Larry Joe Morgan v. Richard Scott Walker ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00360-CV
___________________________
LARRY JOE MORGAN, Appellant
v.
RICHARD SCOTT WALKER, Appellee
On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-282599-15
Before Walker, Kerr, and Pittman, JJ.
Per Curiam
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Larry Joe Morgan, an incarcerated inmate appearing pro se in this
court, appeals from the trial court’s order dismissing his case for want of prosecution.
In two issues, Morgan argues that the trial court violated his constitutional rights and
abused its discretion by dismissing his case for want of prosecution. Because the trial
court did not violate Morgan’s constitutional rights and did not abuse its discretion by
dismissing Morgan’s case, we will affirm.
II. PROCEDURAL BACKGROUND
In January 2016, Morgan filed suit against Appellee Richard Scott Walker.
According to Morgan’s pleadings, Appellee was appointed to represent Morgan
during his criminal trial. After a jury found Morgan guilty of aggravated assault with a
deadly weapon, and he was sentenced to twenty years’ confinement, Morgan sued
Appellee, alleging that Appellee had violated the Texas Deceptive Trade Practices Act
and had committed legal malpractice.1 Appellee answered and filed a general denial
the following month.
In March and April 2016, Morgan propounded discovery requests on Appellee
and filed copies in the trial court. In May and June 2016, Morgan sent letters to the
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Morgan included a jury demand with his petition.
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trial court inquiring about the status of a motion-to-compel hearing. A year then
elapsed without any filings from Morgan in the trial court.2
On June 15, 2017, the trial court sent the parties notice of its intent to dismiss
the case, stating that
[i]n accordance with [r]ule 165a, the above-referenced case will be
dismissed for want of prosecution on or about July 31, 2017, unless the
parties advise the court in writing that good reason exists for the
retention of this case on the [c]ourt’s docket. In order for this case to be
removed from the dismissal docket, either party shall present a proposed
motion with an order to retain, an order submitting this case to
mediation, or an order setting this case for trial on or before June 26,
2017.[3]
Neither party filed any of the items specified in the trial court’s notice of dismissal.
On September 29, 2017, the trial court ordered Morgan’s case dismissed for
want of prosecution pursuant to Texas Rule of Civil Procedure 165a and for failing to
comply with the dismissal notice.4 Morgan then perfected this appeal.5
2
In June 2016, Morgan filed an appeal in this court based on the incorrect
presumption that the trial court had dismissed his case. See Morgan v. Walker, No. 02-
16-00219-CV, 2016 WL 4395803, at *1 (Tex. App.—Fort Worth Aug. 18, 2016, no
pet.) (mem. op.). We dismissed that appeal in August 2016 because there was no
signed judgment or appealable order. See id.
Because the original clerk’s record did not contain the dismissal notice, we
3
requested the trial court clerk to supplement the record. See Tex. R. App. P. 34.5(c).
4
Although the dismissal order states that the dismissal notice was dated July 31,
2017, the dismissal notice was signed June 15, 2017, and set a proposed dismissal date
of July 31, 2017.
5
Although given the opportunity, Appellee did not file an appellate brief.
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III. NO CONSTITUTIONAL-RIGHTS VIOLATION
In his first issue, Morgan argues that the trial court violated his constitutional
rights under the First, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteen
Amendments to the United States Constitution. Morgan contends that the trial court
erred by dismissing his suit for want of prosecution without first allowing him an
opportunity to amend his pleading. The trial court’s dismissal order reveals that
Morgan’s case was dismissed because he failed to file any of the items specified in the
dismissal notice that would have allowed his case to proceed. The trial court thus did
not dismiss Morgan’s case based on any perceived pleading deficiency that Morgan
now claims.
Morgan makes no argument connecting the dismissal of his case to a violation
of his constitutional rights under the various constitutional amendments he lists in his
brief. Our review of the record does not reflect that Morgan’s constitutional rights
were violated; the trial court informed Morgan of its intent to dismiss Morgan’s case
for want of prosecution under rule 165a, gave him the opportunity to file documents
to retain the case on the docket, and waited for three and a half months after the
notice before dismissing the case.
Moreover, after the dismissal order, Morgan had the opportunity to file a
motion for reinstatement in which he could have raised his alleged constitutional
violations, but he failed to file such motion and therefore waived any alleged due-
process violations. See Wright v. Tex. Dep’t of Crim. Justice-Inst. Div., 137 S.W.3d 693,
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695 (Tex. App.—Houston [1st Dist.] 2004, no pet.). To the extent Morgan’s first
issue attempts to raise constitutional violations other than due process, we hold that
such arguments are inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring brief to
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record”); Fredonia State Bank v. Gen. Am. Life Ins. Co.,
881 S.W.2d 279, 284–85 (Tex. 1994) (recognizing long-standing rule that error may be
waived due to inadequate briefing). Accordingly, we overrule Morgan’s first issue.
IV. NO ABUSE OF DISCRETION SHOWN BY DISMISSING CASE
FOR WANT OF PROSECUTION
In his second issue, Morgan argues that the trial court abused its discretion by
dismissing his case for want of prosecution.6
We review a trial court’s order dismissing for want of prosecution for an abuse
of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court can
dismiss for want of prosecution (1) when a party seeking affirmative relief fails to
appear for any hearing or trial of which the party had notice, (2) when the case is not
disposed of within the time standards promulgated by the supreme court, or (3) when
the trial court finds that the case has not been prosecuted with due diligence. Wright,
137 S.W.3d at 696. See generally Tex. R. Civ. P. 165a.
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Morgan reiterates in his second issue his argument that the trial court should
have allowed him to replead because his “error could be remedied through more
specific pleading.” But as set forth above, Morgan’s case was not dismissed based on
any perceived pleading error but rather due to Morgan’s failure to prosecute his case.
5
Morgan initiated his case in January 2016. After filing discovery and sending
letters to the trial court, Morgan allowed a period of approximately one year to elapse
without communicating with the trial court. At the time of dismissal, the case had
been pending for twenty months, which is outside the time standards promulgated by
the Texas Supreme Court for civil jury cases. See Tex. R. Jud. Admin. 6.1(b)(1)
(directing district courts to dispose of civil jury trial cases within eighteen months).
Because of the year-long inactivity in the case, the length of time the suit had been
pending, and the lack of any explanation for the delay, the trial court could have
properly found that Morgan was not pursuing his case with due diligence. See
Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 730 (Tex. App.—San Antonio
2012, pet. denied) (holding no abuse of discretion in dismissing case for want of
prosecution because suit had been pending for seventeen months, there were fifteen
months of inactivity, and no excuse for delay). Accordingly, we hold that the trial
court did not abuse its discretion by dismissing Morgan’s case for want of
prosecution, and we overrule Morgan’s second issue.
V. CONCLUSION
Having overruled Morgan’s two issues, we affirm the trial court’s order
dismissing Morgan’s case for want of prosecution.
Per Curiam
DELIVERED: September 27, 2018
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