Opinion issued January =
31,=20
2008
Appellant,=20
Hudson & Keyse, L.L.C. ("Hudson"), challenges the trial =
court's order=20
of dismissal of its suit against appellees, Lavern W. Gipson and =
Emmett=20
Gipson, to recover an outstanding credit card balance. We affirm.=20
On May 23,=20
2006, Hudson filed suit against the Gipsons, alleging that they =
defaulted=20
in making required payments pursuant to a credit card agreement. =
On May=20
25, 2006, citation was issued. On June 22, 2006, Hudson filed a =
motion for=20
substitute service, stating that it had unsuccessfully attempted =
to serve=20
the Gipsons, In support=20
of its motion, Hudson attached an affidavit from its process =
server, who=20
testified that she "attempted to make personal delivery" on the =
Gipsons at=20
their "place of abode," The clerk's=20
record does not show that the trial court ruled on Hudson's motion =
for=20
substitute service. On January 5, =
2007, the=20
trial court granted Hudson On March=20
28, 2007, Hudson filed a motion to reinstate, in which it stated =
that it=20
had filed a second motion for continuance on February 28, 2007,=20
"explain[ing] that it was having difficulties serving [the =
Gipsons]."=20
Although this motion for continuance is not contained in the =
clerk's=20
record, Hudson, in its appellate briefing represents that it filed =
this=20
second motion for continuance "prior to dismissal indicating to =
the trial=20
court that it was having continuing difficulties with =
service."=20
(Emphasis added). However, there is no evidence in the record that =
Hudson=20
made continuing service efforts following its five service =
attempts in=20
late May and early June 2006. In its motion to reinstate, Hudson =
also=20
asserted that Harris County Appraisal District ("HCAD") records=20
established that the Gipsons owned "homestead property" at the =
Junell=20
Street address and that the Gipsons had not been home or were =
avoiding=20
service. However, Hudson did not attach the referenced HCAD =
records to its=20
motion, and they are not contained in the record before =
us. On April 5,=20
2007, the trial court signed an order stating that it heard =
Hudson's=20
motion to reinstate and that the motion was "not well taken." =
Thus, the=20
trial court denied the motion to reinstate. Although the order =
recites=20
that a hearing was held on the motion, there was no reporter's =
record=20
filed with this Court. In its=20
first issue, Hudson argues that the trial court erred in =
dismissing the=20
case for want of prosecution because Hudson attempted service on =
five=20
different occasions, it provided proof that it made these service =
attempts=20
at the Gipsons' homestead, the trial court should have allowed =
substitute=20
service, and it exercised diligence. A =
court may=20
dismiss a case for want of prosecution "on failure of any party =
seeking=20
affirmative relief to appear for any hearing or trial of which the =
party=20
had notice." Tex. R. Civ. P. 165a(1). In fact, "[a]t the dismissal =
hearing, the court shall dismiss for want of prosecution unless =
there is=20
good cause for the case to be maintained on the docket." =
Id. In=20
addition to the express authority under Rule 165, the common law =
vests=20
trial courts with the inherent power to dismiss a case when the =
plaintiff=20
fails to prosecute the case with due diligence. Alexander v. =
Lynda's=20
Boutique, 134 S.W.3d 845, 850 (Tex. 2004); Villarreal v. =
San=20
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). =
We=20
review a trial court's order dismissing a case for want of =
prosecution for=20
an abuse of discretion. Wright v. Tex. Dep't of Criminal=20
Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. =
App.--Houston=20
[1st Dist.] 2004, no pet.). Here, the=20
trial court, in its March 5, 2007 dismissal order, recited that =
the=20
parties had been notified of the trial date and failed to appear. =
In its=20
appellate briefing, Hudson does not address the consequence of =
failing to=20
appear on the trial date. Hudson does not contend that the trial =
court=20
failed to provide it with the required notice. See Tex. =
R. Civ.=20
P. 165a(1) (setting forth notice requirements before case may be =
dismissed=20
for want of prosecution for failure to appear). Nor does Hudson =
assert any=20
specific reason as to why it was not required to appear. Moreover, =
Hudson=20
does not challenge the trial court's statement in the dismissal =
order that=20
Hudson, in fact, failed to appear. We note that although Hudson, =
in its=20
subsequently-filed motion to reinstate, referred to the filing of =
a=20
February 28, 2007 motion for continuance prior to the trial =
court's=20
dismissal, there is no copy of any such motion in the record. On =
this=20
record, we cannot conclude that the trial court abused its =
discretion in=20
dismissing the case for want of prosecution under Rule 165 when =
Hudson=20
failed to appear on the trial date on March 5, 2007. See=20
id. In regard=20
to Hudson's motion to reinstate, a party may file a motion setting =
forth=20
grounds for reinstatement, and the trial court "shall set a =
hearing on the=20
motion." Tex. R. Civ. 165a(3). The trial court "shall reinstate =
the case=20
upon finding after a hearing that the failure of the party or his =
attorney=20
was not intentional or the result of conscious indifference but =
was due to=20
an accident or mistake or that the failure has been otherwise =
reasonably=20
explained." Id. We review a trial court's ruling on a =
motion for=20
reinstatement for an abuse of discretion. WMC Mortg. Corp. v.=20
Starkey, 200 S.W.3d 749, 752 (Tex. App.--Dallas 2006, pet. =
denied).=20
Here, in=20
its first issue, Hudson has not specifically challenged the trial =
court's=20
denial of its motion to reinstate. However, to the extent that it =
seeks to=20
challenge this ruling, it has not cited anything in the record to =
show=20
that the trial court would have abused its discretion in not =
making the=20
requisite finding to reinstate the case, i.e., the finding that =
Hudson's=20
failure was not intentional or the result of conscious =
indifference but=20
was due to an accident or mistake or that Hudson's failure has =
been=20
otherwise reasonably explained. Tex. R. Civ. 165a(3). In =
considering=20
whether the record would support such a finding, we note that =
although the=20
order denying the motion to reinstate suggests that a hearing was =
held on=20
Hudson's motion, there was no reporter's record taken at the =
hearing.=20
Thus, we are not aware of what additional evidence, if any, was =
considered=20
by the trial court in denying the motion to reinstate. =
Furthermore,=20
although Hudson, in its appellate briefing, suggests that it was =
having=20
continuing difficulties with service, the only evidence in the =
record is=20
that Hudson made five service attempts in an eleven-day period =
from May 31=20
to June 10, 2006. There is no evidence as to what service efforts, =
if any,=20
Hudson undertook during the subsequent eight-month period from =
June 2006=20
until March 2007, when the case was dismissed. Accordingly, we =
hold that=20
the trial court did not err in dismissing the case for want of =
prosecution=20
and denying Hudson's motion to reinstate. We overrule=20
Hudson's first issue. In its=20
second issue, Hudson argues that the trial court erred in denying =
its=20
motion for substitute service because it made five separate =
service=20
attempts at the Gipsons' residence and that the Gipsons would not=20
"cooperate in the service process." Hudson asserts that "[c]learly =
they=20
were evading service and substituted service was the only means =
available=20
to serve them" and that the "quality and quantity" of its service =
attempts=20
shows "extreme diligence." Hudson also asserts that the trial =
court's=20
error "caused this case to remain pending without any disposition =
until=20
the trial court dismissed it for want of prosecution." Texas Rule=20
of Civil Procedure 106(b) provides, Upon motion=20
supported by affidavit stating the location of the defendant's =
usual place=20
of business or usual place of abode or other place where the =
defendant can=20
probably be found and stating specifically the facts showing that =
service=20
has been attempted under either (a)(1) or (a)(2) at the location =
named in=20
such affidavit but has not been successful, the court may =
authorize=20
service (1) by=20
leaving a true copy of the citation, with a copy of the petition =
attached,=20
with anyone over sixteen years of age at the location specified in =
such=20
affidavit, or (2) in any=20
other manner that the affidavit or other evidence before the court =
shows=20
will be reasonably effective to give the defendant notice of the=20
suit. Tex. R.=20
Civ. P. 106(b). We examine=20
a trial court's denial of a motion for substitute service for an =
abuse of=20
discretion. See Izen v. Sjostrom, No. 14-06-00142-CV, =
2007 WL=20
968841, at *4 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) =
(mem.=20
op.). Initially,=20
we note that the record does not contain an order denying Hudson's =
motion=20
for substitute service. It appears that the trial court simply did =
not=20
rule on Hudson's motion. See Tex. R. App. P. 33.1 =
(providing that=20
as prerequisite to presenting complaint for appellate review, =
record must=20
show that trial court ruled on motion, expressly or implicitly, or =
refused=20
to rule on motion, and complaining party objected to refusal).=20
Nevertheless, contrary to Hudson's assertions that it exercised =
"extreme=20
diligence," the record does not establish that Hudson made =
continuous=20
efforts to serve the Gipsons throughout the underlying =
proceedings.=20
Rather, the record shows that Hudson's process server made five =
attempts=20
during an eleven-day period to serve the Gipsons at their =
purported home=20
address shortly after Hudson filed suit. There is nothing in the =
record to=20
indicate that, after these initial attempts, Hudson ever made any=20
additional service attempts or that Hudson ever filed any =
additional=20
motions for substitute service, supported by any additional =
evidence.=20
Accordingly, we hold that the trial court did not abuse its =
discretion in=20
not authorizing substitute service. See Izen, 2007 WL =
968841, at=20
*4 (holding that trial court did not abuse its discretion in =
denying=20
motion for substitute service after plaintiff attempted to serve =
defendant=20
at his residence on four separate occasions). We overrule=20
Hudson's second issue.
We affirm=20
the order of the trial court dismissing the case for want of=20
prosecution. Panel=20
consists of Chief Justice Radack and Justices Jennings and=20
Bland. 1. 2. 3.