Opinion
NO. 14-16-01001-CV
04-03-2018
ANAMBRA STATE COMMUNITY IN HOUSTON, INC. (ANASCO), Appellant v. CHRISTIAN CHINWUBA ULASI, INDIVIDUALLY AND AS THE FORMER PRESIDENT OF ANASCO, AND VINCENT N. NWEKE D/B/A ANAMBRA STATE COMMUNITY, HOUSTON, Appellees
On Appeal from the 80th District Court Harris County, Texas
Trial Court Cause No. 2010-68898
MEMORANDUM OPINION
Appellant Anambra State Community in Houston, Inc. (ANASCO) appeals an order denying its motion for reinstatement of case dismissed for want of prosecution. We reverse the trial court's judgment and remand.
I. Procedural Background
A summary of the factual background is set forth in this Court's prior opinion. Anambra State Cmty. in Houston, Inc. v. Ulasi, 412 S.W.3d 786, 788-90 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Appellant filed its original petition in October 2010, alleging claims for fraud and breach of fiduciary duty against appellees Christian Chinwuba Ulasi, individually and as former president of ANASCO, and Vincent N. Nweke d/b/a Anambra State Community, Houston. The parties filed cross motion for summary judgment. In January 2012, on its own motion, the trial court signed an order of dismissal, stating that it appeared this case presents no justiciable controversy within the court's subject matter jurisdiction and, to the extent there is a controversy, the trial court declined to exercise jurisdiction over the claims because they deal with the internal affairs of a non-profit organization. Appellant filed an appeal to this court, and the judgment was affirmed in part, reversed in part, and remanded in part. Anambra State Cmty. in Houston, Inc. v. Ulasi, 412 S.W.3d 786, 788-90 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
In October 2015, the trial court issued a docket control order/pretrial order.
On October 5, 2016, the case was called to trial. Attorneys for both sides appeared for trial. The trial court's docket sheet reflects that counsel for appellant had filed a motion to withdraw that was not in compliance with Tex. R. Civ. P. 10 and was never set for submission or oral hearing. Appellant announced that he was not ready for trial because his client was not present but never filed a verified or unverified motion for continuance. Appellees appeared with counsel and witnesses and announced "ready." The trial court dismissed the case for want of prosecution.
Appellant has failed to provide a reporter's record of the docket call hearing.
On October 19, 2016, appellant filed a verified motion to reinstate and requested an oral hearing. Appellees filed a response in opposition to reinstatement. On December 9, 2016, the trial court held a hearing and denied appellant's motion to reinstate. On that same date, the trial court filed an amended order of dismissal. Appellant timely filed this appeal.
II. Analysis
Appellant raises three issues on appeal: (1) whether the trial court erred in dismissing its case, therefore violating its due process rights; (2) whether the trial court erred by denying its motion to reinstate; and (3) whether appellant's failure to appear at trial was intentional or the result of conscious indifference. Appellant also contests the portion of the trial court's order denying reinstatement wherein appellate attorney's fees are awarded should appellant appeal.
A. Standard of Review
We apply an abuse of discretion standard of review to a trial court's dismissal for want of prosecution and denial of a motion to reinstate. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam) (dismissal for want of prosecution); Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 467 (Tex. 1995) (per curiam) (denial of motion to reinstate). "A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles." Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.—Houston [14th Dist.] 2006, pet. denied.). In reviewing a trial court's dismissal order, we look at the record in its entirety and the procedural history of the case. See Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 856 (Tex. App.—Houston [1st Dist.] 1993, no writ).
B. The Dismissal Order
In its first issue, appellant argues that the trial court abused its discretion and violated its due process rights by "failing to inform it of the trial date and failing to grant appellant enough time to prepare for trial." See Tex. R. Civ. P. 165a(1); Gen. Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731, 733 (Tex. App.—Houston [14th Dist.] 1993, no writ).
A trial court's authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the court's inherent power. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Lynch v. George-Baunchand, No. 14-14-00186-CV, 2015 WL 4930758, at *2 (Tex. App.—Houston [14th Dist.] Aug. 18, 2015, no pet.) (mem. op). A trial court may dismiss under Rule 165a on the "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice," or when a case is "not disposed of within time standards promulgated by the Supreme Court." Tex. R. Civ. P. 165a(l)-(2). In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Tex. R. Civ. P. 165a(4); Villarreal, 994 S.W.2d at 630; Lynch, 2015 WL 4930758, at *2.
"Due process requires that adequate notice be given before an order is entered dismissing a suit for want of prosecution." Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citation omitted). "Because a failure to give such notice deprives the party of its right to be heard by the court, the omission of such notice is a denial of due process under the Fourteenth Amendment." Id. To satisfy due process, it is only necessary that there be notice of either the intent to dismiss or the order of dismissal. See Harris Cty. v. Miller, 576 S.W.2d 808, 810 (Tex. 1979); see also Lowe v. U.S. Shoe Corp., 849 S.W.2d 888, 891 (Tex. App.—Houston [14th Dist.] 1993, writ denied). A lack of notice, however, can be cured when the trial court holds a hearing on the appellant's motion to reinstate. Jimenez, 999 S.W.2d at 129. The notice and hearing requirements ensure that the dismissed claimant has received due process. Lynch, 2015 WL 4930758, at *2 (citing Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied) (per curiam); Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ)).
In the case before us, appellant claims it was denied due process by the trial court's failure to adequately inform it of the trial date and then dismissing the suit for failure to prosecute based on appellant's failure to proceed to trial. The record in this case reveals that on the day of trial, appellant's counsel appeared and stated that appellant was not ready to proceed. The trial court at that time dismissed the suit for failure to prosecute. Appellant subsequently filed a verified motion to reinstate, and the trial court held a hearing on, and denied, that motion by order dated December 8, 2016. It is not disputed that the trial court failed to provide any notice to appellant of its intent to dismiss for want of prosecution prior to the time the case was dismissed on October 5, 2016. See Jimenez, 999 S.W.2d at 128.
Although appellant was not provided with notice of the trial court's intent to dismiss the case for want of prosecution prior to the dismissal hearing, appellant was afforded its due process rights because it did receive actual notice of the dismissal order in time to file a motion to reinstate, and a hearing was held on that motion. See Jimenez, 999 S.W.2d at 128-29; see also Davis v. Friedson, No. 14-08-01098-CV, 2010 WL 1006644, at *10 (Tex. App.—Houston [14th Dist.] Mar. 16, 2010, no pet.) (substitute mem. op.). The record contains no indication the appellant was denied an opportunity to be heard at the hearing. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Thus, even if the trial court failed to timely notify appellant of the docket call, any alleged due process violation was cured. See id. We hold the hearing on appellant's reinstatement motion satisfied the due process rights applicable to the dismissal of its case. See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex. App.—Houston [14th Dist.] 1993, no writ). Appellant's first issue is overruled.
The issue of the adequacy of the notice of the trial court's intent to invoke its inherent authority to dismiss for want of prosecution must be addressed by the appellate court before deciding whether the trial court properly concluded that appellant failed to exercise diligent prosecution. Jimenez, 999 S.W.2d at 129 n. 3 (citing Villarreal, 994 S.W.2d at 631-32).
C. Motion to Reinstate
In his second and third issues, appellant asserts the trial court erred by denying its motion to reinstate, arguing that appellant's failure to appear at trial was not intentional or the result of conscious indifference
When a case is dismissed for want of prosecution, "[t]he court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." Tex. R. Civ. P. 165a(3); accord Smith, 913 S.W.2d at 468. A failure to appear is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Id. An adequate justification, such as accident, mistake, or another reasonable explanation, negates the intent or conscious indifference grounds that would otherwise cause a motion seeking reinstatement to be denied. Lynch, 2015 WL 4930758, at *3 (citing Smith, 913 S.W.2d at 468).
In a verified motion to reinstate, appellant's counsel explains that he filed an unopposed motion to withdraw in this case because appellant's president, Hyacinth Chiedu, appeared in a different Harris County trial court (i.e., the 295th district court) and informed that court that he would hire new counsel to represent appellant in all cases. According to appellant's verified motion, he
Appellant attached a copy of Ezeoke's unopposed motion for withdrawal of counsel to appellant's brief. It is not part of the court record. With limited exceptions not relevant here, "documents attached as appendices to briefs do not constitute part of the record of the case and cannot be considered by this Court on appeal." Garcia v. Sasson, 516 S.W.3d 585, 591 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (an appellate court may not consider matters outside the appellate record).
. . . had no further dealings regarding the case at bar. Mr. Ezeoke received no letters, updates, or any other information on the case from the court. On October 4, 2016, and about 3:00 p.m., Mr. Ezeoke received a call from the court coordinator informing him that the case has been set for trial on October 5, 2015. Counsel was surprised by the call because he was under the impression that Attorney [Kurt] Clark[e] was representing Plaintiff. Upon request by Plaintiff's representative, Mr. Hyacinth Chiedu, Mr. Ezeoke gave the entire file to ANASCO representatives. There was no way Mr. Ezeoke could try the case without the necessary file and without communicating with Plaintiff.
Mr. Ezeoke[] provided the court coordinator with the phone number of the president of ANASCO, Hyacinth Chiedu. Coordinator stated that she would call Mr. Chiedu and inform him of the trial.
On October 5, 2016, Mr. Ezeoke reluctantly appeared at the 80th District Court for trial as ordered by the court. None of Plaintiff's representatives appeared for trial. Counsel was informed that it was his responsibility to inform Plaintiff and its representatives about the scheduled trial. The Court asked counsel if he was ready for trial. Counsel stated that he was not ready and that he was no longer representing the Plaintiff. The court dismissed the Case for Want of Prosecution.
In this case, it is undisputed that appellant was afforded a hearing on its motion to reinstate. Appellant has failed to provide a reporter's record of the hearing. We are not required to presume that an evidentiary hearing was held in which evidence supporting the trial court's judgment was presented. See Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 150 & 151 n. 4 (Tex. 2015) (per curiam) (citing Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005)); see also Lynch, 2015 WL 4930758, at *3 (presuming hearing held on motion to reinstate was nonevidentiary absent indication in the record otherwise); Ortiz v. Columbus Ins. Agency, No. 04-07-00855-CV, 2008 WL 2923775, at *4 (Tex. App.—San Antonio July 30, 2008, no pet.) (mem. op.) (holding that appellant who did not bring forward a reporter's record did not waive complaint that trial court erred by denying motion to reinstate when record reflected the hearing on the motion was nonevidentiary).
Thus, in determining whether the trial court abused its discretion in refusing reinstatement, we review the entire record and determine whether the evidence was sufficient to find that the failure of the party was not due to accident, mistake, or other reasonable explanation. See Lynch, 2015 WL 4930758, at *4 (citing Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no writ)). The party requesting reinstatement has the burden of proof to establish the ground for reinstatement under Rule 165a. See id. (citing Keough, 204 S.W.3d at 3-4).As discussed above, appellant filed a verified motion to reinstate in which his counsel asserted that his announcement of "not ready" at docket call was not the result of conscious indifference of the court's trial schedule but was due to mistake. Appellant's counsel explained that in another case pending in the 295th district court, a representative of appellant, Hyacinth Chiedu, announced in open court that he would be hiring new counsel to represent appellant in all of its cases. Appellant's counsel maintains that he returned, at Chiedu's request, appellant's entire case file. Thereafter, Ezeoke claims that he filed a motion for withdrawal of counsel in this case. Ezeoke asserts that he had no further dealings regarding this case; he received no letters, updates or any other information on the case from the court. Ezeoke maintains he was surprised to receive a call from the trial court coordinator on October 4, 2016, because he was under the impression that attorney Clarke was representing appellant. Appellees do not refute that appellants hired another lawyer in the 295th district court case or that Ezeoke filed a motion to withdraw in this case. Although appellant's attorney may not have been "as conscientious as he should have been" in failing to confirm whether he had been replaced as counsel of record in this case, his actions did not amount to conscious indifference. See Smith, 913 S.W.2d at 468; Lynch, 2015 WL 4930758, at *4; see also Microcheck Sys., Inc. v. Smith, No. 01-10-00169-CV, 2011 WL 1632180, at *4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (mem. op.) (holding that trial court erred by refusing to reinstate case when attorney of record provided uncontroverted testimony that her failure to appear at docket call was not the result of conscious indifference but was due to her mistaken belief that she had been replaced as counsel of record).
Because appellant's verified motion to reinstate reasonably explained why appellant's attorney announced "not ready" at docket call and because the record contains no evidence that the failure was intentional or the result of conscious indifference, the trial court abused its discretion when it denied the motion for reinstatement. Appellant's second and third issues are sustained.
Appellate Attorney's Fees
Appellant further contests the trial court's order denying reinstatement as it orders appellant to pay appellees' attorney's fees in the event of an appeal. "A party may not be penalized for the successful appeal of error in the lower court's judgment." Robinwood Bldg. & Dev. Co. v. Pettigrew, 737 S.W.2d 110, 112 (Tex. App.—Tyler 1987, no writ) (citing King Optical v. Automatic Data Processing of Dallas, 542 S.W.2d 213 (Tex. Civ. App.—Waco 1976, writ ref'd n.r.e.). "However, it is implicit in the court's judgment that all the attorneys' fees awarded, trial and appellate, are conditioned on the judgment's successful survival of the appellate process." Id.; see also Solomon v. Steitler, 312 S.W.3d 46, 59 (Tex. App.—Texarkana 2010, no pet.) (recognizing award of appellate attorney's fees "implicitly requires success in order to recover the fees" and reforming "the judgment to explicitly clarify that the award is conditional"). Because we have held the trial court abused its discretion in denying appellant's motion to reinstate, any issue surrounding payment of appellees' attorney's fees on appeal is moot.
III. Conclusion
We reverse the trial court's order in its entirety denying appellant's motion to reinstate and remand the case for further proceedings.
/s/ John Donovan
Justice Panel consists of Justices Jamison, Busby, and Donovan.