REVERSI and REMAND; Opinion issued November 8. 2012

In The 

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CLEVELAND GREEN, 111, Appellant V. MARY ALICE KAPOSTA, Appellee
On Appeal from the 256 th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-08-00007 

### MEMORANDUM OPINION Before Justices Morris, Francis. and Murphy Opinion By Justice Morris This appeal follows a secondorderofdismissal forwantofprosecution in ClevelandGreen, III’s suit for divorce. Green contends, as he did in his appeal ofthe trial court’s first order of dismissal, that the trial court erred in dismissing his case without allowing him to appear at the dismissal hearing either inperson orby alternative means. We sustained Green’s issues inhis first appeal and. based on essentially identical facts, we do so again. Accordingly. we reverse the trial courfs second order ofdismissal and remand the cause for furtherproceedings. I. Cleveland Green. lii is an inmate in a Texas penitentiary appearing pro se. Green filed his original petition for divorce on January 2, 2008 and requested service ofcitation on Mary AliceKapostaather lastknown address or service by publication. Along with his petition, Green filed an affidavit ofinahiIliv to pay costs. Less than two weeks allerthe suit was filed, the trial court sent Green a notice of dismissal for want ofprosecution setting a hearing for July 8, 2008. Green responded by filing a good cause motion and arequest to appear at the hearing by alternative means. Green filed a second motion to appearby alternative means on April 18. Withoutruling oneitherofGreen’smotions, thetrial court dismissed the suit on July 1 0. Green appealed. On November 24, 2009, this Court issued an opinion concluding that the trial court abused its discretion in dismissing Green’s suit without acting on his motion to appear at the dismissal hearing through alternativemeans. See Greenv. Kaposa,No. 05-08-01 041 -CV. 2009 WL4045249. at *I (Tex. App.—Dallas Nov. 24, 2009, no pet.) (mem. op.). We reversed the trial court’s order and remanded the cause for furtherproceedings. The mandate issued on February 8. 201 0. Approximately two months after we issued our mandate, the trial court again sent Green a notice of dismissal for want ofprosecution setting a hearing for May II, 2010. Green again responded by filing good cause motion and arequestto appeareitherthrough abench warrant orby alternative means. OnJune 27, Green sent boththis Court andthe trial court a letter stating thatthe trial court had 1gnored all attempts to ascertain whetheror notthe Court acknowledged [Green’s] pleadings or issued an order ofdismissal.” Finally, on August 5. 2010, the trial court signed an order stating “this case was reached on the docket and there being a failure to prosecute same. the court is ofthe opinion that said case should be dismissed for want ofprosecution.” Green appeals the trial court’s second order ofdismissal. 11. This appeal is, in all material respects, identicalto Green’s earlierappeal. The record showsthat Green could notphysicallyappear in court absentabench warrant and, being indigent, he could not retain the services of an attorney to appear on his behall’. The trial court was inlbrrned of these facts through Green’spleadings. motions, and letters as well asthis Courts November2009 opinion. As our previous opinion also informed the trial court, it is an abuse ofdiscretion to require Green to appear at the dismissal hearing and then dismiss Green’s suit ft’r want ofprosecution without acting on his motion to appear. See id. at * I see also In re Marriage o/ Thiton, 256 S.W.3d 832, 833 (Tex. App.—Dallas 2008, no pet.). Even ifthe trial court determined that Green should not be allowed to appear personally. Green should have been allowed to proceed by affidavit, deposition. telephone, or other effective means. See 

### ho/ion. 256 S.W.3d at 833. Because the trial court has againabused its discretionbydismissing Green’s case forwant ofprosecution withoutacting onhis motion to appear. we reverse the trial court’s order and remand the cause for further proceedings. Based on this conclusion, it is unnecessary for us to address Green’s other arguments.

JOPH1ORRIS _-JST1 CE 101 154F.P05

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## itrirt ut cxas at 1a11a JUDGMENT CLEVELAN[) GREEN, III. Appellant Appeal from the 256th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. DF-08— No. 05-10-01154-CV V. 00007). Opinion delivered by Justice Morris, MARY ALICE KAPOSTA, Appellee Justices Francis and Murphy participating..
In accordance with this Courts opinion ofthis date, the judgment ofthe trial court is REVERSED and this cause is REMANI)ED to the trial court for new trial. it is ORDERED that all parties beartheir own costs on appeal. Judgment entered November 8, 2012.

JOSVH B. MORRIS 5 ’T1CE