Court of Appeals of Texas, Eighth District, El Paso
from the 346th District Court of El Paso County, Texas (TC#
Barajas, C.J., McClure, and Chew, JJ.
RICHARD BARAJAS, CHIEF JUSTICE.
an appeal from default judgment entered against a plaintiff.
In the instant case, the default judgment was entered against
Appellant, Towner Leeper, in favor of Appellees, R.F.
Haynsworth and Gary Crossland, defendants below. On appeal,
the sole issue is whether a default judgment can be entered
against a plaintiff. 
lawsuit arises out of a breach of lease claim which Appellant
originally filed on May 5, 2000. The trial court set
Appellant's case to be heard on December 1, 2004. On
October 18, 2004, Appellees' attorney mailed a letter by
certified mail, return receipt requested to Towner Leeper at
744 Cinnamon Teal, El Paso, Texas 79932, notifying him that
the case had been set for trial on December 1, 2004 at 1:30
p.m. On the "return receipt" stamped October 19,
2004, Appellant's wife LaFonne Leeper's signature
failed to appear at the bench trial on December 1, 2004.
After announcing his name three times in the court's
hallway, Appellees orally moved for a default judgment, which
the trial granted. The trial court granted Appellees'
motion.  On December 8, 2004, counsel for Appellees
mailed a letter by certified mail, return receipt requested
to Towner Leeper at 744 Cinnamon Teal, El Paso, Texas 79932
notifying him that the Court had entered a final judgment
against Appellant. By this time, Appellant had moved to
Denver, Colorado. Upon receiving notice of the final default
judgment, Appellant filed a timely motion to vacate the final
judgment. On January 4, 2005, the same day the motion to
vacate was filed, Appellant gave the first notice of his
address change to Appellees' counsel. On January 7, 2005,
attorney John Leeper entered an appearance on behalf of
Towner Leeper. On February 9, 2005, the trial court held a
hearing on Appellant's motion to vacate default judgment.
Although not physically present at the hearing and over
Appellees' objection, the trial court allowed Appellant
to testify via telephone from his home in Denver. He
testified that he was unaware of the December 1, 2004 trial
setting and did not become aware of it until he received
notice of the default judgment entered against him.
Immediately upon learning this, he filed a motion to vacate.
He adamantly asserted that his failure to attend the trial
was not intentional or due to conscious disregard. After
living in El Paso for forty years and having retired from his
tax law practice sometime in 2002, he began the process of
moving to Denver, leaving his home in a state of disarray. He
testified that he never saw the notice of trial setting and
that his wife never showed him such notice. Furthermore, he
does not nor ever did consider his wife to be his agent for
purposes of this lawsuit. He represented that he was ready to
proceed at trial if the trial court vacated his default
judgment and that he is counting on the resolution of the
case to provide him with funds to live on during his
counsel at trial argued that (1) since none of
Appellant's testimony was proper, Appellant failed to
meet his burden, and (2) because Mrs. Leeper's signature
appeared on the "return receipt," Appellant had
notice of the trial setting and that this was all that was
required in order for the court to grant the default
judgment. Appellant, on the other hand, argued that the
proper procedures under Tex.R.Civ.P. 165a(1) had to be
utilized. The trial court denied Appellant's motion to
vacate. This appeal follows.
appeal, Appellant argues that the trial court erred as a
matter of law in granting a take-nothing judgment against
Appellant for failing to appear at trial because the only
ruling that the trial court could make was a dismissal for
want of prosecution because Appellant was the plaintiff in
this case. Appellant cites to this Court's opinion,
Slaughter v. Clement, 64 S.W.3d 448 (Tex. App.--El
Paso 2001, no pet.) to support his contention. We agree with
Slaughter, the question this Court had to decide was
whether a moving party may be defaulted. See
Slaughter, 64 S.W.3d at 448-49. We held in that case
that a court may not default a plaintiff/petitioner, but
rather they may only, after notice and hearing, dismiss their
suit for failure to appear. Id. at 450.
court's authority to dismiss for want of prosecution
stems from Tex.R.Civ.P. 165a as well as a court's
inherent powers. See Tex.R.Civ.P. 165a; see also
Slaughter, 64 S.W.3d at 450 (citing Villarreal v.
San Antonio Truck & Equipment, 994 S.W.2d 628, 630
(Tex. 1999)). Tex.R.Civ.P. 165a states in relevant part the
A case may be dismissed for want of prosecution on failure of
any party seeking affirmative relief to appear for any
hearing or trial of which the party had notice. 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, and to each party not represented by an
attorney and whose address is shown on the docket or in the
papers on file, by posting same in the United States Postal
Service. At the dismissal hearing, the court shall dismiss
for want of prosecution unless there is good cause for the
case to be maintained on the docket.
Court acts pursuant to its inherent authority, it may not
dismiss a suit without providing the moving party notice and
an opportunity to ...