Thordson v. City of Houston

MAJORITY OPINION

This appeal is from an order dismissing for want of prosecution appellant's wrongful discharge suit against the city. In two points of error appellant contends the trial court erred in failing to set an oral hearing regarding his motion to reinstate. We affirm.

Appellant filed suit on May 23, 1988. So far as the record before us shows, there was absolutely no activity and apparently the case appeared on the dismissal for want of prosecution docket for April, 1990. On April 23, 1990, appellant filed a motion to retain the case on the docket, and the only allegations justifying retention were:

Plaintiff is presently in the process of obtaining substitute Counsel in this matter. Said substitution of Counsel will take place within two weeks. Discovery in the form of Interrogatories and Requests for Production of Documents will then be sent to the Defendant within the next three weeks after Counsel substitution. After the receipt of responses from the Defendants to the discovery request, Plaintiff will shortly be in a position to determine if depositions are necessary or if an immediate request for a trial setting can be made.

On April 30, 1990, the trial judge signed an order retaining the case on the docket. On May 7, 1990, appellant filed a motion to substitute counsel, which was granted by the trial court on May 9, 1990. So far as the record before us shows, there was absolutely no additional activity on the case, and on June 15, 1990, the trial court signed an order dismissing the cause for want of prosecution.

Appellant filed a Motion to Reinstate on June 27, 1990. The only grounds for reinstatement contained in this motion were:

Plaintiff would show that he was previously represented by the law firm of Childs and Associates, P.C. and that on or about May 9, 1990, the undersigned counsel was substituted as attorney of record for Plaintiff. Apparently the notice of Intent to Dismiss was sent to Plaintiff's former attorney and by the time that the Notice of Dismissal was received by the undersigned, the case had already been dismissed for want of prosecution. Plaintiff should not be penalized by the nonfeasance of his former attorney.

Plaintiff would show that he has retained new counsel and that he will continue to diligently prosecute his case. Plaintiff expects to have his case ready for trial by the end of the year and moves the court to reinstate his case and set it for trial on February 18, 1991.

In his first point of error, appellant contends that the trial judge abused his discretion in failing to set a hearing on his motion to reinstate, as provided for in TEX.R.CIV.P. 165a. A trial court may be reversed for abusing its discretion only when the court of appeals finds the lower court acted in an unreasonable or arbitrary manner. See Downer v.Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985). Stated somewhat differently, abuse of discretion occurs when a trial court acts "without reference to any guiding rules and principles." Id. at 241-42. A corollary principle is that the court of appeals may not reverse for abuse of discretion merely because it disagrees with a decision by the trial court, if that decision was within the trial court's discretionary authority. Id. at 242.

TEX.R.CIV.P. 165a, Subd. 3 requires the court to "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" (emphasis added). In Speck v. Ford MotorCompany, 709 S.W.2d 273 *Page 907 (Tex.App. — Houston [14th Dist.] 1986, no writ), we held that the words "the failure" must be construed in connection with the grounds for dismissal. See alsoStromberg Carlson Leasing Corp. v. Central Welding SupplyCo., 750 S.W.2d 862 (Tex.App. — Houston [14th Dist.] 1988, no writ). Since the motion to reinstate totally failed to address the due diligence used in the prosecution of the case itself or give reasons why the case should have been retained on the docket, it was fatally defective. Our research has failed to reveal a case where the issue of whether the trial court is obligated to hold a hearing on a defective motion for reinstatement has been determined. We can discern no reason, however, for a rule different than applies to motions for new trial. TEX.R.CIV.P. 327 requires the trial court to hear evidence on a motion for new trial where an allegation, supported by affidavit, of jury misconduct is made. The rule is well settled, however, that the opportunity for a hearing on a motion for new trial is not mandatory and the trial court does not abuse it's discretion in failing to conduct a hearing on a defective motion for new trial alleging jury misconduct when the allegations of the motion, even if proven, would be insufficient to show jury misconduct.Scott v. Scott, 774 S.W.2d 307 (Tex.App. — Austin 1989, no writ); Clancy v. Zale Corp., 705 S.W.2d 820 (Tex.App. — Dallas 1986, writ ref'd n.r.e.);Jordan v. Ortho Pharmaceuticals, Inc., 696 S.W.2d 228 (Tex.App. — San Antonio 1985, writ ref'd n.r.e.);Caterpillar Tractor Co. v. Boyett, 674 S.W.2d 782 (Tex.App. — Corpus Christi 1984, no writ). Since motions to reinstate and motions for new trial are so nearly the same, we will apply the same rule. We cannot say that the trial judge was acting "without reference to any rules and principles" when he refused to set for hearing the fatally defective motion for reinstatement. If the trial court had held a hearing and the proof offered corresponded to the allegations of the motion to reinstate, it would have been an abuse of discretion for the trial court to have ordered reinstatement of the case. Appellant's first point is overruled.

In his second point of error appellant contends that the trial court's failure to hold an oral hearing on his motion to reinstate deprived him of due process of law. He argues that "fundamental due process demands notice and an opportunity to be heard." Appellant obviously received notice of the dismissal because he filed his motion to reinstate on the twelfth day following the signing of the dismissal order. Appellant had a chance to be heard on why the case should not have been dismissed. His failure to be accorded that hearing, however, was due to the inadequacy of the reasons assigned in the motion to reinstate. This did not deny him due process. Appellant's second point is overruled.

We affirm the judgment of the trial court.