Goff v. Branch

• Citation: 821 S.W.2d 732
• Decision Date: 31 December 1991
• Docket Number: No. 04-91-00097-CV,04-91-00097-CV
• Parties: Margaret P. GOFF and William D. Goff, Appellants, v. Charles Leon BRANCH, Appellee.
• Court: Texas Court of Appeals

Page 732

821 S.W.2d 732

Margaret P. GOFF and William D. Goff, Appellants, v. Charles Leon BRANCH, Appellee.

No. 04-91-00097-CV.

Court of Appeals of Texas,

San Antonio.

Dec. 31, 1991.

Rehearing Denied Feb. 5, 1992.

L. Keith Slade, Tucker, Hendryx & Gascoyne, Houston, for appellants.

Paul M. Green, Laura Cayaretta, Lang, Ladon, Green, Coghlan & Fisher, P.C., San Antonio, for appellee.

Before REEVES, C.J., and CHAPA and GARCIA, JJ.

OPINION

CHAPA, Justice.

Appellants, Margaret P. Goff, and her husband, William D. Goff, appeal a trial court's order of dismissal for want of prosecution. The issues before this court are whether the trial court erred in dismissing appellants' medical malpractice cause of action against Dr. Charles Leon Branch for want of prosecution, and in denying appellants' motion for reinstatement of their lawsuit.

Under TEX.R.CIV.P. 165a(1), a trial court has the power to dismiss "for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." TEX.R.CIV.P. 165a(3) provides that upon proper motion for reinstatement "[t]he court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained."

The reinstatement provisions of TEX.R.CIV.P. 165a(3) must be construed in connection with the grounds for dismissal set out in TEX.R.CIV.P. 165a(1) and, therefore, apply only to cases that are dismissed because of failure of a party to appear or make an announcement. Speck v. Ford Motor Co., 709 S.W.2d 273, 275 (Tex.App.--Houston [14th Dist.] 1986, no writ). Therefore, under TEX.R.CIV.P. 165a(3) "[r]einstatement of the case is mandated, upon a finding that the failure of either the plaintiff or his attorney to appear at the calling of the dismissal docket was not intentional or the result of conscious indifference, but was due to an accident or mistake or that the failure has been otherwise reasonably explained." Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex.App.--San Antonio 1988, writ ref'd), citing Price v. Firestone Tire & Rubber Co., 700 S.W.2d 730, 733 (Tex.App.--Dallas 1985, no writ). "[T]he refusal to reinstate a case dismissed when the plaintiff herself is present in court and ready to proceed constitutes an abuse of discretion." Wyatt v. Texas Oklahoma Express, Inc., 693 S.W.2d 731, 733 (Tex.App.--Dallas 1985, no writ).

When properly invoked, the trial court also has inherent powers to dismiss for want of prosecution, which are not unbridled but subject to review under the abuse of discretion standard. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (Tex.1957); Frank v. Canavati, 612 S.W.2d 221, 222 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.). An application for reinstatement is likewise addressed to the sound discretion of the court. Buchanan v. Masood, 631 S.W.2d 219, 221-22 (Tex.App.--Amarillo 1982, no writ); Jarvis Co., Inc. v. Wes-Tex Grain Co., 548 S.W.2d 775, 778 (Tex.Civ.App.--Waco 1977, writ ref'd n.r.e.).

Appellant has the burden of providing the appellate court with a record showing the error alleged. TEX.R.APP.P. 50(d). TEX.R.APP.P. 74(f) provides that "[a]ny statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party."

Further, where there are "no statement of facts or findings of fact before us, we must presume the trial court had before it and passed on all facts necessary to support the judgment." Knight v. Trent, 739 S.W.2d 116, 119 (Tex.App.--San Antonio 1987, no writ), citing Davis v. Huey, 571 S.W.2d 859, 962 (Tex.1978). The record provided this court by the appellants contains a statement of facts of the hearing on the motion to reinstate, but no statement of facts or findings of fact of the dismissal hearing. Therefore, the presumptions in favor of the dismissal order prevail, and appellants' complaint as to the dismissal order is rejected. However, since we are provided with a statement of facts as to the reinstatement hearing, the dispositive issue is whether the trial court abused its discretion in refusing to reinstate the dismissed cause.

On appeal, the parties cite to conflicting authorities which hold both that the trial court abused its discretion in failing to reinstate a dismissed case under the attending circumstances of each case and that the trial court did not abuse its discretion. However, we note that appellee relies considerably on cases where the appellate court was not provided with a statement of facts or findings of fact from either the dismissal hearing or the reinstatement hearing. Nevertheless, we find Mandujano and Wyatt controlling in the case before us. Mandujano, 755 S.W.2d 512; Wyatt, 693 S.W.2d 731.

Mandujano involved a dismissal for want of prosecution and refusal to reinstate, with a notice and dismissal order similar to the notice and order now before us. Id. In Mandujano, this court held that although there was no statement of facts of the dismissal hearing, the trial court, nevertheless, abused its discretion in failing to reinstate the case as provided for under Rule 165a(3). Id. at 514; TEX.R.CIV.P. 165a(3). This court held that under TEX.R.CIV.P. 165a(3), "[r]einstatement of the case is mandated, upon a finding that the failure of either the plaintiff or his attorney to appear at the calling of the dismissal docket was not intentional or the result of conscious indifference, but was due to an accident or mistake or that the failure has been otherwise reasonably explained." Id. Moreover, in a separate point of error, this court disposed of appellee's insistence that appellants "also failed to plead due diligence in prosecution of the lawsuit," holding that it was also an abuse of discretion not to reinstate the cause "where on its face the record demonstrates that the case had been prosecuted with due diligence." Mandujano, 755 S.W.2d at 515.

Wyatt likewise involves a dismissal for want of prosecution and a refusal to reinstate. Wyatt, 693 S.W.2d 731. In Wyatt, the court dismissed the case for want of prosecution when appellant's counsel appeared twenty-five minutes late on the second day of trial, although the appellant appeared on time. The trial court refused to reinstate the cause. In holding that the trial court abused its discretion, the appellate court stated:

In resolving the question now before us, we recognize that, generally, the trial court is entitled to consider the entire history of the case and that the plaintiff's assertion at dismissal that she did not intend to abandon the case is immaterial.... However, when, as here, the plaintiff's past inactions have been forgiven by the trial court's proceeding to trial without dismissing the case because of those transgressions, a different circumstance is presented.... ("Thereafter the case lay dormant for two years and five months.... However, from this point forward, Plaintiffs became active again...."). Here, the failure of plaintiff's counsel to timely appear in court on the second day of trial, when plaintiff herself timely appeared in court and was ready to proceed at 9:00 a.m., does not justify a refusal to reinstate plaintiff's case. Regardless of what may have transpired before in this case, the failure of counsel in this instance should not be charged against his client. We do not question the trial court's finding that the failure of plaintiff's counsel to timely appear was the result of conscious indifference. We are of the opinion, however, that the trial court abused its discretion in punishing counsel's indifference by refusing to reinstate this cause rather than imposing some sanction on the offender--plaintiff's counsel. Thus, we hold that the refusal to reinstate a case dismissed when the plaintiff herself is present in court and ready to proceed constitutes an abuse of discretion.

Wyatt, 693 S.W.2d at 733 (citations omitted).

In the present case, the notice of setting, which was signed by a deputy district clerk, merely informed appellants that their case was set for dismissal on a day certain. The notice also warned the appellants that "[i]f no announcement [was] made, this cause [would] be dismissed for want of prosecution", and nothing more. As in Mandujano, a reasonable reading of the notice merely gave the appellants notice that the dismissal setting was pursuant to the provisions of Rule 165a(1). TEX.R.CIV.P. 165a(1). Thereafter, the court order dismissing appellants' cause of action, read as follows:

On the 16th day of October, 1990 came to be heard at 8:30 the following numbered and entitled causes, the same having been specially set for trial by an order duly entered in the manner provided by law, and the plaintiff in each and all of said causes as same were reached upon the call of the docket, having failed to appear in person or by attorney, or make any announcement, the court is of the opinion that each and all of said causes should be dismissed for the want of prosecution.

....

85-CI-08704 Margaret P Goff et vir vs Charles Leon Branch MD

In Adams v. Adams, it was stated that:

It is generally held that the legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms. Where the language used in a judgment is plain and unambiguous, there is no room for construction or interpretation and it becomes the duty of the courts to declare the effect thereof in the light of the literal meaning of the language therein employed.

Adams v. Adams, 214 S.W.2d 856, 857 (Tex.Civ.App.--Waco 1948, writ ref'd n.r.e.); see Ellis v. Mortgage & Trust, Inc., 751 S.W.2d 721, 723 (Tex.App.--Fort Worth 1988, no writ). Since "the language used in [this] judgment is plain and unambiguous, there is no room for construction or...