Richard Lee Torress v. Robert Clark ( 2012 )

Affirmed and Memorandum Opinion filed May 15, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00750-CV
RICHARD LEE TORRES, Appellant
V.
ROBERT CLARK, Appellee
On Appeal from the County Court at Law No. 3
Brazoria County, Texas
Trial Court Cause No. CI043097
MEMORANDUM OPINION
Appellant Richard Lee Torres, proceeding under Chapter 14 of the Civil Practice
and Remedies Code, sued Robert Clark for personal injuries sustained while both men
were inmates of the Texas Department of Criminal Justice. Torres did not appear on the
first day of trial, and the court dismissed the suit. We affirm.
BACKGROUND
Torres and Clark were inmates at the Ramsey Unit in Rosharon, Texas. Torres
filed suit under Chapter 14 of the Civil Practice and Remedies Code, alleging in his
original petition that “Clark began assaulting [Torres] by striking him repeatedly, causing
serious bodily injury to the right side of [his] face . . . which resulted in gashes requiring
approximately twenty-five sutures.” Clark answered and claimed self defense among
other things. Clark also filed a motion to dismiss under Section 14.003 of the Civil
Practice and Remedies Code, arguing that (1) Torres failed to file an affidavit relating to
previous filings; (2) Torres failed to file an affidavit related to the exhaustion of
administrative remedies; and (3) Torres’s claim was frivolous because Clark was immune
from suit as a matter of law. The trial court denied the motion.
Torres failed to appear for trial, and Clark reurged his motion to dismiss under
Section 14.003. The trial court granted the motion and entered an order dismissing the
suit with prejudice “under Texas Civil Practice and Remedies Code section 14.001, et
seq.” After learning of the dismissal, Torres requested findings of fact and conclusions of
law. The trial court issued its findings and conclusions, finding among other things that:
“On June 20, 2011, the Court entered an Order Dismissing Lawsuit
pursuant to the Plaintiff’s failure to appear and prosecute this case and
Chapter 14 of the Texas Civil Practice and Remedies Code.”
“Pursuant to Rule 165a of the Texas Rules of Civil Procedure, a Court
may dismiss a case for want of prosecution.”
“Since the Plaintiff failed to appear and prosecute the trial of this case,
even after being notified of the trial date, the Court reconsidered the
Defendant’s Motion to Dismiss; and finding said Motion to have merit,
dismiss[ed] this case pursuant to Chapter 14 of the Texas Civil Practice
and Remedies Code.”
Torres filed a “motion for retrial,” in which he asked the trial court to set aside its
judgment and reinstate the case because the trial court did not facilitate his appearance
through a bench warrant or telephone hearing. The trial court denied the motion.
ANALYSIS
In five issues, Torres argues that the trial court erred by reconsidering Clark’s
motion to dismiss, dismissing the suit for frivolousness, finding that the suit was
dismissed for want of prosecution rather than for frivolousness, and dismissing with
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prejudice rather than without prejudice. Clark did not file a brief on appeal. Because the
issues regarding dismissal for want of prosecution are dispositive, we address only those
issues in this opinion. See Tex. R. App. P. 47.1.
In his fourth issue, Torres argues that the trial court erred by finding that it
dismissed the suit based on Torres’s “failure to appear and prosecute this case.” Torres
points to the trial court’s order dismissing the suit, which states only that the suit was
being dismissed “under Texas Civil Practice and Remedies Code section 14.001, et seq.”
Although the order does not state that Torres’s suit was dismissed because of his failure
to appear and prosecute the case, “findings of fact and conclusions of law filed after a
judgment are deemed controlling as to any conflict therewith.” Dickerson v.
DeBarbieris, 964 S.W.2d 680, 684 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Accordingly, the trial court did not err by finding that it dismissed appellant’s suit for
want of prosecution. Torres’s fourth issue is overruled.
In his fifth issue, Torres contends that the trial court erred by dismissing with
prejudice, rather than without prejudice, under either of the two bases provided by the
trial court in its findings of fact and conclusions of law. Torres failed to raise this issue in
his motion to reinstate and thus waived any error on appeal. See Leonard v. Abbot, 171
S.W.3d 451, 461 (Tex. App.—Austin 2005, pet. denied) (“[T]he error in dismissing a
case with prejudice cannot be raised for the first time on appeal and must be presented to
the trial court.”); Bird v. Kornman, 152 S.W.3d 154, 161 (Tex. App.—Dallas 2004, pet.
denied) (same); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568–69 (Tex. App.—
Houston [14th Dist.] 1990, writ denied) (trial court’s error of dismissing with prejudice
for want of prosecution was not preserved by unverified and unsigned motion to
reinstate). Although Torres filed a “motion for retrial,” he did not argue that the trial
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court erred by dismissing with prejudice rather than without prejudice. Torres’s fifth
issue is overruled. 1
CONCLUSION
Having overruled all of Torres’s issues regarding the dismissal for want of
prosecution, we need not address whether dismissal was improper under Chapter 14 of
the Civil Practice and Remedies Code. We affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
1
Torres does not complain on appeal about any procedural deficiencies relating to the dismissal
for want of prosecution or that the trial court erred by denying his “motion for retrial.” See Tex. R. Civ.
P. 165a. Thus, any such error is waived. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d
928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5
(Tex. App.—Houston [14th Dist.] 2006, pet. denied).
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