Dueitt v. Arrowhead Lakes Property Owners, 10-04-00274-CV.

• Decision Date: 22 November 2005
• Docket Number: No. 10-04-00274-CV.,10-04-00274-CV.
• Citation: 180 S.W.3d 733
• Parties: Jerry O. and Rose DUEITT, Appellants, v. ARROWHEAD LAKES PROPERTY OWNERS, INC., et al., Appellees.
• Court: Texas Supreme Court

180 S.W.3d 733

Jerry O. and Rose DUEITT, Appellants, v. ARROWHEAD LAKES PROPERTY OWNERS, INC., et al., Appellees.

No. 10-04-00274-CV.

Court of Appeals of Texas, Waco.

October 26, 2005.

Rehearing Overruled November 22, 2005.

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Don Stocking, Stocking & Associates, Conroe, for appellants.

Larry L. Foerster, Darden, Fowler & Creighton, Bryan P. Fowler, The Fowler Law Firm, Conroe, Carrie E. Campbell, Mounger & Campbell, Wimberly, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Jerry O. Dueitt and Rose Dueitt appeal from the trial court's dismissal of their case for want of prosecution. Because we find that the trial court did not abuse its discretion in dismissing the Dueitts' cause, and because we find that any error in failing to hold a hearing on the Dueitts' motion to reinstate was harmless, we affirm.

Factual and Procedural Background

The Dueitts own two lots in the Arrowhead Lakes division of Montgomery County. The property was subject to deed restrictions that levied a fee for maintenance purposes. After a dispute arose about the amount of the maintenance levy, Arrowhead Lakes Property Owners, Inc. filed a lien affidavit against the Dueitts' property. Because their title was encumbered, the Dueitts could not sell their property. In 1990, the Dueitts filed suit against Arrowhead and some of its then current and former directors (Appellees¹) seeking declaratory relief and damages for slander of title, common law fraud, deceptive trade practices, and violations of the state and federal fair debt collection practices act.

After pending for over thirteen years on the trial court's docket, Appellees filed a motion for dismissal of the case for want of prosecution. On May 27, 2004, the trial court held a hearing on the Appellees' motion and subsequently dismissed the case without prejudice. The Dueitts filed a motion to reinstate and requested a hearing on the motion. The trial court denied the motion without a hearing.

On appeal, the Dueitts argue in seven issues that the trial court erred because it (1-2) failed to give notice of its intention to dismiss their case for want of prosecution; (3-4) did not inform the Dueitts of the authority under which the trial court intended to dismiss; (5) abused its discretion by dismissing their cause for lack of due diligence in prosecuting their case; (6) abused its discretion by taxing all costs against the Dueitts; and (7) abused its discretion by failing to hold a hearing on the Dueitts' motion to reinstate.

Analysis

The Dueitts Received Adequate Notice

The Dueitts argue in issues one through four that they had no adequate notice of the trial court's intention to dismiss their case for want of prosecution.

A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Tex.R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Steward v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex.App.-Waco 2004, no pet.); Binner v. Limestone County, 129 S.W.3d 710, 712 (Tex.App.-Waco 2004, pet. denied). A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2) when a suit is not disposed of within the time standards given by the Supreme Court. TEX.R. CIV. P. 165a(1), (2); Steward, 143 S.W.3d at 163-64. Independent of the rules of civil procedure, a trial court may also dismiss a suit under the inherent authority given to it by common law. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d at 163-64. The Dueitts did not request findings of fact or conclusions of law, and the trial court did not specify the standard of dismissal used. Therefore, we must affirm on the basis of any legal theory supported by the record. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990)).

We review a dismissal for want of prosecution under an abuse-of-discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984); In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, no pet.). A trial court abuses its discretion when it acts "without reference to any guiding rules or principles," or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)).

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; Smith v. McKee, 145 S.W.3d 299, 302 (Tex.App.-Fort Worth 2004, no pet.). The requirements of notice and a hearing are necessary to ensure the dismissed claimant has received due process. Smith, 145 S.W.3d at 302; Tex. Sting Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex.App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.App.-Dallas 2001, pet. denied). The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630-31; Smith, 145 S.W.3d at 302. However, participation in a hearing on a motion to reinstate cures any due process concerns for the failure to provide notice of intent to dismiss. Manning v. North, 82 S.W.3d 706, 715 (Tex.App.-Amarillo 2002, no pet.); Tex. Sting, Ltd., 82 S.W.3d at 648-49.

The Dueitts argue that they received no adequate notice of the trial court's intent to dismiss their case because the notice was promulgated by Appellees and not the trial court itself. They argue that Appellees' motion to dismiss was only sufficient to inform the Dueitts of the Appellees intentions, and gave no indication of the trial court's intentions. They argue that Appellees cannot give notice of the trial court's intentions, but that the trial court must give notice of its own intentions.

However, dismissal for want of prosecution may be obtained by motion of the trial court or on motion of any party to the suit. Sierra Club v. Tex. Comm'n. on Envtl. Quality, ___ S.W.3d ___, ___, No. 03-04-00108-CV, 2005 WL 121869, at *2, 2005 Tex.App. LEXIS 454, *5 (Tex.App.-Austin, Jan. 21, 2005) (not designated for publication) ("Contrary to appellants' arguments, the rule 165a reinstatement procedure applies to all dismissals for want of prosecution, regardless of whether they are initiated by the court or motion of a party."); Polk v. Southwest Crossing Homeowners Ass'n, 165 S.W.3d 89, 92-93 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (trial court granted Appellees' motion to dismiss for want of prosecution); Harvey v. Wetzel, No. 03-03-00608-CV, 2004 WL 1685879, at *3, 2004 Tex.App. LEXIS 6818, *12 (Tex.App.-Austin, July 29, 2004, no pet.) (not designated for publication) (affirming the trial court's granting of Appellee's motion to dismiss for want of prosecution); Wright v. Tex. Dept. of Crim. Justice-Institutional Div., 137 S.W.3d 693, 694 (Tex. App.-Houston [1st Dist.] 2004, no pet. h.) (Appellee filed a motion to dismiss for want of prosecution); Manning, 82 S.W.3d at 712 (Appellee filed a motion to dismiss for want of prosecution).

The Dueitts also argue that Appellees' motion and the trial court's notice were inadequate because it did not inform them of the trial court's intention to dismiss or of the authority under which the case might be dismissed.

Appellees filed their motion to dismiss on April 14, 2004. The Dueitts filed a response to Appellees' motion on April 21. The trial court's notice of a hearing was filed on May 14. The notice informed the Dueitts that a hearing would be held on Appellees' motion to dismiss and gave the time and place for the hearing. The Dueitts argue that the trial court's reference to Appellees' motion in its notice was not sufficient to inform them of the trial court's intent to dismiss the Dueitts because Appellees' motion requests that Appellees, not the Dueitts, be dismissed with prejudice. In the introductory statement of Appellees' motion, it states that Appellees "move[] this Court for an order dismissing [Appellees] with prejudice." However in body of the motion, Appellees argue that the Dueitts' case should be dismissed because the Dueitts failed to prosecute their case with due diligence and reminds the trial court that the action has been pending on the docket for over thirteen years with no affirmative action on the case since February 2001. Appellees also state in the motion that this time period is outside the time standards promulgated by the Texas Supreme Court and asks the trial court to "order the dismissal of Plaintiffs' action with prejudice." Further, in their response to Appellees' motion, filed before the trial court's notice was sent, the Dueitts argue that their cause should not be dismissed under the trial court's inherent power because they have not been delinquent in prosecuting their case.

All that due process requires is that a party be given notice of the time and substance of the hearing, and an opportunity to present arguments at the hearing. Smith, 145 S.W.3d at 302; Tex. Sting, 82 S.W.3d at 648. The notice referencing Appellees' motion to dismiss was sufficient to inform the Dueitts of the time and the substance of the hearing, namely that the hearing would concern the potential dismissal of their cause for want of prosecution. The hearing was held, and the Dueitts...