Scoville v. Shaffer

• Decision Date: 20 October 1999
• Docket Number: No. 04-99-00199-CV,04-99-00199-CV
• Citation: 9 S.W.3d 201
• Parties: (Tex.App.-San Antonio 1999) Richard SCOVILLE, Appellant v. George E. SHAFFER, Appellee
• Court: Texas Court of Appeals

Page 201

9 S.W.3d 201 (Tex.App.-San Antonio 1999)

Richard SCOVILLE, Appellant v. George E. SHAFFER, Appellee

No. 04-99-00199-CV

Court of Appeals, Fourth District of Texas

October 20, 1999

From the 45th Judicial District, Bexar County, Texas Trial Court No. 96-CI-07901 Honorable Janet P. Littlejohn, Judge Presiding

Affirmed.

Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice (concurring in the judgment only) Karen Angelini, Justice

Opinion

Catherine Stone, Justice

This case revisits the issue of the adequacy of the dismissal docket notice used in Bexar County.¹ Scoville appeals from a dismissal for want of prosecution and a subsequent failure to reinstate.² In three issues, Scoville complains that the trial court abused its discretion in dismissing his cause for lack of prosecution and in denying his motion to reinstate. Because we recognize that the new dismissal docket form employed in Bexar County affords proper notice of dismissal to litigants, we hold that the trial court acted within its discretion in issuing the order denying reinstatement. The order of the trial court is affirmed.

Factual and Procedural Background

Appearing pro se, Scoville sued appellee Shaffer for legal malpractice in late May 1996. For almost three years following the initial filing of his suit, Scoville took no action on the case, nor did he conduct any form of discovery. On February 23, 1999, the court set the case on the dismissal docket and subsequently dismissed the cause for failure to prosecute. Scoville then filed a motion to reinstate. At the hearing on the motion on March 10, the trial court denied reinstatement citing the over two-year inactivity as a basis for the denial.Trial Court's Authority to Dismiss for Want of Prosecution

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. 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," 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). 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. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). However, a party must be provided with notice and opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165(a) or its inherent authority. Villarreal v. San Antonio Truck & Equip., 994S.W.2d 628, 630 (Tex. 1999).

Due Process

Scoville argues that the dismissal notice erroneously misled him into believing that the dismissal hearing would not in fact result in a dismissal. Rather, he interpreted the dismissal notice to read that if he appeared at the dismissal hearing and announced "ready" for trial, the presiding judge would either set the case for trial at that time or in the near future.

In Villarreal, the supreme court held that the Bexar County dismissal notice failed to apprise parties of the trial court's intent to dismiss for want of prosecution within the exercise of its inherent power. 994 S.W.2d at 629. The dismissal notice in Villarreal read as follows:

BY DIRECTION OF THE PRESIDING JUDGE OF SAID COURT [,] NOTICE IS HEREBY GIVEN YOU THAT THE ABOVE CAUSE[S], UPON ORDER OF THE COURT [,] IS SET FOR DISMISSAL ON THE 22ND DAY OF OCTOBER, 1996......YOU ARE REQUESTED TO BE PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS MADE, THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION.

ALL ORDERS THAT WILL REMOVE A CASE FROM THE DISMISSAL DOCKET MUST BE SUBMITTED TO THE DISMISSAL DEPARTMENT ON OR BEFORE THE DATE WHEN THE DOCKET IS CALLED.

YOU ARE REMINDED THAT THIS IS NOT A DOCKET FOR THE RESETTING OF CASES, BUT FOR THEIR DISMISSAL.

The focus of the supreme court's concern with the dismissal notice surrounded the language "if no announcement is made, this cause will be dismissed for want of prosecution." Id. at 630. The court agreed with Villarreal that he complied with the notice language by: (1) his presence at the dismissal docket hearing, and (2) his announcement of readiness for trial. Id. Additionally, the court rejected the claim that the phrase "this is not a docket for the re-setting of cases, but for their dismissal," adequately notified parties of the likelihood of dismissal. Id. at 633. The court found the phrase misleading because no indication was made that a party must show good cause to avoid dismissal. Id.

Today, the court examines the dismissal notice in Scoville's case which reads in part:

BY ORDER OF THE PRESIDING JUDGE . . . THE CASE IS SET FOR HEARING TO DETERMINE WHETHER THE CASE SHOULD BE:

(1) RETAINED ON THE DOCKET, OR

(2) DISMISSED FOR WANT OF PROSECUTION (FAILURE TO PROSECUTE THE CASE WITH DILIGENCE) OR

DISMISSED PURSUANT TO RULE 165a(2) FOR FAILURE TO MEET THE TIME STANDARDS SPECIFIED IN RULE 6 OF THE RULES OF JUDICIAL ADMINISTRATION, OR BOTH.

IF NO PARTY SEEKING AFFIRMATIVE RELIEF APPEARS AT THE HEARING, THE CASE WILL BE DISMISSED PURSUANT TO RULE 165(a)(1).

YOU ARE REMINDED THAT THIS IS NOT A DOCKET FOR RESETTING CASES, BUT A DISMISSAL DOCKET.

(emphasis added). In contrast to the dismissal notice at issue in Villarreal, the current dismissal notice which Scoville received specifically draws attention to the four potential outcomes of the dismissal hearing: (1) retention of the case on the docket; (2) dismissal for want of prosecution (failure to prosecute the case with diligence); (3) dismissal pursuant to 165a(2) for failure to meet the time standards specified in Rule 6 of the Rules of Judicial Administration; or (4) dismissal under Rule 165(a)(1). The inclusion of the language "failure to prosecute the case with diligence" affords litigants the necessary notice that the court may invoke its inherent authority and dismiss the suit for want of prosecution.

Scoville makes the contention that a pro se litigant cannot be bound by the same standard as a practicing attorney with regard to interpretation and application of county rules and procedures. However, Texas courts hold pro se litigants to the same standards as litigants represented by licensed counsel. Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.-Houston [1st Dist.] 1985, no writ); Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.-Austin 1982, no writ). Litigants who represent themselves must comply with applicable laws and rules of procedure. Barnett v. City of Colleyville, 737 S.W.2d 603, 605 (Tex. App.-Fort Worth 1987, writ denied). In any event, even a pro se litigant is put on notice by the language of the new Bexar county dismissal notice which both tracks the language of Rule 165a of the Texas Rules of Civil Procedure and invokes the court's inherent authority. Accordingly, Scoville's claim that he failed to receive proper notice of dismissal is overruled.

Diligent Prosecution

In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of...