June 2, 2016
NO. 03-16-00058-CV
IN THE COURT OF APPEALS FOR THE THIRD APPELLATE DISTRICT OF TEXAS AUSTIN
CASSANDRA LAMPKIN Appellant,
v.
LYNN BROCK Appellee.
From the 419th Judicial District Court of Travis County Trial Court Cause No. D-l-GN-11-002366
APPELLANT'S FIRST AMENDED BRIEF
Cassandra Lampkin, Pro Se PO Box 140091 Austin, Texas 78714 (512) 999-4965 cassandralampkin@vahoo.com
/RECEIVED N MAY 1 2 2016 THIRD COURT OFAPPEALS/ IDENTITY OF PARTIES AND COUNSEL
Appellant:
Ms. Cassandra Lampkin
Appellee: Ms. Lynn Brock Counsel for Appellant:
ProSe PO Box 140091 Austin, Texas 78714 (512) 999-4965 cassandralampkin@yahoo.com
Counsel for Appellee:
Mr. Ethan F. Goodwin CLARK, TREVINO & ASSOCIATES Mailing Address: PO Box 258829 Oklahoma City, Oklahoma 73125-8829
Cassandra Lampkin, pro se
Appellant's First Amended Brief No. 03-16-00058-CV TABLE OF CONTENTS
Identity of Parties and Counsel 2 Table of Contents 3
Index of Authorities 4
Statement of the Case 7
Statement Regarding Oral Argument 8 Statement of Issues Presented 9
Statement of the Facts 10
Summary of the Argument 11 Argument 12 I. Issue 1: The Trial Court erred in Dismissing Appellant's case for want of prosecution, with prejudice. Dismissal for want of prosecution, with prejudice is not an adjudication on the merits 12 II. Issue 2: Judgment by Default against Appellee was proper in this case 20
Conclusion 24
Prayer for Relief 27 Certificate of Service 28
Certificate of Compliance 29 Appendix: 30 Tab 1. Final Order, Signed January 6, 2016 30
Appellant's First Amended Brief No. 03-16-00058-CV INDEX OF AUTHORITIES
Cases Pase No.
Attorney General Texas v. Rideaux, No. 91-05231 (1992) 19, 25 Barr v. Resolution Trust Corp., 837 S.W.2d (Tex. 1992) 14 Belleza-Gonzalez v. Villa, 57 S.W.3d (Tex. App. - 2001) 21 Carter v. McFadyen, 93 S.W. 3d (Tex. App. - 2002) 20 Christian v. Christin, 985 S.W. 2d (Tex. App. - 1998) passim City of Houston v. Robinson, 837 S.W.2d (Tex. App.-1992) 17 Clements v. Barnes 834 S.W.2d (Tex. App. - Corpus Christi 1992) Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d (Tex. App. — Waco 2005) 15 Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d (Tex. App. —Dallas 2001) 15 Gardner v. U.S. Imaging, 274 S.W.3d (Tex. - 2008) 23, 26 Gracey v. West, 422 S.W. 2d (Tex. - 1968) 19, 25 Holmes v. Tex. Mexinc. Co., 335 S.W. 3d (Tex. App.- El Paso 2011)20, 21
Kawasaki Steel Corp. v. Middleton, 699 S.W. 2d (Tex. 1985) 22 Lentwork v. Trahan, 981 S.W.2d (Tex. App. -Houston 1998) 14 Lum v. Lacy, 616 S.W.2d (Tex. Civ. App. -Houston 1981) 19 MacGregor v. Rich, 941 S.W. (Tex. 1997) 18, 26 Maldonado v. Puente, 694 S.W.2d (1985) 16, 24 Marrot Communications Inc., v. Town & Country, No. 01-06-00068-CV (2007) 20 Martin v. Martin, 991 S.W.2d (Tex. App. - 1997) 14
Appellant's First Amended Brief No. 03-16-00058-CV McConnell v. Attorney General of Texas, 878 S.W.2d (Tex. App. —Corpus Christil994) 15 Melton v. Ryander, 727 S.W. 2d (Tex. App. - Dallas 1987) passim Morgan v. Compugraphic Corp., 675 S.W.2d (Tex. 1984) 23, 26 Mossier v. Shields, 818 S.W.2d (Tex. 1991) 14 Ritchey v. Vasquez, 986 S.W.2d (Tex. 1999) 14 Rizk v. Mayad, 603 S.W.2d (Tex. 1980) 19, 25 Sanchez v. Providence Memorial Hospital, 679 S.W. 2d (Tex. App. - El Paso, 1984) 21 Scoville v. Shaffer, 9 S.W.3d (Tex. App. - 1999) 18, 26 Simon v. BancTexas Quorum, N.A. 754 S.W.2d (Tex. App. - Dallas 1988) 23,26 Smith v. Babcock & Wilcox, Constr. Co., 913 S.W. 2d (Tex. 1995).... 15 Sommers v. Concepcion, No. 14-98-00053-CV, 2000 WL 205192, (Tex. App. —Houston) 14 Texaco Inc. v. P/ian, 137 S.W.3d (Tex. App. - Houston 2004) 23, 26 Texas Attorney General v. Abbs, 812 S.W.2d (Tex. App. - Dallas 1991) 23, 26 Veterans Land Bd. v. Williams, 543 S.W.2d (Tex. 1976) 16 Villarreal v. San Antonio Truck & Equp., 994 S.W.2d (1999) 16 Rules
Tex. R. Civ. P. 4 21, 22
Tex. R. Civ. P. 99(a) 21 Tex. R. Civ. P. 99(b), (d) 22 Tex. R. Civ. P. 107 22
Tex. R. Civ. P. 122 22, 23
Appellant's First Amended Brief No. 03-16-00058-CV Tex. R. Civ. P. 239 22
Statutes
Tex. Lab. Code 406.001 et seq 7 Texas Constitution Article 5 Section 9 18
Appellant's First Amended Brief No. 03-16-00058-CV STATEMENT OF THE CASE
This case stems from a personal injury lawsuit filed against
Appellee in the 419th District Court of Travis County, Texas. On March
8, 2008, while Appellant was in the usual course and scope of her duties
assigned by Appellee, she sustained an injury to her back with rushing
pain and suffering. After continued complaints of chronic back pain and
suffering, and several visits with the Doctors, an MRI revealed
permanent damage to the spinal cord, both the cervical and lumbar.
Appellant has been, remains and will remain under the care of Doctors.
Appellant was hired as a home healthcare aide for an elderly,
permanent paralyzed man, with duties involving, among other things,
constant lifting and moving the man client with no lifting assistance or
equipment. Appellee is a nonsubscriber to the Workers' Compensation
Insurance system, Texas Labor Code 406.001 et seq. Appellant is a pro
se litigant, the Trial Court dismissed this cause of action for want of
prosecution and with prejudice. Judgment by Default was proper
against Appellee in the trial Court. No hearings were scheduled for
Motions filed on September 11th and 12th 2011, no further
communication from the Court regarding those Motions.
Appellant's First Amended Brief No. 03-16-00058-CV STATEMENT REGARDING ORAL ARGUMENT
The facts and legal arguments in this case are adequately
presented in Appellant's brief. Oral argument is therefore not
necessary.
Appellant's First Amended Brief No. 03-16-00058-CV STATEMENT OF ISSUES PRESENTED
1. Whether the trial court abused its discretion in dismissing this case for want of prosecution with prejudice.
2. Whether the trial court abused its discretion by failing to set a hearing date for Appellant's Judgment by Default against Appellee.
Appellant's First Amended Brief No. 03-16-00058-CV STATEMENT OF FACTS
A. Introduction
Appellant is Cassandra Lampkin, proceeding pro se and in forma
pauperis. Appellee is Appellant's former employer, Lynn Brock ("Ms.
Brock") hired to care and assist her father Mr. Brock ("client"), an
elderly, permanent paralyzed man unable to walk and stand on his
own, including unable to care for himself. Appellee assigned what the
duties were for caring for her father, which included, among other
things, lifting and moving him. During the usual course and scope of
Appellant's employment with Appellee, Appellant injured her back
while lifting and moving the client (C.R. at 6-9). With rushing and
extreme pain to the back, Appellant went straight to the emergency
room for immediate observations and rehef. After continued complaints
of chronic pain and suffering, and making several visits to the Doctors,
and as the result of Appellee's deliberate negligence and failure to
furnish safe lifting equipment, among other things, to aid with assisting
the client, even after making several requests for this equipment,
Appellant sustained substantial damage to her spinal cord, becoming
permanently disabled, unable to regain full time employment (C.R. at 6-
10 Appellant's First Amended Brief No. 03-16-00058-CV 12). A magnetic resonance imaging test (MRI) revealed permanent
damage to the spinal cord, both the cervical and lumbar. Appellant has
been, remains and will remain under the care of Doctors, among other
things, for the rest of her life. Appellee is a nonsubscriber to Workers'
Compensation Insurance.
B. Procedural Background
Appellant filed her Original Petition on August 5, 2011 (see C.R. at 6-
12). On September 6, 2011, and despite being properly served on
August 23 and 26, 2011, Defendant filed a frivolous Motion to Quash
Service. Namely, Appellee's attorney at the time, Velva J. Price
("Price"), who later was sworn in as the District Clerk for Travis County
on or about January 2015, in which this case was on the Court's docket
under her discretion.
SUMMARY OF THE ARGUMENT
The trial Court abused its discretion and improperly dismissed
Appellant's case with prejudice, for want of prosecution. Appellant used
due diligence, as a reasonable prudent person would in the same or
similar circumstances, in not only perfecting service on the Appellee,
but also filing a timely Motion for Judgment by Default against
n Appellant's First Amended Brief No. 03-16-00058-CV Appellee. Appellee did not file a proper answer pursuant to the
Citations (CRs. at 13-14).
ARGUMENT AND AUTHORITY
The Trial Court Er red in Pis mis sing Appellant's Cas e with Prejudice for Want of Prosecution and abused its discretion.
The trial Court dismissed this case for want of prosecution and
with prejudice in favor of Appellees' Motion to Dismiss. The trial court
abused its discretion and violated Appellant's right to due process and
without Appellant's cause of action being adjudicated on the merits.
Unbeknownst to Appellant, a hearing on Appellee's Motion to Dismiss
for Want of Prosecution was held January 6, 2016. Prior to this Motion
being filed, on December 17, 2015, the parties had just communicated
by phone settlement negotiations to resolve this case. Appellant spoke
with Appellee's attorney, Mr. Ethan Goodwin ("Mr. Goodwin") and the
same week, Appellant received mail from the attorney's office and
signed for it not knowing it could have possibly been a Notice of Hearing
and that Appellee filed a Motion to Dismiss, giving rise to Mr.
Goodwin's trickery tactic to make Appellant assume the letter was
regarding his follow up communication negotiations into settlement of
12 Appellant's First Amended Brief No. 03-16-00058-CV this case. Mr. Goodwin is the same attorney that appeared at the
January 6th Hearing and failed to mention that he had just spoke with
Appellant by phone, on December 17, 2015, discussing settlement
negations for this case. In fact, looking at the Court Reporter's Report
("R.R.") (R.R. at 4 (3-12)), Mr. Goodwin do not even as much as give the
Court an indication that Appellant knew or should have known that
what she received by certified mail from his office and signed for, was a
Notice of the Hearing on his Motion to Dismiss. Mr. Goodwin could
have very well communicated his true motive was to file a Motion to
Dismiss, rather than misled Appellant with settlement negotiations on
the same day he filed this Motion to Dismiss, so that Appellant could
assume what she received in the mail from his office was follow up
communication regarding his initiation for settlement. Due to this
injury arising out of and in the course and scope of Appellant's
employment, and taking medications for relief with undesirable side
effects, Appellant required help and assistance with moving. Appellant
was in the process of moving and was pushed for time to be out of the
home she occupied and planned to open the letter as soon as she
recovered from the move, thinking it was further communication
13 Appellant's First Amended Brief No. 03-16-00058-CV regarding the settlement of this case Mr. Goodwin initiated on
December 17, 2015. Appellants' mistake in not opening the letter right
away was not an intentional failure to appear to the Hearing.
Appellant then learned her case had been dismissed for want of
prosecution and with prejudice from the Order granting Appellees'
Motion in January 2016 (C.R. at 72). Dismissal with prejudice
constitutes an adjudication on the merits and operates as if the case
had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d
611, 612 (Tex. 1999); Mossier v. Shields, 818 S.W.2d 752, 754 (Tex.
1991); Sommers v. Concepcion, No. 14-98-00053-CV, 2000 WL 205192,
*10 (Tex. App. - Houston [14th Dist.] February 24, 2000, pet. denied);
Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 9 (Tex. App. -
Fort Worth 1997, no writ). Thus, orders dismissing cases with prejudice
have full res judicata and collateral estoppel effect, barring subsequent
relitigation of the same causes of action or issues between the same
parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 660-31
(Tex. 1992); Sommers, 2000 WL at *10; Martin, 991 S.W.2d at 9;
Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. - Houston [1st
Dist.] 1998, no pet.); McConnell v. Attorney General of Texas, 878
14 Appellant's First Amended Brief No. 03-16-00058-CV S.W.2d 281, 283 (Tex. App. - Corpus Christi 1994 no writ). The trial
Court did not let Appellant cure any procedural defects, if any, and
failed to schedule hearings on various Motions filed in the Court, (C.Rs.
18-19 & 24-26). If Appellant lacked prosecuting her case, it was due to
the lack of communication she receive from the Court and the conflict of
interest with Appellees' former attorney, elected District Clerk of this
same Court.
Standard of Review
This Court review a trial court's rilling dismissing a case for want
of prosecution for an abuse of discretion. See Smith v. Babcock &
Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam);
Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App. -
Dallas 2001, pet. denied) (per curiam). A trial court abuses its
discretion when it acts "without reference to any guiding rules or
principles." That is, when it acts in an arbitrary and unreasonable
manner. Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d
733, 737 (Tex. App. -Waco 2005, pet. denied).
A dismissal for want of prosecution is not a trial on the merits,
and therefore dismissal with prejudice is improper. Maldonado v.
15 Appellant's First Amended Brief No. 03-16-00058-CV Puente, 694 S.W.2d 86, 92 (Tex. App. - San Antonio 1985, no writ). An
order of dismissal for want of prosecution is not an adjudication of the
rights of the parties; rather, it simply places the parties in the position
they were in prior to fihng the suit. Melton v. Ryander, 727 S.W.2d 299,
303 (Tex. App. - Dallas 1987, writ refd n.r.e.). If a trial court
improperly dismisses a case for want of prosecution with prejudice, the
appellate court should modify the judgment to strike the words "with
prejudice." See id.
A trial court has both the inherent power and authority under rule
165a to dismiss a lawsuit for the party's failure to prosecute it with due
diligence. Veterans'Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.
1976). A trail court's authority to dismiss for want of prosecution stems
from rule 165a of the Texas Rules of Civil Procedure and from the
court's inherent power. Villarreal, 994 S.W.2d at 630. A trial court can
dismiss for want of prosecution under the following three situations: (1)
when a party seeking affirmative rehef fails to appear for any hearing
or trial of which the party had notice, (2) when the case is not disposed
of within the time standards of the supreme court, or (3) when the trial
court finds that the case has not been prosecuted with due diligence.
16 Appellant's First Amended Brief No. 03-16-00058-CV City of Houston v. Robinson, 837 S.W.2d 262, 264-65 (Tex. App. -
Houston [1st Dist.] 1992, no writ). After learning Appellant's case was
dismissed for want of prosecution, and with prejudice, Appellant
received notice of the January 6th Hearing but mistaken this as follow
up communication with Appellees' attorney initiating settlement
negotiation on December 17, 2015. Appellant, assuming this is what
the letter was for, did not open it immediately because, with help and
assistance, she was in a pressing situation with moving and not able to
do this kind job on her own because of the injury she sustained while
she was in the usual scope of course of her employment with Appellee.
Mr. Goodwin was aware of Appellant's moving. No hearing set for
Appellant's Judgment for Default (C.R. 18-19) against Appellee, and no
hearing set for Appellee's Motion to Quash Process of Service (C.R. 15-
16).
To decide the diligence issue, trial courts consider the entire
history of the case, including whether the plaintiff requested a trial
setting, the amount of activity in the case, the passage of time, and the
plaintiffs excuses for delay. Scoville, 9 S.W. 3d at 204; Christian, 985
S.W. 2d at 514-15. No single factor is dispositive. Scoville, 9 S.W. 3d at
17 Appellant's First Amended Brief No. 03-16-00058-CV 204; Christian, 985 S.W. 2d at 515. Reasonable diligence is generally a
question of fact. Christian, 985 S.W.2d at 515 (citing MacGregor, 941
S.W. 2d at 75-76).
This case not being disposed of within the time standards of the
Supreme Court gives rise to a confhct of interest with the District
Clerk, Price, as well, who was Appellee's attorney during the beginning
of this (C.Rs. 15-16 & 24-26,). This warrants an investigation into her
handling of this case for any judicial misconduct. A District Clerk is
designated as the custodian of all records relating to or lawfully
deposited in the clerk's office, such as pleadings and papers that are
part of any cause of action, civil or criminal, in the courts served by the
District Clerk, including prepare docketing causes for hearings and
trials. Texas Constitution Article 5 Section 9. Because District Clerks
have influence over the Court's docket, they should disclose actual or
potential conflict of interests between pubhc duty and personal interest.
Price failed to raise this concern. In fact, there was no communication
from the Court to Appellant regarding any procedural flaws that needed
to be corrected by Appellant. Appellant exercised due diligence with
prosecuting her case, there was no communication from the Court
18 Appellant's First Amended Brief No. 03-16-00058-CV regarding the Motions that were filed. Appellee filed a frivolous Motion
quashing service, and filed her first original answer over four (4) years
after the commencement of this lawsuit, on December 17, 2015 (C.Rs.
47-50).
A trial court's authority to dismiss cases for want of prosecution
does not confer upon it the authority to adjudicate and deny the merits
of the dismissed claim. Gracey v. West, 422 S.W.2d 913, 917 (Tex.
1968); Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App. - Houston [1st
Dist.] 1981, no writ) ("a judgment on the merits should not be made
until the plaintiff has had his day in court"). The Texas Supreme Court
has long held that "a htigant may refile an action that has been
dismissed for want of prosecution, since the merits of such an action
remain undecided." Rizk v. Mayad 603 S.W.2d 773, 775 (Tex. 1980);
Gracey, 422 S.W.2d at 917. The Texas Supreme Court held in the
Rideaux case that the order of dismissal was not an adjudication on the
merits; therefore, the court erred in dismissing the suit with prejudice,
and should have properly ordered a dismissal without prejudice. Texas
Attorney General v. Abbs, 812 S.W.2d 605, 608 (Tex. App. - Dallas 1991,
19 Appellant's First Amended Brief No. 03-16-00058-CV no writ); Melton v. Ryander, 727 S.W.2d 299, 303 (Tex. App - Dallas
1987, writ refd n.r.e.).
Judgment by Default was proper in the Trial Court against Appellee.
"P]n order for a default judgment to be properly rendered, the
record must affirmatively show, . . . either an appearance by the
defendant, proper service of citation on the defendant, or a written
memorandum of waiver."Marro£, 277 S.W. 3d at 378. In this case, the
record affirmatively show that defendant made an appearance and the
citation on the defendant was properly served.
Once a Plaintiff has filed his petition within the statute of
hmitations period, he must exercise due dihgence in serving citation to
interrupt the running of hmitations. Holmes v. Tex. Mex. Ins. Co., 335
S. W. 3d 738 (Tex. App. - El Paso, 2011, reh'g denied). Due dihgence is
determined by looking at not only the time taken to perfect service, but
also the effort expended by the Plaintiff in securing service. Carter v.
McFadyen, 93 S.W. 3d 307, 313 (Tex. App. -Houston [14th Dist.] 2002,
writ denied). A Plaintiff is not required to use the highest degree of
dihgence to procure service, but is required to use that degree of 20 Appellant's First Amended Brief No. 03-16-00058-CV dihgence that an ordinary prudent person would have used under the
same or similar circumstances, and is required to act dihgently up until
the time the defendant was served. Holmes v. Tex. Mex. Ins. Co., 335
S.W. 3d 738 (Tex. App. -El Paso, 2011, reh'g denied); Belleza-Gonzalez
v. Villa, 57 S.W. 3d 8, 12 (Tex. App. -Houston, [14* Dist.] 2001, no
writ). The Trial Court found no lack of dihgence in issuing and serving
citation in this case. When a court finds that there was a lack of
dihgence as a matter of law, it is because there was not an explanation
for why there was a delay in issuing and serving citation, or the excuse
given was one which affirmatively established a lack of dihgence.
Sanchez v. Providence Memorial Hospital, 679 S.W. 2d 732 (Tex. App. -
El Paso, 1984, no writ). A defendant's answer must be filed by 10 a.m.
on the Monday next following the expiration of twenty days after the
date of service. Tex. R. Civ. P. 99(b). Answer day for Defendant was
August 29, 2011. Appellee files its first response, a frivolous Motion to
Quash Service, on September 6, 2011. A citation is an official notice
from a court officer, Tex. R. Civ. P. 99(a), is accompanied by the
petition, Tex. R. Civ. P. 99(d), and warns recipients that they must
answer by a stated deadline or "judgment by default may be rendered
21 Appellant's First Amended Brief No. 03-16-00058-CV for the relief demanded in the petition!' See Tex. R. Civ. P. 4; 99(b).
Appellees' Original Answer was filed December 17, 2015 (C.Rs. 47-50).
See Tex. R. Civ. P. 4. There is nothing in the record to indicate that
defendant answered the suit in a timely manner pursuant to Tex. R.
Civ. P. 99 et seq. At any time after a defendant is required to answer,
the plaintiff may take a default judgment if no answer is filed, provided
that the citation with the officer's return thereon shall have been on file
with the clerk for ten days, (C.Rs. 13-14) exclusive of the day of fihng
and the day of judgment. Tex. R. Civ. P. 107; 239. No advance notice of
a hearing is required for a no-answer default judgment. Clements v.
Barnes, 822 S.W.2d 658, 660 (Tex. App. - Corpus Christi 1991), reVd on
other grounds, 834 S.W.2d 45 (Tex. 1992).
On September 6, 2011, Appellee filed a frivolous Motion to Quash
Process of Service (C.Rs. 15-16). This Motion was not granted or
entertained by the trial Court. No hearings were set by the Court. The
purpose of a motion to quash is to challenge defective jurisdictional
allegations, defective service of process, and defects in the citation. See
Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)
(motion to quash, allowing defendant more time to answer under Rule
22 Appellant's First Amended Brief No. 03-16-00058-CV 122). A Motion to Quash is made available in Texas by Rule 122. Rule
122 provides:
If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at the that time, and if he fails to do so, judgment by default may be rendered against him.
Defendant failed to file a timely answer attacking Appellant's
prima facie case. Generally, a defendant's failure to answer a petition
equates to an admission of all facts properly pleaded in plaintiffs
petition, except as to unliquidated damages, as well as a waiver of any
affirmative defenses. Gardner v. U.S. Imaging, 21A S.W.3d 669, 671
(Tex. 2008); Texaco Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App. -
Houston [1st Dist] 2004, no pet.); Simon v. BancTexas Quorum, N.A.,
754 S.W.2d 283, 286 (Tex. App. - Dallas 1988, writ denied). Assuming
the facts in the petition set out a cause of action, a default judgment
conclusively establishes the defendant's liability. Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). More than four
(4) years later after fihng this lawsuit against Appellee, and after
initiating settlement of this case by phone, Appellee files its Original 23 Appellant's First Amended Brief No. 03-16-00058-CV Answer (C.Rs. 47-50) on December 17, 2015. As stated above, Default
Judgment against Appellee was proper in this case.
CONCLUSION
Appellants' failure to prosecute her case, if the failure lies with
her, was due to the lack of communication and access she received from
the trial Court. Velva Price, once the Appellees' attorney gives rise to
the confhct of interest against Appellant for the lack of communication
and access with litigating her case properly before the Court. Appellant
did not intentionally fail to prosecute her case with due diligence, she
did not fail to not attend the Hearing set in the trial Court. Appellant
assumed her case was still pending in the trial Court and was merely
waiting for a response from the Court regarding the Motions that were
filed.
A dismissal for want of prosecution is not a trial on the merits,
and therefore dismissal with prejudice is improper. Maldonado v.
Puente, 694 S.W.2d 86, 92 (Tex. App. - San Antonio 1985, no writ). An
order of dismissal for want of prosecution is not an adjudication of the
rights of the parties; rather, it simply places the parties in the position
they were in prior to fihng the suit. Melton v. Ryander, 727 S.W.2d 299,
24 Appellant's First Amended Brief No. 03-16-00058-CV 303 (Tex. App. - Dallas 1987, writ refd n.r.e.). If a trial court
improperly dismisses a case for want of prosecution with prejudice, the
appellate court should modify the judgment to strike the words "with
The Texas Supreme Court has long held that "a litigant may refile
an action that has been dismissed for want of prosecution, since the
merits of such an action remain undecided." Rizk v. Mayad 603 S.W.2d
773, 775 (Tex. 1980); Gracey, 422 S.W.2d at 917. The Texas Supreme
Court held in the Rideaux case that the order of dismissal was not an
adjudication on the merits; therefore, the court erred in dismissing the
suit with prejudice, and should have properly ordered a dismissal
without prejudice. Texas Attorney General v. Abbs, 812 S.W.2d 605, 608
(Tex. App. - Dallas 1991, no writ); Melton v. Ryander, 727 S.W.2d 299,
303 (Tex. App - Dallas 1987, writ refd n.r.e.).
Generally, a defendant's failure to answer a petition equates to an
admission of all facts properly pleaded in plaintiff's petition, except as to
unliquidated damages, as well as a waiver of any affirmative defenses.
Gardner v. U.S. Imaging, 21A S.W.3d 669, 671 (Tex. 2008); Texaco Inc.
v. Phan, 137 S.W.3d 763, 769 (Tex. App. - Houston [1st Dist]
25 Appellant's First Amended Brief No. 03-16-00058-CV 2004, no pet.); Simon v. BancTexas Quorum, N.A., 754 S.W.2d 283, 286
(Tex. App. - Dallas 1988, writ denied). Assuming the facts in the
petition set out a cause of action, a default judgment conclusively
estabhshes the defendant's liability. Morgan v. Compugraphic Corp.,
675 S.W.2d 729, 731 (Tex. 1984).
To decide the dihgence issue, trial courts consider the entire
history of the case, including whether the plaintiff requested a trial
setting, the amount of activity in the case, the passage of time, and the
plaintiffs excuses for delay. Scoville, 9 S.W. 3d at 204; Christian, 985
S.W. 2d at 514-15. No single factor is dispositive. Scoville, 9 S.W. 3d at
204; Christian, 985 S.W. 2d at 515. Reasonable dihgence is generally a
question of fact. Christian, 985 S.W.2d at 515 (citing MacGregor, 941
S.W. 2d at 75-76). Appellant was in settlement negotiation with
Appellee's attorney on December 17, 2015.
26 Appellant's First Amended Brief No. 03-16-00058-CV PRAYER FOR RELIEF
Appellant respectfully requests this Court Reverse the trial
Court's decision and award Appellant a new trial; and/or Order
Mediation to resolve the settlement of this case; and/or Rendered a
judgment in favor of Appellant, together with pre-judgment interest
(from the date of the injury through the date of judgment) at the
maximum rate allowed by law, together with post-judgment interest at
the legal rate, costs of court, together with reimbursing the Government
Insurance for the necessary costs for medical assistance and treatment
Appellant received (C.R. at 6-12), and for Appellant's time; and such
other and further relief to which the Appellant may be entitled at law
this Court deems fit and proper.
Respectfully submitted,
\AAcfr?i&6i4 ^^2^7. Cassandra Lampkin, Appellant, Pro Se PO Box 140091 Austin, Texas 78714 (512) 999-4965 cassandralampkin@yahoo.com
27 Appellant's First Amended Brief No. 03-16-00058-CV CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. P. 9.5, Appellant hereby certify that a
true and correct copy of the foregoing document has been served by
First Class US Certified Mail - Return Receipt Requested on this, 11th
day of May, 2016 as follows:
Mr. Ethan F. Goodwin CLARK, TREVINO & ASSOCIATES Mailing Address: PO Box 258829 Oklahoma City, Oklahoma 73125-8829
Attorney for Appellee Lynn Brock
Cassandra Lampkin, Appellant, Pro Se PO Box 140091 Austin, Texas 78714 (512) 999-4965 cassandralampkin@yahoo.com
28 Appellant's First Amended Brief No. 03-16-00058-CV CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), Appellant
certify that this Amended, Brief was prepared with Microsoft Word 2013
using 14-point typeface for aU text, and according to the program's
word-count function, the sections covered by TRAP 9.4(i)(l) contains
3,223 words from the Summary of the Argument to the Prayer for
Rehef.
Cassandra Lampkin, Appellant, Pro Se PO Box 140091 Austin, Texas 78714 (512) 999-4965 cassandralampkin@yahoo.com
29 Appellant's First Amended Brief No. 03-16-00058-CV TABl
30 Appellant's First Amended BriefNo. 03-16-00058-CV Filed in The District Court of Travis County, Texas
JAN -6 2016 ^V~ Cause No. D-l-GN-11-002366 At // lOf
CASSANDRA LAMPKIN IN THE DISTRICT COURT
VS. TRAVIS COUNTY, TEXAS
LYNN BROCK 419TH JUDICIAL DISTRICT
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR WANT OF PROSECUTION
On this day came Defendant Lynn Brock and moved the Court to dismiss this suit with
prejudice, as to said Defendant, for want of prosecution. It appears to the Court that this Motion
should be granted.
IT IS, THEREFORE, ORDERED that this suit against Defendant Lynn Brock shall be
and is hereby dismissed with prejudice to the refiling of same or similar cause of action with
costs of Court adjudged against the parties incurring same.
SIGNED this (p day of //a*u^u^ / ,2016.
Respectfully submitted:
BY: Goodw TBN: 24064492 Clark, Trevino & Associates Mailing Address: P.O. Box 258829 Oklahoma City, OK 73125-8829 Physical Address: 1701 Directors Boulevard, Suite 920 Austin, Texas 78744 Telephone: (512) 445-1580 Facsimile: (512) 383-0503 ethan. goodwin@farmersinsurance.com
Attorneys for Defendant Lynn Brock
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