fuentes-irma-imelda-and-jorge-fuentes-cardenas-v-ventura-john ( 2000 )

NUMBER 13-99-087-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

IRMA IMELDA FUENTES AND

JORGE FUENTES CARDENAS, Appellants,

v.

JOHN VENTURA,

BRUCE THRASHER, AND

VENTURA & THRASHER, Appellees.

____________________________________________________________________

On appeal from the 138th District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

This appeal arises from the dismissal of a legal malpractice claim against John Ventura, Bruce Thrasher, and the partnership of Ventura & Thrasher (collectively "Ventura"). By a single issue, appellants, Irma Imelda Fuentes and Jorge Fuentes Cardenas, contend the trial court erred in dismissing their case.⁽¹⁾ Appellants assert the dismissal was (1) an improper summary judgment, (2) an excessive sanction, and (3) a violation of their due process rights. We affirm.

A. Background

Appellants filed suit against Ventura on May 16, 1995, for negligence, professional negligence, breach of warranty, breach of contract, and gross negligence for its representation of appellants in a medical malpractice lawsuit. On August 8, 1998, the trial court set a trial date for February 8, 1999, with announcements set for February 4, 1999. Ventura sent two sets of interrogatories, requests for production and requests for admission to Irma Fuentes on December 22, 1998. Appellants received these documents on December 23, 1998. The requests were never answered. Appellants received notice of Ventura's intention to take Irma Fuentes's oral deposition on January 13, 1999. Irma Fuentes failed to appear for the deposition on January 15, 1999. Ventura sent a notice for a second oral deposition on January 22, 1999. Irma Fuentes failed to appear for this deposition. On February 2, 1999, Ventura filed a motion to dismiss and for sanctions. The trial court granted the motion to dismiss on February 4, 1999.

B. Standard of Review

The proper standard of review for a motion to dismiss is whether the trial court abused its discretion. Bowers v. Matula, 943 S.W.2d 536, 538 (Tex. App.--Houston [1st Dist.] 1997, no writ). In determining whether a trial court abused its discretion, we must determine whether the trial court acted with reference to guiding rules and principles or whether the trial court's actions were arbitrary and unreasonable. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1985); Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Miller v. MacGann, 822 S.W.2d 283, 286 (Tex. App.--Houston [1st Dist.] 1991), writ denied, 842 S.W.2d 641 (Tex. 1992) (per curiam). In addition, if the ruling is contrary to the case law, that also, is an abuse of discretion. See Baywood Country Club v. Estep, 929 S.W.2d 532, 535 (Tex. App.--Houston [1st Dist.] 1996, writ denied). Our scope of review is limited to those arguments raised by the motion to dismiss. Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 680-81 (Tex. App.--Houston [1st Dist.] 1986, no writ); see Miller, 822 S.W.2d at 286.

C. Error In Dismissal 1. Lack of Notice

Appellants contend they did not receive written notice that Ventura's motion to dismiss and for sanctions was to be heard on February 4, 1999. Appellants assert their lack of notice constitutes a violation of due process.

The authorities make it clear that an order resulting in a final dismissal of a plaintiff's cause of action when the plaintiff has not been given notice involves more than a mere violation of the rules of practice and procedure. This is ". . . because it involves the right of a plaintiff who has alleged and filed a cause of action not to be deprived of an opportunity to try his case." State v. Perkins, 143 Tex. 386, 185 S.W.2d 975, 977 (1945); Kuykendall v. Spicer, 643 S.W.2d 776, 778 (Tex. App.--San Antonio 1982, no writ). A person has a due process right to a full hearing before a trial court may grant a motion to dismiss, including the right to introduce evidence at a meaningful time and in a meaningful manner. See Creel v. District Attorney for Medina County, Tex., 818 S.W.2d 45, 46 (Tex. 1991). Ventura's motions to dismiss were filed on February 2, 1999.⁽²⁾ The certificates of service indicate the motions were mailed to appellants on February 1, 1999, and February 2, 1999.

The record shows the parties appeared at the hearing on February 4, 1999. The trial court's docket sheet reflects the court heard evidence and argument of counsel. The record does not reflect that appellants asked the court reporter for the record of this hearing. See Tex. R. App. P. 34.6(b), (c). The burden is on the appellant to see that a sufficient record is presented to the appellate court to show error requiring reversal. See Tex. R. App. P. 33.1; Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982). Because appellants did not comply with Texas Rule of Appellate Procedure 34.6, we must presume that the omitted portions of the record support the trial court's judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).

We find nothing in the record showing that appellants objected to the lack of notice. Thus, appellants have not preserved their complaint for our review. See Tex. R. App. P. 33.1.

2. Summary Judgment Disguised as Motion to Dismiss

Appellants complain that Ventura's motion to dismiss was really a motion for summary judgment. Appellants contend the motion was based on the fact that the requests for admissions were not answered, and accordingly deemed admitted into evidence, therefore Ventura was asking for summary judgment.

Appellants assert that since Ventura's motion was a motion for summary judgment, they were not given twenty-one days notice of the hearing as required by Texas Rule of Civil Procedure 166a(c), thus, the trial court erred in granting the motion. Assuming, arguendo, Ventura's motion was for a summary judgment, when counsel appears on the day of the hearing, she may not challenge the summary judgment solely on the ground that she had no advance notice of the hearing date. Lara v. Lile, 828 S.W.2d 536, 542 (Tex. App.--Corpus Christi 1992, writ denied).⁽³⁾ Moreover, to preserve a complaint for appellate review, a party must present a timely objection and obtain an adverse ruling. Id.; see Tex. R. App. P. 33.1. Because appellants did not provide this Court with the reporter's record of the February 4, 1999 hearing, we have nothing in the record showing that this complaint was brought to the attention of the trial court.

In the motion to dismiss, Ventura contended that by failing to respond to the Requests for Admissions, appellants "have admitted to not having any valid cause of action or allegation against Ventura under any theory of recovery." The admissions "preclude [appellants] from presenting any evidence to substantiate any element of any cause of action alleged."

Failure to timely answer requests for admissions, to file written objections, or to file a motion for late filing of the answers results in the automatic admission of the matters covered in the requests. See Tex. R. Civ. P. 198.2. This means that no evidence contrary to the facts so admitted may be considered on behalf of the party making the admission. See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989).

Appellants' deemed admissions established that there was nothing left for the court to try. The admissions established that: (1) there was no employment contract between appellants and Ventura; (2) Ventura never represented appellants in a medical malpractice lawsuit; (3) the statute of limitations barred appellants from bringing a legal malpractice lawsuit against Ventura; (4) Ventura was not negligent; (5) Ventura did not commit gross negligence; (6) Ventura did not breach any warranty; and (7) Ventura did not violate any legal duty or professional standard of care. Because the requests were deemed admitted, appellants had no grounds upon which to pursue their lawsuit against Ventura.

Pursuant to its inherent power, a trial court may dismiss a lawsuit for the plaintiff's failure to prosecute it with due diligence, separate and apart from statutory or rule authority. See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); Burton v. Hoffman, 959 S.W.2d 351, 353 (Tex. App.--Austin 1998, no pet.) (plaintiff refused to proceed when case was called). In fact, one of the fundamental powers possessed by a trial court is the power to dismiss a case when a litigant refuses to prosecute it. See Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957); Miller v. Kossey, 802 S.W.2d 873, 877 (Tex. App.--Amarillo 1991, writ denied). The ability to dismiss is subject to review under the abuse of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).

Given that appellants have failed to provide this Court with the record from the February 4, 1999 hearing, we do not know what transpired at the hearing. Appellants could have simply told the trial court that they did not wish to proceed with their case against Ventura. Since appellants' admissions establish that they had no cause of action against Ventura, we cannot conclude that the trial court abused its discretion in granting Ventura's motion to dismiss.

3. Death Penalty Sanction

Appellants contend the trial court's dismissal of the lawsuit was a "death penalty" sanction. Appellants assert this sanction was inappropriate under Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991), because the trial court failed to impose lesser sanctions first.

The two prong test in Transamerican states that: (1) "a direct relationship must exist between the offensive conduct and the sanction imposed," and (2) "it must not be excessive." Transamerican, 811 S.W.2d at 917. Transamerican further states that "courts must consider the availability of less stringent sanctions and whether such lesser sanction would fully promote compliance." Id.

Assuming, arguendo, the trial court's dismissal was a sanction, rather than the result of its inherent power, appellants have failed to provide this Court with the record of the February 4, 1999 hearing at which any discussion of this alleged "sanction" occurred. In their own brief, appellants state, "nothing in the record indicates that the trial court considered the imposition of lesser sanctions or that such sanctions would not have been effective." If the dismissal was a sanction, the trial court may very well have considered the availability of less stringent sanctions at the hearing and found that appellants were still not willing to comply with Ventura's discovery requests.

Because we have no record of the February 4, 1999 hearing, we cannot say the trial court abused its discretion by dismissing appellants' lawsuit. Appellants' sole issue is overruled.

We affirm the trial court's order dismissing this cause.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. The appellants' brief before this Court is a pro se brief filed by Irma Fuentes. Although Irma Fuentes drafted and filed the brief herself, the brief appears to also be on behalf of Jorge Fuentes Cardenas.

2. Two separate motions were filed on February 2, 1999. The first motion is entitled "Motion to Dismiss and For Sanctions" and was filed on behalf of John Ventura, individually and as a partner of Ventura & Thrasher, and/or as an employee of Ventura & Thrasher, a Professional Corporation, Ventura & Thrasher, a partnership, and Ventura & Thrasher, a Professional Corporation. The second motion is entitled: "Defendants John Ventura, individually and as Partner of Ventura & Thrasher, and/or as an Employee of Ventura & Thrasher, Professional Corporation, Ventura & Thrasher, a Partnership, and Ventura & Thrasher, Professional Corporation's Motion to Dismiss."

Bruce Thrasher filed his motion to dismiss on February 3, 1999. The Certificate of Service reflects the motion was mailed to appellants on February 2, 1999.

3. Although appellants proceeded pro se, pro se litigants are held to the same standards as licensed attorneys. Brown v. Texas Employ. Comm., 801 S.W.2d 5, 8 (Tex. App.--Houston [14th Dist.] 1990, writ denied).