DWOP = Dismiss for Want of Prosecution, Dismissal for Want of Prosecution
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DWOP Dismissal and Reinstatement

What does DWOP mean?

DWOP is a term courts, clerks, and lawyers use to refer to the dismissal of a case for want of
prosecution. It is also used as a verb, as in "The case was dwopped" [prounouced
de-wapped].
Want of Prosecution means that the Plaintiff (or Petitioner in a family law case) did not do what
he or she was supposed to do, such as showing up for a hearing or trial setting, or failing to take  
certain specified actions, such as filing a
motion to retain the case on the docket after the court
had sent a notice of intent to dismiss for want of prosecution. Courts must give proper notice to
Plaintiffs that they may dismiss a case. The notice will usually specify what the Plaintiff has to do
to avoid dismissal, such as serving the defendant by a date certain, or file a motion to retain and
attach evidence supporting a good reason why more time is needed.

Once signed, the DWOP dismissal order has the effect of closing the case. It constitutes a final
order disposing of all claims, but - unlike a
default judgment - does not resolve them on their
merits. The dismissal for want of prosecution is
without prejudice, meaning that the case can be
refiled and
res judicata will not be a viable defense. If a court dismisses a case with prejudice for
failure to prosecute, it may be necessary to file a
post-judgment motion seeking correction of
the final order, or a notice of appeal. The court of appeals could be asked to reform the trial
court's judgment to reflect a
dismissal without prejudice, or to reverse the dismissal order
altogether, assuming there are valid grounds to argue that dismissal was an abuse of discretion
under the circumstances.

To get a trial court to set aside a DWOP dismissal, a party must file a timely post-judgment
motion seeking such relief, such a
motion to reinstate or a motion for a new trial, and pay any
applicable fee. Another option may be refiling. A DWOPped case may generally be refiled
because the dismissal of the first suit did not resolve the claims on their merits and did not result
in a final judgment on the merits. The refiled case will be given a new cause number, but may be
transferred to the original court under local rule of jurisdictions that have more than one district
court, to prevent
forum-shopping. The same may occur in county court at law. The refiling will
also have the effect of restarting all deadlines. However, if the applicable statute of limitations has
run in the interim, this may not be an option. If the limitations period has since expired, it may be
necessary to file a motion to reinstate the case and try to persuade the judge that the apparent
failure to show diligence in prosecuting the case and bringing it to trial was excusable or due to
circumstances beyond the party's or the attorney's control. If the court failed to give proper
notice
of intent to dismiss
, that will usually also provide a sound basis for reinstatement on due
process grounds.

A dismissal for want of prosecution (DWOP) may also occur at the appellate level, typically when
the appellant fails to pay the filing fee, does not make arrangements to pay for the court reporter's
record and/or fails to pay the clerk for the appellate record (which consists of copies of the
pleadings, orders, and other relevant documents from the trial court's file). The court of appeals
will typically not dismiss a case unless it has given the appellant prior notice and an opportunity to
respond and to fix any problems. Many appellants allow their case to be dwopped if they do not
with to pursue it. Others file a motion to dismiss, which is typically granted as a matter of course,
although the court of appeals will still issue a brief opinion stating the reason for dismissal.

Disclaimer: The brief summary above does not constitute legal advice, shall not be
construed as such, and shall not be relied upon in lieu of legal advice and/or adequate
legal research of statutory law, applicable rules and relevant case law. Always consult
with a licensed attorney to obtain legal advice on specific legal questions or problems.

DWOP CASE LAW

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Opinion issued February 16, 2006


In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-01127-CV
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BHARATKUMAR D. NAIK, Appellant

V.

JO-CHIN WU, Appellee

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On Appeal from the
County Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 722792

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MEMORANDUM OPINION    [emphasis of key terms not part of court's opinion]

Appellant, Bharatkumar D. Naik, brought suit in 1999 against Jo-Chin Wu, appellee, for personal injuries
sustained in an automobile accident. The trial court dismissed the case for want of prosecution in 2004. In
two issues on appeal, appellant argues that the trial court’s denial of his motion for continuance, order of
dismissal, and refusal to reinstate the case constituted (1) an abuse of discretion and (2) a violation of
appellant’s due process rights.

We affirm.

BACKGROUND

Appellant filed suit against appellee in September 1999, after the two were involved in an automobile
accident. Following some discovery activity, the case entered a prolonged period of relative dormancy,
being reset approximately ten times between December 21, 2000 and June 29, 2004. Although a number
of the resets appear to have been initiated by the trial court itself, at least three resulted from motions filed
by appellant. These included the following:

1.On December 8, 2000, appellant filed a verified motion for continuance. Appellant’s motion asserted that
his counsel would not be available for trial—then set for January 15, 2001—due to illness. The motion
included an affidavit from Douglas J. Stockwell, M.D., indicating that appellant’s counsel, Leonard Cruse,
continued to experience complications from a stroke suffered in 1996. Dr. Stockwell’s letter stated that
Cruse was expected to make a full recovery. The trial court granted appellant’s motion, which appellee did
not oppose.

2.On May 13, 2002, appellant filed a second verified motion for continuance. Appellant’s motion indicated
that the scheduled trial date of June 24, 2002 conflicted with appellant’s previously planned vacation to
Europe. The trial court granted appellant’s motion, which appellee did not oppose.

3.On June 29, 2004, appellant submitted a third verified motion for continuance. The motion again
asserted that Cruse would not be available for trial, which was set to begin on approximately June 29,
2004,  

The exact date the trial was scheduled to begin is not clear from the record, although it is clear that the
trial was set sometime during the week of June 24, 2004.

because of illness. It included a letter from a physician at the Clear Creek Clinic   The physician’s signature on the letter is
not legible.

indicating that Cruse would be unable to perform his duties “for the next two weeks.” The trial court granted appellant’s
motion, which appellee did not oppose.

After appellant’s June 29, 2004 motion had been granted, the trial date was reset for July 19, 2004. On or
about July 19, 2004, appellant submitted a fourth
verified motion for continuance.  It is not clear from
the record precisely when this motion was submitted, although the docket sheet indicates that it was
denied on July 19, 2004.

In this motion, which appellee again did not oppose, Cruse indicated that continuing medical conditions
precluded him from conducting a trial on July 19. The motion included a letter, again from Dr. Stockwell,
indicating that Cruse continued to suffer complications from a stroke he “suffered a few years ago” and
that he should be excused from work “for at least the next month.” The trial court denied appellant’s
motion, maintaining a trial date of July 19, 2004.

Neither Cruse nor appellant appeared at trial on July 19. Noting that appellant had failed to appear despite
being notified of the trial date, the trial court ordered appellant’s action “dismissed for want of
prosecution.” Pursuant to Rule 165a(3) of the Texas Rules of Civil Procedure, appellant filed a motion for
reinstatement on August 20, 2004. See Tex. R. Civ. P. 165a(3). Appellee filed a response opposing
appellant’s motion for reinstatement on August 30, 2004. After an August 31, 2004 hearing, the trial court
denied appellant’s motion for reinstatement. This appeal followed.

DISCUSSION

In two issues on appeal, appellant, in effect, contends that the trial court’s decision to dismiss the case for
want of prosecution constituted (1) an abuse of discretion and (2) a violation of appellant’s due process
rights. Appellant argues that the trial court abused its discretion and violated appellant’s due process
rights by denying his fourth motion for continuance, dismissing the case, and denying his motion for
reinstatement.

Dismissal and Reinstatement Generally

A trial court possesses the power to dismiss a case pursuant to its inherent authority or Texas Rule of Civil
Procedure 165a. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Tex. R.
Civ. P. 165a. Under Rule 165a, a trial court may dismiss a case on “failure of any party seeking affirmative
relief to appear for any hearing or trial of which the party had notice.” Tex. R. Civ. P. 165a(1).

Independent of the Texas Rules of Civil Procedure, a trial court may also order a dismissal when a plaintiff
fails to prosecute a case with due diligence. See Villarreal, 994, S.W.2d at 630.

Whether it acts under Rule 165a or its inherent authority, a court must provide a party with notice and an
opportunity to be heard prior to entering an order of dismissal. Id.; see also Tex. R. Civ. P. 165a(1).

Failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires
reversal on due process grounds. See Villarreal, 994 S.W.2d at 630–31. Participation in a hearing on a
motion to reinstate, however, cures any due process concerns stemming from a failure to provide notice of
intent to dismiss. See Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 94–95 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).

If a case is dismissed, the adversely affected party may file a
verified motion to reinstate. Tex. R. Civ.
P. 165a(3). If a motion to reinstate is filed, the court “shall reinstate the case upon finding after a hearing
that the failure of the party or his attorney was not intentional or the result of conscious indifference but
was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Id. A
failure to appear is not considered intentional or due to conscious indifference simply because it is
negligent or even deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox
Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).

Standard of Review

We review a denial of a motion for continuance, a dismissal for want of prosecution, and a denial
of a motion to reinstate
under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75
(Tex. 1997) (stating that an abuse of discretion standard of review applies to dismissal for want of
prosecution); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating that abuse of discretion
standard of review applies to decisions to grant or deny motion for continuance). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.
See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion
merely because it decides a discretionary matter differently than an appellate court would in a similar
circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

In determining whether or not to grant a motion for continuance, dismissal, or reinstatement, a trial court
may consider the entire history of a case, “including the length of time the case was on file, the amount of
activity in the case . . . and the existence of reasonable excuses for delay.” See Nawas v. R&S Vending,
920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Durston v. Best Western Motel, 695 S.
W.2d 795, 797 (Tex. App.—Waco 1985, no writ) (stating that in ruling on motion for continuance trial court
must examine entire record).

Appellant’s Abuse of Discretion Claims

In his first issue on appeal, appellant claims the trial court abused its discretion by denying appellant’s
fourth motion for continuance, ordering dismissal of the case, and rejecting appellant’s motion for
reinstatement. The crux of appellant’s argument concerns the trial court’s denial of appellant’s fourth
motion for continuance on July 19, 2004. Appellant contends that because the assertions regarding
Cruse's inability to participate at trial on July 19 were not controverted, the trial court was required to
accept them as true. According to appellant, if Cruse’s illness irrefutably prevented him from performing
his duties, the trial court could not deny appellant’s motion for continuance without abusing its discretion.

We find appellant’s argument to be unpersuasive. First, the cases appellant cites in support of his
contention that the trial court must accept uncontroverted facts as true when considering a motion for
continuance refer specifically to a party’s first motion, not its fourth. See Verkin v. Southwest Ctr. One,
Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.]1989, writ denied); Garza v. Serrato, 699 S.W.2d
275, 281 (Tex. App.—San Antonio 1985,writ ref’d n.r.e.); Piedmont Fire Ins. Co. v. Dunlap, 193 S.W.2d
853, 856 (Tex.App.—Galveston 1946, writ ref’d n.r.e.).

Nevertheless, even assuming that the trial court was required to accept the assertions in appellant’s fourth
motion for continuance as true, we cannot say that the trial court abused its discretion by denying
appellant’s motion.   Because there is no reporter’s record or findings of fact and conclusions of law, it is
impossible to know whether or not the trial court accepted as true appellant’s contentions regarding Cruse’
s medical condition. Therefore, we must affirm on the basis of any legal theory supported by the record.
See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d241, 252 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied).

The trial court need not have doubted that Cruse was medically unfit for trial to deny appellant’s motion
without abusing its discretion. Twice appellant had sought and received continuances due to Cruse’s
medical condition, the onset of which appears to have dated to 1996. When appellant sought a third
continuance due to Cruse’s same medical condition, it was reasonable for the trial court to conclude that
Cruse’s condition might not resolve itself within a reasonable amount of time. Indeed, appellant’s motion
indicated that Cruse was suffering complications identical to those he reported in his December 8, 2000
motion for continuance, suggesting that Cruse’s condition had not improved in four years. Considering
that trial courts possess wide latitude to manage their dockets,  See Clanton v. Clark, 639 S.W.2d 929,
931 (Tex. 1982). it was reasonable for the court here, absent any certainty that Cruse would recover within
a reasonable time, to deny appellant’s motion.

Once one concludes that it was not an abuse of discretion to deny appellant’s fourth motion for
continuance, it logically follows that the trial court did not abuse its discretion when it dismissed appellant’s
case after appellant failed to appear for trial on July 19, 2004. See e.g. Tex. R. Civ. P. 165a(1) (stating
that trial courts may dismiss cases for failure to appear). Thus, we turn to appellant’s contentions
regarding the trial court’s denial of his motion to reinstate.

As noted, Texas Rule of Civil Procedure 165a(3) provides that when a case is dismissed for want of
prosecution, “the court shall reinstate the case upon finding, after a hearing, that the failure of the party or
his attorney [to appear] was not intentional or the result of conscious indifference but was due to an
accident or mistake or that the failure has been otherwise reasonably explained.” Tex. R. Civ. P. 165a(3).

Appellant contends that the trial court was required to reinstate his case because his failure to appear was
“otherwise reasonably explained” by the existence of Cruse’s medical condition. Thus in effect, appellant
argues that the trial court was required to grant his motion for reinstatement on the exact same grounds
that it rejected his motion for continuance. Appellant’s contention ignores the trial court’s legitimate
concerns regarding the ability of Cruse to be fit for trial within a reasonable time. Because appellant
advanced no new arguments at the hearing for reinstatement, simply reiterating the fact that Cruse was ill,
we conclude that appellant did not provide an adequate justification for his failure to appear. See Smith,
913 S.W.2d at 468.

We overrule appellant’s first issue on appeal.

Appellant’s Due Process Claims

In his second issue on appeal, appellant in effect contends that his right to due process was violated when
the trial court dismissed his suit and denied his motion for reinstatement. Rule 38 of the Texas Rules of
Appellate Procedure provides that a brief to the court of appeals shall contain, among other things, “a
clear and concise argument for the contentions made, with appropriate citations to authorities and the
record.” Tex. R. App. P. 38.1(h); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,
284 (Tex. 1994). The failure to adequately brief an issue by not providing authorities and record citations
waives any error on appeal. See Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.—
Houston [1st Dist.] 1993, writ denied) (“The Court does not represent the appellant and has no duty to
search for pertinent authority.”). In view of appellant’s failure to provide authorities or record citations for
his due process claims, we conclude that appellant has waived his second issue.

Appellant generally refers to due process rights under the Fourteenth Amendment of theU.S. Constitution and article I,
section 19 of the Texas Constitution. See U.S. Const.amend. XIV; Tex. Const. art. I, § 19.

We overrule appellant’s second issue on appeal.

CONCLUSION

We affirm the judgment of the trial court.

                                                     
Evelyn V. Keyes

                                                     Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.