Kaminetzky, Dov Avni v. Dosohs I, Ltd.--Appeal from 125th District Court of Harris County

Affirmed and Opinion filed June 6, 2002

Affirmed and Opinion filed  June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00767-CV

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DOV AVNI KAMINETZKY, Appellant

V.

DOSOHS I, LTD., Appellee

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On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 01-00999

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O P I N I O N

In eleven issues, Dov Avni Kaminetzky, appellant, appeals the dismissal of his trespass-to-try-title lawsuit. We affirm.

Background

Kaminetzky claims to be an 18% owner of a car wash, a status he received by assignment from the car wash s original owners. Allegedly, the original owners used the car wash as collateral for a loan, which they did not repay when the note matured. The original owners declared bankruptcy in 1995, and Dosohs I, Limited allegedly became the note holder in 1996. Dosohs sued in the bankruptcy court and obtained permission to foreclose upon the car wash. Federal appeals, by Kaminetzky and the original owners, were ultimately dismissed. Additionally, four state court actions were filed against Dosohs and others regarding the car wash. The first was in August 1997, a month before the foreclosure. Kaminetzky joined the 1997 lawsuit as a plaintiff after it commenced. In 1998, he filed a second lawsuit, alleging the same causes of action as the 1997 case. The 1998 case was thus consolidated with the 1997 case. Dosohs won summary judgment in those cases. In 1999, Kaminetzky filed his third lawsuit regarding the car wash. This third case was dismissed in February 2000. Kaminetzky then filed a third party petition against Dosohs in April 2000 in the 1997 case. The trial court dismissed the action in May 2000 and ordered Kaminetzky to obtain permission from the administrative judge of Harris County before he filed any other lawsuit regarding the car wash.

Kaminetzky filed this fifth action in January 2001, without having obtained permission from the administrative judge. Dosohs moved to dismiss the case, and the trial court granted its motion in May 2001. Kaminetzky appeals the dismissal of this fifth action.

Notice of Hearing

In his first issue, Kaminetzky contends his due process rights were violated by improper notice of the May 10, 2001 hearing on Dosohs s motion to dismiss. Specifically, he complains that (1) the trial court or court clerk did not send a notice and (2) the notice of hearing in Dosohs s motion was in the form of an order, which the trial court did not sign. However, an unsigned order attached to a motion may be sufficient to provide notice of a hearing. See Goode v. Avis-Rent-A-Car, Inc., 832 S.W.2d 202, 204 (Tex. App. Houston [1st Dist.] 1992, writ denied) (unsigned order attached to motion for summary judgment and approved by movant s attorney was sufficient to provide notice). Additionally, Kaminetzky fails to cite authority that a notice of hearing must be signed by the trial court. See id. Finally, the record reflects that Kaminetzky had actual notice of the hearing. Dosohs filed its motion and notice of hearing on May 3, 2001. The next day, Kaminetzky filed a motion to continue the oral hearing of 5/10/01. Actual notice of a hearing may defeat a party s appeal for lack of notice and resulting due process violations. See Ex parte Alloju, 894 S.W.2d 85, 90 (Tex. App. Houston [14th Dist.] 1995, no writ); Goode, 832 S.W.2d at 204; Trevino v. Hidalgo Publ g Co., 805 S.W.2d 862, 863 (Tex. App. Corpus Christi 1991, no writ). Accordingly, we overrule issue one.

Kaminetzky s Motions

In his second, third, and fourth issues, Kaminetzky contends the trial court erred in denying his motion to continue the dismissal hearing, in denying an evidentiary hearing, and in denying a request for a formal record. Dosohs responds these issues are waived on appeal because there are no rulings reflected in the record. To preserve error for appeal, the record must show that the trial court ruled on the request or motion either expressly or implicitly. Tex. R. App. P. 33.1 (a)(1)(B)(2). Nothing in the record reveals a ruling on these motions. Therefore, Kaminetzky has waived error for issues two, three, and four. Id.; see Smith v. Grace, 919 S.W.2d 673, 678 (Tex. App. Dallas 1996, writ denied) (addressing Rule 52(a), now Rule 33.1).

Pre-Answer Dismissal

In his fifth issue, Kaminetzky contends it was error to consider Dosohs s motion before it filed an answer to the lawsuit. However, Kaminetzky provides no authority to support this contention. An issue not supported by authority is waived. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 05 (Tex. App. Houston [14th Dist.] 1995, no writ). Accordingly, Kaminetzky has waived any error on issue five.

Ex Parte Communication

In his sixth issue, Kaminetzky contends that the trial court erred in speaking with another judge, who had previously barred Kaminetzky from filing any lawsuits about the realty that is the subject of this suit. In his seventh issue, Kaminetzky contends the trial court s communication with the second judge was improper and resulted in a denial of due process. However, there is no evidence in the record of a telephone call or other oral communication between the trial court and a second judge about this lawsuit. Kaminetzky had the burden to bring forth a sufficient record showing error. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987). Without a record, Kaminetzky cannot show error or improper conduct. Accordingly, we overrule issues six and seven.

Dismissal

In his eighth issue, Kaminetzky contends that no evidence supports dismissal of his case. We disagree. We take notice of Rule 3.6 of the local rules of the Harris County District Courts, which provides:

class=Section2>

DISMISSAL DOCKETS: The following cases are eligible for dismissal for want of prosecution pursuant to T.R.C.P. 165a:

. . . .

class=Section3>

(c) Cases in which a party or his attorney has failed to take any action specified by the court.

class=Section4>

The evidence attached to Dosohs s motion to dismiss reveals that Kaminetzky has filed numerous lawsuits and appeals in federal and state courts about the car wash at issue in this case. The evidence also includes a May 25, 2000, district court order restraining Kaminetzky from filing any lawsuits without leave of court from the Administrative Judge of the District Courts of Harris County, Texas against Dosohs I, Ltd., and any third parties concerning the real property more specifically described as [the car wash]. Kaminetzky filed this lawsuit about the car wash in January 2001. Nothing in the record reflects that he obtained the permission of the administrative judge to do so. Because the evidence supports the trial court s dismissal of this case pursuant to Local Rule 3.6(c), we overrule issue eight.

Findings and Conclusions

In his ninth issue, Kaminetzky contends the trial court erred in failing to file findings of fact and conclusions of law. However, Kaminetzky did not request such findings and conclusions. See Tex. R. Civ. P. 296 ( any party may request the court to state in writing its findings of fact and conclusions of law. ). When a party fails to request findings of fact or conclusions of law, it is implied that the trial court made all the findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Because Kaminetzky did not request them, the trial court was not required to file findings of fact and conclusions of law. Accordingly, we overrule issue nine.

Vacating Dismissal

In his tenth issue, Kaminetzky complains that the trial court erroneously refused to vacate the dismissal. He cites case law that sanctions may not be imposed unless an evidentiary hearing is conducted and the party to be sanctioned has notice. Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 (Tex. App. Houston [1st Dist.] 1992) (orig. proceeding). He also complains that an order assessing sanctions must set forth good cause with particularity. Murphy v. Friendswood Dev. Co., 965 S.W.2d 708, 709 (Tex. App. Houston [1st Dist.] 1998, no pet.). However, the trial court s order does not state that dismissal was granted as a sanction. Further, as we have addressed above, evidence existed for the trial court to dismiss the case pursuant to Local Rule 3.6. Finally, the record does not reflect a ruling on Kaminetzky s motion to vacate. To preserve error for appeal, the record must show that the trial court ruled on the request or motion either expressly or implicitly. Tex. R. App. P. 33.1 (a)(2). Accordingly, we overrule issue ten.

Final Judgment

In his eleventh issue, Kaminetzky asserts that dismissal was not a final judgment because it did not dispose of any of the substantive issues concerning the car wash. A final judgment disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (addressing finality of summary judgments). Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. The dismissal order in this case states, It is therefore Ordered that this Cause No. 2001-00999 is in all things dismissed. Thus, the order addressed the entirety of the case and is final, not interlocutory. We overrule issue eleven.

Lastly, we rule on the various motions and objections filed in this appeal. First, we grant Dosohs s motion to take judicial notice of Local Rule 3.6. We deny Kaminetzky s motions to take judicial notice that (1) Dosohs did not confer with him before filing its motion to dismiss; (2) the dismissal order did not state good cause; and (3) Kaminetzky did have notice of the May 2000 order barring him from filing further lawsuits about the car wash. Next, we grant Kaminetzky s request to supplement the record with the items listed in his Index of Exhibits Included in the Attached Addendum, except for items 21, 22, and 25. Finally, to the extent Kaminetzky objects that Dosohs s post-submission letter brief attaches documents not contained in the appellate record, we sustain the objection and disregard the documents.

Having found waiver or having overruled all eleven issues, we affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Justice Seymore, Justice Guzman, and Senior Justice Draughn.[1]

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Senior Justice Joe L. Draughn sitting by assignment.