate and request for a hearing and a motion for new trial.  The
motions were overruled by operation of law.

II.  DISCUSSION

     In a single issue, appellants contend the trial court erred in dismissing their case.  Appellee argues the
trial court did not abuse its discretion in dismissing the case for want of prosecution because (1) appellants
failed to appear at trial, (2) the case was not disposed of within the Texas Supreme Court’s time standards,
and (3) appellants did not prosecute the case with due diligence.

In reviewing a dismissal for want of prosecution, we apply a clear-abuse-of-discretion standard.  See 3V,
Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 541 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  “A trial court
abuses its discretion when it acts arbitrarily and unreasonably, or when it misapplies the law to the
established facts of the case.”  CA Partners v. Spears, 274 S.W.3d 51, 78 (Tex. App.—Houston [14th Dist.]
2008, pet. denied).

Appellants’ burden on appeal depends on whether the trial court specified the basis for the dismissal in its
order.  See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.—San Antonio 1998), pet.
denied, 1 S.W.3d 106 (Tex. 1999).  If the order is silent, appellants must negate all possible grounds for
dismissal, including the three grounds listed by appellee in his appellate brief.  See id.  “If, however, the
dismissal order lists a specific ground, the plaintiff seeking reinstatement must negate only the reason
stated in the dismissal order.”  Id.[1]

In this case, the trial court’s conclusion of law specifies the ground on which the court dismissed the case.  
It follows that appellants’ burden is to negate only the ground specified in that conclusion of law, that is,
failure to appear.  This reasoning is implicitly supported by (1) the due process notice requirements
regarding dismissals for want of prosecution;[2] and (2) references to requiring affirmance of a dismissal
when a party did not request findings of fact or conclusions of law and the court did not specify the
standard of dismissal used.  See Nichols v. Sedalco Const. Servs., 228 S.W.3d 341, 342–43 (Tex. App.—
Waco 2007, pet. denied).

Because appellants’ counsel appeared on both May 20 and August 25, the court’s reference to “failure to
appear,” necessarily means appellants’ failure to appear in person.  Accordingly, this court cannot affirm
the trial court’s dismissal of the case on any ground other than failure of appellants to appear in person for
trial.  See Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 297 (Tex. App.—Waco 1997, pet. denied).  
We therefore decline appellee’s invitation to consider other possible grounds for dismissal.  See id.

The trial court’s requirement that appellants appear in person is contrary to Texas Rule of Civil Procedure
7, which provides, “Any party to a suit may appear and prosecute or defend his rights therein, either in
person or by an attorney of the court.”  Tex. R. Civ. P. 7; see Rainwater v. Haddox, 544 S.W.2d 729, 732
(Tex. Civ. App.—Amarillo 1976, no writ) (in context of deciding whether party waived right to jury trial by
failing to appear personally, stating, “It long has been the principle in Texas that whatever a man sui juris
may do for himself may be done by his attorney”).  In misapplying the law, the trial court abused its
discretion in the present case.  See CA Partners, 274 S.W.3d at 78.

Finally, we note appellee refers several times to appellants’ failure to appear despite having been
subpoenaed.  Dismissal of a plaintiff’s case, however, is not a recognized means of enforcing a subpoena.  
See Tex. R. Civ. P. 176.8.

For the foregoing reasons, we sustain appellants’ sole issue.  Accordingly, we reverse the order below and
remand the cause to the trial court.
                                                                           
                                                                 /s/        
Kent C. Sullivan

                                                                             Justice

Panel consists of Justices Frost, Boyce, and Sullivan.

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[1] See Valenzuelza v. TDCJ-Institutional Division, No. 14-98-01116-CV, 1999 WL 966550, at *1 (Tex. App.—Houston [14th
Dist.] Oct. 21, 1999, no pet.) (per curiam) (not designated for publication) (stating, when dismissal order specifies ground for
dismissal, review is limited to whether dismissal is proper on the ground specified by trial court).

[2] See 3V, Inc., 40 S.W.3d at 543.