                                  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.

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       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



                                              5
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



                                            6
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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