Smith v. McKee

• Decision Date: 15 July 2004
• Docket Number: No. 2-03-344-CV.,2-03-344-CV.
• Citation: 145 S.W.3d 299
• Parties: Wanda Lee SMITH, Appellant, v. Robert D. McKEE, Sr., Appellee.
• Court: Texas Court of Appeals

145 S.W.3d 299

Wanda Lee SMITH, Appellant, v. Robert D. McKEE, Sr., Appellee.

No. 2-03-344-CV.

Court of Appeals of Texas, Fort Worth.

July 15, 2004.

Rehearing Overruled August 24, 2004.

Appeal from the 158th District Court, Denton County, Jake Collier, J Wanda Lee Smith, Denton, pro se.

Sawko & Burroughs, L.L.P., Steven S. Potson, Denton, for Appellee.

PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Wanda Lee Smith's bill of review suit was dismissed by the trial court for want of prosecution. We reverse and remand for a hearing on Appellant's motion to reinstate her suit.

BACKGROUND

The parties were divorced in 1986. There has been substantial litigation between the parties since the time of their divorce. In 1995, Appellee Robert D. McKee, Sr. obtained a judgment against Appellant for damages. On May 25, 1999, Appellant filed the underlying bill of review seeking to set aside the 1995 judgment, claiming it was obtained by fraud committed by Appellee. On July 15, 2003, the trial court sent a letter to the parties notifying them of a dismissal setting for August 27, 2003.

On August 27, 2003, a hearing was held; Appellant represented herself and Appellee was represented by counsel. At the conclusion of the hearing the trial court dismissed the lawsuit for want of prosecution; the dismissal order was signed that day. On September 25, 2003, Appellant timely filed a verified motion to reinstate the case. See TEX.R. CIV. P. 165a(3). On October 8, 2003, without setting the motion for a hearing, the trial court denied Appellant's motion to reinstate. See id. On October 15, 2003, Appellant filed a motion requesting the trial court hold a hearing on her motion to reinstate. No hearing was held and the trial court's plenary power expired on November 7, 2003.¹ See id.

In four issues on appeal, Appellant contends the trial court: failed to apprise her of its intent to dismiss for want of prosecution; should not have dismissed before providing Appellant an opportunity to present evidence and to explain her delay in prosecuting her case; and erred in failing to set a hearing on Appellant's motion to reinstate. Appellant proceeded pro se in the trial court and is representing herself on appeal. Appellee, a licensed Texas attorney, has been represented by counsel throughout these proceedings, including this appeal, but has chosen not to file an appellee's brief on appeal.² Accordingly, this appeal was submitted to the court without the benefit of an appellee's brief to assist the court in determining the issues raised in this appeal.

TRIAL COURT'S AUTHORITY TO DISMISS FOR WANT OF PROSECUTION

Appellant's first issue asserts the trial court failed to apprise Appellant of its intent 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. 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) ("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"); Villarreal, 994 S.W.2d at 630. The requirements of 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.

STANDARD OF REVIEW

We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); Rotello, 671 S.W.2d at 509. A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to guiding rules and principles. 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); Johnson-Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex.App.-Fort Worth 2002, pet. dism'd).

NOTICE OF INTENT TO DISMISS FOR WANT OF PROSECUTION

On July 15, 2003, the trial court sent the parties the following letter:

TO: ALL ATTORNEYS/PRO SE PARTIES ON ATTACHED DISMISSAL DOCKET

RE: See attached list of cases.

NOTICE OF NON-JURY DISMISSAL SETTING

THIS SETTING IS ON THE COURT'S MOTION IN RESPONSE TO TIME STANDARDS FOR DISPOSITION OF CASES BY THE DENTON COUNTY COURT RULES FOR DISTRICT COURTS.

The above-referenced cause has been placed on the Court's Docket for dismissal on AUGUST 27, 2003, at 8:30 a.m. At this time, the attorneys are expected to present a completed Scheduling Order to be approved by the Judge. Scheduling Orders will not be accepted by mail or by clients' submission.

A Scheduling Order needs to be entered with the following information:

1) Schedule for Discovery;

2) A (__________) blank for a Pre-Trial Date, or a statement that a Pre-Trial will not be necessary;

3) A (__________) blank for a Trial Date and expected length of trial;

4) A list of your Proposed Expert Witnesses along with the witnesses' addresses, telephone numbers and area of expertise. Any expert witness not listed shall not be allowed to be called as a witness.;

5) SIGNATURE OF ALL CLIENTS!!

Plaintiff's/Petitioner's failure to appear on this date will result in the case being dismissed for want of prosecution. There will be NO CONTINUANCES of this setting!

Both parties appeared at the August 27, 2003 hearing, after which the trial court signed the following order:

On the 27th day of August, 2003, the above styled and numbered cause having been reached on the Court's Dismissal Docket and no announcement having been made, it is the opinion of the Court that the cause of action filed in this cause should be dismissed for want of prosecution.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the cause of action filed in the above styled and numbered cause be and is hereby dismissed. [Emphasis added.]

Denton County Court Rules

Rule 1.123 of the "Uniform Rules Of Court For The District And Statutory County Courts Of Denton Co.," in effect at the time of Appellant's dismissal hearing, provided that civil non-jury cases "should be concluded within 12 months from appearance date."³ Additionally, Rule 1.7 of the "Administrative Rules For The Courts Within Denton County, Texas" contained identical language regarding disposition of civil non-jury cases.⁴

ADEQUACY OF NOTICE OF INTENT TO DISMISS

The trial court's dismissal notice states that the August 27, 2003 setting is in response to time standards for disposition of cases in Denton County district courts. The dismissal notice then specifies that attorneys "are expected to present a completed Scheduling Order" to be approved by the judge. Lastly, the dismissal notice states that plaintiff's "failure to appear on this date will result in the case being dismissed for want of prosecution."

This is clearly notice to Appellant that the trial court will dismiss her case pursuant to Rule 165a(1) if she fails to appear at the August 27, 2003 hearing. It is undisputed that Appellant was present at the hearing, as reflected in the court reporter's transcription of the hearing. Therefore, although the trial court's dismissal order recites that "no announcement" was made at the hearing, if the trial court dismissed Appellant's case under Rule 165a(1) for Appellant's failure to appear at the August 27, 2003 hearing, this would constitute an abuse of discretion.

The trial court's dismissal notice also places Appellant on notice that the case is set on the court's dismissal docket in response to time standards for disposition of cases in Denton County, that is, the Denton County local rule that non-jury cases should be concluded within twelve months from appearance date.⁵ The notice informs the parties that the case is set for dismissal on August 27, 2003, and tells the attorneys and pro se litigants that they are expected to present a completed scheduling order at the dismissal hearing. The question we must decide is whether the trial court's dismissal notice provided notice to Appellant that her case would be dismissed under the trial court's inherent power to dismiss independently of Rule 165a of the Texas Rules of Civil Procedure when a plaintiff fails to prosecute his or her case with due diligence.

In support of her contention that she did not receive proper notice of the court's intent to dismiss under its inherent power, Appellant relies upon the supreme court's holding in Villarreal, 994 S.W.2d at 631-33. In that case, the trial court's dismissal notice stated the case was set for dismissal and the party is "requested to be present and make your announcement. If no announcement is made, this cause will be dismissed for want of prosecution." Id. at 629. The supreme court held that this provided the parties sufficient notice that the case...