John Fox v. JOE WARDY, MAYOR--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOHN FOX, ) No. 08-05-00205-CV

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Appellant, ) Appeal from

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v. ) County Court at Law No. 7

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JOE WARDY, MAYOR, ) of El Paso County, Texas

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Appellee. ) (TC# 2004-3904)

O P I N I O N

John Fox, appearing pro se, appeals from an order dismissing his suit against Joe Wardy for want of prosecution. Finding no error, we affirm.

FACTUAL SUMMARY

On September 13, 2004, Fox filed a suit against the El Paso City Council seeking to have a condemnation proceeding dismissed. Fox, who had other suits pending against the City of El Paso and some of its employees, faxed a copy of the petition to an assistant city attorney but he did not serve the defendant in accordance with the Rules of Civil Procedure. Fox amended the petition on October 6, 2004 to sue the El Paso City Council Members rather than the El Paso City Council and he again faxed the petition to an assistant city attorney. He amended his petition on November 22, 2004 to purportedly substitute then-mayor Joe Wardy as the sole defendant in place of the El Paso City Council Members. Fox did not cause citation to be issued until after April 11, 2005, when the trial court sent a Rule 165a // notice advising Fox of the court s intent to dismiss for want of prosecution. The court set the dismissal hearing for May 18, 2005. The docket sheet reflects that citation was issued on April 28, 2005 and served on Mayor Wardy on May 4, 2005. At the dismissal hearing, Fox did not dispute the trial court s observations that the only activity in the case had been the filing of the original petition and two amended petitions, and that Mayor Wardy had only recently been served. Consequently, the trial court dismissed the case for want of prosecution. Fox did not file a verified motion to reinstate but filed a timely notice of appeal.

DISMISSAL FOR WANT OF PROSECUTION

In his sole issue on appeal, Fox contends that the trial court abused its discretion by dismissing the suit. A trial court s authority to dismiss a case for want of prosecution is derived from two sources: Rule 165a and the court s inherent power to dismiss when the plaintiff fails to prosecute the case with due diligence. Dick Poe Motors, Inc. v. Daimler Chrysler Corp., 169 S.W.3d 478, 484 (Tex.App.--El Paso 2005, no pet.); Johnson-Snodgrass v. KTAO, Inc., 75 S.W.3d 84, 87 (Tex.App.--Fort Worth 2002, pet. dism d). Rule 165a(1) authorizes dismissal when a party or its counsel fails to appear at a hearing or trial. Tex.R.Civ.P. 165a(1). Rule 165a(2) authorizes the court to dismiss a case when it is not disposed of in accordance with the time standards prescribed by the supreme court. // Tex.R.Civ.P. 165a(2). The record before us establishes that the court relied on its inherent powers to dismiss a case for want of prosecution rather than Rule 165a(1) or 165a(2).

The decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court, and can be disturbed on review only if it amounted to a clear abuse of discretion. See State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984); Dick Poe Motors, 169 S.W.3d at 484. A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Dick Poe Motors, 169 S.W.3d at 484. The trial court may consider the entire history of the case, including the amount of activity in the case, the length of time the case was on file, requests for a trial date, and the existence of reasonable excuses for delay. See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex.App.--Houston [14th Dist.] 1993, no writ.); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.--Houston [14th Dist.] 1992, no writ). If the order does not specify a particular reason for the dismissal, we will affirm if any proper ground supports the dismissal. See Shook v. Gilmore & Tatge Mfg. Co., Inc., 951 S.W.2d 294, 296 (Tex.App.--Waco 1997, pet. denied); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex.App.--Houston [1st Dist.] 1992, no writ). The appellant bears the burden of producing a record that shows the trial court abused its discretion. Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987).

At the time the trial court issued its notice of intent to dismiss, Fox s suit had been on file for seven months with no activity other than two amendments of the petition. Fox did not cause citation to be issued or the defendant served until after the court issued the Rule 165a notice. Fox complains that the trial court prohibited him from presenting any evidence at the dismissal hearing, but the record does not reflect that Fox offered or the court refused to consider any evidence relevant to whether Fox had prosecuted his suit with due diligence. While Fox argues that the court refused to consider evidence that Ward had been served on May 4, 2005, the trial judge had that evidence before him. Fox did not offer any evidence explaining the delay in service nor did he establish that he had prosecuted the case with due diligence. Because the record before us does not demonstrate an abuse of discretion, we overrule the sole issue for review and affirm the dismissal order.

November 30, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.