CROWN ASSET MANAGEMENT, L.L.C., Appellant v. JANICE JACKSON, Appellee

REVERSE and REMAND and Opinion Filed October 22, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01337-CV
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CROWN ASSET MANAGEMENT, L.L.C., Appellant
V.
JANICE JACKSON, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-07-08098-A
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MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Crown Asset Management, L.L.C. appeals the trial court's order dismissing its case for want of prosecution. In two issues, Crown contends the trial court erred by denying its motion for default judgment and dismissing the case for want of prosecution. We reverse the trial court's dismissal order, order Crown's lawsuit reinstated, and remand for further proceedings.
Background
        On May 30, 2007, Crown filed suit against Janice Jackson for breach of contract. It alleged “funds were advanced to Defendant pursuant to a contract,” and she executed a security agreement granting a security interest “in the goods described therein.” Crown claimed to be the owner and holder of the contract and entitled to the balance due of $12,694.05. Jackson was served on June 18, 2007; however, she failed to file an answer or otherwise appear in the underlying suit.
        On May 31, 2007, Crown received notice from the trial court that the case was set for dismissal, pursuant to rule 165a, on September 28, 2007 at 9:00 a.m. The notice further stated the following:
 
If no answer has been filed, or if the answer filed is insufficient as a matter of law to place any of the facts alleged in your petition in issue, you will be expected to have moved for, and to have had heard, a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in the dismissal of the case on the above date.
 
Crown filed a motion for default judgment on August 20, 2007 asserting Jackson failed to timely answer and liquidated damages could be accurately calculated and proven by written instrument. Crown amended its motion for default judgment on September 6, 2007 to include an argument that default judgment should be rendered because Jackson admitted the truth of all allegations when she failed to answer the deemed admissions included in the original petition.
        On September 20, 2007, the trial court sent Crown a letter advising it was returning the default judgment unsigned because of certain deficiencies.   See Footnote 1  On September 21, 2007, the trial court signed an order dismissing the case for failing to take action after notice of intent to dismiss for want of prosecution in accordance with rule 165a. This appeal followed.
Dismissal for Want of Prosecution
        In its first issue, Crown challenges the trial court's order dismissing the case for want of prosecution before the September 28, 2007 dismissal setting. We review a dismissal for want of prosecution under an abuse of discretion standard. WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied).
        A trial judge's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the judge's inherent authority. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial judge may dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated” by the supreme court. Tex. R. Civ. P. 165a(1), (2). In addition, the common law vests the trial judge with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal, 994 S.W.2d at 630. Further, rule 165a states notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record. Tex. R. Civ. P. 165a(1).
        Here, the trial court sent notice of its intent to dismiss the case on September 28, 2007 at 9:00 a.m. However, the trial court dismissed Crown's case on September 21, 2007. Under rule 165a, Crown did not receive notice of the court's intent to dismiss the case on September 21, 2007. Thus, the trial court abused its discretion by dismissing the case a week before the date provided in the notice. Villarreal, 994 S.W.2d at 630 (party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either rule 165a or its inherent authority); see also Rohus v. Licona, 942 S.W.2d 111, 112 (Tex. App.-Houston [1st Dist.] 1997, no writ) (notice of intent to dismiss does not comply with rule 165a if the notice does not also provide notice of the date and place of the dismissal hearing); Hosey v. County of Victoria, 832 S.W.2d 701, 705 (Tex. App.-Corpus Christi 1992, no writ) (dismissal docket letter was inadequate and in effect, served as no notice at all).
        We likewise note that by dismissing the case a week early, the trial court deprived Crown the opportunity to amend its motion for default judgment in accordance with the court's letter mailed on September 20, 2007 informing it of certain deficiencies. Due process requires a trial court give adequate notice to a party before entering an order dismissing a case for want of prosecution. Rohus, 942 S.W.2d at 112. Because failure to give this notice deprives a party of its right to be heard by the court, such an omission constitutes more than a mere violation of procedural rules of practice. Id. This is certainly the case under these facts when the trial court provided Crown with specific reasons why the default judgment was defective, but then failed to give it the opportunity to correct the deficiencies prior to dismissal. Thus, the failure to provide notice of the trial court's intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 631.
        Having reached this conclusion, we likewise conclude we need not address the merits of whether the trial court erred in denying Crown's motion for default judgment. As stated above, the trial court failed to give it the opportunity to correct any alleged deficiencies in the motions; therefore, we refuse to express any opinion on the merits of the motion.
        Because the trial court dismissed Crown's case before the date provided in the dismissal notice, we sustain Crown's first issue. We reverse the trial court's dismissal order, order Crown's lawsuit reinstated, and remand for further proceedings.
        
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
071337F.P05
 
Footnote 1 These deficiencies included (1) the petition did not give defendant fair notice of the claim; (2) the judgment relies on causes of action not adequately pleaded; (3) damages cannot be accurately calculated, no written instrument attached to the petition; (4) no evidence of sale and delivery of merchandise or performance of services; (5) no evidence the amount of the account or price charged is in accordance with an express contract or is usual, customary, and reasonable; (5) no evidence of a systematic record kept and supported by affidavit; and (6) the requests for admissions are deficient.