George B. Rabe v. Wright Materials, Inc. & Duval County, Texas--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-03-00699-CV
George B. RABE,
Appellant
v.
WRIGHT MATERIALS, INC. and Duval County, Texas,
Appellees
From the 229th District Court, Duval County, Texas
Trial Court No. DC-01-175
Honorable Alex Gabert, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 3, 2004

AFFIRMED as REFORMED

George B. Rabe complains that his lawsuit should not have been dismissed for want of prosecution. We find no error in the trial court's ruling except that the order of dismissal should have been without prejudice.

Because the issues in this appeal involve the application of well-settled principles of law, we reform and affirm the trial court's order in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. Although the trial court's notice of dismissal failed to adequately notify Rabe of its intent to dismiss the case and the reasons therefor, see Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999), this failure of due process was cured when Rabe filed a timely motion to reinstate which was heard and ruled on by the trial court. See Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.-San Antonio 2002, pet. denied).

2. To reinstate his case, Rabe had to prove he pursued the case with diligence. See Rainbow Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 57-58 (Tex. App.-San Antonio 2002, pet. denied). The record, however, fails to show that anything substantive was done in the case for twenty months. Accordingly, the trial court did not abuse its discretion in dismissing the case for want of prosecution. See id. at 55-56 (applying abuse of discretion standard of review to motion to reinstate).

3. However, a dismissal for want of prosecution is not a decision on the merits. Maldonado v. Puente, 694 S.W.2d 86, 92 (Tex. App.-San Antonio 1985, no writ). The trial court should not have dismissed Rabe's case with prejudice. See id.

The trial court's order is reformed so that the case is dismissed without prejudice and, as reformed, it is affirmed.

Paul W. Green, Justice