Heriberto De La Garza D/B/A Ludy's Ropa Usada v. Dalia Ramirez D/B/A Los Baldos Ropa Usada ( 2015 )

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., Appellees.
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 Wittig1
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.)
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. BACKGROUND
Appellant appeals the dismissal 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 heirs of Juan
Francisco Martinez. Marie Ludivina de la Garza d/b/a Ludy’s Ropa Usada originally filed
suit against appellees on June 6, 2005, based upon an alleged debt for the wholesale
purchase of used clothing. She was soon dropped as plaintiff and replaced by appellant
later that year. The original petition claimed a default in payments beginning on January
14, 2003.2 During his 2010 deposition, appellant stated he did not own the claim
individually and that the claim was the property of H & L Southern Border Rags, Inc. (“H
& L”), which was formed by appellant 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 bring 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,
appellees Dalia and Lalo Ramirez averred they were employees of, but not owners of,
Los Baldos Ropa Usada.
2Appellant’s third amended petition claimed the default began in July 2003, which in any event
was more than four years before the attempted addition of H & L as a plaintiff or by assignment.
2
In 2011, appellant secured an assignment of claims from H & L and then later filed
a motion for leave to substitute H & L for appellant. The trial court denied this motion.
More than seven years and four months after the case was originally filed, the entire case
was dismissed for want of prosecution on October 25, 2012, including 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, appellant 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. These subsidiary issues are not necessary to the final disposition of this appeal,
and accordingly are not addressed. See TEX. R. APP. P. 47.1.
II. STANDARD OF REVIEW
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
principles. 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 & Tatge
Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied); see Polk, 165
S.W.3d at 96–97 (affirming denial of reinstatement when the plaintiff produced evidence
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her trial counsel was absent from trial due to illness, but failed to produce evidence the
case had been diligently 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 plaintiff 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); see also Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3—4 (Tex. App.—
Houston [14th 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. DISCUSSION
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 TEX. R. CIV. 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 in trial in another county. See 913 S.W.2d at
468.
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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 we 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). According to appellant, 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.2d 299, 302 (Tex. App.—Houston [14th Dist.] 1992, no writ). We do not disagree
with these general propositions.
Without a single citation to the record, appellant generally argues that the trial court
erred in failing to grant appellant’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 granted 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 different
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.
Similarly, the original motion to dismiss for lack of jurisdiction was by Maria Martinez.
Subsequently, Dalia Ramirez and Lalo Ramirez also filed a motion to dismiss for lack of
jurisdiction, but there was no motion filed by the heirs of Juan Francisco Martinez in the
appellate record, although the order of dismissal on jurisdictional grounds included the
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heirs. One of the appellees submits that no service was ever obtained on the heirs, but
that information is not included in the appellate record. Furthermore, appellees 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 appellant’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, 543 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 of which the party had
notice,” TEX. R. CIV. P. 165a(1), or when a case is “not disposed of within the time
standards promulgated by the Supreme Court.” Id. at R165a(2). In addition, the common
law vests the trial court with the inherent power to dismiss independently of the rules of
procedure when a plaintiff 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 district court should be disposed of within eighteen months from
the appearance date, and non-jury cases should be disposed of within twelve months.
TEX. R. JUD. ADMIN. 6.1. Based on the record, the appearance date for this case would
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have occurred in July 2005. The case was dismissed 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
appellant 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, appellant states his conclusion that his failure to appear was due to
mistake because his counsel 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, appellant cites Huntsman, 830 S.W.2d at 302,
arguing that the motion to reinstate provided him with the opportunity to explain a failure
to prosecute with due diligence. While we agree with the axiom, appellant’s motion fails
to conform to his own stated standards.
It is not until five years after filing suit, in 2010 during appellant’s deposition, that
appellant admitted that he was not owner of the claim. H & L took over appellant’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 accrual of the debt? Thereafter, appellant
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.App.—Houston [14th Dist.] 2000, pet. denied.).
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In summary, appellant first 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 heirs 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 appellant did not own the claim. Again, we observe this
does not demonstrate 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 appellant’s own pleadings and brief
show little or nothing that supports his assertion that he exercised due diligence to move
his case to trial from the date it was filed in June 2005 to the date it was dismissed on
October 25, 2012.4 See id. Accordingly, the trial court did not abuse its discretion by
either dismissing the case for want of prosecution or refusing to reinstate the matter.
IV. CONCLUSION
The judgment of the trial court is affirmed.
DON WITTIG
Assigned Justice
Delivered and filed, the
7th day of May, 2015.
4 In particular, appellant failed to show use of due diligence in naming the proper claimant and in
ascertaining a proper obligor of the debt.
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