Ruth Isela Acevedo Saldana v. Sonia Patricia Hinojosa

Appellant Ruth Isela Acevedo Saldana appeals the trial court’s order dismissing her suit for want of prosecution. We reverse the trial court’s order and remand this matter for further proceedings.1

1 Appellee Sonia Patricia Hinojosa did not file a brief. Hinojosa was advised by letter that if she did not file her brief in this court within the time stated, the appeal would be submitted without an appellee’s brief.

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BACKGROUND

In July 2015, Saldana filed suit against appellee Sonia Patricia Hinojosa, seeking damages

for injuries she sustained in a motor vehicle accident allegedly caused by Hinojosa. On October

20, 2015, the trial court issued a notice stating the matter was set for “Docket Control

Conference/DWOP” on November 4, 2015. On November 4, 2015, Saldana filed a motion for

continuance, seeking to reschedule the docket control conference. The trial court granted the

motion and reset the “DCC/DWOP” for December 9, 2015. In addition to its order, the trial court

also issued a notice, stating the matter was set for “Docket Control Conference/DWOP” on

December 9, 2015. Two days before the scheduled setting, Saldana filed her second motion for

continuance. The trial court did not rule on the second motion for continuance; rather, on

December 10, 2015, the trial court signed a document entitled “Court’s Motion and Order of

Dismissal for Lack of Prosecution.” In that order, the court advised that on December 9, 2015, it

called the case for the scheduled “Docket Control Conference/DWOP,” but Saldana did not appear.

Accordingly, the court ordered the case dismissed without prejudice. Thereafter, Saldana filed a

motion for new trial — which was overruled by operation of law, and a notice of appeal.

ANALYSIS

On appeal, Saldana contends the trial court erred in dismissing her suit for want of

prosecution. Saldana argues she was denied due process because the trial court failed to provide

adequate notice of its intent to dismiss the suit for want of prosecution. We agree.

Standard of Review

An appellate court reviews a trial court’s decision to dismiss for want of prosecution under

the abuse of discretion standard. Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 728 (Tex.

App.—San Antonio 2012, pet. denied) (citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.

1997)); Woods v. Schoenhofen, 302 S.W.3d 576, 578 (Tex. App.—Amarillo 2009, no pet.) (citing

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Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)). A trial court abuses

its discretion when it acts in an arbitrary or unreasonable manner or without reference to any

guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011); Dobroslavic,

397 S.W.3d at 728. A corollary principle is that an appellate court may not reverse for abuse of

discretion merely because it disagrees with the trial court’s decision. E.I. du Pont de Nemours &

Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Dobroslavic, 397 S.W.3d at 728.

Substantive Law

A trial court has authority to dismiss for want of prosecution based on two sources.

Dobroslavic, 397 S.W.3d at 728. The first source of authority is found in Rule 165a of the Texas

Rules of Civil Procedure. TEX. R. CIV. P. 165a; Dobroslavic, 397 S.W.3d at 728. The second

source is based on the trial court’s inherent power. Dobroslavic, 397 S.W.3d at 728. Rule 165a

provides that a trial court may dismiss for want of prosecution: (1) if a party seeking affirmative

relief fails to appear for any hearing or trial of which he had notice; or (2) when a case has not

been disposed of pursuant to the time standards promulgated by the Texas Supreme Court. TEX.

R.CIV. P. 165a; Dobroslavic, 397 S.W.3d at 728–29. Under common law, a trial court has inherent

power to dismiss when a plaintiff fails to prosecute his case with due diligence. Dobroslavic, 397

S.W.3d at 729. This power arises from a trial court’s power to control its docket. Id.

Before a trial court may dismiss pursuant to either Rule 165a or its inherent authority, the

party subject to dismissal must be provided with notice and an opportunity to be heard. Id. (citing

Villarreal, 994 S.W.2d at 630). As this court recognized in Dobroslavic, the supreme court has

held inadequate notice of an intent to dismiss mandates reversal because a party’s due process

rights have been violated. Id.; see Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 273 (Tex. App.—

El Paso 2010, no pet.); but see Keough v. Cyrus U.S.A., Inc., 204 S.W.3d 1, 5–6 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (holding motion to reinstate with opportunity for hearing

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cures due process violation); Hernandez v. ISE, Inc., No. 04–06–00888–CV, 2008 WL 80005, at

*3 (Tex. App.—San Antonio Jan. 9, 2008, no pet.) (mem. op.) (same).2

Application

Saldana argues the trial court abused its discretion in dismissing her case for want of

prosecution because the trial court failed to provide adequate notice of its intent to dismiss. In

support of her contention, Saldana relies on Villarreal, the seminal case regarding adequacy of

notice in this context. See 994 S.W.2d at 631–33.

In Villarreal, the notice of setting stated:

BY DIRECTION OF THE PRESIDING JUDGE OF SAID COURT[,] NOTICE IS

HEREBY GIVEN YOU THAT THE ABOVE CAUSES(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 DISMISS 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.

Id. at 629. Although Villarreal appeared, the trial court dismissed the case for want of prosecution.

Id. at 630.

In the supreme court, Villarreal argued the dismissal was improper. Id. The supreme court

held that because the notice of setting warned Villarreal of dismissal for failure to make an

announcement at the dismissal hearing, the notice was sufficient to apprise him of a possible

2 Here, Saldana did not receive notice of the dismissal order until after time expired for filing a motion to reinstate.

Pursuant to Rule 306a of the Texas Rules of Civil Procedure, the trial court held a hearing and determined Saldana

did not receive notice of the dismissal until February 26, 2016. See TEX. R. CIV. P. 306a. Thereafter, Saldana filed a

timely motion for new trial, complaining about the lack of notice prior to the dismissal. However, it does not appear

the trial court held a hearing on the motion or ruled on it.

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dismissal pursuant to Rule 165a(1), i.e., dismissal for failure to make an appearance. Id. at 631.

However, Villarreal appeared, and therefore, the trial court could not have dismissed for want of

prosecution based on Rule 165a(1).3 Id.

As for the trial court’s inherent authority to dismiss, the supreme court held a plain reading

of the notice indicated the case would be dismissed unless Villarreal failed to appear and Villarreal

appeared, negating dismissal under Rule 165a. Id. at 632. However, the court held the notice did

not inform Villarreal of a possible dismissal based on the court’s inherent authority. Id. The court

held “a reasonable litigant would understand that only an announcement of ready for trial would

justify removal from the dismissal docket.” Id. Moreover, the supreme court rejected the

contention that the last sentence of the order was sufficient notice of possible dismissal under the

court’s inherent authority absent a showing of good cause. Id. The court held nothing in the

language notified Villarreal that to avoid dismissal, he was required to appear and show good

cause. Id.

Accordingly, because the notice received by Villarreal required merely an announcement

and Villarreal complied with that requirement, and the notice was insufficient to provide notice of

possible dismissal based on the trial court’s inherent authority to dismiss, the trial court erred in

dismissing Villarreal’s suit. Id. at 633.

The notice received by Saldana is far more meager than the one analyzed in Villarreal.

Here, the notice merely stated:

You are hereby advised that the above styled cause has been set by the Court for

Wednesday, December 9, 2015 at 9:00 a.m. Counsel’s personal appearance is

required.

3 The court noted it was never claimed that dismissal was proper under Rule 165a(2) – dismissal for failure to comply

with supreme court time standards. Id. at 631 n.4. Thus, the court did not consider whether this standard was violated.

Id.

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Setting(s)

1. Docket Control Conference/DWOP

The trial court’s notice does not reference Rule 165a. The notice does not advise Saldana

that if she fails to appear her case will be dismissed unless she provides good cause for the case to

be maintained. See TEX. R. CIV. P. 165a(1). It does not include language showing an intent to

dismiss other than the use of the acronym “DWOP.” Id. Nor does the notice advise that her case

is to be dismissed because it was not disposed of within the time standards set by the supreme

court’s Rules of Judicial Administration. Id. R. 165a(2); see also TEX. R. JUD. ADMIN. 6.1(b),

reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. F app. (West 2013) (stating cases filed in district

and statutory county courts to be disposed of within eighteen month of appearance date in civil

jury cases and twelve months in civil nonjury cases). Thus, we hold the notice is insufficient under

Rule 165a.

As for the court’s inherent authority to dismiss, there is nothing in the notice to suggest

dismissal for failure to prosecute the case with diligence. See Scoville v. Shaffer, 9 S.W.3d 201,

204 (Tex. App.—San Antonio 1999, no pet.). In Scoville, this court held the notice to dismiss

based on the trial court’s inherent authority was sufficient because the trial court advised the case

was set for a hearing to determine, among other things, whether it should be “DISMISSED FOR

WANT OF PROSECUTION (FAILURE TO PROSECUTE THE CASE WITH DILIGENCE).”

Id. We held the inclusion of the language “failure to prosecute the case with diligence” was

sufficient to provide the litigants with notice that the trial court might invoke its inherent authority

to dismiss, thereby satisfying due process. Id. In this case, there is nothing to suggest dismissal

due to a lack of diligence, simply an acronym for dismissal for want of prosecution.

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Based on the foregoing, we hold the trial court notice was insufficient for purposes of Rule

165a and for purposes of due process based on the trial court’s inherent authority. Accordingly,

we sustain Saldana’s contention that the trial court abused its discretion in dismissing her case for

want of prosecution.

We hold the trial court erred in dismissing Saldana’s case for want of prosecution. We therefore reverse the trial court’s order of dismissal and remand this matter to the trial court to reinstate Saldana’s case on the court’s docket.