In the Interest of G.H.D., No. 01-05-00228-CV (TX 10/20/2005)
| Decision Date | 20 October 2005 |
| Docket Number | No. 01-05-00438-CV.,No. 01-05-00439-CV.,No. 01-05-00228-CV.,01-05-00228-CV.,01-05-00438-CV.,01-05-00439-CV. |
| Parties | IN THE INTEREST OF G.H.D., a Minor Child. IN RE BILLY GENE WOLCOTT, Relator. |
| Court | Texas Supreme Court |
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 22291*RH02.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
This case asks whether a docket-control or scheduling order that sets a case for trial on a certain date will preserve the trial court's jurisdiction and thus control over a later order that dismisses the case for want of prosecution [DWOP], when the docket-control setting states a trial date that falls 92 days after the DWOP, and no timely motion to reinstate was filed after the DWOP. We hold that the dismissal order controls, that it became a final, appealable judgment, and that the trial court lost plenary power to reinstate the case 30 days after the DWOP order.
In Cause No. 01-05-00228-CV, appellant, Billy Gene Wolcott, challenges a November 12, 2004 order by which the trial court (1) adjudicated Wolcott the father of G.H.D., a child, and (2) required Wolcott to pay appellee, Kimberly Andrea Durst, the mother of G.H.D., $950 per month as child support, including arrearages dating back to September 1, 2004, and an additional $400 as reimbursement for a total past due amount of $19,602.68 in medical expenses and retroactive child support. In Cause No. 01-05-00438-CV, Wolcott petitions this Court for habeas corpus relief, and in Cause No. 01-05-00439-CV, he requests mandamus relief. Wolcott presents a single issue, common to each cause, in which he contends that the trial court's November 12, 2004 order is void because the trial court signed the order after its plenary power had expired. In response, Durst contends that the trial court's earlier docket-control, or "scheduling," order, signed on April 29, 2004, preserved the trial court's jurisdiction.
In light of our holding that the November 12, 2004 order is void because the trial court lacked jurisdiction, we dismiss the appeal of Cause No. 01-05-00228-CV, conditionally grant mandamus relief in Cause No. 01-05-00439-CV, and lift our stay order in Cause No. 01-05-00438-CV, which we dismiss as moot.1
G.H.D. was two and a half months old on November 25, 2002, when Durst filed a petition seeking to (1) establish that Wolcott was G.H.D.'s father, (2) require that Wolcott pay child support, and (3) appoint Durst sole managing conservator of G.H.D. In his January 10, 2003 answer, Wolcott denied that he was G.H.D.'s father and requested genetic testing. On March 6, 2003, the trial court signed the parties' agreed, temporary orders. These required Wolcott to pay Durst $500 per month as child support. The trial court's initials appear on a scheduling order and notice of intent to dismiss dated July 24, 2003. Among other things, this order set the case for a status and pretrial conference on September 3, 2003, and for trial on the merits on September 8, 2003. Also on July 24, 2003, the trial court signed new, agreed temporary orders endorsed by the parties' counsel. These orders refer to a hearing conducted on March 6, 2003 and recite that the trial court continued Wolcott's $500 monthly child-support obligation. The July 24, 2003 orders also reflect the trial court's findings that Wolcott is the father of G.H.D. and that Wolcott had paid a total of $1,500 to Durst for the months of March, April, and May 2003.
Except for docket-sheet notations of a nonappearance on August 25, 2003 and a status report sent by telecopier from the parties' counsel on September 3, 2003, the date first set for trial, the record shows little activity in the case until February 6, 2004, when a second scheduling order and notice of intent to dismiss issued.2 This order set the case for a status and pretrial conference on April 7, 2004, and for trial on the merits on April 12, 2004. After another nonappearance entry noted on the court's docket sheet for March 4, 2004, a third scheduling order and notice of intent to dismiss issued on April 7, 2004. This order set the case for a status and pretrial conference on April 29, 2004 and for trial on the merits on May 24, 2004.3 Docket entries for April 7, 2004 indicate that counsel for both parties appeared and filed the scheduling order.
According to docket entries on April 29, 2004, counsel for both parties also appeared on April 29, 2004, and "filed" a fifth scheduling order. This order is identical in appearance to the four preceding orders and sets an August 4, 2004 date for a status and pretrial conference and a trial date of August 24, 2004.
On May 24, 2004, however—the date set for trial in the April 7, 2004 scheduling order and notice of intent to dismiss—the trial court called the case for trial. Entries on the trial court's docket sheet show the May 24, 2004 setting for trial on the merits and also show that the case would "be dismissed" because no one appeared. Consistent with this entry, the trial court signed an order that same day, May 24, 2004, that dismissed Durst's suit for want of prosecution. The order recites that the "cause was called and no request was made that the case be left on the pending docket." No motion to reinstate was filed within 30 days of that order.
No further activity occurred until August 6, 2004, when the trial-court clerk filed a "Status/Pre-Trial Conference Report" from an August 4, 2004 conference for the August 24, 2004 trial setting contemplated by the order of April 29, 2004. This report has blanks on which to indicate parties present, choice of jury or nonjury trial, ready or not ready status, issues to be tried, and time estimates. The blanks have all been struck through, however, and the word "closed" is handwritten alongside these blanks.4 There is no docket-sheet entry for August 6, 2004.
Although the ruling appears only as a docket entry, the trial court reinstated the case sua sponte on August 24, 2004.5 On that same day, despite the earlier DWOP order signed on May 24, 2004, after noting Wolcott's failure to appear and lack of "response," the trial court conducted a hearing by default pursuant to the trial setting stated in the docket-control, or scheduling, order issued on April 29, 2004. The reporter's record of that hearing shows that the trial court received evidence, announced findings in Durst's favor on the issues of paternity, child support, and attorney's fees, and set October 1, 2004 as the deadline for entry of judgment. But, when no one appeared, yet again, on October 1, 2004, the trial court signed a second DWOP order on October 7, 2004.
This time, however, Durst timely moved to reinstate her case. She also moved to substitute counsel and for entry of orders adjudicating parentage. On November 12, 2004, the trial court signed orders reinstating the case and substituting counsel. In addition, the trial court signed orders that purported to be final and were consistent with the relief granted at the August 24, 2004 default hearing. The orders included an adjudication of Wolcott as the father of G.H.D. and appointments of Durst as G.H.D.'s managing conservator and Wolcott as his possessory conservator. Wolcott timely moved to vacate the November 12 order and for a new trial, contending that the trial court no longer had jurisdiction over the case because the May 24, 2004 order of dismissal for want of prosecution had become final without a timely filed motion to reinstate. During the hearing on Wolcott's motion, the trial court referred to the dismissal as "a mistake" and rejected Wolcott's arguments.
On April 15, 2005, the trial court again rejected Wolcott's jurisdictional challenges, held him in contempt for failure to pay child-support arrearages, rendered judgment in favor of Durst for those arrearages, but suspended Wolcott's commitment pending outcome of a hearing on July 5, 2005. On July 1, 2005, we stayed proceedings in the trial court.
The trial court's order dismissing Durst's suit for want of prosecution issued on May 24, 2004. The effect of this DWOP order, as opposed to the grounds for issuing it or the parties' notice of it, is the dispositive issue in all three proceedings before us.
Unlike a docket-control, or scheduling, order, an order that dismisses a case for want of prosecution is a final, appealable order. See Stewart v. USA Custom Paint & Body Shop, 870 S.W.2d 18, 20 (Tex. 1994); In re Wal-Mart Stores, Inc., 20 S.W.3d 734, 738 (Tex. App.-El Paso 2000, orig. proceeding). When, as here, the DWOP order does not state whether the suit was dismissed with or without prejudice, we presume that the dismissal was without prejudice. See Dick Poe Motors, Inc. v. DaimlerChrysler Corp., 169 S.W.3d 478, 485 (Tex. App.-El Paso, 1987, no writ); Melton v. Rylander, 727 S.W.2d 299, 303 (Tex. App.-Dallas 1987, writ ref'd n.r.e.). The May 24, 2004 DWOP order did not, therefore, adjudicate the merits. See Dick Poe Motors, Inc., 169 S.W.3d at 485; Melton, 727 S.W.2d at 303. The order was nonetheless a final judgment,Stewart, 870 S.W.2d at 20, that triggered the postjudgment deadlines of rule 329b, which provides the exclusive remedies to attack a judgment of dismissal for want of prosecution that has become final. See El Paso Pipe & Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981) ().
Rule 329b provides that a trial court retains jurisdiction for a minimum of 30 days after signing a final judgment. See TEX. R. CIV. P. 329b(d) (...
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