                                                    June 2, 2016

                 NO. 03-16-00058-CV



         IN THE COURT OF APPEALS
FOR THE THIRD APPELLATE DISTRICT OF TEXAS
                  AUSTIN



               CASSANDRA LAMPKIN
                       Appellant,

                           v.



                    LYNN BROCK
                       Appellee.

 From the 419th Judicial District Court of Travis County
       Trial Court Cause No. D-l-GN-11-002366



     APPELLANT'S FIRST AMENDED BRIEF




                                Cassandra Lampkin, Pro Se
                                PO Box 140091
                                Austin, Texas 78714 (512)
                                999-4965
                                cassandralampkin@vahoo.com

                                                           /RECEIVED N
                                                              MAY 1 2 2016
                                                            THIRD COURT OFAPPEALS/
                    IDENTITY OF PARTIES AND COUNSEL



Appellant:

Ms. Cassandra Lampkin

Appellee:
Ms. Lynn Brock
Counsel for Appellant:

ProSe
PO Box 140091
Austin, Texas 78714
(512) 999-4965
cassandralampkin@yahoo.com

 Counsel for Appellee:

Mr. Ethan F. Goodwin
CLARK, TREVINO & ASSOCIATES
Mailing Address:
PO Box 258829
 Oklahoma City, Oklahoma 73125-8829




                                                     Cassandra Lampkin, pro se




Appellant's First Amended Brief No. 03-16-00058-CV
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                                             2
Table of Contents                                                           3

Index of Authorities                                                        4

Statement of the Case                                                       7

Statement Regarding Oral Argument                                           8
Statement of Issues Presented                                               9

Statement of the Facts                                                      10

Summary of the Argument                                                     11
Argument                                                                    12
        I.       Issue 1: The Trial Court erred in Dismissing Appellant's
                 case for want of prosecution, with prejudice. Dismissal for
                 want of prosecution, with prejudice is not an adjudication on
                 the merits                                                 12
        II.      Issue 2: Judgment by Default against Appellee was proper
                 in this case                                               20



 Conclusion                                                                 24

 Prayer for Relief                                                          27
 Certificate of Service                                                     28

 Certificate of Compliance                                                  29
 Appendix:                                                                  30
         Tab 1. Final Order, Signed January 6, 2016                         30




Appellant's First Amended Brief No. 03-16-00058-CV
                                INDEX OF AUTHORITIES

Cases                                                        Pase No.

Attorney General Texas v. Rideaux, No. 91-05231 (1992)         19, 25
Barr v. Resolution Trust Corp., 837 S.W.2d (Tex. 1992)             14
Belleza-Gonzalez v. Villa, 57 S.W.3d (Tex. App. - 2001)            21
Carter v. McFadyen, 93 S.W. 3d (Tex. App. - 2002)                  20
Christian v. Christin, 985 S.W. 2d (Tex. App. - 1998)         passim
City of Houston v. Robinson, 837 S.W.2d (Tex. App.-1992)           17
 Clements v. Barnes 834 S.W.2d (Tex. App. - Corpus Christi 1992)
Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d (Tex. App. —
Waco 2005)                                                       15
Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d (Tex. App. —Dallas
2001)                                                            15
 Gardner v. U.S. Imaging, 274 S.W.3d (Tex. - 2008)             23, 26
 Gracey v. West, 422 S.W. 2d (Tex. - 1968)                     19, 25
 Holmes v. Tex. Mexinc. Co., 335 S.W. 3d (Tex. App.- El Paso 2011)20,
 21

Kawasaki Steel Corp. v. Middleton, 699 S.W. 2d (Tex. 1985)         22
 Lentwork v. Trahan, 981 S.W.2d (Tex. App. -Houston 1998)          14
 Lum v. Lacy, 616 S.W.2d (Tex. Civ. App. -Houston 1981)            19
MacGregor v. Rich, 941 S.W. (Tex. 1997)                        18, 26
Maldonado v. Puente, 694 S.W.2d (1985)                         16, 24
 Marrot Communications Inc., v. Town & Country, No. 01-06-00068-CV
 (2007)                                                            20
Martin v. Martin, 991 S.W.2d (Tex. App. - 1997)                    14



Appellant's First Amended Brief No. 03-16-00058-CV
McConnell v. Attorney General of Texas, 878 S.W.2d (Tex. App. —Corpus
Christil994)                                                    15
Melton v. Ryander, 727 S.W. 2d (Tex. App. - Dallas 1987)       passim
Morgan v. Compugraphic Corp., 675 S.W.2d (Tex. 1984)           23, 26
Mossier v. Shields, 818 S.W.2d (Tex. 1991)                         14
Ritchey v. Vasquez, 986 S.W.2d (Tex. 1999)                         14
Rizk v. Mayad, 603 S.W.2d (Tex. 1980)                          19, 25
Sanchez v. Providence Memorial Hospital, 679 S.W. 2d (Tex. App. - El
Paso, 1984)                                                      21
Scoville v. Shaffer, 9 S.W.3d (Tex. App. - 1999)                18, 26
Simon v. BancTexas Quorum, N.A. 754 S.W.2d (Tex. App. - Dallas
1988)                                                      23,26
Smith v. Babcock & Wilcox, Constr. Co., 913 S.W. 2d (Tex. 1995).... 15
Sommers v. Concepcion, No. 14-98-00053-CV, 2000 WL 205192, (Tex.
App. —Houston)                                                14
 Texaco Inc. v. P/ian, 137 S.W.3d (Tex. App. - Houston 2004)    23, 26
 Texas Attorney General v. Abbs, 812 S.W.2d
 (Tex. App. - Dallas 1991)                                      23, 26
 Veterans Land Bd. v. Williams, 543 S.W.2d (Tex. 1976)             16
 Villarreal v. San Antonio Truck & Equp., 994 S.W.2d (1999)        16
Rules

 Tex. R. Civ. P. 4                                              21, 22

 Tex. R. Civ. P. 99(a)                                             21
 Tex. R. Civ. P. 99(b), (d)                                        22
 Tex. R. Civ. P. 107                                               22

 Tex. R. Civ. P. 122                                            22, 23


Appellant's First Amended Brief No. 03-16-00058-CV
Tex. R. Civ. P. 239                                  22

Statutes

Tex. Lab. Code 406.001 et seq                             7
Texas Constitution Article 5 Section 9                    18




Appellant's First Amended Brief No. 03-16-00058-CV
                              STATEMENT OF THE CASE

        This case stems from a personal injury lawsuit filed against

Appellee in the 419th District Court of Travis County, Texas. On March

8, 2008, while Appellant was in the usual course and scope of her duties

assigned by Appellee, she sustained an injury to her back with rushing

pain and suffering. After continued complaints of chronic back pain and

suffering, and several visits with the Doctors, an MRI revealed

permanent damage to the spinal cord, both the cervical and lumbar.

Appellant has been, remains and will remain under the care of Doctors.

Appellant was hired as a home healthcare aide for an elderly,

permanent paralyzed man, with duties involving, among other things,

constant lifting and moving the man client with no lifting assistance or

equipment. Appellee is a nonsubscriber to the Workers' Compensation

Insurance system, Texas Labor Code 406.001 et seq. Appellant is a pro

 se litigant, the Trial Court dismissed this cause of action for want of

 prosecution and with prejudice. Judgment by Default was proper

 against Appellee in the trial Court. No hearings were scheduled for

 Motions filed on September 11th and 12th 2011, no further

 communication from the Court regarding those Motions.



Appellant's First Amended Brief No. 03-16-00058-CV
              STATEMENT REGARDING ORAL ARGUMENT

        The facts and legal arguments in this case are adequately

presented in Appellant's brief. Oral argument is therefore not

necessary.




Appellant's First Amended Brief No. 03-16-00058-CV
                 STATEMENT OF ISSUES PRESENTED

1. Whether the trial court abused its discretion in dismissing this
   case for want of prosecution with prejudice.

2. Whether the trial court abused its discretion by failing to set a
    hearing date for Appellant's Judgment by Default against
    Appellee.




Appellant's First Amended Brief No. 03-16-00058-CV
                                 STATEMENT OF FACTS

    A. Introduction


    Appellant is Cassandra Lampkin, proceeding pro se and in forma

pauperis. Appellee is Appellant's former employer, Lynn Brock ("Ms.

Brock") hired to care and assist her father Mr. Brock ("client"), an

elderly, permanent paralyzed man unable to walk and stand on his

own, including unable to care for himself. Appellee assigned what the

duties were for caring for her father, which included, among other

things, lifting and moving him. During the usual course and scope of

Appellant's employment with Appellee, Appellant injured her back

while lifting and moving the client (C.R. at 6-9). With rushing and

extreme pain to the back, Appellant went straight to the emergency

room for immediate observations and rehef. After continued complaints

of chronic pain and suffering, and making several visits to the Doctors,

 and as the result of Appellee's deliberate negligence and failure to

furnish safe lifting equipment, among other things, to aid with assisting

the client, even after making several requests for this equipment,

Appellant sustained substantial damage to her spinal cord, becoming

 permanently disabled, unable to regain full time employment (C.R. at 6-

                                                                           10
Appellant's First Amended Brief No. 03-16-00058-CV
12). A magnetic resonance imaging test (MRI) revealed permanent

damage to the spinal cord, both the cervical and lumbar. Appellant has

been, remains and will remain under the care of Doctors, among other

things, for the rest of her life. Appellee is a nonsubscriber to Workers'

Compensation Insurance.

    B. Procedural Background

    Appellant filed her Original Petition on August 5, 2011 (see C.R. at 6-

12). On September 6, 2011, and despite being properly served on

August 23 and 26, 2011, Defendant filed a frivolous Motion to Quash

Service. Namely, Appellee's attorney at the time, Velva J. Price

("Price"), who later was sworn in as the District Clerk for Travis County

on or about January 2015, in which this case was on the Court's docket

under her discretion.

                                   SUMMARY OF THE ARGUMENT

         The trial Court abused its discretion and improperly dismissed

Appellant's case with prejudice, for want of prosecution. Appellant used

 due diligence, as a reasonable prudent person would in the same or

 similar circumstances, in not only perfecting service on the Appellee,

 but also filing a timely Motion for Judgment by Default against

                                                                            n
Appellant's First Amended Brief No. 03-16-00058-CV
Appellee. Appellee did not file a proper answer pursuant to the

Citations (CRs. at 13-14).

                               ARGUMENT AND AUTHORITY

          The Trial Court Er red in Pis mis sing Appellant's Cas
          e with Prejudice for Want of Prosecution and abused its
                                                discretion.

        The trial Court dismissed this case for want of prosecution and

with prejudice in favor of Appellees' Motion to Dismiss. The trial court

abused its discretion and violated Appellant's right to due process and

without Appellant's cause of action being adjudicated on the merits.

Unbeknownst to Appellant, a hearing on Appellee's Motion to Dismiss

for Want of Prosecution was held January 6, 2016. Prior to this Motion

being filed, on December 17, 2015, the parties had just communicated

by phone settlement negotiations to resolve this case. Appellant spoke

with Appellee's attorney, Mr. Ethan Goodwin ("Mr. Goodwin") and the

 same week, Appellant received mail from the attorney's office and

signed for it not knowing it could have possibly been a Notice of Hearing

 and that Appellee filed a Motion to Dismiss, giving rise to Mr.

 Goodwin's trickery tactic to make Appellant assume the letter was

 regarding his follow up communication negotiations into settlement of

                                                                           12
Appellant's First Amended Brief No. 03-16-00058-CV
this case. Mr. Goodwin is the same attorney that appeared at the

January 6th Hearing and failed to mention that he had just spoke with

Appellant by phone, on December 17, 2015, discussing settlement

negations for this case. In fact, looking at the Court Reporter's Report

("R.R.") (R.R. at 4 (3-12)), Mr. Goodwin do not even as much as give the

Court an indication that Appellant knew or should have known that

what she received by certified mail from his office and signed for, was a

Notice of the Hearing on his Motion to Dismiss. Mr. Goodwin could

have very well communicated his true motive was to file a Motion to

Dismiss, rather than misled Appellant with settlement negotiations on

the same day he filed this Motion to Dismiss, so that Appellant could

assume what she received in the mail from his office was follow up

communication regarding his initiation for settlement. Due to this

injury arising out of and in the course and scope of Appellant's

employment, and taking medications for relief with undesirable side

effects, Appellant required help and assistance with moving. Appellant

was in the process of moving and was pushed for time to be out of the

 home she occupied and planned to open the letter as soon as she

 recovered from the move, thinking it was further communication

                                                                           13
Appellant's First Amended Brief No. 03-16-00058-CV
regarding the settlement of this case Mr. Goodwin initiated on

December 17, 2015. Appellants' mistake in not opening the letter right

away was not an intentional failure to appear to the Hearing.

Appellant then learned her case had been dismissed for want of

prosecution and with prejudice from the Order granting Appellees'

Motion in January 2016 (C.R. at 72). Dismissal with prejudice

constitutes an adjudication on the merits and operates as if the case

had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d

611, 612 (Tex. 1999); Mossier v. Shields, 818 S.W.2d 752, 754 (Tex.

1991); Sommers v. Concepcion, No. 14-98-00053-CV, 2000 WL 205192,

*10 (Tex. App. - Houston [14th Dist.] February 24, 2000, pet. denied);

Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 9 (Tex. App. -

Fort Worth 1997, no writ). Thus, orders dismissing cases with prejudice

have full res judicata and collateral estoppel effect, barring subsequent

relitigation of the same causes of action or issues between the same

 parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 660-31

 (Tex. 1992); Sommers, 2000 WL at *10; Martin, 991 S.W.2d at 9;

Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. - Houston [1st

 Dist.] 1998, no pet.); McConnell v. Attorney General of Texas, 878

                                                                            14
Appellant's First Amended Brief No. 03-16-00058-CV
S.W.2d 281, 283 (Tex. App. - Corpus Christi 1994 no writ). The trial

Court did not let Appellant cure any procedural defects, if any, and

failed to schedule hearings on various Motions filed in the Court, (C.Rs.

18-19 & 24-26). If Appellant lacked prosecuting her case, it was due to

the lack of communication she receive from the Court and the conflict of

interest with Appellees' former attorney, elected District Clerk of this

same Court.


Standard of Review

        This Court review a trial court's rilling dismissing a case for want

of prosecution for an abuse of discretion. See Smith v. Babcock &

Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam);

Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App. -

Dallas 2001, pet. denied) (per curiam). A trial court abuses its

discretion when it acts "without reference to any guiding rules or

 principles." That is, when it acts in an arbitrary and unreasonable

manner. Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d

733, 737 (Tex. App. -Waco 2005, pet. denied).

         A dismissal for want of prosecution is not a trial on the merits,

 and therefore dismissal with prejudice is improper. Maldonado v.

                                                                               15
Appellant's First Amended Brief No. 03-16-00058-CV
 Puente, 694 S.W.2d 86, 92 (Tex. App. - San Antonio 1985, no writ). An

order of dismissal for want of prosecution is not an adjudication of the

rights of the parties; rather, it simply places the parties in the position

they were in prior to fihng the suit. Melton v. Ryander, 727 S.W.2d 299,

 303 (Tex. App. - Dallas 1987, writ refd n.r.e.). If a trial court

improperly dismisses a case for want of prosecution with prejudice, the

 appellate court should modify the judgment to strike the words "with

 prejudice." See id.

         A trial court has both the inherent power and authority under rule

 165a to dismiss a lawsuit for the party's failure to prosecute it with due

 diligence. Veterans'Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.

 1976). A trail court's authority to dismiss for want of prosecution stems

 from rule 165a of the Texas Rules of Civil Procedure and from the

 court's inherent power. Villarreal, 994 S.W.2d at 630. A trial court can

 dismiss for want of prosecution under the following three situations: (1)

 when a party seeking affirmative rehef 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 of the supreme court, or (3) when the trial

 court finds that the case has not been prosecuted with due diligence.


                                                                              16
Appellant's First Amended Brief No. 03-16-00058-CV
City of Houston v. Robinson, 837 S.W.2d 262, 264-65 (Tex. App. -

Houston [1st Dist.] 1992, no writ). After learning Appellant's case was

dismissed for want of prosecution, and with prejudice, Appellant

received notice of the January 6th Hearing but mistaken this as follow

up communication with Appellees' attorney initiating settlement

negotiation on December 17, 2015. Appellant, assuming this is what

the letter was for, did not open it immediately because, with help and

assistance, she was in a pressing situation with moving and not able to

do this kind job on her own because of the injury she sustained while

 she was in the usual scope of course of her employment with Appellee.

Mr. Goodwin was aware of Appellant's moving. No hearing set for

Appellant's Judgment for Default (C.R. 18-19) against Appellee, and no

hearing set for Appellee's Motion to Quash Process of Service (C.R. 15-

 16).

         To decide the diligence issue, trial courts consider the entire

history of the case, including whether the plaintiff requested a trial

 setting, the amount of activity in the case, the passage of time, and the

 plaintiffs excuses for delay. Scoville, 9 S.W. 3d at 204; Christian, 985

 S.W. 2d at 514-15. No single factor is dispositive. Scoville, 9 S.W. 3d at

                                                                             17
Appellant's First Amended Brief No. 03-16-00058-CV
 204; Christian, 985 S.W. 2d at 515. Reasonable diligence is generally a

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

 S.W. 2d at 75-76).

         This case not being disposed of within the time standards of the

 Supreme Court gives rise to a confhct of interest with the District

 Clerk, Price, as well, who was Appellee's attorney during the beginning

 of this (C.Rs. 15-16 & 24-26,). This warrants an investigation into her

 handling of this case for any judicial misconduct. A District Clerk is

 designated as the custodian of all records relating to or lawfully

 deposited in the clerk's office, such as pleadings and papers that are

 part of any cause of action, civil or criminal, in the courts served by the

 District Clerk, including prepare docketing causes for hearings and

 trials. Texas Constitution Article 5 Section 9. Because District Clerks

 have influence over the Court's docket, they should disclose actual or

 potential conflict of interests between pubhc duty and personal interest.

 Price failed to raise this concern. In fact, there was no communication

 from the Court to Appellant regarding any procedural flaws that needed

 to be corrected by Appellant. Appellant exercised due diligence with

 prosecuting her case, there was no communication from the Court


                                                                               18
Appellant's First Amended Brief No. 03-16-00058-CV
 regarding the Motions that were filed. Appellee filed a frivolous Motion

 quashing service, and filed her first original answer over four (4) years

 after the commencement of this lawsuit, on December 17, 2015 (C.Rs.

 47-50).

         A trial court's authority to dismiss cases for want of prosecution

 does not confer upon it the authority to adjudicate and deny the merits

 of the dismissed claim. Gracey v. West, 422 S.W.2d 913, 917 (Tex.

 1968); Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App. - Houston [1st

 Dist.] 1981, no writ) ("a judgment on the merits should not be made

 until the plaintiff has had his day in court"). The Texas Supreme Court

 has long held that "a htigant may refile an action that has been

 dismissed for want of prosecution, since the merits of such an action

 remain undecided." Rizk v. Mayad 603 S.W.2d 773, 775 (Tex. 1980);

 Gracey, 422 S.W.2d at 917. The Texas Supreme Court held in the

 Rideaux case that the order of dismissal was not an adjudication on the

 merits; therefore, the court erred in dismissing the suit with prejudice,

 and should have properly ordered a dismissal without prejudice. Texas

 Attorney General v. Abbs, 812 S.W.2d 605, 608 (Tex. App. - Dallas 1991,




                                                                              19
Appellant's First Amended Brief No. 03-16-00058-CV
no writ); Melton v. Ryander, 727 S.W.2d 299, 303 (Tex. App - Dallas

1987, writ refd n.r.e.).

                         Judgment by Default was proper in the
                                  Trial Court against Appellee.

Standard of Review

        "P]n order for a default judgment to be properly rendered, the

record must affirmatively show, . . . either an appearance by the

defendant, proper service of citation on the defendant, or a written

memorandum of waiver."Marro£, 277 S.W. 3d at 378. In this case, the

record affirmatively show that defendant made an appearance and the

citation on the defendant was properly served.

         Once a Plaintiff has filed his petition within the statute of

hmitations period, he must exercise due dihgence in serving citation to

interrupt the running of hmitations. Holmes v. Tex. Mex. Ins. Co., 335

S. W. 3d 738 (Tex. App. - El Paso, 2011, reh'g denied). Due dihgence is

 determined by looking at not only the time taken to perfect service, but

 also the effort expended by the Plaintiff in securing service. Carter v.

McFadyen, 93 S.W. 3d 307, 313 (Tex. App. -Houston [14th Dist.] 2002,

 writ denied). A Plaintiff is not required to use the highest degree of

 dihgence to procure service, but is required to use that degree of
                                                                            20
Appellant's First Amended Brief No. 03-16-00058-CV
dihgence that an ordinary prudent person would have used under the

same or similar circumstances, and is required to act dihgently up until

the time the defendant was served. Holmes v. Tex. Mex. Ins. Co., 335

S.W. 3d 738 (Tex. App. -El Paso, 2011, reh'g denied); Belleza-Gonzalez

 v. Villa, 57 S.W. 3d 8, 12 (Tex. App. -Houston, [14* Dist.] 2001, no

writ). The Trial Court found no lack of dihgence in issuing and serving

citation in this case. When a court finds that there was a lack of

dihgence as a matter of law, it is because there was not an explanation

 for why there was a delay in issuing and serving citation, or the excuse

 given was one which affirmatively established a lack of dihgence.

 Sanchez v. Providence Memorial Hospital, 679 S.W. 2d 732 (Tex. App. -

 El Paso, 1984, no writ). A defendant's answer must be filed by 10 a.m.

 on the Monday next following the expiration of twenty days after the

 date of service. Tex. R. Civ. P. 99(b). Answer day for Defendant was

August 29, 2011. Appellee files its first response, a frivolous Motion to

 Quash Service, on September 6, 2011. A citation is an official notice

 from a court officer, Tex. R. Civ. P. 99(a), is accompanied by the

 petition, Tex. R. Civ. P. 99(d), and warns recipients that they must

 answer by a stated deadline or "judgment by default may be rendered

                                                                            21
Appellant's First Amended Brief No. 03-16-00058-CV
for the relief demanded in the petition!' See Tex. R. Civ. P. 4; 99(b).

Appellees' Original Answer was filed December 17, 2015 (C.Rs. 47-50).

 See Tex. R. Civ. P. 4. There is nothing in the record to indicate that

defendant answered the suit in a timely manner pursuant to Tex. R.

 Civ. P. 99 et seq. At any time after a defendant is required to answer,

the plaintiff may take a default judgment if no answer is filed, provided

that the citation with the officer's return thereon shall have been on file

with the clerk for ten days, (C.Rs. 13-14) exclusive of the day of fihng

 and the day of judgment. Tex. R. Civ. P. 107; 239. No advance notice of

 a hearing is required for a no-answer default judgment. Clements v.

Barnes, 822 S.W.2d 658, 660 (Tex. App. - Corpus Christi 1991), reVd on

 other grounds, 834 S.W.2d 45 (Tex. 1992).

         On September 6, 2011, Appellee filed a frivolous Motion to Quash

 Process of Service (C.Rs. 15-16). This Motion was not granted or

 entertained by the trial Court. No hearings were set by the Court. The

 purpose of a motion to quash is to challenge defective jurisdictional

 allegations, defective service of process, and defects in the citation. See

 Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)

 (motion to quash, allowing defendant more time to answer under Rule

                                                                               22
Appellant's First Amended Brief No. 03-16-00058-CV
122). A Motion to Quash is made available in Texas by Rule 122. Rule

122 provides:

        If the citation or service thereof is quashed on motion of the
        defendant, such defendant shall be deemed to have entered his
        appearance at ten o'clock a.m. on the Monday next after the
        expiration of twenty (20) days after the day on which the citation
        or service is quashed, and such defendant shall be deemed to have
        been duly served so as to require him to appear and answer at the
        that time, and if he fails to do so, judgment by default may be
        rendered against him.

        Defendant failed to file a timely answer attacking Appellant's

prima facie case. Generally, a defendant's failure to answer a petition

equates to an admission of all facts properly pleaded in plaintiffs

petition, except as to unliquidated damages, as well as a waiver of any

 affirmative defenses. Gardner v. U.S. Imaging, 21A S.W.3d 669, 671

 (Tex. 2008); Texaco Inc. v. Phan, 137 S.W.3d 763, 769 (Tex. App. -

 Houston [1st Dist] 2004, no pet.); Simon v. BancTexas Quorum, N.A.,

 754 S.W.2d 283, 286 (Tex. App. - Dallas 1988, writ denied). Assuming

 the facts in the petition set out a cause of action, a default judgment

 conclusively establishes the defendant's liability. Morgan v.

 Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). More than four

 (4) years later after fihng this lawsuit against Appellee, and after

 initiating settlement of this case by phone, Appellee files its Original
                                                                            23
Appellant's First Amended Brief No. 03-16-00058-CV
Answer (C.Rs. 47-50) on December 17, 2015. As stated above, Default

 Judgment against Appellee was proper in this case.

                                          CONCLUSION

          Appellants' failure to prosecute her case, if the failure lies with

her, was due to the lack of communication and access she received from

 the trial Court. Velva Price, once the Appellees' attorney gives rise to

 the confhct of interest against Appellant for the lack of communication

 and access with litigating her case properly before the Court. Appellant

 did not intentionally fail to prosecute her case with due diligence, she

 did not fail to not attend the Hearing set in the trial Court. Appellant

 assumed her case was still pending in the trial Court and was merely

 waiting for a response from the Court regarding the Motions that were

 filed.


          A dismissal for want of prosecution is not a trial on the merits,

 and therefore dismissal with prejudice is improper. Maldonado v.

 Puente, 694 S.W.2d 86, 92 (Tex. App. - San Antonio 1985, no writ). An

 order of dismissal for want of prosecution is not an adjudication of the

 rights of the parties; rather, it simply places the parties in the position

 they were in prior to fihng the suit. Melton v. Ryander, 727 S.W.2d 299,


                                                                                24
Appellant's First Amended Brief No. 03-16-00058-CV
303 (Tex. App. - Dallas 1987, writ refd n.r.e.). If a trial court

improperly dismisses a case for want of prosecution with prejudice, the

appellate court should modify the judgment to strike the words "with

 prejudice." See id.

        The Texas Supreme Court has long held that "a litigant may refile

an action that has been dismissed for want of prosecution, since the

merits of such an action remain undecided." Rizk v. Mayad 603 S.W.2d

773, 775 (Tex. 1980); Gracey, 422 S.W.2d at 917. The Texas Supreme

 Court held in the Rideaux case that the order of dismissal was not an

 adjudication on the merits; therefore, the court erred in dismissing the

 suit with prejudice, and should have properly ordered a dismissal

without prejudice. Texas Attorney General v. Abbs, 812 S.W.2d 605, 608

 (Tex. App. - Dallas 1991, no writ); Melton v. Ryander, 727 S.W.2d 299,

 303 (Tex. App - Dallas 1987, writ refd n.r.e.).

         Generally, a defendant's failure to answer a petition equates to an

 admission of all facts properly pleaded in plaintiff's petition, except as to

 unliquidated damages, as well as a waiver of any affirmative defenses.

 Gardner v. U.S. Imaging, 21A S.W.3d 669, 671 (Tex. 2008); Texaco Inc.

 v. Phan, 137 S.W.3d 763, 769 (Tex. App. - Houston [1st Dist]


                                                                             25
Appellant's First Amended Brief No. 03-16-00058-CV
2004, no pet.); Simon v. BancTexas Quorum, N.A., 754 S.W.2d 283, 286

 (Tex. App. - Dallas 1988, writ denied). Assuming the facts in the

petition set out a cause of action, a default judgment conclusively

estabhshes the defendant's liability. Morgan v. Compugraphic Corp.,

 675 S.W.2d 729, 731 (Tex. 1984).

         To decide the dihgence issue, trial courts consider the entire

history of the case, including whether the plaintiff requested a trial

 setting, the amount of activity in the case, the passage of time, and the

 plaintiffs excuses for delay. Scoville, 9 S.W. 3d at 204; Christian, 985

 S.W. 2d at 514-15. No single factor is dispositive. Scoville, 9 S.W. 3d at

 204; Christian, 985 S.W. 2d at 515. Reasonable dihgence is generally a

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

 S.W. 2d at 75-76). Appellant was in settlement negotiation with

Appellee's attorney on December 17, 2015.




                                                                             26
Appellant's First Amended Brief No. 03-16-00058-CV
                                   PRAYER FOR RELIEF


        Appellant respectfully requests this Court Reverse the trial

Court's decision and award Appellant a new trial; and/or Order

Mediation to resolve the settlement of this case; and/or Rendered a

judgment in favor of Appellant, together with pre-judgment interest

(from the date of the injury through the date of judgment) at the

maximum rate allowed by law, together with post-judgment interest at

the legal rate, costs of court, together with reimbursing the Government

Insurance for the necessary costs for medical assistance and treatment

Appellant received (C.R. at 6-12), and for Appellant's time; and such

other and further relief to which the Appellant may be entitled at law

this Court deems fit and proper.




                                         Respectfully submitted,




                                             \AAcfr?i&6i4 ^^2^7.
                                          Cassandra Lampkin, Appellant, Pro Se
                                         PO Box 140091
                                         Austin, Texas 78714
                                          (512) 999-4965
                                         cassandralampkin@yahoo.com




                                                                                 27
Appellant's First Amended Brief No. 03-16-00058-CV
                              CERTIFICATE OF SERVICE


        Pursuant to Tex. R. App. P. 9.5, Appellant hereby certify that a

true and correct copy of the foregoing document has been served by

First Class US Certified Mail - Return Receipt Requested on this, 11th

day of May, 2016 as follows:

        Mr. Ethan F. Goodwin
        CLARK, TREVINO & ASSOCIATES
        Mailing Address:
        PO Box 258829
         Oklahoma City, Oklahoma 73125-8829

        Attorney for Appellee Lynn Brock


                                         Respectfully submitted,




                                         Cassandra Lampkin, Appellant, Pro Se
                                         PO Box 140091
                                         Austin, Texas 78714 (512)
                                         999-4965
                                         cassandralampkin@yahoo.com




                                                                                28
Appellant's First Amended Brief No. 03-16-00058-CV
                          CERTIFICATE OF COMPLIANCE


        Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), Appellant

certify that this Amended, Brief was prepared with Microsoft Word 2013

using 14-point typeface for aU text, and according to the program's

word-count function, the sections covered by TRAP 9.4(i)(l) contains

3,223 words from the Summary of the Argument to the Prayer for

Rehef.




                                         Respectfully submitted,




                                          Cassandra Lampkin, Appellant, Pro Se
                                         PO Box 140091
                                         Austin, Texas 78714
                                         (512) 999-4965
                                         cassandralampkin@yahoo.com




                                                                                 29
Appellant's First Amended Brief No. 03-16-00058-CV
                                       TABl




                                                    30
Appellant's First Amended BriefNo. 03-16-00058-CV
                                                                            Filed in The District Court
                                                                             of Travis County, Texas

                                                                              JAN -6 2016 ^V~
                                 Cause No. D-l-GN-11-002366
                                                                           At       // lOf<J
                                                                           Vefva L Price, District Clerk

CASSANDRA LAMPKIN                                             IN THE DISTRICT COURT


VS.                                                           TRAVIS COUNTY, TEXAS

LYNN BROCK                                                    419TH JUDICIAL DISTRICT


              ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
                       FOR WANT OF PROSECUTION

       On this day came Defendant Lynn Brock and moved the Court to dismiss this suit with

prejudice, as to said Defendant, for want of prosecution. It appears to the Court that this Motion

should be granted.

       IT IS, THEREFORE, ORDERED that this suit against Defendant Lynn Brock shall be

and is hereby dismissed with prejudice to the refiling of same or similar cause of action with

costs of Court adjudged against the parties incurring same.

       SIGNED this (p day of //a*u^u^ /                        ,2016.


Respectfully submitted:


BY:
              Goodw
      TBN: 24064492
      Clark, Trevino & Associates
      Mailing Address:
      P.O. Box 258829
      Oklahoma City, OK 73125-8829
      Physical Address:
      1701 Directors Boulevard, Suite 920
      Austin, Texas 78744
      Telephone: (512) 445-1580
      Facsimile: (512) 383-0503
      ethan. goodwin@farmersinsurance.com

      Attorneys for Defendant Lynn Brock




          004374422
