![3DFootnote](3D"")
indicating that Cruse would be unable to =
perform=20
his duties =E2=80=9Cfor the next two weeks.=E2=80=9D The trial =
court granted appellant=E2=80=99s=20
motion, which appellee did not oppose.
<=
/SPAN>After=20
appellant=E2=80=99s June 29, 2004 motion had been granted, the =
trial date was=20
reset for July 19, 2004. On or about July 19, 2004, appellant =
submitted a=20
fourth verified motion for continuance.
In this motion, which appellee again did =
not=20
oppose, Cruse indicated that continuing medical conditions =
precluded him=20
from conducting a trial on July 19. The motion included a letter, =
again=20
from Dr. Stockwell, indicating that Cruse continued to suffer=20
complications from a stroke he =E2=80=9Csuffered a few years =
ago=E2=80=9D and that he=20
should be excused from work =E2=80=9Cfor at least the next =
month.=E2=80=9D The trial court=20
denied appellant=E2=80=99s motion, maintaining a trial date of =
July 19, 2004.=20
<=
/SPAN>Neither=20
Cruse nor appellant appeared at trial on July 19. Noting that =
appellant=20
had failed to appear despite being notified of the trial date, the =
trial=20
court ordered appellant=E2=80=99s action =E2=80=9Cdismissed for =
want of prosecution.=E2=80=9D=20
Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, =
appellant=20
filed a motion for reinstatement on August 20, 2004. See =
Tex. R. Civ. P. 165a(3). =
Appellee=20
filed a response opposing appellant=E2=80=99s motion for =
reinstatement on August=20
30, 2004. After an August 31, 2004 hearing, the trial court denied =
appellant=E2=80=99s motion for reinstatement. This appeal =
followed.=20
DISCUSSION
<=
/SPAN>In=20
two issues on appeal, appellant, in effect, contends that the =
trial=20
court=E2=80=99s decision to dismiss the case for want of =
prosecution constituted=20
(1) an abuse of discretion and (2) a violation of =
appellant=E2=80=99s due process=20
rights. Appellant argues that the trial court abused its =
discretion and=20
violated appellant=E2=80=99s due process rights by denying his =
fourth motion for=20
continuance, dismissing the case, and denying his motion for=20
reinstatement.
<=
/SPAN>Dismissal=20
and Reinstatement Generally
<=
/SPAN>A=20
trial court possesses the power to dismiss a case pursuant to its =
inherent=20
authority or Texas Rule of Civil Procedure 165a. See Villarreal =
v. San=20
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); =
Tex. R. Civ. P. 165a. =
Under Rule=20
165a, a trial court may dismiss a case on =E2=80=9Cfailure of any =
party seeking=20
affirmative relief to appear for any hearing or trial of which the =
party=20
had notice.=E2=80=9D Tex. =
R. Civ. P.=20
165a(1). Independent of the Texas Rules of Civil Procedure, a =
trial court=20
may also order a dismissal when a plaintiff fails to prosecute a =
case with=20
due diligence. See Villarreal, 994, S.W.2d at 630. Whether =
it acts=20
under Rule 165a or its inherent authority, a court must provide a =
party=20
with notice and an opportunity to be heard prior to entering an =
order of=20
dismissal. Id.; see also Tex. R. Civ. P. 165a(1). =
Failure to provide adequate notice of the trial =
court=E2=80=99s intent to=20
dismiss for want of prosecution requires reversal on due process =
grounds.=20
See Villarreal, 994 S.W.2d at 630=E2=80=9331. Participation =
in a hearing on=20
a motion to reinstate, however, cures any due process concerns =
stemming=20
from a failure to provide notice of intent to dismiss. See Polk =
v.=20
Southwest Crossing Homeowners Ass=E2=80=99n, 165 S.W.3d 89, =
94=E2=80=9395 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2005,=20
pet. denied).=20
<=
/SPAN>If=20
a case is dismissed, the adversely affected party may file a =
verified=20
motion to reinstate. Tex. =
R.=20
Civ. P. 165a(3). If a motion to reinstate is filed, the =
court=20
=E2=80=9Cshall reinstate the case upon finding after a hearing =
that the failure of=20
the party or his attorney was not intentional or the result of =
conscious=20
indifference but was due to an accident or mistake or that the =
failure has=20
been otherwise reasonably explained.=E2=80=9D Id. A failure =
to appear is=20
not considered intentional or due to conscious indifference simply =
because=20
it is negligent or even deliberate; it must also be without =
adequate=20
justification. See Smith v. Babcock & Wilcox Constr. =
Co., 913=20
S.W.2d 467, 468 (Tex. 1995).
<=
/SPAN>Standard of Review=20
<=
/SPAN>We=20
review a denial of a motion for continuance, a dismissal for want =
of=20
prosecution, and a denial of a motion to reinstate under an abuse =
of=20
discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 =
(Tex.=20
1997) (stating that an abuse of discretion standard of review =
applies to=20
dismissal for want of prosecution); Villegas v. Carter, 711 =
S.W.2d=20
624, 626 (Tex. 1986) (stating that abuse of discretion standard of =
review=20
applies to decisions to grant or deny motion for continuance). A =
trial=20
court abuses its discretion if it acts in an arbitrary or =
unreasonable=20
manner without reference to guiding rules or principles. See =
Garcia v.=20
Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does =
not=20
abuse its discretion merely because it decides a discretionary =
matter=20
differently than an appellate court would in a similar =
circumstance.=20
See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, =
241=E2=80=9342=20
(Tex. 1985). In determining whether or not to grant a motion for=20
continuance, dismissal, or reinstatement, a trial court may =
consider the=20
entire history of a case, =E2=80=9Cincluding the length of time =
the case was on=20
file, the amount of activity in the case . . . and the existence =
of=20
reasonable excuses for delay.=E2=80=9D See Nawas v. =
R&S Vending,=20
920 S.W.2d 734, 737 (Tex. App.=E2=80=94Houston [1st Dist.] 1996, =
no writ);=20
Durston v. Best Western Motel, 695 S.W.2d 795, 797 (Tex. =
App.=E2=80=94Waco=20
1985, no writ) (stating that in ruling on motion for continuance =
trial=20
court must examine entire record).
<=
/SPAN>Appellant=E2=80=99s Abuse of =
Discretion=20
Claims
<=
/SPAN>In=20
his first issue on appeal, appellant claims the trial court abused =
its=20
discretion by denying appellant=E2=80=99s fourth motion for =
continuance, ordering=20
dismissal of the case, and rejecting appellant=E2=80=99s motion =
for reinstatement.=20
The crux of appellant=E2=80=99s argument concerns the trial =
court=E2=80=99s denial of=20
appellant=E2=80=99s fourth motion for continuance on July 19, =
2004. Appellant=20
contends that because the assertions regarding Cruse=E2=80=99s =
inability to=20
participate at trial on July 19 were not controverted, the trial =
court was=20
required to accept them as true. According to appellant, if =
Cruse=E2=80=99s=20
illness irrefutably prevented him from performing his duties, the =
trial=20
court could not deny appellant=E2=80=99s motion for continuance =
without abusing=20
its discretion.
<=
/SPAN>We=20
find appellant=E2=80=99s argument to be unpersuasive. First, the =
cases appellant=20
cites in support of his contention that the trial court must =
accept=20
uncontroverted facts as true when considering a motion for =
continuance=20
refer specifically to a party=E2=80=99s first motion, not its=20
fourth.
Nevertheless, even assuming that the =
trial court=20
was required to accept the assertions in appellant=E2=80=99s =
fourth motion for=20
continuance as true, we cannot say that the trial court abused its =
discretion by denying appellant=E2=80=99s motion.
<=
/SPAN>The=20
trial court need not have doubted that Cruse was medically unfit =
for trial=20
to deny appellant=E2=80=99s motion without abusing its discretion. =
Twice appellant=20
had sought and received continuances due to Cruse=E2=80=99s =
medical condition, the=20
onset of which appears to have dated to 1996. When appellant =
sought a=20
third continuance due to Cruse=E2=80=99s same medical condition, =
it was reasonable=20
for the trial court to conclude that Cruse=E2=80=99s condition =
might not resolve=20
itself within a reasonable amount of time. Indeed, =
appellant=E2=80=99s motion=20
indicated that Cruse was suffering complications identical to =
those he=20
reported in his December 8, 2000 motion for continuance, =
suggesting that=20
Cruse=E2=80=99s condition had not improved in four years. =
Considering that trial=20
courts possess wide latitude to manage their =
dockets,
it was reasonable for the court here, =
absent any=20
certainty that Cruse would recover within a reasonable time, to =
deny=20
appellant=E2=80=99s motion.
<=
/SPAN>Once=20
one concludes that it was not an abuse of discretion to deny =
appellant=E2=80=99s=20
fourth motion for continuance, it logically follows that the trial =
court=20
did not abuse its discretion when it dismissed appellant=E2=80=99s =
case after=20
appellant failed to appear for trial on July 19, 2004. See =
e.g.=20
Tex. R. Civ. P. =
165a(1)=20
(stating that trial courts may dismiss cases for failure to =
appear). Thus,=20
we turn to appellant=E2=80=99s contentions regarding the trial =
court=E2=80=99s denial of=20
his motion to reinstate.
<=
/SPAN>As=20
noted, Texas Rule of Civil Procedure 165a(3) provides that when a =
case is=20
dismissed for want of prosecution, =E2=80=9Cthe court shall =
reinstate the case=20
upon finding, after a hearing, that the failure of the party or =
his=20
attorney [to appear] was not intentional or the result of =
conscious=20
indifference but was due to an accident or mistake or that the =
failure has=20
been otherwise reasonably explained.=E2=80=9D Tex. R. Civ. P. 165a(3). =
Appellant=20
contends that the trial court was required to reinstate his case =
because=20
his failure to appear was =E2=80=9Cotherwise reasonably =
explained=E2=80=9D by the=20
existence of Cruse=E2=80=99s medical condition. Thus in effect, =
appellant argues=20
that the trial court was required to grant his motion for =
reinstatement on=20
the exact same grounds that it rejected his motion for =
continuance.=20
Appellant=E2=80=99s contention ignores the trial court=E2=80=99s =
legitimate concerns=20
regarding the ability of Cruse to be fit for trial within a =
reasonable=20
time. Because appellant advanced no new arguments at the hearing =
for=20
reinstatement, simply reiterating the fact that Cruse was ill, we =
conclude=20
that appellant did not provide an adequate justification for his =
failure=20
to appear. See Smith, 913 S.W.2d at 468.
<=
/SPAN>We=20
overrule appellant=E2=80=99s first issue on appeal. =
<=
/SPAN>Appellant=E2=80=99s Due Process =
Claims=20
<=
/SPAN>In=20
his second issue on appeal, appellant in effect contends that his =
right to=20
due process was violated when the trial court dismissed his suit =
and=20
denied his motion for reinstatement. Rule 38 of the Texas Rules of =
Appellate Procedure provides that a brief to the court of appeals =
shall=20
contain, among other things, =E2=80=9Ca clear and concise argument =
for the=20
contentions made, with appropriate citations to authorities and =
the=20
record.=E2=80=9D Tex. R. =
App. P.=20
38.1(h); see also Fredonia State Bank v. Gen. Am. Life =
Ins.=20
Co., 881 S.W.2d 279, 284 (Tex. 1994). The failure to =
adequately brief=20
an issue by not providing authorities and record citations waives =
any=20
error on appeal. See Raitano v. Tex. Dep=E2=80=99t of Pub. =
Safety, 860=20
S.W.2d 549, 554 (Tex. App.=E2=80=94Houston [1st Dist.] 1993, writ =
denied) (=E2=80=9CThe=20
Court does not represent the appellant and has no duty to search =
for=20
pertinent authority.=E2=80=9D). In view of appellant=E2=80=99s =
failure to provide=20
authorities or record citations for his due process =
claims,=20
we conclude that appellant has waived =
his second=20
issue.
<=
/SPAN>We=20
overrule appellant=E2=80=99s second issue on appeal. CONCLUSION
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Evelyn=20
V. Keyes
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Keyes, and=20
Hanks.