INADEQUATE RECORD DOOMS APPEAL FROM DWOP ORDER

Mares v. Blaine (Tex.App.- Houston [1st Dist.] July 24, 2008)(Hanks)
(appeal from DWOP order fails)
AFFIRM TC JUDGMENT: Opinion by
Justice Hanks  
Before Justices Nuchia, Alcala and Hanks
01-07-00620-CV Samuel R. Mares, Sr. v. Victor R. Blaine
Appeal from 11th District Court of Harris County
Trial Court Judge:
Hon. Mark Davidson

MEMORANDUM OPINION

Samuel R. Mares appeals from the trial court’s dismissal of his suit for want of prosecution. In a
single issue, Mares complains that the trial court abused its discretion in failing to perform its
ministerial duty to timely rule upon his properly filed pretrial motions. We affirm.

Background

Victor R. Blaine represented Mares in a criminal prosecution. Following the representation, Mares
sued Blaine for return of attorney’s fees and breach of contract. Blaine filed a general denial. The
trial court dismissed the cause for want of prosecution. Mares now appeals.

Dismissal for Want of Prosecution

In his sole issue, Mares asserts that the trial court abused its discretion in failing to rule on his
pretrial motions. In support of his issue, Mares argues that a trial court has a ministerial duty to
consider and rule upon a properly filed motion, and any failure to perform a ministerial act is a
violation of a duty imposed by law. See In re Taylor, 39 S.W.3d 406, 411–12 (Tex. App.—Waco
2001, orig. proceeding) (quoting In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio
1998, orig. proceeding)).

Mares claims that he properly filed the following pretrial requests:

    ∙        request for a bench warrant;

    ∙        request for ad testificandum;

    ∙        request for a hearing;

    ∙        request for admissions and interrogatories;

    ∙        request for production of documents;

    ∙        request for dispute resolution; and

    ∙        request for continuance.

    However, the record only shows that Mares filed a request for continuance for additional
discovery.
[Mares supplemented his brief with documents purporting to be copies of the pretrial requests he
alleges were not ruled upon by the trial court. We cannot consider these documents, however,because they do not
appear in the record. See Till v. Thomas, 10 S.W.3d 730, 733 (Tex.App.—Houston [1st Dist.] 1999, no pet.).]

Therefore, we have no basis for determining whether the trial court abused its discretion in failing
to rule upon Mares’s other alleged requests.

As for Mares’s request for continuance, the trial court implicitly overruled the request by dismissing
Mares’s suit for want of prosecution. See also In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (“By
proceeding to trial without issuing the bench warrant, it is clear that the trial court implicitly denied
[movant]’s request”). Accordingly, Mares’s argument that the trial court erred in failing to rule on his
request is without merit.

[Because Mares has not shown that the trial court failed to rule upon properly filed motions, we need not address
his claims that such failure violated his rights to due process, due course of law, and equal protection.]

We overrule Mares’s sole issue.

Conclusion

We affirm the judgment of the trial court.
                                                                  

                                                                  George C. Hanks, Jr.

                                                                  Justice


Panel consists of Justices Nuchia, Alcala, and Hanks.