 
 

                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-13-00092-CV
                            ____________________

                     PATRICIA ANN POWERS, Appellant

                                         V.

      VICTOR MORQUECHO AND ANDREA SANDOVAL, Appellees
_______________________________________________________             ______________

                    On Appeal from the 284th District Court
                         Montgomery County, Texas
                       Trial Cause No. 12-01-00572 CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Patricia Ann Powers sued Victor Morquecho and Andrea Sandoval for

injuries that Powers alleged she incurred from a bite by Morquecho’s and

Sandoval’s dog. Powers requested a bench trial. The trial court dismissed the case

for want of prosecution. In this appeal, Powers contends the trial court erred in

dismissing the case. We affirm the trial court’s judgment.

      The clerk’s record includes a cover letter that is dated May 1, 2012, and

addressed to Powers at the address provided in her original petition. Through this

letter, the trial court notified Powers that the enclosed discovery control plan would

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control the disposition of the case, and that the trial and call dates were firm and

not subject to change.       That letter, the discovery control order, and a trial

preparation order each notify Powers of the pre-trial conference and trial setting for

January 28, 2013, at 9 a.m. Also, on May 1, 2012, the trial court signed an order

referring the matter to alternative dispute resolution. Powers acknowledged the

dispute resolution order on a document Powers filed with the trial court on

September 12, 2012. That document informs the trial court that Powers’s address

had changed.

      The record includes the bailiff’s certificate, which indicates that the bailiff

called Powers’s name in the corridor outside the courtroom on January 28, 2013. In

the order dismissing the case, the trial court found that on May 7, 2012, the case

was set for non-jury trial on January 28, 2013, and that notice was sent to Powers

and the defendants. The order recites that the case was called to trial on January

28, 2013, at 9 a.m., and that Morquecho and Sandoval appeared through their

attorney, but Powers did not appear.

      Powers failed to file a verified motion to reinstate the case. See Tex. R. Civ.

P. 165a(3). Powers did not assert a claim of lack of notice in the trial court, but

raises the issue for the first time in a notice of appeal.

      Powers argues that she did not receive notice of the trial, but the order of

dismissal recites that notice was sent and that recital is not contradicted in the

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record. The transmittal letter shows that the notice was sent to the address Powers

provided to the trial court. The trial court’s May 1, 2012 docket control order

states, in underlined and bold upper-case letters, that failure to appear at the 9 a.m.

docket call on January 28, 2013 would be grounds for dismissal for want of

prosecution.

      A trial court may dismiss a case for want of prosecution if the plaintiff fails

to appear for the trial. See Tex. R. Civ. P. 165a(1). The required notice is satisfied

when the trial court notifies the parties to appear in court and warns that a failure to

appear will result in a dismissal for want of prosecution. Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 851-52 (Tex. 2004). The trial court’s notices informed

Powers of the date and time where she must appear and the consequences of her

failure to appear. We conclude that the trial court did not abuse its discretion by

dismissing the case. See id. The trial court’s judgment is affirmed.

      AFFIRMED.

                                               ________________________________
                                                         CHARLES KREGER
                                                             Justice

Submitted on January 2, 2014
Opinion Delivered March 6, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.




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