                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                       No. 07-17-00458-CV


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

                                                V.

                        METROPOLITAN LIFE INSURANCE COMPANY
                              AND JOEL HART, APPELLEES

                               On Appeal from the 69th District Court
                                      Sherman County, Texas
                        Trial Court No. 4727, Honorable Ron Enns, Presiding

                                       February 26, 2019

                                MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


       In 2006, appellant Dale Roush, appearing individually and as trustee of the Dale

Roush Assets Trusts, sued appellees the Metropolitan Life Insurance Company (MetLife)

and Joel Hart. In 2016, the trial court dismissed Roush’s suit for want of prosecution. It

later overruled his motion to reinstate. On appeal, Roush argues the trial court abused

its discretion by rendering these orders. Finding no abuse of discretion, we will affirm the

trial court’s orders.
                                       Background


       We have a limited clerk’s record in this appeal. For background we draw on facts

found by the trial court after it dismissed the case for want of prosecution and after it

denied Roush’s motion to reinstate, as well as Roush’s testimony at the reinstatement

hearing.


       Roush filed his lawsuit on July 10, 2006, alleging causes of action for wrongful

foreclosure, conversion of personal property, and money had and received. Defendants

MetLife and Hart answered. On January 14, 2009, MetLife filed traditional and no-

evidence motions for summary judgment. An order denying the motions was “entered”

on May 23, 2012. On October 3, 2012, the law firm representing Roush filed a motion to

withdraw which was granted by order signed October 8, 2012.


       Roush continued to work on the case without retaining new counsel. According to

Roush’s testimony, he hired an assistant to help him organize documents. He later hired

a paralegal to continue the organizational work. In August 2014, Roush was involved in

a motor vehicle accident in New Mexico. According to Roush’s testimony, he “took a

pretty hard shot.” He thereafter sought the treatment of a chiropractor for neck and

shoulder pain. In testimony, Roush stated he was unable to work much on the case “for

probably months” after the accident.


       In February 2015, Roush was involved in a second vehicle accident. He testified

he suffered trauma to his neck, back, and arms.       He continued treatment with his

chiropractor.




                                            2
      Roush testified that in April 2015, he fell in the kitchen of his home, causing loss

of consciousness for fifteen to twenty minutes.      He was taken to the hospital by

ambulance and there remained for about ten days. He then received occupational

therapy “for months and months” and had shoulder surgery.


      It appears there was no activity in the case from the withdrawal of Roush’s counsel

in October 2012 until the spring of 2016 when MetLife and Hart filed motions to dismiss

for want of prosecution. At that point, the firm of attorneys formerly representing Roush

reentered the case on his behalf. They filed a response to the defendants’ motions and

in the response requested a December 2016 jury trial setting.


      By order signed June 13, 2016, the trial court dismissed Roush’s case for want of

prosecution. According to the order, the trial court found Roush’s evidence offered to

explain the delay and lack of diligence was insufficient to overcome the presumption of

abandonment. Roush timely filed a verified motion to reinstate. A hearing was not held

and the motion was denied by operation of law. Roush appealed. On our finding that the

mandatory reinstatement hearing was not conducted by the trial court, we abated the

appeal and remanded the case for a hearing.1 After an evidentiary hearing the trial court

overruled Roush’s motion to reinstate.      Thereafter, the record was supplemented

accordingly and the appeal reinstated.




      1  We relied on Appellate Rule 44.4 as the means for authorizing the trial court to
hold the hearing. TEX. R. APP. P. 44.4; see Roush v. Metro. Life Ins. Co., 551 S.W.3d 903
(Tex. App.—Amarillo 2018, per curiam order).

                                           3
                                          Analysis


Dismissal for Want of Prosecution


       By his first issue Roush argues the trial court abused its discretion by dismissing

his case for want of prosecution.


       Trial courts are generally granted considerable discretion in managing their

dockets. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam).

We therefore review a trial court’s grant of a motion to dismiss for want of prosecution

under an abuse of discretion standard. In re Fifty-One Gambling Devices, 298 S.W.3d

768, 773 (Tex. App.—Amarillo 2009, pet. denied); Christian v. Christian, 985 S.W.2d 513,

514 (Tex. App.—San Antonio 1998, no pet.). A trial court abuses its discretion when it

acts without reference to guiding rules or principles. UHaul Int’l, Inc. v. Waldrip, 380

S.W.3d 118, 132 (Tex. 2012). The burden of proof rests on a litigant asserting an abuse

of discretion because there is a presumption the action of the trial court was justified.

FDIC v. Kendrick, 897 S.W.2d 476, 479 (Tex. App.—Amarillo 1995, no writ). An abuse

of discretion is generally not shown when a trial court dismisses a case on file for a lengthy

period of time with little or no substantive activity and no reasonable explanation offered

for the failure to prosecute. Coello v. Labarbera, No. 03-16-00670-CV, 2017 Tex. App.

LEXIS 8067, at *10 (Tex. App.—Austin Aug. 24, 2017, no pet.) (mem. op.) (citing Rainbow

Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 56 (Tex. App.—San Antonio 2002, pet.

denied)).


       A delay of unreasonable duration, if not reasonably explained, will give rise to a

conclusive presumption that the plaintiff abandoned the suit. In re Conner, 458 S.W.3d


                                              4
at 534 (finding abuse of discretion in trial court’s denial of motion to dismiss). The

presumption in turn justifies dismissal of the suit for want of prosecution under either Rule

165(a)(1),(2) of the Texas Rules of Civil Procedure or an exercise of the court’s inherent

power. Id.; see Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)

(noting the two sources of a trial courts authority for dismissing a case for want of

prosecution are Rule 165a and the trial court’s inherent power).


       Dismissal for Non-Compliance with Time Standards


       Under Rule 165a(2), a case may be dismissed if it is “not disposed of within time

standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). Rule 6.1(a) of

the Texas Rules of Judicial Administration provides a disposition standard for a non-family

law civil case of twelve months from appearance date for a nonjury case and eighteen

months for a jury case. TEX. R. JUD. ADMIN. 6.1(a), reprinted in TEX. GOV’T CODE ANN., tit.

2, subtit. F app. (West Supp. 2018). However, the rule recognizes that in “especially

complex cases or special circumstances it may not be possible to adhere” to the time

standards. TEX. R. JUD. ADMIN. 6.1(d).


       It is undisputed the underlying case was not brought to disposition within the

standards of Rule 6.1.      Roush therefore argues because the time standards are

discretionary the trial court abused its discretion by dismissing the case given its special

complexity and special circumstances. As proof Roush points to such factors as: “multiple

lawyers representing the different parties, health issues of [Roush], multiple summary

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




                                             5
attempted consolidation with related matters, and the bankruptcy of” an otherwise

unidentified entity.


       No facts in this record even hint that Roush’s causes of action for wrongful

foreclosure, conversion of personal property, and money had and received presented the

parties and court such difficult questions of law or fact as to require almost a decade to

bring the case to trial. The trial court reasonably could have seen Roush’s decision to

pursue self-representation for almost four years as inconsistent with a contention the case

was “especially complex.” Further, even assuming Roush’s three accidents presented

an unusual state of affairs, nothing shows how these events, which occurred years after

the defendants appeared, hindered disposition of the case within Rule 6.1’s time

standards. After Roush’s counsel withdrew in 2012, almost two years passed before his

first accident. Yet during that time he took no substantive action to prosecute his case.

In sum, nothing in the record shows Roush’s case had such complexity or presented such

special circumstances as to make adherence to the standards not possible.


       We find Roush did not provide a reasonable explanation justifying a finding of good

cause for his failure to bring the case to trial or final disposition within the standards

promulgated by the supreme court. In re Conner, 458 S.W.3d at 535 (“The [plaintiffs’]

failure to provide good cause for their nearly decade-long delay mandates dismissal

under Rule 165a(2)”). The trial court did not abuse its discretion in dismissing Roush’s

case for failure to comply with the time standards of Rule 6.1(a). TEX. R. JUD. ADM. 6.1(a);

TEX. R. CIV. P. 165a(2).




                                             6
       Dismissal Under the Trial Court’s Inherent Power


       Through the exercise of its inherent power to manage its docket, a trial court may

dismiss a case that has not been prosecuted with due diligence. State v. Forty-Two

Gambling Devices, No. 07-09-00383-CV, 2011 Tex. App. LEXIS 1792, at *5 (Tex. App.—

Amarillo Mar. 11, 2011, no pet.) (mem. op.) (citing Rampart Capital Corp. v. Maguire, 974

S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet. denied)).              The due diligence

determination requires consideration of the entire case history. Dobroslavic v. Bexar

Appraisal Dist., 397 S.W.3d 725, 729-30 (Tex. App.—San Antonio 2012, pet. denied);

Welborn v. Ferrell Enters., 376 S.W.3d 902, 907 (Tex. App.—Dallas 2012, no pet.).

Generally, four factors guide the analysis: (1) the length of time the case has been on file;

(2) the extent of activity in the case; (3) whether a trial setting was requested; and (4)

whether there exists a reasonable excuse for the delay. Henderson v. Blalock, 465

S.W.3d 318, 321-22 (Tex. App.—Houston [14th Dist.] 2015, no pet.); WMC Mortg. Corp.

v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied). No single factor

is controlling, however. Blalock, 465 S.W.3d at 321. Reasonable diligence in prosecuting

a case is not established merely by a belated trial setting or an expression of readiness

for trial in the face of a motion to dismiss for want of prosecution. Dobroslavic, 397 S.W.3d

at 730 (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—

Houston [14th Dist.] 1999, no pet.)); Pantex Sales, Inc. v. Dale Roush Farms of Texas, et

al., No. 07-17-00401-CV, 2019 Tex. App. LEXIS 1144, at *13 n.2 (Tex. App.—Amarillo

Feb. 14, 2019, n. pet. h.) (mem. op.) (“The decision in Moore II, effectively nullified, sub

silentio, that portion of Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo

1983, no writ) (Moore I) which held ‘[w]here, however, at the time of the dismissal hearing


                                             7
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.’ Id.”).


       As noted, by the time of dismissal the case had been on file for almost a decade

without a trial setting requested until counsel entered the case in 2016. To excuse

inactivity, Roush argues that he was unable to prosecute his lawsuit adequately because

of two motor vehicle accidents and a fall in his home. But Roush’s first accident occurred

in August 2014, some twenty-two months after his attorney withdrew. The trial court could

have reasonably concluded that Roush failed to demonstrate he exercised reasonable

diligence in prosecuting his lawsuit. And this is so even assuming the trial court, as trier

of fact, accepted Roush’s evidence he sustained injuries in the three accidents.


       Whether dismissal was under Rule of Civil Procedure 165a(2), for failure to

dispose of the case within the applicable time standard, or as an exercise of the trial

court’s inherent power, we find the trial court did not abuse its discretion by dismissing

Roush’s case for want of prosecution. Roush’s first issue is overruled.


Denial of Motion to Reinstate


       By his second issue Roush asserts the trial court abused its discretion by failing to

reinstate the case following the hearing on his motion.


       We review a trial court’s ruling on a party’s motion to reinstate for abuse of

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

curiam). We defer to the trial court’s resolution of factual disputes under that standard of

review. Henderson v. Lewis, No. 07-14-00445-CV, 2015 Tex. App. LEXIS 5031, at *1

                                             8
(Tex. App.—Amarillo May 15, 2015, no pet.) (mem. op.) (citing In re Labatt Food Serv.,

L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding)).


       Civil 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). The Rule 165a(3) standard “is essentially the same as that for setting

aside a default judgment.” Smith, 913 S.W.2d at 468. Thus the evidence must show an

adequate justification for the failure that negates intent or conscious indifference. Blalock,

465 S.W.3d at 323 (citing Smith, 913 S.W.2d at 468).


       At the hearing on his motion to reinstate, Roush testified in some detail to relevant

events during the period from October 2012, when his attorney withdrew, until April 2016.

As noted, for almost two years he worked with assistants to organize documents related

to this case and other cases. He testified of the debilitating effects of the three accidents.

But he never explained why he took no substantive action in the case and did not seek

replacement counsel until 2016 when the defendants filed motions to dismiss for want of

prosecution.


       In findings made in conjunction with its denial of Roush’s motion to reinstate the

trial court stated:


       [Roush’s] failure to prosecute this case continued from 2009 through 2012
       and well into 2016, when the Defendants filed their motions to dismiss for
       want of prosecution in March and May of 2016.
       As of June 1, 2016, the date of the hearing on Defendants’ Motions to
       Dismiss for Want of Prosecution, [Roush] had failed to obtain a trial date,

                                               9
         failed to seek any additional discovery, failed to obtain a scheduling order,
         failed (until May 2016) to hire new counsel, and did not file any pleadings
         during that timeframe whatsoever. In short, [Roush] took no steps to
         prosecute his case.
         At the time this Court dismissed this case for want of prosecution, it had
         been pending for almost a decade (from July 10, 2006 to June 13, 2016).


         The trial court applied the “intentional or conscious indifference” standard of Rule

165a(3). It concluded Roush “offered no satisfactory explanation for his delay and failure

to prosecute this case. More importantly, [Roush] has made no other showing supporting

that his failure to prosecute ‘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 sum, under the Rule 165a(3) standard which the trial court applied, Roush did

not present evidence of an accident or mistake that prevented him from prosecuting the

case nor could the proof amount to a reasonable explanation for the protracted case

inactivity. The evidence was insufficient to require reinstatement. We accordingly find

the trial court did not abuse its discretion in overruling Roush’s motion to reinstate.

Roush’s second issue is overruled.


                                         Conclusion


         Having overruled Roush’s appellate complaints, we affirm the trial court’s dismissal

order.




                                                          James T. Campbell
                                                             Justice


                                              10
