Jimmy T. Hatchett

• Court: Court of Appeals of Texas
• Decided: February 28, 2013
• Docket: 01-11-00787-CV
• Status: Published

Opinion

Opinion issued February 28, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00787-CV ——————————— JIMMY T. HATCHETT, Appellant

On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2009-01180

MEMORANDUM OPINION

Appellant, Jimmy T. Hatchett, appeals the trial court’s dismissal of his suit

against Jules Laird, Jr. 1 for want of prosecution. In his sole issue, Hatchett argues

1 Laird did not enter an appearance, and nothing in the record reflects that he was served or that he waived or accepted service. Furthermore, Hatchett does not raise any issues with respect to Laird on appeal. Therefore, there is no appellee for the purpose of this appeal. See Yilmaz v. McGregor, 265 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (“To be a ‘party’ to a lawsuit, one generally must be named in the pleadings and either be served, accept or waive that the trial court did not provide proper notice of its intent to dismiss his suit for

want of prosecution.

We affirm.

Background

On January 7, 2009, Hatchett, an inmate, filed suit against Laird alleging

breach of fiduciary duty, legal malpractice, and other causes of action arising out

of Laird’s representation of Hatchett in a criminal matter. The record contains a

citation issued to Laird that was returned as “not executed” due to a “bad address”

for Laird.

On July 14, 2010, the trial court dismissed the case for want of prosecution,

but on August 8, 2010, the trial court granted Hatchett’s motion to retain and

reinstated the case.

On September 7, 2010, Hatchett subsequently filed an unexecuted, unsigned

“summons” directed to Laird. On November 9, 2010, Hatchett moved for default

judgment, alleging that Laird had been given notice of the suit. The signature

block on the motion for default judgment contained a different address for Hatchett

than the one used on his original petition.

service, or make an appearance. Merely being named in a petition as a defendant does not make one a ‘party’ to the lawsuit.”); see also Showbiz Multimedia, LLC v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.— Houston [1st Dist.] 2009, no pet.) (noting that appellee must be party to trial court’s final judgment and someone against whom appellant raises issues or points of error in appellant’s brief). 2 On May 26, 2011, the trial court again dismissed the case for want of

prosecution. The order stated that the court notified the parties in writing of its

intent to dismiss the case for want of prosecution, and the order finally disposed of

Hatchett’s claims against Laird.

This appeal followed.

Analysis

In his sole issue, Hatchett argues that the trial court did not give him proper

notice of its intent to dismiss for want of prosecution because it sent the notice to

his old address, in spite of Hatchett’s having informed the court of his new address.

Hatchett does not argue that he did not receive the notice—he states in his brief,

“The cause was ultimately dismissed on 5-26-11, appellant received notice of this

action (1) month later after that notice had been delivered to his old address despite

repeated notice to the Court of the Appellant’s address change.”

The trial court had authority to dismiss the case for want of prosecution

under either Texas Rule of Civil Procedure 165a or under its inherent power. See

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 2009).

However, a party must be provided with notice and an opportunity to be heard

before a court may dismiss a case for want of prosecution. Id.; see TEX. R. CIV. P.

165a(1) (“Notice of the court’s intention to dismiss and the date and place of the

dismissal hearing shall be sent by the clerk . . . to each party not represented by an

3 attorney. . . .”). The failure to provide adequate notice of the trial court’s intent to

dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630.

Here, Hatchett argues that the trial court mailed the notice of intent to

dismiss for want of prosecution to his old address. However, he has provided no

evidence in the record of when or where the notice was sent, and he has provided

no evidence in the record that he did not receive actual notice. As the appellant,

Hatchett bears the burden to bring forward an appellate record that enables us to

determine whether his complaints constitute reversible error. See Enter. Leasing

Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam);

Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) (stating

that burden is on appellant to present sufficient record to show error requiring

reversal). Because the record does not support Hatchett’s claim that the trial court

sent the notice to the wrong address or that Hatchett did not receive actual notice,

we overrule his complaint.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Sharp, and Huddle. 4