      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00428-CV



                                     John Perrupato, Appellant

                                                   v.

                                      Lloyd Bellaire, Appellee


                 FROM COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
             NO. 55,179, HONORABLE GERALD M. BROWN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                John Perrupato appeals the dismissal of his case for want of prosecution. He contends

that the county court cannot refuse to set a case for trial after a formal request to do so, and that the

county court may not refuse to reinstate a case after receiving uncontroverted evidence that any

failure to proceed was not intentional or the result of conscious indifference but was due to accident

or mistake or has been reasonably explained. We affirm the dismissal.

                This appeal arises from the parties’ claims in small claims court. The parties sued

each other in a dispute about payment for pickup truck and motorcycle parts and repair work. The

justice court awarded Bellaire $856.84 plus $62 in court costs to be paid by Perrupato. Perrupato

filed his appeal bond on December 30, 2005, seeking review by the county court at law.

                In early March 2009, the county court sent notice of its intention to dismiss this

appeal for want of prosecution. The notice set a hearing for April 2, 2009, and cautioned that, if a
trial setting was not requested at least ten days before the hearing, the cause would be dismissed

without prejudice. On March 31, 2009, Perrupato filed a motion to retain this case on the docket.

On the morning before the April 2 dismissal hearing, he filed a motion to set case for hearing during

September or October 2009. The county court signed an order of dismissal on the following basis:


       On this 2nd day of April, 2009, the parties and/or their attorneys having been
       notified more than thirty (30) days prior hereto of the Court’s intention to DISMISS,
       and no party having heard their case, nor having taken written action to request a
       trial setting at least 10 days before this date, nor showing good cause for the case to
       be maintained on the docket, the Court on its own Motion finds that such cause
       should be in all things dismissed without prejudice in accordance with Rule 165a,
       Texas Rules of Civil Procedure, for want of prosecution.


Perrupato filed a motion to reinstate after dismissal, asserting that he has a fundamental right under

the state and federal constitutions to have the government redress his grievances and that he intended

to prosecute this action.

               The county court held a hearing on the motion to reinstate. Bellaire did not file any

opposition or appear at the hearing. Under examination by his attorney, Perrupato testified that he

expected that the case would be set for trial by the court rather than upon his request. He testified

that he had maintained relevant documents and the parts in dispute and was ready to proceed. When

his attorney asked “there was some miscommunication and misunderstanding about when we were

supposed to get information transferred back and forth and get the setting. Is that—,” Perrupato

stated, “Obviously, yes.” When the trial judge inquired whether Perrupato thought it strange when

three years went by without action on his case, Perrupato said he wondered about it, but figured that

overcrowded jails and jail populations were delaying his case. The county court denied the motion



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to reinstate, opining in open court that three years was an extreme amount of time for an appeal from

justice court and that reinstating the case would be unfair to Bellaire because witnesses’ memories

fade and evidence is lost.

               Both rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power

grant a trial court authority to dismiss a case for want of prosecution. See Tex. R. Civ. P.

165a(1)-(2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A case

may be placed on a dismissal docket under Rule 165a when it is not disposed of within the

time standards promulgated by the supreme court. See Tex. R. Civ. P. 165a(2). The supreme court

recommends that county court judges ensure that all civil cases are brought to trial or

final disposition within 18 months from appearance date for jury cases and 12 months for

nonjury cases. Tex. R. Jud. Admin. 6(c)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app.

(West Supp. 2009). Further, a trial court’s inherent authority, independent of the rules of procedure,

authorizes dismissal when a plaintiff fails to prosecute his case with due diligence. Villarreal,

994 S.W.2d at 631. Whether the plaintiff actually intended to abandon the lawsuit is not the inquiry.

Bevil v. Johnson, 307 S.W.2d 85, 87-88 (Tex. 1957); Ozuna v. Southwest Bio-Clinical Labs.,

766 S.W.2d 900, 902 (Tex. App.—San Antonio 1989, writ denied), overruled on other grounds,

Villarreal, 994 S.W.2d at 633. Nor does the existence of a belated trial setting or an asserted

eagerness to proceed to trial conclusively show that a trial court erred by dismissing and refusing to

reinstate a case. Ozuna, 766 S.W.2d at 902.




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               We review a trial court’s decision to dismiss a case for want of prosecution under

a clear abuse of discretion standard. See State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984);

Bevil, 307 S.W.2d at 87. A trial court abuses its discretion when it acts in an arbitrary and

unreasonable manner, or when it acts without reference to any guiding rules or principles. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

               Perrupato contends that the court erred by not retaining or reinstating his case. He

argues that his right to have the court resolve his dispute should not be disregarded in favor of the

court’s interest in maintaining its docket. He contends that his motion to retain, filed three days

before the dismissal hearing, and request for a setting, filed six hours before the dismissal, informed

the county court that he intended to prosecute the case. He also contends that his testimony at the

hearing on the motion to reinstate demonstrated that the delay was the result of his misunderstanding

of the court’s scheduling process and of a miscommunication between himself and his lawyer

about when to show the lawyer evidence and documents supporting his claim. He contends that

this evidence showed that the delay was the result of accident or mistake and had been reasonably

explained.

               We find no abuse of discretion. Perrupato was not denied access to the court system

or unfairly prevented from seeking redress from the court system. The dispute underlying this appeal

was heard by the justice court and decided to some extent in Bellaire’s favor. After Perrupato sought

review by the county court, this case languished in the county court for 39 months before Perrupato

filed his motion to retain the case on the county court’s docket. That motion was filed after a

notice of dismissal was sent and after the deadline set by the court in the notice for filing such



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motions. The case lay unprosecuted for twenty-one months beyond the supreme court’s guidelines

for resolution of jury cases in county courts—more than twice the guideline period. There is no

indication that Perrupato did anything in the county court toward prosecuting this appeal during

that period. Rather, the clerk’s record and Perrupato’s statement of the case in his appellate brief

indicate that he did nothing in the county court toward prosecuting this case during that period. His

explanation is that he did not attempt to set the case for hearing or trial because, despite being

represented by counsel, he was waiting for a trial setting to be sent by the county court. Even when

warned that his case could be dismissed, he failed to act promptly or timely to set it for hearing.

When Perrupato did ask the court to retain or reinstate the case, the county court balanced

Perrupato’s interest in pursuing review of the justice court’s decision with Bellaire’s interests and

the justice system’s concerns with evidence and memories gone stale or missing due to the passage

of time. We conclude that Perrupato has not shown that either the county court’s initial decision to

dismiss or its subsequent decision not to reinstate was an abuse of discretion.

               Affirmed.




                                              G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: June 25, 2010




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