Herman Knightshade v. Star Freight, L.L.C. and Marlow Rodriguez ( 2019 )

Opinion filed July 25, 2019
In The
Eleventh Court of Appeals
__________
No. 11-17-00250-CV
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HERMAN KNIGHTSHADE, Appellant
V.
STAR FREIGHT, L.L.C. AND MARLOW RODRIGUEZ,
Appellees
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV49624
MEMORANDUM OPINION
Herman Knightshade brings this appeal from the trial court’s order dismissing
his lawsuit for want of prosecution. Appearing pro se on appeal, Appellant contends
in a single issue that the trial court abused its discretion by dismissing his lawsuit.
We affirm.
Background Facts
Appellant’s lawsuit arises from a vehicle accident that occurred in Midland
on December 28, 2011. Appellant filed suit against Appellees on July 26, 2013.
Appellant was represented by counsel at the time suit was filed. Appellees filed
answers to Appellant’s petition in November and December 2013.
In September 2014, Appellant’s attorney filed a “Motion to Set Telephone
Status Conference” that was granted by the trial court. An agreed scheduling order
was subsequently entered on February 24, 2015. The agreed scheduling order
indicated that the case was set for a trial on the merits on October 5, 2015.
On June 24, 2015, Appellant, through counsel, sought a continuance to move
the trial from the original date due to unforeseen medical issues with Appellant. The
trial court granted the motion for continuance. The new trial date was to be set at a
later scheduling conference. However, on December 31, 2015, Appellant’s counsel
filed a motion to withdraw. The trial court granted the motion to withdraw in
May 2016. Appellant has proceeded without counsel since that date.
On June 7, 2017, Appellees filed a motion to dismiss for want of prosecution.
Appellees asserted that they had not had formal communication with Appellant in
over a year preceding the filing of the motion. At the hearing on the motion to
dismiss, Appellant stated that, since his previous counsel’s withdrawal, he had
attempted to obtain new counsel by contacting approximately twenty to thirty
attorneys. However, he failed to find legal counsel willing to represent him.
Appellant also stated that he contacted the court administrator of the trial court
several times to inquire about a court date. Appellant stated that the court
administrator informed him that his case was not on the trial docket but that he would
be notified when a trial date was set. Counsel for Appellees stated that he had made
several attempts to contact Appellant, including sending requests for discovery
through certified mail, but that Appellant refused to receive the letters. Appellant
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responded to this contention by stating that he only checked his mail on a sporadic
basis.
Analysis
In a single issue, Appellant asserts that the trial court abused its discretion by
dismissing his lawsuit for want of prosecution. We note at the outset that Appellant
makes several additional arguments in his brief that are not amenable to resolution
in this appeal. For example, he disputes the accuracy of the reporter’s record in
several instances. Appellant also asserts that he was not allowed to present
arguments at the hearing and that counsel for Appellees was permitted to make
arguments that were not supported by evidence. Finally, Appellant asserts several
matters that occurred outside of the hearing.
Appellate courts “are confined to the record as it is made by the trial court.”
Goode v. Shoukfeh, 915 S.W.2d 666, 671 n.6 (Tex. App.—Amarillo 1996), aff’d,
943 S.W.2d 441 (Tex. 1997) (quoting Ennis Mercantile Co. v. Wathen, 57 S.W. 946,
947 (Tex. 1900)). “[O]nly the trial judge has the ‘authority’ to change the contents
of its record.” Id. (citing Gerneth v. Galbraith–Foxworth Lumber Co., 300 S.W. 17,
20 (Tex. 1927)); see TEX. R. APP. P. 34.6(e)(2), (3). An appellate court cannot
correct the record by hearing testimony or inquiring into extraneous acts. Goode,
915 S.W.2d at 671 n.6 (citing Ennis Mercantile Co., 57 S.W. at 947). Accordingly,
we are confined to the reporter’s record that has been filed in this appeal.
Additionally, many of the complaints raised on appeal by Appellant against
the trial court and opposing counsel were not raised in the trial court. Rule 33.1 of
the Texas Rules of Appellate Procedure requires that a party lodge a “timely request,
objection, or motion” to present a complaint for appellate review. TEX. R. APP. P.
33.1(a)(1); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).
Appellate courts are not authorized to consider issues not properly raised by parties
at the trial level. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
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Complaints cannot be raised for the first time on appeal, as Appellant attempts to do
here. See State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 273 (Tex. 2017).
“We review a dismissal for want of prosecution under a clear abuse of
discretion standard; the central issue is whether the plaintiff[ ] exercised reasonable
diligence.” MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). “A
plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable diligence,’
failing which a trial court may dismiss for want of prosecution.” In re Conner, 458
S.W.3d at 534 (quoting Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. 1942)).
Furthermore, a pro se plaintiff has the same duty as a licensed attorney to prosecute
his case with diligence. Allen v. Rushing, 129 S.W.3d 226, 231 (Tex. App.—
Texarkana 2004, no pet.). A trial court abuses its discretion if it acts arbitrarily or
without reference to any guiding rules or principles. U-Haul Int’l, Inc. v. Waldrip,
380 S.W.3d 118, 132 (Tex. 2012).
Trial courts are generally granted considerable discretion in managing their
dockets. In re Conner, 458 S.W.3d at 534. “The trial court’s authority to dismiss
for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules
of Civil Procedure, and (2) the court’s inherent power.” Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (explaining both the statutory and
common law sources of power). The plaintiff’s failure to prosecute a case with
reasonable diligence will justify a dismissal either under Rule 165a or the trial
court’s inherent authority. In re Conner, 458 S.W.3d at 534. If the trial court’s order
does not specify the basis for the dismissal, as is the case in this appeal, we will
affirm if any proper ground supports the dismissal. Henderson v. Blalock, 465
S.W.3d 318, 321 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Under Rule 165a(2), a case may be dismissed if it is “not disposed of within
time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). Under
Rule 6.1(a) of the Texas Rules of Judicial Administration, the time standard for a
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nonfamily law civil case is twelve months from appearance date if it is a nonjury
case and eighteen months from appearance date if it is a jury case. TEX. R. JUD.
ADMIN. 6.1(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app. (West Supp.
2018). There is no dispute that this case was not disposed of within the time limits
promulgated by the Texas Supreme Court. By the time Appellees filed their motion
to dismiss for want of prosecution, almost four years had passed since the suit was
initially filed and Appellees filed their answers. Therefore, the trial court was
authorized to dismiss the case for want of prosecution under Rule 165a(2).
Regardless of the validity of dismissal under Rule 165(a)(2), Appellant
contends that the trial court abused its discretion for dismissing his case for want of
prosecution by failing to carefully review the common law factors associated with
dismissal. See Henderson, 465 S.W.3d at 321. Those factors include (1) the length
of time the case has been on file, (2) the extent of activity in the case, (3) whether a
trial setting was requested, and (4) the existence of reasonable excuses for the delay.
Id. “No single factor is dispositive. The central issue is whether the plaintiff
exercised due diligence in prosecuting the case, and we review the entire record to
determine whether the trial court abused its discretion.” Id. at 321–22 (citation
omitted).
Appellant asserts that, although the case has been pending for a significant
length of time, he attempted to contact the trial court to inquire about a date for trial
several times after the withdrawal of his counsel. Appellant asserts that the trial
court abused its discretion by dismissing the case for want of prosecution because
the trial court could have set the case for trial or Appellees could have requested a
trial setting. However, this contention ignores the fact that the plaintiff is the sole
party with the duty to prosecute the suit to a conclusion with reasonable diligence.
In re Conner, 458 S.W.3d at 534.
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At the time of dismissal, Appellant’s suit had remained unresolved for more
than four years. During much of this period, Appellant was unresponsive or
unreachable to requests by opposing counsel. Appellant never requested a trial
setting in a proper filing. On this record, the trial court did not abuse its discretion
by dismissing the suit for want of prosecution. We overrule Appellant’s sole issue
on appeal.
This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 25, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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