Joe E. HENDERSON, Appellant v. Marilyn Kay BLALOCK, Appellee
NO. 14-14-00429-CV
Court of Appeals of Texas, Houston (14th Dist.).
April 23, 2015
lant‘s location, the time of night, and the light traffic).
(4) Appellant‘s Danger to Himself
The final factor we consider is “to what extent the individual—if not assisted—presented a danger to himself or others.” Id. at 855. In its brief, the State concedes that appellant did not present a significant danger to others because he was alone on the roadway at the time of the stop. Therefore, we only consider whether appellant posed a “danger to himself.” Id. Deputy Gossett testified that it would have been unsafe for appellant to continue to drive given the condition of his vehicle. Due to the fact that appellant‘s vehicle had a flat tire and was “rocking back and forth” even at a very slow rate of speed, one could infer that appellant‘s ability to effectively control the vehicle and operate it safely on the roadways was compromised. See id. at 854 (stating that reviewing courts are to afford the prevailing party all reasonable inferences that may be drawn from the evidence). Therefore, it was reasonable for Deputy Gossett to conclude that appellant presented a danger to himself by continuing to operate the vehicle in its existing condition. Cf. Lebron, 35 S.W.3d at 777 (concluding that circumstances “presented a danger to the driver” where vehicle was traveling slowly with two flat tires and eventually came to a stop in the middle of the roadway).
CONCLUSION
Based on the totality of the circumstances as established by the evidence in the record, we conclude that the evidence supports the trial court‘s implied finding that Deputy Gossett subjectively believed he was acting in his community caretaking function by initiating a stop of appellant‘s vehicle. We further conclude that Deputy Gossett‘s subjective belief was objectively reasonable, because there was sufficient indicia of distress at the time Deputy Gossett stopped appellant‘s vehicle, and that indication of distress was amplified by the fact that appellant was in an isolated location, without apparent access to assistance, and presented a danger to himself. Therefore, Deputy Gossett‘s stop of appellant‘s vehicle was proper under the community caretaking exception, and the trial court did not err in denying appellant‘s motion to suppress. Accordingly, we overrule appellant‘s sole issue and affirm the judgment of the trial court.
Marilyn Kay Blalock, Houston, TX, for Appellee.
OPINION
Marc W. Brown, Justice.
The trial court dismissed appellant Joe E. Henderson‘s suit for want of prosecution after it had been pending for over three years with virtually no activity and Henderson failed to appear for trial. Henderson filed a motion to reinstate, arguing that his counsel overlooked the trial setting. That motion was overruled by operation of law. In this appeal, Henderson asserts that the trial court abused its discretion and that the judgment is void. We affirm.
BACKGROUND
In July 2010, Henderson filed a petition for declaratory and injunctive relief against appellee Marilyn Kay Blalock, claiming adverse possession of certain real property located in Brazoria County. According to the record, Henderson‘s initial actions to further the prosecution of his suit were limited to: (1) filing on July 19, 2010 the petition and a corresponding application for a temporary restraining order; (2) requesting on July 19, 2010 service of the citation and temporary restraining order on Blalock at a West Virginia address; and (3) filing a request on August 2, 2010 to set the case on the jury trial docket, but without specifying any docket date. The record indicates no further action by Henderson in furtherance of the suit in over three years following the August 2010 filing.
On January 9, 2014, the trial court issued a notice of intent to dismiss due to the lack of activity in the case, and set a show cause hearing for February 11, 2014. The trial court retained the case at that time and set it for trial in May 2014. According to the record, Henderson‘s actions following issuance of the trial court‘s notice of intent to dismiss consisted of: (1) requesting on February 11, 2014 service of the petition on Blalock; (2) filing a motion on February 14, 2014 to substitute Henderson‘s counsel; and (3) filing a motion on April 1, 2014 for service of process on Blalock by publication.
On May 6, 2014, the trial court signed an order that reads:
The court retained the above named cause on the docket February 14, 2014 and set it for trial on May 5, 2014. The parties did not show for trial.
The action was not accomplished by the required date. The case is therefore dismissed for want of prosecution.
The trial court sent out notice of its order dismissing the case for want of prosecution the following day.
Then, on May 9, 2014, Henderson‘s counsel filed with the trial court a verified motion to reinstate the case. Counsel acknowledged in the motion that “Plaintiff‘s Attorney did not appear in court on the date this case was set for trial.” The sole explanation counsel provided in the motion for this failure to appear was that “Plaintiff‘s Attorney overlooked the trial setting.” Blalock filed an opposition to the motion to reinstate. The trial court did not sign a written order on Henderson‘s motion to reinstate. Therefore, the motion was overruled by operation of law. See
ANALYSIS
The Trial Court Did Not Abuse Its Discretion in Dismissing the Case for Want of Prosecution.
In his second of three issues, Henderson challenges the trial court‘s dis-missal of the case for want of prosecution. This court will reverse a trial court‘s dismissal
The trial court did not specify in its dismissal order whether it was dismissing the case under one of the provisions of
A trial court generally will consider four factors in deciding whether to dismiss a case for want of prosecution: (1) the length of time the case has been on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. Gantt, 2011 WL 1849085, at *6; Southwell, 2010 WL 1379987, at *2. No single factor is dispositive. Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The central issue is whether the plaintiff exercised due diligence in prosecuting the case, and we review the entire record to determine whether the trial
This case had been pending on the trial court‘s docket with no apparent activity for over three years and five months at the time trial court issued its notice of intent to dismiss in January 2014. Even after the trial court issued its notice of intent, the only activity by Henderson that is demonstrated in the record is the substitution of counsel and some effort to perfect service of process on Blalock. And Henderson did not appear on the trial date set by the court after it retained the case. Henderson acknowledges in his brief the “uncommon length of time” the case had been pending and that “little activity occurred” during its pendency. Yet Henderson fails to provide any specific demonstration to refute the presumption of abandonment or otherwise show due diligence in prosecuting the suit. Instead, Henderson makes repeated assertions that he has announced ready for trial, but without support in the record and despite the failure to appear at trial. See Jimenez, 999 S.W.2d at 129 (“[A] belated trial setting or stated readiness to proceed to trial does not conclusively establish diligence.“). Henderson also claims the trial court‘s judgment is based on “official mistake” relating to the court‘s allegedly erroneous determination regarding the need for service on Blalock, but the record does not indicate any such determination or that the court‘s dismissal order was predicated on a lack of service on Blalock.
Considering the record as a whole—specifically, the excessive amount of time the case had been pending before the trial court, the inactivity by Henderson to further the prosecution (culminating in the failure to appear at trial), and the absence of a sufficient explanation for the delay—we conclude the trial court did not abuse its discretion in dismissing the case for want of prosecution pursuant to the court‘s inherent authority. See Southwell, 2010 WL 1379987, at *2 (affirming dismissal where case was on file for more than three years with little activity); see also Gantt, 2011 WL 1849085, at *6 (noting dismissals based on inactivity for approximately 12 months have been upheld on appeal, and listing cases). Accordingly, we overrule appellant‘s second issue.
The Trial Court Did Not Abuse Its Discretion in Denying Henderson‘s Motion to Reinstate.
In his first issue, Henderson challenges the trial court‘s denial of his motion to reinstate. As with orders dismissing a case for want of prosecution, “[w]e review a trial court‘s denial of a motion to reinstate for abuse of discretion.” Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (op. on reh‘g); see also Burnett v. Carnes Funeral Home, No. 14-12-01159-CV, 2014 WL 2601567, *5 (Tex. App.-Houston [14th Dist.] June 10, 2014, no pet.) (mem.op.).
As noted in the preceding section, the trial court did not specify in its order whether it was dismissing the case pursuant to one of the grounds in
Even were we to assume that the trial court dismissed the case solely pursuant to
In his brief before this court, Henderson expands on his attempted justification, providing a list of purported facts that supposedly negate a finding of intent of conscious indifference—including, for example, that Henderson‘s former attorney became ill, that counsel was mistaken as to how the trial court handled its trial docket, and that the failure to appear at trial was a clerical mistake. But Henderson‘s expanded argument does not demonstrate an abuse of discretion by the trial court. First of all, these arguments were not raised in the motion to reinstate, and
In sum, Henderson‘s motion to reinstate did not address all possible grounds for the trial court‘s dismissal order, and with respect to the one ground Henderson did address, his explanation was insufficient. Therefore, the trial court did not abuse its discretion in denying Henderson‘s motion to reinstate. Accordingly, we overrule appellant‘s first issue.
Henderson‘s Jurisdictional Argument is Misplaced.
In the context of his third issue, Henderson asserts that the trial court‘s dismissal order is void because the court did not have jurisdiction over Blalock. Henderson incorrectly relies on cases involving a grant of default judgment against a defendant where service has not been perfected. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex.1990) (holding that “default judgment is improper against a defendant who has not been served in strict compliance with law“). The trial court here did not grant judgment against Blalock (the defendant below), it dismissed Henderson‘s suit for want of prosecution. Even assuming that the trial court never acquired personal jurisdiction over Blalock due to Henderson‘s failure to perfect service, Henderson does not explain how that deprives the trial court of authority to dismiss the suit for want of prosecution. Cf. In re Perry, No. 01-10-01072-CV, 2013 WL 1483389, *3 (Tex.App.-Houston [1st Dist.] Apr. 9, 2013, pet. denied) (mem.op.) (affirming dismissal for want of prosecution where plaintiff never served citation on named defendants). Therefore, we overrule appellant‘s third issue.3
CONCLUSION
Having overruled each of appellant‘s issues, we affirm the judgment of the trial court.
Marc W. Brown
Justice