Autumn Bonifazi v. Gary Michael Birch

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________

NO. 09-16-00124-CV
____________________

AUTUMN BONIFAZI, Appellant

V.

GARY MICHAEL BIRCH, Appellee
__________________________________________________________________

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 10-03-02210-CV
__________________________________________________________________

MEMORANDUM OPINION

Appellant Autumn Bonifazi 1 complains that the trial court erred in

dismissing this case rather than reinstating it pursuant to this Court’s mandate. See

Bonifazi v. Birch, No. 09-14-00136-CV, 2015 WL 8476572, at *3 (Tex. App.—

Beaumont Dec. 10, 2015, no pet.) (mem. op.). We agree that the trial court was

obligated to enforce our mandate in cause number 09-14-00136-CV, but the record

shows that the trial court did so by providing Bonifazi with notice of its intent to

1
The record shows that Autumn Bonifazi is also known as Autumn Birch.
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dismiss her case and by conducting a hearing on her motion to retain, allowing

Bonifazi an opportunity to address the merits of the dismissal. Because the record

shows that the trial court did not abuse its discretion by denying Bonifazi’s motion

to retain and by dismissing her case, we overrule Bonifazi’s sole issue and affirm

the trial court’s order of dismissal.

Background

On December 10, 2015, this Court reversed the trial court’s order dismissing

Bonifazi’s petition to modify the parent-child relationship. Bonifazi did not receive

notice of the dismissal hearing prior to the trial court dismissing her case, and she

did not receive an oral hearing on her motion to reinstate. See id. at **2-3. Because

the trial court denied Bonifazi the opportunity to be heard on the merits of the trial

court’s dismissal of her case, this Court issued a mandate, reversing the trial

court’s order of dismissal and ordering that the cause be remanded to the trial court

for further proceedings consistent with this Court’s opinion.

The trial court conducted a hearing on March 11, 2016. During the hearing,

the trial court noted that on November 7, 2013, both parties were present with their

attorneys in front of Judge Robin and the parties put an agreement on the record.

Judge Robin accepted the agreement and reset the parties to appear on November

21, 2013, to enter the modification order that Bonifazi’s attorney agreed to prepare.

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The record shows that Bonifazi’s attorney admitted that he failed to appear on

November 21 to submit a modification order for the Court’s signature. Although

Bonifazi’s attorney claimed that he did not have notice of the November 21

hearing, the transcript from the November 7 hearing shows that Judge Robin told

Bonifazi and her attorney that the modification order was set for entry on

November 21 at 9:00 a.m., and that “[i]f everybody signs off, you don’t have to be

here. If you don’t sign off and there are issues about drafting, then y’all need to be

here on the 21st.” Bonifazi’s attorney represented to the trial court that he had “no

recollection of that appearance and certainly would not have represented anything

to the contrary to this court or any other court had I recalled that.”

Judge Robin then reset the hearing to December 2. Bonifazi’s attorney also

failed to appear at this hearing, and represented to the trial court that he did not

think he needed to appear since he had signed the enforcement order which had

already been approved. The trial judge stated that Bonifazi’s attorney’s explanation

“certainly suggests, in my mind, to the Court that you didn’t have any interest in

getting any other orders signed.” Again, Bonifazi’s attorney claimed to “have no

recollection of that notice of entry or I certainly would have been here and that’s

obviously my error.” The trial court set Bonifazi’s case for entry or dismissal on

December 9, and when Bonifazi and her attorney failed to appear for the third

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time, the trial court dismissed her case. Bonifazi’s attorney filed a motion to

reinstate on January 7, 2014. The trial court’s file indicates that the court’s

coordinator contacted Bonifazi’s attorney and left a voicemail stating that the

motion to reinstate was set for a hearing on February 6, 2014; however, Bonifazi’s

attorney claimed that he did not receive the message and had no notice of the

hearing. Bonifazi’s attorney admitted that he made no attempt to get a hearing date

after he filed his motion to reinstate. After hearing Bonifazi’s attorney’s

explanation, the court dismissed Bonifazi’s case for want of prosecution without

prejudice.

The trial court issued findings of fact and conclusions of law. The trial court

found that Bonifazi’s attorney was supposed to draft a modification order and that

Bonifazi and her attorney were instructed that if everyone had not signed off on the

proposed order, they were to appear on November 21. The trial court found that no

orders were submitted to the Court on November 21. The trial court further found

that no proposed order in the modification case was submitted to the Court on

December 2 or December 9. The trial court concluded that Bonifazi did not

prosecute her case with due diligence and that there were no excuses for the failure

of Bonifazi or her attorney to submit a proposed order signed by all attorneys or

parties pursuant to the agreement reached on November 7. Bonifazi appeals the

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trial court’s order dismissing her case for want of prosecution, complaining that the

trial court erred by denying her motion to reinstate.

Analysis

We review a trial court’s ruling on a motion to reinstate following dismissal

for want of prosecution for abuse of discretion. See Smith v. Babcock & Wilcox

Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Welborn v.

Ferrell Enters., Inc., 376 S.W.3d 902, 906 (Tex. App.—Dallas 2012, no pet.).

When reviewing the trial court’s decision on a motion to reinstate, we consider the

entire record, including the findings of fact and conclusions of law and the

procedural history of the case as reflected in the record. Preslar v. Garcia, No. 03-

13-00449-CV, 2014 WL 824201, at *1 (Tex. App.—Austin Feb. 26, 2014, no pet.)

(mem. op.).

A trial court may dismiss for want of prosecution pursuant to Rule 165a of

the Texas Rules of Civil Procedure for two reasons: (1) failure to appear, or (2)

failure to comply with the Supreme Court time standards. See Tex. R. Civ. P.

165a(1), (2). Additionally, subdivision four of Rule 165a provides that the trial

court has inherent power to dismiss a case for want of prosecution. See Villarreal

v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“[T]he common

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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.”); see also Tex. R. Civ. P. 165a(4). Before a trial court may dismiss a

case for want of prosecution under either Rule 165a or its inherent authority, it

must provide a party with notice and an opportunity to be heard. Villarreal, 994

S.W.2d at 630.

Due process concerns are satisfied by providing a party with the order of

dismissal and then subsequently giving the party an opportunity to address the

merits of the dismissal at a hearing. Durbin v. Muchow, 309 S.W.3d 758, 761 (Tex.

App.—Beaumont 2010, no pet.). We note that the trial court’s failure to comply

with the notice and hearings requirements of Rule 165a the first time it dismissed

Bonifazi’s case did not require the trial court to reinstate the case. See Franklin v.

Sherman Indep. Sch. Dist., 53 S.W.3d 398, 404 (Tex. App.—Dallas 2001, pet.

denied). It only required that Bonifazi be afforded essentially the same hearing

after dismissal that she should have received prior to dismissal. See id. The record

shows that Bonifazi was provided with notice of the trial court’s intent to dismiss

and an opportunity to be heard. Therefore, the record supports the trial court’s

finding that “this Court reinstated the case and on February 23, 2016, issued a

Notice of Intent to Dismiss with a hearing set for March 11, 2016 at 9:00 a.m.”

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 The complaining party has the burden to bring forth a record to support its

contention of due diligence. See Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274

(Tex. App.—El Paso 2010, no pet.); Preslar, 2014 WL 824201, at *1. During the

hearing on Bonifazi’s motion to reinstate, Bonifazi’s attorney failed to provide a

reasonable explanation for his delay in presenting the proposed modification order

to the court. See Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied). The trial court emphasized that it had

made four different attempts to get Bonifazi’s agreed modification order entered,

and concluded that Bonifazi did not prosecute her case with due diligence and that

there were no excuses for the failure of Bonifazi or her attorney to submit a

proposed order signed by all attorneys or parties pursuant to the Rule 11 agreement

reached on November 7.

While Bonifazi contends in her motion to retain that the trial court’s file

reflects that she filed a proposed modification order on January 17, 2014, and on

March 4, 2016, the clerk’s record does not support Bonifazi’s contention. The

clerk’s record contains a computer printout from the trial court’s management

system, and there are no comments on those dates indicating that Bonifazi filed a

proposed modification order. Additionally, the record does not contain a copy of

any proposed modification order. As stated above, it was Bonifazi’s burden to

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bring forth a record to support her contention of due diligence, and the failure to

submit a proposed modification order to the trial court for entry, despite the trial

court providing several opportunities to do so, reflects a lack of diligence in

prosecuting her case. See Olivas, 323 S.W.3d at 274; Preslar, 2014 WL 824201, at

*1.

Given the history of the case, Bonifazi’s failure to submit a proposed

modification order to the trial judge for entry, and her failure to provide a

reasonable explanation for her delay in presenting a proposed order, we hold that

Bonifazi has failed to produce evidence showing that she diligently prosecuted her

case. See Welborn, 376 S.W.3d at 907-08. In addition, we conclude that the trial

court acted in accordance with guiding rules and principles in reaching its decision.

See id. at 906. We further conclude that the trial court did not abuse its discretion

in dismissing Bonifazi’s case under its inherent authority to dismiss a case not

prosecuted with due diligence. See Villarreal, 994 S.W.2d at 630. We overrule

Bonifazi’s sole issue and affirm the trial court’s order dismissing Bonifazi’s case

for want of prosecution.

AFFIRMED.

______________________________
STEVE McKEITHEN
Chief Justice

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Submitted on September 6, 2016
Opinion Delivered December 15, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.

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