      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00449-CV



                                    Ashley N. Preslar, Appellant

                                                   v.

                                    Miguel A. Garcia, Appellee


             FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
         NO. C-1-CV-09-011566, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In this appeal, Ashley N. Preslar asserts that the trial court reversibly erred in

dismissing her lawsuit against appellee Miguel A. Garcia for want of prosecution and in failing to

hold an oral hearing on her motion to reinstate. We will affirm the trial court’s judgment.

                We review both the trial court’s dismissal for want of prosecution and the court’s

failure to reinstate a case under an abuse-of-discretion standard. MacGregor v. Rich, 941 S.W.2d

74, 75 (Tex. 1997) (per curiam) (citing Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90

(Tex. 1976) (per curiam)). A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d

56, 62 (Tex. 2003). With regard to factual matters, an abuse of discretion occurs if the record

establishes that the “trial court could reasonably have reached only one decision.” Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
                “[T]he 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.” Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (citations

omitted).1 In determining whether a plaintiff has established due diligence, the trial court may

consider the entire history of the case, including the length of time the case has been on file, the

amount of activity in the case, whether and when a trial setting has been requested, and the existence

of reasonable excuses for a delay. See State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Texas

Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.). No single factor

is dispositive; for example, a belated trial setting or professed readiness to proceed to trial does

not conclusively establish diligence. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129

(Tex. App.—Houston [14th Dist.] 1999, no pet.). The appellate court must look to the record in its

entirety, including the findings of fact and conclusions of law, if any, and the procedural history of

the case as reflected in the record. See Harvey v. Wetzel, No. 03-03-00608-CV, 2004 WL 1685879,

at *3 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.) (citing City of Houston v. Thomas,

838 S.W.2d 296, 297-98 (Tex. App.—Houston [1st Dist.] 1992, no writ)).




        1
          A trial court may also dismiss under the Rules of Civil Procedure on a “failure of any party
seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a
case is “not disposed of within time standards promulgated by the Supreme Court . . . .” Tex. R. Civ.
P. 165a. These “time standards” refer to rules of judicial administration providing that courts
“should, so far as reasonably possible, ensure that all [civil jury] cases are brought to trial or
final disposition . . . [w]ithin eighteen months from appearance date.” See Tex. R. Jud. Admin. 6(b),
reprinted in Tex. Gov’t Code, tit. 2, subtit. F app. Further, the applicable local rules provide that any
civil case “that ha[s] been on file for more than 18 months that [is] not set for trial and ha[s] had
no filings or settings within 180 days” is eligible for dismissal. Travis (Tex.) Cnty. Ct. at Law Loc.
R. 2.11.1(b).

                                                   2
               In her first of three issues on appeal, Preslar argues that the trial court abused its

discretion in granting Garcia’s motion to dismiss because, she insists, she demonstrated due

diligence in prosecuting her case. For support, she refers to statements in an unverified motion to

retain she filed in response to Garcia’s motion, as well as statements made by her counsel at the

oral hearing on Garcia’s motion to dismiss. The record reflects that this case had been on file

more than forty months at the time of dismissal and had not yet been set for trial, though Preslar

represented at the hearing on the motion to dismiss, and the record reflects, that she had conferred

with Garcia’s counsel and requested a trial setting in the event that Garcia’s motion to dismiss was

denied. The record further reveals that Preslar had taken no action of any kind for over twenty-one

months between the time Garcia appeared, April 18, 2011, and when he filed his motion to

dismiss, January 29, 2013. To justify or excuse this inaction, Preslar’s counsel represented that the

San Antonio office of her law firm (which had offices in other Texas cities, yet was evidently

working the case out of its San Antonio office) had experienced a “transition period, and was without

day-to-day counsel temporarily,” and added that “[s]ince the temporary transitional period” had

ended—apparently corresponding to shortly after Garcia filed his motion to dismiss—counsel had

served discovery and attempted to schedule Garcia’s deposition. However, Preslar presented no

evidence to support these asserted excuses either in her motion to retain or at the hearing on Garcia’s

motion to dismiss. See Texas Mut. Ins. Co., 323 S.W.3d at 274 (noting that “[t]he complaining party

has the burden to bring forth a record” demonstrating due diligence); see also Elkins v. Stotts-Brown,

103 S.W.3d 664, 669 (Tex. App.—Dallas 2003, no pet.) (observing that motions and arguments

of counsel are not evidence). And even if counsel’s statements could be construed as evidence, the

trial court would not have abused its discretion in concluding that her explanations did not


                                                  3
sufficiently excuse her delay. See, e.g., Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 56-58

(Tex. App.—San Antonio 2002, pet. denied) (affirming dismissal of case that had been inactive for

approximately twenty-three months where sole excuse offered in motion to retain was that death of

party’s husband left her unable to pay attorney for a “substantial period of time,” and evidence

presented in support of motion to reinstate did not demonstrate party actively prosecuted her case).

               Further, the record shows that Preslar failed to attend a deposition of her that had

been scheduled on February 20, 2012. Although the record contains the deposition notice—with a

certificate of service complying with Texas Rule of Civil Procedure 21a—and a certificate of

nonappearance, Preslar claims that she had no notice of this deposition and suggests that Garcia was

required to provide a fax confirmation report to prove that she received notice. Preslar is mistaken.

A notice properly sent pursuant to Rule of Civil Procedure 21a raises a presumption that the

notice was received. See Tex. R. Civ. P. 21a; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)

(per curiam). Rule 21a provides that a certificate of service by a party or an attorney of record

“showing service of a notice shall be prima facie evidence of the fact of service,” subject to rebuttal

by the opposing party with proof that the notice was not received. Tex. R. Civ. P. 21a. Preslar does

not dispute that the deposition notice attached as an exhibit to Garcia’s motion to dismiss contained

a certificate of service complying with Rule 21a. This was sufficient to raise a presumption that she

received notice of the deposition, see id., and, again, Preslar failed to present any evidence to rebut

this presumption. See Elkins, 103 S.W.3d at 669; see also Castillo v. State, No. 03-11-00503-CV,

2012 WL 3793276, at *3 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. op.) (appellant waived

review of complaint regarding lack of notice when record showed motion was accompanied by




                                                  4
certificate of service stating that it had been served via fax in compliance with Rule 21a and

appellant failed to provide evidence of non-receipt to trial court).

               Preslar’s inaction for approximately twenty-one months without a reasonable

excuse for the delay, as well as her failure to attend her scheduled deposition, reflect a lack of

diligence in prosecuting this case. See Jimenez, 999 S.W.2d at 129-30 (affirming dismissal where

party failed to provide any proof of diligent prosecution); see also Harvey, 2004 WL 1685879, at *2-

4 (record supported dismissal based on plaintiff’s failure to set trial date over nine-month period

without a reasonable excuse, coupled with fact case had been on file for forty-two months).

Although Preslar may have taken certain steps to prosecute the case after Garcia moved to dismiss,

“activity in response to a threat of dismissal will not necessarily suffice to retain a case on

the docket.” Harrison v. City of New Braunfels; No. 03-02-00645-CV, 2004 WL 393149, at *3

(Tex. App.—Austin Mar. 4, 2004, pet. denied) (mem. op.). We hold that the trial court did not abuse

its discretion in dismissing this case under its inherent power to dismiss a case not prosecuted with

diligence. See MacGregor, 941 S.W.2d at 75-76; see also Harvey, 2004 WL 1685879, at *2-4.2

               In her third issue, Preslar contends that the trial court erred in failing to hold an

oral hearing on her motion to reinstate. We note that the Texas Supreme Court has relied on the

literal language of Rule 165a in holding that a movant who files a timely request for reinstatement

under Rule 165a is entitled to an oral hearing. See Thordson v. City of Houston, 815 S.W.2d 550,

550 (Tex. 1991) (per curiam); see also 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.


       2
         In her second issue, Preslar argues that the trial court abused its discretion in granting the
motion to dismiss pursuant to Rule of Civil Procedure 165a. We need not consider this alternate
ground for the judgment. See Tex. R. App. P. 47.1.

                                                  5
The court shall notify all parties or their attorneys of record of the date, time and place of the

hearing.”) (emphases added). “Accordingly, a trial court has no discretion to refuse an oral hearing

on a motion to reinstate.” Enriquez v. Livingston, 400 S.W.3d 610, 618 (Tex. App.—Austin 2013,

pet. denied) (citing Thordson, 815 S.W.2d at 550). The parties agree that the trial court did not hold

an oral hearing,3 and Garcia has not argued that Preslar’s motion to reinstate was insufficient

under Rule 165a.

                However, we reverse a trial court’s judgment only if the court’s error probably caused

the rendition of an improper judgment or probably prevented Preslar from properly presenting

her case to the court of appeals. See Tex. R. App. P. 44.1. Our sister court in Waco has held that

the failure to hold an oral hearing on a motion to reinstate does not constitute harmful error provided

that the parties have had notice and an opportunity to present their arguments and evidence at an oral

hearing on the motion to dismiss. See Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d

733, 740-41 (Tex. App.—Waco 2005, pet. denied). In Dueitt, the trial court held an oral hearing

on the motion to dismiss, but did not hold another oral hearing on the motion to reinstate. Id. at 740-

41. The dismissed parties argued that they were entitled to an oral hearing on their motion to

reinstate pursuant to Rule 165a. Id. The court noted that the “motion to reinstate is the failsafe to

prevent cases . . . from being improperly dismissed.” Id. at 741 (citing Binner v. Limestone Cnty.,

129 S.W.3d 710, 713 (Tex. App.—Waco 2004, pet. denied)). The court further observed that other

appellate courts have held that “participation in a motion to reinstate cures any due process error in


        3
         In their briefing, the parties dispute why the court failed to hold a hearing, but it is unclear
from the record why the hearing did not proceed on the date the parties had anticipated. See
Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006) (“[W]e do not
consider factual assertions that appear solely in briefs and are not supported by the record.” (citing
Tex. R. App. P. 55.2(g), (i); Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998))).

                                                   6
the original hearing on the motion to dismiss,” and thus, ensures that the dismissed party has

received due process. Id.; see, e.g., Manning v. North, 82 S.W.3d 706, 715 (Tex. App.—Amarillo

2002, no pet.); Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.—San Antonio

2002, pet. denied); Jimenez, 999 S.W.2d at 129; see also Rad v. Black, No. 03-07-00574-CV,

2008 WL 2777320, at *8 (Tex. App.—Austin July 17, 2008, no pet.) (mem. op.). The court

reasoned that, likewise, participation in an oral hearing on a motion to dismiss would similarly

cure any due process concerns raised by a failure to hold a hearing on a motion to reinstate. Dueitt,

180 S.W.3d at 741 (citing Manning, 82 S.W.3d at 715; Texas Sting, 82 S.W.3d at 648-49).4

Therefore, although the trial court had not held an oral hearing on the motion to reinstate, “all

due process concerns were eliminated” because the dismissed parties received “adequate notice

and substance of the hearing on the motion to dismiss, and had the opportunity to respond at

the hearing, which is all due process requires.” Id. (citing Smith v. McKee, 145 S.W.3d 299, 302

(Tex. App.—Fort Worth 2004, no pet.); Texas Sting, Ltd., 82 S.W.3d at 648). Further, the court

noted that the dismissed parties did not offer any new arguments or indicate the discovery of any new

evidence in their motion to reinstate. Id. Accordingly, the failure to hold a hearing did not probably

cause rendition of an improper judgment, nor did it probably prevent the dismissed parties from

presenting their case on appeal. Id. Thus, the court held that any error was harmless. Id.

               We find the analysis in Dueitt persuasive.         Although Preslar challenges the

trial court’s ultimate decision not to reinstate her case, she does not dispute that she had received


       4
           Where a trial court does not hold an oral hearing on either the motion to dismiss or the
motion to reinstate, due process concerns remain. See Enriquez v. Livingston, 400 S.W.3d 610, 616-
20 (Tex. App.—Austin 2013, pet. denied) (holding trial court was not required to hold oral hearing
on motion to dismiss, but abused its discretion in failing to hold an oral hearing on motion to
reinstate).

                                                  7
proper notice and had a full opportunity to present her arguments and any evidence at the hearing

on Garcia’s motion to dismiss. Additionally, her motion to reinstate offers no new arguments

and, aside from being verified, contains no additional or newly discovered evidence. On this record,

we cannot conclude that the failure to hold a hearing probably caused the rendition of an improper

judgment or prevented Preslar from presenting her case on appeal. Therefore, we hold that the

failure to hold a hearing on Preslar’s motion to reinstate was harmless. See Tex. R. App. P. 44.1(a);

Dueitt, 180 S.W.3d at 741.5 We overrule her third issue.


                                           CONCLUSION

                We affirm the trial court’s final judgment.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose;
  Concurring Opinion by Chief Justice Jones

Affirmed

Filed: February 26, 2014




        5
          In her briefing, Preslar suggests that the trial court was obligated to reinstate her case upon
a showing that her actions were not intentional or the result of conscious indifference. See Tex. R.
Civ. P. 165(a)(3). However, this Court has held that this rule applies only to dismissals based on a
failure to appear at trial or other hearing and does not apply to dismissals under the court’s inherent
power. See Burton v. Hoffman, 959 S.W.2d 351, 353-54 (Tex. App.—Austin 1998, no pet.); see also
Harvey v. Wetzel, No. 03-03-00608-CV, 2004 WL 1685879, at *5 (Tex. App.—Austin July 29,
2004, no pet.) (mem. op.); but see Rampart Capital Corp. v. Maguire, 1 S.W.3d 106, 106-07
(Tex. 1999) (dissent to denial of petition) (asserting that standard of proof for dismissed party should
be same regardless of whether case is dismissed under Rule 165a or court’s inherent power).

                                                   8
