Failure to Announce for Trial May Result in Dismissal

Can the failure to announce ready for trial be a basis for dismissal of the suit?  The answer is apparently "yes."

Texas Rule of Civil Procedure 165a allows a court to dismiss a case for want of prosecution for failure of any party seeking affirmative relief to appear for any hearing or trial.  In Ogunfeyimi v. Charalambopoulos, the trial court sent out a notice of trial setting of January 4, 2011.  The notice advised counsel to make an announcement for trial by 10:30A.M. on the Friday of the preceding week and upon failure to announce, the case will be dismissed.  Dallas County Local Rule 3.02 states that if the Plaintiff does not announce by 10:30 A.M. on the Friday preceeding the trial, the court may dismiss the case for want of prosecution.

Counsel for Ogunfeyimi did not contact the court clerk to make an announcement.  He appeared for trial on January 4, 2011, only to discover that the trial court had dismissed Ogunfeyimi's case under authority of Rule 165a and the court's inherent power.  At a hearing on the motion to reinstate the case, counsel fo Ogunfeyimi observed that the Friday prior to January 4, 2011 was New Year's Eve.  The court of appeals concluded that Ogunfeyimi never argued to the trial court that he didn't think an announcement was necessary because of a belief that New Year's Eve was a holiday.  The court of appeals went on to point out that New Year's Eve is not a holiday and recited the fact that Appellee's counsel had announced ready.  The court of appeals affirmed the dismissal for want of prosecution because Ogunfeyimi had not provided any explanation to show that the failure to announce was not intentional or the result of conscious indifference but was due to accident or mistake.  The court's opinion may be found here.

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