Villarreal v. San Antonio Truck & Equipment, Inc.

• Decision Date: 13 May 1998
• Docket Number: No. 04-96-01005-CV,04-96-01005-CV
• Citation: 974 S.W.2d 275
• Parties: Martin M. VILLARREAL, Appellant, v. SAN ANTONIO TRUCK & EQUIPMENT, INC. and Robert Gonzalez, Appellees.
• Court: Texas Court of Appeals

Page 275

974 S.W.2d 275

Martin M. VILLARREAL, Appellant, v. SAN ANTONIO TRUCK & EQUIPMENT, INC. and Robert Gonzalez, Appellees.

No. 04-96-01005-CV.

Court of Appeals of Texas San Antonio.

May 13, 1998.

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 94-CI-08468; Martha Tanner, Judge Presiding. ¹

Luis R. Vera, Jr., Adolfo Garcia, Law Offices of Luis R. Vera, Jr., San Antonio, for appellant.

Peter Y. Henry, San Antonio, for appellee.

Before STONE, GREEN and DUNCAN, JJ.

STONE, Justice.

This case addresses the adequacy of the dismissal docket notice used in Bexar County. Martin Villarreal appeals from an order dismissing his lawsuit for want of prosecution. In his sole point of error, Villarreal argues that the trial court abused its discretion in dismissing his cause for lack of prosecution because the court's dismissal notice indicated only the court's intent to dismiss for failure to appear at the dismissal hearing. Because we find that the notice adequately apprised Villarreal of the nature of the proceeding, we affirm.

FACTUAL & PROCEDURAL BACKGROUND

On June 21, 1994, Villarreal, an employee of San Antonio Truck & Equipment, Inc., sued San Antonio Truck & Equipment, Inc. and Robert Gonzalez for their alleged negligence in failing to maintain a safe work environment. After a flurry of discovery activity during the summer of 1994, no action occurred in the case until October 1996, when the case was set on the dismissal docket. On August 30, 1996, the court notified Villarreal that upon its own motion it had set his cause on the dismissal docket. The notice, bearing the heading, "Notice of Setting," stated, in part:

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, A.D., at 8:32 o'clock a.m., in the monitoring court.... You are requested to be present and make your announcement. If no announcement is made, this cause will be dismissed for want of prosecution.

* * * * * *

You are reminded that this is not a docket for the re-setting of cases, but for their dismissal.

On October 21, Villarreal filed a motion to set the case on the jury docket; he did not obtain a trial setting. The next day, Villarreal appeared at the dismissal hearing, argument was heard, and the trial court dismissed Villarreal's case. The dismissal order stated that Villarreal's case was dismissed because "there [was] good and sufficient reason for dismissal for want of prosecution."

TRIAL COURT'S AUTHORITY TO DISMISS FOR WANT OF PROSECUTION

A trial court's authority to dismiss a cause for want of prosecution is not limited to one source. The Texas Rules of Civil Procedure provide one basis for this authority; a trial court's inherent power provides the second source. Rule 165a expressly permits dismissal for want of prosecution for failure to appear at a hearing or trial setting, see TEX.R. CIV. P. 165a(1), and when a case has not been disposed of within the supreme court's time standards. See TEX.R. CIV. P. 165a(2). Aside from this power conferred by the rules of procedure, a trial court possesses the inherent power to dismiss a case not prosecuted with due diligence. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex.1980); Veterans ' Land Board v. Williams, 543 S.W.2d 89, 90 (Tex.1976); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex.App.--Houston [1st Dist.] 1992, no writ); Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900, 901 (Tex.App.--San Antonio 1989, writ

denied). Imbedded in this latter concept is the trial court's need to maintain and control its docket. Each ground for dismissal is cumulative and independent. See TEX.R. CIV. P. 165a(4); Veterans' Land Board, 543 S.W.2d at 90; Ozuna, 766 S.W.2d at 901.

ARGUMENT ON APPEAL

On appeal, Villarreal's sole contention is that the dismissal is improper because dismissal under the notice issued by the court could only be for failure to appear at the hearing. He appeared at the hearing and announced ready for trial; therefore, he argues, the trial court abused its discretion in dismissing the cause for failure to diligently prosecute it, a ground not stated in the dismissal notice. Villarreal relies primarily upon Goff v. Branch, 821 S.W.2d 732 (Tex.App.--San Antonio 1991, writ denied), in support of this argument. Specifically, Villarreal looks to this court's characterization of the dismissal notice in Goff:

In the present case, the notice of setting, which was signed by a deputy district clerk, merely informed appellants that their case was set for dismissal on a day certain. The notice also warned the appellants that "[i]f no announcement [was] made, this cause [would] be dismissed for want of prosecution," and nothing more. As in Mandujano [v. Oliva, 755 S.W.2d 512 (Tex.App.--San Antonio 1988, writ ref'd) ], a reasonable reading of the notice merely gave the appellants notice that the dismissal setting was pursuant to the provisions of Rule 165a(1). TEX.R. CIV. P. 165a(1).

Goff, 821 S.W.2d at 734. Villarreal asserts that because the notice in the instant case, like that in Goff, impliedly references Rule 165a(1), one of the trial court's bases of authority for dismissal, the trial court is thereby restricted to that basis for a dismissal.

San Antonio Truck Equipment and Gonzalez counter by citing to Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900 (Tex.App.--San Antonio 1989, writ denied), and argue that the trial court had the inherent authority to dismiss the case for failure to prosecute it with due diligence. Ozuna, 766 S.W.2d at 901. In their opinion, the only issue presented on appeal is whether the record supports the trial court's finding of lack of diligent prosecution.

ADEQUACY OF NOTICE

We disagree with Villarreal's reading of Goff and the assertion that it compels reversal in this case. Goff involved a dismissal for want of prosecution and refusal to reinstate. Goff, 821 S.W.2d at 733. There, the plaintiffs' case was dismissed due to their failure to appear. Id. at 735. At the motion to reinstate, the plaintiffs established that they were, in fact, not only present at the dismissal hearing, but they notified the court that they were ready for trial and had requested a trial setting. Id. Thus, the Goff panel concluded that the trial court's denial of the motion for reinstatement was erroneous under Rule 165a(3). ² Id. at 735-36. The Goff panel then addressed whether affirmance of the denial of the motion to reinstate could be proper under the trial court's inherent authority to dismiss a case for lack of diligent prosecution. The Goff panel recognized that a trial court has the inherent authority to dismiss a case for lack of diligent prosecution at a dismissal hearing, but found that exercise of that power at a motion to reinstate would be improper where the court is solely concerned with the reason for the party's failure to appear. See id. at 736. It is from this discussion Villarreal isolates the language of Goff to support his contention that the trial court in the instant case abused its discretion for invoking its inherent authority to dismiss for want of prosecution at the dismissal hearing. While the Goff panel noted that the party subject to the notice would be alerted that the court was proceeding under Rule 165a(1) at the dismissal hearing, this court did not conclude, contrary to Villarreal's assertion, that the notice thereby defined or restricted the trial court's authority Ozuna also involved a dismissal for want of prosecution and refusal to reinstate. Ozuna, 766 S.W.2d at 901. Unlike Goff, the dismissal order in Ozuna recited two grounds to support the trial court's dismissal: (1) failure to appear; and (2) lack of diligent prosecution. Id. Like Goff, the record established that the plaintiff had indeed appeared at the dismissal hearing. The Ozuna panel, however, was able to affirm the dismissal on the independent basis of lack of diligent prosecution stated in the dismissal judgment. Id. at 902-03. The trial court was not required to reinstate upon the affirmative showing that the parties had appeared at the dismissal hearing, but could affirm the judgment on any legal theory stated in the dismissal judgment supported by the record. See id. at 901.

to dismiss for failure to appear at the hearing.

Clearly, the facts of the instant case are closer to Ozuna than Goff. That is, 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. Here, the trial court had the inherent authority to dismiss for want of prosecution if it found sufficient lack of activity. See Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87-88 (1957); see also Ozuna, 766 S.W.2d at 901. 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. See Bevil, 307 S.W.2d at 87-88. 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. ³ See Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988).

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 reasonable excuses for delay. King v. Holland, 884 S.W.2d 231, 237 (...