Villarreal v. San Antonio Truck & Equip.

• Decision Date: 27 May 1999
• Citation: 994 S.W.2d 628,42 Tex. Sup. Ct. J. 662
• Parties: (Tex. 1999) MARTIN M. VILLARREAL, PETITIONER v. SAN ANTONIO TRUCK & EQUIPMENT AND ROBERT GONZALEZ, RESPONDENTS NO. 98-0623
• Court: Texas Supreme Court

Page 628

994 S.W.2d 628 (Tex. 1999)

MARTIN M. VILLARREAL, PETITIONER v. SAN ANTONIO TRUCK & EQUIPMENT AND ROBERT GONZALEZ, RESPONDENTS

NO. 98-0623

IN THE SUPREME COURT OF TEXAS

Argued April 7, 1999

Decided May 27, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

CHIEF JUSTICE PHILLIPS delivered the opinion of the Court, in which JUSTICE HECHT, JUSTICE OWEN, JUSTICE ABBOTT, JUSTICE HANKINSON, JUSTICE O'NEILL, and JUSTICE GONZALES joined.

The issue presented is whether the standard notice of dismissal used by the district courts of Bexar County, which warns that a case will be dismissed "if no announcement is made" at the dismissal hearing, adequately apprises parties of the trial court's intent to dismiss for want of prosecution in the exercise of its inherent power. Because we hold that it does not, we reverse the judgment of the court of appeals, 974 S.W.2d 275, and remand this cause to the trial court for further proceedings.

On June 21, 1994, Martin Villarreal sued San Antonio Truck and Equipment, Inc., and Robert Gonzales ("Defendants") in Bexar County district court for failure to maintain a safe work environment. The parties engaged in discovery during the summer of 1994, but no further action was taken until the trial court, on its own motion, notified Villarreal on August 30, 1996, that the case was set on the October 1996 dismissal docket. The notice of setting stated:

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 RE-SETTING OF CASES, BUT FOR THEIR DISMISSAL.

On October 21, 1996, Villarreal filed a motion to set the case on the jury docket. On October 22, 1996, he filed a motion to retain the case, asserting that he was ready to proceed to trial. That same day, the trial court held the dismissal hearing. Although the record on appeal does not contain a reporter's record of the hearing,¹ Defendants conceded in their brief to this Court that "[t]he plaintiff and his attorney did appear at the docket [call]." At oral argument, Defendants further acknowledged that "[the plaintiff] did announce that he was ready." Because the sole issue on appeal is the adequacy of the Bexar County notice of dismissal, these statements provide a sufficient factual basis to resolve the case.

Villareal contends that the dismissal was improper because he complied with the notice's conditions of (1) presence at the dismissal docket hearing, and (2) announcement of readiness for trial. The notice, he says, limited the trial court's discretion to dismiss to those instances where "no announcement is made." Thus, Villareal argues, the trial court abused its discretion by dismissing the case for want of prosecution on the ground that "[i]t appear[ed] to the Court that there is good and sufficient reason for dismissal of these cases for want of prosecution . . . ."²

Defendants maintain that the trial court committed no abuse because the Bexar County dismissal docket notice "did not mislead Villarreal. It clearly stated that the case was being set for dismissal and did not state that all Villarreal had to do as he argues, is to show up and announce ready." Defendants argue that the notice provided adequate warning that Villarreal was required to show good cause why his case should not be dismissed at the docket call hearing. The court of appeals affirmed, with one justice dissenting. 974 S.W.2d 275.

The 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 Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957). 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).³ 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. See Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); Williams, 543 S.W.2d at 90.

However, 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); Gutierrez v. Lone Star Nat'l Bank, 960 S.W.2d 211, 214 (Tex. App.-Corpus Christi 1997, pet. denied) (requiring notice for dismissals under Rule 165a); see also State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984); Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. 1942) (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. See Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 (Tex. App.-Houston[1st Dist.] 1996, writ denied); Davis v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-47 (Tex. Civ. App.-Waco 1981, writ ref'd n.r.e.).

The notice of setting sent to Villarreal warned of dismissal for the failure to make an announcement at the dismissal hearing. Thus, the notice apprised Villarreal of a possible Rule 165a(1) dismissal for failure to make an appearance. Because it is undisputed that Villarreal did appear, the trial court could not have dismissed this case for want of prosecution under Rule 165a(1). Nonetheless, Defendants contend that the dismissal was warranted under the trial court's inherent power to dismiss⁴ and argue that the notice of setting warned of the trial court's intent to invoke this power.

The court of appeals agreed:

The notice in the instant case expressly stated that the case was set on the dismissal docket upon the court's own motion. The placement of a case on the dismissal docket on a court's own motion is nothing but an exercise of the trial court's inherent authority to control its docket. Therefore, it cannot be said that Villarreal was not alerted that the trial court was invoking its inherent power to dismiss for lack of diligent prosecution when the court, on its own motion, placed his case on the dismissal docket.

974 S.W.2d at 278(citations omitted). We disagree.

The Fourth Court of Appeals has considered the adequacy of the Bexar County dismissal notice twice before, reaching conflicting results. In the more recent case of Goff v. Branch, 821 S.W.2d 732 (Tex. App.-San Antonio 1991, writ denied), the court found that the Bexar County notice "merely gave the appellants notice that the dismissal setting was pursuant to the provisions of Rule 165a(1)." Id. at 734. The court rejected an argument that, although a Rule 165a(1) dismissal was not warranted, the dismissal and failure to reinstate the case were justified under the court's inherent power to dismiss for failure to diligently prosecute. The court reasoned:

[W]e can find no authority for a court to invoke for the first time, without prior notice, its inherent power to dismiss for want of prosecution in a reinstatement hearing clearly involving only the review of a dismissal order under TEX.R.CIV.P. 165a(1). This is especially true when notice received by the party whose cause has been dismissed was pursuant only to Rule 165a(1). If a trial court had authority to invoke its inherent powers to dismiss for want of prosecution at any time, with or without proper notice, cases could be summarily dismissed at random in the privacy of the court's chambers. Such a situation would be unjust and untenable.

Id. at 736.

Earlier, in Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900 (Tex. App.-San Antonio 1989, writ denied), the court reached the opposite result. It concluded that the Bexar County notice was adequate to provide for dismissal "on two separate and independent grounds: (1) failure to appear at the dismissal hearing, and (2) failure to litigate the case with due diligence." Id. at 901. Because the record was unclear on whether the parties had in fact appeared at the dismissal hearing, the court affirmed the dismissal on the sole ground of the trial court's inherent power to dismiss for failure to diligently prosecute. See id.

In deciding this case, the court of appeals relied upon Ozuna, determining that Goff was not binding authority because "we are not presented with the issue of whether reinstatement was required under Rule 165a(3), rather we are asked to determine whether the trial court properly concluded that Villarreal's case had not been prosecuted with due diligence." 974 S.W.2d at 278. This statement mischaracterizes the issue on appeal. Before deciding whether the trial court properly concluded that Villarreal failed to exercise diligent prosecution, the court must first determine whether the trial court gave adequate notice of its intent to invoke its inherent authority to dismiss on such ground. Thus, although this case does not involve a reinstatement hearing, as does Goff, Goff's rationale regarding the adequacy of the Bexar County dismissal notice is persuasive here.

We reject Defendants' contention that "[t]he dismissal...