Lucila Cruz v. Owens Handle Company, Inc.--Appeal from 359th District Court of Montgomery County

MEMORANDUM OPINION

No. 04-02-00291-CV
Lucila CRUZ,
Appellant
v.
OWENS HANDLE COMPANY, INC.,
Appellee
From the 359th Judicial District Court, Montgomery County, Texas
Trial Court No. 99-04-01956-CV
Honorable Jim Keeshan, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 8, 2003

AFFIRMED

Lucila Cruz ("Cruz") appeals the trial court's order dismissing the underlying cause for want of prosecution. In two points of error, Cruz contends that the trial court erred in dismissing her case and in failing to hold a hearing on her motion to reinstate. We overrule Cruz's contentions and affirm the trial court's order.

Background

Cruz filed her original petition against Owens Handle Company, Inc. ("Owens") on April 1, 1999. Owens filed its answer on April 30, 1999. On November 29, 2001, Owens filed a motion to dismiss for want of prosecution which was set for hearing on December 11, 2001. The trial court initially granted the motion but withdrew its order the same day because court staff had not sent notice of the hearing. The trial court's order stated that the case was set for a show cause hearing on February 14, 2002, "as to why the case should not be dismissed." The trial court's order suggested that Cruz set the matter for trial and stated that the case would be dismissed if no significant activity was taken to dispose of the case.

On December 13, 2001, Cruz filed a response in opposition to the motion to dismiss and a request for a preferential trial setting. Cruz attached three letters to her response: (1) a letter dated July 17, 2000 sent by Owens' attorney to Cruz's attorney containing a proposed settlement offer; (2) a letter dated July 31, 2000, in which Cruz's attorney responded with a counter-offer; and (3) a letter dated November 17, 2000, in which Cruz's attorney requests a response to Cruz's counter-offer.

On December 17, 2001, the court coordinator faxed Cruz's attorney a form request for trial setting. On January 2, 2002, Cruz sent a letter to the court coordinator requesting a trial setting, and Cruz paid the jury fee on January 18, 2002. On January 25, 2002, Cruz filed the completed form request for trial setting. On January 28, 2002, the trial court sent notice that the case was set for pre-trial conference on the court's own motion on February 25, 2002, and was set for jury trial on March 25, 2002.

On February 14, 2002, the trial court entered an order dismissing the underlying cause. The order stated that Cruz failed to appear at the hearing.

On March 18, 2002, Cruz filed a motion to reinstate. Although Cruz's attorney signed a verification that was attached to the motion, the verification was not notarized. The trial court entered an order denying the motion to reinstate on March 19, 2002.

Standard of Review

A trial court's ruling on a motion to dismiss and the overruling of a motion to reinstate are reviewed under an abuse of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 55 (Tex. App.--San Antonio 2002, pet. denied). The question is whether the trial court acted without reference to any guiding rules and principles, or whether the act was arbitrary or unreasonable. See MacGregor, 941 S.W.2d at 76; Rainbow Home Health, Inc., 76 S.W.3d at 56.

Dismissal

A trial court may dismiss a case for any of the following reasons: (1) when a party fails to appear at a hearing or trial pursuant to rule 165a(1) of the Texas Rules of Civil Procedure; (2) when the case has not been disposed of within the Supreme Court's time standard pursuant to rule 165a(2) of the Texas Rules of Civil Procedure; or (3) by the trial court's inherent power to dismiss when the case has not been prosecuted with due diligence. Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999); Rainbow Home Health, Inc., 76 S.W.3d at 57. Cruz contends that the trial court abused its discretion in dismissing her case because the trial court's notice setting the case for trial constituted a determination by the trial court to maintain the case on the docket.

Whether a plaintiff has prosecuted a case with diligence is generally a question of fact. MacGregor, 941 S.W.2d at 75-76; Rainbow Home Health, Inc., 76 S.W.3d at 56. In determining whether due diligence exists, the trial court may consider the entire history of the case. Rainbow Home Health, Inc., 76 S.W.3d at 56. The traditional factors that may be considered are: (1) the length of time the case was on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuse for delay. Id. No single factor is dispositive, and a belated trial setting does not conclusively establish diligence. Id.; Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.--San Antonio 1999, no pet.).

The underlying case was on file for almost three years. Other than some initial discovery in 1999 and a few settlement offers during July of 2000, no activity was taken with regard to the case. A trial setting was requested only after the suggestion of the trial court in its dismissal notice. In her response to the dismissal notice, Cruz cited on-going settlement negotiations as her excuse for the delay, but the last action taken with regard to settlement was a letter in November of 2000 in which Cruz requested a response to the counter-offer she sent in July of 2000. In addition to the settlement activity ceasing almost eighteen months before the dismissal hearing, settlement activity does not excuse want of diligent prosecution. F.D.I.C. v. Kendrick, 897 S.W.2d 476, 481 (Tex. App.--Amarillo 1995, no writ); Texas Society, Daughters of American Revolution, Inc. v. Estate of Hubbard, 768 S.W.2d 858, 860-61 (Tex. App.--Texarkana 1989, no writ). Cruz seeks to rely on the trial court's setting of a trial date; however, a belated trial setting does not establish diligence. Rainbow Home Health, Inc., 76 S.W.3d at 56; Scoville, 9 S.W.3d at 204. Even assuming Cruz's attorney misunderstood the effect of the trial setting on the dismissal hearing, Cruz's attorney should have taken further action to clarify whether the trial court intended to proceed with the dismissal hearing. The trial court did not abuse its discretion in ordering the dismissal of the case.

Reinstatement

Cruz contends that she was entitled to a hearing on her motion to reinstate. Owens responds that the trial court was not required to conduct a hearing because the motion to reinstate was not properly verified. We agree with Owens. In order to be verified, the motion to reinstate had to be acknowledged before a notary public. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex. App.--San Antonio 1999, no pet.). A trial court does not have the discretion to act on an unverified motion to reinstate. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990); Christopher v. Fuerst, 709 S.W.2d 266, 268 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). Accordingly, the trial court is not required to hold a hearing on an unverified motion.

Conclusion

The trial court's order is affirmed.

Catherine Stone, Justice

PUBLISH