Buchanan v. Masood
| Decision Date | 23 March 1982 |
| Docket Number | No. 9348,9348 |
| Citation | 631 S.W.2d 219 |
| Parties | Jim BUCHANAN, Appellant, v. Jonathan MASOOD, Prudential Insurance of America d/b/a College Inn, and Bromley Operating Corporation, Appellees. |
| Court | Texas Court of Appeals |
Russell D. Daves, Lubbock, for appellant.
Crenshaw, Dupree & Milam, Layton Z. Woodul, Sr., Lubbock, for appellees.
Before DODSON, COUNTISS and BOYD, JJ.
This appeal is from a judgment dismissing a suit by appellant Jim Buchanan (hereafter "Buchanan") against appellees Jonathan A. Masood and others (hereafter "appellees"). The single point of error presented by Buchanan requires this court to determine whether the trial court erred in dismissing the case and refusing to reinstate it. We affirm.
Buchanan filed suit against the appellees on September 27, 1978, alleging their responsibility for publication of a false, malicious, and defamatory letter about him and seeking $10,000 in damages. The appellees responded with defensive pleadings and a counterclaim. Beginning in February, 1980, the case was called for trial at several docket calls and all parties announced ready, but the case was never reached.
On Friday, December 12, 1980, the case was again called at docket call, all parties announced ready and the case was set as the number eight case for the following Monday, December 15. On Monday afternoon, the trial judge called the office of Buchanan's counsel and left word with a secretary that the case would go to trial on Tuesday, December 16, 1980, at 9:00 a. m. 1 When Buchanan's counsel did not appear Tuesday at 9:00 a. m., the trial judge called him at his office and told him to be in court by 9:30 a. m. in order to begin jury selection. Buchanan's counsel arrived at the courtroom within a few minutes, sans Buchanan or witnesses, and a discussion ensued between all counsel and the court. Upon the representation that Buchanan was at work, but would be available with his witnesses the next day, the trial judge told counsel he would permit them to pick a jury that day and begin testimony the next morning.
Soon thereafter, and before the voir dire examination had commenced, Buchanan appeared in the courtroom. Further discussion then ensued between the court and counsel. The court, after overruling an oral motion for continuance by Buchanan's counsel, 2 ordered the parties to select a jury and told counsel to "use the witnesses that you've got, and then we'll go ahead and continue until tomorrow." After more discussion, the following exchange occurred between the court and Buchanan's counsel:
After the occurrence of other matters not pertinent here, the following discussion ensued:
After the trial court dismissed the case, Buchanan filed a motion for reinstatement, alleging that his failure to go to trial "was not intentional or the result of conscience (sic) indifference, but was due to the failure of Plaintiff to receive actual notice with sufficient time to appear, with his witnesses, and go to trial." The trial court heard, and denied, the motion.
At the motion hearing Buchanan testified that he was aware his case was set for trial the week of December 15, but was not aware of the exact date until he received a telephone call from his counsel on the morning of the trial. He also testified he decided to refuse to proceed to trial because he was not able to present his witnesses and was not properly dressed for trial. Buchanan admitted, on cross-examination, that on the day of trial he had not asked for an opportunity to change clothes.
Buchanan's counsel testified that he attended the docket call on December 12 and that the case was originally set as the first case for Monday, December 15. He requested the case be continued until after Monday because of a conflict and announced ready subject to his Monday conflict. The court then set the case as the number eight case for the trial week. Counsel further testified that, shortly after he arrived at his office at approximately 9:00 a. m. on Tuesday, December 16, the trial judge called him and told him the case was going to trial at 9:30. Thereafter, counsel went to the courthouse and the events leading to the dismissal occurred.
Counsel admitted, on cross-examination, that he had intended to call only one witness, in addition to Buchanan, when presenting his case in chief. The witness was in Odessa, approximately a three-hour drive from the courthouse, and counsel wanted that witness to testify before Buchanan testified. Counsel also admitted that it probably would have taken all morning to pick the jury and testimony would not have commenced before 1:00 p. m., but he did not contact the Odessa witness after he learned the case was going to trial.
The trial judge then made statements for the record concerning his calls to Buchanan's counsel and offered counsel an opportunity to cross-examine him. Counsel replied, "No, sir, I have no dispute as to what you said occurred." The motion for reinstatement was denied.
In this court, Buchanan contends the trial court erred in dismissing the case and refusing to reinstate it. We do not agree.
Initially, it is necessary to define the perimeters within which this case is to be resolved. This is not a Rule 165a case. 3 See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976); ...
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