Harvey v. Wetzel, No. 03-03-00608-CV (TX 7/29/2004)
| Decision Date | 29 July 2004 |
| Docket Number | No. 03-03-00608-CV.,03-03-00608-CV. |
| Parties | JEANAM HARVEY, Appellant v. MICHAEL WETZEL, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Travis County, 200th Judicial District, No. 99-13033, Honorable Rose Spector, Judge Presiding.
Affirmed.
Before Justices KIDD, B. A. SMITH and PEMBERTON.
Jeanam Harvey appeals the district court order dismissing her action against appellee Michael Wetzel for want of prosecution and overruling her motion to reinstate her case. On appeal, Harvey contends that the district court erred in dismissing for want of prosecution, not placing the case on the Travis County dismissal docket prior to dismissal, not allowing her appropriate notice prior to dismissal, refusing to reinstate her case, and refusing to allow her to present any evidence at the hearing on her motion to reinstate. We affirm the district court's order.
Harvey's underlying suit arises from orthodontic treatment she received from Dr. Wetzel. On September 3, 1999, Harvey filed an action seeking pre-suit discovery. See Tex. R. Civ. P. 202. Harvey subsequently filed her original petition in this case on November 5, 1999, alleging Wetzel was negligent in attempting to correct and straighten her teeth, causing her past and future pain and suffering; past and future medical expenses; reduced function in her teeth, jaw, and temporomandibular joints; past and future loss of earnings; past and future physical impairment; and past and future mental anguish. The trial date was set for May 17, 2001.
On March 1, 2001, Harvey filed a motion for continuance. In support of her motion, Harvey averred, inter alia, that she needed more time to provide an accurate calculation of damages at trial because her treating physicians had yet to agree on the proper prognosis of her injuries. The motion was unopposed, and the district court granted the continuance and reset the trial date to October 7, 2002.
Harvey filed a second motion for continuance on September 23, 2002. Harvey's counsel explained that he was scheduled for an unrelated jury trial in Tarrant County that he expected would conflict with the trial date of the instant case. Harvey also noted that "[d]efendant never sought to arrange for mediation despite the fact that [Harvey's] counsel reminded him several weeks ago of the local rule requiring mediation." Harvey's counsel promised to "promptly seek a new setting and . . . arrange for mediation to take place before that setting." Wetzel's counsel did not oppose the motion, and the district court granted the continuance on September 26, 2002.
For over nine months thereafter, Harvey's counsel did not seek a new trial date or set the case for mediation. On June 26, 2003, Wetzel filed a motion to dismiss for want of prosecution. Wetzel cited as grounds for dismissal Harvey's failure to reset the trial date, the lack of discovery or other activity in the case since November 2000, and the length of time—forty-two months—that the case had been on file without proceeding to trial. Wetzel's counsel pointed out that the Texas Rules of Judicial Administration establish a presumptive guideline of eighteen months for disposition of civil cases.1
Upon receiving notice of the motion, Harvey's counsel immediately obtained a trial date for November 3, 2003. The hearing on the motion to dismiss was set for 9 a.m. on Monday, June 30, 2003. Wetzel first notified Harvey of the hearing by faxing a notice of the motion to Harvey's counsel on Wednesday, June 25, 2003. However, Harvey's counsel testified that the notice faxed on that day was misleading because it had the cause number of Harvey's rule 202 proceeding, which had been consolidated into the present case. Wetzel's counsel then faxed a notice of the motion to dismiss with the correct cause number to Harvey's counsel at 10:20 a.m. on Thursday, June 26, 2003. However, Harvey's counsel testified at the hearing that this second notice did not include a time of setting for the hearing on the motion to dismiss, but that Wetzel's counsel later corrected it. At the hearing, Harvey's counsel testified:
I did not prepare a written response because I was doing some work in preparation for [a trial scheduled for July 3rd in Fort Worth] and I requested . . . [that] this hearing be put off a couple of weeks but it's not agreed upon so we are here.
Harvey's counsel then provided further testimony regarding his excuses for the delays in the case. On June 30, 2003, the district court granted Wetzel's motion to dismiss for want of prosecution without stating its reasons for dismissal. On July 1, 2003, Harvey filed a motion to reinstate. On July 30, 2003, the district court held a hearing on the motion and subsequently denied it.
Harvey asks that we reverse the district court and remand the case for trial. She asserts five issues: (1) the district court abused its discretion in dismissing the case for want of prosecution; (2) the district court erred in not placing the case on a dismissal docket prior to dismissal; (3) the district court erred in not affording Harvey at least three working days' notice of its intent to dismiss the case; (4) the district court abused its discretion in refusing to reinstate the case; and (5) the district court erred in refusing to allow Harvey to present any evidence at the hearing on the motion to reinstate.
Standard of review
We review a trial court's action on a motion to dismiss for want of prosecution and the court's failure to reinstate the cause under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (citing Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976)). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). The decision as to whether a trial court abused its discretion is made on a case-by-case basis, considering the entire history of the case. Federal Deposit Ins. Corp. v. Kendrick, 897 S.W.2d 476, 481-82 (Tex. App.-Amarillo 1995, no writ) ( further that no single factor is dispositive); Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 856 (Tex. App.-Houston [1st Dist.] 1993, no writ); see also Collier Mfg. & Supply, Inc. v. Interfirst Bank Austin, N.A., 749 S.W.2d 560, 563 (Tex. App.-Austin 1986, no pet.).
Dismissal for want of prosecution
In her first issue, Harvey contends that the district court abused its discretion in dismissing the case for want of prosecution because Harvey reasonably explained the delay in prosecution and Wetzel was partially responsible for the delay. We disagree.
The Texas Supreme Court summarized the trial court's authority to dismiss for want of prosecution in Villarreal v. San Antonio Trucking & Equipment:
The trial court's authority to dismiss for want of prosecution stems from two sources:
(1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court's inherent power. A trial court may dismiss under Rule 165a on `failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice' or when a case is `not disposed of within the time standards promulgated by the Supreme Court . . . .' In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.
994 S.W.2d 628, 630 (Tex. 1999) (citations omitted).
In this case, the district court did not state its reasons for dismissing the case or whether it was relying on rule 165a(2) or its inherent power.2 In support of his motion to dismiss for want of prosecution, Wetzel cited: (1) the expiration of the eighteen month time limit of Rule 6b(1) of the Rules of Judicial Administration, (2) plaintiff's failure to reset the trial date for nine months after obtaining a second continuance, and (3) the absence of discovery and activity in the case since the first motion for continuance was granted. Harvey urges that the notice of dismissal indicates that Wetzel was seeking dismissal pursuant to rule 165a(2). However, because the trial court did not specify under what ground it was exercising its authority to dismiss Harvey's case, we may affirm the judgment under any applicable legal theory. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.-Houston [1st Dist.] 1992, no writ).3
The record supports dismissal pursuant to the court's inherent authority to dismiss for lack of prosecution.4 In dismissing under its inherent authority for lack of diligent prosecution, the trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting, and the existence of reasonable excuses for a delay. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Houston v. Robinson, 837 S.W.2d 262, 264 (Tex. App.-Houston [1st Dist.] 1992, no writ). No single factor is dispositive. Ozuna v. Southwest Bio-Clinical Labs., 766 S.W.2d 900, 901 (Tex. App.-San Antonio 1989, writ denied). When called upon to determine whether a trial court abused its discretion in dismissing a suit for failure to prosecute with due diligence, the appellate court must look to the record in its entirety, including the statement of facts, findings of fact and conclusions of law, if any, and the procedural history of the case as presented in the transcript. Thomas, 838 S.W.2d at 297-298.
Reviewing the record, we note that this case was over forty-two months old at the time of dismissal, but had not yet been brought to trial. There had been two previous trial settings. In her second motion for continuance, moreover, Harvey's counsel had promised to "promptly seek a...
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