Devry Marie Saenz v. Matthew Joseph Springer ( 2022 )

Affirmed and Memorandum Opinion filed January 13, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00137-CV
DEVRY MARIE SAENZ, Appellant
V.
MATTHEW JOSEPH SPRINGER, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2020-18631
MEMORANDUM OPINION
Appellant Devry Marie Saenz appeals an order dismissing for want of
prosecution her application for a protective order. In one issue, she contends the
trial court abused its discretion and violated her due process rights by failing to
give notice of its intent to dismiss and by failing to conduct a hearing on the
dismissal. We affirm.
Background
On March 20, 2020, Saenz filed an application for a protective order in
Harris County District Court against appellee Matthew Joseph Springer, her former
spouse. Saenz alleged that Springer had committed family violence, and she
requested a temporary ex parte protective order as well as a permanent protective
order. On April 3, 2020, the trial court signed a temporary ex parte protective
order (the “TPO”).
Five days later, Springer filed a motion to vacate and/or set aside the TPO,
accompanied by a request for a writ of attachment and a motion for sanctions. The
motion to vacate noted that the parties had recently participated in a jury trial in a
suit to dissolve their marriage in Kendall County, Texas. That trial resulted in a
final decree of divorce and order for conservatorship, signed February 28, 2020.
Among other things, the final divorce decree rejected the parties’ respective
allegations of family violence against each other.
The trial court held a hearing on Springer’s motion to vacate on April 9,
2020. During the hearing, the trial court highlighted a variety of potential flaws
with Saenz’s application, including the fact that the divorce decree itself might be
an obstacle to her application. On April 13, 2020, the trial court signed an order
vacating the TPO (the “April 13 Order”). The order did not purport to dispose of
Saenz’s claim for a permanent protective order, nor did it contain any language
describing the court’s action as final, appealable, or intended to dispose of all
claims of all parties. Additionally, however, the order stated, “any further hearings
on the application for protective order filed by [Saenz] is denied.”
During the hearing on Saenz’s motion to vacate, the court indicated that it
was not inclined to find that family violence occurred. The court also noted the
pendency of Springer’s motion for sanctions, and the court stated that it was still
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considering whether to grant sanctions. The court asked Springer’s counsel to file
an affidavit in support of the sanctions request, and the court said it would rule on
it by submission.
Several months later, on January 11, 2021, Saenz filed a “request to set
evidentiary hearing date for application for protective order.”1 Saenz asserted that
her application for a protective order remained pending, and she requested the
court to set a hearing date. The next document in our record is an order signed
February 11, 2021, dismissing the case without prejudice for want of prosecution
(the “Dismissal Order”). That order states, “[t]he application for Protective Order
was filed. There has been no further action on this case. Therefore, it is
ORDERED that this entire case is DISMISSED without prejudice.”
On March 10, 2021—within thirty days of the Dismissal Order—Saenz filed
two documents: a notice of appeal and a “motion to retain.” In the motion to
retain, Saenz argued that the trial court did not provide notice that the case was
being considered for dismissal for want of prosecution and that the trial court had
not conducted a hearing on Saenz’s application for protective order. The motion
also stated that Saenz’s counsel had been unable to obtain a hearing date for that
application. Saenz requested the court to retain the case on the court’s active trial
docket.2 After Springer filed a response opposing reinstatement, the trial court
signed an order on March 26, 2021 denying appellant’s motion to retain.
Discussion
Saenz presents one issue: the trial court abused its discretion in dismissing
the case for want of prosecution because, contrary to Rule 165a(1), the court did
1
Saenz also filed a “corrected” request on the same day.
2
Given its substance, we construe Saenz’s “motion to retain” as a motion to reinstate
under Texas Rule of Civil Procedure 165a(3).
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not provide notice of its intent to dismiss and did not conduct a hearing on its
intent to dismiss.
A. This court has jurisdiction over the appeal.
Before proceeding to the merits, we pause to address our appellate
jurisdiction. Springer argues that we lack jurisdiction because Saenz’s notice of
appeal was untimely. According to Springer, the trial court’s April 13 Order is
itself a final and appealable order. Because Saenz filed no notice of appeal or
motion for new trial within thirty days of the April 13 Order, Springer says, the
trial court lost plenary jurisdiction over the case in May 2020 and we lack
jurisdiction to consider Saenz’s appeal filed in March 2021. See Tex. R. App. P.
26.1(a); Tex. R. Civ. P. 329b(d).
Springer’s argument raises the question whether the trial court’s April 13
Order constituted a final and appealable judgment. Absent exceptions inapplicable
here, a judgment or order is appealable only if it is final. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment or order issued without a
conventional trial on the merits is final if it either: (1) actually disposes of every
pending claim and party, or (2) it clearly and unequivocally states that it finally
disposes of all claims and all parties. Bella Palma, LLC v. Young, 601 S.W.3d
799, 801 (Tex. 2020) (per curiam) (citing Lehmann, 39 S.W.3d at 205).
We turn first to whether the April 13 Order actually disposed of all pending
claims of all parties. In determining that issue, we may review the record if
necessary. Lehmann, 39 S.W.3d at 205–06. Here, the language of the April 13
Order merely vacates an earlier temporary order; beyond that, it does not grant or
deny any relief requested in any party’s pleadings. On its face, the order does not
rule on the merits of Saenz’s application for permanent protective order relief.
Moreover, before the court signed the April 13 Order, Springer had filed a motion
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for sanctions, and the order does not rule on that request either. Because
Springer’s motion for sanctions was pending when the court signed the April 13
Order, because the April 13 Order does not reference that motion, and because the
trial court stated during the April 9 hearing that it was still considering the motion
for sanctions, the April 13 Order did not dispose of Springer’s motion for
sanctions. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009) (per
curiam); Crites v. Collins, 284 S.W.3d 839, 840-41 (Tex. 2009) (per curiam).
Accordingly, we conclude that the April 13 Order did not actually dispose of every
claim of every party then pending. See Bella Palma, LLC, 601 S.W.3d at 801.
If an order does not actually dispose of every pending claim and party, it will
be considered final nonetheless if it “clearly and unequivocally states that it finally
disposes of all claims and all parties.” Id. The April 13 Order does not meet this
alternative test for finality either. It contains no clear and unequivocal statement
that the court finally disposed of all claims of all parties. It does not say that it is
final, that it is appealable, or that all relief is denied. Springer notes the order’s
text denying any further hearings, but that statement is not a clear and unequivocal
statement purporting to dispose of all claims of all parties on the merits. It merely
expresses the court’s denial of further hearings on Saenz’s application.
When an order’s text creates ambiguity regarding its finality, or there is “any
doubt” about finality, then a reviewing court examines the record to determine
whether the trial court intended the order to be final. See Interest of R.R.K., 590
S.W.3d 535, 540-41 (Tex. 2019); Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex.
2010) (per curiam). We remain mindful that a party’s right to appeal should not be
“abridged by judgments that were drafted poorly or were unclear.” Interest of
R.R.K., 590 S.W.3d at 541 (quoting Vaughn, 324 S.W.3d at 563).
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The April 13 Order does not clearly state that it disposes of all claims of all
parties and creates no reasonable doubt that the trial court intended it to do so.
While it does not contain sufficient ambiguity to warrant a record review, even if
we looked at the record, we would conclude that the court’s Dismissal Order of
February 11, 2021—not the April 13 Order—contains the requisite clear indication
of intent to dispose of all claims. In the Dismissal Order, the court makes it clear
that it is dismissing the “entire” case. Such an order can constitute a final
judgment for appellate and plenary power purposes. Cf. Ellmossallamy v.
Huntsman, 830 S.W.2d 299, 300-02 (Tex. App.—Houston [14th Dist.] 1992, no
writ). We construe this as the court’s clear indication of an intent to dispose of all
claims of all parties on February 11, 2021.3 The court’s intention is buttressed by
the fact that it signed a subsequent order denying Saenz’s “motion to retain” the
case.
Springer points to two docket entries that he contends establish the court’s
intention to dispose of the case completely by the April 13 Order. First, he directs
us to an April 9, 2020 docket entry stating the court “dismissed case.” Second, he
notes an August 11, 2020 docket entry stating, “court cannot sign the sanction
order as the court lost plenary power to sign since this matter was from [A]pril.”
But docket sheet entries do not control over written orders. See In re Bill Heard
Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding) (“A docket-sheet entry cannot contradict or take the place of a written
order or judgment.”). Notwithstanding those docket statements, the trial court
clearly did not treat the April 13 Order as having disposed of all claims of all
parties because, at a minimum, the court notified the parties in June 2020 that it
3
According to the record, the court disposed of Matthew’s motion for sanctions in June
2020.
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ruled on the motion for sanctions and signed the Dismissal Order the following
February.
Thus, we conclude that the April 13 Order was not a final order for purposes
of beginning Saenz’s time to appeal. Relatedly, we conclude the February 2021
Dismissal Order was a final judgment. As Saenz’s notice of appeal was
unquestionably timely based on when the Dismissal Order was signed, we have
jurisdiction over this appeal.
B. Saenz has not shown reversible error.
We review challenges to a trial court’s dismissal for want of prosecution, as
well as subsequent denials of motions to reinstate, for abuse of discretion.
Henderson v. Blalock, 465 S.W.3d 318, 321-22 (Tex. App.—Houston [14th Dist.]
2015, no pet.). This standard authorizes reversal of such decisions only if the trial
court has acted arbitrarily or without reference to guiding rules and principles.
Polk v. Sw. Crossing Homeowners Ass’n, 165 S.W.3d 89, 96 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). There are two sources for trial courts to dismiss
suits for want of prosecution: Texas Rule of Civil Procedure 165a, and trial courts’
inherent authority. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628,
630 (Tex. 1999). Rule 165a authorizes trial courts to dismiss for want of
prosecution “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). The rule
further states, “[n]otice 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, . . . .” Id.Trial courts also possess inherent authority to dismiss a case when a plaintiff fails
to prosecute it with due diligence.4 Villarreal, 994 S.W.2d at 630. But regardless
4
Saenz contends the trial court abused its discretion by not complying with Rule 165a;
she does not assert that the court abused its inherent authority.
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of which source of authority a trial court relies on, it must provide the party subject
to dismissal “with notice and an opportunity to be heard.” Id.
Saenz argues that the trial court failed to comply with Rule 165a because it
failed to send notice of its intent to dismiss the case and of any hearing date before
signing the Dismissal Order. The record does not show that the court provided the
requisite notice, and Springer does not contend otherwise. After receiving the trial
court’s Dismissal Order, however, Saenz timely filed a motion to retain, asking the
court to reinstate the case. Any due process violation caused by the trial court’s
failure to notify the parties of its intent to dismiss is cured when, as here, the
appellant timely files a motion to reinstate. E.g., Aguilar v. 21st Century Res., Inc.,
349 S.W.3d 32, 35-36 (Tex. App.—El Paso, 2010, no pet.); Keough v. Cyrus USA,
Inc., 204 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (any
error in lack of notice of intent to dismiss cured when appellant timely filed motion
to reinstate); Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128-29 (Tex.
App.—Houston [14th Dist.] 1999, no pet.). Thus, we overrule Saenz’s appellate
issue complaining of lack of notice.
To the extent Saenz complains that the trial court erred in failing to reinstate
the case, we cannot say the court erred because Saenz’s motion to reinstate, though
timely, was unverified. See Tex. R. Civ. P. 165a(3) (motions to reinstate must be
verified). A trial court does not abuse its discretion in denying an unverified
motion to reinstate following a Rule 165a dismissal. See Facundo v. Villezcas, No.
04-17-00528-CV, 2018 WL 3634987, at *3 (Tex. App.—San Antonio Aug. 1,
2018, no pet.) (mem. op.); Garcia v. Baig, No. 01-01-01213-CV, 2002 WL
31682779, at *2 (Tex. App.—Houston [1st Dist.] Nov. 27, 2002, pet. denied)
(mem. op.) (holding trial court did not abuse its discretion by denying Rule 165a
motion to reinstate because motion was not verified). Moreover, an unverified
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motion to reinstate will not extend the court’s plenary power or appellate
deadlines. See Sierra Club v. Tex. Comm’n on Env’t Quality, 188 S.W.3d 220, 223
(Tex. App.—Austin 2005, no pet.); Watson v. Clark, No. 14-14-00031-CV, 2015
WL 780563, at *2 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem.
op.). For this reason, the trial court’s jurisdiction to reinstate the case expired
March 15, 2021. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per
curiam). Saenz has not presented any reversible error.
Conclusion
For the above reasons, we affirm the trial court’s dismissal of Saenz’s suit
for failure to prosecute.
PER CURIAM
Panel consists of Justices Jewell, Bourliot, and Poissant.
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