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Hanash v. Walter Antiques, Inc.

Court of Appeals of Texas, Eighth District, El Paso

June 27, 2018

ROSA MARIA HANASH, Appellant,
v.
WALTER ANTIQUES, INC. AND NANCY WALTER, INDIVIDUALLY, Appellees.

          Appeal from the County Court at Law No. 6 of El Paso County, Texas (TC# 2012-DCV05940)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          GINA M. PALAFOX, Justice

         Appellant Rosa Maria Hanash, whose underlying suit was dismissed for want of prosecution, appeals from the trial court's order determining that its plenary jurisdiction expired prior to Hanash filing a motion to reinstate. On March 9, 2018, we issued an opinion and judgment affirming the trial court's order. Hanash subsequently filed a motion for rehearing. We hereby deny Hanash's motion for rehearing, withdraw the opinion and judgment issued on March 9, 2018, and substitute the following opinion.

         BACKGROUND

         Hanash filed her original petition on September 25, 2012, suing Walter Antiques, Inc., and Nancy Walter, individually, (Appellees), for breach of contract, fraud, conversion, and theft of property. The record reflects that for over two years, no pleadings were filed and the case did not show any activity. On November 19, 2015, the trial court issued a notice of intent to dismiss for want of prosecution and set a dismissal hearing for December 14, 2015. The court's notice informed the parties that the "Dismissal Hearing" was set as a "Mandatory Hearing," and expressly warned parties that the case would automatically be dismissed upon a failure to appear. The next day, the El Paso County District Clerk's Office sent notice of the hearing to attorneys of record, with the court's dismissal notice attached, in compliance with Rule 165a of the Texas Rules of Civil Procedure. At the dismissal hearing held on December 14, 2015, defendant's counsel appeared, but neither Hanash nor her attorney were present. The trial court signed an order dismissing the case for want of prosecution on that same day. Thereafter, on December 21, 2015, the District Clerk issued a "Rule 306a, Official Notice" informing attorneys for both parties of the trial court's order signed on December 14, 2015.

         On January 29, 2016, Hanash's attorney filed a verified motion to reinstate contending that his failure to attend the court's dismissal hearing was not intentional or the result of conscious indifference. The motion explained that counsel was on his way to court but then experienced car trouble. He further asserted that he attempted to appear by telephone but only reached the court's answering machine and left a message explaining his dilemma.

         In addition, Hanash's attorney also filed a "verified motion to determine notice or actual knowledge," seeking an evidentiary hearing pursuant to Rule 306a to determine the date on which notice was received, and/or actual knowledge was obtained, of the trial court's dismissal order. In the motion to determine notice or actual knowledge, Hanash's attorney claimed that he left town for the Christmas holiday shortly after December 14, 2015, and did not return to his office until January 5, 2016.[1] He claimed that he first learned of the court's dismissal of the case on January 5, 2016, and requested a hearing for the court to determine that January 5, 2016 served as the earliest date that Hanash obtained actual knowledge of the court's order. He asserted that the dismissal notice from the district clerk was not in his office when he returned from vacation, and that neither he nor his client had received notice as required by Rule 306a. In support of his motion, he also included an affidavit from Hanash stating that she resided in Illinois and did not receive notice or have actual knowledge of the dismissal until January 29, 2016.

         In a combined pleading, Appellees' counsel filed a verified response to both motions arguing that the trial court's plenary jurisdiction had expired as of January 14, 2016. Appellees contended that the record supported a finding that Hanash's attorney had received notice of a mandatory dismissal hearing, knew of his own failure to appear, and subsequently, the district clerk timely mailed notice of the court's order. Appellees requested the court to take judicial notice of the court's file and attached as exhibits the clerk's notice dated December 21, 2015, and the registry of the trial court's file. Appellees' counsel also disclosed to the court that Hanash's attorney telephoned him on January 5, 2016, the day he returned from his vacation, to discuss the possibility of filing a motion to reinstate and completion of discovery, but omitted any statement in their conversation about not receiving the clerk's notice of the dismissal order.[2]

         On February 11, 2016, the trial court held a hearing on both motions. At the hearing, Hanash's attorney informed the court that he checked the trial court's information system on December 15, 2015, the day after the dismissal hearing, to see if there was an order that was filed, but found none listed. He stated he had been "hopeful" that the court had received his message and decided to reset the case. When he returned to town, on January 5, 2016, he again checked the trial court's information system, and only then learned of the entry of a dismissal order. Consistent with his motion, he also informed the court that the dismissal notice from the district clerk was not in his office when he returned from his vacation. Thus, he asserted that neither he nor his client received notice as required by Rule 306a.

         Appellees' counsel asserted that the notice to Hanash's attorney contained a correct mailing address and indicated it was sent on December 21, 2015. He also confirmed that he received notice from the clerk's office in a timely manner on December 23, 2015. Appellees asserted that the record supported a finding by inference that Hanash received the district clerk's notice in a timely manner; thus, the trial court's plenary jurisdiction had expired on January 14, 2016.

         At the close of the hearing, the trial court found that counsel for Hanash had admitted he was aware of the dismissal hearing on December 14, 2015, and that the district clerk sent notice of the court's order on December 21, 2015. The trial court subsequently entered a written order dated February 11, 2016, stating its plenary jurisdiction expired on January 14, 2016, or thirty-one (31) days after entry of the Order of Dismissal on December 14, 2015. Hanash timely filed this appeal of the court's order of February 11, 2016.

         DISCUSSION

         In a single issue, Hanash argues that the trial court erred by concluding that its plenary jurisdiction expired on January 14, 2016, and therefore it did not have jurisdiction to consider her motion to reinstate. She further argues that the trial court failed to comply with the mandates of Rule 306a because, despite holding an evidentiary hearing on Hanash's motion, the trial court did not expressly determine the date on which she either received notice and/or obtained ...


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