Opinion issued March 31, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00269-CV
                          ———————————
                    ADOLFO R. MARTINEZ, Appellant
                                      V.
   NOEL P. BENAVIDES, PABLO A. MARTINEZ, INC., DR. JAVIER
TADEO RAMIREZ, JUDITH CHRISTINA R. BARRERA, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE OF EVANGELINA H. RAMIREZ,
     MARIA CECILIA R. BENAVIDES, INDIVIDUALLY AND AS
   EXECUTRIX OF THE ESTATE OF EVANGELINA H. RAMIREZ,
 CLAUDIA RAMIREZ MATHERS, AND LETICIA R. REYES, Appellees


                   On Appeal from the 229th District Court
                            Starr County, Texas
                      Trial Court Case No. DC-03-350


                         MEMORANDUM OPINION

      Appellant Adolfo R. Martinez sued Noel P. Benavides, Pablo A. Martinez,

Inc., Dr. Javier Tadeo Ramirez, Judith Christina R. Barrera, Individually and as
Executrix of the Estate of Evangelina H. Ramirez, Maria Cecilia R. Benavides,

Individually and as Executrix of the Estate of Evangelina H. Ramirez, Claudia

Ramirez Mathers, and Leticia R. Reyes to establish title to real property that

Martinez claimed through adverse possession. 1      Martinez also sued for trespass,

civil conspiracy, and fraud. The appellees moved to dismiss Martinez’s claims for

want of prosecution and also argued that he did not have standing to assert his

claims for trespass, civil conspiracy, and fraud.        The trial court dismissed

Martinez’s claims with prejudice, finding that Martinez had failed to prosecute the

case with diligence. Martinez timely filed a verified motion to reinstate, but the

trial court failed to hold a hearing on the motion. We hold that the trial court did

not abuse its discretion in dismissing Martinez’s claims for want of prosecution,

but improperly dismissed the claims with prejudice and erroneously failed to hold

an oral hearing on the motion to reinstate. We modify the trial court’s judgment to

strike the words “with prejudice” and remand the case to the trial court to hold an

oral hearing on the motion to reinstate.




1
      On March 18, 2014, the Texas Supreme Court ordered this appeal transferred from
      the Court of Appeals for the Fourth District of Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (West 2013) (authorizing transfer of cases). We are unaware of
      any conflict between the precedent of the Court of Appeals of the Fourth District
      and that of this Court on any relevant issues. See TEX. R. APP. P. 41.3.

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                                   Background

      This is the third appeal in this case, which has been pending since 2003. See

Martinez v. Benavides, No. 04-05-00618-CV, 2006 WL 1993773 (Tex. App.—San

Antonio July 19, 2006, no pet.); Martinez v. Benavides, No. 04-04-00654-CV,

2005 WL 418593 (Tex. App.—San Antonio Feb. 23, 2005, no pet.). In 2003,

Martinez sued J.C. Ramirez, Pablo A. Ramirez, Jr., Oscar Ruben Santos, Benjamin

Santos, and Noel P. Benavides, claiming ownership by adverse possession of land

in which he alleged each of the defendants had an interest. Martinez initially

served only Benavides; he was unsuccessful in serving the other defendants. 2006

WL 1993773, at *1.        Benavides moved for summary judgment, which was

granted. Id. Martinez appealed the summary judgment to the San Antonio Court

of Appeals, but that appeal was dismissed as interlocutory because claims

remained pending against the other defendants. 2005 WL 418593, at *1.

      Before the trial court received the mandate from the court of appeals, it set

the case for a hearing on the dismissal docket for dismissal due to want of

prosecution. 2006 WL 1993773, at *1. Martinez again attempted, unsuccessfully,

to serve the remaining defendants. Id. After a hearing, the trial court dismissed

the case for want of prosecution. Id. Martinez appealed, and the San Antonio

Court of Appeals reversed. Id. at *4.




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      According to the trial court’s findings of fact, after the 2006 remand, Oscar

Ruben Santos and Benjamin Santos died, and Martinez added their heirs as

defendants. However, Martinez did not serve these defendants. On August 8,

2011, some of the served defendants provided Martinez with a letter identifying the

last known addresses of the unserved defendants. At a status hearing on August

11, 2011, Martinez requested an additional 90 days to serve the defendants and told

the trial court that he would initiate substituted service if he was unable to serve

them. The trial court granted the request and set the matter for a status hearing on

November 29, 2011.

      At the November 29 status hearing, Martinez requested an additional 90

days to serve the unserved defendants. The trial court granted the request and set a

status hearing for March 26, 2012. At the March 26 hearing, Martinez requested

additional time, which the trial court granted, setting a status hearing for April 30,

2012. At the April 30 hearing the trial court signed a letter rogatory and granted

Martinez additional time to serve the unserved defendants. The trial court set a

status hearing for August 20, 2012.

      At the August 20 status hearing, Martinez requested additional time to serve

the unserved defendants. The trial court granted an extension to November 26,

2012. At a hearing on November 26, Martinez requested additional time. The trial




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court granted the request and, at the defendants’ request, set the matter for trial on

March 25, 2013.

      Martinez did not serve the unserved defendants before March 25. When the

trial court called the matter for trial, Martinez requested additional time to serve

the unserved defendants and asked the trial court to order the served defendants to

provide him with addresses for the unserved defendants. The trial court ordered

the served defendants to do so “insofar as [they] would have that knowledge,” and

reset the matter for trial on August 12, 2013. Two days after the hearing, the

served defendants filed an advisement identifying the last known addresses of the

unserved defendants.

      On August 5, 2013, Martinez moved for a continuance of the August 12 trial

date and advised the trial court that he needed additional time to serve the unserved

defendants. The trial court reset the matter for trial on November 5, 2013 and

advised Martinez that no further continuances or additional extensions would be

granted.

      On October 29, 2013, Martinez moved for a continuance of the November

trial setting. The defendants subsequently moved to dismiss the case for want of

prosecution and also moved to dismiss Martinez’s trespass, civil conspiracy, and

fraud claims on the ground that Martinez lacked standing to assert them. Martinez

filed several responses to the motions, arguing that he had been diligent in



                                          5
attempting to serve the unserved defendants and that he did have standing to assert

claims for trespass, civil conspiracy, and fraud.

      The trial court heard the motions to dismiss on December 9, 2013 and signed

an order dismissing the case with prejudice on December 11, 2013. At Martinez’s

request, the trial court later entered findings of fact and conclusions of law, finding

that the unserved defendants were necessary parties, that Martinez had not been

diligent in attempting to serve the unserved defendants, that there was no

reasonable excuse for the delay in prosecution, and that his repeated failure to

serve the unserved defendants was egregious. The trial court did not enter any

conclusions of law regarding standing, the alternative ground urged by the

defendants for dismissal of trespass, civil conspiracy, and fraud.

      Within 30 days of the trial court’s dismissal order, Martinez filed a verified

motion to reinstate. When the trial court failed to set an oral hearing on the

motion, Martinez moved to set a hearing on the motion to reinstate. The trial court

did not hold an oral hearing on the motion to reinstate.

                Dismissal for Want of Prosecution with Prejudice

      In his first, third, fourth, fifth and sixth issues, Martinez argues that the trial

court erred in dismissing his claims for want of prosecution. In his second issue,

Martinez argues that the trial court erred in dismissing his claims with prejudice.




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A.    Standard of Review and Applicable Law

      A trial court may dismiss a civil suit for want of prosecution: (1) under Rule

165a(l) when a party seeking affirmative relief fails to appear for hearing;

(2) under Rule 165a(2) when the case is not disposed of within the time limits

proscribed by the Texas Supreme Court; and (3) pursuant to the court’s inherent

power when a plaintiff fails to prosecute his case with due diligence. TEX. R. CIV.

P. 165a(l), (2), (4); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

(Tex. 1999). We review a trial court’s ruling dismissing a case for want of

prosecution for an abuse of discretion. See Smith v. Babcock & Wilcox Constr.

Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam); Franklin v. Sherman Indep.

Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.–Dallas 2001, pet. denied) (per curiam).

A trial court abuses its discretion when it acts “without reference to any guiding

rules or principles,” that is, when it acts in an arbitrary and unreasonable manner.

Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—

Waco 2005, pet. denied). A trial court does not abuse its discretion when “its

decision is based on conflicting evidence or when some evidence of a substantive

and probative character exists to support the trial court’s decision.” Tex. Mut. Ins.

Co. v. Olivas, 323 S.W.3d 266, 275 (Tex. App.—El Paso 2010, no pet.) (citing In

re Barber, 982 S.W.2d 364, 366 (Tex. 1998)).




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      When determining under its inherent authority whether the plaintiff has

demonstrated a lack of diligence in prosecuting his case, the trial court may

consider the entire history of the case including the length of time the case was on

file, the extent of activity in the case, whether the plaintiff requested a trial setting,

and the existence of reasonable excuses for delay. Dueitt, 180 S.W.3d at 739;

Jimenez v. Transw. Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th

Dist.] 1999, no pet.). None of the factors are dispositive, and a belated trial setting

or the plaintiff’s stated readiness to proceed to trial does not conclusively establish

diligence.   Dueitt, 180 S.W.3d at 739.           The plaintiff bears the burden of

demonstrating that he has diligently prosecuted his case. See Jimenez, 999 S.W.2d

at 130; see also Olivas, 323 S.W.3d at 274 (“The complaining party has the burden

to bring forth a record to support its contention.”).

      Dismissal of a case with prejudice functions as a final determination on the

merits. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam). A

dismissal for want of prosecution is not a trial on the merits, and therefore

dismissal with prejudice is improper. Maldonado v. Puente, 694 S.W.2d 86, 92

(Tex. App.—San Antonio 1985, no writ). An order of dismissal for want of

prosecution is not an adjudication of the rights of the parties; rather, it simply

places the parties in the position they were in prior to filing the suit. Melton v.

Ryander, 727 S.W.2d 299, 303 (Tex. App.—Dallas 1987, writ ref’d n.r.e.). If a



                                            8
trial court improperly dismisses a case for want of prosecution with prejudice, the

appellate court should modify the judgment to strike the words “with prejudice.”

See id.

B.     Analysis

       Here, the trial court found that Martinez “has not been diligent, in any form,

in attempting to serve Defendants in the last ten (10) years” and that it had the

inherent power to dismiss the case. We conclude that the trial court did not abuse

its discretion in dismissing Martinez’s case under its inherent authority.

       Martinez originally filed suit over 10 years ago, in 2003. See Dueitt, 180

S.W.3d at 739 (length of time case was on file is factor to consider regarding

dismissal under inherent power).      Even if his early failure to serve unserved

defendants could be explained by delay caused by the two previous appeals in the

case, the second remand occurred in 2006. Thus, the case had been on file for

seven years after remand when the trial court considered the motions to dismiss.

       Martinez repeatedly asked the trial court for additional time to serve the

unserved defendants and assured the trial court that he would serve them, but never

did.   See Dueitt, 180 S.W.3d at 739 (activity in case and whether plaintiff

requested trial setting are factors to consider regarding dismissal under inherent

power). The trial court repeatedly reset the trial at Martinez’s request. See id.

Before the final reset, the trial court advised Martinez that no further continuances



                                          9
or additional extensions would be granted; nevertheless, Martinez moved for a

continuance of that trial setting, and had not served the unserved defendants at the

time of the hearing on the subsequently-filed motions to dismiss, a month after that

trial setting date.

        The record indicates that at least some of the unserved defendants resided

outside the United States and that Martinez told the trial court that he was having

trouble determining their whereabouts. See Dueitt, 180 S.W.3d at 739 (existence

of reasonable excuses for delay is factor to consider regarding dismissal under

inherent power). However, Martinez was given repeated extensions over a period

of several years to permit him to undertake the investigation needed to properly

serve the unserved defendants. The trial court even ordered the served defendants

to provide Martinez with contact information to the extent that they were able, and

the served defendants complied with this request. To the extent that Martinez

argues that the served defendants withheld information in this regard, such

determinations are left solely to the trial court as factfinder. See HTS Servs., Inc. v.

Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (trial court as factfinder is sole judge of credibility and

appellate court may not pass upon credibility or substitute its judgment for that of

trial court).




                                          10
      Considering all of the factors and the evidence before the trial court on the

motions to dismiss, we hold that the trial court did not abuse its discretion in

finding that Martinez failed to prosecute his case with due diligence. See Dueitt,

180 S.W.3d at 739. Accordingly, we hold that the trial court did not abuse its

discretion in dismissing Martinez’s claims for want of prosecution. See id.

      However, dismissal for want of prosecution is not a ruling on the merits, and

therefore dismissal for want of prosecution with prejudice is improper.          See

Maldonado, 694 S.W.2d at 92. Consequently, it was error for the trial court to

dismiss Martinez’s claims with prejudice. See id. Accordingly, we will modify

the judgment to strike the words “with prejudice.” See Melton, 727 S.W.2d at 303.

      We sustain Martinez’s second issue with respect to dismissal with prejudice,

and overrule Martinez’s first, third, fourth, fifth and sixth issues, which challenge

dismissal of his claims for want of prosecution. Because we have concluded that

dismissal of Martinez’s claims was proper, we do not reach his eighth issue

challenging an alternative ground for dismissal. See TEX. R. APP. P. 47.1.

                                Motion to Reinstate

      In his seventh issue, Martinez argues that the trial court erred in failing to

hold an oral hearing on his motion to reinstate.




                                         11
A.    Motion to Reinstate

      A party seeking reinstatement must timely file a verified motion to reinstate.

TEX. R. CIV. P. 165a(3). The motion must be verified by the movant or her

attorney and must be filed within 30 days after the order of dismissal was signed.

Id. A trial court has no discretion to fail to hold an oral hearing on a timely filed,

properly verified motion to reinstate. Thordson v. City of Houston, 815 S.W.2d

550, 550 (Tex. 1991); see Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d

152, 153 (Tex. 1988) (affirming court of appeals’ holding that trial court abused its

discretion in failing to hold hearing on motion to reinstate); Smith v. McKee, 145

S.W.3d 299, 305 (Tex. App.—Fort Worth 2004, no pet.).

B.    Analysis

      We conclude that the trial court erred in failing to hold an oral hearing on

Martinez’s motion to reinstate. Martinez timely filed a properly verified motion

and moved for an oral hearing, and thus, the trial court had no discretion to fail to

hold an oral hearing on the motion. TEX. R. CIV. P. 165a(3) (“The clerk shall

deliver a copy of the motion [to reinstate] to the judge, who shall set a hearing on

the motion as soon as practicable.”); see Thordson, 815 S.W.2d at 550 (trial court

has no discretion to deny oral hearing on timely filed, properly verified motion to

reinstate). Appellees argue that the trial court did not err in failing to hold a

hearing because Martinez’s motion was without merit, but we may not consider



                                         12
whether the motion to reinstate raises meritorious arguments in determining

whether the trial court erred in failing to hold a hearing. See Thordson, 815

S.W.2d at 550 (“Although the grounds . . . stated in his motion [to reinstate] may

not trigger mandatory reinstatement of his claim . . . he, nevertheless, is entitled to

a hearing on his motion.”).

      We sustain Martinez’s seventh issue.

                                     Conclusion

      We modify the trial court’s judgment to strike the words “with prejudice”

and remand the case to the trial court for an oral hearing on the motion to reinstate.




                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Jennings, Higley, and Huddle.




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