Full Opinion

Fourth Court of Appeals San Antonio, Texas OPINION No. 04-25-00075-CV COURTLAND BUILDING COMPANY, INC., Appellant v. LOZAJO INVESTMENTS, LLC, d/b/a ND2NO Network, Lozajo Management, LLC, and Lori Hagee, Individually, Appellees From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 18-612 Honorable Kirsten Cohoon, Judge Presiding Opinion by: Rebeca C. Martinez, Chief Justice Concurring and Dissenting Opinion by: Velia J. Meza, Justice Sitting: Rebeca C. Martinez, Chief Justice H. Todd McCray, Justice 1 Velia J. Meza, Justice Delivered and Filed: November 10, 2026 AFFIRMED Appellant Courtland Building Company, Inc. appeals from the trial court’s orders denying its motion to retain and dismissing without prejudice for want of prosecution claims it had asserted against appellees Lozajo Investments, LLC doing business as ND2NO Network, Lozajo 1 Justice H. Todd McCray concurs in judgment only. 04-25-00075-CV Management, LLC, and Lori Hagee. In two issues, Courtland argues the trial court abused its discretion in denying: (1) its motion to retain because it diligently prosecuted its claims; and (2) its motion to reinstate without holding a hearing. We affirm. I. BACKGROUND According to Courtland’s original petition, on November 14, 2014, ND2NO Network, an entity affiliated with Hagee, leased real property from Courtland. Four years later, on November 14, 2018, Courtland sued appellees for their alleged failure to comply with the written lease agreement, including failing to make payments owed under it. Appellees answered with a general denial, and they asserted several affirmative defenses, including laches and accord and satisfaction. After the initial pleadings, the clerk’s record contains counterclaims and a third-party petition filed by Hagee and answers related to these counterclaims and third-party petition. These filings occurred in 2019 and 2020. In August 2022, Courtland moved to compel written discovery. Next, Hagee was deposed on February 15, 2023. After Hagee’s deposition, the next filing in the clerk’s record is on September 12, 2024, wherein the trial court issued a sua sponte “Notice of Dismissal Docket.” The notice provides in relevant part: THIS CASE WILL NOT BE MAINTAINED ON THE DOCKET UNLESS: (1) At least seven (7) days prior to the dismissal hearing, a written motion is filed with the District Clerk setting out specific facts showing good cause for maintaining the case on the docket, with a copy of such motion being furnished to each opposing counsel or pro se party. Oral hearing will be conducted on all timely filed Motions to Retain, on the date and time set out above. NO MOTIONS TO RETAIN WILL BE CONSIDERED BY THE COURT WITHOUT AN ORAL HEARING, OR: (2) At least seven (7) days prior to the dismissal hearing, a written docket control order with a trial setting date, approved by all attorneys or pro se parties is submitted and signed by the Court. -2- 04-25-00075-CV On October 15, 2024, Courtland filed a motion to retain, which provides, in its entirety, the following: I. This is a meritorious case that deserves to be retained on the Court’s docket. This case is set for dismissal on October 28, 2024. II. The Court should not dismiss the Plaintiff’s lawsuit against the Defendants, because there is good cause to maintain it on the Court’s docket. See TEX. R. CIV. P. 165a(1). The Plaintiff and Defendant agreed to take the deposition of Lori Hagee and began her deposition. However during the deposition it was suspended, as Lori Hagee asserted she was only prepared to be deposed in her individual capacity and not as a corporate representative of the Defendant. The parties have since been unable to reschedule the deposition of the corporate representative of the Defendant. Accordingly, Plaintiff asks the court to retain the case, so that the deposition of the corporate representative can be taken, issue a Docket control order and set the matter for trial. Based upon the above and foregoing, Plaintiff moves this Court to retain its docket, to allow time for Plaintiff to complete the Deposition and prepare the case for trial. WHEREFORE, PREMISES CONSIDERED, the Plaintiff hereby prays that this case be retained on the Court’s docket, new DCO entered to include setting the case for trial, and for such other and further relief, at law and in equity, to which it may be entitled. Courtland attached no exhibits to its motion to retain. On the morning of the October 28, 2024 dismissal hearing, Hagee filed a written response to Courtland’s motion to retain. Hagee acknowledged that a deposition of her in her individual capacity was taken, but she asserted that Courtland had not properly noticed her as a corporate representative. See TEX. R. CIV. P. 199.2(b)(1) (“If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested.”). Hagee’s response argued that Courtland’s motion to retain “offers no proof of having -3- 04-25-00075-CV made any effort to” reschedule the deposition of a corporate representative of any of the corporate defendants. On October 28, 2024, the trial court signed two orders. First, the trial court signed an order denying Courtland’s motion to retain that provides it considered “the pleadings on file and any arguments of counsel.” Second, the trial court signed an order of dismissal that dismissed Courtland’s claims without prejudice. On November 26, 2024, Courtland filed a single document that contained a motion to reconsider its motion to retain, motion to reinstate case, and motion for new trial. Regarding Hagee’s deposition, Courtland asserted that “unexpectedly in the course of taking Ms. Hagee’s deposition, counsel for the [appellees] objected to completing the same in all her capacities, which meant that counsel for [appellant] had to start the process all over again.” 2 Courtland argued that its failure to prosecute was not intentional or the result of conscious indifference, but rather due to excusable neglect stemming from accidents or mistakes. Courtland asserted three additional excuses for its delay. First, Courtland emphasized that over the course of the litigation, appellees had changed counsel three times. 3 Second, Courtland pointed to three Houston-area weather events: (a) a hard freeze in January and February 2024; (b) a “Derecho” storm in May 2024; and (c) Hurricane Beryl, which struck on July 8, 2024. Third, Courtland noted that, between January 2023 and October 2024, its counsel had 135 actual trial settings “many of which were tried.” Courtland’s filing concluded by praying that “upon a hearing of these motions that the relief requested herein be granted, the dismissal against it be set aside, a new trial ordered, and for such 2 Courtland made no reference to appellees’ contention that it had failed to follow Texas Rule of Civil Procedure 199.2(b)(1). 3 We note that, according to filings in the clerk’s record, appellees’ current counsel has represented appellees since at least August 15, 2022. -4- 04-25-00075-CV other and further relief to which the Plaintiff is entitled.” Courtland’s filing was not accompanied by a fiat or proposed order setting hearing. Courtland’s motion to reinstate was overruled by operation of law on Monday, January 13, 2025. 4 See TEX. R. CIV. P. 165a(3) (“In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-five days after the judgment is signed, or, . . . the motion shall be deemed overruled by operation of law.”). On January 17, 2025, Courtland filed a request for oral hearing with the trial court. No hearing was held. Courtland timely filed a notice of appeal. II. DISCUSSION A. Standard of Review Trial courts are generally granted considerable discretion in managing their dockets. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam). A plaintiff must prosecute her suit with reasonable diligence or the trial court may dismiss it for want of prosecution. Id. We review a trial court’s decision to dismiss a case for want of prosecution and failure to reinstate the case under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial court abuses its discretion when it acts without reference to any guiding rules and principles such that its ruling was arbitrary or unreasonable. In re Newkirk Logistics, Inc., 718 S.W.3d 240, 246 (Tex. 2025) (orig. proceeding) (per curiam). We note that the appellate record contains no reporter’s record from the October 28, 2024 dismissal hearing. 5 The party who complains on appeal that a trial court abused its discretion has 4 The seventy-fifth day fell on Saturday, January 11, 2025. Thus, the period was extended to the following Monday. See TEX. R. CIV. P. 4 (“The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.”). 5 In a notification of late record, the court reporter stated that, “[u]pon review of my files, I found that there was no record taken down for the hearing being requested.” -5- 04-25-00075-CV the burden “to bring forth a record showing such abuse.” McGilvray v. Graceland Logistics, LLC, No. 07-23-00364-CV, 2024 WL 3614747, at *2 (Tex. App.—Amarillo Jul. 31, 2024, pet. denied) (mem. op.) (quoting Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987)). “Without a reporter’s record, an appellate court cannot know what evidence, if any, was presented to the trial court at the [dismissal] hearing.” McGilvray, 2024 WL 3614747, at *2. “Absent a record showing an abuse of discretion, we must presume that the evidence before the trial court was adequate to support its decision.” Id. (citing Herrera v. Rivera, 281 S.W.3d 1, 6–7 (Tex. App.—El Paso 2005, no pet.); Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 861 (Tex. Civ. App.— San Antonio 1976, writ ref’d n.r.e.)). B. Motion to Retain In Courtland’s first issue, it complains that the trial court abused its discretion in denying its motion to retain. Appellees generally argue that Courtland’s failure to take any action in the case in the eighteen months between Hagee’s deposition and the trial court’s dismissal notice evidences a lack of diligence. 1. Applicable Law A trial court may dismiss a cause for want of prosecution for three reasons: (1) failure to appear; (2) failure to comply with the Texas Supreme Court time standards; and (3) pursuant to a trial court’s inherent power. See TEX. R. CIV. P. 165a(1), (2), (4); TEX. R. JUD. ADMIN. 6.1(b)(1); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“[T]he common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.”). Before a trial court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority, it must provide a party with notice and an opportunity to be heard. Villarreal, 994 S.W.2d at 630. -6- 04-25-00075-CV “In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay.” Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.). “No single factor is dispositive, and a belated trial setting or stated readiness to proceed to trial does not conclusively establish diligence.” Id. 2. Analysis In this case, suit was filed in 2018, and parties were added and counterclaims asserted through 2020. The clerk’s record reflects a lull in activity coinciding with the COVID-19 pandemic and then a discovery dispute in August 2022. However, after Hagee’s deposition on February 15, 2023, the case saw no activity for eighteen months. On appeal, Courtland raises several excuses for the inactivity since Hagee’s deposition, but its motion to retain only referenced — in a conclusory fashion and without any supporting evidence — difficulties in rescheduling Hagee’s deposition. The trial court did not abuse its discretion for failing to consider excuses that were absent from Courtland’s motion to retain. See In re Harvest Communities of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, no pet.) (orig. proceeding) (“We can only consider the record that was before the trial court at the time of the hearing in determining whether the trial court’s ruling was in accordance with the guiding rules and principles . . . .”). Moreover, without a reporter’s record, we cannot ascertain whether these excuses — and any related evidence — were orally presented to the trial court. See McGilvray, 2024 WL 3614747, at *2. Accordingly, the trial court did not abuse its discretion in concluding that Courtland failed to diligently prosecute its claims. See Scoville, 9 S.W.3d at 204. Courtland’s first issue is overruled. -7- 04-25-00075-CV C. Hearing on Motion to Reinstate In Courtland’s second issue, it argues the trial court abused its discretion in failing to set a hearing on its motion to reinstate. Appellees contend Courtland waived the hearing requirement by failing to properly and timely request a hearing. 1. Applicable Law & Analysis Texas Rule of Civil Procedure 165a(3) provides that “[t]he clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.” TEX. R. CIV. P. 165a(3) (emphasis added). Courtland argues that the trial court abused its discretion under Rule 165a(3)’s mandatory provision and the holding in Thordson v. City of Houston, 815 S.W.2d 550 (Tex. 1991) (per curiam), wherein the Texas Supreme Court held that “it was not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate.” Appellees argue Courtland waived its complaint by failing to properly request a hearing. Appellees reference the trial court’s local rules requiring that every motion include a certificate of conference, stating that counsel has conferred with the opposing party and whether the parties could agree on a date for submission or hearing. See 451st (Tex.) DIST. CT. LOC. R. III(B)(d) (Kendall County). This local rule also requires that, when filing any motion that requires a setting by the trial court, a formal request for oral hearing or submission “must be filed with the pleading . . . .” Id. Appellees highlight that Courtland did not file a request for oral hearing with its motion to reinstate on November 26, 2024, as the local rules require, but instead filed it over seven weeks later, on January 17, 2025. Appellees reference our opinion in Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied), wherein we held: A review of the record reflects that the preamble to Appellants’ motion specifically states Appellants “move[ ] for reinstatement of their claims pursuant to Rule 165a -8- 04-25-00075-CV of the Texas Rules of Civil Procedure, move[ ] for a hearing on said motion and file[ ] this brief in support of said motion . . . .” (Emphasis added). However, there is no evidence in the record that Appellants filed a fiat, sent a letter, or made some other communication to the trial court in which they requested a hearing on the motion. As such, there was no mechanism by which to call to the trial court’s attention the need for a hearing. Under these circumstances, we conclude that the trial court did not err in failing to conduct a hearing on Appellants’ motion for reinstatement. Id. (internal citation omitted; emphasis in original). In this case, as in Schmidt, Courtland mentioned a hearing in its motion to reinstate. In contravention of the trial court’s local rules, Courtland failed to contemporaneously file a fiat, letter, or other communication to the trial court requesting a hearing on its motion. Moreover, Courtland waited until after its motion was overruled by operation of law to file a proposed order setting hearing. In the context of a motion for new trial that requires the presentation of evidence, a trial court does not abuse its discretion when the movant fails to call its motion for new trial to the trial court’s attention through a request for hearing and instead allows it to be overruled by operation of law. H & H Wrecker v. Koctar, No. 14-15-00311-CV, 2016 WL 3634258, at *2 (Tex. App.—Houston [14th Dist.] Jul. 7, 2016, no pet.) (mem. op.); see also Weiss v. JPMorgan Chase Bank, N.A., No. 05-06-00940-CV, 2007 WL 2069627, at *4 (Tex. App.—Dallas Jul. 20, 2007, pet. denied) (mem. op.) (“In summary, the trial court acted within its discretion because Weiss did not set his motion for new trial for hearing before the motion was overruled by operation of law, and did not demonstrate diligence in attempting to do so.”). The holdings in Koctar and Weiss are persuasive. Thus, we expand our holding in Schmidt to provide that a trial court does not abuse its discretion by failing to hold a hearing on a motion to reinstate where a movant does not call its motion to reinstate to the trial court’s attention through a request for hearing filed before it is overruled by operation of law. Accord Schmidt, 76 S.W.3d at 57, with Koctar, No. 14-15-00311- CV, 2016 WL 3634258, at *2; Weiss, 2007 WL 2069627, at *4. Accordingly, the trial court did -9- 04-25-00075-CV not abuse its discretion when Courtland failed to call its motion to reinstate to the trial court’s attention through a request for hearing and instead allowed it to be overruled by operation of law. 2. New Complaint We have analyzed the properly presented portion of Courtland’s second issue. In the interest of thoroughness, we note the portion of Courtland’s second issue that it made in only its reply brief. Courtland’s opening brief asserts that “the Trial Court refused to schedule a hearing on the Motion to Reinstate despite multiple attempts for the same by Appellant’s counsel in the form of phone calls to the Court Clerk.” In response, appellees aptly emphasize that Courtland’s brief provided no record citation for its assertion. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). Appellees argue that “Courtland does not state in its brief any dates on which any such calls were placed, to whom appellant spoke, or what the person(s) said to appellant’s counsel.” Appellees further argue “[i]f a hearing was not set due to appellant’s counsel’s failure to comply with the local rules for doing so, then there was a waiver of the hearing requirement, not a refusal by the trial court to comply with it.” In Courtland’s reply brief, it argues — for the first time — that staff for its counsel emailed court staff on January 3 and 7, 2025. Courtland attached to its reply brief emails between a legal assistant for Courtland’s counsel and an “administrative specialist” at the trial court. Notably, appellees’ counsel is not copied on these emails, and the emails are not included in the appellate record. Courtland’s belated reference to the January 3 and 7, 2025 emails, if true, and its reliance on them that are not in the appellate record and where appellee’s counsel was not copied raises a new issue, which we decline to address. See Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. - 10 - 04-25-00075-CV App.—San Antonio 2003, pet. denied) (“A reply brief is not intended to allow an appellant to raise new issues.”). Courtland’s second issue is overruled. III. CONCLUSION We affirm the trial court’s order of dismissal for want of prosecution. Rebeca C. Martinez, Chief Justice - 11 -