Johnson, A.E. v. Elayyan, Majed, d/b/a Concord Auto Towing, aka Majed Wrecker Service aka A+ Discount Towing et.al.,--Appeal from Co Civil Ct at Law No 4 of Harris County

Affirmed and Opinion filed May 9, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00381-CV

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A. E. JOHNSON, Appellant

V.

MAJED ELAYYAN, d/b/a CONCORD AUTO TOWING, a/k/a MAJED WRECKER SERVICE a/k/a A+ DISCOUNT TOWING, et al., Appellees

On Appeal from the County Civil Court at Law No. 4

Harris  County, Texas

Trial Court Cause No. 720,840

O P I N I O N

Appellant appeals a judgment entered against him in his suit for fraud, negligence, and false and misleading acts. In eight points of error, appellant contends the trial court erred in refusing to rule on his discovery motions, granting the defendant=s motion, and dismissing his case with prejudice for failure to appear at the mediation. We affirm.

Appellant filed suit against appellee for fraud, negligence, false and misleading acts, and injury to his mobile home. Appellant alleged in his lawsuit that appellee agreed to tow his mobile home for $75.00. In the process of towing the mobile home, appellant alleges the driver damaged the mobile home. Appellant also alleged misrepresentation in that appellee quoted a price of $75.00, but ultimately charged him $350.00. Appellee filed a counterclaim alleging appellant=s lawsuit was frivolous and requesting attorney=s fees.

The trial court ordered the parties to mediation and notified them on August 21, 2000 that mediation was scheduled for September 11, 2000. Because appellant failed to appear at the court-ordered mediation, the trial judge dismissed appellant=s suit for want of prosecution. The trial court further found appellant=s lawsuit was groundless and ordered appellant to pay appellee=s attorney=s fees.

In his first two points of error, appellant contends the trial court erred in refusing to rule on his discovery motions. The record before this court contains several requests for discovery filed by appellant, but no objection to the trial court=s refusal to rule on the motions. To preserve error on appeal, appellant must show that the trial court ruled on the request, objection, or motion, or refused to rule and the complaining party objected to the refusal. Tex. R. App. P. 33.1. Because appellant has not shown that he objected to the trial court=s refusal to rule, appellant has failed to preserve error. Appellant=s first two points of error are overruled.

In his third and fourth points of error, appellant claims the trial court erred in ordering the case to mediation. Section 154.002 of the Texas Civil Practice and Remedies Code expresses the general policy that peaceable resolution of disputes is to be encouraged through voluntary settlement procedures. Tex. Civ. Prac. & Rem. Code Ann. '154.002 (Vernon 1997). Courts are admonished to carry out this policy. Id. ' 154.003. A court cannot force the disputants to peaceably resolve their differences, but it can compel them to sit down with each other. Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex. App.CHouston [1st Dist.] 1992, no writ). If a party files a written objection to the trial court=s referral to mediation and there is a reasonable basis for the objection, the court may not refer the dispute to mediation. Tex. Civ. Prac. & Rem. Code Ann. ' 154.022(c). Here, the record does not reflect any objection to the court=s mediation order until after the court=s dismissal. Because the trial court properly ordered mediation and there was no timely objection on a reasonable basis, appellant=s third and fourth points of error are overruled.

In his remaining points of error, appellant complains of the trial court=s dismissal 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, and Rule 165a(2) expressly authorizes dismissal when a case is not disposed of within the time standards promulgated by the Texas Supreme Court. 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. The conclusion that disobeyance of its order was willful or consciously indifferent is sufficient basis for the trial court to impose the ultimate sanction of dismissing the case or striking pleadings and rendering judgment by default. Koslow=s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990). A trial court=s action in dismissing a lawsuit will not be reversed on appeal unless the trial court clearly abused its discretion. Veterans= Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). 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).

A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution. Tex. R. Civ. P. 165a. The mediation order states:

The mediation session hereby ordered shall constitute a Ahearing@for purposes of Tex. R. Civ. P. 165a. if any party seeking affirmative relief in this case fails to appear at the mediation hereby ordered, this shall constitute notice that the court will dismiss that party=s affirmative claims for want of prosecution on the first day of the week this case is set for trial, without further notice. Any other party or counsel who fails to appear at the mediation hereby ordered may be held in contempt of Court.

Appellant failed to appear at the court-ordered mediation and subsequently failed to appear when the case was called for trial. Because appellant received sufficient notice that his failure to appear would cause his case to be dismissed, the trial court did not abuse its discretion in dismissing the case for want of prosecution. See Garcia v. Mireles, 14 S.W.3d 839, 843 (Tex. App.CAmarillo 2000, no pet.) (sanction of dismissal upheld for failure to appear at court-ordered mediation). Appellant=s fifth through eighth points of error are overruled.

The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed May 9, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

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