Allen Beasley v. Michael Shepherd ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00110-CV ______________________________



ALLEN BEASLEY, Appellant

V.

MICHAEL SHEPHERD, ET AL., Appellees

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On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 06C1278-102

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Appellant, Allen Beasley, filed a notice of appeal November 15, 2006. The clerk's record was filed in this Court January 4, 2007.

There is no document in the clerk's record that constitutes a final, appealable order. Unless otherwise statutorily authorized, an appeal may be made only from a final judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997), § 51.014 (Vernon Supp. 2006).

Accordingly, we dismiss this appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: January 9, 2007

Date Decided: January 10, 2007

"text-align: center">MEMORANDUM OPINION

            Joe Turner appeals the trial court's dismissal of his lawsuit for want of prosecution, claiming he did not have notice of the hearing on the defendants' motion to dismiss. Turner also contends the trial court erred by denying his motion for additional time in which to hire a new trial attorney. We affirm.

I. Background

            On May 24, 1996, Turner sued John Parker as an individual and in Parker's capacity as the owner of John Parker's Discount Tires (collectively "Parker"). According to Turner's original petition, Turner worked for Parker as a contract laborer when Turner was injured by an exploding tire. Turner sued Parker for negligence and sought recovery for medical expenses, lost income, and past and future pain and suffering. Parker was served with the plaintiff's original petition in May 1996 and Parker filed a general denial in June. Thereafter, the parties conducted discovery, including the filing of interrogatories and requests for production. Between March 17, 1997 and late August 2002, the record does not show the parties took any action in the case.

            On August 29, 2002, Parker filed a motion to dismiss the suit for want of prosecution. Turner filed a notice with the trial court regarding a designation of new lead counsel in his case on September 5, 2002. One week later, Turner's substituted counsel withdrew from the case. That same day, the trial court dismissed the suit without prejudice for want of prosecution. Turner filed his timely notice of appeal on October 17, 2003. See Tex. R. App. P. 26.1 (notice of appeal is due within thirty days after judgment signed); and see Tex. R. App. P. 9.2(b) (document is timely filed if received by mail within ten days from deadline).

II. Dismissing Turner's Suit for Want of Prosecution

            A trial court's dismissal of a lawsuit for want of prosecution is reviewed for abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). "When an unreasonable delay in the prosecution of a case occurs, it is presumed that the case has been abandoned." Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex. App.‒Houston [14th Dist.] 1993, no writ). "If that delay is not sufficiently explained, the presumption of abandonment is conclusive and the case will be dismissed." Id. A trial court's intention to dismiss may be imputed to a party when there has been inactivity for a long period of time. Id.; see also Tex. R. Civ. P. 165a.

            A trial court abuses its discretion when its ruling falls outside the zone of reasonable disagreement. See, e.g., Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 632 (Tex. App.‒Amarillo 2000), rev'd on other grounds, No. 01-0057, 2003 WL 22038662 (Tex. Aug. 28, 2003). The key issue for us to decide is whether Turner exercised reasonable diligence in prosecuting his case. See MacGregor, 941 S.W.2d at 75.

            Parker filed his motion to dismiss on August 29, 2002. The motion indicates service of the motion, as well as the notice of a hearing on the motion, was provided to Turner through his attorney of record on the same day. Accordingly, because Turner was represented by counsel at the time Parker filed his motion to dismiss, Turner is presumed to have received notice of the motion before September 12, 2002. See Tex. R. Civ. P. 21a (every notice required under the rules may be served on the party's attorney of record; attorney's certificate of service is prima facie evidence of service on the day listed in the certificate). There is nothing in the record to indicate Turner's then-counsel of record did not receive notice of the September 12, 2002, hearing on Parker's motion to dismiss. See id. (a party may offer proof that the instrument was not received). Moreover, the case had been languishing on the trial court's docket for more than six years with no activity having occurred since March 1997. Still further, the motion to withdraw filed by Turner's counsel on September 12, 2002, clearly states counsel had notified Turner of all pending settings and deadlines. We find the record does not supprt Turner's claim of lack of notice of the hearing on the motion to dismiss.

            We also do not find the record supports Turner's contention that the trial court abused its discretion by dismissing the case for want of prosecution. As explained above, Turner's lawsuit against Parker was filed in May 1996. The clerk's record in this case shows nothing happened in this case between March 1997 and August 2002. We believe the trial court acted within the "zone of reasonable disagreement" when, after proper notice of the hearing, it dismissed a case for which the plaintiff failed to appear and in which the plaintiff had taken no action in more than five years. Cf. Bilnoski, 858 S.W.2d at 58 (mailing one offer of settlement during a two-year period is insufficient to demonstrate due diligence; dismissal for want of prosecution was proper). The record before us contains no evidence tending to defeat the presumption Turner had abandoned the case.

III. Denial of Turner's Motion for Additional Time in Which To Hire New Trial Counsel

            Turner also contends the trial court erred by denying his motion for more time in which to hire new trial counsel after the trial court dismissed the lawsuit for want of prosecution. To preserve an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1. On October 8, 2002, Turner filed his motion for more time in which to hire trial counsel. The record before us does not indicate the trial court ruled on Turner's motion. Accordingly, Turner has not preserved this issue for our review.

IV. Conclusion

            For the reasons stated, we affirm the trial court's judgment.

                                                                        Jack Carter

                                                                        Justice

Date submitted:          October 22, 2003

Date decided:              October 23, 2003