### NUMBER 13 - 12 - 00711 - CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

HERIBERTO DE LA GARZA D/B/A LUDY’S ROPA USADA, Appellant,

v. DALIA RAMIREZ D/B/A LOS BALDOS ROPA USADA, ET AL., Appellee s .

On appeal from the County Court at Law No. 7

of Hidalgo County , Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Wittig

Memorandum Opinion by Justice Wittig 1

1 Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003 (West, Westlaw through 2013 3d C.S.)2

Appellant, Heriberto de la Garza d/b/a Ludy’s Ropa Usada , asks us in pertinent part to reverse the trial court's order dismissing his case for want of prosecution and denying his motion to reinstate. We affirm.
I. B ACKGROUND Appellant appeals the dismis sal of his claims for want of prosecution against appellees Dalia Ramirez d/b/a Los Baldos Ropa Usada, Lalo Ramirez d/b/a Los Baldos Ropa Usada, Maria Martinez d/b/a/ Los Baldos Ropa Usada, and the h ei rs of Ju an Francisco Martinez

. Marie Ludivina de la Garza d/b/a Ludy’s Ropa Usada originally filed suit against appellees on June 6, 2005, b ased upon an alleged debt for the wholesale purchase of used clothing

. She was soon dropped as plaintiff and replaced by a ppellant later that year. The origina l petition claimed a default in payments beginning on January 14, 2003. 2 During his 2010 deposition, a ppellant stated he did not own the claim individually and that t he claim was the property of H & L Southern Border Rags, Inc

. ( “ H & L ” ), which was formed by a ppellant and his wife in 2008. Appellee Maria Martinez filed for summary judgment based upon the statute of limitations . The trial court granted her motion for summary judgment. Martinez also filed a motion to dismiss based upon appellant’s lack of standing to br ing suit, and a similar motion was also subsequently filed by Dalia and Lalo Ramirez, (daughters of Juan Martinez). The trial court granted these motions

. In addition, by their verified denial,

a ppellees Dalia and Lalo Ramirez av erred they were employees of, but not owners of , Los Baldos Ropa Usada.

2 Appellant’s third amended petition claimed the default began in July 2003, which in any event was more than four years before the attempted additio n of H & L as a plaintiff or by assignment.3

In 2011, a ppellant secured an assignment of claims from H & L and then later filed a motion for leave to substitute H & L for appellant. Th e trial court denied this motion. More than seven years and four months after the case was originally filed, t he entire case was dismissed for want of prosecution on October 25, 2012, includ ing for the first time , the dismissal of appellees’ counterclaims

. In addition to issues pertaining to the trial court’s dismissal of the case and denial of his motion to reinstate, a ppellant raises multiple issues concerning the amendment of his pleadings, the assignment of the H & L claim , the adequacy of summary judgment proof, the accrual date for his debt claim, tolling of limitations because of the death of an alleged obligor of the debt, application of the discovery rule, and misidentification of the debtor. T hese subsidiary issues are not necessary to the final disposition of this appeal, and accordingl y are not address ed

. See T EX

. R. A PP

. P . 47.1

. II. S TANDARD OF R EVIEW We review a trial court's denial of a motion to reinstate for abuse of discretion. Aguilar v. 21st Century Res., Inc ., 349 S.W.3d 32, 35 (Tex. App.

— El Paso, 2010 , no pet. ) citing Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 96 (Tex. App.

— Houston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding princip les. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). If an order dismissing a case does not state the grounds on which it was granted, the party seeking reinstatement must negate all possible grounds for dismissal. Shook v. Gilmore & Tat ge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex. App.

— Waco 1997, pet. denied); see Polk, 165 S.W.3d at 96

– 97 (a ffirming denial of reinstatement when the plaintiff produced evidence4

her trial counsel was absent from trial due to illness, but failed to produce e vidence the case had been dilige ntly prosecuted). The movant for reinstatement bears the burden to produce evidence supporting the motion. See Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex. App.

— Houston [14th Dist.] 1975, no writ) (“The failure of the pla intiff to offer proof of his grounds for reinstatement justified the court's denial of his motion . . . . ”); see also HRN, Inc. v. Shell Oil Co., 102 S.W.3d 205, 217 (Tex. App.

— Houston [14th Dist.] 2003), rev'd on other grounds, 144 S.W.3d 429 (Tex. 2004) (affirming denial of reinstatement when movant alleged compliance with discovery orders but produced no evidence of compliance) ; s ee also Keough v. Cyrus USA, Inc. , 204 S.W.3d 1 , 3

— 4 (Tex. App.

— Houston [14 th Dist.] 2006 , no writ. ) We likewise review a trial court's decision to dismiss a case for want of prosecution under a clear abuse

- of

- discretion standard. State v. Rotello, 671 S.W.2d 507, 508

– 09 (Tex. 1984); Fox v. Wardy, 234 S.W.3d 30, 32 (Tex. App.

— El Paso 2007, pet. dism'd w.o.j.); Dick Poe Motors, Inc., v. DaimlerChrysler Corp., 169 S.W.3d 478, 484 (Tex. App.

— El Paso 2005, no pet.)

. III

. D ISCUSSION Appellant argues that a court should grant a motion to reinstate if the failure of the party to appear was not intentional or the result of conscious indifference but the result of a mistake or accident or can otherwise be reasonably explained , citing T EX

. R. C IV

. P

. 165a(3) and Smith v. Babcock & Wilcox Const. Co. , 913 S.W.2d 467, 468 (Tex. 1995). We note that in Smith , the attorney was i n trial in another county. See 913 S.W.2d at
468.5

To support a dismissal, the failure to appear must be without adequate justification. Id

. If the party can show reasonable diligence in prosecuting the suit, the trial court should grant the motion to reinstate

. See MacGregor v. Rich , 941 S.W.2d 74, 75 (Tex. 1997) ( stating that w e review a dismissal for want of prosecution under a clear abuse of discretion standard and the central issue is whether the plaintiffs exercised reasonable diligence )

. Accord ing to a ppellant, a motion to reinstate essentially provides a dismissed plaintiff the opportunity to explain a failure to prosecute with due diligence and ask the trial court to reconsider its decision to dismiss. See Ellmossallamy v. Huntsman , 830 S.W.2 d 299, 302 (Tex. App.

— Houston [14 th Dist.] 1992 , no writ )

. We do not disagree with these general propositions. Without a single citation to the record, a ppellant generally argues that the trial court erred in failing to grant a ppellant’s motion to reinstate because his failure to appear at the hearing was not the result of conscious indifference but a result of mistake and accident. “Specifically, Ludy’s Ropa Usada’s counsel believed that, because the trial court had already gr anted a summary judgment and order of dismissal disposing of all claims, the trial court would not take any further action to dispose of the case.” Again , there is no citation to the record , but our review of the appellate record indicates a somewhat diff erent scenario including the salient fact that all claims had not been dismissed

. The only motion for summary judgment was filed on behalf of Maria Martinez. Similar ly, the original motion to dismiss for lack of jurisdiction was by Maria Martinez. Subse quently, Dalia Ramirez and Lalo Ramirez also filed a motion to dismiss for lack of jurisdiction , but there was no motion filed by the h eirs of Juan Francisco Martinez in the appellate record , although the order of dismissal on jurisdictional grounds included the6

h eirs. One of the appellees submits that no service was ever obtained on the h eirs , but that information is not included in the appellate record. Furthermore, a ppellees had filed counterclaims on April 11 and 18, 2011 , and those pending claims were not addressed in the trial court’s order granting the summary judgment and dismissing certain claims on the jurisdictional basis. However, even assuming a ppellant’s failure to appear was not intentional or due to conscious indifference, he must negate all possible grounds for dismissal where the order dismissing a case does not state the grounds on which it was granted. See Shook, 951 S.W.2d at 296; see also Polk , 165 S.W.3d at 96

– 97. The 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. Villarreal v. San Antonio Truck & Equip ., 994 S.W.2d 628, 630 (Tex. 1999) ( citing Veterans' Land Bd. v. Williams , 54 3 S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson , 307 S.W.2d 85, 87 ( Tex. 1957) )

. A trial court may dismiss under Rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial o f which the party had notice,” T EX

. R. C IV

. P. 165a(1), or when a case is “not disposed of within the time standards promulg ated by the Supreme Court. ” Id. at R 165a(2). In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a p laintiff fails to prosecute his or her case with due diligence. See Rizk v. Mayad

, 603 S.W.2d 773, 776 (Tex. 1980); Williams , 543 S.W.2d at 90. The time standards for the disposition of civil cases provide that civil non

- family jury cases in county or d istrict court should be disposed of within eighteen months from the appearance date , and non

- jury cases should be disposed of within twelve months.
T EX

. R. J UD

. A DMIN . 6. 1. Based on the record, the a ppearance date for this case would7

have occurred in July 2005. The case was dismi ssed on October 25, 2012, some six
years and several months beyond the time provided by the guidelines. Appellant submitted no evidence of diligence in his motion to reinstate. 3 While

a ppellant states he filed an affidavit of counsel with his motion to reinstate, the appellate record contains only a verification and no facts are contained therein. Similar to his appellate brief, a ppellant states his conclusion that his failure to appear was due to mistake because his couns el thought the entire case had been disposed of . He also alleges that the matter had been set for trial “at least two times” with several requests for docket control conferences. Nevertheless, a ppellant cites Huntsman , 830 S.W.2d at 302 , arguing that the motion to reinstate provide d him with the opportunity to explain a failure to prosecute with due diligence. While we agree with the axiom, a ppellant’s motion fails to conform to his own stated standards

. It is not until five years after filing suit , in 2010 during a ppellant’s deposition , that

a ppellant admitted that he was not own er of the claim. H & L took over a ppellant’s business in 2008 and was the true owner of the claim. Appellant then attempted an assignment from H & L to himself in 2011. But what enforceable claim , if any, did H & L have some seven years after the acc rual of the debt? Thereafter, a ppellant unsuccessfully sought to have H & L substituted for himself as plaintiff based upon a “misnomer” of the plaintiff. We hold that these actions do not amount to due diligence. See Polk

, 165 S.W.3d at 96

– 97.

3 While Appellant submitted conclusory statements in his motion and appellate brief, such statements constitute no evidence to substantiate due diligence. See Dolcefino v. Randolph , 19 S.W.3d 906, 930

— 31, (Tex.A pp.
— Hou ston [14th Dist.] 2000, pet. denied.)

.8

In summary , a ppellant f irst sued the two daughters although they claimed to be employees only, then named their father who died in 2004 , then their mother, and then the hei rs of the father, via the estate, in 2008 , apparently never perfecting service on the latter. As already noted, in an interlocutory order, the trial court dismissed the widow and the daughters on the grounds a ppellant did not own the claim. Again, we obs erve this does not demonst r ate due diligence. See Rizk v. Mayad , 603 S.W.2d 773, 776 (Tex. 1980). Other than an unreferenced statement in his brief that there were two trial settings in over seven plus years, the record before us and a ppe llant’s own pleadings and brief show little or nothing that supports his assertion that he exercised due diligence to move his case to tria l from the date it was filed in June 2005 to the date it was dismissed on October 25, 2012. 4 See i d. Accordingly, the trial cou rt did not abuse its discretion by either dismissing the case for want of prosecution or refusing to reinstate the matter.
IV. C ONCLUSION The judgment of the trial court is affirmed.

D ON WITTIG Assigned Justice

Delivered and filed, the 7 th day of May , 2015

.

4 In particular, a ppellant failed to show use of due diligence in naming the proper claimant and in ascertaining a proper obligor of the debt.