Opinion issued March 12, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00290-CV
                           ———————————
                    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.).
                                           7
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


3
      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.
                                            9
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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