HUNG TAN PHAN, Appellant v. AN DINH LE, Appellee

AFFIRM; Opinion issued November 10, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01277-CV
............................
HUNG TAN PHAN, Appellant
V.
AN DINH LE, Appellee
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-08120-K
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        Pro se appellant Hung Tan Phan appeals the trial court's dismissal of this case for want of prosecution. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. The procedural history, pleadings, and facts of the case are known to the parties. Therefore, we limit recitation of these matters. We affirm the trial court's judgment.
        In his fourth issue, Phan contends the trial court erred in dismissing this case for want of prosecution. In Phan's third issue, he asserts appellee An Dinh Le's motion for sanctions for Phan's failure to comply with the trial court's mediation order was unfair and unreasonable. That issue is subsumed within Phan's contention that the trial court erred in dismissing the case for want of prosecution.
        The trial court's authority to dismiss a case for want of prosecution arises from two sources: (1) Texas Rule of Civil Procedure 165a, and (2) the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Rule 165a(1) expressly authorizes dismissal of a case for failure of a party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Tex. R. Civ. P. 165a(1). Independent of its express authority under rule 165a, the trial court has inherent power under the common law to dismiss a case when the plaintiff fails to prosecute the case with due diligence. Villarreal, 994 S.W.2d at 630.
        We review a dismissal for want of prosecution under an abuse of discretion standard. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied). The trial court abuses its discretion when it acts without reference to any guiding rules or principles. Starkey, 200 S.W.3d at 752 (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.-Houston [14th Dist.] 1999, no pet.)). The trial court is entitled to consider the entire history of the case in exercising its discretion as to dismissal. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984).
        Phan filed this lawsuit in July 2008. In September 2008, the trial court signed the first mediation order in this case requiring the named parties to attend mediation. Phan failed to attend the October 2008 mediation. Le filed a motion for sanctions against Phan for failure to attend the mediation, and the trial court signed an order in November 2008 imposing a sanction against Phan in the amount of $500.
        In June 2009, the trial court signed the second mediation order in this case which, like the first mediation order, stated: “Named parties shall be present during the entire mediation process . . . . Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law, which may include dismissal or default judgment.” The mediation order provided that any objection to the mediation had to be filed and a hearing requested within ten days of the receipt of the order. More than three months after the second mediation order was signed, Phan filed a “motion to have the mediation order removed,” and the record does not reflect a request for hearing of that motion.
        The second mediation was held September 22, 2009. Again, Phan failed to appear at the mediation. Le filed his second motion for sanctions for Phan's failure to comply with the trial court's mediation order. The motion was set for hearing on October 7, 2009. Phan did not attend that hearing.   See Footnote 1  On October 7, 2009, the trial court signed an order of dismissal without prejudice for want of prosecution. Phan timely filed his notice of appeal within thirty days of the signing of the order of dismissal.
        Phan failed to appear at two court-ordered mediations and was not present for the hearing on the second motion for sanctions. Phan received notice from the trial court in the two mediation orders that his failure to appear at mediation could result in the imposition of sanctions, including dismissal. On this record, we conclude the trial court did not abuse the discretion accorded it pursuant to its inherent power to control its docket when it imposed the sanction of dismissal. See Garcia v. Mireles, 14 S.W.3d 839, 843 (Tex. App.-Amarillo 2000, no pet.) (sanction of dismissal upheld for failure to appear at court-ordered mediation); see also Johnson v. Elayyan, 2002 WL 959518, *2 (Tex. App.-Houston [14th Dist.] May 9, 2002, pet. denied) (not designated for publication) (dismissal under rule 165a affirmed where party failed to appear at court-ordered mediation and mediation order stated mediation session constituted “hearing” for purposes of rule 165a). We overrule Phan's third and fourth issues.
        In his first issue on appeal, Phan contends Le's alleged republication of an e-mail was false and defamatory. In Phan's second issue, he asserts the mediator was biased and lacked impartiality. Based on our disposition of Phan's third and fourth issues, we need not address Phan's first and second issues. See Tex. R. App. P. 47.1.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
091277F.P05
 
Footnote 1         Phan filed a motion to be excused from that hearing, but it was not filed until after the hearing had occurred and the order of dismissal had been signed.