law-DWOP dismissal | reinstatement | motion to retain | reinstate |
A trial court is authorized to dismiss a case for want of prosecution by rule of civil procedure 165a and by
exercise of its inherent power to manage its docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d
628, 630 (Tex. 1999). A trial court may dismiss a case under rule 165a on "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). See
Tex. R. Jud. Admin. 6, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (West Supp. 2010) (requiring
judges to ensure, so far as reasonably possible, that civil nonjury cases are brought to trial or final
disposition within twelve months from appearance date, and that civil jury cases are brought to trial or final
disposition within eighteen months from appearance date).
The trial court also has the inherent power to dismiss, independent of the rules of procedure, when a
plaintiff fails to prosecute its case with diligence. Villareal, 994 S.W.2d at 630; Oliphant Fin., LLC v.
Galaviz, 299 S.W.3d 829, 839 (Tex. App.-Dallas 2009, no pet.). The central issue is whether the plaintiff
exercised reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). The trial
court generally considers four factors before dismissing a case for want of prosecution: (1) the length of
time a case has been on file; (2) the extent of activity in the case; (3) whether a trial setting was requested;
and (4) the existence of reasonable excuses for the delay. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749,
752 (Tex. App.-Dallas 2006, pet. denied); Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.-Houston
[14th Dist.] 1993, no writ). No single factor is dispositive. Starkey, 200 S.W.3d at 752. We review the entire
record and reverse the dismissal order only if the trial court clearly abused its discretion. Bilnoski, 858 S.W.
2d at 58.
Whether a case is dismissed under rule 165a or the trial court's inherent power, the trial court must
reinstate the case if it determines 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." Tex. R. Civ. P. 165a(3), (4). A failure is not intentional or due to conscious
indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate
justification. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam).
Proof of accident, mistake, or other reasonable explanation negates the intent or conscious indifference
for which reinstatement can be denied. Id.
DWOP DISMISSAL FOR WANT OF PROSECUTION (failure to prosecute
law suit with diligence)
A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of
Civil Procedure 165a, and (2) the trial court's inherent power. Villarreal, 994 S.W.2d at 630. A trial court
may dismiss a case under rule 165a on “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). 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 its case with due diligence. Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp. v. Starkey, 200
S.W.3d 749, 752 (Tex. App.- Dallas 2006, pet. denied). Lack of diligence need not amount to
abandonment for a case to be properly dismissed. WMC Mortgage Corp., 200 S.W.3d at 752. 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. Id. No single factor is dispositive. Id.
If the trial court dismisses a case for want of prosecution, a party may file a motion to reinstate within “30
days after the order of dismissal is signed or within the period provided by rule 306(a).” Tex. R. Civ. P.
165a(3). The motion to reinstate must be verified by the movant or the movant's attorney and must be
served on the parties. Id. If a verified motion to reinstate is filed within 30 days, the judge “shall set a
hearing on the motion as soon as practicable,” and “notify all the parties or their attorneys of record of the
date, time and place of hearing. . . .” Id.
MOTION TO REINSTATE AFTER DWOP DISMISSAL
Under civil procedure rule 165(a)(3) when a verified motion to reinstate has been filed, an oral hearing is
required. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). Failure to hold such
a hearing is an abuse of discretion and requires reversal. Id; see Resurgence v. Foster, 2009 WL
1875568, at *2 (Tex. App.-Dallas July 1, 2009, no pet. )(mem. op.); Reed v. City of Dallas, 774 S.W.2d
384, 385 (Tex. App.-Dallas, writ denied); NASA 1 Bus. Ctr. v. Am. Nat'l Ins. Co., 747 S.W.2d 36, 38-39
(Tex. App.-Houston [14tht Dist.] ), writ denied sub. nom. Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.
W.2d 152 (Tex. 1988)(per curiam) .
MICHAEL JOSEPH LESSARD, DOROTHY ELAINE LESSARD, MONICA JEAN LESSARD AND JEANNE
MARIA LESSARD v. VELSICOL CHEMICAL CORP.; from Live Oak County; 13th district (13-00-00113-CV,
___ SW3d ___, 04-23-09, pet. denied Sep. 2009)(DWOP and denial of motion to reinstate affirmed)
We have already determined that the record does not support a finding that the trial court abused its
discretion by dismissing the case. Moreover, the record supports an implied finding that the Lessards did
not prosecute this case with diligence. See Dueitt, 180 S.W.3d at 741; see also Luna v. UPS, Inc., No. 01-
02-00144-CV, 2003 Tex. App. LEXIS 465, at **8-9 (Tex. App.-Houston [1st Dist.] Jan. 9, 2003, pet. denied)
(concluding that the trial court did not abuse its discretion in dismissing appellant's claims for failing to
exercise diligence in prosecuting his claims and that the trial court did not abuse its discretion in denying
appellant's motion to reinstate because of the dismissal). Therefore, the Lessards have failed to meet their
burden to bring forth a record supporting reinstatement. We overrule the Lessards' first issue. Conclusion:
We affirm the trial court's dismissal of the Lessards' claims for want of prosecution and its denial of the
Lessards' motion to reinstate.
CHERYL SUE WALLINGFORD v. TRINITY UNIVERSAL INSURANCE COMPANY; from Travis County; 7th
district (07-06-00142-CV, ___ S.W.3d ___, 10-23-07, pet. denied May 2008)(DWOP dismissal,
reinstatement but no order signed, plenary power)
08-0023 LINDA JOHNSON AND STEPHEN WAYNE JOHNSON, INDIVIDUALLY AND AS GUARDIANS OF
KEASHIA MCLINN, A MINOR v. ROBERT THIGPEN, JR., INDIVIDUALLY AND D/B/A THIGPEN CATTLE
COMPANY AND THIGPEN CATTLE COMPANY, AN UNIDENTIFIED COMPANY; from Falls County; 10th
district (10-06-00174-CV, ___ S.W.3d ___, 11-21-07, pet. denied April 2008 )(motion to reinstate, DWOP
dismissal, lack of due diligence)
Because the trial court could properly dismiss the Johnson's case for failure of diligent prosecution or for
failure to comply with the Rule 165a(2) time standards or under its inherent authority, we do not find that
the trial court abused its discretion in refusing to reinstate the case under Rule 165a(3). Having overruled
Johnson’s two issues, we affirm the trial court's dismissal.