Opinion
No. 05-11-00433-CV
06-12-2012
ROBERT BOYD, Appellant v. RONALD GULLEY AND ALL OTHER OCCUPANTS, Appellee
AFFIRMED; Opinion Filed June 12, 2012.
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-11-00359-C
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
Appellant Robert Boyd appeals from the trial court's order of dismissal. We affirm. Background
Appellant filed an action in forcible detainer for unpaid rent and possession of the property against appellee. The forcible detainer was granted, and Mr. Gulley (one of the appellees) filed his pauper's affidavit to perfect the appeal. The appeal was filed in the County Court at Law No. 3 (hereinafter referred to as "trial court"), and appellant filed a plea to the jurisdiction, refuting the timeliness of the pauper's affidavit. The trial court denied the plea to jurisdiction and called the case for trial. On the date of trial, appellant re-urged his plea to jurisdiction. The trial court refused to reconsider the plea to jurisdiction, noting "[t]hat was already dealt with" and warning appellant's counsel that "[i]f you don't want a trial today, I'll dismiss it for want of prosecution." Appellant's counsel declined to move forward with trial, stating in her brief on appeal that "the Court had no jurisdiction and any ruling, even one in Boyd's favor would be void." The trial court dismissed the case for the following reasons: (1) want of prosecution, (2) appellant brought forth no witnesses, and (3) there was a nonsuit as to appellees' claims.
Analysis
In a single issue, appellant contends the trial court erred in failing to dismiss a forcible detainer appeal when the tenant failed to timely file a pauper's affidavit. The entirety of appellant and appellees' briefs argue the merits of the trial court's decision to deny appellant's plea to the jurisdiction. However, this is not an appeal from the trial court's order on the plea to the jurisdiction. Instead, appellant's notice of appeal was "taken from the Court's March 24, 2011 Order dismissing Plaintiff's Claims for want of prosecution." We, therefore, will only address the order of dismissal. See Tex. R. App. P. 25.1.
We review a dismissal for want of prosecution for abuse of discretion. Crown Asset Mgmt., L.L.C. v. Loring, 294 S.W.3d 841, 844 (Tex. App.-Dallas 2009, pet. denied) (en banc). The 8-page transcript of the trial on the merits reflects appellant wished to re-urge his plea to the jurisdiction before the commencement of trial. The trial court refused to reconsider the plea and asked appellant's counsel to move forward with the trial. Appellant's counsel then proceeded to argue the timeliness of the pauper's affidavit, and the trial court again asked her to proceed with the trial in the case and call her first witness. The trial court further admonished counsel that, if she did not move forward, the trial court would dismiss the case for want of prosecution. When appellant's counsel called Mr. Gulley to the stand, the first question centered on the pauper's affidavit. The trial court interrupted, again notifying appellant's counsel that it was not reconsidering the plea to jurisdiction and asking counsel to proceed with the eviction case. Appellant's counsel respectfully declined to proceed with the prosecution of her client's case. On the record before us, we conclude the trial court did not abuse its discretion in dismissing the case for want of prosecution. See Crown Asset Mgmt., 294 S.W.3d at 844. We affirm the judgment of the trial court.
The transcription of the actual proceedings does not begin until page 4 of the transcript.
DAVID L. BRIDGES
JUSTICE
110433F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT BOYD, Appellant
V.
RONALD GULLEY AND ALL OTHER OCCUPANTS, Appellees
No. 05-11-00433-CV
Appeal from the County Court at Law No. 3 of Dallas County, Texas. (Tr.Ct.No. CC-11- 00359-C).
Opinion delivered by Justice Bridges, Justices FitzGerald and Lang.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellees Ronald Gulley and All Other Occupants recover their costs of this appeal from appellant Robert Boyd.
Judgment entered June 12, 2012.
DAVID L. BRIDGES
JUSTICE