## In the Cour t of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00400

- CV

___________________________

On Appeal from the 431st District Court Denton C ounty, Texas Tria l Court No. 20

- 1552

- 431

Befo re Suddert h, C.J.; Birdwell and Wallach, JJ. Memorandum Opinion by Justice Birdwell 

### J OSE 

### L. M ONDRAGON AND 

### E LVIRA 

### B ECERRA



### - J UAREZ 

### , Appellants

V



### . J OHN 

### M. C OLLINS AND 

### CK L ONE 

### S TAR 

### I NVEST M ENTS 

### , A 

### T EXAS 

### S ER IES 

### L IMITED 

### L IABILITY 

### C OMPANY 

### , Appellee s2 MEMORANDUM OPINION Jo se L. Mondragon and Elvira Becerra

- Juarez appeal from the trial court ’ s refusal to grant a motion to re i nsta te thei r suit that was dismissed for wa nt o f prosecution . We affirm. Background In April 2011, a pp ellants allegedly entered into a real

- property executory

cont ract with a ppellee CK Lone Star Investments, LLC

. A ccording to a ppel l ants , they
moved in befo re the con tract clo sed and then found ou t that the property had been
sold to a th ird pa rty , who gave them notice to vacate and then obtained a forcible

detainer judgment against them

. In Febru ary 2020, a ppellan ts sued C K Lo n e Star and its principal, Jo hn M . Colli ns ; their September 2020 amended petition included claims
for breach of cont ract, unjust enrichment , c ommon

- l aw fraud , and fraudulent misrepresentation , and also alleg ed tha t Collins was vica riously liable for CK Lone
Star under a veil

- piercing theo ry . CK Lone Star and Collins answered in October
2020 , and both alleged that appellants ’ suit was b arred by limitations

. 1

1 At the reinstatement hearing, appellant s ’ counsel explained that appellants had sued on this contract p re viously , settled with a d i fferent d ef endant, and then nonsuited the case until they could raise t he funds needed to file this suit against appellees

.3 After appellees answered , appel lants did not engage in any activity in the case
for over ten mont hs. 2 On August 9 , 2 021, the trial cou rt sent the following l etter 3 to all reta ined attorneys, stating t hat the case was set on the court ’ s Sep tember 17, 2021 3:00 p .m. dismissal docket : THIS SETTING IS BEING MADE PURSUANT T O TIME STA NDA RDS FOR DISPOSITION OF CASES BY THE TEX AS SUPREME COURT A ND THE DENTON COUNTY COURT RULES FOR DISTRICT COURTS
THERE WILL BE NO CONTINUANCES OF THIS DISMISSAL SETTING!!!
The above

- refer enced cause has been s et on the C ourt ’ s docket for dismis sal on Se p temb er 17 , 2021, at 3:00 PM, at which time this cause will b e DISMISSED UNLESS : 1) Any party seeking affirmative relief has effectuated service of process upon the opposing party(s).
AND 2) The attorneys and/or pro se parties present an agre ed “Schedul i ng O rder and Discovery Control Plan ” for entry by the Court, and:

a. they must contact the Co urt Administrator no later than 10 days prior to the dismissal setting to request a trial date and a pre

- trial date (if applicable)

. . . ;

2 At the reinstatement hearing, appel lants ’ counsel told the trial court that no discovery was needed and t hat a p pellants could be r e ady to try th e cas e in thirty days.

3 Dismissals pur su ant to th is letter have been the subject of other appeals to this court. See Brown v. Sanders , No. 02

- 21

- 00212

- CV, 2022 WL 2071782, at *2 (Tex. App.

— Fort Worth June 9, 2022 , no pet. ) (mem . op.) ; In re St anton , No. 02

- 21

- 00224

- CV, 2022 WL 714584, at * 4 , * 7 (Tex. App.

— Fort Worth Mar. 10, 2022, no pet. ) (mem. op.)

.4 b. the Order must contain c o mple ted deadlines and discovery limitations as indica ted;

c. the Order must INCLU DE THE CLIEN T’ S SIGNATURE if represented by counsel; and
d. the Order must be submitted no later th an 7 days prior to the dismissal setting

. OR 3) The attorneys and/or pr o se parties must appear at the dismissal setting and present a proposed “Scheduling Order and Disco very Control Plan” compliant with 2a.

- c. above. At that time, the C ourt will hear a ny objections of any other attorney and/or pro se party to the proposed Order.
The C ourt will only accept the “Scheduli ng Orde r and Discovery Control Plan” post ed on the C ourt ’ s website: http://dentoncounty. gov /dept/43lst

- Forms/Scheduling

- Order

- and - Disco very

- Control

- Plan.pdf

. There will be NO CON TINUANCES of this dismissal setti n g!!! Ap pellant s’ coun sel did not appear at the h earing, and the trial court di smissed
the case for want of prosecution

. Although the trial court ’ s o rder notes that appell ants fail ed to ap pear and “ failed to timely enter a com p lete d Scheduling Order as
instr ucted, ” the order also states that appellants ’ “ counsel failed to offer good cause why he had not complied fully with the Court ’ s Notice of Dismissal Setting .” Appellant s filed a ver ifie d motion to reinstate, asking the tria l court to

“ reinstate the case on its do ck et, under the authority of Texas Rule of Civil Procedure
165a .” Counsel addressed solely his failure to attend the heari ng , arguing that he was5 mistaken in believing he did not need to appear because i n th e days leading up to the
dismissal hear ing d ate , the parties had agreed to a nonjury tri al setting, the court coordinator had set the nonjury trial date , and he had procur ed a partially signed

s cheduling order

. Counsel also professe d to be mis taken about th e need to appear
be cause of the way other court s have operated during the C OVID

- 1 9 pand emic.
Aft er a nonevidentiary hearing, t he trial cour t de nie d the mo tion to reinstate
and ent ered findings of fact and conclusions of law

. In the Preamble section of the order, the trial cou rt stated that “ the case had previously been dismissed on September 17, 2021, for want of prosecution under Tex as Rule of Civil Procedure
165a a nd also under the court’s common law inherent a u thority to dismiss a case when plaintiffs fail to prosecute their case with due diligence

. ” T he trial court ’ s findings of fact and conclusions of law address both t he reasonablenes s of counsel ’ s fa il u re to appear at the dismissal hearing 4 and t h e case ’ s h istory, i.e., the length of time it had been pending on the trial court ’ s docket, the lack of activity in th e case, and the

r eason f or the case ’ s placement on the di smissal docket

. 5 T he trial court concluded ,

4 The trial court found that before the dismissal hearing, the coordinator had reminded “all counsel” by email th at any party seeking affirmati ve relief was required to “be present at” the dismi ss al hearing. The trial court also found that counsel’s “su bjective belief” that he did not need to appear was not reasonable and therefore “intentional and/or the result of consciou s indifference.”

5 At th e conclusion of the re inst a tement hearing , t he trial court also cited “the history” of the case in announcing its decision that appellants had not shown good cause to retain the case on the court’s docket.6 “ At the Dismissal Hea r ing, no good cause was presented to retain the case on the docket as is required by Texas Rule of Civil Procedure 165a and the Court was thus

r equired to and did dismiss the l awsuit. ” In this appea l, a ppellants raise six issues , all chall enging whether the trial court
abused i ts discr etion by denying thei r motion to r einstate. Because all of a ppellants ’
issues r elate to the ultimate propriety of the tria l cour t ’ s denial of thei r re instat ement motion, we do not address them indiv iduall y . Appl icable Law
T he trial court ’ s authority to dismiss a suit for want of prosecution arises from
the court ’ s inherent authority to control its own docket and Texas Ru le of Civil
Procedur e 165a . Tex. R. Civ . P. 1 65a ; Villarreal v. San Antonio Truck & Equ i p. , 994 S.W.2d 628, 630 (Tex. 19 99). A trial court may dismiss a suit under Rule 165a (1) if a party seeking affirmative relief fails to appear for any hearing or trial of w hich t he party had notice or (2) w hen the case is “not disposed of within ti me sta n dards promulgated by the Supreme Court.” Tex. R. Civ. P

. 165a (1)

– (2)

. Each of these three dismissal grounds

–– Rule 165a(1)

– (2) and inherent authority

–– provides an indepe ndent basis on which a trial court may dismiss a case for want of prosecution.
Br own v. Sanders , No. 02

- 21

- 00212

- CV, 202 2 WL 2071782, at *2 (Tex. App.

— Fort Worth June 9, 2022, no pet. ) (mem . op.)

. We have held that the same trial cour t notice used in t h is ca se ad e qua tely informs the parties of the t rial court ’ s intent to dismiss under all t hree groun ds and7 that when a dismissal order purs uant to this notice does not expressly s tate the particular dismissal ground, a party challenging the denial of reinst ateme nt must

“ address and negate all th ree possible independent dismissal grounds in th e []
reinstat ement motion and on appeal. ” Id. at *3.
Reins t atement Denial Pro pe r The dismissal order here did not specify the particular grounds on which it was
ba sed , a n d th e trial c ourt ’ s findings of fact a nd conclusions o f law indicate that it
dismissed the suit under both Rule 165a an d its inherent authority

. T hus, a ppellants were required to address and negate all three in their reinstatement motion and on appeal. Se e i d. They did neither. In both t heir r einstatem ent motion and their appellate brief, a p p ellants challenge d only whether dismissal was proper under Rule 16 5 a( 1) for
fail u re to appear at the dismissal hearing

. Because a ppellants f ailed t o challenge all
inde pendent ground s upo n whic h the trial court ’ s order denying their reinstat e ment
motion was based , 6 they have not shown reversible error. See i d. at *4 ; Self v. King , No.

6 Although it is clear from the record that appella nt s had n ot failed to comply with the T e xas Sup reme Court ’ s t ime standards for disposition of cases

– – because the suit had not yet been pending for twelve months after appellees ’ appe aranc e dates

–– appellants neverthe less failed to add ress the case ’ s “ histor y , ” as we ll as other factors relevant to whether a trial cour t may dismiss under its inherent auth or ity. See Tex. R. Jud. Admin. 6.1(a)( 2 ), reprinted in Tex. Gov ’ t Code Ann., tit. 2, subtit. F app. ; In re Seidler O il & Gas Dev., LLC , No. 12

- 22

- 00009

- CV, 20 22 WL 1 03 8102, at *2 (Tex. App.

— Tyler Apr. 6, 2022, orig. pro ceeding) (mem. op.) ( “ T o determine whet her a party has demonstrated a lack of diligence in pro secuting a claim, a trial c ourt may consider the entire his tory of the case, i ncluding the length of ti me th e case was on file, the extent of activity in the case , whether a trial setting was requested , and the existence of reasonable excuses for the delay

. ” ).8 05

- 11

- 01296

- CV, 2013 WL 3353327, at *3 (Tex. App.

— Dalla s June 28, 2013, pet.
d enied) (m em. op. )

. We t herefore o verr ule their six issues and affirm the trial cou r t ’ s judgment. /s/ Wade Birdwell
Wade Birdwell Justice
Delivered: August 11, 2022