In The
Court of=20
Appeals
For The
First =
District of=20
Texax
____________
NO. =
01-06-00801-CV
____________
MIDLAND FUNDING NCC-2 CORP.,=20
Appellant
V.
JOSIAH AZUBOGU,=20
Appellee
On =
Appeal from the=20
165th Judicial District Court =
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-25792
MEMORANDUM =
OPINION
<=
/SPAN>Appellant,=20
Midland Funding NCC-2 Corp. (=E2=80=9CMidland=E2=80=9D), filed =
suit against appellee,=20
Josiah Azubogu. The trial court dismissed the case with prejudice =
for want=20
of prosecution and imposed sanctions against Midland=E2=80=99s law =
firm, Hosto=20
& Buchan, P.L.L.C., for filing a frivolous lawsuit and failing =
to=20
appear at trial. In two points of error, Midland contends the =
trial court=20
erred in (1) dismissing Midland=E2=80=99s case with prejudice for =
want of=20
prosecution and (2) awarding sanctions on its own initiative, =
without=20
notice of hearing and with no countersuit asserted. We modify the=20
judgment, and, as modified, we affirm.
Background
<=
/SPAN>Midland,=20
represented by Hosto & Buchan, filed an original petition =
against=20
Azubogu in the 165th Judicial District of Harris County, Texas on=20
April 18, 2005. Midland claimed to be the assignee of an =
account=20
in default originally owed by Azubogu. Azubogu filed an original =
answer on=20
May 16, 2005, setting forth a general denial and =
asserting the=20
affirmative defense that the alleged debt had been fully =
satisfied.=20
<=
/SPAN>On=20
October 14, 2005, the trial court generated a docket =
control=20
order setting the date =
of trial at=20
May 22, 2006. Azubogu and his counsel appeared at =
10:00 A.M. on May 31, 2006, when the court =
coordinator=20
called the case for trial. Neither Midland nor Midland=E2=80=99s =
counsel appeared=20
at that time.
<=
/SPAN>No=20
one at Hosto & Buchan returned several calls made by the court =
coordinator. The trial court telephoned lead counsel at a number =
in Dallas=20
and left two voice mail messages. The trial court also called a =
Little=20
Rock, Arkansas number and reached Mr. Hosto, a named partner of =
the firm.=20
Mr. Hosto was unaware of the proceedings and told the court that =
he was=20
not licensed in Texas. Mr. Hosto informed the court he would send =
a Dallas=20
or Houston lawyer to the court immediately.
<=
/SPAN>The=20
trial court advised Mr. Hosto that the file showed the case was =
being=20
frivolously prosecuted and it planned to award sanctions under=20
Rule 13 in the amount of $5,000 against Hosto & Buchan. =
The trial=20
court also advised Mr. Hosto that it would reconsider its position =
if Mr.=20
Hosto dispatched an attorney to the court immediately. =
<=
/SPAN>Midland=E2=80=99s=20
counsel failed to timely appear. The court dismissed the case for =
want of=20
prosecution, with prejudice, and awarded sanctions under =
Rule 13 for=20
filing a frivolous lawsuit.
<=
/SPAN>On=20
June 7, 2006, Midland timely moved for new trial, =
requesting=20
that the case be reinstated, or alternatively, that the judgment =
be=20
modified to a dismissal without prejudice. Midland=E2=80=99s =
motion was not=20
verified. Midland filed notice of its appeal on August 28, 2006. =
JurisdictionMidland=E2=80=99s =
motion for new=20
trial requests that the trial court (1) reinstate the case, or,=20
alternatively, (2) reform the judgment to dismiss the case without =
prejudice. To seek reinstatement of a dismissed case, the =
movant=20
must set forth the grounds for reinstatement in a verified motion =
filed=20
with the clerk within 30 days after the dismissal order is signed. =
Clark v. Yarbrough, 900 S.W.2d 406, 408 (Tex. =
App.=E2=80=94Texarkana 1995,=20
writ denied). Rule 165a(3) requires that =E2=80=9C[a] motion to =
reinstate shall=20
set forth the grounds therefor and be verified by the =
movant or his=20
attorney. It shall be filed with the clerk within 30 days after =
the order=20
of dismissal is signed. . . .=E2=80=9D Tex.=20
R. Civ. P. 165a(3) (emphasis added). A timely and proper =
motion to=20
reinstate extends the trial court=E2=80=99s plenary jurisdiction =
until 30 days=20
after the motion to reinstate is overruled. McConnell v. =
May, 800=20
S.W.2d 194, 194 (Tex. 1990). An unverified motion to reinstate, =
however,=20
extends neither the trial court=E2=80=99s plenary power, nor the =
time in which to=20
perfect an appeal. Butts v. Capitol City Nursing Home, =
Inc., 705=20
S.W.2d 696, 697 (Tex. 1986).
<=
/SPAN>Midland=E2=80=99s=20
motion for new trial is unverified; therefore, as a motion to =
reinstate,=20
it is insufficient to extend the time in which to perfect an =
appeal. The=20
trial court=E2=80=99s order became final on June 30, 2006. Under =
rule 26.1(a) of=20
the Texas Rules of Appellate Procedure, a notice of appeal was =
required to=20
be filed on or before July 30, 2006. Tex. R. App. 26.1(a). =
Even=20
implying an extension of time, the notice of appeal could be filed =
no=20
later than August 15, 2006. Midland=E2=80=99s notice of appeal was =
not filed until=20
August 28, 2006. Thus, Midland=E2=80=99s notice of appeal is =
untimely unless its=20
motion for new trial sought more than reinstatement of the case. =
See=20
Tex. Dep=E2=80=99t of Transp. v. Martini, 902 S.W.2d 138, =
140=E2=80=9341 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1995, no writ) (holding that =
postdismissal motion=20
need not have been verified to extend appellate timetables because =
it=20
sought more relief than mere reinstatement of =
case).
<=
/SPAN>In=20
this case, Midland=E2=80=99s postdismissal motion sought two forms =
of=20
relief=E2=80=94reinstatement of the case or, alternatively, =
reformation of the=20
judgment to a dismissal without prejudice. We hold that the =
portion of the=20
motion seeking reformation of the judgment is more than a motion =
to=20
reinstate; it is a motion for new trial. See id. A proper =
motion=20
for new trial will extend one=E2=80=99s appellate timetables. =
See Tex. R. App. 26.1(a)(1) =
(notice of=20
appeal must be filed within 90 days, not 30 days, if motion for =
new trial=20
filed). Because Midland=E2=80=99s motion for new trial extended =
the appellate=20
timetable, its notice of appeal is timely and this Court has =
jurisdiction.=20
Thus, we turn to the merits of the appeal.
Dismissal with=20
Prejudice for Want of Prosecution
<=
/SPAN>In=20
issue one, Midland contends the trial court erred by dismissing =
its case=20
for want of prosecution with prejudice. We =
agree.
<=
/SPAN>When=20
a plaintiff fails to appear and prosecute his case, the =
court=E2=80=99s only=20
remedy is to dismiss the case. Smock v. Fischel, 207 S.W.2d =
891,=20
892 (Tex. 1948). A judge rendering a judgment other than that =
authorized=20
by Rule 165a has exceeded his jurisdiction. Lum v. =
Lacy, 616=20
S.W.2d 260, 261 (Tex. Civ. App.=E2=80=94Houston [1st Dist.] 1981, =
no writ) (citing=20
Freeman v. Freeman,=20
327 S.W.2d 428, 433=20
(Tex. 1959)); see Burton-Lingo Co. v. Lay, 142 =
S.W.2d 448,=20
448 (Tex. Civ. App.=E2=80=94El Paso 1940, no writ) (holding trial =
court is without=20
jurisdictional power to render any judgment against non-appearing=20
plaintiff other than dismissal of plaintiff=E2=80=99s suit for =
want of=20
prosecution). Dismissal for want of prosecution does not preclude =
the=20
filing of another suit; therefore, dismissing a case with =
prejudice for=20
want of prosecution is improper. See Willis v. Barron, 604 =
S.W.2d=20
447, 450 (Tex. App.=E2=80=94Tyler 1980, writ ref=E2=80=99d =
n.r.e.). If a case has been=20
dismissed with prejudice for want of prosecution, the order of the =
trial=20
court dismissing the suit must be reformed to eliminate the words =
=E2=80=9Cwith=20
prejudice.=E2=80=9D Id.; Melton v. Rylander, 727 =
S.W.2d 299, 303=20
(Tex. App.=E2=80=94Dallas 1987, writ ref=E2=80=99d n.r.e.). =
Although the trial court had=20
authority to dismiss Midland=E2=80=99s case for want of =
prosecution under=20
Rule 165a, it improperly dismissed the case with prejudice.=20
<=
/SPAN>Accordingly,=20
we sustain Midland=E2=80=99s first point of error. We modify the =
judgment to=20
dismiss the case for want of prosecution without prejudice. =
Sanctions
<=
/SPAN>In=20
its second issue on appeal, Midland contends the award of =
sanctions must=20
be reversed because the trial court (1) did not provide Hosto =
& Buchan=20
with proper notice and hearing before imposing sanctions; (2) =
accepted=20
evidence from Mr. Azubogu at the time of trial regarding payment =
of the=20
account, and such evidence improperly formed the basis of the =
sanctions=20
imposed for filing a frivolous lawsuit; (3) erred by awarding =
monetary=20
sanctions on its own initiative; (4) erred by failing to state the =
particulars of good cause for the order of Rule 13 sanctions, =
and (5)=20
lacked authority to impose sanctions for Midland=E2=80=99s failure =
to appear at=20
trial.
<=
/SPAN>Midland=20
did not raise these complaints in its motion for new trial and =
cannot=20
complain on appeal of such error, if any. See Tex. R. App. =
P. 33.1(a)(1)(A)=20
(=E2=80=9C[a]s a prerequisite to presenting a complaint for =
appellate review, the=20
record must show that the complaint was made to the trial court by =
a=20
timely request, objection, or motion that stated the grounds for =
the=20
ruling that the complaining party sought from the trial court with =
sufficient specificity to make the trial court aware of the =
complaint=E2=80=9D);=20
see Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. =
App.=E2=80=94Houston=20
[14th Dist.] 2003, pet. denied) (=E2=80=9CWe find appellant waived =
his objection=20
to the trial court=E2=80=99s sanction because he does not cite to =
any place in the=20
record nor have we identified anything in the record where he =
preserved=20
his argument.=E2=80=9D). Midland has waived any error regarding =
the award of=20
sanctions and cannot now complain on appeal.
<=
/SPAN>Accordingly,=20
we overrule Midland=E2=80=99s second issue on =
appeal.
ConclusionWe modify the =
judgment to=20
dismiss the case without prejudice, and, as modified, we=20
affirm.
Sherry=20
Radack
Chief=20
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Alcala and=20
Bland. |