Affirmed and Memorandum Opinion filed =
February 22,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00643-CV
____________
JAMES=20
JENKINS, Appellant
v.
CHERYL BOWMAN,=20
Appellee
On Appeal from =
the 151st District Court
Harris=20
County, Texas
Trial Court Cause =
No. 05-49338
M E M O R=20
A N D U M O P I N I O N
On August 1, 2005, =
appellant,=20
an inmate incarcerated in the Institutional Division of the Texas=20
Department of Criminal Justice, filed suit against appellee for =
breach of=20
an agreement to return money he had loaned her. On July 5, =
2006, the=20
trial court dismissed the suit for want of prosecution. =20
Appellant filed a timely pro se notice of appeal. We=20
affirm.
In his brief, =
appellant raises=20
a single issue in which he argues that his oral contract with =
appellee=20
should be enforced. We are unable to reach the merits of=20
appellant=3Ds complaint because =
the case=20
was dismissed before evidence was submitted to the trier of =
fact. =20
Appellant has not challenged the propriety of the trial =
court=3Ds order dismissing =
his=20
case.
A trial =
court=3Ds authority to =
dismiss for want=20
of prosecution stems from the express authority of rule 165a of =
the Texas=20
Rules of Civil Procedure as well as from the court=3Ds inherent =
power. =20
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d =
628, 630=20
(Tex. 1999). AA trial court may =
dismiss a=20
civil suit for want of prosecution when the plaintiff has failed =
to use=20
reasonable diligence to advance the case on the docket and move it =
to=20
trial.@ =
Id. A party=20
must be provided with notice and an opportunity to be heard before =
a court=20
may dismiss a case for want of prosecution under either Rule 165a =
or its=20
inherent authority. See Tex. R. Civ. P. 165a(1) =
(ANotice of the =
court=3Ds intention to =
dismiss and the=20
date and place of the dismissal hearing shall be sent by the clerk =
to each=20
attorney of record, and to each party not represented by an =
attorney . . .=20
.@); General Elec. =
Co. v.=20
Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 =
(Tex.=20
1991). A trial court=3Ds order of dismissal =
is=20
reviewed, when challenged, for an abuse of discretion. =
See=20
Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex. App.CHouston =
[1st=20
Dist.] 1996, no =
writ).
The scant record =
before this=20
court does not reflect that the defendant/appellee was ever served =
with=20
citation. Further, the record fails to show that appellant =
took any=20
steps to advance the litigation between the filing of the petition =
and the=20
court=3Ds dismissal order =
eleven months=20
later. Nothing in the trial court=3Ds dismissal order or =
the=20
remainder of the record reflects that proper notice of the=20
court=3Ds intention to =
dismiss the case=20
was furnished to appellant. =20
Appellant has not asserted that he did not receive proper notice, =
however,=20
so that issue is not before this court. See Pat Baker Co. =
v.=20
Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (holding that courts =
of=20
appeals in civil cases cannot reverse a trial court=3Ds judgment based on =
unassigned=20
error).
In the absence of a =
challenge=20
to the propriety of the dismissal order, no error has been =
presented for=20
review. Accordingly, we overrule appellant=3Ds sole issue and =
affirm the=20
judgment of the trial court.
PER CURIAM
Judgment rendered and Memorandum Opinion =
filed=20
February 22, 2007.
Panel consists of Chief Justice Hedges =
and=20
Justices Fowler and Edelman.
The trial court=3Ds dismissal order was without prejudice =
to=20
refiling.
The absence from the record of =
affirmative=20
proof that notice of intent to dismiss was provided does not =
establish=20
error. General Electric, 811 S.W.2d at=20
=
944. |