Opinion
No. 04-03-00938-CV
Delivered and Filed: February 16, 2005.
Appeal from the 131st Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CI-14978, Honorable Rebecca Simmons, Judge Presiding.
The Honorable Johnny D. Gabriel, Jr., is the presiding judge of the 131st Judicial District Court, Bexar County, Texas. The Honorable Rebecca Simmons signed the dismissal order that is the subject of this appeal.
Affirmed As Modified.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
In their sole issue, appellants Springfield Chiropractic, P.C. d/b/a Hillside Chiropractic Clinic ("Springfield Chiropractic"), and Chiropractic Strategies Group, Inc. ("Chiropractic Strategies") claim the trial court erred in dismissing their suit with prejudice for want of prosecution. Appellants do not challenge the dismissal, only the recitation in the court's order that the dismissal is "with prejudice." We modify the court's order to strike the words "with prejudice," and affirm the trial court's judgment as modified.
Factual and Procedural Background
On October 19, 1999, Springfield Chiropractic and Chiropractic Strategies sued attorney Hernden for breach of fiduciary duty and breach of contract based on her purported failure to disperse settlement proceeds to them for services rendered to Hernden's clients. On August 21, 2003, almost four years later, Hernden filed a motion to dismiss for want of prosecution based on violation of a prior court order and failure to timely prosecute the case. A hearing on the motion to dismiss was held on September 4, 2003, and a dismissal order was signed that day. On October 6, 2003, Springfield Chiropractic and Chiropractic Strategies filed a motion to modify the dismissal order requesting the court strike the phrase "with prejudice" from the court's order. The motion to modify was overruled by operation of law on November 18, 2003. Tex. R. Civ. P. 329b(c) (if a motion to modify a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it is overruled by operation of law). On December 15, 2003, the trial court held a hearing on the motion to modify, and signed an order denying the motion. Springfield Chiropractic and Chiropractic Strategies appealed.
Analysis
On appeal, Springfield Chiropractic and Chiropractic Strategies do not challenge the dismissal of their case for want of prosecution. Their only complaint is that the dismissal was "with prejudice," and their only request for relief is that this court reform the dismissal order to strike the words "with prejudice."
Appellants also request this court to award them "$3,500 in fees taxed as costs with due regard for the conduct of Appellee counsel." Appellants did not raise the issue of improper conduct or sanctions in the trial court. Therefore, they have not properly preserved the issue for consideration on appeal. Tex.R.App.P. 33.1(a).
Dismissal of a case with prejudice functions as a final determination on the merits. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam). A dismissal for want of prosecution is not a trial on the merits, and therefore dismissal with prejudice is improper. Maldonado v. Puente, 694 S.W.2d 86, 92 (Tex.App.-San Antonio 1985, no writ). An order of dismissal for want of prosecution is not an adjudication of the rights of the parties; rather, it simply places the parties in the position they were in prior to filing the suit. Melton v. Ryander, 727 S.W.2d 299, 303 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). Therefore, if the trial court's order dismissed this case with prejudice, it would be improper and we would modify the judgment to strike the words "with prejudice." Id.
In their appellant's brief, Springfield Chiropractic and Chiropractic Strategies discuss the possibility that their case was dismissed with prejudice as a sanction for violation of a court order. Nothing in the record supports this scenario.
The court's dismissal order states,
On the 4th day of September, 2003, the Court considered the Motion to Dismiss for Want of Prosecution filed by Movant, Patricia Hernden. The court, after hearing all of the arguments of counsel, finds:
1. Good cause exist [sic] for granting the Motion to Dismiss as required under Rule 165(a) and therefore the case is dismissed in its entirety with prejudice;
It is therefore ORDERED, ADJUDGED and DECREED that the Plaintiff's case be dismissed in its entirety and that all other relief not expressly granted herein is denied.
Hernden argues the trial court's reference to the dismissal being "with prejudice" arises only within the court's findings, and is omitted from the portion of the order that actually effects the dismissal of the case; therefore, it is surplusage and may be disregarded. Hernden cites no legal authorities in support of this contention. While we agree that the inclusion of the words "with prejudice" in the order may have been inadvertent, we need not speculate as to the court's intent. The parties agree that the dismissal was intended to be without prejudice. Our review of the record confirms that the court did not adjudicate the rights of the parties; therefore, it was proper for the dismissal for want of prosecution to be without prejudice. Maldonado, 694 S.W.2d at 92. Accordingly, in order to alleviate any confusion created by the court's language, we modify the dismissal order to strike the words "with prejudice," and affirm the trial court's judgment as modified. Tex.R.App.P. 43.2(b).