                                       In The

                                 Court of Appeals
                    Ninth District of Texas at Beaumont
                                _________________
                                NO. 09-14-00136-CV
                                _________________

                        AUTUMN BONIFAZI, Appellant

                                         V.

                      GARY MICHAEL BIRCH, Appellee
________________________________________________________________________

                    On Appeal from the 418th District Court
                         Montgomery County, Texas
                       Trial Cause No. 10-03-02210-CV
________________________________________________________________________

                              MEMORANDUM OPINION

      This appeal is from the trial court’s dismissal for want of prosecution of a

petition to modify the parent-child relationship filed by Autumn Bonifazi. In two

issues, Bonifazi contends the trial court erred in denying her motion to reinstate the

case and in denying her motion without an oral hearing. We reverse the trial

court’s order of dismissal.




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                                   Background

      On December 9, 2013, the trial court dismissed Bonifazi’s modification for

want of prosecution. The court’s order stated, “Autumn Bonifazi and her attorney

failed to appear and also failed to submit a proposed final order.” The trial court’s

docket sheet shows that on December 2, 2013, the court noted that counsel for

Birch appeared for entry of enforcement order, but counsel for Bonifazi did not

appear. A notation on the docket sheet further indicates that on that same day, the

court “advised that case on modification is set for entry or DWOP on 12-9-

13[.]”There is no indication in the record that Bonifazi or her counsel was given

notice of the December 9, 2013 setting or that her case might be dismissed. The

court’s docket sheet indicates that on December 9, 2013, counsel for Birch

appeared, but that neither Bonifazi nor her counsel was present at the hearing.

      On January 7, 2014, Bonifazi filed a verified motion to reinstate her case on

the court’s docket.1 In the motion, Bonifazi’s attorney swore that he did not receive

notice that the case had been set for entry or DWOP on December 9, 2013, and that

is why he failed to appear. He averred that his failure to appear was not intentional

or the result of conscious indifference. Bonifazi’s attorney requested the court to

reinstate Bonifazi’s case. He also filed a request for an oral hearing on the motion
      1
         Bonifazi’s motion to reinstate was timely filed within thirty days of the
date the trial court ordered the case dismissed. See Tex. R. Civ. P. 165a(3).
                                           2
to reinstate at the “[c]ourt’s earliest convenience.” Birch did not file a response to

Bonifazi’s motion to reinstate. Bonifazi’s motion for reinstatement was overruled

by operation of law. 2 Bonifazi filed her notice of appeal.

                                Standard of Review

      We review a trial court’s judgment dismissing a case for want of prosecution

and a court’s ruling on a motion to reinstate under an abuse of discretion standard.

See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); Smith v.

Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam);

Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no

pet.); 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 in an arbitrary or unreasonable manner, or when it acts without reference to

any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985).

             Dismissal for Want of Prosecution and Reinstatement

      A trial court’s authority to dismiss a suit for want of prosecution arises from

Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power.

      2
       In the event for any reason a motion for reinstatement is not decided by
signed written order within seventy-five days after the judgment is signed, the
motion shall be deemed overruled by operation of law. See Tex. R. Civ. P. 165a(3).
                                       3
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex.

R. Civ. P. 165a. According to Rule 165a, the trial court may dismiss a case for

want of prosecution on the “failure of any party seeking affirmative relief to appear

for any hearing or trial of which the party had notice” or when the case is not

disposed of within the time standards promulgated by the Texas Supreme Court.

Tex. R. Civ. P. 165a(1), (2). Further, the common law grants a trial court “the

inherent power to dismiss independently of the rules of procedure when a plaintiff

fails to prosecute his or her case with due diligence.” Villarreal, 994 S.W.2d at

630; see Tex. R. Civ. P. 165a(4). A trial court is required to notify the parties of its

intention to dismiss a case and give the parties an opportunity to be heard before

dismissing a case for want of prosecution. See Villarreal, 994 S.W.2d at 630; Tex.

R. Civ. P. 165a(1). The only evidence in the record indicates that Bonifazi did not

receive the notice contemplated by Rule 165a(1). See Tex. R. Civ. P. 165a(1).

There is also no evidence that the clerk of the court sent Bonifazi notice of the

dismissal hearing.

      Once a trial court dismisses a case for want of prosecution, Rule 165a

provides the procedures and standards for reinstatement that the trial court must

employ whether the dismissal was rule-based or based on the trial court’s inherent

powers. See Tex. R. Civ. P. 165a(3), (4); see also Brown Mech. Servs., Inc. v.

                                           4
Mountbatten Sur. Co., 377 S.W.3d 40, 44 n. 1 (Tex. App.—Houston [1st Dist.]

2012, no pet.); Capetta, 222 S.W.3d at 165-66. Upon receiving a timely-filed,

properly verified motion to reinstate the case, the trial court “shall set a hearing on

the motion as soon as practicable” and “shall notify all parties or their attorneys of

record of the date, time and place of the hearing.” Tex. R. Civ. P. 165a(3). The

Texas Supreme Court has explained that it is not within the discretion of the trial

court to fail to hold a hearing on a timely-filed, properly verified motion to

reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per

curiam); see Smith v. McKee, 145 S.W.3d 299, 305 (Tex. App.—Fort Worth 2004,

no pet.). Here, it is undisputed that Bonifazi filed a timely, properly verified

motion to reinstate and properly requested an oral hearing on the motion. The

record demonstrates that the trial court did not conduct an oral hearing on

Bonifazi’s motion to reinstate. 3 Based on the record before us, we conclude the

trial court failed to hold an oral hearing on Bonifazi’s motion to reinstate her case

      3
         There is a computer printout in the clerk’s record that appears to be from
the court’s case management system. On the printout, there is a comment dated
February 6, 2014, which seems to suggest that Bonifazi’s counsel passed the
hearing on the motion to reinstate. We note that Birch does not contend that
Bonifazi waived the hearing on her motion to reinstate. The reference in the record
is itself unclear, and there is no indication from whom the comment originated,
why it was made, or what precisely is meant by the comment. This reference alone
is insufficient to show that Bonifazi affirmatively waived her right to an oral
hearing on her motion to reinstate her case.
                                          5
and, therefore, abused its discretion. See Thordson, 815 S.W.2d at 550; see also

Smith, 145 S.W.3d at 305-06.

      In this case, Bonifazi did not receive notice of the dismissal hearing before

the court dismissed her case, and she did not receive an oral hearing on her motion

to reinstate despite her request for one. Thus, Bonifazi had no opportunity to be

heard on the merits of the trial court’s dismissal of her case.

      While some courts have indicated that due process concerns over what
      suffices for sufficient notice are satisfied by providing a party with the
      order of dismissal and then subsequently giving the party an
      opportunity to address the merits of the dismissal at a hearing, no
      comparable opportunity to be heard occurred here.

Durbin v. Muchow, 309 S.W.3d 758, 761 (Tex. App.—Beaumont 2010, no pet.).

Because Bonifazi did not receive notice of the trial court’s intent to dismiss before

the trial court dismissed her case, we reverse the trial court’s order of dismissal and

remand the case to the trial court with instructions to reinstate the case. See

Villarreal, 994 S.W.2d at 630 (“The failure to provide adequate notice of the trial

court’s intent to dismiss for want of prosecution requires reversal.”); see also

Sangster v. Walker, No. 09-14-00199-CV, 2015 WL 5042142, at *2 (Tex. App.—

Beaumont Aug. 27, 2015, no pet.) (mem. op.); Durbin, 309 S.W.3d at 761-62.




                                           6
      REVERSED AND REMANDED.




                                           ______________________________
                                                  CHARLES KREGER
                                                       Justice

Submitted on December 8, 2014
Opinion Delivered December 10, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.




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