Essex Intern. Ltd. v. Wood

• Decision Date: 07 February 1983
• Docket Number: No. 05-82-00023-CV,05-82-00023-CV
• Parties: ESSEX INTERNATIONAL LIMITED, Appellant, v. Lee F. WOOD and Lee Petroleum Company, Appellee.
• Court: Texas Court of Appeals

Page 322

646 S.W.2d 322

ESSEX INTERNATIONAL LIMITED, Appellant, v. Lee F. WOOD and Lee Petroleum Company, Appellee.

No. 05-82-00023-CV.

Court of Appeals of Texas,

Dallas.

Feb. 7, 1983.

Khent H. Rowton, Dallas, for appellant.

Bruce W. Bowman, Jr., Dallas, for appellee.

Before GUITTARD, C.J., and SPARLING and FISH, JJ.

GUITTARD, Chief Justice.

This appeal raises the issue of whether the trial judge abused his discretion in dismissing the suit for want of prosecution. We hold that the record fails to show an abuse of discretion. Consequently, we affirm.

The proceedings in the trial court are not fully shown in this record, which contains only a transcript. Plaintiff's original petition was filed January 22, 1981. After answering, defendants filed a motion to quash a notice to take a deposition. The next relevant document in the transcript is an order of dismissal for want of prosecution dated October 12, 1981, reciting that the cause was regularly reached on the docket for trial and that plaintiff failed to appear and prosecute. Within the thirty-day period for filing a motion for new trial provided by rule 329b of the Texas Rules of Civil Procedure, plaintiff filed an unsworn motion to reinstate, alleging that plaintiff had received no notice of the court's intention to dismiss for want of prosecution and had not failed to prosecute. On November 2 the judge signed an order granting the motion to reinstate and vacating the order of dismissal. Defendants then filed a motion to strike the order of November 2, alleging that plaintiff's motion to reinstate failed to comply with rule 165a of the Texas Rules of Civil Procedure in that it was unsworn and set forth no reasons for reinstatement. This motion also alleges that the November 2 order was signed without notice to defendants and without the hearing required by rule 165a.

Apparently in response to defendant's motion, plaintiff filed the affidavits of three attorneys for plaintiff. Each attorney stated that he had received no notice of the court's intention to dismiss the case for want of prosecution before receiving a copy of the order of dismissal. The next relevant document is a "judgment" signed December 11, 1981. This order, which we treat as an order overruling plaintiff's motion to reinstate, is as follows:

Came on to be heard the Motion to Dismiss and Strike Order filed by LEE F. WOOD and LEE PETROLEUM CORPORATION, Defendants in the above-referenced case and the Court having considered the Motion, the Order reinstating the cause dated November 2, 1981, the Motion for Reinstatement filed on or about October 23, 1981 by the Plaintiffs herein the Brief of Plaintiff in opposition to Defendant's Motion to Strike and the affidavits attached thereto, and the applicable Rules of Civil Procedure is of the opinion that said Motion to Dismiss [and Strike] should be granted for the reasons that a hearing was not had on said Motion to Reinstate and sufficient reasons were not presented by the Plaintiff to cause reinstatement, as required by Rule 165A of the Texas Rules of Civil Procedure. And accordingly, the Order dated November 12, [sic] 1981 reinstating the cause is hereby struck and held vacated and for nought and the Order of Dismissal for Want of Prosecution, dated October 12, 1981 is continued in full force and effect. [Emphasis added.]

Although the appeal bond recites that the "judgment" was rendered December 11, the bond was filed within ninety days of the original order of dismissal and, therefore, we treat it as perfecting an appeal from that order. Tex.R.Civ.P. 356.

On this appeal plaintiff contends, first, that the trial court abused its discretion in dismissing the case for want of prosecution because the case had not been on file an unreasonable length of time and no delay of unreasonable duration had occurred. Plaintiff points out that the suit was filed on January 22, 1981, and that less than nine months had elapsed on October 12, when the case was dismissed. Although the lapse of this period, without more, may not have been a sufficient ground for the dismissal, this does not appear to be the ground on which the case was dismissed. The order of dismissal recites that the case was regularly called for trial and that plaintiff failed to appear and prosecute. Such a failure to appear for trial is one of the grounds for dismissal expressly recognized in rule 165a. If a case is regularly called for trial, the plaintiff cannot ignore a trial setting with impunity even though the case has been pending less than a year. Consequently, no abuse of discretion is shown by reason of the shortness of the period between filing the suit and the order of dismissal.

In its second point plaintiff complains that the trial court had ample authority to reinstate the case on plaintiff's motion and that vacation of the order of reinstatement without hearing any evidence deprived plaintiff of its right to be heard on the propriety of the dismissal. The record does not show whether any evidence was offered at the hearing on December 11, or whether the judge declined to hear evidence. The recitals in the order, however, indicate that the court's ruling was made on the basis of the sufficiency of the motion to reinstate without hearing evidence. Consequently, we consider the question to be one of sufficiency of the motion to state grounds on which the court was required to hear evidence.

In this connection we consider also plaintiff's third point, which complains that the court should have considered the motion to reinstate as a motion for new trial, since it complied with all the requirements of a motion for new trial and was filed within the time allowed by rule 329b of the Texas Rules of Civil Procedure. Plaintiff...