Opinion
No. 04-05-00787-CV
Delivered and Filed: May 10, 2006.
Appeal from the 81st Judicial District Court, Karnes County, Texas, Trial Court No. 02-10-00185-Cvk, Honorable Ron Carr, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Michael Kennedy appeals from a September 8, 2005 order dismissing his lawsuit. In his sole issue on appeal, Kennedy asserts that he did not receive notice of the hearing at which his complaint was dismissed. Because the issue in this appeal involves the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
We review a trial court's dismissal order under an abuse of discretion standard. Morrill v. Third Coast Emergency Physicians, P.A., 32 S.W.3d 324, 327 (Tex.App.-San Antonio 2000, pet. denied). The appellate record contains an "Order of Setting" signed on April 14, 2005 setting "all pending motions" for hearing at the John B. Connally Unit in Kenedy, Texas, on June 2, 2005. The record also contains a prior "Order of Setting," signed July 2, 2003 setting "all pending motions" and the "court's motion to dismiss because of failure to serve" for a hearing on July 29, 2003. The record does not reflect a ruling on the court's motion to dismiss prior to June 2, 2005; therefore, based on this record, it was one of the "pending motions" at the time of the June 2, 2005 setting. It appears from a letter written by Kennedy to the trial court clerk, received on September 19, 2005, that Kennedy was physically present at the June 2, 2005 setting at the Connally Unit and spoke to the trial judge about resetting his case. Therefore, the record shows that appellant had notice of the June 2, 2005 setting and appeared. The court's dismissal order signed on September 8, 2005 states that Kennedy's suit was dismissed at the June 2, 2005 hearing. In addition, Kennedy timely filed notice of appeal on September 19, 2005, suggesting that he had timely received notice of the September 8, 2005 dismissal order from the court. See Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (stating that the law presumes that a trial court has given proper notice prior to a hearing); Ex Parte Stiles, 958 S.W.2d 414, 418 (Tex.App.-Waco 1997, pet. denied) (absent contrary evidence, the law presumes that parties received notice of trial court orders). Therefore, because the trial court did not abuse its discretion, we overrule Kennedy's issue on appeal and affirm the trial court's judgment.