Dong Sheng Huang v. Overhaulinpro.com LLC, Mark Denson and Gary Denson

Affirmed and Memorandum Opinion filed December 22, 2022.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-22-00040-CV

                       DONG SHENG HUANG, Appellant

                                          V.
 OVERHAULINPRO.COM LLC, MARK DENSON, AND GARY DENSON,
                       Appellees

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-22074

                           MEMORANDUM OPINION

      Pro se appellant Dong Sheng Huang appeals from the trial court’s denial of
his motion to reinstate filed after the trial court dismissed his lawsuit for failing to
prosecute his claims. We affirm.

                                    BACKGROUND

      Huang’s car was towed without consent from the Piney Point Apartments on
September 21, 2010 by appellee Overhaulinpro.com, LLC. The resulting towing
fee was $187.89. Huang requested a tow hearing in justice of the peace court
pursuant to Chapter 2308 of the Texas Occupations Code. See 

.001–.505. After conducting the hearing, the justice court determined
there was probable cause to authorize removal of Huang’s car.

      Huang then appealed the justice court’s decision for a trial de novo in county
court. After a one-day bench trial, the county court signed a final judgment in
which it concluded there was probable cause for the towing of Huang’s car. Huang
appealed the county court’s judgment to this court, which affirmed. See Huang v.
Riverstone Residential Group, No. 14-11-00009-CV, 

 (Tex.
App.—Houston [14th Dist.] Dec. 1, 2011, pet. dism’d) (mem. op.). Huang then
filed a petition for review in the Supreme Court of Texas, which was dismissed for
want of jurisdiction.

      Huang then filed a new lawsuit against Overhaulinpro.com in Harris County
District Court in 2012. Huang sought reimbursement of the fees and costs he paid
as a result of the 2010 towing of his car. Huang alleged that he incurred a total of
$710.04 as a result of the towing of his car. In 2013, Huang obtained a default
judgment against Overhaulingpro.com in that lawsuit. When Huang tried to collect
on the default judgment, he discovered Overhaulinpro.com had forfeited its right to
transact business in Texas prior to the time it towed his car.

      In 2014, Huang filed another lawsuit in Harris County District Court against
Overhaulinpro.com.      Huang also sought to impose individual liability on
Overhaulinpro.com’s alleged managers, Mark Denson and Gary Denson, for the
costs and fees he incurred when his car was towed. Huang alleged causes of action
for common law fraud and common law fraud by nondisclosure. The appellate
record indicates little occurred in the litigation in 2014, 2015, and 2016. It is
unclear whether Huang successfully served the named defendants with his original

                                           2
petition or his First Amended Petition. The appellate record indicates that none of
the named defendants had filed an answer before Huang filed his Third Amended
Petition on June 6, 2019.        The Third Amended Petition was served on
Overhaulinpro.com and Mark Denson on July 1, 2019. The third defendant, Gary
Denson, was not served. The appellate record does not contain an answer filed by
any of the defendants.

      The trial court sent notices that the lawsuit would be dismissed for want of
prosecution in 2015, on June 1, 2017, and on September 4, 2018. Each time
Huang complied with the notice and filed a verified motion to retain. The trial
court sent another notice that the lawsuit would be dismissed for want of
prosecution on June 9, 2021. The notice informed Huang and the other named
parties in the lawsuit that the case would be dismissed unless, among other options,
a verified motion to retain was filed on or before July 26, 2021. Huang filed a
verified motion to retain on July 26, 2021. Despite Huang filing the verified
motion to retain, the trial court, without conducting a hearing, signed an order
dismissing his lawsuit on October 25, 2021. The dismissal order provides:

      Based on the record and the law of the case the court DENIES the
      motion to retain filed by plaintiff and orders this case is hereby
      dismissed for want of prosecution. Additionally all matters brought in
      the present action have already been adjudicated in other cases.
      Accordingly, the doctrine of res judicata applies and the matter is
      DISMISSED on those grounds as well.
      Huang subsequently filed a motion to reinstate. The trial court conducted an
oral hearing on Huang’s motion.       The trial court denied Huang’s motion to
reinstate with a signed order. This appeal followed.

                                    ANALYSIS

      Huang raises three issues in his appeal challenging the trial court’s order

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dismissing his case for want of prosecution. We need only reach his first two
issues to resolve this appeal.

I.     The trial court did not dismiss Huang’s case for lack of jurisdiction.

       Huang argues in his first issue that the trial court erred when it dismissed his
lawsuit for lack of jurisdiction. In support of this contention, Huang cites the trial
court’s interlocutory order denying his motion to accept an “amended constable
return of corporation” and the trial court’s comments during the hearing on
Huang’s motion to reinstate.

       While Huang is correct that the trial court stated it was denying Huang’s
motion to accept an amended return of citation based on lack of jurisdiction and
that the trial court expressed doubt it had jurisdiction over Huang’s lawsuit during
the motion to reinstate hearing, the trial court did not dismiss his lawsuit due to a
lack of jurisdiction. Nor did it deny his motion to reinstate based on lack of
jurisdiction. Instead, the initial dismissal order provided that Huang’s case was
dismissed “for want of prosecution.” The trial court denied Huang’s motion to
reinstate without stating a reason. Because the trial court’s written dismissal order
and written order denying Huang’s motion to reinstate do not include lack of
jurisdiction as a ground for the dismissal, we overrule Huang’s first issue on
appeal. See Lopez v. Brown, 

, 603 n.4 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (“Recitals in a judgment or signed order of the court control
over conflicting recitals in either the reporter’s record or clerk’s record.”); Cty. Of
Dallas v. Poston, 

 (Tex. App.—Dallas 2003, no pet.) (“A trial
court’s oral comments following a bench trial may not be substituted for a written
finding of fact. Thus, we may not look to such comments to determine the basis
for the trial court’s ruling.”).

II.    The trial court did not abuse its discretion when it dismissed Huang’s
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      lawsuit for want of prosecution.

      In his second issue, Huang complains about the trial court’s orders
dismissing his case for want of prosecution and refusing to reinstate his case.
Huang makes five separate arguments within his second issue. First, he argues that
the trial court abused its discretion because he complied with the trial court’s June
9, 2021 dismissal notice by filing a verified motion to retain by the trial court’s
deadline. Second, he asserts that the trial court abused its discretion when it
dismissed his case without holding a dismissal hearing. Third, Huang contends
that the trial court abused its discretion when it dismissed his case based, in part,
on the application of res judicata. Fourth, Huang asserts that if the dismissal is
affirmed, he cannot refile his claims because the statute of limitations has expired.
Fifth, Huang argues that the Covid-19 pandemic impacted his ability to serve Gary
Denson. We address these arguments together.

      A trial court’s authority to dismiss for want of prosecution stems from two
sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s
inherent power. Gamboa v. Alecio, 

, 515 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (citing Villareal v. San Antonio Truck & Equip., 

 (Tex. 1999)). Under Rule 165a, a trial court may dismiss a case
for want of prosecution if a party seeking affirmative relief fails to appear for a
hearing or trial of which the party had notice, or if the party seeking affirmative
relief fails to get their case resolved within the time standards established by the
Supreme Court of Texas. See Tex. R. Civ. P. 165a(1), (2). A trial court may also
dismiss a case under its inherent power under the common law when a plaintiff
fails to prosecute their case with due diligence. Gamboa, 604 S.W.3d at 515. 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

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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 the delay. Jimenez v.
Transwestern Property Co., 

 (Tex. App.—Houston [14th
Dist.] 1999, no pet.). We review each type of dismissal for an abuse of discretion.

 A trial court abuses its discretion if it acts without reference to any guiding
rules or principles or acts in an arbitrary or unreasonable manner. 

      Huang initially argues that the trial court abused its discretion when it
dismissed his case because he complied with the requirements set forth in the trial
court’s June 9, 2021 dismissal notice. Huang continues that the trial court also
abused its discretion when it dismissed his case without first holding a hearing.
Huang cites the Supreme Court’s Villareal opinion in support of both contentions.
994 S.W.2d at 630–31.        In Villareal the Supreme Court held that the trial court
abused its discretion when it dismissed the plaintiff’s case because the notice sent
by the trial court warned of dismissal for the failure to make an announcement at
the dismissal hearing and it was undisputed that the plaintiff appeared. Villareal,

. Huang argues the result should be the same here because it is
undisputed that he complied with the trial court’s June 9, 2021 order by filing a
verified motion to retain.

      We conclude that Villareal does not control here because it is
distinguishable. First, in Villareal, the trial court’s dismissal notice was limited to
a failure to appear under Rule 165a. 

 at 631–33. In the present case, the notice
invoked both Rule 165a and the trial court’s inherent power to dismiss for failure
to prosecute a case with due diligence. Therefore, Huang was on notice that he
needed to demonstrate that he had prosecuted his case with due diligence or
explain why he had not. Second, unlike here, there was no motion to reinstate filed
in Villareal. 

 at 634–35, n.2.

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      Here, even if we assume for purposes of appeal that the trial court abused its
discretion when it initially dismissed Huang’s case for want of prosecution, that
error was rendered harmless when the trial court held a hearing on Huang’s motion
to reinstate and Huang had the opportunity to be heard. Rava Square Homeowners
Ass’n v. Swan, No. 14-07-00521-CV, 

, at *3 (Tex. App.—
Houston [14th Dist.] Sept. 30, 2008, no pet.) (mem. op.) (“In light of this court’s
decision regarding Rava’s motion for reinstatement, Rava’s complaint regarding
the initial dismissal is at most a harmless error and therefore is overruled.”). This
hearing is the same hearing, with the same burden of proof that Huang should have
been given before the dismissal order was signed. Jimenez, 

.
We therefore turn to whether the trial court abused its discretion when it denied
Huang’s motion to reinstate.

      A plaintiff such as Huang has the responsibility to prosecute a suit to an end
with reasonable diligence, “failing which a trial court may dismiss for want of
prosecution.” In re Conner, 

 (Tex. 2015) (orig. proceeding)
(per curiam). Based on the entire history of the case, which was initially filed in
2014, the trial court could have determined within its discretion that Huang had not
prosecuted his case with due diligence. See Veterans’ Land Bd. v. Williams, 

 (Tex. 1976) (finding seven–plus year delay as failing to satisfy the
demands of reasonable diligence in prosecuting case); Jimenez, 

(“If Jimenez had any proof of his diligent prosecution, it was his burden to place
that evidence before the trial court at the hearing on the motion to reinstate. He did
not. Since Jimenez failed in his burden of proof, the trial court did not abuse its
discretion in dismissing Jimenez’s case.”).       The trial court could also have
reasonably concluded that the only explanation offered by Huang for his delay in
prosecuting his case, the Covid-19 pandemic, was not a reasonable explanation


                                          7
because his case had been pending for approximately six years before the
pandemic disrupted the trial of lawsuits. See In re Conner, 458 S.W.3d at 534–35
(plaintiff offered no explanation for eight-year delay in bringing case to trial); In
Matter of McBryde Fam. Tr., No. 13-20-00473-CV, 

, at *7
(Tex. App.—Corpus Christi Oct. 21, 2021, no pet.) (mem. op.) (holding trial court
could have reasonably concluded that Covid-19 was not a reasonable excuse for
delay given the “overall minimal activity for a case on file for eighteen months.”).
We hold that the trial court did not abuse its discretion when it denied Huang’s
motion to reinstate.

      Huang’s remaining arguments raised within his second issue do not change
this result. Huang asserts we should consider the possibility that he would be
unable to refile his lawsuit if the trial court’s dismissal order is upheld on appeal
because the statute of limitations has expired. A party such as Huang seeking
affirmative relief “must use reasonable diligence to advance the case on the docket
and move it to trial.” Gamboa, 604 S.W.3d at 517. We hold the fact that a
consequence of Huang’s failure to carry his burden to diligently prosecute his case
is the expiration of the statute of limitations cannot support a determination that the
trial court abused its discretion when it dismissed his case for want of prosecution.
See Guzman v. City of Bellville, 

, 359 (Tex. App.—Houston [14th
Dist.] 2022, no pet.) (stating that “[i]t would be improper to reward a lack of
diligence in pursuing discovery” by granting a continuance to the non-diligent
party); Milcoun v. Werner Co., 

, 363–66 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (plaintiff’s explanations for making no effort to serve
defendant during ten-month period both before and after limitations expired
showed a lack of diligence as a matter of law).

      Finally, Huang asserts that the trial court abused its discretion when it

                                          8
initially dismissed his lawsuit, based, in part, on the doctrine of res judicata. While
Huang is correct that the trial court included res judicata as a reason in its initial
dismissal order, it did not include res judicata as a reason it was denying Huang’s
motion to reinstate. Because we conclude that the trial court did not abuse its
discretion when it denied the motion to reinstate, we need not consider the
propriety of the trial court including res judicata in its initial dismissal order. See
Sellers v. Foster, 

 (Tex. App.—Fort Worth 2006, no pet.)
(“Because the record in this case does not contain formal findings of fact or
conclusions of law and the dismissal order does not specify the reason for
dismissal other than to generally dismiss for want of prosecution, we must affirm
the trial court’s judgment on any theory supported by the record.”); Polk v. Sw.
Crossing Homeowners Ass’n, 

 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied) (stating that appellate court will affirm dismissal order if
trial court did not make findings of fact and conclusions of law “if any theory of
law applicable to the case has support in the evidence.”).1 We overrule Huang’s
second issue.




       1
          In his third issue on appeal, Huang asks this court to reassign his case to another trial
judge in the interest of justice. Because we have overruled Huang’s first two issues and affirm
the trial court’s dismissal of his lawsuit for want of prosecution, we need not reach this issue.
See Tex. R. App. P. 47.1.

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                                   CONCLUSION

      Having overruled all of Huang’s issues necessary to resolve this appeal, we
affirm the trial court’s orders dismissing Huang’s lawsuit for want of prosecution.




                                       /s/    Jerry Zimmerer
                                              Justice



Panel consists of Justices Jewell, Bourliot, and Zimmerer.




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