Manning v. North

• Decision Date: 26 June 2002
• Docket Number: No. 07-01-0359-CV.,07-01-0359-CV.
• Citation: 82 S.W.3d 706
• Parties: Joyce MANNING and Dan Manning, Appellants, v. Ronald J. NORTH, M.D., Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 706

Joyce MANNING and Dan Manning, Appellants, v. Ronald J. NORTH, M.D., Appellee.

No. 07-01-0359-CV.

Court of Appeals of Texas, Amarillo.

June 26, 2002.

COPYRIGHT MATERIAL OMITTED

Mullin, Hoard, Brown, Langston, Carr, Hunt & Joy, Donald M. Hunt, Lawrence M. Doss, Lubbock, for Appellant.

Hund & Harriger, Jim Hund, Lubbock, for Appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

JOHN T. BOYD, Chief Justice.

This appeal is engendered by the trial court's dismissal of the suit appellants Joyce and Dan Manning filed against appellee Ronald J. North, M.D. In asserting their challenge, appellants present three issues for our decision. Those three issues are: 1) if the "conscious indifference" standard of Rule of Civil Procedure 165a(3) applies, did the district court abuse its discretion in dismissing the case and in refusing to reinstate when the Mannings showed more than "some excuse" in failing to promptly proceed, 2) if the "due diligence" standard applies, by ignoring undisputed facts and ruling without adequate review, did the district court abuse its discretion in holding that the Mannings were not diligent, and 3) were the Mannings denied such due process that reversal is required. For reasons we later recount, we affirm the judgment of the trial court.

It is undisputed that the trial court dismissed the Mannings' case because of a perceived want of prosecution. A trial court's authority to dismiss a case for want of prosecution arises from two sources: 1) Rule 165a of the Rules of Civil Procedure, and 2) the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); see also Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976). A trial court may dismiss under Rule 165a upon the "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(1), or when a case is "not disposed of within the time standards promulgated by the Supreme Court...." TEX.R. CIV. P. 165a(2).¹ In addition, the common law vests the trial court with the inherent power to dismiss independently of the Rules of Civil Procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 630.

Even so, 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 authority. See TEX.R. CIV. P. 165a(1) (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); General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex.1991) (requiring notice for dismissals under Rule 165a); see also State v. Rotello, 671 S.W.2d 507, 508-09 (Tex.1984) (requiring notice for dismissals under the court's inherent power). 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.

The power of a trial court to dismiss for want of prosecution is not unbridled as it rests in the exercise of sound judicial discretion, subject to review. Thus, on appeal, the trial court's judgment of dismissal will not be reversed unless, as a matter of law, the trial court clearly abused its discretion. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957); F.D.I.C. v. Kendrick, 897 S.W.2d 476, 479 (Tex.App.-Amarillo 1995, no writ). The burden of proof rests on a litigant asserting an abuse of discretion. This is true because there is a presumption that the action of the trial court was justified. Id. at 479.

A trial court abuses its discretion if it acts without reference to any guiding rules and principles, or if its action is arbitrary or unreasonable under all the circumstances of the particular case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Garcia v. Mireles, 14 S.W.3d 839, 842 (Tex.App.-Amarillo 2000, no pet). In exercising its discretion, the trial court is entitled to consider the entire history of the case. Kendrick, 897 S.W.2d at 479 (citing Rotello, 671 S.W.2d at 509).

In argument under their first issue, appellants note that this case does not involve a trial court's dismissal of claims under Rule of Civil Procedure 165a(1) for failure to appear at a hearing or trial. They acknowledge that it "might involve" the trial court's authority to dismiss under Rule of Civil Procedure 165a(2) for failure to comply with Supreme Court timelines. They also comment that it "may also involve" the court's inherent powers to manage its trial docket. Even so, they reason, the trial court's basis for dismissing appellants' claims is actually not relevant to this appeal "for it involves the district court's failure to reinstate the case under Rule 165a(3)." That is true, they argue, because Rule 165a(4) has specific provisions when a party seeks to reinstate a case on the trial docket, and that portion of the rule determines the standard by which we must determine the validity of the trial court's dismissal. Continuing, they quote Rule 165a(4):

This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed.

They then refer to the portion of subsection 3 of Rule 165a which provides:

The 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.

Appellants conclude that this standard is applicable and, in determining they had been consciously indifferent, "the district court ignored undisputed evidence that presented far more than some excuse for any delay." Citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), appellants argue our Supreme Court has held that the "conscious indifference" language of Rule 165a(3) is essentially the same as that for setting aside a default judgment. They also argue, with citation of various cases, that the cases are "legion" and hold that a party can overcome conscious indifference by providing "some excuse, but not necessarily a good excuse" for a party's failure to act in a timely manner. Again assuming that the "conscious indifference" test is applicable, appellants conclude that the trial court was required to reinstate their lawsuit because the undisputed evidence shows they had some excuse for any alleged delays in prosecuting the case.

With commendable candor, appellants acknowledge the existence of some seven published opinions by intermediate appellate courts² that hold the Craddock standard is not applicable in instances where the lawsuit was dismissed pursuant to the court's inherent powers. In doing so, they recognize the holding in those cases that the reinstatement procedures in Rule 165a(3) are only available in cases in which the dismissal occurred pursuant to Rule 165a(1) because of a party's failure to appear at a hearing or a trial. Included in the cases cited is the decision by this court in Moore v. Armour & Co., Inc., 748 S.W.2d 327 (Tex.App.-Amarillo 1988, no writ). Although recognizing those decisions, appellants reason that "both the plain language of the rule and considerations of equity cry out for a reevaluation of those prior holdings."

We disagree. In Buchanan v. Masood, 631 S.W.2d 219 (Tex.App.-Amarillo 1982, no writ), this court, citing Bevil, 307 S.W.2d at 87, noted the established rule that [o]ne of the fundamental powers possessed by a trial court is the power to dismiss a case when a litigant refuses to prosecute the case." Buchanan, 631 S.W.2d at 221. We reiterated the existence of that rule in Moore, 748 S.W.2d at 328, and Mireles, 14 S.W.3d at 842. In Bevil, our Supreme Court explicated that "even without statutory authority, a court has the right to dismiss a suit for failure to prosecute it with due diligence." Bevil, 307 S.W.2d at 87. As we have noted, in Villarreal and Williams, our Supreme Court has iterated and reiterated that fundamental power of a trial court. That rule is so well-established that it is not within the power of this intermediate appellate court to attempt to change it, nor do we see any reason to attempt to do so. That being the case, we hold that the "conscious indifference" standard applicable to Rule 165a cases is not applicable here. Appellants' first issue is overruled.

Having made that decision, it next becomes our duty to determine if the trial court abused its discretion in dismissing appellants' case. In order to properly discuss that question, we must relate something of the past history of that case. On August 3, 1992, appellants filed the underlying lawsuit against appellee and other defendants. As have the parties, we will refer to those other defendants generically as the Dow defendants. In their suit, appellants alleged that in December 1989, following the removal of both of Joyce's breasts, appellee negligently performed a breast reconstruction procedure. The allegations against the Dow defendants had to do with alleged defects in the implants, which are not material to this appeal.

Appellee answered the suit and served interrogatories and a request for production of certain documents on appellants. On December 3, 1992, appellants answered the interrogatories and responded to the production requests. Under a Rule 11 Master Discovery agreement, appellants filed a response to the master interrogatories in May of 1993. There were numerous...