Chief Justice                                                ^£*^*^%y                                             Clerk
James T.Worthen                                               ^et^ana^                                            Cathy S.Lusk
                                     Twelfth Court of Appeals
Justices                                                                                                          Chief Staff Attorney
Sam Griffith                                                                                                      Margaret Hussey
Diane DeVasto




           Thursday, March 31, 2005


           Ms. Susan D. Bonnen                                           Ms. Celia S. Flowers
           Assistant Attorney General                                    Flowers-Davis, PLLC
           Transportation Division                                       1021 ESE Loop 323
           P.O. Box 12548                                                Suite 200
           Austin, TX 78711-2548                                         Tyler, TX 75701

           RE:      Case Number:                       12-04-00010-CV
                    Trial Court Case Number:           44,45 6-A

           Style: The State of Texas
                    v.

                    Donald Howard Davis


           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK



           By:    KiibuJMu Mm
                 Katrina McClenny, Chief Deputy Clerk

           CC:            Hon. John Ovard
                          Hon. Randall L. Rogers
                          Ms. Judy Carnes




                 1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
  ServingAnderson, Cherokee, Gregg, Henderson,Hopkins, Houston,Kaufman, Nacogdoches, Panola, Rains, Rusk, Sabine,San Augustine, Shelby,
                                               Smith Upshur, Van Zandt and WoodCounties
                                                      www.12thcoa.courts.state.tx.us
                                 NO. 12-04-00010-CV


                       IN THE COURT OF APPEALS


          TWELFTH COURT OF APPEALS DISTRICT


                                     TYLER, TEXAS

THE STATE OF TEXAS,                                §   APPEAL FROM THE
APPELLANT


V.                                                §    COUNTY COURT AT LAW #2 OF

DONALD HOWARD DA VIS,
APPELLEE                                          §    SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION

        In one issue, the State of Texas contends that the trial court erred by dismissing its case for
want of prosecution and failing to reinstate the case. We reverse and remand.


                                           Background

        On September 1, 2000, the State filed an "Original Petition for Condemnation," seeking
the acquisition of a 6.12 acre tract of land out of a 7.7223 acre tract owned by Irene Elizabeth
Davis. The trial court appointed three Special Commissioners ("the Commissioners") to assess
the damages arising from the condemnation. On November 1, the Commissioners requested
appraisal reports and other records from the State that showed how much money the State paid
other landowners in the area for their land. The State objected to this request, and a hearing was
held on November 21 to determine whether the State was required to produce these documents.
The trial court subsequently appointed an attorney for the Commissioners and, on December 27,
ordered the State to produce information on all real property acquired by the State and located
within three miles of the property at issue.
       The State challenged the order by petition for writ of mandamus to this court. On
January 23, 2002, we held that although the trial court abused its discretion by making the
 complained-of orders, the State had an adequate remedy at law by appeal of the Commissioners'
award of damages to the county court at law. See In re State, 65 S.W.3d 383, 388 (Tex. App-
Tyler 2002, orig. proceeding).
        On April 10,2002, the Commissioners conducted a hearing and, at its conclusion, awarded
Davis $120,000.00 in damages and $9,000.00 in attorney's fees. The Commissioners also issued
a "Bill of Costs of Special Commissioners" against the State, requesting that the trial court order
the State to pay attorney's fees for their appointed counsel and transcript preparation expenses.
That same day, the trial court ordered the State to pay the Commissioners' bill.
        Once again, the State filed a petition for writ of mandamus in this court, seeking an order
directing the trial court to withdraw its order regarding the payment of the Commissioners' bill.
In an opinion dated September 18, 2002, we conditionally granted the writ of mandamus and held
that the trial court's order granting the Commissioners' recovery of their expenses from the State
was an abuse of discretion because the trial court lacked jurisdiction to enter the order. See In re
State, 85 S.W.3d871, 875 (Tex. App.-Tyler 2002, orig. proceeding). We also held that the State
had no adequate remedy by appeal. Id. at 877. We reasoned that the order requiring payment of
the Commissioners' bill caused the State to forfeit its right to avoid liability for an awardmade in
the administrative phase and proceed to a determination of damages in a trial de novo. Id. at 877.
        On May 2, 2002, the State filed its "Objections to Award of Special Commissioners,"
contending that the Commissioners' award of damages on April 10 was 1) excessive, 2) not
calculated properly, and 3) an amount outside the scope of the Commissioners' jurisdiction and
authority.
       On August 15, 2003, Donald Howard Davis, the Independent Executor of the Estate of
Irene Elizabeth Davis, filed a "Suggestion of Death," informing the trial court that Mrs. Davis had
died on May 24, 2003 and requesting the trial court to name him as the plaintiff in the instant
litigation. In an order dated September 3, the trial court granted Davis's request to allow the suit
to proceed in his name.

       On September 30, the trial court issued a notice to all parties that the case was set for
hearing on November 21 at 9:00 a.m. on the court's dismissal docket. The notice further stated
that
        Court records indicate that this case is eligible for DISMISSAL DOCKET because it has been on
        file since 09/01/00.    This case will be Dismissed for Want of Prosecution unless one of the
        following actions   is taken 5 days prior to the hearing date:
                 (1)        A Judgment is signed; or
                 (2)        A written request is made for a trial setting; or
                 (3)        A verified Motion and Order to retain is filed.



       On November 5, Davis filed a motion to dismiss, contending that the case should be
dismissed because the State had taken no substantive action in the case in over one year and three
months. In the motion, Davis also sought damages under sections 21.019 and 21.044 of the Texas
Property Code for attorney's fees and expenses and for damages for the State's possession of the
property at issue. See Tex. Prop. Code Ann. § 21.019 (Vernon 2004), § 21.044 (Vernon 2000).


       On November 14, seven days before the hearing on the court's dismissal docket, the State
sent a letter to the trial court requesting that the case be removed from the dismissal docket and
set for a jury trial. On November 17, the court signed an order setting the case for trial on Monday,
April 12, 2004 at 9:00 a.m. The State also filed a response to Davis's motion to dismiss on
November 21, contending that the case should not be dismissed because it had diligently pursued
discovery since the trial court acquired jurisdiction in May of 2002. It also argued that the death
of Mrs. Davis made it difficult to conduct discovery because no supplemental discovery responses
were made that named additional persons with knowledge of relevant facts. In the response, the
State outlined the following dates on which discovery and other procedural matters took place:

       September 1, 2000             State files its Original Petition

       October 10, 2000              Landowner served with Notice of November 1, 2000 hearing

       November 1, 2000              Special Commissioner's [sic] Hearing begins, recessed so that Special
                                     Commissioner's [sic] could consult with the trial judge

       November 12, 2000             Hearing held before Trial Court, order entered appointing attorney for
                                     Commissioners


       April 10, 2002                Hearing resumes, Special Commissioners enter award

       May 2, 2002                   State files its Objections to the Award of the Special Commissioners

       June 28, 2002                 State serves its Requests for Disclosure upon Landowner
          August 9, 2002            State serves its Request for Entry upon Landowner's Property on
                                    September 10, 2002

          August 22,2002            State serves its Discovery Requests upon Defendant (including Requests
                                    for Admissions)

          February 21, 2003         State serves its Second Request for Admissions upon Defendant

          February 19,2003          Condemnor transmits the appraisal report of John Chesley and requests
                                    available dates in March for the deposition of the landowner, Ms. Davis

          August 14, 2003           Landowner files Suggestion of Death and Order on Same


          After the hearing on November 21, the trial court ordered that the case be dismissed for
 want of prosecution "[f]or failure to comply with the notice dated September 30, 2003 and after
 hearing on 11-21-03." On December 4, the State filed a verified motion to reinstate the case and
 attached the discovery-related documents outlined in its response to Davis's motion to dismiss!
 The State also attached an affidavit from Alan L. Grundy, an attorney representing the State,
 verifying the authenticity of those documents and outlining the procedural history of the case.
          On January 2, 2004, Davis filed a "Brief in Support of Upholding Dismissal," asking the
 court to sustain its dismissal of the case and deny the State's motion to reinstate. On January 2,
 the trial court signed an order denying the State's motion to reinstate the case. The State filed a
 notice of appeal on January 15.


     Did the Trial Court Err by Dismissing and Refusing to Reinstate the Case?

          In its sole issue, the State argues that the trial court erred by dismissing and refusing to
 reinstate its case. Davis contends that this court does not have jurisdiction over this case because
 the trial court's order of dismissal did not dispose of all issues and parties. He also maintains that
 the trial court did not abuse its discretion by dismissing the State's case for want of prosecution
 and refusing to reinstate it.
 Standard of Review

          The standard of review of a dismissal for want of prosecution and a denial of a motion to


           Thesediscovery requests were also admitted intoevidence, without objection, at the hearing on the
motion to dismiss.
reinstate is whether the trial court committed a clear abuse of discretion, and the main issue is

whether the plaintiff exercised reasonable diligence in pursuing his suit. MacGregor v. Rich, 941
S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Nawas v.R&S
Vending, 920 S.W.2d 734, 737 (Tex. App.- Houston [1st Dist.] 1996, no writ). The trial court
may consider the entire history of the case, including (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 a reasonable excuse for the delay. In re Marriage ofSeals, 83 S.W.3d 870, 874 (Tex. App-
Texarkana 2002, no pet.). In reviewing the trial court's decision, we look at the entire history of
the case and perform a fact-intensive, case-by-case determination. See Federal Deposit Ins. Corp.
v. Kendrick, 897 S.W.2d 476, 479-81 (Tex. App.- Amarillo 1995, no writ).
        The test for abuse of discretion is whether the trial court acted without reference to guiding
rules and principles, or whether the trial court's actions were arbitrary and unreasonable. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court cannot
conclude that a trial court abused its discretion simply because, in the same circumstances, it would
have ruled differently, or because the trial court committed a mere error in judgment. E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549,558 (Tex. 1995); Loftin v. Martin, 116 S.W.2d
145, 146 (Tex. 1989).

Applicable Law
       A trial court's power to dismiss a suit for want of prosecution originates from two sources:
Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. T EX. R. Crv. P.
165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Steward v.
Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.- Waco 2004, no pet.). A trial court
may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2)
when a suit is not disposed of within the time standards given by the supreme court. Tex. R. Crv.
P. I65a(l), (2); Steward, 143S.W.3d at 163-64. Independentof the rules of civil procedure,a trial
court may also dismiss a suit under its inherent authority by finding a lack of due diligence in
prosecutingthe case. Villarreal, 994 S.W.2d at 630;Allen v. Rushing, 129S.W.3d 226,230 (Tex.
App- Texarkana 2004, no pet.).
       The trial court did not specify under what authority it dismissed the case. However, we
know from the record that the State did not fail to appear for trial or a hearing. Therefore, the trial
court could have dismissed the case only because the suit was not disposed of within the applicable
time periods or for lack of due diligence in prosecuting the case "because it [had] been on file since
09/01/00." Forjury trials, which the State requested, the applicable time period is eighteen months
from the appearance date. Tex. R. Jud. Admin. 6, reprinted in Tex. Gov't Code Ann. tit. 2,
subtit. F app. (Vernon 2005).
        The judicial phase of a condemnation proceeding is first invoked only if, as here, a party
files objections to the special commissioners' award. In re State, 85 S.W.3d at 876. Upon filing
objections, the special commissioners' award is vacated, and a trial de novo is conducted. Id.; see
also Tex. Prop. Code Ann. § 21.018(b) (Vernon 2004). The case is tried "in the same manner

as other civil causes," and the commissioners' award is inadmissible. Id. In other words, the filing
of objections coupled with the service of citation on the other party signals the end of the
administrative proceeding and prevents reinstatement of the commissioners' award. State v.
Carlton, 901 S.W.2d 736, 738 (Tex. App.- Austin 1995, no writ).
Analysis

        The instant case is similar to Villareal, where the notice of dismissal stated that


        BY DIRECTION OF THE PRESIDING JUDGE OF SAID COURT[,] NOTICE IS HEREBY
        GIVEN YOU THAT THE ABOVE CAUSE(S), UPON ORDER OF THE COURT[,] IS SET FOR
        DISMISSAL ON THE 22ND DAY OF OCTOBER, 1996 .... YOU ARE REQUESTED TO BE
        PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS MADE,
        THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION. ALL ORDERS THAT
        WILL REMOVE A CASE FROM THE DISMISSAL DOCKET MUST BE SUBMITTED TO THE
        DISMISSAL DEPARTMENT ON OR BEFORE THE DATE WHEN THE DOCKET IS CALLED.
        YOU ARE REMINDED THAT THIS IS NOT A DOCKET FOR THE RE-SETTING OF CASES,
        BUT FOR THEIR DISMISSAL.




Villareal, 994 S.W.2d at 629. Upon receiving the notice, Villareal 1) filed a motion to set the case
on the jury docket, 2) filed a motion to retain the case, asserting that he was ready to go to trial, and
3) appeared at the dismissal hearing and announced that he was ready for trial. Id. On appeal,
Villareal contended that dismissal was improper because he complied with the notice's conditions.
The Texas SupremeCourt held that because Villareal compliedwith all of the requirements of the
notice, the trial court abused its discretion by invoking its inherent authority to dismiss for failure
to prosecute diligently. Id. at 632.
        In the instant case, the State filed a written request for a trial setting before the five-day
period mandated by the dismissal notice began. Upon receiving the request for a trial setting, the
court set the case for trial on April 12, 2004 at 9:00 a.m. The State complied with one of the three
methods delineated in the dismissal notice for keeping the case off the dismissal docket.
Accordingly, we hold that the trial court abused its discretion in dismissing the State's case by
acting without reference to its own rules. See Villareal, 994 S.W.2d at 632 ("Because a reasonable
litigant would understand that only an announcement of ready for trial would justify removal from
the dismissal docket, we reject Defendants' [argument]").
        We also hold that the trial court abused its discretion by dismissing the case for lack of due
diligence in prosecuting the case because the record demonstrates the opposite. The judicial
proceedings in this case began on May 2, 2002, when the trial court invoked its jurisdiction after
the State filed its objections to the special commissioners' award. The case had been on file
approximately 17 months at the time the trial court sent notice that the case had been set for
hearing on the dismissal docket and was dismissed after being on file for approximately 19
months. Throughout those 17 months, discovery requests were sent and answered, a request for
available deposition dates for Mrs. Davis was sent, and the State's final discovery request, its
second request for admissions, was sent on February 21,2003, seven months before the court sent
the dismissal notice. Mrs. Davis answered those requests on March 24, 2003, six months before
the court sent notice that the case was being placed on the dismissal docket. On August 14,2003,
one month before the court sent the dismissal notice, Davis informed the court and the State that
Mrs. Davis had died on May 24 and that he would be taking over as the plaintiff in the case.
       At the time the court sent the notice of dismissal, the case had not yet reached the 18-month
time period for disposing of cases and had not been on file since "09/01/00." The trial court
apparently mistook the date the original petition for condemnation was filed (September 1, 2000)
for the date it invoked jurisdiction over the case (May 2, 2002). Therefore, the trial court abused
its discretion bydismissing the State's casefor lackof diligence in prosecuting it when it hadonly
been on file for 17 months instead of 36 months as shown in the notice.
            The State's sole issue is sustained.2



                                                    CONCLUSION

            The trial court abused its discretion by dismissing the State's case when the record reflects
  that 1) the State complied with the requirements contained in the notice for keeping the case from
  being dismissed and 2) the case was still within the eighteen-month time period for a case to reach
  its conclusion.

            The judgment of the trial court is reversed and the cause is remanded to the trial court for
  proceedings consistent with this opinion.


                                                                               JAMES T. WORTHEN
                                                                                        Chief Justice



 Opinion delivered March 31, 2005.
 Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.




                                                     (PUBLISH)




          We have held that the trial court erroneously dismissed the State's case. Accordingly, we need not
address Davis's contention that thiscourt is without jurisdiction to consider the State's appeal because live issues
regarding damages for temporary possession and attorney's fees resulting from the dismissal of the case remain in
the trial court.


                                                           8
                               COURT OF APPEALS
         TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                         JUDGMENT


                                          MARCH 31, 2005



                                     NO. 12-04-00010-CV


                                     THE STATE OF TEXAS,
                                                Appellant
                                                    V.

                                  DONALD HOWARD DAVIS,
                                                Appellee
                           Appeal from the County Court at Law No. 2
                          of Smith County, Texas (Tr.Ct.No.44,456-A)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being inspected, because it is the opinion of this Court that there was error
in the judgment of the court below it is ORDERED, ADJUDGED and DECREED by this Court
that the judgment be Reversed and the cause Remanded to the trial court For Further
PROCEEDINGS in accordance with the opinion of this court; and that this decision be certified to
the court below for observance.

                       James T. Worthen, Chief Justice.
                       Panel consisted of"Worthen, C.J., Griffith, J., and DeVasto, J.
