Enriquez v. Livingston

• Decision Date: 20 March 2013
• Docket Number: Nos. 03–11–00791–CV, 03–11–00792–CV.,s. 03–11–00791–CV, 03–11–00792–CV.
• Court: Texas Court of Appeals
• Parties: Juan ENRIQUEZ, Appellant v. Brad LIVINGSTON, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice; Rick Thaler; John Rupert; Brian Tucker; and David Langston, Appellees. Juan Enriquez, Appellant v. Brad Livingston, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice; Rick Thaler; John Rupert; Brian Tucker; and David Langston, Appellees.

400 S.W.3d 610

Juan ENRIQUEZ, Appellant

v.Brad LIVINGSTON, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice; Rick Thaler; John Rupert; Brian Tucker; and David Langston, Appellees.

Juan Enriquez, Appellant

v.Brad Livingston, in his Official Capacity as the Executive Director of the Texas Department of Criminal Justice; Rick Thaler; John Rupert; Brian Tucker; and David Langston, Appellees.

Nos. 03–11–00791–CV, 03–11–00792–CV.

Court of Appeals of Texas, Austin.

March 20, 2013.

Rick Thaler, Director, Texas Department of Criminal Justice, Corrections Institution Division, Brian Tucker, Director, TDCJ Dental Services Corrections Institution Division, Huntsville, TX, Brad Livingston, Executive Director, Texas Department of Criminal Justice, Austin, TX, pro se appellee.

Michael J. Ritter, Assistant Attorney General, Law Enforcement Defense Division, Austin, TX, for appellee.

Juan Enriquez, Tennessee Colony, TX, pro se appellant.

David Langston, Director, Texas Department Criminal Justice, Tennessee Colony, TX, John Rupert, Warden, Texas Department of Criminal Justice, Huntsville, TX, pro se appellee.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

ON MOTION FOR REHEARING

J. WOODFIN JONES, Chief Justice.

We withdraw our opinion and judgment dated November 8, 2012, and substitute the following in its place. The State's motion for rehearing is overruled.

In this appeal, Juan Enriquez challenges the dismissal of his lawsuit for want of prosecution and the denial of his motion to retain and his later motion to reinstate.¹Because Enriquez never obtained service on the named defendants, who are listed as appellees herein, there is no appellees' brief; at this Court's request, the State filed a brief as amicus curiae. We reverse the trial court's judgment and remand the cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Enriquez, an inmate in a Texas Department of Criminal Justice (“the Department”) prison, filed a lawsuit against several Department officials alleging that they refused him access to adequate medical treatment for a tooth cavity. Enriquez alleged that, as a result of the defendants' actions, he suffered episodes of “acute and extreme pain” for seventeen months.

After the suit had been on file for a substantial period of time, the trial court notified Enriquez that the case was set for dismissal for want of prosecution on June 3, 2011. Enriquez filed a “Motion to Advance or Reset Hearing Date of Dismissal Setting” as well as a “Verified Motion to Retain and Motion for Evidentiary Hearing.” Without holding an oral hearing, the trial court found that no citation had been issued or served on the defendants despite the fact that the suit had been pending for more than a year. Citing a local rule providing that cases on file for more than 180 days with no answer filed are eligible for dismissal, the court signed an order dismissing the case on August 24, 2011. See Travis (Tex.) Civ. Dist. Ct. Loc. R. 8.1. Enriquez subsequently filed a “Verified Motion to Reinstate and Motion for Evidentiary Hearing,” which the trial court denied without an oral hearing. Enriquez perfected this appeal.

STANDARD OF REVIEW

We review the trial court's dismissal for want of prosecution for a clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); State v. Rotello, 671 S.W.2d 507, 508 (Tex.1984). We also apply an abuse-of-discretion standard to the denial of a motion to reinstate. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.1995); Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex.App.-San Antonio 2006, no pet.). A trial court abuses its discretion when it acts “arbitrarily or unreasonably, without reference to guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.2011).

DISCUSSION

Enriquez raises three issues on appeal related to the dismissal of his case for want of prosecution. He argues that the trial court (1) did not give him proper notice of its intent to dismiss, (2) should have afforded him an oral hearing before dismissing, and (3) after dismissing should have held an oral hearing to consider his motion to reinstate. For simplicity's sake, we discuss the events of No. 03–11–00791–CV, which are substantively identical to those in No. 03–11–00792–CV.

Insufficient Notice of Intent to Dismiss

Enriquez asserts in his first issue that the trial court did not give him the notice that Texas Rule of Civil Procedure 165a requires before dismissing the suit for want of prosecution. The original notice sent to Enriquez is not in the record, but Enriquez states in his appellant's brief that on May 22, 2011, he “received a notice of court setting of June 3, 2011, to dismiss this case for want of prosecution unless a motion to retain is filed prior to that date.” That statement being uncontradicted, we will accept it as true. SeeTex.R.App. P. 38.1(g). Enriquez's real complaint about the notice seems to be that the trial court did not actually sign the dismissal order until August 24, and he was not given notice that the court intended to dismiss on August 24. Indeed, his brief asserts that, “The evidence is legally insufficient to support the trial court's implied finding that notice was given to Enriquez that his case would be dismissed on August 24, 2011.”

A trial court has authority to dismiss a case for want of prosecution either (1) under Rule 165a of the Texas Rules of Civil Procedure (for failure to appear for any hearing or trial or for failure to dispose of the case within the time standards promulgated by the supreme court under its administrative rules), or (2) under the court's inherent power under the common law. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). Whichever source of authority the court uses, the plaintiff must be provided with “notice and an opportunity to be heard.” Id. A failure to provide adequate notice of the court's intent to dismiss for want of prosecution requires reversal. Id. The central question as to this issue is what constitutes “adequate notice.”

When a case is to be dismissed for want of prosecution under the authority of Rule 165a, that rule expressly sets forth the notice that must be provided:

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 and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service.

Tex.R. Civ. P. 165a(1). There is nothing, however, indicating that the specificity of notice required for a Rule 165a(1) dismissal is also required for a notice of intent to dismiss under the trial court's inherent power. All that is required is sufficient notice to satisfy due process. See Rohus v. Licona, 942 S.W.2d 111, 112 (Tex.App.-Houston [1st Dist.] 1997, no writ). Thus, we must, as a threshold matter, determine whether the threatened dismissal for want of prosecution here was pursuant to Rule 165a or pursuant to the court's inherent power.

In the present case, the trial court's notice, as recited in Enriquez's brief, does not reference Rule 165a. There is no mention of a requirement to appear for any hearing or trial, nor any failure to appear. Nor is there any mention of a failure to abide by the time standards in the supreme court's administrative rules. The wording of the dismissal order is also consistent with an inherent-power dismissal. The order recites that the case was pending for fifteen months without service of citation or the filing of an answer. The order makes no mention of Enriquez's failure to appear at any hearing or trial. The dismissal order cites a local rule of court that provides that cases may be dismissed by the court in two instances: (1) when no answer is filed in a case on file for more than 180 days, or (2) when a case has been on file for 18 months with no trial setting or filings within 180 days. See Travis (Tex.) Civ. Dist. Ct. Loc. R. 8.1. The local rule does not refer to the specific grounds for dismissal under Rule of Civil Procedure 165a but seems to provide a standard for dismissal under the court's inherent power for lack of diligence. Considering these facts together, we conclude that the dismissal in the present case was not based on Rule 165a but rather on the trial court's inherent power to dismiss a suit for want of prosecution for lack of diligence. Accordingly, the notice did not need to satisfy the specific requirements of Rule 165a(1) but merely needed to be adequate to satisfy due process.

As described in his appellant's brief, the notice obviously alerted Enriquez that his suit was subject to being dismissed for want of prosecution as early as June 3, 2011. Enriquez does not contend that he had insufficient time to respond to the threatened dismissal. According to his own brief, he filed three responsive pleadings before the dismissal order was eventually signed. As recited in the dismissal order, the trial court considered those responses. Indeed, the dismissal order began: “On the 24th day of August, came for consideration Plaintiff's Motion to Advance or Reset Hearing Date of Dismissal Setting filed on or about June 3, 2011 and the Plaintiff's Verified Motion to Retain and Motion for Evidentiary Hearing filed on or about June 24, 2011 in the above-referenced cause.” We conclude that the notice was adequate to satisfy due process.

Finally, we do not consider it significant that the dismissal order was signed on August 24 when the notice stated a “court setting” date of June 3. In this context, the stating of a setting date merely had the effect of establishing a deadline for Enriquez to file a response or motion to retain. Cf. Martin v. Martin, Martin & Richards, 989 S.W.2d 357, 359 (Tex.1998) (Tex.R. Civ. P. 166a calls for “hearing” on summary-judgment motion; although that...