LOYD TOM LOGAN, Appellant v. RICKY RAY FRANCOIS, Appellee

AFFIRM; Opinion issued November 19, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00075-CV
............................
LOYD TOM LOGAN, Appellant
V.
RICKY RAY FRANCOIS, Appellee
.............................................................
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-13546-G
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MEMORANDUM OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
        The trial court dismissed with prejudice inmate Loyd Tom Logan's personal injury lawsuit against Ricky Ray Francois after Logan failed to appear for trial. Appellant, representing himself while in prison, brings four issues generally asserting the trial court abused its discretion in dismissing his lawsuit without notice and a hearing, in failing to hold a hearing on his motion to reinstate, and in dismissing the case with prejudice. For the reasons that follow, we affirm the trial court's order.
        Appellant sued Francois on November 15, 2007 alleging he was injured when the vehicle he was driving was struck from behind by a vehicle driven by Francois. The trial court notified appellant that the case was set for a jury trial on October 26, 2009 at 9:00 a.m. The trial court's notice further indicated that if plaintiff failed to appear at trial, the case would be dismissed for want of prosecution in accordance with rule 165a of the Texas Rules of Civil Procedure. Appellant filed two motions for a “bench warrant” to appear in person for trial on October 26.   See Footnote 1  In the motions, appellant states that he is presently incarcerated in the Texas Department of Criminal Justice Institutional Division. The record contains no orders on either of appellant's motions. Appellant then filed a motion for continuance of the case asserting that he was currently incarcerated and had not yet received any orders on his motions for a bench warrant. In the motion, appellant indicated that he had a mandatory release date that “can be as early as March of 2010 but no later than December 10, 2010.” Although appellant apparently signed his motion on October 19, 2009, it was file-stamped October 27, 2009, the day after the scheduled trial date. When appellant failed to appear for trial on October 26, the trial court dismissed appellant's case with prejudice. Appellant then filed a motion to reinstate, which was overruled by operation of law. This appeal followed.
        In his first and second issues, appellant argues that the trial court abused its discretion by dismissing his case without first providing notice and a hearing. Rule 165a authorizes a trial court to dismiss a case for want of prosecution on the failure of any party seeking affirmative relief to appear for a trial of which the party had notice. Tex. R. Civ. P. 165a(1). The decision to dismiss rests in the sound discretion of the trial court. Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.-Dallas 2001, pet. denied). The trial court's notice setting the trial for October 26 specifically warned appellant that he could expect his case to be dismissed for want of prosecution if he failed to appear. Thus, appellant clearly had notice of the trial court's intention to dismiss the case upon his failure to appear on the trial date. Moreover, rule 165a(1) does not preclude a trial court from scheduling a trial or hearing, giving notice that failure to attend may result in dismissal for want of prosecution, and also deciding at that trial or hearing whether the case should be dismissed for want of prosecution if a party seeking relief fails to appear. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 852 (Tex. 2004). Rule 165a(1) only requires notice of intent to dismiss and the date, time, and place for the hearing. Id. The trial court is not required to hold a separate dismissal hearing before a case may be dismissed for want of prosecution pursuant to rule 165a(1). Id. Because the trial court's notice clearly set a date and time for the trial and stated the trial court's intention to dismiss for want of prosecution for failure to appear, the order satisfies any requirement that there be notice and an opportunity to be heard. Id. Accordingly, we resolve appellant's first and second issues against him.
        In appellant's third issue, he contends the trial court abused its discretion in failing to hold a hearing on his motion to reinstate. Relying on Thordson v. City of Houston, 815 S.W.2d 550 (Tex. 1991) (per curiam), appellant argues that the trial court had no discretion to fail to hold an oral hearing on his motion to reinstate. We conclude that Thordson is not controlling authority in this case. In Thordson, the plaintiff specifically requested a oral hearing. In this case, appellant does not argue, and there is nothing in the record to suggest, he ever requested an oral hearing on his reinstatement motion or that he complained to the trial court that a hearing had not been set. As such, appellant has not preserved this complaint for review on appeal. See Tex. R. App. P. 33.1(a)(1); see also Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57 (Tex. App.-San Antonio 2002, pet. denied). We resolve appellant's third issue against him.
        In his fourth issue, appellant asserts the trial court abused its discretion by dismissing his lawsuit with prejudice. Because appellant did not present this complaint to the trial court, it is not preserved for our review. See Tex. R. App. P. 33.1(a)(1); Bridwell v. Mulder, 315 S.W.3d 657, 659-60 (Tex. App.-Dallas, no pet. h.).
        We affirm the trial court's dismissal order.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
100075F.P05
 
Footnote 1 The term “bench warrant” is the vernacular phrase often used to describe a writ of habeas corpus ad testificandum, which is issued to compel an inmate to be brought before the court to testify. See Brewer v. Taylor, 737 S.W.2d 421, 424 n.3 (Tex. App.-Dallas 1987, no writ).