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                                   MEMORANDUM OPINION

                                          No. 04-08-00185-CV

    Clark L. BALLANTYNE, and G.W. Dunster, as Trustee of the Clark L. Ballantyne Trust
                      and of the Laura Ballantyne Warner Trust,
                                     Appellants

                                                    v.

            Mark C. JOHNSON, Albert F. Bertha, and Highlander Homes Finesilver, L.D.,
                                         Appellees

                        From the 45th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2002-CI-09603
                            Honorable Joe Frazier Brown, Jr., Judge Presiding

Opinion by:       Catherine Stone, Justice

Sitting:          Catherine Stone, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 10, 2008

AFFIRMED

           Clark Ballantyne and G.W. Dunster appeal the trial court’s dismissal of their case for want

of prosecution, claiming that (1) the trial court erred in dismissing the case, and (2) the trial court

further erred by not reinstating the case. We affirm the trial court’s order.
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                               FACTUAL AND PROCEDURAL HISTORY

        Clark L. Ballantyne and G. W. Dunster filed this appeal as Trustee of the Clark L. Ballantyne

Trust and the Laura Ballantyne Warner Trust (hereinafter “Ballantyne”). In 2002, Ballantyne filed

suit against Mark C. Johnson, Albert F. Bertha, and Highlander Homes Finesilver, L.D. (hereinafter

“Johnson”) for breach of fiduciary duty, tortious interference with contract, and other causes of

action. The record reflects that Johnson initiated some discovery in 2003 and 2004; however,

Ballantyne took no action.

        The original trial date was May 9, 2005. Because Ballantyne’s attorneys had a conflicting

trial setting, he requested a continuance and the trial was reset for October 10, 2005. Johnson then

requested a continuance due to work conflicts, and the trial was again reset for March 6, 2006.

Johnson requested another continuance because his attorney had a trial conflict; at that point, the trial

court ordered the parties to mediate and stated that the trial would not be reset until the mediation

was completed.

        Eighteen months later, on September 19, 2007, a notice was sent to Ballantyne informing him

the case was being set on the dismissal docket. No effort was made by Ballantyne or Johnson to set

a trial date. The trial court held the dismissal hearing on December 4, 2007, and the case was

dismissed.

        Ballantyne filed a motion to reinstate the case on January 3, 2008. The motion stated that

the case had not been prosecuted because discovery was difficult to obtain and because of Johnson’s

requests for continuances. Ballantyne’s motion also stated, “Counsel for Plaintiff forgot that the case




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had not been reset for trial. Because the case was continued without specifying a trial date, Plaintiff

inadvertently failed to obtain a new setting after mediation.”

       Approximately three months later, on March 7, 2008, Ballantyne filed a Notice of Setting,

notifying Johnson that Ballantyne had set a hearing for the motion on March 25, 2008. On March

18, 2008, Ballantyne filed a Notice of Appeal, and subsequently dropped the motion to reinstate.

                             DISMISSAL FOR WANT OF PROSECUTION

       In his first issue, Ballantyne contends the trial court erred in dismissing the case for want of

prosecution. A trial court has the power to dismiss a case for want of prosecution; its decision can

be disturbed on review only if the trial court’s decision was the result of a clear abuse of discretion.

State v. Rotello, 671 S.W.2d 507, 508–09 (Tex. 1984). “A trial court abuses its discretion if it acts

in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Walker

v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).


       A trial court’s power to dismiss a suit for want of prosecution originates from two sources:

(1) Texas Rule of Civil Procedure 165a; and (2) the court’s inherent authority. TEX . R. CIV . P. 165a;

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial court may

dismiss under Rule 165a(2) for “failure of any party seeking affirmative relief to appear for any

hearing or trial of which the party had notice,” or when a case is “not disposed of within time

standards promulgated by the Supreme Court.” TEX . R. CIV . P. 165a(2). In addition, the common

law vests the trial court with the inherent power to dismiss independently of the rules of procedure

when a plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 630.




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        Ballantyne argues that he exercised reasonable diligence, and that it was Johnson who was

responsible for the delays. Ballantyne points out that while he only requested one continuance,

Johnson requested two; in addition, Ballantyne contends that one of the reasons he inadvertently

forgot to reset the trial was because Johnson’s counsel requested that no setting be obtained pending

resolution of the attorney’s ad litem appointment on another case.

        Johnson responds to Ballantyne’s arguments by pointing out that before issuance of the notice

of dismissal, the case lingered for over five years with no substantial activity and no pending trial

date. The record reflects the following time line for this matter through issuance of the notice of

dismissal:

        July 2002               Ballantyne’s suit filed
        February 2005           Case ordered to mediation
        May 2005                Initial trial setting (based on Johnnson’s motion)
        October 2005            Second trial setting (based on Ballantyne’s request for a continuance)
        March 2006              Third trial setting (based on Johnson’s request for a continuance)
                                Order to mediate (based on Johnson’s second request for
                                continuance)
        September 2007          Notice of dismissal docket setting

The timeline above shows that while this matter was on the trial court’s docket for more than five

years, little activity took place up until the issuance of the notice of dismissal.

        Based on the record, the trial court correctly exercised its Rule 165a power and its inherent

power to dismiss a case when there has not been due diligence in prosecuting a case. See TEX . R.

CIV . P. 165a(2); Villarreal, 994 S.W.2d at 630. Under Rule 165a(2), “[a]ny case not disposed of

within time standards promulgated by the Supreme Court under its Administrative Rules may be


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placed on a dismissal docket.” TEX . R. CIV . P. 165a(2). Rule 6 of the Rules of Judicial

Administration provides that civil jury cases should be disposed of within eighteen months of the

appearance date. TEX . R. JUD . ADMIN . 6. This case was on the docket for over five years. The trial

court was clearly within its right to place the case on the dismissal docket.

        In addition, the court exercised its inherent power to dismiss the case independently of Rule

165a when it found Ballantyne failed to prosecute his case with due diligence. See Villarreal, 994

S.W.2d at 630. A trial court may consider several factors when determining whether a party has

demonstrated a lack of due diligence in prosecuting a claim, including: (1) the entire history of the

case; (2) the length of time the case was on file; (3) the extent of activity in the case; (4) the request

of a trial setting; (5) the existence of reasonable excuses for delay; and (6) the reasonable diligence

of serving the opposing party. Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 97

(Tex. App.—Houston [14th Dist.] 2005, pet. denied). At the time the case was placed on the

dismissal docket, it had been on file for over five years and had no current trial setting. In addition,

even after Ballantyne received the September notice that the case would be heard on the dismissal

docket in December, he made no efforts to show he intended to go forward with prosecuting the

case. The notice sent to Ballantyne by the court clearly stated that appropriate action should be taken

to evidence the party’s intent to prosecute the case, i.e., a final hearing should have been set if that

was Ballantyne’s desire. Instead, Ballantyne made no effort to demonstrate to the trial court that the

case should be left on the docket. See, e.g., Crown Asset Mgmt., L.L.C. v. Bogar, No. 05-07-01146-

CV, 2008 WL 3867638 at *2 (dismissing case for lack of due diligence where plaintiff failed to take

action during the month it was on notice of the dismissal docket setting).


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        We conclude the trial court’s dismissal of Ballantyne’s case was a valid exercise of both the

trial court’s power under Rule 165a and the trial court’s inherent power to dismiss, and thus was not

an abuse of discretion. Ballantyne’s first issue is overruled.

                                  MOTION FOR REINSTATEMENT

        Rule 165a(3) provides that after a case is dismissed for want of prosecution, “[t]he 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.” TEX . R. CIV . P. 165a(3). Rule 165a(4) makes

“[t]he same reinstatement procedures and timetables . . . applicable to all dismissals for want of

prosecution, including cases which are dismissed pursuant to the court’s inherent power.” TEX . R.

CIV . P. 165a(4).

        We review an order denying a motion to reinstate under an abuse of discretion standard. See

Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). This court

has held that this reinstatement standard applies to all dismissals for want of prosecution. Cappetta

v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.) (en banc). As we

reinforced in Capetta,

        “The operative standard is essentially the same as that for setting aside a default
        judgment. A failure . . . is not intentional or due to conscious indifference within
        the meaning of the rule merely because it is deliberate; it must also be without
        adequate justification. Proof of such justification—accident, mistake or other
        reasonable explanation—negates the intent or conscious indifference for which
        reinstatement can be denied. Also, conscious indifference means more than mere
        negligence.”




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Cappetta, 222 S.W.3d at 167 (quoting Smith v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467,

468 (Tex. 1995)).

        In his motion for reinstatement, Ballantyne argued that the trial court should not have

dismissed the case. Ballantyne contends that he met with considerable resistance when attempting

to obtain discovery from Thompson. He claims that most of the delay was Johnson’s fault because

of his two requested continuances (as opposed to the one requested by Ballantyne). Ballantyne also

contends that extensive discovery was conducted, resulting in over 8,000 pages of documents, and

that the parties negotiated for a period of time after mediation was ordered by the court in 2006.

Finally, Ballantyne defends his failure to reset the case, stating that is was not intentional or the result

of conscience indifference, but rather an inadvertent mistake.

        We cannot say that the trial court acted in an arbitrary or unreasonable manner when it denied

Ballantyne’s motion to reinstate the case. Ballantyne’s failure to set the case after the March 2006

continuance may have been mere negligence, but that does not explain the delay in prosecuting his

case over a five-year period. While Ballantyne’s contentions show some limited activity during the

course of the case, the record reflects that after the initial filing of the suit, there was a time period

of over two years before the initial trial setting, which was initiated by Johnson. In addition, there

was no activity on the case from February of 2006 to December of 2007, when the case was

dismissed. Ballantyne failed to take advantage of the time given between the notice of setting on the

dismissal docket and the dismissal hearing by filing a motion to show he was still actively

prosecuting the case. Ballantyne’s justifications for periods of delay explain only some of the

inactivity and do not justify the five year period that passed from the filing of the suit to its dismissal.


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Consequently, the trial court did not abuse its discretion when it denied Ballantyne’s motion to

reinstate the case. Ballantyne’s second issue is overruled.

                                           CONCLUSION

       Ballantyne failed to prove the trial court abused its discretion in dismissing his case for want

of prosecution or denying the motion for reinstatement. Accordingly, the trial court’s order is

affirmed.

                                                       Catherine Stone, Justice




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