                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-13-00394-CV
                               ________________

                      HATEM EL-KHALIDI, Appellant

                                        V.

   ARABIAN AMERICAN DEVELOPMENT COMPANY, NICHOLAS
      CARTER, AND CHARLES W. GOEHRINGER JR., Appellees
__________________________________________________________________

                On Appeal from the 88th District Court
                        Hardin County, Texas
                        Trial Cause No. 52483
__________________________________________________________________

                         MEMORANDUM OPINION

      In two appellate issues, appellant Hatem El-Khalidi appeals the trial court’s

judgment dismissing his case for want of prosecution. We affirm the trial court’s

judgment.

                                BACKGROUND

      On August 2, 2011, El-Khalidi filed suit against Arabian American

Development Company (“AADC”) for breach of contract and defamation based


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upon AADC’s alleged failure to provide El-Khalidi agreed-upon benefits when he

retired as president and CEO of AADC. AADC filed its first amended answer and

counterclaim on September 14, 2011. 1 In his first amended petition, El-Khalidi

added as defendants appellees Nicholas Carter and Charles W. Goehringer Jr.2,

against whom he asserted causes of action for tortious interference with a contract

and misrepresentation. 3 According to El-Khalidi, Carter made allegations against

El-Khalidi that Carter should have known were untrue, and “which were designed

to induce the other members of the Board of Directors to believe that El-Khalidi

was acting contrary to AADC’s interest and sought to interfere with the contract

between El-Khalidi and AADC.” AADC filed a counterclaim against El-Khalidi

for declaratory judgment.

      On May 16, 2012, El-Khalidi filed a motion to quash his deposition, which

AADC had noticed for June 22, 2012. El-Khalidi attached as an exhibit a May 9,

2012, letter from AADC’s counsel, in which counsel stated, “[w]e have been

patiently working with you, waiting for [El-Khalidi’s] return to Dallas, Texas, in

      1
          The appellate record does not contain AADC’s original answer.
      2
        The amended petition also named Ghazi Sultan as a defendant. Sultan is not
a party to this appeal, and the appellate record indicates that Sultan never appeared
in the lawsuit.
      3
          El-Khalidi requested a jury trial.
                                               2
keeping with the Rule 11 Agreement that was reached last year, in which we

dismissed our federal action in an effort to work cooperatively, and not within the

rigid timelines of a federal court’s scheduling order.” With this letter, AADC’s

counsel forwarded a notice of El-Khalidi’s deposition with subpoena duces tecum

for June 22, 2012. After conducting a hearing concerning the scheduling of

depositions and mediation, the trial court signed an order that provided, in

pertinent part, that El-Khalidi would appear for deposition on August 7, 2012, in

Dallas.

      On September 12, 2012, AADC and the individual defendants filed a motion

for sanctions, based on “El-Khalidi’s refusal to present himself for deposition in

Dallas, Texas, as agreed to over one year ago, as ordered by this Court over two

months ago, and as required by . . . Tex. R. Civ. P. 199.2(b)(2)(c).” In the motion,

AADC and the other defendants acknowledged they were aware that before the

trial court could entertain a motion to dismiss El-Khalidi’s claims with prejudice, it

must first impose a lesser sanction aimed at obtaining El-Khalidi’s compliance

with the trial court’s orders.

      On May 1, 2013, AADC and the individual defendants filed a second motion

for sanctions, which included a motion to dismiss El-Khalidi’s lawsuit for want of

prosecution. Specifically, AADC argued that the trial court has inherent power to

                                          3
dismiss under Texas Rule of Civil Procedure 165a(2) when a case is not disposed

within the time limits set forth in the Rules of Judicial Administration. Attached to

the motion were numerous exhibits, including, in pertinent part, (1) a July 1, 2011,

letter from El-Khalidi’s counsel to AADC’s counsel, which memorialized the

parties’ Rule 11 agreement concerning dismissal of AADC’s then-pending lawsuit

in federal court, El-Khalidi’s agreement to AADC’s motion to transfer venue of the

case to Hardin county, and El-Khalidi’s agreement to present himself for

deposition in August or September of 2011; (2) El-Khalidi’s affidavit of May 11,

2011, in which he explained that he is an American citizen who has resided in

Saudi Arabia as a resident alien for forty-seven years while working for the U.S.

government, and he founded AADC during said employment; (3) the

aforementioned letter of May 9, 2012; (4) the notice of El-Khalidi’s deposition for

June 22, 2012; (5) the trial court’s June 2012 order requiring El-Khalidi to appear

for deposition on August 7, 2012; (6) an amended notice of El-Khalidi’s deposition

for August 7, 2012; (7) El-Khalidi’s July 26, 2012, letter to AADC’s counsel,

stating that El-Khalidi is unable to leave Saudi Arabia “due to the pendency of his

suit against AADC in the Saudi Arabian courts[,]” requesting that the deposition of

El-Khalidi, as well as other depositions, take place in Jeddah, Saudi Arabia, and

“insist[ing] that the mediation scheduled for August 9, 2012[,] be canceled[;]” and

                                         4
(8) AADC’s counsel’s August 7, 2012, letter in response, in which counsel refused

to conduct depositions in Saudi Arabia and advising that AADC intended to file a

motion for sanctions seeking dismissal of El-Khalidi’s claims with prejudice as a

result of El-Khalidi’s failure to appear for deposition as ordered by the trial court.

      El-Khalidi filed a response to the motion, in which he alleged that his age

and health conditions precluded him from traveling from Saudi Arabia for his

deposition and contended that “[d]efendants’ request that the Court summarily

dismiss his claims has no validity under Texas law and [d]efendants have utterly

failed to show any basis which would justify such an order . . . .” In addition, El-

Khalidi asserted that “his ability to travel is controlled by [d]efendants as they must

authorize his exit from and re-entry into Saudi Arabia.” El-Khalidi’s response did

not address appellees’ argument concerning his alleged failure to comply with the

Texas Rules of Judicial Administration in prosecuting his claim or his alleged lack

of diligence in prosecuting his claim.

      El-Khalidi filed an affidavit on July 17, 2013. In that affidavit, El-Khalidi

averred, among other things, that he discovered zinc, gold, silver, copper and

nickel after obtaining a mineral reconnaissance permit in Saudi Arabia as a cover

for his clandestine operations there as a member of the CIA. El-Khalidi also filed

an affidavit that purported to authenticate copies of numerous documents. After

                                           5
conducting a hearing, the trial judge signed an amended order granting the motion

to dismiss for want of prosecution and dismissing without prejudice all of El-

Khalidi’s claims against appellees on July 24, 2013.

                                     ISSUE ONE

      In his first issue, El-Khalidi argues the trial court abused its discretion by

dismissing his claims for want of prosecution. We review a trial court’s decision to

dismiss a case for want of prosecution under an abuse of discretion standard.

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its

discretion when it acts in an arbitrary or unreasonable manner, or when it acts

without reference to guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In determining whether a

trial court abused its discretion by dismissing a case for want of prosecution, we

examine the record in its entirety. Olin Corp. v. Coastal Water Auth., 849 S.W.2d

852, 856 (Tex. App.—Houston [1st Dist.] 1993, no writ).

      A trial court can dismiss a case for want of prosecution when a party seeking

affirmative relief fails to appear at a hearing or at trial, the case is not disposed of

within the time standards established by the Texas Supreme Court, or the trial

court finds that the case has not been prosecuted with due diligence. Villareal v.

San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Rule 6.1(b)(1) of

                                           6
the Rules of Judicial Administration requires district court judges to dispose of

civil jury cases, other than family law matters, “[w]ithin 18 months from

appearance date.” Tex. R. Jud. Admin. 6.1(b)(1), reprinted in Tex. Gov’t Code

Ann., tit. 2, subtit. F app. (West 2013).

      As discussed above, El-Khalidi filed his original petition on August 2, 2011.

AADC filed its first amended answer on September 14, 2011, and the trial court

signed its amended order dismissing El-Khalidi’s claims on July 24, 2013.

According to the time standards contained in Rule 6.1(b)(1) of the Rules of

Judicial Administration, El-Khalidi’s case against AADC should have been

disposed of within eighteen months from the date of AADC’s appearance. See id.

6.1(b)(1). Therefore, under Rule 6.1(b)(1) of the Rules of Judicial Administration,

El-Khalidi’s case should have been disposed of by March 14, 2013, i.e. eighteen

months from September 14, 2011. See id. Because more than eighteen months had

passed since AADC filed its answer, the trial court did not err by dismissing El-

Khalidi’s claims against AADC for want of prosecution. 4

      We now turn to the dismissal of El-Khalidi’s claims against Carter and

Goehringer for want of prosecution. Under the common law, the trial court
      4
       Because AADC’s original answer is not contained in the appellate record,
we use the date of AADC’s amended answer in addressing whether the case
against AADC had been disposed of within the time standards set forth in Rule
6.1(b)(1) of the Rules of Judicial Administration.
                                            7
possesses the inherent power to dismiss, independent of its authority under Rule

165a of the Texas Rules of Civil Procedure, when a plaintiff does not prosecute his

case with due diligence. Villarreal, 994 S.W.2d at 630. A plaintiff is “reasonably

diligent” if he acted as an ordinary, prudent person would have acted under the

same or similar circumstances. Manning v. North, 82 S.W.3d 706, 713 (Tex.

App.—Amarillo 2002, no pet.).

      Goehringer filed his answer on June 11, 2012, and Carter filed his answer on

July 24, 2012. The record in this case reflects that with the exception of El-

Khalidi’s petition and response to the counterclaim, almost all of the activity in the

case consisted of the appellees’ efforts to mediate the case, to obtain written

discovery from El-Khalidi, to obtain sanctions against El-Khalidi, and to take El-

Khalidi’s deposition, and El-Khalidi’s attempts to avoid appearing for deposition

in Texas and to avoid answering discovery. On this record, the trial court could

reasonably have concluded that El-Khalidi had failed to prosecute his claims

against Goehringer and Carter with due diligence. See Villarreal, 994 S.W.2d at

630. Therefore, the trial court did not err by dismissing El-Khalidi’s claims against

Goehringer and Carter for want of prosecution. Accordingly, we overrule issue

one. Because we hold that the trial court did not err by dismissing El-Khalidi’s

claims against appellees for want of prosecution, we need not address El-Khalidi’s

                                          8
second issue, in which he asserts that no other basis supports the trial court’s

decision. We affirm the trial court’s order dismissing El-Khalidi’s claims against

appellees for want of prosecution.

      AFFIRMED.


                                      ________________________________
                                              STEVE McKEITHEN
                                                  Chief Justice


Submitted on May 1, 2014
Opinion Delivered May 22, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.




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