Maria De Los Angeles Hernandez v. ISE, Inc.

MEMORANDUM OPINION No. 04-06-00888-CV Maria De Los Angeles HERNANDEZ, Appellant v. ISE, INC., Appellee From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2003-CVF-001967-D2 Honorable Raul Vasquez, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Catherine Stone, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Delivered and Filed: January 9, 2008 AFFIRMED Maria De Los Angeles Hernandez contends the trial court abused its discretion by dismissing the underlying lawsuit for want of prosecution. We affirm. Background Hernandez filed suit against ISE, Inc. for breach of contract on July 19, 2002. Hernandez filed an affidavit of indigency in the case to avoid paying litigation costs during the prosecution of her claim. Hernandez's claim of indigency, however, proved to be false. Hernandez's affidavit of indigency was struck by the trial court and Hernandez was sanctioned $1,000.00 and ordered to pay $421.50 in costs for filing the false affidavit of indigency with the court. Rather than pay the amount owed, Hernandez nonsuited her case. Hernandez re-filed her suit against ISE in a different district court on December 19, 2003. Hernandez's case was eventually returned to the original trial court, which granted ISE's motion to stay further proceedings until Hernandez paid her court-ordered sanction and costs. The trial court, on May 20, 2004, ordered Hernandez to remit payment for the unpaid sanction and costs within 10 days of the court's order and warned Hernandez that failing to comply with the court's order would result in the dismissal of her suit. Hernandez, however, did not comply with the court's order. No other activity took place in the case until September 12, 2006, when the trial court sent a letter to the parties notifying them that the case had been placed on the dismissal docket. The court's letter provided no reason for placing the case on the dismissal docket. The letter merely provided: Please take notice that the above styled and numbered case is set for Dismissal Docket on the 4th day of December, 2006 at 9:00 a.m. This setting is mandatory and your failure to appear will cause this case to be dismissed. Please note, that if your case is in bankruptcy, counsel is required to file updated written verification from the bankruptcy court, otherwise the case will be subject to dismissal. In response to the court's notice, on November 21, 2006, Hernandez filed a motion requesting the trial court to retain the case on the court's docket, lift its stay of proceedings, and enter a new pre-trial guideline order. Hernandez's motion further contested the amount the court had previously ordered her to pay for costs. On December 4, 2006, both parties appeared for the dismissal docket hearing. At the dismissal hearing, the court asked Hernandez's attorney why it should retain the case when Hernandez had not taken any action with respect to the case for more than two years. Hernandez's attorney explained that no action had occurred because Hernandez "has been in Mexico" and "it has been very difficult for [counsel] to get a hold of [Hernandez] to come and see" him. When Hernandez's attorney provided no other explanation to the court, the court dismissed the case for want of prosecution. Hernandez filed a timely motion to reinstate. (1) At the hearing on the motion to reinstate, Hernandez essentially argued that the reinstatement of her case is warranted because the court failed to give her notice before the dismissal docket hearing of its intent to dismiss for want of prosecution under the court's inherent powers. Hernandez further noted that she is ready "to pay any valid court costs that are due." She noted that she had not paid any court costs in the case because: (1) opposing counsel never provided her with a Bill of Costs; and (2) the court "never specified, with particularity, what the court costs are." As for her payment of the $1,000.00 sanction imposed, Hernandez offered no explanation for failing to pay the court-ordered sanction in a timely manner. The trial court denied Hernandez's reinstatement request, citing Hernandez's lack of diligence in making payment in accordance with the court's order. The court noted that "three years have elapsed . . . and [Hernandez] ha[s] done nothing for this case, or even attempted to do anything, in regard to making a payment or clarifying the order or clarifying the costs." Dismissal for Want of Prosecution Hernandez asserts the trial court failed to provide her with notice sufficient to warn her that the court might dismiss her case for want of prosecution under its inherent power. Hernandez argues she was entitled to receive specific notice before her dismissal docket hearing as to whether the dismissal might occur pursuant to Texas Rule of Civil Procedure 165a or the court's inherent authority. As a result of the trial court's failure to apprise her of its intent to dismiss for want of prosecution within the exercise of its inherent power, Hernandez asserts we must reverse the trial court's order dismissing her case for want of prosecution. The decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court and can be disturbed on review only if the court's decision amounted to a clear abuse of discretion. State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984). 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 and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a; and (2) the court's inherent authority. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial court may dismiss 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 time standards promulgated by the Supreme Court." Tex. R. Civ.P. 165a. 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 his or her case with due diligence. Villarreal, 994 S.W.2d at 630. A party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either Rule 165a or its inherent power. Id. The requirements of notice and a hearing are necessary to ensure the dismissed claimant has received due process. Tex. Sting Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.--San Antonio 2002, pet. denied). "The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal." Villarreal, 994 S.W.2d at 630-31. In Villarreal v. San Antonio Truck & Equipment, the supreme court held that the Bexar County dismissal notice failed to apprise the parties of the trial court's intent to dismiss for want of prosecution within the exercise of its inherent power. Id. at 629. The dismissal notice in Villarreal read as follows: BY DIRECTION OF THE PRESIDING JUDGE OF SAID COURT[,] NOTICE IS HEREBY GIVEN YOU THAT THE ABOVE CAUSE(S), UPON ORDER OF THE COURT[,] IS SET FOR DISMISSAL ON THE 22 DAY OF OCTOBER, 1996 . . . YOU ARE REQUESTED TO BE PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS MADE, THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION. ALL ORDERS THAT WILL REMOVE A CASE FROM THE DISMISSAL DOCKET MUST BE SUBMITTED TO THE DISMISSAL DEPARTMENT ON OR BEFORE THE DATE WHEN THE DOCKET IS CALLED. YOU ARE REMINDED THAT THIS IS NOT A DOCKET FOR THE RE-SETTING OF CASES, BUT FOR THEIR DISMISSAL. Id. The focus of the supreme court's concern with the dismissal notice surrounded the language "if no announcement is made, this cause will be dismissed for want of prosecution." See id. at 630. The court agreed with Villarreal that he complied with the notice language by his presence at the dismissal docket hearing and announcement of readiness for trial. Id. at 630-31. Additionally, the court rejected the claim that the phrase "this is not a docket for the re-setting of cases, but for their dismissal," adequately notified parties of the likelihood of dismissal. Id. at 633. The court found the phrase misleading because no indication was made that a party must show good cause to avoid dismissal. Id. Although the dismissal notice at issue in this case is quite similar to the notice examined in Villarreal, we need not reverse the trial court's judgment because Hernandez was afforded due process when the trial court provided her with an opportunity to refute the dismissal of her case at a hearing on her motion to reinstate. The record shows that, at Hernandez's dismissal docket hearing, the trial court verbally expressed consternation with Hernandez's failure to take any action in the case in more than two years time. After ISE informed the trial court that Hernandez had not paid any costs in accordance with the court's prior order, the court asked Hernandez's counsel: "[H]ow do you expect me to keep a case like this . . . The Order clearly states the deposition costs of $281.50, the translation costs of $140.00 and $1,000.00 in sanctions. It's clear. It's not future. It's -- and it gives you 10 days to get it done . . . And, you come two years later and want me to consider that . . . [T]ell me why you haven't done anything in two years . . . And, you couldn't file anything before the Dismissal Docket?" The trial court's verbal comments at the dismissal docket hearing sufficiently notified Hernandez that the court was contemplating dismissing her lawsuit under its inherent authority based upon her failure to prosecute her case with diligence. In light of the trial court's comments, Hernandez was on notice at the conclusion of the dismissal hearing that she would be required to establish diligent prosecution rather than compliance with Rule 165a to secure the reinstatement of her case. When the trial court later provided Hernandez with a post dismissal hearing to refute the trial court's stated basis for dismissal, i.e., lack of diligence, any due process concerns relating to the adequacy of the court's earlier notice were obviated. See Herrera v. Rivera, No. 08-03-00504-CV, 2005 WL 1048109, *3 n.2 (Tex. App.--El Paso 2005, no pet.) (overruling appellate complaint alleging the trial court's notice of dismissal was inadequate for failing to apprise appellant of the particular authority under which the case might be dismissed because, among other reasons, "the trial court held a hearing on [appellant's] motion to reinstate, providing her with the opportunity to be heard, thus curing any potential failure of providing any alleged inadequate notice."); see also Tex. Sting, 82 S.W.3d at 648-49 (concluding even a complete absence of notice can be cured when a trial court holds a hearing on a motion to reinstate); Manning v. North, 82 S.W.3d 706, 715 (Tex. App.--Amarillo 2002, no pet.) (same); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.--Dallas 2001, pet. denied) (same); Jimenez v. Transwestern Prop., Co., 999 S.W.2d 125, 128-29 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (same). Hernandez's first issue is therefore overruled. Improper Sanction Hernandez also contends the trial court's dismissal of her case was an improper sanction under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). We have previously determined, however, that the considerations set forth in TransAmerican, which addressed the validity of sanctions, do not apply to a case involving a dismissal for want of prosecution. See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 198 (Tex. App.--San Antonio 1998, pet. denied) (rejecting appellant's contention that a dismissal for want of prosecution is an improper sanction under TransAmerican); see also Northbrook Prop. & Cas. Ins. Co. v. C&C Erection, Inc., No. 04-98-01063-CV, 1999 WL 734840, *6 (Tex. App.--San Antonio 1999, pet. denied) (not designated for publication), overruled on other grounds by Cappetta v. Hermes, 222 S.W.3d 160 (Tex. App.--San Antonio 2006, no pet.) (noting the considerations set forth in TransAmerican do not apply to a case involving a dismissal for want of prosecution). Similarly, we reject Hernandez's contention in this case and overrule her second issue. Misidentification of the Parties Hernandez also claims we must reinstate her case because the trial court misidentified the plaintiff (Hernandez) and defendant (ISE) in the "Order Granting Motion To Stay" issued by the court on May 20, 2004. Particularly, Hernandez directs our attention to the "Order Granting Motion To Stay" where the trial court mistakenly identifies the Defendant (ISE) as the party which was both sanctioned by the trial court and ordered to pay costs. The trial court's stay order provides: "The Defendant has failed to pay all accrued costs, including the sanctions ($1,000.00) set forth in the Court's order in the first case (2002-CVQ-000975-D2) pending in the 111th District Court, Webb County, Texas, the deposition costs of $281.50, and Translator costs of $140.00, for a total of $1,421.50." Hernandez argues that the court's misidentification of the parties makes the stay order ambiguous and unenforceable. Hernandez, however, did not raise this contention with the trial court following the order of dismissal. Hernandez has therefore failed to preserve this complaint for our review. (2) Inadequately Briefed Issues Hernandez further argues that we must reinstate her case because the trial court's stay order: (1) is "void because it only gave [her] ten days to pay the court costs"; and (2) violates Peek v. Berry, 143 Tex. 294, 184 S.W.2d 272 (1944), by dismissing her case with prejudice. Absent from Hernandez's brief is any substantive analysis to explain or develop the purported theories urged. Parties asserting error on appeal must put forth some specific argument and analysis showing that the record and the law support their contentions. See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); see also In re C.L., No. 04-03-00638-CV, 2004 WL 86136, at *3 (Tex. App.--San Antonio 2004, no pet.) (mem. op.) (concluding the appellant's brief, which included only four sentences on the issue complained of, failed to offer any substantive analysis or substantive discussion of the evidence in support of appellant's contention); Bradt v. West, 892 S.W.2d 56, 69 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (recognizing the fact that a brief contains some legal authority is not alone sufficient to comprise "argument" necessary to keep from waiving an issue on appeal as both authorities and argument are required). By inadequately briefing these issues, we conclude Hernandez has waived her right to appellate review of these complaints. See Helm Cos. v. Shady Creek Housing Partners, Ltd., No. 01-05-00743-CV, 2007 WL 2130186, *7 (Tex. App.--Houston [1st Dist.] 2007, pet. filed). Conclusion Based on the foregoing, the judgment of the trial court is affirmed. Catherine Stone, Justice 1. Although Hernandez's motion is labeled as a "motion for new trial," the relief Hernandez requested in her motion is the reinstatement of her case. When a litigant, like Hernandez, files a motion for new trial seeking reinstatement of his or her cause following a dismissal for want of prosecution, the motion functions as a motion to reinstate. See City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.--Corpus Christi 1994, original proceeding). 2. See Tex. R. App. P. 33.1. Even if Hernandez had preserved her complaint, we would nonetheless reject Hernandez's contention on appeal. It was clear to Hernandez following the entry of the court's stay order that the court had made an obvious typographical error regarding the identity of the parties. The record shows that Hernandez filed "Plaintiff's Motion To Lift Stay And To Enter New Pretrial Guideline Order" following the court's stay order in which she admits that she is the party legally obligated to pay the court costs, not ISE. Given Hernandez's awareness of her obligation to pay the court costs despite the typographical error by the trial court, we fail to see why reinstatement of the underlying cause is warranted under these circumstances.