Affirm and Opinion Filed August 22, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00409-CV

PEOPLE PRIORITY SOLUTIONS, LLC, Appellant

V.

MCILVEEN REAL ESTATE & MANAGEMENT, INC., Appellee

On Appeal from the 192nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-20-02057

MEMORANDUM OPINION

Before Justices Partida-Kipness, Pedersen, III, and Nowell

Opinion by Justice Pedersen, III

People Priority Solutions, LLC (People Priority) appeals the trial court’s

May 3, 2021 order dismissing its plea in intervention for want of prosecution. In a 

single issue, People Priority contends the dismissal was erroneous because it did not 

receive notice of the court’s intent to dismiss its claims against 

appellee/intervention-defendant McIlveen Real Estate & Management, Inc. 
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(McIlveen) and intervention-defendant Alicia Hernandez. We affirm the trial court’s 

order. 1

Background

The case below involved three parties and a series of agreements to sell a 

residential property. Hernandez owned the property and initially contracted to sell it 

to People Priority. Hernandez told McIlveen that People Priority’s option to buy the 

property had recently expired, and she contracted to sell the property to McIlveen

instead. Approximately one week before that sale was scheduled to close, however, 

Hernandez told McIlveen that she had extended the agreement to sell to People 

Priority. McIlveen sued Hernandez for breach of contract and fraud, seeking 

injunctive and declaratory relief as well as specific performance of its contract. 

McIlveen also sued People Priority for tortious interference with Hernandez’s 

contract to sell the property to McIlveen.

Hernandez filed no answer below; McIlveen filed a series of motions for 

default judgment against her. Approximately six months into the litigation, McIlveen 

nonsuited its claims against People Priority, but People Priority filed a Plea in 

Intervention urging claims against both Hernandez and McIlveen regarding its own 

purported purchase rights to the property. When McIlveen filed its final motion for 

 

1

 People Priority’s notice of appeal states that this proceeding is a regular (not restricted) appeal from 

“an interlocutory default judgment signed January 26, 2021, an order denying Intervenor’s motion for 

summary judgment signed on January 26, 2021, and an order of dismissal signed May 3, 2021.” The single 

issue before us challenges the dismissal order; we do not address the trial court’s earlier rulings.
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default against Hernandez, People Priority objected to the motion. People Priority 

then filed a motion for partial summary judgment, arguing that McIlveen could not 

prove that Hernandez breached a contract with McIlveen. McIlveen challenged 

People Priority’s standing to resist Hernandez’s default. On January 26, 2021, the 

trial court granted an interlocutory default judgment against Hernandez (stating that 

“Relief for said breach shall be determined”) and denied the motion for partial 

summary judgment.

Our record contains a notice dated April 19, 2021 and addressed to Calvin D. 

Johnson, counsel for plaintiff McIlveen, stating that a dismissal hearing was set for 

May 3, 2021 at 9:00 a.m. and directing Mr. Johnson, prior to that hearing, to provide 

the trial court with a written statement as to the status of the case. The notice states 

that failure to do so would result in the case’s being dismissed pursuant to rule 165a 

of the Texas Rules of Civil Procedure. On May 3, the trial court signed its Order of 

Dismissal for Want of Prosecution (the May 3 Order), which stated in its entirety:

P1aintiff(s) having failed to take certain action heretofore 

specified by the court within the time period prescribed, and having not 

disposed of this case, the court finds that the cause should be dismissed 

for want of prosecution pursuant to Tex. R. Civ. P. 165a. The Court 

finds that Plaintiff was duly notified of a dismissal hearing set 

05/03/2021 at 9:00 AM and did not take the necessary action. 

Accordingly,

IT IS ORDERED that the case is dismissed for want of 

prosecution with costs taxed against Plaintiff, for which [let] execution 

issue.
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People Priority contends that its counsel did not receive notice of the May 3 

dismissal hearing. The record does not contain a copy of the April 19 notice directed 

to counsel for People Priority, and the notice to Mr. Johnson does not indicate a copy 

was sent to anyone else. A Clerk’s Note on the trial court’s docket sheet for May 3 

indicates “NOTICE OF DISMISSAL TO PLAINTIFF AND INTERVENOR.” 

This appeal followed. At People Priority’s request, we abated the appeal and

ordered the trial court to clarify its intent in the May 3 Order. Specifically, we 

instructed the court—if it intended its dismissal order to be a final and appealable 

judgment that disposed of all claims and all parties—to modify the order to make 

that clear. If the trial court did not intend to render a final judgment, we ordered it to 

certify that in writing and to state what claims remained pending. In response, the 

trial court signed an amended Order of Dismissal for Want of Prosecution, dated 

October 12, 2021 (the October 12 Order), which stated:

The Court finds that on February 15, 2021, the parties were duly 

notified that the case had been pending without action for 30 days and 

a dismissal hearing was set for April 5, 2021, at 9:00 am. The Court 

further finds that on April 19, 2021, the parties were duly notified that 

the dismissal hearing was postponed until May 3, 2021, at 9:00 a.m., 

and the case would be dismissed if the parties failed to provide the 

Court with a written statement as to the status of the case or take other 

action to prosecute their case.

The parties having failed to take certain actions heretofore 

specified by the Court by May 3, 2021, and having not disposed of this 

case, the Court finds that the cause should be dismissed for want of 

prosecution pursuant to Tex. R. Civ. P. 165a. Accordingly,

IT IS ORDERED that the case is dismissed without prejudice for 

want of prosecution with costs taxed against Plaintiff, for which let 
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execution issue. This is a final, appealable judgment, which disposes of 

all parties and claims in this case.

As our order required, the October 12 Order was made part of a supplemental clerk’s 

record in this appeal.

Discussion

The single issue before us complains of the trial court’s failure to give People 

Priority notice of the dismissal hearing scheduled for May 3, 2021, before dismissing 

its claims in intervention. We review a dismissal for want of prosecution under an 

abuse of discretion standard. Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757, 763 

(Tex. App.—Dallas 2011, no pet.). A party must be provided with notice and an 

opportunity to be heard before a court may dismiss a case for want of prosecution 

under Rule 165a. See TEX. R. CIV. P. 165 a(1); Villarreal v. San Antonio Truck & 

Equip., 994 S.W.2d 628, 630 (Tex. 1999). These requirements of notice and a 

hearing are necessary to ensure a claimant at risk of dismissal has 

received due process. Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 

(Tex. App.—Dallas 2001, pet. denied) (per curiam). Failure to provide notice of the 

trial court’s intent to dismiss for want of prosecution will ordinarily require reversal. 

Villarreal, 994 S.W.3d at 630. 

People Priority relies on that general rule, embodied for our purposes in 

Rule 165a, which states:

A case may be dismissed for want of prosecution on failure of any party 

seeking affirmative relief to appear for any hearing or trial of which the 

party had notice. Notice of the court’s intention to dismiss and the date 
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and place of the dismissal hearing shall be sent by the clerk to each 

attorney of record, and to each party not represented by an attorney and 

whose address is shown on the docket or in the papers on file, by 

posting same in the United States Postal Service.

TEX. R. CIV. P. 165a.1. People Priority contends the record establishes that notice of 

the dismissal hearing was sent only to McIlveen’s counsel.

McIlveen points first to recitals in the trial court’s dismissal orders, asserting

that notice of the May 3 dismissal hearing was in fact sent.

2 McIlveen argues those 

recitals carry a presumption of validity. It argues further that the record does not 

prove People Priority received no notice of the dismissal hearing—instead the record 

is merely silent on that fact, and silence does not establish error. For both of these

arguments, however, McIlveen relies on opinions in restricted appeals (or in their

predecessor procedure, writs of error), which require an appellant to establish that 

there is error “apparent on the face of the record.” See, e.g., Zarosky v. State, No. 

03-03-00116-CV, 2004 WL 1114539, at *1 (Tex. App.—Austin May 20, 2004, no 

pet.) (mem. op.); see also Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 

811 S.W.2d 942, 943 (Tex. 1991). We question whether such opinions govern this 

regular appeal, which is not subject to that standard.

 

2

 The May 3 Order recites that “Plaintiff was duly notified of a dismissal hearing set 05/03/21 at 9:00 

AM and did not take the necessary action.” 

The October 12 Order recites that “the parties were duly notified that the dismissal hearing was 

postponed until May 3, 2021, at 9:00 a.m. . . . [and] failed to take certain actions specified by the Court by 

May 3, 2021.”
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We are compelled, though, to agree with McIlveen’s third argument, 

contending that People Priority’s failure to file a motion for reinstatement of its case 

waived any due process violation caused by a lack of notice. Rule 165a provides a 

procedure for reinstatement of a case dismissed for want of prosecution: the party 

or its attorney can file and serve a verified motion within thirty days explaining why 

the case should be reinstated; the trial court must set a hearing on the motion as soon 

as practicable and send notice to all parties or their attorneys of record of the date, 

time and place of the hearing; and the trial court must reinstate the case if it “find[s]

after a hearing that the failure of the party or [its] 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. If a party 

“has the time and opportunity” to file a motion for reinstatement that could raise an

error in the dismissal process, but it fails to file such a motion, then it has waived 

any due process error in that process. Wright v. Tex. Dep’t of Criminal Justice-Inst’al 

Div., 137 S.W.3d 693, 695–96 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“We 

hold that, when 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.”); see also Harberson v. Strickland, No. 01-18-00290-CV, 

2020 WL 1173711, at *4 (Tex. App.—Houston [1st Dist.] Mar. 12, 2020, no pet.)

(mem. op.); Bechem v. Reliant Energy Retail Servs., LLC, No. 01-18-00878-CV, 
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2019 WL 4065274, at *4 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, pet. 

denied) (mem. op.).

The record indicates that the trial court sent People Priority (and McIlveen) 

notice of the dismissal on May 3, 2021; People Priority filed its notice of appeal in 

this Court on June 2, 2021. It is undisputed, therefore, that People Priority learned 

of the dismissal within the thirty-day time frame to file a motion to reinstate. If it 

had filed such a motion it could have developed facts not in the record concerning 

its lack of notice, and it would have afforded the trial court an opportunity to correct 

any error. In the absence of an effort to reinstate the case, People Priority has waived 

its due process complaint. See Wright, 137 S.W.3d at 696 (appellant’s failure to 

bring claims to attention of trial court through motion to reinstate prevented trial 

court from having opportunity to correct error). We overrule its single issue.

Conclusion

We affirm the trial court’s May 3, 2021 Order of Dismissal for Want of 

Prosecution, as amended October 12, 2021.

210409f.p05 /Bill Pedersen, III//

BILL PEDERSEN, III

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

PEOPLE PRIORITY SOLUTIONS, 

LLC, Appellant

No. 05-21-00409-CV V.

MCILVEEN REAL ESTATE & 

MANAGEMENT, INC., Appellee

On Appeal from the 192nd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-20-02057.

Opinion delivered by Justice 

Pedersen, III. Justices PartidaKipness and Nowell participating.

In accordance with this Court’s opinion of this date, the May 3, 2021 Order 

of Dismissal for Want of Prosecution, amended by the October 12, 2021 order of 

the trial court, is AFFIRMED.

It is ORDERED that appellee McIlveen Real Estate & Management, Inc. 

recover its costs of this appeal from appellant People Priority Solutions, LLC.

Judgment entered this 22nd day of August, 2022.