James Douglas Barding v. Texas Department of Criminal Justice, Pardon and Paroles Division Melinda H. Bozarth Cecil C. Simpson H. B. Skelton Pat M. Ivey Jesus T. Zapata And Joe Lewis

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00103-CV James Douglas Barding, Appellant v. Texas Department of Criminal Justice, Pardon and Paroles Division; Melinda H. Bozarth; Cecil C. Simpson; H. B. Skelton; Pat M. Ivey; Jesus T. Zapata; and Joe Lewis, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 95-12143, HONORABLE JERRY DELLANA, JUDGE PRESIDING Appellant James Douglas Barding ("Barding") sued appellee Texas Department of Criminal Justice, et al. (the "Department") alleging, among other things, wrongful termination of employment, breach of contract, and violation of the Due Process Clauses of the Texas and United States Constitutions. The district court dismissed the case for want of prosecution. Barding filed a motion to reinstate, but his motion was overruled by operation of law. Barding appeals the district court's decision not to reinstate the case. We will affirm the order of the district court. BACKGROUND On December 30, 1994, Barding filed suit against the Department in the 119th District Court of Tom Green County. The case was transferred to the 201st Judicial District Court of Travis County on July 14, 1995. Nearly two years later, on May 20, 1997, the district court sent Barding a notice that his case would be dismissed for want of prosecution unless a motion to retain was filed by June 18, 1997. The notice instructed Barding to refer to the Travis County Local Rules for the procedures regarding dismissal for want of prosecution. Barding filed his motion to retain on June 16, 1997. Pursuant to Local Rule 11.3, once the court received the motion to retain it issued a notice of referral to alternative dispute resolution ("ADR"). The court issued the notice on July 9, 1997. At the bottom of the notice, written in all capital letters was the following: "PLEASE REFER TO THE TRAVIS COUNTY DISTRICT COURT LOCAL CIVIL RULES, CHAPTER 11 CONCERNING YOUR RESPONSIBILITIES FROM THIS POINT. FAILURE TO COMPLY WILL RESULT IN DISMISSAL FOR WANT OF PROSECUTION." Chapter 11 makes clear the movant's responsibility to contact the Travis County Dispute Resolution Center within thirty days of filing the motion to retain, and to arrange and complete proper ADR procedures within ninety days of filing the motion. Travis (Tex.) Civ. Dist. Ct. Loc. R. 11.7. The Local Rules further make clear that failure to complete ADR procedures "shall result in immediate dismissal of the case unless the court orders it retained upon motion by a party showing good cause." Travis (Tex.) Civ. Dist. Ct. Loc. R. 11.11. Barding did not arrange any type of ADR as called for in Chapter 11. Consequently, on November 12, 1997, the case was dismissed for want of prosecution pursuant to Local Rule 11.11. In response, on December 12, 1997, Barding filed a motion to reinstate, which was denied by operation of law. In one point of error, Barding appeals the denial of his motion to reinstate. STANDARD OF REVIEW We review a district court's decision not to reinstate a case dismissed for failure to prosecute under an abuse of discretion standard. Eustice v. Grandy's, 827 S.W.2d 12, 14 (Tex. App.--Corpus Christi 1992, no writ). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). This Court may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Id. DISCUSSION In his only point of error Barding asserts that the district court abused its discretion by not reinstating his case because his failure to go forward with the case was the result of mistake, not conscious indifference. The standard Barding asserts comes from Texas Rule of Civil Procedure 165a(3) which states: "[t]he 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." Tex. R. Civ. P. 165a. To support his position Barding cites Burns v. Drew Woods, Inc., 900 S.W.2d 128 (Tex. App.--Waco 1995, writ denied), and Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995). Neither of these cases, however, controls this situation because they both involved a trial court's denial of a motion to reinstate a case dismissed under Texas Rule of Civil Procedure 165a(3) for failure of the plaintiff to appear at a pretrial conference. The present case, on the other hand, involves the dismissal for want of prosecution for failure to proceed; a dismissal which the court has the authority to order as part of its inherent powers. See Ozuna v. Southwest Bio-Clinical Lab., 766 S.W.2d 900, 901 (Tex. App.--San Antonio 1989, writ denied). The distinction between a case being dismissed because the plaintiff failed to appear and a case being dismissed because the plaintiff failed to proceed is an important one. Numerous appellate courts, including this one, have held that the standard articulated in Rule 165a(3) only applies to failure to appear, not failure to proceed. Burton v. Hoffman, 959 S.W.2d 351, 354 (Tex. App.--Austin 1998, no pet.). The dismissal order clearly states that this case was dismissed for failure to proceed. In the order, the court noted the long period of time the case had been pending. We focus, therefore, not on whether the failure to go forward was the result of mistake or conscious indifference, but rather on whether the court abused its discretion. There are several key facts that weigh heavily in our determination. On two separate occasions Barding received notices from the court clearly directing him to consult Chapter 11 of the Travis County Local Rules. In the notice of court setting issued on May 9, 1997, the language directing Barding to the Local Rules was set off with three asterisks on either side of each line. Also, the notice of referral to ADR instructed Barding, in all capital letters, that he should consult Chapter 11 for explanation of his responsibilities and further warned him that failure to comply would result in dismissal for want of prosecution. The record indicates that Barding received and read both notices. Had Barding consulted Chapter 11 as directed by the notices he would have known of his responsibility to arrange for and undergo ADR procedures, and that failure to do so would result in immediate dismissal of the case. Travis (Tex.) Civ. Dist. Ct. Loc. R. 11.7, 11.3. Furthermore, even if the notices had not specifically directed Barding to the Local Rules, a party is charged with knowledge of the local rules. Mayad v. Rizk, 554 S.W.2d 835, 839 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ denied). Consequently, claiming ignorance of the rules, as Barding does, is ineffectual. We fail to find that the trial court abused its discretion and overrule Barding's point of error. CONCLUSION Because Barding has failed to demonstrate that the trial court abused its discretion, we affirm the decision of the district court in overruling Barding's motion to reinstate. Mack Kidd, Justice Before Justices Powers, Kidd and B. A. Smith Affirmed Filed: October 29, 1998 Do Not Publish E="font-family: CG Times (W1) Regular">DISCUSSION In his only point of error Barding asserts that the district court abused its discretion by not reinstating his case because his failure to go forward with the case was the result of mistake, not conscious indifference. The standard Barding asserts comes from Texas Rule of Civil Procedure 165a(3) which states: "[t]he 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." Tex. R. Civ. P. 165a. To support his position Barding cites Burns v. Drew Woods, Inc., 900 S.W.2d 128 (Tex. App.--Waco 1995, writ denied), and Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995). Neither of these cases, however, controls this situation because they both involved a trial court's denial of a motion to reinstate a case dismissed under Texas Rule of Civil Procedure 165a(3) for failure of the plaintiff to appear at a pretrial conference. The present case, on the other hand, involves the dismissal for want of prosecution for failure to proceed; a dismissal which the court has the authority to order as part of its inherent powers. See Ozuna v. Southwest Bio-Clinical Lab., 766 S.W.2d 900, 901 (Tex. App.--San Antonio 1989, writ denied). The distinction between a case being dismissed because the plaintiff failed to appear and a case being dismissed because the plaintiff failed to proceed is an important one. Numerous appellate courts, including this one, have held that the standard articulated in Rule 165a(3) only applies to failure to appear, not failure to proceed. Burton v. Hoffman, 959 S.W.2d 351, 354 (Tex. App.--Austin 1998, no pet.). The dismissal order clearly states that this case was dismissed for failure to proceed. In the order, the court noted the long period of time the case had been pending. We focus, therefore, not on whether the failure to go forward was the result of mistake or conscious indifference, but rather on whether the court abused its discretion. There are several key facts that weigh heavily in our determination. On two separate occasions Barding received notices from the court clearly directing him to consult Chapter 11 of the Travis County Local Rules. In the notice of court setting issued on May 9, 1997, the language directing Barding to the Local Rules was set off with three asterisks on either side of each line. Also, the notice of referral to ADR instructed Barding, in all capital letters, that he should consult Chapter 11 for explanation of his responsibilities and further warned him that failure to comply would result in dismissal for want of prosecution. The record indicates that Barding received and read both notices. Had Barding consulted Chapter 11 as directed by the notices he would have known of his responsibility to arrange for and undergo ADR procedures, and that failure to do so would result in immediate dismissal of the case. Travis (Tex.) Civ. Dist. Ct. Loc. R. 11.7, 11.3. Furthermore, even if the notices had not specifically directed Barding to the Local Rules, a party is charged with knowledge of the local rules. Mayad v. Rizk, 554 S.W.2d 835, 839 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ denied). Consequently, claiming ignorance of the rules, as Barding does, is ineffectual. We fail to find that the trial court abused its discretion and overrule Barding's point of error.