NO. 07-01-0359 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D JUNE 26, 2002

______________________________ JOYC E M ANNI NG AN D DA N MA NNIN G, AP PELL ANTS V. RONALD J. NOR TH, M.D., APPELL EE

_________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 92-539,417-A; H ONORAB LE SAM MEDI NA, JUD GE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ.
Thisapp eal is

engendered by th e trial court’s dismissal of th e suit appel lants Joyce and Dan Manning filed against appellee Ronald J. North, M. D. I n asser ting the ir challenge, appellants present three issues for our decision. Those three issues are: 1) if the “conscious indifference” standard of Rule of Civil Procedure 165a(3) applies, did the distri ctcourt abuse its discretion in dismissing the case and in refusing to reinstate whe n1 Rule6 of the Rules of Judicial Adm inistration provides that civ il jury trials m ust be

dispo sed of w ithin 18 m onths from the appearance date. See Tex. R. J ud. Adm in. 6, reprinted in Tex. G ov’t C ode An n. tit. 2 , subtit. F app. (V ernon 19 98). 2 the Mannings show

ed m ore tha n “ so me exc use” in failing to promptly proceed, 2) if the “due diligence” standard applies, by ignoring undisputed facts and ruling without adeq uate
re vi ew, did t he d istr ict cou rt a bus e its disc ret ion in holding th at the Mannings w ere not diligent, and 3) were t he Mannings denied such duepro ces s th at r eve rsa l is required. For
reasons we later recount, we affirm the j udgme nt of the trial court.
Itis undisput ed t hat the trial court dismissed t he Mannings’ casebecause of a perceived want of

prosecution. A trial court’s authority to dismiss a cas e for wan t of pr os ec ut io n a ri se s fr om two sources: 1) Rule 165a of the Rules of Civil Procedure, and 2) the court’s inherent pow er. Vil larreal v. San A ntonio Truck

& Eq uip. 994 S.W.2d 628, 630 (Tex. 1999); see al so Ve terans’

Land B d. v. Wi

lli ams , 543 S .W.2d 89, 90 (Tex . 1976). A trial court may dism iss under Rule 165a upon the “failure of any party seeking affirmative relief to appe ar f

or any hearing or tri al ofwhich the party h ad noti ce,” T ex. R. Civ. P. 165a(1), or when a case is “not disposed of w ithin the time standards p romulgated by the Su pr eme Court . . . .” Tex. R. Civ. P. 16 5a(2). 1 In addition, the com mon law vests t he trial court with the inherent p owe r to dism iss indepen dently of the Ru les of Civ il Procedur e when a plaintiff

fails to prosecute hi s or her case with due diligence. Vil larreal , 994 S.W.2d at 630.3

Even so, a party

m ust be provided w ith notice a nd an op portunity to be he ard befo re a court may dismiss a case for w ant of prosecution under either Rule 165a or its inherent authori ty. See Tex. R. C iv. P. 165a(1) (notice of the court’s intention to dism iss and the date and place of th e dismissa l hearing shall be sent by the clerk to each attorney of record); General Elec. Co. v. Falcon Ri dge Ap artments

, Joi nt Ven ture , 811 S.W.2d 942, 943 (Tex . 1991) ( requiring not ice for dism issals under Rule 165a); see also State v. Rotello , 671 S.W.2d 507, 508-09 (Tex. 19 84) (re quir ing notice for dismissals under the court’s inherent power). The failure to provide adequate notice of the trial court’s intent to dismiss fo r want of prosecution requires reversal. Vil larreal , 994 S.W.2d at 630.
The power of a trial court to dismiss for want of prosecuti on is n ot u nbr idled as it
res ts i n the exercise of sound judicial discretion, subjec t to review. Thus, on appeal, the trial court’s judgm entof dismissal w ill not be reversed unless, as a m atter of law, thetrial court cl early abused its discretion. Bevi l v. Johnson , 157 Tex. 62 1, 307 S.W.2d 85, 87 (1957); F.D.I.C. v. Kendrick , 897 S.W.2d 476, 479 (Tex.App.--Am arillo 1995, no writ). The burden of proof restson alitig ant ass ert ing a n ab useof d isc ret ion. Thisis true becau se there is a presum ption that the action of the trial court was jus tified. Id. at 479.
A trial cour t abuses its di scretion i f it acts with out reference to any guiding rules and principles, or if its action is a rbitrary or unreasonable under all the circumstan ces of the particular case. Downer v. A quamari ne Operators, In c. , 7 01 S.W .2 d 2 38 , 2 41 -4 2 ( Te x. 1985), cert. deni

ed , 476 U.S. 1159, 106 S.Ct . 2279 , 90 L.Ed.2d 721 (1986); Ga rc ia v .4

Mireles , 14 S.W.3d 839, 842 (Tex.App.--A marillo 2000, no pet ). In e xe rcising its discretion, thetria l cou rt isentitled toconsider the ent ire history

of the case. Kendrick , 897 S.W.2d at 479 ( citi

ng Rotello, 671 S. W .2d at 5 09).
In argum ent under

the ir first issu e, appell ants note that thi s case does not invo lve
a tria l cou rt’ s dis m iss al of clai m s un der

Rul e of Civil Procedure165a(1) for failure to appear ata hearing or trial. They acknowledge that it “m ight involve” the trial court’s authority to dismiss und er R ule o f C ivil Procedure 165a(2) for failure to com ply w ith Supre m e Court timelines. Th ey al so co mme nt that it “m ay also involve” the court’s inherent powers to
m anage its trial doc ket. E ven so, they re ason, t he trial cour t’s ba sis for d ism iss in g appell ants’ clai m s is act ually not rele van t tothis

appeal “for

it invol ves the distri ct court’s failure to reinstate

the case under Rule 165a(3).” That is true, theyarg ue, becaus e Ru le 165a(4) has specific provisions when a p arty seeks toreinstate a case on the trial docket, and that portion of the r ule de termines thestandard by w hich we m ust determ ine the validity of t he trial cour t’s dism issal. Co ntinuing, th ey quote Rule 165 a(4):
Thisdismissal and reinstatem ent procedure shall be cum ulative of the rules and laws governing any other pro cedures avai labl e to the parti es in such cases. The sam e reinstatem ent procedures and tim eta ble are applicable to all dismissals for want of prosecution includ ing cases which are dismissed pursuantto the court’ s inherent power, w hether o r n o t a motion to dismiss has been filed. They then refe r to the porti on of subsectio n 3 of Rule 165a which provides:2 Appellants posit that those decisions were ma de “with little analysis or support.” 5 The court shall reinstate the case upon finding after a hear ing that t he failure of the part y or h is at torney was

not intentional or the result of conscious indi fference b ut was due to an accident or m istake or that the failure has been otherwise reasona bly explained. Appellants conclude tha t this sta ndard is applicable and, in determining they had been
con sci ous lyindifferent, “the district court ignored undisputed evidence that presented far
m ore than som e excusefor any delay.” Citing Craddock v. S unshine B us Lines , 1 34 Te x. 388, 13 3 S .W .2 d 1 24 (1 93 9) , a pp el l an ts ar gu e o ur Su pr eme Court h as held that the “con s cious indifference” language of Rule 165a(3) is essentially the same asthat for setting aside a default judgm ent. They also argue, w ith citation of various cases, that the
cases are “legion” and hold thata party can overcom e conscious indifference by providing “s ome excuse, but n ot necessa rily agoo d ex cus e” f or a par ty’ s fa ilureto a ct i n a t im ely
manne r. Again assum ing thatthe “consciou s indif ference” test is applicable, appell ants conclude that the trial court was required to reinstate their lawsuit because th e undisputed evidence shows

they had som e excusefor any alleged delays in prosecuting the case.
W ith com menda ble candor, appellants acknow ledge the existence of som e seven published opinions by intermediate appellate courts 2 tha t ho ld the Craddock sta nda rd is not ap plicable in i nstances w here the lawsuit w as dismissed pursuant to the court’ s inherent powers. I n doing so, t hey recognize the holding in those cases that t he reinstatement

procedures in Rule 165a(3) are only available in cases in which the dismissal occurred pursu ant to Rule 165 a(1) because of a party’s failure to appear at a6

hearing or a trial. I ncluded in t he case s cited is the dec ision by th is court in Moo re v. Armour & Co. , Inc., 748 S. W .2d 32 7 (Tex.App. --Am arillo 1988, no writ). Although recognizing those decisions, appellants reason tha t “b oth theplain lang uag e of therule and considerations of equity cry out for a reevaluation of those prior holdings.”
We disagree. In Buchanan v. Maso od , 631 S.W.2d 219 (Tex.A pp.--Am arillo 1982,
no writ), this court, citing Bevil, 307 S. W.2d at 87, noted t he e sta blish ed r ule that “[o]ne of the fundam ental pow

ers possessed by a trial court is the power to dism iss a case w hen a litigant refuses to pros ecute t he case .” Buchanan , 631 S.W.2d at 221. W e reiterated the existence of that rule in Moore , 748 S.W.2d at 328, and Mireles , 14 S.W.3 d at 84 2. In Bevil, our Suprem e Court ex plicated that “even witho ut stat utory authority, a court has the right to dismiss a s uit for failure to prosecute it with due diligence.” Bevil , 307 S.W.2d at 87. As w

e have noted, in Villarreal and Williams, our Suprem e Court has iterated and reiterated that fundam ental power of a trial court. That rule is so well-established tha t it is not within the pow

er of this intermediate appellate court to attempt to change it, nor do
we see any reason to at tem pt to do so. That being the case, we hold that the “conscious indifference” sta nda rd a pplicableto Rule 165a cases is not appl icabl e here. Appell ants’ first issue is overruled.
Hav ing m ade tha t de cis ion, itnex t be com es o ur d uty

to d ete rm ine if

the trial co urt abused its discretion in dismissing appellants ’ case. In order to properly discuss that question, we m ust relate som ething of the past history of that case. On A ugust 3, 1992,7

appellants filed the underlying lawsuit against appellee and other defendants. As have the parties, we w ill refer to those other defendants generically as theDow def end ants. In t heir suit, appellants alleged that in December 1989, following the removal of both of Joyce’s breasts, appellee negligentl y perfo rmed a breast reconstruction procedure. The allegations against the Dow defendants had to do with alleged def ect s in the implants, which are not m aterial to this appeal. Appellee answered the suit and served interrogatories and a request for production of certain docum ents on appellants. On Decem ber 3, 1992, appellants answered the interrogat ories a nd responded to the product ion requests. Under a Rule 11 M aster Discove ryagreement, appell ants fil ed a response to the m aster interrogatories in May of 1993. There were numerous depositi ons taken in the case by t he Dow d efendants and various discovery docum ents exc hanged.
On May 15, 1995 , the defendant Dow C orning Corporation (DCC) filed a suggestion of bankruptcy, and on A ugust 7, 1995 , citing the DCC bankruptcy , the Dow defendants
removed the ca se to the federal district court for the Northern District of Tex as. Both appellants and app elleefiled m otio ns to re m and thecas e an d in S ept em ber of 1 995 , it

was remanded to the state district court. In May 1997, DCC transferred the claims against it to the federal district court in Michigan. Appellants’ suit against appellee remained in the state court.8

During the pendency of the suit, appellants had serious and continuing medical pr ob l ems and learned that their attorney also had serious me dical problems. About May 1, 199 6, b eca useof t heir con cer n ab out

thepro gre ss of t he s uit , appellants traveled to Odessa, where their attorney resided. At that tim e, the attorney told themthat he was distraughtbecause of a friend’s deat h, and he wassick and broke. He asked them to pick up their records because he no longer had spa ce to s tore them. For the next two years, appellants continued to have probl ems, including Joyce’s serious and continuing health problems, as well as the death of parents. They also had difficulty in com municating w ith their attorney, who only occasionally had a legal staff available.
In Novem ber of 19 98, the y receive d notice of a sum m aryjudgm ent m otion filed by appellee, but initiall y their attorney would not return their calls. The basis of appe llee’ s sum m aryjudgm ent m otion was that there was no evidence that he w as liable on appell ants’ claim s for produc ts liabili ty, breach of w arranty, DTPA violations, fraud, and intentional infliction of

em otional distress. Eventually, their attorney did return a call and, after appellants gave him som e additional affidavits and information, filed an answer to the motion. In December 1998, appell ants’ attorney fil ed an amended petiti on which added a claim against appellee for negligence in administering an antibiotic to Joyce.
In January and February of 1999, appellants filed more supplem ental medical and employm entrecords in the sum mary judgm ent proceeding. On February 2, 1999, the distri ctcourt granted appel lee’s m otion “as to all claims and causes of action alleged9

against RONALD J. NORTH, M .D., by Plainti ffs JOYCE MANNING A ND DAN MANNING with the exception of Plaintiffs’ claims based u pon m edical negligence.” From D ecem ber 1999 until April of 2001, Joyce continued to suffer various se vere health pro ble msthat necessitated treatm ent, including hospitali zation and som e surgeries. At the reques t of appell ants, and according to Joyce, t heir original attorney w ithdrew fromthe case on or aboutJu ly 11, 2000, although his m otion to withdraw was not filed until September 14, 2000, and the court perm itted him towithdraw on Septem ber 15, 2000. Subs equent to that
w ithd raw al, according to their testi mony, appellants unsu ccess fully conta cted at least three attorneys to see if they w ould handle their case. During this period of time, appellants continued to suffer seri ous health p roblems.
On March 6, 2001, the tri al court sent appell ants a Notice of Intent to Dism iss which, in relevant part, stated:

Court records indicate thatthis case is eligible for dismissal for want of prosecuti on because it has been on file for m ore than eighteen m onths and is n ot s et f

or t rial. Thecas e w ill be DI SMI SSED FOR WANT OF PROSECUTION, unless one of the following actions is taken within 45 days: 1. A j udgme nt is signed; 2. A trial scheduling order is signed; or 3. A verified m otion to retain is filed. All motions to retain w ill be set for oral hearing. Pleas e conta ct thecour t coordi nator

for a h earin g date

. On April 19, 2001, the trial court sent appellants an updated Notice of Int ent to Dismiss with a cover letter stating that th e court had “maile d a notice back o n March 6, 200110

without realizing we had acurrent addre ss for the plai ntiffs. It i s only appro priate to give them a chance to respond before the Court disposes [s ic] the case.” On Ap ril 19, 2001, appellants filed their verified motion to retain in which they referred tothe ir he alt h pr ob l ems and diff

icult y in obt ainin g co uns el, stated that t hey w ere talking to an attorney about the case, and a sked the court to ret ain the case on its docket for 90 days for them to retain an attorney. In that mo tion, they recited that Dan w as in the hospital and Joyce
wasresidi ng at the Reside nce Inn in Lub bock because of black m old at their house. Even so, in the mot ion, theyshowed their addre ss as 3102 69 th Street in Lubbock. O n April 30, 2001, appellee filed a motion to dism iss for want of prosecution.
Both the m otion to retain and the motion to dismiss were set for hearing on May 25, 2001. Appellants m ade a personal appearance at the hearing, although they contend they did not receive notice of the hearing until May 23 because the notice had b een sent to the ir ho me address instead of the Residence Inn. However, at t he t im e of thehea ring , th ey d id notma ke this com plaint, nor did they ask for a continu ance of the hearing. At the hearing, the court heard testim ony from Joyce and, at t he conclusion of the hearing, granted the mot ion to dismiss. At that tim e, a colloquy occurred concerning the add re ss t o wh ich notices to appellants should be sent. Joyce averred thattheir residence address wa s 3102 69 th Street and tha t mail was for w ard ed f

romthe re to th em . H oweve r, s he f inally concluded that “[i]tmight be b etter if we j ust have everything sent to the Residence Inn.” On Ma y 30, 2 001, th e trial court executed its order granting appellee’s dismissal mo tion and severing that portion of the underlying case from the rem ainder of the case.11

On Jun e 29, 2001, appellants moved to reinstate their case and that m otion was heard on August 9, 2 001. Appellants had counsel at the hea ring, Joyce’s testim onywas taken, and the court deni ed the motion to rein state. In the course of the heari ng, Joyce informed the court that they had been able to retain a trial attorney if their moti on wa s granted.
The standard by w hich we j udge the trial court’s dism issal is whether it abused its discretion in concluding that appellants had notacted with due dil igence in pu rsu ing t heir underlying suit. Vetera ns’ La nd Boa rd v. Wi lli ams , 543 S.W.2d at 90; Moore , 748 S.W.2d at331. W e agree with appel lants that we, li ke them, have not found a case spe cifi cally defining “du e dilig enc e” in thecon tex t of a tr ial c our

t’s dis miss al of a lawsuit for w ant of prosecution. W e also agree with them that considering the definition of “du e dilig enc e” in other contexts, a proper guide in this type of case would be to determ ine if theplain tiff

s in question hav e ac

ted as an o rdin ary

pru den t pe rso n would have under the sam e or similar circumstances. The answer to that question requires a factual determ ination by the trial court not to be disturbed unless that court abused its discretion in arriving at its decision. As we havenoted above, a trial court only abuses its discr etion i f it acts without refe rence to anyguid ing r ulesand prin ciple s, o r if it s ac tion is a rbit rar

y or unr eas ona ble u nde r all the circumstances of the particular case. Downer , 701 S.W.2d at 241-42.
W here the record does not contain findings of fact or conclusions of law, and the dismissal order does not spe cify the reaso n for dismissal, the dismissal mustbe u phe ld12

if it was proper under an y legal theory supported by the record. Mireles , 14 S.W.3d at 842. If the dismissal order is silent, the plaintiffs see king rein sta tem ent m ust neg ateall p oss ible grounds for dismissa l, including whether the dism issal was prom pted by a lack of due dili gence in prosecuting the s uit or for a violat ion of the Supre me Court’s standards. Rampart Capi tal Corp. v. M

agui re , 974 S.W. 2d 195, 197 (Tex. App.--San A ntonio 1998, pet. denied). In assessing the trial court’s action, we m ust also bear in mind the mere fact thata trial judge m ay decide a m atter w ithin his or her discretionary authority in a different
manne r than an appellate judge in a sim ilar circumstance does no t dem onstrate that an abuse of discretion has occurred. Southwestern B ell Tel . Co. v. Johnson , 389 S.W.2d 645, 648 (Tex. 1965); In re Rogers , 43 S.W.3d 20, 26 (Tex.App.--A marillo 2001) (orig. proceed ing).
In the sem inal case of Southern Paci fic Transport

ation Co. v. Stoot, 530 S.W.2d 930 (T ex. 1975), the court ex pl icated the policy consideration for indulging the strong presum ption that the action of a trial court in d ism issing is j ustified. In doing s o, the court noted: Delay haunts the adm inistration of justice. It postpones therectification of wrong and the vindication of the unj ustly accused. It c rowdsthe dockets of the courts, inc rea sin g the costs for al l li tigants, pr essuring judges to take short cuts, interfe ring with the pr ompt and deliber ate disposi tion of those causes in wh ich all parties a re diligent and prepared for tria l, and overhanging the ent ire pro cess with the pall of disorganization and insol ubil ity.
Id. at 931.13

The record reveal s that the tria l court’s notice of i nt en t t o d i smi ss was se nt so me eight and one-hal f years after the August 1 992 fil ing of appe llan ts’ suit. Th i s l en gt h o f t i me is sufficient to establish a rebuttable presum ption that appellants have not prosecuted the suit with due dil igence. Appel lants respo nded to the Dow defendants’ mast e r interrogat ories in Ma y, 1993. No other si gnifi cant activi ty occurred unti l 1995, at which ti me DCC filed its suggestion of bankruptcy. The case was in federal court for twomo nths and was rem oved back to th e statecourt. The nex t cogniza ble action in t he state court
waswhen appellee filed his motion seekin g summ ary j udgme nt i n Septem ber 1998. Appellants have suggested that part of the reason for the lack of activity was because of the transfer to the federal court in M ichigan of t hat part of the case rel ating to DCC because of its bankruptcy proceedings. It is true that w hen a pers on or entit y files a bankruptcy proceedi ng, an automatic st ay g oes into effect and stays and abates any judicial proceeding against that party. However, that stay only operates against that debtor
a nd does no t operate against non-debtors or even co-debtors, co-tortfeasors , or codefendants. GATX Aircraft Corp. v. M/V Courtney Lei gh, 768 F.2d 711, 71 6 (5 th Cir.1985 ); In re Southwestern B ell Tel. Co., 35 S.W.3d 602, 604 (Tex. 2000)

. Thus, this timeline showsthat with the exception of thebrief per iod when the case
wasin the fed eral court for theNorthe rn District of Tex as, m ore than five years elapsed with no s ig nifi ca nt activi ty on the part of appe llan ts until the 1998 fil ing of appe llee ’s
sum mary

judgm ent m otion. At that tim e, appellants responded to the m otion and, as we noted above, amended their pet itio n to drop the negl igence and product li abil ity c lai ms14

against appellee and added a new me dical ma lpractice claim. They also filed additional discover yin late 1998 and ear ly 1999. Appellants asserted that som e settlem ent negotiations between their ori ginal attorney and app elle e’s attorney occurred in 1999. No further acti vity occurre d in the case unt il the March 6, 2001 notice by the trial court of its intent to dismiss. Based on this hi story of the case, absent som e viable excuse for the delays and inacti vity, thetria l cou rt could reasonably have concluded that appellants had failed to pursue the case w ith due diligence. In an effort to j ustify the lapses in activity, appellants have listed a lengthy history of physica l and health problem s they suffer ed. However, thetria l j udg e co uld rea son ably have concluded that in May 1996 , when their attorney asked themto pick up their files for storage, they should have know n the case w as not be ing properl y pursued. Joyce admitted thatat that tim e they did not feel their attorney was “going forward” w ith the case. Itwas also w ithin his discretion to consider the testimony about appel la nts’ health and hospitalization problems and to m ake the factual resolution that those problems w

ere not sufficient to continuously prevent themfrom securing proper representation to pursue the
case. Suffice it to say that , under the record befor e it, the trial court did not abuse its discretion in dismissing the case. A ppellants’ second issue is overruled. Appellants next co ntend that the y did n ot receive proper notice of the dism issal hearing and t h at failure prejudiced their ability to properly present their case and thus denied them due process requiring reversal. However, appellants appeared at the hearing15

and, as we have noted, did n ot a sk for a c ont inua ncebecaus e of any def icien cy in the ir notice. W hen a party participates in a hearing without notifying the court of any com plaint, thatparty has w

aived its right to objec

t to a lack of notice and m ay not raise the question for the first time on appeal. Wyatt v. Furr ’s Supermarkets, Inc., 90 8 S. W .2 d 2 66 , 2 70 (T ex. App.-- El Pas o 1995, writ d enied); Negrini v. Beale , 822 S.W.2d 822, 82 3-24 (Tex .App.
-- Houston [14 th Dist.] 1992, nowrit).
Moreo ver, due process requi rements are me t whe n the trial court, as it did here, holds the sam e hearing on a m otion to reinstate that an appellant would have received had the notice of intent to dism iss been given. Kendric k, 897 S.W.2d at 480. Here, at the hearing on their mot ion to reinstate, app ellan ts a ppe are d w ith coun sel a nd p art icipa ted in the hearing. That being so, app ellants were not d enied due p rocess . App ellants’ t hird issue is overruled.
In su m, all of appe llants’ issu es are o verruled, and the jud gm ent of t he trial cour t is affirmed.
John T. Boyd Chief Justi ce Publish.