Welborn v. Ferrell Enterprises, Inc., 376 S.W.3d 902

In April 2000, Welborn was a passenger on Arsenault’s motorcycle when Hart was killed and the ambulance she was in was involved in a crash.
Hart’s family sued Arsenault, Ferrill Enterprises, Ferrill Lawson, etc., in Johnson County asserting intoxication at Ferrill’s Lounge contributed to the accident.
Welborn intervened later, bringing claims against Hart’s family, Ferrill defendants, Arsenault, and American Medical;
American Medical moved to sever Welborn’s claims and transfer venue to Dallas County, which occurred, moving Welborn’s claims to Dallas.
Dallas County dismissed all claims in April 2003 due to a docketing error; Welborn remained unaware of the dismissal for several years.
After a status conference, the court (erroneously) planned dismissal for want of prosecution and instead held a show-cause hearing; Welborn’s counsel requested a continuance, which the court denied, leading to a Rule 165a dismissal for want of prosecution and lack of due diligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of the dismissal order and notice	Welborn claims the dismissal for want of prosecution was void due to improper notice and a final-judgment style order.	Defendants argue proper notice and formal dismissal were valid; the post-dismissal hearing cured due process concerns.	Notice and final-judgment issues cured; the dismissal was not void.
Standard of conduct for reinstatement	Welborn asserts the court applied an incorrect standard for diligence and abused discretion.	Defendants contend the court used appropriate guiding rules and the history supports denial of reinstatement.	Trial court did not abuse discretion; dismissal upheld.
Admission of evidence at reinstatement hearing	Welborn asserts errors in sustaining objections to evidence of health and financial status affecting diligence.	Defendants contend the evidence was irrelevant or cumulative under Rule 401/403.	Court did not abuse discretion; evidence properly excluded or deemed cumulative.
Rehearing/new-trial ruling and plenary power	Welborn argues the court should have ruled on the motion for rehearing/new trial given plenary power.	Defendants argue Rule 165a and absence of written order render those motions overruled by operation of law.	No abuse; motions were overruled by operation of law.

Franklin v. Sherman Indep. School Dist., 53 S.W.3d 398 (Tex.App.-Dallas 2001) (abuse-of-discretion standard for dismissal/reinstatement)
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125 (Tex.App.-Houston [14th Dist.] 1999) (reinstatement burden and due process considerations)
Clark v. Yarbrough, 900 S.W.2d 406 (Tex.App.-Texarkana 1995) (due process and reinstatement standards)
Texas Soc’y Daughters of the American Revolution, Inc. v. Estate of Hubbard, 768 S.W.2d 858 (Tex.App.-Texarkana 1989) (procedural dismissal standards in civil actions)
Eustice v. Grandy’s, 827 S.W.2d 12 (Tex.App.-Dallas 1992) (entire history of proceedings may be considered for reinstatement)
Lopez v. Harding, 68 S.W.3d 78 (Tex.App.-Dallas 2001) (consideration of entire litigation history in diligence analysis)
Rotello v. State, 671 S.W.2d 507 (Tex. 1984) (context for diligence standards in dismissal/reinstatement)
Frenzel v. Browning-Ferris Indus. Inc., 780 S.W.2d 844 (Tex.App.-Houston [14th Dist.] 1989) (guiding principles for reinstatement standards)