James Mac Peacock v. Alton Garrett and wife, Alma L. Garrett, et al--Appeal from 39th District Court of Stonewall County

Opinion filed December 8, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-04-00105-CV

__________

   JAMES MAC PEACOCK, Appellant

V.

ALTON GARRETT AND WIFE, ALMA L. GARRETT, ET AL, Appellees

On Appeal from the 39th District Court

Stonewall County, Texas

Trial Court Cause No. 4354

M E M O R A N D U M O P I N I O N

This appeal involves the dismissal of a lawsuit when James Mac Peacock, an incarcerated person, did not appear for trial. Appellant filed suit against appellees[1] on December 10, 2002, to enforce a contract for deed. The trial court entered a scheduling order on August 13, 2003, by which the trial court set the case for trial on January 19, 2004. At some point prior to the trial date of January 19, 2004, appellant became an inmate of the Texas Department of Criminal Justice. His attorneys sought and obtained the issuance of a bench warrant from the trial court for appellant to attend trial.

The sheriff of Stonewall County went to the Formby Unit in Plainview on January 14, 2004, to transport appellant to Stonewall County for the upcoming trial; appellant refused to leave the unit voluntarily. After a telephone conversation between the sheriff and the trial court, appellant wrote a note in which he stated in relevant part: AI withdraw myself from the suit and turn all to Tom Darden and Kent Co. State Bank.@ Appellant executed subsequent documents attempting to assign his cause of action to the Kent County State Bank.

The trial court deemed that appellant=s original handwritten note and his refusal to accompany the sheriff constituted a Avoluntary abandonment@ of his claims. The trial court also rejected appellant=s attempt to assign his cause of action because there was no consideration for the assignment. The trial court ultimately dismissed appellant=s claims with prejudice; it also denied appellant=s motion to reinstate the case. We modify the trial court=s judgment and affirm.

Appellant=s Contentions

Appellant raises seven issues on appeal. His complaints can be grouped into three major categories. First, he contends that the trial court did not comply with the procedural notice requirements for dismissing the action. Second, he alleges that the trial court erred by dismissing his lawsuit and failing to grant his motion to reinstate. Third, he contends that the dismissal should not have been with prejudice.

Any Procedural Errors Were Cured by Subsequent Hearing

In his seventh issue, appellant contends that the trial court failed to notify the parties in advance of its intent to dismiss the lawsuit on the date set for trial. See Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex.1999). In this regard, the scheduling order did not indicate that the case possibly could be dismissed if appellant failed to appear for trial. See Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 851 (Tex.2004). Irrespective of any deficiencies regarding the pre-dismissal notice, the trial court conducted a hearing on appellant=s motion to reinstate the case at a time when the court retained plenary power over the dismissal order. A subsequent hearing on a party=s motion to reinstate while the trial court retains plenary power cures any procedural errors contained in the previous order of dismissal. See Jimenez v. Transwestern Property Company, 999 S.W.2d 125, 128 29 (Tex.App. Houston [14th Dist.] 1999, no pet=n). Accordingly, appellant was not harmed by any lack of notice of the court=s intention to dismiss the case. See Jimenez v. Transwestern Property Company, supra at 128-29. We overrule appellant=s seventh issue because he cannot demonstrate any harm. See TEX.R.APP.P. 44.1(a).

Dismissal and Reinstatement

A trial court may dismiss a case for want of prosecution based upon a party=s failure to appear at trial under either TEX.R.CIV.P. 165a(1) or under its common-law inherent authority. See Villarreal v. San Antonio Truck & Equipment, supra at 630. We review a trial court=s order of dismissal for want of prosecution under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984). We employ the same standard in reviewing the denial of a motion to reinstate. Franklin v. Sherman Independent School District, 53 S.W.3d 398, 401 (Tex.App. Dallas 2001, pet=n den=d). A trial court abuses its discre-tion when it acts Awithout reference to any guiding rules and principles,@ or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Company, 109 S.W.3d 750, 757 (Tex.2003)(quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)).

The trial court found that appellant=s actions constituted a voluntary abandonment and a failure to prosecute his case with diligence. Appellant attacks the legal and factual sufficiency of the evidence supporting these findings in his fourth, fifth, and sixth issues. In his second and third issues, appellant also challenges the legal and factual sufficiency of the evidence supporting the trial court=s determination that his attempt to assign his cause of action to the Kent County State Bank was not supported by consideration.

Appellant couches his appellate contentions as evidentiary challenges. Under the controlling abuse-of-discretion standard, legal and factual sufficiency of the evidence challenges are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App. Dallas 2001, pet=n den=d). Accordingly, we review appellant=s evidentiary challenges within the context of determining whether the trial court abused its discretion in dismissing appellant=s claims and then subsequently denying his motion to reinstate.

Appellant=s fourth issue addresses the trial court=s voluntary abandonment finding. His fifth issue attacks the trial court determination that he failed to prosecute his claims with diligence. Again, the evidence establishes that appellant refused to accompany the sheriff in compliance with a bench warrant issued by the trial court. His refusal occurred approximately five days prior to the trial date. He executed a document at that time which stated in part: AI withdraw myself from the suit.@ These facts constitute legally and factually sufficient evidence to support the trial court=s findings that appellant voluntarily abandoned his claims and that he failed to prosecute his claims with diligence. Appellant=s fourth and fifth issues are overruled.

In his sixth issue, appellant argues that the evidence conclusively or, in the alternative, overwhelmingly established that his failure to appear was not intentional or the result of conscious indifference but was due to accident, mistake, or was reasonably explained. See TEX.R.CIV.P. 165a(3). He bases this argument on the contention that he did not accompany the sheriff because he believed that he had assigned his claims to the bank. As noted previously, the evidence establishes that appellant=s failure to appear was intentional. Moreover, his attempt to assign the case to the bank occurred less than a week prior to trial. He did not offer any evidence explaining why he did not make the assignment at an earlier time. We conclude that the trial court did not abuse its discretion is refusing to honor an attempt to assign a cause of action made on the eve of trial.[2]

Dismissal Without Prejudice

Appellant argues in his first issue that the trial court erred when it dismissed his case with prejudice. An order of dismissal for want of prosecution is not an adjudication of the rights of the parties; rather, it simply places the parties in the position they were in prior to filing the suit. See Melton v. Ryander, 727 S.W.2d 299, 303 (Tex.App. Dallas 1987, writ ref=d n.r.e.). When a case is dismissed for want of prosecution, it is error for the trial court to dismiss the case with prejudice. See Melton v. Ryander, supra at 303. Accordingly, we modify the trial court=s order of dismissal to delete the words Awith prejudice to refiling the same.@

This Court=s Judgment

As modified by this opinion, the trial court=s judgment is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 8, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Wright, C.J., and McCall, J.

W. G. Arnot, III, retired effective July 31, 2005, and is, therefore, not participating.

[1]Appellees consist of Alton Garrett and wife, Alma L. Garrett; Larry Cunningham, Barry D. Cunningham, and Beverly Roberts, Co-Independent Executors and Trustees of the Estates of Larry Jack Cunningham, Deceased, and Geneva H. Cunningham, Deceased; and Barry D. Cunningham and Beverly Roberts, as Co-Trustees under the Marital and Family Trusts created by the will of Geneva H. Cunningham, Deceased.

[2]In light of our determination that the trial court did not abuse its discretion by rejecting appellant=s attempt to assign his cause of action in an untimely manner, we need not reach his second and third issues addressing the trial court determination that the assignments were not supported by consideration.