law-DWOP | motion for reinstatement after case after DWOP dismissal | dismissal for want of prosecution |
TRCP 165a dismissal under trial court's inherent power |
A trial court may dismiss a case for want of prosecution under Texas Rule of Civil Procedure 165a when a
party fails to appear at a hearing or trial or when the case has not been disposed of within the Texas Supreme
Court’s time standards. TEX. R. CIV. P. 165a(1), (2). A trial court also has inherent power to dismiss when the
case has not been prosecuted with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,
630 (Tex. 1999). An appellate court reviews a trial court’s ruling on a motion to dismiss for want of prosecution
for an abuse of discretion. Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet. denied)
(citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997)). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Moss v.
Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Texas Supreme Court guidelines
Under Rule 6 of the Rules of Judicial Administration, in a non-jury civil case (other than a family law case),
the trial court “should, so far as reasonably possible, ensure that all cases are brought to trial or final
disposition . . . [w]ithin 12 months from appearance date.” TEX. R. JUD. ADMIN. 6(b)(2), reprinted in TEX. GOV’
T CODE ANN., tit. 2, subtit. F—Appendix (West Supp. 2010). The Supreme Court makes the Rules of Judicial
Administration under the Legislature’s grant of authority in section 74.024 of the Texas Government Code.
TEX. R. JUD. ADMIN. 1; see also Jones, 318 S.W.3d at 427. Section 74.024 provides that “the supreme court
may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions,
and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted . . . .”
TEX. GOV’T CODE ANN. § 74.024(c)(1), (2) (West Supp. 2010). “[T]he application of Rule 6 is discretionary
and non-binding.” Jones, 318 S.W.3d at 427 (citing In re S.D.W., 811 S.W.2d 739, 746 (Tex. App.—Houston
[1st Dist.] 1991, no writ)). “Thus, Rule 6 does not fix a bright line demarking the outward limit of a trial court’s
discretion to control its docket.” Id.
DWOP DISMISSALS
A trial court may dismiss for want of prosecution either under its inherent power or under rule 165a of
the Texas Rules of Civil Procedure. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999); see Tex. R. Civ. P. 165a. A party must be provided with notice and an opportunity to be
heard before a trial court may dismiss a case for want of prosecution under either rule 165a or its
inherent power. See Tex. R. Civ. P. 165a(1) ("Notice of the court's intention to dismiss and the date
and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each
party not represented by an attorney . . . ."); Villarreal, 994 S.W.2d at 630. Failure to provide adequate
notice of the trial court's intent to dismiss for want of prosecution is a due process violation and
requires reversal. Villarreal, 994 S.W.2d at 630; Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386
(Tex. App.--Houston [1st Dist.] 1996, writ denied).
We review a trial court's order dismissing a case for want of prosecution for abuse of discretion. Wright v. Tex.
Dep't of Crim. Just.-Inst. Div., 137 S.W.3d 6
A properly executed order of dismissal is a judgment. See Stewart v. USA Custom Paint & Body Shop, Inc., 870
S.W.2d 18, 20 (Tex. 1994).
DISMISSAL FOR WANT OF PROSECUTION
A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of
Civil Procedure 165a, and (2) the trial court's inherent power. Villarreal, 994 S.W.2d at 630. A trial court may
dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or
trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated”
by the supreme court. Tex. R. Civ. P. 165a(1), (2). In addition, the common law vests the trial court with the
inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute its case
with due diligence. Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex.
App.- Dallas 2006, pet. denied). Lack of diligence need not amount to abandonment for a case to be properly
dismissed. WMC Mortgage Corp., 200 S.W.3d at 752. In determining whether a party has demonstrated a lack
of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length
of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the
existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.
If the trial court dismisses a case for want of prosecution, a party may file a motion to reinstate within “30 days
after the order of dismissal is signed or within the period provided by rule 306(a).” Tex. R. Civ. P. 165a(3). The
motion to reinstate must be verified by the movant or the movant's attorney and must be served on the parties.
Id. If a verified motion to reinstate is filed within 30 days, the judge “shall set a hearing on the motion as soon
as practicable,” and “notify all the parties or their attorneys of record of the date, time and place of hearing. . .
.” Id.
DWOP CASELAW FROM HOUSTON COURTS OF APPEALS
Dismissal for Want of Prosecution
A trial court may dismiss a case for want of prosecution: (1) when a party fails to appear at a hearing or trial;
(2) when the case has not been disposed of within the supreme court's time standards; and (3) by the court's
inherent power to dismiss when the case has not been prosecuted with due diligence. Tex. R. Civ. P. 165a(1),
(2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); City of Houston v. Thomas,
838 S.W.2d 296, 297 (Tex. App.--Houston [1st Dist.] 1992, no writ) (citing Veteran's Land Bd. v. Williams, 543
S.W.2d 89, 90 (Tex. 1976)). In deciding whether to dismiss a case for want of prosecution, the trial court may
consider the entire history of the case, including the length of time the case was on file, the amount of activity
in the case, the request for a trial setting, and the existence of reasonable excuses for delay. City of Houston v.
Robinson, 837 S.W.2d 262, 264 (Tex. App.--Houston [1st Dist.] 1992, no writ).
Before a trial court may dismiss a case for want of prosecution under either rule 165a or its inherent power, a
party must be provided with notice and an opportunity to be heard. See Tex. R. Civ. P. 165a(1) ("Notice of the
court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each
attorney of record, and to each party not represented by an attorney . . . ."); Villareal, 994 S.W.2d at 630;
Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 (Tex. App.--Houston [1st Dist.] 1996, writ denied).
Straus v. Auto Management, Inc. (Tex.App.- Houston 1st Dist] Jan 28, 2010)(Radack)
(DWOP dismissal for want of prosecution reversed, trial court did not give adequate notice of intent to dismiss)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00158-CV Robert Straus d/b/a/ Bob Straus Photography v. Auto Management, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-07-00158-CV Robert Straus d/b/a/ Bob Straus Photography v. Auto Management, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
Doa v. Le (Tex.App.- Houston [1st 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 County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
Douglas v. American Title Co. (pdf) (Tex.App.- Houston [14th Dist.] Nov. 19, 2009)(per curiam)
In this appeal from an order dismissing his case for want of prosecution, appellant Douglas, an indigent inmate
appearing in propria persona, raises three issues asserting that the trial court abused its discretion by failing to
conduct a dismissal hearing or a hearing on his motion to reinstate and by failing to consider his motion to
retain. We affirm the trial court’s order. We find that the trial court did not abuse its discretion in failing to
conduct a dismissal hearing to consider Douglas’s motion to retain or a hearing on Douglas’s motion to
reinstate.
We overrule Douglas’s three issues.
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00676-CV Ralph O. Douglas v. American Title Company
Appeal from 133rd District Court of Harris County
Trial Court Judge: Lamar McCorkle
Afri-Carib Enterprised, Inc. v. Mabon Limited. (Tex.App.- Houston [14th Dist.] Mar. 31, 2009)(Yates)
(default judgment, bill of review, no proper notice of trial setting, suspended attorney)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 59 (Tex.App.- Houston [1st Dist.] 2000, pet. denied) ("It is
generally held that a party to a lawsuit is charged with notice that the suit may be dismissed for want of
prosecution when there is inaction for a long period of time.”). Even if a party does not know of a trial
setting, if he appeared in the case but was not diligent in monitoring the case status, he could be
ineligible for a bill of review. See Abou-Trabi, 2003 WL 22252876, at *4.[3] Therefore, the trial court
erred in concluding that Mabon’s lack of negligence was established in this case a matter of law
Mares v. Blaine (Tex.App.- Houston [1st Dist.] July 24, 2008)(Hanks) (appeal from DWOP)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Alcala and Hanks
01-07-00620-CV Samuel R. Mares, Sr. v. Victor R. Blaine
Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson
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