Elizabeth O'Neill v. Eduardo Morales ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00039-CV
___________________________
ELIZABETH O’NEILL, Appellant
V.
EDUARDO MORALES, Appellee
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-297474-18
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
After pro se appellant Elizabeth O’Neill failed to appear for trial, the trial court
signed a take-nothing judgment against her. In two issues, O’Neill complains that she
failed to timely appear for trial because she had trouble finding parking that day. We
will affirm.
O’Neill sued appellee Eduardo Morales for breach of contract, money had and
received, and negligent misrepresentation. The trial court set the case for trial at
9:00 a.m. on January 22, 2019. Morales appeared, but O’Neill did not. The trial-court
judge confirmed with the coordinator that O’Neill had not called the court and
instructed the bailiff to call O’Neill’s name in the hall. After the bailiff received no
response, the trial-court judge announced that he would dismiss the case. The trial
court then signed a take-nothing judgment against O’Neill.1 O’Neill did not file any
postjudgment motions requesting a new trial or asking the trial court to reinstate the
case.
1
Because O’Neill does not complain that the trial court should have dismissed
her case without prejudice rather than adjudicating her claims on the merits, we do
not address this issue. See, e.g., Beller v. Fry Roofing, Inc., No. 04-05-00159-CV,
2005 WL 3115828, at *2 (Tex. App.—San Antonio Nov. 23, 2005, no pet.) (mem.
op.) (explaining that if a plaintiff fails to appear for trial, a trial court may dismiss the
suit without prejudice but may not adjudicate the merits of the plaintiff’s claims);
Chacon v. Jellison, No. 03-02-00072-CV, 2003 WL 1560184, at *4 (Tex. App.—Austin
Mar. 27, 2003, no pet.) (mem. op.) (concluding “that when a plaintiff fails to appear
for trial, the trial court may only dismiss the plaintiff’s claims without prejudice; it may
not render a take-nothing judgment based on a plaintiff’s failure to appear at trial”).
2
On appeal, O’Neill asserts that even though she “left early to get to court[] on
time,” she was “about 5 minutes late” because she could not find parking near the
courthouse. In her two issues, she complains that before dismissing her case, the trial
court “should have allowed [her] a little more time to appear before the court” and
should have considered “numerous scenarios,” such as lack of parking, construction,
or her being in an accident. In essence, O’Neill is arguing that her failure to timely
appear was not intentional or the result of conscious indifference and could be
reasonably explained. But she neither moved for a new trial nor moved to reinstate
the case on these bases, and there is nothing in the record showing that she otherwise
advised the trial court why she had failed to timely appear for trial on January 22. 2
Therefore, she has not preserved her issues for our review. See Tex. R. App. P. 33.1(a);
Tex. R. Civ. P. 165a(3), 324(b)(1). We thus overrule O’Neill’s two issues and affirm
the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: January 30, 2020
2
We also note that there is nothing in the record proving that O’Neill actually
appeared at the courthouse that day.
3