508 S.W.3d 641
Tex. App.2016Background
- In April 2010 Curnutt sued ConocoPhillips for unpaid royalties under a 1948 oil-and-gas lease (Relinquishment Act); discovery closed February 2011 but the case sat largely inactive.
- The trial court set an on-the-court dismissal hearing for lack of prosecution for October 9, 2014; Curnutt filed a verified motion to retain two days before that hearing and argued at the hearing.
- The trial court dismissed the case without prejudice on October 9, 2014; Curnutt then filed a verified motion to reinstate.
- Curnutt contends its motion to reinstate was electronically filed November 7, 2014 but was not delivered to the judge due to a Pecos County clerk office error; the clerk re-accepted the filing January 21, 2015, but the motion was overruled by operation of law on December 23, 2014.
- Curnutt appealed, raising three related issues about the clerk’s failure to deliver the motion and the trial court’s failure to hold a hearing on the motion to reinstate.
- The Court of Appeals affirmed, holding Curnutt waived arguments by inadequate briefing and, alternatively, that any error in failing to hold a hearing was harmless because Curnutt had notice and an opportunity to present at the dismissal hearing and offered no new arguments or evidence in the reinstatement motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Clerk’s failure to deliver motion to judge causing overruling by operation of law — reversible error? | Curnutt: clerk’s mishandling prevented the judge from hearing reinstatement, so overruling by operation of law was reversible error. | Conoco: procedural dismissal was proper; any clerical issue doesn’t require reversal. | Court: waived by inadequate briefing; alternatively harmless because no prejudice shown. |
| Trial court’s failure to hold hearing on motion to reinstate — reversible error? | Curnutt: entitled to a hearing under Rule 165a; denial was reversible. | Conoco: Curnutt had notice and already argued at dismissal hearing; no prejudice. | Court: waived; alternatively any error harmless because parties had prior hearing and no new arguments/evidence. |
| Permitting motion to be overruled by operation of law without a hearing — reversible error? | Curnutt: automatic overruling without hearing violated due process. | Conoco: due process satisfied by prior hearing and opportunity to present. | Court: waived; any due-process concern cured by participation at dismissal hearing; affirm. |
Key Cases Cited
- Martinez v. El Paso County, 218 S.W.3d 841 (Tex. App.—El Paso 2007) (appellate brief must concisely state issues; failure to analyze waives complaint)
- Sweed v. City of El Paso, 195 S.W.3d 784 (Tex. App.—El Paso 2006) (conclusory briefing without authority insufficient)
- Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994) (issues waived for failure to comply with briefing rules)
- Dueitt v. Arrowhead Lakes Property Owners, Inc., 180 S.W.3d 733 (Tex. App.—Waco 2005) (failure to hold oral hearing on motion to reinstate harmless where parties had notice and argued at dismissal hearing)
- Binner v. Limestone County, 129 S.W.3d 710 (Tex. App.—Waco 2004) (motion to reinstate serves as failsafe against improper dismissals)
- Manning v. North, 82 S.W.3d 706 (Tex. App.—Amarillo 2002) (participation in dismissal hearing can cure due-process concerns for reinstatement)
- Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644 (Tex. App.—San Antonio 2002) (same principle regarding cure of due-process defects)
- Jimenez v. Transwestern Property, Co., 999 S.W.2d 125 (Tex. App.—Houston [14th Dist.] 1999) (participation at dismissal hearing can cure reinstatement hearing omission)
- Smith v. McKee, 145 S.W.3d 299 (Tex. App.—Fort Worth 2004) (due process satisfied by notice and opportunity to be heard)
- Plummer v. Reeves, 93 S.W.3d 930 (Tex. App.—Amarillo 2003) (appellate court should not act as advocate for inadequately briefed issues)
- Bankhead v. Maddox, 135 S.W.3d 162 (Tex. App.—Tyler 2004) (appellate court cannot consider issues not raised in brief)