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Sommerfeld v. Enderle3/1/2001
Tammy Sommerfeld filed a personal injury lawsuit against Maria Enderle on April 8, 1996. No service of citation was had upon the defendant. The trial court dismissed the suit for want of prosecution on April 18, 2000. The sole point of error raised on appeal contends the trial court erred in dismissing the suit "because plaintiff had just been given information where defendant could be served."
A dismissal for want of prosecution is subject to an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). No reporter's record of the hearing on the motion to retain was filed in the record of this appeal.
On appeal, Sommerfeld claims that in February 2000 her attorney became aware that Enderle was still living at her old address; Sommerfeld further claims the district court refused to issue the citation because a motion to dismiss had been filed. We find no support in the record for the factual averments contained in the appellant's brief. Sommerfeld did not include Enderle's address in her original petition, and the citation prepared by the clerk contains no address for service. The motion to retain, which was filed after the suit was placed on the dismissal docket, alleges that Sommerfeld had recently obtained a new address for service, but Enderle's address does not appear in either the motion or the citation issued the day Sommerfeld filed the motion to retain. The motion does not even allege what efforts were taken to locate the defendant. A citation issued after the case was placed on the dismissal docket, there is no motion to dismiss in the clerk's record, and the trial court's order states that appellant did not appear to show cause why the cause should not be dismissed.
We hold that the trial court did not abuse its discretion in dismissing the suit for want of prosecution. The judgment is affirmed.
AFFIRMED.
Submitted on February 23, 2001
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