“The power of the courts to move their dockets existed at common law and independently of statutes and rules of procedure.”
How later courts described this case
- “The power of the courts to move their dockets existed at common law and independently of statutes and rules of procedure.”
- party requesting reinstatement has burden to bring forth record establishing that reinstatement is required
- holding that court has inherent power to dismiss suit for failure to prosecute it with due diligence even without statutory or rule authority
Written by the judges who cited it.
The opinion
Opinion issued June 11, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00636-CV
———————————
SINHUE TEMPLOS, Appellant
V.
FORD MOTOR COMPANY, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 1047461
MEMORANDUM OPINION
Appellant, Sinhue Templos, challenges the trial court’s dismissal of his suit
against Ford Motor Company for want of prosecution. Templos argues that the
trial court erred by (1) dismissing his case for want of prosecution while it was
subject to a bankruptcy stay; (2) failing to give proper notice of its intent to dismiss
for want of prosecution; and (3) failing to identify the grounds for dismissal in the
notice of intent to dismiss. We affirm.
Background
On August 2, 2010, Templos sued Ford Motor Company for injuries
Templos alleged were caused by the failure of his airbags to deploy in a car
accident. On July 5, 2011, Templos filed for bankruptcy. Six months later, on
December 20, 2011, Templos filed a Suggestion of Bankruptcy in the trial court.
This happened to be the same day the bankruptcy court denied confirmation of
Templos’s Chapter 13 bankruptcy plan and dismissed Templos’s bankruptcy
proceeding. Ford notified Templos of the dismissal of Templos’s bankruptcy
proceeding on December 23, 2011 via email.
Five days later, on December 28, 2011, the trial court sent all counsel in
Templos’s case a Notice of Intent to Dismiss (First Notice of Intent to Dismiss).
The First Notice of Intent to Dismiss stated that “[to] avoid unnecessary delay,
claims against the bankrupt party will be dismissed for want of prosecution unless”
certain actions are taken, including filing “a verified motion to retain stating why
the above actions are impractical and stating a good cause to retain the case.”
Templos filed a motion to retain on February 20, 2012. Three days later, on
February 23, 2012, the trial court entered an order retaining the case for sixty days
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and sent another notice of intent to dismiss the lawsuit (Second Notice of Intent to
Dismiss), which contained identical language as the First Notice of Intent to
Dismiss and required a verified motion to retain to be filed by April 23, 2012, in
order to avoid dismissal for want of prosecution. Templos did not respond to the
Second Notice of Intent to Dismiss. On May 25, 2012, the trial court dismissed
Templos’s lawsuit against Ford for want of prosecution. Following the dismissal,
Templos filed a motion to reinstate the case, which was denied by the trial court
after a hearing. Templos appeals.
Discussion
Templos challenges the trial court’s dismissal on three grounds. First, he
argues the trial court erred by dismissing the case while it was subject to the
bankruptcy stay. Second, Templos contends the trial court failed to give him
proper notice of the court’s intent to dismiss for want of prosecution in violation of
his right to due process. Finally, he argues that the trial court erred by failing to
identify the grounds for dismissal in the notice of intent to dismiss.
A. Standard of Review and Applicable Law
This court reviews a dismissal for want of prosecution for an abuse of
discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Coleman v.
Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ).
The trial court’s authority to dismiss for want of prosecution stems from two
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sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s
inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999). A trial court may dismiss under the rules of civil procedure based on
the “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 the time
standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(1), (2);
Villarreal, 994 S.W.2d at 630.
In addition, the common law vests the trial court with the inherent power to
dismiss, independent of the rules of civil 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) (“The power of the courts to move their dockets existed at
common law and independently of statutes and rules of procedure.”); Veterans’
Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (holding that court has
inherent power to dismiss suit for failure to prosecute it with due diligence even
without statutory or rule authority). Therefore, even without statutory authority, a
court has the right to dismiss a suit for failure to prosecute it with due diligence.
Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957).
Due process requires that adequate notice be given before the trial court
enters an order dismissing a lawsuit for want of prosecution. Donnell v. Spring
Sports, Inc., 920 S.W.2d 378, 386 (Tex. App.—Houston [1st Dist.] 1996, writ
4
denied). 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 the court’s inherent authority. Villarreal, 994 S.W.2d at 630. However, the
Texas Supreme Court has held that either notice of the trial court’s intent to
dismiss or notice of the actual order of dismissal is sufficient to satisfy the
appellant’s due process rights. See Harris Cnty. v. Miller, 576 S.W.2d 808, 810
(Tex. 1979). Furthermore, “the courts of appeal are in agreement that a post-
dismissal hearing obviates any due process concerns.” Franklin v. Sherman Indep.
Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied); see also
Montgomery Ward & Co. v. Denton Cnty. Appraisal Dist., 13 S.W.3d 828, 830–31
(Tex. App.—Fort Worth 2000, pet. denied) (holding that where dismissal for want
of prosecution is challenged on due process grounds, notice may consist of either
notice of trial court’s intent to dismiss or notice of actual order of dismissal);
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston
[14th Dist.] 1999, no pet) (holding that appellant was afforded due process, even
though he did not receive notice of trial court’s intent to dismiss case for want of
prosecution, because he received actual notice of dismissal order in time to file
motion to reinstate and hearing was held on such motion).
The Rules of Civil Procedure provide a mechanism by which a party whose
case is dismissed for want of prosecution may seek reinstatement. See TEX. R. CIV.
5
P. 165a(3). The motion to reinstate “shall set forth the grounds therefor and be
verified by the movant or his attorney.” Id. Rule 165a provides: “The court shall
reinstate the case upon finding after a hearing that the failure of the party or his
attorney was not intentional or the result of conscious indifference but was due to
an accident or mistake or that the failure has been otherwise reasonably explained.”
Id.; see also Nawas v. R & S Vending, 920 S.W.2d 734, 738 (Tex. App.—Houston
[1st Dist.] 1996, no writ) (citing Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 902
(Tex. App.—Houston [1st Dist.] 1991, writ denied)). “The party requesting
reinstatement has the burden to bring forth a record establishing that reinstatement
was required.” Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex.
App.—San Antonio 1996, writ denied) (citing Bard v. Frank B. Hall & Co., 767
S.W.2d 839, 845 (Tex. App.—San Antonio 1989, writ denied)).
C. Analysis
1. Applicability of Automatic Stay
Templos filed for Chapter 13 Bankruptcy on July 5, 2011, after he brought
this action against Ford, and contended in his December 20, 2011 Suggestion of
Bankruptcy that his bankruptcy filing automatically stayed the proceedings in the
trial court. Templos argues that the trial court erred by dismissing his case for
want of prosecution while the case was subject to the automatic bankruptcy stay.
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“When a defendant files a bankruptcy petition, an automatic stay goes into
effect and abates any judicial proceeding against that party.” In re Sw. Bell Tel.
Co., 35 S.W.3d 602, 604 (Tex. 2000). The automatic stay provision in the
bankruptcy code forbids “the commencement or continuation . . . of a judicial,
administrative, or other action or proceeding against the debtor that was or could
have been commenced before the commencement of the [bankruptcy case], or to
recover a claim against the debtor that arose before the [bankruptcy case].” 11
U.S.C. § 362(a)(1). However, the automatic stay is only applicable to claims
against the debtor. See Montgomery Ward, 13 S.W.3d at 829–30 (citing McMillan
v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993)). Here, Templos, the
debtor, was a plaintiff, and there were no claims against him. Templos’s claims
against Ford, therefore, were not subject to the automatic stay. See Montgomery
Ward, 13 S.W.3d at 829–30.
2. Failure to Give Proper Notice and Identify Grounds for Dismissal
Templos next argues that the trial court failed to provide him with proper
notice of the court’s intent to dismiss the case for want of prosecution, in violation
of his due process rights. Templos alleges that the notices were improper because
they state that, unless specified action is taken, the “claims against the bankrupt
party will be dismissed for want of prosecution.” Templos correctly notes that the
notices do not mention that claims of the bankrupt party—Templos’s claims
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against Ford—would be dismissed unless Templos took further action. Templos
also argues that the notices were constitutionally defective because the trial court
was required to state the specific reason for dismissal, but failed to do so.
Templos’s arguments that the notices violated his due process rights do not
comport with his arguments in the trial court. Templos did not raise these due-
process arguments before the trial court in either his motion to retain or in his
motion to reinstate. His motion to retain, filed on February 20, 2012, said that he
“is currently awaiting reinstatement of his Chapter 13 plan” and “desires to pursue
this cause of action and a disposition of this cause of action will occur within a
reasonable length of time; therefore, [he] requests the Court to remove the case
from the dismissal docket.” In his motion to reinstate, filed on June 7, 2012,
Templos wrote:
Plaintiff’s counsel was unaware that the bankruptcy had been
dismissed or he would have moved forward with this case. The
Plaintiff’s counsel has a reputation for preparing his cases and moving
them to trial in a timely manner and if Plaintiff’s counsel would have
received notice from the Plaintiff’s bankruptcy attorney this case
would have moved forward to trial in a timely manner. Plaintiff and
counsel are willing to go forward with the trial of this cause at the
Court’s discretion.
Finally, in his reply to Ford’s response to his motion to reinstate, Templos stated
that the trial court had concurrent jurisdiction to determine the applicability of the
bankruptcy stay and, by suspending all action in this case, “it can be inferred that
this court took the position that the bankruptcy stay applied to all parties and thus
8
should be reinstated.” Because he did not raise a due process objection in the trial
court, Templos has failed to preserve these issues for appellate review. See TEX. R.
APP. P. 33.1 (in order to preserve complaint for appellate review, record must show
that appellant made complaint to trial court and stated grounds for ruling with
sufficient specificity that trial court was made aware of complaint); see also Nivens
v. City of League City, 245 S.W.3d 470, 475 n.6 (Tex. App.—Houston [1st Dist.]
2007, pet. denied) (finding that taxpayers failed to preserve their argument that
trial court violated their due process rights by granting the City’s plea to the
jurisdiction where taxpayers did not raise issue before trial court); In re Baby Boy
R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (constitutional
claims must be raised below or they are not preserved for appellate review).
In any event, notice of either the trial court’s intent to dismiss or the actual
order of dismissal is sufficient to satisfy the appellant’s due process rights. See
Miller, 576 S.W.2d at 810; see also Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“[A] trial court does not
abuse its discretion by denying a motion to reinstate if the movant (a) receives
notice of the actual order of dismissal in time to file a motion to reinstate, and (b)
has an opportunity to be heard on the motion.”). Here, Templos received notice of
the trial court’s order of dismissal and timely filed a motion to reinstate.
Furthermore, the record indicates that the trial court held a hearing on Templos’s
9
motion to reinstate. We conclude that there was no violation of his right to due
process because Templos was provided notice of the trial court’s order of dismissal
and given the opportunity to be heard on his motion to reinstate. 1 See Miller, 576
S.W.2d at 810; Keough, 204 S.W.3d at 5.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
1
Templos does not challenge the trial court’s denial of his motion to reinstate on the
basis that he established that his conduct was not intentional or the result of
conscious indifference. Even if he did, reversal would not be warranted because
Templos has not provided a reporter’s record of the hearing or otherwise shown
that the trial court abused its discretion by refusing to reinstate the case. See
Kenley, 931 S.W.2d at 321 (party requesting reinstatement has burden to bring
forth record establishing that reinstatement is required); see also Keough, 204
S.W.3d at 3–4 (movant for reinstatement bears burden to produce evidence
supporting the motion).
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