                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00203-CV

IDA MAE ANDERSON, SALLIE BAYLOR,
CHRISTAL BOONE, ELAINE COLEMAN,
KATIE DELANEY, RAYMOND C. GREEN,
DORIS M. HALL, MARGARET HARRIS,
MARY LEE JONES, WILBUR JONES, HARVEY
L. MCMURRAY, BENJI NEWMAN, CADINO
NEWMAN, RUBY SHAW, HELEN SMITH,
HOSEA W. TATE, SR.,
                                                           Appellants
v.

CIRCLE X LAND & CATTLE CO., LTD.,
                                                           Appellee


                          From the 82nd District Court
                            Robertson County, Texas
                       Trial Court No. 00-12-16,098-CV-A


                          MEMORANDUM OPINION


      Ida Mae Anderson and twenty other heirs (hereinafter “Anderson”) who each

own undivided interests in a parcel of real property appeal the granting of a motion for

traditional summary judgment in favor of Circle X Land & Cattle, Ltd. See TEX. R. CIV.

PROC. 166a(c). The trial court granted a motion for a partial summary judgment filed by
Circle X and entered an order that granted Circle X a judgment for amounts Circle X

paid to the taxing authority for property taxes and granted Circle X subrogation rights

to the real property. The trial court then severed the remainder of the case from that

order, making that order a final judgment as to those claims. Anderson complains that

the trial court erred in granting the motion for summary judgment, erred by granting

the severance, and erred by denying their motion for dismissal for want of prosecution.

Because we find that the trial court abused its discretion by denying Anderson’s motion

to dismiss, we reverse the judgment of the trial court.

        Circle X purchased the interests of three of the heirs who owned undivided

interests in the property, which originally consisted of approximately 369 acres. Circle

X paid the entire balance of the property taxes that were due on the property for three

tax years. In December of 2000, Circle X filed a petition against Anderson and the

twenty other heirs in order to be reimbursed for property taxes that Circle X had paid

on the entire parcel of land and later added a suit to demand partition of the property.

Anderson’s Motion to Dismiss

        When multiple grounds for reversal of a judgment on appeal are presented, we

first address those points or issues that would afford a party the greatest relief. CMH

Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Bradleys' Elec., Inc. v. Cigna Lloyds Ins.

Co., 995 S.W.2d 675, 677 (Tex. 1999). If disposition of one issue would result in a

rendition, the court should consider that issue before addressing any issues that would

only result in a remand. Bradleys' Elec., 995 S.W.2d at 677.



Anderson v. Circle X Land & Cattle Co., Ltd.                                             Page 2
        The trial court first sent a notice of hearing for a dismissal for want of

prosecution on February 12, 2004. Circle X responded by filing a motion to retain the

case.   Anderson filed a motion to dismiss or alternatively, to abate the case on

September 27, 2007. A hearing was set on October 9, 2007, at which time it appears that

the trial court deferred a ruling for 45 days to allow Circle X to make progress on the

case. A second hearing on that motion was heard on May 19, 2008, the same day as the

hearing on the motion for summary judgment. The trial court denied the motion to

dismiss by a written ruling on May 23, 2008. Anderson complains that the trial court

abused its discretion in denying the motion to dismiss.

Abuse of Discretion

        A trial court’s ruling on a motion to dismiss is reviewed under an abuse of

discretion standard.         See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997);

Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet.

denied); Christian v. Christian, 985 S.W.2d 513, 514 (Tex. App.—San Antonio 1998, no

pet.)   An abuse of discretion with respect to factual matters occurs if the record

establishes that the “trial court could reasonably have reached only one decision.”

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Christian, 985 S.W.2d at 514. The

question is whether the trial court acted without reference to any guiding rules and

principles, or whether the act was arbitrary or unreasonable. On factual issues or other

matters committed to the trial court’s discretion, we may not substitute our judgment

for that of the trial court. Walker, 827 S.W.2d at 839. Even if we would decide the issue

differently, we should not disturb the trial court’s decision unless it is without reference

Anderson v. Circle X Land & Cattle Co., Ltd.                                          Page 3
to any guiding rules and principles, or it is arbitrary and unreasonable. Walker, 827

S.W.2d at 840; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.

proceeding); see also MacGregor, 941 S.W.2d at 76.

        However, we give less deference when we review the trial court’s application of

the law. A trial court has no discretion to determine what the law is or to apply the law

to the facts. Walker, 827 S.W.2d at 840. The trial court’s clear failure to analyze or

correctly apply the law is an abuse of discretion. Walker, 827 S.W.2d at 840.

Dismissal for Want of Prosecution

        There are three grounds upon which a trial court may dismiss a case: (1) when a

party fails to appear at a hearing or trial pursuant to Texas Rule of Civil Procedure

165a(1); (2) when the case has not been disposed of within the Supreme Court’s time

standard pursuant to Texas Rule of Civil Procedure 165a (2); and (3) by the trial court’s

inherent power to dismiss when the case has not been prosecuted with due diligence.

See Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999). On

appeal, Anderson raises only the abuse of discretion in the trial court’s failure to invoke

its inherent power to dismiss.

        Whether a plaintiff has prosecuted a case with diligence is generally a question of

fact. See MacGregor, 941 S.W.2d at 75-76; Christian, 985 S.W.2d at 515. In determining

whether due diligence exists, the trial court may consider the entire history of the case.

See Christian, 985 S.W.2d at 514-15. The traditional factors that may be considered are

(1) the length of time the case was on file; (2) the extent of activity in the case; (3)

whether a trial setting was requested; and (4) the existence of reasonable excuse for

Anderson v. Circle X Land & Cattle Co., Ltd.                                         Page 4
delay. See WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006,

pet. denied); Christian, 985 S.W.2d at 514-515.       No single factor is dispositive. Id.

However, the failure to exercise due diligence is conclusively established if (1) the delay

in prosecuting a case is unreasonable as a matter of law and (2) the delaying party fails

to establish a “sufficient excuse.” Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491

(1942); Christian, at 515.

        In this case, the original petition was filed on December 12, 2000. An answer was

filed by all of the named defendants by one attorney on February 28, 2001. A final

hearing was set on September 21, 2001. On September 11, 2001, a claim for a partition

was added in an amended petition filed by Circle X. Circle X filed a motion to show

authority for the attorney’s representation of all of the listed defendants. The trial court

granted the motion and struck the answer of all of the defendants except for Appellants.

        The trial court sent a notice to the parties of a dismissal hearing on February 12,

2004 due to a lack of activity on the case for more than a year. Circle X filed a motion to

retain the case, citing that the parties were attempting to reach an agreed settlement on

the partition. A motion to quash regarding two depositions was filed by Circle X on

January 21, 2005. An order granting Anderson’s motion to abate was signed on March

15, 2005 as to the partition action only in order for Circle X to join the necessary parties,

as the defendants whose answers had been stricken had not yet been served. A final

hearing was set for September 12, 2005, apparently while the case was still abated. The

abatement was lifted by agreement on February 14, 2007, although service had not yet

been completed on any of the other named defendants whose answers had been

Anderson v. Circle X Land & Cattle Co., Ltd.                                           Page 5
stricken. Anderson filed their motion to dismiss or to abate on September 27, 2007,

which was set for hearing on October 16, 2007. A letter from Anderson on November

27, 2007 is the only document in the clerk’s record until Circle X filed a motion for

summary judgment on March 6, 2008, which was granted as to the money judgment

and equitable subrogation issues only on June 5, 2008, and denied as to the dismissal.

        The case was on file for almost seven and a half years. See Denton County v.

Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (delay of seven years is unreasonable as a

matter of law). Compare TEX. R. JUD. ADMIN. 6(b)(2), reprinted in TEX. GOV’T CODE ANN.,

tit. 2, subtit. F app. (Vernon Supp. 2008) (civil nonjury cases should be tried within

twelve months). The only defendants that were served in the case were the Appellants.

There is nothing in the record to demonstrate any attempts by Circle X to serve the

other named defendants at any time, even after the case was abated for Circle X to

attempt to serve the other defendants. Circle X did not file a response to the motion to

dismiss. The transcript of the hearing where the trial court denied Anderson’s motion

to dismiss is brief. Circle X did not make any attempt to explain its lack of diligence,

other than to vaguely reference attempted settlement as to the partition action, even

when specifically asked to explain by the trial court. At the time of the hearing, the

motion to sever had not yet been filed.

        In its brief to this Court, Circle X merely states in response to Anderson’s issue

that the trial court did not err in denying the motion to abate because the other named

defendants were not necessary to the money judgment for the reimbursement of the

property taxes or the judgment granting equitable subrogation.          There is still no

Anderson v. Circle X Land & Cattle Co., Ltd.                                        Page 6
explanation as to why the delay of more than seven years was necessary or why the

case needed to be abated if the parties were not necessary. If this were the case, there is

certainly no explanation as to the necessity to wait for seven years to file the motion for

partial summary judgment at issue before us. We find that the length of time the case

remained pending with no action and no explanation for the lack of activity in what

even Circle X asserts is a simple action for reimbursement for taxes was unreasonable as

a matter of law and that the trial court abused its discretion in determining that Circle X

exercised due diligence in the prosecution of this case as they provided virtually

nothing to rebut that conclusion.

        We have recently addressed the issue of the denial of a motion to dismiss for

want of prosecution and found that the trial court did not abuse its discretion in

denying that motion after a delay of twelve years. See Flying Diamond-West Madisonville

Ltd. P'ship v. GW Petroleum, Inc., No. 10-07-00281-CV, 2009 Tex. App. LEXIS 6891 (Tex.

App.—Waco Aug. 26, 2009, no pet. h.).             However, we find that case to be

distinguishable. The legal issues involved in Flying Diamond were extensive both in

length and complexity, which is not present in this case. Additionally, in that case, a

response was filed by the plaintiffs and an explanation as to specific reasons for the

delay was given in that response and in the hearing on the motion which we held was a

reasonable explanation for the delay. See Flying-Diamond, 2009 Tex. App. LEXIS 6891 at

*10. Circle X did neither.




Anderson v. Circle X Land & Cattle Co., Ltd.                                         Page 7
        The trial court abused its discretion by not granting Anderson’s motion to

dismiss.    We sustain issue three.            Because we sustain this issue, we do not reach

Anderson’s first issue.

Severance

        Generally, we would not reach Anderson’s second issue based on our disposition

of issue three. However, due to the somewhat unique procedural history of the case,

we find it necessary to address Anderson’s second issue, albeit in an abbreviated

manner. See TEX. R. APP. P. 43.3 & 47.1. Anderson’s complaint in their second issue is

that the trial court erred by granting a severance of the partition claim from the money

judgment for reimbursement and equitable subordination claims.               Circle X filed a

motion to sever the claims on March 3, 2009, which was granted by the trial court on

March 30, 2009. The partition claim was severed into a new cause number, making the

partial judgment granting the motion for summary judgment final for purposes of

appeal. Because we have held that the trial court should have granted the motion to

dismiss the suit in its entirety prior to the severance, it is necessary for our disposition

of this appeal that the severance must also be set aside based on the prior error

regarding dismissal. We sustain issue two.

Conclusion

        We find that the trial court abused its discretion by denying Anderson’s motion

to dismiss. Because the trial court should have dismissed Circle X’s claims in their

entirety, the order of severance was also erroneous and is set aside. Therefore, we




Anderson v. Circle X Land & Cattle Co., Ltd.                                           Page 8
reverse the judgment of the trial court and render a judgment of dismissal as to all

claims filed by Circle X.



                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       “(Justice Davis concurs in part with the Court’s judgment that the judgment
should be reversed. He dissents in part because the cause should not have been severed
and therefore, would remand. He does not join the Court’s opinion. A separate
opinion will not issue.)”
Reversed and rendered
Opinion delivered and filed March 24, 2010
[CV06]




Anderson v. Circle X Land & Cattle Co., Ltd.                                    Page 9
