Opinion issued June 11, 2013.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00636-CV
                           ———————————
                        SINHUE TEMPLOS, Appellant
                                        V.
                    FORD MOTOR COMPANY, Appellee



                   On Appeal from the 333rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1047461



                         MEMORANDUM OPINION

      Appellant, Sinhue Templos, challenges the trial court’s dismissal of his suit

against Ford Motor Company for want of prosecution. Templos argues that the

trial court erred by (1) dismissing his case for want of prosecution while it was
subject to a bankruptcy stay; (2) failing to give proper notice of its intent to dismiss

for want of prosecution; and (3) failing to identify the grounds for dismissal in the

notice of intent to dismiss. We affirm.

                                     Background
      On August 2, 2010, Templos sued Ford Motor Company for injuries

Templos alleged were caused by the failure of his airbags to deploy in a car

accident. On July 5, 2011, Templos filed for bankruptcy. Six months later, on

December 20, 2011, Templos filed a Suggestion of Bankruptcy in the trial court.

This happened to be the same day the bankruptcy court denied confirmation of

Templos’s Chapter 13 bankruptcy plan and dismissed Templos’s bankruptcy

proceeding. Ford notified Templos of the dismissal of Templos’s bankruptcy

proceeding on December 23, 2011 via email.

      Five days later, on December 28, 2011, the trial court sent all counsel in

Templos’s case a Notice of Intent to Dismiss (First Notice of Intent to Dismiss).

The First Notice of Intent to Dismiss stated that “[to] avoid unnecessary delay,

claims against the bankrupt party will be dismissed for want of prosecution unless”

certain actions are taken, including filing “a verified motion to retain stating why

the above actions are impractical and stating a good cause to retain the case.”

Templos filed a motion to retain on February 20, 2012. Three days later, on

February 23, 2012, the trial court entered an order retaining the case for sixty days


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and sent another notice of intent to dismiss the lawsuit (Second Notice of Intent to

Dismiss), which contained identical language as the First Notice of Intent to

Dismiss and required a verified motion to retain to be filed by April 23, 2012, in

order to avoid dismissal for want of prosecution. Templos did not respond to the

Second Notice of Intent to Dismiss. On May 25, 2012, the trial court dismissed

Templos’s lawsuit against Ford for want of prosecution. Following the dismissal,

Templos filed a motion to reinstate the case, which was denied by the trial court

after a hearing. Templos appeals.

                                     Discussion

      Templos challenges the trial court’s dismissal on three grounds. First, he

argues the trial court erred by dismissing the case while it was subject to the

bankruptcy stay. Second, Templos contends the trial court failed to give him

proper notice of the court’s intent to dismiss for want of prosecution in violation of

his right to due process. Finally, he argues that the trial court erred by failing to

identify the grounds for dismissal in the notice of intent to dismiss.

A.    Standard of Review and Applicable Law

      This court reviews a dismissal for want of prosecution for an abuse of

discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Coleman v.

Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ).

The trial court’s authority to dismiss for want of prosecution stems from two

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sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s

inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630

(Tex. 1999). A trial court may dismiss under the rules of civil procedure based on

the “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 the time

standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(1), (2);

Villarreal, 994 S.W.2d at 630.

      In addition, the common law vests the trial court with the inherent power to

dismiss, independent of the rules of civil procedure, when a plaintiff fails to

prosecute his or her case with due diligence. See Rizk v. Mayad, 603 S.W.2d 773,

776 (Tex. 1980) (“The power of the courts to move their dockets existed at

common law and independently of statutes and rules of procedure.”); Veterans’

Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (holding that court has

inherent power to dismiss suit for failure to prosecute it with due diligence even

without statutory or rule authority). Therefore, even without statutory authority, a

court has the right to dismiss a suit for failure to prosecute it with due diligence.

Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957).

      Due process requires that adequate notice be given before the trial court

enters an order dismissing a lawsuit for want of prosecution. Donnell v. Spring

Sports, Inc., 920 S.W.2d 378, 386 (Tex. App.—Houston [1st Dist.] 1996, writ

                                          4
denied). A party must be provided with notice and an opportunity to be heard

before a court may dismiss a case for want of prosecution under either Rule 165a

or the court’s inherent authority. Villarreal, 994 S.W.2d at 630. However, the

Texas Supreme Court has held that either notice of the trial court’s intent to

dismiss or notice of the actual order of dismissal is sufficient to satisfy the

appellant’s due process rights. See Harris Cnty. v. Miller, 576 S.W.2d 808, 810

(Tex. 1979).    Furthermore, “the courts of appeal are in agreement that a post-

dismissal hearing obviates any due process concerns.” Franklin v. Sherman Indep.

Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied); see also

Montgomery Ward & Co. v. Denton Cnty. Appraisal Dist., 13 S.W.3d 828, 830–31

(Tex. App.—Fort Worth 2000, pet. denied) (holding that where dismissal for want

of prosecution is challenged on due process grounds, notice may consist of either

notice of trial court’s intent to dismiss or notice of actual order of dismissal);

Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston

[14th Dist.] 1999, no pet) (holding that appellant was afforded due process, even

though he did not receive notice of trial court’s intent to dismiss case for want of

prosecution, because he received actual notice of dismissal order in time to file

motion to reinstate and hearing was held on such motion).

      The Rules of Civil Procedure provide a mechanism by which a party whose

case is dismissed for want of prosecution may seek reinstatement. See TEX. R. CIV.

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P. 165a(3). The motion to reinstate “shall set forth the grounds therefor and be

verified by the movant or his attorney.” Id. Rule 165a provides: “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.”

Id.; see also Nawas v. R & S Vending, 920 S.W.2d 734, 738 (Tex. App.—Houston

[1st Dist.] 1996, no writ) (citing Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 902

(Tex. App.—Houston [1st Dist.] 1991, writ denied)).         “The party requesting

reinstatement has the burden to bring forth a record establishing that reinstatement

was required.” Kenley v. Quintana Petroleum Corp., 931 S.W.2d 318, 321 (Tex.

App.—San Antonio 1996, writ denied) (citing Bard v. Frank B. Hall & Co., 767

S.W.2d 839, 845 (Tex. App.—San Antonio 1989, writ denied)).

C.    Analysis

      1.    Applicability of Automatic Stay

      Templos filed for Chapter 13 Bankruptcy on July 5, 2011, after he brought

this action against Ford, and contended in his December 20, 2011 Suggestion of

Bankruptcy that his bankruptcy filing automatically stayed the proceedings in the

trial court. Templos argues that the trial court erred by dismissing his case for

want of prosecution while the case was subject to the automatic bankruptcy stay.




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      “When a defendant files a bankruptcy petition, an automatic stay goes into

effect and abates any judicial proceeding against that party.” In re Sw. Bell Tel.

Co., 35 S.W.3d 602, 604 (Tex. 2000).          The automatic stay provision in the

bankruptcy code forbids “the commencement or continuation . . . of a judicial,

administrative, or other action or proceeding against the debtor that was or could

have been commenced before the commencement of the [bankruptcy case], or to

recover a claim against the debtor that arose before the [bankruptcy case].” 11

U.S.C. § 362(a)(1). However, the automatic stay is only applicable to claims

against the debtor. See Montgomery Ward, 13 S.W.3d at 829–30 (citing McMillan

v. MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993)). Here, Templos, the

debtor, was a plaintiff, and there were no claims against him. Templos’s claims

against Ford, therefore, were not subject to the automatic stay. See Montgomery

Ward, 13 S.W.3d at 829–30.

      2.     Failure to Give Proper Notice and Identify Grounds for Dismissal

      Templos next argues that the trial court failed to provide him with proper

notice of the court’s intent to dismiss the case for want of prosecution, in violation

of his due process rights. Templos alleges that the notices were improper because

they state that, unless specified action is taken, the “claims against the bankrupt

party will be dismissed for want of prosecution.” Templos correctly notes that the

notices do not mention that claims of the bankrupt party—Templos’s claims

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against Ford—would be dismissed unless Templos took further action. Templos

also argues that the notices were constitutionally defective because the trial court

was required to state the specific reason for dismissal, but failed to do so.

      Templos’s arguments that the notices violated his due process rights do not

comport with his arguments in the trial court. Templos did not raise these due-

process arguments before the trial court in either his motion to retain or in his

motion to reinstate. His motion to retain, filed on February 20, 2012, said that he

“is currently awaiting reinstatement of his Chapter 13 plan” and “desires to pursue

this cause of action and a disposition of this cause of action will occur within a

reasonable length of time; therefore, [he] requests the Court to remove the case

from the dismissal docket.” In his motion to reinstate, filed on June 7, 2012,

Templos wrote:

      Plaintiff’s counsel was unaware that the bankruptcy had been
      dismissed or he would have moved forward with this case. The
      Plaintiff’s counsel has a reputation for preparing his cases and moving
      them to trial in a timely manner and if Plaintiff’s counsel would have
      received notice from the Plaintiff’s bankruptcy attorney this case
      would have moved forward to trial in a timely manner. Plaintiff and
      counsel are willing to go forward with the trial of this cause at the
      Court’s discretion.

Finally, in his reply to Ford’s response to his motion to reinstate, Templos stated

that the trial court had concurrent jurisdiction to determine the applicability of the

bankruptcy stay and, by suspending all action in this case, “it can be inferred that

this court took the position that the bankruptcy stay applied to all parties and thus
                                           8
should be reinstated.” Because he did not raise a due process objection in the trial

court, Templos has failed to preserve these issues for appellate review. See TEX. R.

APP. P. 33.1 (in order to preserve complaint for appellate review, record must show

that appellant made complaint to trial court and stated grounds for ruling with

sufficient specificity that trial court was made aware of complaint); see also Nivens

v. City of League City, 245 S.W.3d 470, 475 n.6 (Tex. App.—Houston [1st Dist.]

2007, pet. denied) (finding that taxpayers failed to preserve their argument that

trial court violated their due process rights by granting the City’s plea to the

jurisdiction where taxpayers did not raise issue before trial court); In re Baby Boy

R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (constitutional

claims must be raised below or they are not preserved for appellate review).

      In any event, notice of either the trial court’s intent to dismiss or the actual

order of dismissal is sufficient to satisfy the appellant’s due process rights. See

Miller, 576 S.W.2d at 810; see also Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5

(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“[A] trial court does not

abuse its discretion by denying a motion to reinstate if the movant (a) receives

notice of the actual order of dismissal in time to file a motion to reinstate, and (b)

has an opportunity to be heard on the motion.”). Here, Templos received notice of

the trial court’s order of dismissal and timely filed a motion to reinstate.

Furthermore, the record indicates that the trial court held a hearing on Templos’s

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motion to reinstate. We conclude that there was no violation of his right to due

process because Templos was provided notice of the trial court’s order of dismissal

and given the opportunity to be heard on his motion to reinstate. 1 See Miller, 576

S.W.2d at 810; Keough, 204 S.W.3d at 5.

                                         Conclusion

      We affirm the judgment of the trial court.



                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




1
      Templos does not challenge the trial court’s denial of his motion to reinstate on the
      basis that he established that his conduct was not intentional or the result of
      conscious indifference. Even if he did, reversal would not be warranted because
      Templos has not provided a reporter’s record of the hearing or otherwise shown
      that the trial court abused its discretion by refusing to reinstate the case. See
      Kenley, 931 S.W.2d at 321 (party requesting reinstatement has burden to bring
      forth record establishing that reinstatement is required); see also Keough, 204
      S.W.3d at 3–4 (movant for reinstatement bears burden to produce evidence
      supporting the motion).
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