Opinion issued April 10, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00272-CV
ROBIN E. FRAZIER, Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JERRY R. PETERSON; R.G. BELANGER; RICHARD D. TEDFORD; HARRY L. POLLARD; KYRON SESSION; DAREENE TUBBS; J. BARREARA; R. HEALY; GREGORY M. VAUGHN; JOHN SCHRAUB; AND DONALD R. HARDEN, Appellees
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Cause No. 19,138
MEMORANDUM OPINION
Appellant, Robin E. Frazier, an incarcerated inmate, sued the Texas Department of Criminal Justice (TDCJ) and 11 TDCJ employees, appellees, after he slipped and fell on the floor of the prison. The trial court dismissed appellant’s case for want of prosecution. In three issues, appellant argues that the trial court erred in (1) dismissing the suit for want of prosecution; (2) dismissing the suit with prejudice; and (3) granting partial summary judgment against appellant for his claims governed by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001 (Vernon Supp. 2003).
We reverse and remand with instructions.
Facts
Appellant alleges that, on June 8, 1993, he injured his back after he slipped on a wet spot on the floor while walking from the chow hall to the dish room. Appellant further alleges that his condition was worsened by the TDCJ’s refusal to provide adequate treatment for him, and by the rough manner in which he was escorted to his cell by two TDCJ employees. On April 19, 1996, the trial court granted partial summary judgment for appellees as to appellant’s claims governed by the Texas Tort Claims Act. The trial court dismissed appellant’s case for failure to prosecute on January 22, 2002.
Dismissal for Want of Prosecution
In his first issue, appellant argues that the trial court erred in dismissing his suit for want of prosecution.
The trial court is authorized to dismiss a suit for want of prosecution when (1) the trial court finds that the case has not been prosecuted with due diligence; (2) when the case has not been disposed of within the Texas Supreme Court’s time standards; or (3) when a party fails to appear at a hearing or trial. Tex. R. Civ. P. 165a; City of Houston v. Robinson, 837 S.W.2d 262, 264-65 (Tex. App.—Houston 1992, no writ). We will review a trial court’s dismissal for want for prosecution for an abuse of discretion. Franklin v. Sherman ISD, 53 S.W.3d 398, 401 (Tex. App.—Dallas 2001, pet. denied).
Appellant argues that he has attempted to prosecute the case with due diligence, but that his diligence has been met with frustration, error, and inordinate delay from the judge and clerks. The record reflects that this case has been on the trial court’s docket since May 23, 1995. The last action taken by appellant before appellees’ motion to dismiss was a motion for informal mediation, filed on September 23, 1999. The record does not reflect that the motion for informal mediation was ruled on, but appellant made no effort to request a hearing on the matter, and took no other action in the case. Appellees filed their motion to dismiss for want of prosecution over two years later, on December 12, 2001. Appellant does not explain how a delay or frustration from the trial court rendered him unable to take any action in the case for the two years following appellant’s filing of a motion for informal mediation.
This court has previously determined that as little as nine months of inactivity can provide grounds for dismissal for want of prosecution. Bard v. Frank Hall & Co., 767 S.W.2d 839, 845 (Tex. App.—Houston [1st Dist.] 1989, writ denied). Here, appellant took no action in the case for a span of over two years. Accordingly, we hold that the trial court did not abuse its discretion by dismissing the case for want of prosecution.
We overrule issue one.
Dismissal with Prejudice
In his second issue, appellant argues that the trial court should not have dismissed the suit with prejudice.
Appellees agree that a dismissal for want of prosecution is not an adjudication on the merits and should not be dismissed with prejudice. See Massey v. Columbus State Bank, 35 S.W.3d 697, 700 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Accordingly, we hold that the trial court erred in dismissing appellant’s suit with prejudice.
We sustain issue two.
Summary Judgment
In his third issue, appellant argues that the trial court erred in granting summary judgment for appellees as to appellant’s claims governed by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001 (Vernon Supp. 2003).
The standards for reviewing a traditional motion for summary judgment are as follows: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment if at least one element of each of the plaintiff’s causes of action is negated as a matter of law. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995). A defendant may also prevail on a motion for summary judgment by conclusively proving all elements of an affirmative defense as a matter of law, such that there is no genuine issue of material fact. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
When multiple grounds are asserted in the motion for summary judgment, and the order does not specify the grounds on which summary judgment was rendered, the appealing party must, on appeal, negate all grounds asserted in the motion. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If a summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed. Id.
Appellees’ motion for summary judgment attacked appellant’s claims governed by the Texas Tort Claims Act on the grounds that (1) appellant failed to comply with the notice requirements of the Texas Tort Claims Act; (2) the TDCJ had no premises liability in this case under the Texas Tort Claims Act; (3) appellant failed to show how appellees waived governmental immunity; (4) appellant failed to show how the use of tangible or real property related to his injuries to bring his claim under the Texas Tort Claims Act; and (5) the individual defendants sued by appellant were improper parties under the Texas Tort Claims Act.
The trial court’s order granting summary judgment did not state the grounds that the order was based on. In his appellate brief, appellant listed appellee’s grounds for summary judgment, but did not attempt to negate all of them. Specifically, appellant did not negate or discuss appellees’ ground that appellant had not given proper notice under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 1997). Compliance with the notice requirements of the Texas Tort Claims Act is a prerequisite to waiver of sovereign immunity under the Act. Texana Cmty. MHMR Ctr. v. Silvas, 62 S.W.3d 317, 324 (Tex. App.—Corpus Christi 2001, no pet.). Accordingly, we will affirm the trial court’s summary judgment order. See Ellis, 68 S.W.3d at 898 (if summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed).
We overrule issue three.
Conclusion
We reverse the judgment of the trial court and remand with instructions for the trial court to (1) dismiss appellant’s claims under the Texas Tort Claims Act for want of subject matter jurisdiction; and (2) dismiss any remaining claims, not otherwise barred by sovereign immunity, for want of prosecution, without prejudice.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.