Opinion
NO. 14-18-00449-CV
08-04-2020
JEFFREY A. HARBERSON, Appellant v. WILLIAM C. KENDRICK AND CAROL C. KENDRICK, Appellees
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 17-CV-0060
MEMORANDUM OPINION
Appellant Jeffrey A. Harberson appeals, pro se, the trial court's order of dismissal after Harberson failed to appear at a pretrial conference. Appellees William C. Kendrick and Carol C. Kendrick (collectively "the Kendricks") have filed a motion to dismiss the appeal for lack of jurisdiction. For the reasons discussed below, we deny the Kendricks' motion to dismiss and affirm the judgment of the trial court.
I. BACKGROUND
On January 16, 2017, Harberson filed his original petition against the Kendricks. The Kendricks answered the suit, generally denying the allegations and asserting affirmative defenses. On April 18, 2017, the trial court signed a docket control order setting trial for April 9, 2018. The docket control order set a pretrial conference for March 30, 2018. It notified the parties that the court would only hear announcements of the parties and motions for continuance at the pretrial conference. The docket control order also notified the parties: "Failure to appear [at the pretrial conference] will be grounds for dismissal for want of prosecution or default judgment."
The background facts are not salient to this appeal. Harberson alleges that on January 31, 2015, he was on the premises owned by the Kendricks to give them a bid for roof repairs. When he began climbing down from the roof, the ladder moved, causing Harberson to fall to the ground and sustain personal injuries. The Kendricks allegedly supplied an unsteady, dangerous, and defective ladder to Harberson for the roof inspection.
On December 5, 2017, Harberson's attorney, M. Faggard, filed a motion to withdraw as Harberson's counsel. In the motion, Faggard stated that Harberson (1) requested that he withdraw as his attorney and (2) had "terminated the attorney client relationship" between them. Faggard also attached a copy of the docket control order to the motion. Faggard informed the trial court that he was providing the docket control order to Harberson at his last known address at the "Galveston County Jail, 5700 Avenue A, Galveston, TX 77551, Inmate Number [___]." On December 7, 2017, the trial court granted the motion, permitting Faggard to withdraw as Harberson's attorney. On December 8, 2017, the Galveston County District Clerk sent notice to Harberson at the Galveston County Jail that the trial court signed and entered an order granting counsel's motion to withdraw.
As provided in the Docket Control Order, the trial court conducted a pretrial conference in March 2018. Harberson did not appear at the pretrial conference. Nor did he inform the trial court that he could not attend. In a Dismissal Docket Order signed April 9, 2018, the trial court ordered the case "dismissed for Plaintiff's attorney failure to appear at Pre-trial Conference as set out in the Docket Control Order." On April 11, 2018, the Galveston County District Clerk sent notice to Harberson at the Galveston County Jail that the trial court had signed and entered an order of dismissal. Thereafter, on April 20, 2018, the Galveston County District Clerk resent the notice of dismissal to Harberson at a state prison in Huntsville, Texas.
Harberson sent a handwritten notice of appeal to the trial court, which bears the date May 24, 2018, was postmarked May 25, 2018, and filed stamped on May 29, 2018.
II. ANALYSIS
A. Issue
Harberson's notice of appeal clearly provides that he is appealing the trial court's order of dismissal signed April 9, 2018. Harberson's brief, under "Issues Presented," identifies the following: "appelant [sic] sustaind [sic] severe and documentd [sic] injuries because of defective ladder and homeowners [sic] actions."
B. Jurisdiction
The Kendricks filed a motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.3, arguing Harberson's late-filed notice of appeal deprives this court of jurisdiction. Because a question has been raised as to whether this court has appellate jurisdiction, we must address that threshold issue before considering the merits of this appeal. See M.O. Dental Lab. v. Rape, 39 S.W.3d 671, 673 (Tex. 2004); SJ Med. Ctr, LLC v. Estahbanati, 418 S.W.3d 867, 870 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
1. Timeliness of Notice of Appeal
We begin the analysis with the timeliness of Harberson's appeal. It is undisputed that the trial court dismissed Harberson's case on April 9, 2018. When a plaintiff's lawsuit is dismissed for want of prosecution, as here, the only available trial court remedy is a motion for reinstatement. See Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citations omitted). A verified motion to reinstate must be filed within thirty days of the date the dismissal order is signed or within the period provided by Rule 306a of the Texas Rules of Civil Procedure. Id. (citing Tex. R. Civ. P. 165a(3)). If the plaintiff does not file a timely verified motion to reinstate, the trial court's plenary power expires thirty days after the date of the dismissal order. See id. (citing McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986); Gillis v. Harris County, 554 S.W.3d 188, 192 (Tex. App.—Houston [14th Dist.] 2018, no pet.)). Because no timely motion to reinstate was filed, Harberson's notice of appeal was due on May 9, 2018, thirty days after the date of dismissal. See Tex. R. App. P. 26.1.
"[I]f a plaintiff does not file a timely motion to reinstate, the deadline to file a notice of appeal is, at most, forty-five days after the date of the dismissal order, which includes the thirty-day deadline and a fifteen-day extension period." Jarrell, 580 S.W.3d at 466; see Tex. R. App. P. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26 and holding a motion for extension of time is implied when appellant files a notice of appeal beyond the time allowed by Rule 26.1, but within the 15-day grace period provided by Rule 26.3 for filing a motion for extension of time)). In the absence of a timely notice of appeal, we lack jurisdiction over an attempted appeal.
It is undisputed that the notice of appeal was not filed with the court until May 29, 2018, but because Harberson is a pro se inmate, his notice of appeal is considered filed on May 25, 2018, more than forty-five days after the date of the trial court's dismissal order. Unless Harberson timely filed a verified motion to reinstate within thirty days of the dismissal order (which, as set forth above, he did not), or he established the right to an extended filing period under Rule 306a by filing a 306a motion within the extended time period, we lack jurisdiction to consider the appeal. See Jarrell, 580 S.W.3d at 466.
"[U]nder the mailbox rule as it applies to prisoners . . . a pro se inmate's pleading is deemed filed at the time the prison authorities duly receive the document to be mailed." Taylor v. State, 424 S.W.3d 39, 44 (Tex. Crim. App. 2014). The prisoner mailbox rule, however, is generally subject to the requirements of Rule 9.2(b). See Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010). Rule 9.2(b) states, "A document received within ten days after the filing deadline is considered timely filed if: (A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service; [and] (B) it was placed in an envelope or wrapper properly addressed and stamped . . . ." Tex. R. App. P. 9.2(b). Thus, Harberson's pleading was filed on May 25, 2018.
Forty-five days from April 9, 2018, is Thursday, May 24, 2018.
2. Extension of Post-Judgment Timetables Under Rule 306a
The appellate deadlines may be extended if a party or his attorney does not receive notice of the judgment or obtain actual knowledge of the judgment within the first twenty days after the judgment was signed. Tex. R. Civ. P. 306a(3); Tex. R. App. P. 4.2(a)(1). In that situation, the appellate timetables and the trial court's plenary power begin to run from the date the party or the party's attorney received notice from the clerk of the court or acquired actual knowledge of the judgment. Tex. R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1). In "no event" however, may the running of the timetables begin more that ninety days after the signing of the original judgment. Tex. R. Civ. P. 306a(4); Tex. R. App. P. 4.2(a)(1); see In re Bokeloh, 21 S.W.3d 784, 788 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding) (citing Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993) (explaining that the period provided by Rule 306a must begin within 90 days of judgment; no provision for notice received more than 90 days after judgment, Tex. R. Civ. P. 165a(3))).
A parallel provision of the Rules of Appellate Procedure affords additional time for filing documents related to the appeal under the same time parameters and in accordance with the procedures stated in Rule 306a(5) of the Rules of Civil Procedure. See Tex. R. App. P. 4.2(a)(1), (b), (c) (providing for additional time under the appellate timetable to file appellate documents in accordance with procedures in Rule 306a(5)).
To extend the appellate timetables under the present circumstances, the party must properly seek relief under Rule 306a and establish the date the party or his attorney first received notice or otherwise acquired actual knowledge of the dismissal. See Jarrell, 580 S.W.3d at 466-67; see also In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) (stating that the procedural timetables and the trial court's plenary power run from the date of the trial court's final judgment unless a party complies with the requirements of Rule 306a(5), including the requirement that the party file a sworn motion establishing the date the party or its counsel first learned of the judgment); John v. Marshall Health Servcs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (because plaintiff filed a Rule 329b motion for new trial within thirty days of actual notice of the judgment and within ninety days of the judgment as prescribed by Rule 306a(4), the trial court's plenary power was extended). "The purpose of a sworn motion [under Rule 306a] is to establish a prima facie case of lack of timely notice, thereby invoking the trial court's otherwise- expired jurisdiction for the limited purpose of conducting an evidentiary hearing to determine the date on which the party or the party's counsel first received notice or acquired knowledge of the judgment." Jarrell, 580 S.W.3d at 467; see In re Lynd Co., 195 S.W.3d at 685. "In addition, Texas Rule of Appellate Procedure 4.2 states that after a hearing on a Rule 306a motion, 'the trial court must sign a written order that finds the date when the party or the party's attorney first either received notice or acquired actual knowledge that the judgment or order was signed.'" Id. (quoting Tex. R. App. P. 4.2(c)).
Rule 306a(5) requires the party seeking to implement Rule 306a(4) to: [i] file a sworn motion; [ii] provide notice to the other parties; and [iii] prove in the trial court the date upon which the party adversely affected first received the clerk's notice of judgment or acquired actual knowledge that the judgment had been signed. Tex. R. Civ. P. 306a(5).
The date the party or its attorney first received notice or first acquired actual knowledge of the judgment alleged in the Rule 306a(5) motion also controls the time period for determining if the Rule 306a(5) motion itself is timely. John, 58 S.W.3d at 741. As the Texas Supreme Court has explained:
Compliance with the time periods prescribed by these rules is a jurisdictional prerequisite. Unless a party establishes in the manner prescribed by the rule that he had no notice or knowledge of the judgment, the general rule prevails: a trial court's power to reinstate a cause after dismissal expires thirty days after the order of dismissal is signed.In re Bokeloh, 21 S.W.3d at 791 (quoting Memorial Hosp. v. Gillis, 741 S.W.2d 364, 365-66 (Tex. 1987)). "Unless the movant in the sworn motion makes a prima facie showing of the dates upon which the movant and the movant's attorney first either received notice of the judgment or acquired actual knowledge of its signing, the trial court's plenary power is not reinvoked and the trial court is without jurisdiction to conduct a hearing under Rule 306a(5)." Jarrell, 580 S.W.3d at 468 (citing In re Lynd Co., 195 S.W.3d at 685).
In this case, in response to a notification he received of this court's intent to dismiss the appeal for want of jurisdiction, Harberson filed a letter on June 21, 2018, asserting he did not receive notice of the trial court's dismissal of the case until May 24, 2018. Specifically, he alleges:
I received the letter of dismissal on (May the "24") here at Stevenson Unit. The letter from (Linda Scott) in John D. Kinard's office, District Clerk of Galveston Cty [sic], was written on 4/20/18. It was marked in the Houston Postal System 4/30/18. Therefore 21 days were taken of the 30 days of which I am now aware of. I guess the other 24 days it took to get here from my previous unit, Holliday [sic].
Harberson's letter to our court dated June 21, 2018, invoked Rule 306a, alleging May 24 as the date he first acquired knowledge of the dismissal order. As such, in an abatement order, we remanded the case to the trial court for Rule 306a findings. On October 3, 2018, the trial court made a finding that "Appellant received notice on May 24, 2018 and thereby acquired actual knowledge of the judgment/dismissal of 17CV0060." The new judgment date dismissing the case on May 24, 2018, gave Harberson an extended time to file a notice of appeal, which he filed on May 25, 2018. His notice of appeal is deemed timely based on the new judgment date of May 24, 2018. Therefore, the Kendricks' motion to dismiss for lack of jurisdiction is denied.
At the close of his June 21, 2018 letter, Harberson states he sent a paupers motion along with an account of his inmate trust fund and a declaration. Our court documents reflect that he originally filed this motion on June 11, 2018 and refiled it on June 21, 2018. The "Declaration of Inability to Pay Cost," contains a verified statement under penalty of perjury that the foregoing statements are true and correct. See Tex. Civ. Prac. & Rem. Code § 132.001(a) (". . . an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath or affidavit required by statute . . . ."); Tex. Civ. Prac. & Rem. Code § 132.001(e) (an unsworn declaration made by an inmate must include a jurat that includes name, date of birth, identifying number, place of incarceration (name of corrections unit), city, county, state, and zip code, and a declaration under penalty of perjury that it is true and correct with the date and declarant's signature).
C. Dismissal for Want of Prosecution
In his brief, Harberson identified an issue that only addresses the merits of his case, and requests that we remand the case back to the trial court "to allow appellant to receive compensation for ovious [sic] liability." Because this case was dismissed on procedural grounds and, as such, the merits of the case were never reached, we construe Harberson's sole issue on appeal to be that the trial court erred in dismissing his suit.
Harberson does not assert on appeal that the trial court erred in failing to reinstate the case, nor has he preserved such an argument because he did not timely file a motion to reinstate in the trial court. To the extent the trial court found on October 3, 2018, in a conclusion of law that "17CV0060 should be reinstated," the trial court was without authority to do so because the trial court's power to grant such a motion expired well before October 3, 2018.
1. Standard of Review
We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam) (dismissal for want of prosecution). "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). Merely because a trial court decides a matter within its discretion differently than an appellate court would under similar circumstances does not demonstrate an abuse of discretion. Ringer v. Kimball, 274 S.W.3d 865, 867 (Tex. App.—Fort Worth 2008, no pet.).
2. Application
A trial court has authority to dismiss a case for want of prosecution under either Rule 165a of the Texas Rules of Civil Procedure or the court's inherent power to maintain and control its docket. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under Rule 165a(1), a trial court may dismiss a case for want of prosecution on the failure of a party seeking affirmative relief to appear for a hearing or trial if the party had notice that dismissal could result from the party's failure to appear. Tex. R. Civ. P. 165a(1). The Texas Supreme Court has held that Rule 165a(1) encompasses the failure to appear for a pretrial scheduling conference. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 851-52 (Tex. 2004); Gillis, 554 S.W.3d at 190 n.1. A trial court may, under its inherent power, dismiss a cause of action when a plaintiff fails to prosecute his case with due diligence. Villarreal, 994 S.W.2d at 630.
In this case, on April 9, 2018, the trial court signed a "Dismissal Docket Order" that states:
It is ORDERED that the above styled and numbered cause has been dismissed for Plaintiff's attorney failure to appear at Pre-trial Conference as set out in the Docket Control Order.It is undisputed that Harberson's attorney withdrew (at Harberson's request) in December 2017. Harberson's contention in his brief that he was "denied legal representation by dismisal [sic] of attorney Mark Faggort [sic]" is without merit. It is also undisputed that Harberson's attorney, in his motion to withdraw, represented to the trial court that he sent a copy of the docket control order to Harberson. The docket control order notified the parties that the pretrial conference was set for March 30, 2018. It warned, "Failure to appear [at the pretrial conference] will be grounds for dismissal for want of prosecution."
Harberson does not challenge the adequacy of the trial court's notice of its intent to dismiss his case, and we need not decide whether Harberson was adequately notified by the trial court's docket control order. See Gillis, 554 S.W.3d at 190 n.1 ("[B]ecause Gillis does not challenge the notice provided in this case, we offer no opinion regarding the sufficiency of that notice."); see also Alexander, 134 S.W.3d at 851-52 (holding that "[b]ecause the notice in this case clearly set a date and time for a hearing and clearly stated that the parties could expect the court to dismiss the case for want of prosecution for nonattendance, the order satisfies any requirement that there be notice and an opportunity to be heard before a case is dismissed for want of prosecution.").
Harberson does not argue that he did not receive the docket control order or that he was unaware of the pretrial conference. Instead, Harberson alleges that he "attempted to communicate" with the trial court by a "letter" sent on April 1, 2018. Harberson further alleges that "[t]he Judge never saw my motion." He does not state the contents of the letter he alleges he sent to the trial court. Similarly, he does not describe the basis of any alleged motion filed. Harberson's contentions are unsupported by the record in this case, as there is no record of any correspondence or motion filed by Harberson prior to dismissal.
Rule 165a provides that, at the dismissal hearing, the trial court "shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Tex. R. Civ. P. 165a(1). At the time the trial court signed the dismissal order on April 9, 2018, it was undisputed that Harberson had not appeared for the pretrial conference on his own behalf or by new counsel. Nor had he informed the trial court before the pretrial conference that he could not attend.
Finally, as set forth above, when Harberson did acquire actual knowledge of the dismissal in this case on May 24, 2018, he did not timely file a motion to reinstate his case. See Tex. R. Civ. P. 165a(3) (providing that motion to reinstate "shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a"). "[W]hen an appellant has the time and opportunity to file a motion for reinstatement that could raise a claimed error, he waives any due process rights if he fails to file such motion." Wright v. Tex. Dep't of Crim. Justice-Inst'l Div., 137 S.W.3d 693, 695 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A motion to reinstate would have provided Harberson an opportunity to develop facts not in the record, such as information regarding his incarceration, and would have afforded the trial court an opportunity to correct any error. The record reflects that Harberson failed to timely file a motion to reinstate.
On this record, we hold that Harberson has not shown that the trial court abused its discretion when it dismissed Harberson's case based on his failure to appear at the pretrial conference. See Tex. R. Civ. P. 165a(1). We overrule Harberson's issue.
III. CONCLUSION
We find this court has jurisdiction to consider Harberson's appeal. As such, Kendricks' motion to dismiss is denied.
We affirm the judgment of the trial court.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Wise, Jewell, and Poissant.