in Re J.M.H., a Child

Opinion issued January 31, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00591-CV

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IN RE J.M.H., A CHILD

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Case No. 08-DCV-167174

MEMORANDUM OPINION

Appellant, Mark Parmer, petitioned the trial court to change the surname of

J.M.H., his biological minor son who was born during his previous marriage, to his

own surname. The trial court dismissed Parmer’s petition for want of prosecution.

In two issues, Parmer contends that the trial court abused its discretion by (1) not

changing J.M.H.’s surname to his own surname and (2) dismissing his petition

without conducting a trial.

We affirm.

Background

On September 24, 2008, Parmer filed a petition to change the surname of his

biological minor son, J.M.H., to his surname. Parmer alleged that J.M.H. was born

during his marriage to his former wife and that, although it was undisputed that

J.M.H. was his biological son, his former wife told him that she gave J.M.H. her

maiden name as his surname because “the insurance company would not insure the

child while having [Parmer’s] surname.” The record does not reflect that Parmer’s

former wife was ever served with the petition, nor does it reflect that she ever

entered an appearance in the proceedings.

On April 4, 2011, the trial court mailed Parmer a letter entitled “Notice of

Trial/Dismissal Setting.” This letter informed Parmer that the case was “set for

trial/dismissal” on May 23, 2011, at 10:00 a.m. and that he was responsible for

notifying all other parties and counsel of this setting. The letter also stated, “This

case may be dismissed for want of prosecution on date of the Trial/Dismissal

docket if by then, there is no announcement of ready with all preliminary matters

addressed or scheduled. There are no continuances. All resets must be granted by

the Court.”

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Because Parmer is incarcerated, the trial court issued a bench warrant to

ensure Parmer’s presence at the hearing. On May 23, 2011, the trial court held a

hearing, at which Parmer was present, and signed an order dismissing the case for

want of prosecution. No reporter’s record exists of this hearing.

Two days later, on May 25, 2011, Parmer filed a motion to dismiss “all

petitions and proceedings” in the case. In this motion, he stated that he was unable

to afford counsel, that he was “currently entwined with criminal legal matters with

regards to his innocence and his freedom,” and that he believed that once he

established his innocence, he and his former wife could come to a mutual

agreement concerning J.M.H. The trial court did not rule on this motion.

The Fort Bend County District Clerk notified Parmer that his petition had

been dismissed for want of prosecution. Parmer did not file a motion to reinstate

the case; he did, however, file a notice of appeal.

Dismissal for Want of Prosecution

In his first issue, Parmer contends that the trial court abused its discretion by

failing to change J.M.H.’s surname to his surname. In his second issue, Parmer

contends that the trial court erred by dismissing his case without conducting a trial.

We address these issues together.

A trial court has the authority to dismiss a suit for want of prosecution

pursuant to two sources: Texas Rule of Civil Procedure 165a and its own inherent

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power to dismiss when the plaintiff fails to prosecute the case with due diligence.

See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999);

Fox v. Wardy, 225 S.W.3d 198, 199 (Tex. App.—El Paso 2005, pet. denied); see

also TEX. R. CIV. P. 165a (providing that trial court may dismiss case for want of

prosecution when party seeking affirmative relief fails to appear for hearing or trial

or when case is not disposed of within time standards proscribed by Texas

Supreme Court).

The decision to dismiss a case for want of prosecution rests within the sound

discretion of the trial court, and we will disturb this decision only if it amounts to a

clear abuse of discretion. Fox, 225 S.W.3d at 199; Allen v. Rushing, 129 S.W.3d

226, 229 (Tex. App.—Texarkana 2004, no pet.) (“We review a trial court’s

dismissal of an inmate’s civil suit for want of prosecution for an abuse of

discretion.”). A trial court abuses its discretion when it acts in an arbitrary and

unreasonable manner, without reference to any guiding rules or principles. Fox,

225 S.W.3d at 200 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985)). When determining whether to dismiss a case for want

of prosecution, the trial court may consider the entire case, including the amount of

activity in the case, the length of time the case was on file, requests for a trial date,

and the existence of reasonable excuses for delay. See id. (citing Bilnoski v. Pizza

Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—Houston [14th Dist.] 1993, no writ) and

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City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex. App.—Houston [14th

Dist.] 1992, no writ)); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex.

App.—Dallas 2006, pet. denied) (listing same considerations and noting that no

single factor is dispositive).

If the order dismissing the case does not specify a reason for the dismissal,

we will affirm if any proper ground supports the dismissal. See Herrera v. Rivera,

281 S.W.3d 1, 6 (Tex. App.—El Paso 2005, no pet.); Fox, 225 S.W.3d at 200. The

appellant bears the burden of presenting a record demonstrating that the trial court

abused its discretion in dismissing the case. See Herrera, 281 S.W.3d at 6; Fox,

225 S.W.3d at 200. If the appellant fails to bring forth a record of the dismissal

hearing, we indulge every presumption in favor of the trial court’s findings and

presume that the evidence before the trial court was adequate to support its

decision. See Herrera, 281 S.W.3d at 6–7.

Here, Parmer filed his petition on September 24, 2008. At the time the trial

court dismissed the case for want of prosecution on May 23, 2011, the case had

been pending for more than two-and-a-half years with no activity. The record does

not reflect that Parmer ever served the respondent, his former wife and J.M.H.’s

mother, with the petition. See Allen, 129 S.W.3d at 231 (“Evidence of attempting

to serve the named defendants is one of many factors an appellate court may

consider in reviewing a trial court’s order dismissing a case for want of

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prosecution.”). No reporter’s record was taken of this hearing, and, therefore, the

record does not reflect what questions the trial court asked Parmer at the hearing,

whether Parmer offered any evidence at the hearing relevant to the issue of

whether he had prosecuted his suit with diligence, or whether the trial court

prohibited Parmer from offering any evidence at the hearing. See Fox, 225 S.W.3d

at 200 (“Fox complains that the trial court prohibited him from presenting any

evidence at the dismissal hearing, but the record does not reflect that Fox offered

or the court refused to consider any evidence relevant to whether Fox had

prosecuted his suit with due diligence.”). There is no indication that Parmer

presented any evidence explaining the delay in serving his ex-wife or

demonstrating that he had prosecuted his suit with diligence, and, because Parmer

failed to present a record of the dismissal hearing, we presume that the evidence

before the trial court supports its decision to dismiss the suit for want of

prosecution. See Herrera, 281 S.W.3d at 6–7; Cappetta v. Hermes, 222 S.W.3d

160, 164 (Tex. App.—San Antonio 2006, no pet.) (“To avoid dismissal, Cappetta

was required to show he exercised reasonable diligence in prosecuting the case.”).

Moreover, Parmer did not file a motion to reinstate, and, in fact, two days after the

dismissal hearing, Parmer filed his own motion to dismiss all petitions and

proceedings in the case. See Allen, 129 S.W.3d at 231 (considering fact that

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plaintiff did not file motion to reinstate when addressing whether plaintiff

diligently prosecuted his case).

We conclude that the record before us does not demonstrate that the trial

court abused its discretion when it dismissed Parmer’s petition for want of

prosecution. See Fox, 225 S.W.3d at 200 (holding that trial court did not abuse its

discretion in dismissing case for want of prosecution when suit had been on file for

seven months with minimal activity, citation was not issued and defendant was not

served until after court issued Rule 165a notice, plaintiff presented no evidence

that he offered and court refused to consider evidence relevant to whether he

prosecuted suit with due diligence, and plaintiff presented no evidence explaining

delay in service); Allen, 129 S.W.3d at 231 (noting, in affirming dismissal for want

of prosecution, that case was on file for thirteen months, record did not indicate

that plaintiff had contacted clerk’s office to effectuate service of process, and

plaintiff did not file motion to reinstate after dismissal). Because we conclude that

the trial court did not abuse its discretion when it dismissed Parmer’s petition for

want of prosecution, we need not address the merits of Parmer’s first issue

concerning whether he was entitled to have J.M.H.’s surname changed to his

surname. See Herrera, 281 S.W.3d at 6 (noting, if dismissal order does not specify

reason for dismissal, we affirm if any proper ground supports trial court’s

decision).

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We overrule Parmer’s first and second issues.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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