Nawas v. R & S VENDING

920 S.W.2d 734, 1996 WL 38196
CourtCourt of Appeals of Texas
DecidedApril 16, 1996
Docket01-95-00569-CV
StatusPublished
Cited by54 cases

This text of 920 S.W.2d 734 (Nawas v. R & S VENDING) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nawas v. R & S VENDING, 920 S.W.2d 734, 1996 WL 38196 (Tex. Ct. App. 1996).

Opinions

OPINION

OLIVER-PARROT, Chief Justice.

This case involves an appeal from the trial court’s dismissal for want of prosecution 1 and its subsequent denial of appellant’s motion to reinstate. Instead of refiling the case, appellant, Fahim Nawas, individually and as next of friend of his minor child, Elias Nawas, brought this appeal. We affirm.

In two points of error, Nawas argues that the trial court abused its discretion by dismissing the case for want of prosecution and for denying the motion to reinstate.

Summary of Facts

. On July 19,1993, Fahim Nawas, the father of Elias Nawas, a 17-year-old minor child, filed an original petition on the child’s behalf claiming personal injuries as a result of a vending machine falling on the child in the laundry room at the Trails of Ashford Apartments. On June 17, 1994, a scheduling order was sent to all attorneys of record setting the case for trial during the two-week period beginning January 16, 1996. On December 22, 1994, Nawas’ attorney, S. Aftab Sharif, filed a Motion for Continuance asserting that he had not received the scheduling order and that he had learned about the trial setting for the first time on December 14, 1994. The prejudice asserted by Sharif was that he had not yet designated expert witnesses and that he had a business trip to London planned from January 18 to January 23, 1995, and a four-week vacation in Pakistan planned for February 24,1995.

After a hearing was held on January 9, 1995, the Motion for Continuance was denied. A pretrial conference was set for noon on January' 13, 1995, at which time the issues of the lack of receipt of notices and the complexity of the case were to be discussed. The conference was held as scheduled and the only evidence presented at the conference on the issue of notice was the testimony of the trial court coordinator who testified that, according to the court’s records, scheduling orders were sent to all attorneys of record.

The trial judge also inquired into the nature of Nawas’ case. The medical records on file revealed that the minor plaintiffs left knee was fractured in the accident, but had healed normally. Interrogatory answers indicated that the medical expenses incurred totaled $2,610. The judge postponed the trial setting to January 23, 1995, to allow Sharif additional time to prepare for trial, and to designate an expert. The pretrial conference was adjourned until January 17,1995.

Neither Nawas nor his attorney, Sharif, appeared for the pretrial conference on January 17, 1995. The trial coordinator was informed 30 minutes prior to the conference that Sharif was suffering from food poisoning. The judge requested that an affidavit supporting these facts be then faxed to the court. However, the court did not receive the affidavit until a week later. Consequently, the judge reset the pretrial conference to be held immediately before trial on January 23,1995.

On January 23, 1995, neither Nawas nor his attorney appeared for the pretrial conference or trial. The trial coordinator had been informed that Sharif had just returned from London, was suffering from an illness and would be unavailable for trial. The judge “determined as a fact that Plaintiffs attorney Mr. Sharif was attempting to avoid [the] denial of his Motion for Continuance by simply refusing to come to trial.”

The judge sent notice to all attorneys that the case would be reset one last time for January 24, 1995, and that failure to appear would result in a dismissal for want of prosecution. Again, neither Nawas nor his attorney of record appeared, but were represented by a different attorney for the purpose of requesting another continuance, which was denied.

Point of Error One

In their first point of error, appellants argue that the trial judge abused his discre[737]*737tion by dismissing the ease for want of prosecution.

Specifically, appellant contends that the cause was not on file for an unreasonable amount of time such that a discontinuance was warranted, that they diligently pursued the prosecution of this ease and that there would be no prejudice to appellees in a delay of this case by granting the continuance.

Throughout their brief, appellant failed to provide citations to the record in support of their arguments and their recitation of the statements of fact. The Texas Rules of Appellate Procedure require that an appellate brief include a fair, condensed statement of facts pertinent to the points of error raised, with references to the pages in the record where these facts may be found. Tex.R.App.P. 74(f). An appellate court is not required to search a record without guidance from an appellant to determine whether assertions regarding the facts of the case are valid. Anheuser-Busch Companies, Inc. v. Summit Coffee Co., 858 S.W.2d 928 (Tex.App.—Dallas 1993, writ denied). Notwithstanding appellant’s failure to provide proper citations to the record, we will address appellant’s two points of error.

The standard of review in a dismissal for want of prosecution and a denial of a motion to reinstate is whether the trial court has committed a clear abuse of discretion. State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984); Ellmossallamy v. Huntsman, 830 S.W.2d 299, 300 (Tex.App.—Houston [14th Dist.] 1992, no writ); Brown v. Howeth Inv., Inc., 820 S.W.2d 900, 903 (Tex.App.—Houston [1st Dist.] 1991, no writ). An abuse of discretion occurs if the trial court acts without reference to any guiding rules or principles or acted in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).

The Texas Rules of Civil Procedure afford a trial court discretion to dismiss a case for want of prosecution if a party seeking relief fails to appear for any hearing or trial of which the party had notice. City of Houston v. Thomas, 838 S.W.2d 296 (Tex.App.—Houston [1st Dist.] 1992, no writ); Tex.R.Civ.P. 165a(l). The trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting and the existence of reasonable excuses for delay. City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.App.—Houston [1st Dist.] 1992, no writ).

After appellants’ failure to appear at two hearings and one trial setting, the judge sent by fax a notice to all attorneys of record that the case would be reset one last time to 10:00 a.m. on January 24, 1995, and that failure to appear would result in dismissal for want of prosecution. The record reflects that neither appellants nor their attorney appeared for this final pretrial hearing and trial; however, another attorney appeared on their behalf solely for the purpose of requesting another continuance, which was denied.

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Bluebook (online)
920 S.W.2d 734, 1996 WL 38196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nawas-v-r-s-vending-texapp-1996.