Autumn Bonifazi v. Gary Michael Birch, 09-16-00124-CV

Bonifazi sued to modify parent-child relationship; trial court dismissed her case for want of prosecution after multiple missed appearances and failure to submit a proposed modification order as agreed.
On November 7, 2013, parties put a Rule 11 agreement on the record; Bonifazi’s counsel was to draft the agreed modification order and appear on November 21 if issues remained.
Bonifazi’s attorney failed to appear on November 21, December 2, and December 9, and no proposed modification order was submitted for entry.
The trial court dismissed the case; Bonifazi’s attorney filed a motion to reinstate but did not secure a hearing and later claimed lack of notice of prior settings.
This Court previously reversed an earlier dismissal (cause No. 09-14-00136-CV) because Bonifazi lacked prior notice and hearing; remanded for further proceedings consistent with that opinion.
On remand the trial court gave notice of intent to dismiss and held a March 11, 2016 hearing on Bonifazi’s motion to reinstate; it denied reinstatement and again dismissed for want of prosecution.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by denying motion to reinstate after remand	Bonifazi argued dismissal should be vacated per mandate because she lacked prior notice and the court should reinstate	Court/defendant argued Bonifazi failed to diligently prosecute, counsel repeatedly failed to submit agreed order or appear, and court provided notice/hearing on remand	Court held no abuse of discretion: trial court provided required notice/hearing on remand and Bonifazi failed to show due diligence; dismissal affirmed
Whether dismissal complied with Rule 165a and due process	Bonifazi argued prior procedural defects required reinstatement	Trial court argued remand allowed it to give the post-dismissal hearing required and then dismiss under Rule 165a/inherent power	Held that due process requirements were satisfied by post-dismissal notice and hearing; dismissal proper under Rule 165a/inherent authority

Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995) (standard of review for motion to reinstate is abuse of discretion)
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) (trial court has inherent power to dismiss for want of prosecution but must provide notice and opportunity to be heard)
Durbin v. Muchow, 309 S.W.3d 758 (Tex. App.—Beaumont 2010) (post-dismissal hearing addressing merits can satisfy due process)
Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398 (Tex. App.—Dallas 2001) (remedy for defective pre-dismissal procedure is a hearing after dismissal, not automatic reinstatement)
Keough v. Cyrus USA, Inc., 204 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2006) (party must offer reasonable explanation for delay to show due diligence)
Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266 (Tex. App.—El Paso 2010) (burden on complaining party to produce record evidence of diligence)
Welborn v. Ferrell Enters., Inc., 376 S.W.3d 902 (Tex. App.—Dallas 2012) (abuse of discretion standard and consideration of entire record when reviewing reinstatement rulings)