ROSA MARIA HANASH v. WALTER ANTIQUES INC AND NANCY WALTER INDIVIDUALLY

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Court of Appeals of Texas, El Paso.

ROSA MARIA HANASH, Appellant, v. WALTER ANTIQUES, INC. AND NANCY WALTER, INDIVIDUALLY, Appellees.

No. 08-16-00054-CV

Decided: March 09, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

Rosa Maria Hanash, Appellant, appeals the trial court's order concluding that its plenary jurisdiction expired as of January 14, 2016. We affirm.

BACKGROUND

Hanash filed her original petition on September 25, 2012, suing Walter Antiques, Inc., and Nancy Walter, individually, (Appellees), for breach of contract, fraud, conversion, theft of property, and attorneys' fees. For over two years, no pleadings were filed and the case did not show any activity. On November 19, 2015, the trial court issued a notice of intent to dismiss for want of prosecution, and set a dismissal hearing for December 14, 2015. In compliance with Rule 165a of the Texas Rules of Civil Procedure, the district clerk sent notice of the dismissal hearing to both attorneys of record the next day. The official notice informed both attorneys of record that attendance on December 14, 2015, was mandatory and that the case would be automatically dismissed if there was a failure to appear. The trial court held the dismissal hearing, and because counsel for Hanash did not appear, the trial court entered an order dismissing the case for want of prosecution on December 14, 2015. On December 21, 2015, the district clerk sent both parties by mail a Rule 306a notice notifying the parties of the signed dismissal order.

On January 29, 2016, Hanash's attorney filed a verified motion to reinstate, stating that he was on the way to the dismissal hearing when he experienced car trouble and was unable to attend. His motion asserted that he called and left an explanatory message on the court's answering machine as his call was not answered. Also on January 29, 2016, he filed a verified motion to determine notice or actual knowledge of the dismissal order. In it, he stated that he had left town for the Christmas holiday season, and only received notice that the case had been dismissed when he checked on its status on January 5, 2016. His verified motion to determine notice or actual knowledge also asserted that he had not received notice within twenty days after the dismissal order was signed in violation of Rule 306a(3), and asked the court to determine that January 5, 2016 was the date he received notice, and to extend the relevant filing period for his motion to reinstate.

In responding to Hanash's motion to reinstate, Appellees asserted that the trial court's plenary jurisdiction had expired as of January 14, 2016. Appellees argued the case had been dismissed on December 14, 2015, due to Hanash's failure to appear as ordered despite having been properly notified. Because Hanash did not file her motion to reinstate or motion to determine notice or actual knowledge until January 29, 2016, more than thirty days after the entry of the dismissal order, Appellees asserted the trial court had lost plenary jurisdiction over the case.

On February 11, 2016, the trial court held a hearing on the motions to reinstate and to determine notice or actual knowledge, and having taken notice of the court's file, it decided that it no longer had jurisdiction over the case as of January 14, 2016, or thirty-one days after the entry of the dismissal order of December 14, 2015.1

DISCUSSION

Standard of Review

The decision to dismiss a case for want of prosecution rests with a trial court, and will only be overturned if it amounts to a clear abuse of discretion. Fox v. Wardy, 225 S.W.3d 198, 199–200 (Tex. App.—El Paso 2005, pet. denied) (citing State v. Rotello, 671 S.W.2d 507, 508–09 (Tex. 1984); Dick Poe Motors, Inc. v. DaimlerChrysler Corp., 169 S.W.3d 478, 484 (Tex. App.—El Paso 2005, no pet.)). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding rules or principles. Id. at 200 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Dick Poe Motors, 169 S.W.3d at 484). With regard to factual matters, an abuse of discretion occurs if the record establishes that the “trial court could reasonably have reached only one decision.” Dalmex, Ltd. v. Apparel Enterprises, Inc., 455 S.W.3d 241, 243 (Tex. App.—El Paso 2015, no pet.) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).

Rules 165a and 306a

Rules 165a and 306a govern the timelines for filing a motion to reinstate a case dismissed for want of prosecution. Rule 165a(3) states “[a] motion to reinstate shall ․ be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a.” TEX.R.CIV.P. 165a(3). Thus, a party adversely affected generally has thirty days after a dismissal order is entered to file a motion to reinstate before the trial court's plenary jurisdiction expires. See TEX.R.CIV.P. 165a(3); Andrews v. Stanton, 198 S.W.3d 4, 7 (Tex. App.—El Paso 2006, no pet.) (“A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution.”).

Operating along with Rule 165a, Rule 306a also provides required procedures that must be followed as applicable. Rule 306a(1) states that “[t]he date ․ [an] order is signed ․ shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant ․ motions to reinstate a case dismissed for want of prosecution ․” TEX.R.CIV.P. 306a(1). Therefore, when a judgment or order is signed, the clerk of the court shall “immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed[,]” and the thirty-day deadline to file a motion to reinstate begins to run from the time the dismissal order is signed. TEX.R.CIV.P. 306a(1), (3). If, however, an adversely affected party does not receive notice of the dismissal order within twenty days of the order's issuance, the deadline to file a motion to reinstate is extended and begins to run on the date the party received notice of the dismissal or acquired actual knowledge of the signing, whichever came first. TEX.R.CIV.P. 306a(4).

To establish the application of Rule 306a(4)'s extended time period, the party adversely affected by a dismissal is required to prove to the trial court, on sworn motion, the date on which notice or actual knowledge of the judgment was received or acquired. See In re Micklos, No. 14-05-01236-CV, 2006 WL 1766176, at *2 (Tex. App.—Houston [14th Dist.] June 29, 2006, no pet.) (opin. on reh'g) (not designated for publication) (citing TEX.R.CIV.P. 306a(5); In re Montemayor, 2 S.W.3d 542, 545 (Tex. App.—San Antonio 1999, orig. proceeding)). The date the party received notice or acquired actual knowledge must be more than twenty days after the dismissal order was signed. See id. Unless a party establishes that notice was not received or that it had no knowledge of the dismissal order, the beginning of the period of the trial court's plenary jurisdiction is not extended and the plenary jurisdiction expires thirty days after the court signs its dismissal order. See id. (citing Grondoma v. Sutton, 991 S.W.2d 90, 91–92 (Tex. App.—Austin 1998, pet. denied); Mem'l Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365–66 (Tex. 1987)).

Application

Here, the notice of dismissal hearing sent to the attorneys of record by the district clerk was dated November 19, 2015, which stated that the case would be dismissed if there was a failure to appear at the dismissal hearing set for December 14, 2015. When neither Hanash nor her attorney appeared at the hearing, the trial court signed the order dismissing the case on December 14, 2015. Accordingly, Rule 165a(3) provided for thirty days after the order was signed (until January 13, 2016) for Hanash to file her motion to reinstate, or within the time period prescribed by Rule 306a if she could establish that she did not receive or have actual notice of the dismissal order within twenty days after its issuance. See TEX.R.CIV.P. 165a(3), 306a. The record shows the district clerk sent notice of the entry of the dismissal order by mail to the attorneys for both parties on December 21, 2015.

In her brief on appeal, Hanash asserts, as she did to the trial court in her verified motion to determine notice or actual knowledge, that her attorney did not receive notice of the dismissal until January 5, 2016, when he checked on the status of the case after returning to work from his Christmas vacation. She argues that because her attorney did not receive notice or acquire actual knowledge that the dismissal order had been entered until January 5, 2016, that date became the time when the thirty-day period began to run for filing a motion for reinstatement, which extended the deadline from January 13, 2016 (thirty days after the entry of the dismissal order) to February 4, 2016. See TEX.R.CIV.P. 306a(4). Hanash thus argues her motion to reinstate was timely filed on January 29, 2016, during the trial court's extended plenary jurisdiction.

Appellees counter that Hanash's attorney had notice of the trial court's intent to dismiss, which contained the admonition that attendance at the December 14, 2015 hearing was mandatory, and the case would be dismissed if there was a failure to appear. Appellees also cite to the entry of the dismissal order on December 14, 2015. Consequently, they argue notice was given as the clerk sent both parties notice of the dismissal order on December 21, 2015, and that Appellees' attorney received his copy of the notice on December 23, 2015, suggesting a similar timeframe for Hanash's attorney to have received his copy. They also point out that the district clerk sent the Rule 306a notice to Hanash's attorney's correct mailing address. On review, the issue is whether the trial court's decision to dismiss the case for want of prosecution amounts to a clear abuse of discretion when it found Hanash's attorney had received notice on December 21, 2015, the date the clerk sent the parties notice of the dismissal. See Fox, 225 S.W.3d at 199 (a trial court's dismissal of case for want of prosecution is reviewed for abuse of discretion). In justifying its ruling, the trial court stated the following during the hearing on Hanash's verified motion to reinstate:

The only thing that I see, Mr. Grajeda, is number one, you knew that there was a hearing on the 14th of December. And you didn't follow through with the Court as far as checking to see what had occurred on the date of the hearing that was set on the 14th. [Counsel for Appellees] did appear on that date. And I made a notation that he did appear. And then I have in the—on the docket sheet that notice was sent to you on the 21st of December of 2015, to the address that is on your letterhead, ․ as well as notice being sent to [counsel for Appellees] to his address of record. Then what you're telling the Court is that you checked [on January 5, 2016] and were aware that this matter had been dismissed on the 14th of December. And yet, you chose not to do anything until the 29th of January?

Shortly thereafter, the court found that the district clerk had sent notice of the dismissal on December 21, 2015, and determined that that was the day Hanash's attorney received notice.

Given the record before us, we cannot say that the trial court abused its discretion in denying Hanash's motion to reinstate. The clerk's Rule 306a dismissal notice was filed on December 21, 2015, and pursuant to Rule 21a(b)(1) of the Texas Rules of Civil Procedure, service was complete upon deposit of the document in the mail. See TEX.R.CIV.P. 21a(b)(1). The dismissal notice contains the same mailing address for Hanash's attorney as the notice of the dismissal hearing, which Hanash's attorney admittedly received as he was on the way to the hearing when he had car trouble and called the court to inform it that he would not be able to attend. Hanash's attorney also admitted that he had actual knowledge of the entry of dismissal order on January 5, 2016, yet failed to file a motion to reinstate until January 29, 2016.2

Hanash cites to In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006), contending that it stands for the proposition that a prima facie case of lack of timely notice is established by filing a sworn motion to verify notice or actual knowledge, which in turn invokes the trial court's otherwise expired jurisdiction for the purpose of determining the date the party acquired notice or actual knowledge of the dismissal order. Yet, while a sworn motion indeed establishes a prima facie case that the party lacked notice or actual knowledge of a dismissal order, a trial court must also hold an evidentiary hearing to establish the date a party received notice or actual knowledge of the dismissal order. See id. at 685. As Appellees correctly point out, no evidentiary hearing was held in this case, with Hanash relying only on her filed verified motions. Likewise, the adversely affected party in In re Lynd Co. established that it first received notice on the claimed date by presenting affidavits and testimony from multiple individuals associated with the case, which the reviewing court considered to be sufficient evidence to imply that the trial court found that the party first received notice of the trial court's judgment on the claimed date. Id. at 686. As stated above, the record here does not contain such testimony. We therefore conclude that Hanash's reliance on In re Lynd Co. is not persuasive.

Because the trial court did not abuse its discretion in determining that Hanash had notice of the dismissal on December 21, 2015, less than twenty days after the entry of the dismissal order, under Rule 165a(3) she had thirty days to file her motion to reinstate (until January 13, 2016). See TEX.R.CIV.P. 165a(3); Andrews, 198 S.W.3d at 7. Because she did not file her motion until January 29, 2016, sixteen days after the thirty-day filing deadline expired on January 13, 2016, the motion was not timely filed. Thus, we conclude the trial court did not abuse its discretion as its plenary jurisdiction expired beginning January 14, 2016. See Andrews, 198 S.W.3d at 7. Issue One is overruled.

CONCLUSION

The trial court's judgment is affirmed.

FOOTNOTES

1.   The trial court's order erroneously states that its jurisdiction expired “on January 14, 2016, thirty-one days after the entry of the Order of Dismissal on December 14, 2015.” A trial court's plenary jurisdiction expires thirty days after the entry of a dismissal order, meaning that the trial court's plenary jurisdiction expired on January 13, 2016, and no longer retained jurisdiction as of January 14, 2016. See Andrews, 198 S.W.3d at 7. Since Hanash's motion to reinstate was not filed until January 29, 2016, the court's description does not affect the outcome of this appeal.

2.   Even if Hanash was only aware of the trial court's dismissal order on January 5, 2016, she was afforded due process rights because she received actual notice of the dismissal order in time to file a motion to reinstate by the January 13, 2016 deadline. See Dolenz v. Corpus Christi Intern. School of Sailing, Inc., No. 05-05-000936-CV, 2005 WL 3194585, at *1 (Tex. App.—Dallas Nov. 30, 2005, pet. denied), cert. denied, 549 U.S. 856, 127 S.Ct. 132, 166 L.Ed.2d 97 (2006) (same) (citing Texas Sting, Ltd. v. R. B. Foods, Inc., 82 S.W.3d 644, 648–49 (Tex. App.—San Antonio 2002, pet. denied) (stating that even when a plaintiff has not received notice of a dismissal hearing, due process was satisfied because a post-dismissal hearing was held)). Since Hanash did not file a motion to reinstate until January 29, 2016, over three weeks after she contends her attorney became aware of the dismissal order, we cannot say that her due process rights were violated. See id.

GINA M. PALAFOX, Justice

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