NUMBER 13-03-271-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BERNARD DOLENZ, TRUSTEE, Appellant,
v.
PIRATES COVE WATER SUPPLY
AND SEWAGE SERVICE CORP., Appellees.
On appeal from the 135th District Court of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Yañez
By five issues, appellant, Bernard J. Dolenz, an inmate proceeding pro se, appeals the trial court’s order dismissing his civil suit for want of prosecution. We affirm.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
Standard of Review
We review the trial court’s dismissal of a case for want of prosecution under an abuse of discretion standard. See Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.–Corpus Christi 1997, no pet.). An abuse of discretion occurs when a trial court acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, 701 S.W.2d 238, 241-42 (Tex. 1985).
Dismissal of inmate’s lawsuit for want of prosecution
Trial courts have inherent power to dismiss an inmate’s case for want of prosecution, and courts have express authority to do so under rule 165a. See Tex. R. Civ. P. 165a. Under rule 165a:
A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice . . . . At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. . . .
Tex. R. Civ. P. 165a(1). Here, the record reflects that the trial court held a dismissal hearing pursuant to rule 165a on January 13, 2003.
By his first issue, appellant contends that the trial court abused its discretion in dismissing his case because: (1) he received inadequate notice of the trial setting under rule 245; (2) he is a necessary witness and should have been allowed to personally appear at trial; and (3) there was outstanding discovery.
In regard to appellant’s first sub-issue, rule 245 provides, in relevant part, that a party is entitled to “reasonable notice of not less than forty-five days . . . of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties . . .” See Tex. R. Civ. P. 245. Failure to give appropriate notice under rule 245 results in reversible error. Bruneio v. Bruneio, 890 S.W.2d 150, 156 (Tex. App.–Corpus Christi 1994, no writ).
Here, the record reflects that notice of the January 13, 2003 trial setting was provided to appellant on October 21, 2002. A second notice of trial was sent on December 20, 2002. Appellant also acknowledged receipt of notice of the trial setting in a subsequent letter to the trial court dated January 2, 2003. Accordingly, we conclude that the record demonstrates that appellant received appropriate notice under rule 245. See id.
In appellant’s second sub-issue, he argues he is a necessary witness and should have been allowed to personally appear. We disagree. There is no absolute right for an inmate to appear in court in person in a civil case. See Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex. App.–Texarkana 1994, writ denied). In considering an inmate’s right to appear, courts follow a balancing approach, weighing the preservation of the correctional system’s integrity against the prisoner’s right of access, with a goal of achieving a balance that is fundamentally fair. Id. at 57. Where the court has determined that an inmate will not be allowed to appear personally, however, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means. Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App.–Waco 1999, pet. denied).
Here, the record shows that in addition to receiving two timely notices of trial, the trial court also sent a third letter to appellant on December 27, 2002 denying his request to be present at trial. The court, however, indicated that appellant could submit deposition testimony and affidavits for consideration by the court. Because appellant was provided: (1) with timely notice of trial, and (2) the opportunity to proceed by affidavit and deposition testimony, we conclude that the trial court did not abuse its discretion in denying appellant’s request to personally appear at trial. Id.
In his third sub-issue, appellant contends that outstanding discovery exists. Issues raised on appeal must be supported by a clear and concise argument, including citation to appropriate authorities and the record. See Tex. R. App. P. 38.1(h); Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 392 (Tex. App.–Corpus Christi 2000, no pet.). Because appellant has failed to support his third sub-issue by a clear and concise argument with citations to appropriate authorities and the record, appellant has waived any error regarding this issue. See Columbia Rio Grande Reg’l Hosp., 17 S.W.3d at 392. We overrule appellant’s first issue.
In his second issue, appellant contends the trial court abused its discretion in failing to grant his motion to reinstate. Where a case is dismissed for want of prosecution at a subsequent hearing on a motion to reinstate, the movant must show that reasonable diligence has been used in prosecuting the case. MacGregor v. Rich, 941 S.W.2d 74, 76 (Tex. 1997) (per curiam).
Here, the record reflects that appellant received timely notice of hearing on his motion to reinstate. Appellant, however, failed to: (1) appear at the motion to reinstate hearing; or in the alternative, (2) submit deposition testimony, affidavits, or other evidence supporting his argument that the trial court should reinstate his lawsuit. Based on appellant’s failure to appear and/or provide evidence supporting reinstatement, we conclude that the trial court did not abuse its discretion in denying appellant’s motion to reinstate. Id. Appellant’s second issue is overruled.
In his third issue, appellant argues that the trial court abused its discretion by including a “Mother Hubbard” clause in its dismissal order. In the order dismissing appellant’s case for want of prosecution, the “Mother Hubbard” clause states in pertinent part: “IT IS ORDERED that all other relief requested by either party and not expressly granted herein be and is hereby denied.” A trial court may not adjudicate the merits of a plaintiff’s claim when the party fails to appear for trial, but may only dismiss for want of prosecution. Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App.–Houston [1st Dist.] 1981, no writ).
The order reflects that the trial court did not adjudicate the merits of appellant’s claim, but dismissed his case for want of prosecution without prejudice. Thus, the “Mother Hubbard” clause included in the order did not affect appellant’s ability to refile his case. Accordingly, we conclude that the trial court did not abuse its discretion in including a “Mother Hubbard” clause in its dismissal for want of prosecution. Id. Appellant’s third issue is overruled.
By his fourth issue, appellant argues that in the order of dismissal dated January 13, 2003, the trial court improperly dismissed Guadalupe-Brazos River Authority (GBRA) and South Texas Bank from the suit.
The January 13, 2003 order does not support appellant’s argument regarding GBRA and South Texas Bank. The order does not dismiss or mention GBRA or South Texas Bank. Accordingly, we overrule appellant’s fourth issue.
In his fifth issue, appellant asserts that the trial court erred in quashing his discovery requests. We review a trial court’s ruling on discovery matters for an abuse of discretion. See Boon Ins. Agency, Inc. v. Am. Airlines, Inc., 17 S.W.3d 52, 60 (Tex. App.–Austin 2000, pet. denied).
Rule 190 of the Texas Rules of Civil Procedure requires that discovery be served in time sufficient to give a party an opportunity to respond within the discovery period. See Tex. R. Civ. P. 190. Unless otherwise ordered or agreed, parties seeking discovery must serve requests sufficiently far in advance of the end of the discovery period so that the deadline for responding will be within the discovery period. Pape v. Guadalupe-Blanco River Auth., 48 S.W.3d 908, 913 (Tex. App.–Austin 2001, pet. denied). Interrogatories and requests for disclosure, production, and admissions must be served on the opposing party no later than thirty days before the end of the discovery period. Id.
Here, the record reflects that discovery was served on appellee just two weeks prior to the trial setting of January 13, 2003. Specifically, appellant’s discovery requests bear a certificate of service indicating that the documents were mailed December 27, 2002. Appellee did not receive the discovery requests until approximately January 2, 2003. Because appellant’s discovery requests were untimely under rule 190, we conclude that the trial court did not abuse its discretion in quashing appellant’s discovery requests. Id. Accordingly, appellant’s final issue is overruled.
We affirm the trial court’s judgment.
LINDA REYNA YAÑEZ
Justice
Memorandum opinion delivered and filed this the
10th day of November, 2004.