KENDRICK RAY MILES v. THE STATE OF TEXAS (Other)

State: Texas

Docket No: PD-0910-08

Case Date: 11/05/2008

Plaintiff: KENDRICK RAY MILES

Defendant: THE STATE OF TEXAS (Other)

Preview:George B. Rabe v. Wright Materials, Inc. & Duval
County, Texas--Appeal from 229th Judicial District
Court of Duval County
MEMORANDUM OPINION
No. 04-03-00699-CV
George B. RABE,
Appellant
v.
WRIGHT MATERIALS, INC. and Duval County, Texas,
Appellees
From the 229th District Court, Duval County, Texas
Trial Court No. DC-01-175
Honorable Alex Gabert, Judge Presiding
Opinion by: Paul W. Green, Justice
Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: November 3, 2004
AFFIRMED as REFORMED
George B. Rabe complains that his lawsuit should not have been dismissed for want of prosecution. We find no error
in the trial court's ruling except that the order of dismissal should have been without prejudice.
Because the issues in this appeal involve the application of well-settled principles of law, we reform and affirm the
trial court's order in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:
1. Although the trial court's notice of dismissal failed to adequately notify Rabe of its intent to dismiss the case and the
reasons therefor, see Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999), this failure of due
process was cured when Rabe filed a timely motion to reinstate which was heard and ruled on by the trial court. See
Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.-San Antonio 2002, pet. denied).
2. To reinstate his case, Rabe had to prove he pursued the case with diligence. See Rainbow Home Health, Inc. v.
Schmidt, 76 S.W.3d 53, 57-58 (Tex. App.-San Antonio 2002, pet. denied). The record, however, fails to show that
anything substantive was done in the case for twenty months. Accordingly, the trial court did not abuse its discretion in
dismissing the case for want of prosecution. See id. at 55-56 (applying abuse of discretion standard of review to
motion to reinstate).
3. However, a dismissal for want of prosecution is not a decision on the merits. Maldonado v. Puente, 694 S.W.2d 86,
92 (Tex. App.-San Antonio 1985, no writ). The trial court should not have dismissed Rabe's case with prejudice. See
id.
The trial court's order is reformed so that the case is dismissed without prejudice and, as reformed, it is affirmed.
Paul W. Green, Justice
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