Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 219th Judicial District Court Collin County,
Texas Trial Court Cause No. 219-51085-95
Justices Lang-Miers, Myers, and Boatright
Bray appeals the trial court's judgment dismissing her
case for want of prosecution. We affirm.
and her former husband, John Fleming, divorced in 1995. A few
years later, Bray filed a motion to enforce the decree. They
reached a mediated settlement that was entered as an agreed
judgment in 2001. On September 16, 2015, Fleming filed a
motion to vacate the 2001 agreed judgment. Bray filed a
response to his motion a few weeks later. The court held a
hearing on the motion to vacate; both parties appeared. The
trial court denied the motion on October 2, 2015, then
Fleming filed a motion for reconsideration. Without notice or
hearing, the court granted Fleming's motion to vacate the
2001 agreed judgment on December 17, 2015 but, apparently,
did not inform the parties that it had done so. On August 4,
2016, the trial court issued the parties a notice of intent
to dismiss the cause for want of prosecution and, on
September 2, 2016, entered an order dismissing the case. Bray
filed a motion for new trial on September 28, 2016. The trial
court heard Bray's motion for new trial on November 18,
2016, and denied that motion on November 28, 2016.
sole issue on appeal, Bray contends that she was denied due
process of law when the trial court granted Fleming's
motion for reconsideration without providing notice and a
hearing. Issues regarding deprivation of due process raise
questions of law. See Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 932 (Tex. 1998) (holding that the question of
whether a municipal regulation violates due process is a
question of law). We review questions of law de novo.
State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).
Accordingly, we will review the trial court's judgment de
support her contention that granting Fleming's motion for
reconsideration without notice and hearing was a denial of
due process, Bray cites In re Keck, 329 S.W.3d 658
(Tex. App.-Houston [14th Dist.] 2010, no pet.). In that case,
the trial court held a hearing on a motion for
reconsideration, but one of the parties did not receive
notice of the hearing and did not attend it. Id. at
661-62. The movant presented new evidence at the hearing in
support of the motion. Id. at 662. The court ruled
that holding this hearing without notice to one of the
parties violated Texas Rule of Civil Procedure 21.
Id. In our case, however, there was no hearing on
the motion for reconsideration. Nor is a violation of rule 21
quite the same as a denial of constitutional due process.
Bray does not cite legal authority that might support the
proposition that the U.S. Constitution entitled her to a
hearing on Fleming's motion for reconsideration; instead,
she relies on In re Keck, which supports only the
notion that a Texas procedural rule would have entitled her
to notice of a hearing on the motion for reconsideration.
In re Keck does not support Bray's contention.
also cites Mabon Ltd. v. Afri-Carib Enterprises,
Inc., which held that entry of a post-answer default
judgment against a defendant who did not receive notice of
the trial setting or dispositive hearing constitutes a denial
of due process under the U.S. Constitution. 369 S.W.3d 809,
813 (Tex. 2012). However, Bray received notice and a hearing
on Fleming's motion to vacate, which was the dispositive
motion concerning the parties' agreed judgment in the
trial court. She responded in writing to that motion and
appeared at the October 1 hearing on it. Bray does not argue
that a motion for reconsideration is a dispositive motion,
and cites no legal authority that would support that
also points out that the trial court did not provide the
parties with notice of the December 17, 2015 order granting
the motion to vacate the 2001 agreed judgment until she
received the trial court's August 4, 2016 notice of
intent to dismiss the case for want of prosecution. To
support her contention, she cites Hubert v. Illinois
State Assistance Comm'n, 867 S.W.2d 160 (Tex.
App.-Houston [14th Dist.] 1993, no writ). In that case, the
court of appeals noted that Texas Rule of Civil Procedure
165a imposes an affirmative duty on the clerk to give notice
of the court's intention to dismiss a case for want of
prosecution. Id. at 163. The court also explained
that Rule 306a requires the court to give notice of its order
of dismissal. Id. The court then held that the
failure to give such notice is a denial of due process.
Id. In our case, the parties agree that the court
issued a notice of intent to dismiss the cause for want of
prosecution on August 4; that Bray filed a motion on August
28 to vacate the trial court's December 17, 2015 order
granting Fleming's motion to vacate the 2001 agreed
judgment; and that the trial court entered an order
dismissing the cause for want of prosecution on September 2.
Bray does not attempt to explain why this might be
inadequate. On the contrary, it appears to satisfy
Hubert and Rules 165a and 306a.
appears to satisfy the general proposition for which Bray
cites Hubert: that if a party is not given notice of
a judgment, the party is deprived of its right to be heard by
a court. Bray had notice of the October 1, 2015 hearing on
Fleming's motion to vacate the 2001 agreed judgment. She
also had notice of the trial court's intention to dismiss
the case for want of prosecution; she even filed a motion in
response to the notice. Nor was this the last notice that
Bray received. On September 28, 2016, Bray filed a motion for
new trial in which she made much the same arguments that she
made in her 2015 response to Fleming's motion to vacate
the 2001 agreed judgment. The trial court held a hearing on
Bray's motion for new trial on November 18, 2016; no one
disputes that Bray received notice of this hearing and
appeared at it. A hearing after dismissal, while the trial
court has control over its judgment, obviates any due process
concerns regarding the dismissal. Franklin v. Sherman
Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.-Dallas
2001, pet. denied).
Bray received notice and a hearing on dispositive motions
involving the 2001 agreed judgment twice in this case. She
presents no legal authority indicating that this did not
satisfy her right to due process of law. We overrule
Bray's sole issue.
affirm the trial ...