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                                  MEMORANDUM OPINION

                                          No. 04-07-00855-CV

                                                Eva ORTIZ,
                                                 Appellant

                                                    v.

                               COLUMBUS INSURANCE AGENCY,
                                         Appellee

                      From the 38th Judicial District Court, Medina County, Texas
                                   Trial Court No. 07-07-18513-CV
                          Honorable Mickey R. Pennington, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 30, 2008

AFFIRMED

           Appellant Eva Ortiz challenges the trial court’s dismissal of her breach of contract lawsuit

against Columbus Insurance Agency for want of prosecution, and its denial of her motion to

reinstate. Finding no error, we affirm the trial court’s judgment.

                              FACTUAL AND PROCEDURAL BACKGROUND

           Ortiz filed suit against Columbus Insurance Agency in Bexar County, Texas, alleging a cause

of action for breach of contract. Columbus answered the suit and filed a motion to transfer venue.
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The trial court granted Columbus’s motion and ordered the suit transferred to Medina County on

June 26, 2007. Thereafter, on September 4, 2007, a trial judge in Medina County dismissed Ortiz’s

suit without prejudice for lack of prosecution because the court cost associated with the transfer had

not been paid by Ortiz. Ortiz filed a verified motion to reinstate claiming that her failure to pay the

cost of transfer was not intentional or the result of conscious indifference, but could be reasonably

explained. Specifically, the motion stated, “[Ortiz] did not make the payment as notice of the

payment due for transferring the case was not received by [Ortiz] or her counsel of record.”

       Columbus opposed Ortiz’s motion to reinstate and included in its written response a certified

copy of a July 12, 2007 letter from the Medina County District Clerk addressed to Ortiz’s attorney

which notified Ortiz that a filing fee of $207 for the transfer of the case was due and owing, and

needed to be paid within 30 days in order to avoid the case being dismissed on the court’s own

motion. On October 3, 2007, the trial court heard Ortiz’s motion to reinstate and denied it by written

order. Both parties submitted proposed findings of fact and conclusions of law for the court’s

consideration. The trial court entered the findings of fact and conclusions of law submitted by

Columbus on October 24, 2007. Ortiz now appeals.

                                            DISCUSSION

       In two issues, Ortiz argues the trial court abused its discretion in dismissing her case for want

of prosecution and failing to reinstate her lawsuit. A trial court may dismiss a suit for want of

prosecution based upon Texas Rule of Civil Procedure 165a or because the court possesses inherent

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

P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). The decision

to dismiss a case for want of prosecution rests within the sound discretion of the trial court. State

v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984). We review an order of dismissal for want of

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prosecution and an order overruling a motion to reinstate under a clear abuse of discretion standard.

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial court abuses its discretion

if it is shown, with respect to the resolution of factual disputes, that the trial court could reasonably

have reached only one decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). With respect

to determinations of legal principles, the “trial court has no ‘discretion’ in determining what the law

is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law

correctly will constitute an abuse of discretion . . . .” Id.

        Ortiz maintains the trial court abused its discretion when it denied her request for

reinstatement because she provided a “reasonable explanation” for her untimely payment of the court

cost and because she established a totality of factors indicating due diligence on her part. Generally,

whether a party has prosecuted a case with reasonable diligence is a factual determination.

MacGregor, 941 S.W.2d at 76. No single factor is determinative; instead, the trial court may

consider the suit’s history, including the length of time the suit has been pending, the extent and type

of activity in the suit, and the movant’s explanation for the delay. Christian v. Christian, 985

S.W.2d 513, 514-15 (Tex. App.—San Antonio 1998, no pet.).

        Here, Ortiz’s case was dismissed for want of prosecution for failure to pay the cost associated

with transferring the case to Medina County. On appeal, Ortiz acknowledges she was aware of the

June 27, 2007 order transferring her suit and assessing costs of court against her. She argues in her

brief, however, that the June 27, 2007 order did not indicate an amount owed to the court, a time in

which to submit payment, or where the payment should be sent. She further argues her failure to

timely pay the Medina County court costs was due to either mistake or accident on the part of the

United States Postal Service, as neither she nor her attorney ever received the July 12, 2007

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correspondence notifying her of the court’s intent to dismiss for non-payment. In addition, she states

she exercised due diligence by tendering payment of the $207 cost with her motion to reinstate. She

maintains this explanation meets her burden for reinstatement because it is reasonable and “not

contradicted or disproven by [Columbus].” TEX . R. CIV . P. 165a(3) (“The court shall reinstate the

case upon finding after a hearing that the failure of the party or his attorney was not intentional or

the result of conscious indifference but was due to an accident or mistake or that the failure has been

otherwise reasonably explained.”).

       We begin our analysis by first noting that, contrary to Ortiz’s assertion that her motion to

reinstate was “not contradicted or disproven” by Columbus, the record reveals Columbus did

challenge Ortiz’s explanation for delayed payment. At the time of the hearing, the trial court had two

written pleadings before it—Ortiz’s verified motion to reinstate and Columbus’s written response

in opposition. Within that response, Columbus attached several exhibits, including a certified copy

of the July 12, 2007 letter from the Medina County District Clerk addressed to Russell Amsberry,

attorney of record for Ortiz, notifying Amsberry that the filing fee for transfer of the case was $207

and that the fee needed to be paid within thirty days to avoid dismissal of the case on the court’s own

motion. Columbus’s response further asserted that Ortiz’s counsel did receive the July 12, 2007

notice letter because it was properly addressed and placed in the United States mail, and because the

letter was never returned to the district clerk. Furthermore, contrary to Ortiz’s assertion that

Columbus did not disprove its explanation for delay, Ortiz as the movant, not Columbus, bears the

burden of proof to establish the ground for reinstatement under Rule 165a. Kenley v. Quintana

Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.—San Antonio 1996, writ denied). After a case

has been dismissed for want of prosecution, “[t]he party requesting reinstatement has the burden to

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bring forth a record establishing that reinstatement was required. . . An affidavit or other competent

evidence is required to affirmatively show that no notice was received.” Id. (internal citations

omitted).

       Turning to the record before us, as pointed out by Columbus, Ortiz has not provided this

court with a reporter’s record of the hearing on her motion to reinstate. See TEX . R. APP . P. 34.1

(“The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s

record.”).   Not every appeal, however, requires a reporter’s record; a reporter’s record is not

necessary if “only arguments by counsel are presented in open court.” Michiana Easy Livin’ Country,

Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005). Without a reporter’s record, it is unclear whether

the October 3, 2007 hearing on Ortiz’s motion to reinstate was evidentiary or nonevidentiary. The

trial court’s October 3, 2007 order states that the court considered “the pleadings, evidence, and

arguments of counsel” in denying the motion to reinstate. However, in briefing before this court,

neither party argues that any evidence was presented to the trial judge during the hearing on the

motion to reinstate, and, in fact, one of the trial court’s conclusions of law is that, “Plaintiff

presented no evidence at the hearing in support of Plaintiff’s grounds to reinstate.” (emphasis added).

Absent a clear indication that the October 3, 2007 hearing was an evidentiary hearing, we will

presume that it was nonevidentiary and that the trial court considered only the evidence filed with

the clerk. Id. at 783. Since the October 3, 2007 hearing is presumed to be nonevidentiary, Ortiz has

not waived error by her failure to present this court with a reporter’s record. Cf. id. (complaining

party must present record to establish harmful error from evidentiary hearing).

       Because we have no reporter’s record of the hearing, however, we must indulge every

reasonable presumption in favor of the findings and judgment of the trial court. Wright v. Wright,

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699 S.W.2d 620, 622 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). From the record before us,

we are able to ascertain that although Ortiz denied within her verified motion for reinstatement that

she had received the July 12, 2007 notice letter, the trial court entered several findings of fact against

Ortiz’s assertion. In fact, after the hearing, the trial court entered a total of thirty-one findings of fact,

including that, “[p]laintiff’s counsel does not dispute that the address [used in the July 12, 2007

letter] is his correct address,” the July 12, 2007 letter was “properly addressed, stamped and mailed,”

“was not returned to the Medina County District Clerk undelivered,” and “was duly received by

plaintiff’s counsel.” Under our Rules of Civil Procedure, “[s]ervice by mail shall be complete upon

deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official

depository under the care and custody of the United States Postal Service.” See TEX . R. CIV . P. 21a.

Furthermore, Rule 21a sets up a presumption that notice properly mailed was duly received. Cliff

v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). “This presumption may be rebutted by an offer of

proof of nonreceipt. In the absence of evidence to the contrary, the presumption has the force of a

rule of law.” Id. Here, the only offer of proof was the following verified statement, “[Ortiz] did not

make the payment as notice of the payment due for transferring the case was not received by [Ortiz]

or her counsel of record.” Cf. id. at 779 (both party and attorney provided sworn testimony that they

had not received notice of trial setting). When viewed in the light most favorable to the trial court’s

findings, as we must, we cannot say that the trial court abused its discretion when it rejected Ortiz’s

offer of proof of nonreceipt. Additionally, the trial court entered several conclusions of law,

including that Ortiz “failed to prosecute [her] case with due diligence,” “presented no evidence at

the hearing in support of plaintiff’s grounds to reinstate,” and “failed to meet plaintiff’s burden of

proof to have this case reinstated.” Again, indulging every reasonable presumption in favor of the

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findings and judgment of the trial court, we hold the trial court did not abuse its discretion in

dismissing and refusing to reinstate Ortiz’s lawsuit against Columbus. The judgment of the trial

court is affirmed.

                                                     Phylis J. Speedlin, Justice




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