Rampart Capital Corp. v. Maguire

OPINION

GREEN, Justice.

Rampart Capital Corporation (Rampart) sued Jack and Margaret Maguire to collect a promissory note. Rampart appeals the trial court's order dismissing its suit for want of prosecution and the trial court’s subsequent order denying reinstatement. Finding no error, we affirm.

Background

Rampart sued the Maguires in September 1994, and it sent them discovery in February 1995. The trial court sent a dismissal notice in May 1996, but Rampart did not take any additional action until August when it obtained a trial setting. Nonetheless, the Ma-guires moved to dismiss the suit for want of *197prosecution. The trial court denied the motion; but, on its own motion, it set the case for a second dismissal hearing. After the hearing, the trial court dismissed the suit for “good and sufficient reason.”

Rampart moved to reinstate because (1) it had requested a trial setting; and (2) it had diligently prosecuted the Maguire ease by initiating a separate suit to establish title to the Maguire note. The verified motion showed Rampart had filed the endorsement suit in September 1995 and had received a favorable summary judgment in October 1996. The trial court denied the motion to reinstate and Rampart appealed.

Dismissal

In its first three points of error, Rampart challenges the trial court’s order dismissing its suit for want of prosecution. During oral argument, Rampart conceded that, in the absence of a reporter’s record, we could not find error. See Goff v. Branch, 821 S.W.2d 782, 738 (Tex.App.—San Antonio 1991, writ denied); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 843-44 (Tex.App.—San Antonio 1989, writ denied). We agree and overrule Rampart’s first three points of error.

Reinstatement

1. Standard and Scope of Review

In its remaining points of error, Rampart contends the trial court erred in denying its motion to reinstate because it obtained a trial setting, complied with state litigation guidelines, and prosecuted its suit diligently. In responding to these points, the Maguires complain Rampart improperly addresses Rule 165a. We disagree with the Maguires’ limitation of the issues on appeal.

A trial court has inherent authority to dismiss a case that has not been prosecuted with due diligence. Ozuna v. Southwest Bio-Clinical Labs., 766 S.W.2d 900, 901 (Tex.App.—San Antonio 1989, writ denied). Additionally, Rule 165a expressly empowers a trial court to dismiss a case when (1) a party fails to appear at a trial or hearing; or (2) a case is not disposed of within the Texas Supreme Court’s time standards. Tex.R. Crv. P. 165a(1-2); Ozuna, 766 S.W.2d at 901.

Although we review the trial court’s ruling on a motion to reinstate with the abuse of discretion standard, Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex.App.—San Antonio 1996, writ denied), the scope of our review depends on whether the dismissal order specifies the basis for dismissal. Shook v. Gilmore & Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex.App.—Waco 1997, pet. denied); City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.App.—Houston [1st Dist] 1992, no writ). If the order is silent, the plaintiff seeking reinstatement must negate all possible grounds for dismissal, including whether the dismissal was prompted by a lack of due diligence in prosecuting the suit, failure to appear at trial or a hearing, or violation of the Supreme Court’s time standards. See Shook, 951 S.W.2d at 296. If, however, the dismissal order lists a specific ground, the plaintiff seeking reinstatement must negate only the reason stated in the dismissal order. See id.

In this case, the dismissal order does not specify a reason for dismissal. Thus, Rampart must negate all possible grounds for dismissal, whether based on inherent or express authority. It therefore did not improperly address Rule 165a. However, we decline to discuss whether Rampart failed to appear or comply with Supreme Court guidelines because its lack of diligence is sufficient to affirm the trial court’s order denying reinstatement.

2. Due Diligence

Rampart argues that its trial setting request removed the trial court’s discretion to dismiss its suit. It also argues that activity in a related matter demonstrates its diligence in prosecuting this suit. The Maguries maintain that neither fact is dispositive. We agree with the Maguires.

In resolving the question of due diligence, the court may consider the entire history of the litigation, including the existence of a belated trial setting, periods of inactivity, passage of time, and reasons for lack of attention. Ozuna, 766 S.W.2d at 902. *198No single factor is dispositive, including the request for a trial setting. Bard, 767 S.W.2d at 843; Ozuna, 766 S.W.2d at 902. Because balancing these factors is a factual issue, we may not substitute our judgment for that of the trial court. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

In this case, Rampart did not request a trial setting until two months after it received notice of the dismissal hearing. Although Rampart actively prosecuted the endorsement suit, it admitted sixteen months of inactivity in the Maguire suit. Given these facts, we cannot conclude the trial court abused its discretion. Cf. MacGregor v. Rich, 941 S.W.2d 74, 75-76 (Tex.1997) (finding no abuse of discretion in dismissing suit where plaintiffs failed to notify defendants of separate bankruptcy proceedings); Ozuna, 766 S.W.2d at 902 (finding no abuse of discretion in dismissing suit where, during 19-month delay, plaintiff pursued separate grievance). Accordingly, we overrule Rampart’s fourth and fifth points of error regarding its due diligence. We decline to address those portions of the points of error regarding compliance with Rule 165a.

Sanction

In its sixth point of error, Rampart maintains the dismissal was an improper sanction under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). Rampart apparently relies on TransAmerican because, in Goff, we referred to TransAmeri-can as “instructive ... since a dismissal for want of prosecution, by any name, results in a ‘death penalty.’ ” Goff, 821 S.W.2d at 738. Recently, however, the Supreme Court declined to address whether TransAmerican applied outside the context of discovery sanctions. MacGregor, 941 S.W.2d at 75. Instead, the Supreme Court held that, when the trial court’s dismissal order appears to be either a sanction or dismissal for want of prosecution, the court of appeals should construe it as a dismissal for want of prosecution. Id. at 76. We therefore decline to apply TransAmerican in this case, and we overrule Rampart’s sixth point of error.

Conclusion

Having overruled all points of error, we affirm the trial court’s orders dismissing Rampart’s suit and declining to reinstate it.