Jeffrey A. Harberson v. Brianne Strickland ( 2020 )

Opinion issued March 12, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00290-CV
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JEFFREY A. HARBERSON, Appellant
V.
BRIANNE STRICKLAND, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 16-CV-0861
MEMORANDUM OPINION
The trial court dismissed pro se appellant Jeffrey A. Harberson’s suit against
appellee Brianne Strickland for want of prosecution after Harberson failed to
appear at pretrial conference or to notify the trial court that he was unable to
attend. In one issue, Harberson complains that the trial court erred in granting the
motion and dismissing his suit.
We affirm.
Background
On July 27, 2016, Harberson filed suit against Strickland in Galveston
County district court. At the time, Harberson was represented by counsel. The suit
alleged that, in August 2014, Strickland’s motor vehicle collided with Harberson’s
motorcycle. Harberson asserted that Strickland’s negligence had caused the
accident. Harberson claimed that he suffered personal injuries and property
damage to his motorcycle as a result of the accident. Strickland answered the suit,
generally denying the allegations and asserting several defenses.
On October 31, 2016, the trial court signed a docket control order setting
trial for November 16, 2017. Over the next year, the parties engaged in discovery.
On September 19, 2017, Harberson filed an agreed motion for continuance
to give him more time to complete discovery. The trial court granted the motion.
On October 12, 2017, the trial court signed an amended docket control order,
setting trial for March 12, 2018. The docket control order set a pretrial conference
for February 20, 2018. It notified the parties that the court would hear
announcements of the parties and consider written motions for continuance at the
pretrial conference. The docket control order also notified the parties as follows:
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“Failure to appear [at the pretrial conference] will be grounds for dismissal for
want of prosecution or default judgment.”
On December 6, 2018, Harberson’s attorney, M. Faggard, filed a motion to
withdraw as Harberson’s counsel. In the motion, Faggard stated that Harberson (1)
requested that he withdraw as his attorney and (2) had “terminated the attorney
client relationship” between them. Faggard also attached a copy of the amended
docket control order to the motion. Faggard informed the trial court that he was
providing the amended docket control order to Harberson. On December 7, 2018,
the trial court granted the motion, permitting Faggard to withdraw as Harberson’s
attorney.
As provided in the Amended Docket Control Order, the trial court conducted
a pretrial conference on February 20, 2018. Harberson did not appear at the pretrial
conference, nor did he inform the trial court that he could not attend.
On February 21, 2018, Strickland filed a motion to dismiss Harberson’s suit.
Strickland pointed out that Harberson had failed to appear at the pretrial
conference and had not notified the trial court of “his inability to appear even if he
was unable to appear.” The trial court set the motion to dismiss for submission on
March 6, 2018. The certificate of service attached to the submission notice, signed
by Strickland’s attorney, stated that the notice was served in compliance with
Rules of Civil Procedure 21 and 21a. See TEX. R. CIV. P. 21, 21a.
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After failing either to appear at the February 20 pretrial conference or to
notify the trial court that he could not appear, Harberson sent a letter to the trial
court postmarked February 28, 2018. In the letter, he stated that he had been in
prison since November 2017. Harberson did not mention the pretrial conference
that he had missed. He stated that he was attempting to retain new counsel but had
been unsuccessful. Harberson requested the trial court to issue a bench warrant to
permit him to represent himself at the March 12 trial. If a bench warrant was not
issued, Harberson requested a continuance of the trial.
The letter was file-stamped by the Galveston District Clerk’s Office on
March 2, 2018, but a handwritten notation indicates that the letter was received by
the clerk “in civil” on March 8, 2018. That same day (March 8) the trial court
signed an order granting Strickland’s motion to dismiss, which was based on
Harberson’s nonappearance at the February 20 pretrial conference.
Harberson timely appealed the dismissal order.
Dismissal for Failure to Appear at Pretrial Conference
On appeal, Harberson requests that the trial court’s dismissal order be
reversed, and the case be remanded to the trial court. In what we construe as his
sole issue on appeal, Harberson complains that the trial court erred in granting the
motion and dismissing his suit.
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A. Standard of Review
We review a dismissal for want of prosecution under a clear abuse of
discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Wright v.
Tex. Dep’t of Crim. Justice–Inst’l Div., 137 S.W.3d 693, 696 (Tex. App.—Houston
[1st Dist.] 2004, no pet.). A trial court abuses its discretion when it acts arbitrarily
or unreasonably, or without reference to guiding rules and principles. Iliff v. Iliff,
339 S.W.3d 74, 78 (Tex. 2011). Merely because a trial court may decide a matter
within its discretion differently than an appellate court would in similar
circumstances does not demonstrate an abuse of discretion. Ringer v. Kimball, 274
S.W.3d 865, 867 (Tex. App.—Fort Worth 2008, no pet.).
B. Analysis
A trial court’s authority to dismiss for want of prosecution stems from two
sources: (1) Texas Rule of Civil Procedure 165a and (2) the court’s inherent
authority. See TEX. R. CIV. P. 165a; Villarreal v. San Antonio Truck & Equip., 994
S.W.2d 628, 630 (Tex. 1999). Relevant here, a trial court may dismiss a case
pursuant to Rule 165a(1) based on the “failure of any party seeking affirmative
relief to appear for any hearing or trial of which the party had notice.” See
Villarreal, 994 S.W.2d at 630 (citing TEX. R. CIV. P. 165a(1)).
In this case, the trial court’s order provides that it dismissed Harberson’s suit
based on Strickland’s motion to dismiss. The motion requested dismissal because
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Harberson did not appear at the February 20, 2018 pretrial conference “although
[he was] duly notified to appear.” The motion also pointed out that Harberson did
not notify the trial court, before the pretrial conference, that he was unable to
attend. Harberson appears to question on appeal whether he had notice of the
pretrial conference setting. A review of the record shows that Harberson did
receive notice.
When Harberson’s attorney withdrew (based on Harberson’s request) in
December 2017, the attorney represented to the trial court that he was sending a
copy of the amended docket control order to Harberson. The amended docket
control order notified the parties that the pretrial conference was set for February
20, 2018. It warned, “Failure to appear [at the pretrial conference] will be grounds
for dismissal for want of prosecution or default judgment.”
Moreover, Harberson’s February 28 letter, requesting a bench warrant or a
continuance, shows that Harberson was aware of the March 12 trial setting. Thus,
it is reasonable to infer that he was also aware of the February 20 pretrial
conference setting.
Rule 165a(1) also requires that notice of the trial court’s intention to dismiss
and the date and place of the dismissal hearing must be sent by the clerk to each
attorney of record and to each party not represented by counsel. TEX. R. CIV. P.
165a(1). In its notice, the trial court stated that Strickland’s motion to dismiss
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would be submitted on March 6, 2018, at 4:00 p.m. The notice was sent to
Strickland’s attorney and instructed Strickland to file a notice of submission with
the trial court and “all parties.” But it is unclear whether the trial court’s notice was
sent to Harberson.
Strickland filed a submission notice reflecting the date and time of
submission. The certificate of service attached to the submission notice, signed by
Strickland’s attorney, stated that the notice was served in compliance with Rules of
Civil Procedure 21 and 21a. See generally TEX. R. CIV. P. 21, 21a; see also id.
21a(e) (providing that “a certificate by a party or an attorney of record, . . .
showing service of a notice shall be prima facie evidence of the fact of service”).1
In any event, Harberson does not challenge the adequacy of the trial court’s notice
of its intent to dismiss his case, and we need not decide whether Harberson was
adequately notified.2 See Bechem v. Reliant Energy Retail Servs., Inc., No. 01-18-
00878-CV, 2019 WL 4065274, at *3 (Tex. App.—Houston [1st Dist.] Aug. 29,
2019, pet. filed) (noting that appellant did not challenge adequacy of trial court’s
1
In the letter accompanying his appellate brief, Harberson indicates that he “never
received notification” of the filing of Strickland’s motion to dismiss. However, the
certificate of service for the motion indicates that it was served “in accordance
with the Texas Rules of Civil Procedure.” See TEX. R. CIV. P. 21, 21a.
2
As discussed infra, even if notice was inadequate, Harberson waived any
complaint about it because he did not file a motion to reinstate after becoming
aware of the dismissal order. An appellant waives complaints about due process
violations when he had the opportunity to file a timely motion to reinstate (as
Harberson did here) and fails to do so. See Wright v. Tex. Dep’t of Crim. Justice–
Inst’l Div., 137 S.W.3d 693, 696 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
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notice to dismiss bill of review proceeding); Gillis v. Harris Cty., 554 S.W.3d 188,
190 n.1 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (“[B]ecause Gillis does
not challenge the notice provided in this case, we offer no opinion regarding the
sufficiency of that notice.”); Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App.—El
Paso 2007, pet. dism’d w.o.j.) (mentioning that plaintiff did not challenge
adequacy of notice).
Rule 165a further requires that, at the dismissal hearing, the trial court “shall
dismiss for want of prosecution unless there is good cause for the case to be
maintained on the docket.” TEX. R. CIV. P. 165a(1). The trial court’s order,
dismissing Harberson’s suit, states that the trial court considered Strickland’s
motion to dismiss and signed the dismissal order on March 8, 2018. At that time,
the record before the trial court showed that Harberson had not appeared for the
pretrial conference on February 20 (of which he had notice), nor had he informed
the trial court before the pretrial conference that he could not attend.
Harberson also did not file a response to Strickland’s motion or a motion to
retain his case on the trial court’s docket. Harberson points to his February 28
letter, filed by the Galveston District Clerk’s Office on March 2, as a reason that
the trial court’s dismissal order should be reversed and his case remanded. 3 The
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Harberson recognizes that, although his February 28 letter was filed in the district
clerk’s office before the trial court granted the motion to dismiss, a notation on the
letter, stating that the letter was received by the clerk “in civil” on March 8,
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letter requested a bench warrant for Harberson to appear pro se at trial on March 12
because he was incarcerated. The letter alternatively requested the trial court to
grant a continuance of trial. Harberson’s February 28 letter did not address
Strickland’s motion to dismiss or his failure to appear at the pretrial conference.
The letter focused on attaining relief related to Harberson’s representation at the
March 12 trial setting. Therefore, even assuming the trial court saw the letter
before granting the motion to dismiss, it would have been reasonable for the trial
court not to have considered the letter as either a response to the dismissal motion
or as a motion to retain the suit.
Finally, although the record shows that he had notice of the order dismissing
his case less than 30 days after it was signed, Harberson did not file a motion to
reinstate his case. See TEX. R. CIV. P. 165a(3) (providing that motion to reinstate
“shall be filed with the clerk within 30 days after the order of dismissal is signed or
within the period provided by Rule 306a”). We have held 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.”
Wright, 137 S.W.3d at 695. A motion to reinstate would have provided Harberson
an opportunity to develop facts not in the record, such as information regarding his
incarceration, and would have afforded the trial court an opportunity to correct any
indicates that the letter may not have been included in the case file at the time the
court granted the dismissal motion.
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error. See Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 838 n.1 (Tex. App.—Fort
Worth 1999, no pet.); Hosey v. Cty. of Victoria, 832 S.W.2d 701, 703–04 (Tex.
App.—Corpus Christi 1992, no writ); see also Wright, 137 S.W.3d at 695 (holding
that because he received notice of dismissal with ample time to file motion to
reinstate, appellant could have brought his claims to attention of trial court and,
having failed to do so, prevented opportunity for trial court to correct errors).
On this record, we hold that Harberson has not shown that the trial court
abused its discretion when it granted Strickland’s motion to dismiss based on
Harberson’s failure to appear at the pretrial conference. See TEX. R. CIV. P.
165a(1). Accordingly, we overrule Harberson’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
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