Herrera v. Rivera

• Decision Date: 05 May 2005
• Docket Number: No. 08-03-00504-CV.,08-03-00504-CV.
• Citation: 281 S.W.3d 1
• Parties: Rosa I. HERRERA, Appellant, v. Jose Angel RIVERA and Amalia Rivera, Appellees.
• Court: Texas Court of Appeals

281 S.W.3d 1

Rosa I. HERRERA, Appellant, v. Jose Angel RIVERA and Amalia Rivera, Appellees.

No. 08-03-00504-CV.

Court of Appeals of Texas, El Paso.

May 5, 2005.

Constance R. Wannamaker, El Paso, for Appellant.

Jesus M. Olivas, El Paso, for Appellee.

Amalia Rivera, Denver, CO, pro se.

Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

This is an appeal from an order of dismissal and order overruling a motion for reinstatement. Appellant, Rosa I. Herrera, raises five issues on appeal. In Issue One, Appellant alleges that the trial court abused its discretion by dismissing her case for want of prosecution. In Issue Two, Ms. Herrera alleges that the trial court abused its discretion by not granting her motion to reinstate. In Issue Three, Appellant argues that the trial court erred in refusing to allow Ms. Herrera's trial counsel to be sworn in and testify at the motion to reinstate hearing. In Issue Four, Ms. Herrera challenges the trial court's Finding of Fact No. 8. In Issue Five, Ms. Herrera argues that the trial court's conclusions of law apply an incorrect standard to her motion to reinstate and cannot support the denial of her motion. Appellee Jose Angel Rivera filed a brief in this appeal, but Appellee Amalia Rivera did not file a brief or enter an appearance when the case was submitted to this Court. We reverse and remand.

On October 12, 1996, Appellant Rosa I. Herrera entered into a written agreement to buy Appellees' property located at 3809 Memphis Ave. in El Paso, Texas. The agreement was: Ms. Herrera and Noel H. Renteria would pay Mr. and Mrs. Rivera $10,000 and take over the monthly payments on the property of $340. The $10,000 would be paid in three installments: $4,000 was due on January 31, 1997; $3,000 was due on April 31, 1997; and $3,000 was due on July 31, 1997. Upon complete payment, the house was to be deeded to Mr. Renteria and Ms. Herrera.

According to Ms. Herrera's original petition, she made a payment of $1,020 at the time the contract was signed which represented three monthly payments past due on the mortgage. She also made the first payment of $4,000 on January 23, 1997. Between November 1996 and February 1997, Ms. Herrera made the $340 monthly payments. During this time, Ms. Herrera incurred additional costs of $6,000 for structural improvements done to the home. Shortly after Ms. Herrera had paid for these improvements, Mr. and Mrs. Rivera informed Ms. Herrera that the contract was terminated. Mr. and Mrs. Rivera did not return any funds tendered in performance of the contract.

On February 22, 1999, Ms. Herrera filed her original petition for specific performance and declaratory relief. A Notice of Lis Pendens was also filed on April 7, 1999. On April 8, 1999, Mr. Rivera filed a general denial. On June 14, 1999, Mr. and Mrs. Rivera were served with Ms. Herrera's request for disclosure. On June 25, 1999, Mr. Rivera filed his response to Plaintiff's request for disclosure in which Mr. Rivera objected to a majority of Ms. Herrera's requests. In a letter dated July 15, 1999, Ms. Herrera's attorney contacted Mr. Rivera's attorney regarding his reply, requesting a more productive response to the Request for Disclosure filed by Ms. Herrera and stating that failure to do so by July 29, 1999, would result in the filing of a motion for sanctions. On August 19, 1999, Ms. Herrera filed a Motion to Compel Answers to Discovery and For Sanctions and Motion Setting Hearing in which Ms. Herrera announced she was ready for trial. On August 20, 1999, both parties filed a Rule 11 Agreement to Extend Time to Object and Respond to Discovery; the date was extended to August 30, 1999.

On December 22, 1999, a Notice of Change of Designation of Agency Counsel

was filed on behalf of Ms. Herrera designating a new attorney for Ms. Herrera. On November 15, 2000, a second Notice of Change of Designation of Counsel was filed on behalf of Ms. Herrera. On February 7, 2003, a third Notice of Change of Designation of Counsel was filed on behalf of Ms. Herrera. On April 11, 2003, Ms. Herrera filed a motion for preferential setting.

On May 13, 2003, the trial court signed an order setting a hearing for a defendant's motion to withdraw as counsel; the hearing was schedule for June 17, 2003. On May 21, 2003, Mr. Rivera's attorney filed a Motion to Withdraw As Counsel of Record; the motion stated that he had not had contact with Mr. Rivera since 2000 and did not know his whereabouts.¹ On June 19, 2003, the trial court filed an order setting a status conference hearing scheduled for June 26, 2003. On July 14, 2003, the trial court filed an order setting a hearing for a motion to dismiss for want of prosecution scheduled for August 21, 2003. The record does not contain a transcript of such hearing. On August 21, 2003, the trial judge entered an order dismissing the case for want of prosecution.

On September 19, 2003, Ms. Herrera filed a Motion to Reinstate After Dismissal for Want of Prosecution. In response to this motion, Mr. Rivera filed a original answer containing a general denial. A Notice of Change of Designation of Counsel was filed on October 29, 2003. The trial court filed an order setting the hearing on Ms. Herrera's motion to reinstate for November 4, 2003. The record before us contains a transcript of the motion to reinstate hearing. The trial court denied the motion to reinstate. On November 13, 2003, Ms. Herrera filed a request for findings of fact and conclusions of law. On January 9, 2004, the trial court filed findings of fact and conclusions of law with regard to the motion to reinstate. On January 20, 2004, Ms. Herrera filed a request for amended and additional findings of fact and conclusions of law. On January 23, 2004, Mr. Rivera filed an opposition to Ms. Herrera's request for amended and additional findings of fact and conclusions of law. The record before the Court contains no amended and additional findings of fact and conclusions of law. On December 3, 2003, Ms. Herrera timely filed a notice of appeal.

In Issue One, Ms. Herrera argues that the trial court erred in dismissing the case for want of prosecution. Specifically, Ms. Herrera argues that the notice of the dismissal was deficient since it failed to state the reason why the case was being dismissed. The notice simply read as follows:

The above entitled and numbered cause is hereby reset for a MOT DISMISS WANT OF PROSECUTION before Judge Luis Aguilar on August 21, 2003 at 08:30am, in the 120th District Court, El Paso County Courthouse, 500 E. San Antonio, Room 605, 6th Floor, El Paso, Texas.

Secondly, Ms. Herrera argues that because at the time of the dismissal, she had requested a preferential trial setting and appeared at the dismissal hearing and announced ready for trial, the trial court abused its discretion in dismissing the case. The record before us contains no transcript of the August 21, 2003 motion to dismiss for want of prosecution hearing. In her brief, in support of her argument, Ms. Herrera makes reference to the contents in her Motion to Reinstate. Mr Rivera objects to Ms. Herrera's reliance on the contents of said Motion to Reinstate in arguing the merits of the trial court's decision to dismiss the plaintiff's case for want of prosecution. Since there is no record of the August 21, 2003 hearing in the record, Mr. Rivera argues that he is entitled to the benefit of the legal presumption that the record is presumed to support the trial court's order dismissing the plaintiff's case for want of prosecution. We agree with Mr. Rivera's assertion.

Deficient Notice of Dismissal

We first address Ms. Herrera's argument that the notice of dismissal was deficient. A 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. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976). 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 time standards promulgated by the Supreme Court." Tex.R.Civ.P. 165a(1)-(2). 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. Villarreal, 994 S.W.2d at 631; State v. Rotello, 671 S.W.2d 507, 508-09 (Tex.1984).

A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent power. See TEX.R.CIV.P. 165a(1). Texas Rules of Civil Procedure 165a states in pertinent part:

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. ...

The requirements of a notice and a hearing are necessary to ensure the dismissed claimant has received due process. 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.

The notice to dismiss read as follows:

The above entitled and numbered cause is hereby reset for a MOT DISMISS WANT OF PROSECUTION before Judge Luis Aguilar on August 21, 2003 at 08:30am, in the 120th District Court, El Paso County Courthouse, 500 E. San Antonio, Room 605, 6th Floor, El Paso, Texas.

Ms. Herrera argues that with such notice, she never received specific...