Dedrick Fontenot v. Tasha Marie Lewallen--Appeal from County Court at Law of Houston County

NO. 12-06-00094-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEDRICK FONTENOT, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW

TASHA MARIE LEWALLEN,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Dedrick Fontenot appeals the trial court s order denying his motion to reinstate following the dismissal of his suit for want of prosecution. In three issues, Fontenot argues that the trial court failed to give him proper notice of its intent to dismiss his suit and improperly denied his motion to reinstate. We affirm.

Background

Fontenot filed suit against Tasha Marie Lewallen for injuries he allegedly sustained in a car accident with her. As the trial date approached, Fontenot sought to accept a settlement offer previously made by Lewallen. According to Fontenot s motion to reinstate, his trial counsel orally accepted Lewallen s settlement offer during a phone conversation he had at 11:08 p.m. on Wednesday, November 23, 2005, with an unidentified female who answered the phone at Lewallen s attorney s office.

On November 30, 2005, the trial court conducted a previously scheduled pretrial conference. Lewallen s attorney was present; Fontenot s attorney failed to attend. After attempting to contact Fontenot s attorney, the trial court granted Lewallen s motion to dismiss. The trial court signed its order of dismissal on December 15, 2005.

On January 12, 2006, Fontenot filed a motion to reinstate his suit arguing that he believed the case had been settled thereby making his presence at the pretrial conference unnecessary. Fontenot further argued that he did not receive notice of the court s intention to dismiss or of the dismissal hearing. Lewallen filed a response stating that her attorney s law office was closed on November 23, 2005 for the Thanksgiving holiday and, therefore, the settlement discussions alleged by Fontenot in his motion to reinstate never occurred.

A hearing was conducted on Fontenot s motion to reinstate on February 16, 2006.1 Following the hearing, the trial court denied Fontenot s motion. This appeal followed.

Dismissal for Want of Prosecution/Motion to Reinstate

In his first issue, Fontenot argues that he was entitled to notice of Lewallen s motion to dismiss. In his second issue, Fontenot argues that he was entitled to notice of the court s intention to dismiss when he was not informed that it was necessary to attend pretrial conferences. In his third issue, Fontenot contends that the trial court erred in denying his motion to reinstate because he demonstrated that his failure to attend the pretrial conference was the result of accident or mistake rather than conscious indifference.

We review a judgment of dismissal under an abuse of discretion standard. See Ellmossallamy v. Huntsman, 830 S.W.2d 299, 300 (Tex. App Houston [14th Dist.] 1992, no writ). To determine if there is an abuse of discretion, we must look to see if the trial court acted without reference to any guiding rules and principles. Id. The standard of review for a motion to reinstate is essentially the same as that for setting aside a default judgment. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).

A trial court may dismiss a suit under Texas Rule of Civil Procedure 165a(1) on the failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice, or under Texas Rule of Civil Procedure 165a(2) when a case is not disposed of within the time standards promulgated by the Texas Supreme Court. See Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).2 A trial court may not dismiss a suit without giving the plaintiff notice of its intent to dismiss. Id. A dismissal without notice violates Rule 165a and the party s due process rights. See Rohus v. Licona, 942 S.W.2d 111, 112 (Tex. App. Houston [1st Dist.] 1997, no pet.).

Notice

We first consider Fontenot s first and second issues relating to lack of notice. We initially note that the record reflects that Fontenot received notice of the November 30 pretrial conference. As such, we focus our inquiry on whether he properly received notice of the trial court s intention to dismiss his suit. The hearing on a motion to reinstate is the same hearing with the same burden of proof that the plaintiff would receive before the trial court signs the order of dismissal. See Texas Sting, Ltd. v. R.B. Foods, 82 S.W.3d 644, 648 49 (Tex. App. San Antonio 2002, pet. denied). Therefore, a postdismissal hearing remedies any violations to the litigant s due process rights occurring before the dismissal. Id.; see also Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App. Houston [14th Dist.] 1999, no pet.) (Although the plaintiff was not provided with notice of the trial court's intent to dismiss the case for want of prosecution prior to the dismissal hearing, he was nevertheless afforded his due process rights because he received actual notice of the dismissal order in time to file a motion to reinstate, and a hearing was held on that motion.).

In the instant case, there is no indication that Fontenot received notice of the trial court s intent to dismiss his suit prior to the dismissal hearing. However, the record reflects that Fontenot received notice of the dismissal order. The record further reflects that Fontenot timely filed a motion to reinstate on which the trial court conducted a hearing. Therefore, we hold that the trial court s failure to provide notice of its intent to dismiss Fontenot s suit was remedied. Fontenot s first and second issues are overruled.

Motion to Reinstate

We next consider Fontenot s third issue regarding the trial court s denial of his motion to reinstate. If a plaintiff seeking to have his case reinstated fails to present evidence at the hearing, the trial court s dismissal will be affirmed on appeal. See, e.g., MacGregor v. Rich, 941 S.W.2d 74, 76 (Tex. 1997); Balla v. Northeast Lincoln Mercury, 717 S.W.2d 183, 185 (Tex. App. Fort Worth 1986, no writ). As noted previously, Fontenot did not request a reporter s record of the hearing conducted on his motion to reinstate. As such, there is no record on appeal as to what evidence was presented to the trial court, if any, during the hearing on Fontenot s motion to reinstate. Therefore, we cannot conclude that the trial court abused its discretion in denying Fontenot s motion to reinstate. Id. Fontenot s third issue is overruled.

Disposition

Having overruled Fontenot s first, second, and third issues, we affirm the trial court s dismissal order.

SAM GRIFFITH

Justice

Opinion delivered December 1, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 No reporter s record of this hearing was provided as part of the appellate record. There appears a notation on the trial court s docket that a hearing on a motion for new trial was conducted.

2 The record does not indicate whether the trial court s dismissal was based on Fontenot s failure to attend the pretrial conference or under its inherent power.