                              NUMBER 13-03-171-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROBERT TWIST,                                                                Appellant,

                                           v.

ROEL “ROBIE” FLORES, ET AL.,                                                Appellees.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
                Memorandum Opinion by Justice Vela

      Appellant, Robert Twist, appeals from trial court orders dismissing his case for want

of jurisdiction, denying his motion to reinstate, and granting a motion for summary

judgment in favor of one of the appellees. In multiple issues, Twist claims that the trial

court abused its discretion by: (1) dismissing the case for want of prosecution because a
bankruptcy stay as to one appellee was applicable to the other appellees because the

issues were so intertwined; (2) dismissing the case because all facts and circumstances

showed he exercised due diligence; (3) refusing to reinstate the case; and (4) failing to

make findings of fact. Twist also urges that the trial court erred by granting one of the

appellee’s motion for summary judgment. We affirm.

                                           I. BACKGROUND

        On June 18, 1999, Twist filed suit against appellees Roel “Robie” Flores, Maureen

Ball, Darlene L. Vale, Brenda Twist Griggs, Victoria Guerra and Manuel Guerra, III, arising

from a transfer of money from one of Twist’s bank accounts. He alleged that his former

wife, Brenda Griggs, wire transferred $175,000 from his account to a bank in Corsicana

and then filed a divorce action. In this case and others that have previously been before

this Court, Twist claims that the funds were his separate property as the result of a

personal injury settlement.1

        Brenda hired Vale to represent her in the divorce action. Twist hired Flores and Ball

to represent him. They ceased representing him in June 1996, but Twist claims they

actively concealed facts from him that would have assisted him in having those funds

returned.



        1
          See Twist v. McAllen Nat’l Bank, 294 S.W .3d 255 (Tex. App.–Corpus Christi 2009, no pet.); Twist
v. McAllen Nat’l Bank, 248 S.W .3d 351 (Tex. App.–Corpus Christi 2007, orig. proceeding); Twist v. Garcia,
No. 13-05-00321-CV, 2007 W L 2442363 (Tex. App.–Corpus Christi Aug. 30, 2007, no pet.) (m em . op.); In
re Twist, No. 13-07-00402-CV, 2007 W L 2052316 (Tex. App.–Corpus Christi Apr. 18, 2007, orig. proceeding);
Twist v. McAllen Nat’l Bank, No. 13-04-00613-CV, 2005 W L 1572738 (Tex. App.–Corpus Christi July 7, 2005,
no pet.) (m em . op.) (per curiam ); In re Twist, No. 13-04-00660-CV, 2004 W L 2985216 (Tex. App.–Corpus
Christi Dec. 21, 2004, orig. proceeding); Twist v. Twist, No. 13-97-00717-CV, 1999 W L 34973347 (Tex.
App.–Corpus Christi Jan. 28, 1999, no pet.).
.



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       Twist claims that in 1977 he employed Victoria and Manuel Guerra to represent him.

He argues that he was persuaded to enter into a Rule 11 agreement, whereby his funds

were to be returned. He urges that the Guerras, Vale, and Brenda conspired to defraud

him of the funds allegedly transferred by Brenda. Twist requested a jury trial and filed a

motion for trial setting.

       On April 28, 2000, the trial court set the motion for a hearing to be held on June 7,

2000. No trial date was set at the hearing on that date. On June 7, 2000, appellee Vale

filed a motion for summary judgment, primarily urging that she owed no duty to Twist

because she was representing Brenda in the divorce and was, therefore, adverse to him.

The trial court granted Vale’s summary judgment on December 27, 2000. Thereafter, on

January 26, 2001, Twist filed a “Motion to Reform Order granting Motion for Summary

Judgment to Darlene Vale.” No other action on this case was taken for two years, until the

Guerra appellees filed their motion to dismiss for want of prosecution pursuant to Texas

Rule of Civil Procedure 165 and the inherent powers of a court to manage its docket. See

TEX . R. CIV. P. 165. Twist filed a response on February 5, 2003.

       The trial court held a hearing on the motion to dismiss on February 5, 2003. At that

hearing, Twist called three witnesses, including himself. The first, Magda Solis, an

employee with the Hidalgo County trust fund department, testified that Twist asked her

many times about the status of a trial setting and she informed him that there was no

setting. Solis said that she is not the person to go to for a trial setting. She testified that

she told Twist that he would need to get a docket control conference and go to the court

coordinator or the judge to get a trial setting. Eliseo Borrego, a deputy clerk and records

custodian, testified that Twist had come into his office several times and would look at the

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file and the docket sheet. Borrego testified that he was not the one to go to for trial settings

and that the same procedure for setting cases for trial had been followed for the entire

thirteen years that he had been employed by the courts. He testified that he told Twist that

Twist would have to take up issues regarding a trial setting with the court coordinator.

       Twist testified that he filed a motion for trial setting on April 18, 2000. He stated that

he made several trips to the coordinator’s office after that. He also said he telephoned the

court on a number of occasions. He said the coordinator informed him that he would get

written notice when the case was set for trial. Twist stated that he had attempted to

prepare for trial by reading everything and speaking to potential counsel. He claimed that

he was ready to go to trial. But, he agreed that in 2003, there was nothing done to actively

pursue the case, except an affidavit that had been filed when Twist obtained counsel and

he did not dispute that there was no request for trial setting in 2002. Twist said that he had

not made a written request for trial setting after April 18, 2000, because he didn’t think he

needed to. Twist admitted that he did not make an inquiry about a trial setting in for all of

2001 and 2002, because he did not want to make a nuisance of himself and he could get

the same information from the docket sheet.

       Another hearing was held on March 10, 2003. At that hearing, Femia Rodriguez,

the former court coordinator for the 93rd District Court, testified that Twist would call and

come by the court. She would inform him that there was no setting on those occasions.

Joel Espinosa, the coordinator for the 93rd District Court since 2001, also testified that he

had looked through the file and had seen no activity since June 2000. According to

Espinosa, other than a single docket control conference, the record did not reflect any

other request by Twist to actively prosecute and request a trial setting.

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                           II. DISMISSAL FOR WANT OF PROSECUTION

A. Standard of Review and Applicable Law

         By issues two, three, and five, Twist claims that the trial court abused its discretion

in dismissing his case for want of prosecution. He claims that the evidence showed that

he was utilizing due diligence and had been deprived of a meaningful opportunity to be

heard.

         We review a dismissal for want of prosecution under a clear abuse of discretion

standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its

discretion by acting “without reference to any guiding rules or principles” or by acting

arbitrarily or unreasonably. E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923

S.W.2d 549, 558 (Tex. 1995); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A

trial court derives its authority to dismiss for want of prosecution from two sources: (1) rule

of civil procedure 165a, and (2) the trial court's inherent power. Garcia v. Barreiro, 115

S.W.3d 271, 275 (Tex. App.–Corpus Christi 2003, no pet.) (citing Villarreal v. San Antonio

Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999)); see TEX . R. CIV. P. 165a. Under Rule

165a, the trial court may dismiss when any party seeking affirmative relief fails to appear

for a hearing or trial when that party had notice of such hearing or trial. See TEX . R. CIV.

P. 165a(1); see also Barreiro, 115 S.W.3d at 275. Additionally, Rule 165a empowers the

trial court to dismiss a case when it is “not disposed of within the time standards

promulgated by the Supreme Court.” See TEX . R. CIV. P. 165a(2); see also Barreiro, 115

S.W.3d at 275. When a plaintiff fails to prosecute a case with due diligence, the trial court

may dismiss the case under its inherent authority. Barreiro, 115 S.W.3d at 275 (citing



                                                5
Villarreal, 994 S.W.2d at 630). “[A] party must be provided with notice and an opportunity

to be heard before a court may dismiss a case for want of prosecution under either rule

165a or the court's inherent authority.” Id. At the dismissal hearing, the court shall dismiss

for want of prosecution unless there is good cause for the case to be maintained on the

docket. TEX . R. CIV. P. 165a(1).

       In determining whether due diligence exists, the trial court may consider the entire

history of the case, including: (1) the length of time the case was on file; (2) the extent of

activity in the case; (3) whether a trial setting was requested; and (4) the existence of

reasonable excuse for delay. Polk v. Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89,

97 (Tex. App.–Houston [14th Dist.] 2005, pet. denied); Christian v. Christian, 985 S.W.2d

513, 514-15 (Tex. App.–San Antonio 1998, no pet.); see Allen v. Rushing, 129 S.W.3d

226, 231 (Tex. App.–Texarkana 2004, no pet.) (reviewing as factors in a diligence

determination (1) evidence of attempting to serve the defendants, (2) the amount of time

the suit was on file, and (3) whether motion to reinstate had been filed). Due diligence is

generally a question of fact. Christian, 985 S.W.2d at 515 (citing MacGregor, 941 S.W.2d

at 75-76). Furthermore, a pro se litigant is held to the same standards as licensed

attorneys and must comply with applicable laws and rules of procedure. Green v. Kaposta,

152 S.W.3d 839, 841 (Tex. App.–Dallas 2005, no pet.).

B. Analysis

       The record shows that Twist made a single request for a trial setting and attended

a docket control conference. He testified that he would regularly ask the district clerk

personnel to determine if the case had been set for trial. He understood that it was not.



                                              6
His testimony strongly suggested that he believed he did not need to do anything else and

eventually his case would be set for trial. Practicing attorneys understand that trial settings

are obtained from the court coordinator. Although Twist was not an attorney, he embarked

on a case pro se and is held to the same standard. Litigants are required to act as ordinary

prudent persons under the same or similar circumstances. Manning v. North, 82 S.W.3d

706, 713 (Tex. App.–Amarillo 2002, no pet.). Based upon the evidence presented here,

the trial court could have, in its discretion, properly concluded that Twist did not act

reasonably in taking no action to determine why his case had not been set for trial. He also

performed no discovery during that period of time. From the trial court’s perspective, it

could have reasonably appeared that Twist did nothing to bring his case to trial for two

years other than check with the district clerk personnel and unsuccessfully attempt to get

an attorney to represent him. Under the circumstances, we cannot conclude that the trial

court abused its discretion. Further, the trial court allowed Twist to fully present his

arguments concerning why his case should not be dismissed at evidentiary hearings where

he was represented. Twist’s second, third and fifth issues are overruled.

C. Failure to Make Findings of Fact and Conclusions of Law

       By his fourth issue, Twist argues that the trial court erred in failing to making findings

of fact and conclusions of law. On February 26, 2003, Twist filed his request for findings

of fact and conclusions of law. On March 19, 2003, he filed his notice of past due findings.

       In IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997), the

court opined that a request for findings has no purpose and should not be made in

circumstances where there is a dismissal for want of prosecution without an evidentiary



                                               7
hearing. Here, however, there was an evidentiary hearing, so, if properly and timely

requested, findings would have been proper, although under IKB Industries, may not have

been required. In IKB Industries, the court stated that the purpose of rule 296 is to give

a party the right to findings of fact after an adjudication on the merits. Id. at 442. There,

the court opined: “[i]n other cases findings and conclusions are proper, but a party is not

entitled to them.” Id. An order dismissing a case for want of jurisdiction is not an

adjudication of the right of the parties, rather it simply puts the parties in the same position

they were in prior to filing suit. Dick Poe Motors, Inc. v. DaimlerChrylser Corp., 169 S.W.3d

478, 485 (Tex. App.–El Paso 2005, no pet.). The trial court was not required to file findings

of fact because there was no adjudication on the merits.

       However, even if findings of fact were required here, the result would be the same.

Generally, when properly and timely requested, a trial court has a mandatory duty to file

findings of fact and conclusions of law. Glass v. Williamson, 137 S.W.3d 114, 117-18

(Tex. App.–Houston [1st Dist.] 2004, no pet.) (citing Cherne Indus. v. Magallenes, 763

S.W.2d 768, 772 (Tex. 1989)). Harm is presumed unless the contrary appears on the face

of the record. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). The test for harm is

whether a party must try to guess the reasons the trial court ruled against it. See Carr v.

Hubbard, 664 S.W 2d 151,153 (Tex. App.–Houston [1st Dist.] 1983, writ ref’d n.r.e.).

       Here, the trial court held a lengthy hearing on the motion to dismiss, allowed Twist

to put on witnesses, and informed Twist that he failed to follow the rules and failed to follow

through. The court said there was no miscarriage of justice. The trial court determined

that good cause was lacking.



                                               8
       Here, Twist did not have to guess why his case had been dismissed. The trial court

felt the case had not been prosecuted with due diligence. Under the circumstances

presented here, if findings of fact had been required, Twist was not harmed by the trial

court’s failure to file them. We overrule issue four.

                                   III. FAILURE TO ABATE

       Twist argues in his first issue that the trial court erred by not abating the case once

it became aware that Brenda had filed for bankruptcy. Twist prefaces his argument by

stating that this Court’s decision, in Twist v. McAllen Nat’l Bank, 248 S.W.3d 351 (Tex.

App.–Corpus Christi 2007, orig. proceeding), “at first blush seems to be dispositive of this

issue.” We agree with Twist’s assessment to the extent that it is dispositive. In that case,

we held that a suit filed against a debtor already under the protection of a bankruptcy stay

is a nullity. Id. at 363. A trial court does not acquire jurisdiction over an action commenced

during an automatic stay. Id. Brenda filed for bankruptcy on March 1, 1999. Twist filed

the causes of action at issue here, including the action against Brenda, on June 18, 1999,

after the bankruptcy was filed and the stay was in force. Therefore, using the same

reasoning set forth in our earlier opinion, as we are bound by our own precedent, she was

never a party to the action in the trial court. See Weiner v. Wasson, 900 S.W.2d 316, 320

(Tex. 1995).

       A bankruptcy stay protects the debtor from the commencement or continuation of

an action against them. Stays pursuant to 11 U.S.C. § 362 are limited to the debtor and

do not encompass non-bankrupt co-defendants. In re Sw. Bell Tel. Co., 35 S.W.3d 602,

604 (Tex. 2000). Here, the claims against the non-debtor appellees are independent



                                              9
causes of action and would not be dependent upon the outcome of Twist’s action against

Brenda if she had been a proper party to the trial court action. We overrule issue one.

                                 IV. SUMMARY JUDGMENT

       By his sixth issue, Twist urges that the trial court erred in granting Vale’s motion for

summary judgment because there were genuine issues of material fact regarding fraud and

conspiracy to defraud that do not require privity of contract to enable Twist to have a viable

cause of action against her.

A. Standard of Review

       We review a trial court's denial of a traditional motion for summary judgment under

a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n. 7

(Tex. 2005) (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n. 137

(Tex. 2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no

pet.). To obtain relief by a traditional motion for summary judgment, the movant must

establish that no material fact issue exists and that it is entitled to judgment as a matter of

law. TEX . R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002); Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet.

denied). To meet this burden, a defendant must either conclusively negate at least one

of the essential elements of a cause of action or conclusively establish each element of an

affirmative defense. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.

1995); Tex. Monthly, Inc. v. Transam. Natural Gas Corp., 7 S.W.3d 801, 805 (Tex.

App.–Houston [1st Dist.] 1999, no pet.).




                                              10
       In deciding whether there is a disputed fact issue that precludes summary judgment,

evidence favorable to the non-movant will be taken as true. Am. Tobacco Co. v. Grinnell,

951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985)). Moreover, every reasonable inference must be indulged in favor of

the non-movant and any doubts resolved in its favor. Id. (citing Nixon, 690 S.W.2d at 549).

B. The Motion

       Vale moved for summary judgment on the basis that she owed no duty to Twist. In

support of her summary judgment, Vale produced an affidavit wherein she stated that she

had only an adversarial relationship with Twist since she had been hired to represent his

former wife in a divorce action. She also submitted the petition she filed on Brenda’s

behalf. Twist responded to the motion by urging that he has a negligent misrepresentation

claim against Vale, as well as claims for fraud, fraudulent inducement, and intentional

misconduct.

C. Analysis

       There is no cause of action against opposing counsel for representing a client in a

judicial proceeding. See White v. Bayless, 32 S.W.3d 271, 276 (Tex. App.–San Antonio

2000, no pet.); Mitchell v. Chapman 10 S.W.3d 810, 812 (Tex. App.–Dallas 2000, pet.

denied); Bradt v. West, 892 S.W.2d 56, 71-72 (Tex. App.–Houston [1st Dist.] 1994, writ

denied).

       Under Texas law, attorneys cannot be held liable for wrongful litigation conduct.

See Bradt, 892 S.W.2d at 71-72. A contrary policy “would dilute the vigor with which Texas

attorneys represent their clients” and “would not be in the best interests of justice.” Id. at



                                             11
72. Any other rule would act as a severe and crippling deterrent to the ends of justice

because a litigant might be denied a full development of his case if his attorney were

subject to the threat of liability for defending his client's position to the best and fullest

extent allowed by law, and availing his client of all rights to which he is entitled.

       There are exceptions to the bar which arise only when an attorney has engaged in

negligent misrepresentation or an attorney may be liable for conversion or fraud if the

attorney “personally steals goods or tells lies on a client’s behalf.” Chu v. Hong, 249

S.W.3d 441, 446 (Tex. 2008); see McCamish, Martin, Brown & Loeffler v. F.E. Appling

Interests, 991 S.W.2d 787, 794 (Tex. 1999). Here, the summary judgment evidence

established that Vale owed Twist no duty, and Twist has presented no contrary evidence

to raise a fact issue. We overrule Twist’s sixth issue.

                                      V. CONCLUSION

       We affirm the judgment of the trial court.



                                                     ROSE VELA
                                                     Justice




Delivered and filed the
13th day of May, 2010.




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