Firststone Heights LLC (1512 Forest Trail Apts) v. Travis Central Appraisal District ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00108-CV
Firststone Heights LLC (1512 Forest Trail Apts), Appellant
v.
Travis Central Appraisal District, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-17-004782, THE HONORABLE SCOTT JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the judgment of the district court of Travis County in a suit
contesting the order of the Appraisal Review Board setting the value of a lot in Austin. Appellant
is Firststone Heights LLC1 and appellee is the Travis County Central Appraisal District (District).
We will reverse the judgment.
Firststone set the case for trial but failed to appear when the case was called. The
District, however, was present and announced ready. In the absence of Firststone, the trial court
proceeded to try the case and rendered judgment fixing the appraised value of the property.
The judgment recited in part, “After considering the pleadings, evidence, and [the District’s]
1
The petition, answer, judgment, motion for new trial, motion for attorney’s fees and
sanctions, and order denying motion for new trial and motion for attorney’s fees and sanctions
refer to appellant as “Firststone.” But appellant’s notice of appeal and brief in this Court style
appellant as “Firestone.” We will follow the usage in the trial court.
arguments, and because [Firststone] failed to appear and present evidence or argument, the Court
rules in favor of [the District].”
Firststone argues that the proper remedy was dismissal of the case. We agree.
When a plaintiff fails to appear and prosecute his case, the trial court cannot try the plaintiff’s
cause of action, and the only remedy is to dismiss the same. Smock v. Fischel, 207 S.W.2d 891,
902 (Tex. 1948); Federal Royalties Co. v. McKnight, 77 S.W.2d 542, 543 (Tex. App.—El Paso
1934, writ ref’d); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.—Austin 2000, no pet.); see
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 plaintiff fails to appear for trial, trial court may
only dismiss plaintiff’s claims without prejudice).
We reverse the trial court’s judgment and render judgment dismissing Firstone’s
action without prejudice.
__________________________________________
Bob E. Shannon, Justice
Before Justices Baker, Triana, and Shannon*
Reversed and Rendered
Filed: October 28, 2020
* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
2