Jenkinsv.Bowman

Court of Appeals of Texas, Fourteenth District, HoustonFeb 22, 2007
No. 14-06-00643-CV (Tex. App. Feb. 22, 2007)

No. 14-06-00643-CV.

Opinion filed February 22, 2007.

On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 05-49338.

Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.


MEMORANDUM OPINION


PER CURIAM.

On August 1, 2005, appellant, an inmate incarcerated in the Institutional Division of the Texas Department of Criminal Justice, filed suit against appellee for breach of an agreement to return money he had loaned her. On July 5, 2006, the trial court dismissed the suit for want of prosecution. Appellant filed a timely pro se notice of appeal. We affirm.

The trial court's dismissal order was without prejudice to refiling.

In his brief, appellant raises a single issue in which he argues that his oral contract with appellee should be enforced. We are unable to reach the merits of appellant's complaint because the case was dismissed before evidence was submitted to the trier of fact. Appellant has not challenged the propriety of the trial court's order dismissing his case.

A trial court's authority to dismiss for want of prosecution stems from the express authority of rule 165a of the Texas Rules of Civil Procedure as well as from the court's inherent power. Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). "A trial court may dismiss a civil suit for want of prosecution when the plaintiff has failed to use reasonable diligence to advance the case on the docket and move it to trial." Id. A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority. See TEX. R. CIV. P. 165a(1) ("Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney. . . ."); General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). A trial court's order of dismissal is reviewed, when challenged, for an abuse of discretion. See Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex.App.-Houston [1st Dist.] 1996, no writ).

The scant record before this court does not reflect that the defendant/appellee was ever served with citation. Further, the record fails to show that appellant took any steps to advance the litigation between the filing of the petition and the court's dismissal order eleven months later. Nothing in the trial court's dismissal order or the remainder of the record reflects that proper notice of the court's intention to dismiss the case was furnished to appellant. Appellant has not asserted that he did not receive proper notice, however, so that issue is not before this court. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (holding that courts of appeals in civil cases cannot reverse a trial court's judgment based on unassigned error).

The absence from the record of affirmative proof that notice of intent to dismiss was provided does not establish error. General Electric, 811 S.W.2d at 944.

In the absence of a challenge to the propriety of the dismissal order, no error has been presented for review. Accordingly, we overrule appellant's sole issue and affirm the judgment of the trial court.