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Arzate v. Andujo

Court of Appeals of Texas, Eighth District, El Paso

April 30, 2019

ROSA MARIA ARZATE, Appellant,
v.
MATTHEW MANUEL ANDUJO AND JUAN MIGUEL TORRES, Appellees.

          Appeal from 243rd District Court of El Paso County, Texas (TC # 2017DCV0567)

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

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE

         Rosa Maria Arzate's lawsuit had been pending just shy of nine months when the trial court dismissed it for want of prosecution. Because none of the predicates for dismissal for want of prosecution under Tex.R.Civ.P. 165a, or under a trial court's inherent power are met on this record, we conclude the dismissal was error. Accordingly, we reverse and remand.

         BACKGROUND

         On February 17, 2017, Rosa Maria Arzate filed an original petition that named two defendants, Matthew Manuel Andujo and Juan Miguel Torres. The petition alleges that a year before, Andujo, while intoxicated, entered Interstate 10 heading in the wrong direction. His actions caused an accident which injured Arzate. The petition further alleges that Torres negligently entrusted his vehicle to Andujo when he knew or should have known that Andujo was unfit and otherwise unsuitable to drive.

         A citation was issued for both Andujo and Torres on March 16, 2017. The return of service, appended to the citation, reflects that a private process server delivered the suit papers in person to Torres on May 11, 2017 and to Andujo on May 12, 2017. They were required to file answers by June 5, 2017 but failed to do so.

         The trial court had set monthly status hearings for the case, the first on May 18, 2017, with successive status hearings on June 15, July 13, and August 24. Nothing in the record suggests that Arzate's attorney did not attend those settings. The trial court set the case for a dismissal hearing on September 28, 2017. Prior to that hearing date--on September 22, 2017--Arzate filed a motion for a default judgment. The motion attached the two returns of service executed by the process server. The trial court set the default hearing for October 12, 2017.

         Arzate's attorney appeared at the default hearing prepared to prove up the amount of unliquidated damages. The trial court, however, declined to grant the default. The trial court concluded that the returns of service, which had been on file for at least ten days, were not sufficient to prove actual service on the defendants.

         That same day, the trial court set another dismissal hearing for November 9, 2017. The notice letter states in all caps, and bolded language that the dismissal hearing was "under Rule 165a, Texas Rules of Civil Procedure." The form notice of intent to dismiss for want of prosecution attached to the letter states that the trial court intended to dismiss the case for five reasons: (1) failure to appear, (2) failure to prosecute the case with due diligence within the Texas Supreme Court's guidelines, (3) on the trial court inherent authority, (4) on the trial court's inherent authority for violating the trial court's local rules, and (5) on the trial court's inherent authority for violating the El Paso County local rules.

         In this same time frame, Arzate had filed several Notices of Intent to Use Medical and Business Records, to proving up her medical records and bills. Arzate had also filed an amended petition that named a new defendant--a bar that allegedly over-served Andujo drinks.

         Arzate's attorney appeared at the dismissal hearing. When asked what had been done to prosecute the suit, the attorney discussed the amended petition and the addition of the new defendant, and again claimed that both Andujo and Torres had been served. When counsel was unable to produce any documentation of service (beyond the executed return of service), the trial court then dismissed the case for want of prosecution.

         Arzate timely filed a verified motion to reinstate, which the trial ...


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