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Roman v. Halverson

Court of Appeals of Texas, Eighth District, El Paso

November 4, 2019

EDITH ROMAN AND ALEJANDRO HERNANDEZ, Appellants,
v.
JOY HALVERSON, Appellee.

          Appeal from the 205th District Court of El Paso County, Texas (TC# 2016DCV1580)

          Before Rodriguez, J., Palafox, J., and McClure, Senior Judge

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Appellants Edith Roman and Alejandro Hernandez appeal the trial court's decision dismissing their lawsuit for failure to diligently prosecute. Appellants raise two contentions on appeal: (1) the trial court abused its discretion in dismissing their case because they were not given notice of the potential dismissal and the court did not hold a separate hearing before dismissing the case; and (2) the trial court abused its discretion in failing to hold a hearing on their motion to reinstate the case. We affirm.

         BACKGROUND

         Appellants Edith Roman and Alejandro Hernandez filed suit against Appellee Joy Halverson for common-law fraud and negligent misrepresentation regarding the sale of designer shoes. Roman alleged she had given Halverson, who owns a consignment store, several pairs of designer shoes to sell in Halverson's store. Roman alleged Halverson severely undervalued the shoes and sold several pairs without her consent for hundreds of dollars less than they were supposedly worth. Roman demanded Halverson compensate her according to what she argued was the true value of the items. When Halverson refused, Roman and Hernandez initiated this lawsuit.[1]

         The case was set for a status hearing on April 13, 2017. But Appellants failed to appear. Due to their absence at the hearing, the trial court dismissed the case. Appellants subsequently filed a motion to reinstate, and the court granted their motion. The case was reinstated on May 23, 2017 and a "motion" hearing was set for August 23, 2017 at 10:00 a.m., to be followed by a mandatory conference at 11:00 a.m. But Appellants missed this hearing too. The court stated on record that because Appellants had once again failed to appear for their hearing, it would be dismissing the case for want of prosecution.

         Once again, Appellants filed a motion to reinstate. In their motion, they alleged they had not intentionally missed the hearing but had encountered bad traffic on the way to the courthouse. They also alleged Hernandez called the court coordinator at 10:15 a.m. to explain their tardiness but were informed the case had already been dismissed. A hearing was set for November 30, 2017 on the motion to reinstate. But on November 21, Appellants filed a notice of appeal. Appellants allege they showed up for the November 30 hearing, but the trial court refused to hear their motion to reinstate because of their notice of appeal. This appeal followed.

         DISCUSSION

         Dismissal for Want of Prosecution

         In their first issue, Appellants contend the trial court abused its discretion in dismissing their case for want of prosecution. They allege the court violated their right to due process by failing to give them notice and an opportunity to be heard on the dismissal.

         Standard of Review

         We review a trial court's decision to dismiss a case for want of prosecution for clear abuse of discretion. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984)(citing Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957)); Fox v. Wardy, 234 S.W.3d 30, 32 (Tex.App.-El Paso 2007, pet. dism'd w.o.j.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. Fox, 234 S.W.3d at 32. The burden is on the appellant to produce a record that shows the trial court abused its discretion. Id., (citing Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987)).

         Applicabl ...


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