CROWN ASSET MANAGEMENT, LLC, Appellant v. BRIDGETT L. BURNETT, Appellee

AFFIRM; Opinion issued August 8, 2008
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01186-CV
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CROWN ASSET MANAGEMENT, LLC, Appellant
V.
BRIDGETT L. BURNETT, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-06-18705-A
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MEMORANDUM OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        Appellant Crown Asset Management, LLC sued appellee Bridgett L. Burnett for breach of contract and moved for a default judgment after Burnett failed to answer. The trial judge refused to sign Crown's proposed default judgment and later dismissed the case for want of prosecution. Crown timely perfected its appeal. We affirm.
I. Background
        In December 2006, Crown sued Burnett for breach of contract, alleging that Burnett had defaulted on a car loan and still owed roughly $8,000 after the car was repossessed and sold. Our record shows that Burnett was served with process in January 2007, but she did not answer or otherwise appear. Crown filed a motion for default judgment in February 2007 and then filed an amended motion for default judgment in June 2007.
        The trial court sent Crown a letter dated July 10, 2007 advising that the case had been placed on the court's dismissal docket and that the case would be dismissed on August 10, 2007 at 9:00 a.m. unless Crown “proved up a default judgment on or prior to that date.” This letter did not acknowledge that Crown already had two motions for default judgment on file. The trial court then sent Crown a letter dated July 12, 2007 advising that it was returning Crown's proposed default judgment unsigned because of certain deficiencies in Crown's motion:
 
The enclosed Default Judgment is being returned to you unsigned because of one or more of the following reasons concerning the Motion for Default Judgment on
        . . .
 
 
.
 
Damages cannot be accurately calculated, no written instrument attached to petition;
 
        . . .
 
         .
 
No evidence of a systematic record kept and supported by an affidavit
 
 
 
.
 
Other: Insufft [sic] evidence of installment payments outstanding - date of breach - evidence of claims not outside of statute of limitations
 
 
 
Please understand that it is NOT NECESSARY to re-file all the paperwork associated with the Motion for Default Judgment, only the items identified above as necessary before a Default Judgment can be signed.
 
The boldface passage is handwritten; the remainder is typed. Our record does not contain the proposed default judgment. The trial court did not mention Crown's amended motion for default judgment in that letter.
        On August 3, 2007, Crown filed a motion for continuance. On August 13, 2007, the trial court signed an order dismissing the case for two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER)” and (2) want of prosecution.         Crown timely perfected its appeal and raises two issues in its brief: (1) the trial court erred in dismissing the case for want of prosecution and (2) the trial court erred in denying Crown's motions for default judgment. Burnett has not filed a brief.
II. Analysis
A.
 
Dismissal for want of prosecution
 
        In its first issue, Crown argues that the trial court erred by dismissing its case for want of prosecution.
         1.
 
Preliminary matters
 
        We note at the outset that our record contains no reporter's record. This can be significant because without a reporter's record we cannot reverse a judgment based on arguments that depend on the evidence admitted at a hearing. Farahmand v. Thang Do, 153 S.W.3d 601, 602 (Tex. App.-Dallas 2004, pet. denied). In this case, it is difficult to discern whether the trial court actually held a hearing concerning the dismissal of Crown's case. Although the trial court's dismissal notice recited that the case “is set for dismissal, pursuant to Texas Rule of Civil Procedure 165a, on August 10, 2007 at 9:00 a.m.,” the court's dismissal order was actually signed on August 13 and does not recite that a hearing was held. The trial judge's docket sheet is likewise unclear. Under the heading “Settings,” the notation “8-10-07 DWOP” appears, but so does a notation for the court's earlier notice letter. When Crown perfected its appeal, it requested a reporter's record for “any hearing in the above- referenced cause.” The court reporter submitted a letter to us advising that “there was no hearing on the record; therefore, there is no Reporter's Record to produce.” Crown says nothing in its brief about whether a hearing was held. Given the silence of the record, we will presume that no hearing was held or, if one was held, that no evidence was taken at that hearing. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 781-84 (Tex. 2005) (courts will presume that hearings are nonevidentiary absent a specific indication that evidence was presented beyond the evidence filed in the clerk's record).
         2.
 
Standard of review
 
        We review a dismissal for want of prosecution under the abuse-of-discretion standard. Vann v. Brown, 244 S.W.3d 612, 614 (Tex. App.-Dallas 2008, no pet.). Under that standard, the question is whether the trial judge acted in an arbitrary or unreasonable manner without reference to guiding rules and principles. Id.
         3.
 
Merits of the dismissal
 
        Although the trial court mentioned Rule 165a in its dismissal order, it appears that it actually relied on its inherent power to dismiss for want of prosecution. Rule 165a authorizes dismissal in only two circumstances: (1) when a party seeking affirmative relief fails to appear for a hearing or trial of which it had notice or (2) when a case is not disposed of within the time standards promulgated by the supreme court. Tex. R. Civ. P. 165a(1), (2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). “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. We analyze this case under the rules governing the court's inherent power to dismiss.
        The trial court may dismiss a case for want of prosecution under its inherent power to control its docket if the case has not been prosecuted with diligence. WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied). Lack of diligence need not amount to abandonment for a case to be properly dismissed. Id. The trial court may consider the entire history of the case, including the length of time it has been on file, the extent of activity in the case, and the existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.
        The first factor is the age of the case. Crown filed the suit on December 28, 2006, and the trial court dismissed it on August 13, 2007. It is not unreasonable to expect a diligent plaintiff to obtain a no-answer default judgment within eight months of filing suit. The age of the case does not weigh heavily, if at all, against the trial judge's decision.
        The second factor is the extent of activity in the case. Crown filed suit on December 28, 2006, and the record reflects service on Burnett on January 24, 2007. Crown filed its first motion for default judgment at the end of February and its amended motion for default judgment in June. Crown was put on notice that the trial court considered at least its initial motion for default judgment to be deficient in its proof of damages. Upon review of that motion, we agree. The only affidavit filed by Crown to prove up its damages fails to state that the affiant has personal knowledge of all facts stated therein or demonstrate how the affiant gained personal knowledge of those facts. The affidavit also does not have sufficient information from which to calculate damages. These omissions make the affidavit defective. See Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811 (Tex. App.-Waco 2007, no pet.) (trial court properly rejected prove-up affidavit that failed to show how affiant acquired personal knowledge of facts stated therein). The affidavit Crown filed in support of its amended motion for default judgment suffered from the same defects. We note too that the record reflects no efforts by Crown to obtain a hearing on any of the three motions it filed herein. Thus, although Crown did engage in some activity in prosecuting its case, the trial court could reasonably consider that activity insufficient under all the facts and circumstances.
        The third factor is the existence of reasonable excuses for the delay. We do not consider Crown's motion for continuance because there is no indication that Crown set it for hearing or otherwise brought it to the trial judge's attention. See Risner v. McDonald's Corp., 18 S.W.3d 903, 909 (Tex. App.-Beaumont 2000, pet. denied) (“A court is not required to consider a motion that is not called to its attention.”); Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex. App.-Waco 1987, writ denied) (same). Thus, Crown presented no excuses to the trial court at all. This factor supports the trial court's decision.         Considering the totality of the circumstances, we conclude that the trial court did not abuse its discretion by dismissing Crown's case. We overrule Crown's first issue on appeal.
B.
 
Motion for default judgment
 
        In its second issue, Crown argues that the trial court erred by failing to grant its motions for default judgment. The denial of a motion for default judgment is appealable after a dismissal for want of prosecution. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston [14th Dist.] 2005, no pet.); see also Sherman Acquisition II LP, 229 S.W.3d at 807 (holding that denial of motion for default judgment could be reviewed after final judgment signed after bench trial). We conclude, however, that this issue is not preserved for review. By filing the amended motion for default judgment, Crown superseded its original motion for default judgment. See Retzlaff v. Tex. Dep't of Criminal Justice, 135 S.W.3d 731, 737-38 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (amended motion for summary judgment supersedes prior motion for summary judgment). Nothing in the record indicates Crown ever brought the amended motion for summary judgment to the trial court's attention for it to rule on. Nor did the trial court rule on it. Thus, no error has been preserved as to Crown's second issue. Tex. R. App. P. 33.1(a)(2)(A). In any event, even if Crown had preserved error, it was not error for the trial court to deny its motions for default judgment because the affidavit in support of those motions was fatally defective for the reasons previously stated. We overrule Crown's second issue on appeal.
III. Conclusion
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
071186F.P05