Barrett v. Mantooth
| Decision Date | 20 July 1977 |
| Docket Number | No. 1663,1663 |
| Citation | 554 S.W.2d 799 |
| Parties | Martha BARRETT, Appellant, v. Dr. Elaine MANTOOTH, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
John H. Holloway, Houston, for appellant.
V. W. McLeod, James L. Ware McLeod, Alexander, Powel & Apffel, Inc., Galveston, W. N. Arnold, Jr., Russell H. McMains, Fulbright & Jaworski, Thomas S. Hornbuckle, Houston, for appellee.
Plaintiff appeals from the overruling of a motion to reinstate her case which had been dismissed for want of prosecution.
Appellant Martha Barrett brought this suit in Galveston County for damages arising out of the alleged malpractice of appellee Dr. Elaine Mantooth and other physicians. The record discloses the following activity in the case:
March 29, 1974 Suit filed against
defendant Mantooth
April 19 Defendant Mantooth's answer
April 26 Plaintiff's interrogatories
propounded to Dr. Mantooth
May 2 Defendant Mantooth's interrogatories
propounded to plaintiff
May 9 Plaintiff's first amended petition
May 23 Defendant Mantooth's answers
to interrogatories
May 28 Plaintiff's second amended
petition adding five defendants
June 21 Answer of defendants Dr. Joe
Magliolo, Dr. Albert Magliolo
and Dr. Amedeo Magliolo
July 3 Answer of defendants Dr
Kenneth Griffith and Dr
Katy Youngblood
July 19 Plaintiff's answers to
interrogatories
August 5 Defendant Mantooth's correction
of answers to interrogatories
August 6 Plaintiff's supplemental petition
August 9 Plaintiff's third amended petition
September 5 Answer of defendant Magliolo
Clinic Associated
September 10 Answer of defendant Dr
Edward F. Good
September 12 Answer of defendant Dr
Lynn Pearson
September 18 Plaintiff's notice of intention
to take oral deposition
September 20 Defendant Good's motion to quash
notice to take deposition
December 9 Plaintiff's interrogatories to
defendants Pearson and Good
January 20, 1975 Defendant Good's answer to
interrogatories
January 30 Defendant Pearson's answers
to interrogatories
July 1 Plaintiff's notice of intention
to take oral deposition
January 16, 1976 Defendants' notice of intention
to take deposition of Dr. Robert
J. Goodall.
In July 1976 the case was placed on the dismissal docket pursuant to the local rules of court of Galveston County, which require inclusion on that docket of civil jury cases which have been on file for over two years and are not set for trial or other hearing. The court's docket sheet shows that a postcard giving notice that the case had been placed on the drop docket was mailed to plaintiff's counsel on July 19, 1976 and another postcard giving notice of dismissal was mailed on August 27, 1976. The case was dismissed for want of prosecution by order of the court signed August 27, 1976. Plaintiff filed her motion to reinstate the case, under rule 165a, Texas Rules of Civil Procedure, on February 14, 1977.
The court held a hearing on plaintiff's motion to reinstate on February 18, 1977. Plaintiff's attorney, John N. Holloway, testified he did not receive either the notice that the case was being placed on the drop docket or the notice of dismissal. He said that he first received notice of the dismissal on January 20, 1977, when the district clerk's office telephoned and advised him that his request for trial setting made a few days earlier could not be considered because the case had been dismissed. Holloway outlined the procedure consistently followed in his office for processing notices that a case had been placed on the drop docket and said he always followed up on such notice to maintain his cases on the docket. He stated that he always prosecuted his cases and that he would have filed a motion to retain this case on the docket had he received notice that it was to be dismissed.
James R. Chapman, an attorney working for Holloway, and Lawanda Wagner, Holloway's secretary, both testified as to the system used for handling dismissal notices and stated that the firm did not receive any notice, by mail or otherwise, that the case had been dismissed for want of prosecution.
Juanita Monroe, secretary to the Honorable Hugh Gibson, in whose court the case had been pending, testified that she personally sent out notices that this case had been placed on the drop docket and notices that the case had been dismissed, and that such notices had been sent to Holloway's firm. The record contains photocopies of the front of postcards mailed to the parties' counsel (including appellant's counsel) giving notice that the case had been placed on the drop docket and other postcards mailed to the same counsel notifying them that the case had been dismissed. V. W. McLeod, of Galveston, and W. N. Arnold, Jr., of Houston, attorneys for two of the defendants in this case, testified that they received postcard notices that the case had been placed on the drop docket and that the case had been dismissed. The notices addressed to McLeod's firm were introduced into evidence.
Thomas Hornbuckle, attorney for one of the defendants, also testified that his firm received the two postcard notices. He related a conversation he had with Holloway on August 11, 1976, during which this exchange took place:
THEN I SAID WHAT ARE YOU GOING TO DO ABOUT THAT MANTOOTH MATTER, THAT CASE HAS BEEN PLACED ON THE DROP DOCKET AND HE SAID WELL THAT DOESN'T HAVE ANY PARTICULAR OR RATHER THAT DOES NOT PRESENT ANY PARTICULAR PROBLEM BECAUSE ALL ONE NEED DO IS FILE A MOTION TO RETAIN THE CASE ON THE DOCKET.
The court overruled plaintiff's motion to reinstate the case, finding "that plaintiff's counsel received notice of the dismissal and/or the court's intention to dismiss within time to have filed a motion for new trial within 20 days after the case was dismissed."
Plaintiff appeals from that order on nine points of error. The first point asserts the court erred in placing this case on the dismissal docket where (1) the records of the court showed diligence in prosecuting the suit, (2) there had been no motion filed by defendants suggesting a failure to prosecute the case with diligence, and (3) there had been no motion contending defendants had been prejudiced by a failure to set the case. In her second point, appellant contends the court's dismissal of the suit was a violation of due process of law in that there was no evidence offered to support the trial court's implied finding that plaintiff had abandoned her suit or had failed to use diligence in prosecuting it. But these points complain of error prior to the dismissal for want of prosecution and are immaterial to this appeal.
It is clear from the records on file that plaintiff's counsel was diligently prosecuting this case. The only reason the case was...
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