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Gray v. Estell3/22/2001
Kenneth L. Harris appeals pro se the trial court's final order of dismissal. In three points for review, Harris contends the trial court erred in denying a motion to substitute and excluding him from the lawsuit, dismissing the entire lawsuit for want of prosecution, and taxing court costs against him. We overrule Harris's three points for review and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit was originally filed pro se by Yolanda Gray, Alnita Nelson, and Christopher Williams against Jerry Estell and Colonial Penn Insurance Company (Colonial Penn) for personal injuries resulting from an automobile collision. Estell and Colonial Penn answered, counterclaimed that the suit was groundless and brought in bad faith or for the purpose of harassment, and requested attorney's fees and court costs. The original plaintiffs then filed a notice of assignment of all their "rights to all causes of action and to all theories of recovery" in the lawsuit to Harris. After the assignment was filed, the Unauthorized Practice of Law Committee of the Supreme Court of Texas filed a plea in intervention and application for injunctive relief and contempt of court to prevent Harris, who is not a licensed attorney, from practicing law, alleging the assignment was a subterfuge to allow Harris to practice law. Estell filed a motion to exclude Harris from participation in this case, and Harris filed a motion for substitution of parties. Harris also moved to strike the intervention.
A hearing was held and the decision taken under advisement concerning Estell's and Harris's motions. Before a decision was rendered, the trial court held a hearing on the application for temporary injunction. Testimony of witnesses and documentary evidence was presented to the court. Based on the evidence, the court found that Harris had been enjoined from the practice of law by the 134th District Court of Dallas County. The trial court further found that Harris's action in being substituted as a party in the suit was in furtherance of his attempt to continue to practice law. The trial court denied Harris's motion for substitution of parties, granted Estell's motion to exclude Harris from participation in this case, ordered that Harris was to file no further pleadings in the cause, and dismissed with prejudice "all causes of action alleged" by Harris. The trial court then gave the original plaintiffs thirty days to appear either in person or by a licensed attorney. When the original plaintiffs did not appear in person or by attorney, the trial court entered judgment dismissing with prejudice all causes of action against all parties and assessing costs against the original plaintiffs and Harris. Harris appeals.
DENIAL OF SUBSTITUTION
In Harris's first point for review, he contends that the trial court erred in denying his motion to substitute and excluding him from the suit as a matter of law. He argues that he presented evidence to prove the assignment is a legally valid document and that there is no evidence the original plaintiffs did not intend to assign their rights to him.
We review the granting or denial of a substitution under an abuse of discretion standard. See Varme v. Gordon, 881 S.W.2d 877, 882-83 (Tex. App._Houston [14th Dist.] 1994, writ denied) (discussing trial court's discretion under rule of civil procedure 141 to drop misjoined party); Ohmart v. Highbarger, 43 S.W.2d 975, 975-76 (Tex. Civ. App._San Antonio 1931, writ ref'd) (noting court has wide discretion in adding parties to suit). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court
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