Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CV49624
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE.
Knightshade brings this appeal from the trial court's
order dismissing his lawsuit for want of prosecution.
Appearing pro se on appeal, Appellant contends in a single
issue that the trial court abused its discretion by
dismissing his lawsuit. We affirm.
lawsuit arises from a vehicle accident that occurred in
Midland on December 28, 2011. Appellant filed suit against
Appellees on July 26, 2013. Appellant was represented by
counsel at the time suit was filed. Appellees filed answers
to Appellant's petition in November and December 2013.
September 2014, Appellant's attorney filed a "Motion
to Set Telephone Status Conference" that was granted by
the trial court. An agreed scheduling order was subsequently
entered on February 24, 2015. The agreed scheduling order
indicated that the case was set for a trial on the merits on
October 5, 2015.
24, 2015, Appellant, through counsel, sought a continuance to
move the trial from the original date due to unforeseen
medical issues with Appellant. The trial court granted the
motion for continuance. The new trial date was to be set at a
later scheduling conference. However, on December 31, 2015,
Appellant's counsel filed a motion to withdraw. The trial
court granted the motion to withdraw in May 2016. Appellant
has proceeded without counsel since that date.
7, 2017, Appellees filed a motion to dismiss for want of
prosecution. Appellees asserted that they had not had formal
communication with Appellant in over a year preceding the
filing of the motion. At the hearing on the motion to
dismiss, Appellant stated that, since his previous
counsel's withdrawal, he had attempted to obtain new
counsel by contacting approximately twenty to thirty
attorneys. However, he failed to find legal counsel willing
to represent him. Appellant also stated that he contacted the
court administrator of the trial court several times to
inquire about a court date. Appellant stated that the court
administrator informed him that his case was not on the trial
docket but that he would be notified when a trial date was
set. Counsel for Appellees stated that he had made several
attempts to contact Appellant, including sending requests for
discovery through certified mail, but that Appellant refused
to receive the letters. Appellant responded to this
contention by stating that he only checked his mail on a
single issue, Appellant asserts that the trial court abused
its discretion by dismissing his lawsuit for want of
prosecution. We note at the outset that Appellant makes
several additional arguments in his brief that are not
amenable to resolution in this appeal. For example, he
disputes the accuracy of the reporter's record in several
instances. Appellant also asserts that he was not allowed to
present arguments at the hearing and that counsel for
Appellees was permitted to make arguments that were not
supported by evidence. Finally, Appellant asserts several
matters that occurred outside of the hearing.
courts "are confined to the record as it is made by the
trial court." Goode v. Shoukfeh, 915 S.W.2d
666, 671 n.6 (Tex. App.-Amarillo 1996), aff'd,
943 S.W.2d 441 (Tex. 1997) (quoting Ennis Mercantile Co.
v. Wathen, 57 S.W. 946, 947 (Tex. 1900)). "[O]nly
the trial judge has the 'authority' to change the
contents of its record." Id. (citing
Gerneth v. Galbraith-Foxworth Lumber Co., 300 S.W.
17, 20 (Tex. 1927)); see Tex. R. App. P. 34.6(e)(2),
(3). An appellate court cannot correct the record by hearing
testimony or inquiring into extraneous acts. Goode,
915 S.W.2d at 671 n.6 (citing Ennis Mercantile Co.,
57 S.W. at 947). Accordingly, we are confined to the
reporter's record that has been filed in this appeal.
many of the complaints raised on appeal by Appellant against
the trial court and opposing counsel were not raised in the
trial court. Rule 33.1 of the Texas Rules of Appellate
Procedure requires that a party lodge a "timely request,
objection, or motion" to present a complaint for
appellate review. Tex.R.App.P. 33.1(a)(1); Wal-Mart
Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.
1999). Appellate courts are not authorized to consider issues
not properly raised by parties at the trial level. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006).
Complaints cannot be raised for the first time on appeal, as
Appellant attempts to do here. See State Office of Risk
Mgmt. v. Martinez, 539 S.W.3d 266, 273 (Tex. 2017).
review a dismissal for want of prosecution under a clear
abuse of discretion standard; the central issue is whether
the plaintiff[ ] exercised reasonable diligence."
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997)
(per curiam). "A plaintiff has a duty to
'prosecut[e] the suit to a conclusion with reasonable
diligence,' failing which a trial court may dismiss for
want of prosecution." In re Conner, 458 S.W.3d
at 534 (quoting Callahan v. Staples, 161 S.W.2d 489,
491 (Tex. 1942)). Furthermore, a pro se plaintiff has the
same duty as a licensed attorney to prosecute his case with
diligence. Allen v. Rushing, 129 S.W.3d 226, 231
(Tex. App.- Texarkana 2004, no pet.). A trial court ...