COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-224-CV
RAFAEL ALVARO PRIETO APPELLANT
V.
ATTORNEY JIM SHAW APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction and Procedural Background
In one issue, pro se appellant Rafael Alvaro Prieto contends the trial court
abused its discretion by dismissing Prieto’s lawsuit against appellee Attorney
Jim Shaw. We affirm.
1
See Tex. R. App. P. 47.4.
Prieto sued Shaw in July 2000 alleging Shaw breached a contract and
committed various acts of legal malpractice. Prieto filed his first amended
petition on August 10, 2000. The record reflects Prieto took no further action
to prosecute his claims against Shaw before February 28, 2008. 2 On that date,
the trial court issued an order to show cause why the case should not be
dismissed for want of prosecution. Prieto filed a response to the show cause
order on March 24, 2008, but his response did not address why his lawsuit
should not be dismissed for want of prosecution. The trial court then issued an
amended show cause order in which it ordered the parties to show cause why
the case should not be dismissed for want of prosecution, as frivolous inmate
litigation under section 14.003 of the Texas Civil Practice and Remedies Code,
or for failure to comply with section 14.004 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003(a)(2),
14.004 (Vernon 2002); Tex. R. Civ. P. 165a. Prieto filed another response,
this time addressing sections 14.003 and 14.004 of the civil practice and
remedies code, but again failing to address why his lawsuit should not be
2
Prieto also sued Francisco Hernandez, Jr. in July 2000. The trial court
dismissed Prieto’s claims against Hernandez for want of prosecution on January
8, 2002. Hernandez is not a party to this appeal.
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dismissed for want of prosecution. Without specifying the grounds for its
order, the trial court dismissed Prieto’s lawsuit on May 2, 2008.
II. Analysis
We review a trial court’s dismissal for want of prosecution under an
abuse of discretion standard. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003); Sellers v. Foster, 199 S.W.3d 385, 390 (Tex. App.—Fort Worth 2006,
no pet.). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a
trial court may decide a matter within its discretion differently than an appellate
court would in similar circumstances does not demonstrate an abuse of
discretion. See id. at 242.
When a dismissal order does not specify the ground on which it is based,
we will “affirm the trial court’s judgment on any theory supported by the
record.” Sellers, 199 S.W.3d at 391. Chapter fourteen of the Texas Civil
Practice and Remedies Code authorizes a trial court to dismiss an inmate’s
lawsuit when the suit is frivolous or when the inmate fails to file an affidavit
regarding his litigation history and a certified copy of his trust account
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statement. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.003, 14.004; see
also Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no
pet.) (stating an inmate’s failure to follow the procedural requirements set forth
in chapter fourteen of the civil practice and remedies code will result in
dismissal of the inmate’s suit). A trial court also has authority to dismiss a case
for want of prosecution under rule 165a of the Texas Rules of Civil Procedure
or its inherent power when a plaintiff fails to prosecute his or her case with due
diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
1999); Sellers, 199 S.W.3d at 390–91.
In determining whether a party has diligently prosecuted his case, the trial
court “may consider the entire history of the case, including the length of time
the case was on file, the extent of activity in the case, whether a trial setting
was requested, and the existence of reasonable excuses for delay.” Scoville
v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.). Rule
6 of the Texas Rules of Judicial Administration states that civil cases that are
not disposed of within eighteen months of filing may be placed on the court’s
dismissal docket. See Tex. R. Jud. Admin. 6, reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. F app. (Vernon 2005); see also Maida v. Fire Ins. Exch., 990
S.W.2d 836, 841–42 (Tex. App.—Fort Worth 1999, no pet.).
4
Prieto did nothing to advance his suit against Shaw for more than seven
years between August 10, 2000, when he filed his first amended petition, and
February 28, 2008, when the trial court issued its first show cause order.
Nothing in the record reveals any facts that would support a reasonable excuse
for Prieto’s failure to pursue his case during this time period. Under these
circumstances, we hold that the trial court did not abuse its discretion by
dismissing this cause for want of prosecution. Accordingly, we overrule
Prieto’s sole issue and affirm the trial court’s order of dismissal.
III. Prieto’s Motions for Discovery
Prieto filed with this court a “Motion for Discovery” on November 9,
2009, and a “Second Motion for Discovery” on November 23, 2009. Because
we have affirmed the trial court’s order of dismissal, Prieto’s motions for
discovery are moot. Thus, we deny Prieto’s motions for discovery.
IV. Conclusion
Having overruled Prieto’s sole issue and denied Prieto’s motions for
discovery, we affirm the trial court’s order of dismissal.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: December 17, 2009
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