


 
 



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.  
	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
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.  
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
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. 
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
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.  
	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
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.).

	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
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.

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 WL 2442363 (Tex. App.-Corpus Christi Aug. 30, 2007, no pet.) (mem. op.); In
re Twist, No. 13-07-00402-CV, 2007 WL 2052316 (Tex. App.-Corpus Christi Apr. 18, 2007, orig. proceeding);
Twist v. McAllen Nat'l Bank, No. 13-04-00613-CV, 2005 WL 1572738 (Tex. App.-Corpus Christi July 7, 2005,
no pet.) (mem. op.) (per curiam); In re Twist, No. 13-04-00660-CV, 2004 WL 2985216 (Tex. App.-Corpus
Christi Dec. 21, 2004, orig. proceeding); Twist v. Twist, No. 13-97-00717-CV, 1999 WL 34973347 (Tex.
App.-Corpus Christi Jan. 28, 1999, no pet.)..

