1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O . 09
- 18
- 00226
- CV

__________________ ALBERT HADNOT SR. , Appellant
V.
CHEAD ADAMS , Appellee

__________________________________________________________________ On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 35836

__________________________________________________________________ MEMORANDUM OPINION
Albert Hadnot Sr. appeals the judgment dismissing his lawsuit against Chead
Adams after Hadnot failed to appear for trial. In his appeal, Hadnot argues his case
should be reinstated because it has merit. But he did not argue he was deprived of due process , nor does he argue the trial court abused its discretion by failing to
reinstate his case based on his post

- judgment motion to cha nge venue. After reviewing the arguments Hadnot presents in his brief, w e affirm.2 Background
I n September 2016 , Albert Hadnot Sr. sued Chead Adams on claims under the wrongful death and survival statutes

. 1 Acting pro se , the petition Hadnot filed alleges that his girlfriend and their child , Albert Hadnot Jr., died in a fire that broke out while his son and girlfriend were asleep. H adnot woke up in time to escape, but despite his efforts, he failed to save the others from the fire. Hadnot alleged Adams owned the home, and that Adams’ negligence caused the injuries and deaths of his girlfriend and son

. In October 2016, Adams answered the suit. Just over two months later, Adams
filed a counterclaim , alleg ing that Hadnot caused the fire when he fell asleep while smoking on a couch

. On Monday, April 23, 2018, the trial court called the case to trial. Hadnot failed to appear. O n May 3, 201 8 , the trial court dismissed Hadnot’s claims with prejudice, noting in its judgment that the case had previously been dismissed after
an earlier setting and then refiled

. T he trial court dismissed all other claim s without prejudice.

1 Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001

- .012 (West 2008 & Supp.) (Wrongful Death) , §§ 71.021

- .051 (West 2008 & Supp.) (Survival).3 Do the me rits matter? In his appeal, Hadnot argues his case has merit because a fire investigator’s report supports his argument that Adams breached his duties as a landlord. H adnot also accused Adams of attempting to hire someone after the fire to kill him

. But
Ha dnot never attacked the process the trial court followed in dismissing his case in the trial court or in his appeal

. 2
The scope of our review for appeals limits what we can decide to th ose arguments the appellant preserved at trial and present ed in his brief. 3 Here, Hadnot argues his wrongful death and survival claims should not have been dismissed because they have merit , but t he record shows the trial court dismissed the case not
for lack of merit but because Had not failed to appear when the court called the case
for trial. 4 Rule 165a( 1 ) of the Texas Rules of Civil Procedure authorize a court to

2 The trial court’s record shows that Hadnot had notice of the trial setting. In a fax Hadnot sent the court in November 2017, Hadnot requested the trial setting. The trial court’s clerk notified him immediately by return f ax that the case would be set on the court’s docket for the week beginning April 23, 2018. The record also shows that Hadnot requested bench warrants for earlier trial settings

. B ut the record does not show that he request ed a bench warrant, or sought to c ontinue the April 23, 2018, setting.

3 See Pat Baker Co., Inc. v. Wilson , 971 S.W.2d 447, 450 (Tex. 1998).

4 See Tex. R. Civ. P. 247 (“Every suit shall be tried when it is called, unless continued or postposed to a future day or placed at the end of the docket to be called again for trial in its regular order.”)

.4 di s mis s a case if a party seeking affirmative relief fails to appear for a trial setting o f which the party had notice. 5 Hadnot does not claim he never received notice of the April 2018 setting

. W hile Hadnot filed a post

- judgment motion seeking a change of

venue, he never complained in that motion that the trial court should have reinstate d
his case. 6 Finally, Hadnot has not argu ed either here or in the court below that his
case should not have been dismissed with prejudice

. 7
Hadnot failed to complain in his appeal about the reason the trial court
dismiss ed his case , which was because he fail e d to appear for t rial. Since the question of whether the claims he filed against Adams have merit w as not the basis for the
dismissal , Hadnot left the reason for the trial court’s ruling unchallenged in his brief

. W e overrule the issue he presents on appeal because it does not attack the basis on
which the trial court dismissed his case

. For the reasons explained above, the trial court’s judgment is
AFFIRMED.

5 Id . 165a(1).

6 See generally id

. 1 65a.

7 T o obtain a reversal for an alleged error dismissing a case with prejudice, the appellant must preserve the error in the trial court and argue it in the appeal

. See Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008) ; Bridwell v. Mulder , 315 S.W.3d 657, 659 (Tex. App.

— Dallas 2010, no pet.).5 _________________________ HOLLIS HORTON Justice
Submitted on November 19, 2019 Opinion Delivered January 23, 2020 Before McKeithen, C.J., Kreger and Horton, JJ.