Marshall Internal Medicine Associates, P.A., and James Facello, D. O. v. Don Hyde and Sandra Hyde ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00042-CV

                                                ______________________________

                MARSHALL INTERNAL MEDICINE ASSOCIATES, P.A.,

AND JAMES FACELLO, D.O., Appellants

                                                                V.

                          DON HYDE AND SANDRA HYDE, Appellees

                                        On Appeal from the 71st Judicial District Court

                                                           Harrison County, Texas

                                                           Trial Court No. 09-0604

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

            Appellant Marshall Internal Medicine Associates, P.A., has filed with this Court an agreed motion requesting this Court to set aside the trial court’s order without regard to the merits and remand this case to the trial court for rendition of an agreed order of dismissal in accordance with the parties’ settlement agreement.  We overrule that motion.

            This Court has been informed that all parties to this cause have now reached a full and final settlement.  In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot.

            Therefore, we dismiss this appeal.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          September 8, 2010

Date Decided:             September 9, 2010

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Gerald Wayne George appeals the trial court’s order dismissing his suit^[1] for want of prosecution.   George’s original petition was filed in the trial court March 26, 2009.  On May 31, 2011, the trial court entered an order dismissing the suit.  The order of dismissal recites that “notices of intention to dismiss the actions in this cause for want of prosecution have been sent by this Court” to all parties and their attorneys, if represented.   George filed a motion to reinstate the case, but no written order was entered and the motion was overruled by operation of law. Tex. R. Civ. P. 165a(3).

            George’s brief claims he was denied due process when the trial court dismissed his suit without providing George notice of the intention to dismiss for want of prosecution.^[2]  We review a dismissal for want of prosecution under a clear abuse of discretion standard; the central issue is whether the plaintiff exercised reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).  The trial court abuses its discretion when it acts without reference to any guiding rules or principles. WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied) (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).

            Trial courts have authority to dismiss for want of prosecution under either Texas Civil Procedure Rule 165a or the court’s inherent power.  See Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).  A party must be given notice and an opportunity to be heard before the trial court may dismiss on either basis.  Villarreal, 994 S.W.2d at 630.  The notice must advise the party of the basis for the potential dismissal.  3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 541 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Villarreal, 994 S.W.2d at 632).  Notice that the court is considering dismissal under Rule 165a does not constitute adequate notice that the court may exercise its inherent authority to dismiss the case for want of prosecution.  Villarreal, 994 S.W.2d at 630; Lopez v. Harding, 68 S.W.3d 78, 79–80 (Tex. App.—Dallas 2001, no pet.) (court erred by dismissing under inherent authority when notice referred only to Tex. R. Civ. P. 165a).

            George is presently incarcerated in the Texas Department of Criminal Justice– Correctional Institutions Division.  An inmate has a constitutional right to access the civil trial courts, but that right is not absolute or without limits.  In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).  “[A]n inmate does not have an absolute right to appear in person in every court proceeding.”  Id. 

            George filed a timely and verified motion to reinstate the case, alleging that he received no notice from the trial court that the case was susceptible to being dismissed for want of prosecution and that he received no notice the matter was set for trial.^[3]   If adequate notice of the trial court’s intent to dismiss for want of prosecution is not given, reversal is required.  Villarreal, 994 S.W.2d at 630–31.  The record before us shows no indication the trial court clerk sent George notice.   Before a trial court may properly dismiss a case for want of prosecution, “[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.”  Tex. R. Civ. P. 165a(1); Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009).^[4]

            The trial court’s judgment recites that notice of intent to dismiss for want of prosecution was given to George, but the record does not contain any evidence of such notice.  Since no hearing was conducted on the motion to reinstate, we will remand for such a hearing.  In light of the requirements of Rule 165a, the due process concerns at issue, and the silence of the trial court’s record, we find the trial court abused its discretion in failing to hold a hearing on the motion to reinstate.  Thordson v. Houston, 815 S.W.2d 550 (Tex. 1991).  This Court has held that Rule 165a(3) requires that the court set a properly filed motion to reinstate for a hearing; such rule is mandatory with the trial court having no discretion about whether to set the motion for an oral hearing.  Matheson v. Am. Carbonics, 867 S.W.2d 146, 147 (Tex. App.—Texarkana 1993, no pet.) (“Whether or not the movant requests a hearing on a motion to reinstate is irrelevant.”). 

            We reverse the order overruling the motion to reinstate, entered by operation of law, and  remand this case to the trial court to conduct a hearing on the motion to reinstate in accordance with Texas Rule of Civil Procedure 165a. 

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          December 19, 2011    

Date Decided:             January 13, 2012

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^[1]George’s suit was against the State of Texas, in the person of the trial court and prosecutor; and George’s trial attorney; George complained that when he pled guilty to aggravated assault, the negotiated plea agreement stated his forty-year sentence would run concurrently with a parole revocation for a Louisiana conviction.  George alleged the sentences were not run concurrently and he filed suit to enforce the contractual nature of the plea agreement.   

^[2]George also presented other issues, but due to the resolution of this issue, they are not discussed.

^[3]The record does not indicate the matter was ever set for trial; there is indication the case was called to the docket twice in 2009, with no answer; the trial court’s order of dismissal states the matter was called for a dismissal for want of prosecution hearing on May 31, 2011.

^[4]In at least one case, the Texas Supreme Court has noted that the absence in the record of indication the clerk’s office sent notice does not establish that notice was not sent or was sent to the wrong address. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849–50 (Tex. 2004).  That case, though, involved a restricted appeal, where error must appear on the face of the record.