Texas Sting, Ltd. v. R.B. Foods, Inc.

• Decision Date: 05 June 2002
• Docket Number: No. 04-01-00277-CV.,04-01-00277-CV.
• Citation: 82 S.W.3d 644
• Parties: TEXAS STING, LTD. and Michael Konderla, Appellants, v. R.B. FOODS, INC., Appellee.
• Court: Texas Court of Appeals

Page 644

82 S.W.3d 644

TEXAS STING, LTD. and Michael Konderla, Appellants, v. R.B. FOODS, INC., Appellee.

No. 04-01-00277-CV.

Court of Appeals of Texas, San Antonio.

June 5, 2002.

COPYRIGHT MATERIAL OMITTED

From the County Court at Law No. 3, Bexar County, Shay Gebhardt, Judge.¹

Frank P. Hernandez, Attorney At Law, for Appellant.

Brad L. Sklencar Lotz & Associates, P.C., Kevin M. Warburton, The Gardner Law Firm, San Antonio, for Appellee.

Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SANDEE BRYAN MARION, Justice.

OPINION

CATHERINE STONE, Justice.

This is an appeal from a dismissal for want of prosecution and a default judgment. The appellants, Texas Sting, Ltd. and Michael Konderla, filed a verified motion for new trial seeking to set aside the dismissal and the default judgment on the grounds that they had no notice of either the dismissal docket setting or the trial setting on appellee's, R.B. Foods's, counterclaims. The trial court denied the motion and appellants brought this appeal. On appeal, appellants contend the trial court should have granted their motion for new trial because the court denied them due process by not providing them with notice of either proceeding. We affirm the trial court's order denying appellants' motion for new trial in part and reverse it in part. We affirm the trial court's ruling with respect to the dismissal for want of prosecution, but we reverse the trial court's ruling with respect to the default judgment. The cause is remanded to the trial court for further proceedings on R.B. Foods's counterclaims.

BACKGROUND

The appellants sued R.B. Foods for breach of an agreement transferring rights between the parties to trademarked specialty food products. On the original petition, counsel for appellants, Frank P. Hernandez, listed his address as 716 Wayne, Dallas, Texas 75223-1645.² R.B. Foods filed a counterclaim asserting numerous causes of action. Nearly three years after appellants filed suit, their case was set on a dismissal docket. The county clerk mailed notice of the October 2000 docket call to Hernandez. The clerk did not mail notice to Hernandez's address as listed on the petition, but rather mailed notice to Hernandez's address as listed in the clerk's register of attorneys — Hernandez's former address at 1714 Browder St., Dallas, Texas 75215-2011. When Hernandez did not appear for docket call, the trial court reset the case for the dismissal docket in November 2000. The clerk mailed notice of this resetting to Hernandez, but once again, mailed the notice to counsel's former address. When Hernandez did not appear at the second docket call, the, trial court dismissed the case for want of prosecution. The trial court also set R.B. Foods's counterclaims for trial. On December 6, 2000, the post office returned to the clerk's office the undelivered notice to Hernandez informing him of the November docket call.

When appellants did not appear for the trial on R.B. Foods's counterclaims, the trial court entered a default judgment in favor of R.B. Foods. Two days later, appellants received a copy of the default judgment from R.B. Foods. This was appellants' first notice of the court's order of dismissal and the default judgment.³ Upon receipt of the information, Hernandez immediately contacted the Bexar County Clerk's office asking why he had not received notice of the two docket calls or the trial setting on R.B. Foods's counterclaims. The clerk's office informed Hernandez that it had mailed notice of the proceedings to Hernandez's former address.

Appellants filed a motion for new trial seeking to set aside the dismissal and default judgment on the grounds that they had no notice of either the dismissal docket setting or the trial on R.B. Foods's counterclaims. The trial court denied the motion for new trial and appellants brought this appeal, raising two issues. First, appellants contend the trial court should have granted their motion for new trial because they were denied due process when the court failed to provide them with notice of either proceeding. Second, appellants contend the trial court erroneously considered evidence that was not properly before the court at the hearing on the motion for new trial.

DISCUSSION

A. Jurisdiction

As a preliminary matter, R.B. Foods argues that appellants failed to perfect an appeal of the dismissal order. R.B. Foods contends that because the notice of appeal referred only to the date of the default judgment and not the date of the dismissal order, appellants failed to comply with Rule 25.1(d)(2) of the Texas Rules of Appellate Procedure. TEX.R.APP. P. 25.1(d)(2) (requiring appellant to include the date of the judgment or order appealed from). R.B. Foods's argument, however ignores the fact that a final judgment may consist of several orders that cumulatively dispose of all the parties and issues.⁴ See Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Thus, there is no jurisdictional error under the circumstances.

B. Standard of Review

The appellants filed a motion for new trial seeking to set aside the dismissal and the default judgment. The trial court denied the motion. We review the trial court's denial of a motion for new trial under an abuse of discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986).

C. Dismissal For Want of Prosecution

Appellants claim the trial court should have set aside the dismissal order because the court failed to provide them with notice of the dismissal docket setting. A court may dismiss a case for want of prosecution under Texas Rule of Civil Procedure 165a when a litigant: (1) fails to appear; or (2) fails to comply with the supreme court time standards. TEX.R. CIV. P. 165a(1), (2). Additionally, a court may dismiss a case pursuant to its inherent power. TEX.R. CIV. P. 165a(4); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.App.-Dallas 2001, pet. denied) (citing Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999)). Regardless of the grounds for dismissal, a trial court is generally required to provide notice and conduct an oral hearing before it can dismiss a case. Villarreal, 994 S.W.2d at 630; Franklin, 53 S.W.3d at 401; Jimenez v. Transwestern Prop., Co., 999 S.W.2d 125, 128 (Tex. App.-Houston [14th Dist.] 1999, no pet.). The failure to provide notice deprives the litigant of the right to be heard, and is a denial of due process under the Fourteenth Amendment. Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 163 (Tex.App.-Houston [14th Dist.] 1993, no writ).

In Jimenez v. Transwestern Prop., Co., the trial court, without any notice to the plaintiff, dismissed plaintiffs case after trial counsel announced not ready for trial. Jimenez, 999 S.W.2d at 127-28. The plaintiff filed a motion to reinstate and the trial court held a hearing on the motion. Id. at 128. The plaintiff argued that he was denied due process because the trial court failed to provide him with notice that his case was set for dismissal. Id. The Court of Appeals determined that:

[A]lthough [plaintiff] was not provided with notice of the trial court's intent to dismiss the case for want of prosecution prior to the dismissal hearing, he was nevertheless afforded his due process rights because he received actual notice of the dismissal order in time to file a motion to reinstate, and a hearing was held on that motion. The hearing was held at a time when the trial court had full control of the judgment.

Id. at 129.

The court recognized in its analysis that the hearing on a motion to reinstate is the same hearing with the same burden of proof that a plaintiff would receive before the trial court signs the order of dismissal. Id. Therefore, a post-dismissal hearing, like the one on the plaintiffs motion to reinstate, remedies any violations to the litigant's due process rights occurring before dismissal. Id. The court further held that the trial court did not abuse its discretion in denying the plaintiff's motion to reinstate because, at the hearing on the motion to reinstate, the plaintiff failed to provide any evidence that he had diligently prosecuted his case. Id. at 130. The court stated that if the plaintiff had such proof, it was his burden to place the evidence before the trial court at the hearing on the motion to reinstate. Id.

In this case, appellants claim the notices sent by the clerk's office notifying them of the dismissal docket setting contained an incorrect address — trial counsel's former address. The record indicates the correct address of appellants' counsel is "Frank P. Hernandez, 716 Wayne, Dallas, TX 75223-1645." This address was listed on the pleadings and other papers on file with the court at the time of the dismissal. The dismissal notices sent by the court contained a different address: "Frank P. Hernandez, 1714 Browder St., Dallas, TX 75215-2011." This Browder Street address was not listed on any of the pleadings or other papers on file with the court, but rather, was the address the clerk's office had for Hernandez in its register of attorneys.⁵ The record further reveals that Hernandez never received notice of the dismissal hearing because such notice was returned undelivered to the clerk's office.

Although this evidence demonstrates appellants did not receive notice of the dismissal docket setting, it does not prove the trial court abused its discretion by denying their motion for new trial.⁶ After learning of the dismissal, appellants filed a verified motion for new trial challenging the dismissal order. Like Jimenez, the trial court in this case provided appellants with a post-dismissal hearing. See Jimenez, 999 S.W.2d at 129. Like Jimenez, appellants in this case failed to either present evidence...