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Kirkpatrick v. Silva

Court of Appeals of Texas, Fourth District, San Antonio

January 24, 2018

Natalie KIRKPATRICK, Appellant
v.
Samuel S. SILVA, Appellee

         From the County Court, Guadalupe County, Texas Trial Court No. 2015-CV-0303 Honorable Robin V. Dwyer, Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice.

          MEMORANDUM OPINION

          Karen Angelini, Justice.

         In a single issue, Natalie Kirkpatrick argues the trial court abused its discretion in denying a motion to reinstate her case after it was dismissed for want of prosecution. We affirm.

         Background

         On September 21, 2015, Kirkpatrick filed a negligence suit against Samuel Silva. Silva answered the suit and eventually moved for summary judgment. On September 23, 2016, the trial court signed an amended order denying Silva's summary judgment motions and ordering the parties to mediation. The order stated:

IT IS THEREFORE ORDERED that the [summary judgment] motions be DENIED; the case be placed on the Jury Docket for April 24 to April 27, 2017 with Mediation to be completed by November 30, 2016, and a Pretrial of March 15, 2017. If no mediation occurs by December 31, 2016 the Jury Trial setting will be cancelled unless a Motion to Waive mediation for good cause is granted pursuant to rule after a hearing on that matter. If no such motion is filed within 30 days of November 30, 2016, it will not be entertained or set. On the same day, Silva filed a motion asking the trial court to reconsider the denial of his summary judgment motions.

         On November 2, 2016, the trial court held a hearing on Silva's motion to reconsider the denial of his summary judgment motions. After hearing arguments from counsel, the trial court decided to take Silva's motion to reconsider under advisement. Kirkpatrick's counsel then asked the trial court if it would allow the parties to waive mediation so they could go straight to trial. In response, the trial court directed counsel to its September 23, 2016 order and stated: "If you want me to waive mediation, you're required to file a motion within a certain period of time. It's set out in detail in that order." The trial court also stated: "You want to waive mediation, I told you, 'File a motion, file it by this certain period of time, and if you don't do it by that certain period of time, it's going to be denied.'" Additionally, the trial court stated: "[T]he order says clearly exactly how you have to do it . . . but you've got to at least read the . . . order so you know what . . . to do. If that's what you want to do, you better file the motion because time is running." Finally, the trial court stated, "By that order, it said you had to do something by the 30th of November. Today's the 2nd of November . . . ."

         On January 10, 2017, the trial court signed an order denying Silva's motion to reconsider the denial of his summary judgment motions. This order also cancelled the April 2017 jury trial setting because no motion to waive mediation had been filed in accordance with the deadline set in the September 23, 2016 order, and set a February 15, 2017 hearing "as to why [the] case should not be dismissed for Want of Prosecution."

         On February 2, 2017, Kirkpatrick filed a motion asking the trial court to retain the case on docket, to waive mediation, and to set the case for jury trial. On February 15, 2017, the trial court held a dismissal hearing, where it considered Kirkpatrick's motion to retain. After finding that no mediation had occurred and no timely motion to waive mediation had been filed, the trial court denied Kirkpatrick's motion to retain and dismissed her case for want of prosecution.

         On February 16, 2017, Kirkpatrick filed a verified motion to reinstate the case on the trial court's docket. In the motion, Kirkpatrick argued that her failure to set a mediation or to file a timely motion to waive mediation was not intentional or the result of conscious indifference, but was the result of a mistake. Specifically, Kirkpatrick argued that "counsel's staff" (1) had failed to calendar the deadlines set forth in the September 23, 2016 order, and (2) was under the misunderstanding that the case was "on hold" until the trial court ruled on Silva's motion to reconsider the denial of his summary judgment motions.

         On March 8, 2017, the trial court held a hearing on Kirkpatrick's motion to reinstate and denied the motion. Kirkpatrick appealed.

         Applicable Law

         A trial court's authority to dismiss for want of prosecution stems from two sources: rule 165a and the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under rule 165a, the trial court may dismiss "on failure of any party seeking relief to appear at any hearing or trial of which the party had notice, " Tex.R.Civ.P. 165(a)(1), or when a case is "not disposed of within the time standards promulgated by the Supreme Court…." Tex.R.Civ.P. 165(a)(2). Under the common law, the trial court has the inherent power to dismiss when the plaintiff fails to prosecute her case with due diligence. Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 728 (Tex. App.-San Antonio 2012, pet. denied). Before a trial court may dismiss a case for want of prosecution, the plaintiff must be provided with notice and an opportunity to be heard. Villarreal, 994 S.W.2d at 630. When the notice ...


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