Court of Appeals of Texas, Fourth District, San Antonio
the 381st Judicial District Court, Starr County, Texas Trial
Court No. DC-15-433 Honorable Jose Luis Garza, Judge
Sitting: Marialyn Barnard, Justice Patricia O. Alvarez,
Justice Irene Rios, Justice
Marialyn Barnard, Justice
Ruth Isela Acevedo Saldana appeals the trial court's
order dismissing her suit for want of prosecution. We reverse
the trial court's order and remand this matter for
2015, Saldana filed suit against appellee Sonia Patricia
Hinojosa, seeking damages for injuries she sustained in a
motor vehicle accident allegedly caused by Hinojosa. On
October 20, 2015, the trial court issued a notice stating the
matter was set for "Docket Control Conference/DWOP"
on November 4, 2015. On November 4, 2015, Saldana filed a
motion for continuance, seeking to reschedule the docket
control conference. The trial court granted the motion and
reset the "DCC/DWOP" for December 9, 2015. In
addition to its order, the trial court also issued a notice,
stating the matter was set for "Docket Control
Conference/DWOP" on December 9, 2015. Two days before
the scheduled setting, Saldana filed her second motion for
continuance. The trial court did not rule on the second
motion for continuance; rather, on December 10, 2015, the
trial court signed a document entitled "Court's
Motion and Order of Dismissal for Lack of Prosecution."
In that order, the court advised that on December 9, 2015, it
called the case for the scheduled "Docket Control
Conference/DWOP, " but Saldana did not appear.
Accordingly, the court ordered the case dismissed without
prejudice. Thereafter, Saldana filed a motion for new trial -
which was overruled by operation of law, and a notice of
appeal, Saldana contends the trial court erred in dismissing
her suit for want of prosecution. Saldana argues she was
denied due process because the trial court failed to provide
adequate notice of its intent to dismiss the suit for want of
prosecution. We agree.
appellate court reviews a trial court's decision to
dismiss for want of prosecution under the abuse of discretion
standard. Dobroslavic v. Bexar Appraisal Dist., 397
S.W.3d 725, 728 (Tex. App.-San Antonio 2012, pet. denied)
(citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.
1997)); Woods v. Schoenhofen, 302 S.W.3d 576, 578
(Tex. App.-Amarillo 2009, no pet.) (citing Villarreal v.
San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999)). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without
reference to any guiding rules or principles. Samlowski
v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011);
Dobroslavic, 397 S.W.3d at 728. A corollary
principle is that an appellate court may not reverse for
abuse of discretion merely because it disagrees with the
trial court's decision. E.I. du Pont de Nemours &
Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995);
Dobroslavic, 397 S.W.3d at 728.
court has authority to dismiss for want of prosecution based
on two sources. Dobroslavic, 397 S.W.3d at 728. The
first source of authority is found in Rule 165a of the Texas
Rules of Civil Procedure. Tex.R.Civ.P. 165a;
Dobroslavic, 397 S.W.3d at 728. The second source is
based on the trial court's inherent power.
Dobroslavic, 397 S.W.3d at 728. Rule 165a provides
that a trial court may dismiss for want of prosecution: (1)
if a party seeking affirmative relief fails to appear for any
hearing or trial of which he had notice; or (2) when a case
has not been disposed of pursuant to the time standards
promulgated by the Texas Supreme Court. Tex.R.Civ.P. 165a;
Dobroslavic, 397 S.W.3d at 728-29. Under common law,
a trial court has inherent power to dismiss when a plaintiff
fails to prosecute his case with due diligence.
Dobroslavic, 397 S.W.3d at 729. This power arises
from a trial court's power to control its docket.
a trial court may dismiss pursuant to either Rule 165a or its
inherent authority, the party subject to dismissal must be
provided with notice and an opportunity to be heard.
Id. (citing Villarreal, 994 S.W.2d at 630).
As this court recognized in Dobroslavic, the supreme
court has held inadequate notice of an intent to dismiss
mandates reversal because a party's due process rights
have been violated. Id.; see Tex. Mut. Ins. Co.
v. Olivas, 323 S.W.3d 266, 273 (Tex. App.- El Paso 2010,
no pet.); but see Keough v. Cyrus U.S.A., Inc., 204
S.W.3d 1, 5-6 (Tex. App.- Houston [14th Dist.] 2006, pet.
denied) (holding motion to reinstate with opportunity for
hearing cures due process violation); Hernandez v. ISE,
Inc., No. 04-06-00888-CV, 2008 WL 80005, at *3 (Tex.
App.-San Antonio Jan. 9, 2008, no pet.) (mem. op.)