Jimmy G. Fisher v. John Hand--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00124-CV

Jimmy G. Fisher,

Appellant

v.

John Hand,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court No. 98-843-3

MEMORANDUM Opinion

After being convicted of murder, Jimmy G. Fisher filed a deceptive trade practices suit against his retained defense counsel John Hand. The trial court dismissed the case more than six years later under Rule of Civil Procedure 165a. Fisher contends in his sole point that the court abused its discretion by dismissing his lawsuit.

Fisher filed the DTPA suit against Hand in March 1998. Hand filed a general denial in 1999. In 2000, 2001, 2002, 2003, and 2004, the district clerk mailed dismissal notices to Fisher under Rule 165a. At Fisher s request, the suit was retained on the court s docket until 2004. Then, the court set the matter for hearing.

Fisher subpoenaed several witnesses for the hearing to testify about the merits of his lawsuit. He filed an application for the court to issue a writ of habeas ad testificandum so he could personally appear for the hearing and in the alternative, a motion to appear via teleconference.

At the dismissal hearing, Fisher appeared via teleconference and advised the court that his lawsuit should not be dismissed because he has a legitimate claim against Hand. The court advised Fisher that the merits of his lawsuit are irrelevant to the question of whether the suit should be dismissed under Rule 165a. Fisher offered no other basis to leave the suit pending on the court s docket, and the court dismissed the suit.

We review a court s dismissal under Rule 165a under an abuse-of-discretion standard. See Retzlaff v. Tex. Dept. of Crim. Just., 94 S.W.3d 650, 654 (Tex. App. Houston [14th Dist.] 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App. Dallas 2001, pet. denied). Rule 165a permits the dismissal of a lawsuit, after notice, (a) for want of prosecution if the plaintiff fails to appear for any hearing or trial of which he had notice or (b) for non-compliance with the time standards promulgated by the Supreme Court in Rule of Judicial Administration 6. See Tex. R. Civ. P. 165a; Wright v. Tex. Dept. of Crim. Just., 137 S.W.3d 693, 696 & n.5 (Tex. App. Houston [1st Dist.] 2004, no pet.).

Rule of Judicial Administration 6(b)(1) provides that civil jury cases should be disposed of within eighteen months after filing. See Wright, 137 S.W.3d at 696 n.5. Fisher s lawsuit had been pending for more than six years. Accordingly, no abuse of discretion is shown. Id. We overrule Fisher s sole point and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 13, 2005

[CV06]