07-17-00458CV                                                                                ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
3/23/2018 4:00 PM
Vivian Long, Clerk




                                   APPELLATE NO. 07-17-00458-CV

                                   IN THE COURT OF APPEALS          FILED IN
                                                             7th COURT OF APPEALS
                              FOR THE SEVENTH JUDICIAL DISTRICTAMARILLO, TEXAS
                                       AMARILLO, TEXAS       3/23/2018 4:00:16 PM
                                                                           VIVIAN LONG
                                                                              CLERK

                  DALE ROUSH, INDIVIDUALLY AND AS TRUSTEE OF THE DALE
                                  ROUSH ASSETS TRUST

                                                                                Appellant,
                                                   v.

                  METROPOLITAN LIFE INSURANCE COMPANY AND JOEL HART

                                                                                Appellees.


                                         Appeal From No. 4727
                                  th
                                69 District Court, Sherman County, Texas
                                       The Honorable Ron Enns


                                       BRIEF OF APPELLANT


                     Sprouse Shrader Smith PLLC
                     John F. Massouh, Texas State Bar No. 24026866
                     john.massouh@sprouselaw.com
                     P.O. Box 15008
                     Amarillo, Texas 79105
                     Phone: (806) 468-3300
                     Fax: (806) 373-3454

              ATTORNEY FOR APPELLANT DALE ROUSH, INDIVIDUALLY AND AS
                     TRUSTEE OF THE DALE ROUSH ASSETS TRUST

                                           MARCH 23, 2018
                     IDENTITY OF PARTIES AND COUNSEL
      Pursuant to TEX. R. APP. P. 38.1(a), Appellant, Dale Roush, individually and
as trustee of the Dale Roush Assets Trust, certifies that the following is a complete
list of the names and addresses of the parties and their counsel:
                            Parties                       Counsel
  Appellant     Dale Roush,                 Sprouse Shrader Smith PLLC
                individually and as         John F. Massouh
                trustee of the Dale         P.O. Box 15008
                Roush Assets Trust          Amarillo, TX 79105-5008


 Appellee       Joel Hart                   Lewis Coppedge
                                            Lewis Coppedge, P.C.
                                            112 SW 8th Ave., Suite 301
                                            Amarillo, TX 79101

                                            and

                                            Frederic Wolfram
                                            Wolfram Law Firm, P.C.
                                            600 S. Tyler St., Suite 1406
                                            Amarillo, TX 79101

   Appellee     Metropolitan Life           Jackson and Walker
                Insurance Company and       Scott A. Wheatley
                                            777 Main Street, Suite 2100
                                            Fort Worth, TX 76102-5366




BRIEF OF APPELLANT                                                             Page i
                                                TABLE OF CONTENTS

                                                                                                                        Page

IDENTITY OF PARTIES AND COUNSEL ................................................................. i

INDEX OF AUTHORITIES........................................................................................... iv

STATEMENT OF THE CASE ....................................................................................... 1

REQUEST FOR ORAL ARGUMENT .......................................................................... 2

ISSUES PRESENTED ..................................................................................................... 3

       1. The trial court abused its discretion by denying Plaintiff’s Motion to
          Reinstate this case, as well as abused its discretion by granting Defendants’
          Motion to Dismiss for Want of Prosecution, because Plaintiff has actively
          prosecuted the case, including requesting a trial setting for the Court’s first
          available jury trial docket, which was December 5, 2016. ............................. 3

STATEMENT OF FACTS .............................................................................................. 4

SUMMARY OF THE ARGUMENT ............................................................................. 6

ARGUMENT ..................................................................................................................... 8

   I. Standard of Review ..........................................................................................8

   II. The trial court abused its discretion by granting Appellees’ Motion to
   Dismiss for Want of Prosecution because Appellant has actively prosecuted the
   case, including seeking a December 2016 trial setting; further, the delay in
   prosecution is mitigated by an explained delay due to Mr. Roush’s health. .........8

       A. The trial court abused its discretion by dismissing this case under the two
       grounds found in Texas Rule of Civil Procedure 165a. ...................................10

       B. The trial court abused its discretion by dismissing this case through its
       inherent power to dismiss a case when a plaintiff fails to prosecute its case
       with due diligence. ............................................................................................13



BRIEF OF APPELLANT                                                                                                    Page ii
PRAYER .......................................................................................................................... 16

CERTIFICATE OF COMPLIANCE ............................................................................ 18

CERTIFICATE OF SERVICE ...................................................................................... 19

APPENDIX ...................................................................................................................... 20




BRIEF OF APPELLANT                                                                                                       Page iii
                                   INDEX OF AUTHORITIES


Cases                                                                                                  Page
City of San Benito v. Rio Grande Valley Gas Co.,
       109 S.W.3d 750 (Tex. 2003). ......................................................................... 8

Downer v. Aquamarine Operators, Inc.,
    701 S.W.2d 238 (Tex. 1985). .......................................................................... 8

Dueitt v. Arrowhead Lakes Prop. Owners, Inc.,
      180 S.W.3d 733 (Tex. App.—Waco 2005, pet. denied). ............................... 8

Fedco Oil Co. v. Pride Ref. Co.,
     787 S.W.2d 572 (Tex. App.—Houston [14th Dist.] 1990, no writ). ............ 15

In re Connor,
       458 S.W.3d 532 (Tex. 2015). .......................................................................15

In re Fifty-One Gambling Devices,
       298 S.W.3d 768 (Tex. App.—Amarillo 2009, pet. denied). ........................ 10

In re S.D.W.,
       811 S.W.2d 739 (Tex. App.—Houston [1st Dist.] 1991, no writ). .............. 11

Jones v. Morales,
      318 S.W.3d 419 (Tex. App.—Amarillo 2010, pet. denied). ....................10,11

King v. Holland,
      884 S.W.2d 231 (Tex. App.—Corpus Christi 1994, writ denied).....7,9,13,16

Lessard v. Velsicol,
      No. 13-00-00113-CV, 2009 Tex. App. LEXIS 2811, at *1 (Tex. App.—
      Corpus Christi Apr. 23, 2009, pet. denied) (mem. op.). ............................... 11

Maida v. Fire Ins. Exchange,
     990 S.W.2d 836 (Tex. App.—Fort Worth 1999, no pet.). ................7,9,13,16




BRIEF OF APPELLANT                                                                                   Page iv
Moore v. Armour & Co.,
     660 S.W.2d 577 (Tex. App.—Amarillo 1983, no writ). .............................. 14


Rorie v. Avenue Shipping Co.,
      414 S.W.2d 948 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e). ..... 14

State v. Rotello,
       671 S.W.2d 507 (Tex. 1984). ......................................................................... 8

Villarreal v. San Antonio Truck & Equip.,
       994 S.W.2d 628 (Tex. 1999). .................................................................7,9,13

Statutes
TEX. R. CIV. P. 165a ........................................................................................6,8,9,10
TEX. R. JUD. ADMIN. 1.............................................................................................10
TEX. R. JUD. ADMIN. 6..................................................................................7,9,10,11
TEX. GOV’T CODE ANN. § 74.024 (West 2017)........................................................ 10

Other
BLACK’S LAW DICTIONARY (10th ed. 2014) .............................................................11




BRIEF OF APPELLANT                                                                                          Page v
                        STATEMENT OF THE CASE
      On June 13, 2016, the Court in this matter dismissed the claims of Plaintiff

and Appellant, Dale Roush, individually and as trustee of the Dale Roush Assets

Trust (“Roush”), with prejudice, by granting Defendants’ Motion to Dismiss for

Want of Prosecution. C.R. 56-58. On December 22, 2016, Appellant filed his

Notice of Appeal. C.R. 87-88.




BRIEF OF APPELLANT                                                         Page 1
                     REQUEST FOR ORAL ARGUMENT
      Pursuant to TEX. R. APP. P. 39.7, Appellant, Dale Roush, individually and as

trustee of the Dale Roush Assets Trust, requests permission to make oral

arguments upon submission of this cause to the Court of Appeals. Oral argument

would grant the Court of Appeals a better opportunity to understand the

complexity of the case and the special circumstances surrounding the case.




BRIEF OF APPELLANT                                                           Page 2
                               ISSUES PRESENTED
      1.     The trial court abused its discretion by granting Defendants’ Motion

to Dismiss for Want of Prosecution, as well as abused its discretion by denying

Plaintiff’s Motion to Reinstate this case, because Plaintiff has actively prosecuted

the case, including requesting a trial setting for the Court’s first available jury trial

docket, which was December 5, 2016.




BRIEF OF APPELLANT                                                                Page 3
                           STATEMENT OF FACTS
      This case has a long and winding history that includes the following:

multiple lawyers representing the different parties, health issues of the Plaintiff,

multiple summary judgment motions, a three year delay in ruling on the summary

judgment motions, attempted consolidation with related matters, and the

bankruptcy of party Tejas Farms. See C.R. 70-86. While this case has undoubtedly

been pending for a number of years, the long and sordid history of the case is not

the fault of Appellant, but merely a circumstance of such a complex case with

special circumstances. A very abbreviated overview of the various pleadings and

motions throughout the history of this case is detailed below:

Date of Filing:   Description of Filing:                         Record Citation:
07/10/2006        Plaintiff’s Original Petition                  C.R. 70
08/07/2006        Defendant Hart’s Answer and Counterclaim       C.R. 70
09/06/2006        Defendant Metropolitan’s Answer and            C.R. 70
                  Cross-claim
11/13/2007        Motion for Withdrawal and Substitution of      C.R. 71
                  Counsel for Defendant
02/22/2008        Notice of Hearing on Motion to Compel          C.R. 71
03/07/2008        Plaintiff’s Motion to Compel Deposition of     C.R. 71
                  Hart and Brief in Support
01/15/2009        Metropolitan’s Motion for Summary              C.R. 72
                  Judgment and No Evidence Motion for
                  Summary Judgment on Roush’s Claim for
                  Conversion of Real Property
01/20/2009        Hart’s Motion to Consolidate                   C.R. 73
02/23/2009        Plaintiff’s First Amended Petition             C.R. 73
02/25/2009        Metropolitan’s Motion to Strike Plaintiff’s    C.R. 74
                  Amended Petition
03/02/2009        Metropolitan’s Brief in Support of Motion      C.R. 74-75
                  for Summary Judgment
BRIEF OF APPELLANT                                                            Page 4
03/11/2009       Hart’s Second Amended Answer                    C.R. 77
03/16/2009       Metropolitans First Amended Answer,             C.R. 77
                 Special Exceptions, and Cross-claim
03/20/2009       Plaintiff’s Second Amended Petition             C.R. 77
03/25/2009       Suggestion of Bankruptcy of Defendant           C.R. 77
                 Tejas Farms, Ltd.
03/25/2009       Hart’s Motion for Summary Judgment              C.R. 77
                 against Metropolitan
03/25/2009       Hart’s Motion for Summary Judgment              C.R. 77-78
                 Against Plaintiff
04/17/2009       Defendant’s Motion for Substitution of          C.R. 80
                 Counsel
04/17/2009       Notice of Hearing on Plaintiff’s Motion to      C.R. 81
                 Compel Deposition of Hart
04/17/2009       Plaintiff’s Third Amended Petition              C.R. 82
04/17/2009       Plaintiff’s Notice of Lis Pendens               C.R. 83
05/26/2009       Order Granting Metropolitan’s Conditional       C.R. 84
                 Motion for Summary Judgment
10/14/2009       Motion to Consolidate by Roush and Hart         C.R. 85
10/21/2009       Hart’s Motion for Summary Judgment              C.R. 85
2/16/2012        Order denying Motion for Summary                C.R. 86
                 Judgment
10/05/2012       Defendant’s Motion to Withdraw                  C.R. 86
10/10/2012       Order Granting Motion to Withdraw               C.R. 86
12/30/2015       Motion for Substitution of Counsel for          C.R. 86
                 Defendants


      As clearly demonstrated from the above filings, which only represent a very

small portion of the trial court’s complete index, this case has been pending with

the trial court for the amount of time due to the complexity and ever-changing

nature of the case, attorneys, and parties involved in the lawsuit and due to a

mitigated and explained delay. After Mr. Roush began representing himself, he

suffered injuries from car accidents and a dramatic fall that has not allowed him to

BRIEF OF APPELLANT                                                            Page 5
adequately function from day-to-day and hampered his prosecution of the case.

      Mr. Roush assumed responsibility for prosecuting this case after he granted

his attorneys’ withdrawal from the case in 2012. On August 28, 2014, Mr. Roush

was involved in a car accident in Taos, New Mexico. C.R. 67. The accident

necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr.

Roush was involved in a second car accident that exasperated his previous health

condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic

fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him

to stay ten days in the hospital, of which nearly half was in the intensive care unit.

C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R.

67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016,

he underwent surgery to correct the injury to his shoulder.

                       SUMMARY OF THE ARGUMENT
      The Court abused its discretion by granting Defendants’ Motion to Dismiss

for Want of Prosecution, and this Court should therefore reverse the trial court’s

judgment and remand this case to the trial court for trial on the merits.

      Under Texas Rule of Civil Procedure 165a, there are two grounds for

dismissal for want of prosecution. Only one is applicable in this case. The

applicable discretionary ground generally applies when a case is “not disposed of

within [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P.


BRIEF OF APPELLANT                                                             Page 6
165a(2) (referencing the administrative rules promulgated by the Texas Supreme

Court). Under this ground, a trial court has the discretion to dismiss for want of

prosecution whenever a case is not disposed of in eighteen months. See TEX. R.

JUD. ADMIN. 6.1(a)(1). However, though this is the general rule, it is not the rule

for complex cases: "It is recognized that in especially complex cases or special

circumstances it may not be possible to adhere to these standards." Id. R. 6.1(e).

This case is both complex and involves special circumstances, as clearly identified

in the Statement of Facts section of this brief and set forth in the 16 page docket

index. C.R. 70-86. Therefore, the general discretionary rule, requiring a case’s

disposal within eighteen months, is inapplicable in this matter, and the trial court

abused its discretion in dismissing the case pursuant to Rule 165a.

      Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of civil procedure when a plaintiff fails to

prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628, 631-32 (Tex. 1999). The factors a trial court may consider in

dismissing a case under its inherent power include: the length of time the case is on

file, the extent of activity in the case, whether a trial setting was requested, and the

existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990

S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland,

884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this

BRIEF OF APPELLANT                                                               Page 7
case has been on file for a number of years, there has been extensive activity in the

case, including Appellant requesting a December 5, 2016 jury trial following the

undersigned’s substitution as counsel for Appellant. C.R. 70-96; APP’X n. 3 ¶ 8.

Further, Mr. Roush suffered a number of injuries from two car accidents and a fall

that mitigate and explain the delay in prosecution. C.R. 67-69. The trial court

abused its discretion in dismissing this case pursuant to its inherent powers.

                                   ARGUMENT

I. Standard of Review
      Courts of Appeal review dismissals for want of prosecution under an abuse-

of-discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Dueitt v.

Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco

2005, pet. denied). A trial court abuses its discretion when it acts “without

reference to any guiding rules or principles, or, stated another way, when the trial

court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio

Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

II. The trial court abused its discretion by granting Appellees’ Motion to
    Dismiss for Want of Prosecution because Appellant has actively
    prosecuted the case, including seeking a December 2016 trial setting;
    further, the delay in prosecution is mitigated by an explained delay due to
    Mr. Roush’s health.
      Under the second discretionary ground of Texas Rule of Civil Procedure

165a, a trial court has the power to dismiss a case that is “not disposed of within
BRIEF OF APPELLANT                                                               Page 8
[the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2).

Though this is the general discretionary rule, “it is recognized that in especially

complex cases or special circumstances it may not be possible to adhere to these

standards." TEX. R. JUD. ADMIN. 6.1(e). This case is both complex and involves

special circumstances; therefore, the trial court should not have dismissed

Appellant’s claims pursuant to this ground. This Court should reverse the trial

court’s judgment and remand the case for trial on the merits.

      Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of civil procedure when a plaintiff fails to

prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628, 631-32 (Tex. 1999). Trial courts may consider a number of

factors in determining whether or not to dismiss the case in accordance with its

inherent power. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.—

Fort Worth—1999, no pet.) (Factors a trial court may consider in dismissing under

its inherent power include the length of time the case was on file, the extent of

activity in the case, whether a trial setting was requested, and the existence of

reasonable excuses for delay) (citing King v. Holland, 884 S.W.2d 231, 237 (Tex.

App.—Corpus Christi 1994, writ denied)). When considering these factors in light

of the facts of this case, Appellant’s case should not have been dismissed through

the trial court’s inherent power. This constitutes an abuse of discretion.

BRIEF OF APPELLANT                                                           Page 9
      A.     The trial court abused its discretion by dismissing this case under
             the two grounds found in Texas Rule of Civil Procedure 165a.

      Under Texas Rule of Civil Procedure 165a, there are two grounds for

dismissal for want of prosecution. One is when a “party seeking affirmative relief

[fails] to appear for any hearing or trial of which the party had notice.” TEX. R.

CIV. P. 165a(1). This ground is inapplicable to this case. The second discretionary

ground generally applies when a case is “not disposed of within [the] time

standards promulgated by the Supreme Court.” Id. R. 165a(2) (referencing the

administrative rules promulgated by the Texas Supreme Court). Under this ground,

a trial court has the discretion to dismiss for want of prosecution in a case

whenever it is not disposed of in eighteen months. See TEX. R. JUD. ADMIN.

6.1(a)(1).

      According to Rule 1 of the Rules of Judicial Administration, the rules are

promulgated pursuant to § 74.024 of the Texas Government Code. TEX. R. JUD.

ADMIN. 1. Section 74.024 provides "the supreme court may consider the adoption

of rules relating to: (1) nonbinding time standards for pleading, discovery, motions,

and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the

dismissal is warranted . . . ." TEX. GOV'T CODE ANN. § 74.024(c)(1),(2) (West

2017) (emphasis added). Thus, the application of Rule 6 is discretionary and non-

binding. Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet.

denied); see also In re Fifty-One Gambling Devices, 298 S.W.3d 768, 774 (Tex.

BRIEF OF APPELLANT                                                           Page 10
App.—Amarillo 2009, pet. denied); In re S.D.W., 811 S.W.2d 739, 746 (Tex.

App.—Houston [1st Dist.] 1991, no writ) (juvenile case). In other words, “Rule

6 does not fix a bright line demarking the outward limit of a trial court's discretion

to control its docket.” Jones, 318 S.W.3d at 427. Dismissal after eighteen months

is not warranted in this case, as it is not a bright-line rule. The trial court, based on

the complexity of this case, should not have dismissed the case based on its failure

to come to a resolution within eighteen months.

      Additionally, though an eighteen-month guideline promulgated by the Texas

Supreme Court is the general discretionary rule, a closer examination of Rule 6

reveals subsection (e), titled “Complex Cases”: "It is recognized that in especially

complex cases or special circumstances it may not be possible to adhere to these

standards." TEX. R. JUD. ADMIN. 6.1 (e). Therefore, the Supreme Court has carved

out an exception to the general timetable that allows more time for complex cases

or special circumstances. See Lessard v. Velsicol, No. 13-00-00113-CV, 2009 Tex.

App. LEXIS 2811, at *13 n. 5 (Tex. App.—Corpus Christi Apr. 23, 2009, pet.

denied) (mem. op.). While the statute does not define “complex case,” Black’s

Law Dictionary defines “complex litigation” as: “Litigation involving several

parties who are separately represented, and usu. involving multifarious factual and

legal issues.” Complex Litigation, BLACK’S LAW DICTIONARY (10th ed. 2014) 1075.

      This case is both complex and involves special circumstances, including but

BRIEF OF APPELLANT                                                               Page 11
not limited to: multiple lawyers representing the different parties, health issues of

the Plaintiff, multiple summary judgment motions, a three year delay in ruling on

the summary judgment motions, attempted consolidation with related matters, and

the bankruptcy of party Tejas Farms. See C.R. 70-86. This case squarely fits the

definition of “complex litigation” as defined by Black’s Law Dictionary. In fact,

the civil docket sheet, or “index,” in this matter is seventeen pages long, and

contains over one-hundred and thirty entries. C.R. 70-96. The present case is not a

“normal” case, and it is not a case in which Appellant failed to take any sort of

action.

      Appellant has recently been actively prosecuting this case. On May 16,

2016, the law firm of Sprouse Shrader Smith, PLLC noticed an appearance on

behalf of Appellant. C.R. 50-51. Following the undersigned’s appearance,

Appellant requested the case be set for the Court’s first available jury trial docket

on December 6, 2016. APP’X n. 3 ¶ 8. Further, Appellant announced ready for trial

in its Verified Motion to Reinstate. C.R. 63.

      The Court should not have dismissed Appellant’s claim pursuant to the 18-

month discretionary timetable ground for two reasons: (1) this timetable is

nonbinding on the trial court, and the trial court abused its discretion in dismissing

the case pursuant to this timetable; and (2) this case is a “complex case” with

special circumstances, and the 18-month timetable is therefore inapplicable to this

BRIEF OF APPELLANT                                                            Page 12
matter and the trial court therefore abused its discretion in dismissing the case

pursuant to this timetable. The trial court clearly abused its discretion in dismissing

the case for want of prosecution, and in dismissing the matter while Appellant was

clearly prosecuting its claim and stood ready for trial.

      B.    The trial court abused its discretion by dismissing this case
            through its inherent power to dismiss a case when a plaintiff fails
            to prosecute its case with due diligence.
      Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of procedure when a plaintiff fails to prosecute

his case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d

628, 631-32 (Tex. 1999). The factors a trial court may consider in dismissing a

case under its inherent power include: the length of time the case is on file, the

extent of activity in the case, whether a trial setting was requested, and the

existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990

S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland,

884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this

case has been on file for a number of years, there has been extensive activity in the

case, up to the point where Appellant requested a trial setting for December 2016.

C.R. 70-86; APP’X n. 3 ¶ 8. Additionally, Appellant has reasonable excuses for its

delay in prosecution, namely: he has been involved in two car accidents and a

traumatic fall that prevented the further prosecution of this case. C.R. 67-69. This


BRIEF OF APPELLANT                                                             Page 13
all occurred while appellant was representing himself pro se.

      “Where . . . at the time of the dismissal hearing the plaintiff has announced

ready for trial and has secured a trial setting or is otherwise making a diligent effort

to get the case to trial, the case should not be dismissed for lack of prosecution.”

Moore v. Armour & Co., 660 S.W.2d 577, 578 (Tex. App.—Amarillo 1983, no

writ) (citing Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ.

App.—San Antonio 1981, writ ref’d n.r.e.)). Appellant requested a trial setting of

December 5, 2016 prior to the dismissal of this case. APP’X n. 3 ¶ 8. Further,

Appellant announced “ready for trial” in its Verified Motion to Reinstate. C.R. 63.

In Moore, Plaintiff Moore “had announced trial ready, secured a trial setting and . .

. stood ready to go to trial when his case was dismissed.” 660 S.W.2d at 578.

Similarly, Appellant requested a trial setting for December 2016, and Appellant

stood ready to stand trial at the time of dismissal. APP’X n. 3 ¶ 8; C.R. 63.

Therefore, “a dismissal under these circumstances is an abuse of discretion.”

Moore, 660 S.W.2d at 578.

      The Fourteenth Court of Appeals in Houston agreed with the Amarillo Court

of Appeals’ reasoning in Moore:

    In Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo 1983, no
    writ), the court held that the trial judge abused his discretion in dismissing a
    case for want of prosecution where, at the time of the dismissal hearing, the
    plaintiff had announced ready for trial and had secured a trial setting or was
    otherwise making a diligent effort to get the case to trial. Id. at 578. We agree
    with this reasoning.
BRIEF OF APPELLANT                                                              Page 14
    Accordingly, in the instant case, we find the trial court abused its discretion in
    dismissing appellants’ causes of action for want of prosecution where this
    record unquestionably shows that appellant Billingsley was making a diligent
    effort to get the case to trial, and that trial settings had twice been secured for
    the case.

Fedco Oil Co. v. Pride Ref. Co., 787 S.W.2d 572, 575 (Tex. App.—Houston [14th

Dist.] 1990, no writ). The trial court in this case abused its discretion in dismissing

Appellant’s causes of action for want of prosecution because Appellant was

making a diligent effort to get the case to trial and had announced ready for trial

and attempted to obtain a trial setting prior to dismissal of the cause. APP’X n. 3 ¶

8; C.R. 63.

      Finally, Appellant has reasonable excuses for its delay in prosecution. See In

re Connor, 458 S.W.3d 532 (Tex. 2015). On August 28, 2014, Mr. Roush was

involved in a car accident in Taos, New Mexico. C.R. 67. The accident

necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr.

Roush was involved in a second car accident that exasperated his previous health

condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic

fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him

to stay ten days in the hospital, of which nearly half was in the intensive care unit.

C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R.

67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016,

he underwent surgery to correct the injury to his shoulder.
BRIEF OF APPELLANT                                                             Page 15
       Further, prior to Appellees’ Motion to Dismiss for Want of Prosecution,

Appellant was actively engaged in the furtherance of this lawsuit. First, Appellant

requested a trial setting for December 5, 2016. APP’X n. 3 ¶ 8. Second, Appellant

was ready for trial prior to the case’s dismissal. C.R. 63. By considering these

factors, which the trial court should have considered prior to dismissal of the

lawsuit, it is clear that the trial court abused its discretion in dismissing Appellant’s

claims. Maida, 990 S.W.2d at 842 (citing King, 884 S.W.2d at 237). This Court

should therefore reverse the final judgment of the trial court and remand the case

for trial on the merits.

                                       PRAYER
       WHEREFORE, Appellant prays that this Court conduct oral arguments, and

reverse and remand this matter to the trial court as reinstated due to the fact that the

trial court abused its discretion in dismissing Appellant’s claims for want of

prosecution.




BRIEF OF APPELLANT                                                               Page 16
                     Respectfully submitted,

                     SPROUSE SHRADER SMITH PLLC
                     John F. Massouh, State Bar No. 24026866
                     John.massouh@sprouselaw.com
                     701 S. Taylor, Suite 500
                     P. O. Box 15008
                     Amarillo, Texas 79105-5008
                     Phone: (806) 468-3300; Fax: (806) 373-3454


                     /s/ John F. Massouh
                     John F. Massouh

                     ATTORNEY FOR APPELLANT
                     PANTEX SALES, INC. D/B/A           GRAPHIC
                     EQUIPMENT AND SUPPLY




BRIEF OF APPELLANT                                        Page 17
                     CERTIFICATE OF COMPLIANCE
         1. This petition complies with the type-volume limitation of the Texas

Rules of Appellate Procedure 9.4(i)(2)(A). This brief contains 3266 words,

excluding the parts of the petition exempted by the Texas Rules of Appellate

Procedure.

         2. This brief complies with the typeface requirements of Texas Rules of

Appellate Procedure 9.4. This petition has been prepared in a proportionally spaced

typeface using Microsoft Word 2007 in 14-point font Times New Roman.



                                   /s/ John F. Massouh
                                   John F. Massouh




BRIEF OF APPELLANT                                                         Page 18
                           CERTIFICATE OF SERVICE
      I hereby certify that on March 23, 2018, I electronically transmitted the
foregoing document to the Clerk of the Court using the eFileTexas.gov electronic
system for filing. Based on the records currently on file, the Clerk of the Court will
transmit a Notice of Electronic Filing to the following e-filing registrant:

      Scott A. Wheatley
      Jackson Walker LLP
      777 Main St., Suite 2100
      Fort Worth, TX 76102
      Attorneys for Metropolitan Insurance Company

      Lewis Coppedge
      Lewis Coppedge, P.C.
      112 SW 8th Ave., Suite 301
      Amarillo, TX 79101
      and
      Frederic Wolfram
      Wolfram Law Firm, P.C.
      600 S. Tyler St., Suite 1406
      Amarillo, TX 79101
      Attorneys for Joel Hart
                                       /s/ John F. Massouh
                                       John F. Massouh

14251.05
1039406_1.docx




BRIEF OF APPELLANT                                                            Page 19
                                  APPENDIX

   1. Trial Court’s Order Granting Defendants’ Motions to Dismiss for Want of
      Prosecution

   2. Plaintiff’s Response to Defendants’ Motion to Dismiss for Want of
      Prosecution

   3. Docket Index




BRIEF OF APPELLANT                                                        Page 20
                                                                          ~"" "'" 11111 1111111111 ""1111111111 II 11111111111111 nlllllllill II I11I
                                                                        I#-1015932
                                      CAUSE NO. 4727

DALE ROUSH, Individually and as                §                      IN THE DISTRICT COURT OF
Trustee oftbe Dale Ronsb Assets                §
Trust,                                         §
       Plaintiff,                              §
v.                                             §                      SHERMAN COUNTY, TEXAS
                                               §
METROPOLITAN LIFE                              §
INSURANCE COMPANY, and JOEL                    §
HART,                                          §
     Defendants_                               §                            69 TH JUDICIAL DISTRICT

                        ORDER GRANTING DEFENDANTS'
                 MOTIONS TO DISMISS FOR WANT OF PROSECUTION

TO THE HONORABLE COURT:

        On this day came to be considered Defendant, Metropolitan Life Insurance Company's

Motion to Dismiss for Want of Prosecution and Defendant, Joel Hart's Motion to Dismiss for

Want of Prosecution.

        The Court, having considered the motion, the clerk's record in this matter, any supporting

evidence received and the arguments of counsel, is of the opinion that the Motions to Dismiss for

Want of Prosecution filed by Defendants Metropolitan Life Insurance Company and Joel Hart

should be GRANTED. In support of this decision, the Court FINDS the following:

        I.     This lawsuit was filed on July 10, 2006.

        2.     The Court denied Defendants' motions for summary judgment by Order entered

May 23, 2012. Plaintiff has taken no action to prosecute his case since that date and until he

responded to MetLife's motion to dismiss for want of prosecution. Moreover, this case has been

dormant since the parties completed briefing on the motions for summary judgment in 2009.

        3.     On May 22, 2012, Plaintiffs counsel, John Huffaker advised that he was no

longer with the firm of Sprouse Shrader Smith, p.e. Sprouse Shrader Smith, p.e. filed a motion

to withdraw on October 3, 2012, and the order granting the same was signed on October 8, 2012.
ORDER GRANTING DEFENDANTS'                      FILED
MOTIONS TO DISMISS FOR WANT OR PROSECUTION      GINA GRAY                                                                   PAGE I
16416459,,2                                     COUNTY & DISTRICT CLERK
                                                Filed 06/17/2016 11:23 19AM
                                               56
                                                SH:(~TY TEXAS
                                                BY      .      1O:J   DEPUTY
Plaintiff did not seek new counsel until he retained (once again) the firm of Sprouse Shrader and

attorney Alex Yarbrough in May 2016.

        4.     This case has been pending for almost a decade. Plaintiff has failed to take any

action to prosecute this case since the Court entered the Order denying Defendants' motions for

summary judgment on May 23, 2012. Plaintiff has failed to obtain a trial date, failed to seek any

additional discovery, failed to obtain a scheduling order, failed (until just last month, May 2016)

to hire a new attorney, and has not filed any pleadings during that timefrarne whatsoever.

        5.     Plaintiff s delay in failing to bring this case to trial or final disposition     IS


umeasonable and presumptively and conclusively demonstrates that Plaintiff has abandoned his

suit. The explanation and evidence offered by Plaintiff for the delay and lack of diligence is

insufficient to rebut this conclusive preswnption of abandonment.

        6.     In Defendant Joel Hart's Motion to Dismiss, Joel Hart has stipulated and agreed

to dismiss his counterclaims against the Plaintiff conditioned on the Court granting the Motions

to Dismiss for Want of Prosecution. The Court finds that any and all claims that have been

asserted or could have been asserted by JOEL HART against DALE ROUSH, Individually and

as Trustee of the Dale Roush Assets Trust are in all things dismissed for want of prosecution.

        IT IS THEREFORE ORDERED that, Defendant Metropolitan Life Insurance

Company's Motion to Dismiss for Want of Prosecution is hereby GRANTED.

        IT IS FURTHER ORDERED that Defendant Joel Hart's Motion to Dismiss for Want

of Prosecution is hereby GRANTED.

        IT IS FURTHER ORDERED that all claims asserted by DALE ROUSH, Individually

and as Trustee of the Dale Roush Assets Trust, are hereby and in all things dismissed for want of

prosecution.


ORDER GRA'JTrNG DEFENDANTS'
MOTIONS TO DISMISS FOR WANT OR PROSECUTION                                                   PAGE 2
16416459V.2
                                               57
        IT IS FURTHER ORDERED that any cOlmterclaims and/or cross-claims filed by any

party are hereby dismissed for want of prosecution.

        This is a Final Judgment dispositive of all claims, and is final and appealable.

        Costs shall be borne by each party incurring the same.

        Signed this   13'ftfay of June, 2016.
                                                      JUDGE PRESIDING


AGREED AS TO FORM:




Scott A. Wheatley
Counsel for Metropolitan




Alex Yarbrough
Counsel for Plaintiff




ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS FOR WANT OR PROSECUTION                                                 PAGE]
16416459V.2
                                                58
111111111111111111111111111 11111 111111111 II I1111111111111 11111 1111111111111                                            Filed 5/25/20165:00:17 PM
#·1015744                                                                                                                                   Gina Gray
                                                                                                                                     Combination Clerk
                                                                                                                                Sherman County, Texas

                                                                                                                                    Kelsie Daves
                                                                                    CAUSE NO. 4727

                        DALE ROUSH, Individually and as Trustee                            §          69TH JUDICIAL DISTRICT COURT
                        of The Dale Roush Assets Trust,                                    §
                                                                                           §
                                                       Plaintiff,                          §
                                                                                           §
                        vs.                                                                §          IN AND FOR
                                                                                           §
                        METROPOLITAN LIFE INSURANCE                                        §
                        COMPANY and JOEL HART,                                             §
                                                                                           §
                                                      Defendants.                          §          SHERMAN COUNTY, TEXAS


                                                      PLAINTIFF'S RESPONSE
                                    TO DEFENDANTS' MOTION TO DISMISS FOR WANT OF PROSECUTION

                        TO THE HONORABLE COURT:

                                       Plaintiff, Dale Roush, individually and as Trustee of the Dale Roush Assets Trust, hereby

                        files his response to Defendants' Motion to Dismiss for Want of Prosecution as follows:

                                       The purpose of the Texas Rules of Civil Procedure is to "obtain a just, fair, equitable and

                        impartial adjudication of the rights of litigants under established principles of substantive law"

                        TEX. R. CIV. P. I. Therefore, a "just resolution of a case" almost always "requires a trial on the

                        merits, rather than a dismissal" Valence Operating Co. v. Anadarko Petrol. Corp., 303 S.W.3d

                        435,444 (Tex. App.-Texarkana 2010) (citing Sw. Airlines Co. v. Jaeger, 867 S.W.2d 824, 836

                        (Tex. App.-El Paso 1993);Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 858 (Tex.

                        App.-Houston [1st Dist.] 1993».

                                                                                    A. INTRODUCTION

                                       A trial court's authority to dismiss a case for want of prosecution arises from two sources,

                        (I) Texas Rule of Civil Procedure 165a and (2) the court's inherent power. VillarrealI'. San

                        Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Defendants move to dismiss the

                        present case because it has not been disposed of within the time standards set by the Texas




                                                                                          89
Supreme Court. Therefore, the focus of the following discussion will be why special

circumstances exist making it unreasonably difficult to adhere to the general time standards.

Also, the following will explain why there has been a delay and the reasonable excuses for delay.

       According to the Texas Rules of Civil Procedure, "Any case not disposed of within time

standards promulgated by the Supreme Court under its Administrative Rules may be placed on a

dismissal docket." TEx. R. CIV. P. I 65A(2). A quick reading of Rule 6 of the Rules of Judicial

Administration shows that civil jury cases, such as the present one, should be brought to trial or

final disposition within eighteen months from the appearance date. See TEX. R. JUD. ADMIN.

6b(l). A closer examination of Rule 6 reveals subsection e, which is titled Complex Cases: "ft is

recognized that in especially complex cases or special circumstances it may not be possible to

adhere to these standards." Id. R. 6e. Therefore, the Supreme Court carved out an exception to

the general timetable that allows more time for complex cases or special circumstances. This

case is both complex and involves special circumstances.

       The Texas Supreme Court acknowledges that the eighteen-month standard may not be

suitable for "especially complex cases" or where there are "special circumstances," but the court

never defines these terms. Instead, in exercising its discretion, the trial court is entitled to

consider the entire history of the case to determine whether a dismissal is merited. See

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex.

1984). Considering the entire history of the present case certainly incllides the Pantex Sales, Inc.

d/b/a Graphic Equipment and Supply Suit, the multiple substitutions of counsel, and the Tejas

Farms bankruptcy.




                                                                                          Page 2 0[5

                                               90
                                             B. FACTS

        1.     On October 8, 2012, this Court granted John Huffaker's Motion to Withdraw as

Counsel. From October 2012 until May 2016, Plaintiff was represented pro se. During this

timeframe, Plaintiff, Dale Roush, was involved in mUltiple car accidents and suffered a dramatic

fall that required hospitalization. See Exhibit A - Affidavit of Dale Roush, attached hereto and

incorporated herein. Specifically, on August 28, 2014, Plaintiff was involved in a car accident in

Taos, New Mexico. The accident in New Mexico necessitated many visits to a chiropractor. On

February 24, 2015, Plaintiff was involved in another car accident that exasperated his health

condition at the time. Finally, on April 21, 2015, Plaintiff suffered a dramatic fall in the kitchen

of his home. The fall and resulting injuries required Plaintiff to stay ten (10) days in the hospital,

of which nearly half was in the intensive care unit. Plaintiff broke his c4 vertebrae and suffered

severe nerve damage. Plaintiff also injured his shoulder in the fall. On April 26, 2016, Plaintiff

underwent surgery to correct the injury he sustained to his shoulder pursuant to the fall on or

about April 21, 2015.

       The history of the present case includes, but is not limited to, all parties substituting

counsel multiple times, extensive discovery issues, multiple summary judgments, attempts at

consolidating multiple cases with similar parties, and the bankruptcy of Tejas Farms.             The

present case is not a "normal" case; it is complex and involves special circumstances.            An

example of the complexity of this case can be seen from Exhibit A attached to the Defendants'

Motion to Dismiss. Exhibit A attached to the Defendants' Motion to Dismiss is the Court's

order regarding outstanding motions for summary judgment.              There were over seven (7)

submissions the Court had to consider. Furthermore, the Defendants' included a copy of the

Court's docket or "index." The Court's index is at least fourteen (14) pages long, which contains

the numerous issues surrounding this lawsuit.


                                                                                           Page 30/5

                                                91
                                C. ARGUMENTS AND AUTHORITIES

        7.      The court should not dismiss Plaintiffs suit on the docket because there is good

cause to maintain it on the docket. TEX. R. Cry. P. 165a(1).

        8.      Good cause exists in that Plaintiff suffered from poor health during the time frame

Defendants allege constitutes delay, Plaintiff has obtained new counsel, and a trial setting of

December 5, 2016 has been requested.          Defendants complain in the last paragraph of their

Motion to Dismiss that this case should be dismissed because "Plaintiff has not requested a trial

setting, let alone obtained new counsel." However, as of the date of this Response, Plaintiff has

obtained new counsel and requests this case be set for the COUlt's first available jury trial docket,

which is December 5, 2016.

                                    D. CONCLUSION &         PRAYER

        WHEREFORE, Plaintiff asks that the Court deny Defendants' Motion to Dismiss for

Want of Prosecution, set this case for trial the week of December 5, 2016, and for such other and

further relief to which Plaintiff may be justly entitled.

                                               Respectfully submitted,

                                               SPROUSE SHRADER SMITH PLLC
                                               John Massouh, Texas State Bar No. 24026866
                                               John.massouh@sprouselaw.com
                                               Alex Yarbrough, Texas State Bar No. 24079615
                                               Alex.yarbrough@sprouselaw.com
                                               701 S. Taylor, Suite 500
                                               P. O. Box 15008
                                               Amarillo, Texas 79105-5008
                                               (806) 468-3300; (806) 373-3454 fax


                                               /s/ Alex Yarbrough
                                               Alex Yarbrough
                                               ATTORNEYS FOR PLAINTIFF




                                                                                          Page 4 0/5

                                                 92
                                    CERTIFICATE OF SERVICE

           I hereby certify that on May 25, 2016, a true and correct copy of the foregoing was

served as follows:

           Attorney for Metropolitan Life Insurance Company:
           Scott A. Wheatley                        Via E-service
           Jay K. Wieser
           Jackson Walker. LLP
           777 Main Street, Suite 2100
           Fort Worth, TX 76102

           Attorney for Joel Hart:
           Lewis Coppedge                           Via E-service
           Attorney at Law
           101 SE 11th Street, Suite 301
           Amarillo, TX 79101



                                             lsi Alex Yarbrough
                                             Alex Yarbrough
14251.05
930689_1




                                                                                    Page 5 0/5

                                              93
                                           CAUSE NO. 4727

DALE ROUSH, Individually and as Trustee           §         69TH JUDICIAL DISTRICT COURT
of The Dale Roush Assets Trust,                   §
                                                  §
               Plaintiff,                         §
                                                  §
vs.                                               §          IN AND FOR
                                                  §
METROPOLITAN LIFE INSURANCE                       §
COMPANY and JOEL HART,                            §
                                                  §
               Defendants.                        §           SHERMAN COUNTY, TEXAS

                                AFFIDAVIT OF DALE ROUSH

STATE OF TEXAS                         §
                                       §
COUNTY OF         :Po ±-t-d     ,      §

        BEFORE ME, the undersigned notary, on this day personally appeared Dale Roush, a

person whose identity is known to me. After I administered an oath to him, upon his oath, he

said:

        I.     My name is Dale Roush. I am capable of making this Affidavit. I have personal

knowledge of the facts stated in this Affidavit, and they are true and correct.

        2.     For the last few years, I have been in poor health.

        3.     On August 28, 2014, I was involved in a car accident in Taos, New Mexico. The

accident in New Mexico necessitated many visits to a chiropractor. On February 24,2015, I was

involved in another car accident that exasperated my health condition at the time. Finally, on

April 21, 2015, I suffered a dramatic fall in the kitchen of my home. The fall and resulting

injuries required me to stay ten (10) days in the hospital, of which nearly half was in the

intensive care unit. I broke my c4 vertebrae and suffered severe nerve dan1age. I also injured




                                                94
my shoulder in the fall. On April 26, 2016, I underwent surgery to correct the injury I sustained

to my shoulder pursuant to the fallon or about April 21, 2015.

       4.     The rest of this page is intentionally left blank.




                                                 2

                                               95
                                            Dale Roush


       SWORN TO AND SUBSCRIBED BEFORE ME on this ~'day                      of_-.!.rv\.~~()..j1.Jt!-_,
2016, by Dale Roush to certify which witness my hand and seal of office.                       \




                                            Notary Public, State of Texas



14251.05
930599_1
                m~
                             SHERIDA STONE
                              NOTARY PUBLIC,
                              STATE OF TEXAS
                          NOTARY ID #576859-1
                    My Commission Expires 04-11-2019




                                               3

                                             96
                                    CASE NO: dcv4727

DALE ROUSH, DALE ROUSH ASSESTS TRUST                   §      IN THE 69TH JUDICIAL
     PLAINTlFF(S)

-vs-                                                   §      DISTRICT COURT OF


METROPOLITAN LIFE INSURANCE, JOEL HART                 §      SHERMAN COUNTY,
TEXAS
     DEFENDANT(S)


                                        INDEX



  DATE
  FILED
         T  DATET
           ISSUED
                     DATE
                    SERVED
                             I DOCUMENT
                                 TYPE
                                        I      FILED BY
                                                            IPLAINTIFF COMMENTS
07/1012006                           ORIGINAL PETITION                   PLAINTIFF'S
 11:31:30                                                                ORIGINAL
    AM                                                                   PETlnON
07/13/2006             07/1312006      CITATION NON         ISSUED BY    SERVED ON MET
 12:00:00                             FAMILY GENERAL          CLERK      LIFE
    AM                               BY CERTIFIED MAIL
07/1312006             07/1312006      CITATION NON         ISSUED BY  SERVED ON
 12:00:00                             FAMILY GENERAL          CLERK    METROPOLITAN
    AM                               BY CERTIFIED MAIL                 LIFE INSURANCE
                                                                       COMPANY
08/0712006                             ANS1NERAND           DEFENDANT DEFENDANT JOEL
 10:43:30                             COUNTER CLAIM                    HART'S ORIGINAL
    AM                                                                 ANS1NER, SPECIAL
                                                                       EXCEPTIONS &
                                                                       COUNTERCLAIM
09/0512006                             ANS1NERAND           DEFENDANT FAXED COPY OF
 03:42:42                             COUNTER CLAIM                    ORIGINAL ANS1NER
    PM                                                                 AND CROSS-CLAIM
                                                                       OF METROPOLITAN
                                                                       LIFE INSURANCE
                                                                       COMPANY
09/0612006                             ANS1NERAND          DEFENDANTS ORIGINAL ANS1NER
 11:14:20                             COUNTER CLAIM                    AND CROSS-CLAIM
    AM                                                                 OF METROPOLITAN
                                                                       LIFE INSURANCE
                                                                       COMPANY
10/17/2006                                OTHER              PLAINTIFF CERTIFICATE OF
 10:47:47                                                              DISCOVERY
    AM
1112812006                               RULE 11           DEFENDANT    LETTER FROM
 01:50:00                              AGREEMENT                        DAVID LEBAS TO
    PM                                                                  JOHN HUFFAKER
                                                                        RE:AGREEMENT AS




                                          70
  DATE
  FILED
               DATE I DATE I DOCUMENT I
             IISSUED SERVED    TYPE
                                          FILEDBY    I          COMMENTS

                                                                 ATTORNEY OF
                                                                 RECORD AND
                                                                 RULE 11 LETTER
                                                                 EXTENDING
                                                                 METLlFE'S
                                                                 DISCOVERY
                                                                 RESPONSE
                                                                 DEADLINE TO
                                                                 DECEMBER 14,
                                                                 2006
12107/2006                      AMENDED ANSWER      DEFENDANT    DEFENDANT JOEL
 11:04:00                                                        HARl'S FIRST
   AM                                                            AMENDED
                                                                 ANSWER, SPECIAL
                                                                 EXCEPTIONS, &
                                                                 COUNTERCLAIM
0211212007                          NOTICE          DEFENDANT    NOTICE OF
 11:22:00                                                        APPEARANCE OF
   AM                                                            CO-COUNSEL FOR
                                                                 METROPOLITAN
                                                                 LIFE INSURANCE
                                                                 COMPANY
11/1312007                         MOTION TO        DEFENDANT    MOTION FOR
 08:59:41                          WITHDRAW                      WITHDRAWAL AND
    AM                                                           SUBSTITUTION OF
                                                                 COUNSEL
01/1512008                         OBJECTION        DEFENDANT    DEFENDANTS'
 12:56:28                                                        OBJECTION TO
    PM                                                           NOTICE OF ORAL
                                                                 DEPOSITION OF
                                                                 BILLY JOYCE HART
01/1612008                         OBJECTION        DEFENDANT    DEFENDANTS'
 03:09:47                                                        OBJECTION TO
    PM                                                           NOTICE OF ORAL
                                                                 DEPOSITION OF
                                                                 JOEL HART
01/2312008                           ORDER           DISTRICT    ORDER GRANTING
 12:00:00                         APPOINTING          JUDGE      MOTION FOR
    PM                             ATTORNEY                      WITHDRAWAL AND
                                                                 SUBSTITUTING
                                                                 COUNSEL
0212212008                         NOTICE OF        DEFENDANT    NOTICE OF
 10:53:31                           HEARING                      HEARING ON
    AM                                                           MOTION COMPEL
03/07/2008                         MOTION TO        PLAINTIFF    MOTION TO
 09:32:46                           COMPEL                       COMPEL THE
    AM                                                           DEPOSITION OF
                                                                 BILLY JOYCE HART
                                                                 AND BRIEF IN
                                                                 SUPPORT
03/1012008                         RESPONSE         DEFENDANT    DEFENDANTS
 04:06:00                                                        RESPONSE TO
    PM                                                           MOTION TO




                                    71
  DATE
  FILED
             I    DATE
                 ISSUED
                          IDATE
                          SERVED
                                   I   DOCUMENT
                                         TYPE
                                                  I   FILED BY
                                                                  I           COMMENTS

                                                                               COMPEL

0311012008                                    RESPONSE           DEFENDANT     DEFENDANT
 04:05:00                                                                      METROPOLITAN
    PM                                                                         LIFE INSURANCE
                                                                               COMPANY'S
                                                                               RESPONSE IN
                                                                               OPPOSITION TO
                                                                               DEFENDANT JOEL
                                                                               HART'S MOTION TO
                                                                                CONSOLIDATE OR
                                                                               ABATE
03/1112008                                    RESPONSE            PLAINTIFF    FAXED COPY-
 10:55:00                                                                      PLAINTIFF DALE
   AM                                                                          ROUSH'S
                                                                               RESPONSE IN
                                                                               OPPOSITION TO
                                                                               DEFENDANT JOEL
                                                                               HART'S MOTION TO
                                                                               CONSOLIDATE OR
                                                                               ABATE
0311212008                                    RESPONSE            PlAINTIFF    ORIGINAl-
 02:02:34                                                                      PLAINTIFF DALE
   PM                                                                          ROUSH'S
                                                                               RESPONSE IN
                                                                               OPPOSITION TO
                                                                               DEFENDANT JOEL
                                                                               HART'S MOTION TO
                                                                               CONSOLIDATE OR
                                                                               ABATE
0911812008                                     COURT             SHORTHAND     REPORTER'S
 10:27:00                                    REPORTERS            REPORTER     CERTIFICATION
   AM                                        CERTIFICATE                       DEPOSITION OF
                                                                               DALE PHilLIP
                                                                               ROUSH AUGUST 5,
                                                                               2008
10/15/2008                                CORRESPONDENCE          DISTRICT     lETTER FROM
 09:19:00                                                          JUDGE       JUDGE ENNS TO
   AM                                                                          ATIORNEY'S RE:
                                                                               JURY TRIAL
                                                                               CONFIRMATION
01/1512009                                   MOTION FOR          DEFENDANT     METROPOLITAN
 11:48:00                                     SUMMARY                          LIFE INSURANCE
   AM                                        JUDGMENT                          COMPANY'S
                                                                               MOTION FOR
                                                                               SUMMARY
                                                                               JUDGMENT AND
                                                                               NO EVIDENCE
                                                                               MOTION FOR
                                                                               SUMMARY
                                                                               JUDGMENT ON
                                                                               PLAINTIFF DALE
                                                                               ROUSH'S CLAIM




                                               72
  DATE
  FILED
          T   DATE
             ISSUED
                      TSERVED
                        DATE T DOCUMENT
                                 TYPE
                                           I   FILED BY   I           COMMENTS

                                                                        FOR CONVERSION
                                                                        OF PERSONAL
                                                                        PROPERTY
01/15/2009                           MOTION FOR           DEFENDANT    METROPOLITAN
 11:47:00                             SUMMARY                          LIFE INSURANCE
    AM                               JUDGMENT                           COMPANY'S
                                                                       MOTION FOR
                                                                       SUMMARY
                                                                       JUDGMENT ON
                                                                       PLAINTIFF DALE
                                                                       ROUSH'S CLAIM
                                                                       FOR CONVERSION
                                                                       OF REAL
                                                                       PROPERTY
0112012009                            MOTION TO           DEFENDANT    DEFENDANT JOEL
 10:37:00                            CONSOLIDATE                       HARrS RENEWED
   AM                                                                  MOTION TO
                                                                       CONSOLIDATE
0112012009                                NOTICE          DEFENDANT    NOTICE OF
 10:38:00                                                              SUBMISSION FOR
   AM                                                                  METROPOLITAN
                                                                       LIFE INSURANCE
                                                                       COMPANY'S
                                                                       MOTIONS FOR
                                                                       SUMMARY
                                                                       JUDGMENT
0211012009                          NOTICE TO RULE         DISTRICT    NOTICE OF INTENT
 11:23:00                          WITHOUT HEARING          JUDGE      TO RULE WITHOUT
   AM                                                                  HEARING
0211112009                           MOTION FOR           PLAINTIFF    (FAXED COPY)
 08:50:00                           CONTINUANCE                        PLAINTIFPS
   AM                                                                  MOTION TO
                                                                       CONTINU,E
0211112009                           MOTION FOR           PLAINTIFF    ORIGINAL-
 11:02:00                           CONTINUANCE                        PLAINTIFF'S
   AM                                                                  MOTION FOR
                                                                       CONTINUANCE
                                                                       AND PROPOSED
                                                                       ORDER
0211112009                          ORDER SETTING         DISTRICT     ORDER SETTING
 11:02:00                              HEARING             JUDGE       HEARING DATE
   AM
0212312009                        AMENDED PETITION        PLAINTIFF    PLAINTIFF'S FIRST
 04:58:00                                                              AMENDED
    PM                                                                 PETITION
0212312009                            RESPONSE            PLAINTIFF    RESPONSE OF
 05:00:00                                                              DALE ROUSH TO
    PM                                                                 ''METROPOLITAN
                                                                       LIFE INSURANCE
                                                                       COMPANY'S
                                                                       MOTION FOR
                                                                       SUMMARY
                                                                       JUDGMENT AND




                                          73
  DATE      DATE I DATE T DOCUMENT
          TISSUED
  FILED           SERVED    TYPE   I   FILED BY
                                                   I           COMMENTS

                                                                 NO-EVIDENCE
                                                                 MOTION FOR
                                                                 SUMMARY
                                                                 JUDGMENT ON
                                                                 PLAINTIFF DALE
                                                                 ROUSH'S CLAIM
                                                                 FOR CONVERSION
                                                                 OF PERSONAL
                                                                 PROPERTY"
0212412009                      RESPONSE           PLAINTIFF     RESPONSE OF
 12:04:00                                                       DALE ROUSH TO
    PM                                                           "METROPOLITAN
                                                                 LIFE INSURANCE
                                                                 COMPANY'S
                                                                 MOTION FOR
                                                                 SUMMARY
                                                                JUDGMENT ON
                                                                PLAINTIFF DALE
                                                                ROUSH'S CLAIM
                                                                FOR CONVERSION
                                                                OF REAL          .

                                                                PROPERTY"
0212512009                   MOTION TO STRIKE     DEFENDANT     FAXED COPY-
 08:42:00                                                       DEFENDANT
    AM                                                          METROPOLITAN
                                                                LIFE INSURANCE
                                                                COMPANY'S
                                                                MOTION TO STRIKE
                                                                PLAINTIFPS
                                                                AMENDED
                                                                PETITION
0212612009                   MOTION TO STRIKE     DEFENDANT     ORIGINAL-
 11:00:00                                                       DEFENDANT
   AM                                                           METROPOLITAN
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                                 74
  DATE
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                                              75
 DATE         DATE I DATE I DOCUMENT I
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                                   76
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             77
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                                          78
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              79
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                                           80
             I        DATE I DOCUMENT I
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                                    81
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            83
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                                              84
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           85
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           86
     Caution
As of: March 23, 2018 4:58 PM Z


                       City of San Benito v. Rio Grande Valley Gas Co.
                                                Supreme Court of Texas
                                  January 8, 2003, Argued ; June 26, 2003, Delivered
                                                      NO. 02-0038

Reporter
109 S.W.3d 750 *; 2003 Tex. LEXIS 91 **; 46 Tex. Sup. J. 861
                                                               requests to opt out of the class. The court of appeals
CITY OF SAN BENITO, ET AL., PETITIONERS v. RIO
                                                               denied relief from the approval of the settlement. The
GRANDE VALLEY GAS COMPANY, AND SOUTHERN
                                                               cities petitioned for review. The court held that the trial
UNION COMPANY D/B/A SOUTHERN UNION GAS
                                                               court abused its discretion in refusing the six cities' opt-
COMPANY, RESPONDENTS
                                                               out requests, which their attorney had implied authority
                                                               to make without formal action in an open meeting. The
Prior History: [**1] ON PETITION FOR REVIEW
                                                               court held that the six cities were not were not required
FROM THE COURT OF APPEALS FOR THE
                                                               to intervene in order to appeal their objections to the
THIRTEENTH DISTRICT OF TEXAS.
                                                               settlement. Because the six cities filed requests to opt
                                                               out and objections to settlement, those unnamed class
City of San Benito v. Rio Grande Valley Gas Co. (In re
                                                               members' complaints were preserved for review by the
City of San Benito), 63 S.W.3d 19, 2001 Tex. App.
                                                               court of appeals and they were parties for purposes of
LEXIS 6120 (Tex. App. Corpus Christi, 2001)
                                                               appeal. The court held that the cities did not waive their
Disposition: Reversed and rendered in part; affirmed in        complaints by failing to request an extraordinary writ.
part.                                                          The court did not consider the complaints of a seventh
                                                               city, which did not request to opt out or object to the
                                                               settlement, because they were not properly before the
Core Terms                                                     court of appeals.
cities, settlement, class member, requests, trial court,
                                                               Outcome
unnamed, opt-out, court of appeals, opt out, gas
                                                               The court reversed the court of appeals' judgment as to
company, class action, parties, mandamus relief, open
                                                               the six cities that successfully opted out of the class and
meeting, intervene, notice, purposes, mandamus, opted,
                                                               rendered judgment that they were not members of the
class settlement, municipalities, government body, final
                                                               class action. The court affirmed the judgment as to the
judgment, franchise fee, contracts, objected, nonsuit
                                                               city who did not successfully opt out of the class or
                                                               object to the settlement with the gas companies.
Case Summary
                                                               LexisNexis® Headnotes
Procedural Posture
Petitioner cities sought review of the decision of the
Court of Appeals for the Thirteenth District of Texas,
which denied them appellate relief from a judgment
approving a class settlement between the class of cities
                                                                   Civil Procedure > ... > Class Actions > Class
and respondent gas companies on the ground that the
                                                                   Members > Absent Members
cities failed to intervene in the trial court.
                                                                   Governments > Legislation > Statute of
Overview
                                                                   Limitations > General Overview
A class action was brought on behalf of the seven cities
to recover franchise fees from the gas companies. Six of           Civil Procedure > ... > Subject Matter
the cities filed a motion objecting to the proposed class          Jurisdiction > Jurisdiction Over Actions > General
settlement and requesting reconsideration of their                 Overview

                                                     Nicole Mitchell
                                                                                                         Page 2 of 8
                                   109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

    Civil Procedure > Parties > Capacity of                   HN2[    ] Parties, Capacity of Parties
    Parties > General Overview
                                                              Under Texas jurisprudence, an appeal can generally
    Civil Procedure > Parties > Intervention > General        only be brought by a named party to the suit. However,
    Overview                                                  the doctrine of virtual representation is an exception to
                                                              the general rule. Appellant is a deemed a party under
    Civil Procedure > Special Proceedings > Class             virtual representation when (1) it is bound by the
    Actions > General Overview                                judgment; (2) its privity of estate, title, or interest
                                                              appears from the record; and (3) there is an identity of
    Civil Procedure > ... > Class Actions > Class             interest between the appellant and a party to the
    Members > General Overview                                judgment. Unnamed class members are deemed to be
                                                              parties under this doctrine. The Texas virtual
    Civil Procedure > Special Proceedings > Class             representation doctrine is, thus, quite similar to the
    Actions > Compromise & Settlement                         United States Supreme Court's. The most important
                                                              consideration is whether the appellant is bound by the
    Civil Procedure > Appeals > Reviewability of Lower        judgment. When a non-party is allowed to challenge a
    Court Decisions > General Overview                        judgment, the decision to allow him the right to appeal is
                                                              grounded on the fact that, because of the doctrine of
HN1[   ] Class Members, Absent Members
                                                              representation, he is bound by the judgment.
Texas follows the Supreme Court decision that
unnamed class members are not required to intervene
in order to appeal a trial court's judgment approving a           Civil Procedure > Remedies > Writs > General
class settlement. An unnamed class member's failure to            Overview
intervene does not implicate standing. Rather, the real
issue is whether or not the class member is a "party" for         Criminal Law & Procedure > Criminal
purposes of appeal. The right to appeal is not restricted         Offenses > Weapons Offenses > General Overview
to a case's named parties. The label "party" does not
indicate an absolute characteristic, but rather a                 Civil Procedure > Appeals > Reviewability of Lower
conclusion about the applicability of various procedural          Court Decisions > General Overview
rules that may differ based on context. Thus, the
procedural rules governing class actions sometimes            HN3[    ] Remedies, Writs
require unnamed parties to be treated as parties or
                                                              The Supreme Court of Texas sees no reason why an
nonparties in order to ease the administration of class
                                                              unnamed class member should be allowed to seek a
litigation. Unnamed class members are treated as
                                                              restricted appeal but not prosecute an ordinary appeal.
parties for statute of limitations purposes but as
                                                              Writ of error affords a review of the same scope as an
nonparties for diversity purposes. However, the most
                                                              appeal. The supreme court disapproves of the holding
important consideration is that the unnamed class
                                                              to the contrary in San Juan 1990-A, L.P. v. Meridian Oil
members will be bound by the class settlement. It is this
                                                              Inc., 951 S.W.2d 159, 163 (Tex. App.-Houston 14th
feature of class action litigation that requires that class
                                                              Dist. 1997).
members be allowed to appeal the approval of a
settlement when they have objected at the fairness
hearing. To hold otherwise would deprive nonnamed
class members of the power to preserve their own                  Civil Procedure > Appeals > Reviewability of Lower
interests in a settlement that will ultimately bind them,         Court Decisions > Preservation for Review
despite their expressed objections before the trial court.
                                                                  Energy & Utilities Law > Administrative
                                                                  Proceedings > General Overview
    Civil Procedure > Parties > Capacity of
                                                              HN4[ ] Reviewability of Lower Court Decisions,
    Parties > General Overview
                                                              Preservation for Review
    Civil Procedure > Appeals > Reviewability of Lower
                                                              To preserve a complaint for appellate review, a party
    Court Decisions > General Overview

                                                    Nicole Mitchell
                                                                                                       Page 3 of 8
                                  109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

must complain in the trial court. Tex. R. App. P.            Filing a request for an extraordinary writ is not a
33.1(a)(1)(A).                                               prerequisite to an appeal.



    Civil Procedure > ... > Class Actions > Class                Civil Procedure > Appeals > Standards of
    Members > Absent Members                                     Review > Abuse of Discretion

    Civil Procedure > Special Proceedings > Class            HN8[     ] Standards of Review, Abuse of Discretion
    Actions > General Overview
                                                             The test for abuse of discretion is whether the court
    Civil Procedure > ... > Class Actions > Class            acted without reference to any guiding rules and
    Members > General Overview                               principles or, stated another way, whether its decision
                                                             was arbitrary or unreasonable.
    Civil Procedure > Special Proceedings > Class
    Actions > Notice of Class Action
                                                                 Administrative Law > Governmental
    Civil Procedure > ... > Notice of Class
                                                                 Information > Public Information > Sunshine
    Action > Content of Notice > Opt Out Provisions
                                                                 Legislation
    Civil Procedure > Appeals > Reviewability of Lower
                                                                 Governments > Local Governments > Duties &
    Court Decisions > Preservation for Review
                                                                 Powers
HN5[   ] Class Members, Absent Members
                                                                 Administrative Law > Governmental
A class member who wishes to opt out should not be               Information > Public Information > General
forced to take the inconsistent action of becoming a             Overview
formal member of the class in order to preserve a right
                                                             HN9[     ] Public Information, Sunshine Legislation
to appellate review. Requiring a timely request to opt out
is sufficient notice to the trial court to preserve a
                                                             The Open Meetings Act requires that every regular,
complaint for appellate review. Unnamed class
                                                             special, or called meeting of a governmental body shall
members whose requests to opt out of a class action
                                                             be open to the public, except as provided by this
are denied should also be considered parties on appeal.
                                                             chapter. Tex. Gov't Code Ann. § 551.002. It defines
                                                             "meeting" as a deliberation between a quorum of a
                                                             governmental body, or between a quorum of a
    Civil Procedure > Special Proceedings > Class            governmental body and another person, during which
    Actions > General Overview                               public business or public policy over which the
                                                             governmental body has supervision or control is
    Civil Procedure > Appeals > Appellate                    discussed or considered or during which the
    Jurisdiction > Interlocutory Orders                      governmental body takes formal action. Tex. Gov't Code
                                                             Ann. § 551.001(4)(A). Cities can express and bind
HN6[   ] Special Proceedings, Class Actions                  themselves only by way of a duly assembled meeting. A
                                                             city's governing body may not delegate the right to make
There is no interlocutory appeal from an order denying a     decisions affecting the transaction of city business.
party the right to opt out of a class. Tex. Civ. Prac. &     However, cities may delegate to others the right to
Rem. Code Ann. § 51.014.                                     perform acts and duties necessary to the transaction of
                                                             the city's business, but can do so only by resolution or
                                                             ordinance, by a majority vote.
    Civil Procedure > Remedies > Writs > General
    Overview
                                                                 Civil Procedure > ... > Pretrial
HN7[   ] Remedies, Writs                                         Judgments > Nonsuits > General Overview


                                                    Nicole Mitchell
                                                                                                              Page 4 of 8
                                     109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

    Business & Corporate Law > Agency                            conclude that an unnamed class member is not required
    Relationships > Authority to Act > General Overview          to intervene in order to appeal its objections to a class
                                                                 settlement or its opt-out requests. Thus, the cities are
    Civil Procedure > Special Proceedings > Class                parties for purposes of this appeal. We further conclude
    Actions > General Overview                                   that the cities could authorize their attorneys to opt out
                                                                 of the litigation without formal action in an open meeting.
    Civil Procedure > ... > Notice of Class                      Accordingly, we reverse the court of appeals' judgment
    Action > Content of Notice > Opt Out Provisions              and render judgment that six cities successfully opted
                                                                 out of the class and one did not. Because these issues
    Civil Procedure > Special Proceedings > Class                are dispositive, we do not reach the remaining issue of
    Actions > Voluntary Dismissals                               whether the settlement was fair.

    Civil Procedure > Dismissal > Voluntary                      I
    Dismissals > General Overview
                                                                 The cities of Mercedes and Weslaco are the named
HN10[    ] Pretrial Judgments, Nonsuits                          class representatives in a class [*753] action for
                                                                 franchise fees against Rio Grande Valley Gas Company
Texas courts hold that an attorney has implied authority         and its successor in interest, Southern Union Gas
to nonsuit a client's claim when the nonsuit does not            Company (hereinafter collectively referred to as "the gas
affect a substantial right or bar the bringing of another        companies"). The trial court defined the class as follows:
suit based on the same cause of action. Just as a
nonsuit terminates litigation between the plaintiff and the      All Texas municipal corporations, municipalities, cities,
nonsuited defendant, opting out of a class action has            towns, or villages (hereinafter referred to as
the effect of terminating the particular litigation as to that   "municipalities"), excluding the cities of Edinburg and
class plaintiff. Opting out does not, of itself, cause a loss    McAllen, that have, or have had, existing or expired
of any substantial rights, as the party can bring its own        municipal franchise fee ordinances [**3] or agreements
suit on the same cause of action.                                with Rio Grande Valley Gas Company or Southern
                                                                 Union Gas Company (hereinafter referred to collectively
Judges: CHIEF JUSTICE PHILLIPS delivered the                     as the "LDC") and where the municipalities were entitled
opinion of the Court. JUSTICE ENOCH did not                      to a franchise fee or payment based on a percentage of
participate.                                                     the LDC's gross income derived from natural gas sales,
                                                                 and where there has not been the execution of any
Opinion by: Thomas R. Phillips                                   effective releases of the entire claims alleged in this
                                                                 litigation.
Opinion                                                          The trial court authorized class notices to the 80 cities
                                                                 that fell within this definition on June 24, 1996, providing
                                                                 an opt-out deadline of August 1, 1996, barely five weeks
 [*752] This class action was brought on behalf of an            later.
alleged class of eighty south Texas cities for recovery of
franchise fees allegedly owed to them. A number of               Before receiving notice, the cities of San Benito,
Texas cities, including the petitioners herein, tried to opt     Palmview, Alton, La Villa, Port Isabel, and Edcouch
out of the class. Some were successful, but the trial            (hereinafter "the six cities") each contracted with Texas
court denied the requests of the seven cities petitioning        Municipal Technical Consultants, Inc. ("TMTCI") to
here and signed a final judgment approving settlement.           determine if franchise fees were owed by the gas
We must decide whether an unnamed class member                   companies. Under these contracts, TMTCI had authority
must intervene in the trial court in order to appeal its         to "audit[] and make[] a determination that uncollected
overruled objections to a class settlement and whether a         compensation is due and owing to cities" and to "employ
city must hold an open meeting to authorize its attorney         legal counsel of its choice . . . to represent cities in
to opt out of a class action. The court of appeals denied        enforcing any claim through necessary litigation."
appellate relief because the cities failed to intervene in       TMTCI hired Ramon Garcia of Edinburg to represent
the trial court and also denied mandamus relief because          each of the cities. [**4] After the cities received the
the trial court did not abuse its discretion in refusing the     class notice, Garcia filed opt- out notices on their behalf
cities' requests to opt [**2] out. 63 S.W.3d 19. We              before the August opt-out deadline.

                                                       Nicole Mitchell
                                                                                                                  Page 5 of 8
                                       109 S.W.3d 750, *753; 2003 Tex. LEXIS 91, **4

After the August deadline, the cities of San Benito,                jurisdiction to hear this appeal. The court below held
Alton, Palmview, and La Villa ratified attorney Garcia's            that because the cities failed to intervene formally in the
actions in open meetings. The cities of Edcouch and                 trial court, they lacked standing to appeal the trial court's
Port Isabel never ratified the opt-out requests in an open          judgment. 63 S.W.3d at 24-25. Thus, it dismissed the
meeting. After a hearing some months later, the trial               case for lack of subject matter jurisdiction. Id. After the
court ruled that none of the petitioner cities had properly         court of appeals' decision was issued, the United States
opted out.                                                          Supreme Court held in Devlin v. Scardelletti, 536 U.S. 1,
                                                                    153 L. Ed. 2d 27, 122 S. Ct. 2005 (2002), that HN1[ ]
On December 14, 2000, class counsel sent notice of a                unnamed class members are not required to intervene
proposed class settlement, providing that the class                 in order to appeal a trial court's judgment approving a
members could file written objections to the settlement             class settlement. We follow the Supreme Court's
by January 31, 2001. The six cities filed a joint motion            decision in Devlin.
objecting to the settlement and a joint motion to
reconsider their opt-out requests. The trial court held a           In Devlin, an unnamed class member objected to the
settlement fairness hearing after which it approved the             class settlement at the fairness hearing, but did not
class settlement and rendered final judgment.                       successfully [**7] intervene in the proceedings. Id. at 8-
                                                                    9. The Supreme Court held that an unnamed class
Class counsel filed a motion to withdraw as counsel for             member's failure to intervene does not implicate
the city of Pharr, stating at the hearing on the opt-out            standing. Id. at 6. Rather, it concluded that the real
requests that Pharr had hired Ramon Garcia to                       issue is whether or not the class member is a "party" for
represent its interests. However, nothing in the record             purposes of appeal. Id. at 7.
reflects that Pharr filed an opt-out notice at any time or
raised any objection [**5] to the settlement.                       The Supreme Court observed that the right to appeal is
                                                                    not restricted to a case's named parties. Id. at 12 (citing
All seven cities appealed to the court of appeals and               Blossom v. Milwaukee & Chicago R.R., 68 U.S. 655, 17
sought mandamus relief from both the court of appeals               L. Ed. 673 (1864); Hinckley v. Gilman, Clinton, &
and this Court. 1 [*754] We dismissed the petition for              Springfield R.R., 94 U.S. 467, 24 L. Ed. 166 (1877);
writ of mandamus. The court of appeals considered both              United States Catholic Conference v. Abortion Rights
the appeal and mandamus in a consolidated opinion.                  Mobilization, Inc., 487 U.S. 72, 76, 101 L. Ed. 2d 69,
                                                                    108 S. Ct. 2268 (1988)). The "label 'party' does not
The court of appeals dismissed the appeal for want of
                                                                    indicate an absolute characteristic, but rather a
jurisdiction, 63 S.W.3d at 24-25, [**6] and also denied
                                                                    conclusion about the applicability of various procedural
mandamus relief. Id. at 30-31. It held that the trial court
                                                                    rules that may differ based on context." Id. at 10. Thus,
did not abuse its discretion in refusing the opt-out
                                                                    the procedural rules governing class actions sometimes
requests, because the requests of the six cities had not
                                                                    require unnamed parties to be treated as parties or
previously been authorized in an open meeting, the
                                                                    nonparties in order to ease the administration of class
subsequent ratifications were ineffective, and the city of
                                                                    litigation. The Court listed as an example [**8] the
Pharr had made no attempt to opt out. Id.
                                                                    treatment of unnamed class members as parties for
II                                                                  statute of limitations purposes but as nonparties for
                                                                    diversity purposes. Id. However, the most important
We must first decide if the court of appeals had                    consideration was that the unnamed class members
                                                                    would be bound by the class settlement. Id. Thus, noted
                                                                    the Court:
1 Additionally, the cities of Alamo, LaJoya, Primera, Santa
Rosa, San Juan, Penitas, and Elsa joined the petitions for writ     it is this feature of class action litigation that requires
of mandamus and the appeal to the court of appeals. The city        that class members be allowed to appeal the approval
of Elsa did not join the petition for review to this Court. Rio     of a settlement when they have objected at the fairness
Grande moved to dismiss the petitions of Alamo, LaJoya,             hearing. To hold otherwise would deprive nonnamed
Primera, and Santa Rosa because they accepted the benefits          class members of the power to preserve their own
of the trial court's judgment, of Donna and San Juan because        interests in a settlement that will ultimately bind them,
the court of appeals' judgment gives these cities the relief they   despite their expressed objections before the trial court.
requested, and of Penitas because it is not a member of the
class. The cities did not oppose this motion; therefore, we         Id. The unnamed class member in Devlin was a "party"
granted Rio Grande's motion to dismiss these petitions.

                                                          Nicole Mitchell
                                                                                                               Page 6 of 8
                                     109 S.W.3d 750, *754; 2003 Tex. LEXIS 91, **8

for purposes of the appeal.                                      certification of the class prior to final judgment approving
                                                                 a settlement, the gas companies agree that intervention
HN2[ ] Under Texas jurisprudence, an appeal can                  should not be required for a settlement class. However,
generally only be brought by a named party to the suit.          in a non-settlement class, unnamed parties have an
Motor Vehicle Bd. of the Tex. Dep't of Transp. v. El             opportunity to intervene, they point out. Why should
Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110, 42           unnamed class members be allowed to wait until the
Tex. Sup. Ct. J. 1128 (Tex. 1999). However, the                  eve of settlement before voicing objections?
doctrine of [*755] virtual representation is an exception
to the general rule. Id. (citing Gunn v. Cavanaugh, 391          We do not find this distinction dispositive. It is not "laying
S.W.2d 723, 725, 8 Tex. Sup. Ct. J. 442 (Tex. 1965)).            behind the log" to wait to object until the fairness
An appellant is a deemed party under [**9] virtual               hearing. The very purpose of settlement notice to class
representation when: "(1) it is bound by the judgment;           members is to allow each of them to determine whether
(2) its privity of estate, title, or interest appears from the   to object at the fairness hearing. See Gen. Motors Corp.
record; and (3) there is an identity of interest between         v. Bloyed, 916 S.W.2d 949, 958, 39 Tex. Sup. Ct. J. 258
the appellant and a party to the judgment." Id. We have          (Tex. 1995). [**11] Requiring intervention prior to the
deemed unnamed class members to be parties under                 settlement fairness hearing creates more work for all
this doctrine. See Robertson v. Blackwell Zinc Co., 390          involved with no corresponding benefit. See Devlin, 536
S.W.2d 472, 472, 8 Tex. Sup. Ct. J. 385 (Tex. 1965). 2           U.S. at 14 ("As such determinations still would most
Our virtual representation doctrine is thus quite similar        likely lead to an appeal, such a requirement would only
to the United States Supreme Court's rule in Devlin. We          add an additional layer of complexity before the appeal
agree with the Court's analysis that the most important          of the settlement approval may finally be heard."). As
consideration is whether the appellant is bound by the           one commentator has observed, intervention produces
judgment. See Grohn v. Marquardt, 487 S.W.2d 214,                more work for the district court (a formal motion in
217 (Tex. Civ. App.-San Antonio 1972, writ ref'd n.r.e.)         addition to the settlement hearing), no savings of time
("When a non-party is allowed to challenge a judgment,           for the appellate court (in both cases it has conducted
the decision to allow him the right to appeal is grounded        an appeal), and results in no review of the much more
on the fact that, because of the doctrine of                     basic issue (the fairness and reasonableness of the
representation, he is bound by the judgment."). Because          settlement) by either court." [*756] Timothy A. Duffy,
the unnamed class members here would be bound to                 Comment, The Appealability of Class Action
the judgment approving the settlement, they should be            Settlements by Unnamed Parties, 60 U. Chi. L. Rev.
considered "parties" for purposes of appeal.                     933, 954 (1993).

 [**10] The gas companies attempt to distinguish Devlin          The gas companies further argue that class actions will
on the basis that the cities here were certified as a class      become unmanageable and unproductive if each
prior to settlement, whereas Devlin involved a                   member can individually appeal a judgment without first
settlement class. See Northrup v. Southwestern Bell              intervening in the action. We are not persuaded. HN4[
Tel. Co., 72 S.W.3d 1, 10 (Tex. App.-Corpus Christi              ] To preserve a complaint for appellate review, a party
2001, pet. denied) (stating that "imposition of the              must complain in the trial court. See TEX. R. APP.
intervention requirement is appropriate in non-                   [**12]    P. 33.1(a)(1)(A). This requirement will
settlement class actions"). Because unnamed class                significantly reduce the number of appeals by unnamed
members do not have the opportunity to challenge the             class members. Devlin, 536 U.S. at 19. "As the
                                                                 longstanding practice of allowing nonnamed class
                                                                 members to object at the fairness hearing
                                                                 demonstrates, the burden of considering the claims of
2 Although  Robertson was a writ of error proceeding, now        this subset of class members is not onerous." Id. Thus,
called a restricted appeal under Texas Rule of Appellate         class actions will not become unmanageable if
Procedure 30, HN3[ ] we see no reason why an unnamed             unnamed class members are allowed to appeal without
class member should be allowed to seek a restricted appeal       prior intervention.
but not prosecute an ordinary appeal. Gunn v. Cavanaugh,
391 S.W.2d 723, 724, 8 Tex. Sup. Ct. J. 442 (Tex. 1965) ("Writ   Finally, HN5[ ] a class member who wishes to opt out
of error affords a review of the same scope as an appeal.").     should not be forced to take the inconsistent action of
We therefore disapprove of the holding to the contrary in San    becoming a formal member of the class in order to
Juan 1990-A, L.P. v. Meridian Oil Inc., 951 S.W.2d 159, 163      preserve a right to appellate review. Requiring a timely
(Tex. App.-Houston [14th Dist.] 1997, pet. denied).

                                                       Nicole Mitchell
                                                                                                            Page 7 of 8
                                   109 S.W.3d 750, *756; 2003 Tex. LEXIS 91, **12

request to opt out is sufficient notice to the trial court to    [*757] Although the court of appeals dismissed the
preserve a complaint for appellate review. Unnamed              appeal for want of jurisdiction and considered the
class members whose requests to opt out of a class              validity of the opt-out requests in connection with the
action are denied should also be considered parties on          petition for writ of mandamus below, we will consider the
appeal.                                                         latter issue here as part of this appeal rather than
                                                                remand to the court of appeals for it to reiterate its
Because the six cities filed requests to opt out and            holding. See TEX. R. APP. P. 53.4; Pub. Util. Comm'n
objected to the settlement, their complaints were               of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d
preserved for review by the court of appeals, and these         310, 321 (Tex. 2001). The court [**15] of appeals in the
unnamed class members are parties for purposes of               mandamus proceeding below determined that the trial
appeal. However, the city of Pharr did not request to opt       court did not abuse its discretion in denying the opt-out
out of the class [**13] or object to the settlement.            requests. The standard of review on appeal should also
Therefore, its complaints were not properly before the          be whether the trial court abused its discretion. See In
court of appeals, and this Court will not consider them.        re PaineWebber Ltd. P'ships Litig., 147 F.3d 132, 135
TEX. R. APP. P. 33.1(a)(1)(A).                                  (2d Cir. 1998). HN8[ ] The test for abuse of discretion
                                                                is "whether the court acted without reference to any
III                                                             guiding rules and principles" or, stated another way,
                                                                whether its decision was arbitrary or unreasonable.
The gas companies next argue that the six cities waived
                                                                Downer v. Aquamarine Operators, Inc., 701 S.W.2d
their complaints regarding the denial of the opt-out
                                                                238, 242, 29 Tex. Sup. Ct. J. 88 (Tex. 1985).
requests because they failed to seek appellate or
mandamus review until after final judgment. The trial           The gas companies claim the 1996 opt-out requests by
court heard the opt-out requests in November 1999, and          the six cities were ineffective because the cities did not
the requests were denied on February 1, 2000. A year            take formal action at an open meeting to authorize their
later, the cities filed objections to the proposed class        attorney to file the opt-out requests. The cities respond
settlement and renewed their requests to opt out. When          that their attorney was authorized to file the opt-out
the requests were again denied and final judgment was           requests as part of his representation pursuant to the
rendered, the cities sought appellate and mandamus              TMTCI contract.
relief in the court of appeals and mandamus relief from
this Court. However, after the court of appeals denied          HN9[ ] The Open Meetings Act requires that "every
mandamus relief, the cities failed to inform this Court of      regular, special, or called meeting of a governmental
the court of appeals' ruling. When the cities did not           body shall be open to the public, except as provided by
actively pursue their mandamus relief in this Court, we         this chapter." TEX. GOV'T CODE § 551.002. It defines
dismissed their petition. In re City of San Benito, 45 Tex.     "meeting" [**16] as "a deliberation between a quorum
Sup. J. 305, 309 (Jan. 12, 2002). The gas companies             of a governmental body, or between a quorum of a
argue that by waiting a year to seek appellate review           governmental body and another person, during which
and by failing to [**14] reurge their petition for              public business or public policy over which the
mandamus relief in this Court, the cities waived their          governmental body has supervision or control is
right to complain of the trial court's order denying the        discussed or considered or during which the
opt-out requests.                                               governmental body takes formal action." Id. §
                                                                551.001(4)(A). Cities can express and bind themselves
We disagree. HN6[ ] There is no interlocutory appeal            only by way of a duly assembled meeting. Cent. Power
from an order denying a party the right to opt out of a         & Light Co. v. City of San Juan, 962 S.W.2d 602, 612
class. See TEX. CIV. PRAC. & REM. CODE § 51.014. It             (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.). "A
is true that the cities could have attempted to seek            city's governing body may not delegate the right to make
mandamus relief in this Court after the court of appeals        decisions affecting the transaction of city business." Id.
denied mandamus relief, but HN7[ ] filing a request for         at 613. However, cities may "delegate to others the right
an extraordinary writ is not a prerequisite to an appeal.       to perform acts and duties necessary to the transaction
Pope v. Stephenson, 787 S.W.2d 953, 954, 33 Tex.                of the city's business, but can do so only by resolution or
Sup. Ct. J. 436 (Tex. 1990). The cities did not waive           ordinance, by a majority vote." Id.
their complaints regarding the opt-out requests.
                                                                In their respective contracts, the six cities delegated to
IV                                                              TMTCI the right to investigate and pursue claims they


                                                      Nicole Mitchell
                                                                                                             Page 8 of 8
                                   109 S.W.3d 750, *757; 2003 Tex. LEXIS 91, **16

might have against the gas companies, including the            McCorkle, [**19] Annotation, Authority of Attorney to
right to hire counsel for those purposes. Pursuant to the      Dismiss or Otherwise Terminate Action, 56 A.L.R.2d
contract, TMTCI hired Ramon Garcia. Each contract              1290. Just as a nonsuit terminates litigation between the
contained nearly identical [**17] clauses stating:             plaintiff and the nonsuited defendant, opting out of a
                                                               class action has the effect of terminating the particular
After auditing and making a determination that                 litigation as to that class plaintiff. Opting out does not, of
uncollected compensation is due and owing to city,             itself, cause a loss of any substantial rights, as the party
TMTCI will negotiate with franchisees so as to recover         can bring its own suit on the same cause of action.
uncollected compensation, if any, and if necessary,            Pursuant to his contractual employment to pursue
employ legal counsel to recover such compensation.             unpaid franchise fees through litigation, Garcia had
                                                               authority to opt the cities out of the class action. The
...
                                                               cities were not required to hold an open meeting to
If, after good faith attempts to negotiate with a              specifically authorize the opt-out requests. Because the
franchisee, TMTCI is not able to resolve an uncollected        decision to opt out was within their attorney's authority,
compensation dispute with such franchisee or to obtain         the trial court abused its discretion in refusing the cities'
access to the books and records of franchisee as               opt-out requests.
outlined . . . above, or otherwise deems it necessary in
                                                               V
order to fulfill its obligations under this Agreement,
TMTCI, after having consulted with city, shall have the        The cities claim that the settlement the trial court
power and right to employ legal counsel of its choice.         approved is unfair because the gas companies are
                                                               allowed to recover any funds paid to the cities and class
 [*758] Although the record does not contain the
                                                               counsel by increasing the gas costs to their customers,
minutes of the open meetings at which these contracts
                                                               the cities' residents. Although the cities make an
were approved, neither the validity of these contracts
                                                               interesting argument, we do not reach the issue
nor Ramon Garcia's status as the cities' attorney has
                                                               because we hold six [**20] of the petitioner cities are
been challenged. Class counsel stated at oral argument
                                                               not bound by the settlement and the seventh failed to
that a motion to show authority was filed in the trial
                                                               object to the settlement in the trial court. TEX. R. APP.
court, but nothing in the record indicates that such a
                                                               P. 33.1(a)(1)(A).
motion was filed or that the trial court made any ruling
thereon. Thus, we must assume that Ramon Garcia is             VI
the [**18] cities' attorney. Victory v. State, 138 Tex.
285, 158 S.W.2d 760, 766 (Tex. 1942) (holding                  Because the cities of San Benito, Palmview, Alton, La
challenge to attorney's authority under precursor to           Villa, Port Isabel, and Edcouch properly opted out of the
Texas Rule of Civil Procedure 12 may not be raised for         class, we reverse the judgment of the court of appeals
the first time on appeal); Taylor v. Tex. Dep't of Pub.        and render judgment that they are not members of the
Welfare, 549 S.W.2d 422, 425 (Tex. Civ. App.-Fort              class action. However, we affirm the judgment as to the
Worth 1977, writ ref'd n.r.e.) (holding same under rule        city of Pharr because there is no evidence in the record
12). The only question before the court is whether             that Pharr filed a notice to opt out or that it objected to
Ramon Garcia had implied authority pursuant to the             the settlement in the trial court.
contract with TMTCI to opt the cities out of the litigation.
                                                               Thomas R. Phillips
A similar question is whether an attorney has authority
to nonsuit a client's claim without prior consent. HN10[       Chief Justice
   ] Texas courts have held that an attorney has implied
authority to nonsuit a client's claim when the nonsuit
                                                                    End of Document
does not affect a substantial right or bar the bringing of
another suit based on the same cause of action. See
Fed. Underwriters Exch. v. Read, 142 S.W.2d 440, 443
(Tex. Civ. App.-Beaumont 1940), rev'd on other
grounds, 138 Tex. 271, 158 S.W.2d 767 (Tex. 1942);
Dyer v. Johnson, 19 S.W.2d 421, 425 (Tex. Civ. App.-
Fort Worth 1929, writ dism'd w.o.j.); see also C.R.


                                                     Nicole Mitchell
     Caution
As of: March 23, 2018 5:11 PM Z


                              Downer v. Aquamarine Operators, Inc.
                                                Supreme Court of Texas
                                              December 4, 1985, Decided
                                                       No. C-4141

Reporter
701 S.W.2d 238 *; 1985 Tex. LEXIS 1089 **; 29 Tex. Sup. J. 88
                                                                hearing. The trial court granted plaintiff's motion for
IDA E. DOWNER, Petitioner, v. AQUAMARINE
                                                                sanctions, struck defendant's answer, and entered a
OPERATORS, INC., Respondent
                                                                default judgment as to liability. The court of appeals
                                                                reversed the trial court's judgment as an error of law and
Subsequent History: [**1]             Rehearing     Denied
                                                                an abuse of discretion. The court reversed the court of
January 15, 1986.
                                                                appeals and affirmed the judgment of the trial court,
Prior History: Appeal from Harris County, Fourteenth            holding that the trial court had plenary jurisdiction to
District.                                                       consider facts from all of the pleadings that were before
                                                                it when considering whether to impose sanctions and
                                                                that the appeals court erroneously ruled that the trial
Core Terms                                                      court abused its discretion by imposing sanctions.
trial court, sanctions, depositions, court of appeals,
                                                                Outcome
discovery, sanctions hearing, default judgment, crew,
                                                                The court reversed the appellate court's ruling that the
notice, vessel, abuse of discretion, interlocutory,
                                                                trial court erred in striking defendant employer's answer
damages, pleaded, struck
                                                                to complaint by plaintiff, a deceased employee's widow,
                                                                after defendant failed to produce deposition witnesses
Case Summary                                                    or to appear at the hearing for sanctions because the
                                                                trial court had authority to consider all facts contained in
                                                                the pleadings and did not abuse its discretion.
Procedural Posture
Defendant employer appealed a judgment from the
151st District Court of Harris County (Texas), which
                                                                LexisNexis® Headnotes
granted a motion by plaintiff, a deceased employee's
widow, for discovery sanctions, struck defendant's
answer, and entered an interlocutory default judgment
against defendant. The court of appeals reversed the
trial court judgment, holding that it was erroneous and
                                                                    Civil Procedure > Discovery &
an abuse of discretion.
                                                                    Disclosure > Discovery > Misconduct During
                                                                    Discovery
Overview
Plaintiff, a deceased employee's widow, sued defendant
                                                                    Civil Procedure > ... > Methods of
employer after employee was drowned while working
                                                                    Discovery > Depositions > Oral Depositions
upon a vessel owned and operated by defendant. After
members of the crew had failed to appear on three
                                                                HN1[   ] Discovery, Misconduct During Discovery
separate deposition dates, plaintiff filed a motion for
sanctions. Defendant responded that work was scarce             Prior to an amendment effective August 1, 1984, Tex. R.
and, when work was available, it was necessary to send          Civ. P. 215a(c) stated that if a party or an officer or
the vessel and crew to sea rather than produce them for         managing agent of a party, except for good cause
depositions. Defendant failed to appear at the sanctions        shown, fails to appear before the officer who is to take
hearing because its attorney was repairing his home             his oral deposition, the court in which the action is
from hurricane damage and preparing for a federal court         pending on motion and notice may strike out all or any

                                                     Nicole Mitchell
                                                                                                            Page 2 of 5
                                  701 S.W.2d 238, *238; 1985 Tex. LEXIS 1089, **1

part of the pleading of that party or dismiss the action or        Civil Procedure > Judgments > Pretrial
proceeding or any part thereof.                                    Judgments > General Overview

                                                                   Civil Procedure > ... > Pretrial Judgments > Default
                                                                   & Default Judgments > Default Judgments
    Civil Procedure > Appeals > Standards of
    Review > De Novo Review
                                                                   Torts > ... > Defenses > Comparative
                                                                   Fault > General Overview
    Governments > Courts > Authority to Adjudicate
                                                                   Torts > ... > Defenses > Contributory
    Civil Procedure > Judgments > Relief From
                                                                   Negligence > General Overview
    Judgments > General Overview
                                                               HN4[ ]     Affirmative       Defenses,       Contributory
    Civil Procedure > Judgments > Relief From
                                                               Negligence
    Judgments > Motions for New Trials
                                                               Contributory negligence is an affirmative defense which
HN2[   ] Standards of Review, De Novo Review
                                                               must be pleaded.
A trial court's plenary jurisdiction gives it not only the
                                                               Judges: James P. Wallace, Justice.
authority but the responsibility to review any pre-trial
order upon proper motion. In doing so, it is presumed
                                                               Opinion by: WALLACE
that the court is familiar with the entire record of the
case up to and including the motion to be considered.
                                                               Opinion

    Civil Procedure > Appeals > Standards of
    Review > Abuse of Discretion                                [*239] This is an appeal from a judgment for damages
                                                               in a suit brought under the Jones Act and under
HN3[   ] Standards of Review, Abuse of Discretion              admiralty law. The trial dealt only with damages
                                                               because the trial court struck the defendant's answer as
The test for abuse of discretion is not whether, in the        a discovery abuse sanction and signed an interlocutory
opinion of the reviewing court, the facts present an           default judgment as to liability. The court of appeals
appropriate case for the trial court's action. Rather, it is   reversed the trial court judgment, holding that the action
a question of whether the court acted without reference        of [*240] that court was an error of law and an abuse
to any guiding rules and principles. Another way of            of discretion. 689 S.W.2d 472. We reverse the judgment
stating the test is whether the act was arbitrary or           of the court of appeals and affirm the judgment of the
unreasonable. The mere fact that a trial judge may             trial court.
decide a matter within his discretionary authority in a
different manner than an appellate judge in a similar          The issues before us are whether TEX. R. CIV. P.
circumstance does not demonstrate that an abuse of             215a(c), as it existed prior to the amendment effective
discretion has occurred.                                       August 1, 1984, authorized the trial court to strike
                                                               defendant's answer, and, if so, whether the exercise of
                                                               that authority constituted an abuse of discretion.

    Civil Procedure > ... > Defenses, Demurrers &              Edward P. Downer was a seaman aboard the vessel
    Objections > Affirmative Defenses > Contributory           Four Point IV. He drowned while attempting to free a
    Negligence                                                 line that had fouled the vessel's propeller. Ida E.
                                                               Downer, his widow, brought this action against
    Torts > ... > Contributory Negligence > Procedural         Aquamarine [**2] Operators, Inc., the owner and
    Matters > General Overview                                 operator of the vessel. The case was filed in the 151st
                                                               District Court of Harris County. Both Downer and
    Civil Procedure > ... > Defenses, Demurrers &              Aquamarine are residents of Harris County, Texas.
    Objections > Affirmative Defenses > General
    Overview                                                   Downer filed Notice of Intent to Take the Depositions of

                                                     Nicole Mitchell
                                                                                                            Page 3 of 5
                                  701 S.W.2d 238, *240; 1985 Tex. LEXIS 1089, **2

All Members of The Crew on June 1. The notice                 hearing set in federal court in Beaumont on the following
identified each crew member, including the captain,           day and was directing all of his available attention to
Chester P. Dalfrey, by name only. Downer also                 that matter.
requested depositions of the immediate supervisor of
Chester Dalfrey and the custodian of Edward Downer's          To his Motion to Reconsider the Sanctions, Mr. Ayres
personnel file. On June 1, Aquamarine notified Downer         attached an affidavit from his secretary, which stated
that the crew was at sea and would not appear.                that she had called the clerk of the court on July 7, and
Aquamarine at that time agreed to produce the                 had advised her that Mr. Ayres had to make a docket
requested persons on June 22. On June 21,                     call in Angleton on August 22. She understood the clerk
Aquamarine again notified Downer that the crew was at         to say that the sanctions hearing would be reset for
sea and would not appear. It agreed to produce them on        September 6. In response to this motion, Downer's
July 5.                                                       attorney advised the court by letter of his version of the
                                                              circumstances leading up to the non-appearance on
Downer filed written Notice of Intent to Take Depositions     July 5, and the time when he was first advised [*241]
of the same individuals for July 5. On that date, the         that the named individuals would not appear. Attached
requested deponents did not appear, whereupon                 to this letter to the court was a copy of a letter dated
Downer filed a Motion for Sanctions. A hearing on the         July 28, written by Mr. Bales, an associate of Mr. Ayres,
Motion for Sanctions was set for August 22. Aquamarine        which confirmed that the sanctions hearing was set for
made no appearance at the hearing; the trial court            August 22.
granted the Motion for Sanctions and signed an Order
Striking Aquamarine's Answer.                                  [**5] With the above information before it, the trial court
                                                              overruled Aquamarine's Motion to Reconsider the
 [**3] Downer filed a Motion for Interlocutory Default        Sanctions and to reinstate its answer. The court signed
Judgment to which Aquamarine responded. The                   an order granting an interlocutory default judgment as to
response contained Aquamarine's reasons for not               liability. Aquamarine filed a Motion to Set Aside the
producing the requested individuals for depositions and       Default Judgment. The motion contained practically the
its failure to appear at the sanctions hearing.               same information as the Motion to Reconsider
                                                              Sanctions set out above. The trial court considered this
The reason offered for the first two occasions was that       motion and overruled it. On April 16, 1984, the case was
work for the FOUR POINT IV was scarce and, when               preferentially set for trial for June 4, and the trial court
work was available, it was necessary to send the vessel       refused to consider Aquamarine's Second Motion to Set
and crew to sea rather than produce them for                  Aside the Interlocutory Default Judgment and Reinstate
depositions. On the third occasion, the vessel was in         Defendant's Pleadings.
port at New Iberia, Louisiana, but Coast Guard
regulations required a skeleton crew to be kept aboard        A jury trial was had in a different court, the 334th
at all times. Aquamarine's attorney stated that he            District, on the issue of damages. At the trial, Chester
notified Downer's attorney on July 1 of the necessity to      Dalfrey testified that he was captain of the FOUR
take the depositions in New Iberia. Downer's attorney         POINT IV and as such he was in complete charge of the
stated that he first learned that the individuals would not   vessel with authority over all of its operations. Mr. Clark
appear as noticed when Aquamarine's attorney called           Ivans testified that he was president of Aquamarine at
him an hour after the depositions were scheduled to           all times pertinent to this case, and that as such, he was
commence. Both agreed that Aquamarine requested               the immediate supervisor of Chester Dalfrey.
that the depositions be taken in New Iberia on July 6.
However, Downer's attorney stated that he could not do        We now address the issue of whether the trial court had
so because he was preferentially set for trial in Houston     authority under Rule 215a(c) to [**6]                  strike
starting at 9:00 a.m. on July 6.                              Aquamarine's answer. HN1[ ] That rule stated in
                                                              pertinent part:
The reason given [**4] by Aquamarine for not                       If a party or an officer or managing agent of a party,
appearing at the sanctions hearing was that Hurricane              except for good cause shown, fails to appear before
Alicia had struck La Porte, the residence of Mr. Ayres,            the officer who is to take his oral deposition . . . the
Aquamarine's lead counsel, four days previously. Mr.               court in which the action is pending on motion and
Ayres was involved in cleaning up after the hurricane              notice may strike out all or any part of the pleading
and mitigating the damages to his home. Also, he had a             of that party or dismiss the action or proceeding or


                                                    Nicole Mitchell
                                                                                                          Page 4 of 5
                                  701 S.W.2d 238, *241; 1985 Tex. LEXIS 1089, **6

    any part thereof . . . .                                  S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial
                                                              judge may decide a matter within his discretionary
As noted above, Ivans testified that as president of          authority in a different manner than an appellate judge
Aquamarine he was in complete charge of all operations        in a similar circumstance does not demonstrate that an
of the company. Thus he was a party as contemplated           abuse of discretion has occurred. Southwestern Bell
by Rule 215a(c).                                              Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.
                                                              1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d
The next question is whether the trial court, in refusing     290, 295 (Tex. 1959).
to grant a new trial and reinstate Aquamarine's answer,
could consider the evidence introduced subsequent to          To determine the trial judge's guiding rules and
the original sanctions hearing. Aquamarine contends           principles in imposing sanctions for discovery abuse, we
that the trial court, in imposing sanctions, could consider   must look to the Texas Rules of Civil Procedure as
only the evidence before it at the time of the sanctions      promulgated and amended by this court as well as the
hearing, and not any evidence subsequently produced.          decisions of appellate courts of this State and of
HN2[ ] A trial court's plenary jurisdiction gives it not      the [**9] United States. The Texas Rules of Civil
only the authority but the responsibility to review any       Procedure pertaining to discovery and sanctions for
pre-trial order upon proper motion. In doing so, it is        noncompliance have been amended several times,
presumed that the court is familiar with the [**7] entire     culminating in Rule 215a as it existed at the time of this
record of the case up to and including the motion to be       case, and now embodied in Rule 215. The use of
considered. The plenary jurisdiction of the trial court in    sanctions by trial courts to prevent discovery abuse has
this case continued through the final judgment and            developed steadily over the past several years. These
overruling of Aquamarine's motion for new trial. When         changes reflect the continuing pattern both to broaden
considering the motion for new trial, the court had           the discovery process and to encourage sanctions for
before it the reasons advanced by Aquamarine for not          failure to comply.
appearing for depositions or the sanctions hearing;
Downer's response to Aquamarine's motions; and the            The United States Supreme Court in National Hockey
evidence produced at the trial on damages. Thus, the          League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
court of appeals erred in holding that the trial court did    96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976) approved the
not have authority under Rule 215a(c) to strike               use of sanctions not only to assure compliance with the
Aquamarine's answer.                                          discovery process but also to deter those who might be
                                                              tempted to abuse discovery in the absence of a
We now turn to the court of appeals holding that the trial    deterrent.
court abused its discretion in striking Aquamarine's
answer. The court of appeals concluded its review of the      This court and various courts of appeals have also
abuse of discretion issue by stating: "The facts of the       followed this progression. See, e.g., Dyson v. Olin
case simply do not, in our opinion, show this to be an        Corp., 692 S.W.2d 456 (Tex. 1985) (Kilgarlin, J.,
appropriate case to impose the ultimate sanctions of          concurring) (unnamed witness not permitted to testify);
striking the pleadings and entering default judgment."        Jarrett v. Warhola, 695 S.W.2d 8 (Tex. App. -- Houston
We interpret that statement to mean that the court of         [14th Dist.] 1985, writ ref'd) (plaintiff's cause of action
appeals disagreed with the decision of the two trial          dismissed); City of Houston v. Arney, 680 [**10]
judges who reviewed the matter.                               S.W.2d 867 (Tex. App. -- Houston [1st Dist.] 1984, no
                                                              writ) (defendant's answer struck for failure to answer
HN3[ ] The test for abuse of discretion is not whether,       interrogatories); Southern Pacific Transportation v.
in the [**8] opinion of the reviewing court, the facts        Evans, 590 S.W.2d 515 (Tex. Civ. App. -- Houston [1st
present an appropriate case for the trial court's action.     Dist.] 1979, writ ref'd n.r.e.) (defendant's answer struck
Rather, it is a question of whether the court acted           and interlocutory default judgment rendered as to
without reference to any guiding rules and [*242]             liability), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291,
principles. Craddock v. Sunshine Bus Lines, 134 Tex.          101 S. Ct. 531 (1980).
388, 133 S.W.2d 124, 126 (Tex. Comm. App. -- 1939,
opinion adopted). Another way of stating the test is          In various speeches and law review articles, different
whether the act was arbitrary or unreasonable.                members of this court have encouraged trial judges to
Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443          use sanctions to the degree necessary to assure
(Tex. 1982); Landry v. Travelers Insurance Co., 458           compliance with discovery procedures and deter abuse


                                                    Nicole Mitchell
                                                                                                            Page 5 of 5
                                  701 S.W.2d 238, *242; 1985 Tex. LEXIS 1089, **10

of the process. Barrow and Henderson, 1984                     action sufficient to give fair notice of the claim involved.
Amendments to the Texas Rules of Civil Procedure               Our rules do not require pleadings to contain evidence
Affecting Discovery, 15 ST. MARY'S L. J. 713 (1984)            or factual detail. That point is overruled.
(presented to the Texas College of the Judiciary Nov.
29, 1984); Kilgarlin and Jackson, Sanctions for                The second point was that the trial court improperly
Discovery Abuse Under New Rule 215, 15 ST. MARY'S              refused to strike a juror for cause. After the court had
L. J. 767 (1984); Pope and McConnico, Practicing Law           ruled on challenges for cause, there were 26 names left
With the 1981 Texas Rules, 32 BAYLOR L. REV. 457               on the jury list. Each party was given six jury strikes, so,
(1981); Spears, The Rules of Civil Procedure: 1981             after making those strikes, 14 names remained on the
Changes In Pretrial Discovery, 12 ST. MARY'S L. J. 633         list. [**13] The challenged juror was Number 14 and
(1981).                                                        was thus a spare. There was no harm in refusing to
                                                               dismiss him for cause.
The trial court in this case was free [**11] to examine
the factors before it to determine whether to levy             The third point was that the trial court improperly
sanctions. Among these were the following: (1) whether         refused to admit evidence of Downer's contributory
voluntarily sending the crew to sea rather than                negligence. HN4[ ] Contributory negligence is an
producing them for depositions as agreed on two                affirmative defense which must be pleaded.
occasions was in conscious disregard of this court's           Aquamarine's answer had been struck and default
rules; (2) whether the contradictory statements of both        judgment rendered as to liability. Thus, defendant had
attorneys indicated that Aquamarine's attorney did in          no pleading to support contributory negligence, so the
fact wait until one hour past the scheduled time for           court did not err in refusing to admit the requested
depositions on July 5, to advise Downer's attorney that        evidence.
he would have to fly to New Iberia and take depositions
                                                               Aquamarine's remaining point before the court of
on the following day; (3) whether Aquamarine's attorney
                                                               appeals was that the trial court erred in awarding
consciously disregarded the sanctions hearing in
                                                               prejudgment interest in a Jones Act case tried to a jury.
preference to his personal needs and the federal court
                                                               This point was not presented to the trial court and was
case set the following day; (4) whether the information
                                                               thus waived.
contained in the secretary's affidavit as to the date of the
sanctions hearing conflicted with the letter from an           Aquamarine's points of error presented to the court of
attorney [*243] in that law firm confirming that the           appeals but not considered by that court concerned
hearing was set on August 22; and (5) the unexplained          questions of law over which we have jurisdiction. There
failure of Aquamarine to produce for depositions on any        is no merit to these points so it is not necessary for this
of the occasions in question Clark Ivans, the immediate        cause to be remanded to the court of appeals.
supervisor of Chester Dalfrey and the president of
Aquamarine.                                                    The judgment of the court of appeals is reversed and
                                                               the judgment of the trial court is [**14] affirmed.
The record contains no indication that the [**12] trial
court was capricious, arbitrary, or unreasonable. Thus,
the court of appeals erred in holding that the trial court       End of Document
abused its discretion.

In determining whether to reverse and render this cause
or to remand it to the court of appeals, we must look to
the four points of error raised by Aquamarine before the
court of appeals but not addressed by that court. If
those points raise questions of law, as opposed to
questions of fact, they can be addressed by this court.

The first point was that Downer's First Amended Original
Petition was insufficient to support the judgment. The
contention is that the facts supporting the cause of
action were not pleaded. TEX. R. CIV. P. 47 requires
that a petition contain a short statement of the cause of


                                                     Nicole Mitchell
     Caution
As of: March 23, 2018 5:00 PM Z


                         Dueitt v. Arrowhead Lakes Prop. Owners, Inc.
                                    Court of Appeals of Texas, Tenth District, Waco
                        October 26, 2005, Opinion Delivered ; October 26, 2005, Opinion Filed
                                                  No. 10-04-00274-CV

Reporter
180 S.W.3d 733 *; 2005 Tex. App. LEXIS 8830 **
                                                               want of prosecution and the court affirmed on appeal.
JERRY O. AND ROSE DUEITT, Appellants v.
                                                               The owners presented their arguments to the trial court,
ARROWHEAD LAKES PROPERTY OWNERS, INC.,
                                                               and the owners were given adequate notice and
ET AL. Appellees
                                                               participated in the hearing, and thus received due
                                                               process. The trial court did not err in finding that the
Subsequent History: Petition for review denied by
                                                               owners did not prosecute their case with due diligence.
Dueitt v. Arrowhead Lakes Prop. Owners, 2006 Tex.
                                                               Although certain appellees died during the proceedings,
LEXIS 141 (Tex., Mar. 3, 2006)
                                                               and the owners did as the law required after the death
Prior History: [**1] From the 284th District Court             of each one, no other affirmative action was taken on
Montgomery County, Texas. Trial Court No. 90-12-               the case. In 13 years, the owners never requested a trial
04407 CV.                                                      setting. The trial court erred in failing to hold a hearing
                                                               under Tex. R. Civ. P. 165a(3) on their motion to
Disposition: Affirmed.                                         reinstate, but the error was harmless under Tex. R. App.
                                                               P. 44.1(a) because (1) the case was on file for over 13
                                                               years, (2) the owners never requested a trial setting, (3)
Core Terms
                                                               the owners offered no evidence, and (4) they were not
                                                               prevented from presenting their case on appeal.
trial court, want of prosecution, motion to reinstate,
notice, motion to dismiss, pet, fail to hold, due diligence,
                                                               Outcome
due process, phase, inherent authority, prosecuting,
                                                               The court affirmed.
abused, issues, adequate notice, thirteen year,
harmless, inform, trial setting, intentions, requires
                                                               LexisNexis® Headnotes
Case Summary

Procedural Posture
Appellant lot owners challenged a decision of the 284th
                                                                   Civil Procedure > Dismissal > Involuntary
District Court, Montgomery County (Texas), which
                                                                   Dismissals > Failure to Prosecute
dismissed for want of prosecution their case against
appellees, a property owners' association and current
                                                               HN1[ ]    Involuntary       Dismissals,      Failure    to
and former directors, which sought declaratory relief and
                                                               Prosecute
damages for fraud, slander of title, deceptive trade
practices, and violations of fair debt collection practices
                                                               A trial court's power to dismiss a suit for want of
acts.
                                                               prosecution originates from two sources: (1) Tex. R. Civ.
                                                               P. 165a and (2) the trial court's inherent authority. Tex.
Overview
                                                               R. Civ. P. 165a. A trial court may dismiss a suit under
                                                               Rule 165a when (1) a party fails to appear for a trial or
The owners' property was subject to deed restrictions
                                                               hearing or (2) when a suit is not disposed of within the
that levied a fee for maintenance purposes. After a
                                                               time standards given by the Texas Supreme Court. Tex.
dispute arose concerning the amount of the levy, they
                                                               R. Civ. P. 165a(1), (2). Independent of the rules of civil
filed this action. The trial court dismissed the action for
                                                               procedure, a trial court may also dismiss a suit under

                                                      Nicole Mitchell
                                                                                                        Page 2 of 8
                               180 S.W.3d 733, *733; 2005 Tex. App. LEXIS 8830, **1

the inherent authority given to it by common law.                Constitutional Law > ... > Fundamental
                                                                 Rights > Procedural Due Process > Scope of
                                                                 Protection
    Civil Procedure > Dismissal > Involuntary
                                                             HN6[     ] Dismissal, Involuntary Dismissals
    Dismissals > Appellate Review
                                                             The requirements of notice and a hearing are necessary
HN2[   ] Involuntary Dismissals, Appellate Review
                                                             to ensure the dismissed claimant has received due
                                                             process. The failure to provide adequate notice of the
When a party does not request findings of fact or
                                                             trial court's intent to dismiss for want of prosecution
conclusions of law, and the trial court does not specify
                                                             requires reversal. However, participation in a hearing on
the standard of dismissal used, the appellate court must
                                                             a motion to reinstate cures any due process concerns
affirm on the basis of any legal theory supported by the
                                                             for the failure to provide notice of intent to dismiss.
record.


                                                                 Civil Procedure > Dismissal > Involuntary
    Civil Procedure > Dismissal > Involuntary
                                                                 Dismissals > Failure to Prosecute
    Dismissals > Appellate Review
                                                             HN7[ ]    Involuntary       Dismissals,     Failure    to
HN3[   ] Involuntary Dismissals, Appellate Review
                                                             Prosecute
The appellate court reviews a dismissal for want of
                                                             Dismissal for want of prosecution may be obtained by
prosecution under an abuse of discretion standard. A
                                                             motion of the trial court or on motion of any party to the
trial court abuses its discretion when it acts without
                                                             suit. The Tex. R. Civ. P. 165a reinstatement procedure
reference to any guiding rules or principles, or, stated
                                                             applies to all dismissals for want of prosecution,
another way, when the trial court acts in an arbitrary and
                                                             regardless of whether they are initiated by the court or
unreasonable manner.
                                                             motion of a party.


    Civil Procedure > Dismissal > Involuntary
                                                                 Civil Procedure > Dismissal > Involuntary
    Dismissals > Failure to Prosecute
                                                                 Dismissals
HN4[ ]    Involuntary       Dismissals,     Failure    to
                                                                 Constitutional Law > ... > Fundamental
Prosecute
                                                                 Rights > Procedural Due Process > Scope of
A party must be provided with notice and an opportunity          Protection
to be heard before a trial court may dismiss a case for
                                                             HN8[     ] Dismissal, Involuntary Dismissals
want of prosecution under either Tex. R. Civ. P. 165a or
its inherent power.
                                                             All that due process requires is that a party be given
                                                             notice of the time and substance of the hearing, and an
                                                             opportunity to present arguments at the hearing. A
    Civil Procedure > Dismissal > Involuntary                dismissal notice containing no reference to Tex. R. Civ.
    Dismissals > Failure to Prosecute                        P. 165a or the court's inherent authority is sufficient to
                                                             put a party on notice that the court could dismiss under
HN5[ ]    Involuntary       Dismissals,     Failure    to    Rule 165a(1), (2) or its inherent authority.
Prosecute

See Tex. R. Civ. P. 165a(1).
                                                                 Civil Procedure > Dismissal > Involuntary
                                                                 Dismissals > Failure to Prosecute

    Civil Procedure > Dismissal > Involuntary                HN9[ ]    Involuntary       Dismissals,     Failure    to
    Dismissals                                               Prosecute

                                                    Nicole Mitchell
                                                                                                              Page 3 of 8
                               180 S.W.3d 733, *733; 2005 Tex. App. LEXIS 8830, **1

In determining under its inherent authority whether a         165a(3) provides that a judge shall set a hearing on a
party has demonstrated a lack of diligence in                 motion to reinstate as soon as practicable and notify all
prosecuting a claim, a trial court may consider the entire    parties or their attorneys of record of the date, time, and
history of the case; including the length of time the case    place of the hearing. The rule is mandatory, and the trial
was on file, the extent of activity in the case, whether a    court has no discretion about whether to set a hearing
trial setting was requested, and the existence of             on the motion. It is not within the discretion of the trial
reasonable excuses for delay. No single factor is             court to fail to hold an oral hearing on the motion to
dispositive, and a belated trial setting or stated            reinstate. It is not within the discretion of the trial court to
readiness to proceed to trial does not conclusively           fail to hold an oral hearing on a timely-filed, properly
establish diligence.                                          verified motion to reinstate. Whether or not the movant
                                                              requests a hearing on a motion to reinstate is irrelevant;
                                                              a hearing is required unless waived.
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Appellate Review
                                                                  Civil Procedure > ... > Standards of
    Civil Procedure > Dismissal > Involuntary                     Review > Harmless & Invited Errors > Harmless
    Dismissals > Failure to Prosecute                             Error Rule

HN10[    ] Involuntary Dismissals, Appellate Review           HN13[    ] Harmless & Invited Errors, Harmless Error
                                                              Rule
The appellate court may consider the entire history of
the case, including the length of time the case has been      Appellate courts should not reverse a trial court's
on file, for purposes of dismissal for want of prosecution.   judgment in violation of Tex. R. Civ. P. 279 any more
                                                              than appellate courts should reverse a trial court's
                                                              judgment for error that was harmless. Rule 279 applies
    Civil Procedure > Dismissal > Involuntary                 just as Tex. R. App. P. 44.1 applies. The trial court's
    Dismissals > Failure to Prosecute                         error requires reversal if it probably caused the rendition
                                                              of an improper judgment or probably prevented a party
HN11[ ]   Involuntary        Dismissals,     Failure    to    from properly presenting their case to the court of
Prosecute                                                     appeals. Tex. R. App. P. 44.1(a).

When an unreasonable delay in the prosecution of a
case occurs, it is presumed that the case has been                Civil Procedure > Dismissal > Involuntary
abandoned. If that delay is not sufficiently explained, the       Dismissals
presumption of abandonment is conclusive and the case
will be dismissed.                                                Constitutional Law > ... > Fundamental
                                                                  Rights > Procedural Due Process > Scope of
                                                                  Protection
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Failure to Prosecute                         HN14[    ] Dismissal, Involuntary Dismissals

    Civil Procedure > Dismissal > Involuntary                 The motion to reinstate is the fail-safe to prevent cases
    Dismissals > Hearings on Dismissal                        that fall into any of the three categories from being
                                                              improperly dismissed. The motion to reinstate ensures
HN12[ ]   Involuntary        Dismissals,     Failure    to    that the dismissed party has received due process,
Prosecute                                                     because participation in the reinstatement hearing cures
                                                              any due process concerns. If participation in a motion to
The same reinstatement procedures and timetable are           reinstate cures any due process error in the original
applicable to all dismissals for want of prosecution          hearing on the motion to dismiss, the court does not see
including cases which are dismissed pursuant to the           why the reverse should not also be true.
court's inherent power, whether or not a motion to
dismiss has been filed. Tex. R. Civ. P. 165a(4). Rule

                                                    Nicole Mitchell
                                                                                                          Page 4 of 8
                              180 S.W.3d 733, *733; 2005 Tex. App. LEXIS 8830, **1

    Civil Procedure > Dismissal > Involuntary                maintenance purposes. After a dispute arose about the
    Dismissals > Failure to Prosecute                        amount of the maintenance levy, Arrowhead Lakes
                                                             Property Owners, Inc. filed a lien affidavit against the
    Civil Procedure > Appeals > Reviewability of Lower       Dueitts' property. Because their title was encumbered,
    Court Decisions > Preservation for Review                the Dueitts could not sell their property. In 1990, the
                                                             Dueitts filed suit against Arrowhead and some of its then
HN15[ ]   Involuntary        Dismissals,     Failure   to    current and former directors (Appellees 1 ) seeking
Prosecute                                                    declaratory relief and damages for slander of title,
                                                             common law fraud, deceptive trade practices, and
If a trial court's involuntary dismissal order mistakenly    violations [**2] of the state and federal fair debt
adjudicates the case on the merits by dismissing the suit    collection practices act.
with prejudice or by stating that the plaintiff "take
nothing," the error must be challenged in a timely filed     After pending for over thirteen years on the trial court's
motion to reinstate or motion for new trial. If not, the     docket, Appellees filed a motion for dismissal of the
error is waived. The error in dismissing a case with         case for want of prosecution. On May 27, 2004, the trial
prejudice cannot be raised for the first time on appeal      court held a hearing on the Appellees' motion and
and must be presented to the trial court. Error in           subsequently dismissed the case without prejudice. The
improper dismissal for want of prosecution is subject to     Dueitts filed a motion to reinstate and requested a
waiver if the trial court is not given an opportunity to     hearing on the motion. The trial court denied the motion
correct it or if the question is not properly raised on      without a hearing.
appeal.
                                                             On appeal, the Dueitts argue in seven issues that the
Counsel: For APPELLANT/RELATOR: Don Stocking,                trial court erred because it (1-2) failed to give notice of
STOCKING & ASSOCIATES, Conroe, TX.                           its intention to dismiss their case for [**3] want of
                                                             prosecution; (3-4) did not inform the Dueitts of the
For APPELLEE/RESPONDENT: Larry L. Foerster,
                                                             authority under which the trial court intended to dismiss;
DARDEN, FOWLER & CREIGHTON, Conroe, TX.;
                                                             (5) abused its discretion by dismissing their cause for
Carrie E. Campbell, MOUNGER & CAMPBELL,
                                                             lack of due diligence in prosecuting their case; (6)
Wimberly, TX.; Bryan P. Fowler, THE FOWLER LAW
                                                             abused its discretion by taxing all costs against the
FIRM, Conroe, TX.
                                                             Dueitts; and (7) abused its discretion by failing to hold a
                                                             hearing on the Dueitts' motion to reinstate.
Judges: Before Chief Justice Gray, Justice Vance, and
Justice Reyna.
                                                             Analysis
Opinion by: FELIPE REYNA

Opinion                                                      The Dueitts Received Adequate Notice

                                                             The Dueitts argue in issues one through four that they
 [*736] Jerry O. Dueitt and Rose Dueitt appeal from the      had no adequate notice of [*737] the trial court's
trial court's dismissal of their case for want of            intention to dismiss their case for want of prosecution.
prosecution. Because we find that the trial court did not
abuse its discretion in dismissing the Dueitts' cause, and   HN1[ ] A trial court's power to dismiss a suit for want of
because we find that any error in failing to hold a          prosecution originates from two sources: (1) Texas Rule
hearing on the Dueitts' motion to reinstate was              of Civil Procedure 165a and (2) the trial court's inherent
harmless, we affirm.

                                                             1 Appellees  include Arrowhead Lakes Property Owners, Inc.,
Factual and Procedural Background                            Harry E. Curry, Cheryl Snoe, Christen K. Arnold as Executrix
                                                             of the Estate of Carolyn Williams, Rose Coker, Shirley Ann
The Dueitts own two lots in the Arrowhead Lakes              Spain Gaylord as Heir of Alta Partin, Marshall Harold Beleau
division of Montgomery County. The property was              as Executrix of the Estate of Harold Beleau, Virgil Gorden,
subject to deed restrictions that levied a fee for           Roy Rutherford, Olaf Lovett, and Jeannine Fastow as
                                                             Executrix of the Estate of Theodore Edward Spornhauer.

                                                   Nicole Mitchell
                                                                                                            Page 5 of 8
                               180 S.W.3d 733, *737; 2005 Tex. App. LEXIS 8830, **3

authority. TEX. R. CIV. P. 165a; Villarreal v. San             The failure to provide adequate notice of the trial court's
Antonio Truck & Equip., 994 S.W.2d 628, 630, 42 Tex.           intent to dismiss for want of prosecution requires
Sup. Ct. J. 662 (Tex. 1999); Steward v. Colonial Cas.          reversal. Villarreal, 994 S.W.2d at 630-31; Smith, 145
Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.--Waco              S.W.3d at 302. However, participation in a hearing on a
2004, no pet.); Binner v. Limestone County, 129 S.W.3d         motion to reinstate cures any due process concerns for
710, 712 (Tex. App.--Waco 2004, pet. denied). A trial          the failure to provide notice of intent to dismiss. Manning
court may dismiss a suit under Rule [**4] 165a when            v. North, 82 S.W.3d 706, 715 (Tex. App.--Amarillo 2002,
(1) a party fails to appear for a trial or hearing or (2)      no pet.); Tex. Sting, Ltd, 82 S.W.3d at 648-49.
when a suit is not disposed of within the time standards
given by the Supreme Court. TEX. R. CIV. P. 165a(1),           The Dueitts argue that they received no adequate notice
(2); Steward, 143 S.W.3d at 163-64. Independent of the         of the trial court's intent to dismiss their case because
rules of civil procedure, a trial court may also dismiss a     the notice was promulgated by Appellees and not the
suit under the inherent authority given to it by common        trial court itself. They argue that Appellees' motion to
law. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d        dismiss was only sufficient to inform the Dueitts of the
at 163-64. HN2[ ] The Dueitts did not request findings         Appellees intentions, and gave no indication of the trial
of fact or conclusions of law, and the trial court did not     court's intentions. They argue that Appellees cannot
specify the standard of dismissal used. Therefore, we          give notice of the trial [*738] court's intentions, but that
must affirm on the basis of any legal theory supported         the trial court must give notice of its own intentions.
by the record. Vickery v. Comm'n for Lawyer Discipline,
                                                               However, HN7[ ] dismissal for want of prosecution
5 S.W.3d 241, 252 (Tex. App.--Houston [14th Dist.]
                                                               may be obtained by motion of the [**7] trial court or on
1999, pet. denied) (citing Worford v. Stamper, 801
                                                               motion of any party to the suit. Sierra Club v. Tex.
S.W.2d 108, 109, 34 Tex. Sup. Ct. J. 96 (Tex. 1990)).
                                                               Comm'n. on Envtl. Quality, No. 03-04-00108-CV, 2005
HN3[ ] We review a dismissal for want of prosecution           Tex. App. LEXIS 454, *5 (Tex. App.--Austin, Jan. 21,
under an abuse-of-discretion standard. State v. Rotello,       2005) (not designated for publication) ("Contrary to
671 S.W.2d 507, 509, 27 Tex. Sup. Ct. J. 407 (Tex.             appellants' arguments, the rule 165a reinstatement
1984); In re Marriage of Seals, 83 S.W.3d 870, 873             procedure applies to all dismissals for want of
(Tex. App.--Texarkana 2002, no pet.). A trial court            prosecution, regardless of whether they are initiated by
abuses its discretion [**5] when it acts "without              the court or motion of a party."); Polk v. Southwest
reference to any guiding rules or principles," or, stated      Crossing Homeowners Ass'n, 165 S.W.3d 89, 92-93
another way, when the trial court acts in an arbitrary and     (Tex. App.--Houston [14th Dist.] 2005, pet. filed) (trial
unreasonable manner. City of San Benito v. Rio Grande          court granted Appellees' motion to dismiss for want of
Valley Gas Co., 109 S.W.3d 750, 757, 46 Tex. Sup. Ct.          prosecution); Harvey v. Wetzel, No. 03-03-00608-CV,
J. 861 (Tex. 2003) (quoting Downer v. Aquamarine               2004 Tex. App. LEXIS 6818, *12 (Tex. App.--Austin,
Operators, Inc., 701 S.W.2d 238, 242, 29 Tex. Sup. Ct.         July 29, 2004, no pet.) (not designated for publication)
J. 88 (Tex. 1985)).                                            (affirming the trial court's granting of Appellee's motion
                                                               to dismiss for want of prosecution); Wright v. Tex. Dep't
HN4[ ] A party must be provided with notice and an             of Crim. Justice-Institutional Div., 137 S.W.3d 693, 694
opportunity to be heard before a trial court may dismiss       (Tex. App.--Houston [1st Dist.] 2004, no pet. h.)
a case for want of prosecution under either Rule 165a or       (Appellee filed a motion to dismiss for want of
its inherent power. See TEX. R. CIV. P. 165a(1) HN5[           prosecution); Manning, 82 S.W.3d at 712 (Appellee filed
] ( "Notice of the court's intention to dismiss and the date   a motion to dismiss for [**8] want of prosecution).
and place of the dismissal hearing shall be sent by the
                                                               The Dueitts also argue that Appellees' motion and the
clerk to each attorney of record, and to each party not
                                                               trial court's notice were inadequate because it did not
represented by an attorney."); Villarreal, 994 S.W.2d at
                                                               inform them of the trial court's intention to dismiss or of
630; Smith v. McKee, 145 S.W.3d 299, 302 (Tex. App.--
                                                               the authority under which the case might be dismissed.
Fort Worth 2004, no pet.). HN6[ ] The requirements of
notice and a hearing are necessary to ensure the               Appellees filed their motion to dismiss on April 14, 2004.
dismissed claimant has received due process. Smith,            The Dueitts filed a response to Appellees' motion on
145 S.W.3d at 302; Tex. Sting Ltd. v. R.B. Foods, Inc.,        April 21. The trial court's notice of a hearing was filed on
82 S.W.3d 644, 648 (Tex. App.--San Antonio 2002, pet.          May 14. The notice informed the Dueitts that a hearing
denied); [**6] Franklin v. Sherman Indep. Sch. Dist., 53       would be held on Appellees' motion to dismiss and gave
S.W.3d 398, 401 (Tex. App.--Dallas 2001, pet. denied).

                                                     Nicole Mitchell
                                                                                                               Page 6 of 8
                                180 S.W.3d 733, *738; 2005 Tex. App. LEXIS 8830, **8

the time and place for the hearing. The Dueitts argue            prosecute their case with due diligence.
that the trial court's reference to Appellees' motion in its
notice was not sufficient to inform them of the trial            HN9[ ] In determining under its inherent authority
court's intent to dismiss the Dueitts because Appellees'         whether a party has demonstrated a lack of diligence in
motion requests that Appellees, not the Dueitts, be              prosecuting a claim, a trial court may consider the entire
dismissed with prejudice. In the introductory statement          history of the case; including the length of time the case
of Appellees' motion, it states that Appellees "move[]           was on file, the extent of activity in the case, whether a
this Court for an order dismissing [Appellees] with              trial setting was requested, [**11] and the existence of
prejudice." However in body of the motion, Appellees             reasonable excuses for delay. Scoville v. Shaffer, 9
argue that the Dueitts' case should be dismissed                 S.W.3d 201, 204 (Tex. App.--San Antonio 1999, no
because the Dueitts failed to prosecute their case with          pet.); King v. Holland, 884 S.W.2d 231, 237 (Tex. App.--
due diligence and reminds the trial court that the action        Corpus Christi 1994, writ denied). No single factor is
has been [**9] pending on the docket for over thirteen           dispositive, and a belated trial setting or stated
years with no affirmative action on the case since               readiness to proceed to trial does not conclusively
February 2001. Appellees also state in the motion that           establish diligence. Ozuna v. Southwest Bio-Clinical
this time period is outside the time standards                   Laboratories, 766 S.W.2d 900, 902 (Tex. App.--San
promulgated by the Texas Supreme Court and asks the              Antonio 1989, writ denied).
trial court to "order the dismissal of Plaintiffs' action with
prejudice." Further, in their response to Appellees'             The Dueitts argue that we should perceive this case as
motion, filed before the trial court's notice was sent, the      composed of two phases. The first phase begins at the
Dueitts argue that their cause should not be dismissed           filing of the suit in 1990 and ends at the denial of the
under the trial court's inherent power because they have         Dueitts' partial summary judgment in 1998. The Dueitts
not been delinquent in prosecuting their case.                   argue that in this phase it is clear that the trial court did
                                                                 not believe that they failed to use due diligence, or it
HN8[ ] All that due process requires is that a party be          would have taken action to dismiss the case in 1998.
given notice of the time and substance of the hearing,           Therefore, the Dueitts argue that Appellees are wrong to
and an opportunity to present arguments at the hearing.          include this eight-year span to support its argument that
Smith, 145 S.W.3d at 302; Tex. Sting, 82 S.W.3d at               the Dueitts have not exercised due diligence for thirteen
648. The notice referencing Appellees' motion to                 years. In the second phase, the Dueitts argue that a
dismiss was sufficient to inform the Dueitts of the time         delay in setting a trial date was unavoidable due to the
and the substance of the hearing, namely that the                sequential [**12] deaths of four of the Appellees, and
hearing would concern the potential dismissal of their           that the Dueitts exercised due diligence in this phase by
cause for want of prosecution. The hearing was held,             serving the representatives of the deceased Appellees'
and the Dueitts presented their arguments to the trial           estates.
court which the court ultimately [*739] rejected. As for
                                                                 Indeed the Dueitts are correct that in this second phase
the absence [**10] of reference in the motion to the
                                                                 the record reflects activity from the Dueitts regarding the
authority the trial court would use to dismiss the cause,
                                                                 deaths of the four Appellees and the filing of scire
we have held that "a dismissal notice containing no
                                                                 faciases. The Dueitts cite Brown v. Prairie View A&M
reference to Rule 165a or the court's inherent authority
                                                                 Univ. in support of their argument that they exercised
[is] sufficient to put the appellant on notice that the court
                                                                 reasonable diligence in the second phase by serving the
could dismiss under Rule 165a(1), Rule 165a(2), or its
                                                                 respective representatives of the estates. 630 S.W.2d
inherent authority." Steward, 143 S.W.3d at 164 (citing
                                                                 405, 412-13 (Tex. App.--Houston [14th Dist.] 1982, writ
Binner, 129 S.W.3d at 712). The Dueitts were given
                                                                 ref'd n.r.e.). In Brown, the Fourteenth Court of Appeals
adequate notice that their cause could be dismissed by
                                                                 reversed the trial court's dismissal for want of
the trial court for want of prosecution and participated in
                                                                 prosecution for a twenty-eight month delay in making
the hearing, thus receiving due process. Accordingly,
                                                                 the representative of the deceased a party because the
we overrule the Dueitts' issues one through four.
                                                                 record showed due diligence. Id. However in Brown, the
                                                                 case was set for trial when the death occurred, and
                                                                 during the twenty-eight month delay the court noted that
No Abuse of Discretion in Dismissing the Dueitts' Case
                                                                 the plaintiff had not let the case lie dormant, but had
The Dueitts argue in their fifth issue that the trial court      filed two amended petitions and had responded to a
abused its discretion in determining that they did not           motion for summary judgment. Id.


                                                       Nicole Mitchell
                                                                                                            Page 7 of 8
                               180 S.W.3d 733, *739; 2005 Tex. App. LEXIS 8830, **12

In this case, the first Appellee died in 1999 [**13] and       mandatory, and the trial court has no discretion about
the representative of his estate filed an answer in that       whether to set a hearing on the motion. Thordson v. City
same year. No activity occurred until the next Appellee        of Houston, 815 S.W.2d 550, 550, 34 Tex. Sup. Ct. J.
 [*740] died in 2002. While the Dueitts did as the law         830 (Tex. 1991) ("It [is] not within the discretion of the
required after the death of each Appellee, no other            trial court to fail to hold an oral hearing on the motion to
affirmative action was taken on the case. At the hearing       reinstate."); Smith, 145 S.W.3d at 305-06 ("It is not
on Appellees' motion, counsel for the Dueitts admitted         within the discretion of the trial court to fail to hold an
that in thirteen years he had never requested a trial          oral hearing on a timely-filed, properly verified motion to
setting. While the Dueitts argue that their cause should       reinstate.") Matheson v. Am. Carbonics, 867 S.W.2d
be considered as two separate phases, HN10[ ] we               146, 147-48 (Tex. App.--Texarkana 1993, no writ)
may consider the entire history of the case, including the     ("Whether or not the movant requests a hearing on a
length of time the case has been on file. Scoville, 9          motion to reinstate is irrelevant; a hearing is required
S.W.3d at 204. Therefore, we find that the trial court did     unless waived."). Therefore, the trial court abused its
not abuse its discretion in dismissing the Dueitts' case       discretion in failing to hold a hearing on the Dueitts'
under its inherent authority for want of prosecution when      motion to reinstate.
the case was on file for over thirteen years with no
request for a trial setting. Harvey, 2004 Tex. App. LEXIS      We now turn to whether the trial court's failure to hold a
6818 at *12 (record supported dismissal for lack of            hearing is harmless. TEX. R. APP. P. 44.1; see In re
prosecution, under court's inherent authority, based on        J.F.C., 96 S.W.3d 256, 274, 46 Tex. Sup. Ct. J. 328
plaintiff's failure to set trial date over nine-month period   (Tex. 2002) [**16] HN13[ ] ("Appellate courts should
without a reasonable excuse, coupled with the forty-two-       not reverse a trial court's judgment in violation of Rule
month time that the case was on file); Manning, 82             279 any more than appellate courts should reverse a
S.W.3d at 713-14 [**14] (eight and one-half years "is          trial court's judgment for error that was harmless. Rule
sufficient to establish a rebuttable presumption that          279 applies just as Texas Rule of Appellate Procedure
appellants have not prosecuted the suit with due               44.1 applies."); In re J. B., 93 S.W.3d 609, 615 (Tex.
diligence"); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d      App.--Waco 2002, pet. denied) (conducting a harm
533, 541 (Tex. App.--Houston [14th Dist.] 2000, no pet.)       analysis for violation of Rule 245); 4M Linen & Uniform
HN11[ ] ("When an unreasonable delay in the                    Supply Co., Inc. v. [*741] W. P. Ballard & Co., Inc., 793
prosecution of a case occurs, it is presumed that the          S.W.2d 320, 324 (Tex. App.--Houston [1st Dist.] 1990,
case has been abandoned. If that delay is not                  writ denied) (conducting a harm analysis for violation of
sufficiently explained, the presumption of abandonment         Rule 52). The trial court's error requires reversal if it
is conclusive and the case will be dismissed."). We            probably caused the rendition of an improper judgment
overrule the Dueitts' fifth issue.                             or probably prevented the Dueitts from properly
                                                               presenting their case to the court of appeals. TEX. R.
                                                               APP. P. 44.1(a); In re J. B., 93 S.W.3d at 615.
Failure to Hold a Hearing on the Motion to Reinstate
was Harmless                                                   HN14[ ] "The motion to reinstate is the failsafe to
                                                               prevent cases that fall into any of the three categories
The Dueitts argue in their seventh issue that the trial        from being improperly dismissed." Binner, 129 S.W.3d
court erred in failing to hold a hearing on their motion to    at 713. The motion to reinstate ensures that the
reinstate.                                                     dismissed party has received due process,
                                                               because [**17] participation in the reinstatement
HN12[ ] "The same reinstatement procedures and                 hearing cures any due process concerns. Steward, 143
timetable are applicable to all dismissals for want of         S.W.3d at 165; Binner, 129 S.W.3d at 713; Manning, 82
prosecution including cases which are dismissed                S.W.3d at 715; Tex. Sting, 82 S.W.3d at 649-50. Yet,
pursuant to the court's inherent power, whether or not a       we have already determined that the Dueitts received
motion to dismiss has been filed." Smith, 145 S.W.3d at        due process. The Dueitts received adequate notice and
305-06 (citing TEX. R. CIV. P. 165a(4)); Sierra Club,          substance of the hearing on the motion to dismiss, and
2005 Tex. App. LEXIS 454, *5. Rule 165a(3) provides            had the opportunity to respond at the hearing, which is
that a judge "shall set a hearing" [**15] on a motion to       all that due process requires. Smith, 145 S.W.3d at 302;
reinstate as soon as practicable and notify all parties or     Tex. Sting, 82 S.W.3d at 648. Therefore, all due process
their attorneys of record of the date, time, and place of      concerns were eliminated before the Dueitts filed their
the hearing. TEX. R. CIV. P. 165a(3). The rule is              motion to reinstate. If participation in a motion to

                                                     Nicole Mitchell
                                                                                                            Page 8 of 8
                              180 S.W.3d 733, *741; 2005 Tex. App. LEXIS 8830, **17

reinstate cures any due process error in the original         motion to reinstate. HN15[ ] If a trial court's involuntary
hearing on the motion to dismiss, we do not see why the       dismissal order mistakenly adjudicates the case on the
reverse should not also be true. See Manning, 82              merits by dismissing the suit with prejudice or by stating
S.W.3d at 715; Tex. Sting, 82 S.W.3d at 648-49. If due        that the plaintiff "take nothing," the error must be
process was achieved in the original hearing on the           challenged in a timely filed [**20] motion to reinstate or
motion to dismiss, then the failure to hold a hearing on      motion for new trial. If not, the error is waived. Id. (citing
the motion to reinstate was harmless.                         El Paso Pipe & Supply Co. v. Mt. States Leasing, Inc.,
                                                              617 S.W.2d 189, 190, 24 Tex. Sup. Ct. J. 466 (Tex.
Furthermore, the Dueitts did not promulgate any new           1981)) ("However, the error in dismissing a case with
arguments or advocate [**18] the discovery of new             prejudice cannot be raised for the first time on appeal
evidence supporting their claims in their motion to           and must be presented to the trial court."); Labrie v.
reinstate. The Dueitts argued the same issues in their        Kenney, 95 S.W.3d 722, 728-29 (Tex. App.--Amarillo
motion to reinstate that they argued in the hearing on        2003, no pet.) (stating error in improper dismissal for
the motion to dismiss. In the hearing on the motion to        want of prosecution is "subject to waiver if the trial court
dismiss, the Dueitts argued that (1) Appellees' motion to     is not given an opportunity to correct it or if the question
dismiss was inadequate to inform them of the trial            is not properly raised on appeal"); Andrews v. ABJ
court's intentions; (2) that Appellees did not have           Adjusters, Inc., 800 S.W.2d 567, 568 (Tex. App.--
standing to move the court to dismiss the Dueitts for         Houston [14th Dist.] 1990, writ denied) (noting argument
want of prosecution; (3) that they received no notice that    that dismissal for want of prosecution "with prejudice"
the trial court intended to dismiss their case for want of    was improper but argument could be waived on appeal).
prosecution; and (4) that they exercised due diligence in     Therefore, because we find that this issue was not
prosecuting their case because of the numerous filings        properly preserved for appeal, we overrule the Dueitts'
of scire faciases. These same issues were present in          sixth issue. See TEX. R. APP. P. 33.1.
the Dueitts' motion to reinstate. No new arguments were
before the trial court. The failure to hold a hearing did
not cause a rendition of an improper judgment because         Conclusion
the case was on file for over thirteen years, there was
an admission from the Dueitts' counsel that he had            Having overruled all of the Dueitts' issues, we affirm the
never requested a trial setting, and the Dueitts offered      trial court's order.
no new evidence, only their claim that they exercised
                                                              FELIPE REYNA
due diligence by filing a scire facias after each
Appellee's death. Nor could [**19] the failure to hold a      [**21] Justice
hearing prevent the Dueitts from presenting their case
on appeal because the Dueitts argue these same issues
on appeal. Therefore, we find that the failure to hold a        End of Document
hearing on the Dueitts' motion to reinstate was
harmless. TEX. R. APP. P. 44.1(a); In re J. B., 93
S.W.3d at 615. We overrule the Dueitts' seventh issue.


Any Error in Taxing Costs Against the Dueitts was not
Properly Preserved

The Dueitts argue in their sixth issue that the trial court
abused its discretion by taxing all costs against them
because this created an adjudication of the merits,
which is an action not allowed in a dismissal for want of
prosecution. It is true that a dismissal for want of
prosecution cannot be a decision on the merits of the
case. Bird v. Kornman, 152 S.W.3d 154, 161 [*742]
(Tex. App.--Dallas 2004, pet. denied).

However, the Dueitts failed to argue this issue in their

                                                    Nicole Mitchell
     Caution
As of: March 23, 2018 5:00 PM Z


                                   Fedco Oil Co. v. Pride Refining Co.
                                  Court of Appeals of Texas, Fourteenth District, Houston
                                                     March 29, 1990
                                                  No. B14-89-00470-CV

Reporter
787 S.W.2d 572 *; 1990 Tex. App. LEXIS 696 **
                                                              prosecution as the record unquestionably showed that
FEDCO OIL COMPANY and DON R. BILLINGSLEY,
                                                              appellant was making a diligent effort to get the case to
Appellants, v. PRIDE REFINING COMPANY, INC.,
                                                              trial, and that trial had actually been set for the case.
CEFOR HOLDINGS CORP., DAVID JONES and
                                                              Therefore, the court reversed the judgment and
JIMMY R. MOORIS, Appellees
                                                              remanded the case to the trial court.
Prior History: [**1] On Appeal from the 165th District
                                                              Outcome
Court, Harris County, Texas, Trial Court Cause No. 80-
                                                              The court reversed the judgment which dismissed
29437, Kenneth D. Harrison, Judge.
                                                              appellant oil company's case against appellee refining
                                                              company and remanded the case because the trial court
Core Terms                                                    abused its discretion in dismissing appellant's causes of
                                                              action for want of prosecution. This was because there
trial court, want of prosecution, plea in abatement,          was almost constant activity until the day the trial judge
cause of action, Oil, trial judge, abatement, appellees,      dismissed the case and the record showed that
damages                                                       appellant was making a diligent effort to get the case to
                                                              trial.
Case Summary
                                                              LexisNexis® Headnotes
Procedural Posture
Appellant oil company sought review from the 165th
District Court, Harris County (Texas), which dismissed
its causes of action against appellee refining company
for want of prosecution. Appellant asserted that the
                                                                   Civil Procedure > Dismissal > Involuntary
dismissal order was based on its failure to comply with a
                                                                   Dismissals > Failure to Prosecute
previous order abating the lawsuit, rather than on want
of prosecution.                                                    Civil Procedure > Dismissal > Involuntary
                                                                   Dismissals > General Overview
Overview
Appellant oil company was involved in a complex and                Civil Procedure > Dismissal > Involuntary
lengthy litigation against appellee refining company               Dismissals > Motions
arising out of the breach of contract in the sale and
purchase of crude oil. The trial court dismissed              HN1[ ]    Involuntary         Dismissals,   Failure    to
appellant's causes of action against appellee for want of     Prosecute
prosecution. Appellant sought review and asserted the
dismissal order was based on failure to comply with a         In passing upon a motion to dismiss for want of
previous order abating the lawsuit rather than on want of     prosecution, the trial court is entitled to consider the
prosecution. On appeal, the court found there was             entire history of the case.
almost constant activity until the day the trial judge
dismissed the case for want of prosecution. The court         Counsel: Marc D. Murr of Houston, Texas, for
determined that the trial court abused its discretion in      appellants.
dismissing appellant's causes of action for want of

                                                      Nicole Mitchell
                                                                                                             Page 2 of 4
                                 787 S.W.2d 572, *572; 1990 Tex. App. LEXIS 696, **1

Randall L. Brim, Robert H. Singleton, Jr., Eugene B.             new trial judge, who replaced the previous trial judge,
Wilshire, Jr., Beverly Arleen Sandifer of Houston, Texas,        again granted appellant's motion to retain. Appellant
for appellees.                                                   then filed a motion for preferential setting certifying the
                                                                 case was ready for trial, to which appellee filed a motion
Judges: Justices Sam Robertson, Draughn and                      in opposition.
Jackson B. Smith, Jr., retired Justice.
                                                                 On December 15, 1986, appellee Pride Refining Co.
Opinion by: ROBERTSON                                            filed a plea in abatement alleging Fedco's charter to do
                                                                 business in the State of Texas had been forfeited for
Opinion                                                          failure to pay franchise taxes. On the same day,
                                                                 appellants filed their third amended petition adding
                                                                 Billingsley as a plaintiff and alleging damages to Fedco's
                                                                 reputation and business in addition to damages for
 [*573] This appeal is from an order dismissing
                                                                 breach of contract.
appellants' causes of action "for want of prosecution."
Appellants assert the dismissal order, in reality, is based      On December 30, 1986, the trial court granted
on their failure to comply with a previous order abating         appellants' motion for preferential setting, ordering that
the lawsuit as to Fedco Oil Company rather than on               the case "be set preferentially for trial at the first
want of prosecution. Counsel for all parties to the              available trial date." While the transcript does not reveal
lawsuit, at oral submission, simplified the question for         when the case was actually set, the parties agreed
our consideration by agreeing that the sole issue is             during oral submission that the case was first set on the
whether the trial court abused its discretion in                 docket for trial on February 2, 1987.
dismissing the causes of action for want of prosecution.
Finding error in the trial court's action, we reverse the        On January 2, 1987, CEFOR Holdings Corp. (CEFOR),
judgment and remand the cause to the trial court.                as successor to Pride Refining Company (Pride), filed a
                                                                 motion to [*574] stay proceedings because [**4] it had
While the issue has been simplified by the agreement of          forfeited its corporate charter by failing to pay franchise
counsel, it is nevertheless necessary to recite some of          taxes, and because its assets had become the assets of
the trial [**2] court history of this case, spanning in          its stockholder, Seatrain Lines, Inc., which was in
excess of 750 pages, as reflected by the district clerk's        bankruptcy. Ten days later, CEFOR filed a plea in
transcript. Recitation of the case history is necessary to       abatement alleging: (1) that the name of Pride Refining,
a review of the trial court's decision because HN1[ ] in         Inc. had been changed to CEFOR Holdings Corp.; (2)
passing upon a motion to dismiss for want of                     that although Pride was originally served as a Delaware
prosecution, the trial court is entitled to consider the         corporation, it was later changed to a Texas corporation
entire history of the case. Moore v. Armour & Co., 660           and, therefor, had not been properly served in the case;
S.W.2d 577, 578 (Tex. App.--Amarillo 1983, no writ).             and (3) that Fedco and Billingsley lacked standing to
                                                                 bring the cause of action because of the forfeiture of
Fedco Oil Company filed its original petition against            Fedco's charter. Also on January 2, 1987, Pride filed a
Pride Refining Company, Inc., a foreign corporation, in          counterclaim against Fedco and Billingsley which was
June, 1980. The basis for the suit was breach of                 later stayed because Billingsley filed for bankruptcy.
contract in the sale and purchase of crude oil. Following
discovery, the trial court, in November and December,            Following Fedco's response to the plea in abatement,
1982, denied both parties' motions for summary                   the trial court, on February 2, 1987, signed an order
judgment.                                                        abating all "claims, demands and causes of action
                                                                 asserted by FEDCO Oil Company . . . until such time as
This case first appeared on the trial court's dismissal          FEDCO Oil Company . . . comply (sic) with the taxation
docket in March, 1985, at which time the then presiding          provisions of the State of Texas." The trial judge
trial judge, who was suffering from a terminal illness,          specifically interlined and deleted all provisions of the
granted appellant's motion to retain. We note that               order which would have prohibited Billingsley from [**5]
appellants state in their brief, and appellees do not            pursuing the causes of action.
deny, that this illness of the trial judge explained "in part,
the long delay apparent between the filing and                   On May 12, 1988, Fedco and Billingsley filed their fourth
attempted trial of this lawsuit." The case again appeared        amended petition naming David Jones and Jimmy R.
on the [**3] dismissal docket in March, 1986, and the            Morris, officers of Pride, as additional defendants.

                                                       Nicole Mitchell
                                                                                                               Page 3 of 4
                                 787 S.W.2d 572, *574; 1990 Tex. App. LEXIS 696, **5

Appellants alleged these parties were liable for                this case.
damages because they had purchased Pride's primary
asset with notice of the pending lawsuit, thereby               The record before this court shows, without
defrauding appellants. In addition to all other damages,        contradiction, that from the time the former judge of the
exemplary damages were sought.                                  165th District Court was replaced, and the current judge
                                                                signed the April, 1986, order granting the motion to
On July 5, 1988, appellants filed a demand for jury trial       retain, there was almost constant activity [*575] until
and on August 18, 1988, the trial court set the case for        the day the trial judge dismissed the case for want of
trial "for the two week docket period commencing                prosecution. Following the second order to retain,
Monday, September 19, 1988." The written notice of the          plaintiff immediately moved for a preferential trial setting
trial setting further provided: "If this case is not reached    which was opposed by the defendants. The case was
during this docket setting, it will be reset by the court for   nonetheless prefrentially set first on the trial docket for
approximately 90 days."                                         February 2, 1987, but was removed because of
                                                                pleadings filed by defendants. The case was again set
On July 15, 1988, appellees Morris and Jones filed a            for trial for the two week period beginning September
plea in abatement alleging that both Fedco and                  19, 1988.
Billingsley lacked standing to bring the action. The trial
court, on December 5, 1988, ordered "that the Plea in           In Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.--
Abatement filed by defendants Jimmy R. Morris and               Amarillo 1983, no writ), the court held that the trial judge
David Jones be and the same is hereby GRANTED."                 abused his discretion in dismissing a case for want of
                                                                prosecution where, at the time of the dismissal hearing,
On December 9, 1988, appellants filed a request for             the plaintiff [**8] had announced ready for trial and had
entry of final judgment which recited:                          secured a trial setting or was otherwise making a
                                                                diligent effort to get the case to trial. Id. at 578. We
 [**6] Plaintiffs Fedco Oil Company and Don Billingsley
                                                                agree with this reasoning. See also Rorie v. Avenue
request that this Court enter a Final Judgment merging
                                                                Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ. App.--
this Court's previous orders granting Defendants' Pleas
                                                                Houston [1st Dist.] 1967, writ ref'd n.r.e); William T.
in Abatement, pursuant to TEX. R. CIV. P. 301.
                                                                Jarvis Co. v. Wes-Tex Grain Co., 548 S.W.2d 775, 778
Plaintiffs, by this Request, do not agree with and
                                                                (Tex. Civ. App.--Waco 1977, writ ref'd n.r.e).
expressly oppose the Court's dispositions of
                                                                Accordingly, in the instant case, we find the trial court
Defendants' Pleas in Abatement and Motion for
                                                                abused its discretion in dismissing appellants' causes of
Protection. However, in order to pursue an appeal of
                                                                action for want of prosecution where this record
this case and at the Court's suggestion, Plaintiffs for that
                                                                unquestionably shows that appellant Billingsley was
limited purpose have filed this procedural Request.
                                                                making a diligent effort to get the case to trial, and that
A suggested form of Order is attached for the Court's           trial settings had twice been secured for the case.
convenience.
                                                                Appellees argue that Billingsley's continual inclusion of
The judge did not sign the suggested order. Twelve              Fedco Oil Company as a named plaintiff in all the
days later, appellees, Pride and CEFOR, filed their             instruments filed with the court (after the plea in
"Motion to Dismiss for Want of Prosecution," reciting           abatement as to Fedco had been sustained) was
that their plea in abatement had been previously                sufficient justification for the trial court to order dismissal
granted, that Fedco had made no attempt to reinstate its        for want of prosecution. We are not impressed with this
charter, and that "this case is over eight years old and        argument. The effect of the non-jurisdictional abatement
should be dismissed for want of prosecution."                   of the cause of action as to Fedco was only to suspend
Appellants filed a response to the motion to dismiss. On        further action [**9] until the cause for abatement had
January 23, 1989, however, the trial judge signed an            been corrected. Continental Contractors, Inc. v. Thorup,
order dismissing for want of prosecution all causes of          578 S.W.2d 864, 866 (Tex. Civ. App.--Houston [1st
action asserted by Fedco Oil Company and Don                    Dist.] 1979, no writ). Further, the trial court specifically
Billingsley against Pride Refining, [**7] Inc., David           refused to abate Billingsley's cause of action against
Jones, Jimmy R. Morris, and CEFOR Holdings Corp.                Pride and CEFOR. We therefore hold that the trial court
and ordering that "all costs of court incurred herein shall     erred in granting appellees' motion to dismiss the cause
be borne by Plaintiffs." The extensive pleadings referred       for want of prosecution. Because of this holding, we
to above are illustrative of only some of the activity in       need not discuss appellants' contentions concerning

                                                      Nicole Mitchell
                                                                                      Page 4 of 4
                                787 S.W.2d 572, *575; 1990 Tex. App. LEXIS 696, **9

denial of constitutional rights and violation of the United
States Bankruptcy Code.

We reverse the judgment below, and remand the cause
to the trial court.

Panel consists of Justices Sam Robertson, Draughn
and Jackson B. Smith, Jr, retired Justice, (sitting by
designation).


  End of Document




                                                    Nicole Mitchell
     Positive
As of: March 23, 2018 5:02 PM Z


                                                   In re Conner
                                                Supreme Court of Texas
                                            March 20, 2015, Opinion Delivered
                                                        NO. 14-0177

Reporter
458 S.W.3d 532 *; 2015 Tex. LEXIS 272 **; 58 Tex. Sup. J. 579
                                                                with reasonable diligence, failing which a trial court may
IN RE MICHAEL ALLYN CONNER AND IESI SOLID
                                                                dismiss for want of prosecution under Tex. R. Civ. P.
WASTE SERVICES, RELATORS
                                                                165a(1), (2).
Prior History: In re Conner, 2014 Tex. App. LEXIS 659
(Tex. App. Dallas, Jan. 22, 2014)
                                                                    Civil Procedure > Dismissal > Involuntary
Core Terms                                                          Dismissals > Failure to Prosecute

trial court, want of prosecution, mandamus                          Governments > Courts > General Overview

                                                                    Evidence > Inferences &
Case Summary
                                                                    Presumptions > Presumptions > Creation

                                                                HN2[ ]    Involuntary       Dismissals,      Failure    to
Overview
                                                                Prosecute
HOLDINGS: [1]-Court abused its discretion in denying
                                                                Trial courts are generally granted considerable
the motion to dismiss because the suit well exceeded
                                                                discretion when it comes to managing their dockets.
the time frame under Tex. R. Jud. Admin. 6.1(b)(1) and
                                                                Such discretion, however, is not absolute. A delay of an
the plaintiffs' failure to provide good cause for their
                                                                unreasonable duration, if not sufficiently explained, will
nearly decade-long delay mandated dismissal under
                                                                raise a conclusive presumption of abandonment of a
Tex. R. Civ. P. 165a(2); a trial court abuses its
                                                                plaintiff's suit. This presumption justifies a dismissal of
discretion by refusing to grant a motion to dismiss for
                                                                the suit under either a court's inherent authority or Tex.
want of prosecution in the face of unmitigated and
                                                                R. Civ. P. 165a(1), (2).
unexplained delay.

Outcome
Writ conditionally granted.                                         Civil Procedure > Dismissal > Involuntary
                                                                    Dismissals > Failure to Prosecute
LexisNexis® Headnotes
                                                                HN3[ ]    Involuntary       Dismissals,      Failure    to
                                                                Prosecute

                                                                Under Tex. R. Civ. P. 165a, there are two grounds for
                                                                dismissal for want of prosecution. One is when a party
    Civil Procedure > Dismissal > Involuntary                   seeking affirmative relief fails to appear for any hearing
    Dismissals > Failure to Prosecute                           or trial of which the party has notice. Tex. R. Civ. P
                                                                165a(1). In such cases, a court shall dismiss unless
HN1[ ]    Involuntary         Dismissals,     Failure     to    there is good cause for a case to be maintained on a
Prosecute                                                       docket. Another is when the case is not disposed of
                                                                within the time standards promulgated by the Texas
A plaintiff has a duty to prosecute a suit to a conclusion      Supreme Court. Tex. R. Civ. P. 165a(2). And while Rule

                                                     Nicole Mitchell
                                                                                                              Page 2 of 3
                                  458 S.W.3d 532, *532; 2015 Tex. LEXIS 272, **272

165a(2) does not refer to Rule 165a(1)'s procedural            intended to prevent. Possibilities for error multiply
requirements, including notice and a hearing, neither          rapidly as time elapses between an original fact and its
does it suggest a basis for deviating from those               judicial determination.
procedures.
                                                               Counsel: For Crystal G. Peel, Donald L. Peel, Real
                                                               Parties in Interest: J. S. Freels Jr, J. S. Freels, Jr., P.C.,
                                                               Sherman, TX.
    Civil Procedure > Trials > Jury Trials > Jury
    Demands                                                    For Michael Allyn Conner, IESI Solid Waste Services,
                                                               Relators: Bryan Kyle Briscoe, The Peavler Group, P.C.,
    Family Law > General Overview                              Dallas, TX; Daron L. Janis, Kirsten M. Castaneda,
                                                               Locke Lord LLP, Dallas, TX; Donna C. Peavler, The
    Governments > Courts > General Overview                    Peavler Group, P.C., Dallas, TX; Mike A. Hatchell,
                                                               Locke Lord LLP, Austin, TX.
HN4[   ] Jury Trials, Jury Demands
                                                               Opinion
The Texas Rules of Judicial Administration require
district and statutory county courts to ensure, so far as
reasonably possible, that civil cases in which a jury is
demanded, other than those arising under the Family            [*534] [**1] ON PETITION FOR WRIT OF MANDAMUS
Code, are brought to trial or final disposition within
eighteen months of an appearance date. Tex. R. Jud.            PER CURIAM
Admin. 6.1(b)(1).
                                                               HN1[ ] A plaintiff has a duty to "prosecut[e] the suit to
                                                               a conclusion with reasonable diligence," failing which a
    Civil Procedure > Appeals > Standards of                   trial court may dismiss for want of prosecution. Callahan
    Review > Abuse of Discretion                               v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491 (Tex.
                                                               1942). The issue here is whether a trial court abuses its
    Civil Procedure > Dismissal > Involuntary                  discretion by refusing to grant a motion to dismiss for
    Dismissals > Failure to Prosecute                          want of prosecution in the face of unmitigated and
                                                               unexplained delay. We hold that it does.
    Civil Procedure > Appeals > Standards of
                                                               In December 2002, Donald and Crystal Peel were
    Review > Reversible Errors
                                                               traveling in their van along a highway when they were
    Civil Procedure > ... > Writs > Common Law                 struck by a truck driven by Michael Conner and owned
    Writs > Mandamus                                           by his employer, IESI Solid Waste Services. One day
                                                               short of two years later, the Peels sued Conner and IESI
    Civil Procedure > Appeals > Reviewability of Lower         (collectively "Conner") for damages. Conner timely
    Court Decisions > General Overview                         answered and requested discovery, but the Peels did
                                                               not respond. In June 2007, two months before a trial
HN5[   ] Standards of Review, Abuse of Discretion              setting, Conner moved for summary judgment. The
                                                               Peels responded. The trial setting was cancelled, and
A clear failure by a trial court to analyze or apply the law   the motion was never heard.
correctly will constitute an abuse of discretion, and may
result in appellate reversal by extraordinary writ.            By September 2011, the Peels had taken no other
Mandamus will issue to correct such an abuse of                action to advance the case, and Connor moved to
discretion when there is no adequate remedy by appeal.         dismiss for want of prosecution. The Peels responded
The trial court's erroneous refusal to dismiss a case for      that the delay was due to their counsel's health issues,
want of prosecution under Tex. R. Civ. P. 165a(1), (2)         including a stroke requiring hospitalization and, later,
cannot effectively be challenged on appeal. A defendant        bypass [**2] surgery. The Peels did not indicate when
should not be required to incur the delay and expense of       counsel's health issues had occurred. The trial court
appeal to complain of delay in the trial court. To deny        refused to dismiss the case.
relief by mandamus permits the very delay dismissal is
                                                               In October 2013, when the Peels had still done nothing

                                                     Nicole Mitchell
                                                                                                              Page 3 of 3
                                    458 S.W.3d 532, *534; 2015 Tex. LEXIS 272, **2

to pursue their claims, Conner again moved to dismiss            require district and statutory county courts to ensure, "so
for want of prosecution. At the hearing on the motion,           far as reasonably possible," that civil cases in
the Peels offered no other excuse for their delay than           which [**4] a jury has been demanded, other than
they had before. Conner cited court records showing              those arising under the Family Code, are brought to trial
that the Peels' counsel had appeared in many different           or final disposition within eighteen months of the
matters in the prior two years. The trial court again            appearance date. Tex. R. Jud. Admin. 6.1(b)(1). The
refused to dismiss, directed the Peels to respond to             Peels' suit well exceeded this time frame. Absent any
Connor's discovery requests served more than eight               reasonable explanation for the delay, the trial court
years earlier, and set the case for trial.                       clearly abused its discretion by disregarding the
                                                                 conclusive presumption of abandonment. See Walker v.
Conner petitioned the court of appeals for mandamus              Packer, 827 S.W.2d 833, 840 (Tex. 1992) (HN5[ ] "[A]
directing the trial court to dismiss the case. The court of      clear failure by the trial court to analyze or apply the law
appeals denied relief, and Connor then petitioned this           correctly will constitute an abuse of discretion, and may
Court.                                                           result in appellate reversal by extraordinary writ."); see
                                                                 also Downer v. Aquamarine Operators, Inc., 701 S.W.2d
HN2[ ] Trial courts are generally granted considerable           238, 241—42 (Tex. 1985).
discretion when it comes to managing their dockets.
Such discretion, however, is not absolute. It has long           Mandamus will issue to correct such an abuse of
been the case that "a delay of an unreasonable duration          discretion when there is no adequate remedy by appeal.
. . . , if not sufficiently explained, will raise a conclusive   In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136
presumption of abandonment of the plaintiff's suit."             (Tex. 2004). A trial court's erroneous refusal to dismiss
Callahan, 161 S.W.2d at 491. This presumption justifies          a case for want of prosecution cannot effectively be
the dismissal of a suit [**3] under either a court's             challenged on appeal. A defendant should not be
inherent authority or Rule 165a of the Texas Rules of            required to incur the delay and expense of appeal to
Civil Procedure. Villarreal v. San Antonio Truck &               complain of delay in the trial court. To deny relief by
Equip., 994 S.W.2d 628, 630 (Tex. 1999) (recognizing             mandamus permits the very delay dismissal is intended
both common law source of power and rule based                   to prevent. In addition, the danger that a trial will be
source of power); see, e.g., Veterans' Land Bd. v.               hampered by stale evidence and lost or clouded
Williams, 543 S.W.2d 89, 90 (Tex. 1976) (finding seven-          memories is particularly distinct after the delay in this
and-one-half year delay as failing to satisfy the                case. See So. Pac. Transp. Co. v. Stoot, 530 S.W.2d
demands of reasonable diligence); Denton Cnty. v.                930, 931 (Tex. 1975) ("[P]ossibilities for error multiply
Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (same for               rapidly as [**5] time elapses between the original fact
five-year delay); Bevil v. Johnson, 157 Tex. 621, [*535]         and its judicial determination.").
307 S.W.2d 85, 88 (Tex. 1957) (same for eight-year
delay).                                                          Accordingly, we conditionally grant the petition for writ of
                                                                 mandamus, and without hearing oral argument, direct
HN3[ ] Under Rule 165a, there are two grounds for                the trial court to vacate its order denying Conner's
dismissal for want of prosecution. One is when a "party          motion to dismiss filed October 24, 2013, and to dismiss
seeking affirmative relief [fails] to appear for any hearing     this suit for want of prosecution. Tex. R. App. P. 52.8(c).
or trial of which the party had notice." Tex. R. Civ. P          We are confident the trial court will promptly comply,
165a(1). In such cases, "[a] court shall dismiss . . .           and our writ will issue only if it does not.
unless there is good cause for the case to be
maintained on the docket." Id. The other is when a case          Opinion Delivered: March 20, 2015
is "not disposed of within [the] time standards
promulgated by the Supreme Court." Tex. R. Civ. P.
165a(2). And while Rule 165a(2) does not refer to Rule             End of Document

165a(1)'s procedural requirements, including notice and
a hearing, neither does it suggest a basis for deviating
from those procedures.

The Peels' failure to provide good cause for their nearly
decade-long delay mandates dismissal under Rule
165a(2). HN4[ ] Our Rules of Judicial Administration


                                                       Nicole Mitchell
     Caution
As of: March 23, 2018 5:03 PM Z


                                   In re Fifty-One Gambling Devices
                                  Court of Appeals of Texas, Seventh District, Amarillo
                                             September 28, 2009, Decided
                                                  NO. 07-08-0068-CV

Reporter
298 S.W.3d 768 *; 2009 Tex. App. LEXIS 7535 **
                                                             review of orders and a judgment from the 181st District
IN THE MATTER OF FIFTY-ONE GAMBLING
                                                             Court of Randall County (Texas), which, after denying
DEVICES, TWENTY SIX THOUSAND EIGHT
                                                             his motion to recuse the trial judge, forfeited gambling
HUNDRED EIGHTY DOLLARS IN UNITED STATES
                                                             devices, paraphernalia, and proceeds seized from the
CURRENCY
                                                             owner's establishment. The State cross-appealed an
                                                             order denying its request for attorney fees and costs.
Subsequent History: Rehearing overruled by 51
Gambling Devices v. State, 2009 Tex. App. LEXIS 8642
                                                             Overview
(Tex. App. Amarillo, Nov. 6, 2009)
                                                             By the time of the show cause hearing, the owner had
Petition for review denied by In re Fifty-One Gambling
                                                             filed four motions to recuse the judge. The court held
Devices, 2010 Tex. LEXIS 29 (Tex., Jan. 8, 2010)
                                                             that Tex. R. Civ. P. 18a(d) did not prohibit the judge
                                                             from conducting the show cause hearing because the
Petition for review denied by In re Fifty-One Gambling
                                                             owner had filed a tertiary recusal motion, within the
Devices & Twenty Six Thousand Eight Hundred Eighty
                                                             meaning of Tex. Civ. Prac. & Rem. Code Ann. §
Dollars in United States Currency, 2010 Tex. LEXIS 267
                                                             30.016(a), (b) (2008), regardless of whether some of his
(Tex., Mar. 19, 2010)
                                                             motions might have been defective. Because the time
Motion for rehearing on petition for review denied by In     limit in Tex. R. Jud. Admin. 6(a)(2) was discretionary, as
re Fifty-One Gambling Devices & Twenty Six Thousand          indicated in Tex. Gov't Code Ann. § 74.024(c)(1), the
Eight Hundred Eighty Dollars in United States Currency,      owner was not entitled to a dismissal for want of
2010 Tex. LEXIS 456 (Tex., June 18, 2010)                    prosecution. Bias or appearance of partiality were not
                                                             shown under Tex. R. Civ. P. 18b(2)(a), (b) by the
Prior History: [**1] FROM THE 181ST DISTRICT                 judge's omission of the word "alleged" from the Tex.
COURT OF RANDALL COUNTY; NO. 56,014-B;                       Code Crim. Proc. Ann. art. 18.18(b) show cause notice
HONORABLE JOHN B. BOARD, JUDGE.                              or by a brief conversation in which the judge told the
                                                             State's attorney what form to use. The devices did not
                                                             merely award additional play under Tex. Penal Code
Core Terms
                                                             Ann. § 47.01(4)(B) (2003) because a winner received
recusal motion, recusal, trial court, notice, show cause     cash, even if the cash was used to play other machines.
hearing, supplemental, motion to recuse, attorney's          An award of attorney fees and costs to the State under
fees, machine, costs, proceeds, gambling device,             Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (2008)
forfeiture, cases, overrule, bias, tertiary, motions,        was mandatory.
argues, issues, seized, gambling, abused, forfeiture
                                                             Outcome
proceeding, want of prosecution, tickets, cross-appeal,
                                                             The court affirmed the judgment of the trial court,
deposition, asserts, gaming
                                                             affirmed the orders denying recusal, and reversed the
                                                             order that had denied the State's request for attorney
Case Summary                                                 fees and costs.


Procedural Posture                                           LexisNexis® Headnotes
Appellant, an owner of a gaming establishment, sought


                                                     Nicole Mitchell
                                                                                                       Page 2 of 12
                               298 S.W.3d 768, *768; 2009 Tex. App. LEXIS 7535, **1




                                                                  Civil Procedure > Dismissal > Involuntary
    Civil Procedure > ... > Inability to                          Dismissals > Failure to Prosecute
    Proceed > Disqualification & Recusal > General
    Overview                                                  HN6[ ]    Involuntary      Dismissals,        Failure   to
                                                              Prosecute
HN1[ ] Inability to Proceed, Disqualification &
Recusal                                                       A trial court is empowered to dismiss a case for want of
                                                              prosecution under Tex. R. Civ. P. 165a or through its
See Tex. R. Civ. P. 18a(d).                                   inherent power to control its docket.



    Civil Procedure > ... > Inability to                          Civil Procedure > Dismissal > Involuntary
    Proceed > Disqualification & Recusal > General                Dismissals > Appellate Review
    Overview
                                                                  Civil Procedure > Dismissal > Involuntary
HN2[ ] Inability to Proceed, Disqualification &                   Dismissals > Failure to Prosecute
Recusal
                                                              HN7[    ] Involuntary Dismissals, Appellate Review
See Tex. Civ. Prac. & Rem. Code Ann. § 30.016(a), (b)
(2008).                                                       An appellate court reviews a trial court's denial of a
                                                              motion to dismiss for want of prosecution under an
                                                              abuse of discretion standard.

    Civil Procedure > Pleading & Practice > Motion
    Practice > General Overview
                                                                  Civil Procedure > Appeals > Standards of
HN3[   ] Pleading & Practice, Motion Practice                     Review > Abuse of Discretion

It is the substance of a motion that determines its           HN8[    ] Standards of Review, Abuse of Discretion
nature, not merely its title.
                                                              A trial court abuses its discretion when it acts without
                                                              reference to any guiding rules and principles.

    Governments > Legislation > Interpretation

HN4[   ] Legislation, Interpretation                              Civil Procedure > Trials > Bench Trials

A court construes a statute, first, by looking to the plain   HN9[    ] Trials, Bench Trials
and common meaning of the statute's words.
                                                              According to the Texas Rules of Judicial Administration,
                                                              in non-jury cases district court judges should, so far as
                                                              reasonably possible, ensure that all non-family law civil
    Civil Procedure > ... > Inability to
                                                              cases are brought to trial or final disposition within 12
    Proceed > Disqualification & Recusal > General
                                                              months from appearance date. Tex. R. Jud. Admin.
    Overview
                                                              6(b)(2).
HN5[ ] Inability to Proceed, Disqualification &
Recusal
                                                                  Civil Procedure > Trials > Bench Trials
A decision not to conduct an oral hearing of a facially
defective recusal motion is within the sound discretion of        Governments > Courts > Rule Application &
a judge.                                                          Interpretation


                                                    Nicole Mitchell
                                                                                                      Page 3 of 12
                               298 S.W.3d 768, *768; 2009 Tex. App. LEXIS 7535, **1

HN10[    ] Trials, Bench Trials                           An appellate court applies a reasonable person
                                                          standard to determine whether denial of a recusal
According to Tex. R. Jud. Admin. 1, the Texas Rules of    motion was an abuse of discretion. The inquiry,
Judicial Administration are promulgated pursuant to       therefore, is whether a reasonable member of the public
Tex. Gov't Code Ann. § 74.024. Section 74.024(c)(1)       at large, knowing all the facts in the public domain
provides that the Texas Supreme Court may consider        concerning the judge's conduct, would have a
the adoption of rules relating to nonbinding time         reasonable doubt that the judge is actually impartial.
standards for pleading, discovery, motions, and           Because this test requires courts to evaluate a motion to
dispositions. Thus, the application of Tex. R. Jud.       recuse from a disinterested observer's point of view, it
Admin. 6 is discretionary and non-binding. Moreover,      seems best suited to achieve the primary purpose of
circumstances may preclude adherence to the               Tex. R. Civ. P. 18b(2)(a): avoiding the appearance of
standards under especially complex cases or those         judicial bias.
presenting special circumstances. Rule 6(e).


                                                               Civil
    Civil Procedure > Appeals > Standards of                   Procedure > Remedies > Forfeitures > Forfeiture
    Review > Abuse of Discretion                               Hearings

    Civil Procedure > ... > Inability to                       Civil
    Proceed > Disqualification & Recusal > General             Procedure > Remedies > Forfeitures > Probable
    Overview                                                   Cause Requirements

HN11[    ] Standards of Review, Abuse of Discretion       HN14[     ] Forfeitures, Forfeiture Hearings

An order denying a recusal motion is reviewed on          A forfeiture proceeding begins with the State seeking a
appeal from the final judgment, applying the abuse of     search warrant supported by an affidavit averring
discretion standard. Tex. R. Civ. P. 18a(f).              sufficient facts to satisfy the issuing magistrate that
                                                          probable cause does in fact exist for its issuance. Tex.
                                                          Code Crim. Proc. Ann. art. 18.01(b) (Supp. 2008). If the
    Civil Procedure > ... > Disqualification &            search warrant issues, it is executed by the State which
    Recusal > Grounds for Disqualification &              conducts a search and seizure of the designated
    Recusal > Appearance of Partiality                    property. Tex. Code Crim. Proc. Ann. arts. 18.06 (2005),
                                                          18.09 (Supp. 2008). If no prosecution or conviction
    Civil Procedure > ... > Disqualification &            follows the seizure, the magistrate must notify the
    Recusal > Grounds for Disqualification &              person in possession of the property or proceeds made
    Recusal > Personal Bias                               the subject of the search warrant to show cause why the
                                                          property should not be destroyed and the proceeds
HN12[ ] Grounds for Disqualification & Recusal,           forfeited. Tex. Code Crim. Proc. Ann. art. 18.18(b). The
Appearance of Partiality                                  show cause hearing is an adversary proceeding. In a
                                                          civil forfeiture proceeding, the State satisfies its initial
See Tex. R. Civ. P. 18b(2)(a), (b).                       burden by establishing probable cause for seizing the
                                                          subject property or proceeds. At the show cause
                                                          hearing, therefore, the burden is on any person
                                                          interested in the seized property or proceeds to prove
    Civil Procedure > Appeals > Standards of
                                                          by a preponderance of the evidence why the property is
    Review > Abuse of Discretion
                                                          not subject to destruction or forfeiture.
    Civil Procedure > ... > Disqualification &
    Recusal > Grounds for Disqualification &
    Recusal > Appearance of Partiality                         Governments > Legislation > Interpretation

HN13[    ] Standards of Review, Abuse of Discretion       HN15[     ] Legislation, Interpretation



                                                  Nicole Mitchell
                                                                                                                  Page 4 of 12
                                298 S.W.3d 768, *768; 2009 Tex. App. LEXIS 7535, **1

It is the legislative branch, not the judicial, that evaluates        Civil Procedure > ... > Inability to
the wisdom of legislation. Arguments that a statute is                Proceed > Disqualification & Recusal > General
unwise or unfair must be addressed to the legislature, in             Overview
the absence of a constitutional claim. Where a rule is
given by an act of the legislature, courts are not at            HN19[     ] Remedies, Costs & Attorney Fees
liberty to disregard it, or to attempt to avoid its effects,
when applied to a state of facts contemplated by it.             See Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c)
                                                                 (2008).


    Criminal Law & Procedure > ... > Miscellaneous
    Offenses > Gambling > General Overview                            Governments > Legislation > Interpretation

HN16[    ] Miscellaneous Offenses, Gambling                      HN20[     ] Legislation, Interpretation

See Tex. Penal Code Ann. § 47.01(4) (2003).                      The term "shall" as used by statute is generally
                                                                 recognized as mandatory, creating a duty or obligation.

                                                                 Counsel: Richard C. Naylor, Attorney at Law, Amarillo,
    Criminal Law & Procedure > ... > Miscellaneous               TX.
    Offenses > Gambling > General Overview
                                                                 Richard R. Gore, Assistant Criminal District Attorney,
HN17[    ] Miscellaneous Offenses, Gambling                      Canyon, TX.

A practice of exchanging tickets for cash removes                Judges: PANEL B. Before QUINN, C.J., and
machines from the Tex. Penal Code Ann. § 47.01(4)(B)             CAMPBELL and HANCOCK, JJ.
(2003) exclusion. While additional play in itself is not
proscribed, when that additional play is accomplished by         Opinion by: James T. Campbell
providing cash to play other machines, the statutory
exclusion is not satisfied. The exclusion requires that          Opinion
the machine at issue reward the player exclusively with
noncash merchandise prizes, toys, or novelties, or a
representation of value redeemable for those items.
                                                                  [*770] This appeal arises from a forfeiture proceeding
Under the statute, once cash is awarded, it does not
                                                                 under article 18.18 of the Code of Criminal Procedure. 1
matter whether the player deposits the cash directly into
                                                                 Through ten issues, appellant Mike Lewis 2 challenges
the machine or whether an attendant performs this task.
                                                                 the trial court's judgment forfeiting gambling devices,
Cash to be used for play on another machine is not a
                                                                 gambling proceeds and other items, and the denial of
noncash merchandise prize, toy, or novelty. If tickets are
                                                                 his motion to recuse the trial court judge. By cross-
exchanged for cash, regardless of whether that cash is
                                                                 appeal, the State challenges denial of its request for
used to play another machine, the exclusion does not
                                                                 attorney's fees and costs by the administrative judge in
apply.
                                                                 the recusal proceeding. We affirm the judgment of
                                                                 forfeiture and the denial of Lewis's recusal motion, and
                                                                 render an order awarding the State attorney's fees and
    Governments > Courts > Judicial Precedent                    costs.

HN18[    ] Courts, Judicial Precedent
                                                                 1 Tex. Code Crim. Proc. Ann. art. 18.18 (Vernon Supp. 2008).
The holdings of the Texas Supreme Court are binding
on an appellate court.                                           All references to article 18.18 in this opinion are to that article
                                                                 of the Code of Criminal Procedure.

                                                                 2A suggestion of Mike Lewis's death was filed by his appellate
    Civil Procedure > Remedies > Costs & Attorney                counsel on September 24, 2009. The appeal proceeds
    Fees > General Overview                                      according to the provisions of Rule of Appellate Procedure
                                                                 7.1(a)(1).

                                                       Nicole Mitchell
                                                                                                        Page 5 of 12
                               298 S.W.3d 768, *770; 2009 Tex. App. LEXIS 7535, **1

Background                                                  November 1, 2007, because a recusal motion was
                                                            pending.
During January 2004, as part of an undercover
investigation, an officer with [**2] the Amarillo Police    The motion to recuse Judge Board to which we have
Department twice entered an Amarillo gaming                 referred was served on [*771] May 13, 2005 (May 13
establishment owned by Lewis and known as "Mike's           motion). 4 Lewis argued that in the trial court's art.
Amusements." While at the establishment, the officer        18.18(b) notice, the terms "gambling devices" and
played electronic games for cash.                           "gambling proceeds" were not qualified by the adjective
                                                            "alleged." According to Lewis, this omission signaled
Based on the officer's affidavit, a search warrant was
                                                            Judge Board had "already reached a determination
issued commanding search and seizure of gambling
                                                            regarding the merits of the matters [**4] in dispute."
devices, gambling paraphernalia, and proceeds derived
                                                            Judge Board did not recuse himself and forwarded the
from any gambling device at Lewis's establishment.
                                                            motion to Judge Moore. In an order signed May 18,
Officers executed the warrant seizing gaming machines,
                                                            Judge Moore denied the May 13 motion without a
cash, and other items subject to the warrant. The State
                                                            hearing because it was not verified as required by Rule
sought forfeiture of the items seized. In May 2005, the
                                                            of Civil Procedure 18a(a). Tex. R. Civ. P. 18a(a). The
Honorable John Board, judge of the 181st Judicial
                                                            order was delivered to Judge Board, counsel for Lewis,
District Court, issued a notice to Lewis to appear and
                                                            and counsel for the State by facsimile on May 18.
show cause on May 24 why the items seized should not
be forfeited.                                               On May 18, Lewis served a second motion to recuse
                                                            (May 18 motion) that contained a jurat. The jurat,
Lewis filed a general denial and a motion to recuse
                                                            however, bore no notarial signature or seal.
Judge Board. Judge Board declined recusal without
order and forwarded the motion to the Honorable Kelly       On May 19, Lewis served his "Supplemental and
Moore, presiding judge of the administrative judicial       Amended Motion to Recuse, Brief and Motion for Leave
district. Judge Moore denied the motion, and other          to Supplement and Amend" (May 19 motion). The May
recusal motions followed.                                   19 motion repeated Lewis's argument for recusal under
                                                            Rule 18a based on the claimed bias of the trial court.
On November 1, 2007, Judge Board conducted a show
                                                            But it also added a denial of due process claim.
cause hearing and at its conclusion ordered forfeiture of
the seized devices and proceeds. Lewis filed two post-      On May 20, 2005, Judge Moore conducted a telephonic
trial [**3] recusal motions and on the second, the State    hearing of Lewis's recusal motions. Exchanges on the
sought an award of attorney's fees and costs according      hearing record between Judge Moore and counsel for
to Civil Practice and Remedies Code section 30.016(c).      Lewis indicate the subject of the hearing.
3 Judge Moore denied the recusal motion as well as the

State's request for attorney's fees and costs. Lewis        When Judge Moore called the motion for hearing
appeals the judgment of forfeiture and denial of recusal.   counsel for        [**5] Lewis identified himself and
By cross-appeal, the State appeals denial of its request    announced, "I'm Mr. Lewis' attorney of record, and I'm
for attorney's fees and costs.                              here ready to go forward on a motion to recuse that I
                                                            filed for Mr. Lewis and an amended motion."
Discussion                                                        [Judge Moore addressing counsel for Lewis]: And I
                                                                  have read your original motion, your second motion
Lewis presents seven issues and three supplemental                that you filed that was actually verified, and your
issues which we take up sequentially before discussing            supplemental and amended motion to recuse brief
the State's issue on cross-appeal.                                and motion for leave to supplement and amend,
                                                                  and so I have read those in detail.
Issue One - Tertiary Recusal Motion
                                                                  ***
By his first issue, Lewis argues the trial court lacked           [Counsel for Lewis]: I do want to establish that the
authority to conduct the show cause hearing of                    supplemental and amended motion to recuse brief
                                                                  and request for leave to amend is before the Court;


3 Tex.   Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon    4 We  identify Lewis's recusal motions by date of service to
2008).                                                      avoid confusion as two motions bear a May 20 file mark.

                                                   Nicole Mitchell
                                                                                                                        Page 6 of 12
                                     298 S.W.3d 768, *771; 2009 Tex. App. LEXIS 7535, **5

        is that correct?                                              application of Civil Practice and Remedies Code section
        [The court]: That's what I called for hearing, yes, sir.      30.016, Lewis argues further that no "tertiary recusal
        ***                                                           motion," as defined by that section, was on file at the
        [Counsel for Lewis]: [T]hen [the May 19 motion] has           time of the hearing. We disagree.
        a request for leave to amend within seven days of
        trial, meaning this trial date, of course.                    In pertinent part, section 30.016 provides:
        ***
        [Judge Moore]: I've already told you, I don't                      HN2[ ] In this section, "tertiary recusal motion"
        consider a motion to recuse an adversary                           means a third or subsequent motion for recusal or
        proceeding. You filed your motions within the time                 disqualification filed against a district court or
        allowed by law, and I'm here to hear the merits of                 statutory county court judge by the same party in a
        your motions.                                                      case.

Counsel for Lewis was sworn as a witness and                               A judge who declines recusal after a tertiary recusal
addressed the theory of bias advanced by Lewis's                           motion is filed shall comply with applicable rules of
motions for recusal.                                                       [**8] procedure for recusal and disqualification
                                                                           except that the judge shall continue to:
On inquiry by Judge Moore, counsel for the [**6] State                         (1) preside over the case;
explained he prepared the art. 18.18(b) notice in                              (2) sign orders in the case; and
question at the request of Judge Board. Counsel for the                        (3) move the case to final disposition as though
State followed a form Judge Board used in an earlier                           a tertiary recusal motion had not been filed.
case.
                                                                      Tex. Civ. Prac. & Rem. Code Ann. § 30.016(a)(b)
At the conclusion of the hearing, Judge Moore                         (Vernon 2008).
announced, "I'm going to deny the motion to recuse."
This oral rendition was memorialized in a written order               By the time of the November 1, 2007 hearing, Lewis had
signed [*772] May 20, stating, "Lewis' Motion to                      filed four motions to recuse Judge Board, those of May
Recuse Judge is denied."                                              13, May 18, May 19 and May 20, 2005. Lewis argues
                                                                      the May 18 motion was superseded by the May 19
On May 20, following the telephonic hearing, Lewis                    motion, which in turn was superseded by the May 20
served his "Second Supplemental and Amended Motion                    motion, because he entitled the latter two "supplemental
to Recuse or Alternatively, Motion for Re-consideration"              and amended" motions. We cannot agree Lewis's use of
(May 20 motion). By this motion, Lewis reurged the prior              the terms "supplemental" and "amended" in the title of
ground of judicial bias and added a claim of improper ex              his May 19 and May 20 motions alters their effect for
parte communication between Judge Board and the                       purposes of the count under section 30.016(a). Notably,
State's attorney. The claim was founded on the                        through these pleadings Lewis expanded his original
statement of the State's attorney at the hearing of May               recusal claim. The May 19 motion relied on Rules of
20 that he prepared the art. 18.18(b) notice at Judge                 Civil Procedure 18a and 18b but added a constitutional
Board's request using a template that tracked a notice                claim of denial of due process. The May 20 motion, filed
prepared by Judge Board in a prior case.                              after the May 20 hearing, added a claim of improper ex
                                                                      parte communication between the trial court and
Because Judge Moore had not ruled on the May 20                       counsel for the State. HN3[ ] It is the substance of a
motion by May 24, the scheduled date of the show                      motion [**9] that determines its nature, not merely its
cause hearing, Judge Board continued the hearing.

The kernel of Lewis's argument under this issue is the                     forward to the presiding judge of the administrative
                                                                           judicial district, in either original form or certified copy, an
trial court lacked authority to conduct [**7] the show
                                                                           order of referral, the motion, and all opposing and
cause hearing of November 1, 2007, because of the
                                                                           concurring statements. Except for good cause stated in
prohibition of Rule of Civil Procedure 18a. 5 To avoid the                 the order in which further action is taken, the judge shall
                                                                           make no further orders and shall take no further action in
                                                                           the case after filing of the motion and prior to a hearing
5 In   pertinent part, Rule 18a(d) provides:                               on the motion.

        HN1[    ] If the judge declines to recuse himself, he shall   Tex. R. Civ. P. 18a(d).

                                                            Nicole Mitchell
                                                                                                              Page 7 of 12
                                    298 S.W.3d 768, *772; 2009 Tex. App. LEXIS 7535, **9

title. See State Bar v. Heard, 603 S.W.2d 829, 833 (Tex.            Issue Two - Want of Prosecution
1980); BCY Water Supply Corp. v. Residential Invs.,
Inc., 170 S.W.3d 596, 604 (Tex.App.-- [*773] Tyler                  In his second [**11] issue, Lewis argues the trial court
2005, pet. denied). We find Lewis had filed a tertiary              abused its discretion by denying his motion to dismiss
recusal motion, and Judge Board was empowered by                    the case for want of prosecution. HN6[ ] A trial court is
section 30.016(b) to preside over the November 1, 2007              empowered to dismiss a case for want of prosecution
show cause hearing. We overrule Lewis's first issue.                under Rule of Civil Procedure 165a or through its
                                                                    inherent power to control its docket. Villarreal v. San
Related to his first            issue,    Lewis    raises   three   Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
supplemental issues.                                                1999). HN7[ ] An appellate court reviews a trial court's
                                                                    denial of a motion to dismiss for want of prosecution
Without supporting authority, Lewis argues in his first             under an abuse of discretion standard. Christian v.
supplemental issue that because the May 13 and May                  Christian, 985 S.W.2d 513, 514 (Tex.App.--San Antonio
18 motions did not meet the requirements of Rule                    1998, no pet.). HN8[ ] A trial court abuses its
18a(a) 6 they must be omitted from the section                      discretion when it acts "without reference to any guiding
30.016(a) calculation. A plain reading of the statute               rules and principles." Downer v. Aquamarine Operators,
does not support such a gloss. See Fitzgerald v.                    Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Advanced Spine Sys., Inc., 996 S.W.2d 864, 865 (Tex.
1999) ("it is cardinal law in Texas that HN4[ ] a court             The record shows that on May 16, 2005, Lewis filed a
construes a statute, first, by looking to the plain and             motion for continuance asserting in part the need for
common meaning of the statute's words"). Moreover, to               unspecified pre-trial discovery to prepare for the show
sustain Lewis's argument would create uncertainty in                cause hearing, then scheduled for May 24. On May 16
the application of section 30.016, favor defective                  Lewis also filed a motion to abate, asserting his case
motions, and generally run counter to sound principles              presented legally and factually similar issues to a case
of motion practice. We overrule Lewis's first                       then on appeal before this court. Lewis requested
supplemental [**10] issue. Lewis's third supplemental               abatement pending a decision to "avoid unnecessary
issue is premised on similar contentions, and we                    time and expense [**12] of both the resources of the
overrule it as well.                                                Court and of interested parties." The record contains no
                                                                    order disposing of Lewis's abatement motion.
In his second supplemental issue, Lewis argues that if              Meanwhile, the parties engaged [*774] in the flurry of
the May 13 motion is properly included in the count of              activity connected with Lewis's recusal motions that we
section 30.016(a), then Judge Moore abused his                      have described. On May 23, Lewis served a
discretion by overruling the motion without a hearing.              supplemental motion for continuance through which he
Case law holds otherwise. See, e.g., In re Lincoln, 114             requested continuance of the show cause hearing "to a
S.W.3d 724, 726 (Tex.App.--Austin 2003, orig.                       date that allows pretrial matters and preparation to be
proceeding) (no abuse of discretion shown when                      completed." Then at the May 24 hearing, Lewis argued
administrative judge summarily denied unsworn recusal               that Judge Board could not proceed with the show
motion). We find HN5[ ] the decision not to conduct an              cause hearing because of the pending May 20 recusal
oral hearing of a facially defective motion was within the          motion. The extent of discovery the parties undertook
sound discretion of Judge Moore. Lewis's second                     cannot be discerned from the record although attached
supplemental issue is overruled.                                    to an August 2005 motion for protective order filed by
                                                                    the State is a copy of a deposition notice from Lewis
                                                                    noticing the deposition of the State's attorney. The State
                                                                    sought protection alleging, inter alia, the deposition
6A   motion for recusal or disqualification of a judge:
                                                                    would require disclosure of core work product. The
      shall be verified and must state with particularity the       record contains no order on the motion nor does it
      grounds why the judge before whom the case is pending         indicate the deposition occurred. In a letter to the trial
      should not sit. The motion shall be made on personal          court dated November 16, 2006, the State requested a
      knowledge and shall set forth such facts as would be          setting of the show cause hearing. It argued the May 20
      admissible in evidence provided that facts may be stated      motion [**13] remained pending, and Judge Board was
      upon information and belief if the grounds of such belief
                                                                    empowered to proceed under section 30.016. The
      are specifically stated.
                                                                    record contains no indication either party requested a
                                                                    ruling by Judge Moore after Lewis filed the May 20
Tex. R. Civ. P. 18a(a) (in pertinent part).

                                                            Nicole Mitchell
                                                                                                         Page 8 of 12
                               298 S.W.3d 768, *774; 2009 Tex. App. LEXIS 7535, **13

recusal motion. In a letter to counsel dated August 21,        forfeiture cases since 2001 were filed in Judge Board's
2007, Judge Board set the show cause hearing for               court and the State prevailed in each instance. Lewis's
November 1, 2007. On October 31, 2007, Lewis filed a           grounds for recusal are founded in claims of partiality
motion to dismiss the case. It was denied the following        and bias.
day before the show cause hearing began. In denying
the motion, the court found on the record the primary          HN11[ ] An order denying a recusal motion is reviewed
cause of delay was Lewis's requests for continuance            on appeal from the final judgment, applying the abuse of
and recusal.                                                   discretion standard. Tex. R. Civ. P. 18a(f). HN12[ ] "A
                                                               judge shall recuse himself in any proceeding in which:
Lewis correctly observes that HN9[ ] according to the          (a) his impartiality might reasonably be questioned; (b)
Texas Rules of Judicial Administration, in non-jury            he has a personal bias or prejudice concerning the
cases district court judges "should, so far as reasonably      subject matter or a party, or personal knowledge of
possible, ensure that all" non-family law civil "cases are     disputed evidentiary facts concerning the proceeding."
brought to trial or final disposition, . . . . [w]ithin 12     Tex. R. Civ. P. 18b(2)(a),(b). HN13[ ] We apply a
months from appearance date." Tex. R. Jud. Admin.              reasonable person standard to determine whether
6(b)(2), reprinted in Tex. Gov't Code Ann., tit. 2, subtit.    denial of a recusal motion was an abuse of discretion.
F--Appendix (Vernon Supp. 2008). HN10[ ] According             Woodruff v. Wright, 51 S.W.3d 727, 736 (Tex.App.--
to Rule 1 of the rules of judicial administration, the rules   Texarkana 2001, pet. denied). The inquiry, therefore, is
are promulgated pursuant to section 74.024 of the              whether a reasonable member of [**16] the public at
Government Code. Id. at Rule 1. Section 74.024                 large, knowing all the facts in the public domain
provides "the supreme court may consider [**14] the            concerning the judge's conduct, would have a
adoption of rules relating to: (1) nonbinding time             reasonable doubt that the judge is actually impartial.
standards for pleading, discovery, motions, and                Rogers v. Bradley, 909 S.W.2d 872, 881 (Tex. 1995)
dispositions." Tex. Gov't Code Ann. § 74.024(c)(1)             (Enoch, J., concurring). "[B]ecause this test requires
(Vernon Supp. 2008). Thus, the application of Rule 6 is        courts to evaluate a motion to recuse from a
discretionary and non-binding. See In re S.D.W., 811           disinterested observer's point of view, it seems best
S.W.2d 739, 746 (Tex.App.--Houston [1st Dist.] 1991,           suited to achieve the primary purpose of Rule 18b(2)(a):
no writ) (juvenile case). Moreover, circumstances may          avoiding the appearance of judicial bias." Id. at 882.
preclude adherence to the standards under especially
complex     cases      or   those     presenting     special
circumstances. Tex. R. Jud. Admin. 6(e), reprinted in          Prejudgment of the Case
Tex. Gov't Code Ann., tit. 2, subtit. F--Appendix (Vernon
Supp. 2008). On the record before us, we cannot say            Lewis is correct that the language of the article 18.18(b)
the trial court abused its discretion in denying Lewis's       show cause notice signed by Judge Board and
motion to dismiss for want of prosecution. We overrule         addressed to Lewis in places refers to "gambling
Lewis's second issue.                                          proceeds,"     "gambling     devices,"   and     gambling
                                                               paraphernalia" without the modifying term "alleged." For
Issues Three and Five - Failure to Recuse                      instance, the notice recites in part, "[a] detailed
                                                               description of the property seized and total amount of
By his third issue, Lewis asserts Judge Moore abused           the gambling proceeds is as follows . . . ." Lewis argues
his discretion by failing to recuse Judge Board. Lewis         this phraseology without the qualifying adjective
presents his recusal argument through four sub-issues:         "alleged" indicates prejudgment by Judge Board.
in the art. 18.18(b) notice Judge Board evidenced bias
by using the terms "gambling proceeds" without the             HN14[ ] A forfeiture proceeding begins with the State
adjective "alleged;" Judge Board and the prosecutor            seeking a search warrant supported by an affidavit
discussed the case and the State prepared the art.             averring "sufficient facts . . . to satisfy the issuing
18.18(b) notice for Judge [**15] Board; art.18.18 cast         magistrate that probable cause [**17] does in fact exist
Judge Board as magistrate and prosecutor, and                  for its issuance." Tex. Code Crim. Proc. Ann. art.
because the case was not timely prosecuted by Judge            18.01(b) (Vernon Supp. 2008); Hardy v. State, 102
Board as prosecutor, Judge Board as magistrate                 S.W.3d 123, 127 (Tex. 2003). If the search warrant
 [*775] should not have adjudicated Lewis's motion to          issues, it is executed by the State which conducts a
dismiss for want of prosecution; and the State engaged         search and seizure of the designated property. Tex.
in forum shopping because all Randall County 8-liner           Code Crim. Proc. Ann. arts. 18.06 (Vernon 2005) &

                                                     Nicole Mitchell
                                                                                                         Page 9 of 12
                              298 S.W.3d 768, *775; 2009 Tex. App. LEXIS 7535, **17

18.09 (Vernon Supp. 2008). If no prosecution or                   he had used before.
conviction follows the seizure, the magistrate must notify
the person in possession of the property or proceeds          All that can be said from this scant evidence is Judge
made the subject of the search warrant to show cause          Board instructed the State's attorney to prepare the
why the property should not be destroyed and the              art.18.18(b) notice using a form Judge Board previously
proceeds forfeited. Art. 18.18(b). The show cause             prepared. The record permits only speculation regarding
hearing is an adversary proceeding. Hardy, 102 S.W.3d         what, if anything, else was said. We are unable to say
at 127, 129. In a civil forfeiture proceeding, the State      the evidence of ex parte contact leads to the conclusion
satisfies its initial burden by establishing probable cause   Judge Moore abused his discretion.
for seizing the subject property or proceeds. Id. at 129.
At the show cause hearing, therefore, the burden is on
any person interested in the seized property or               The Role of the Trial Court in an Article 18.18 Forfeiture
proceeds to prove by a preponderance of the evidence          Proceeding
why the property is not subject to destruction or
forfeiture. Id. at 127, 129.                                  Lewis next argues art.18.18(b) assigns the magistrate,
                                                              Judge Board, responsibility for prosecution of the case.
Assuming, arguendo, the correctness of Lewis's                Because he carries that responsibility, Lewis contends,
premise that the language of the notice could properly        allowing Judge Board to rule on Lewis's motion to
 [**18] be said to evidence Judge Board's judicial            dismiss for want of prosecution "creates a clear
attitude, the difficulty with Lewis's argument based on       appearance of possible bias or lack of impartiality."
the language of the notice here is that the language is       Lewis's premise that Judge Board, as the magistrate,
not consistent. The notice [*776] elsewhere contains           [**20] is placed in the position of prosecuting the
the modifier "alleged" when referring to the seized           forfeiture is supported only by Lewis's interpretation of
property. The notice includes, in bold font, the language     article 18.18, and he cites no authority agreeing with his
of art.18.18(e) ("[a]ny person interested in the alleged      interpretation. His argument ignores the fact, apparent
gambling device or equipment . . . gambling proceeds . .      from the record, that the Randall County Criminal
. ."). Reading the notice as a whole, we do not agree it      District Attorney's office represented the interests of the
establishes an abuse of discretion.                           State in the forfeiture proceeding in the trial court. We
                                                              fail to see how a trial judge exhibits bias or partiality
                                                              simply by performing his statutory responsibilities in a
Improper Ex Parte Communication                               forfeiture proceeding.

Lewis next contends the State's attorney conferred ex         In a broader sense, Lewis's argument is an attack on
parte with Judge Board about the forfeiture proceeding        article 18.18(b). He does not contend the article is
and the contents of the art. 18.18(b) notice, and such        unconstitutional or its strictures were not properly
contact presents the appearance of Judge Board's              followed by the trial court. Rather it is the effect of the
partiality in favor of the State. The only evidence of        statute he condemns. But, as courts often have
contact between Judge Board and the State's attorney          recognized, HN15[ ] it is the legislative branch, not the
was that developed at the May 20, 2005, telephonic            judicial, that evaluates the wisdom of legislation. See,
recusal hearing before Judge Moore. During the                e.g., In re Jorden, 249 S.W.3d 416, 424 (Tex. 2008)
proceeding, the State's attorney notified Judge Moore         (arguments that statute is unwise or unfair must be
that he prepared the art. 18.18(b) notice for Judge           addressed to legislature, in absence of constitutional
Board. Later in the hearing Judge Moore asked the             claim); Ullmann v. Jasper, 70 Tex. 446, 452-53, 7 S.W.
State's attorney, "Where did you get the forms to             763, 765 (1888) ("where a rule is given by act of the
prepare the documents?" The [**19] State's attorney           Legislature, courts are not at liberty [**21] to disregard
replied:                                                      it, or to attempt to avoid its effects, when applied to a
     I got the form from Judge Board. We had a case           state of facts contemplated by it").
     about a year ago where this issue came up, and he
     drafted the notice that time. In this particular case,
     he instructed me to go ahead and do it since we          [*777] Forum Shopping
     had a template. I made one modification to that. I
                                                              Lewis's last contention in support of his third issue
     put in the word show cause, and I changed up the
                                                              asserts Judge Moore should have recused Judge Board
     inventory of the items listed; otherwise, it was what

                                                    Nicole Mitchell
                                                                                                             Page 10 of 12
                                298 S.W.3d 768, *777; 2009 Tex. App. LEXIS 7535, **21

because all 8-liner forfeiture cases in Randall County           Issue Six - Gambling Devices
from "at least 2001" were filed in Judge Board's court
and in each case the State obtained the relief                   In his sixth issue, Lewis argues the trial court misapplied
requested. This, Lewis asserts, violates a local rule            the exception to the term "gambling device" 7 provided
requiring random assignment of cases by the district             by Penal Code section 47.01(4)(B). See Tex. Penal
clerk and amounts to forum shopping by law                       Code Ann. § 47.01(4)(B) (Vernon 2003). 8 We interpret
enforcement personnel.                                           Lewis's complaint is [*778] the trial court erred by
                                                                 denying his motion for directed verdict on the ground
According to a stipulation of the parties, since "2001 or        that the 51 seized machines fall within the section
2002" all forfeiture cases in Randall County handled by          47.01(4)(B) exception.
the assistant district attorney representing the State in
the case at hand were filed in Judge Board's court. And,         According to the evidence at the show cause hearing,
according to the stipulation, in each of these cases             an undercover officer playing Lewis's gaming machines
reaching judgment, the State prevailed. The record does          received $ 5 tickets from a machine. An employee of
not show the number of cases involved or in what court           Lewis converted the tickets to cash and deposited the
other prosecutors filed cases. The local rule of case            cash into another machine for additional play. Lewis
assignment directs the district clerk to randomly assign         contends the only difference in this practice and that of
civil cases among the district courts of Randall County.         machines in an arcade for children that reward high
It does not address the issuance of search warrants on           scores with additional play is the former keep track of a
proper application by law enforcement. [**22] See art.           right to additional play by a paper ticket while the latter
18.18(b) (magistrate to whom return of warrant was               employ paperless electronic score keeping. This
made shall issue show cause); Hardy, 102 S.W.3d at               distinction, complains Lewis, is "hyper technical."
127 (forfeiture proceeding under chapter 18 of Code of
Criminal Procedure begins when affidavit is presented            Whether the [**25] practice of awarding tickets by a
to magistrate).                                                  gaming machine that are then converted to cash for

On this record, we cannot say Judge Moore abused his
discretion by not recusing Judge Board on the grounds            7 Article 18.18 incorporates the Penal Code section 47.01(4)
raised by Lewis in his sub-issues. We overrule Lewis's
                                                                 definition of gambling device. Tex. Code Crim. Proc. Ann. art.
third issue.
                                                                 18.18(g)(2) (Vernon Supp. 2008). As defined by Penal Code
                                                                 section 47.01(4) HN16[ ] a gambling device:
In his fifth issue, Lewis presents further argument
regarding the State's forum shopping and the resulting                means any electronic, electromechanical, or mechanical
appearance of bias on the part of Judge Board. Our                    contrivance not excluded under Paragraph (B) that for a
disposition of his third issue disposes of the fifth issue            consideration affords the player an opportunity to obtain
as well.                                                              anything of value, the award of which is determined
                                                                      solely or partially by chance, even though accompanied
Issue Four - Stay of Judgment                                         by some skill, whether or not the prize is automatically
                                                                      paid by the contrivance.
In his fourth issue, Lewis complains of what he
                                                                 Tex. Penal Code Ann. § 47.01(4) (Vernon [**24] 2003).
characterizes as Judge Moore's "refusal to even take up
                                                                 8 The   exception provided by Paragraph B reads:
and allow a record to be made" regarding a pleading
Lewis filed on November 21, 2007, entitled "Application               A "gambling device" is not an:
to Protect Jurisdiction." In this pleading, filed in the trial
court but addressed to Judge Moore, Lewis sought an                   electronic, electromechanical, or mechanical contrivance
                                                                      designed, made, and adapted solely for bona fide
order staying Judge Board's "entry of any judgment"
                                                                      amusement purposes if the contrivance rewards the
following the November 1 show cause hearing until
                                                                      player exclusively with noncash merchandise prizes,
Judge Moore ruled on Lewis's May 20 recusal motion.
                                                                      toys, or novelties, or a representation of value
We overrule the issue for several reasons but here note               redeemable for those items, that have a wholesale value
 [**23] simply that its overruling is required by our                 available from a single play of the game or device of not
conclusion Judge Board was authorized by Civil                        more than 10 times the amount charged to play the game
Practice & Remedies Code section 30.016 to preside                    or device once or $ 5, whichever is less.
over the show cause hearing.
                                                                 Tex. Penal Code Ann. § 47.01(4)(B) (Vernon 2003).

                                                       Nicole Mitchell
                                                                                                       Page 11 of 12
                              298 S.W.3d 768, *778; 2009 Tex. App. LEXIS 7535, **24

additional play comes within the section 47.01(4)(B)          Although the record shows Lewis filed his Rule 12
exception in a civil forfeiture proceeding was before the     motion, it does not show the trial court ruled on the
Texas Supreme Court in Hardy. 102 S.W.3d 123.                 motion. Moreover, the motion would appear to have
According to the facts of Hardy, tickets awarded by a         been untimely, since it was filed almost three months
gaming machine could be exchanged through a game              after trial. No error with respect to the motion is
room attendant for cash to play another machine. Id. at       preserved for our review. Tex. R. App. P. 33.1(a)(2). We
132. In deciding the applicability of the section             overrule Lewis's seventh issue.
47.01(4)(B) exclusion, the Court held:
                                                              The State's Cross-Appeal
    HN17[ ] This practice of exchanging tickets for
    cash . . . removes the machines from the section          The State filed a notice of appeal and asserts by cross-
    47.01(4)(B) exclusion. While additional play in itself    appeal that Judge Moore abused his discretion by
    is not proscribed, when that additional play is           denying its request for attorney's fees and costs at the
    accomplished by providing cash to play other              February 1, 2008, hearing of Lewis's "Fourth
    machines, the statutory exclusion is not satisfied.       Supplemental and Amended Motion to Recuse." For its
    The exclusion requires that the machine at issue          requested award of attorney's fees and costs, the State
    reward the player "exclusively with noncash               relies on Civil Practice and Remedies Code section
    merchandise prizes, toys, or novelties, or a              30.016(c) which provides:
    representation of value redeemable for those
    items." Tex. Penal Code § 47.01(4)(B) (emphasis               HN19[ ] A judge hearing a tertiary recusal motion
    added). Under the statute, once cash is awarded, it           against another judge who denies the motion shall
    does not matter whether the player deposited the              award reasonable and necessary attorney's fees
    cash directly into the machine or whether an                  and costs to the party opposing the motion. The
    attendant performed this task. Cash to be used                party making the motion and the attorney for the
     [**26] for play on another machine is not a                  party are jointly and severally liable for the award of
    noncash merchandise prize, toy, or novelty. If                fees and costs. The fees and costs must be paid
    tickets are exchanged for cash, regardless of                 before the 31st day after the date the order denying
    whether that cash is used to play another machine,            the tertiary [**28] recusal motion is rendered,
    the exclusion does not apply.                                 unless the order is properly superseded.

Id. We find Hardy controls disposition of Lewis's legal       Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon
argument in this issue. While Lewis contends Hardy is         2008).
overly technical, HN18[ ] the holdings of the Texas
                                                              At the February 1 hearing, Judge Moore denied Lewis's
Supreme Court nonetheless are binding on this court.
                                                              recusal motion. The State presented evidence of
See In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002)
                                                              attorney's fees and costs expended and the court
(pointing out courts of appeals are not free to disregard
                                                              expressly found $ 675 was a reasonable attorney's fee
opinions of Texas Supreme Court). The trial court did
                                                              and $ 1.23 a reasonable cost for responding to the
not err in denying Lewis's motion for directed verdict.
                                                              motion. Lewis presented no controverting evidence. The
We overrule Lewis's sixth issue.
                                                              court, however, denied the State's request for attorney's
Issue Seven - Authority of Attorney for State                 fees and costs.

In his seventh issue Lewis contends the criminal district     The record reveals Lewis's "Fourth Supplemental and
attorney for Randall County was without authority to          Amended Motion to Recuse" was the sixth recusal
prosecute the case because art. 18.18(b) places all           motion he filed against Judge Board. The February 1
prosecutorial responsibility on the magistrate. Lewis         hearing was of a tertiary recusal motion. Tex. Civ. Prac.
presented the contention in the trial court by means of       & Rem. Code Ann. § 30.016(a) (Vernon 2008). HN20[
motion pursuant to Rule of Civil Procedure 12, which          ] The term "shall" as used by statute is generally
authorizes a party by sworn motion filed in the trial court   recognized as "mandatory, creating a duty or
to challenge [*779] the authority of an attorney to           obligation." See Helena Chem. Co. v. Wilkins, 47
prosecute or defend an action. Tex. R. Civ. P. 12; see        S.W.3d 486, 493 (Tex. 2001) (citing Tex. Gov't Code
Angelina County v. McFarland, 374 S.W.2d 417, 422             Ann. § 311.016(2)). Because Judge Moore denied the
(Tex. 1964) [**27] (describing operation of rule).            requested recusal of the trial court judge an award of


                                                    Nicole Mitchell
                                                                                      Page 12 of 12
                              298 S.W.3d 768, *779; 2009 Tex. App. LEXIS 7535, **28

reasonable and necessary attorneys fees was
mandatory. The refusal to grant the requested attorney's
fees and costs was an abuse of discretion. [**29] See,
e.g., In re Am. Homestar of Lancaster, Inc., 50 S.W.3d
480, 483 (Tex. 2001) (trial court has no discretion in
applying law to facts and failure to correctly apply law is
abuse of discretion). We sustain the State's single issue
on cross-appeal.

Conclusion

Judge Moore's order denying attorney's fees and costs
is reversed and in accordance with statute we order that
the State recover from Lewis and his attorney, jointly
and severally, the sums of $ 676.23 for attorney's fees
and $ 1.23 for costs. The sums awarded shall be paid
before the 31st day after the day of this opinion unless
properly superseded. See Tex. Civ. Prac. & Rem. Code
Ann. § 30.016(c) (Vernon 2008).

Otherwise, having overruled each of Lewis's issues we
affirm the judgment of the trial court and affirm the
orders of [*780] Judge Moore denying recusal of
Judge Board.

James T. Campbell

Justice


  End of Document




                                                    Nicole Mitchell
     Caution
As of: March 23, 2018 5:03 PM Z


                                                   In re S.D.W.
                                   Court of Appeals of Texas, First District, Houston
                                   June 20, 1991, Delivered ; June 20, 1991, Filed
                                                 No. 01-89-00238-CR

Reporter
811 S.W.2d 739 *; 1991 Tex. App. LEXIS 1568 **
                                                             by Tex. Fam. Code Ann. § 53.045 (Supp. 1991). Yet it
IN THE MATTER OF S.D.W., a Juvenile
                                                             affirmed the indeterminate sentence for aggravated
                                                             robbery, and remanded the murder allegation for
Prior History: [**1] On Appeal from the County Court
                                                             imposition of an indeterminate sentence. The court held
at Law No. 1; Brazos County, Texas; Trial Court Cause
                                                             that the amended petitions should have been presented
No. 141-J-88CC; Claude D. Davis, Judge.
                                                             to the grand jury, and that a prosecutor's oral
Disposition: Judgment reversed and remanded in part,         representations of approval by a grand jury was not a
affirmed in part.                                            certification. Without certification, the trial court was
                                                             without jurisdiction to impose a determinate sentence.
                                                             Thus, the court reformed the judgment, and remanded.
Core Terms                                                   Because appellant and his mother were properly served
                                                             with the original petition, the trial court had acquired
grand jury, trial court, murder, amended petition,
                                                             jurisdiction over him. Thus, the state's failure to serve
juvenile, warnings, original petition, summons,
                                                             appellant with the second amended petition did not
detention, determinate sentencing, accomplice, kicked,
                                                             deprive the trial court of jurisdiction. Appellant had not
waived, commission of the offense, sentence,
                                                             preserved any other alleged errors for review. Thus, the
certification, provides, oral statement, jumped, lesser
                                                             trial court did not err in failing to include jury instructions.
included offense, written statement, bodily injury, family
                                                             The remainder of the judgment was affirmed.
code, aggravated robbery, causing death, no evidence,
magistrate's, complains, knowingly, commits
                                                             Outcome
                                                             The court held that it had jurisdiction over appellant
Case Summary                                                 juvenile, and affirmed the determinations as to murder
                                                             and aggravated robbery. The court affirmed the
                                                             indeterminate murder sentence, but reversed and
Procedural Posture                                           remanded for reformation as to the determinate
                                                             sentence for the robbery, holding that there was no
Appellant juvenile contested the determination from the
                                                             showing that the grand jury had pre-approved the
County Court at Law, Brazos County, Texas, that he
                                                             imposition of a determinate sentence, which was
engaged in delinquent conduct by committing murder
                                                             statutorily required.
and aggravated robbery, and the sentence of nine
years' confinement under Tex. Fam. Code Ann. §
54.04(d)(3) (Supp. 1991) for murder, and an                  LexisNexis® Headnotes
indeterminate period for robbery, under Tex. Fam. Code
Ann. § 54.04(d)(2) (Supp. 1991). Appellant contended
the determinate sentence was erroneous.

Overview
                                                                  Criminal Law & Procedure > ... > Grand
On appeal, the court reversed appellant juvenile's nine           Juries > Procedures > General Overview
year sentence for murder because the record did not
contain anything indicating that prosecution of appellant         Criminal Law & Procedure > Juvenile
was affirmatively approved by a grand jury, as required           Offenders > Juvenile Proceedings > General


                                                     Nicole Mitchell
                                                                                                        Page 2 of 15
                               811 S.W.2d 739, *739; 1991 Tex. App. LEXIS 1568, **1

    Overview                                                   the petition must accompany the summons under Tex.
                                                               Fam. Code Ann. § 53.06(b) (1986).
HN1[   ] Grand Juries, Procedures

Tex. Fam. Code Ann. § 53.045(a) (Supp. 1991)
                                                                   Criminal Law & Procedure > Juvenile
provides that if the child is accused of one of six penal
                                                                   Offenders > Juvenile Proceedings > General
offenses, one of which is murder, the prosecuting
                                                                   Overview
attorney may refer the petition to the grand jury. A
determinate sentence cannot be imposed if the petition
                                                               HN4[    ] Juvenile Offenders, Juvenile Proceedings
is not approved by a grand jury under Tex. Fam. Code
Ann. § 54.04(d)(2) (Supp. 1991). If the grand jury
                                                               See Tex. Fam. Code Ann. § 53.07(a) (1986).
approves a petition, the fact of approval shall be
certified to the juvenile court, and the certification shall
be entered in the record of the case under Tex. Fam.
Code Ann. § 53.045(d) (Supp. 1991).                                Criminal Law & Procedure > Juvenile
                                                                   Offenders > Juvenile Proceedings > General
                                                                   Overview

    Criminal Law & Procedure > Juvenile                        HN5[    ] Juvenile Offenders, Juvenile Proceedings
    Offenders > Juvenile Proceedings > General
    Overview                                                   See Tex. Gov't Code Ann. Title 2, subtitle F, App., rule
                                                               6(d) (1988 & Supp. 1991).
    Criminal Law & Procedure > ... > Grand
    Juries > Procedures > General Overview

HN2[   ] Juvenile Offenders, Juvenile Proceedings                  Governments > Courts > Rule Application &
                                                                   Interpretation
Before a determinate sentence may be imposed, a
grand jury must approve the petition made the basis of         HN6[    ] Courts, Rule Application & Interpretation
the judgment.
                                                               See Tex. Gov't Code Ann. § 74.024(c)(1) (1988).


    Civil Procedure > ... > Service of Process > Service
    of Summons > Issuance of Summons                               Criminal Law & Procedure > Juvenile
                                                                   Offenders > Juvenile Proceedings > Statements of
    Criminal Law & Procedure > Juvenile                            Juvenile
    Offenders > Juvenile Proceedings > General
    Overview                                                       Criminal Law & Procedure > Juvenile
                                                                   Offenders > Juvenile Proceedings > General
    Family Law > Child Custody > General Overview                  Overview

    Civil Procedure > ... > Service of Process > Service       HN7[ ]     Juvenile   Proceedings,     Statements     of
    of Summons > General Overview                              Juvenile

HN3[ ]  Service        of    Summons,       Issuance     of    Tex. Fam. Code Ann. § 51.09 provides that a child who
Summons                                                        gives an out of court statement must do so knowingly,
                                                               intelligently, and voluntarily. The statement must be
Tex. Fam. Code Ann. § 53.06(a) (1986) provides that            signed in the presence of a magistrate, with no law
the juvenile court shall direct issuance of a summons to       enforcement officer or prosecuting attorney present. The
the child named in the petition, the child's parent,           magistrate must certify he has examined the child
guardian, or custodian, the child's guardian ad litem,         outside the presence of any law enforcement officer and
and any other person who appears to the court to be a          has determined the child understands the nature and
proper or necessary party to the proceeding. A copy of         content of his statement. Tex. Fam. Code Ann. §


                                                     Nicole Mitchell
                                                                                                           Page 3 of 15
                               811 S.W.2d 739, *739; 1991 Tex. App. LEXIS 1568, **1

51.09(b)(1)(F) (1986).                                             Evidence > Weight & Sufficiency

                                                               HN10[    ] Trials, Verdicts
    Criminal Law & Procedure > ... > Accusatory
                                                               In reviewing the sufficiency of the evidence to support a
    Instruments > Indictments > General Overview
                                                               guilty verdict, the evidence is viewed in the light most
                                                               favorable to the verdict. The critical inquiry is whether,
HN8[   ] Accusatory Instruments, Indictments
                                                               after viewing the evidence in the light most favorable to
                                                               the verdict, any rational trier of fact could have found the
An indictment need not plead evidence relied on by the
                                                               essential elements of the crime beyond a reasonable
state.
                                                               doubt. In a juvenile case, the question is whether the
                                                               evidence considered as a whole shows that the state
                                                               sustained its burden of proof beyond a reasonable
    Civil Procedure > Judgments > Relief From                  doubt.
    Judgments > Motions for New Trials

    Criminal Law &
    Procedure > ... > Reviewability > Preservation for             Criminal Law & Procedure > Juvenile
    Review > General Overview                                      Offenders > Juvenile Proceedings > General
                                                                   Overview
    Civil Procedure > Judgments > Relief From
    Judgments > General Overview                                   Criminal Law &
                                                                   Procedure > Trials > Witnesses > Presentation
    Criminal Law & Procedure > Postconviction
    Proceedings > Motions for New Trial                        HN11[    ] Juvenile Offenders, Juvenile Proceedings

HN9[ ] Relief From Judgments, Motions for New                  See Tex. Fam. Code Ann. § 54.03(e) (1986).
Trials

In order to preserve a factual insufficiency point of error,       Criminal Law & Procedure > ... > Jury
a motion for a new trial complaining of the insufficiency          Instructions > Particular Instructions > Lesser
must be filed.                                                     Included Offenses

                                                               HN12[ ] Particular Instructions, Lesser Included
    Criminal Law &                                             Offenses
    Procedure > Trials > Verdicts > General Overview
                                                               An offense is a lesser included office if it is established
    Evidence > Burdens of Proof > Proof Beyond                 by proof of the same or less than all the facts required to
    Reasonable Doubt                                           establish the commission of the offense charged; it
                                                               differs from the offense charged only in the respect that
    Criminal Law & Procedure > Juvenile                        a less serious injury or risk of injury to the same person,
    Offenders > Juvenile Proceedings > General                 property, or public interest suffices to establish its
    Overview                                                   commission; it differs from the offense charged only in
                                                               the respect that a less culpable mental state suffices to
    Criminal Law & Procedure > Trials > Burdens of             establish its commission; or it consists of an attempt to
    Proof > General Overview                                   commit the offense charged or an otherwise included
                                                               offense under Tex. Code Crim. Proc. Ann. art. 37.09
    Criminal Law & Procedure > Trials > Burdens of             (1981).
    Proof > Prosecution

    Criminal Law & Procedure > Appeals > Standards of              Criminal Law & Procedure > ... > Jury
    Review                                                         Instructions > Particular Instructions > Lesser
                                                                   Included Offenses

                                                     Nicole Mitchell
                                                                                                          Page 4 of 15
                               811 S.W.2d 739, *739; 1991 Tex. App. LEXIS 1568, **1

HN13[ ] Particular Instructions, Lesser Included                   Criminal Law & Procedure > ... > Homicide,
Offenses                                                           Manslaughter & Murder > Voluntary
                                                                   Manslaughter > General Overview
In determining whether a charge on a lesser included
offense is required, a two step analysis is required. First,   HN16[    ] Voluntary Manslaughter, Elements
the lesser included offense must be included within the
proof necessary to establish the offense charged.              A person commits the offense of voluntary
Second, there must also be some evidence in the                manslaughter if he causes the death of another under
record that if the defendant is guilty, he is guilty only of   circumstances that would constitute murder under Tex.
the lesser included offense. If the evidence raises the        Penal Code Ann. § 19.02, except that he caused the
issue of a lesser included offense, it must be included in     death under the immediate influence of sudden passion
the charge.                                                    arising from an adequate cause under Tex. Penal Code
                                                               Ann. § 19.04(a) (1989). Sudden passions means
                                                               passion directly caused by and arising out of
                                                               provocation by the individual killed or another acting
    Criminal Law &
                                                               with the person killed, such passion arising at the time
    Procedure > ... > Robbery > Unarmed
                                                               of the offense and not solely the result of former
    Robbery > Elements
                                                               provocation under Tex. Penal Code Ann. § 19.02(b)
                                                               (1989).
    Criminal Law & Procedure > ... > Crimes Against
    Persons > Robbery > General Overview

HN14[    ] Unarmed Robbery, Elements                               Criminal Law & Procedure > ... > Homicide,
                                                                   Manslaughter & Murder > Involuntary
A person commits the offense of robbery if, while in the           Manslaughter > Elements
course of committing theft, and with intent to obtain or
maintain control of the property, he intentionally,                Criminal Law & Procedure > ... > Homicide,
knowingly, or recklessly causes bodily injury, or                  Manslaughter & Murder > Involuntary
intentionally or knowingly threatens or places another in          Manslaughter > General Overview
fear of imminent bodily injury or death under Tex. Penal
Code Ann. § 29.02(a) (1974). If in the course of                   Criminal Law & Procedure > ... > Homicide,
committing a robbery, a person also causes serious                 Manslaughter & Murder > Murder > General
bodily injury to another, he has committed aggravated              Overview
robbery as per Tex. Penal Code Ann. § 29.03(a)(1)
(Supp. 1991).                                                      Criminal Law & Procedure > ... > Acts & Mental
                                                                   States > Mens Rea > Negligence

                                                               HN17[    ] Involuntary Manslaughter, Elements
    Criminal Law & Procedure > ... > Homicide,
    Manslaughter & Murder > Murder > General                   A person commits criminally negligent homicide if he
    Overview                                                   causes the death of an individual by criminal negligence
                                                               under Tex. Penal Code Ann. § 19.07(a) (1989). A
HN15[    ] Homicide, Manslaughter & Murder, Murder
                                                               person acts with criminal negligence or is criminally
                                                               negligent when he ought to be aware of a substantial
See Tex. Penal Code Ann. § 19.02(a) (1989).
                                                               and unjustifiable risk that the circumstances exist or the
                                                               result will occur. The risk must be of such a nature and
                                                               degree that the failure to perceive it constitutes a gross
    Criminal Law & Procedure > ... > Homicide,                 deviation from the standard of care an ordinary person
    Manslaughter & Murder > Voluntary                          would exercise under all the same circumstances as
    Manslaughter > Elements                                    viewed from the actor's standpoint under Tex. Penal
                                                               Code Ann. § 6.03(d) (1974). The essence of criminal
    Criminal Law & Procedure > ... > Homicide,                 negligence is the failure of the actor to perceive the risk
    Manslaughter & Murder > Murder > General                   created by his conduct. Criminally negligent homicide is
    Overview                                                   a lesser included offense of murder.

                                                     Nicole Mitchell
                                                                                                        Page 5 of 15
                               811 S.W.2d 739, *739; 1991 Tex. App. LEXIS 1568, **1

                                                              [*741] OPINION

    Criminal Law & Procedure > ... > Assault &               This is an appeal from a final judgment of the County
    Battery > Simple Offenses > Elements                     Court at Law No. 1 of Brazos [*742] County, Texas,
                                                             sitting as a juvenile court, based on a jury finding that
    Criminal Law & Procedure > ... > Crimes Against          appellant, S.D.W., engaged in delinquent conduct by
    Persons > Assault & Battery > General Overview           committing the offenses of murder and aggravated
                                                             robbery. The jury assessed a determinative sentence of
HN18[    ] Simple Offenses, Elements                         nine years confinement on the murder charge. 1 [**2]
                                                             TEX. FAM. CODE ANN. § 54.04(d)(3) (Vernon Supp.
Assault occurs when someone intentionally, knowingly,        1991). For the robbery, 2 the judge sentenced appellant
or recklessly causes bodily injury to another, threatens     to an indeterminate period, not to exceed the time when
another with imminent bodily injury, or intentionally or     appellant attains the age of 21. TEX. FAM. CODE ANN.
knowingly causes physical contact with another when          § 54.04(d)(2) (Vernon Supp. 1991). We affirm in part,
the actor knows or should reasonably believe the other       and reverse and remand in part.
will regard the contact as offensive or provocative under
Tex. Penal Code Ann. § 22.01 (1989). Assault is a            On October 1, 1988, Michael Granados Ramirez was
lesser included offense of aggravated robbery.               found by some passersby lying in a Bryan street. He
                                                             was badly beaten about the face and head. The police
                                                             and an ambulance were summoned, but Ramirez, a
                                                             recently "green-carded" Mexican national, refused
    Criminal Law & Procedure > ... > Homicide,
                                                             medical attention, and generally refused to cooperate in
    Manslaughter & Murder > Involuntary
                                                             the immediate investigation of the crime. He told one of
    Manslaughter > Elements
                                                             the passersby, Betty Perez, that he had been attacked
    Criminal Law & Procedure > ... > Homicide,               by five black males, one of whom was on a bicycle.
    Manslaughter & Murder > Involuntary                      After Ramirez declined to be taken to a hospital, Ms.
    Manslaughter > General Overview                          Perez took him home, where he was found dead the
                                                             next day of a subdural brain hemorrhage.
HN19[    ] Involuntary Manslaughter, Elements
                                                             In summary, we reverse the nine year determinative
                                                             sentence because of the State's failure to comply with
Involuntary manslaughter occurs when a person
                                                             TEX. FAM. CODE ANN. § 53.045(d) (Vernon Supp.
recklessly causes the death of another under Tex. Penal
                                                             1991), in that, the record does not contain any writing,
Code Ann. § 19.05(a)(1) (1989). A person acts
                                                             whether titled "certificate of approval" or otherwise,
recklessly when he or she is aware of, but consciously
                                                             indicating the State's prosecution of appellant under the
disregards, a substantial and unjustifiable risk the
                                                             second amended petition, or any petition, was
circumstances exist or the result will occur.
                                                             affirmatively approved by a grand jury. We affirm
Counsel: Attorneys for Appellant: William W. Vance,          imposition of the indeterminate [**3] sentence for the
Bryan, Texas.                                                delinquent conduct finding based on the aggravated
                                                             robbery allegation, and remand the delinquent conduct
Attorneys for Appellee: Bill R. Turner, District Attorney,   finding on the murder allegation for imposition of an
William O. Juvrud, Assistant District Attorney, Bryan,       indeterminate sentence.
Texas.
                                                             In the first and second points of error, appellant asserts
Judges: Davie L. Wilson, Justice. Justices Cohen and         the determinate sentencing provisions of the family code
Price also sitting.                                          are unconstitutional. Our resolution of the fifth point of
                                                             error renders these points of error moot. They are
Opinion by: WILSON                                           accordingly not discussed, but see generally In the

Opinion
                                                             1 TEX.    PENAL CODE ANN. § 19.02 (Vernon 1989).

                                                             2 TEX.    PENAL CODE ANN. § 29.03 (Vernon Supp. 1991).

                                                     Nicole Mitchell
                                                                                                          Page 6 of 15
                                811 S.W.2d 739, *742; 1991 Tex. App. LEXIS 1568, **3

Matter of R.L.H., 771 S.W.2d 697, 699-700 (Tex. App.--          THE COURT: Are you aware of that?
Austin 1989, no writ), and In the Matter of S.C., 790
S.W.2d 766, 769 (Tex. App.--Austin 1990, writ denied).          MR. VANCE (for the appellant): Yes, sir, I am.

Appellant's third and fourth points of error state that the     ....
trial court's judgment and the commitment order are void
                                                                THE COURT: Okay. Just before I get to that though, I
because there is a fatal variance between the judgment
                                                                want to be sure that he and the Mother are aware of
and commitment order, and the relief sought in the
                                                                what the Grand Jury did.
second amended petition. We generally understand
appellant to be complaining about the lack of specificity       MR. VANCE: I talked to both of them, Judge.
as to dispositional alternatives in the State's pleading.
                                                                THE COURT: Then they are aware of it. And we always
Because we reverse the determinative sentence on                admonish him and the Mother carefully, that you don't
other grounds, it is unnecessary to discuss whether the         have to talk to anybody about this case. And you [**6]
State's pleading gives appellant notice, consistent             want to be sure that you check with your attorney if you
with [**4] due process, of the State's intention to             have any question. Do you understand that?
impose a determinate sentence of up to 30 years. 3 See
generally R.L.H., 771 S.W.2d at 701-02.                         APPELLANT: (Indicating) (Affirmative).

At a detention hearing before the trial judge with all          MRS. HOSKINS (Appellant's mother): Yes, sir.
parties present conducted January 3, 1989, the
prosecutor indicated a petition for felony murder would         THE COURT: Both of them, Momma and the child?
be filed by that Thursday. [**5] The State's original
                                                                APPELLANT: Yes, Sir.
petition, which alleged murder, reflects a time-date
stamp of January 5, 1989, indicating a filing on that date      In that same hearing, the State moved to waive count III
with the Brazos County Clerk's office. This date is             of the petition, described by the prosecutor as "alleging
confirmed by subsequent conversations on the [*743]             a capital murder charge."
record between the lawyers and the judge and is not in
dispute.                                                        A pretrial hearing was held on January 26, 1989, in
                                                                which the following statement was made by the
A detention hearing was held on January 13, 1989, in            prosecutor in the context of replying to a motion to bar
which activity by the grand jury was discussed on the           prosecution:
record between the attorneys.
                                                                MR. JUVRUD: The original detention was --occurred --
MR. JUVRUD (for the State): The petition was                    based on violation of a lawful order of the court on a
presented to the Grand Jury of Brazos County, Texas,            prior adjudication of this child, which was 157-J-88CC,
on the 12th of this month, yesterday. And the Grand             as well as the new pending charges. The case was
Jury did approve and certify that petition to the district      taken to the Grand Jury on the 12th of January, 1989.
court for this case to proceed with determinate                 The first Grand Jury which was available to hear the
sentencing under 53.045 under the Family Code.                  Petition in which they certified and approved the Petition
                                                                for our (sic) in determinate sentencing. . . .

                                                                Then on February 3, 1989, which in one place was
3 Justice Cohen notes that this point of error highlights an    labeled a detention hearing and another, a final pretrial,
anomaly in a due process context between the adult and          the following exchange occurred:
juvenile criminal systems. Normally, the juvenile system
demands the strictest adherence to due process safeguards.      MR. VANCE: The other thing, is that I have [**7]
But here, the law seems to allow the chance of a 30 year        received in the mail a second amended petition filed on
sentence to be pled by the State in what only could be          January 31, 1989. Basically, it's similar to the original
described as vague terms. The adult system only permits         petition in this case. But the State at one point in time
punishment enhancement after specific pleadings and factual
                                                                after January 5th, but before January 31, of 1989, had
findings. See generally Ex parte Patterson, 740 S.W.2d 766,
                                                                waived paragraph II [of the murder charge]. And now
777 (Tex. Crim. App. 1987) (trial court committed egregious
                                                                that particular paragraph is again included in the
error in submitting the special issue of use or exhibition of
deadly weapon in the absence of a pleading by the State).       petition. And we would object to the inclusion of

                                                      Nicole Mitchell
                                                                                                         Page 7 of 15
                              811 S.W.2d 739, *743; 1991 Tex. App. LEXIS 1568, **7

paragraph II in the second amended petition. . . . And I     approved by a grand jury. TEX. FAM. CODE ANN. §
have found no evidence in the file that that particular      54.04(d)(2) (Vernon Supp. 1991). If the grand jury
petition has been presented to the Grand Jury for its        approves a petition, "the fact of approval shall be
consideration.                                               certified to the juvenile court, and the certification shall
                                                             be entered in the record of the case." TEX. FAM. CODE
MR. JUVRUD: The Grand Jury was presented with the            ANN. § 53.045(d) (Vernon Supp. 1991).
entire petition to begin with. And they gave their
approval of the entire petition. After the Grand Jury        Appellant specifically objected to the second amended
approved it, the State waived the bottom count on the        petition because it had not been presented to the grand
belief that --.                                              jury. Appellant's contention is that, as the State waived
                                                             one of the murder allegations contained in the original
THE COURT: Are you talking about the robbery?                petition, when the State reasserted the murder
                                                             allegation in the amended petition, it was required to
MR. JUVRUD: No, Your Honor, paragraph II. It was the
                                                             again bring the petition before the grand jury.
mistaken belief that that paragraph represented a
capital murder charge. After further research, it was        The State replies that each of the two murder charges in
discovered that it did not represent a capital murder        the second amended petition was specifically and
charge, merely a felony murder charge, which was             separately charged. Because the jury returned a guilty
applicable in this case. It readmitted its petition to       verdict on the first of the two murder charges, the one
reinclude that paragraph, as it does [**8] believe that it   that had never been dropped and had been approved
is one of the grounds that it can proceed on. And it was     (as reported by the prosecutor) by the grand jury, error,
originally approved by the Grand Jury and then waived        if any, [**10] in the State's failure to present the second
afterwards.                                                  amended petition to the grand jury was harmless. We
                                                             disagree.
THE COURT: Okay. Anything else?
                                                             The requirements of section 53.045(a) and (d) and
MR. VANCE: No, your honor. Our basic concern is, yes,
                                                             section 54.04(2) and (3) are clear -- HN2[ ] before a
it was in the original petition of January 5th. It was
                                                             determinate sentence may be imposed, a grand jury
subsequently waived. And now it is being [*744]
                                                             must approve the petition made the basis of the
reintroduced through the second amended petition. That
                                                             judgment. We conclude the amended petition, which
second amended petition has not been presented to the
                                                             included an allegation that previously had been waived,
Grand Jury for its consideration . . . I better object.
                                                             should have been presented to the grand jury. Our
....                                                         holding is supported by the fact that, not only was the
                                                             amended petition not presented to the grand jury for
MR. JUVRUD: We waived the last part and then we              approval, but also, the record is devoid of any written
came back in and decided it was appropriate to the           indication the original petition was ever presented to the
case, and we reentered it on our petition. But it was        grand jury. Although the prosecutor made numerous
originally submitted to the Grand Jury.                      affirmations throughout these proceedings that the
                                                             original petition had been approved by the grand jury,
THE COURT: All right. Then I deny the motion.                the certification required by section 53.045(d) is not
                                                             contained in the transcript, either as a separate
In his fifth point of error, appellant complains the
                                                             document or as an attachment to the original petition.
judgment and commitment order are void because the
                                                             Nor is there any type of notation on the docket sheet to
State did not present the second amended petition to
                                                             indicate the grand jury approved the petition.
the grand jury. The State argues it was not required to
do so, as the original petition had been approved, and
                                                             We find that a prosecutor's oral representations of
the two petitions were identical.
                                                             approval by a grand jury, even coupled with [**11] the
                                                             assent of a defendant's counsel, is not a "certification"
HN1[ ] Section 53.045 of the family code provides that
                                                             within the meaning of the statute. Without certification of
if the child is accused of one of six penal offenses, one
                                                             grand jury approval, and the entry of such certification
of which is murder, [**9] the prosecuting attorney may
                                                             into the record of the case, the trial court was without
refer the petition to the grand jury. TEX. FAM. CODE
                                                             jurisdiction to impose a determinate sentence. TEX.
ANN. § 53.045(a) (Vernon Supp. 1991). A determinate
                                                             FAM. CODE ANN. § 54.04(3) (Vernon Supp. 1991).
sentence cannot be imposed if the petition is not

                                                   Nicole Mitchell
                                                                                                                Page 8 of 15
                               811 S.W.2d 739, *744; 1991 Tex. App. LEXIS 1568, **11

We note one other factor that we believe does not               adjudication hearing." TEX. FAM. CODE ANN. §
overcome the State's failure to enter into the record a         53.07(a) (Vernon 1986).
certificate of approval reflecting the grand jury's actions.
The judgment contains a non-specific "form" finding by          The two cases relied upon by appellant are
the trial judge of the grand jury's approval of the petition.   distinguishable because they involve the State's failure
However, neither litigant here has discussed the impact         to serve the juvenile defendant with the original petition
of the judge's finding within the context of this case.         and summons, not with any amended petitions. In In the
                                                                Matter of W.L.C., 562 S.W.2d 454, 455 (Tex. 1978), the
 [*745] The recent Tyler Court of Appeals case, In the          juvenile was not served with the original petition to
Matter of S.B.C., 805 S.W. 2d 1, 7 (Tex. App.--Tyler            transfer him to district court. The probation officer
1991, no writ), discusses the "certificate of approval" in      testified he did not have personal knowledge of whether
the context of a challenge to the certification process. A      the juvenile had been served. The trial court then
"certificate of approval" is also referred to in the case of    ordered W.L.C. served in open court. The only
In the Matter of J.T.H., 779 S.W. 2d 954, 957 (Tex.             documentary evidence contained in the record
App.--Austin 1989). Both cases consider the certificate         concerning service, was an instrument titled "Precept to
as a written instrument filed within the record of the          Serve" executed by the clerk, [**14] which directed the
case. [**12] We agree with the construction of the              sheriff to serve W.L.C. with a copy of the original
statute by the Tyler and Austin courts of appeal                petition. The return of service form on the reverse side
concerning the "certificate of approval" as constituting a      of the precept was blank. The supreme court reversed
written instrument.                                             the order of transfer, holding that a juvenile must be
                                                                served with summons and that, absent an affirmative
Because the record does not contain a written                   showing of service of summons in the record, the
"certification of approval" from the grand jury approving       juvenile court was without jurisdiction. Id. at 455.
the State's second amended petition, appellant's fifth
point of error is sustained. The judgment is reformed to        In the second case, In the Matter of D.W.M., 562
delete the imposition of a determinate sentence of nine         S.W.2d 851 (Tex. 1978), the State requested the
years, and the case is remanded to the trial court for          juvenile court to waive its jurisdiction and transfer the
imposition of an indeterminate sentence based upon the          juvenile, who was accused of murder, to the district
finding of delinquent conduct based on the murder               court. The record did not show the juvenile was served
allegation.                                                     with a summons to the transfer hearing. The court of
                                                                appeals affirmed the transfer because the juvenile
In his sixth point of error, appellant complains the
                                                                waived service of summons by voluntarily appearing
judgment and the commitment order are void because
                                                                and failing to object to the lack of summons. The
the State did not properly serve him or his mother with
                                                                supreme court reversed, holding that a juvenile must be
the second amended petition made the basis of his
                                                                served with summons, the service must affirmatively
prosecution. The appellant states this failure of service
                                                                appear in the record, and the juvenile cannot waive
deprived the trial court of jurisdiction to enter a final
                                                                service. Id. at 853. 4
disposition. Appellant admits he was served with the
original petition and summons.
                                                                 [**15] [*746] We believe the case of McBride v. State,
                                                                655 S.W.2d 280 (Tex. App.--Houston [14th Dist.] 1983,
HN3[ ] The Texas Family Code provides that the
                                                                no writ), is directly on point. In that case, a second
juvenile court shall direct issuance of a summons to (1)
the child named in the petition, (2) the child's parent,
guardian, or custodian, [**13] (3) the child's guardian
                                                                4 We  note the reasoning of the Texas Supreme Court in this
ad litem, and (4) any other person who appears to the
                                                                case is equally applicable to resolving appellant's fifth point of
court to be a proper or necessary party to the
                                                                error. Just as the service of summons was the foundation for
proceeding. TEX. FAM. CODE ANN. § 53.06(a) (Vernon
                                                                the trial court's acquisition of jurisdiction in In the matter of
1986). A copy of the petition must accompany the                WLC, likewise is the action of the grand jury in approving an
summons. TEX. FAM. CODE ANN. § 53.06(b). The                    original petition necessary before a trial court can impose a
code also provides that HN4[ ] "if a person to be               determinate sentence. An affirmative showing in the record of
served with a summons is in this state and can be               service was required by the supreme court in WLC; no less is
found, the summons shall be served upon him                     required when, as here, there is no affirmative showing in the
personally at least two days before the day of the              record the grand jury approved the petition upon which
                                                                appellant faced the possibility of incarceration for 30 years.

                                                      Nicole Mitchell
                                                                                                            Page 9 of 15
                               811 S.W.2d 739, *746; 1991 Tex. App. LEXIS 1568, **15

amended petition was served upon McBride and his                not disturb a judgment for a court's failure to comply with
mother; however, the citation accompanying the petition         such a rule. In this instance, however, we are of the
was defective. Rejecting McBride's argument the State's         opinion the trial court did comply with rule 6. Rule
failure to serve him with a correct citation in the             6(d)(4) provides that "nothing herein shall prevent a
amended petition divested the trial court of jurisdiction,      judge from recessing a juvenile hearing at any stage of
the Fourteenth Court of Appeals held, "when jurisdiction        the proceeding . . . when in the opinion of the judge
attached [by virtue of a properly served citation in the        presiding in the case the best interests of the child and
original petition], the court did not lose jurisdiction         of society shall be served." Between the time appellant
because the State may have failed to follow the                 was initially detained and the date of trial, at least six
statutory guidelines in serving appellant with an               detention hearings were held. See TEX. FAM. CODE
amended petition." Id. at 283. (Emphasis in the original.)      ANN. § 54.01(h) (Vernon 1986). The detention orders
                                                                filed as a result of these hearings state appellant
We agree with this reasoning and apply it here.                 continued to be detained because of one or more of the
Because appellant and his mother were properly served           following: (1) suitable supervision, care, or protection for
with the original petition, the trial court acquired            him was not provided by his parent, guardian,
jurisdiction over him at that time. The State's failure to      custodian, or other person; (2) he was accused of
serve appellant with the second amended petition did            committing a felony offense and may be dangerous to
not deprive the trial court of jurisdiction. Id.; see also In   himself or others if released; or (3) he was previously
the Matter of R.M., 648 S.W.2d 406, 407 (Tex. App.--            found to be a delinquent child or was previously
San Antonio 1983, no writ). [**16] Point of error               convicted of a penal offense [**18] punishable by a
number six is overruled.                                        term in jail or prison and is likely to commit an offense if
                                                                released. These detention orders clearly reflect the
In his seventh point of error, appellant complains the          opinion of the juvenile judge that the best interests of
trial court erred in overruling his "motion to bar              appellant and society would be served by further
prosecution." Appellant asserts the court violated rule 6       detention.
of the judicial administration rules by not conducting an
adjudication hearing within 10 days after appellant was         The seventh point of error is overruled.
admitted to a detention facility. This point of error is
without merit.                                                   [*747] The eighth point of error is that the trial court
                                                                improperly consolidated a determinate sentencing
HN5[    ] Rule 6 provides that,                                 offense with a nondeterminate sentencing offense.
                                                                Because our disposition of the fifth point of error
district and statutory county court judges . . . should, so     reverses the determinate sentence imposed and
far as reasonably possible, ensure that all cases are           compels the trial court to enter a nondeterminate
brought to trial or final disposition in conformity with the    sentence, appellant's eighth point of error is also moot.
following time standards:
                                                                In his ninth point of error, appellant complains that,
Juvenile Cases . . . (a) Concerning a juvenile in a             because he gave an oral statement before he was
detention facility: not later than 10 days following            warned by the magistrate, a written statement he gave
admission to such a facility, except for good cause             while in detention on October 7, 1988, was improperly
shown of record.                                                admitted into evidence. Appellant asserts his oral
                                                                statement provided the foundation for the written
TEX. GOV'T CODE ANN., Title 2, subtitle F, App., rule           statement. This contention is not supported by the
6(d) (Vernon 1988 & Supp. 1991). Rule 1 of the judicial         record.
administration rules provides the rules are promulgated
pursuant to section 74.024 of the Texas Government              HN7[ ] Section 51.09 of the Texas Family Code
Code. Section 74.024 provides that: HN6[ ] "the                 provides that a child who gives an out-of-court
supreme court may consider the adoption of rules                statement must do so knowingly, intelligently, and
relating to: (1) nonbinding time standards for pleading,        voluntarily. The statement must [**19] be signed in the
discovery, motions, [**17] and dispositions." TEX.              presence of a magistrate, with no law enforcement
GOV'T CODE ANN. § 74.024(c)(1) (Vernon                          officer or prosecuting attorney present. The magistrate
1988)(emphasis added).                                          must certify he has examined the child outside the
                                                                presence of any law enforcement officer and has
Rule 6 is a discretionary, nonbinding rule, and we will

                                                      Nicole Mitchell
                                                                                                      Page 10 of 15
                              811 S.W.2d 739, *747; 1991 Tex. App. LEXIS 1568, **19

determined the child understands the nature and              was arrested in connection with a murder investigation.
content of his statement. TEX. FAM. CODE ANN. §              The arresting officer gave B.A.G. Miranda warnings, but
51.09(b)(1)(F) (Vernon 1986).                                did not inform her she could be tried as an adult. The
                                                             officer questioned B.A.G. for about 85 minutes. After
Oscar Chavarria is a criminal investigator with the Bryan    she made incriminating oral statements, the officer
Police Department. As part of his investigation of           brought her before a magistrate, who advised her of her
Michael Ramirez's murder, on October 7, 1988, he took        rights. She then gave a written statement substantially
a statement from appellant. Chavarria admitted he            the same as her oral statement. B.A.G. signed her
spoke to appellant for about five minutes before Judge       written statement in front of a second magistrate.
Hensarling was called to administer the magistrate's         Neither magistrate was informed of B.A.G.'s
warnings, but he stated the conversation was for the         incriminating oral [*748] statements. The Dallas Court
limited purpose of finding out if appellant would speak to   of Appeals reversed B.A.G.'s conviction holding the
him, and briefly, what had happened. He stated he did        written statement was inadmissible because it was
not write anything down during this five minute period.      based on oral statements given before B.A.G. had been
Chavarria denied that most of appellant's oral               warned.
statements, made before he was warned by the
magistrate, were contained in the written statement.         We do not find this authority persuasive for several
                                                             reasons. First, the Court of Criminal [**22] Appeals
Judge Carolyn Hensarling testified she was called down       reversed the Dallas Court on this point. See Griffin v.
to the detention center to administer a magistrate's         State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989).
warning to a juvenile. She said the warning is               Second, the Dallas Court of Appeals based its decision
contained [**20]     on a standardized form and              on the fact that neither magistrate knew B.A.G. had
encompasses two pages. The third page is where the           previously given an incriminating oral statement, and
officer takes the statement. After the statement is taken,   thus, neither magistrate informed B.A.G. her oral
she reads it back to the child to make sure it is true and   statement could not be used against her. Appellant here
correct. She then certifies on the warning whether she       has not made such an allegation. Finally, we do not
feels the child voluntarily executed the statement.          believe appellant's initial statements to Chavarria,
                                                             standing alone, were incriminating; they were no more
In this case, Judge Hensarling identified petitioner's
                                                             than responses to generalized investigatory questions.
exhibit 2 as the warning documents she administered to
                                                             By appellant's own admission, the only things Chavarria
appellant on October 7, 1988. She said she felt
                                                             asked him were whether he knew about a murder, was
appellant gave the statement voluntarily, knew what he
                                                             he in the vicinity, and did he know whether Leroy Lewis
was doing, and no force or pressure was used in
                                                             had any money the week Ramirez was killed. Appellant
obtaining appellant's signature. Page three was blank
                                                             did not implicate himself in any fashion by these
when she initially gave appellant his warnings.
                                                             statements.
Appellant testified he spoke to Chavarria about 10 or 15
                                                             The ninth point of error is overruled.
minutes before seeing Judge Hensarling. Chavarria
asked appellant whether he knew anything about a             In his tenth point of error, appellant asserts a second
murder, was he around the area when it occurred, and         statement he made while in detention on October 11,
did Leroy Lewis (a codefendant) have some money the          1988, also was admitted improperly. His complaint is the
week of the murder. Additionally, appellant stated the       magistrate's warning was not administered by the
written statement he signed was made up by Chavarria         magistrate, but by the magistrate's secretary.
before he spoke to Judge Hensarling, and he only saw
Judge Hensarling once. Appellant denies he received          Chavarria testified [**23] he again spoke with appellant
any warnings from Judge Hensarling, and states that,         on October 11 for about five minutes before calling the
had [**21] he received any warnings, he would not            magistrate. Chavarria said he told appellant he had
have made a statement at all.                                received additional information that appellant knew
                                                             more about what had happened than appellant had let
Appellant relies on the case of B.A.G. v. State, 715         on in the first conversation. After he spoke to appellant,
S.W.2d 790 (Tex. App.--Dallas 1986), to support his
                                                             Chavarria called Judge Dewey to admonish appellant.
proposition that, because Chavarria orally took evidence
                                                             Judge Dewey was accompanied by his secretary,
from him before he was warned by the magistrate, his
                                                             Marilyn Myrick.
written statement was inadmissible. In B.A.G., a juvenile

                                                   Nicole Mitchell
                                                                                                             Page 11 of 15
                               811 S.W.2d 739, *748; 1991 Tex. App. LEXIS 1568, **23

Myrick testified that, although the judge was present, it      Kenneth Lewis, stating appellant was the person who
was she, not Judge Dewey, who actually read the                jumped on Ramirez's head at least once and maybe
magistrate's warnings to appellant. This was because           even twice, was enough for the jury to find appellant
Judge Dewey has very poor eyesight, and has trouble            himself committed aggravated robbery and murder.
reading. Only she, the judge, and appellant were in the
room. After appellant's statement was typed, Myrick            The eleventh point of error is overruled.
read the statement to appellant; she did not give him the
                                                               In the twelfth point of error, appellant asserts there was
opportunity to read it himself. Upon further questioning,
                                                               no evidence to sustain the jury findings. Appellant
Myrick stated Judge Dewey asked appellant whether he
                                                               readily admits in his brief that if we find his two out-of-
understood what was just read to him and whether he
                                                               court statements admissible, then the no evidence issue
needed to make any changes, omissions, or additions.
                                                               would not be applicable. As we have found the
Appellant indicated he understood what was read and
                                                               statements admissible, we must necessarily find there
he did not need to make any changes. Judge Dewey
                                                               was some evidence to support the jury's finding of guilt.
then signed the magistrate's certification.
                                                               The twelfth point of error is overruled.
Appellant testified he knew what he was doing [**24]
when he gave the October 11 statement; he understood            [**26] A lack of sufficient evidence is appellant's
he had the right to remain silent, and he voluntarily gave     thirteenth point of error. This case is governed by the
up that right; he said he understood everything when           rules of civil procedure. TEX. FAM. CODE ANN. § 51.17
Myrick read his statement back to him.                         (Vernon Supp. 1991). The rules provide that, HN9[ ] in
                                                               order to preserve a factual insufficiency point of error, a
We find nothing in the family code requiring the
                                                               motion for a new trial complaining of the insufficiency
magistrate to be the person to physically administer
                                                               must be filed. No motion for new trial was filed in this
warnings to a defendant. We find it sufficient Judge
                                                               case. Appellant has not preserved this point of error for
Dewey was present in room when the warnings were
                                                               review. However, in the interest of justice we will
read to appellant by his secretary. Judge Dewey
                                                               consider appellant's point of error. 5
specifically asked appellant whether he understood his
statement, and he personally signed the magistrate's           [**27] HN10[      ]
certification.
                                                               In reviewing the sufficiency of the evidence to support a
The tenth point of error is overruled.
                                                               guilty verdict, the evidence is viewed in the light most
                                                               favorable to the verdict. Flournoy v. State, 668 S.W.2d
In the eleventh point of error, appellant asserts the trial
                                                               380, 383 (Tex. Crim. App. 1984); Barron v. State, 773
court improperly charged the jury under the law of
                                                               S.W.2d 44, 46 (Tex. App.-- Houston [1st Dist.] 1989,
parties. This theory was not stated in either the original
                                                               pet. ref'd). The critical inquiry is whether, after viewing
or the amended petition, and, relying TEX. R. CIV. P.
                                                               the evidence in the light most favorable to the verdict,
301, appellant contends the charge allowed the jury to
                                                               any rational trier of fact could have found the essential
find him guilty on a theory not contained in the
                                                               elements of the crime beyond a reasonable doubt.
pleadings. Appellant properly preserved this point of
                                                               Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
error by objecting to the charge.
                                                               Ed. 2d 560 (1979); Rogers v. State, 795 S.W.2d 300,
We overrule this point of error. HN8[ ] An indictment
need not plead evidence relied on by the State, i.e. that
                                                               5 See  generally Obeidat v. State, 787 S.W.2d 627, 628 (Tex.
the defendant is a party.         Swope v. State, 805
S.W.2d [**25] 442 (Tex. Crim. App. Feb. 3, 1991) slip          Crim. App. 1990) (even though defendant waived error by
op. at 3, 5. Moreover, appellant was not harmed by             putting on a defense, court reviewed the point as one
 [*749] inclusion of a party instruction. The jury did not     challenging the sufficiency of the evidence); Miguez v. State,
                                                               715 S.W.2d 795,, 799 (Tex. App.--Houston [14th Dist.] 1986,
have to rely on the acts of others to find appellant guilty.
                                                               pet. ref'd) (court considered Miguez's point of error even
In appellant's second out-of-court statement, he
                                                               though he did not correctly raise his complaint); de
admitted he was present during the commission of the
                                                               Alberquerque v. State, 712 S.W.2d 809, 812 (Tex. App.--
offenses, he took Ramirez's wallet and kept the 4500           Houston [1st Dist.] 1986, no pet.) (court considered whether
pesos he found in it, and he accepted a split of the           there was sufficiency evidence the State had proved every
American money taken from Ramirez. This admission,             element of the offense, where appellant's point of error
in conjunction with the testimony of C.R., N.D., and           complained of the trial court's failure to quash the indictment).

                                                     Nicole Mitchell
                                                                                                        Page 12 of 15
                              811 S.W.2d 739, *749; 1991 Tex. App. LEXIS 1568, **27

303 (Tex. App.--Houston [1st Dist.] 1990, pet. filed). In a   indicating a need for supervision; and the corroboration
juvenile case, the question is whether the evidence           is not sufficient if it merely shows the commission of the
considered as a whole shows that the State sustained          alleged conduct.
its burden of proof beyond a reasonable doubt. In the
Matter of H.R.A., 790 S.W.2d 102, 103 (Tex. App.--
Beaumont 1990, no writ).                                      TEX. FAM. CODE ANN. § 54.03(e) (Vernon 1986).

The following testimony was adduced at trial. Oscar           To determine whether the testimony of C.R., N.D., and
Chavarria, Carolyn Hensarling, and Marilyn Myrick             Kenneth Lewis was sufficiently corroborated, we are
testified as set out above. Several other witnesses           required to eliminate from consideration the evidence of
testified as to Ramirez's physical condition and mental       the accomplice witnesses, and then examine the
state as he lay by the side of the road. None of              testimony of the remaining witnesses to see if there is
the [**28] witnesses were able to relay any information       evidence of an incriminating character tending to
to the police about Ramirez's assailants, except they         connect appellant with the commission of the offense. In
were black males.                                             the Matter of J.R.R., 689 S.W.2d 516, 519 (Tex. App.--
                                                              Dallas), aff'd, 696 S.W.2d 382 (Tex. 1985).
Dr. J. C. Lee, a pathologist, is the director of
laboratories at St. Joseph Hospital in Bryan. He              The three accomplices were the only witnesses who in
performed the autopsy on Ramirez and testified                any way connected [**30] appellant to the crime.
Ramirez died as a result of a subdural brain                  Appellant's first out-of-court statement, taken October 7,
hemorrhage.                                                   does not provide sufficient corroboration of the
                                                              accomplice's testimony. In this first statement, appellant
Three accomplices also testified against appellant. C.R.,     states he met Leroy Lewis at a park; Lewis "hangs out"
age 16, also has been charged with aggravated robbery         with C.R.; the next Monday, after appellant heard "that
and murder. C.R. said he saw Leroy Lewis kick                 the Mexican was beaten up and that he died," he saw
Ramirez. He could not tell whether Lewis kicked               Leroy Lewis with his brother, Kenneth, at about 6:00
Ramirez in the back or the head. While he never saw           p.m.; both Leroy and Kenneth had $ 10.00; he didn't
appellant kick Ramirez, C.R. testified he later asked         know how they got the money.
appellant if he had kicked Ramirez. Appellant laughed
and nodded his head affirmatively.                            In the second statement, however, appellant does
                                                              implicate himself in the commission of the offense. He
 [*750] N.D., age 13, also testified it was Leroy Lewis       stated:
who initially kicked Ramirez in the back. He said
appellant jumped on Ramirez's head, but did not kick          There was six of us, [C.R.], Leroy Lewis, Kenneth
him in the head. N.D. denied he ever kicked Ramirez           Lewis, [N.D.], and me. We were walking down the
himself.                                                      street, on highway 25th and we saw a Mexican walking
                                                              down 25th street. Leroy Lewis wanted to take his
The final accomplice to testify was Kenneth Lewis, age        money. Leroy Lewis said "Lets [sic] get him." I said that I
19. Lewis testified it was his brother, Leroy, who kicked     wanted to go home. [C.R.] wanted to go with me. About
Ramirez in the back, knocking him down. He further            four minutes later, we saw four guys running towards
stated he saw appellant jump on Ramirez's head twice,         the Harlem Club. Before they ran to the Club, Leroy
and N.D. kick Ramirez in the upper [**29] chest and           kicked the Mexican in the back. Leroy jumped up and
face.                                                         kicked him in the back. The Mexican fell and looked up.
                                                              The Mexican fell on his face. [N.D.] ran and hit him
Other than appellant's October 11, 1988 statement, the
                                                              in [**31] the head. He hit the Mexican in the head with
testimony of these three accomplice witnesses is the
                                                              his foot, one time. Leroy started swinging his boots
only evidence that connects appellant to the offenses.
                                                              everywhere. [C.R.] took off running. We saw them run
The family code provides that
                                                              towards the Harlem.
HN11[ ] an adjudication of delinquent conduct or
                                                              We ran towards the Harlem. We got half of the money. I
conduct indicating a need for supervision cannot be had
                                                              got $ 10, [C.R.] got $ 10, [N.D.] got $ 10, Leroy got $ 20,
upon the testimony of an accomplice unless
                                                              Kenneth Lewis got $ 10. We did not know that Leroy
corroborated by other evidence tending to connect the
                                                              had an extra ten. We split up the money. [C.R.], [N.D.],
child with the alleged delinquent conduct or conduct
                                                              and I went home. I don't know where Leroy and Kenneth

                                                    Nicole Mitchell
                                                                                                        Page 13 of 15
                               811 S.W.2d 739, *750; 1991 Tex. App. LEXIS 1568, **31

Lewis went. They dropped the wallet and I picked it up.        charged only in the respect that a less culpable mental
It had $ 4500 in Mexican dollars, and I kept it. I put the     state suffices to establish its commission; or 4) it
money under a speaker in my house and about five               consists of an attempt to commit the offense charged or
minutes later, it was not there. Kenneth Lewis told us to      an otherwise included offense. TEX. CODE CRIM. P.
grab the wallet. Leroy took the wallet out of the              ANN. art. 37.09 (Vernon 1981).
Mexican's pants. Leroy took the boots off the Mexican
and threw them away. [L.W.] was at my grandmother's            HN13[ ] In determining whether a charge on a lesser
house at this time. Kenneth Lewis was on the bike.             included offense is required, a two-step analysis is
                                                               required. First, the lesser included offense must be
We find this statement of appellant is enough evidence         included within the proof necessary to establish the
of an incriminating character connecting appellant with        offense charged. Second, there must also be some
the commission of the offense to corroborate the               evidence in the record that if the defendant is guilty, he
accomplices' testimony. We may thus consider [*751]            is guilty ONLY of the lesser included offense. Royster v.
the accomplices' testimony in determining the                  State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981)(op.
sufficiency of the evidence.                                   on reh'g). If the evidence raises the issue of a lesser
                                                               included offense, it must be [**34] included in the
Appellant's [**32] statement, combined with the                charge. Sanchez v. State, 745 S.W.2d 353, 357 (Tex.
testimony of the three accomplices provided the jury           Crim. App. 1988).
with ample evidence from which it could render a guilty
verdict.                                                       The State's petition alleged appellant committed the
                                                               offenses of aggravated robbery and murder. HN14[ ] A
The thirteenth point of error is overruled.                    person commits the offense of robbery if, while in the
                                                               course of committing theft, and with intent to obtain or
In the fourteenth point of error, appellant claims the trial
                                                               maintain control of the property, he intentionally,
court erred in not allowing the jury to set a term of years
                                                               knowingly, or recklessly causes bodily injury, or
for probation. The family code provides the court or the
                                                               intentionally or knowingly threatens or places another in
jury may place the child on probation on such
                                                               fear of imminent bodily injury or death. TEX. PENAL
reasonable and lawful terms as the court may
                                                               CODE ANN. § 29.02(a) (Vernon 1974). If in the course
determine, for a period not to exceed one year. TEX.
                                                               of committing a robbery, a person also causes serious
FAM. CODE ANN. § 54.04(d)(1) (Vernon Supp. 1991).
                                                               bodily injury to another, he has committed aggravated
Question No. 2 of the jury charge on disposition asked
                                                               robbery. TEX. PENAL CODE ANN. § 29.03(a)(1)
the jurors if appellant should be placed on probation, to
                                                               (Vernon Supp. 1991).
which they replied, "No." The question specifically
tracked the language of section 54.04(d)(1). The trial         HN15[    ] A person commits the offense of murder if he:
court was without the authority to instruct the jury any
other way. Accordingly, we cannot say the trial court          (1) intentionally or knowingly causes the death of an
erred in not allowing the jury to set a term of years for      individual;
probation.
                                                               (2) intends to cause serious bodily injury and commits
The fourteenth point of error is overruled.                    an act clearly dangerous to human life that causes the
                                                               death of an individual; or
In his last point of error, appellant complains the trial
court erred in denying his request to submit the lesser        (3) commits or attempts to commit a felony, other than
included offenses of voluntary manslaughter, criminal          voluntary or involuntary manslaughter, and in the course
negligent homicide, [**33] simple assault, and                 of and in furtherance of the commission or attempt, or in
involuntary manslaughter.                                      immediate flight from the [**35] commission or attempt,
                                                               he commits or attempts to commit an act clearly
HN12[ ] An offense is a lesser included office if 1) it is     dangerous to human life that causes the death of an
established by proof of the same or less than all the          individual.
facts required to establish the commission of the offense
charged; 2) it differs from the offense charged only in        TEX. PENAL CODE ANN. § 19.02(a) (Vernon 1989). In
the respect that a less serious injury or risk of injury to    light of the elements set out for these offenses, we will
the same person, property, or public interest suffices to      now analyze each of [*752] the instructions appellant
establish its commission; 3) it differs from the offense       claims should have been given.

                                                     Nicole Mitchell
                                                                                                         Page 14 of 15
                               811 S.W.2d 739, *752; 1991 Tex. App. LEXIS 1568, **35

A. Voluntary Manslaughter. HN16[ ] A person commits            Kenneth Lewis also stated he saw appellant jump on
the offense if he causes the death of another under            Ramirez's head. We find no evidence appellant was
circumstances that would constitute murder under               unaware of the risk he created by his conduct. Further,
section 19.02 of the Texas Penal Code, except that he          there is no evidence indicating that, if appellant was
caused the death under the immediate influence of              guilty of causing Ramirez's death, he was guilty only of
sudden passion arising from an adequate cause. TEX.            criminally negligent homicide. See Royster, 622 S.W.2d
PENAL CODE ANN. § 19.04(a) (Vernon 1989). "Sudden              at 446; Saunders, 780 S.W.2d at 475. Thus, the trial
passions" means passion directly caused by and arising         court did not err in refusing to instruct the jury on this
out of provocation by the individual killed or another         lesser included offense.
acting with the person killed, such passion arising at the
time of the offense and not solely the result of former        C. Simple Assault. HN18[ ] Assault occurs when
provocation. TEX. PENAL CODE ANN. § 19.02(b)                   someone intentionally, knowingly, or recklessly causes
(Vernon 1989).                                                 bodily injury to another, threatens another with imminent
                                                               bodily injury, or intentionally or knowingly causes
The evidence in this case did not raise the issue of           physical [**38] contact with another when the actor
sudden passion. The record reflects Ramirez was                knows or should reasonably believe the other will regard
merely walking down the street after exiting from a bar,       the contact as offensive or provocative. TEX. PENAL
when he was "jumped" by appellant and his friends.             CODE ANN. § 22.01 (Vernon 1989). Assault is a lesser
 [**36] There was no evidence Ramirez provoked                 included offense of aggravated robbery. Ex parte
appellant in any way. The evidence does not raise the          Drewery, 710 S.W.2d 148, 152 (Tex. App.--Houston [1st
issue of sudden passion; therefore, the trial court did not    Dist.] 1986, pet. ref'd).
err in failing to include an instruction on voluntary
manslaughter.                                                  In appellant's second statement to Chavarria, he stated
                                                               he took Ramirez's wallet and he kept the money he
B. Criminally Negligent Homicide. HN17[ ] A person             found in it. The accomplices' testimony showed
commits this offense if he causes the death of an              appellant participated in the beating that enabled him to
individual by criminal negligence. TEX. PENAL CODE             receive $ 10. That beating resulted in Ramirez's death.
ANN. § 19.07(a) (Vernon 1989). A person acts with              There is no evidence in this record that, if appellant was
criminal negligence or is criminally negligent when he         guilty of injuring Ramirez, he was guilty of inflicting only
ought to be aware of a substantial and unjustifiable risk      bodily injury and not serious bodily injury. The trial court
that the circumstances exist or the result will occur. The     did not err in refusing this instruction.
risk must be of such a nature and degree that the failure
to perceive it constitutes a gross deviation from the          D. Involuntary Manslaughter. HN19[ ] Involuntary
standard of care an ordinary person would exercise             manslaughter occurs when a person [*753] recklessly
under all the same circumstances as viewed from the            causes the death of another. Lugo v. State, 667 S.W.2d
actor's standpoint. TEX. PENAL CODE ANN. § 6.03(d)             144, 147 (Tex. Crim. App. 1984); TEX. PENAL CODE
(Vernon 1974). The essence of criminal negligence is           ANN. § 19.05(a)(1) (Vernon 1989). A person acts
the failure of the actor to perceive the risk created by his   recklessly when he or she is aware of, but consciously
conduct. Mendieta v. State, 706 S.W.2d 651, 652 (Tex.          disregards, a substantial and unjustifiable risk the
Crim. App. 1985). Criminally negligent homicide is a           circumstances [**39] exist or the result will occur.
lesser included offense of murder. Thomas v. State, 699        Lugo, 667 S.W.2d at 147. If there was not enough
S.W.2d 845, 847 (Tex. Crim. App. 1985).                        evidence to raise an issue of reasonable doubt whether
                                                               appellant was acting other than intentionally or
Before a [**37] charge on this particular crime is             knowingly, then the trial court properly excluded this
required, the appellate record must contain evidence           instruction. Zepeda v. State, 797 S.W.2d 258, 264 (Tex.
showing the accused was unaware of the risk his                App.--Corpus Christi 1990, pet. ref'd).
conduct was creating. Mendieta, 706 S.W.2d at 653;
Saunders v. State, 780 S.W.2d 471, 475 (Tex. App.--            Two accomplices testified appellant jumped on
Corpus Christi 1989, pet. granted). The pathologist at         Ramirez's head after Leroy Lewis delivered the initial
St. Joseph Hospital testified Ramirez died from a              blow. In appellant's second statement to Chavarria, he
subdural hemorrhage in the brain. C.R. testified               does not state he was kept at the scene against his will
appellant admitted to him he had kicked Ramirez. N.D.          or he was made to jump on Ramirez. In the statement,
stated he saw appellant jump on Ramirez's head.                appellant admits to taking Ramirez's wallet and keeping


                                                     Nicole Mitchell
                                                                                       Page 15 of 15
                               811 S.W.2d 739, *753; 1991 Tex. App. LEXIS 1568, **39

the money he found. The State showed appellant
intentionally engaged in a beating that resulted in
Ramirez's death. Since the evidence did not show
appellant's conduct was merely reckless, the trial court
did not err in failing to submit an instruction on
involuntary manslaughter.

Appellant's fifteenth point of error is overruled.

The judgment of the trial court is reformed to delete the
nine year determinate sentence, and the cause is
remanded to that court for imposition of an
indeterminate    sentence.        As       reformed,  the
judgment [**40] of the trial court is affirmed.

Judgment reversed and remanded in part, affirmed in
part.


  End of Document




                                                     Nicole Mitchell
     Caution
As of: March 23, 2018 5:04 PM Z


                                                 Jones v. Morales
                                  Court of Appeals of Texas, Seventh District, Amarillo
                                                 May 21, 2010, Decided
                                                  NO. 07-08-00367-CV

Reporter
318 S.W.3d 419 *; 2010 Tex. App. LEXIS 3880 **
                                                             5-7 mail-in ballots. Judgment was for the contestant, as
JON JONES, APPELLANT v. AMADO Z. MORALES,
                                                             the trial court concluded the votes of the uncounted
APPELLEE
                                                             voters should have been included in the total and the
                                                             omission materially affected the outcome of the election.
Subsequent History: Rehearing overruled by Jones v.
                                                             The contestant was adjudged winner of the election by
Morales, 2010 Tex. App. LEXIS 6224 (Tex. App.
                                                             one vote. The appellate court ruled that the trial court
Amarillo, Aug. 2, 2010)
                                                             did not abuse its discretion in adjudging the contestant
Petition for review denied by Jones v. Morales, 2010         the winner. Implicit in the judgment of the trial court was
Tex. LEXIS 947 (Tex., Dec. 3, 2010)                          the determination that each of the uncounted voters
                                                             properly signed the application for ballot by mail and
Prior History: [**1] FROM THE 110TH DISTRICT                 carrier envelope. The trial court heard testimony that, if
COURT     OF     FLOYD   COUNTY;  NO.   9894;                believed, permitted it to form a firm belief or conviction
HONORABLE H. BRYAN POFF, JR., JUDGE.                         that its finding was true.

                                                             Outcome
Core Terms                                                   The judgment was affirmed.
ballot, voter, trial court, envelope, voting, election,
carrier, signature, uncounted, contest, mail, want of        LexisNexis® Headnotes
prosecution, motion to dismiss, abused, requires, mail-
in, argues, ambiguous, witnessed, presumed, marking,
winner, cases, cast, rejected ballots, transported,
assisting, parties

                                                                  Civil Procedure > Appeals > Appellate
Case Summary                                                      Jurisdiction > General Overview

                                                             HN1[      ] Appeals, Appellate Jurisdiction
Procedural Posture
Appellant contestee challenged the judgment of the
                                                             The appellate court is required to consider its jurisdiction
110th District Court of Floyd County, Texas, finding
                                                             sua sponte if necessary.
appellee contestant the winner of the November 2006
general election for Floyd County Commissioner
Precinct Four.
                                                                  Governments > Courts > Rule Application &
Overview                                                          Interpretation
The outcome of the commissioner's race between the
parties was close. The initial canvas showed the             HN2[      ] Courts, Rule Application & Interpretation
contestee the winner by three votes. The contestant
requested a recount which tallied the contestee the          The same rules of interpretation apply in construing the
winner by four votes, and the contestant filed the           meaning of court orders as in ascertaining the meaning
underlying election contest. The contestant argued that      of other written instruments. A court may consider on its
the county's early voting ballot board wrongly rejected      own motion whether a document is ambiguous. Whether


                                                     Nicole Mitchell
                                                                                                           Page 2 of 10
                               318 S.W.3d 419, *419; 2010 Tex. App. LEXIS 3880, **1

a document is ambiguous is a question of law. A                discretion when it acts without reference to any guiding
document is not ambiguous if as worded it can be given         rules and principles.
a definite or certain legal meaning. But a document is
ambiguous if its meaning is reasonably susceptible to
two or more reasonable interpretations.
                                                                   Civil Procedure > Appeals > Standards of
                                                                   Review > Abuse of Discretion

    Civil Procedure > Appeals > Appellate                          Civil Procedure > ... > Standards of
    Jurisdiction > Final Judgment Rule                             Review > Substantial Evidence > Sufficiency of
                                                                   Evidence
HN3[   ] Appellate Jurisdiction, Final Judgment Rule
                                                               HN6[    ] Standards of Review, Abuse of Discretion
When an order is not produced following a conventional
trial on the merits, the appellate court does not presume      The sufficiency of evidence supporting a trial court's
its finality. Rather, following summary disposition when       finding of fact may be a relevant factor in determining
finality is not clear the appellate court looks to the order   whether the court abused its discretion. In a non-jury
and the record to determine finality.                          case, when the appellate record includes both findings
                                                               of fact and conclusions of law and a reporter's record,
                                                               the appellate court reviews the sufficiency of the
                                                               evidence under the same standards applied in cases
    Evidence > Burdens of Proof > Clear & Convincing
                                                               tried by jury. In reviewing the legal sufficiency of the
    Proof
                                                               evidence under a clear and convincing standard, the
                                                               appellate court looks at all the evidence, in the light
    Governments > Local Governments > Elections
                                                               most favorable to the judgment, to determine if the trier
    Governments > State & Territorial                          of fact could reasonably have formed a firm belief or
    Governments > Elections                                    conviction that its finding is true. The appellate court
                                                               presumes that the trier of fact resolved disputed facts in
HN4[   ] Burdens of Proof, Clear & Convincing Proof            favor of its findings if a reasonable trier of fact could do
                                                               so. The appellate court disregards any contrary
To overturn an election, the contestant has the burden         evidence if a reasonable trier of fact could do so, but the
of proving by clear and convincing evidence that voting        appellate court does not disregard undisputed facts.
irregularities materially affected the election results. To
prove that the outcome is materially affected, the
contestant must show that illegal votes are counted or             Governments > Local Governments > Elections
an election official prevented eligible voters from voting,
failed to count legal votes, or engaged in other fraud,            Governments > State & Territorial
illegal conduct, or mistake.                                       Governments > Elections

                                                               HN7[    ] Local Governments, Elections
    Civil Procedure > Appeals > Standards of
                                                               Voting early by mail requires a voter to apply in writing
    Review > Abuse of Discretion
                                                               for a ballot and then mail the completed ballot to the
    Governments > State & Territorial                          election clerk in an official carrier envelope bearing the
    Governments > Elections                                    signature of the voter. Tex. Elec. Code Ann. § 86.005(c)
                                                               (2010). The ballot board may accept a ballot voted early
    Governments > Local Governments > Elections                by mail only if neither the voter's signature on the ballot
                                                               application nor the signature on the carrier envelope
HN5[   ] Standards of Review, Abuse of Discretion              certificate is determined to have been executed by a
                                                               person other than the voter, unless signed by a witness.
The standard of review in an appeal from a judgment in         Tex. Elec. Code Ann. § 87.041(b)(2) (2010). The law
an election contest is a determination whether the trial       thus requires those who vote early by mail to sign both
court abused its discretion. A trial court abuses its          the application and the carrier envelope.


                                                     Nicole Mitchell
                                                                                                          Page 3 of 10
                              318 S.W.3d 419, *419; 2010 Tex. App. LEXIS 3880, **1

                                                             from the voter or other witnesses regarding the similarity
                                                             of the signatures and may compare the signatures. The
    Governments > Local Governments > Elections              court may rely on its own comparison without the aid of
                                                             expert testimony.
    Governments > State & Territorial
    Governments > Elections

                                                                 Civil Procedure > Trials > Jury Trials > Province of
HN8[    ] Local Governments, Elections
                                                                 Court & Jury
When a contestant challenges a ballot board's rejection
                                                             HN11[    ] Jury Trials, Province of Court & Jury
of a ballot, the ballot board is presumed to have acted
properly and it is the contestant's burden to show by
                                                             The trier of fact is the exclusive judge of the credibility of
clear and convincing evidence the board erred.
                                                             the witnesses, and the weight to be given their
Discharging this burden requires the contestant to show
                                                             testimony. It observes and is free to take into account
the challenged voter is legally qualified to vote, and the
                                                             the candor and demeanor of the witnesses. It also is
ballot is properly cast. But if a ballot is rejected for a
                                                             free to make its own evaluation of the evidence in light
reason unrelated to the voter's qualification, it is
                                                             of the testimony.
unnecessary for the contestant to prove the qualification
of the challenged voter.

                                                                 Civil Procedure > Trials > Jury Trials > Province of
                                                                 Court & Jury
    Governments > Local Governments > Elections
                                                             HN12[    ] Jury Trials, Province of Court & Jury
    Governments > State & Territorial
    Governments > Elections
                                                             The law does not allow the appellate court to disturb the
                                                             fact finder's credibility determinations.
HN9[    ] Local Governments, Elections

A qualified voter is a voter who: (1) is age 18 years or
older; (2) is a United States citizen; (3) has not been          Governments > State & Territorial
finally adjudged by a court exercising probate                   Governments > Elections
jurisdiction totally mentally incapacitated or partially
mentally incapacitated without the right to vote; (4) has        Governments > Local Governments > Elections
not been finally convicted of a felony, or if so has
satisfied enumerated requirements; (5) is a resident of      HN13[    ] State & Territorial Governments, Elections
this state; and (6) is a registered voter. Tex. Elec. Code
Ann. § 11.002 (2010).                                        A voter who is unable to write or see due to a physical
                                                             disability or who is unable to read the language of the
                                                             ballot is eligible for assistance marking the ballot. Tex.
                                                             Elec. Code Ann. §§ 64.031, 86.010(a) (2010). A voter
    Governments > Local Governments > Elections              may be assisted in marking the ballot by a person of the
                                                             voter's selection other than the voter's employer, an
    Governments > State & Territorial
                                                             agent of the voter's employer, or an officer or agent of a
    Governments > Elections
                                                             labor union to which the voter belongs. Tex. Elec. Code
                                                             Ann. § 64.032(c) (2010). A person voting by mail may
HN10[    ] Local Governments, Elections
                                                             receive no greater assistance than a person voting at a
                                                             polling place. Tex. Elec. Code Ann. § 86.010(b) (2010).
The ballot board acts on the basis of the signatures
                                                             For purposes of Tex. Elec. Code Ann. § 86.010,
before it. The Texas Election Code does not require the
                                                             assisting a voter with a mail-in ballot, in the presence of
board to make inquiry of voters whose signatures do not
                                                             the ballot or carrier envelope, includes reading the ballot
match. But in an election contest based on ballots the
                                                             to the voter, directing the voter to read the ballot,
ballot board rejected on the ground of signature
                                                             marking the ballot, or directing the voter to mark the
deficiency, the district court may receive oral testimony
                                                             ballot. Tex. Elec. Code Ann. § 64.0321 (2010). A person

                                                   Nicole Mitchell
                                                                                                          Page 4 of 10
                               318 S.W.3d 419, *419; 2010 Tex. App. LEXIS 3880, **1

assisting the voter to prepare a ballot must provide his       The Texas Legislature has prescribed the class of
name, address and signature on the carrier envelope.           individuals a voter may not select to assist the voter in
Tex. Elec. Code Ann. § 86.013(c) (2010). The assistant         marking the ballot, and the excluded individuals does
must also sign the oath prescribed in Tex. Elec. Code          not include a candidate. Tex. Elec. Code Ann. §
Ann. § 64.034 included on the carrier envelope. Tex.           64.032(c) provides that on a voter's request, a voter
Elec. Code Ann. §§ 86.010(c), 86.013(f) (2010).                may be assisted by any person selected by voter other
                                                               than the voter's employer, an agent of the voter's
                                                               employer, or an officer or agent of a labor union to
                                                               which the voter belongs. Tex. Elec. Code Ann. §
    Governments > Local Governments > Elections
                                                               86.010(a) limits a person who may assist a voter in
    Governments > State & Territorial                          casting a ballot by mail to those provided by Tex. Elec.
    Governments > Elections                                    Code Ann. § 64.032(c).

HN14[    ] Local Governments, Elections
                                                                   Governments > State & Territorial
In the Texas Election Code there is no Texas Legislative           Governments > Elections
determination that a failure of a voter's assistant to
complete the required information on the carrier                   Governments > Local Governments > Elections
envelope requires rejection of the voter's ballot. Statute
expressly provides that the ballot of a voter who is           HN17[    ] State & Territorial Governments, Elections
assisted in violation of Tex. Elec. Code Ann. § 86.010(a)
or (b) may not be counted, but the Legislature has not         A voter voting by mail must place the marked ballot in
disqualified the ballot of a person whose assistant fails      the official ballot envelope, seal the ballot envelope,
to sign the oath, or provide his name and address, on          place the ballot envelope in the official carrier envelope,
the carrier envelope. Tex. Elec. Code Ann. § 86.010(d)         seal the carrier envelope, and sign the certificate on the
(2010).                                                        carrier envelope. Tex. Elec. Code Ann. § 86.005(c)
                                                               (2010). A person other than the voter who deposits the
                                                               carrier envelope in the mail or with a common or
                                                               contract carrier must provide the person's signature,
    Governments > Legislation > Interpretation
                                                               printed name, and residence address on the reverse
HN15[    ] Legislation, Interpretation                         side of the envelope. Tex. Elec. Code Ann. § 86.0051
                                                               (2010). The carrier envelope may be transported and
Long-settled rules of statutory construction restrain a        delivered to the early voting clerk only by mail or
court from reading words into the language chosen by           common or contract carrier. Tex. Elec. Code Ann. §
the legislature: every word of a statute must be               86.006(a) (2010). A ballot returned in violation of Tex.
presumed to have been used for a purpose. Likewise, a          Elec. Code Ann. § 86.006 may not be counted. Tex.
court believes every word excluded from a statute must         Elec. Code Ann. § 86.006(h) (2010).
also be presumed to have been excluded for a purpose.
This rule complements another general statutory
construction principle that courts should not insert words         Civil Procedure > Dismissal > Involuntary
in a statute except to give effect to clear legislative            Dismissals > Failure to Prosecute
intent. Additional language is read into a statute only
when it is necessary to give effect to the clear legislative   HN18[ ]   Involuntary        Dismissals,     Failure    to
intent.                                                        Prosecute

                                                               A trial court is empowered to dismiss a case for want of
                                                               prosecution either under Tex. R. Civ. P. 165a or its
    Governments > State & Territorial
                                                               inherent power to control its docket.
    Governments > Elections

    Governments > Local Governments > Elections
                                                                   Civil Procedure > Appeals > Standards of
HN16[    ] State & Territorial Governments, Elections              Review > Abuse of Discretion

                                                     Nicole Mitchell
                                                                                                              Page 5 of 10
                               318 S.W.3d 419, *419; 2010 Tex. App. LEXIS 3880, **1

    Civil Procedure > Dismissal > Involuntary                  Opinion by: James T. Campbell
    Dismissals > Failure to Prosecute
                                                               Opinion
HN19[    ] Standards of Review, Abuse of Discretion

The appellate court reviews a trial court's ruling on a
motion to dismiss for want of prosecution by the abuse          [*421] In this appeal of an election contest, appellant
of discretion standard.                                        and contestee below Jon Jones asks us to reverse the
                                                               trial court's judgment finding appellee and contestant
                                                               below Amado Morales the winner of the November 2006
                                                               general election for Floyd County commissioner precinct
    Civil Procedure > Trials > Bench Trials                    four, and render judgment declaring Jones the winner.
                                                               Finding the trial court did not abuse its discretion in
HN20[    ] Trials, Bench Trials                                adjudging Morales the winner, we will affirm its
                                                               judgment.
In non-jury cases, district court judges should, so far as
reasonably possible, ensure that all non-family law civil      Background
cases are brought to trial or final disposition within 12
months from appearance date. Tex. R. Jud. Admin.               The outcome of the commissioner's race between Jones
6(b)(2). According to Tex. R. Jud. Admin. 1, the Rules         and Morales was close. The initial canvas showed
are promulgated pursuant to Tex. Gov't Code Ann. §             Jones the winner by three votes. Morales requested a
74.024. Tex. R. Jud. Admin. 1. Tex. Gov't Code Ann. §          recount which tallied Jones the winner by four votes.
74.024 provides the supreme court may consider the             Morales then filed the underlying election contest in
adoption of rules relating to: (1) nonbinding time             December 2006. According to Morales's petition, the
standards for pleading, discovery, motions, and                county's early voting ballot board 1 wrongly rejected "5-7
dispositions; (2) nonbinding dismissal of inactive cases       mail-in ballots." The issues for Morales at trial devolved
from dockets, if the dismissal is warranted. Tex. Gov't        to whether the ballot board incorrectly rejected the mail-
Code Ann. § 74.024(c)(1),(2) (Supp. 2009). Thus, the           in ballots of voters Maldonado, De Los Santos, Castillo,
application of Tex. R. Jud. Admin. 6 is discretionary and      Olivo, and Vargas 2 and whether two voters [**2] were
non-binding. Moreover, circumstances may preclude              wrongly denied precinct four ballots. Each of the
adherence to the standards under especially complex            uncounted voters voted for Morales. Trial began in June
cases or those presenting special circumstances. Tex.          2008 but was recessed until September because
R. Jud. Admin. 6(e). Thus, Tex. R. Jud. Admin. 6 does          Vargas was hospitalized. Judgment was for Morales as
not fix a bright line demarking the outward limit of a trial   the court concluded the votes of the uncounted voters
court's discretion to control its docket.                      should have been included in the total and this omission
                                                               materially affected the outcome of the election. Thus
                                                               Morales was adjudged winner of the election by one
                                                               vote. This appeal followed.
    Civil Procedure > Appeals > Standards of
    Review > Abuse of Discretion                               Issue

HN21[    ] Standards of Review, Abuse of Discretion            Jones [*422] argues the trial court abused its
                                                               discretion by rendering judgment for Morales. Through
A trial court abuses its discretion when it acts without
reference to any guiding rules or principles, not when it
exercises that discretion in a manner different than a
                                                               1 The Election Code requires creation of an early voting ballot
reviewing appellate court might.
                                                               board and empowers it to screen early voting ballots. See Tex.
Counsel: Gary M. Bellair, CRAIG, TERRILL, HALE &               Elec. Code Ann. §§ 87.001-.005 & 87.041 (Vernon 2010). We
GRANTHAM, L.L.P., Lubbock, TX.                                 will cite the current version of the Election Code unless
                                                               otherwise indicated.
Paul E. Mansur, Attorney at Law, Denver City, TX.              2 In its findings of fact and conclusions of law, the trial court
                                                               collectively identified Maldonado, De Los Santos, Castillo,
Judges: PANEL B. Before QUINN, C.J., and
                                                               Olivo, and Vargas as "the uncounted voters." We also refer to
CAMPBELL and HANCOCK, JJ.                                      them collectively in that manner.

                                                     Nicole Mitchell
                                                                                                       Page 6 of 10
                              318 S.W.3d 419, *422; 2010 Tex. App. LEXIS 3880, **2

multiple sub-issues he contends the uncounted voters        question of law. Tuthill v. Southwestern Public Service
did not properly execute documents required for voting      Co., 614 S.W.2d 205, 211 (Tex.Civ.App.--Amarillo 1981,
by mail, Maldonado received improper assistance voting      writ ref'd n.r.e.). A document [**5] is not ambiguous if
by [**3] mail, the ballot of De Los Santos was              as worded it can be given a definite or certain legal
improperly transported to the early voting clerk, and his   meaning. Kelley-Coppedge, Inc. v. Highlands Ins. Co.,
motion to dismiss for want of prosecution was               980 S.W.2d 462, 464 (Tex. 1998). But a document is
improperly denied. By cross-issue, Morales argues the       ambiguous if its meaning is reasonably susceptible to
trial court abused its discretion by failing to find two    two or more reasonable interpretations. Id.
voters were improperly denied precinct four ballots.
                                                            We find the December 20 order ambiguous. On one
Analysis                                                    hand, it denies the underlying motion to dismiss for want
                                                            of prosecution. But on the other, it contains language
Appellate Jurisdiction                                      finally disposing of the case.

In the trial court, Jones filed a motion to dismiss the     Further, HN3[ ] because the order was not produced
case for want of prosecution. The clerk's record contains   following a conventional trial on the merits, we do not
an "Order Granting Motion to Dismiss" signed                presume its finality. Lehmann v. Har-Con Corp., 39
December 20, 2007, a judgment signed September 19,          S.W.3d 191, 199 (Tex. 2001). Rather, following
2008, and Jones's notice of appeal filed on September       summary disposition when finality is not clear we look to
19. If the case was dismissed for want of prosecution on    the order and the record to determine finality. Id. at 195.
December 20, we lack appellate jurisdiction. See Tex.       And from the record our inquiry is satisfied. At the
R. App. P. 26.1 & 26.3. Therefore, on our own motion,       hearing on the motion to dismiss, after the parties'
we first consider our jurisdiction of this appeal. See      presentations and in open court, the trial judge orally
Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275,       rendered an order denying Jones's motion to dismiss. It
277 (Tex.App.--Amarillo 1995, no writ) (HN1[ ]              then took up the motion to compel, which was granted
appellate court required to consider its jurisdiction sua   by an order signed some twenty days later. On April 25,
sponte if necessary).                                       the court set the case for trial and trial began on June
                                                            24. The case proceeded to final judgment [**6] without
In the course of discovery, Morales filed a motion to
                                                            recorded comment by [*423] the court or the parties
compel the county clerk to produce the ballots rejected
                                                            regarding the effect of the December 20 order. The only
by the ballot board. Jones responded with a motion to
                                                            reasonable interpretation of the December 20 order is
dismiss the case for want of prosecution. On
                                                            denial of Jones's motion to dismiss. The notice of
 [**4] December 20, 2007, the trial court heard the
                                                            appeal Jones filed following final judgment was timely.
motion. The court was presented an order containing
                                                            We have jurisdiction of the appeal.
language granting the motion and ordering that Morales
take nothing. By pen and ink, the trial court struck out    Whether Voting Irregularities Materially Affected the
the word "granted" and wrote "denied" immediately           Election Results.
above. But the court left undisturbed the sentence
ordering that Morales take nothing, and signed the          HN4[ ] "To overturn an election, the contestant has the
order. Thus the order purports to deny the motion to        burden of proving by clear and convincing evidence that
dismiss but concludes with language ordering the relief     voting irregularities materially affected the election
requested. Given this conflict in the order's language,     results." Tiller v. Martinez, 974 S.W.2d 769, 772
we must determine whether the order is ambiguous and        (Tex.App.--San Antonio 1998, pet. dism'd w.o.j.) (citing
if so the intention of the trial court.                     Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.--
                                                            San Antonio 1992, writ dism'd w.o.j.), and Guerra v.
HN2[ ] "The same rules of interpretation apply in           Garza, 865 S.W.2d 573, 576 (Tex.App.--Corpus Christi
construing the meaning of court orders as in                1993, writ dism'd w.o.j.)). "To prove that the outcome
ascertaining the meaning of other written instruments."     was materially affected, the contestant must show that
Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 474     illegal votes were counted or an election official
(Tex.App.--Fort Worth 2007, no pet.). A court may           prevented eligible voters from voting, failed to count
consider on its own motion whether a document is            legal votes, or engaged in other fraud, illegal conduct, or
ambiguous. In re Golden Peanut Co., LLC, 269 S.W.3d         mistake." Tiller, 974 S.W.2d at 772 (citing Tex. Elec.
302,    313-14     (Tex.App.--Eastland    2008,    orig.    Code Ann. § 221.003 (Vernon 1986) and Alvarez, 844
proceeding). Whether a document is ambiguous is a

                                                   Nicole Mitchell
                                                                                                                Page 7 of 10
                               318 S.W.3d 419, *423; 2010 Tex. App. LEXIS 3880, **6

S.W.2d at 242).                                                rejection of a [**9] ballot, the ballot board is presumed
                                                               to have acted [*424] properly and it is the contestant's
HN5[ ] "The [**7] standard of review in an appeal from         burden to show by clear and convincing evidence the
a judgment in an election contest is a determination           board erred. Alvarez, 844 S.W.2d at 244-45; see Tiller,
whether the trial court abused its discretion." Tiller, 974    974 S.W.2d at 773-74 (when contestant contends
S.W.2d at 772. A trial court abuses its discretion when it     election judge rejected votes that should have been
acts "without reference to any guiding rules and               accepted, rule has long presumed that each rejected
principles." Downer v. Aquamarine Operators, Inc., 701         ballot was cast by an illegal voter). Discharging this
S.W.2d 238, 241-42 (Tex. 1985).                                burden requires the contestant to show the challenged
                                                               voter was legally qualified to vote, and the ballot was
HN6[ ] The sufficiency of evidence supporting a trial          properly cast. 3 Tiller, 974 S.W.2d at 774; Alvarez, 844
court's finding of fact may be a relevant factor in            S.W.2d at 244. But if a ballot was rejected for a reason
determining whether the court abused its discretion. In        unrelated to the voter's qualification, it is unnecessary
re C.J.H., 79 S.W.3d 698, 702 (Tex.App.--Fort Worth            for the contestant to prove the qualification of the
2002, no pet.) (citing Beaumont Bank v. Buller, 806
                                                               challenged voter. 4 Tiller, 974 S.W.2d at 774; Alvarez,
S.W.2d 223, 226 (Tex. 1991)). In a non-jury case, when
                                                               844 S.W.2d at 244.
the appellate record includes both findings of fact and
conclusions of law and a reporter's record, we review          HN10[ ] The ballot board acts on the basis of the
the sufficiency of the evidence under the same                 signatures before it. Alvarez, 844 S.W.2d at 245. The
standards applied in cases tried by jury. Slusher v.           Election Code does not require the board to make
Streater, 896 S.W.2d 239, 241 (Tex.App.--Houston [1st          inquiry of voters whose signatures do not match. Id. But
Dist.] 1995, no writ). In reviewing the legal sufficiency of   in an election contest based on ballots the ballot board
the evidence under a clear and convincing standard, we         rejected on the ground of signature deficiency, the
look at all the evidence, in the light most favorable to the   district court may receive oral testimony from the voter
judgment, to determine if the trier of fact could              or other witnesses regarding the similarity of the
reasonably have formed a firm belief or conviction             signatures and may compare the signatures. Tiller, 974
 [**8] that its finding was true. In re J.F.C., 96 S.W.3d      S.W.2d at 777; Alvarez, 844 S.W.2d at 245. The court
256, 265-66 (Tex. 2002). We presume that the trier of          may rely on its own comparison without the aid of expert
fact resolved disputed facts in favor of its findings if a     testimony. [**11] Tiller, 974 S.W.2d at 777; Alvarez,
reasonable trier of fact could do so. Id. We disregard         844 S.W.2d at 245.
any contrary evidence if a reasonable trier of fact could
do so, but we do not disregard undisputed facts. In re         Here, each of the uncounted voters testified. Each
J.L., 163 S.W.3d 79, 85 (Tex. 2005).                           averred they signed the application and carrier
                                                               envelope, or in the case of Maldonado, marked the

Irregularity of Signatures

HN7[ ] Voting early by mail requires a voter to apply in       3 HN9[    ] A "qualified voter" is a voter who: (1) is age 18 years
writing for a ballot and then mail the completed ballot to     or older; (2) is a United States citizen; (3) has not been finally
the election clerk in an official carrier envelope bearing     adjudged by a court exercising probate jurisdiction totally
the signature of the voter. Alvarez, 844 S.W.2d at 244;        mentally incapacitated or partially mentally incapacitated
Tex. Elec. Code Ann. § 86.005(c) (Vernon 2010). The            without the right to vote; (4) has not been finally convicted of a
ballot board may accept a ballot voted early by mail           felony, or if so has satisfied enumerated requirements; (5) is a
"only if: . . . neither the voter's signature on the ballot    resident of this [**10] state; and (6) is a registered voter. Tex.
application nor the signature on the carrier envelope          Elec. Code Ann. § 11.002 (Vernon 2010).
certificate is determined to have been executed by a           4 On  appeal, Jones argues Morales failed to proffer clear and
person other than the voter, unless signed by a witness;       convincing proof that the uncounted voters were legally
. . . ." Tex. Elec. Code Ann. § 87.041(b)(2) (Vernon           qualified to vote. However, there is no record indication that
2010). The law thus requires those who vote early by           this issue was raised and joined for trial. The record does not
mail to sign both the application and the carrier              indicate the ballot board rejected any uncounted voter for lack
envelope. Alvarez, 844 S.W.2d at 245.                          of qualification. The trial court and parties tried the case with
                                                               the burden of proof allocated to Morales to establish that each
                                                               of the uncounted voters signed their mail-in ballot application
HN8[   ] When a contestant challenges a ballot board's
                                                               and ballot carrier envelope.

                                                     Nicole Mitchell
                                                                                                               Page 8 of 10
                               318 S.W.3d 419, *424; 2010 Tex. App. LEXIS 3880, **10

required signatory lines with a witnessed "X." As the trial     voter to read the ballot, marking the ballot, or directing
court candidly told counsel at closing argument, the            the voter to mark the ballot. 5 Tex. Elec. Code Ann. §
question of signature legitimacy presented a classic fact       64.0321 (Vernon 2010). A person assisting the voter to
issue between the uncounted voters' testimony and               prepare a ballot must provide his name, address and
Jones's expert who found a signature discrepancy in the         signature on the carrier envelope. Tex. Elec. Code Ann.
case of each uncounted voter. The trial court resolved          § 86.013(c) (Vernon 2010). The assistant must also sign
the issue in favor of Morales. In so doing, HN11[ ] it          the oath prescribed in § 64.034 included on the carrier
was the exclusive judge of the credibility of the               envelope. Tex. Elec. Code Ann. §§ 86.010(c), 86.013(f)
witnesses, and the weight to be given their testimony.          (Vernon 2010).
City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005). It observed and was free to take into account the        In its findings of fact, the trial court found each
candor and demeanor of the witnesses. It also was free          uncounted voter "was either of advanced age or
to make its own evaluation of the signatures on the             exhibited an obvious impediment or infirmity." Each
voters' applications and ballot envelopes in light of the       testified briefly. Maldonado, age eighty-eight, testified
testimony. Tiller, 974 S.W.2d at 777; Alvarez, 844              through an interpreter. Maldonado testified she signed
S.W.2d at 245 During its oral rendition of judgment, the        the application for ballot by mail and the ballot with an
trial court noted that "due to their infirmities," he doubted   "X." Her son witnessed her sign the application and her
most of the uncounted voters "would sign their                  daughter witnessed her sign the ballot. On cross-
signature[s] the same [**12] twice." Implicit in the            examination, Maldonado was uncertain whether
judgment of the trial court is the determination that each      Morales or one of Maldonado's daughters helped her
of the uncounted voters properly signed the application         complete the application. When asked what role
for ballot by mail and carrier envelope. The court heard        Morales played in assisting her to vote she responded,
testimony that, if believed, permitted it to form a firm        "Well, he-the role is that he came to my house, and my
belief or conviction that its finding [*425] was true.          daughters were there and they helped me, but he also
HN12[ ] The law does not allow us to disturb the trial          helped me." Neither party questioned Maldonado further
court's credibility determinations. City of Keller, 168         and Morales did not testify. Thus it is impossible to
S.W.3d at 819. We conclude the trial court did not              ascertain what assistance Morales provided Maldonado.
abuse its discretion in sustaining Morales's contest as to      Maldonado's carrier envelope does not identify Morales
the votes of the uncounted voters.                              as her assistant.

                                                                Jones points out that in Tiller the court found the trial
Improper Voter Assistance                                       court abused its discretion by validating the ballot of
                                                                assisted voter Trevino whose carrier envelope
We turn now to Jones's affirmative claim that illegal            [**15] certificate was not properly executed. 974
ballots were cast for Morales and these ballots should          S.W.2d at 775. According to Tiller, "If the person
be excluded from the final count. Jones argues that             assisting the voter fails to sign the carrier envelope
Maldonado received illegal assistance from Morales.             certificate, the ballot shall not be counted. See Tex.
                                                                Elec. Code Ann. §§ 86.005, 86.010(b), 86.012,
HN13[ ] A voter who is unable to write or see due to a          86.013(c) (Vernon Supp. 1998)." Tiller, 974 S.W.2d at
physical disability or who is unable to read the language        [*426] 775. After review of the cited sections of the
of the ballot is eligible for assistance marking the ballot.    Election Code, including the 2003 amendments to those
Tex. Elec. Code Ann. §§ 64.031, 86.010(a) (Vernon               sections, we find ourselves in disagreement on this
2010). A voter may be assisted in marking the ballot by         point with our sister court. Neither in the cited sections
a person of the voter's selection other than the voter's
employer, an agent of the voter's employer, or an officer
or agent of a labor union to [**13] which the voter             5 Maldonado's  carrier envelope contains the following printed
belongs. Tex. Elec. Code Ann. § 64.032(c) (Vernon               oath for a person assisting the voter:
2010). A person voting by mail may receive no greater
assistance than a person voting at a polling place. Tex.            I swear (or affirm) that I will not suggest by word, sign, or
Elec. Code Ann. § 86.010(b) (Vernon 2010). For                      gesture how the voter shall vote; I will confine my
                                                                    assistance to answering the voter's questions, to stating
purposes of § 86.010, assisting a voter with a mail-in
                                                                    propositions on the ballot, and to naming candidate (sic)
ballot, in the presence of the ballot or carrier envelope,
                                                                    and, if listed, their [**14] political parties; and I will
includes reading the ballot to the voter, directing the
                                                                    prepare the voter's ballot as the voter directs.

                                                      Nicole Mitchell
                                                                                                            Page 9 of 10
                              318 S.W.3d 419, *426; 2010 Tex. App. LEXIS 3880, **14

nor elsewhere in HN14[ ] the Election Code can we             had she voted at the polling place. Tex. Elec. Code Ann.
see a legislative determination that a failure of a voter's   § 86.010(b) (Vernon 2010). The trial court did not abuse
assistant to complete the required information on the         its discretion by not rejecting Maldonado's ballot for
carrier envelope requires rejection of the voter's ballot.    assertedly improper assistance.
As noted, statute expressly provides that the ballot of a
voter who is assisted in violation of subsections (a) or
(b) of § 86.010 may not be counted, but the legislature       Improper Transport of Ballot
has not disqualified the ballot of a person whose
assistant fails to sign the oath, or provide his name and     Jones next argues the mail-in ballot of uncounted voter
address, on the carrier envelope. Tex. Elec. Code Ann.        De Los Santos was improperly transported to the early
§ 86.010(d) (Vernon 2010).                                    voting clerk. Thus, he continues, the trial court abused
                                                              its discretion in validating the ballot.
HN15[ ] Long-settled rules of statutory construction
restrain us from reading words into the language chosen       On direct examination of De Los Santos, age sixty-
by the legislature:                                           seven, the following exchange occurred:

    [E]very [**16] word of a statute must be presumed         Q. Did you [cast your vote] by mail-in ballot, sir?
    to have been used for a purpose. Likewise, we
                                                              A. I don't remember. I think I got it in the mail, and then I
    believe every word excluded from a statute must
                                                              sign it and someone pick it up, I think. I think that's the
    also be presumed to have been excluded for a
                                                              way it happened.
    purpose. This rule complements another general
    statutory construction principle that courts should
                                                              HN17[ ] A voter voting [**18] by mail must place the
    not insert words in a statute except to give effect to
                                                              marked ballot in the official ballot envelope, seal the
    clear legislative intent.
                                                              ballot envelope, place the ballot envelope in the official
                                                              carrier envelope, seal the carrier envelope, and sign the
In re Bell, 91 S.W.3d 784, 790 (Tex. 2002) (citations
                                                               [*427] certificate on the carrier envelope. Tex. Elec.
omitted). See Cameron v. Terrell & Garrett., 618 S.W.2d
                                                              Code Ann. § 86.005(c) (Vernon 2010). A person other
535, 540 (Tex. 1981) (additional language is read into a
                                                              than the voter who deposits the carrier envelope in the
statute "only when it is necessary to give effect to the
                                                              mail or with a common or contract carrier must provide
clear legislative intent"). The legislature expressly has
                                                              the person's signature, printed name, and residence
provided that some actions require a voter's ballot to be
                                                              address on the reverse side of the envelope. Tex. Elec.
excluded, and we decline to add to the legislature's
                                                              Code Ann. § 86.0051 (Vernon 2010). The carrier
expressed list.
                                                              envelope may be transported and delivered to the early
                                                              voting clerk only by mail or common or contract carrier.
That it was Morales, a candidate, who provided some
                                                              Tex. Elec. Code Ann. § 86.006(a) (Vernon 2010). A
assistance to Maldonado does not require a different
                                                              ballot returned in violation of § 86.006 may not be
conclusion. HN16[ ] The legislature has prescribed the
                                                              counted. See Tex. Elec. Code Ann. § 86.006(h) (Vernon
class of individuals a voter may not select to assist the
                                                              2010).
voter in marking the ballot, and the excluded individuals
does not include a candidate. See § 64.032(c)                 County Clerk Marilyn Holcomb testified she was
(providing on voter's request, voter may be assisted by       overseer of the 2006 general election. Addressing the
any person selected by voter other than the voter's           procedure applied to mail-in ballots, Holcomb testified
employer, an [**17] agent of the voter's employer, or an      that the ballots rejected by the ballot board were each
officer or agent of a labor union to which the voter          returned by mail. On this record, we see no abuse of
belongs); § 86.010(a) (limiting persons who may assist        discretion in the trial court's refusal to reject the ballot of
voter casting ballot by mail to those provided by §           De     Los     Santos     for     its   asserted     improper
64.032(c)).                                                    [**19] transport.

Our review of the Election Code requires the conclusion       Motion to Dismiss for Want of Prosecution
Morales's failure to provide the required information and
sign on the carrier envelope does not alone exclude           Jones next argues the trial court abused its discretion by
Maldonado's ballot from the count of votes cast.              denying his motion to dismiss the case for want of
Maldonado was entitled to no greater assistance than          prosecution.


                                                    Nicole Mitchell
                                                                                                          Page 10 of 10
                                318 S.W.3d 419, *427; 2010 Tex. App. LEXIS 3880, **19

HN18[ ] A trial court is empowered to dismiss a case              argued he did not receive advance notice of the trial
for want of prosecution either under Texas Rule of Civil          court's intention to dismiss for want of prosecution and
Procedure 165a or its inherent power to control its               because the contest was not of a primary election or a
docket. Villarreal v. San Antonio Truck & Equip., 994             general or special election requiring a runoff, the
S.W.2d 628, 630 (Tex. 1999). HN19[ ] We review a                  Election Code did not require an accelerated schedule.
trial court's ruling on a motion to dismiss for want of           See Tex. Elec. Code Ann. § 232.012 (Vernon 2010). At
prosecution by the abuse of discretion standard.                  the hearing, the trial court expressed its cognizance of
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).                 Jones's contention and indicated the case probably
                                                                  should have been brought to trial more quickly. But it
Citing Rule 6 of the Texas Rules of Judicial                      resolved the issue in favor of allowing the case to
Administration, Jones argues public policy favors                 proceed. Jones reurged his motion on the first day of
prompt disposition of civil non-jury cases. HN20[ ] In            trial and it was again denied.
non-jury cases, district court judges "should, so far as
reasonably possible, ensure that all" non-family law civil        HN21[ ] A trial court abuses its discretion when it acts
"cases are brought to trial or final disposition . . . [w]ithin   without reference to any guiding rules or principles, not
12 months from appearance date." Tex. R. Jud. Admin.              when it exercises that discretion in a manner different
6(b)(2), reprinted in Tex. Gov't Code Ann., tit. 2, subtit.        [**22] than a reviewing appellate court might.
F-Appendix (Vernon Supp. 2009). According to Rule 1               Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 836
of the rules of judicial administration, the rules are            (Tex.App.--Amarillo 2009, no pet.) (citing Downer, 701
promulgated pursuant to § 74.024 of the Government                S.W.2d at 241-42). Under the standard by which we
Code. Id. at Rule 1. Section 74.024 [**20] provides "the          must review the trial court's decision, we cannot say it
supreme court may consider the adoption of rules                  abused its discretion by denying Jones's motion to
relating to: (1) nonbinding time standards for pleading,          dismiss for want of prosecution.
discovery, motions, and dispositions; (2) nonbinding
                                                                  Conclusion
dismissal of inactive cases from dockets, if the dismissal
is warranted; . . . ." Tex. Gov't Code Ann. §
                                                                  Finding the trial court did not abuse its discretion in
74.024(c)(1),(2) (Vernon Supp 2009). Thus, the
                                                                  sustaining Morales's contest and denying Jones's
application of Rule 6 is discretionary and non-binding.
                                                                  motion to dismiss, we affirm the judgment of the trial
See In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.--
                                                                  court. Because of our disposition, it is unnecessary to
Houston [1st Dist.] 1991, no writ) (juvenile case).
                                                                  consider Morales's cross-issue that two voters were
Moreover, circumstances may preclude adherence to
                                                                  improperly denied precinct four ballots. See Tex. R.
the standards under especially complex cases or those
                                                                  App. P. 47.1.
presenting special circumstances. Tex. R. Jud. Admin.
6(e), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F-       James T. Campbell
Appendix (Vernon Supp. 2009). Thus, Rule 6 does not
fix a bright line demarking the outward limit of a trial          Justice
court's discretion to control its docket.

In the trial court, Morales argued delay sprang in part             End of Document
from assignment of the case to an appointed judge. But
we find no record support for the claim. Rather, the
record shows limited pretrial activity. Jones served
requests for disclosure with his original answer on
December 14, 2006. Morales deposed Holcomb in
February 2007 but she refused to produce
 [**21] rejected ballots without an order of the court. In
June, Holcomb, her counsel, and counsel for the parties
reviewed documents in Holcomb's possession. She
again refused to produce the rejected ballots. [*428]
On December 11, Morales filed a motion to compel
production of the rejected ballots. Jones responded and
moved for dismissal for want of prosecution under the
court's inherent authority. By written response, Morales

                                                        Nicole Mitchell
     Positive
As of: March 23, 2018 5:04 PM Z


                                                 King v. Holland
                            Court of Appeals of Texas, Thirteenth District, Corpus Christi
                                  October 6, 1994, Delivered ; October 6, 1994, Filed
                                                 NUMBER 13-93-309-CV

Reporter
884 S.W.2d 231 *; 1994 Tex. App. LEXIS 2426 **
                                                             genuine issues of fact persisted as to when appellants
DELCER KING AND WIFE, RENDA KING, Appellants,
                                                             knew or should have known about the defects in
v. DAVID C. HOLLAND AND DAVID C. HOLLAND &
                                                             appellee's performance. Whether appellants were
COMPANY, P.C., D/B/A HOLLAND & STEPHENSON,
                                                             reasonable in attempting to negotiate with the buyer to
Appellees.
                                                             gain performance instead of investigating and
                                                             discovering appellee's alleged malfeasance was a
Subsequent History: [**1]          Rehearing     Overruled
                                                             disputed, material issue. The court affirmed the
October 6, 1994.
                                                             dismissal of the fraud claim and the denial of
Prior History: On appeal from the 329th District Court       reinstatement. The court found no abuse of discretion in
of Wharton County, Texas.                                    the dismissal of the case for want of prosecution
                                                             because the case languished for many years while
Disposition: We affirm the dismissal of the fraud claim.     appellants consistently neglected it.
We reverse the summary judgment rendered against all
of the Kings' other claims. We remand those causes of        Outcome
action for new trial.                                        The court affirmed the dismissal of appellant clients'
                                                             fraud claim against appellee attorney for want of
                                                             prosecution because the case languished for many
Core Terms                                                   years while appellants consistently neglected it. The
                                                             court reversed the summary judgment rendered against
summary judgment, want of prosecution, summary
                                                             all of appellants' other claims because genuine issues of
judgment motion, reinstate, severance, exhibits,
                                                             fact persisted and remanded those causes of action for
abatement, documents, security interest, court granted,
                                                             a new trial.
deposition, discovery, non-fraud, missing, causes, legal
malpractice, lienholder, reconsider, escrow, stock
                                                             LexisNexis® Headnotes
Case Summary

Procedural Posture
Appellant clients sought review of a judgment from the
                                                                 Civil Procedure > ... > Summary
329th District Court of Wharton County, Texas, which
                                                                 Judgment > Motions for Summary
granted defendant attorney's motion for summary
                                                                 Judgment > General Overview
judgment based on the statute of limitations on most of
appellants' claims. Appellants' remaining claims were
                                                                 Civil Procedure > Judgments > Summary
dismissed for want of prosecution.
                                                                 Judgment > General Overview
Overview
                                                                 Civil Procedure > Appeals > Summary Judgment
Partial summary judgment was granted to appellee
                                                                 Review > General Overview
attorney in an action for legal malpractice that was
brought by appellant clients and appellants' remaining
                                                                 Civil Procedure > ... > Summary
claim for fraud was dismissed for want of prosecution.
                                                                 Judgment > Burdens of Proof > General Overview
The court reversed the summary judgment because

                                                    Nicole Mitchell
                                                                                                        Page 2 of 8
                              884 S.W.2d 231, *231; 1994 Tex. App. LEXIS 2426, **1

    Civil Procedure > Judgments > Summary
    Judgment > Partial Summary Judgment
                                                                 Civil Procedure > ... > Summary
    Civil Procedure > ... > Summary                              Judgment > Burdens of Proof > General Overview
    Judgment > Entitlement as Matter of Law > General
    Overview                                                     Criminal Law & Procedure > Trials > Burdens of
                                                                 Proof > Defense
    Civil Procedure > Appeals > Standards of Review
                                                                 Governments > Legislation > Statute of
HN1[ ] Summary Judgment, Motions for Summary                     Limitations > Pleadings & Proof
Judgment
                                                                 Governments > Legislation > Statute of
When reviewing the grant of a motion for summary                 Limitations > General Overview
judgment, an appellate court must determine whether
the summary judgment proof establishes as a matter of        HN3[     ] Summary Judgment, Burdens of Proof
law the absence of a genuine issue of a material fact as
to one or more of the essential elements of a cause of       To prevail on summary judgment motion based on an
action. On disputed fact issues, the appellate court         affirmative defense like statute of limitations, the
takes all evidence favoring the nonmovant as true; the       defendant must conclusively establish every factual
appellate court indulges every reasonable inference and      element of that defense.
resolve all doubts in favor of the nonmovant.


                                                                 Civil Procedure > Dismissal > Involuntary
    Antitrust & Trade Law > ... > Trade Practices &              Dismissals > Appellate Review
    Unfair Competition > State Regulation > Scope
                                                                 Criminal Law & Procedure > ... > Standards of
    Civil Procedure > ... > Defenses, Demurrers &                Review > Abuse of Discretion > General Overview
    Objections > Affirmative Defenses > General
    Overview                                                     Civil Procedure > Dismissal > Involuntary
                                                                 Dismissals > General Overview
    Governments > Legislation > Statute of
    Limitations > Time Limitations                               Civil Procedure > Dismissal > Involuntary
                                                                 Dismissals > Failure to Prosecute
    Antitrust & Trade Law > Consumer
    Protection > Deceptive & Unfair Trade                        Civil Procedure > Appeals > Standards of
    Practices > General Overview                                 Review > Abuse of Discretion

    Torts > Malpractice & Professional                       HN4[     ] Involuntary Dismissals, Appellate Review
    Liability > Attorneys
                                                             An appellate court reviews a trial court's decision to
HN2[ ] Trade Practices & Unfair Competition, State           dismiss a case for want of prosecution for a clear abuse
Regulation                                                   of discretion.

The limitations periods of the Texas Deceptive Trade
Practices-Consumer Protection Act begin running when             Civil Procedure > Dismissal > Involuntary
the injury occurs or when the injured parties discover or,       Dismissals > General Overview
in exercising due diligence, should discover facts
establishing the elements of the cause of action. Tex.       HN5[     ] Dismissal, Involuntary Dismissals
Bus. & Com. Code Ann. § 17.565 (1986). The court may
decide as a matter of law that the injured party failed to   The trial court has the inherent power to dismiss cases
exercise reasonable diligence if the defendant provides      not prosecuted with due diligence. This inherent power
uncontroverted evidence of such failure.                     is in addition to the power to dismiss found in the rules
                                                             of procedure.

                                                    Nicole Mitchell
                                                                                                             Page 3 of 8
                               884 S.W.2d 231, *231; 1994 Tex. App. LEXIS 2426, **1

                                                               The Kings wanted to sell their farm to Wilhelm Degen,
                                                               but minimize the tax consequences to themselves. The
    Civil Procedure > Dismissal > Involuntary                  Kings wholly owned El Campo Well Services, Inc.
    Dismissals > Failure to Prosecute                          which, in turn, owned the farm, El Campo Equipment
                                                               Company, Inc., and cash. The Kings hired Holland to
    Civil Procedure > Dismissal > Involuntary                  construct the transaction to divest ECWS of the
    Dismissals > General Overview                              equipment company and the cash, then convey the land
                                                               through a stock transfer to Degen. Holland complied,
    Civil Procedure > Dismissal > Involuntary                  and the sale closed on April 15, 1981.
    Dismissals > Hearings on Dismissal
                                                               The Kings claim they demanded and Holland agreed to
HN6[ ]    Involuntary        Dismissals,      Failure    to    provide four things: a secured interest in the property, a
Prosecute                                                      provision to prohibit the buyer from encumbering the
                                                               real estate, a provision that the buyer timely pay existing
The rules require a court to reinstate a case dismissed        notes and taxes and furnish the Kings with notice of the
for want of prosecution upon finding after a hearing that      payments, and a secured interest in the stock. Before
the failure of the party or his attorney was not intentional   the closing, the Kings examined the documents that
or the result of conscious indifference but was due to an      were to provide these guarantees. Included among
accident or mistake or that the failure has been               these documents was the security escrow agreement
otherwise reasonably explained. Tex. R. Civ. P.                (SEA). The Kings complain that, despite Holland's
165a(3).                                                       assurances, the agreements failed to provide these
                                                               protections; two exhibits (A and B) to the SEA were
Counsel: For Appellants: Anthony F. Constant, Attorney         missing, apparently contributing to the failure. The Kings
at Law, Corpus Christi, TX. David A. Smith, Hartman,           also complained of Holland's failure [**3] to file a deed
Lapham & Smith, Attorneys at Law, Victoria, TX.                of trust to give notice of the Kings' security interest in the
For Appellees: David W. Corban, Fulbright & Jaworski,          land.
Attorneys at Law, Houston, TX. W. Wendell Hall, Renee
                                                               The transaction did not go as the Kings planned. Degen
A. Forinash, Fulbright & Jaworski, Attorneys at Law,
                                                               was thirty to forty-five days late with his first payment to
San Antonio, TX.
                                                               the Kings, due on April 15, 1982. He was also late with
                                                               payments to one of the original lienholders as well as to
Judges: Before Justices Kennedy, G. Hinojosa &
                                                               taxing authorities. In 1984, they renegotiated with
Yanez
                                                               Degen and got a new promissory note. That year, they
Opinion by: NOAH KENNEDY                                       attempted to use the SEA to foreclose against Degen
                                                               and discovered the nonexistence of their security
                                                               interest and the existence of liens established by others
Opinion                                                        after the transaction that were superior to their own
                                                               nonexistent one. The Kings contend that Holland's
                                                               malfeasance thereby damaged them.
[*233] OPINION                                                 They filed suit on April 15, 1985. The case was on the
                                                               court's docket for eight years. During that period, the
Opinion by Justice Kennedy
                                                               court sanctioned the Kings for discovery abuse and
We withdraw our opinion of August 18, 1994 and enter           other dilatory tactics. The Kings' counsel sought to
this opinion in its place. Delcer and Renda King sued          withdraw because they refused in 1986 and 1987 to
David C. Holland and David C. Holland & Company,               meet with him. The court placed the case on its
P.C., d/b/a Holland & Stephenson for legal malpractice.        dismissal docket for want of prosecution in 1987, 1989,
The court granted Holland's motion for summary                 1990, 1991, and 1992. The case was dismissed for
judgment based on statute of limitations against most of       want of prosecution in early 1992, but was reinstated.
the Kings' claims detailed below. The court then
                                                               On September [**4] 17, 1992, the court granted
dismissed the case for want of prosecution. We affirm in
                                                               Holland's motion for summary judgment against the
part and reverse [**2] and remand in part.
                                                               Kings' claims for legal malpractice, negligence, breach


                                                     Nicole Mitchell
                                                                                                        Page 4 of 8
                              884 S.W.2d 231, *233; 1994 Tex. App. LEXIS 2426, **4

of warranty, breach of fiduciary duty and violations of          summary judgment would not be reversible.
the Texas Deceptive Trade Practices-Consumer
Protection Act. The court announced that the fraud           Id. (emphasis added). We overruled the points of error
claim would survive and be severed from the others.          because we could not reach them. By contrast, the trial
The severance was never reduced to a written order,          court in the final judgment here memorialized the
however, and was not effective. The court signed an          granting of the amended motion for summary judgment,
order memorializing the summary judgment the next            then proceeded to dismiss the case. Unlike Aguilar, the
day.                                                         Kings raise points of error against both the dismissal
                                                             and the summary judgment. These facts critically
 [*234] The parties apparently never received notice of      distinguish the case from Aguilar and free us from its
this order. The Kings moved the court to reconsider the      holding.
summary judgment to allow them to refile their
response, this time with proper service to the opposing      We must also address Holland's claims that the wording
party, so that the response could be considered on           of the final judgment reveals that the court granted
appeal. The Kings also noted that reconsideration would      summary judgment against and, alternatively, dismissed
allow Holland to correct defects in the proof attached to    for want of prosecution the non-fraud claims. In its final
his motion for summary judgment. Soon after, Holland         judgment, the court first granted the motion for partial
filed an amended motion for summary judgment to              summary judgment and specified the causes of action
correct those defects.                                       extinguished thereby. In the next paragraph, the court
                                                             wrote that "this case is dismissed for want of
In January 1993, the court again placed this case on the     prosecution;" to so order, the court excised the
dismissal docket. At the hearing on the motion to            phrase [**7] "all remaining claims of the Plaintiff" and
dismiss, the court granted the motion to reconsider the      inserted "this case."
summary judgment, granted leave [**5] to file the
amended motion for summary judgment, and granted             We disagree that this substitution establishes dismissal
that amended motion. The court then stated that the          as an alternate basis for the extinction of the non-fraud
case was dismissed for want of prosecution. In April         causes eliminated by the summary judgment. The
1993, the court held a hearing on the motion to reinstate    sequence of the order shows that the court granted the
the case, and denied the motion.                             summary judgment before dismissing the case. The
                                                             causes eliminated by the summary judgment were not
Before reaching the merits of the point of error attacking   longer part of the case dismissed.
the summary judgment, we distinguish a similar case in
which we declined to address the merits of such points.      If the court adopted Holland's interpretation and
See Aguilar v. Maverick Eng'g Co., 752 S.W.2d 727            intended also to dismiss the non-fraud claims for want of
(Tex. App.--Corpus Christi 1988, no writ). In Aguilar, we    prosecution, the court erred. We reverse dismissals for
held that we could not reach such points when the court      want of prosecution for clear abuse of discretion. State
had dismissed the entire cause for want of prosecution.      v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984). The
Id. at 727-728. There, the plaintiff appealed the trial      Kings raise this issue under point of error three, by
court's grant of summary judgment against his claims.        which the Kings challenge the dismissal, and point of
Id. at 727. We dismissed his appeal for want of              error four, by which the Kings challenge the failure to
jurisdiction because a defendant's counterclaim              reinstate the dismissed claims. After the original
remained pending, rendering the summary judgment             summary judgment, the non-fraud claims were alive
interlocutory. Id. at 728. On remand, the trial court        only to the extent that the motion to reconsider and the
dismissed the entire cause for want of prosecution. Id.      amended motion for summary judgment resuscitated
On appeal, the plaintiff attacked only the summary           them. The Kings need not have appealed those causes
judgment. We wrote:                                          during the pendency of their [*235] motion to
                                                             reconsider, especially because [**8] they sought
    We are aware that appellant was not in a position to     reconsideration to improve the record on appeal; any
    prosecute his case since an [**6] interlocutory          failure to obtain a severance from the still viable claims
    summary judgment had been granted against him.           would not have altered this aspect of the case. The
    However, absent a point of error complaining of the      Kings did not fail to prosecute these claims following the
    order of dismissal, or argument concerning the           original grant of the motion for summary judgment. If the
    dismissal order, error, if any, in the interlocutory     court included the non-fraud claims in its dismissal, such


                                                   Nicole Mitchell
                                                                                                             Page 5 of 8
                              884 S.W.2d 231, *235; 1994 Tex. App. LEXIS 2426, **8

inclusion was therefore an abuse of discretion. To the      Holland does not argue for a specific date of discovery.
extent that the court dismissed the non-fraud claims        Instead, he contends that the Kings knew or should
after granting summary judgment against them, we            have known of his alleged malfeasance by April 14,
sustain point of error three. As there was no failure to    1983, two years before the suit was filed. He contends
prosecute, any failure to reinstate was error; we           that several events should have triggered the Kings'
therefore sustain point four.                               investigation and discovery of the alleged malfeasance:
                                                                 1. Their distrust of Holland that had developed by
By their first point of error, the Kings challenge the           the time of the signing, their suspicion that he was
court's grant of Holland's motion for partial summary            not fulfilling his duties to them, and their decision to
judgment. HN1[ ] When reviewing the grant of a                   stop payment on their check to him;
motion for summary judgment, we must determine                   2. his violation of a duty regarding the release of
whether the summary judgment proof establishes as a              stock under the agreement.
matter of law the absence of a genuine issue of a                3. the absence of Exhibits A and B to the Security
material fact as to one or more of the essential elements        Escrow Agreement upon the signing of the
of a cause of action. Gibbs v. General Motors Corp.,             agreement;
450 S.W.2d 827, 828 (Tex. 1970). On disputed fact
issues, we take all evidence favoring the nonmovant as           4. Degen's lateness of thirty to forty-five
true; we indulge every reasonable [**9] inference and            days [**11] in making his first payment on the note;
resolve all doubts in favor of the nonmovant. Nixon v.           5. Degen's default on his payment to an original
Mr. Property Management Co., 690 S.W.2d 546, 548-49              lienholder, Degen's failure to notify them of
(Tex. 1985).                                                     payment of the obligation, and the original
                                                                 lienholder's notice to the Kings that it would
The court granted Holland's motion in which he urged             foreclose; and
that a two-year statute of limitations barred the Kings'         6. Degen's failure to notify the Kings in 1982 and
claims of legal malpractice and DTPA violations. See             1983 that he had paid property taxes, lienholders,
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a)                     lease payments, or taxes on the lease, and their
(Vernon 1986) (held applicable to legal malpractice in           knowledge of the tax defaults.
Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988);
TEX. BUS. & COM. CODE ANN. § 17.565 (Vernon                 Holland contends that the Kings did nothing to
1986) (DTPA). HN2[ ] The limitations periods begin          investigate their rights, which investigation would have
running when the injury occurs or when the injured          led to their discovery of the [*236] absence of the
parties discover or, in exercising due diligence, should    protections they alleged he purported to provide.
discover facts establishing the elements of the cause of
                                                            Holland's evidence is controverted and fails to prove his
action. Medical Protective Co. v. Groce, Locke &
                                                            thesis as required. Holland provides excerpts from
Hebdon, 814 S.W.2d 124, 127 (Tex. App.--Corpus
                                                            depositions. The Kings provide Mr. King's affidavit. 1
Christi 1991, writ denied) (legal malpractice); TEX. BUS.
& COM. CODE ANN. § 17.565 (Vernon 1986) (DTPA).
The court may decide as a matter of law that the injured
                                                            1 Holland challenges the affidavit, noting that Mr. King fails to
party failed to exercise reasonable diligence if the
defendant provides uncontroverted evidence of such          unqualifiedly and positively represent the facts as disclosed in
failure. Wakefield v. Bevly, 704 S.W.2d 339, 346 (Tex.      his affidavit to be true and within his knowledge as required.
App.--Corpus Christi 1985, no writ).                        See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
                                                            Instead, the affidavit is only stated to be "on his oath" and
                                                            sworn before a notary public. The fact that the affidavit is
HN3[ ] To prevail on [**10] summary judgment motion
                                                            taken "on his oath" makes the statements therein assignable
based on an affirmative defense like statute of
                                                            as perjury, which is the goal. See id. His statements of what
limitations, the defendant must conclusively establish
                                                            he knew and when he knew it are inherently within his
every factual element of that defense. Swilley v.           knowledge. The affidavit is therefore not fatally defective. See
Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Because the          General Prod. Co. v. Black Coral Inv., 715 S.W.2d 121, 122-
court did not specify on which basis it granted the         23 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).
motion, we must affirm if any defensive theory survives
                                                            Holland also attacks many parts of the affidavit as self-serving
the motion. Rogers v. Ricane Enterprises, Inc., 772
                                                            and conclusory. He challenges the assertions of when the
S.W.2d 76, 79 (Tex. 1989).
                                                            Kings first discovered that Holland had harmed them. We
                                                            need not consider this line of attack because the statements

                                                   Nicole Mitchell
                                                                                                              Page 6 of 8
                                884 S.W.2d 231, *236; 1994 Tex. App. LEXIS 2426, **11

Though Mr. King stated in his deposition that the Kings           agreements failed to provide the protections they
distrusted Holland on the day of the signing, he went on          requested or that the exhibits which might provide the
to say that they had dinner, cooled off, and decided to           protections were missing. The exchange quoted by
trust in Holland's assurances and sign the documents.             Holland was as follows:
Mr. King said he stopped payment on the check to                      Q. Today you have indicated that Exhibits A and B
ensure that Holland would release an escrow account                   were left off of the security escrow agreement that
as promised; Holland was upset by this action, but                    was prepared that night. And I gather there was no
released [**12] the account in return for the Kings'                  Exhibit A and B to the security escrow agreement
certified check. These incidents do not prove as a                    when you signed it that evening, was there sir?
matter of law that the Kings should have investigated                 A. As far as I know there wasn't.
facts which would have led to their discovery of the
missing exhibits and the nonexistence of the security             This excerpt does not show that Mr. King knew upon
interest.                                                         signing the documents that the exhibits were missing,
                                                                  nor does it show when he learned or should have
 [**13] Neither does Holland's early release of stock             learned that fact. The evidence showed that the Kings
substantiate the summary judgment. Holland released               were confronted [**15] with more than fifty documents
stock related to the sale from a holding company in               on the day of the signing. The Kings testified [*237] at
1982 three to four months earlier than Mr. King thought           deposition that they went through the documents with
he should. Holland did not personally notify the Kings of         Holland and, because of their lack of expertise, relied on
this release. Mr. King said in his deposition that he             his assurances that everything was in order, including
thought this move was discourteous and violated the               the security interest that the missing exhibits would have
agreement. The Kings did not sue on this issue; Mr.               supplied. In his affidavit, Mr. King asserted that he did
King said in his affidavit that they did not sue because          not know that exhibits A and B were not attached, nor
they were not harmed by the early release. Regardless,            that the security interest they were to guarantee was
this incident does not establish that the Kings knew or           absent, until 1984. The quoted exchange shows only
should have known of Holland's failure to include                 that, at the time of the deposition, Mr. King did not
documents establishing a security interest in the real            believe that the exhibits had been attached.
estate.
                                                                  Genuine issues of fact persist as to when the Kings
The Kings admit that they knew of Degen's defaults on             knew or should have known about the defects in
payments to them, on taxes, and on payments to the                Holland's performance. Whether the Kings were
original lienholder, but this knowledge does not prove            reasonable in attempting to negotiate with the buyer to
that, as a matter of law, they should have discovered             gain performance instead of investigating and
the deficiencies in the documents. The defaults do not            discovering Holland's alleged malfeasance is a
by themselves show that the Kings lacked a security               disputed, material issue. We sustain point of error one.
interest. Mr. King stated in his affidavit that Degen
eventually made his 1982 and 1983 payments. Mr. King              By points of error two and three, the Kings attack the
averred that he talked with Degen or his office                   court's dismissal of the case for want of prosecution.
throughout 1982, 1983, [**14] and 1984, keeping                   HN4[ ] We review the court's decision for a clear
abreast of why Degen was not making the required                  abuse of discretion. Rotello, 671 S.W.2d at 508-09.
payments. Mr. King stated that Degen assured him that             HN5[ ] The [**16] trial court has the inherent power to
he would make the payments. Mr. King stated that they             dismiss cases not prosecuted with due diligence. Id.
were trying to work with Degen to help him carry out the          This inherent power is in addition to the power to
agreement until early 1984, when they decided they                dismiss found in the rules of procedure. See TEX. R.
must foreclose on the land. Only then did they learn of           CIV. P. 165a(4); City of Houston v. Thomas, 838
the deficiencies in Holland's performance, Mr. King said.         S.W.2d 296, 297 (Tex. App.--Houston [1st Dist.] 1992,
                                                                  no writ); see also Torres v. Rios, 869 S.W.2d 555, 556-
The centerpiece of Holland's evidence, properly viewed,           57 (Tex. App.--Corpus Christi 1993, no writ). This case
fails to establish that the Kings knew that the                   must have been dismissed under the court's inherent
                                                                  power because it does not fit the profile of either
                                                                  subdivision of the procedural rules. We must, therefore,
we cite in the text are statements of fact as to when the Kings   consider the length of time the case was on file, the
discovered the missing aspects of the agreement rather than       extent of activity in the case, whether a trial setting was
their discovery of "harm."

                                                        Nicole Mitchell
                                                                                                                 Page 7 of 8
                                884 S.W.2d 231, *237; 1994 Tex. App. LEXIS 2426, **16

requested, and the existence of reasonable excuses for            dismissed the case for want of jurisdiction.
the delay. Rotello, 671 S.W.2d at 509.
                                                                  We find no abuse of discretion in the dismissal. The
The case's eight-year tenure on the docket and the                case languished for many years while the Kings
Kings' previous dilatoriness set out above and apparent           consistently neglected it. They had not requested a trial
from the record support heightened scrutiny of the                under Wharton County local rules. Though their
Kings' actions after the reinstatement. The record                prosecution had seemed jump-started after the
reflects more activity than Holland asserts occurred.             reinstatement of the case, [**19] it again ground to a
Contrary to Holland's assertion here and in the trial court       halt. The Kings may have understood the court to have
that the Kings took only one deposition 1992, the record          severed and abated the fraud action, but they took no
indicates that the [**17] Kings participated in at least          steps to formalize those orders or to see that they were
four depositions during May and June 1992. A                      in the court's file; Holland provides some proof that the
mediation attempt in August failed. Holland concedes              abatement never existed. While in other cases such
that the Kings nonsuited some defendants during the               confusion might be excused, we cannot say that the
summer. All activity appears to have screeched to a halt          court abused its discretion in declining to excuse it in a
following the motion to reconsider the September 17,              case with a history of such neglect. We overrule points
1992 grant of the motion for partial summary judgment.            two and three as they relate to the claims not eliminated
                                                                  by the summary judgment.
The court's notes from that unrecorded hearing show
that its grant of the partial motion left the fraud action        Similarly, we affirm the court's decision not to reinstate
alive. The notes show that the court granted a                    the case. By point four, the Kings contend that the
severance of the causes covered by the summary                    nonreinstatement was error. The procedural rule
judgment. The notes also mention a pretrial scheduling            standard applies even to cases that courts dismiss
order. The notes are silent as to any abatement of the            under their inherent powers. See TEX. R. CIV. P.
fraud action.                                                     165a(4). HN6[ ] The rules require a court to reinstate a
                                                                  case dismissed for want of prosecution
The Kings' attorney said in his bill of exceptions that he            upon finding after a hearing that the failure of the
recalled that the court accepted his argument that an                 party or his attorney was not intentional or the result
abatement of the fraud action would be more efficient.                of conscious indifference but was due to an
He said he requested an abatement so that, in the event               accident or mistake or that the failure has been
the summary judgment was reversed, those actions                      otherwise reasonably explained.
could be tried at one proceeding with the fraud claims.
He also refers for support to the following passage from          TEX. R. CIV. P. 165a(3). As we stated above, the Kings'
the Defendants' Opposition to Plaintiffs' Motion to Retain         [**20] long neglect of this case justifies the court's
Case on Docket, "Plaintiffs' counsel asked the Court to           dismissal for their failure either to formalize the
refrain from entering [**18] any docket control orders or         severance and abatement or to see that such orders
trial settings until plaintiffs could lodge their interlocutory   were in the court's file. Even accepting the Kings'
appeal. The Court merely acceded to plaintiffs' request."         characterization of the September hearing as accurate,
                                                                  we cannot say that the court abused its discretion in
Holland's attorney filed an affidavit along with his              implicitly finding that their inactivity in this case following
objections to the bill. In it, he recalled the severance of       that hearing rose to the level of conscious indifference
the claims, but remembers requesting an exchange of               given the history of neglect and recent dismissal and
draft orders between himself and the Kings' attorney.             reinstatement. We overrule point four.
Holland's attorney sent a proposed order granting the
summary judgment and requested a draft of the                     We affirm the dismissal of the fraud claim. We reverse
severance order. He said he never received the draft.             the summary judgment rendered against all of the Kings'
He also avers that the Kings did not request, nor did the         other claims. We remand those causes of action for new
court order, an abatement of the fraud claim. He                  trial.
contends that the court agreed to postpone the entry of
the scheduling order because the Kings agreed to a                Noah Kennedy
speedy appeal of the summary judgment.
                                                                  Justice
The court entered no order regarding severance or
                                                                  Opinion delivered and filed this the 6th day of October,
abatement. Five months later, the [*238] court

                                                        Nicole Mitchell
                                                                           Page 8 of 8
                   884 S.W.2d 231, *238; 1994 Tex. App. LEXIS 2426, **20

1994.


 End of Document




                                      Nicole Mitchell
     Neutral
As of: March 23, 2018 5:05 PM Z


                                              Lessard v. Velsicol
                       Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg
            April 23, 2009, Memorandum Opinion Delivered; April 23, 2009, Memorandum Opinion Filed
                                               NUMBER 13-00-00113-CV

Reporter
2009 Tex. App. LEXIS 2811 *; 2009 WL 1089362
                                                              1990, alleging that it was responsible for the chemical
MICHAEL JOSEPH LESSARD, DOROTHY ELAINE
                                                              contamination of their home. In 1999, the trial court
LESSARD, MONICA JEAN LESSARD, AND JEANNIE
                                                              dismissed the action for want of prosecution. On appeal,
MARIE LESSARD, Appellants, v. VELSICOL
                                                              the court held that the trial court did not abuse its
CHEMICAL CORPORATION, Appellee.
                                                              discretion in dismissing the action because the
                                                              homeowners were provided adequate notice of the trial
Subsequent History: Rehearing denied by Lessard v.
                                                              court's intent to dismiss for want of prosecution, as the
Velsicol Chem. Corp., 2009 Tex. App. LEXIS 6042 (Tex.
                                                              chemical company's joint motion to dismiss put the
App. Corpus Christi, June 11, 2009)
                                                              homeowners on notice that their claims could be
Petition for review denied by Lessard v. Velsicol Chem.       dismissed for want of prosecution by the trial court, and
Corp., 2009 Tex. LEXIS 669 (Tex., Sept. 11, 2009)             by conducting a hearing on the motion, the trial court
                                                              afforded the homeowners' an opportunity to be heard.
Prior History: [*1] On appeal from the 343rd District         The record did not show that the homeowners were
Court of Live Oak County, Texas.                              diligent in prosecuting their claims because nearly nine
                                                              years elapsed between the date the case was first filed
                                                              and the day the trial court dismissed it, the parties
Lessard v. Savage Pest Control, 2000 Tex. App. LEXIS          neither resolved their claims nor agreed on a visiting
3819 (Tex. App. Corpus Christi, June 8, 2000)                 judge to hear the case as ordered by the trial court in
                                                              1993, and the homeowners' counsel's employment
Core Terms                                                    status did not justify the delay. The trial court did not err
                                                              by denying the homeowners' motion for reinstatement of
trial court, notice, want of prosecution, parties, visiting   the action.
judge, reinstatement, pet, motion to reinstate, motion to
                                                              Outcome
dismiss, prosecuting, abused, law firm, inherent power,
                                                              The judgment was affirmed.
diligence, lawsuit, requirements, proceedings,
discovery, mediation, cases, opportunity to be heard,
due process, no writ, appointment                             LexisNexis® Headnotes

Case Summary

Procedural Posture
                                                                  Civil Procedure > Appeals > Standards of
Appellant homeowners challenged a judgment of the                 Review > Abuse of Discretion
343rd District Court of Live Oak County, Texas, granting
                                                                  Civil Procedure > Dismissal > Involuntary
a motion to dismiss their negligence action for want of
                                                                  Dismissals > Failure to Prosecute
prosecution under Tex. R. Civ. P. 165a in favor of
appellee chemical corporation.
                                                              HN1[     ] Standards of Review, Abuse of Discretion
Overview
                                                              An appellate court reviews a trial court's dismissal of a
The homeowners sued the chemical corporation in
                                                              suit for want of prosecution under an abuse of discretion

                                                     Nicole Mitchell
                                                                                                            Page 2 of 10
                                            2009 Tex. App. LEXIS 2811, *1

standard. The trial court abuses its discretion when it        prosecution is a due process violation and requires
acts without reference to any guiding rules or principles      reversal. However, participation in a hearing on a
or if the action is arbitrary or unreasonable.                 motion to reinstate cures any due process concerns for
                                                               the trial court's failure to provide notice of its intent to
                                                               dismiss for want of prosecution.
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Failure to Prosecute
                                                                   Civil Procedure > Dismissal > Involuntary
HN2[ ]    Involuntary        Dismissals,      Failure    to        Dismissals > Failure to Prosecute
Prosecute
                                                               HN5[ ]    Involuntary         Dismissals,      Failure     to
A trial court may dismiss a case for want of prosecution:      Prosecute
(1) when a party fails to appear at a hearing or trial; (2)
when the case has not been disposed of within the              See Tex. R. Civ. P. 165a(1).
Supreme Court's time standards; or (3) under the trial
court's inherent power to dismiss, when the case has
not been prosecuted with due diligence. Tex. R. Civ. P.
                                                                   Civil Procedure > Dismissal > Involuntary
165a. The trial court's authority to dismiss is derived
                                                                   Dismissals > Failure to Prosecute
both from Rule 165a and from its inherent power to
manage its own docket.                                         HN6[ ]    Involuntary         Dismissals,      Failure     to
                                                               Prosecute

    Civil Procedure > Dismissal > Involuntary                  A dismissal for want of prosecution may be obtained by
    Dismissals > Failure to Prosecute                          the motion of the trial court or on the motion of any party
                                                               to the suit. Furthermore, the Texas Supreme Court has
HN3[ ]    Involuntary        Dismissals,      Failure    to    held that either notice of the trial court's intent to dismiss
Prosecute                                                      or notice of the actual order of dismissal is sufficient
                                                               notice.
When an unreasonable delay in the prosecution of a
case occurs, it is presumed that the case has been
abandoned. If that delay is not sufficiently explained, the
                                                                   Constitutional Law > ... > Fundamental
presumption of abandonment is conclusive and the case
                                                                   Rights > Procedural Due Process > Scope of
will be dismissed. A trial court, in exercising its inherent
                                                                   Protection
authority, may consider periods of activity, intervals of
inactivity, reasons for lack of attention, and the passage     HN7[ ] Procedural           Due     Process,     Scope     of
of time to determine whether the delay was reasonable.         Protection

                                                               All that due process requires is that a party be given
    Civil Procedure > Dismissal > Involuntary                  notice of the time and substance of the hearing, and an
    Dismissals > Failure to Prosecute                          opportunity to present arguments at the hearing.

HN4[ ]    Involuntary        Dismissals,      Failure    to
Prosecute                                                          Civil Procedure > Dismissal > Involuntary
                                                                   Dismissals > Failure to Prosecute
Tex. R. Civ. P. 165a(1) provides that a party must be
provided with notice and an opportunity to be heard            HN8[ ]    Involuntary         Dismissals,      Failure     to
before a trial court may dismiss a case for want of            Prosecute
prosecution under either Rule 165a or its inherent
power. The requirements of notice and a hearing are            A trial court may consider periods of activity, intervals of
necessary to ensure that the dismissed claimant                inactivity, reasons for lack of attention, and the passage
received due process. The failure to provide adequate          of time in determining whether a case should be
notice of the trial court's intent to dismiss for want of

                                                     Nicole Mitchell
                                                                                                                  Page 3 of 10
                                              2009 Tex. App. LEXIS 2811, *1

dismissed for want of prosecution. Furthermore, when              By two issues, the Lessards argue that the trial court
there is an unreasonable delay in the prosecution of the          abused its discretion: (1) in dismissing their claims for
case, it is presumed that the case has been abandoned             want of prosecution; and (2) in refusing to reinstate their
unless the dismissed claimant provided a sufficient               claims pursuant to Texas Rule of Civil Procedure
justification for the delay.                                      165a(3). See TEX. R. CIV. P. 165a(3). We affirm.


                                                                  I. BACKGROUND
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Failure to Prosecute                             This dispute involves damages arising from the
                                                                  chemical contamination of several residences in Live
HN9[ ]    Involuntary         Dismissals,       Failure     to    Oak County, Texas. Originally, the dispute involved
Prosecute                                                         numerous parties; however, most of the parties have
                                                                  settled their claims, leaving only the Lessards, Velsicol,
Tex. R. Civ. P. 165a(3) sets out the procedure for
                                                                  and Fruit of the Loom as parties.
reinstating cases dismissed for want of prosecution. A
trial court is compelled to reinstate a case upon finding         The Lessards filed their original petition on December
after a hearing that the failure of the party or his attorney     31, 1990, alleging, among other things, that Velsicol and
was not intentional or the result of conscious                    Fruit of the Loom were negligent in designing,
indifference but was due to an accident or mistake or             manufacturing, and marketing Gold Crest C-100
that the failure has been otherwise reasonably                    Emulsifiable Concentrate, the chemical which allegedly
explained. In order to determine whether the trial court          contaminated      the    Lessards'     residence.     The
abused its discretion in refusing reinstatement, an                [*3] Lessards' lawsuit was one of three lawsuits against
appellate court reviews the entire record and determine           the same set of defendants--trial court cause numbers
whether the evidence was sufficient to find that the              7202-C (filed by the Episcopal Church Corporation of
failure of the party was not due to accident, mistake, or         West Texas), 7205-C (filed by the Reynolds family), and
other reasonable explanation. The party requesting                7214-C (filed by the Lessard family). The trial court
reinstatement has the burden to bring forth a record              consolidated the three lawsuits on December 16, 1991.
establishing that reinstatement was required.
                                                                  On June 24, 1993, the trial court ordered that all further
Judges: Before Chief Justice Valdez and Justices                  proceedings and the trial of the matter were to be
Garza and Vela. Memorandum Opinion by Justice                     conducted before a visiting judge. The trial court further
Garza.                                                            ordered the parties to "agree upon the identity of a
                                                                  visiting judge within ten days from the date of this
Opinion by: DORI CONTRERAS GARZA                                  Order." The parties never agreed on which visiting judge
                                                                  would conduct further proceedings.
Opinion
                                                                  On April 22, 1994, all of the parties agreed to a joint
                                                                  motion to continue the upcoming May 23, 1994 trial

MEMORANDUM OPINION                                                of James S. Savage, deceased; Charyle M. Merritt, Sammey
                                                                  Allison Merritt; the unknown heirs of James S. Savage; James
Memorandum Opinion by Justice Garza                               S. Savage d/b/a Savage Pest Control; Robert D. Nogueria,
                                                                  individually and as executor of the estate of James S. Savage
Appellants, Michael Joseph Lessard, Dorothy Elaine                (collectively the [*2] "Savage parties"). In fact, the Savage
Lessard, Monica Jean Lessard, and Jeannie Marie                   parties jointly filed with Velsicol the motion to dismiss for want
Lessard, appeal from the trial court's granting of a              of prosecution complained about on appeal. This Court, on
motion to dismiss for want of prosecution in favor of             June 8, 2000, issued an order dismissing the appeal as to the
                                                                  Savage parties because the Savage parties and the Lessards
appellee, Velsicol Chemical Corporation ("Velsicol"). 1
                                                                  had settled their claims. As a result, this Court severed the
                                                                  Lessards' claims as to the Savage parties into a separate
                                                                  appellate cause number--13-00-349-CV--and dismissed the
1 The record reflects that the following parties were once part   appeal. The Lessards' remaining issues against Velsicol
of this appeal as appellees: Savage Pest Control; Leslie          remained docketed under the current appellate cause number-
Savage Bowles, individually and as the executor of the estate     -13-00-113-CV.

                                                        Nicole Mitchell
                                                                                                                   Page 4 of 10
                                                 2009 Tex. App. LEXIS 2811, *2

setting, which the trial court granted. Velsicol, Fruit of            suggested that the trial court select a visiting judge if
the Loom, and the Savage parties filed a motion for the               Velsicol and the Savage parties objected to his list of
appointment of a visiting judge on July 28, 1994,                     visiting judges. Nowhere in the response did counsel for
requesting that the trial court appoint a visiting judge              the Lessards explain why the case had been delayed for
since the Lessards and the other plaintiffs had rejected              over nine years.
each of the proposed visiting judges named on the
defendants' list without offering a list of their own. The            On November 17, 1999, the trial court conducted a
record does not reflect [*4] that the trial court ruled on             [*6] hearing on Velsicol and the Savage parties' joint
this motion.                                                          motion to dismiss. At the hearing, counsel for the
                                                                      Savage parties noted that this matter would take more
On February 28, 1997, the trial court entered an agreed               than one week to try and alleged that the Lessards had
order of referral appointing Steven W. Fieldcamp as the               "basically sat on their hands for nine years in this case."
mediator for the claims. 2 After mediation in 1997,                   Counsel for Velsicol stated that discovery in the case
Velsicol, Fruit of the Loom, and the other defendants                 had not been updated since 1992 and that he was not
settled with the plaintiffs in trial court cause numbers              afforded the opportunity to finish a deposition of the
7202-C and 7205-C, leaving only the Lessards' claims                  Lessards' expert witness. Velsicol's counsel also
unresolved.                                                           referenced a recent claim brought by the Lessards for
                                                                      damages        associated       with    "painful,    sensitive
On March 14, 1999, the Lessards filed a motion with the               polyneuropathy" and that the Lessards had not
trial court requesting the trial court to set a docket                participated in discovery regarding that claim. In
control conference by telephone for the purpose of                    explaining why the case had taken so long to prosecute,
scheduling a trial date. The trial court set the docket               counsel for the Lessards noted the following:
control conference for March 23, 1999, and sent notice                     [Counsel for the Lessards]: All right. I have filed a
to the parties. It is not clear from the record before us                  response in this case. As I said, Your Honor, I
when the new trial setting was scheduled.                                  originally represented the Lessards. I have been
                                                                           out of this case for five years. I've just been rehired.
Nevertheless, on October 19, 1999, Velsicol and the
                                                                           My first priority is to go forward with this case.
Savage parties filed a joint motion to dismiss the
                                                                           ....
Lessards' claims for want of prosecution. In this filing,
Velsicol and the Savage parties argued that they had                      [Counsel for the Lessards]: I left the law firm, Your
provided the [*5] Lessards with lists of visiting judges                  Honor, and went into practice elsewhere. And in
on numerous occasions and that the Lessards failed to                     fact, I tried to retire from the practice of law first
do anything. Velsicol and the Savage parties also                          [*7] of the year and found out I just couldn't do that.
alleged that the case had been outstanding for nine                       And so Mr. Spagnoletti asked me to come back and
years at the time of filing and that the Lessards were                    clear up some cases including this one.
"the only outstanding claims despite mediation attempts                   ....
and numerous letters sent to the Plaintiffs on behalf of                  [Counsel for the Lessards]: Now that I'm on the
the Defendants to obtain a visiting judge."                               case, I'll see all that is done and I will do it
                                                                          expeditiously just as soon as it can possibly be
On November 12, 1999, the Lessards filed a response
                                                                          done. And I'll see that it's done.
to the joint motion to dismiss for want of prosecution.
                                                                          To correct what Counsel said, originally I
The Lessards alleged that a jury trial of their claims
                                                                          represented the Lessards when I was with the
would only take a week and requested a trial setting for
                                                                          Kleberg Law Firm in Corpus Christi. I have not been
the first available week after February 2000. Counsel for
                                                                          associated with this case. I turned this case over to
the Lessards noted that he was recently employed by
                                                                          Mr. Spagnoletti about four or five years ago. I
the law firm of Spagnoletti & Associates for the specific
                                                                          haven't been associated with the case in the last
purpose of prosecuting this matter, and he subsequently
                                                                          three years.
proposed a new list of visiting judges and, alternatively,
                                                                               I'm back here. I know the Lessards personally
                                                                               and I originally represented them and I would--
                                                                               just to have their day in court or get this thing
2 By signing the February 28, 1997 agreed order of referral,                   concluded for them. And that's all I ask, Your
the trial court ostensibly denied the July 28, 1994 motion for                 Honor, and I will diligently do whatever this
the appointment of a visiting judge filed by Velsicol, Fruit of the
                                                                               Court suggests or wants me to do with regards
Loom, and the Savage parties.

                                                           Nicole Mitchell
                                                                                                               Page 5 of 10
                                            2009 Tex. App. LEXIS 2811, *7

         [sic] to resolving it, and that'll be done. I         March 13, 2000.
         promise Your Honor that.
     ....                                                      On December 29, 1999, Fruit of the Loom filed a
     THE COURT: They never did move the cases when             voluntary petition for relief under Chapter 11 of the
     you left.                                                 United States Bankruptcy Code in the United States
     [Counsel for the Lessards]: I know. I intend to move      Bankruptcy Court for the District of Delaware. This Court
     it now, Your Honor.                                       was notified of Fruit of the Loom's bankruptcy filing on
The trial court subsequently dismissed the Lessards'           July 24, 2000. See TEX. R. APP. P. 8.1. On August 17,
claims for want of prosecution.                                2000, this Court stayed the Lessards' appeal pursuant
                                                               to the automatic stay imposed by the bankruptcy
On [*8] December 16, 1999, the Lessards filed various           [*10] code. See 11 U.S.C. § 362(a). The Lessards filed
post-judgment motions, including a verified motion to          a motion to reinstate their appeal on June 8, 2007,
reinstate, arguing that the trial court abused its             noting that the bankruptcy proceedings involving Fruit of
discretion in dismissing the case and that rule 165a of        the Loom had concluded on March 21, 2007. See TEX.
the Texas Rules of Civil Procedure mandated                    R. APP. P. 8.3(a). 4 On June 28, 2007, we granted the
reinstatement. See TEX. R. CIV. P. 165a. Included with         Lessards' motion to reinstate their appeal. This appeal
their verified motion to reinstate was an affidavit            followed.
executed by Francis I. Spagnoletti in which he stated
the following:
     My firm has continuously represented Plaintiffs [the      II. ANALYSIS
     Lessards] since obtaining this case. The case was
     mediated in 1997, but no settlement could be
     reached. Although it is true that the case has now
     been on file for nine years (1990-1999), there are        4 Rule 8.3(a) of the Texas Rules of Appellate Procedure
     several reasons that explain this passage of time:        provides the following:
     First, as is customary at my firm, I assigned this
                                                                    If a case has been suspended by a bankruptcy filing, a
     case to associates, who then prepare the case as               party may move that the appellate court reinstate the
     necessary for trial, including propounding and                 appeal if permitted by federal law or the bankruptcy court.
     responding to discovery, obtaining medical records,            If the bankruptcy court has lifted or terminated the stay, a
     and consulting with expert witnesses. Over the                 certified copy of the order must be attached to the
     years that this case has been on file, the handling            motion.
     associate changed on several occasions. This fact
     has resulted in an unintended delay in handling.          TEX. R. APP. P. 8.3(a). In the instant case, the Lessards
                                                               included a copy of the status report from Fruit of the Loom's
    Second, this case is a consolidation of three              bankruptcy proceedings as compiled by the PACER Docket
    separate lawsuits with separate [*9] sets of               Service for the United States Bankruptcy Court for the District
    plaintiffs (the Reynolds, the Lessard[s], and the          of Delaware with their motion to reinstate their appeal. This
    Episcopal Church), and includes separate                   status report is not certified, but it does indicate that Fruit of
                                                               the Loom's bankruptcy proceedings terminated on March 21,
    defendants which are separately represented. The
                                                               2007, thereby demonstrating that the automatic stay is no
    claims of the Reynolds were finally settled after
                                                               longer in effect. Though [*11] the status report is not certified,
    lengthy proceedings . . . .
                                                               we find that the Lessards substantially complied with the
                                                               requirements of rule 8.3(a) of the rules of appellate procedure.
On December 20, 1999, the Lessards filed their original
                                                               See id.; see also TEX. R. APP. P. 8.3(b); MCI Sales & Serv. v.
notice of appeal, which they later supplemented on
                                                               Hinton, No. 10-08-00353-CV, 2008 Tex. App. LEXIS 8200, at
March 13, 2000. The trial court denied all of the              *1 (Tex. App.--Waco Oct. 29, 2008, pet. filed) (mem. op.) (per
Lessards' post-judgment motions on January 31, 2000.           curiam) ("[An appeal] may be reinstated on motion of any party
The trial court entered an amended order of dismissal          showing that the stay has been lifted or modified and
on February 9, 2000, adding Fruit of the Loom to the list      specifying what action, if any, is required from this Court upon
of defendants. 3 It is because of this alteration that the     reinstatement of the appeal."); Ma-Stell, Inc. v. Anadarko E&P
Lessards filed their supplemental notice of appeal on          Co., Nos. 10-03-00358-CV & 10-05-00204-CV, 2005 Tex.
                                                               App. LEXIS 3193, at *2 n.3 (Tex. App.--Waco Apr. 27, 2005,
                                                               order) (noting that rule 8.3(b) of the rules of appellate
3 The  Lessards did not name Fruit of the Loom as a party in   procedure provides that the appeals court may sever and
their March 13, 2000 supplemental notice of appeal.            reinstate on its own initiative).

                                                     Nicole Mitchell
                                                                                                              Page 6 of 10
                                               2009 Tex. App. LEXIS 2811, *11

                                                                   Inc., 858 S.W.2d 55, 57 (Tex. App.--Houston [14th Dist.]
A. The Trial Court's Dismissal of the Lessard's                    1993, no writ). The trial court's authority to dismiss is
Claims for Want of Prosecution                                     derived both from rule 165a of the Texas Rules of Civil
                                                                   Procedure and from its inherent power to manage its
In their second issue, the Lessards argue that the trial           own docket. Veterans' Land Bd. v. Williams, 543 S.W.2d
court abused its discretion in exercising its inherent             89, 90 (Tex. 1976); Burton v. Hoffman, 959 S.W.2d 351,
power to dismiss their case for want of prosecution.               353 (Tex. App.--Austin 1998, no pet.).
Specifically, the Lessards contend that: (1) the trial court
failed to give them notice that it planned [*12] to                HN3[ ] When [*14] an unreasonable delay in the
dismiss their case for want of prosecution; and (2) the            prosecution of a case occurs, it is presumed that the
record demonstrates that they were diligent in trying to           case has been abandoned. Bilnoski, 858 S.W.2d at 57
obtain a trial setting from the trial court. Velsicol              (citing Hosey v. County of Victoria, 832 S.W.2d 701, 704
counters by arguing that the Lessards received                     (Tex. App.--Corpus Christi 1992, no writ)). If that delay
reasonable notice and were given an opportunity to be              is not sufficiently explained, the presumption of
heard before the trial court dismissed their claims after          abandonment is conclusive and the case will be
being on file for nine years at the time of dismissal.             dismissed. Id. The trial court, in exercising its inherent
                                                                   authority, may consider periods of activity, intervals of
                                                                   inactivity, reasons for lack of attention, and the passage
1. Standard of Review                                              of time to determine whether the delay was reasonable.
                                                                   Ozuna v. Sw. Bio-Clinical Labs., 766 S.W.2d 900, 902
HN1[ ] We review a trial court's dismissal of a suit for           (Tex. App.--San Antonio 1989, writ denied); see King v.
want of prosecution under an abuse of discretion                   Holland, 884 S.W.2d 231, 237 (Tex. App.--Corpus
standard. See MacGregor v. Rich, 941 S.W.2d 74, 75                 Christi 1994, writ denied) (noting that in exercising its
(Tex. 1997) (per curiam); State v. Rotello, 671 S.W.2d             inherent power to dismiss a case, a trial court may
507, 509 (Tex. 1984); see also Sewell Motor Co. v.                 consider the length of time the case was on file, the
Capitan Enters., Inc., No. 08-02-00454-CV, 2004 Tex.               extent of activity in the case, whether a trial setting was
App. LEXIS 3577, at **5-6 (Tex. App.--El Paso Apr. 22,             requested, and the existence of reasonable excuses for
2004, pet. denied) (mem. op.). The trial court abuses its          the delay). The Lessards did not request findings of fact
discretion when it acts without reference to any guiding           or conclusions of law, and the trial court did not specify
rules or principles or if the action is arbitrary or               the standard of dismissal used; therefore, we must
unreasonable. Koslow's v. Mackie, 796 S.W.2d 700, 704              affirm the trial court's [*15] decision if any legal theory
(Tex. 1990); Downer v. Aquamarine Operators, Inc., 701             for the dismissal is supported by the record. See Point
S.W.2d 238, 241-42 (Tex. 1985).                                    Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.
                                                                   1987); see also Maughan v. Employees Ret. Sys. of
HN2[ ] A trial court may dismiss a case for want of
                                                                   Tex., No. 03-07-00604-CV, 2008 Tex. App. LEXIS 5822,
prosecution: (1) when a party fails to appear at a
                                                                   at *7 (Tex. App.--Austin Aug. 1, 2008, no pet.) (mem.
hearing or trial; (2) when the [*13] case has not been
                                                                   op.).
disposed of within the Supreme Court's time standards;
5 or (3) under the trial court's inherent power to dismiss,

when the case has not been prosecuted with due                     2. Discussion
diligence. See TEX. R. CIV. P. 165a; Villarreal v. San
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.                  The Lessards first argue that the trial court abused its
1999); Rotello, 671 S.W.2d at 509; Bilnoski v. Pizza Inn,          discretion because it did not provide adequate notice of
                                                                   its intent to dismiss their case for want of prosecution.
                                                                   HN4[ ] Texas Rule of Civil Procedure 165a(1) provides
5 Texas   Rule of Judicial Administration 6(b) provides that all   that a party must be provided with notice and an
civil jury cases should be brought to trial or final disposition   opportunity to be heard before a trial court may dismiss
within eighteen months from appearance date and that all civil     a case for want of prosecution under either rule 165a or
nonjury cases should be brought to trial or final disposition
                                                                   its inherent power. See TEX. R. CIV. P. 165a(1) (HN5[
within twelve months from appearance date. TEX. R. JUD.
                                                                      ] "Notice of the court's intention to dismiss and the
ADMIN. 6(b). However, the supreme court "recognized that in
                                                                   date and place of the dismissal hearing shall be sent by
especially complex cases or special circumstances it may not
be possible to adhere to these standards." TEX. R. JUD.            the clerk to each attorney of record, and to each party
ADMIN. 6(e).                                                       not represented by an attorney."); Villarreal, 994 S.W.2d

                                                         Nicole Mitchell
                                                                                                            Page 7 of 10
                                            2009 Tex. App. LEXIS 2811, *15

at 630; Dueitt v. Arrowhead Lakes Prop. Owners, Inc.,          Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 92-
180 S.W.3d 733, 737 (Tex. App.--Waco 2005, pet.                93 (Tex. App.--Houston [14th Dist.] 2005, pet. denied)
denied); see also Callahan v. Staples, 139 Tex. 8, 161         (affirming the trial court's granting of appellee's motion
S.W.2d 489, 491 (1942) (requiring notice for dismissals        to dismiss for want of prosecution); Harvey v. Wetzel,
under the court's [*16] inherent power); Gutierrez v.          No. 03-03-00608-CV, 2004 Tex. App. LEXIS 6818, at
Lone Star Nat'l Bank, 960 S.W.2d 211, 214 (Tex. App.--         *12 (Tex. App.--Austin July 29, 2004, no pet.) (same);
Corpus Christi 1997, pet. denied) (requiring notice for        Wright v. Tex. Dep't of Criminal Justice-Inst. Div., 137
dismissals under rule 165a). The requirements of notice        S.W.3d 693, 694 (Tex. App.--Houston [1st Dist.] 2004,
and a hearing are necessary to ensure that the                 no pet.) (same); Manning v. North, 82 S.W.3d 706, 712
dismissed claimant received due process. Dueitt, 180           (Tex. App.--Amarillo 2002, no pet.) (same).
S.W.3d at 737 (citing Smith v. McKee, 145 S.W.3d 299,          Furthermore, the Texas Supreme Court has held that
302 (Tex. App.--Fort Worth 2004, no pet.); Tex. Sting          either notice of the trial court's intent to dismiss or notice
Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.-       of the actual order of dismissal is sufficient notice. See
-San Antonio 2002, pet. denied); Franklin v. Sherman           Harris County v. Miller, 576 S.W.2d 808, 810 (Tex.
Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.--             1979); see Lowe v. U.S. Shoe Corp., 849 S.W.2d 888,
Dallas 2001, pet. denied)). The failure to provide             891 (Tex. App.--Houston [14th Dist.] 1993, writ denied).
adequate notice of the trial court's intent to dismiss for
want of prosecution is a due process violation and             Velsicol filed its joint motion to dismiss for want of
requires reversal. Villarreal, 994 S.W.2d at 630 (citing       prosecution on October 18, 1999, more than nine years
Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386            after the Lessards had first filed their lawsuit. In its joint
(Tex. App.--Houston [1st Dist.] 1996, writ denied); Davis      motion, Velsicol noted the following:
v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-47 (Tex.
                                                                   Trial was set for this case on January 9, 1995, in
Civ. App.--Waco 1981, writ ref'd n.r.e.)); see Keough v.
                                                                    [*19] Live Oak County during a week that was not
Cyrus U.S.A., Inc., 204 S.W.3d 1, 5 (Tex. App.--Houston
                                                                   a jury week. In approximately late October of 1994,
[14th Dist.] 2006, pet. denied). However, participation in
                                                                   the Honorable Judge Rodriguez noted that there
a hearing on a motion to reinstate cures any due
                                                                   would not be an actual jury setting in the case nor a
process concerns for the trial court's [*17] failure to
                                                                   new docket control conference, unless and until the
provide notice of its intent to dismiss for want of
                                                                   parties agreed to a visiting judge. Thereafter, the
prosecution. Dueitt, 180 S.W.3d at 737.
                                                                   Defendants [Velsicol and others] on numerous
The Lessards argue that they did not receive adequate              occasions provided the Plaintiffs [the Lessards] lists
notice of the trial court's intent to dismiss their case           of visiting judges, among which included, Judge
because the notice was promulgated by Velsicol via its             Wells Stewart, Judge Vernon Harville, and the late
joint motion to dismiss for want of prosecution and not            Judge Onion. Despite the Defendants' efforts, the
by the trial court itself. They argue that Velsicol's joint        Plaintiffs failed to do anything.
motion was only sufficient to inform the Lessards of               It has been nearly nine years since the filing of this
Velsicol's intentions and gave no indication of the trial          suit. To date, all claims regarding the Defendants
court's intentions. They further argue that Velsicol               have been resolved with the exception of the claims
cannot give notice of the trial court's intention to dismiss       set forth by the Lessards. The Lessards remain the
the claims using its inherent power, but that the trial            only outstanding claims despite mediation attempts
court must give notice of its own intentions.                      and numerous letters sent to the Plaintiffs on behalf
                                                                   of the Defendants to obtain a visiting judge.
However, several Texas courts have held that HN6[ ]
a dismissal for want of prosecution may be obtained by             The Savage Defendants have made numerous
the motion of the trial court or on the motion of any party        efforts to resolve this claim and have heard no reply
to the suit. See Dueitt, 180 S.W.3d at 738; see also               from the Plaintiffs. To ensure that the interests of
Sierra Club v. Tex. Comm'n on Envtl. Quality, No. 03-              the Defendants are preserved and to reach a
04-00108-CV, 188 S.W.3d 220, 2005 Tex. App. LEXIS                  resolution in this long stalled case, the Defendants
454, at *5 (Tex. App.--Austin Jan. 21, 2005, no pet.)              ask this Court [*20] to dismiss this matter for failure
("Contrary to appellants' arguments, the rule 165a                 of the Plaintiffs to properly and efficiently pursue
reinstatement procedure applies to all dismissals for              their case.
want of prosecution, regardless [*18] of whether they
                                                                   WHEREFORE          PREMISES        CONSIDERED         the
are initiated by the court or motion of a party."); Polk v.

                                                     Nicole Mitchell
                                                                                                                     Page 8 of 10
                                               2009 Tex. App. LEXIS 2811, *20

     Defendants respectfully request the Court grant the           S.W.3d at 740; see also Bilnoski, 858 S.W.2d at 57;
     Joint Motion to Dismiss for Want of Prosecution.              Lowe, 849 S.W.2d at 891.

(Emphasis added.) On November 12, 1999, the                        Next, the Lessards contend that the record
Lessards filed a response to the joint motion to dismiss,          demonstrates that they were diligent in prosecuting their
alleging that the reason for the delay in the case was             claims; therefore, the trial court abused its discretion in
that the parties could not agree on a visiting judge and           granting Velsicol's joint motion to dismiss. We disagree.
proposing a list of three visiting judges. On November
17, 1999, the trial court conducted a hearing on                   As previously mentioned, HN8[ ] the trial court may
Velsicol's joint motion to dismiss. It is not clear from the       consider periods of activity, intervals of inactivity,
record that the trial court notified the Lessards of its           reasons for lack of attention, and the passage of time in
intent to dismiss their claims for want of prosecution.            determining [*23] whether a case should be dismissed
See Alexander v. Lynda's Boutique, 134 S.W.3d 845,                 for want of prosecution. See Ozuna, 766 S.W.2d at 902;
849-50 (Tex. 2004) ("[M]ere silence as to whether notice           see also King, 884 S.W.2d at 237. Furthermore, when
[of intent to dismiss] was sent does not establish that            there is an unreasonable delay in the prosecution of the
notice was not sent . . . ."); see also Keough, 204                case, it is presumed that the case has been abandoned
S.W.3d at 5. In any event, after hearing arguments from            unless the dismissed claimant provided a sufficient
Velsicol, the Savage parties, and the Lessards, the trial          justification for the delay. See Bilnoski, 858 S.W.2d at
court granted Velsicol's joint motion to dismiss for want          57; Hosey, 832 S.W.2d at 704.
of prosecution.
                                                                   Here, the record supports an implied finding that the
HN7[ ] All that due process requires is that a party be            case was not prosecuted with diligence. Nearly nine
given notice of the time [*21] and substance of the                years elapsed between the date the case was first filed--
hearing, and an opportunity to present arguments at the            December 31, 1990--and the date the trial court finally
hearing. See Smith, 145 S.W.3d at 302; Tex. Sting Ltd.,            dismissed it--November 17, 1999. 7 During that time, the
82 S.W.3d at 648; see also Dueitt, 180 S.W.3d at 739.              parties engaged in some discovery and participated in
Velsicol's joint motion to dismiss put the Lessards on             mediation. See Nichols v. Sedalco Constr. Servs., 228
notice that their claims may be dismissed for want of              S.W.3d 341, 343 (Tex. App.--Waco 2007, pet. denied)
prosecution by the trial court. See Dueitt, 180 S.W.3d at          (holding that the trial court did not abuse its discretion in
740 (holding that "'a dismissal notice containing no               dismissing a case for want of prosecution where brief
reference to Rule 165a or the court's inherent authority           periods of activity did not explain remaining long periods
[is] sufficient to put the appellant on notice that the court      of inactivity). However, the parties neither resolved their
could dismiss under Rule 165a(1), Rule 165a(2), or its             claims nor agreed on a visiting judge to hear the case,
inherent authority'" (quoting Steward v. Colonial Cas.             as ordered by the trial court on June 24, 1993. At the
Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.--Waco                  November 17, 1999 hearing, [*24] counsel for the
2004, no pet.))). By conducting the November 17, 1999              Lessards stated that the reason for the delay centered
hearing, the trial court afforded the Lessards an                  on his employment status. According to counsel for the
opportunity to be heard and to provide adequate                    Lessards, he initially represented the Lessards until he
justifications for the nine-year delay in prosecuting the          discontinued employment with his law firm for five years.
case. See Lowe, 849 S.W.2d at 891 ("It is generally held           He admitted to the trial court that his law firm "never did
that a party to a lawsuit is charged with notice that the          move the case" until he returned to work for the law firm
suit may be dismissed for want of prosecution when
there is inaction for a long period of time. This
constructive notice satisfies due process requirements.")
(internal citation omitted). Thus, [*22] we conclude that          signed or within the period prescribed by Rule 306a); see also
the Lessards received due process. 6 See Dueitt, 180               Harris County v. Miller, 576 S.W.2d 808, 810 (Tex. 1979)
                                                                   (holding that either notice of the trial court's intent to dismiss or
                                                                   notice of the actual order of dismissal is sufficient notice);
                                                                   Lowe v. U.S. Shoe Corp., 849 S.W.2d 888, 891 (Tex. App.--
6 Our conclusion is further supported by the fact that the         Houston [14th Dist.] 1993, writ denied) (same).
Lessards were provided a copy of the actual dismissal order,
which allowed them to timely file their motion to reinstate. See   7 As noted earlier, the trial court did amend its [*25] dismissal
TEX. R. CIV. P. 165a(3) (providing that a motion to reinstate      order to include Fruit of the Loom as a defendant on January
must be filed within thirty days after the order of dismissal is   31, 2000.

                                                         Nicole Mitchell
                                                                                                                   Page 9 of 10
                                              2009 Tex. App. LEXIS 2811, *25

after his five year hiatus. 8 Moreover, the Lessards did
not file a request for a trial setting from the trial court       1. Standard of Review
until March 14, 1999. 9 The Lessards had an abundance
of time with which to prosecute their claim, yet very little      HN9[ ] Texas Rule of Civil Procedure 165a(3) sets out
prosecution occurred in this case until it was it on the          the procedure for reinstating cases dismissed for want
verge of being dismissed. We do not find the Lessards'            of prosecution. See TEX. R. CIV. P. 165a(3). A trial
justifications to be sufficient in explaining the nine-year       court is compelled to reinstate a case "upon finding after
delay in prosecuting the case. See Ozuna, 766 S.W.2d              a hearing that the failure of the party or his attorney was
at 902; King, 884 S.W.2d at 237; Bilnoski, 858 S.W.2d             not intentional or the result of conscious indifference but
at 57; Hosey, 832 S.W.2d at 704. We therefore                     was due to an accident or mistake or that the failure has
conclude that the trial court did not abuse its discretion        been otherwise reasonably explained." Id. In order to
in dismissing the Lessards' claims under its inherent             determine whether the trial court abused its discretion in
authority. See MacGregor, 941 S.W.2d at 75; Rotello,              refusing reinstatement, we review the entire record and
671 S.W.2d at 509. Accordingly, we overrule the                   determine whether the [*27] evidence was sufficient to
Lessards' second issue.                                           find that the failure of the party was not due to accident,
                                                                  mistake, or other reasonable explanation. See Tex.
                                                                  Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex.
B. The Trial Court's Denial of the Lessard's Motion               App.--San Antonio 1997, no writ); see also Torres v.
for Reinstatement                                                 Rios, 869 S.W.2d 555, 557 (Tex. App.--Corpus Christi
                                                                  1993, no writ). The party requesting reinstatement has
In their first issue, the Lessards assert that the trial court    the burden to bring forth a record establishing that
abused its discretion in refusing to reinstate their claims       reinstatement was required. Kenley v. Quintana
pursuant to Rule 165a of the Texas Rules of Civil                 Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.--San
Procedure. See TEX. R. CIV. P. 165a. The Lessards                 Antonio 1996, writ denied).
argue that: (1) they were not consciously indifferent to
the trial court's orders regarding the appointment of
visiting judges; (2) they did not abuse the pretrial              2. Discussion
discovery process; (3) they showed the trial court that
they were ready for trial; (4) their claims are meritorious       We have already determined that the record does not
and they should be given an opportunity to be heard;              support a finding that the trial court abused its discretion
and (5) Velsicol did not demonstrate that it would be             by dismissing the case. Moreover, the record supports
unfairly prejudiced by the reinstatement of the Lessard's         an implied finding that the Lessards did not prosecute
lawsuit. [*26] Velsicol contends that the trial court did         this case with diligence. See Dueitt, 180 S.W.3d at 741;
not abuse its discretion in denying the Lessard's motion          see also Luna v. UPS, Inc., No. 01-02-00144-CV, 2003
for reinstatement because: (1) the Lessards ignored for           Tex. App. LEXIS 465, at **8-9 (Tex. App.--Houston [1st
six years the trial court's orders to agree on a visiting         Dist.] Jan. 9, 2003, pet. denied) (concluding that the trial
judge; and (2) the Lessards failed to provide Velsicol            court did not abuse its discretion in dismissing
with discovery on a newly alleged medical claim.                  appellant's claims for failing to exercise diligence in
Velsicol argues that the Lessard's justifications for the         prosecuting his claims and that the trial court did not
delays--that the case originally involved numerous                abuse its discretion in denying appellant's [*28] motion
parties and the law firm representing the Lessards had            to reinstate because of the dismissal). Therefore, the
reassigned the case to various associates over the                Lessards have failed to meet their burden to bring forth
years--were not adequate to warrant a reinstatement of            a record supporting reinstatement. We overrule the
the case.                                                         Lessards' first issue. 10


                                                                  10 We  note that the record reflects that the trial court conducted
8 Counsel's   admission is supported by the affidavit filed by
                                                                  a hearing on Velsicol's joint motion to dismiss rather than the
Spagnoletti, where he blamed the delay on the complexity of
                                                                  Lessards' motion to reinstate. See TEX. R .CIV. P. 165a(3)
the case (involving multiple plaintiffs and defendants) and the
                                                                  (providing that a trial court is compelled to reinstate a case
fact that the case had been handled by several associates at
                                                                  "upon finding after a hearing that the failure of the party or his
the law firm.
                                                                  attorney was not intentional or the result of conscious
9 The
    Lessards renewed their request for a trial setting at the     indifference but was due to an accident or mistake or that the
November 17, 1999 hearing and in their motion to reinstate.       failure has been otherwise reasonably explained."). The

                                                        Nicole Mitchell
                                                                                  Page 10 of 10
                                                 2009 Tex. App. LEXIS 2811, *28



IV. CONCLUSION

We affirm the trial court's dismissal of the Lessards'
claims for want of prosecution and its denial of the
Lessards' motion to reinstate.

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 23rd day of April, 2009.


  End of Document




supreme court has held that when a verified motion to
reinstate has been filed under rule 165a(3), an oral hearing is
required, and a failure to hold such a hearing requires
reversal. See Thordson v. City of Houston, 815 S.W.2d 550,
550 (Tex. 1991) (per curiam). However, the Lessards do not
argue on appeal that they were improperly denied an oral
hearing on their motion for reinstatement and, instead, rely on
the evidence presented at the trial court's November 17, 1999
hearing on Velsicol's joint motion [*29] to dismiss.
Furthermore, the Lessards, in their verified motion to reinstate,
did not request a hearing on the motion. See Keough v. Cyrus
U.S.A., Inc., 204 S.W.3d 1, 6 n.3 (Tex. App.--Houston [14th
Dist.] 2006, pet. denied) (noting that before trial court error can
be found in the failure to set a hearing on a motion to
reinstate, the movant must request a hearing); Cabrera v.
Cedarapids, Inc., 834 S.W.2d 615, 618 (Tex. App.--Houston
[14th Dist.] 1992, writ denied) (same); but see Matheson v.
Am. Carbonics, 867 S.W.2d 146, 147-48 (Tex. App.--
Texarkana 1993, no writ) ("[T]he court is required to conduct a
hearing on a timely filed motion to reinstate. Whether or not
the movant requests a hearing on a motion to reinstate is
irrelevant; a hearing is required unless waived.") (internal
citations omitted). Moreover, the trial court, by providing the
Lessards notice of and an opportunity to be heard at the
November 17, 1999 hearing, afforded the Lessards with due
process and, therefore, was not required to conduct a hearing
on the Lessards' motion to reinstate. See Dueitt v. Arrowhead
Lakes Prop. Owners, Inc., 180 S.W.3d 733, 740-41 (Tex.
App.--Waco 2005, pet. denied) (concluding that the [*30] trial
court's failure to conduct a hearing on appellant's motion to
reinstate was harmless error because appellants were
provided due process in a prior hearing on appellee's motion
to dismiss for want of prosecution).

                                                           Nicole Mitchell
     Warning
As of: March 23, 2018 5:06 PM Z


                                           Maida v. Fire Ins. Exch.
                                  Court of Appeals of Texas, Second District, Fort Worth
                                                 March 25, 1999, Delivered
                                                     NO. 2-98-232-CV

Reporter
990 S.W.2d 836 *; 1999 Tex. App. LEXIS 2053 **
                                                               occurred, the case was not on file in excess of the
VINCENT MAIDA, APPELLANT v. FIRE INSURANCE
                                                               supreme court's time standards, the case had been set
EXCHANGE, APPELLEE
                                                               for trial, the case was continued over appellant's
                                                               objection, appellant lived out of state at the time of
Prior History: [**1] FROM COUNTY COURT AT LAW
                                                               notice and dismissal, and the court signed the notice of
NO. 2 OF TARRANT COUNTY.
                                                               dismissal only three days after allowing appellant's
Disposition: Reversed and remanded.                            counsel to withdraw.

                                                               Outcome
Core Terms                                                     Judgment denying appellant's motion to reinstate his
                                                               insurance claim reversed because the trial court abused
reinstatement, trial court, want of prosecution, cases,
                                                               its discretion in both dismissing the case and in failing to
inherent authority, dismissal notice, withdraw, notice,
                                                               reinstate the case that was improperly dismissed, and it
abuse of discretion, time standards, days, motion to
                                                               remanded for reinstatement.
reinstate, no writ, courts, affirmative relief, dismissal
order, trial setting, diligently, grounds, abused
                                                               LexisNexis® Headnotes
Case Summary

Procedural Posture
Appellant policyholder challenged a judgment from the
                                                                   Governments > Legislation > Interpretation
County Court at Law No. 2 of Tarrant County (Texas),
which denied his motion to reinstate his insurance claim
                                                               HN1[     ] Legislation, Interpretation
against appellee fire insurance exchange.
                                                               The court is to construe briefing rules liberally. Tex. R.
Overview
                                                               App. P. 38.1(e), 38.9. Those rules require that
Appellant policyholder sued appellee insurance carrier
                                                               arguments be clear and concise as to the contentions
for failing to settle his claim. The case was on file for 17
                                                               made, with appropriate citations to authorities in the
months. There was a period of inactivity, appellant
                                                               record. Tex. R. App. P. 38.1(h). A point is sufficient if it
moved out of state, and his counsel withdrew close to
                                                               directs the appellate court to the error about which
trial. Appellant filed a letter with the court stating the
                                                               complaint is made.
withdrawal created a hardship and jeopardized his case.
The trial court dismissed appellant's case for want of
prosecution and denied his motion to reinstate.
Appellant challenged the dismissal and the denial. The             Civil Procedure > Dismissal > Involuntary
court reversed and remanded. The court held it was an              Dismissals > Failure to Prosecute
abuse of discretion to dismiss the case for either non-
compliance with the supreme court's time standards or              Criminal Law & Procedure > ... > Standards of
under the court's inherent authority. The court also held          Review > Abuse of Discretion > General Overview
that it was an abuse of discretion to fail to reinstate a
case improperly dismissed. Significant discovery had               Civil Procedure > Dismissal > Involuntary


                                                      Nicole Mitchell
                                                                                                             Page 2 of 7
                                990 S.W.2d 836, *836; 1999 Tex. App. LEXIS 2053, **1

    Dismissals > General Overview                                stems from a trial court's power to maintain and control
                                                                 its docket.
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Motions
                                                                     Civil Procedure > Dismissal > Involuntary
    Civil Procedure > Appeals > Standards of
                                                                     Dismissals > Failure to Prosecute
    Review > Abuse of Discretion
                                                                     Governments > Courts > Clerks of Court
    Criminal Law & Procedure > Trials > Judicial
    Discretion
                                                                     Civil Procedure > Dismissal > Involuntary
                                                                     Dismissals > General Overview
HN2[ ]    Involuntary         Dismissals,      Failure     to
Prosecute
                                                                 HN5[ ]    Involuntary       Dismissals,      Failure    to
                                                                 Prosecute
A motion to reinstate a case dismissed for want of
prosecution is addressed to the sound discretion of the
                                                                 Dismissal for Want of Prosecution: (a) The courts will
court. In reviewing whether there was an abuse of
                                                                 periodically give notice of their intention to dismiss for
discretion, the key question is whether the trial court
                                                                 want of prosecution. Such notice will be given at least
acted without reference to any guiding rules and
                                                                 thirty (30) days prior to the signing of consequent
principles, or in an arbitrary or unreasonable manner.
                                                                 dismissal order. (b) The clerk shall provide notice of the
                                                                 court's intention to dismiss for want of prosecution by
                                                                 complying with the provisions of Tex. R. Civ. P. 165a(1).
    Civil Procedure > Appeals > Standards of                     Local Rules of Practice of the District Courts of Tarrant
    Review > Abuse of Discretion                                 County Rule 3.90 (Adopted October 2, 1990).

    Civil Procedure > Dismissal > Involuntary
    Dismissals > General Overview
                                                                     Civil Procedure > Dismissal > Involuntary
HN3[    ] Standards of Review, Abuse of Discretion                   Dismissals > General Overview

In reviewing a court's refusal to reinstate, the court must          Criminal Law & Procedure > Trials > Judicial
first look to the court's basis for dismissal. Determination         Discretion
of the basis for the dismissal provides the measure
                                                                 HN6[    ] Dismissal, Involuntary Dismissals
whereby the court may determine if the court has
abused its discretion.
                                                                 A trial court has the inherent authority to dismiss a case
                                                                 that has not been diligently prosecuted. Whether a case
                                                                 has been diligently prosecuted is also an issue
    Civil Procedure > Dismissal > Involuntary                    committed to the trial court's sound discretion. Factors a
    Dismissals > Failure to Prosecute                            trial court may consider in dismissing under its inherent
                                                                 power include the length of time the case was on file,
    Civil Procedure > Dismissal > Involuntary                    the extent of activity in the case, whether a trial setting
    Dismissals > General Overview                                was requested, and the existence of reasonable
                                                                 excuses for delay.
HN4[ ]    Involuntary         Dismissals,      Failure     to
Prosecute

Under Tex. R. Civ. P. 165a, a trial court may dismiss a              Civil Procedure > Dismissal > Involuntary
case for want of prosecution if a party fails to appear at           Dismissals > Failure to Prosecute
trial or a hearing, or if the disposition of a party's case is
not in compliance with the supreme court's time                      Civil Procedure > Dismissal > Involuntary
standards for disposition. A court also has the inherent             Dismissals > General Overview
authority to dismiss for want of prosecution cases that
                                                                 HN7[    ]   Involuntary     Dismissals,      Failure    to
are not prosecuted with due diligence. This authority

                                                       Nicole Mitchell
                                                                                                               Page 3 of 7
                                990 S.W.2d 836, *836; 1999 Tex. App. LEXIS 2053, **1

Prosecute                                                       continue the case and to withdraw as Maida's counsel.
                                                                The court set a hearing on both motions for April 3. On
Where a party is ready for trial and has secured a trial        March 30, Maida, who had since moved to California,
setting or is otherwise making a diligent effort to get the     sent a letter to the court requesting that the court deny
case to trial, the case should not be dismissed for lack        Boyle's request to withdraw. Nevertheless, on April 3,
of prosecution.                                                 the court allowed Boyle to withdraw and removed the
                                                                case from its April 13 setting.
Counsel: ATTORNEY FOR APPELLANT: Wes
Dauphinot, FORT WORTH, TEXAS.                                   Then on April 6, just three days after Boyle's withdrawal,
                                                                the court issued a second notice of dismissal. This
ATTORNEY FOR APPELLEE: LOUIS J. SANDBOTE,
                                                                second notice also stated that the court desired to
P.C., Mark D. Cole, DALLAS, TEXAS.
                                                                comply with the supreme court's guidelines for
                                                                disposition of cases, and stated the case would be
Judges: PANEL A: CAYCE, C.J.; LIVINGSTON and
                                                                dismissed for "want of prosecution" in 30 days unless
BRIGHAM, JJ.
                                                                Maida obtained an order of retention, reached some
                                                                final disposition in the case, or sought other affirmative
Opinion by: TERRIE LIVINGSTON
                                                                relief.

Opinion                                                         On May 11, 1998, 35 days after sending the second
                                                                notice of dismissal, the court dismissed the case "for
                                                                want [**3] of prosecution." The following day, Maida's
[*838] OPINION                                                  new counsel filed a notice of appearance with the court.
                                                                On June 4, Maida filed a verified motion to reinstate. At
In three points, appellant contends the trial court abused      the hearing on Maida's motion to reinstate, the court
its discretion by failing to reinstate his case, and violated   denied his motion.
his rights to a fair trial and due process. We reverse.

                                                                II. DISCUSSION
I. FACTS
                                                                When a party seeks appellate review of a case that has
Appellant Vincent Maida purchased an insurance policy           been dismissed for want of prosecution and that has not
through appellee Fire Insurance Exchange (Exchange)             been reinstated, the party may cast its argument in one
for coverage of personal property. After a theft during a       of three ways: First, a party may argue the trial court
move, Maida claimed $ 27,695 alleging either loss, theft,       erred in dismissing the case; second, a party may
or other damage to his personal property. Exchange              contend it was error for the trial court to refuse to
and Maida failed to settle the claim, and on December           reinstate the case; and finally, a party may challenge
26, 1996, Maida filed suit claiming that Exchange had           both the dismissal and the denial of reinstatement.
breached the insurance contract and violated several            Although each challenge, if sustained, is independently
provisions of the Texas Insurance Code. On February 6,          sufficient to obtain reinstatement, 1 the subtle
1997, Exchange answered, and between February 11                distinctions among the challenges affect both our ability
and September 3 of 1997, the parties engaged in                 and the scope of our review.
discovery. On October 1, 1997, Maida filed his first
amended petition.                                               [**4] Maida designates his arguments under point one

On November 6, 1997, the court sent a notice of
dismissal to the parties. The notice stated the court's
                                                                1A  motion to reinstate is not a prerequisite for appeal. See
desire to adhere to the supreme court's time standards
for disposition [**2] of cases and that Maida's case            Hosey v. County of Victoria, 832 S.W.2d 701, 703 (Tex. App.--
                                                                Corpus Christi 1992, no writ). For purposes of an appeal, the
would be dismissed within 30 days unless some
                                                                order of dismissal is the final judgment. See id.; Estate of
disposition was made or other affirmative relief sought.
                                                                Bolton v. Coats, 608 S.W.2d 722, 725 (Tex. Civ. App.--Tyler
                                                                1980, writ ref'd n.r.e.). As a result, a motion to reinstate is
On November 14, Maida requested a trial setting, and
                                                                similar to a motion for new trial, and thus, necessary only to
the case was set for trial on April 13, 1998. But on
                                                                develop facts that otherwise would not appear in the record.
March 18, Maida's counsel, Ron Boyle, filed a motion to         See Hosey, 832 S.W.2d at 703-04.

                                                      Nicole Mitchell
                                                                                                              Page 4 of 7
                               990 S.W.2d 836, *838; 1999 Tex. App. LEXIS 2053, **4

as challenges to the trial [*839] court's failure to
reinstate. However, the substance of his argument is
directed to the trial court's dismissal of the case. He        1. Court's Authority to Dismiss
consistently argues that "dismissal on [inherent
authority] grounds constitutes an abuse of discretion"         HN4[ ] Under Texas Rule of Civil Procedure 165a, a
and "dismissal on [rule 165a(1)] grounds constitutes an        trial court may dismiss a case for want of prosecution if
abuse of discretion." Furthermore, Maida, throughout his       a party fails to appear at trial or a hearing, or if the
argument, requests that we find the dismissal an abuse         disposition of a party's case is not in compliance with
of discretion. Nonetheless, Maida prays that we reverse        the supreme court's time standards for disposition. See
the order denying the motion to reinstate.                     TEX. R. CIV. P. 165a(1)-(2). Rule 165a, however, is not
                                                               the only authority by which a trial court may dismiss a
Maida's point is multifarious, and we are not required to      case.
review it. See Thomas v. Wichita Gen. Hosp., 952
S.W.2d 936, 939 (Tex. App.--Fort Worth 1997, pet.              A court also has the inherent authority to dismiss for
denied). However, HN1[ ] we are to construe briefing           want of prosecution cases that are not prosecuted with
rules liberally. See TEX. R. APP. P. 38.1(e), 38.9; Texas      due diligence. See State v. Rotello, 671 S.W.2d 507,
Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54-55               508-09 (Tex. 1984); Villarreal v. San Antonio Truck &
(Tex. 1998). Those rules require that arguments be             Equip., Inc., 974 S.W.2d 275, 276 (Tex. App.--San
clear and concise as to the contentions made, with             Antonio 1998, pet. granted) (citing Rizk v. Mayad, 603
appropriate citations to authorities in the record. See        S.W.2d 773, 776 (Tex. 1980)). This authority stems from
TEX. R. APP. P. 38.1(h). A point is sufficient if it directs   a trial court's power to maintain and control its docket.
the appellate court to the error about which complaint is      See Brim Laundry Mach. Co. v. Washex Mach. Corp.,
made. [**5] See Bouchet, 963 S.W.2d at 54-55.                  854 S.W.2d 297, 301 (Tex. App.--Fort Worth 1993, writ
Because Maida has sufficiently directed us to the errors       denied).
about which he complains--dismissal and failure to
reinstate--we will address each of his complaints.              [**7] Because the record in this case does not contain
                                                               findings of facts or conclusions of law and the dismissal
                                                               order does not specify the reason for dismissal other
A. REINSTATEMENT                                               than to generally dismiss for "want of prosecution," we
                                                               must affirm on any [*840] legal theory supported by the
HN2[ ] A motion to reinstate a case dismissed for want         record. 2 See Ozuna v. Southwest Bio-Clinical Labs.,
of prosecution is addressed to the sound discretion of         766 S.W.2d 900, 901 (Tex. App.--San Antonio 1989,
the court. See Smith v. Babcock & Wilcox Const. Co.,           writ denied) (op. on reh'g).
913 S.W.2d 467, 467 (Tex. 1995); Eustice v. Grandy's,
827 S.W.2d 12, 14 (Tex. App.--Dallas 1992, no writ);
Goff v. Branch, 821 S.W.2d 732, 733 (Tex. App.--San            2. Application
Antonio 1991, writ denied). In reviewing whether there
was an abuse of discretion, the key question is whether        Maida acknowledges that because the order is silent as
the trial court acted without reference to any guiding         to the reason for dismissal, we must affirm on any legal
rules and principles, or in an arbitrary or unreasonable       theory supported by the record. Nevertheless, he
manner. See Downer v. Aquamarine Operators, Inc.,              argues that regardless of the basis for dismissal, it was
701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476          an abuse of discretion not to [**8] reinstate the case.
U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986).
                                                               Maida postulates that the court's dismissal is based on
In this instance, the parties disagree as to the               one of two grounds: First is that the dismissal was under
appropriate guiding rules and principles applicable to         the court's inherent authority; second was his failure to
this case. HN3[ ] In reviewing a court's refusal to
reinstate, we must first look to the court's basis for
dismissal. See, e.g., Shook v. Gilmore & Tatge [**6]           2 We  do not mean to imply that in certain instances other
Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.--Waco 1997,           factors may not restrict our review to specific grounds of
writ denied). Determination of the basis for the dismissal     dismissal. See, e.g., Villarreal, 974 S.W.2d at 279-86 (Duncan,
provides the measure whereby we may determine if the           J., dissenting) (stating that where a notice of dismissal
court has abused its discretion.                               specifies a single ground for dismissal, a trial court may not
                                                               dismiss on any other ground).

                                                     Nicole Mitchell
                                                                                                            Page 5 of 7
                                990 S.W.2d 836, *840; 1999 Tex. App. LEXIS 2053, **8

seek affirmative relief as required in the notice of             14; Ozuna, 766 S.W.2d at 903; Stromberg Carlson
dismissal. Maida analogizes the action of failing to "seek       Leasing Corp. v. Central Welding Supply Co., 750
affirmative relief" to the court's power to dismiss under        S.W.2d 862, 866 (Tex. App.--Houston [14th Dist.] 1988,
165a(1), when a party fails to appear. Despite this              no writ); Moore v. Armour & Co., 748 S.W.2d 327, 331
analogy, he asserts that such an interpretation is devoid        (Tex. App.--Amarillo 1988, no writ). We agree with those
of statutory support and can not support the dismissal.          decisions.
He contends that the standard for reinstatement set
forth in 165a(3) is applicable to either ground of               The standard set out in 165a(3) is essentially the same
dismissal.                                                       standard as that for setting aside a default judgment.
                                                                 See Babcock & Wilcox Const. Co., 913 S.W.2d at 468;
Rule 165a(3) and (4) address reinstatement. 165a(3)              see also Sharpe v. Kilcoyne, 962 S.W.2d 697, 701
provides that a motion to reinstate shall be verified,            [*841] (Tex. App.--Fort Worth 1998, no pet.); Johnson
must be filed within 30 days of the order of dismissal,          v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.--Fort
and requires a hearing on the motion. See TEX. R. CIV.           Worth 1986, no writ) (interpreting "conscious
P. 165a(3). The rule also mandates reinstatement upon            indifference" as a failure to take some action which a
"finding . . . that the failure of the party or his attorney     person of reasonable [**11] sensibilities under the
was not intentional or the result of conscious                   same circumstances would deem necessary). Such a
indifference but was due to an accident or mistake or            standard is well suited for analyzing specific instances
that the failure has been otherwise reasonably                   of conduct. On the other hand, it does not easily lend
explained." Id.                                                  itself to determining whether a party diligently
                                                                 prosecuted a case or whether the disposition of the
165a(4) provides that dismissal and reinstatement [**9]          case complies with the supreme court's time standards
procedures are cumulative of other remedies and that             for disposition. Cf. Stromberg Carlson Leasing Corp.,
the same reinstatement procedures and timetables are             750 S.W.2d at 866.
applicable to all cases dismissed for want of
prosecution, even those dismissed pursuant to the                Furthermore, 165a(4) is consistent with application of
court's inherent authority. See TEX. R. CIV. P. 165a(4).         subdivision 3 to only instances of dismissal based on a
                                                                 failure to appear. 165a(4) requires that the procedures
We do not find Maida's contention, that the trial court          and timetable, be applied to all dismissals for want of
was limited to two grounds for dismissal, persuasive. In         prosecution. See Eustice, 827 S.W.2d at 15. Therefore,
this case, we do not interpret the instructions in the           we hold that the 165a(3)'s reinstatement standard,
dismissal notice to be the basis for dismissal. Rather,          "conscious indifference," only applies to cases
we construe the enumerated actions, in the second                dismissed for failure to appear.
notice, as grounds to prevent dismissal. 3 See TEX. R.
CIV. P. 165a(1) (stating that once a case is on the              Because Maida's argument is predicated on application
dismissal docket, the court shall dismiss at the dismissal       of that standard, we do not find that the trial court
hearing unless there is good cause for the case to be            abused its discretion in refusing to reinstate because of
maintained on the docket.)                                       appellant's lack of conscious indifference. We overrule
                                                                 the portion of Maida's argument dealing with
Maida's reinstatement argument is predicated on the              reinstatement under 165a(3).
application of 165a(3)'s standard for reinstatement.
However, [**10] in this case, rule 165a(3) does not
provide the appropriate measure for determining                  B. BASIS FOR DISMISSAL
whether the court should have reinstated the case.
Several of our sister courts have held that 165a(3)'s            1. Dismissal Under 165a(1)
standard for reinstatement only applies to cases
dismissed for failure to appear. See Burton v. Hoffman,           [**12] Rule 165a(1) gives a court power to dismiss for
959 S.W.2d 351, 354 (Tex. App.--Austin 1998, no pet.);           want of prosecution when a party or its counsel fail to
Clark v. Yarbrough, 900 S.W.2d 406, 408-09 (Tex. App.-           appear at a hearing or trial. Neither the notice of
-Texarkana 1995, writ denied); Eustice, 827 S.W.2d at            dismissal nor the order of dismissal were based on this
                                                                 subdivision. Nothing indicates that either Maida or his
                                                                 trial counsel failed to appear at any hearing. Therefore,
3 Thatis not to say a court could not dismiss a case under its   165a(1) is not applicable.
inherent power for failing to seek affirmative relief.

                                                       Nicole Mitchell
                                                                                                                  Page 6 of 7
                               990 S.W.2d 836, *841; 1999 Tex. App. LEXIS 2053, **12

                                                                on February 6, 1997. The trial court dismissed
2. Dismissal Under 165a(2)                                      the [**14] case on May 11, 1998. Thus, Maida's case
                                                                was dismissed only 15 months from appearance date.
In 1988, rule 165a was amended and subdivision 2 was            Because, the trial court did not follow the supreme
added. That subdivision authorizes a trial court to place       court's disposition guidelines, it was an abuse of
a case on the dismissal docket when it is not disposed          discretion to dismiss on this basis. See Hosey, 832
of in accordance within the time standards prescribed by        S.W.2d at 704.
the supreme court. See TEX. R. CIV. P. 165a(2). Those
time standards state that:                                      3. Dismissal Under Inherent Authority

District and statutory county court judges of the county        HN6[ ] A trial court also has the inherent authority to
in which cases are filed should, so far as reasonably           dismiss a case that has not been diligently prosecuted.
possible, ensure that all cases are brought to trial or         See Rotello, 671 S.W.2d at 509; Ozuna, 766 S.W.2d at
final disposition in conformity with the following time         901. Whether a case has been diligently prosecuted is
standards:                                                      also an issue committed to the trial court's sound
                                                                discretion. See Ozuna, 766 S.W.2d at 901-02. Factors a
....
                                                                trial court may consider in dismissing under its inherent
b. Civil Cases Other Than Family Law.                           power include the length of time the case was on file,
                                                                the extent of activity in the case, whether a trial setting
(1) Civil Jury Cases.                                           was requested, and the existence of reasonable
                                                                excuses for delay. See King v. Holland, 884 S.W.2d
Within 18 months from appearance date.                          231, 237 (Tex. App.--Corpus Christi 1994, writ denied).

TEX. R. JUD. ADMIN. 6, reprinted in TEX. GOV'T
CODE ANN., tit. 2, subtit. F app. (Vernon 1998).                4. Application of Factors
In line with this provision, the [**13] Tarrant County          Here, the case was on file for 17 months, still within the
district courts adopted Local Rule 3.90 which provides:
                                                                supreme court's guidelines. 5 During that time, the
Rule 3.90: HN5[    ] Dismissal for Want of Prosecution          record reflects that significant discovery occurred in the
                                                                eight months [**15] following Exchange's answer, at
(a) The courts will periodically give notice of their           which time Maida requested the April 13, 1998 trial
intention to dismiss for want of prosecution. Such notice       setting. Admittedly, from the time the first trial setting
will be given at least thirty (30) days prior to the signing    was requested until March 18, 1998, when Boyle sought
of consequent dismissal order.                                  to withdraw, Maida only took one deposition. However,
                                                                the court did not give notice of its intent to dismiss
(b) The clerk shall provide notice of the court's intention     during this period of inactivity. Rather, the court sent its
to dismiss for want of prosecution by complying with the        dismissal notice after it removed the case from its April
provisions of Paragraph (1) of Rule 165a of the Texas           13 trial setting and allowed Boyle to withdraw.
Rules of Civil Procedure.
                                                                Prior to the April 3 hearing, Maida filed a letter opposing
LOCAL RULES OF PRACTICE OF THE DISTRICT                         Boyle's withdrawal. In that letter, Maida stated that he
COURTS OF TARRANT COUNTY RULE 3.90 (Adopted                     currently resided in California and that Boyle's
October 2, 1990). 4                                             experience with the case coupled with [**16] his
                                                                withdrawal, so close in time to trial, would create a
 [*842] Thus, the supreme court has deemed 18                   hardship to timely find a new attorney and would
months to be a reasonable time period for disposing of a        jeopardize the case. Nonetheless, the court dismissed
case like this.

Exchange filed an original answer and requested a jury          5 The  original petition was filed on December 26, 1996, but no
                                                                answer was filed until February 1997. The period between
                                                                Maida's filing of his original petition and Exchange's filing of an
4 Although  captioned as the rules for district courts, rule    answer accounts, in large part, for the approximate two month
1.01(a) states that these rules govern proceedings in Tarrant   difference between the "17 months on file" and the "15 months
County district and statutory county courts.                    from appearance date."

                                                      Nicole Mitchell
                                                                                      Page 7 of 7
                              990 S.W.2d 836, *842; 1999 Tex. App. LEXIS 2053, **16

Maida's case.

Under these circumstances, because (1) significant
discovery had occurred in the case, (2) the case was
not on file in excess of the supreme court's time
standards, (3) the case had been set for trial, (4) it was
continued over Maida's objection, (5) Maida lived out of
state at the time of notice and dismissal, and (6) the
court signed the notice of dismissal only three days after
allowing Boyle to withdraw, we hold that the court
abused its discretion in dismissing Maida's case under
its inherent authority. See Brim Laundry Mach. Co., 854
S.W.2d at 302; Moore v. Armour & Co., 660 S.W.2d
577, 578 (Tex. App.--Amarillo 1983, no writ); William T.
Jarvis Co. v. Wes-Tex Grain Co., 548 S.W.2d 775 (Tex.
Civ. App.--Waco 1977, writ ref'd n.r.e.); Rorie v. Avenue
Shipping Co., 414 S.W.2d 948 (Tex. Civ. App.--Houston
[1st Dist.] 1967, writ ref'd n.r.e.) (each standing for the
proposition that HN7[ ] where a party is ready for trial
and has secured a trial setting or is otherwise making a
diligent effort to get [**17] the case to trial, the case
should not be dismissed for lack of prosecution). We
sustain that portion of Maida's point dealing with the
court's dismissal of his case.

Because we hold that the court abused its discretion in
dismissing the case under its inherent authority, it was
also an abuse to fail to reinstate a case improperly
dismissed. Because of our disposition on this [*843]
point, we do not need to address Maida's second and
third points.


III. CONCLUSION

We hold that it was an abuse of discretion to dismiss the
case for either non-compliance with the supreme court's
time standards or under the court's inherent authority.
We also hold that it was an abuse of discretion to fail to
reinstate and reverse the trial court's judgment and
remand the case to the trial court for reinstatement in
accordance with this opinion.

TERRIE LIVINGSTON

JUSTICE

PANEL A: CAYCE, C.J.; LIVINGSTON and BRIGHAM,
JJ.

Delivered March 25, 1999


  End of Document



                                                    Nicole Mitchell
     Caution
As of: March 23, 2018 5:07 PM Z


                                           Moore v. Armour & Co.
                                  Court of Appeals of Texas, Seventh District, Amarillo
                                                   October 19, 1983
                                                  No. 07-81-0282-CV

Reporter
660 S.W.2d 577 *; 1983 Tex. App. LEXIS 5202 **
                                                             want of prosecution. The court held that appellant's
JOHNNY MOORE, Appellant v. ARMOUR &
                                                             request and readiness for trial at the time of the
COMPANY, INC., AND JOE LEE BROWNING,
                                                             dismissal forbade its dismissal for lack of prosecution.
Appellees
                                                             The court therefore remanded the cause for
                                                             reinstatement on the docket of the trial court.
Prior History: [**1]     From the District Court of
Lubbock County; 140th Judicial District; No. 59,334;
                                                             Outcome
Honorable William R. Shaver, Judge.
                                                             The court reversed a trial court decision dismissing
                                                             appellant's personal injury suit against appellees for lack
Core Terms                                                   of prosecution. The court held that the trial court abused
                                                             its discretion in dismissing the case. The court therefore
trial court, lack of prosecution, announced, abused, time    remanded the cause for reinstatement on the docket of
of dismissal, trial setting, contending, reinstated, ref'd   the trial court.

Case Summary                                                 LexisNexis® Headnotes

Procedural Posture
Appellant sought review of a decision of the District
Court of Lubbock County, 140th Judicial District, Texas,
dismissing, for lack of prosecution, appellant's personal
                                                                  Civil Procedure > Dismissal > Involuntary
injury suit against appellees. Appellant argued that the
                                                                  Dismissals > Failure to Prosecute
trial court abused its discretion in dismissing the case.
                                                                  Criminal Law & Procedure > ... > Standards of
Overview
                                                                  Review > Abuse of Discretion > General Overview
Appellant filed suit against appellees, contending he
was seriously injured in an auto-truck collision                  Civil Procedure > Dismissal > Involuntary
negligently caused by appellee driver. After appellees            Dismissals > General Overview
answered, there was no activity in the case and the trial
court dismissed it. However, pursuant to a motion by              Civil Procedure > Dismissal > Involuntary
appellant, the case was subsequently reinstated.                  Dismissals > Appellate Review
Thereafter, there was sporadic activity, including
unsuccessful attempts to depose appellee driver.                  Civil Procedure > ... > Pretrial
Appellees filed a motion to dismiss for lack of                   Judgments > Nonsuits > Voluntary Nonsuits
prosecution. The case was subsequently set for trial and
appellant announced ready at a docket call. The case         HN1[ ]    Involuntary        Dismissals,     Failure    to
was eighth on the jury docket, however, and was not          Prosecute
reached for trial that week. A few days later, the trial
court heard and granted the motion by appellees to           A trial court has express power, Tex. R. Civ. P. 165a,
dismiss the case for lack of prosecution. The court          and inherent power to dismiss a case for lack of
reversed the trial court decision, finding that the trial    prosecution. When that occurs, the only question for
court abused its discretion in dismissing the case for       review is whether the trial court abused its discretion. In

                                                     Nicole Mitchell
                                                                                                              Page 2 of 2
                                660 S.W.2d 577, *577; 1983 Tex. App. LEXIS 5202, **1

resolving     that    question,   the    appellate      court   was not reached for trial that week. A few days later, on
acknowledges that the trial court is entitled to consider       September 18, 1981, the trial court heard and granted
the entire history of the case, and the plaintiff's assertion   the motion by Armour and Browning to dismiss the case
at a dismissal hearing that he did not intend to abandon        for lack of prosecution.
the case is immaterial. Where, however, at the time of
the dismissal hearing the plaintiff has announced ready         By a single point of error, Moore contends the trial court
for trial and has secured a trial setting or is otherwise       abused its discretion in dismissing the case for want of
making a diligent effort to get the case to trial, the case     prosecution.     He argues that, regardless of his
should not be dismissed for lack of prosecution.                inattention to the case in the past, his request and
                                                                readiness for trial at the time of the dismissal forbad its
Counsel: Mr. E. Warren Goss, Goss, Hale and Wells,              dismissal for lack of prosecution. We must agree.
P.C., Lubbock, Texas, for Appellant.
                                                                All parties agree that HN1[ ] a trial court has both
Mr. James L. Wharton, Jones, Trout, Flygare, Moody &            express power, Tex. R. Civ. P. 165a, and inherent
Brown, Lubbock, Texas, for Appellees.                           power, Bevil [**3] v. Johnson, 157 Tex. 621, 307
                                                                S.W.2d 85, 87 (1957), to dismiss a case for lack of
Judges: Richard N. Countiss, Associate Justice.                 prosecution. When that occurs, the only question for
Reynolds, J.                                                    review is whether the trial court abused its discretion. In
                                                                resolving that question, we acknowledge that the trial
Opinion by: COUNTISS
                                                                court is entitled to consider the entire history of the
                                                                case, see Denton County v. Brammer, 361 S.W.2d 198,
Opinion                                                         201 (Tex. 1962), and the plaintiff's assertion at a
                                                                dismissal hearing that he did not intend to abandon the
                                                                case is immaterial. Reed v. Reed, 158 Tex. 298, 311
 [*577] This appeal is from a judgment dismissing, for          S.W.2d 628, 630 (1958); Gaebler v. Harris, 625 S.W.2d
lack of prosecution, appellant Johnny Moore's personal          5, 6-7 (Tex. Civ. App. -- San Antonio 1981, no writ).
injury suit against appellees Armour & Company and              Where, however, at the time of the dismissal hearing the
Joe Lee Browning. The single issue before us is                 plaintiff has announced ready for trial and has secured a
whether the trial court abused its discretion [*578] in         trial setting or is otherwise making a diligent effort to get
dismissing the case. We conclude that it did and                the case to trial, the case should not be dismissed for
reverse and remand.                                             lack of prosecution. Rorie v. Avenue Shipping Co., 414
                                                                S.W.2d 948, 954 (Tex. Civ. App. -- Houston 1967, writ
On February 7, 1969, Moore filed suit against Armour            ref'd n.r.e.); see also Wm. T. Jarvis Co. v. Wes-Tex
and its alleged employee Browning, contending he was            Grain Co., 548 S.W.2d 775, 778 (Tex. Civ. App. -- Waco
seriously injured in an auto-truck collision negligently        1977, writ ref'd n.r.e.).
caused by Browning. After the defendants answered,
there was no activity in the case and it was dismissed          In this case, Moore had announced ready, secured a
by the trial court in December of 1976. However,                trial setting [**4] and, as this record affirmatively
pursuant to a motion by Moore, it was reinstated in             reflects, stood ready to go to trial when his case was
February of 1977.                                               dismissed. We conclude that a dismissal under those
                                                                circumstances is an abuse of discretion. Point of error
Between April of 1979 and March of 1980, there was              one is sustained.
sporadic activity, [**2] including unsuccessful attempts
to depose Browning who has disappeared. In August               The judgment of the trial court is reversed and the case
1980, Armour and Browning filed a motion to dismiss for         is remanded for reinstatement on the docket of the trial
lack of prosecution. Soon thereafter Moore's present            court.
attorney, the latest of several, was employed and in
December of 1980, he asked the trial court to set the
case for trial "at your earliest convenience on your next         End of Document
jury docket." The case was subsequently set for trial
during the week of September 8, 1981, and Moore
announced ready at a September 4, 1981 docket call.
The case was eighth on the jury docket, however, and


                                                      Nicole Mitchell
     Caution
As of: March 23, 2018 5:07 PM Z


                                      Rorie v. Avenue Shipping Co.
                                  Court of Civil Appeals of Texas, First District, Houston
                                                      April 27, 1967
                                                        No. 14986

Reporter
414 S.W.2d 948 *; 1967 Tex. App. LEXIS 2890 **
                                                               the case for a trial on its merits. The court found that the
C. V. Rorie, Appellant v. Avenue Shipping Co., Ltd., et
                                                               time just before the dismissal controlled the question of
al, Appellees
                                                               abandonment of the prosecution and that appellant's
                                                               attorney had demonstrated good cause for the
Subsequent History: [**1] N.R.E.
                                                               unreasonable delay. Although several witnesses died
Prior History: Appeal from District Court of Galveston         during the delay, appellees did not object during that
County                                                         time and did not attempt to procure testimony from the
                                                               witnesses during the four-year delay.
Core Terms                                                     Outcome
                                                               The court reversed the dismissal of appellant
ship, appellees, vessel, want of prosecution, motion to
                                                               longshoreman's personal injury action against
dismiss, prosecute, deposition, diligence, notice, cause
                                                               appellees, ship owner and city, for want of prosecution
of action, longshoreman, attorneys, operators, original
                                                               and remanded the case for a trial on its merits. The
petition, trial court, cross-action, stevedore's,
                                                               court found that appellant's delay in bringing the case to
announced, cases
                                                               trial was reasonable because he was waiting for the
                                                               outcome of a pending compensation claim. Also,
Case Summary                                                   appellees did not object during the delay or interview
                                                               witnesses during that time.

Procedural Posture
Appellant longshoreman sought review of the decision
                                                               LexisNexis® Headnotes
of the District Court of Galveston County (Texas), which
denied his motion for a reconsideration of the dismissal
of his personal injury action against appellees, ship
owner and city. The district court dismissed appellant's
for delay in prosecution.
                                                                    Civil Procedure > Dismissal > Involuntary
                                                                    Dismissals > General Overview
Overview
Appellant longshoreman suffered personal injuries while
                                                                    Civil Procedure > ... > Pretrial
unloading ore from a ship that was owned by appellee
                                                                    Judgments > Nonsuits > Voluntary Nonsuits
ship owner. Appellant filed a personal injury action
against appellees, ship owner and city. No action was
                                                               HN1[     ] Dismissal, Involuntary Dismissals
taken for four years, during which time appellant was
pursuing     a    compensation     claim    under     the      The want of action at the time of or just before the
Longshoremen's & Harbor Workers' Act. The district             dismissal controls on the question of abandonment of
court retained the case on the docket once it learned of       the prosecution. In passing on a motion to dismiss on
the other pending action, but then ultimately dismissed        the grounds of abandonment the lack of action at the
the action for delay in prosecution. Appellant's attorney      time of the presentation of the motion or just before the
had been busy with the action just before the dismissal.       presentation governs the court's decision.
Appellant's motion for reconsideration was denied. The
appellate court reversed the dismissal and remanded

                                                      Nicole Mitchell
                                                                                                        Page 2 of 8
                              414 S.W.2d 948, *948; 1967 Tex. App. LEXIS 2890, **1

    Civil Procedure > Dismissal > Involuntary                of law.
    Dismissals > Failure to Prosecute

    Civil Procedure > ... > Responses > Defenses,
                                                                 Civil Procedure > Dismissal > Involuntary
    Demurrers & Objections > Motions to Dismiss
                                                                 Dismissals > Failure to Prosecute
    Civil Procedure > Dismissal > Involuntary
                                                                 Civil Procedure > Dismissal > Involuntary
    Dismissals > General Overview
                                                                 Dismissals > General Overview
    Civil Procedure > Dismissal > Involuntary
                                                             HN5[ ]    Involuntary       Dismissals,     Failure    to
    Dismissals > Motions
                                                             Prosecute
HN2[ ]    Involuntary       Dismissals,     Failure    to
                                                             In the absence of a statutory prohibition, every court has
Prosecute
                                                             the power to dismiss a suit for want of prosecution.
A motion to dismiss for want of prosecution should not
be granted if at the time of the motion plaintiff is
diligently prosecuting his claim, even though at some            Civil Procedure > Appeals > Standards of
prior period of time he had been guilty of gross                 Review > Abuse of Discretion
negligence or neglect.
                                                                 Civil Procedure > Judgments > Relief From
                                                                 Judgments > General Overview
    Civil Procedure > Dismissal > Involuntary
                                                                 Civil Procedure > Judgments > Relief From
    Dismissals > General Overview
                                                                 Judgments > Motions for New Trials
HN3[   ] Dismissal, Involuntary Dismissals
                                                             HN6[      ] Standards of Review, Abuse of Discretion
A suit may be dismissed for lack of diligence in its
                                                             With respect to a motion for new trial, the fact that
prosecution in the past, although the plaintiff's
                                                             respondents have no intention to abandon it, or that
objections to the dismissal at the hearing thereon
                                                             their attorney has hopes of settling the case, cannot be
manifest his intention to prosecute it to judgment.
                                                             made a ground for charging an abuse of discretion by
                                                             the trial court in dismissing the case.

    Civil Procedure > Appeals > Standards of
    Review > Abuse of Discretion
                                                                 Civil Procedure > Dismissal > Involuntary
                                                                 Dismissals > General Overview
    Civil Procedure > ... > Responses > Defenses,
    Demurrers & Objections > Motions to Dismiss
                                                             HN7[      ] Dismissal, Involuntary Dismissals
    Civil Procedure > Judgments > Relief From
                                                             Where the defendant in a suit is called to answer and
    Judgments > General Overview
                                                             has responded to the call, the duty devolves on the
                                                             plaintiff to proceed in prosecuting the suit to a
    Civil Procedure > Judgments > Relief From
                                                             conclusion with reasonable diligence, and whenever a
    Judgments > Motions for New Trials
                                                             delay of an unreasonable duration occurs, such delay, if
                                                             not sufficiently explained, raises a conclusive
HN4[   ] Standards of Review, Abuse of Discretion
                                                             presumption of abandonment of the plaintiff's suit, and a
With respect to dismissal of a motion for new trial or an    discontinuance results.
independent suit, the matter rests in the sound
discretion of the trial court. It is not an unbridled
discretion, but a judicial discretion subject to review.         Admiralty & Maritime Law > Maritime Personal
Upon review, the question is whether there was a clear           Injuries > Maritime Tort Actions > General Overview
abuse of discretion by the trial court. That is a question

                                                    Nicole Mitchell
                                                                                                        Page 3 of 8
                              414 S.W.2d 948, *948; 1967 Tex. App. LEXIS 2890, **1

    Admiralty & Maritime Law > Maritime Workers'            1965.
    Claims > General Overview
                                                            On August 5, 1965, the court sent out notices to counsel
HN8[ ] Maritime Personal Injuries, Maritime Tort            for all parties except Strachan that the case would be
Actions                                                     dismissed for want of prosecution at the call of the
                                                            dismissal docket on October 6, 1965 unless good cause
A longshoreman cannot recover for injuries sustained by     was shown in open court at such time why said cause
him against the owner of the ship when the equipment        should not be dismissed. Upon receipt of said notice
causing the injury is shore-based and not of the type       appellant's counsel in writing on September 27, 1965
commonly found as a part of the gear that the ship          requested the court not to dismiss the cause of action
would be expected to furnish.                               for the reason that the case was not brought to trial prior
                                                            to the date of such notice because of the then existing
Judges: Ewing Werlein, Associate Justice. Associate         pending claim for compensation under Title 33, Section
Justice Coleman not sitting.                                901 et seq., generally known as the Longshoremen's &
                                                            Harbor Workers' Act. It was also [**3] stated, "It was felt
Opinion by: WERLEIN                                         that this would seriously jeopardize plaintiff's case if a
                                                            compensation claim would not be disposed of first. This
Opinion                                                     is to advise you that this claim had been disposed of by
                                                            an award by the Honorable C. D. Calbeck, United
                                                            States Deputy Commissioner, and, therefore, the case
                                                            can now go to trial without prejudice to the rights he had
[*949] On Motion For Rehearing
                                                            under the Act. Our Mr. Kirtley is now requesting the
WERLEIN, Justice.                                           case for trial for your next jury assignment. Every effort
                                                            is being made to dispose of this case by that date." As a
On motion for rehearing appellant's motion for leave to     result of such communication, the court retained the
file supplemental transcript is granted and this Court's    case upon the docket of the court. There was no
opinion handed down on March 30, 1967 is withdrawn          objection or exception to the court's action by any of the
and the following opinion is substituted therefor.          parties to the suit. Thereafter there was great activity in
                                                            connection with the prosecution of the suit up to the time
This is an appeal from a judgment entered July 12, 1966     it was dismissed.
dismissing for want of prosecution appellant's cause of
action brought to recover damages for personal injuries     On December 14, 1965, as shown by the court's docket
sustained by him on September 6, 1960 while working         sheet, appellant requested a setting of the case for trial
as a longshoreman in the hold of the SS Armagh              on the jury [*950] docket in the December, 1965, term
assisting in unloading bulk ore from such vessel.           of court, and sent copies of such request to appellees,
Appellant filed suit on March 24, 1961 against the City     City of Galveston and Avenue. On December 23, 1965,
of Galveston and the owners and operators of the ship,      the suit was continued by agreement. Appellant did not
Avenue Shipping Co., Ltd. and Trinder Anderson &            sue Strachan since such company was his
Company, Ltd., both foreign corporations, sometimes         employer [**4] and he was covered under the United
herein called Avenue, inasmuch as their positions in this   States Longshoremen's & Harbor Workers' Act.
litigation are identical. Said appellees were duly served   Dismissal notices were again sent out by the court in
with citation and answered. On March 27, 1961               March, 1966. On March 28, 1966 appellant requested a
appellant demanded a jury and on April 13, 1961 filed       setting for the April term. On April 1, 1966 the attorney
his first amended [**2] original petition. On petition of   for the City of Galveston notified appellant's attorneys
Avenue, the suit was removed to the United States           that the court had set a pretrial hearing of the case for
District Court. It was remanded to the State court on       April 8, and that the case was at the top of the docket
motion of the City of Galveston on May 29, 1961. On         for trial during the week of April 25, 1966. On April 8,
September 14, 1961 Strachan Shipping Company,               1966, the case was continued on motion of appellees. In
appellant's employer, the contract stevedore, sometimes     said letter of April 1, 1966, counsel for the City of
called herein Strachan, filed its answer to the cross-      Galveston also stated that he would appreciate
action filed against it by the City of Galveston. The       appellant's counsel picking a day within the next two
court's docket sheet shows that no action whatever was      weeks that he could furnish appellant for the purpose of
taken in the case from May 29, 1961 until August 5,         taking his deposition. On April 4, 1966, counsel for

                                                   Nicole Mitchell
                                                                                                             Page 4 of 8
                               414 S.W.2d 948, *950; 1967 Tex. App. LEXIS 2890, **4

appellant notified counsel for appellees that he could         adduced consisting of the testimony of the attorneys
present appellant for deposition at any time upon giving       representing appellant and appellees. The attorney for
appellant's counsel two to three days' notice.                 the City of Galveston testified in substance that this
                                                               suit [**7] grew out of an accident involving a crane
On May 10, 1966, counsel for appellant wrote the court         which was owned by The Galveston Wharves and that
advising that the last time he appeared before the court,      the operator of the crane, Frank McPeters, died on May
the court had set the case down for trial on June 27,          8, 1965; that he had not talked to McPeters but had
1966 and for a pretrial hearing on June 10, 1966, and          obtained a statement made by him; that he received a
also advising that appellant [**5] would be ready to try       notice that the case was set for dismissal in October,
the case on June 27, 1966. On June 10, 1966, the plea          1965, and as he remembered [*951] the court allowed
in abatement filed by the City of Galveston was                it to stay on the docket at that time and that he did not
overruled. On the same day the City filed its motion to        object to the court's order doing so.
dismiss and such motion was set for hearing on June
17, 1966. Strachan's and Avenue's motions to dismiss           The attorney for Strachan testified in substance that
also came up for hearing on June 17, 1966. After               shortly after the cross-action was filed against Strachan
hearing such motions and appellant's motion to                 he made a trip to Galveston and talked to a gentleman
reconsider such motions to dismiss, filed by appellant         named Calvin Floeck who was at that time an assistant
on June 23, 1966, the court entered an order on July 12,       stevedoring superintendent for Strachan, and obtained
1966 dismissing the cause of action and all cross-             from him his evaluation and the circumstances of the
actions.                                                       accident; that after this case was set on the dismissal
                                                               docket in February, 1966, Mr. Floeck died; that he had
The record shows further that on April 6, 1966 appellant       been informed approximately six weeks ago that Mr. H.
filed what is denominated "Plaintiff's First Amended           Weber, who was gang foreman of Strachan at the time
Original Petition" which in fact was his second amended        of the accident, died during the latter part of 1965.
original petition, since his first amended original petition
was filed April 13, 1961. On May 12, 1966, appellant           The attorney for Avenue testified in substance that
filed his request for admissions addressed to the City of      according to the records he had investigated, the SS
Galveston and/or its attorneys by name, and on the             Armagh was sold in 1961 and according [**8] to Lloyd's
same day made request of Avenue for admissions. On             List Reports on June 2, 1966 such vessel was in the Far
May 12, 1966, appellant's counsel filed an answer to the       East operating between Hong Kong and Japanese
plea in abatement of the City of Galveston. On May 20,         ports; that in his opinion there was no practical or
1966, the City of Galveston filed its reply to appellant's     feasible way to have reliable people board the vessel to
request for admissions. On May 27, 1966, [**6]                 ascertain certain conditions of her structure, especially
appellant filed his third amended original petition. On        in connection with Hold No. 5 in which appellant was
June 10, 1966, Strachan filed its answer to the cross-         working on the occasion in question; that after the
action of Avenue. On May 16, 1966, there was filed in          deposition of appellant was taken on April 12, 1966 it
the court a stipulation of a compensation lien which was       became obvious to Avenue that the physical setup in
executed by the lawyers representing all the parties in        the hold and its height and dimensions were material in
the suit; on April 8, 1966, Avenue filed its first amended     the case inasmuch as the attorney for appellant and
original answer and cross-action against the City of           appellant were primarily basing their cause of action
Galveston, and impleaded Strachan; on May 12, 1966             against Avenue on the ground of failure of the
appellant filed his exceptions to the answer of Avenue,        stevedores to use mechanical equipment in the hold,
which appellant asserts in his brief were discussed with       which Avenue had reason to believe would not have
the attorneys for Avenue who agreed that the                   been practical because of the size of the hold and the
exceptions were good and who stated they would file an         shaft alley which bisected it; that they were not given
amended answer setting out specifically acts of                notice in appellant's original and first amended petitions
contributory negligence on the part of appellant. The          that this was a specific ground of liability, and it was only
case was set for trial three times and at each setting         after appellant gave his deposition that they felt such
appellant announced ready for trial. On April 12, 1966,        physical conditions were pertinent; that he had written
appellant's deposition was taken. On May 18, 1966, the         his clients in England but that he had not as yet
deposition of the witness, W. L. Patterson, was taken.         been [**9] successful in getting any response; that they
                                                               had no statements with information from the officers
At the hearing of the motions to dismiss, evidence was         aboard the ship; that in order to show that the

                                                     Nicole Mitchell
                                                                                                          Page 5 of 8
                              414 S.W.2d 948, *951; 1967 Tex. App. LEXIS 2890, **9

operations in question were not performed in any             stated it would permit appellant to offer testimony to
manner which would render the ship liable, it would be       explain the delay.
necessary to look to the testimony of employees of the
City of Galveston and employees of Strachan, because         One of appellant's attorneys testified as to other
it was clear from appellant himself that the vessel's        litigation of his firm and as to appellant's claim under the
personnel did not participate in any of the operations       Longshoremen's & Harbor Workers' Act. He undertook
alleged to have caused appellant's injury.                   to explain the delay prior to the dismissal notice of
                                                             August, 1965, by saying that appellant's counsel
He also testified that Lloyd's Registry states the place     deemed it advisable to secure appellant's compensation
where the ship was built, but he had not contacted the       rights before proceeding with the third party case,
vessel's builder to determine whether the blueprints and     although he admitted there was no legal reason why
diagrams of the vessel were available; that in December      both claims could not be prosecuted at the same time.
he did not object to the case remaining on the docket;
that he did not attend the hearing of the setting of the     At the conclusion of the hearing on June 17, 1966, the
case in March or April, 1966, when it was set again for      court stated that it granted the motions for dismissal and
dismissal, and that it was his impression that the April 6   found that appellant had failed [**12] to show good
setting was taken off the show-cause docket; and that        grounds for the delay in the trial of the case, and also
the attorney for Strachan had obtained a capacity plan       that appellees had been prejudiced thereby. On June
of the vessel, or a sister vessel, from the ship builders    23, 1966, appellant filed his motion to reconsider
and had given him a copy of that, but it did not supply      appellees' motions to dismiss for want of prosecution,
the information [**10] with respect to the dimensions of     which motion was inadvertently omitted by the District
the cargo hold in question or of the shaft alley which       Clerk of Galveston County from the transcript filed
bisects it or any longitudinal bulkheads in the hold which   herein although the affidavit of Mr. Mandell, counsel for
he considered material to the question as to the manner      appellant, attached thereto, was included in the
of discharging the particular cargo.                         transcript. Such motion is contained in the supplemental
                                                             transcript now before us.
After hearing appellees' testimony, the court stated that
no action was taken in the case from May 29, 1961, until     Appellant's point of error is: "In passing on a motion to
August, 1965, when dismissal cards were sent to all          dismiss for want of prosecution, the lack of action at a
parties informing them that all cases which had been on      time of or shortly before presentation of the motion to
the docket more than three years would be set up for         dismiss governs the court's action." Appellant in his brief
dismissal on October 6, 1965, and that when such             does not assert, other than by implication, that the court
docket was called on that date Mr. Mandell or a member       erred or abused its discretion in dismissing the case.
of his firm was present and stated that they did not wish    Nevertheless, appellant has made it clear in his brief
the case dismissed and would proceed with it in the          that he is complaining of the court's action in dismissing
near future, and requested a setting for the December        his cause of action and in denying him the valuable right
term; that on December 14, 1965, at the call of the          to a trial on the merits under the facts and
docket it appeared [*952] to the court from the              circumstances developed at the hearing of appellees'
information available and discussions with the attorneys     motions to dismiss and his motion for rehearing.
that the case was not ready for trial, and it was
                                                             It is appellant's [**13] contention, as set out in his brief
continued by agreement. The court further stated that
                                                             that neither the trial court nor this Court should consider
no action was taken thereafter until the dismissal docket
                                                             any delay in the case at bar from May 29, 1961 until
was set up in March, 1966, for April 6, and that in the
                                                             October 6, 1965, since the court at such latter date
meantime appellant's firm submitted [**11] a request for
                                                             retained the case on its docket, thereby indicating that it
setting on March 28 for the April term; that the case was
                                                             found there was good cause for the delay up to such
put on the docket for the April term and upon the call of
                                                             date. In Chapman v. Gibson, 8 S.W. 2d 711,
the docket on April 8 was continued again after
                                                             Tex.Civ.App. 1928, the court said: "HN1[ ] The want of
considerable discussion among the lawyers and the
                                                             action at the time of or just before the dismissal would
court, and thereupon appellant again requested it be set
                                                             control on the question of abandonment of the
for the June term of court; and that at the call of the
                                                             prosecution." Also in David Graham Hall Foundation v.
docket on June 10, 1966, appellant announced ready.
                                                             Highland Park Independent School District, 371 S.W. 2d
The court then found as a matter of law that the case
                                                             762, Tex.Civ.App. 1963, ref., n.r.e., the court, citing
had been on file for an unreasonable length of time but

                                                   Nicole Mitchell
                                                                                                            Page 6 of 8
                               414 S.W.2d 948, *952; 1967 Tex. App. LEXIS 2890, **13

Chapman v. Gibson, stated: "In passing on a motion to          Chief Justice Hickman, used the following language
dismiss on the grounds of abandonment the lack of              HN4[ ] with respect to dismissal of a motion for new
action at the time of the presentation of the motion or        trial or an independent suit:
just before the presentation will govern the court's
decision." That case was an action for delinquent ad               "The matter rests in the sound discretion of the trial
valorem taxes. When the suit was originally filed in 1942          court. It is not an unbridled discretion, but a judicial
only the taxes for the year 1941 were in question. When            discretion subject to review. Upon review, the
the school district and the town filed their amended               question is whether there [**16] was a clear abuse
pleadings in 1958 they sued for additional taxes which             of discretion by the trial court. That is a question of
had accrued up to the year 1958. The State [**14] and              law. It is thought that only two decisions by this
County appeared by intervention for the first time in              court need be cited in support of the rule just
1959.                                                              announced. However, there are many Texas cases
                                                                   cited in support thereof in 15-A Texas
Based upon the case of Ayers v. D. F. Quillen & Sons,              Jurisprudence, p. 383, § 41. In the First National
Inc., Del. Sup., 55 Del. 481, 188 A. 2d 510, the following         Bank of Houston v. Fox, 121 Tex. 7, 39 S.W. 2d
statement is made in [*953] 24 Am. Jur. 2d 51, § 59:               1085, 1086, this court held:
"HN2[ ] A motion to dismiss for want of prosecution
should not be granted if at the time of the motion plaintiff       "'It is a well-established rule that HN5[ ] in the
is diligently prosecuting his claim, even though at some           absence of a statutory prohibition, every court has
prior period of time he had been guilty of gross                   the power to dismiss a suit for want of prosecution.
negligence or neglect." It is our view that after appellees        9 R.C.L., p. 206, § 25; 18 C.J. 1191, 1192, § 110;
filed their motions to dismiss the case for want of                Hall v. City of Austin, 31 Tex.Civ.App. 626, 73 S.W.
prosecution, the court in considering such motions was             32.'"
not restricted to what had occurred subsequent to
October 6, 1965, but could also consider any delay             The court further stated, HN6[ ] with respect to such
which occurred prior to that date as well as all of the        motion for new trial: "The fact that respondents had no
evidence adduced upon the hearing of such motions.             intention to abandon it, or that their attorney had hopes
                                                               of settling the case, cannot be made a ground for
Our Supreme Court has held that HN3[ ] a suit may be           charging an abuse of discretion by the trial court. . . .
dismissed for lack of diligence in its prosecution in the      Petitioners owed no duty to seek a hearing on
past, although the plaintiff's objections to the dismissal     respondents' motion."
at the hearing thereon manifest his intention to
prosecute it to judgment. Reed v. Reed, Tex. Sup.              In Callahan v. Staples, 139 Tex. 8, 161 S.W. 2d 489,
1958, 158 Tex. 298, 311 S.W. 2d 628; Bevil v. Johnson,         our Supreme Court announced the general rule in this
Tex. Sup. 1957, 157 Tex. 621, 307 S.W. 2d 85; Denton           language:
County [**15] v. Brammer, Tex. Sup. 1962, 361 S.W.
                                                                   "Such rule as so developed and applied may be
2d 198. In the early case of Roemer v. Shackelford,
Tex.Civ.App., 23 S.W. 87, however, Justice Williams, in            explained in these words: HN7[ ] Where the
                                                                   defendant [**17] in a suit is called to answer and
speaking for the Court of Civil Appeals, stated: "There
                                                                   has responded to the call, the duty devolves on the
was no error in the refusal of the court to dismiss the
                                                                   plaintiff to proceed in prosecuting the suit to a
suit in 1889 for want of prosecution. The plaintiffs were
                                                                   conclusion with reasonable diligence, and
prosecuting it, continuances being entered from term to
                                                                   whenever a delay of an unreasonable duration
term, generally by agreement. If sufficient diligence was
                                                                   occurs, such delay, if not sufficiently explained, will
not being used, defendants' remedy was to force
                                                                   raise a conclusive presumption of abandonment of
plaintiffs to a trial, and not to dismiss for want of
                                                                   the plaintiff's suit, and a discontinuance results."
prosecution when plaintiffs appeared to represent their
                                                               See also Crosby v. DiPalma, 141 S.W. 321,
cause." Appellant, in relying on Roemer v. Shackelford,
                                                               Tex.Civ.App. 1911, error refused.
supra, and Beasley v. Keck, 280 S.W. 855,
Tex.Civ.App. 1926, asserts that appellees' remedy was
                                                                [*954] It is our view that the instant case is factually
to force appellant to trial, and not to have the suit
                                                               distinguishable from the cases of Reed v. Reed, supra;
dismissed for want of prosecution.
                                                               Bevil v. Johnson, supra, and Denton County v.
In Bevil v. Johnson, supra, the court, speaking through        Brammer, supra. In Reed v. Reed, supra, the court


                                                     Nicole Mitchell
                                                                                                          Page 7 of 8
                              414 S.W.2d 948, *954; 1967 Tex. App. LEXIS 2890, **17

stated in substance that a suit may properly be               of the ship from Galveston and its sale in all probability
dismissed for past lack of diligence in its prosecution,      made it just as difficult to obtain evidence from the
not withstanding that the plaintiff's objection to the        owners and operators thereof in 1961 as in 1965 or
dismissal at the time of the corresponding hearing was        1966. It was not shown when counsel wrote his clients
in effect a manifestation of his intent to prosecute the      to obtain information. He requested no postponement
suit to judgment. In the Reed case citation was not           nor did he file any application for continuance in [**20]
issued for a period of almost fifteen months after the suit   order to have time to procure evidence from the owners
was filed. In the instant case citation was promptly          or operators with respect to the structure of the vessel
issued and served. Furthermore, appellant did not             and its hold and the nature and condition of the
merely express an intention to prosecute [**18] the           equipment used on the occasion in question.
case. Appellant had been diligently prosecuting the case
for approximately eight months prior to its dismissal. In     We have examined the cases cited by appellee. In none
Bevil v. Johnson, supra, there was no activity in the         of them was there any activity for a substantial period of
case for a period of some eight years. In Denton County       time prior to the filing of the motion to dismiss. In the
v. Brammer, supra, a condemnation suit, there was an          instant case there was not only great activity for a period
unexplained delay of seven years in the issuance and          of nearly eight months prior to the time the suit was
service of citation upon the condemnor, and an                dismissed, but there was a diligent effort on the part of
unexplained delay of five years following the                 appellant to bring the case to trial. He announced ready
condemnees' withdrawal of the award before the                for trial on three different occasions. This fact
condemnees obtained a setting and trial of the case.          distinguishes the instant case from the cases relied
                                                              upon by appellees.
It is our view that it was error and an abuse of discretion
to dismiss appellant's cause of action under the peculiar     The record indicates that appellant's counsel was acting
facts and circumstances of this case. The testimony of        in good faith in an effort to best serve his client by not
counsel for the City of Galveston shows that the              sooner [*955] pressing for trial. Although this suit might
operator of the crane, McPeters, died on May 8, 1965.         have been tried prior to the settlement of appellant's
No attempt had been made to take the deposition of            claim for compensation in 1965 under the United States
McPeters. Moreover, all of the 8 months' activity in the      Longshoremen's and Harbor Workers' Compensation
suit occurred after the death of McPeters without             Act, appellant's attorney felt that it would be in the best
objection on the part of such counsel.                        interest of his client not to try the case until his client
                                                              had reached the [**21] maximum state of recovery and
Counsel for Strachan did not make any attempt to take         the compensation claim had been disposed of. We are
the deposition of Floeck or Weber. It is true that it has     also of the opinion that appellant showed reasonable
been held in this State that where a defendant has been       grounds for not sooner pressing for trial in that there
called upon to answer in a law [**19] suit, the duty          was a serious question prior to 1965 as to the liability of
devolves upon the plaintiff to prosecute the suit             a ship owner for injuries to a longshoreman resulting
diligently. This does not mean that the defendant should      from the use of shore-based equipment. It had been
not also prepare his defense diligently by procuring the      held by several Federal courts that HN8[ ] a
testimony of witnesses upon whom he relies. There is          longshoreman could not recover for injuries sustained
no reason why appellant should be charged with the            by him against the owner of the ship when the
loss of Strachan's witnesses as he had no more reason         equipment causing the injury was shore-based and not
to expect their deaths than did appellees. Nor was it         of the type commonly found as a part of the gear that
shown that other witnesses were not available who             the ship would be expected to furnish. In McKnight v. N.
could give substantially the same evidence as Floeck          M. Paterson & Sons, Ltd., 181 F. Supp. 434, the court
and Weber.                                                    held that where an independent contractor used a crane
                                                              that was not an appurtenance of the ship, and the ship
Counsel for Avenue failed to show that the evidence           owner had no control over the choice of the crane, the
concerning the structure of the ship and its hold could       defect in the crane which resulted in injury did not
not be obtained from the builders of the ship. Again no       render the vessel unseaworthy and the longshoreman
effort was made to take the depositions of any of the         was not entitled to recover from the vessel owner on the
owners or operators of the ship. Furthermore, the ship        basis of unseaworthiness. This judgment was affirmed
left Galveston sometime after the occurrence in               by the U.S. Circuit Court of Appeals, 6th Cir., 286 F.2d
question and was sold in the year 1961. The departure         250.

                                                    Nicole Mitchell
                                                                                      Page 8 of 8
                              414 S.W.2d 948, *955; 1967 Tex. App. LEXIS 2890, **21

Appellant's counsel states that he was aware of [**22]
the fact that there was pending in the U.S. District Court
of California the case of Huff v. Matson Navigation Co.,
225 F. Supp. 72 (1963). The judgment in such case was
reversed by the U.S. Circuit Court of Appeals, 338 F.2d
205, 9th Cir. 1964, and certiorari was denied by the
Supreme Court of the United States, 380 U.S. 943, 85
S. Ct. 1026, 13 L. Ed. 2d 963, on March 15, 1965. This
case held that the liability of the owner of the vessel to
the stevedore's longshoreman who was injured when hit
in the hold of a vessel by a scraper which was a part of
the stevedore's dockside crane used to unload bulk
sugar from the vessel, could be predicated on a claim of
unseaworthiness. Thus, the question as to the liability of
the ship owner for shore-based equipment was not
resolved until 1965. Appellant's counsel states that his
duty to his client would have been substantially impaired
had he prosecuted his client's suit prior to the time that
such law question had been finally decided by the
Supreme Court of the United States. See Spann v.
Lauritzen, 344 F.2d 204 (3rd Cir. 1965) reversing the
judgment of the U.S. District Court, 237 F. Supp. 569,
certiorari denied 382 U.S. 1000, 86 S. Ct. 531, [**23]
15 L. Ed. 2d 489 (1966), holding the ship owner
responsible for a longshoreman's injuries caused by a
shore-based crane. See also Deffes v. Federal Barge
Lines, Inc., 361 F.2d 422 (Ct. of App., 5th Cir. 1966).

It is our view that appellant showed reasonable grounds
for delay in bringing the case to trial in view of the
unsettled state of the law prior to 1965. We are of the
opinion also that the case should not have been
dismissed for want of prosecution in view of the
tremendous amount of activity in the case for some
eight months prior to its dismissal, during which time
none of the appellees or their counsel objected but
instead measurably participated.

Judgment of the Trial Court is reversed and the cause is
remanded for trial on its merits.

Associate Justice Coleman not sitting.


  End of Document




                                                   Nicole Mitchell
     Warning
As of: March 23, 2018 5:07 PM Z


                                                  State v. Rotello
                                                 Supreme Court of Texas
                                                       June 6, 1984
                                                        No. C-2816

Reporter
671 S.W.2d 507 *; 1984 Tex. LEXIS 356 **; 27 Tex. Sup. J. 407
                                                                their motion to reinstate the case, which the trial court
THE STATE OF TEXAS, Petitioner v. TOM ROTELLO
                                                                denied. In reversing the judgment of the court of
ET UX., Respondents
                                                                appeals, the court determined that the trial court did not
                                                                abuse its discretion in dismissing the case where it had
Subsequent History: [**1] Rehearing Denied July 11,
                                                                been pending for 15 years with little activity and was still
1984.
                                                                not ready for trial.
Prior History:  FROM                BRAZOS         COUNTY
                                                                Outcome
FOURTEENTH DISTRICT.
                                                                The court reversed the judgment of the court of appeals
                                                                and affirmed the trial court's judgment dismissing the
Core Terms                                                      landowners' case.

trial court, notice, reinstate, want of prosecution, local
rule, courts, ref'd                                             LexisNexis® Headnotes

Case Summary

Procedural Posture
                                                                    Civil Procedure > Dismissal > Involuntary
Petitioner State of Texas sought review of an order of
                                                                    Dismissals > Failure to Prosecute
the court of appeals of Brazos County, Fourteenth
District (Texas), which reversed the trial court's
                                                                    Civil Procedure > Dismissal > Involuntary
judgment of dismissal for want of prosecution in an
                                                                    Dismissals > General Overview
action filed by respondent landowners in which they
sought an injunction and damages for inverse                        Civil Procedure > Dismissal > Involuntary
condemnation relating to the flooding of their land.                Dismissals > Hearings on Dismissal

Overview                                                        HN1[ ]    Involuntary        Dismissals,      Failure    to
The landowners filed suit against the State for inverse         Prosecute
condemnation. On remand from a previous appeal, the
trial court dismissed the action for want of prosecution.       Pursuant to Brazos County, Tex., Ct. R. 11-1, there
The court of appeals reversed. On appeal, the court             shall be a dismissal docket each April and October. The
found that Brazos County, Tex., Ct. R. 11-1 provided            rule further provides that cases that have been on file
that there was a dismissal docket each April and                over two years which are not set for trial or other
October in which cases could be dismissed for lack of           hearing shall be set for hearing for all parties to show
prosecution. The landowners contended that they did             cause why same should not be dismissed for want of
not receive notice that the matter was on the dismissal         prosecution; and without good cause shown, at or
docket. However, they were charged with notice of the           before such hearing such cases will be dismissed by the
intent to dismiss by their attorney's knowledge of the          court for want of prosecution without further notice. This
local rule. The landowners had also been given prompt           rule shall constitute notice of such hearings, and
notice of the order of dismissal and, within 30 days after      counsel shall keep informed as to the length of time
it was signed, a full evidentiary hearing was held on           each of their cases have been on file.

                                                       Nicole Mitchell
                                                                                                        Page 2 of 4
                                 671 S.W.2d 507, *507; 1984 Tex. LEXIS 356, **1




    Civil Procedure > Dismissal > Involuntary                [*507] On August 7, 1969, Tom Rotello and wife filed
    Dismissals > Appellate Review                           suit against the State of Texas seeking damages for
                                                            inverse condemnation relating to the flooding of their
    Criminal Law & Procedure > ... > Standards of           land and also seeking an injunction.
    Review > Abuse of Discretion > General Overview
                                                            In 1972, the case was dismissed for want of
    Civil Procedure > Dismissal > Involuntary               prosecution, but this dismissal was reversed and the
    Dismissals > General Overview                           case was remanded for trial. See Rotello v. State, 492
                                                            S.W.2d 347 (Tex. Civ. App. -- Houston [1st Dist.]), writ
    Civil Procedure > Dismissal > Involuntary               ref'd n.r.e. per curiam, 497 S.W.2d 290 (Tex. 1973). It
    Dismissals > Failure to Prosecute                       was again dismissed for want of prosecution on July 30,
                                                            1982. The court of appeals reversed the trial court's
    Governments > Courts > Authority to Adjudicate          judgment of dismissal and remanded the case to the
                                                            trial court. 666 S.W.2d 194. We reverse [*508] the
HN2[   ] Involuntary Dismissals, Appellate Review           judgment of the court of appeals and affirm the trial
                                                            court judgment.
A trial court has the inherent power to dismiss cases not
prosecuted with due diligence.                              The principal question presented is whether the Rotellos
                                                            were afforded due process. Specifically, the inquiry is
                                                            whether the Rotellos were given adequate notice of the
                                                            trial court's intention to dismiss their case and, if not,
    Civil Procedure > Appeals > Standards of
                                                            whether the Rotellos were given [**2] due process by
    Review > Abuse of Discretion
                                                            the hearing on their motion for reinstatement. Finally, we
                                                            must decide whether the trial court's order of dismissal
    Criminal Law & Procedure > ... > Standards of
                                                            was an abuse of discretion.
    Review > Abuse of Discretion > General Overview
                                                            This case was dismissed HN1[ ] pursuant to rule 11-1
    Civil Procedure > Judicial                              of the local rules of the district courts of Brazos County.
    Officers > Judges > Discretionary Powers                This rule provides in part that there shall be a dismissal
                                                            docket each April and October.            The rule further
    Civil Procedure > Dismissal > Involuntary
                                                            provides:
    Dismissals > General Overview
                                                                Cases that have been on file over two (2) years
    Civil Procedure > Dismissal > Involuntary                   which are not set for trial or other hearing SHALL
    Dismissals > Failure to Prosecute                           BE SET FOR HEARING for all parties to show
                                                                cause why same should not be dismissed for want
HN3[   ] Standards of Review, Abuse of Discretion               of prosecution; and without good cause shown, at
                                                                or before such hearing such cases will be
The matter of whether to dismiss a case for want of
                                                                dismissed by the Court for want of prosecution
prosecution rests in the sound discretion of the trial
                                                                without further notice . . . . This Rule shall
court. It is not an unbridled discretion, but a judicial
                                                                constitute notice of such hearings, and counsel . . .
discretion subject to review. Upon review, the question
                                                                shall keep informed as to the length of time each of
is whether there was a clear abuse of discretion by the
                                                                their cases have been on file. (emphasis added).
trial court.
                                                            This rule was adopted by the district courts of Brazos
Judges: Charles W. Barrow, Justice. Sears McGee,            County prior to April 1979 and was in effect at the time
Justice.                                                    of this dismissal. This case was placed on the April
                                                            1982 dismissal docket by the trial court, but the order of
Opinion by: BARROW                                          dismissal was not signed until July 30, [**3] 1982. In
                                                            the meantime, there was no communication with the trial
Opinion                                                     court by the Rotellos or their attorney and thus no effort
                                                            to show good cause for the case not being dismissed.

                                                   Nicole Mitchell
                                                                                                                 Page 3 of 4
                                      671 S.W.2d 507, *508; 1984 Tex. LEXIS 356, **3

The Rotellos were given prompt notice of the order of               S.W.2d 930 (Tex. 1975); Pollok v. McMullen Oil &
dismissal, and, within thirty days after it was signed, a           Royalty Co., 383 S.W.2d 837 (Tex. Civ. App. -- San
full evidentiary hearing was held on their motion to                Antonio 1964, writ ref'd); Bevil v. Johnson, 157 Tex.
reinstate the case. This motion was denied by the trial             621, 307 S.W.2d 85 (1957). The test for appellate
court.                                                              review of dismissal for want of prosecution was stated in
                                                                    Bevil v. Johnson as follows:
It is urged that local rule 11-1 was void because a copy
had not been furnished to the Supreme Court of Texas                    HN3[ ] The matter rests in the sound discretion of
as required by Rule 817, Texas Rules of Civil                           the trial court. It is not an unbridled discretion, but a
Procedure. This contention is without merit. Approval of                judicial discretion subject to review. Upon review,
the supreme court was not required at the time this case                the question is whether there was a clear abuse of
was dismissed 1 and, therefore, the purpose for                         discretion by the trial court.
furnishing a copy to the supreme court was to provide a
central place for notice to interested parties. This type           307 S.W.2d at 87.
notice was not necessary in this case as the record
conclusively establishes that the attorney for the                  In considering whether the trial court abused its
Rotellos had actual notice of the local rule regarding              discretion, we must start with the disturbing fact that at
dismissal. He had filed several motions in other years in           the time of dismissal this case had been on the court's
compliance with this rule to successfully retain the case           docket for nearly thirteen years. Notwithstanding [**6]
on the active docket of the trial court. There was                  the fact that some activity occurred in recent years, the
discussion at a prior pretrial [**4] conference that this           trial court was entitled to consider the entire history of
case was a candidate ripe for the dismissal docket.                 the case. Estate of Bolton v. Coats, 608 S.W.2d 722,
                                                                    727 (Tex. Civ. App. -- Tyler 1980, writ ref'd n.r.e.); Rorie
We conclude that the Rotellos are charged with notice               v. Avenue Shipping Co., 414 S.W.2d 948, 952-53 (Tex.
of the trial court's intention to dismiss this cause at the         Civ. App. -- Houston 1967, writ ref'd n.r.e.). The case
April 1982 dismissal docket by their attorney's                     had been dismissed once for want of prosecution and
knowledge of the local rule. See Schlosser v. Tropoli,              reinstated by the appellate courts only for lack of notice.
609 S.W.2d 255, 257-58 (Tex. Civ. App. -- Houston                   Despite this dismissal and reinstatement, it is conceded
[14th Dist.] 1980, writ ref'd n.r.e.). This was sufficient          by the Rotellos that there was nothing done to
notice to satisfy the requirements of due process and to            prosecute the case between 1973 and 1980. A pretrial
authorize the trial court's dismissal of the case.                  conference was held in September 1980, but nothing
                                                                    further was done until late 1981. Depositions were
It is therefore unnecessary to consider the effect of the           taken in February 1982, but a scheduled pretrial hearing
hearing on the Rotellos' motion for reinstatement. We               was passed. With this background, the trial court was
would observe, however, that the hearing was held at a              fully justified in setting the case on the April 1982
time the trial court had full control of the judgment. Also,        dismissal docket on its own motion. Nothing further was
the Rotellos were given the same hearing with the same              done by the Rotellos until after the order of dismissal
burden of proof they would have been [**5] given                    was signed on July 30, 1982.
before the order of dismissal was signed.                Cf.
Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14                The Rotellos filed a motion to reinstate which was heard
L. Ed. 2d 62 (1965).                                                by the trial court while it had full control over the
                                                                    judgment. See Tex. R. Civ. P. 329b; cf. Harris [**7]
The Rotellos further assert that the trial court abused its         County v. Miller , 576 S.W.2d 808 (Tex. 1979). At the
discretion in dismissing this case. It is settled law that          hearing on the motion to reinstate, the son of the
the HN2[ ] trial court has the inherent power to dismiss            Rotellos and their lead attorney testified. It was stated
 [*509] cases not prosecuted with due diligence. See                that Mr. Rotello had been sick during part of the inactive
Southern Pacific Transportation Co. v. Stoot, 530                   period and that the lead attorney had undergone serious
                                                                    eye surgery in February of 1982.

                                                                    We cannot say after an examination of this record that it
1 New   Rule 3a, which became effective April 1, 1984,              was a clear abuse of discretion for the trial court to
superseded Rule 817 and it requires approval by the supreme         dismiss this case. This proceeding has been plagued
court of local rules prior to their promulgation. Tex. R. Civ. P.   by delay and inactivity from the outset. It has been
3a.

                                                          Nicole Mitchell
                                                                                    Page 4 of 4
                                   671 S.W.2d 507, *509; 1984 Tex. LEXIS 356, **7

pending for fifteen years, it has been in four appellate
courts, and still it is not ready for trial. Such delay can
not be tolerated in this day of crowded dockets. As was
said by this court in Southern Pacific Transportation Co.
v. Stoot, 530 S.W.2d at 931:

    Delay haunts the administration of justice.            It
    postpones the rectification of wrong and the
    vindication of the unjustly accused. It crowds the
    dockets of the courts, increasing the costs for all
    litigants, pressuring judges to take short cuts,
    interfering with the prompt and deliberate
    disposition of those causes in which all parties are
    diligent and prepared for trial, and overhanging
    the [**8]    entire process with the pall of
    disorganization and insolubility. But even these are
    not the worst of what delay does. The most erratic
    gear in the justice machinery is at the place of fact
    finding, and possibilities for error multiply rapidly as
    time elapses between the original fact and its
    judicial determination. If the facts are not fully and
    accurately determined, then the wisest judge
    cannot distinguish between merit and demerit. If
    we do not get the facts right, there is little chance
    for the judgment to be right.

The judgment of the court of appeals is reversed and
the trial court judgment is affirmed.

Dissent by: McGEE

Dissent


Sears McGee, Justice

I respectfully dissent and would affirm the judgment of
the court of appeals. 666 S.W.2d 194.

OPINION DELIVERED: June 6, 1984


  End of Document




                                                      Nicole Mitchell
     Caution
As of: March 23, 2018 5:08 PM Z


                             Villarreal v. San Antonio Truck & Equip.
                                              Supreme Court of Texas
                                   April 7, 1999, Argued ; May 27, 1999, Delivered
                                                    No. 98-0623

Reporter
994 S.W.2d 628 *; 1999 Tex. LEXIS 51 **
                                                           of prosecution. Plaintiff appeared and announced his
MARTIN M. VILLARREAL, PETITIONER v. SAN
                                                           readiness, but the court nevertheless dismissed. The
ANTONIO TRUCK & EQUIPMENT AND ROBERT
                                                           dismissal was upheld by the appellate court and plaintiff
GONZALEZ, RESPONDENTS
                                                           sought further review. In reversing and remanding for
                                                           further proceedings, the court ruled that because
Prior History: [**1] ON PETITION FOR REVIEW
                                                           plaintiff appeared and made his announcement at the
FROM THE COURT OF APPEALS FOR THE FOURTH
                                                           dismissal hearing, the trial court could not dismiss under
DISTRICT OF TEXAS.
                                                           its authority granted by Tex. R. Civ. P. 165a. Moreover,
Disposition: Reversed and remanded.                        the notice was insufficient to apprise plaintiff that the
                                                           trial court would exercise its inherent power to dismiss
                                                           for failure to diligently prosecute if he did not also show
Core Terms                                                 cause why the case should not be dismissed.
notice, trial court, announcement, want of prosecution,
                                                           Outcome
inherent power, diligently, dismissal notice, cases,
                                                           The judgment upholding the dismissal was reversed
parties, warn, court of appeals, sentences, invoking,
                                                           because plaintiff had appeared at the dismissal hearing
local rule, prosecute, reinstate, inherent authority,
                                                           and announced his readiness to proceed, as required by
district court, good cause, own motion, appearance,
                                                           procedural rules; the notice did not adequately apprise
literal
                                                           plaintiff that he was also required to show cause why
                                                           the case should not be dismissed by the trial court for
Case Summary                                               want of prosecution in the exercise of its inherent power.


Procedural Posture
                                                           LexisNexis® Headnotes
Plaintiff employee petitioned for review of the judgment
of the Court of Appeals for the Fourth District of Texas
that affirmed an order dismissing, for want of
prosecution, his complaint that defendant employers
had failed to maintain a safe work environment, after
                                                                Civil Procedure > Dismissal > Involuntary
notice was given that the case would be dismissed if
                                                                Dismissals > Failure to Prosecute
plaintiff made no announcement at a dismissal hearing
that he was ready to proceed.
                                                                Civil Procedure > Dismissal > Involuntary
                                                                Dismissals > General Overview
Overview
                                                           HN1[ ]    Involuntary        Dismissals,      Failure    to
Plaintiff employee sued defendant employers, accusing
                                                           Prosecute
them of failure to maintain a safe work environment.
Over two years later, after discovery had been
                                                           A trial court's authority to dismiss for want of prosecution
conducted, the trial court sua sponte sent plaintiff a
                                                           stems from two sources: Tex. R. Civ. P. 165a and the
notice that the case was set on the dismissal docket and
                                                           court's inherent power. A trial court may dismiss under
that if no announcement was made that plaintiff was
                                                           Rule 165a(1) on failure of any party seeking affirmative
ready to proceed, the case would be dismissed for want
                                                           relief to appear for any hearing or trial of which the party

                                                   Nicole Mitchell
                                                                                                            Page 2 of 7
                                    994 S.W.2d 628, *628; 1999 Tex. LEXIS 51, **1

had notice or under Rule 165a(2) when a case is not            HN4[ ]    Involuntary        Dismissals,      Failure    to
disposed of within the time standards promulgated by           Prosecute
the Texas Supreme Court. In addition, the common law
vests the trial court with the inherent power to dismiss       Language in a notice to dismiss for want of prosecution
independently of the rules of procedure when a plaintiff       unless a plaintiff appears and announces his readiness
fails to prosecute his or her case with due diligence.         for trial will not be so construed or interpreted as to lead
                                                               to absurd conclusions if the provision is subject to
                                                               another, more reasonable interpretation.
    Civil Procedure > Dismissal > Involuntary
    Dismissals > Failure to Prosecute
                                                                   Civil Procedure > Dismissal > Involuntary
    Civil Procedure > Dismissal > Involuntary                      Dismissals > Failure to Prosecute
    Dismissals > General Overview
                                                                   Governments > Courts > Judicial Precedent
HN2[ ]    Involuntary        Dismissals,      Failure    to
Prosecute                                                          Civil Procedure > Dismissal > Involuntary
                                                                   Dismissals > General Overview
A party must be provided with notice and an opportunity
to be heard before a court may dismiss a case for want         HN5[ ]    Involuntary        Dismissals,      Failure    to
of prosecution under either Tex. R. Civ. P. 165a or its        Prosecute
inherent authority. Rule 165a(1) provides that notice of
the court's intention to dismiss and the date and place of     To the extent that Ozuna v. Southwest Bio-Clinical
the dismissal hearing shall be sent by the clerk to each       Laboratories, 766 S.W.2d 900 (Tex. App. 1989, writ
attorney of record. The failure to provide adequate            denied), can be read to hold that the standard notice of
notice of the trial court's intent to dismiss for want of      dismissal, for failure to prosecute, used in Bexar County
prosecution requires reversal.                                 (Texas) district courts apprises parties of the court's
                                                               intent to dismiss on a ground other than the failure to
                                                               appear under Tex. R. Civ. P. 165a(1), or that Knight v.
                                                               Trent, 739 S.W.2d 116 (Tex. App. 1987, no writ),
    Civil Procedure > Dismissal > Involuntary
                                                               Gaebler v. Harris, 625 S.W.2d 5 (Tex. App.1981, writ
    Dismissals > Failure to Prosecute
                                                               ref'd n.r.e.), and Laird v. Jobes, 580 S.W.2d 413 (Tex.
                                                               App. 1979, no writ), imply that a party may be charged
    Criminal Law & Procedure > ... > Standards of
                                                               with such notice, such language of those cases is
    Review > Abuse of Discretion > General Overview
                                                               disapproved.
    Civil Procedure > Dismissal > Involuntary
                                                               Counsel: Luis R. Vera, Jr., San Antonio, TX, Les
    Dismissals > General Overview
                                                               Mendelsohn, Les Mendelsohn & Associates, San
                                                               Antonio, TX, for Petitioner.
HN3[ ]    Involuntary        Dismissals,      Failure    to
Prosecute                                                      Peter Y. Henry, Law Office of Peter Y. Henry, San
                                                               Antonio, TX., for Respondents.
If a plaintiff complies with all the requirements of a
notice to appear at a dismissal docket hearing and             Judges: CHIEF JUSTICE PHILLIPS delivered the
announce his readiness for trial, the trial court abuses       opinion of the Court, in which JUSTICE HECHT,
its discretion by invoking its inherent authority to dismiss   JUSTICE OWEN, JUSTICE ABBOTT, JUSTICE
for failure to prosecute diligently.                           HANKINSON, JUSTICE O'NEILL, and JUSTICE
                                                               GONZALES joined. JUSTICE ENOCH filed a dissenting
                                                               opinion, in which JUSTICE BAKER joined.
    Civil Procedure > Dismissal > Involuntary
                                                               Opinion by: THOMAS R. PHILLIPS
    Dismissals > Failure to Prosecute

    Civil Procedure > Dismissal > Involuntary                  Opinion
    Dismissals > General Overview

                                                     Nicole Mitchell
                                                                                                                      Page 3 of 7
                                       994 S.W.2d 628, *628; 1999 Tex. LEXIS 51, **1

 [*629] The issue presented is whether the standard                 docket [call]." At oral argument, Defendants further
notice of dismissal used by the district courts of Bexar            acknowledged that "[the plaintiff] did announce that he
County, which warns that a case will be dismissed "if no            was ready." Because the sole issue on appeal is the
announcement is made" at the dismissal hearing,                     adequacy of the Bexar County notice of dismissal, these
adequately apprises parties of the trial court's intent to          statements provide a sufficient factual basis to resolve
dismiss for want of prosecution in the exercise of its              the case.
inherent power. Because we hold that it does not, we
reverse the judgment of the court of appeals, 974                   Villareal contends that the dismissal was improper
S.W.2d 275, and remand this cause to the trial court for            because he complied with the notice's conditions of (1)
further proceedings.                                                presence at the dismissal docket hearing, and (2)
                                                                    announcement of readiness for trial. The notice, he
On June 21, 1994, Martin Villarreal sued San Antonio                says, limited the trial court's discretion to dismiss to
Truck and Equipment, Inc., and Robert Gonzales [**2]                those instances where "no announcement [**4] is
("Defendants") in Bexar County district court for failure           made." Thus, Villareal argues, the trial court abused its
to maintain a safe work environment. The parties                    discretion by dismissing the case for want of
engaged in discovery during the summer of 1994, but                 prosecution on the ground that "it appeared to the Court
no further action was taken until the trial court, on its           that there is good and sufficient reason for dismissal of
own motion, notified Villarreal on August 30, 1996, that            these cases for want of prosecution . . . ." 2
the case was set on the October 1996 dismissal docket.
The notice of setting stated:                                       Defendants maintain that the trial court committed no
                                                                    abuse because the Bexar County dismissal docket
BY DIRECTION OF THE PRESIDING JUDGE OF SAID                         notice "did not mislead Villarreal. It clearly stated that
COURT[,] NOTICE IS HEREBY GIVEN YOU THAT                            the case was being set for dismissal and did not state
THE ABOVE CAUSE(S), UPON ORDER OF THE                               that all Villarreal had to do as he argues, is to show up
COURT[,] IS SET FOR DISMISSAL ON THE 22ND                           and announce ready." Defendants argue that the notice
DAY OF OCTOBER, 1996 . . . . YOU ARE                                provided adequate warning that Villarreal was required
REQUESTED TO BE PRESENT AND MAKE YOUR                               to show good cause why his case should not be
ANNOUNCEMENT. IF NO ANNOUNCEMENT IS                                 dismissed at the docket call hearing. The court of
MADE, THIS CAUSE WILL BE DISMISSED FOR                              appeals affirmed, with one justice dissenting. 974
WANT OF PROSECUTION.                                                S.W.2d [**5] 275.

ALL ORDERS THAT WILL REMOVE A CASE FROM                             HN1[ ] The trial court's authority to dismiss for want of
THE DISMISSAL DOCKET MUST BE SUBMITTED TO                           prosecution stems from two sources: (1) Rule 165a of
THE DISMISSAL DEPARTMENT ON OR BEFORE                               the Texas Rules of Civil Procedure, and (2) the court's
THE DATE WHEN THE DOCKET IS CALLED.                                 inherent power. See Veterans' Land Bd. v. Williams, 543
                                                                    S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson, 157 Tex.
YOU ARE REMINDED THAT THIS IS NOT A DOCKET
                                                                    621, 307 S.W.2d 85, 87 (Tex. 1957). A trial court may
FOR THE RE-SETTING OF CASES, BUT FOR THEIR
                                                                    dismiss under Rule 165a on "failure of any party seeking
DISMISSAL.
                                                                    affirmative relief to appear for any hearing or trial of
On October 21, 1996, Villarreal filed a motion to set the           which the party had notice," TEX. R. CIV. P. 165a(1), or
case on the jury docket. On October 22, 1996, he filed a            when a case is "not disposed of within the time
motion to retain the case, asserting that he was ready to           standards promulgated by the Supreme Court . . . ."
proceed to trial. That same day, the trial court held the           TEX. R. CIV. P. 165a(2). 3 In addition, the common law
dismissal hearing. [**3] Although the record on appeal
does not contain a reporter's record of the hearing, 1
 [*630] Defendants conceded in their brief to this Court
                                                                    2 Villarrealappealed the trial court's dismissal for want of
that "the plaintiff and his attorney did appear at the
                                                                    prosecution without filing a motion to reinstate in the trial court
                                                                    pursuant to Texas Rule of Civil Procedure 165a(3). See TEX.
                                                                    R. CIV. P. 165(a)(3).
1 The  reporter's record of the dismissal hearing was excluded
from the record on appeal when the court of appeals denied          3 Rule   6 of the Rules of Judicial Administration provides that
Villarreal's motion to file the record late on the ground that he   civil jury cases must be disposed of within 18 months from the
had not filed a timely motion for extension of time.                appearance date. See TEX. R. JUD. ADMIN. 6.

                                                          Nicole Mitchell
                                                                                                                 Page 4 of 7
                                       994 S.W.2d 628, *630; 1999 Tex. LEXIS 51, **5

vests the trial court with the inherent power to dismiss            that the case was set on the dismissal docket upon the
independently of the rules of procedure when a plaintiff            court's own motion. The placement of a case on the
fails to prosecute his or her case with due diligence. See          dismissal docket on a court's own motion is nothing but
Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980);                     an exercise of the trial court's inherent authority to
Williams, 543 S.W.2d at 90.                                         control its docket. Therefore, it cannot be said that
                                                                    Villarreal was not alerted that the trial court was invoking
[**6] HN2[      ]                                                   its inherent power to dismiss for lack of diligent
                                                                    prosecution when the court, on its own motion, placed
However, a party must be provided with notice and an
                                                                    his case on the dismissal docket.
opportunity to be heard before a court may dismiss a
case for want of prosecution under either Rule 165a or
its inherent authority. See TEX. R. CIV. P. 165a(1)
                                                                    974 S.W.2d at 278(citations omitted). We disagree.
("Notice of the court's intention to dismiss and the date
and place of the dismissal hearing shall be sent by the             The Fourth Court of Appeals has considered the
clerk to each attorney of record . . . ."); General Elec.           adequacy of the Bexar County dismissal notice twice
Co. v. Falcon Ridge Apartments, Joint Venture, 811                  before, reaching conflicting results. In the more recent
S.W.2d 942, 943 (Tex. 1991); Gutierrez v. Lone Star                 case of Goff v. Branch, 821 S.W.2d 732 (Tex. App.--San
Nat'l Bank, 960 S.W.2d 211, 214 (Tex. App.--Corpus                  Antonio 1991, writ denied), the court found that the
Christi 1997, pet. denied) (requiring notice for dismissals         Bexar County notice "merely gave the appellants notice
under Rule 165a); see also State v. Rotello, 671 S.W.2d             that the dismissal setting was pursuant to the provisions
507, 508-09 (Tex. 1984); Callahan v. Staples, 139 Tex.              of Rule 165a(1)." Id. at 734. The court rejected an
8, 161 S.W.2d 489, 491 (Tex. 1942) (requiring notice for            argument that, although a Rule 165a(1) dismissal was
dismissals under the court's inherent power). The failure           not warranted, the dismissal and failure to reinstate the
to provide adequate notice of the trial court's intent to           case were justified under the court's inherent power to
dismiss for want of prosecution requires reversal. See              dismiss for failure [**9] to diligently prosecute. The
Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386                 court reasoned:
(Tex. App.--Houston[1st Dist.] 1996, writ denied); Davis
v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-47 [*631]               We can find no authority for a court to invoke for the first
(Tex. Civ. App.--Waco 1981, writ ref'd n.r.e.).                     time, without prior notice, its inherent power to dismiss
                                                                    for want of prosecution in a reinstatement hearing
The notice of setting [**7] sent to Villarreal warned of            clearly involving only the review of a dismissal order
dismissal for the failure to make an announcement at                under TEX.R.CIV.P. 165a(1). This is especially true
the dismissal hearing. Thus, the notice apprised                    when notice received by the party whose cause has
Villarreal of a possible Rule 165a(1) dismissal for failure         been dismissed was pursuant only to Rule 165a(1). If a
to make an appearance. Because it is undisputed that                trial court had authority to invoke its inherent powers to
Villarreal did appear, the trial court could not have               dismiss for want of prosecution at any time, with or
dismissed this case for want of prosecution under Rule              without proper notice, cases could be summarily
165a(1). Nonetheless, Defendants contend that the                   dismissed at random in the privacy of the court's
dismissal was warranted under the trial court's inherent            chambers. Such a situation would be unjust and
power to dismiss 4 and argue that the notice of setting             untenable.
warned of the trial court's intent to invoke this power.
                                                                    Id. at 736.
The court of appeals agreed:
                                                                    Earlier, in Ozuna v. Southwest Bio-Clinical Laboratories,
[**8] The notice in the instant case expressly stated               766 S.W.2d 900 (Tex. App.--San Antonio 1989, writ
                                                                    denied), the court reached the opposite result. It
                                                                    concluded that the Bexar County notice was adequate
4 Although  the Defendants make brief reference to the ability to   to provide for dismissal "on two separate and
dismiss a case pursuant to Rule 165a(2), warranting dismissal       independent grounds: (1) failure to appear at the
for failure to adhere to the Supreme Court time standards,          dismissal hearing, and (2) failure to litigate the case with
they do not urge that Villarreal violated this standard. Thus, we   due diligence." Id. at 901. Because the record was
do not consider the possibility of dismissal under Rule             unclear on whether the parties had in fact appeared
165a(2), except to state that adequate notice of the court's        at [**10] the dismissal hearing, the court affirmed the
intent to dismiss on this ground is also required.

                                                          Nicole Mitchell
                                                                                                           Page 5 of 7
                                  994 S.W.2d 628, *631; 1999 Tex. LEXIS 51, **10

dismissal on the sole ground of the trial court's inherent    understand that only an announcement of ready for trial
power to dismiss for failure to diligently prosecute. See     would justify removal from the dismissal docket, we
id.                                                           reject Defendants' alternative construction.

In deciding this case, the court of appeals relied upon       Defendants also argue that Villarreal should be charged
Ozuna, determining that Goff was not binding authority        with notice of the court's inherent authority to dismiss for
because "we are not presented with the issue of               lack of diligent prosecution through Local Rule 3.26 of
whether reinstatement was required under Rule                 the Bexar County District Courts Local Rules, which
165a(3), rather we are asked to determine [*632]              provides:
whether the trial court properly concluded that
Villarreal's case had not been prosecuted with due            Pursuant to Rule 165a, T.R.C.P., cases that have not
diligence." 974 S.W.2d at 278. This statement                 been disposed of within the Supreme Court's time
mischaracterizes the issue on appeal. Before deciding         standards shall be scheduled for hearing to show cause
whether the trial court properly concluded that Villarreal    why they should not be dismissed for want of
failed to exercise diligent prosecution, the court must       prosecution. The local administrative judge shall
first determine whether the trial court gave adequate         periodically assign judges to preside over the dismissal
notice of its intent to invoke its inherent authority to      docket.
dismiss on such ground. Thus, although this case does
not involve a reinstatement hearing, as does Goff, Goff's
rationale regarding the adequacy of the Bexar County          BEXAR COUNTY (TEX.) DIST. CT. LOC. R. 3.26.
dismissal notice is persuasive here.                          Defendants rely on our decision in Rotello, where we
                                                              held that the plaintiffs were "charged with notice of the
We reject Defendants' contention that "the dismissal          trial court's intention to dismiss this cause at the . . .
notice clearly indicated that the plaintiff's case would be   dismissal [**13] docket by their attorney's knowledge of
dismissed unless the plaintiff [**11] could show good         the [Brazos County district courts'] local rule." Rotello,
cause why it should not be dismissed for want of              671 S.W.2d at 508. This case is distinguishable from
prosecution." A plain reading of the Bexar County             Rotello. The Brazos County local rule explicitly states
standard dismissal notice informs parties only of a           that "'this rule shall constitute notice of [the dismissal]
possible Rule 165a(1) dismissal. See Goff, 821 S.W.2d         hearings,'" id. (quoting BRAZOS COUNTY (TEX.) DIST.
at 734. In response to that notice, the plaintiff appeared    CT. LOC. R. 11.1), while the Bexar County local rule
and announced ready for trial at the dismissal docket         omits such language. Furthermore, the Bexar County
call. HN3[ ] Because Villarreal complied with all the         notice flatly contradicts the local rule by suggesting that
requirements of the notice, the trial court abused its        an announcement will cure the lack of prosecution and
discretion by invoking its inherent authority to dismiss      by failing to warn that good cause must be shown to
for failure to prosecute diligently. Cf. Shook v. Gilmore     avoid dismissal. We therefore conclude that Rotello is
& Tatge Mfg. Co., 951 S.W.2d 294, 297 (Tex. App.--            not controlling in this case.
Waco 1997, pet. denied) (declining to decide appeal on
                                                              Finally, Defendants contend that the last sentence of the
plaintiff's failure to prosecute case diligently when the
                                                              dismissal docket [*633] notice, which reminds litigants
trial court failed to give notice that "the diligence of
                                                              that "this is not a docket for the re-setting of cases, but
prosecution would be a factor in the judge's deciding
                                                              for their dismissal," serves as adequate notice that the
whether to reinstate the case").
                                                              court will dismiss the case for want of prosecution
Defendants contend that the notice's language, "if no         unless good cause is shown at the docket call. We do
announcement is made, this cause will be dismissed for        not read the sentence in this way. Nothing in this
want of prosecution," was not intended to be literally        language notifies a party that good cause must be
interpreted. They urge that a literal interpretation would    shown to avoid dismissal, nor does it otherwise cure the
permit even an announcement of "not ready for trial" to       misleading effect [**14] of the earlier language.
save the case from dismissal. However, HN4[ ]
language "will [**12] not be so construed or interpreted      HN5[ ] To the extent that Ozuna can be read to hold
as to lead to absurd conclusions . . . if the provision is    that the Bexar County notice of dismissal apprises
subject to another, more reasonable interpretation." C &      parties of the court's intent to dismiss on a ground other
H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322           than the failure to appear under Rule 165a(1), or that
n.5 (Tex. 1994). Because a reasonable litigant would          Knight v. Trent, 739 S.W.2d 116 (Tex. App.--San


                                                    Nicole Mitchell
                                                                                                                 Page 6 of 7
                                   994 S.W.2d 628, *633; 1999 Tex. LEXIS 51, **14

Antonio 1987, no writ), Gaebler v. Harris, 625 S.W.2d 5        165a(1) dismissal." 2 But what is a Rule 165a(1)
(Tex. App.--San Antonio 1981, writ ref'd n.r.e.), and          dismissal? It is a dismissal based on a party's failure to
Laird v. Jobes, 580 S.W.2d 413 (Tex. App.--San Antonio         appear for a hearing. 3 Thus under the Court's "plain
1979, no writ), imply that a party may be charged with         reading," the dismissal notice, apparently, would only
such notice, we disapprove of the language of those            tell a party: If you come to this dismissal hearing, you
cases. We, therefore, reverse the judgment of the court        won't get dismissed for not coming to this dismissal
of appeals and remand this cause to the trial court for        hearing. This "plain reading" is nonsense -- the whole
further proceedings consistent with this opinion.              point of the dismissal docket, as any lawyer who
Thomas R. Phillips                                             practices in Bexar County knows, 4 is to allow Bexar
                                                               County District Courts to dismiss cases of parties who
Chief Justice                                                  are not diligently pursuing their claims.
OPINION DELIVERED: May 27, 1999
                                                                [**17] [*634]    Third, the Court contradicts its own
Dissent by: CRAIG T. ENOCH                                     "plain reading" -- for the Court says "a reasonable
                                                               litigant would understand [from the dismissal notice] that
                                                               only an announcement of ready for trial would justify
Dissent                                                        removal from the dismissal docket." 5 The Court in one
                                                               breath reads a single warning -- that a party's case will
                                                               be dismissed only if he fails to appear for the dismissal
JUSTICE ENOCH,          joined   by   JUSTICE      BAKER,      hearing. But in the next, the Court concludes that this
dissenting.                                                    warning necessarily also warns the party that he must
                                                               announce "ready for trial."
I share the sentiment that, I think, motivates the Court to
reach its result -- frustration at the Bexar County District   The Court professes to be compelled to this
Clerk's apparent refusal to change a badly worded              contradiction in order to avoid the "absurd conclusion"
dismissal notice, even after the court of appeals has          that follows from its "literal interpretation" of the two
expended significant judicial resources in several             sentences. 6 Its interpretation is that these two
reported decisions to answer [**15] parties' questions         sentences promise that the case won't be dismissed if
about the notice's wording. 1 But frustration should not       the party appears and makes an announcement -- any
decide cases. The issue here is whether the notice is          announcement. But the Court follows false logic. The
sufficient to warn litigants that the trial court might,       sentences don't say what the Court fears. The
under its inherent power, dismiss a case for want of           sentences literally promise [**18] only that the case
prosecution. While the notice is not a model of clarity or     will be dismissed if no announcement is made. It's a
good writing, it is sufficient. I dissent.                     simple statement. There is nothing absurd about it. And
                                                               significantly, these sentences do not promise the
The Court's reasoning is flawed in several respects.
                                                               opposite -- that if one merely announces, his case will
First, in construing the dismissal notice, the Court
focuses its attention on only two sentences: "You are
                                                               2 994   S.W.2d at 632, 1999 Tex. LEXIS 51, *11.
requested to be present and make your announcement.
If no announcement is made, this cause will be
                                                               3 See   TEX. R. CIV. P. 165a(1).
dismissed for want of prosecution." But the Court
ignores the last line of the notice: "You are reminded         4 See Bexar County Local Rule 3.26, RULES OF PRACTICE,
that this is not a docket for the re-setting of cases, but
                                                               PROCEDURE AND ADMINISTRATION IN THE DISTRICT
for their dismissal."
                                                               COURTS OF BEXAR COUNTY, TEXAS (April 1991)
                                                               (providing for show cause hearings on dismissal docket when
Second, only looking at the two sentences [**16] it            cases are not diligently prosecuted); State v. Rotello, 671
cites, the Court then assumes that a "plain reading" of        S.W.2d 507, 508 (Tex. 1984) ("We conclude that the Rotellos
this language "informs parties only of a possible Rule         are charged with notice of the trial court's intention to dismiss
                                                               this cause at the April 1982 dismissal docket by their
                                                               attorney's knowledge of the local rule.").
1 See Goff v. Branch, 821 S.W.2d 732 (Tex. App.--San Antonio   5 994S.W.2d at 632, 1999 Tex. LEXIS 51, *12 (emphasis
1991, writ denied); Ozuna v. Southwest Bio-Clinical
                                                               added).
Laboratories, 766 S.W.2d 900 (Tex. App.--San Antonio 1989,
writ denied).                                                  6 994   S.W.2d at 632, 1999 Tex. LEXIS 51, *11.

                                                     Nicole Mitchell
                                                                                                            Page 7 of 7
                                        994 S.W.2d 628, *634; 1999 Tex. LEXIS 51, **18

not be dismissed.                                                Out of frustration, the Court undertakes a strained effort
                                                                 to read the notice to warn only of a potential Rule
A "literal interpretation" of the entire notice, including the   165a(1) dismissal. [*635] And then it rewrites the
final line, reveals that the notice warns that the trial court   notice to require a "ready for trial" announcement in
will exercise its inherent power to control its docket. As       order to avoid absurdity. But it then denies to the trial
mentioned, the last line of the notice states: "You are          court the fundamental discretion to disbelieve the
reminded that this is not a docket for the re-setting of         announcement, even if [**21] the record shows the
cases, but for their dismissal." Villarreal had notice that      party's actions belying his words. The Court errs. The
merely showing up and asking to be set for trial would           dismissal notice in this case adequately informed
not be enough -- he was coming to a hearing where the            Villarreal that the trial court was invoking its inherent
trial court would decide whether to dismiss his case for         power to dismiss his claim for want of prosecution. I
want of prosecution, and he had notice that the way to           dissent.
avoid dismissal was not just to show up, but to show up
and convince the trial court not to exercise its inherent        A final thought -- if I were the Bexar County District
power to [**19] dismiss the case.                                Clerk, I'd rewrite the notice to include the phrase, "The
                                                                 trial court is invoking its inherent power to dismiss this
And if those three lines weren't enough, the notice also         case for want of prosecution." It would be more clear
expressly stated that the trial court placed Villarreal's        and, it appears, nothing less will do.
claim on the dismissal docket on its own motion. As the
court of appeals correctly noted, this additionally              Craig T. Enoch
indicated that the trial court was invoking its inherent
power to, after a hearing, dismiss Villarreal's claim. 7         Justice

Finally, we don't have a record of the dismissal hearing.        Opinion delivered: May 27, 1999
So how can we determine whether the trial court abused
its discretion? The answer is simple -- we can't.
                                                                   End of Document
Therefore we presume the trial court didn't. 8 The Court,
however, tries to gloss over the lack of a record by
latching onto San Antonio Truck's concession that
Villarreal appeared at the hearing and announced ready
for trial. 9 But those facts are beside the point. San
Antonio Truck conceded Villarreal's appearance and
announcement precisely because, while it was true, it
did not matter. To get to the Court's conclusion, it has to
decide that the trial court, [**20] as a matter of law,
had to believe Villarreal when he said he was ready. But
the trial court didn't have to. Why should it -- after all,
Villarreal had done nothing for two years before the trial
court put the case on the dismissal docket. Furthermore,
without a record, we don't know what Villareal's excuse,
if he even gave one, was. The court of appeals stated it
succinctly: "A belated trial setting or eager
announcement of readiness to proceed to trial does not
conclusively establish diligence." 10



7 974   S.W.2d at 278 (citation omitted).

8 See Simon v. York Crane & Rigging Co., 739 S.W.2d 793,
795 (Tex. 1987); Ozuna, 766 S.W.2d at 901.
9 994   S.W.2d at 632, 1999 Tex. LEXIS 51.

10 974   S.W.2d at 278.

                                                        Nicole Mitchell
                                            Tex. R. Civ. P. 165a
                                  This document is current through March 7, 2018

Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 7. Abatement and
Discontinuance of Suit



Rule 165a Dismissal for Want of Prosecution

   1. Failure to Appear. --A case may be dismissed for want of prosecution on failure of any party seeking
       affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's
       intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each
       attorney of record, and to each party not represented by an attorney and whose address is shown on the
       docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal
       hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be
       maintained on the docket. If the court determines to maintain the case on the docket, it shall render a
       pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all
       discovery, filing of all pleadings, the making of a response or supplemental responses to discovery and
       other pretrial matters. The case may be continued thereafter only for valid and compelling reasons
       specifically determined by court order. Notice of the signing of the order of dismissal shall be given as
       provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods
       mentioned in Rule 306a except as provided in that rule.
   2. Non-Compliance with Time Standards.--Any case not disposed of within time standards promulgated by
       the Supreme Court under its Administrative Rules may be placed on a dismissal docket.
   3. Reinstatement. --A motion to reinstate shall set forth the grounds therefor and be verified by the movant or
       his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the
       period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record
       and each party not represented by an attorney whose address is shown on the docket or in the papers on
       file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon
       as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the
       hearing.
       The court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney
       was not intentional or the result of conscious indifference but was due to an accident or mistake or that the
       failure has been otherwise reasonably explained.
       In the event for any reason a motion for reinstatement is not decided by signed written order within seventy-
       five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the
       motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party,
       the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case
       until 30 days after all such timely filed motions are overruled, either by a written and signed order or by
       operation of law, whichever occurs first.
   4. Cumulative Remedies. --This dismissal and reinstatement procedure shall be cumulative of the rules and
       laws governing any other procedures available to the parties in such cases. The same reinstatement
       procedures and timetable are applicable to all dismissals for want of prosecution including cases which are
       dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed.

Annotations



                                                    Nicole Mitchell
                                                 Tex. R. Jud. Admin. 1
                                        This document is current through March 7, 2018

Texas Court Rules > STATE RULES > RULES OF JUDICIAL ADMINISTRATION



Rule 1 Authority

These rules are promulgated pursuant to Section 74.024 of the Texas Government Code.


Texas Rules
Copyright © 2018 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.



  End of Document




                                                            Nicole Mitchell
                                        Tex. R. Jud. Admin. 6
                                This document is current through March 7, 2018

Texas Court Rules > STATE RULES > RULES OF JUDICIAL ADMINISTRATION



Rule 6 Time Standards for the Disposition of Cases

  Rule 6.1 District and Statutory County Courts.--District and statutory county court judges of the county in
      which cases are filed should, so far as reasonably possible, ensure that all cases are brought to trial or
      final disposition in conformity with the following time standards:
      (a) Civil Cases Other Than Family Law.
          (1) Civil Jury Cases. --Within 18 months from appearance date.
          (2) Civil Nonjury Cases. --Within 12 months from appearance date.
      (b) Family Law Cases.
          (1) Contested Family Law Cases.--Within 6 months from appearance date or within 6 months from
              the expiration of the waiting period provided by the Family Code where such is required, whichever
              is later.
          (2) Uncontested Family Law Cases.--Within 3 months from appearance date or within 3 months from
              the expiration of the waiting period provided by the Family Code where such is required, whichever
              is later.
      (c) Juvenile Cases. --In addition to the requirements of Title 3, Texas Family Code:
          (1) Detention Hearings. --On the next business day following admission to any detention facility.
          (2) Adjudicatory or Transfer (Waiver) Hearings.
              (a) Concerning a juvenile in a detention facility:--Not later than 10 days following admission to
                  such a facility, except for good cause shown of record.
              (b) Concerning a juvenile not in a detention facility:--Not later than 30 days following the filing
                  of the petition, except for good cause shown of record.
          (3) Disposition Hearing. --Not later than 15 days following the adjudicatory hearing. The court may
              grant additional time in exceptional cases that require more complex evaluation.
          (4) Nothing herein shall prevent a judge from recessing a juvenile hearing at any stage of the
              proceeding where the parties are agreeable or when in the opinion of the judge presiding in the
              case the best interests of the child and of society shall be served.
      (d) Complex Cases. --It is recognized that in especially complex cases or special circumstances it may
          not be possible to adhere to these standards.
  Rule 6.2 Appeals in Certain Cases Involving the Parent-Child Relationship.--In an appeal of a suit for
      termination of the parent-child relationship or a suit affecting the parent-child relationship filed by a
      governmental entity for managing conservatorship, appellate courts should, so far as reasonably possible,
      ensure that the appeal is brought to final disposition in conformity with the following time standards:
      (a) Courts of Appeals. --Within 180 days of the date the notice of appeal is filed.
      (b) Supreme Court. --Within 180 days of the date the petition for review is filed.



                                                 Nicole Mitchell
                                          Tex. Gov’t Code § 74.024
             This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature

Texas Statutes & Codes Annotated by LexisNexis® > Government Code > Title 2 Judicial
Branch > Subtitle F Court Administration > Chapter 74 Court Administration Act > Subchapter
B Supreme Court



Sec. 74.024. Rules.

    (a) The supreme court may adopt rules of administration setting policies and guidelines necessary or desirable
         for the operation and management of the court system and for the efficient administration of justice.
    (b) The supreme court shall request the advice of the court of criminal appeals before adopting rules affecting
         the administration of criminal justice.
    (c) The supreme court may consider the adoption of rules relating to:
        (1) nonbinding time standards for pleading, discovery, motions, and dispositions;
        (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted;
        (3) attorney’s accountability for and incentives to avoid delay and to meet time standards;
        (4) penalties for filing frivolous motions;
        (5) firm trial dates;
        (6) restrictive devices on discovery;
        (7) a uniform dockets policy;
        (8) formalization of settlement conferences or settlement programs;
        (9) standards for selection and management of nonjudicial personnel;
        (10) transfer of related cases for consolidated or coordinated pretrial proceedings; and
        (11) the conducting of proceedings under Rule 11, Rules of Judicial Administration, by a district court
            outside the county in which the case is pending.
    (d) Any rules adopted under this section remain in effect unless and until disapproved by the legislature. The
         clerk of the supreme court shall file with the secretary of state the rules or any amendments to the rules
         adopted by the supreme court under this section and shall mail a copy of the rules and any amendments to
         each registered member of the State Bar not later than the 120th day before the date on which they
         become effective. The supreme court shall allow a period of 60 days for review and comment on the rules
         and any amendments. The clerk of the supreme court shall report the rules or amendments to the rules to
         the next regular session of the legislature by mailing a copy of the rules or amendments to the rules to
         each elected member of the legislature on or before December 1 immediately preceding the session.

History

Enacted by Acts 1987, 70th Leg., ch. 148 (S.B. 895), § 2.93(a), effective September 1, 1987; Enacted by Acts
1987, 70th Leg., ch. 674 (S.B. 687), § 2.01, effective September 1, 1987; am. Acts 2003, 78th Leg., ch. 204 (H.B.
4), § 3.01, effective September 1, 2003; am. Acts 2003, 78th Leg., ch. 747 (H.B. 3386), § 1, effective September
1, 2003; am. Acts 2005, 79th Leg., ch. 728 (H.B. 2018), § 8.001, effective September 1, 2005.


                                                      Nicole Mitchell
                                                                                                          Page 2 of 4
                                               Tex. Gov’t Code § 74.024

Annotations

Notes


STATUTORY NOTES

2003 Note:

Section 74.024(c), Government Code, as amended by Chapter 747, applies only to a suit filed on or after
September 1, 2003. A suit filed before September 1, 2003, is governed by the law in effect on the date the suit was
filed, and the former law is continued in effect for that purpose. Acts 2003, 78th Leg., ch. 747, § 2.

Effect of amendments.

2005 amendment, rewrote (c) by combining two former versions of (c)(10) into one version.


LexisNexis ® Notes

Case Notes

    Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Prosecute

    Civil Procedure: Trials: Bench Trials

    Criminal Law & Procedure: Sentencing: Forfeitures: Proceedings

    Governments: Courts: Rule Application & Interpretation


Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Prosecute

Rules of Judicial Administration, promulgated pursuant to Tex. Gov’t Code Ann. § 74.024, were nonbinding time
standards, and the application of Tex. R. Jud. Admin. 6 was discretionary and nonbinding, and did not fix a bright
line demarking the outward limit of a trial court’s discretion to control its docket; the trial court was therefore not
bound by statute or rule to hear defendant’s forfeiture case within twelve months of the appearance date. Property
v. State, No. 06-11-00113-CV, 2012 Tex. App. LEXIS 4093 (Tex. App. Texarkana May 22, 2012).

There was no abuse of discretion by denying the motion to dismiss for want of prosecution, because Tex. R. Jud.
Admin. 6 did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket. Jones
v. Morales, 318 S.W.3d 419, 2010 Tex. App. LEXIS 3880 (Tex. App. Amarillo May 21, 2010), pet. denied No. 10-
0804, 2010 Tex. LEXIS 947 (Tex. Dec. 3, 2010).


Civil Procedure: Trials: Bench Trials

There was no abuse of discretion by denying the motion to dismiss for want of prosecution, because Tex. R. Jud.
Admin. 6 did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket. Jones
v. Morales, 318 S.W.3d 419, 2010 Tex. App. LEXIS 3880 (Tex. App. Amarillo May 21, 2010), pet. denied No. 10-
0804, 2010 Tex. LEXIS 947 (Tex. Dec. 3, 2010).




                                                    Nicole Mitchell
                                                                                                        Page 3 of 4
                                              Tex. Gov’t Code § 74.024

Because the time limit in Tex. R. Jud. Admin. 6(a)(2) is discretionary, as indicated in Tex. Gov’t Code Ann. § 
74.024(c)(1), a property owner was not entitled to a dismissal of a forfeiture action for want of prosecution based on
the failure to meet the time limit. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 2009 Tex. App. LEXIS 7535
(Tex. App. Amarillo 2009)pet. deniedNo. 09-1059, 2010 Tex. LEXIS 29 (Tex. Jan. 8, 2010)pet. deniedNo. In re
Fifty-One Gambling Devices & Twenty Six Thousand Eight Hundred Eighty Dollars in United States Currency, No.
09-1059, 2010 Tex. LEXIS 267 (Tex. Mar. 19, 2010).


Criminal Law & Procedure: Sentencing: Forfeitures: Proceedings

Rules of Judicial Administration, promulgated pursuant to Tex. Gov’t Code Ann. § 74.024, were nonbinding time
standards, and the application of Tex. R. Jud. Admin. 6 was discretionary and nonbinding, and did not fix a bright
line demarking the outward limit of a trial court’s discretion to control its docket; the trial court was therefore not
bound by statute or rule to hear defendant’s forfeiture case within twelve months of the appearance date. Property
v. State, No. 06-11-00113-CV, 2012 Tex. App. LEXIS 4093 (Tex. App. Texarkana May 22, 2012).


Governments: Courts: Rule Application & Interpretation

Because the time limit in Tex. R. Jud. Admin. 6(a)(2) is discretionary, as indicated in Tex. Gov’t Code Ann. § 
74.024(c)(1), a property owner was not entitled to a dismissal of a forfeiture action for want of prosecution based on
the failure to meet the time limit. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 2009 Tex. App. LEXIS 7535
(Tex. App. Amarillo 2009)pet. deniedNo. 09-1059, 2010 Tex. LEXIS 29 (Tex. Jan. 8, 2010)pet. deniedNo. In re
Fifty-One Gambling Devices & Twenty Six Thousand Eight Hundred Eighty Dollars in United States Currency, No.
09-1059, 2010 Tex. LEXIS 267 (Tex. Mar. 19, 2010).

Research References & Practice Aids


LexisNexis ® Notes

LAW REVIEWS

41 Houston Lawyer 10, FEATURE: TEXAS LEGISLATURE HAMMERS OUT MASSIVE TORT REFORM BILL, By
Patrice Pujol and Marty Thompson, July/August, 2003, Copyright (c) 2003 Houston Bar Association, The Houston
Lawyer.

61 Tex. B. J. 994, ARTICLE: IN THE SUPREME COURT OF TEXAS MISC. DOCKET NO. 98-9170: APPROVAL
OF REVISIONS TO THE TEXAS RULES OF JUDICIAL ADMINISTRATION, November, 1998, Copyright (c) 1998
by State Bar of Texas, Texas Bar Journal.

62 Tex. B. J. 946, FEATURES: IN THE SUPREME COURT OF TEXAS MISC. DOCKET NO. 99-9112: OPINION
AND ORDER IMPLEMENTING RECOMMENDATIONS OF THE SUPREME COURT JUDICIAL CAMPAIGN
FINANCE STUDY COMMITTEE, October, 1999, Copyright (c) 1999 by State Bar of Texas, Texas Bar Journal.

TREATISES & ANALYTICAL MATERIALS

1-3 Texas Civil Trial Guide § 3.40, NONSUIT AND DISMISSAL FOR WANT OF PROSECUTION, DISMISSAL
FOR WANT OF PROSECUTION, Making and Responding to Motions to Dismiss, Texas Civil Trial Guide.

19 Dorsaneo, Texas Litigation Guide III, SUMMARY OF 2003 CIVIL JUSTICE REFORM LEGISLATION, SPECIAL
ALERT TO: DORSANEO, TEXAS LITIGATION GUIDE TEXAS TORTS AND REMEDIES DORSANEO & SOULES
— TEXAS CODES AND RULES AUGUST 2003 William V. Dorsaneo I, Tex. H.B. 4, Dorsaneo, Texas Litigation
Guide.

                                                    Nicole Mitchell
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                                                         Tex. Gov’t Code § 74.024


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                                                              Nicole Mitchell
