Reverse and Remand and Opinion Filed April 21, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00630-CV
TRENT S. GRIFFIN, Appellant
V.
AMERICAN ZURICH INSURANCE COMPANY, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-05893
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Molberg
In his second appeal in this case,1 appellant Trent S. Griffin, appearing pro se,
appeals the trial court’s final judgment and argues the trial court abused its discretion
in dismissing his claims with prejudice. We agree and reverse, as we explain below.
BACKGROUND
We draw certain facts from our prior opinion. This is a suit for judicial review
of a decision of the Texas Department of Insurance—Workers’ Compensation
1
See Griffin v. Am. Zurich Ins. Co., No. 05-14-01510-CV, 2016 WL 4039257 (Tex. App.—Dallas July
26, 2016, pet. denied) (mem. op.) (dismissing appeal for want of jurisdiction because the trial court had not
yet entered a final order and thus had no jurisdiction to consider appellant’s complaints regarding the trial
court’s summary judgment rulings).
Division (“the Division”). On February 21, 2012, Griffin suffered an on-the-job
injury and made a claim for workers’ compensation benefits. American Zurich
Insurance Company (“Zurich”) accepted the claim and began paying temporary
income benefits. The Division subsequently designated a doctor to determine
whether Griffin had reached maximum medical improvement and, if so, what his
impairment rating was. The designated doctor determined that Griffin had suffered
a neck and shoulder soft tissue injury and also diagnosed him as having degenerative
conditions of the shoulder and neck. The designated doctor concluded the
degenerative conditions were most likely preexisting, but required further
evaluation. The designated doctor nevertheless evaluated the soft tissue injuries and,
based on those injuries, determined Griffin had reached clinical maximum medical
improvement (MMI) on April 26, 2012, and had a zero percent impairment rating.
He stated he would obtain an EMG and MRI and provide an addendum if the results
altered his conclusions. One week later, the designated doctor finalized his report
without additional testing because Griffin was unable to schedule both an EMG and
an MRI within the time limits required by the Division. A doctor selected by
Griffin’s treating physician subsequently examined Griffin. That doctor diagnosed
Griffin with a cervical disc displacement and cervical radiculitis and concluded
Griffin had not yet reached MMI.
A contested case hearing followed to resolve the parties’ disputes regarding
the extent of Griffin’s on-the-job injuries, whether he had reached MMI, and, if so,
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what his impairment rating was. The hearing officer determined Griffin had failed
to show a causal link between the compensable injury event and the disputed
injuries, Griffin’s on-the-job injury was limited to the soft tissue injuries, and Griffin
had reached MMI on April 26, 2012, with a zero percent impairment rating. An
appeals panel affirmed the hearing officer’s decision.
Griffin filed suit on May 29, 2013, for judicial review of the Division’s
decision. We noted in our original opinion that Griffin’s petition included
complaints that (1) the evidence did not support the Division’s decision, (2) Zurich
waived its right to contest whether his injuries were compensable, (3) he was denied
his rights to due process and equal protection of the laws, (4) the Division’s decision
was arbitrary and capricious, and (5) the Division exceeded its statutory authority.2
The trial court granted summary judgment on various issues, but its orders did
not dispose of all issues and claims. Thus, because we lacked jurisdiction to consider
the trial court’s prior summary judgment orders, we dismissed that appeal and
remanded the case as a result. See Griffin, 2016 WL 4039257, at *1–2.
Following remand, the case was called for jury trial on January 15, 2019.
Griffin appeared pro se and announced ready, and he never withdrew that
announcement. Zurich appeared through its counsel and explained it had announced
2
The original petition was Griffin’s only pleading at the time of our prior opinion. Since remand, he
has amended his petition several times. Based on the record before us, his fourth amended petition is his
live pleading, and in it, he asserts twenty-three separate counts as claims. We make no comment here on
the merits of Griffin’s claims, his ability to pursue them, or his right to the relief he requests.
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not ready the week before. The court asked Zurich’s counsel why it was not ready,
disagreed with counsel’s conclusion regarding the court’s prior orders, and indicated
trial would proceed.3
The parties and the court engaged in other discussions about various pretrial
matters, including witnesses, exhibits, and motions in limine. Upon inquiry from
the court, Griffin identified nine witnesses other than himself that he intended to call
and stated two were there at that time. Zurich’s counsel objected to all of the
witnesses, stating Griffin had failed to disclose them during the discovery process,
which Griffin disputed.4 Zurich’s counsel also informed the court that Griffin was
the only witness Zurich intended to call.
The court discussed exhibits briefly but moved on to Zurich’s motion in
limine, granting several of the matters addressed therein. Soon after noting “we have
our jury coming in pretty soon,” the court went off the record, and it is not clear from
the record whether any additional discussion or rulings occurred in the interim.
When the proceedings continued on the record, the court stated:
One of the first things about being a judge is that you have to follow
the rules regardless of the outcome. Sometimes it’s easy to do so and
sometimes it’s very difficult because we want the end result of people
having their day in court. However, at the district court level when you
have your day in court, you must follow the rules. I am obligated to
3
When the court alluded to all of the years that had elapsed, the court inquired about why Zurich was
not ready, and Zurich’s counsel answered, “Because I have orders disposing of the issues.” The court then
stated, “No, you haven’t and we let your office – in fact, you can make your record. We’re proceeding to
trial.”
4
We do not have any of the discovery materials before us and do not decide any issues regarding the
merits of Zurich’s objections.
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follow the rules of civil procedure regardless of the result. And upon –
I took a couple of minutes to take a look – re-reviewed the Texas Rules
of Civil Procedure and, unfortunately, the result is – unfortunately, the
result is if you didn’t identify the witnesses, I can’t at the last minute
allow you to present these witnesses. You have to follow the Texas
Rules of Civil Procedure. The result is unfortunate, which is why we
advise pro se individuals to – to seek legal counsel so that these harsh,
harsh results do not occur. So the Court is now going to reverse its
rulings from earlier. These witnesses were not identified, therefore,
they will not be permitted to testify [naming two of them] or any of the
witnesses identified as well as the exhibits. So at this point I think this
case is a case that will have to be dismissed for want of prosecution.
Zurich’s counsel asked what the court would like done regarding an order,
and after discussing that for a moment, they concluded as follows:
[ZURICH’S COUNSEL]: Okay. . . . You struck the fifth amended
pleading?
THE COURT: Correct.[5]
[ZURICH’S COUNSEL]: I’ll put that in there.
THE COURT: Okay. You can put in whatever you want. I’m famous
for interlineating.
[ZURICH’S COUNSEL]: We’re making a record.
THE COURT: Okay. Right.
[ZURICH’S COUNSEL]: We know what’s going to happen. And we
don’t want another 18 months later coming back here.
THE COURT: No. This needs to be shut down. And I really just
wanted to create a record so it wouldn’t – but looking back, I would
have been running afoul with the Texas Rules of Civil Procedure. My
role as judge is to follow the law regardless of the outcome. . . .
5
Four days before trial, Griffin filed a motion for leave to file a fifth amended petition. The trial court
denied the motion on January 15, explaining that the denial was due to “timeliness” and stating, “Fourth
amendment stands.” Thus, at the time of the final judgment, the parties’ live pleadings consisted of Griffin’s
fourth amended petition and Zurich’s fourth amended general denial.
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On February 26, 2019, the court signed a Final Judgment which states:
On this 15th day of January, 2019, this matter came on for trial.
Plaintiff . . . appeared pro se. Defendant . . . appeared and was
represented by . . . . The Court granted Defendant’s Motion to Exclude
Plaintiff’s Evidence and Witnesses. The Court further determined the
Plaintiff had no evidence to move forward at trial, that Plaintiff failed
to prosecute his case; thus, Plaintiff’s case should be and was dismissed
with prejudice.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that
Plaintiff Griffin recover nothing of and from Defendant Zurich.
IT IS FURTHER, ORDERED, ADJUDGED and DECREED that the
previously adjudicated administrative law decisions and rulings . . . are
hereby affirmed.
IT IS FURTHER, ORDERED, ADJUDGED and DECREED that
FINAL JUDGMENT is hereby entered in favor of Defendant American
Zurich Insurance Company against Plaintiff Trent S. Griffin as to any
and all claims and/or causes of actions asserted by Plaintiff Griffin in
this litigation.
This is a Final Judgment. This Final Judgment resolves any and all
Disputes between the parties.
All other relief not expressly granted herein is DENIED.
Griffin timely appealed. Before he did so, he filed two motions for new trial
and motions for reinstatement (one original, one amended), and in each, he requested
that the court issue findings of fact and conclusions of law.6 The trial court did not
rule on the motions and did not issue any findings of fact or conclusions of law. 7
6
In the first document, Griffin included a request for findings of fact and conclusions of law, while the
second document included a notice of past-due findings of fact and conclusions of law.
7
Griffin mentions the trial court’s lack of findings and conclusions in his brief, but he does not appear
to present this as a point of error on appeal. Even if he had, under the circumstances here, the trial court’s
inaction regarding those requests was not improper because the case was not tried without a jury and
because the trial court did not conduct an evidentiary hearing. See TEX. R. CIV. P. 296 (party may request
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ISSUE ON APPEAL
We begin by identifying the issue before us. An appellant’s brief is to “state
concisely all issues or points presented for review” and “contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and the
record.” See TEX. R. APP. P. 38.1(f), 38.1(i). At 100 pages, excluding attachments,
Griffin’s principal brief is neither clear nor concise. His “issues presented” consists
of roughly six pages of text. Generally, Griffin goes to great lengths to describe his
views of the parties’ roughly seven- or eight-year dispute, and his brief is difficult,
if not impossible at times, to decipher.8 However, because “[d]isposing of appeals
for harmless procedural defects is disfavored,” we construe briefs “reasonably, yet
liberally, so that the right to appellate review is not lost by waiver.” Weeks Marine,
Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (citing Perry v. Cohen, 272 S.W.3d
585, 587 (Tex. 2008) (per curiam)). Viewed reasonably and liberally, Griffin’s brief
clearly raises the only issue we address here—whether the trial court abused its
discretion and committed reversible error by involuntarily dismissing his claims and
entering a take-nothing judgment on February 26, 2019. We conclude the trial court
did so based on the record before us.
findings of fact and conclusions of law in cases tried without a jury); Belohlavy v. Belohlavy, No. 05-98-
02096-CV, 2001 WL 804507, at *2 (Tex. App.—Dallas 2001, no pet.) (mem. op.) (noting case is “tried”
for rule 296 purposes when court holds evidentiary hearing).
8
With attachments, Griffin’s principal brief is 1,627 pages long and contains a single item under
“argument” in the brief’s table of contents.
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LEGAL STANDARDS
“A court may dismiss a case for want of prosecution under either [r]ule 165a
or under its common law inherent authority.” Alexander v. Lynda’s Boutique, 134
S.W.3d 845, 850 n.18 (Tex. 2004) (citing Villarreal v. San Antonio Truck & Equip.,
994 S.W.2d 628 (Tex. 1999)). A court may also, after notice and hearing, make
certain orders in regard to a party’s failure to comply with proper discovery requests,
including dismissing the action or proceedings with or without prejudice, a result
often referred in civil cases as a “death penalty” sanction. See TEX. R. CIV. P.
215.2(b)(5); Shops at Legacy (Inland) Ltd. P’ship v. Fine Autographs &
Memorabilia Retail Stores Inc., 418 S.W.3d 229, 232 (Tex. App.—Dallas 2013, pet.
denied).
We review a dismissal for want of prosecution and a dismissal for discovery
failures under an abuse of discretion standard. See Villarreal, 994 S.W.2d at 630
(review for dismissal for want of prosecution); Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007) (review for dismissal for discovery failure). A trial court abuses its
discretion when it acts arbitrarily or unreasonably, or without reference to any
guiding rules and principles of law. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985); see Am. Flood Research, Inc. v. Jones, 192 S.W.3d
581, 583 (Tex. 2006) (per curiam). We review the entire record to determine
whether the imposition of sanctions constitutes an abuse of discretion. Id.
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Legal principles regarding directed verdicts are also instructive here, even if
not directly at issue.9 A directed verdict “is a procedural device to ask the court to
render judgment without submitting a charge to the jury because there is nothing for
a jury to decide.” C.B. v. Tex. Dep’t. of Family and Protective Serv., 440 S.W.3d
756, 769 (Tex. App.—El Paso 2013, no pet.). A motion for directed verdict may be
made orally or in writing and shall state the specific grounds for the motion. Dillard
v. Broyles, 633 S.W.2d 636, 645 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.);
TEX. R. CIV. P. 268.
“A court may instruct a verdict if no evidence of probative force raises a fact
issue on the material questions in the suit.” Prudential Ins. Co. of America v.
Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000) (citing Szczepanik v.
First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994)). A directed verdict for a
defendant may be proper “when a plaintiff fails to present evidence raising a fact
issue essential to the plaintiff’s right of recovery” or “if the plaintiff admits or the
9
Although the record does not indicate that Zurich formally moved for a directed verdict or that the
trial court granted one, we discuss the general requirements for such motions because the court’s final
judgment had the same practical effect on Griffin’s claims as it would have if the court had granted a motion
for directed verdict immediately prior to the beginning of voir dire, at least if we view the final judgment
as a judgment on the merits in light of its “take nothing” language. See, e.g. Qaddura v. Indo-European
Foods, Inc., 141 S.W.3d 882, 894 (Tex. App.—Dallas 2004, pet. denied) (“A take nothing judgment,
however, is a judgment on the merits, and is inconsistent with a dismissal without prejudice.”) (citing
Garcia–Marroquin v. Nueces Cty. Bail Bond Bd., 1 S.W.3d 366, 379 n.8 (Tex. App.-Corpus Christi–
Edinburgh 1999, no pet.)). Because other language in the final judgment indicates the court dismissed
Griffin’s claims for want of prosecution, the court’s dismissal would be inconsistent with a ruling on the
merits and would be a dismissal without prejudice. See Gracey v. West, 422 S.W.2d 913, 917 (Tex. 1968)
(“The judgment of dismissal of the cause for want of prosecution is not a judgment on the merits of the
cause.”); Harris Cnty. v. Gamblicher, 479 S.W. 3d 514, 516 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (“a dismissal for want of prosecution is not a determination on the merits, and therefore dismissal with
prejudice in such circumstances is improper”) (citations omitted).
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evidence conclusively establishes a defense to the plaintiff’s cause of action.”
(citations omitted). Id. In other words, a court should direct a verdict when
reasonable minds can draw only one conclusion from the evidence. Vance v. My
Apt. Steak House, 677 S.W.2d 480, 483 (Tex. 1984); Collora v. Navarro, 574
S.W.2d 65, 68 (Tex. 1978).
“Ordinarily, a directed verdict should not be granted against a party before the
party has had a full opportunity to present its case and has rested.” Tana Oil and
Gas Co. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003) (citations omitted). Generally,
it is “reversible error for the trial court to direct a verdict without allowing the
plaintiff to present all of its evidence.” State Ofc. Of Risk Mgmt. v. Martinez, 300
S.W.3d 9, 11–12 (Tex. App.—San Antonio 2009, pet. denied) (citing Wedgeworth
v. Kirskey, 985 S.W.2d 115, 116 (Tex. App.—San Antonio 1998, pet. denied)).
APPLICATION AND ANALYSIS
Here, the Final Judgment states that Griffin’s claims were dismissed with
prejudice “for want of prosecution” and also indicates the court granted Zurich’s
motion to strike witnesses and exhibits.10 While the trial court expressed an intention
to comply with the rules of civil procedure, we find no legal basis in the rules for the
actions the trial court took here. First, although the Final Judgement states that the
court “determined [Griffin] had no evidence to move forward at trial [and] failed to
10
In the January 15, 2019 proceedings, Zurich orally moved to strike all witnesses. The record is less
clear regarding Zurich’s objections to Griffin’s exhibits, but for purposes of this opinion, we assume without
deciding that Zurich also objected to Griffin’s exhibits and that the court granted both motions.
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prosecute his case,” the record shows otherwise. Griffin announced ready, did not
withdraw that announcement, appeared for trial, and reaffirmed his readiness to
proceed. Presumably, Griffin was entitled to testify on his own behalf even if he
had not identified himself as a fact witness in response to written discovery. See
TEX. R. CIV. P. 193.6(a) (permitting testimony of named party even though not
identified in discovery).11
Second, the record lacks any indication that Griffin was provided with notice
that a want-of-prosecution dismissal might occur. Such notice is required to dismiss
for want of prosecution under either the court’s inherent common law authority or
under rule 165a.12 See Villarreal, 994 S.W.2d at 630 (“party must be provided with
notice and an opportunity to be heard before a court may dismiss a case for want of
prosecution under ether [r]ule 165a or its inherent authority” and failure to do so
“requires reversal”); TEX. R. CIV. P. 165(a) (notice and hearing required for dismissal
for want of prosecution by party’s failure to appear).
11
Additionally, and contrary to the trial court’s suggestion otherwise, the trial court was not required
to preclude Griffin, a party, from testifying on his own behalf as to his various causes of action, even if
Zurich established that Griffin failed to timely list himself as a witness. See Decision Consultants, Inc. v.
Zghyer, No. 05-97-01486-CV, 2000 WL 1801139, *1 (Tex. App.—Dallas Dec. 8, 2000) (not designated
for publication) (concluding pro se party’s pleading with narrative of the facts “was sufficient to
communicate [the party’s] identity and his personal knowledge of relevant facts and overruling opponent’s
argument on appeal that trial court erred in permitting the pro se party to testify when he had not identified
himself as a person with knowledge of facts in response to an interrogatory).
12
Rule 165a does not apply here, as Griffin appeared for trial and announced ready, and there is no
indication in the record that his case was placed on a dismissal docket for any failure to be disposed of
within time standards promulgated by the Supreme Court’s administrative rules. See TEX. R. CIV. P. 165a.
We mention this simply to note that even if rule 165a did apply, the rule’s requirements were not satisfied,
such as notice before dismissal and a hearing in response to a timely motion to reinstate. See id.
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Third, the record lacks any indication that Griffin was provided with notice to
justify what amounted to a death-penalty sanction under rule 215.2(b)(5) if, in fact,
the Final Judgment is viewed in the discovery sanctions context. See TEX. R. CIV.
P. 215.2(b)(5) (listing dismissal as one of several options court may take “after notice
and hearing”).
Fourth, even if Griffin had received notice under rule 215.2(b)(5), the record
lacks any indication that the court considered and provided at least some explanation
why lesser sanctions were not appropriate. See Shops at Legacy, 418 S.W.3d at 233
(trial court “must analyze the available sanctions and offer a reasoned explanation
as to the appropriateness of the sanction imposed”) (citing Cire v. Cummings, 134
S.W.3d 835, 840 (Tex. 2004)). Death penalty sanctions “should be used as an initial
sanction only in the most egregious and exceptional cases ‘when they are clearly
justified and it is fully apparent that no lesser sanctions would promote compliance
with the rules’”) Id. (quoting GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725,
729 (Tex. 1993)).
Fifth, and finally, the practical effect of the court’s final judgment here was to
prematurely direct a verdict in appellee’s favor, without ever allowing Griffin to
testify, make an offer of proof, or otherwise present his case.
Based on this record and the legal standards discussed herein, we conclude
that the dismissal of Griffin’s case with prejudice for want of prosecution constituted
an abuse of discretion and reversible error.
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CONCLUSION
We reverse the court’s final judgment and remand the case for further
proceedings consistent with this opinion.
/Ken Molberg/
190630f.p05 KEN MOLBERG
JUSTICE
Schenck, J., concurring.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TRENT S. GRIFFIN, Appellant On Appeal from the 101st Judicial
District Court, Dallas County, Texas
No. 05-19-00630-CV V. Trial Court Cause No. DC-13-05893.
Opinion delivered by Justice
AMERICAN ZURICH Molberg. Justices Schenck and
INSURANCE COMPANY, Appellee Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant TRENT S. GRIFFIN recover his costs of this
appeal from appellee AMERICAN ZURICH INSURANCE COMPANY.
Judgment entered this 21st day of April, 2021.
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