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Green Mountain Energy Company v. Kela

Court of Appeals of Texas, Fifth District, Dallas

October 7, 2019

GREEN MOUNTAIN ENERGY COMPANY, Appellant
v.
KULWANT KELA AS PRESIDENT/DIRECTOR IN HIS INDIVIDUAL CAPACITY OF REGENCY HOTEL, Appellee

          On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-15-05892-A

          Before Justices Bridges, Molberg, and Partida-Kipness

          MEMORANDUM OPINION

          ROBBIE PARTIDA-KIPNESS JUSTICE.

         Appellant Green Mountain Energy Company ("Green Mountain") appeals the trial court's September 25, 2018 dismissal of the underlying proceeding for want of prosecution. Finding no abuse of discretion, we affirm the judgment.

         Background

         Green Mountain maintains that Sal Mendoza and Kulwant Kela entered and executed a "Small CI-Fixed Commodity Plan - 36 months Agreement" ("the Agreement") with Green Mountain for the delivery of goods and services to the Regency Hotel in Dallas. On November 20, 2015, Green Mountain sued Mendoza and Kela for suit on a sworn account, quantum meruit, and breach of contract related to the Agreement. Green Mountain non-suited Mendoza on March 24, 2016, moved for summary judgment against Kela on May 2, 2016, and moved for default judgment against Kela on June 12, 2017. The trial court heard the summary judgment motion on March 24, 2017, and heard the default judgment motion on June 16, 2017, but did not rule on either motion. Following the June 16, 2017 hearing, Green Mountain took no action in the case for nearly a year. The trial court set a dismissal hearing for May 25, 2018. In response, Green Mountain filed a motion for continuance on May 24, 2018. The clerk's record does not include an order on the motion for continuance, and the trial court's docket sheet does not show a ruling on the motion. The record shows that the following occurred between May 24, 2018 and the trial court's September 25, 2018 dismissal order:

May 25, 2018

Dismissal hearing held.

Motion for default judgment denied.

June 19, 2018

Notice letter sent setting case for a dismissal hearing on July 20, 2018 at 9:00 a.m. "pursuant to Rule 165A."

July 19, 2018

Green Mountain files Motion in Opposition to Dismissal and Verified Motion to Retain and re-urges its motion for summary judgment.

July 20, 2018

Dismissal hearing held.

Green Mountain files its "First Amended Motion in Opposition to Dismissal and Verified Motion to Retain," amending the July 19 motion and referencing that a dismissal hearing is set for July 20, 2018 at 9:00 a.m.

July 31, 2018

Notice letter sent setting case for a dismissal hearing on August 31, 2018 at 9:00 a.m. "pursuant to Rule 165A."

August 31, 2018

Final dismissal hearing held.

September 25, 2018

Dismissal order signed as to Kela.

         The September 25, 2018 dismissal order states that the case was dismissed for the following reasons:

(X) failure to take action after notice of intent to dismiss for want of prosecution, (IN ACCORDANCE WITH RULE 165A LETTER)
(X) Dismiss for Want of Prosecution.

         Green Mountain filed its notice of appeal on October 25, 2018.

         Applicable Law

         We review a trial court's dismissal for want of prosecution under an abuse of discretion standard. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App-Dallas 2006, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); WMC Mortg., 200 S.W.3d at 752.

         A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) the court's inherent authority under common law; and (2) Texas Rule of Civil Procedure 165a. Tex.R.Civ.P. 165a; Villarreal, 994 S.W.2d at 630. A court may dismiss pursuant to rule 165a when a party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice, or when a case is not disposed within the Supreme Court of Texas' time standards. Tex.R.Civ.P. 165a(1), (2); Villarreal, 994 S.W.2d at 630. Regardless of the basis for the dismissal, due process requires that the party be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution. Villarreal, 994 S.W.2d at 630-31; Franklin v. Sherman Indep. Sch. ...


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