Court of Appeals of Texas, Beaumont.
Esteben Muniz MALDONADO, Appellant
v.
CONROE CREOSOTING COMPANY, Appellee
No. 09-96-401 CV.
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Aug. 28, 1997.
Before WALKER, C.J., BURGESS and STOVER, JJ.
OPINION
PER CURIAM.
*1 Esteben Muniz Maldonado sued his employer for damages for personal injuries sustained while lifting a log in the course of his employment. Conroe Creosoting Company is a non-subscriber to workers’ compensation insurance. On August 20, 1996, the trial court dismissed Maldonado’s suit for want of prosecution and for violating an order of the court. Maldonado’s motion to reinstate was overruled by operation of law. He raises six points of error on appeal.
Suit commenced January 31, 1994. Appellant and his attorney failed to appear at a pre-trial hearing November 7, 19951, and the trial court struck the plaintiff’s pleadings. Appellant filed a motion to reinstate which alleged the failure to appear was inadvertent because counsel had been preoccupied with a sick infant. The trial court reinstated the case January 30, 1996.
On April 8, 1996, Conroe Creosoting filed a motion to dismiss for want of prosecution, alleging Maldonado failed to appear at scheduled mediation hearing March 27, 1996. Maldonado replied the failure to appear was due to a mistake made by the attorney’s paralegal. On May 16, 1996, the trial court denied the motion to dismiss for want of prosecution, but: 1) ordered the attorney to pay $1,000 to Conroe Creosoting’s attorney; 2) ordered the plaintiff to file weekly notices of his address; and 3) ordered Maldonado to “personally attend each court appearance, mediation, settlement conference or other significant events scheduled in connection with this case.” The order specifically notified Maldonado that noncompliance with the order would result in a disposition hearing at which he must show cause why the case should not be dismissed for want of prosecution or for non-compliance with the court’s orders.
On August 15, 1996, Conroe Creosoting filed another motion to dismiss, alleging Maldonado failed to comply with the May 16, 1996, order. The motion complained Maldonado failed to file all the required weekly notices. Maldonado failed to personally appear at an August 1, 1996, hearing on the defendant’s motion to quash two depositions and on the Plaintiff’s motion for continuance. Maldonado also failed to personally appear at the deposition of the plaintiff’s treating physician August 7, 1996. Maldonado responded his attorney failed to notify him of the hearing. Maldonado knew he was supposed to be at the deposition, but a search for an interpreter caused him to be late and he did not want to disturb the deposition. The trial court conducted a hearing August 20, 1996, and dismissed the case “for want of prosecution, for the Plaintiff’s repeated failure to comply with the Court’s Order, and for the Plaintiff’s contempt of court.”
The first two points of error maintain the trial court’s May 16 and August 20 orders violate Rule 13 of the Texas Rules of Civil Procedure. Rule 13 authorizes trial judges to impose sanctions for filing frivolous or fictitious pleadings. Tex.R. Civ. P. 13. The record reflects the trial court dismissed the case on an unrelated ground. Since Rule 13 is inapposite, points of error one and two are overruled.
*2 Point of error three asks whether the May 16 order sufficiently set out the details of compliance. In support of his point of error, appellant cites Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), which held for a person to be held in contempt, the order must set forth the obligations and duties imposed in clear, specific, and unambiguous terms. In Slavin, the relator advanced an alternate construction of the order. Appellant contends the order to appear for all “significant events” was too vague to function as an order to attend the hearing and the deposition. He refers to the paralegal’s affidavit, which says it was not her standard procedure to secure presence of a client at hearings on motions where they have no input. Appellant’s response concedes both Maldonado and his attorney understood he was required to appear at the hearing and deposition. He does not suggest an alternate reasonable construction of the order which does not include the proceedings he failed to attend. We find the order sufficiently clear to inform Maldonado of his obligation to personally appear at the hearing and deposition. Point of error three is overruled.
The fourth point of error argues the trial court imposed an unjust sanction by dismissing the lawsuit. Point of error five presents the related argument that the trial court abused its discretion in failing to reinstate the case after the August 20 dismissal because Maldonado reasonably explained his absence and showed the failure to comply was not intentional and not due to conscious indifference.
Appellant cites Hamill v. Level, 917 S.W.2d 15 (Tex.1996), and TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991), as support for his contention that the Supreme Court has moved away from the imposition of overly severe sanctions of dismissal or default. Both cases address the imposition of sanctions for discovery abuse under Rule 215 of the Texas Rules of Civil Procedure rather than for want of prosecution or for disobeying an order of the court. We apply a clear abuse of discretion standard of review to a dismissal for want of prosecution. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997). The operative standard for reinstatement after dismissal for want of prosecution is essentially the same as that for setting aside a default judgment. Smith v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467 (Tex.1995). Reinstatement is mandatory if the failure to appear was not the result of conscious indifference but was due to accident or mistake or if the failure to appear has been reasonably explained. Tex.R. Civ. P. 165a(3).
Appellant does not dispute he failed to abide by the court’s order. He blamed his lawyer for his failure to appear at the August 1 hearing and appellee did not attempt to controvert the explanation. Maldonado was personally at fault for his failure to appear at the deposition, but he minimizes his responsibility because he did not have an interpreter available to him.
*3 Appellant argues there must be a direct relationship between the conduct and the sanction, and the sanction must be directed toward the abuse and visited upon the offender. The trial court attributed fault to both appellant and his counsel, a conclusion supported by the affidavits filed with the court. Furthermore, we find dismissal to be directly related to the failure to prosecute the suit. We also must consider the trial court’s action in the context of the entire case. The trial court reinstated the case the first time appellant failed to appear at a court-ordered proceeding, and issued a lesser sanction the second time appellant failed to appear at a court-ordered proceeding. The trial court dismissed the case after the third violation. Appellant’s explanation might have been reasonable in another context and unreasonable after repeated warnings. His repeated violations justified the trial court’s decision to dismiss and subsequent refusal to reinstate the case. Points of error four and five are overruled.
The final point of error urges the dismissal violated appellant’s due process rights. Maldonado does not contend he had inadequate notice of any of the orders filed or hearings conducted in the court below. The complaint under this point of error is directed solely to the severity of the sanction. We have already found the trial court did not err in dismissing the suit. Appellant’s conduct justifies a presumption that his claims or defenses lack merit. Point of error six is overruled. We affirm the judgment of the trial court.
AFFIRMED.
Footnotes |
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At that time, trial was scheduled for November 27, 1995. |
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