Joe E. Henderson v. Marilyn Kay Blalock

Affirmed and Opinion filed April 23, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00429-CV

JOE E. HENDERSON, Appellant
V.
MARILYN KAY BLALOCK, Appellee

On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 58699

OPINION

The trial court dismissed appellant Joe E. Henderson’s suit for want of
prosecution after it had been pending for over three years with virtually no activity
and Henderson failed to appear for trial. Henderson filed a motion to reinstate,
arguing that his counsel overlooked the trial setting. That motion was overruled by
operation of law. In this appeal, Henderson asserts that the trial court abused its
discretion and that the judgment is void. We affirm.
 BACKGROUND

In July 2010, Henderson filed a petition for declaratory and injunctive relief
against appellee Marilyn Kay Blalock, claiming adverse possession of certain real
property located in Brazoria County. According to the record, Henderson’s initial
actions to further the prosecution of his suit were limited to: (1) filing on July 19,
2010 the petition and a corresponding application for a temporary restraining
order; (2) requesting on July 19, 2010 service of the citation and temporary
restraining order on Blalock at a West Virginia address; and (3) filing a request on
August 2, 2010 to set the case on the jury trial docket, but without specifying any
docket date. The record indicates no further action by Henderson in furtherance of
the suit in over three years following the August 2010 filing.

On January 9, 2014, the trial court issued a notice of intent to dismiss due to
the lack of activity in the case, and set a show cause hearing for February 11, 2014.
The trial court retained the case at that time and set it for trial in May 2014.
According to the record, Henderson’s actions following issuance of the trial court’s
notice of intent to dismiss consisted of: (1) requesting on February 11, 2014
service of the petition on Blalock; (2) filing a motion on February 14, 2014 to
substitute Henderson’s counsel; and (3) filing a motion on April 1, 2014 for service
of process on Blalock by publication.

On May 6, 2014, the trial court signed an order that reads:

The court retained the above named cause on the docket February 14,
2014 and set it for trial on May 5, 2014. The parties did not show for
trial.
The action was not accomplished by the required date. The case is
therefore dismissed for want of prosecution.

The trial court sent out notice of its order dismissing the case for want of
prosecution the following day.
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 Then, on May 9, 2014, Henderson’s counsel filed with the trial court a
verified motion to reinstate the case. Counsel acknowledged in the motion that
“Plaintiff’s Attorney did not appear in court on the date this case was set for trial.”
The sole explanation counsel provided in the motion for this failure to appear was
that “Plaintiff’s Attorney overlooked the trial setting.” Blalock filed an opposition
to the motion to reinstate. The trial court did not sign a written order on
Henderson’s motion to reinstate. Therefore, the motion was overruled by operation
of law. See Tex. R. Civ. P. 165a(3).

ANALYSIS

The Trial Court Did Not Abuse Its Discretion in Dismissing the Case for Want of
Prosecution.
In his second of three issues, Henderson challenges the trial court’s
dismissal of the case for want of prosecution. This court will reverse a trial court’s
dismissal for want of prosecution only if the court clearly abused its discretion.
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial court’s
power to dismiss a case for want of prosecution stems from two sources: (1) Texas
Rule of Civil Procedure 165a; and (2) the trial court’s inherent authority to manage
its own docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999); Gantt v. Getz, No. 14-10-00003-CV, 2011 WL 1849085, *4 (Tex.
App.—Houston [14th Dist.] May 12, 2011, no pet.) (mem. op.). Under Rule 165a,
a court may dismiss a case due to the “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), or when a case is “not disposed of within time standards promulgated
by the Supreme Court under its Administrative Rules,” Tex. R. Civ. P. 165a(2).1

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“Rule 6 of the Rules of Judicial Administration provides that civil jury cases must be
disposed of within 18 months from the appearance date.” Villarreal, 994 S.W.2d at 630 n.3; see
(continued)
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See also Villarreal, 994 S.W.2d at 630; Gantt, 2011 WL 1849085 at *4. “In
addition, under the common law, the trial court has the inherent power to dismiss
independently of the rules of procedure when a plaintiff fails to prosecute its case
with due diligence.” Southwell Invs. Group, III v. Indwell Res., Inc., No. 14-08-
00695-CV, 2010 WL 1379987, *1 (Tex. App.—Houston [14th Dist.] Apr. 8, 2010,
no pet.) (mem. op.); see also Villarreal, 994 S.W.2d at 630.

The trial court did not specify in its dismissal order whether it was
dismissing the case under one of the provisions of Rule 165a or the court’s
inherent authority. Henderson acknowledges that the court’s order was “silent as to
the basis for dismissing the case,”2 but Henderson later states that the only
applicable basis for dismissing this case is the court’s inherent authority. “If the
trial court does not enter findings of fact or conclusions of law, and the trial court’s
order dismissing a case for want of prosecution does not specify a particular reason
for the dismissal,” as is true here, “we will affirm if any proper ground supports the
dismissal.” Gantt, 2011 WL 1849085 at *4. Therefore, it is not necessary for us to
evaluate whether the trial court’s order was proper under Rule 165a, because we
can affirm the dismissal based on an analysis limited to the court’s inherent
authority. See id.; Southwell, 2010 WL 1379987 at *1.

A trial court generally will consider four factors in deciding whether to
dismiss a case for want of prosecution: (1) the length of time the case has been on

also Tex. R. Jud. Admin. 6.1(b)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app.
(West 2013).
2
Although the trial court noted the parties’ failure to appear for trial on May 5, 2014 in
the dismissal order, the court did not explicitly ground its order on Rule 165a(1). Also, the
court’s prior notice of intent to dismiss issued on January 9, 2014 referenced the lack of activity
in the case in the preceding three years, which raises the possibility that the dismissal order may
have been based on exceeding the supreme court’s time standards or the trial court’s inherent
authority to manage its docket.

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file; (2) the extent of activity in the case; (3) whether a trial setting was requested;
and (4) the existence of reasonable excuses for the delay. Gantt, 2011 WL 1849085
at *6; Southwell, 2010 WL 1379987 at *2. No single factor is dispositve. Jimenez
v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.]
1999, no pet.). The central issue is whether the plaintiff exercised due diligence in
prosecuting the case, and we review the entire record to determine whether the trial
court abused its discretion. Gantt, 2011 WL 1849085 at *6; Southwell, 2010 WL
1379987 at *1–2. “When an unreasonable delay in the prosecution of a case
occurs, it is presumed that the case has been abandoned.” Gantt, 2011 WL
1849085 at *6 (quoting See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex.
App.—Houston [14th Dist.] 1993, no writ)). “If the plaintiff does not provide a
sufficient explanation for delay, the presumption of abandonment is conclusive and
the court shall dismiss.” Gantt, 2011 WL 1849085 at *6; but cf. Jimenez, 999
S.W.2d at 129 (“In a dismissal for want of prosecution, the test is not
abandonment; the test is due diligence.”).

This case had been pending on the trial court’s docket with no apparent
activity for over three years and five months at the time trial court issued its notice
of intent to dismiss in January 2014. Even after the trial court issued its notice of
intent, the only activity by Henderson that is demonstrated in the record is the
substitution of counsel and some effort to perfect service of process on Blalock.
And Henderson did not appear on the trial date set by the court after it retained the
case. Henderson acknowledges in his brief the “uncommon length of time” the
case had been pending and that “little activity occurred” during its pendency. Yet
Henderson fails to provide any specific demonstration to refute the presumption of
abandonment or otherwise show due diligence in prosecuting the suit. Instead,
Henderson makes repeated assertions that he has announced ready for trial, but

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without support in the record and despite the failure to appear at trial. See Jimenez,
999 S.W.2d at 129 (“[A] belated trial setting or stated readiness to proceed to trial
does not conclusively establish diligence.”). Henderson also claims the trial court’s
judgment is based on “official mistake” relating to the court’s allegedly erroneous
determination regarding the need for service on Blalock, but the record does not
indicate any such determination or that the court’s dismissal order was predicated
on a lack of service on Blalock.

Considering the record as a whole—specifically, the excessive amount of
time the case had been pending before the trial court, the inactivity by Henderson
to further the prosecution (culminating in the failure to appear at trial), and the
absence of a sufficient explanation for the delay—we conclude the trial court did
not abuse its discretion in dismissing the case for want of prosecution pursuant to
the court’s inherent authority. See Southwell, 2010 WL 1379987 at *2 (affirming
dismissal where case was on file for more than three years with little activity); see
also Gantt, 2011 WL 1849085 at *6 (noting dismissals based on inactivity for
approximately 12 months have been upheld on appeal, and listing cases).
Accordingly, we overrule appellant’s second issue.

The Trial Court Did Not Abuse Its Discretion in Denying Henderson’s Motion to
Reinstate.
In his first issue, Henderson challenges the trial court’s denial of his motion
to reinstate. As with orders dismissing a case for want of prosecution, “[w]e review
a trial court’s denial of a motion to reinstate for abuse of discretion.” Keough v.
Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (op. on reh’g); see also Burnett v. Carnes Funeral Home, No. 14-12-
01159-CV, 2014 WL 2601567, *5 (Tex. App.—Houston [14th Dist.] June 10,
2014, no pet.) (mem. op.).

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 As noted in the preceding section, the trial court did not specify in its order
whether it was dismissing the case pursuant to one of the grounds in Texas Rule of
Civil Procedure 165a or pursuant to the court’s inherent authority. “If an order
dismissing a case does not state the grounds on which it was granted, the party
seeking reinstatement must negate all possible grounds for dismissal.” Keough,
204 S.W.3d at 3. In his motion to reinstate, Henderson argued that “Plaintiff’s
Attorney overlooked the trial setting.” This argument appears to have addressed
only one of the possible grounds for the trial court’s dismissal order. See Tex. R.
Civ. P. 165a(1) (providing a case may be dismissed “on failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had
notice”), 165a(3) (providing the 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”). Henderson’s motion to reinstate did
not address the long pendency of the case or Henderson’s lack of activity to further
prosecution. Henderson’s failure to address the other possible grounds for the trial
court’s order is itself sufficient reason for us to conclude that the trial court did not
abuse its discretion in denying the motion to reinstate. Keough, 204 S.W.3d at 4.

Even were we to assume that the trial court dismissed the case solely
pursuant to Rule 165a(1) due to Henderson’s failure to appear at the May 5, 2014
trial, we could not conclude that the court abused its discretion in denying
Henderson’s motion to reinstate. The standard for reinstatement in Rule 165a(3)
“is essentially the same as that for setting aside a default judgment.” Smith v.
Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). A
party must provide some proof of an adequate justification for the failure that
negates intent or conscious indifference. Id. Here, Henderson’s only justification is

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a statement in the motion to reinstate that “Plaintiff’s Attorney overlooked the trial
setting.” Henderson provided no evidence elaborating as to why counsel
overlooked the trial setting or other contextual information, such as counsel’s
business practices relating to court scheduling or circumstances on the day of trial.
Cf. Rava Square Homeowners Ass’n v. Swan, No. 14-07-00521-CV, 2008 WL
4390437, *2–3 (Tex. App.—Houston [14th Dist.] Sept. 30, 2008, no pet.) (mem.
op.) (noting motions for reinstatement were supported by affidavits that case was
not docketed on counsel’s trial schedule or that counsel did not have notice). One
may overlook a trial date due to an accident or mistake, but one also may overlook
a trial date due to conscious indifference. Therefore, the statement that counsel
“overlooked the trial setting” is not, by itself, sufficient to provide an adequate
justification. Cf. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) (“We do
not hold that forgetfulness alone is sufficient . . . .”); but cf. id. (“Generally, ‘some
excuse, although not necessarily a good one, will suffice to show that a defendant’s
failure to file an answer was not because the defendant did not care.’”) (quoting In
re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam)).

In his brief before this court, Henderson expands on his attempted
justification, providing a list of purported facts that supposedly negate a finding of
intent of conscious indifference—including, for example, that Henderson’s former
attorney became ill, that counsel was mistaken as to how the trial court handled its
trial docket, and that the failure to appear at trial was a clerical mistake. But
Henderson’s expanded argument does not demonstrate an abuse of discretion by
the trial court. First of all, these arguments were not raised in the motion to
reinstate, and therefore are waived on appeal. Tex. R. App. P. 33.1(a)(1); see also
Burnett, 2014 WL 2601567 at *6; Templos v. Ford Motor Co., No. 01-12-00636-
CV, 2013 WL 2948316, *4 (Tex. App.—Houston [1st Dist.] June 11, 2013, no

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pet.) (mem. op.). Second, even if these arguments had been preserved, there is no
evidence in the record to substantiate Henderson’s assertion that his failure was not
intentional or due to conscious indifference. See Keough, 201 S.W.3d at 3–4 & n.1
(stating “[t]he movant for reinstatement bears the burden to produce evidence
supporting the motion,” and that “[i]n the absence of evidence, a trial court does
not abuse its discretion by denying a motion to reinstate,” and noting a court need
not accept the movant’s unsupported conclusory statements); see also Templos,
2013 WL 2948316 at *4 n.1 (noting that appellant had not provided record
demonstrating that reinstatement was required).

In sum, Henderson’s motion to reinstate did not address all possible grounds
for the trial court’s dismissal order, and with respect to the one ground Henderson
did address, his explanation was insufficient. Therefore, the trial court did not
abuse its discretion in denying Henderson’s motion to reinstate. Accordingly, we
overrule appellant’s first issue.

Henderson’s Jurisdictional Argument is Misplaced.

In the context of his third issue, Henderson asserts that the trial court’s
dismissal order is void because the court did not have jurisdiction over Blalock.
Henderson incorrectly relies on cases involving a grant of default judgment against
a defendant where service has not been perfected. See, e.g., Wilson v. Dunn, 800
S.W.2d 833, 837 (Tex. 1990) (holding that “default judgment is improper against a
defendant who has not been served in strict compliance with law”). The trial court
here did not grant judgment against Blalock (the defendant below), it dismissed
Henderson’s suit for want of prosecution. Even assuming that the trial court never
acquired personal jurisdiction over Blalock due to Henderson’s failure to perfect
service, Henderson does not explain how that deprives the trial court of authority
to dismiss the suit for want of prosecution. Cf. In re Perry, No. 01-10-01072-CV,

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2013 WL 1483389, *3 (Tex. App.—Houston [1st Dist.] Apr. 9, 2013, pet. denied)
(mem. op.) (affirming dismissal for want of prosecution where plaintiff never
served citation on named defendants). Therefore, we overrule appellant’s third
issue.3

CONCLUSION

Having overruled each of appellant’s issues, we affirm the judgment of the
trial court.

/s/ Marc W. Brown
Justice

Panel consists of Justices Jamison, Busby, and Brown.

3
Because we conclude the trial court did not abuse its discretion in dismissing
Henderson’s suit for want of prosecution and denying Henderson’s motion to reinstate, it is not
necessary to address the remaining arguments in Henderson’s brief. See Tex. R. App. P. 47.1.

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