Summary
affirming dismissal for want of prosecution because one independent ground was not adequately briefed
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No. 05-07-01592-CV
Opinion Filed August 13, 2009.
On Appeal from the County Court at Law No. 1 Dallas County, Texas, Trial Court Cause No. cc-07-08674-A.
Before Justices FITZGERALD, LANG, and FILLMORE.
MEMORANDUM OPINION
Appellant CreditOne, LLC, appeals the dismissal of its breach of contact lawsuit against Ronnie L. Brown for want of prosecution. In one issue, CreditOne argues the trial court erred by dismissing the case for want of prosecution. We affirm the trial court.
Background
On June 7, 2007, CreditOne sued Brown for breach of contract, alleging Brown defaulted in making required payments on a credit card agreement and that Brown owed $4,956.93, plus interest. The trial court sent CreditOne a letter dated June 8, 2007, advising the case had been "set for dismissal pursuant to Rule 165a, Texas Rules of Civil Procedure, on OCTOBER 5, 2007, at 9:00 a.m." The letter also stated:
If no answer has been filed, or if the answer filed is insufficient as a matter of law to place any of the facts in your petition at issue, you will be expected to have moved for, and to have had heard, a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in the dismissal of the case on the above date.
If an answer has been filed that is sufficient to create a fact issue that prevents disposition of the entire case, or if you have been unable to obtain service of process, you should plan to appear to obtain a reset of the dismissal date or a trial setting as appropriate.
In no event will live witnesses be required unless the default prove-up is for an unliquidated claim. Liquidated claims and attorneys fees may be proved up by affidavit submitted with a form of judgment.
The record shows that Brown was served with process on July 7, 2007, and that he answered the complaint with a general denial on July 24, 2007. CreditOne filed a motion for summary judgment with supporting affidavits August 27, 2007. Brown filed a response to the motion for summary judgment on October 12, 2007. On October 19, 2007, the trial court signed an order dismissing the case for the following reasons: (1) "[f]ailure to appear for a hearing or trial of which notice was had"; and (2) "[w]ant of [p]rosecution." CreditOne timely perfected this appeal.
Analysis
In its only issue, CreditOne argues the trial court erred by dismissing its case for want of prosecution.
Rule 165a allows a trial court to dismiss a case sua sponte: (1) when a party seeking affirmative relief fails to appear for a hearing or trial of which it had notice; or (2) when a case is not disposed of within the time standards promulgated by the supreme court. Tex. R. Civ. P. 165a(1), (2); Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). "In addition, the 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." Villarreal, 994 S.W.2d at 630. As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support that judgment. See, e.g., Crown Asset Mgmt. v. Savage, No. 05-07-01475-CV, 2009 WL 2414482, at *1 (Tex. App.-Dallas Aug. 7, 2009, no pet. h.) (mem. op.); Crown Asset Mgmt. v. Cornish, No. 05-07-01602-CV, 2008 WL 4881124, at *2 (Tex. App.-Dallas Nov. 13, 2008, no pet.) (mem. op.); Old Republic Ins. Co. v. Sisavath, No. 05-07-01391-CV, 2008 WL 4695491, at *2 (Tex. App.-Dallas Oct. 27, 2008, no pet.) (mem. op.); Hill v. Am. Home Assurance Co., No. 05-05-01431-CV, 2007 WL 1139671, at *1 (Tex. App.-Dallas Apr. 18, 2007, no pet.) (mem. op.); Session v. Argonaut Sw. Ins. Co., No. 05-03-01479-CV, 2004 WL 2378364, at *1 (Tex. App.-Dallas Oct. 25, 2004, no pet.) (mem. op.); Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The rule "is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal." Britton, 95 S.W.3d at 681.
Here, the trial court's dismissal order identifies two grounds: (1) "[f]ailure to appear for a hearing or trial of which notice was had" and (2) "[w]ant of [p]rosecution." Regarding the first ground, the record is less than clear as to whether a hearing was in fact held on October 5, 2007, or whether CreditOne failed to appear at a hearing of which it had notice. Brown's brief asserts that CreditOne, "as Plaintiff, did not appear at the October 5, 2007 hearing." Brown also states that "[n]o one appeared at the October 5, 2007 hearing which was called on the trial court's docket and then notated [sic] as to the non-appearances." CreditOne does not address the October 5, 2007 dismissal docket setting noted in the trial court's June 8 letter, apart from a rather cryptic statement at the end of its brief that it "did not fail to appear for a dispositive hearing."
However, even if CreditOne's assertion were liberally construed as a challenge to the trial court's "failure to appear" ground, it is (1) unsupported by record references and (2) not supported by an explanation of how legal authorities apply to these facts. As a result, CreditOne has waived the issue through inadequate briefing. See Tex. R. App. P. 38.1(h); Town of Flower Mound v. Teague, 111 S.W.3d 742, 766 (Tex. App.-Fort Worth 2003, pet. denied). Furthermore, by inadequately briefing the "failure to appear" ground, CreditOne has effectively failed to challenge an independent ground in support of the trial court's ruling. See Savage, No. 05-07-01475-CV, 2009 WL 2414482, at *1; Cornish, No. 05-07-01602-CV, 2008 WL 4881124, at *2; Sisavath, No. 05-07-01391-CV, 2008 WL 4695491, at *2. We therefore overrule CreditOne's issue. In light of our ruling, we do not reach the question of whether a trial court abuses its discretion by dismissing, for want of prosecution, a four-and-a-half month old case in which there is a motion for summary judgment and a response to that motion pending at the time of dismissal.
We affirm the trial court's judgment.