                                 NO. 12-14-00071-CV

                             IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

KEVIN MAULDIN,                                  §      APPEAL FROM THE 241ST
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

RANSOM INDUSTRIES, INC. D/B/A
TYLER PIPE AND MCWANE, INC.,                    §      SMITH COUNTY, TEXAS
APPELLEES

                                 MEMORANDUM OPINION
       Kevin Mauldin appeals from the trial court’s order dismissing his suit against Ransom
Industries, Inc. d/b/a Tyler Pipe and McWane, Inc. for want of prosecution. In one issue,
Mauldin contends that the trial court abused its discretion in dismissing his suit for want of
prosecution. We affirm.


                                         BACKGROUND
       In 2003, Mauldin joined several others in suing Ransom and McWane over their alleged
improper treatment of employees, including wrongful discharge. In 2007, Mauldin and the other
plaintiffs agreed with Ransom and McWane to a severance so that each plaintiff’s case would be
tried separately. The record provides no indication that Mauldin’s case was set for trial at any
point after the severance.
       In 2014, the trial court provided Mauldin with notice of a dismissal for want of
prosecution hearing. In its notice, the trial court informed Mauldin that it was dismissing his
claims against Ransom and McWane unless Mauldin made (1) a written request for a trial setting
and (2) a written motion to retain “showing good and sufficient cause” that his claims should not
be dismissed for want of prosecution.
       Mauldin filed a motion to retain and request for jury trial. In his motion, Mauldin
claimed that he still desired to prosecute his claims against Ransom and McWane. He further
stated that he had requested a jury trial setting in 2011. He also contended that he had exercised
due diligence in prosecuting his claims and that he was ready for trial. Although he referenced
an attachment in his motion, Mauldin did not attach any exhibits.
       At the hearing on Mauldin’s motion to retain, Mauldin’s attorney reiterated that he had
requested a jury trial setting in 2011. Mauldin’s attorney also claimed that he had contacted the
trial court’s office regarding his request for a jury trial setting. However, he provided no proof
of any additional contact with the trial court regarding the request for trial setting. At the
conclusion of the hearing, the trial court dismissed Mauldin’s claims against Ransom and
McWane based on Mauldin’s want of prosecution.
       This appeal followed.


                            DISMISSAL FOR WANT OF PROSECUTION
       In his sole issue, Mauldin argues that the trial court abused its discretion by arbitrarily
dismissing his cause of action for want of prosecution.
Standard of Review
       We review a dismissal for want of prosecution under a clear abuse of discretion standard.
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial court abuses its
discretion if it acts in an unreasonable or arbitrary manner, without reference to any guiding rules
or principles. Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003). A trial court acts arbitrarily
and unreasonably if it could have reached only one decision, but instead reached a different one.
See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.—Texarkana 2003, no pet.). To that end, a
trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Sw. Bell
Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007). We may not substitute our judgment for that
of the trial court. Walker, 111 S.W.3d at 63.
Applicable Law
       A trial court’s authority to dismiss a case for want of prosecution can be based upon
either (1) Texas Rule of Civil Procedure 165a or (2) the court’s inherent power. Villareal v. San
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). As applicable to this case, under
Rule 165a, a trial court may place a case on the dismissal docket when a party seeking



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affirmative relief fails to comply with the time standards promulgated by the Supreme Court of
Texas under its Administrative Rules. TEX. R. CIV. P. 165a(2). Rule 6.1(b) of the Rules of
Judicial Administration provides that, so far as reasonably possible, civil jury cases, other than
family law cases, should be disposed of within eighteen months from the appearance date. TEX.
R. JUD. ADMIN. 6.1(b). A trial court shall dismiss a case placed on the dismissal docket unless
there is good cause for the case to be maintained on the docket. TEX. R. CIV. P. 165a(1).
       When a trial court utilizes its inherent power to dismiss a case for want of prosecution,
the central issue is whether the plaintiff exercised reasonable diligence. MacGregor, 941 S.W.2d
at 75. The trial court may consider the entire history of the case, including the length of time the
case was on file, the amount of activity in the case, the request for a trial setting, and the
existence of reasonable excuses for delay. City of Houston v. Thomas, 838 S.W.2d 296, 297
(Tex. App.—Houston [1st Dist.] 1992, no pet.). The complaining party has the burden to bring
forth a record to support its contention. Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex.
App.—El Paso 2010, no pet.). The trial court's decision will be reviewed to determine whether
the litigant demonstrated good cause for not prosecuting with greater diligence. Id.
       When the record before us does not contain findings of fact or conclusions of law, and
the trial court did not specify the standard of dismissal used, we must affirm on the basis of any
legal theory supported by the record. City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.
App.—Houston [1st Dist.] 1992, no pet.).
Analysis
       Mauldin had the burden to produce evidence at the hearing showing good cause for not
prosecuting his case with greater diligence. See Olivas, 323 S.W.3d at 274. To attempt to satisfy
this burden, he told the trial court that, in 2011, he had requested a trial setting. He also claimed
that he had contacted the trial court to follow up on the request, but he produced no proof of any
follow up communications.
       By the time Mauldin’s case was placed on the dismissal docket, it had been pending for
more than a decade. Mauldin had allowed years to go by with no activity in the case. In fact, in
the last five years that the case was pending in the trial court, the only activity that Mauldin
proved was a bare bones motion for a trial setting. Mauldin failed to prove good cause to keep
his case on the docket. See Olivas, 323 S.W.3d at 274. He also failed to prove that he exercised
reasonable diligence. See MacGregor, 941 S.W.2d at 75.



                                                 3
         Under the record before us, the trial court did not abuse its discretion in dismissing
Mauldin’s case for want of prosecution under either Rule 165a(2) or its inherent powers. See
Teixeira, 107 S.W.3d at 807. Accordingly, we overrule Mauldin’s sole issue.
                                                    DISPOSITION

         Having overruled Mauldin’s sole issue, we affirm the trial court’s order of dismissal.

                                                                  BRIAN HOYLE
                                                                     Justice

Opinion delivered October 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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                                     COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                              JUDGMENT

                                            OCTOBER 30, 2014


                                            NO. 12-14-00071-CV


                                  KEVIN MAULDIN,
                                      Appellant
                                         v.
                       RANSOM INDUSTRIES, INC. D/B/A TYLER PIPE
                                 AND MCWANE, INC.,
                                      Appellees


                                   Appeal from the 241st District Court
                        of Smith County, Texas (Tr.Ct.No. 03-0046-B/C/S13)


                      THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
order of dismissal.

                      It is therefore ORDERED, ADJUDGED and DECREED that the order of
dismissal of the court below be in all things affirmed, and that all costs of this appeal are
hereby adjudged against the appellant, KEVIN MAULDIN, for which execution may issue, and
that this decision be certified to the court below for observance.
                      Brian Hoyle, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
