GEORGE ALEXANDER D/B/A ZENTNER'S DAUGHTER STEAKHOUSE v. LYNDA'S BOUTIQUE (Majority)

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No. 01-1248

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George Alexander d/b/a Zentner=s Daughter Steakhouse, Petitioner

v.

Lynda=s Boutique, Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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Argued November 5, 2003

Justice Schneider, joined by Justice Jefferson and Justice Smith, dissenting.

The Court today concludes that Texas Rule of Civil Procedure 165a(1) permits a case to be dismissed for want of prosecution without holding a separate dismissal hearing. Because I conclude that the plain language of the rule requires a separate hearing, I respectfully dissent.

In this case, the plaintiff, Lynda=s Boutique, failed to appear at a scheduling hearing. Four days later, the trial court dismissed the claim for want of prosecution. The record does not reflect that the court gave any further notice or held any additional hearing before dismissing the case.

I agree that Rule 165a(1) permits a plaintiff=s case to be dismissed for want of prosecution when a party fails to attend a required hearing; the rule provides that:

A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court=s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record . . . . At the dismissal hearing, the 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). I disagree, however, that the case can be dismissed immediately after a single missed hearing without further notice to the parties. First, the rule=s repeated reference to a Adismissal hearing@ indicates that a separate hearing is contemplated. Id. Furthermore, the rule allows a party to avoid dismissal by showing Agood cause for the case to be maintained on the docket.@ Id. If the plaintiff is not present at the hearing C for example, when, as here, the scheduling hearing at which the plaintiff failed to appear suddenly became the Adismissal hearing@ C then it is difficult to imagine how the plaintiff could show good cause. Consequently, I would interpret the rule to require a two-step procedure: first, the trial court must provide the plaintiff with notice that its failure to prosecute the case will lead to dismissal, and second, the trial court must hold a dismissal hearing at which the plaintiff has an opportunity to show good cause for maintaining the case.

Because I conclude that Rule 165a contemplates a separate hearing before dismissal, and that the trial court in this case therefore lacked the authority to dismiss the case pursuant to Rule 165a without holding such a hearing, I must also consider whether the trial court could have dismissed the case without such a hearing under its inherent authority. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (A[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.@). Although this Court has not ruled on the issue, the United States Supreme Court has held that a federal court has inherent authority to dismiss a case when the plaintiff has engaged in dilatory tactics and has failed to appear for a pretrial conference. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In Link, however, the Supreme Court did not decide Awhether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.@ Id. at 634. The circuit courts of appeals have ruled on that issue, however, and have almost uniformly held that absence from a single hearing is insufficient to support dismissal in the absence of other dilatory behavior. See, e.g., Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991); Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988); Tolbert v. Leighton, 623 F.2d 585, 586 (9th Cir. 1980); Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 887-88 (5th Cir. 1968) cert. denied 392 U.S. 928; Meeker v. Rizley, 324 F.2d 269, 271 (10th Cir. 1963); see also 9 Wright & Miller, Federal Practice and Procedure ' 2370 (2d ed. 1990). I would follow this federal precedent to conclude that the trial court=s inherent authority does not permit dismissal when the only evidence of dilatoriness is the failure to appear at a single hearing.

Accordingly, I would affirm the court of appeals= judgment reinstating the case.

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MICHAEL H. SCHNEIDER

JUSTICE

OPINION DELIVERED: May 14, 2004