¹ The trial court abused its discretion by granting Defendants’ Motion to Dismiss for Want of Prosecution, as well as abused its discretion by denying Plaintiff’s Motion to Reinstate this case, because Plaintiff has actively prosecuted the case, including requesting a trial setting for the Court’s first available jury trial docket, which was December 5, 2016. BRIEF OF APPELLANT Page 3 STATEMENT OF FACTS This case has a long and winding history that includes the following: multiple lawyers representing the different parties, health issues of the Plaintiff, multiple summary judgment motions, a three year delay in ruling on the summary judgment motions, attempted consolidation with related matters, and the bankruptcy of party Tejas Farms. See C.R. 70-86. While this case has undoubtedly been pending for a number of years, the long and sordid history of the case is not the fault of Appellant, but merely a circumstance of such a complex case with special circumstances. A very abbreviated overview of the various pleadings and motions throughout the history of this case is detailed below: Date of Filing: Description of Filing: Record Citation: 07/10/2006 Plaintiff’s Original Petition C.R. 70 08/07/2006 Defendant Hart’s Answer and Counterclaim C.R. 70 09/06/2006 Defendant Metropolitan’s Answer and C.R. 70 Cross-claim 11/13/2007 Motion for Withdrawal and Substitution of C.R. 71 Counsel for Defendant 02/22/2008 Notice of Hearing on Motion to Compel C.R. 71 03/07/2008 Plaintiff’s Motion to Compel Deposition of C.R. 71 Hart and Brief in Support 01/15/2009 Metropolitan’s Motion for Summary C.R. 72 Judgment and No Evidence Motion for Summary Judgment on Roush’s Claim for Conversion of Real Property 01/20/2009 Hart’s Motion to Consolidate C.R. 73 02/23/2009 Plaintiff’s First Amended Petition C.R. 73 02/25/2009 Metropolitan’s Motion to Strike Plaintiff’s C.R. 74 Amended Petition 03/02/2009 Metropolitan’s Brief in Support of Motion C.R. 74-75 for Summary Judgment BRIEF OF APPELLANT Page 4 03/11/2009 Hart’s Second Amended Answer C.R. 77 03/16/2009 Metropolitans First Amended Answer, C.R. 77 Special Exceptions, and Cross-claim 03/20/2009 Plaintiff’s Second Amended Petition C.R. 77 03/25/2009 Suggestion of Bankruptcy of Defendant C.R. 77 Tejas Farms, Ltd. 03/25/2009 Hart’s Motion for Summary Judgment C.R. 77 against Metropolitan 03/25/2009 Hart’s Motion for Summary Judgment C.R. 77-78 Against Plaintiff 04/17/2009 Defendant’s Motion for Substitution of C.R. 80 Counsel 04/17/2009 Notice of Hearing on Plaintiff’s Motion to C.R. 81 Compel Deposition of Hart 04/17/2009 Plaintiff’s Third Amended Petition C.R. 82 04/17/2009 Plaintiff’s Notice of Lis Pendens C.R. 83 05/26/2009 Order Granting Metropolitan’s Conditional C.R. 84 Motion for Summary Judgment 10/14/2009 Motion to Consolidate by Roush and Hart C.R. 85 10/21/2009 Hart’s Motion for Summary Judgment C.R. 85 2/16/2012 Order denying Motion for Summary C.R. 86 Judgment 10/05/2012 Defendant’s Motion to Withdraw C.R. 86 10/10/2012 Order Granting Motion to Withdraw C.R. 86 12/30/2015 Motion for Substitution of Counsel for C.R. 86 Defendants As clearly demonstrated from the above filings, which only represent a very small portion of the trial court’s complete index, this case has been pending with the trial court for the amount of time due to the complexity and ever-changing nature of the case, attorneys, and parties involved in the lawsuit and due to a mitigated and explained delay. After Mr. Roush began representing himself, he suffered injuries from car accidents and a dramatic fall that has not allowed him to BRIEF OF APPELLANT Page 5 adequately function from day-to-day and hampered his prosecution of the case. Mr. Roush assumed responsibility for prosecuting this case after he granted his attorneys’ withdrawal from the case in 2012. On August 28, 2014, Mr. Roush was involved in a car accident in Taos, New Mexico. C.R. 67. The accident necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr. Roush was involved in a second car accident that exasperated his previous health condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him to stay ten days in the hospital, of which nearly half was in the intensive care unit. C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R. 67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016, he underwent surgery to correct the injury to his shoulder. SUMMARY OF THE ARGUMENT The Court abused its discretion by granting Defendants’ Motion to Dismiss for Want of Prosecution, and this Court should therefore reverse the trial court’s judgment and remand this case to the trial court for trial on the merits. Under Texas Rule of Civil Procedure 165a, there are two grounds for dismissal for want of prosecution. Only one is applicable in this case. The applicable discretionary ground generally applies when a case is “not disposed of within [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. BRIEF OF APPELLANT Page 6 165a(2) (referencing the administrative rules promulgated by the Texas Supreme Court). Under this ground, a trial court has the discretion to dismiss for want of prosecution whenever a case is not disposed of in eighteen months. See TEX. R. JUD. ADMIN. 6.1(a)(1). However, though this is the general rule, it is not the rule for complex cases: "It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards." Id. R. 6.1(e). This case is both complex and involves special circumstances, as clearly identified in the Statement of Facts section of this brief and set forth in the 16 page docket index. C.R. 70-86. Therefore, the general discretionary rule, requiring a case’s disposal within eighteen months, is inapplicable in this matter, and the trial court abused its discretion in dismissing the case pursuant to Rule 165a. Under the common law, a trial court possesses the inherent power to dismiss a case independently of the rules of civil procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 631-32 (Tex. 1999). The factors a trial court may consider in dismissing a case under its inherent power include: the length of time the case is on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this BRIEF OF APPELLANT Page 7 case has been on file for a number of years, there has been extensive activity in the case, including Appellant requesting a December 5, 2016 jury trial following the undersigned’s substitution as counsel for Appellant. C.R. 70-96; APP’X n. 3 ¶ 8. Further, Mr. Roush suffered a number of injuries from two car accidents and a fall that mitigate and explain the delay in prosecution. C.R. 67-69. The trial court abused its discretion in dismissing this case pursuant to its inherent powers. ARGUMENT I. Standard of Review Courts of Appeal review dismissals for want of prosecution under an abuse- of-discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco 2005, pet. denied). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles, or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)). II. The trial court abused its discretion by granting Appellees’ Motion to Dismiss for Want of Prosecution because Appellant has actively prosecuted the case, including seeking a December 2016 trial setting; further, the delay in prosecution is mitigated by an explained delay due to Mr. Roush’s health. Under the second discretionary ground of Texas Rule of Civil Procedure 165a, a trial court has the power to dismiss a case that is “not disposed of within BRIEF OF APPELLANT Page 8 [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). Though this is the general discretionary rule, “it is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards." TEX. R. JUD. ADMIN. 6.1(e). This case is both complex and involves special circumstances; therefore, the trial court should not have dismissed Appellant’s claims pursuant to this ground. This Court should reverse the trial court’s judgment and remand the case for trial on the merits. Under the common law, a trial court possesses the inherent power to dismiss a case independently of the rules of civil procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 631-32 (Tex. 1999). Trial courts may consider a number of factors in determining whether or not to dismiss the case in accordance with its inherent power. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.— Fort Worth—1999, no pet.) (Factors a trial court may consider in dismissing under its inherent power include the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay) (citing King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). When considering these factors in light of the facts of this case, Appellant’s case should not have been dismissed through the trial court’s inherent power. This constitutes an abuse of discretion. BRIEF OF APPELLANT Page 9 A. The trial court abused its discretion by dismissing this case under the two grounds found in Texas Rule of Civil Procedure 165a. Under Texas Rule of Civil Procedure 165a, there are two grounds for dismissal for want of prosecution. One is when a “party seeking affirmative relief [fails] to appear for any hearing or trial of which the party had notice.” TEX. R. CIV. P. 165a(1). This ground is inapplicable to this case. The second discretionary ground generally applies when a case is “not disposed of within [the] time standards promulgated by the Supreme Court.” Id. R. 165a(2) (referencing the administrative rules promulgated by the Texas Supreme Court). Under this ground, a trial court has the discretion to dismiss for want of prosecution in a case whenever it is not disposed of in eighteen months. See TEX. R. JUD. ADMIN. 6.1(a)(1). According to Rule 1 of the Rules of Judicial Administration, the rules are promulgated pursuant to § 74.024 of the Texas Government Code. TEX. R. JUD. ADMIN. 1. Section 74.024 provides "the supreme court may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions, and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted . . . ." TEX. GOV'T CODE ANN. § 74.024(c)(1),(2) (West 2017) (emphasis added). Thus, the application of Rule 6 is discretionary and non- binding. Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet. denied); see also In re Fifty-One Gambling Devices, 298 S.W.3d 768, 774 (Tex. BRIEF OF APPELLANT Page 10 App.—Amarillo 2009, pet. denied); In re S.D.W., 811 S.W.2d 739, 746 (Tex. App.—Houston [1st Dist.] 1991, no writ) (juvenile case). In other words, “Rule 6 does not fix a bright line demarking the outward limit of a trial court's discretion to control its docket.” Jones, 318 S.W.3d at 427. Dismissal after eighteen months is not warranted in this case, as it is not a bright-line rule. The trial court, based on the complexity of this case, should not have dismissed the case based on its failure to come to a resolution within eighteen months. Additionally, though an eighteen-month guideline promulgated by the Texas Supreme Court is the general discretionary rule, a closer examination of Rule 6 reveals subsection (e), titled “Complex Cases”: "It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards." TEX. R. JUD. ADMIN. 6.1 (e). Therefore, the Supreme Court has carved out an exception to the general timetable that allows more time for complex cases or special circumstances. See Lessard v. Velsicol, No. 13-00-00113-CV, 2009 Tex. App. LEXIS 2811, at *13 n. 5 (Tex. App.—Corpus Christi Apr. 23, 2009, pet. denied) (mem. op.). While the statute does not define “complex case,” Black’s Law Dictionary defines “complex litigation” as: “Litigation involving several parties who are separately represented, and usu. involving multifarious factual and legal issues.” Complex Litigation, BLACK’S LAW DICTIONARY (10th ed. 2014) 1075. This case is both complex and involves special circumstances, including but BRIEF OF APPELLANT Page 11 not limited to: multiple lawyers representing the different parties, health issues of the Plaintiff, multiple summary judgment motions, a three year delay in ruling on the summary judgment motions, attempted consolidation with related matters, and the bankruptcy of party Tejas Farms. See C.R. 70-86. This case squarely fits the definition of “complex litigation” as defined by Black’s Law Dictionary. In fact, the civil docket sheet, or “index,” in this matter is seventeen pages long, and contains over one-hundred and thirty entries. C.R. 70-96. The present case is not a “normal” case, and it is not a case in which Appellant failed to take any sort of action. Appellant has recently been actively prosecuting this case. On May 16, 2016, the law firm of Sprouse Shrader Smith, PLLC noticed an appearance on behalf of Appellant. C.R. 50-51. Following the undersigned’s appearance, Appellant requested the case be set for the Court’s first available jury trial docket on December 6, 2016. APP’X n. 3 ¶ 8. Further, Appellant announced ready for trial in its Verified Motion to Reinstate. C.R. 63. The Court should not have dismissed Appellant’s claim pursuant to the 18- month discretionary timetable ground for two reasons: (1) this timetable is nonbinding on the trial court, and the trial court abused its discretion in dismissing the case pursuant to this timetable; and (2) this case is a “complex case” with special circumstances, and the 18-month timetable is therefore inapplicable to this BRIEF OF APPELLANT Page 12 matter and the trial court therefore abused its discretion in dismissing the case pursuant to this timetable. The trial court clearly abused its discretion in dismissing the case for want of prosecution, and in dismissing the matter while Appellant was clearly prosecuting its claim and stood ready for trial. B. The trial court abused its discretion by dismissing this case through its inherent power to dismiss a case when a plaintiff fails to prosecute its case with due diligence. Under the common law, a trial court possesses the inherent power to dismiss a case independently of the rules of procedure when a plaintiff fails to prosecute his case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 631-32 (Tex. 1999). The factors a trial court may consider in dismissing a case under its inherent power include: the length of time the case is on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this case has been on file for a number of years, there has been extensive activity in the case, up to the point where Appellant requested a trial setting for December 2016. C.R. 70-86; APP’X n. 3 ¶ 8. Additionally, Appellant has reasonable excuses for its delay in prosecution, namely: he has been involved in two car accidents and a traumatic fall that prevented the further prosecution of this case. C.R. 67-69. This BRIEF OF APPELLANT Page 13 all occurred while appellant was representing himself pro se. “Where . . . at the time of the dismissal hearing 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.” Moore v. Armour & Co., 660 S.W.2d 577, 578 (Tex. App.—Amarillo 1983, no writ) (citing Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e.)). Appellant requested a trial setting of December 5, 2016 prior to the dismissal of this case. APP’X n. 3 ¶ 8. Further, Appellant announced “ready for trial” in its Verified Motion to Reinstate. C.R. 63. In Moore, Plaintiff Moore “had announced trial ready, secured a trial setting and . . . stood ready to go to trial when his case was dismissed.” 660 S.W.2d at 578. Similarly, Appellant requested a trial setting for December 2016, and Appellant stood ready to stand trial at the time of dismissal. APP’X n. 3 ¶ 8; C.R. 63. Therefore, “a dismissal under these circumstances is an abuse of discretion.” Moore, 660 S.W.2d at 578. The Fourteenth Court of Appeals in Houston agreed with the Amarillo Court of Appeals’ reasoning in Moore: In Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo 1983, no writ), the court held that the trial judge abused his discretion in dismissing a case for want of prosecution where, at the time of the dismissal hearing, the plaintiff had announced ready for trial and had secured a trial setting or was otherwise making a diligent effort to get the case to trial. Id. at 578. We agree with this reasoning. BRIEF OF APPELLANT Page 14 Accordingly, in the instant case, we find the trial court abused its discretion in dismissing appellants’ causes of action for want of prosecution where this record unquestionably shows that appellant Billingsley was making a diligent effort to get the case to trial, and that trial settings had twice been secured for the case. Fedco Oil Co. v. Pride Ref. Co., 787 S.W.2d 572, 575 (Tex. App.—Houston [14th Dist.] 1990, no writ). The trial court in this case abused its discretion in dismissing Appellant’s causes of action for want of prosecution because Appellant was making a diligent effort to get the case to trial and had announced ready for trial and attempted to obtain a trial setting prior to dismissal of the cause. APP’X n. 3 ¶ 8; C.R. 63. Finally, Appellant has reasonable excuses for its delay in prosecution. See In re Connor, 458 S.W.3d 532 (Tex. 2015). On August 28, 2014, Mr. Roush was involved in a car accident in Taos, New Mexico. C.R. 67. The accident necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr. Roush was involved in a second car accident that exasperated his previous health condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him to stay ten days in the hospital, of which nearly half was in the intensive care unit. C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R. 67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016, he underwent surgery to correct the injury to his shoulder. BRIEF OF APPELLANT Page 15 Further, prior to Appellees’ Motion to Dismiss for Want of Prosecution, Appellant was actively engaged in the furtherance of this lawsuit. First, Appellant requested a trial setting for December 5, 2016. APP’X n. 3 ¶ 8. Second, Appellant was ready for trial prior to the case’s dismissal. C.R. 63. By considering these factors, which the trial court should have considered prior to dismissal of the lawsuit, it is clear that the trial court abused its discretion in dismissing Appellant’s claims. Maida, 990 S.W.2d at 842 (citing King, 884 S.W.2d at 237). This Court should therefore reverse the final judgment of the trial court and remand the case for trial on the merits. PRAYER WHEREFORE, Appellant prays that this Court conduct oral arguments, and reverse and remand this matter to the trial court as reinstated due to the fact that the trial court abused its discretion in dismissing Appellant’s claims for want of prosecution. BRIEF OF APPELLANT Page 16 Respectfully submitted, SPROUSE SHRADER SMITH PLLC John F. Massouh, State Bar No. 24026866 [email protected] 701 S. Taylor, Suite 500 P. O. Box 15008 Amarillo, Texas 79105-5008 Phone: (806) 468-3300; Fax: (806) 373-3454 /s/ John F. Massouh John F. Massouh ATTORNEY FOR APPELLANT PANTEX SALES, INC. D/B/A GRAPHIC EQUIPMENT AND SUPPLY BRIEF OF APPELLANT Page 17 CERTIFICATE OF COMPLIANCE 1. This petition complies with the type-volume limitation of the Texas Rules of Appellate Procedure 9.4(i)(2)(A). This brief contains 3266 words, excluding the parts of the petition exempted by the Texas Rules of Appellate Procedure. 2. This brief complies with the typeface requirements of Texas Rules of Appellate Procedure 9.4. This petition has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point font Times New Roman. /s/ John F. Massouh John F. Massouh BRIEF OF APPELLANT Page 18 CERTIFICATE OF SERVICE I hereby certify that on March 23, 2018, I electronically transmitted the foregoing document to the Clerk of the Court using the eFileTexas.gov electronic system for filing. Based on the records currently on file, the Clerk of the Court will transmit a Notice of Electronic Filing to the following e-filing registrant: Scott A. Wheatley Jackson Walker LLP 777 Main St., Suite 2100 Fort Worth, TX 76102 Attorneys for Metropolitan Insurance Company Lewis Coppedge Lewis Coppedge, P.C. 112 SW 8th Ave., Suite 301 Amarillo, TX 79101 and Frederic Wolfram Wolfram Law Firm, P.C. 600 S. Tyler St., Suite 1406 Amarillo, TX 79101 Attorneys for Joel Hart /s/ John F. Massouh John F. Massouh 14251.05 1039406_1.docx BRIEF OF APPELLANT Page 19 APPENDIX 1. Trial Court’s Order Granting Defendants’ Motions to Dismiss for Want of Prosecution 2. Plaintiff’s Response to Defendants’ Motion to Dismiss for Want of Prosecution 3. Docket Index BRIEF OF APPELLANT Page 20 ~"" "'" 11111 1111111111 ""1111111111 II 11111111111111 nlllllllill II I11I I#-1015932 CAUSE NO. 4727 DALE ROUSH, Individually and as § IN THE DISTRICT COURT OF Trustee oftbe Dale Ronsb Assets § Trust, § Plaintiff, § v. § SHERMAN COUNTY, TEXAS § METROPOLITAN LIFE § INSURANCE COMPANY, and JOEL § HART, § Defendants_ § 69 TH JUDICIAL DISTRICT ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FOR WANT OF PROSECUTION TO THE HONORABLE COURT: On this day came to be considered Defendant, Metropolitan Life Insurance Company's Motion to Dismiss for Want of Prosecution and Defendant, Joel Hart's Motion to Dismiss for Want of Prosecution. The Court, having considered the motion, the clerk's record in this matter, any supporting evidence received and the arguments of counsel, is of the opinion that the Motions to Dismiss for Want of Prosecution filed by Defendants Metropolitan Life Insurance Company and Joel Hart should be GRANTED. In support of this decision, the Court FINDS the following: I. This lawsuit was filed on July 10, 2006.

² The Court denied Defendants' motions for summary judgment by Order entered May 23, 2012. Plaintiff has taken no action to prosecute his case since that date and until he responded to MetLife's motion to dismiss for want of prosecution. Moreover, this case has been dormant since the parties completed briefing on the motions for summary judgment in 2009.

³ On May 22, 2012, Plaintiffs counsel, John Huffaker advised that he was no longer with the firm of Sprouse Shrader Smith, p.e. Sprouse Shrader Smith, p.e. filed a motion to withdraw on October 3, 2012, and the order granting the same was signed on October 8, 2012. ORDER GRANTING DEFENDANTS' FILED MOTIONS TO DISMISS FOR WANT OR PROSECUTION GINA GRAY PAGE I 16416459,,2 COUNTY & DISTRICT CLERK Filed 06/17/2016 11:23 19AM

⁴ This case has been pending for almost a decade. Plaintiff has failed to take any action to prosecute this case since the Court entered the Order denying Defendants' motions for summary judgment on May 23, 2012. Plaintiff has failed to obtain a trial date, failed to seek any additional discovery, failed to obtain a scheduling order, failed (until just last month, May 2016) to hire a new attorney, and has not filed any pleadings during that timefrarne whatsoever.

⁵ Plaintiff s delay in failing to bring this case to trial or final disposition IS umeasonable and presumptively and conclusively demonstrates that Plaintiff has abandoned his suit. The explanation and evidence offered by Plaintiff for the delay and lack of diligence is insufficient to rebut this conclusive preswnption of abandonment.

⁶ In Defendant Joel Hart's Motion to Dismiss, Joel Hart has stipulated and agreed to dismiss his counterclaims against the Plaintiff conditioned on the Court granting the Motions to Dismiss for Want of Prosecution. The Court finds that any and all claims that have been asserted or could have been asserted by JOEL HART against DALE ROUSH, Individually and as Trustee of the Dale Roush Assets Trust are in all things dismissed for want of prosecution. IT IS THEREFORE ORDERED that, Defendant Metropolitan Life Insurance Company's Motion to Dismiss for Want of Prosecution is hereby GRANTED. IT IS FURTHER ORDERED that Defendant Joel Hart's Motion to Dismiss for Want of Prosecution is hereby GRANTED. IT IS FURTHER ORDERED that all claims asserted by DALE ROUSH, Individually and as Trustee of the Dale Roush Assets Trust, are hereby and in all things dismissed for want of prosecution. ORDER GRA'JTrNG DEFENDANTS' MOTIONS TO DISMISS FOR WANT OR PROSECUTION PAGE 2 16416459V.2 Scott A. Wheatley Counsel for Metropolitan Alex Yarbrough Counsel for Plaintiff ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FOR WANT OR PROSECUTION PAGE] 16416459V.2 Page 2 0[5

⁷ The court should not dismiss Plaintiffs suit on the docket because there is good cause to maintain it on the docket. TEX. R. Cry. P. 165a(1).

⁸ The exception provided by Paragraph B reads: and allow a record to be made" regarding a pleading Lewis filed on November 21, 2007, entitled "Application A "gambling device" is not an: to Protect Jurisdiction." In this pleading, filed in the trial court but addressed to Judge Moore, Lewis sought an electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide order staying Judge Board's "entry of any judgment" amusement purposes if the contrivance rewards the following the November 1 show cause hearing until player exclusively with noncash merchandise prizes, Judge Moore ruled on Lewis's May 20 recusal motion. toys, or novelties, or a representation of value We overrule the issue for several reasons but here note redeemable for those items, that have a wholesale value [**23] simply that its overruling is required by our available from a single play of the game or device of not conclusion Judge Board was authorized by Civil more than 10 times the amount charged to play the game Practice & Remedies Code section 30.016 to preside or device once or $ 5, whichever is less. over the show cause hearing. Tex. Penal Code Ann. § 47.01(4)(B) (Vernon 2003). Nicole Mitchell additional play comes within the section 47.01(4)(B) Although the record shows Lewis filed his Rule 12 exception in a civil forfeiture proceeding was before the motion, it does not show the trial court ruled on the Texas Supreme Court in Hardy. 102 S.W.3d 123. motion. Moreover, the motion would appear to have According to the facts of Hardy, tickets awarded by a been untimely, since it was filed almost three months gaming machine could be exchanged through a game after trial. No error with respect to the motion is room attendant for cash to play another machine. Id. at preserved for our review. Tex. R. App. P. 33.1(a)(2). We 132. In deciding the applicability of the section overrule Lewis's seventh issue. 47.01(4)(B) exclusion, the Court held: The State's Cross-Appeal HN17[ ] This practice of exchanging tickets for cash . . . removes the machines from the section The State filed a notice of appeal and asserts by cross- 47.01(4)(B) exclusion. While additional play in itself appeal that Judge Moore abused his discretion by is not proscribed, when that additional play is denying its request for attorney's fees and costs at the accomplished by providing cash to play other February 1, 2008, hearing of Lewis's "Fourth machines, the statutory exclusion is not satisfied. Supplemental and Amended Motion to Recuse." For its The exclusion requires that the machine at issue requested award of attorney's fees and costs, the State reward the player "exclusively with noncash relies on Civil Practice and Remedies Code section merchandise prizes, toys, or novelties, or a 30.016(c) which provides: representation of value redeemable for those items." Tex. Penal Code § 47.01(4)(B) (emphasis HN19[ ] A judge hearing a tertiary recusal motion added). Under the statute, once cash is awarded, it against another judge who denies the motion shall does not matter whether the player deposited the award reasonable and necessary attorney's fees cash directly into the machine or whether an and costs to the party opposing the motion. The attendant performed this task. Cash to be used party making the motion and the attorney for the [**26] for play on another machine is not a party are jointly and severally liable for the award of noncash merchandise prize, toy, or novelty. If fees and costs. The fees and costs must be paid tickets are exchanged for cash, regardless of before the 31st day after the date the order denying whether that cash is used to play another machine, the tertiary [**28] recusal motion is rendered, the exclusion does not apply. unless the order is properly superseded. Id. We find Hardy controls disposition of Lewis's legal Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon argument in this issue. While Lewis contends Hardy is 2008). overly technical, HN18[ ] the holdings of the Texas At the February 1 hearing, Judge Moore denied Lewis's Supreme Court nonetheless are binding on this court. recusal motion. The State presented evidence of See In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) attorney's fees and costs expended and the court (pointing out courts of appeals are not free to disregard expressly found $ 675 was a reasonable attorney's fee opinions of Texas Supreme Court). The trial court did and $ 1.23 a reasonable cost for responding to the not err in denying Lewis's motion for directed verdict. motion. Lewis presented no controverting evidence. The We overrule Lewis's sixth issue. court, however, denied the State's request for attorney's Issue Seven - Authority of Attorney for State fees and costs. In his seventh issue Lewis contends the criminal district The record reveals Lewis's "Fourth Supplemental and attorney for Randall County was without authority to Amended Motion to Recuse" was the sixth recusal prosecute the case because art. 18.18(b) places all motion he filed against Judge Board. The February 1 prosecutorial responsibility on the magistrate. Lewis hearing was of a tertiary recusal motion. Tex. Civ. Prac. presented the contention in the trial court by means of & Rem. Code Ann. § 30.016(a) (Vernon 2008). HN20[ motion pursuant to Rule of Civil Procedure 12, which ] The term "shall" as used by statute is generally authorizes a party by sworn motion filed in the trial court recognized as "mandatory, creating a duty or to challenge [*779] the authority of an attorney to obligation." See Helena Chem. Co. v. Wilkins, 47 prosecute or defend an action. Tex. R. Civ. P. 12; see S.W.3d 486, 493 (Tex. 2001) (citing Tex. Gov't Code Angelina County v. McFarland, 374 S.W.2d 417, 422 Ann. § 311.016(2)). Because Judge Moore denied the (Tex. 1964) [**27] (describing operation of rule). requested recusal of the trial court judge an award of Nicole Mitchell reasonable and necessary attorneys fees was mandatory. The refusal to grant the requested attorney's fees and costs was an abuse of discretion. [**29] See, e.g., In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (trial court has no discretion in applying law to facts and failure to correctly apply law is abuse of discretion). We sustain the State's single issue on cross-appeal. Conclusion Judge Moore's order denying attorney's fees and costs is reversed and in accordance with statute we order that the State recover from Lewis and his attorney, jointly and severally, the sums of $ 676.23 for attorney's fees and $ 1.23 for costs. The sums awarded shall be paid before the 31st day after the day of this opinion unless properly superseded. See Tex. Civ. Prac. & Rem. Code Ann. § 30.016(c) (Vernon 2008). Otherwise, having overruled each of Lewis's issues we affirm the judgment of the trial court and affirm the orders of [*780] Judge Moore denying recusal of Judge Board. James T. Campbell Justice End of Document Nicole Mitchell Caution As of: March 23, 2018 5:03 PM Z In re S.D.W. Court of Appeals of Texas, First District, Houston June 20, 1991, Delivered ; June 20, 1991, Filed No. 01-89-00238-CR Reporter by Tex. Fam. Code Ann. § 53.045 (Supp. 1991). Yet it IN THE MATTER OF S.D.W., a Juvenile affirmed the indeterminate sentence for aggravated robbery, and remanded the murder allegation for Prior History: [**1] On Appeal from the County Court imposition of an indeterminate sentence. The court held at Law No. 1; Brazos County, Texas; Trial Court Cause that the amended petitions should have been presented No. 141-J-88CC; Claude D. Davis, Judge. to the grand jury, and that a prosecutor's oral Disposition: Judgment reversed and remanded in part, representations of approval by a grand jury was not a affirmed in part. certification. Without certification, the trial court was without jurisdiction to impose a determinate sentence. Thus, the court reformed the judgment, and remanded. Core Terms Because appellant and his mother were properly served with the original petition, the trial court had acquired grand jury, trial court, murder, amended petition, jurisdiction over him. Thus, the state's failure to serve juvenile, warnings, original petition, summons, appellant with the second amended petition did not detention, determinate sentencing, accomplice, kicked, deprive the trial court of jurisdiction. Appellant had not waived, commission of the offense, sentence, preserved any other alleged errors for review. Thus, the certification, provides, oral statement, jumped, lesser trial court did not err in failing to include jury instructions. included offense, written statement, bodily injury, family The remainder of the judgment was affirmed. code, aggravated robbery, causing death, no evidence, magistrate's, complains, knowingly, commits Outcome The court held that it had jurisdiction over appellant Case Summary juvenile, and affirmed the determinations as to murder and aggravated robbery. The court affirmed the indeterminate murder sentence, but reversed and Procedural Posture remanded for reformation as to the determinate sentence for the robbery, holding that there was no Appellant juvenile contested the determination from the showing that the grand jury had pre-approved the County Court at Law, Brazos County, Texas, that he imposition of a determinate sentence, which was engaged in delinquent conduct by committing murder statutorily required. and aggravated robbery, and the sentence of nine years' confinement under Tex. Fam. Code Ann. § 54.04(d)(3) (Supp. 1991) for murder, and an LexisNexis® Headnotes indeterminate period for robbery, under Tex. Fam. Code Ann. § 54.04(d)(2) (Supp. 1991). Appellant contended the determinate sentence was erroneous. Overview Criminal Law & Procedure > ... > Grand On appeal, the court reversed appellant juvenile's nine Juries > Procedures > General Overview year sentence for murder because the record did not contain anything indicating that prosecution of appellant Criminal Law & Procedure > Juvenile was affirmatively approved by a grand jury, as required Offenders > Juvenile Proceedings > General Nicole Mitchell Overview the petition must accompany the summons under Tex. Fam. Code Ann. § 53.06(b) (1986). HN1[ ] Grand Juries, Procedures Tex. Fam. Code Ann. § 53.045(a) (Supp. 1991) Criminal Law & Procedure > Juvenile provides that if the child is accused of one of six penal Offenders > Juvenile Proceedings > General offenses, one of which is murder, the prosecuting Overview attorney may refer the petition to the grand jury. A determinate sentence cannot be imposed if the petition HN4[ ] Juvenile Offenders, Juvenile Proceedings is not approved by a grand jury under Tex. Fam. Code Ann. § 54.04(d)(2) (Supp. 1991). If the grand jury See Tex. Fam. Code Ann. § 53.07(a) (1986). approves a petition, the fact of approval shall be certified to the juvenile court, and the certification shall be entered in the record of the case under Tex. Fam. Code Ann. § 53.045(d) (Supp. 1991). Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > General Overview Criminal Law & Procedure > Juvenile HN5[ ] Juvenile Offenders, Juvenile Proceedings Offenders > Juvenile Proceedings > General Overview See Tex. Gov't Code Ann. Title 2, subtitle F, App., rule 6(d) (1988 & Supp. 1991). Criminal Law & Procedure > ... > Grand Juries > Procedures > General Overview HN2[ ] Juvenile Offenders, Juvenile Proceedings Governments > Courts > Rule Application & Interpretation Before a determinate sentence may be imposed, a grand jury must approve the petition made the basis of HN6[ ] Courts, Rule Application & Interpretation the judgment. See Tex. Gov't Code Ann. § 74.024(c)(1) (1988). Civil Procedure > ... > Service of Process > Service of Summons > Issuance of Summons Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > Statements of Criminal Law & Procedure > Juvenile Juvenile Offenders > Juvenile Proceedings > General Overview Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > General Family Law > Child Custody > General Overview Overview Civil Procedure > ... > Service of Process > Service HN7[ ] Juvenile Proceedings, Statements of of Summons > General Overview Juvenile HN3[ ] Service of Summons, Issuance of Tex. Fam. Code Ann. § 51.09 provides that a child who Summons gives an out of court statement must do so knowingly, intelligently, and voluntarily. The statement must be Tex. Fam. Code Ann. § 53.06(a) (1986) provides that signed in the presence of a magistrate, with no law the juvenile court shall direct issuance of a summons to enforcement officer or prosecuting attorney present. The the child named in the petition, the child's parent, magistrate must certify he has examined the child guardian, or custodian, the child's guardian ad litem, outside the presence of any law enforcement officer and and any other person who appears to the court to be a has determined the child understands the nature and proper or necessary party to the proceeding. A copy of content of his statement. Tex. Fam. Code Ann. § Nicole Mitchell 51.09(b)(1)(F) (1986). Evidence > Weight & Sufficiency HN10[ ] Trials, Verdicts Criminal Law & Procedure > ... > Accusatory In reviewing the sufficiency of the evidence to support a Instruments > Indictments > General Overview guilty verdict, the evidence is viewed in the light most favorable to the verdict. The critical inquiry is whether, HN8[ ] Accusatory Instruments, Indictments after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the An indictment need not plead evidence relied on by the essential elements of the crime beyond a reasonable state. doubt. In a juvenile case, the question is whether the evidence considered as a whole shows that the state sustained its burden of proof beyond a reasonable Civil Procedure > Judgments > Relief From doubt. Judgments > Motions for New Trials Criminal Law & Procedure > ... > Reviewability > Preservation for Criminal Law & Procedure > Juvenile Review > General Overview Offenders > Juvenile Proceedings > General Overview Civil Procedure > Judgments > Relief From Judgments > General Overview Criminal Law & Procedure > Trials > Witnesses > Presentation Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial HN11[ ] Juvenile Offenders, Juvenile Proceedings HN9[ ] Relief From Judgments, Motions for New See Tex. Fam. Code Ann. § 54.03(e) (1986). Trials In order to preserve a factual insufficiency point of error, Criminal Law & Procedure > ... > Jury a motion for a new trial complaining of the insufficiency Instructions > Particular Instructions > Lesser must be filed. Included Offenses HN12[ ] Particular Instructions, Lesser Included Criminal Law & Offenses Procedure > Trials > Verdicts > General Overview An offense is a lesser included office if it is established Evidence > Burdens of Proof > Proof Beyond by proof of the same or less than all the facts required to Reasonable Doubt establish the commission of the offense charged; it differs from the offense charged only in the respect that Criminal Law & Procedure > Juvenile a less serious injury or risk of injury to the same person, Offenders > Juvenile Proceedings > General property, or public interest suffices to establish its Overview commission; it differs from the offense charged only in the respect that a less culpable mental state suffices to Criminal Law & Procedure > Trials > Burdens of establish its commission; or it consists of an attempt to Proof > General Overview commit the offense charged or an otherwise included offense under Tex. Code Crim. Proc. Ann. art. 37.09 Criminal Law & Procedure > Trials > Burdens of (1981). Proof > Prosecution Criminal Law & Procedure > Appeals > Standards of Criminal Law & Procedure > ... > Jury Review Instructions > Particular Instructions > Lesser Included Offenses Nicole Mitchell HN13[ ] Particular Instructions, Lesser Included Criminal Law & Procedure > ... > Homicide, Offenses Manslaughter & Murder > Voluntary Manslaughter > General Overview In determining whether a charge on a lesser included offense is required, a two step analysis is required. First, HN16[ ] Voluntary Manslaughter, Elements the lesser included offense must be included within the proof necessary to establish the offense charged. A person commits the offense of voluntary Second, there must also be some evidence in the manslaughter if he causes the death of another under record that if the defendant is guilty, he is guilty only of circumstances that would constitute murder under Tex. the lesser included offense. If the evidence raises the Penal Code Ann. § 19.02, except that he caused the issue of a lesser included offense, it must be included in death under the immediate influence of sudden passion the charge. arising from an adequate cause under Tex. Penal Code Ann. § 19.04(a) (1989). Sudden passions means passion directly caused by and arising out of provocation by the individual killed or another acting Criminal Law & with the person killed, such passion arising at the time Procedure > ... > Robbery > Unarmed of the offense and not solely the result of former Robbery > Elements provocation under Tex. Penal Code Ann. § 19.02(b) (1989). Criminal Law & Procedure > ... > Crimes Against Persons > Robbery > General Overview HN14[ ] Unarmed Robbery, Elements Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Involuntary A person commits the offense of robbery if, while in the Manslaughter > Elements course of committing theft, and with intent to obtain or maintain control of the property, he intentionally, Criminal Law & Procedure > ... > Homicide, knowingly, or recklessly causes bodily injury, or Manslaughter & Murder > Involuntary intentionally or knowingly threatens or places another in Manslaughter > General Overview fear of imminent bodily injury or death under Tex. Penal Code Ann. § 29.02(a) (1974). If in the course of Criminal Law & Procedure > ... > Homicide, committing a robbery, a person also causes serious Manslaughter & Murder > Murder > General bodily injury to another, he has committed aggravated Overview robbery as per Tex. Penal Code Ann. § 29.03(a)(1) (Supp. 1991). Criminal Law & Procedure > ... > Acts & Mental States > Mens Rea > Negligence HN17[ ] Involuntary Manslaughter, Elements Criminal Law & Procedure > ... > Homicide, Manslaughter & Murder > Murder > General A person commits criminally negligent homicide if he Overview causes the death of an individual by criminal negligence under Tex. Penal Code Ann. § 19.07(a) (1989). A HN15[ ] Homicide, Manslaughter & Murder, Murder person acts with criminal negligence or is criminally negligent when he ought to be aware of a substantial See Tex. Penal Code Ann. § 19.02(a) (1989). and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross Criminal Law & Procedure > ... > Homicide, deviation from the standard of care an ordinary person Manslaughter & Murder > Voluntary would exercise under all the same circumstances as Manslaughter > Elements viewed from the actor's standpoint under Tex. Penal Code Ann. § 6.03(d) (1974). The essence of criminal Criminal Law & Procedure > ... > Homicide, negligence is the failure of the actor to perceive the risk Manslaughter & Murder > Murder > General created by his conduct. Criminally negligent homicide is Overview a lesser included offense of murder. Nicole Mitchell [*741] OPINION Criminal Law & Procedure > ... > Assault & This is an appeal from a final judgment of the County Battery > Simple Offenses > Elements Court at Law No. 1 of Brazos [*742] County, Texas, sitting as a juvenile court, based on a jury finding that Criminal Law & Procedure > ... > Crimes Against appellant, S.D.W., engaged in delinquent conduct by Persons > Assault & Battery > General Overview committing the offenses of murder and aggravated robbery. The jury assessed a determinative sentence of HN18[ ] Simple Offenses, Elements nine years confinement on the murder charge. 1 [**2] TEX. FAM. CODE ANN. § 54.04(d)(3) (Vernon Supp. Assault occurs when someone intentionally, knowingly, 1991). For the robbery, 2 the judge sentenced appellant or recklessly causes bodily injury to another, threatens to an indeterminate period, not to exceed the time when another with imminent bodily injury, or intentionally or appellant attains the age of 21. TEX. FAM. CODE ANN. knowingly causes physical contact with another when § 54.04(d)(2) (Vernon Supp. 1991). We affirm in part, the actor knows or should reasonably believe the other and reverse and remand in part. will regard the contact as offensive or provocative under Tex. Penal Code Ann. § 22.01 (1989). Assault is a On October 1, 1988, Michael Granados Ramirez was lesser included offense of aggravated robbery. found by some passersby lying in a Bryan street. He was badly beaten about the face and head. The police and an ambulance were summoned, but Ramirez, a recently "green-carded" Mexican national, refused Criminal Law & Procedure > ... > Homicide, medical attention, and generally refused to cooperate in Manslaughter & Murder > Involuntary the immediate investigation of the crime. He told one of Manslaughter > Elements the passersby, Betty Perez, that he had been attacked Criminal Law & Procedure > ... > Homicide, by five black males, one of whom was on a bicycle. Manslaughter & Murder > Involuntary After Ramirez declined to be taken to a hospital, Ms. Manslaughter > General Overview Perez took him home, where he was found dead the next day of a subdural brain hemorrhage. HN19[ ] Involuntary Manslaughter, Elements In summary, we reverse the nine year determinative sentence because of the State's failure to comply with Involuntary manslaughter occurs when a person TEX. FAM. CODE ANN. § 53.045(d) (Vernon Supp. recklessly causes the death of another under Tex. Penal 1991), in that, the record does not contain any writing, Code Ann. § 19.05(a)(1) (1989). A person acts whether titled "certificate of approval" or otherwise, recklessly when he or she is aware of, but consciously indicating the State's prosecution of appellant under the disregards, a substantial and unjustifiable risk the second amended petition, or any petition, was circumstances exist or the result will occur. affirmatively approved by a grand jury. We affirm Counsel: Attorneys for Appellant: William W. Vance, imposition of the indeterminate [**3] sentence for the Bryan, Texas. delinquent conduct finding based on the aggravated robbery allegation, and remand the delinquent conduct Attorneys for Appellee: Bill R. Turner, District Attorney, finding on the murder allegation for imposition of an William O. Juvrud, Assistant District Attorney, Bryan, indeterminate sentence. Texas. In the first and second points of error, appellant asserts Judges: Davie L. Wilson, Justice. Justices Cohen and the determinate sentencing provisions of the family code Price also sitting. are unconstitutional. Our resolution of the fifth point of error renders these points of error moot. They are Opinion by: WILSON accordingly not discussed, but see generally In the Opinion 1 TEX. PENAL CODE ANN. § 19.02 (Vernon 1989). 2 TEX. PENAL CODE ANN. § 29.03 (Vernon Supp. 1991). Nicole Mitchell Matter of R.L.H., 771 S.W.2d 697, 699-700 (Tex. App.-- THE COURT: Are you aware of that? Austin 1989, no writ), and In the Matter of S.C., 790 S.W.2d 766, 769 (Tex. App.--Austin 1990, writ denied). MR. VANCE (for the appellant): Yes, sir, I am. Appellant's third and fourth points of error state that the .... trial court's judgment and the commitment order are void THE COURT: Okay. Just before I get to that though, I because there is a fatal variance between the judgment want to be sure that he and the Mother are aware of and commitment order, and the relief sought in the what the Grand Jury did. second amended petition. We generally understand appellant to be complaining about the lack of specificity MR. VANCE: I talked to both of them, Judge. as to dispositional alternatives in the State's pleading. THE COURT: Then they are aware of it. And we always Because we reverse the determinative sentence on admonish him and the Mother carefully, that you don't other grounds, it is unnecessary to discuss whether the have to talk to anybody about this case. And you [**6] State's pleading gives appellant notice, consistent want to be sure that you check with your attorney if you with [**4] due process, of the State's intention to have any question. Do you understand that? impose a determinate sentence of up to 30 years. 3 See generally R.L.H., 771 S.W.2d at 701-02. APPELLANT: (Indicating) (Affirmative). At a detention hearing before the trial judge with all MRS. HOSKINS (Appellant's mother): Yes, sir. parties present conducted January 3, 1989, the prosecutor indicated a petition for felony murder would THE COURT: Both of them, Momma and the child? be filed by that Thursday. [**5] The State's original APPELLANT: Yes, Sir. petition, which alleged murder, reflects a time-date stamp of January 5, 1989, indicating a filing on that date In that same hearing, the State moved to waive count III with the Brazos County Clerk's office. This date is of the petition, described by the prosecutor as "alleging confirmed by subsequent conversations on the [*743] a capital murder charge." record between the lawyers and the judge and is not in dispute. A pretrial hearing was held on January 26, 1989, in which the following statement was made by the A detention hearing was held on January 13, 1989, in prosecutor in the context of replying to a motion to bar which activity by the grand jury was discussed on the prosecution: record between the attorneys. MR. JUVRUD: The original detention was --occurred -- MR. JUVRUD (for the State): The petition was based on violation of a lawful order of the court on a presented to the Grand Jury of Brazos County, Texas, prior adjudication of this child, which was 157-J-88CC, on the 12th of this month, yesterday. And the Grand as well as the new pending charges. The case was Jury did approve and certify that petition to the district taken to the Grand Jury on the 12th of January, 1989. court for this case to proceed with determinate The first Grand Jury which was available to hear the sentencing under 53.045 under the Family Code. Petition in which they certified and approved the Petition for our (sic) in determinate sentencing. . . . Then on February 3, 1989, which in one place was 3 Justice Cohen notes that this point of error highlights an labeled a detention hearing and another, a final pretrial, anomaly in a due process context between the adult and the following exchange occurred: juvenile criminal systems. Normally, the juvenile system demands the strictest adherence to due process safeguards. MR. VANCE: The other thing, is that I have [**7] But here, the law seems to allow the chance of a 30 year received in the mail a second amended petition filed on sentence to be pled by the State in what only could be January 31, 1989. Basically, it's similar to the original described as vague terms. The adult system only permits petition in this case. But the State at one point in time punishment enhancement after specific pleadings and factual after January 5th, but before January 31, of 1989, had findings. See generally Ex parte Patterson, 740 S.W.2d 766, waived paragraph II [of the murder charge]. And now 777 (Tex. Crim. App. 1987) (trial court committed egregious that particular paragraph is again included in the error in submitting the special issue of use or exhibition of deadly weapon in the absence of a pleading by the State). petition. And we would object to the inclusion of Nicole Mitchell paragraph II in the second amended petition. . . . And I approved by a grand jury. TEX. FAM. CODE ANN. § have found no evidence in the file that that particular 54.04(d)(2) (Vernon Supp. 1991). If the grand jury petition has been presented to the Grand Jury for its approves a petition, "the fact of approval shall be consideration. certified to the juvenile court, and the certification shall be entered in the record of the case." TEX. FAM. CODE MR. JUVRUD: The Grand Jury was presented with the ANN. § 53.045(d) (Vernon Supp. 1991). entire petition to begin with. And they gave their approval of the entire petition. After the Grand Jury Appellant specifically objected to the second amended approved it, the State waived the bottom count on the petition because it had not been presented to the grand belief that --. jury. Appellant's contention is that, as the State waived one of the murder allegations contained in the original THE COURT: Are you talking about the robbery? petition, when the State reasserted the murder allegation in the amended petition, it was required to MR. JUVRUD: No, Your Honor, paragraph II. It was the again bring the petition before the grand jury. mistaken belief that that paragraph represented a capital murder charge. After further research, it was The State replies that each of the two murder charges in discovered that it did not represent a capital murder the second amended petition was specifically and charge, merely a felony murder charge, which was separately charged. Because the jury returned a guilty applicable in this case. It readmitted its petition to verdict on the first of the two murder charges, the one reinclude that paragraph, as it does [**8] believe that it that had never been dropped and had been approved is one of the grounds that it can proceed on. And it was (as reported by the prosecutor) by the grand jury, error, originally approved by the Grand Jury and then waived if any, [**10] in the State's failure to present the second afterwards. amended petition to the grand jury was harmless. We disagree. THE COURT: Okay. Anything else? The requirements of section 53.045(a) and (d) and MR. VANCE: No, your honor. Our basic concern is, yes, section 54.04(2) and (3) are clear -- HN2[ ] before a it was in the original petition of January 5th. It was determinate sentence may be imposed, a grand jury subsequently waived. And now it is being [*744] must approve the petition made the basis of the reintroduced through the second amended petition. That judgment. We conclude the amended petition, which second amended petition has not been presented to the included an allegation that previously had been waived, Grand Jury for its consideration . . . I better object. should have been presented to the grand jury. Our .... holding is supported by the fact that, not only was the amended petition not presented to the grand jury for MR. JUVRUD: We waived the last part and then we approval, but also, the record is devoid of any written came back in and decided it was appropriate to the indication the original petition was ever presented to the case, and we reentered it on our petition. But it was grand jury. Although the prosecutor made numerous originally submitted to the Grand Jury. affirmations throughout these proceedings that the original petition had been approved by the grand jury, THE COURT: All right. Then I deny the motion. the certification required by section 53.045(d) is not contained in the transcript, either as a separate In his fifth point of error, appellant complains the document or as an attachment to the original petition. judgment and commitment order are void because the Nor is there any type of notation on the docket sheet to State did not present the second amended petition to indicate the grand jury approved the petition. the grand jury. The State argues it was not required to do so, as the original petition had been approved, and We find that a prosecutor's oral representations of the two petitions were identical. approval by a grand jury, even coupled with [**11] the assent of a defendant's counsel, is not a "certification" HN1[ ] Section 53.045 of the family code provides that within the meaning of the statute. Without certification of if the child is accused of one of six penal offenses, one grand jury approval, and the entry of such certification of which is murder, [**9] the prosecuting attorney may into the record of the case, the trial court was without refer the petition to the grand jury. TEX. FAM. CODE jurisdiction to impose a determinate sentence. TEX. ANN. § 53.045(a) (Vernon Supp. 1991). A determinate FAM. CODE ANN. § 54.04(3) (Vernon Supp. 1991). sentence cannot be imposed if the petition is not Nicole Mitchell We note one other factor that we believe does not adjudication hearing." TEX. FAM. CODE ANN. § overcome the State's failure to enter into the record a 53.07(a) (Vernon 1986). certificate of approval reflecting the grand jury's actions. The judgment contains a non-specific "form" finding by The two cases relied upon by appellant are the trial judge of the grand jury's approval of the petition. distinguishable because they involve the State's failure However, neither litigant here has discussed the impact to serve the juvenile defendant with the original petition of the judge's finding within the context of this case. and summons, not with any amended petitions. In In the Matter of W.L.C., 562 S.W.2d 454, 455 (Tex. 1978), the [*745] The recent Tyler Court of Appeals case, In the juvenile was not served with the original petition to Matter of S.B.C., 805 S.W. 2d 1, 7 (Tex. App.--Tyler transfer him to district court. The probation officer 1991, no writ), discusses the "certificate of approval" in testified he did not have personal knowledge of whether the context of a challenge to the certification process. A the juvenile had been served. The trial court then "certificate of approval" is also referred to in the case of ordered W.L.C. served in open court. The only In the Matter of J.T.H., 779 S.W. 2d 954, 957 (Tex. documentary evidence contained in the record App.--Austin 1989). Both cases consider the certificate concerning service, was an instrument titled "Precept to as a written instrument filed within the record of the Serve" executed by the clerk, [**14] which directed the case. [**12] We agree with the construction of the sheriff to serve W.L.C. with a copy of the original statute by the Tyler and Austin courts of appeal petition. The return of service form on the reverse side concerning the "certificate of approval" as constituting a of the precept was blank. The supreme court reversed written instrument. the order of transfer, holding that a juvenile must be served with summons and that, absent an affirmative Because the record does not contain a written showing of service of summons in the record, the "certification of approval" from the grand jury approving juvenile court was without jurisdiction. Id. at 455. the State's second amended petition, appellant's fifth point of error is sustained. The judgment is reformed to In the second case, In the Matter of D.W.M., 562 delete the imposition of a determinate sentence of nine S.W.2d 851 (Tex. 1978), the State requested the years, and the case is remanded to the trial court for juvenile court to waive its jurisdiction and transfer the imposition of an indeterminate sentence based upon the juvenile, who was accused of murder, to the district finding of delinquent conduct based on the murder court. The record did not show the juvenile was served allegation. with a summons to the transfer hearing. The court of appeals affirmed the transfer because the juvenile In his sixth point of error, appellant complains the waived service of summons by voluntarily appearing judgment and the commitment order are void because and failing to object to the lack of summons. The the State did not properly serve him or his mother with supreme court reversed, holding that a juvenile must be the second amended petition made the basis of his served with summons, the service must affirmatively prosecution. The appellant states this failure of service appear in the record, and the juvenile cannot waive deprived the trial court of jurisdiction to enter a final service. Id. at 853. 4 disposition. Appellant admits he was served with the original petition and summons. [**15] [*746] We believe the case of McBride v. State, 655 S.W.2d 280 (Tex. App.--Houston [14th Dist.] 1983, HN3[ ] The Texas Family Code provides that the no writ), is directly on point. In that case, a second juvenile court shall direct issuance of a summons to (1) the child named in the petition, (2) the child's parent, guardian, or custodian, [**13] (3) the child's guardian 4 We note the reasoning of the Texas Supreme Court in this ad litem, and (4) any other person who appears to the case is equally applicable to resolving appellant's fifth point of court to be a proper or necessary party to the error. Just as the service of summons was the foundation for proceeding. TEX. FAM. CODE ANN. § 53.06(a) (Vernon the trial court's acquisition of jurisdiction in In the matter of 1986). A copy of the petition must accompany the WLC, likewise is the action of the grand jury in approving an summons. TEX. FAM. CODE ANN. § 53.06(b). The original petition necessary before a trial court can impose a code also provides that HN4[ ] "if a person to be determinate sentence. An affirmative showing in the record of served with a summons is in this state and can be service was required by the supreme court in WLC; no less is found, the summons shall be served upon him required when, as here, there is no affirmative showing in the personally at least two days before the day of the record the grand jury approved the petition upon which appellant faced the possibility of incarceration for 30 years. Nicole Mitchell amended petition was served upon McBride and his not disturb a judgment for a court's failure to comply with mother; however, the citation accompanying the petition such a rule. In this instance, however, we are of the was defective. Rejecting McBride's argument the State's opinion the trial court did comply with rule 6. Rule failure to serve him with a correct citation in the 6(d)(4) provides that "nothing herein shall prevent a amended petition divested the trial court of jurisdiction, judge from recessing a juvenile hearing at any stage of the Fourteenth Court of Appeals held, "when jurisdiction the proceeding . . . when in the opinion of the judge attached [by virtue of a properly served citation in the presiding in the case the best interests of the child and original petition], the court did not lose jurisdiction of society shall be served." Between the time appellant because the State may have failed to follow the was initially detained and the date of trial, at least six statutory guidelines in serving appellant with an detention hearings were held. See TEX. FAM. CODE amended petition." Id. at 283. (Emphasis in the original.) ANN. § 54.01(h) (Vernon 1986). The detention orders filed as a result of these hearings state appellant We agree with this reasoning and apply it here. continued to be detained because of one or more of the Because appellant and his mother were properly served following: (1) suitable supervision, care, or protection for with the original petition, the trial court acquired him was not provided by his parent, guardian, jurisdiction over him at that time. The State's failure to custodian, or other person; (2) he was accused of serve appellant with the second amended petition did committing a felony offense and may be dangerous to not deprive the trial court of jurisdiction. Id.; see also In himself or others if released; or (3) he was previously the Matter of R.M., 648 S.W.2d 406, 407 (Tex. App.-- found to be a delinquent child or was previously San Antonio 1983, no writ). [**16] Point of error convicted of a penal offense [**18] punishable by a number six is overruled. term in jail or prison and is likely to commit an offense if released. These detention orders clearly reflect the In his seventh point of error, appellant complains the opinion of the juvenile judge that the best interests of trial court erred in overruling his "motion to bar appellant and society would be served by further prosecution." Appellant asserts the court violated rule 6 detention. of the judicial administration rules by not conducting an adjudication hearing within 10 days after appellant was The seventh point of error is overruled. admitted to a detention facility. This point of error is without merit. [*747] The eighth point of error is that the trial court improperly consolidated a determinate sentencing HN5[ ] Rule 6 provides that, offense with a nondeterminate sentencing offense. Because our disposition of the fifth point of error district and statutory county court judges . . . should, so reverses the determinate sentence imposed and far as reasonably possible, ensure that all cases are compels the trial court to enter a nondeterminate brought to trial or final disposition in conformity with the sentence, appellant's eighth point of error is also moot. following time standards: In his ninth point of error, appellant complains that, Juvenile Cases . . . (a) Concerning a juvenile in a because he gave an oral statement before he was detention facility: not later than 10 days following warned by the magistrate, a written statement he gave admission to such a facility, except for good cause while in detention on October 7, 1988, was improperly shown of record. admitted into evidence. Appellant asserts his oral statement provided the foundation for the written TEX. GOV'T CODE ANN., Title 2, subtitle F, App., rule statement. This contention is not supported by the 6(d) (Vernon 1988 & Supp. 1991). Rule 1 of the judicial record. administration rules provides the rules are promulgated pursuant to section 74.024 of the Texas Government HN7[ ] Section 51.09 of the Texas Family Code Code. Section 74.024 provides that: HN6[ ] "the provides that a child who gives an out-of-court supreme court may consider the adoption of rules statement must do so knowingly, intelligently, and relating to: (1) nonbinding time standards for pleading, voluntarily. The statement must [**19] be signed in the discovery, motions, [**17] and dispositions." TEX. presence of a magistrate, with no law enforcement GOV'T CODE ANN. § 74.024(c)(1) (Vernon officer or prosecuting attorney present. The magistrate 1988)(emphasis added). must certify he has examined the child outside the presence of any law enforcement officer and has Rule 6 is a discretionary, nonbinding rule, and we will Nicole Mitchell determined the child understands the nature and was arrested in connection with a murder investigation. content of his statement. TEX. FAM. CODE ANN. § The arresting officer gave B.A.G. Miranda warnings, but 51.09(b)(1)(F) (Vernon 1986). did not inform her she could be tried as an adult. The officer questioned B.A.G. for about 85 minutes. After Oscar Chavarria is a criminal investigator with the Bryan she made incriminating oral statements, the officer Police Department. As part of his investigation of brought her before a magistrate, who advised her of her Michael Ramirez's murder, on October 7, 1988, he took rights. She then gave a written statement substantially a statement from appellant. Chavarria admitted he the same as her oral statement. B.A.G. signed her spoke to appellant for about five minutes before Judge written statement in front of a second magistrate. Hensarling was called to administer the magistrate's Neither magistrate was informed of B.A.G.'s warnings, but he stated the conversation was for the incriminating oral [*748] statements. The Dallas Court limited purpose of finding out if appellant would speak to of Appeals reversed B.A.G.'s conviction holding the him, and briefly, what had happened. He stated he did written statement was inadmissible because it was not write anything down during this five minute period. based on oral statements given before B.A.G. had been Chavarria denied that most of appellant's oral warned. statements, made before he was warned by the magistrate, were contained in the written statement. We do not find this authority persuasive for several reasons. First, the Court of Criminal [**22] Appeals Judge Carolyn Hensarling testified she was called down reversed the Dallas Court on this point. See Griffin v. to the detention center to administer a magistrate's State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989). warning to a juvenile. She said the warning is Second, the Dallas Court of Appeals based its decision contained [**20] on a standardized form and on the fact that neither magistrate knew B.A.G. had encompasses two pages. The third page is where the previously given an incriminating oral statement, and officer takes the statement. After the statement is taken, thus, neither magistrate informed B.A.G. her oral she reads it back to the child to make sure it is true and statement could not be used against her. Appellant here correct. She then certifies on the warning whether she has not made such an allegation. Finally, we do not feels the child voluntarily executed the statement. believe appellant's initial statements to Chavarria, standing alone, were incriminating; they were no more In this case, Judge Hensarling identified petitioner's than responses to generalized investigatory questions. exhibit 2 as the warning documents she administered to By appellant's own admission, the only things Chavarria appellant on October 7, 1988. She said she felt asked him were whether he knew about a murder, was appellant gave the statement voluntarily, knew what he he in the vicinity, and did he know whether Leroy Lewis was doing, and no force or pressure was used in had any money the week Ramirez was killed. Appellant obtaining appellant's signature. Page three was blank did not implicate himself in any fashion by these when she initially gave appellant his warnings. statements. Appellant testified he spoke to Chavarria about 10 or 15 The ninth point of error is overruled. minutes before seeing Judge Hensarling. Chavarria asked appellant whether he knew anything about a In his tenth point of error, appellant asserts a second murder, was he around the area when it occurred, and statement he made while in detention on October 11, did Leroy Lewis (a codefendant) have some money the 1988, also was admitted improperly. His complaint is the week of the murder. Additionally, appellant stated the magistrate's warning was not administered by the written statement he signed was made up by Chavarria magistrate, but by the magistrate's secretary. before he spoke to Judge Hensarling, and he only saw Judge Hensarling once. Appellant denies he received Chavarria testified [**23] he again spoke with appellant any warnings from Judge Hensarling, and states that, on October 11 for about five minutes before calling the had [**21] he received any warnings, he would not magistrate. Chavarria said he told appellant he had have made a statement at all. received additional information that appellant knew more about what had happened than appellant had let Appellant relies on the case of B.A.G. v. State, 715 on in the first conversation. After he spoke to appellant, S.W.2d 790 (Tex. App.--Dallas 1986), to support his Chavarria called Judge Dewey to admonish appellant. proposition that, because Chavarria orally took evidence Judge Dewey was accompanied by his secretary, from him before he was warned by the magistrate, his Marilyn Myrick. written statement was inadmissible. In B.A.G., a juvenile Nicole Mitchell Myrick testified that, although the judge was present, it Kenneth Lewis, stating appellant was the person who was she, not Judge Dewey, who actually read the jumped on Ramirez's head at least once and maybe magistrate's warnings to appellant. This was because even twice, was enough for the jury to find appellant Judge Dewey has very poor eyesight, and has trouble himself committed aggravated robbery and murder. reading. Only she, the judge, and appellant were in the room. After appellant's statement was typed, Myrick The eleventh point of error is overruled. read the statement to appellant; she did not give him the In the twelfth point of error, appellant asserts there was opportunity to read it himself. Upon further questioning, no evidence to sustain the jury findings. Appellant Myrick stated Judge Dewey asked appellant whether he readily admits in his brief that if we find his two out-of- understood what was just read to him and whether he court statements admissible, then the no evidence issue needed to make any changes, omissions, or additions. would not be applicable. As we have found the Appellant indicated he understood what was read and statements admissible, we must necessarily find there he did not need to make any changes. Judge Dewey was some evidence to support the jury's finding of guilt. then signed the magistrate's certification. The twelfth point of error is overruled. Appellant testified he knew what he was doing [**24] when he gave the October 11 statement; he understood [**26] A lack of sufficient evidence is appellant's he had the right to remain silent, and he voluntarily gave thirteenth point of error. This case is governed by the up that right; he said he understood everything when rules of civil procedure. TEX. FAM. CODE ANN. § 51.17 Myrick read his statement back to him. (Vernon Supp. 1991). The rules provide that, HN9[ ] in order to preserve a factual insufficiency point of error, a We find nothing in the family code requiring the motion for a new trial complaining of the insufficiency magistrate to be the person to physically administer must be filed. No motion for new trial was filed in this warnings to a defendant. We find it sufficient Judge case. Appellant has not preserved this point of error for Dewey was present in room when the warnings were review. However, in the interest of justice we will read to appellant by his secretary. Judge Dewey consider appellant's point of error. 5 specifically asked appellant whether he understood his statement, and he personally signed the magistrate's [**27] HN10[ ] certification. In reviewing the sufficiency of the evidence to support a The tenth point of error is overruled. guilty verdict, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d In the eleventh point of error, appellant asserts the trial 380, 383 (Tex. Crim. App. 1984); Barron v. State, 773 court improperly charged the jury under the law of S.W.2d 44, 46 (Tex. App.-- Houston [1st Dist.] 1989, parties. This theory was not stated in either the original pet. ref'd). The critical inquiry is whether, after viewing or the amended petition, and, relying TEX. R. CIV. P. the evidence in the light most favorable to the verdict, 301, appellant contends the charge allowed the jury to any rational trier of fact could have found the essential find him guilty on a theory not contained in the elements of the crime beyond a reasonable doubt. pleadings. Appellant properly preserved this point of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. error by objecting to the charge. Ed. 2d 560 (1979); Rogers v. State, 795 S.W.2d 300, We overrule this point of error. HN8[ ] An indictment need not plead evidence relied on by the State, i.e. that 5 See generally Obeidat v. State, 787 S.W.2d 627, 628 (Tex. the defendant is a party. Swope v. State, 805 S.W.2d [**25] 442 (Tex. Crim. App. Feb. 3, 1991) slip Crim. App. 1990) (even though defendant waived error by op. at 3, 5. Moreover, appellant was not harmed by putting on a defense, court reviewed the point as one [*749] inclusion of a party instruction. The jury did not challenging the sufficiency of the evidence); Miguez v. State, 715 S.W.2d 795,, 799 (Tex. App.--Houston [14th Dist.] 1986, have to rely on the acts of others to find appellant guilty. pet. ref'd) (court considered Miguez's point of error even In appellant's second out-of-court statement, he though he did not correctly raise his complaint); de admitted he was present during the commission of the Alberquerque v. State, 712 S.W.2d 809, 812 (Tex. App.-- offenses, he took Ramirez's wallet and kept the 4500 Houston [1st Dist.] 1986, no pet.) (court considered whether pesos he found in it, and he accepted a split of the there was sufficiency evidence the State had proved every American money taken from Ramirez. This admission, element of the offense, where appellant's point of error in conjunction with the testimony of C.R., N.D., and complained of the trial court's failure to quash the indictment). Nicole Mitchell 303 (Tex. App.--Houston [1st Dist.] 1990, pet. filed). In a indicating a need for supervision; and the corroboration juvenile case, the question is whether the evidence is not sufficient if it merely shows the commission of the considered as a whole shows that the State sustained alleged conduct. its burden of proof beyond a reasonable doubt. In the Matter of H.R.A., 790 S.W.2d 102, 103 (Tex. App.-- Beaumont 1990, no writ). TEX. FAM. CODE ANN. § 54.03(e) (Vernon 1986). The following testimony was adduced at trial. Oscar To determine whether the testimony of C.R., N.D., and Chavarria, Carolyn Hensarling, and Marilyn Myrick Kenneth Lewis was sufficiently corroborated, we are testified as set out above. Several other witnesses required to eliminate from consideration the evidence of testified as to Ramirez's physical condition and mental the accomplice witnesses, and then examine the state as he lay by the side of the road. None of testimony of the remaining witnesses to see if there is the [**28] witnesses were able to relay any information evidence of an incriminating character tending to to the police about Ramirez's assailants, except they connect appellant with the commission of the offense. In were black males. the Matter of J.R.R., 689 S.W.2d 516, 519 (Tex. App.-- Dallas), aff'd, 696 S.W.2d 382 (Tex. 1985). Dr. J. C. Lee, a pathologist, is the director of laboratories at St. Joseph Hospital in Bryan. He The three accomplices were the only witnesses who in performed the autopsy on Ramirez and testified any way connected [**30] appellant to the crime. Ramirez died as a result of a subdural brain Appellant's first out-of-court statement, taken October 7, hemorrhage. does not provide sufficient corroboration of the accomplice's testimony. In this first statement, appellant Three accomplices also testified against appellant. C.R., states he met Leroy Lewis at a park; Lewis "hangs out" age 16, also has been charged with aggravated robbery with C.R.; the next Monday, after appellant heard "that and murder. C.R. said he saw Leroy Lewis kick the Mexican was beaten up and that he died," he saw Ramirez. He could not tell whether Lewis kicked Leroy Lewis with his brother, Kenneth, at about 6:00 Ramirez in the back or the head. While he never saw p.m.; both Leroy and Kenneth had $ 10.00; he didn't appellant kick Ramirez, C.R. testified he later asked know how they got the money. appellant if he had kicked Ramirez. Appellant laughed and nodded his head affirmatively. In the second statement, however, appellant does implicate himself in the commission of the offense. He [*750] N.D., age 13, also testified it was Leroy Lewis stated: who initially kicked Ramirez in the back. He said appellant jumped on Ramirez's head, but did not kick There was six of us, [C.R.], Leroy Lewis, Kenneth him in the head. N.D. denied he ever kicked Ramirez Lewis, [N.D.], and me. We were walking down the himself. street, on highway 25th and we saw a Mexican walking down 25th street. Leroy Lewis wanted to take his The final accomplice to testify was Kenneth Lewis, age money. Leroy Lewis said "Lets [sic] get him." I said that I 19. Lewis testified it was his brother, Leroy, who kicked wanted to go home. [C.R.] wanted to go with me. About Ramirez in the back, knocking him down. He further four minutes later, we saw four guys running towards stated he saw appellant jump on Ramirez's head twice, the Harlem Club. Before they ran to the Club, Leroy and N.D. kick Ramirez in the upper [**29] chest and kicked the Mexican in the back. Leroy jumped up and face. kicked him in the back. The Mexican fell and looked up. The Mexican fell on his face. [N.D.] ran and hit him Other than appellant's October 11, 1988 statement, the in [**31] the head. He hit the Mexican in the head with testimony of these three accomplice witnesses is the his foot, one time. Leroy started swinging his boots only evidence that connects appellant to the offenses. everywhere. [C.R.] took off running. We saw them run The family code provides that towards the Harlem. HN11[ ] an adjudication of delinquent conduct or We ran towards the Harlem. We got half of the money. I conduct indicating a need for supervision cannot be had got $ 10, [C.R.] got $ 10, [N.D.] got $ 10, Leroy got $ 20, upon the testimony of an accomplice unless Kenneth Lewis got $ 10. We did not know that Leroy corroborated by other evidence tending to connect the had an extra ten. We split up the money. [C.R.], [N.D.], child with the alleged delinquent conduct or conduct and I went home. I don't know where Leroy and Kenneth Nicole Mitchell Lewis went. They dropped the wallet and I picked it up. charged only in the respect that a less culpable mental It had $ 4500 in Mexican dollars, and I kept it. I put the state suffices to establish its commission; or 4) it money under a speaker in my house and about five consists of an attempt to commit the offense charged or minutes later, it was not there. Kenneth Lewis told us to an otherwise included offense. TEX. CODE CRIM. P. grab the wallet. Leroy took the wallet out of the ANN. art. 37.09 (Vernon 1981). Mexican's pants. Leroy took the boots off the Mexican and threw them away. [L.W.] was at my grandmother's HN13[ ] In determining whether a charge on a lesser house at this time. Kenneth Lewis was on the bike. included offense is required, a two-step analysis is required. First, the lesser included offense must be We find this statement of appellant is enough evidence included within the proof necessary to establish the of an incriminating character connecting appellant with offense charged. Second, there must also be some the commission of the offense to corroborate the evidence in the record that if the defendant is guilty, he accomplices' testimony. We may thus consider [*751] is guilty ONLY of the lesser included offense. Royster v. the accomplices' testimony in determining the State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981)(op. sufficiency of the evidence. on reh'g). If the evidence raises the issue of a lesser included offense, it must be [**34] included in the Appellant's [**32] statement, combined with the charge. Sanchez v. State, 745 S.W.2d 353, 357 (Tex. testimony of the three accomplices provided the jury Crim. App. 1988). with ample evidence from which it could render a guilty verdict. The State's petition alleged appellant committed the offenses of aggravated robbery and murder. HN14[ ] A The thirteenth point of error is overruled. person commits the offense of robbery if, while in the course of committing theft, and with intent to obtain or In the fourteenth point of error, appellant claims the trial maintain control of the property, he intentionally, court erred in not allowing the jury to set a term of years knowingly, or recklessly causes bodily injury, or for probation. The family code provides the court or the intentionally or knowingly threatens or places another in jury may place the child on probation on such fear of imminent bodily injury or death. TEX. PENAL reasonable and lawful terms as the court may CODE ANN. § 29.02(a) (Vernon 1974). If in the course determine, for a period not to exceed one year. TEX. of committing a robbery, a person also causes serious FAM. CODE ANN. § 54.04(d)(1) (Vernon Supp. 1991). bodily injury to another, he has committed aggravated Question No. 2 of the jury charge on disposition asked robbery. TEX. PENAL CODE ANN. § 29.03(a)(1) the jurors if appellant should be placed on probation, to (Vernon Supp. 1991). which they replied, "No." The question specifically tracked the language of section 54.04(d)(1). The trial HN15[ ] A person commits the offense of murder if he: court was without the authority to instruct the jury any other way. Accordingly, we cannot say the trial court (1) intentionally or knowingly causes the death of an erred in not allowing the jury to set a term of years for individual; probation. (2) intends to cause serious bodily injury and commits The fourteenth point of error is overruled. an act clearly dangerous to human life that causes the death of an individual; or In his last point of error, appellant complains the trial court erred in denying his request to submit the lesser (3) commits or attempts to commit a felony, other than included offenses of voluntary manslaughter, criminal voluntary or involuntary manslaughter, and in the course negligent homicide, [**33] simple assault, and of and in furtherance of the commission or attempt, or in involuntary manslaughter. immediate flight from the [**35] commission or attempt, he commits or attempts to commit an act clearly HN12[ ] An offense is a lesser included office if 1) it is dangerous to human life that causes the death of an established by proof of the same or less than all the individual. facts required to establish the commission of the offense charged; 2) it differs from the offense charged only in TEX. PENAL CODE ANN. § 19.02(a) (Vernon 1989). In the respect that a less serious injury or risk of injury to light of the elements set out for these offenses, we will the same person, property, or public interest suffices to now analyze each of [*752] the instructions appellant establish its commission; 3) it differs from the offense claims should have been given. Nicole Mitchell A. Voluntary Manslaughter. HN16[ ] A person commits Kenneth Lewis also stated he saw appellant jump on the offense if he causes the death of another under Ramirez's head. We find no evidence appellant was circumstances that would constitute murder under unaware of the risk he created by his conduct. Further, section 19.02 of the Texas Penal Code, except that he there is no evidence indicating that, if appellant was caused the death under the immediate influence of guilty of causing Ramirez's death, he was guilty only of sudden passion arising from an adequate cause. TEX. criminally negligent homicide. See Royster, 622 S.W.2d PENAL CODE ANN. § 19.04(a) (Vernon 1989). "Sudden at 446; Saunders, 780 S.W.2d at 475. Thus, the trial passions" means passion directly caused by and arising court did not err in refusing to instruct the jury on this out of provocation by the individual killed or another lesser included offense. acting with the person killed, such passion arising at the time of the offense and not solely the result of former C. Simple Assault. HN18[ ] Assault occurs when provocation. TEX. PENAL CODE ANN. § 19.02(b) someone intentionally, knowingly, or recklessly causes (Vernon 1989). bodily injury to another, threatens another with imminent bodily injury, or intentionally or knowingly causes The evidence in this case did not raise the issue of physical [**38] contact with another when the actor sudden passion. The record reflects Ramirez was knows or should reasonably believe the other will regard merely walking down the street after exiting from a bar, the contact as offensive or provocative. TEX. PENAL when he was "jumped" by appellant and his friends. CODE ANN. § 22.01 (Vernon 1989). Assault is a lesser [**36] There was no evidence Ramirez provoked included offense of aggravated robbery. Ex parte appellant in any way. The evidence does not raise the Drewery, 710 S.W.2d 148, 152 (Tex. App.--Houston [1st issue of sudden passion; therefore, the trial court did not Dist.] 1986, pet. ref'd). err in failing to include an instruction on voluntary manslaughter. In appellant's second statement to Chavarria, he stated he took Ramirez's wallet and he kept the money he B. Criminally Negligent Homicide. HN17[ ] A person found in it. The accomplices' testimony showed commits this offense if he causes the death of an appellant participated in the beating that enabled him to individual by criminal negligence. TEX. PENAL CODE receive $ 10. That beating resulted in Ramirez's death. ANN. § 19.07(a) (Vernon 1989). A person acts with There is no evidence in this record that, if appellant was criminal negligence or is criminally negligent when he guilty of injuring Ramirez, he was guilty of inflicting only ought to be aware of a substantial and unjustifiable risk bodily injury and not serious bodily injury. The trial court that the circumstances exist or the result will occur. The did not err in refusing this instruction. risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the D. Involuntary Manslaughter. HN19[ ] Involuntary standard of care an ordinary person would exercise manslaughter occurs when a person [*753] recklessly under all the same circumstances as viewed from the causes the death of another. Lugo v. State, 667 S.W.2d actor's standpoint. TEX. PENAL CODE ANN. § 6.03(d) 144, 147 (Tex. Crim. App. 1984); TEX. PENAL CODE (Vernon 1974). The essence of criminal negligence is ANN. § 19.05(a)(1) (Vernon 1989). A person acts the failure of the actor to perceive the risk created by his recklessly when he or she is aware of, but consciously conduct. Mendieta v. State, 706 S.W.2d 651, 652 (Tex. disregards, a substantial and unjustifiable risk the Crim. App. 1985). Criminally negligent homicide is a circumstances [**39] exist or the result will occur. lesser included offense of murder. Thomas v. State, 699 Lugo, 667 S.W.2d at 147. If there was not enough S.W.2d 845, 847 (Tex. Crim. App. 1985). evidence to raise an issue of reasonable doubt whether appellant was acting other than intentionally or Before a [**37] charge on this particular crime is knowingly, then the trial court properly excluded this required, the appellate record must contain evidence instruction. Zepeda v. State, 797 S.W.2d 258, 264 (Tex. showing the accused was unaware of the risk his App.--Corpus Christi 1990, pet. ref'd). conduct was creating. Mendieta, 706 S.W.2d at 653; Saunders v. State, 780 S.W.2d 471, 475 (Tex. App.-- Two accomplices testified appellant jumped on Corpus Christi 1989, pet. granted). The pathologist at Ramirez's head after Leroy Lewis delivered the initial St. Joseph Hospital testified Ramirez died from a blow. In appellant's second statement to Chavarria, he subdural hemorrhage in the brain. C.R. testified does not state he was kept at the scene against his will appellant admitted to him he had kicked Ramirez. N.D. or he was made to jump on Ramirez. In the statement, stated he saw appellant jump on Ramirez's head. appellant admits to taking Ramirez's wallet and keeping Nicole Mitchell the money he found. The State showed appellant intentionally engaged in a beating that resulted in Ramirez's death. Since the evidence did not show appellant's conduct was merely reckless, the trial court did not err in failing to submit an instruction on involuntary manslaughter. Appellant's fifteenth point of error is overruled. The judgment of the trial court is reformed to delete the nine year determinate sentence, and the cause is remanded to that court for imposition of an indeterminate sentence. As reformed, the judgment [**40] of the trial court is affirmed. Judgment reversed and remanded in part, affirmed in part. End of Document Nicole Mitchell Caution As of: March 23, 2018 5:04 PM Z Jones v. Morales Court of Appeals of Texas, Seventh District, Amarillo May 21, 2010, Decided NO. 07-08-00367-CV Reporter 5-7 mail-in ballots. Judgment was for the contestant, as JON JONES, APPELLANT v. AMADO Z. MORALES, the trial court concluded the votes of the uncounted APPELLEE voters should have been included in the total and the omission materially affected the outcome of the election. Subsequent History: Rehearing overruled by Jones v. The contestant was adjudged winner of the election by Morales, 2010 Tex. App. LEXIS 6224 (Tex. App. one vote. The appellate court ruled that the trial court Amarillo, Aug. 2, 2010) did not abuse its discretion in adjudging the contestant Petition for review denied by Jones v. Morales, 2010 the winner. Implicit in the judgment of the trial court was Tex. LEXIS 947 (Tex., Dec. 3, 2010) the determination that each of the uncounted voters properly signed the application for ballot by mail and Prior History: [**1] FROM THE 110TH DISTRICT carrier envelope. The trial court heard testimony that, if COURT OF FLOYD COUNTY; NO. 9894; believed, permitted it to form a firm belief or conviction HONORABLE H. BRYAN POFF, JR., JUDGE. that its finding was true. Outcome Core Terms The judgment was affirmed. ballot, voter, trial court, envelope, voting, election, carrier, signature, uncounted, contest, mail, want of LexisNexis® Headnotes prosecution, motion to dismiss, abused, requires, mail-in, argues, ambiguous, witnessed, presumed, marking, winner, cases, cast, rejected ballots, transported, assisting, parties Civil Procedure > Appeals > Appellate Case Summary Jurisdiction > General Overview HN1[ ] Appeals, Appellate Jurisdiction Procedural Posture Appellant contestee challenged the judgment of the The appellate court is required to consider its jurisdiction 110th District Court of Floyd County, Texas, finding sua sponte if necessary. appellee contestant the winner of the November 2006 general election for Floyd County Commissioner Precinct Four. Governments > Courts > Rule Application & Overview Interpretation The outcome of the commissioner's race between the parties was close. The initial canvas showed the HN2[ ] Courts, Rule Application & Interpretation contestee the winner by three votes. The contestant requested a recount which tallied the contestee the The same rules of interpretation apply in construing the winner by four votes, and the contestant filed the meaning of court orders as in ascertaining the meaning underlying election contest. The contestant argued that of other written instruments. A court may consider on its the county's early voting ballot board wrongly rejected own motion whether a document is ambiguous. Whether Nicole Mitchell a document is ambiguous is a question of law. A discretion when it acts without reference to any guiding document is not ambiguous if as worded it can be given rules and principles. a definite or certain legal meaning. But a document is ambiguous if its meaning is reasonably susceptible to two or more reasonable interpretations. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Appeals > Appellate Civil Procedure > ... > Standards of Jurisdiction > Final Judgment Rule Review > Substantial Evidence > Sufficiency of Evidence HN3[ ] Appellate Jurisdiction, Final Judgment Rule HN6[ ] Standards of Review, Abuse of Discretion When an order is not produced following a conventional trial on the merits, the appellate court does not presume The sufficiency of evidence supporting a trial court's its finality. Rather, following summary disposition when finding of fact may be a relevant factor in determining finality is not clear the appellate court looks to the order whether the court abused its discretion. In a non-jury and the record to determine finality. case, when the appellate record includes both findings of fact and conclusions of law and a reporter's record, the appellate court reviews the sufficiency of the evidence under the same standards applied in cases Evidence > Burdens of Proof > Clear & Convincing tried by jury. In reviewing the legal sufficiency of the Proof evidence under a clear and convincing standard, the appellate court looks at all the evidence, in the light Governments > Local Governments > Elections most favorable to the judgment, to determine if the trier Governments > State & Territorial of fact could reasonably have formed a firm belief or Governments > Elections conviction that its finding is true. The appellate court presumes that the trier of fact resolved disputed facts in HN4[ ] Burdens of Proof, Clear & Convincing Proof favor of its findings if a reasonable trier of fact could do so. The appellate court disregards any contrary To overturn an election, the contestant has the burden evidence if a reasonable trier of fact could do so, but the of proving by clear and convincing evidence that voting appellate court does not disregard undisputed facts. irregularities materially affected the election results. To prove that the outcome is materially affected, the contestant must show that illegal votes are counted or Governments > Local Governments > Elections an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, Governments > State & Territorial illegal conduct, or mistake. Governments > Elections HN7[ ] Local Governments, Elections Civil Procedure > Appeals > Standards of Voting early by mail requires a voter to apply in writing Review > Abuse of Discretion for a ballot and then mail the completed ballot to the Governments > State & Territorial election clerk in an official carrier envelope bearing the Governments > Elections signature of the voter. Tex. Elec. Code Ann. § 86.005(c) (2010). The ballot board may accept a ballot voted early Governments > Local Governments > Elections by mail only if neither the voter's signature on the ballot application nor the signature on the carrier envelope HN5[ ] Standards of Review, Abuse of Discretion certificate is determined to have been executed by a person other than the voter, unless signed by a witness. The standard of review in an appeal from a judgment in Tex. Elec. Code Ann. § 87.041(b)(2) (2010). The law an election contest is a determination whether the trial thus requires those who vote early by mail to sign both court abused its discretion. A trial court abuses its the application and the carrier envelope. Nicole Mitchell from the voter or other witnesses regarding the similarity of the signatures and may compare the signatures. The Governments > Local Governments > Elections court may rely on its own comparison without the aid of expert testimony. Governments > State & Territorial Governments > Elections Civil Procedure > Trials > Jury Trials > Province of HN8[ ] Local Governments, Elections Court & Jury When a contestant challenges a ballot board's rejection HN11[ ] Jury Trials, Province of Court & Jury of a ballot, the ballot board is presumed to have acted properly and it is the contestant's burden to show by The trier of fact is the exclusive judge of the credibility of clear and convincing evidence the board erred. the witnesses, and the weight to be given their Discharging this burden requires the contestant to show testimony. It observes and is free to take into account the challenged voter is legally qualified to vote, and the the candor and demeanor of the witnesses. It also is ballot is properly cast. But if a ballot is rejected for a free to make its own evaluation of the evidence in light reason unrelated to the voter's qualification, it is of the testimony. unnecessary for the contestant to prove the qualification of the challenged voter. Civil Procedure > Trials > Jury Trials > Province of Court & Jury Governments > Local Governments > Elections HN12[ ] Jury Trials, Province of Court & Jury Governments > State & Territorial Governments > Elections The law does not allow the appellate court to disturb the fact finder's credibility determinations. HN9[ ] Local Governments, Elections A qualified voter is a voter who: (1) is age 18 years or older; (2) is a United States citizen; (3) has not been Governments > State & Territorial finally adjudged by a court exercising probate Governments > Elections jurisdiction totally mentally incapacitated or partially mentally incapacitated without the right to vote; (4) has Governments > Local Governments > Elections not been finally convicted of a felony, or if so has satisfied enumerated requirements; (5) is a resident of HN13[ ] State & Territorial Governments, Elections this state; and (6) is a registered voter. Tex. Elec. Code Ann. § 11.002 (2010). A voter who is unable to write or see due to a physical disability or who is unable to read the language of the ballot is eligible for assistance marking the ballot. Tex. Elec. Code Ann. §§ 64.031, 86.010(a) (2010). A voter Governments > Local Governments > Elections may be assisted in marking the ballot by a person of the voter's selection other than the voter's employer, an Governments > State & Territorial agent of the voter's employer, or an officer or agent of a Governments > Elections labor union to which the voter belongs. Tex. Elec. Code Ann. § 64.032(c) (2010). A person voting by mail may HN10[ ] Local Governments, Elections receive no greater assistance than a person voting at a polling place. Tex. Elec. Code Ann. § 86.010(b) (2010). The ballot board acts on the basis of the signatures For purposes of Tex. Elec. Code Ann. § 86.010, before it. The Texas Election Code does not require the assisting a voter with a mail-in ballot, in the presence of board to make inquiry of voters whose signatures do not the ballot or carrier envelope, includes reading the ballot match. But in an election contest based on ballots the to the voter, directing the voter to read the ballot, ballot board rejected on the ground of signature marking the ballot, or directing the voter to mark the deficiency, the district court may receive oral testimony ballot. Tex. Elec. Code Ann. § 64.0321 (2010). A person Nicole Mitchell assisting the voter to prepare a ballot must provide his The Texas Legislature has prescribed the class of name, address and signature on the carrier envelope. individuals a voter may not select to assist the voter in Tex. Elec. Code Ann. § 86.013(c) (2010). The assistant marking the ballot, and the excluded individuals does must also sign the oath prescribed in Tex. Elec. Code not include a candidate. Tex. Elec. Code Ann. § Ann. § 64.034 included on the carrier envelope. Tex. 64.032(c) provides that on a voter's request, a voter Elec. Code Ann. §§ 86.010(c), 86.013(f) (2010). may be assisted by any person selected by voter other than the voter's employer, an agent of the voter's employer, or an officer or agent of a labor union to which the voter belongs. Tex. Elec. Code Ann. § Governments > Local Governments > Elections 86.010(a) limits a person who may assist a voter in Governments > State & Territorial casting a ballot by mail to those provided by Tex. Elec. Governments > Elections Code Ann. § 64.032(c). HN14[ ] Local Governments, Elections Governments > State & Territorial In the Texas Election Code there is no Texas Legislative Governments > Elections determination that a failure of a voter's assistant to complete the required information on the carrier Governments > Local Governments > Elections envelope requires rejection of the voter's ballot. Statute expressly provides that the ballot of a voter who is HN17[ ] State & Territorial Governments, Elections assisted in violation of Tex. Elec. Code Ann. § 86.010(a) or (b) may not be counted, but the Legislature has not A voter voting by mail must place the marked ballot in disqualified the ballot of a person whose assistant fails the official ballot envelope, seal the ballot envelope, to sign the oath, or provide his name and address, on place the ballot envelope in the official carrier envelope, the carrier envelope. Tex. Elec. Code Ann. § 86.010(d) seal the carrier envelope, and sign the certificate on the (2010). carrier envelope. Tex. Elec. Code Ann. § 86.005(c) (2010). A person other than the voter who deposits the carrier envelope in the mail or with a common or contract carrier must provide the person's signature, Governments > Legislation > Interpretation printed name, and residence address on the reverse HN15[ ] Legislation, Interpretation side of the envelope. Tex. Elec. Code Ann. § 86.0051 (2010). The carrier envelope may be transported and Long-settled rules of statutory construction restrain a delivered to the early voting clerk only by mail or court from reading words into the language chosen by common or contract carrier. Tex. Elec. Code Ann. § the legislature: every word of a statute must be 86.006(a) (2010). A ballot returned in violation of Tex. presumed to have been used for a purpose. Likewise, a Elec. Code Ann. § 86.006 may not be counted. Tex. court believes every word excluded from a statute must Elec. Code Ann. § 86.006(h) (2010). also be presumed to have been excluded for a purpose. This rule complements another general statutory construction principle that courts should not insert words Civil Procedure > Dismissal > Involuntary in a statute except to give effect to clear legislative Dismissals > Failure to Prosecute intent. Additional language is read into a statute only when it is necessary to give effect to the clear legislative HN18[ ] Involuntary Dismissals, Failure to intent. Prosecute A trial court is empowered to dismiss a case for want of prosecution either under Tex. R. Civ. P. 165a or its Governments > State & Territorial inherent power to control its docket. Governments > Elections Governments > Local Governments > Elections Civil Procedure > Appeals > Standards of HN16[ ] State & Territorial Governments, Elections Review > Abuse of Discretion Nicole Mitchell Civil Procedure > Dismissal > Involuntary Opinion by: James T. Campbell Dismissals > Failure to Prosecute Opinion HN19[ ] Standards of Review, Abuse of Discretion The appellate court reviews a trial court's ruling on a motion to dismiss for want of prosecution by the abuse [*421] In this appeal of an election contest, appellant of discretion standard. and contestee below Jon Jones asks us to reverse the trial court's judgment finding appellee and contestant below Amado Morales the winner of the November 2006 general election for Floyd County commissioner precinct Civil Procedure > Trials > Bench Trials four, and render judgment declaring Jones the winner. Finding the trial court did not abuse its discretion in HN20[ ] Trials, Bench Trials adjudging Morales the winner, we will affirm its judgment. In non-jury cases, district court judges should, so far as reasonably possible, ensure that all non-family law civil Background cases are brought to trial or final disposition within 12 months from appearance date. Tex. R. Jud. Admin. The outcome of the commissioner's race between Jones 6(b)(2). According to Tex. R. Jud. Admin. 1, the Rules and Morales was close. The initial canvas showed are promulgated pursuant to Tex. Gov't Code Ann. § Jones the winner by three votes. Morales requested a 74.024. Tex. R. Jud. Admin. 1. Tex. Gov't Code Ann. § recount which tallied Jones the winner by four votes. 74.024 provides the supreme court may consider the Morales then filed the underlying election contest in adoption of rules relating to: (1) nonbinding time December 2006. According to Morales's petition, the standards for pleading, discovery, motions, and county's early voting ballot board 1 wrongly rejected "5-7 dispositions; (2) nonbinding dismissal of inactive cases mail-in ballots." The issues for Morales at trial devolved from dockets, if the dismissal is warranted. Tex. Gov't to whether the ballot board incorrectly rejected the mail- Code Ann. § 74.024(c)(1),(2) (Supp. 2009). Thus, the in ballots of voters Maldonado, De Los Santos, Castillo, application of Tex. R. Jud. Admin. 6 is discretionary and Olivo, and Vargas 2 and whether two voters [**2] were non-binding. Moreover, circumstances may preclude wrongly denied precinct four ballots. Each of the adherence to the standards under especially complex uncounted voters voted for Morales. Trial began in June cases or those presenting special circumstances. Tex. 2008 but was recessed until September because R. Jud. Admin. 6(e). Thus, Tex. R. Jud. Admin. 6 does Vargas was hospitalized. Judgment was for Morales as not fix a bright line demarking the outward limit of a trial the court concluded the votes of the uncounted voters court's discretion to control its docket. should have been included in the total and this omission materially affected the outcome of the election. Thus Morales was adjudged winner of the election by one vote. This appeal followed. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Issue HN21[ ] Standards of Review, Abuse of Discretion Jones [*422] argues the trial court abused its discretion by rendering judgment for Morales. Through A trial court abuses its discretion when it acts without reference to any guiding rules or principles, not when it exercises that discretion in a manner different than a 1 The Election Code requires creation of an early voting ballot reviewing appellate court might. board and empowers it to screen early voting ballots. See Tex. Counsel: Gary M. Bellair, CRAIG, TERRILL, HALE & Elec. Code Ann. §§ 87.001-.005 & 87.041 (Vernon 2010). We GRANTHAM, L.L.P., Lubbock, TX. will cite the current version of the Election Code unless otherwise indicated. Paul E. Mansur, Attorney at Law, Denver City, TX. 2 In its findings of fact and conclusions of law, the trial court collectively identified Maldonado, De Los Santos, Castillo, Judges: PANEL B. Before QUINN, C.J., and Olivo, and Vargas as "the uncounted voters." We also refer to CAMPBELL and HANCOCK, JJ. them collectively in that manner. Nicole Mitchell multiple sub-issues he contends the uncounted voters question of law. Tuthill v. Southwestern Public Service did not properly execute documents required for voting Co., 614 S.W.2d 205, 211 (Tex.Civ.App.--Amarillo 1981, by mail, Maldonado received improper assistance voting writ ref'd n.r.e.). A document [**5] is not ambiguous if by [**3] mail, the ballot of De Los Santos was as worded it can be given a definite or certain legal improperly transported to the early voting clerk, and his meaning. Kelley-Coppedge, Inc. v. Highlands Ins. Co., motion to dismiss for want of prosecution was 980 S.W.2d 462, 464 (Tex. 1998). But a document is improperly denied. By cross-issue, Morales argues the ambiguous if its meaning is reasonably susceptible to trial court abused its discretion by failing to find two two or more reasonable interpretations. Id. voters were improperly denied precinct four ballots. We find the December 20 order ambiguous. On one Analysis hand, it denies the underlying motion to dismiss for want of prosecution. But on the other, it contains language Appellate Jurisdiction finally disposing of the case. In the trial court, Jones filed a motion to dismiss the Further, HN3[ ] because the order was not produced case for want of prosecution. The clerk's record contains following a conventional trial on the merits, we do not an "Order Granting Motion to Dismiss" signed presume its finality. Lehmann v. Har-Con Corp., 39 December 20, 2007, a judgment signed September 19, S.W.3d 191, 199 (Tex. 2001). Rather, following 2008, and Jones's notice of appeal filed on September summary disposition when finality is not clear we look to 19. If the case was dismissed for want of prosecution on the order and the record to determine finality. Id. at 195. December 20, we lack appellate jurisdiction. See Tex. And from the record our inquiry is satisfied. At the R. App. P. 26.1 & 26.3. Therefore, on our own motion, hearing on the motion to dismiss, after the parties' we first consider our jurisdiction of this appeal. See presentations and in open court, the trial judge orally Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, rendered an order denying Jones's motion to dismiss. It 277 (Tex.App.--Amarillo 1995, no writ) (HN1[ ] then took up the motion to compel, which was granted appellate court required to consider its jurisdiction sua by an order signed some twenty days later. On April 25, sponte if necessary). the court set the case for trial and trial began on June 24. The case proceeded to final judgment [**6] without In the course of discovery, Morales filed a motion to recorded comment by [*423] the court or the parties compel the county clerk to produce the ballots rejected regarding the effect of the December 20 order. The only by the ballot board. Jones responded with a motion to reasonable interpretation of the December 20 order is dismiss the case for want of prosecution. On denial of Jones's motion to dismiss. The notice of [**4] December 20, 2007, the trial court heard the appeal Jones filed following final judgment was timely. motion. The court was presented an order containing We have jurisdiction of the appeal. language granting the motion and ordering that Morales take nothing. By pen and ink, the trial court struck out Whether Voting Irregularities Materially Affected the the word "granted" and wrote "denied" immediately Election Results. above. But the court left undisturbed the sentence ordering that Morales take nothing, and signed the HN4[ ] "To overturn an election, the contestant has the order. Thus the order purports to deny the motion to burden of proving by clear and convincing evidence that dismiss but concludes with language ordering the relief voting irregularities materially affected the election requested. Given this conflict in the order's language, results." Tiller v. Martinez, 974 S.W.2d 769, 772 we must determine whether the order is ambiguous and (Tex.App.--San Antonio 1998, pet. dism'd w.o.j.) (citing if so the intention of the trial court. Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.-- San Antonio 1992, writ dism'd w.o.j.), and Guerra v. HN2[ ] "The same rules of interpretation apply in Garza, 865 S.W.2d 573, 576 (Tex.App.--Corpus Christi construing the meaning of court orders as in 1993, writ dism'd w.o.j.)). "To prove that the outcome ascertaining the meaning of other written instruments." was materially affected, the contestant must show that Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 474 illegal votes were counted or an election official (Tex.App.--Fort Worth 2007, no pet.). A court may prevented eligible voters from voting, failed to count consider on its own motion whether a document is legal votes, or engaged in other fraud, illegal conduct, or ambiguous. In re Golden Peanut Co., LLC, 269 S.W.3d mistake." Tiller, 974 S.W.2d at 772 (citing Tex. Elec. 302, 313-14 (Tex.App.--Eastland 2008, orig. Code Ann. § 221.003 (Vernon 1986) and Alvarez, 844 proceeding). Whether a document is ambiguous is a Nicole Mitchell S.W.2d at 242). rejection of a [**9] ballot, the ballot board is presumed to have acted [*424] properly and it is the contestant's HN5[ ] "The [**7] standard of review in an appeal from burden to show by clear and convincing evidence the a judgment in an election contest is a determination board erred. Alvarez, 844 S.W.2d at 244-45; see Tiller, whether the trial court abused its discretion." Tiller, 974 974 S.W.2d at 773-74 (when contestant contends S.W.2d at 772. A trial court abuses its discretion when it election judge rejected votes that should have been acts "without reference to any guiding rules and accepted, rule has long presumed that each rejected principles." Downer v. Aquamarine Operators, Inc., 701 ballot was cast by an illegal voter). Discharging this S.W.2d 238, 241-42 (Tex. 1985). burden requires the contestant to show the challenged voter was legally qualified to vote, and the ballot was HN6[ ] The sufficiency of evidence supporting a trial properly cast. 3 Tiller, 974 S.W.2d at 774; Alvarez, 844 court's finding of fact may be a relevant factor in S.W.2d at 244. But if a ballot was rejected for a reason determining whether the court abused its discretion. In unrelated to the voter's qualification, it is unnecessary re C.J.H., 79 S.W.3d 698, 702 (Tex.App.--Fort Worth for the contestant to prove the qualification of the 2002, no pet.) (citing Beaumont Bank v. Buller, 806 challenged voter. 4 Tiller, 974 S.W.2d at 774; Alvarez, S.W.2d 223, 226 (Tex. 1991)). In a non-jury case, when 844 S.W.2d at 244. the appellate record includes both findings of fact and conclusions of law and a reporter's record, we review HN10[ ] The ballot board acts on the basis of the the sufficiency of the evidence under the same signatures before it. Alvarez, 844 S.W.2d at 245. The standards applied in cases tried by jury. Slusher v. Election Code does not require the board to make Streater, 896 S.W.2d 239, 241 (Tex.App.--Houston [1st inquiry of voters whose signatures do not match. Id. But Dist.] 1995, no writ). In reviewing the legal sufficiency of in an election contest based on ballots the ballot board the evidence under a clear and convincing standard, we rejected on the ground of signature deficiency, the look at all the evidence, in the light most favorable to the district court may receive oral testimony from the voter judgment, to determine if the trier of fact could or other witnesses regarding the similarity of the reasonably have formed a firm belief or conviction signatures and may compare the signatures. Tiller, 974 [**8] that its finding was true. In re J.F.C., 96 S.W.3d S.W.2d at 777; Alvarez, 844 S.W.2d at 245. The court 256, 265-66 (Tex. 2002). We presume that the trier of may rely on its own comparison without the aid of expert fact resolved disputed facts in favor of its findings if a testimony. [**11] Tiller, 974 S.W.2d at 777; Alvarez, reasonable trier of fact could do so. Id. We disregard 844 S.W.2d at 245. any contrary evidence if a reasonable trier of fact could do so, but we do not disregard undisputed facts. In re Here, each of the uncounted voters testified. Each J.L., 163 S.W.3d 79, 85 (Tex. 2005). averred they signed the application and carrier envelope, or in the case of Maldonado, marked the Irregularity of Signatures HN7[ ] Voting early by mail requires a voter to apply in 3 HN9[ ] A "qualified voter" is a voter who: (1) is age 18 years writing for a ballot and then mail the completed ballot to or older; (2) is a United States citizen; (3) has not been finally the election clerk in an official carrier envelope bearing adjudged by a court exercising probate jurisdiction totally the signature of the voter. Alvarez, 844 S.W.2d at 244; mentally incapacitated or partially mentally incapacitated Tex. Elec. Code Ann. § 86.005(c) (Vernon 2010). The without the right to vote; (4) has not been finally convicted of a ballot board may accept a ballot voted early by mail felony, or if so has satisfied enumerated requirements; (5) is a "only if: . . . neither the voter's signature on the ballot resident of this [**10] state; and (6) is a registered voter. Tex. application nor the signature on the carrier envelope Elec. Code Ann. § 11.002 (Vernon 2010). certificate is determined to have been executed by a 4 On appeal, Jones argues Morales failed to proffer clear and person other than the voter, unless signed by a witness; convincing proof that the uncounted voters were legally . . . ." Tex. Elec. Code Ann. § 87.041(b)(2) (Vernon qualified to vote. However, there is no record indication that 2010). The law thus requires those who vote early by this issue was raised and joined for trial. The record does not mail to sign both the application and the carrier indicate the ballot board rejected any uncounted voter for lack envelope. Alvarez, 844 S.W.2d at 245. of qualification. The trial court and parties tried the case with the burden of proof allocated to Morales to establish that each of the uncounted voters signed their mail-in ballot application HN8[ ] When a contestant challenges a ballot board's and ballot carrier envelope. Nicole Mitchell required signatory lines with a witnessed "X." As the trial voter to read the ballot, marking the ballot, or directing court candidly told counsel at closing argument, the the voter to mark the ballot. 5 Tex. Elec. Code Ann. § question of signature legitimacy presented a classic fact 64.0321 (Vernon 2010). A person assisting the voter to issue between the uncounted voters' testimony and prepare a ballot must provide his name, address and Jones's expert who found a signature discrepancy in the signature on the carrier envelope. Tex. Elec. Code Ann. case of each uncounted voter. The trial court resolved § 86.013(c) (Vernon 2010). The assistant must also sign the issue in favor of Morales. In so doing, HN11[ ] it the oath prescribed in § 64.034 included on the carrier was the exclusive judge of the credibility of the envelope. Tex. Elec. Code Ann. §§ 86.010(c), 86.013(f) witnesses, and the weight to be given their testimony. (Vernon 2010). City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). It observed and was free to take into account the In its findings of fact, the trial court found each candor and demeanor of the witnesses. It also was free uncounted voter "was either of advanced age or to make its own evaluation of the signatures on the exhibited an obvious impediment or infirmity." Each voters' applications and ballot envelopes in light of the testified briefly. Maldonado, age eighty-eight, testified testimony. Tiller, 974 S.W.2d at 777; Alvarez, 844 through an interpreter. Maldonado testified she signed S.W.2d at 245 During its oral rendition of judgment, the the application for ballot by mail and the ballot with an trial court noted that "due to their infirmities," he doubted "X." Her son witnessed her sign the application and her most of the uncounted voters "would sign their daughter witnessed her sign the ballot. On cross-signature[s] the same [**12] twice." Implicit in the examination, Maldonado was uncertain whether judgment of the trial court is the determination that each Morales or one of Maldonado's daughters helped her of the uncounted voters properly signed the application complete the application. When asked what role for ballot by mail and carrier envelope. The court heard Morales played in assisting her to vote she responded, testimony that, if believed, permitted it to form a firm "Well, he-the role is that he came to my house, and my belief or conviction that its finding [*425] was true. daughters were there and they helped me, but he also HN12[ ] The law does not allow us to disturb the trial helped me." Neither party questioned Maldonado further court's credibility determinations. City of Keller, 168 and Morales did not testify. Thus it is impossible to S.W.3d at 819. We conclude the trial court did not ascertain what assistance Morales provided Maldonado. abuse its discretion in sustaining Morales's contest as to Maldonado's carrier envelope does not identify Morales the votes of the uncounted voters. as her assistant. Jones points out that in Tiller the court found the trial Improper Voter Assistance court abused its discretion by validating the ballot of assisted voter Trevino whose carrier envelope We turn now to Jones's affirmative claim that illegal [**15] certificate was not properly executed. 974 ballots were cast for Morales and these ballots should S.W.2d at 775. According to Tiller, "If the person be excluded from the final count. Jones argues that assisting the voter fails to sign the carrier envelope Maldonado received illegal assistance from Morales. certificate, the ballot shall not be counted. See Tex. Elec. Code Ann. §§ 86.005, 86.010(b), 86.012, HN13[ ] A voter who is unable to write or see due to a 86.013(c) (Vernon Supp. 1998)." Tiller, 974 S.W.2d at physical disability or who is unable to read the language [*426] 775. After review of the cited sections of the of the ballot is eligible for assistance marking the ballot. Election Code, including the 2003 amendments to those Tex. Elec. Code Ann. §§ 64.031, 86.010(a) (Vernon sections, we find ourselves in disagreement on this 2010). A voter may be assisted in marking the ballot by point with our sister court. Neither in the cited sections a person of the voter's selection other than the voter's employer, an agent of the voter's employer, or an officer or agent of a labor union to [**13] which the voter 5 Maldonado's carrier envelope contains the following printed belongs. Tex. Elec. Code Ann. § 64.032(c) (Vernon oath for a person assisting the voter: 2010). A person voting by mail may receive no greater assistance than a person voting at a polling place. Tex. I swear (or affirm) that I will not suggest by word, sign, or Elec. Code Ann. § 86.010(b) (Vernon 2010). For gesture how the voter shall vote; I will confine my assistance to answering the voter's questions, to stating purposes of § 86.010, assisting a voter with a mail-in propositions on the ballot, and to naming candidate (sic) ballot, in the presence of the ballot or carrier envelope, and, if listed, their [**14] political parties; and I will includes reading the ballot to the voter, directing the prepare the voter's ballot as the voter directs. Nicole Mitchell nor elsewhere in HN14[ ] the Election Code can we had she voted at the polling place. Tex. Elec. Code Ann. see a legislative determination that a failure of a voter's § 86.010(b) (Vernon 2010). The trial court did not abuse assistant to complete the required information on the its discretion by not rejecting Maldonado's ballot for carrier envelope requires rejection of the voter's ballot. assertedly improper assistance. As noted, statute expressly provides that the ballot of a voter who is assisted in violation of subsections (a) or (b) of § 86.010 may not be counted, but the legislature Improper Transport of Ballot has not disqualified the ballot of a person whose assistant fails to sign the oath, or provide his name and Jones next argues the mail-in ballot of uncounted voter address, on the carrier envelope. Tex. Elec. Code Ann. De Los Santos was improperly transported to the early § 86.010(d) (Vernon 2010). voting clerk. Thus, he continues, the trial court abused its discretion in validating the ballot. HN15[ ] Long-settled rules of statutory construction restrain us from reading words into the language chosen On direct examination of De Los Santos, age sixty- by the legislature: seven, the following exchange occurred: [E]very [**16] word of a statute must be presumed Q. Did you [cast your vote] by mail-in ballot, sir? to have been used for a purpose. Likewise, we A. I don't remember. I think I got it in the mail, and then I believe every word excluded from a statute must sign it and someone pick it up, I think. I think that's the also be presumed to have been excluded for a way it happened. purpose. This rule complements another general statutory construction principle that courts should HN17[ ] A voter voting [**18] by mail must place the not insert words in a statute except to give effect to marked ballot in the official ballot envelope, seal the clear legislative intent. ballot envelope, place the ballot envelope in the official carrier envelope, seal the carrier envelope, and sign the In re Bell, 91 S.W.3d 784, 790 (Tex. 2002) (citations [*427] certificate on the carrier envelope. Tex. Elec. omitted). See Cameron v. Terrell & Garrett., 618 S.W.2d Code Ann. § 86.005(c) (Vernon 2010). A person other 535, 540 (Tex. 1981) (additional language is read into a than the voter who deposits the carrier envelope in the statute "only when it is necessary to give effect to the mail or with a common or contract carrier must provide clear legislative intent"). The legislature expressly has the person's signature, printed name, and residence provided that some actions require a voter's ballot to be address on the reverse side of the envelope. Tex. Elec. excluded, and we decline to add to the legislature's Code Ann. § 86.0051 (Vernon 2010). The carrier expressed list. envelope may be transported and delivered to the early voting clerk only by mail or common or contract carrier. That it was Morales, a candidate, who provided some Tex. Elec. Code Ann. § 86.006(a) (Vernon 2010). A assistance to Maldonado does not require a different ballot returned in violation of § 86.006 may not be conclusion. HN16[ ] The legislature has prescribed the counted. See Tex. Elec. Code Ann. § 86.006(h) (Vernon class of individuals a voter may not select to assist the 2010). voter in marking the ballot, and the excluded individuals does not include a candidate. See § 64.032(c) County Clerk Marilyn Holcomb testified she was (providing on voter's request, voter may be assisted by overseer of the 2006 general election. Addressing the any person selected by voter other than the voter's procedure applied to mail-in ballots, Holcomb testified employer, an [**17] agent of the voter's employer, or an that the ballots rejected by the ballot board were each officer or agent of a labor union to which the voter returned by mail. On this record, we see no abuse of belongs); § 86.010(a) (limiting persons who may assist discretion in the trial court's refusal to reject the ballot of voter casting ballot by mail to those provided by § De Los Santos for its asserted improper 64.032(c)). [**19] transport. Our review of the Election Code requires the conclusion Motion to Dismiss for Want of Prosecution Morales's failure to provide the required information and sign on the carrier envelope does not alone exclude Jones next argues the trial court abused its discretion by Maldonado's ballot from the count of votes cast. denying his motion to dismiss the case for want of Maldonado was entitled to no greater assistance than prosecution. Nicole Mitchell HN18[ ] A trial court is empowered to dismiss a case argued he did not receive advance notice of the trial for want of prosecution either under Texas Rule of Civil court's intention to dismiss for want of prosecution and Procedure 165a or its inherent power to control its because the contest was not of a primary election or a docket. Villarreal v. San Antonio Truck & Equip., 994 general or special election requiring a runoff, the S.W.2d 628, 630 (Tex. 1999). HN19[ ] We review a Election Code did not require an accelerated schedule. trial court's ruling on a motion to dismiss for want of See Tex. Elec. Code Ann. § 232.012 (Vernon 2010). At prosecution by the abuse of discretion standard. the hearing, the trial court expressed its cognizance of MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). Jones's contention and indicated the case probably should have been brought to trial more quickly. But it Citing Rule 6 of the Texas Rules of Judicial resolved the issue in favor of allowing the case to Administration, Jones argues public policy favors proceed. Jones reurged his motion on the first day of prompt disposition of civil non-jury cases. HN20[ ] In trial and it was again denied. non-jury cases, district court judges "should, so far as reasonably possible, ensure that all" non-family law civil HN21[ ] A trial court abuses its discretion when it acts "cases are brought to trial or final disposition . . . [w]ithin without reference to any guiding rules or principles, not 12 months from appearance date." Tex. R. Jud. Admin. when it exercises that discretion in a manner different 6(b)(2), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. [**22] than a reviewing appellate court might. F-Appendix (Vernon Supp. 2009). According to Rule 1 Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 836 of the rules of judicial administration, the rules are (Tex.App.--Amarillo 2009, no pet.) (citing Downer, 701 promulgated pursuant to § 74.024 of the Government S.W.2d at 241-42). Under the standard by which we Code. Id. at Rule 1. Section 74.024 [**20] provides "the must review the trial court's decision, we cannot say it supreme court may consider the adoption of rules abused its discretion by denying Jones's motion to relating to: (1) nonbinding time standards for pleading, dismiss for want of prosecution. discovery, motions, and dispositions; (2) nonbinding Conclusion dismissal of inactive cases from dockets, if the dismissal is warranted; . . . ." Tex. Gov't Code Ann. § Finding the trial court did not abuse its discretion in 74.024(c)(1),(2) (Vernon Supp 2009). Thus, the sustaining Morales's contest and denying Jones's application of Rule 6 is discretionary and non-binding. motion to dismiss, we affirm the judgment of the trial See In re S.D.W., 811 S.W.2d 739, 746 (Tex.App.-- court. Because of our disposition, it is unnecessary to Houston [1st Dist.] 1991, no writ) (juvenile case). consider Morales's cross-issue that two voters were Moreover, circumstances may preclude adherence to improperly denied precinct four ballots. See Tex. R. the standards under especially complex cases or those App. P. 47.1. presenting special circumstances. Tex. R. Jud. Admin. 6(e), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F- James T. Campbell Appendix (Vernon Supp. 2009). Thus, Rule 6 does not fix a bright line demarking the outward limit of a trial Justice court's discretion to control its docket. In the trial court, Morales argued delay sprang in part End of Document from assignment of the case to an appointed judge. But we find no record support for the claim. Rather, the record shows limited pretrial activity. Jones served requests for disclosure with his original answer on December 14, 2006. Morales deposed Holcomb in February 2007 but she refused to produce [**21] rejected ballots without an order of the court. In June, Holcomb, her counsel, and counsel for the parties reviewed documents in Holcomb's possession. She again refused to produce the rejected ballots. [*428] On December 11, Morales filed a motion to compel production of the rejected ballots. Jones responded and moved for dismissal for want of prosecution under the court's inherent authority. By written response, Morales Nicole Mitchell Positive As of: March 23, 2018 5:04 PM Z King v. Holland Court of Appeals of Texas, Thirteenth District, Corpus Christi October 6, 1994, Delivered ; October 6, 1994, Filed NUMBER 13-93-309-CV Reporter genuine issues of fact persisted as to when appellants DELCER KING AND WIFE, RENDA KING, Appellants, knew or should have known about the defects in v. DAVID C. HOLLAND AND DAVID C. HOLLAND & appellee's performance. Whether appellants were COMPANY, P.C., D/B/A HOLLAND & STEPHENSON, reasonable in attempting to negotiate with the buyer to Appellees. gain performance instead of investigating and discovering appellee's alleged malfeasance was a Subsequent History: [**1] Rehearing Overruled disputed, material issue. The court affirmed the October 6, 1994. dismissal of the fraud claim and the denial of Prior History: On appeal from the 329th District Court reinstatement. The court found no abuse of discretion in of Wharton County, Texas. the dismissal of the case for want of prosecution because the case languished for many years while Disposition: We affirm the dismissal of the fraud claim. appellants consistently neglected it. We reverse the summary judgment rendered against all of the Kings' other claims. We remand those causes of Outcome action for new trial. The court affirmed the dismissal of appellant clients' fraud claim against appellee attorney for want of prosecution because the case languished for many Core Terms years while appellants consistently neglected it. The court reversed the summary judgment rendered against summary judgment, want of prosecution, summary all of appellants' other claims because genuine issues of judgment motion, reinstate, severance, exhibits, fact persisted and remanded those causes of action for abatement, documents, security interest, court granted, a new trial. deposition, discovery, non-fraud, missing, causes, legal malpractice, lienholder, reconsider, escrow, stock LexisNexis® Headnotes Case Summary Procedural Posture Appellant clients sought review of a judgment from the Civil Procedure > ... > Summary 329th District Court of Wharton County, Texas, which Judgment > Motions for Summary granted defendant attorney's motion for summary Judgment > General Overview judgment based on the statute of limitations on most of appellants' claims. Appellants' remaining claims were Civil Procedure > Judgments > Summary dismissed for want of prosecution. Judgment > General Overview Overview Civil Procedure > Appeals > Summary Judgment Partial summary judgment was granted to appellee Review > General Overview attorney in an action for legal malpractice that was brought by appellant clients and appellants' remaining Civil Procedure > ... > Summary claim for fraud was dismissed for want of prosecution. Judgment > Burdens of Proof > General Overview The court reversed the summary judgment because Nicole Mitchell Civil Procedure > Judgments > Summary Judgment > Partial Summary Judgment Civil Procedure > ... > Summary Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Judgment > Entitlement as Matter of Law > General Overview Criminal Law & Procedure > Trials > Burdens of Proof > Defense Civil Procedure > Appeals > Standards of Review Governments > Legislation > Statute of HN1[ ] Summary Judgment, Motions for Summary Limitations > Pleadings & Proof Judgment Governments > Legislation > Statute of When reviewing the grant of a motion for summary Limitations > General Overview judgment, an appellate court must determine whether the summary judgment proof establishes as a matter of HN3[ ] Summary Judgment, Burdens of Proof law the absence of a genuine issue of a material fact as to one or more of the essential elements of a cause of To prevail on summary judgment motion based on an action. On disputed fact issues, the appellate court affirmative defense like statute of limitations, the takes all evidence favoring the nonmovant as true; the defendant must conclusively establish every factual appellate court indulges every reasonable inference and element of that defense. resolve all doubts in favor of the nonmovant. Civil Procedure > Dismissal > Involuntary Antitrust & Trade Law > ... > Trade Practices & Dismissals > Appellate Review Unfair Competition > State Regulation > Scope Criminal Law & Procedure > ... > Standards of Civil Procedure > ... > Defenses, Demurrers & Review > Abuse of Discretion > General Overview Objections > Affirmative Defenses > General Overview Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Governments > Legislation > Statute of Limitations > Time Limitations Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Antitrust & Trade Law > Consumer Protection > Deceptive & Unfair Trade Civil Procedure > Appeals > Standards of Practices > General Overview Review > Abuse of Discretion Torts > Malpractice & Professional HN4[ ] Involuntary Dismissals, Appellate Review Liability > Attorneys An appellate court reviews a trial court's decision to HN2[ ] Trade Practices & Unfair Competition, State dismiss a case for want of prosecution for a clear abuse Regulation of discretion. The limitations periods of the Texas Deceptive Trade Practices-Consumer Protection Act begin running when Civil Procedure > Dismissal > Involuntary the injury occurs or when the injured parties discover or, Dismissals > General Overview in exercising due diligence, should discover facts establishing the elements of the cause of action. Tex. HN5[ ] Dismissal, Involuntary Dismissals Bus. & Com. Code Ann. § 17.565 (1986). The court may decide as a matter of law that the injured party failed to The trial court has the inherent power to dismiss cases exercise reasonable diligence if the defendant provides not prosecuted with due diligence. This inherent power uncontroverted evidence of such failure. is in addition to the power to dismiss found in the rules of procedure. Nicole Mitchell The Kings wanted to sell their farm to Wilhelm Degen, but minimize the tax consequences to themselves. The Civil Procedure > Dismissal > Involuntary Kings wholly owned El Campo Well Services, Inc. Dismissals > Failure to Prosecute which, in turn, owned the farm, El Campo Equipment Company, Inc., and cash. The Kings hired Holland to Civil Procedure > Dismissal > Involuntary construct the transaction to divest ECWS of the Dismissals > General Overview equipment company and the cash, then convey the land through a stock transfer to Degen. Holland complied, Civil Procedure > Dismissal > Involuntary and the sale closed on April 15, 1981. Dismissals > Hearings on Dismissal The Kings claim they demanded and Holland agreed to HN6[ ] Involuntary Dismissals, Failure to provide four things: a secured interest in the property, a Prosecute provision to prohibit the buyer from encumbering the real estate, a provision that the buyer timely pay existing The rules require a court to reinstate a case dismissed notes and taxes and furnish the Kings with notice of the for want of prosecution upon finding after a hearing that payments, and a secured interest in the stock. Before the failure of the party or his attorney was not intentional the closing, the Kings examined the documents that or the result of conscious indifference but was due to an were to provide these guarantees. Included among accident or mistake or that the failure has been these documents was the security escrow agreement otherwise reasonably explained. Tex. R. Civ. P. (SEA). The Kings complain that, despite Holland's 165a(3). assurances, the agreements failed to provide these protections; two exhibits (A and B) to the SEA were Counsel: For Appellants: Anthony F. Constant, Attorney missing, apparently contributing to the failure. The Kings at Law, Corpus Christi, TX. David A. Smith, Hartman, also complained of Holland's failure [**3] to file a deed Lapham & Smith, Attorneys at Law, Victoria, TX. of trust to give notice of the Kings' security interest in the For Appellees: David W. Corban, Fulbright & Jaworski, land. Attorneys at Law, Houston, TX. W. Wendell Hall, Renee The transaction did not go as the Kings planned. Degen A. Forinash, Fulbright & Jaworski, Attorneys at Law, was thirty to forty-five days late with his first payment to San Antonio, TX. the Kings, due on April 15, 1982. He was also late with payments to one of the original lienholders as well as to Judges: Before Justices Kennedy, G. Hinojosa & taxing authorities. In 1984, they renegotiated with Yanez Degen and got a new promissory note. That year, they Opinion by: NOAH KENNEDY attempted to use the SEA to foreclose against Degen and discovered the nonexistence of their security interest and the existence of liens established by others Opinion after the transaction that were superior to their own nonexistent one. The Kings contend that Holland's malfeasance thereby damaged them. [*233] OPINION They filed suit on April 15, 1985. The case was on the court's docket for eight years. During that period, the Opinion by Justice Kennedy court sanctioned the Kings for discovery abuse and We withdraw our opinion of August 18, 1994 and enter other dilatory tactics. The Kings' counsel sought to this opinion in its place. Delcer and Renda King sued withdraw because they refused in 1986 and 1987 to David C. Holland and David C. Holland & Company, meet with him. The court placed the case on its P.C., d/b/a Holland & Stephenson for legal malpractice. dismissal docket for want of prosecution in 1987, 1989, The court granted Holland's motion for summary 1990, 1991, and 1992. The case was dismissed for judgment based on statute of limitations against most of want of prosecution in early 1992, but was reinstated. the Kings' claims detailed below. The court then On September [**4] 17, 1992, the court granted dismissed the case for want of prosecution. We affirm in Holland's motion for summary judgment against the part and reverse [**2] and remand in part. Kings' claims for legal malpractice, negligence, breach Nicole Mitchell of warranty, breach of fiduciary duty and violations of summary judgment would not be reversible. the Texas Deceptive Trade Practices-Consumer Protection Act. The court announced that the fraud Id. (emphasis added). We overruled the points of error claim would survive and be severed from the others. because we could not reach them. By contrast, the trial The severance was never reduced to a written order, court in the final judgment here memorialized the however, and was not effective. The court signed an granting of the amended motion for summary judgment, order memorializing the summary judgment the next then proceeded to dismiss the case. Unlike Aguilar, the day. Kings raise points of error against both the dismissal and the summary judgment. These facts critically [*234] The parties apparently never received notice of distinguish the case from Aguilar and free us from its this order. The Kings moved the court to reconsider the holding. summary judgment to allow them to refile their response, this time with proper service to the opposing We must also address Holland's claims that the wording party, so that the response could be considered on of the final judgment reveals that the court granted appeal. The Kings also noted that reconsideration would summary judgment against and, alternatively, dismissed allow Holland to correct defects in the proof attached to for want of prosecution the non-fraud claims. In its final his motion for summary judgment. Soon after, Holland judgment, the court first granted the motion for partial filed an amended motion for summary judgment to summary judgment and specified the causes of action correct those defects. extinguished thereby. In the next paragraph, the court wrote that "this case is dismissed for want of In January 1993, the court again placed this case on the prosecution;" to so order, the court excised the dismissal docket. At the hearing on the motion to phrase [**7] "all remaining claims of the Plaintiff" and dismiss, the court granted the motion to reconsider the inserted "this case." summary judgment, granted leave [**5] to file the amended motion for summary judgment, and granted We disagree that this substitution establishes dismissal that amended motion. The court then stated that the as an alternate basis for the extinction of the non-fraud case was dismissed for want of prosecution. In April causes eliminated by the summary judgment. The 1993, the court held a hearing on the motion to reinstate sequence of the order shows that the court granted the the case, and denied the motion. summary judgment before dismissing the case. The causes eliminated by the summary judgment were not Before reaching the merits of the point of error attacking longer part of the case dismissed. the summary judgment, we distinguish a similar case in which we declined to address the merits of such points. If the court adopted Holland's interpretation and See Aguilar v. Maverick Eng'g Co., 752 S.W.2d 727 intended also to dismiss the non-fraud claims for want of (Tex. App.--Corpus Christi 1988, no writ). In Aguilar, we prosecution, the court erred. We reverse dismissals for held that we could not reach such points when the court want of prosecution for clear abuse of discretion. State had dismissed the entire cause for want of prosecution. v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984). The Id. at 727-728. There, the plaintiff appealed the trial Kings raise this issue under point of error three, by court's grant of summary judgment against his claims. which the Kings challenge the dismissal, and point of Id. at 727. We dismissed his appeal for want of error four, by which the Kings challenge the failure to jurisdiction because a defendant's counterclaim reinstate the dismissed claims. After the original remained pending, rendering the summary judgment summary judgment, the non-fraud claims were alive interlocutory. Id. at 728. On remand, the trial court only to the extent that the motion to reconsider and the dismissed the entire cause for want of prosecution. Id. amended motion for summary judgment resuscitated On appeal, the plaintiff attacked only the summary them. The Kings need not have appealed those causes judgment. We wrote: during the pendency of their [*235] motion to reconsider, especially because [**8] they sought We are aware that appellant was not in a position to reconsideration to improve the record on appeal; any prosecute his case since an [**6] interlocutory failure to obtain a severance from the still viable claims summary judgment had been granted against him. would not have altered this aspect of the case. The However, absent a point of error complaining of the Kings did not fail to prosecute these claims following the order of dismissal, or argument concerning the original grant of the motion for summary judgment. If the dismissal order, error, if any, in the interlocutory court included the non-fraud claims in its dismissal, such Nicole Mitchell inclusion was therefore an abuse of discretion. To the Holland does not argue for a specific date of discovery. extent that the court dismissed the non-fraud claims Instead, he contends that the Kings knew or should after granting summary judgment against them, we have known of his alleged malfeasance by April 14, sustain point of error three. As there was no failure to 1983, two years before the suit was filed. He contends prosecute, any failure to reinstate was error; we that several events should have triggered the Kings' therefore sustain point four. investigation and discovery of the alleged malfeasance: 1. Their distrust of Holland that had developed by By their first point of error, the Kings challenge the the time of the signing, their suspicion that he was court's grant of Holland's motion for partial summary not fulfilling his duties to them, and their decision to judgment. HN1[ ] When reviewing the grant of a stop payment on their check to him; motion for summary judgment, we must determine 2. his violation of a duty regarding the release of whether the summary judgment proof establishes as a stock under the agreement. matter of law the absence of a genuine issue of a 3. the absence of Exhibits A and B to the Security material fact as to one or more of the essential elements Escrow Agreement upon the signing of the of a cause of action. Gibbs v. General Motors Corp., agreement; 450 S.W.2d 827, 828 (Tex. 1970). On disputed fact issues, we take all evidence favoring the nonmovant as 4. Degen's lateness of thirty to forty-five true; we indulge every reasonable [**9] inference and days [**11] in making his first payment on the note; resolve all doubts in favor of the nonmovant. Nixon v. 5. Degen's default on his payment to an original Mr. Property Management Co., 690 S.W.2d 546, 548-49 lienholder, Degen's failure to notify them of (Tex. 1985). payment of the obligation, and the original lienholder's notice to the Kings that it would The court granted Holland's motion in which he urged foreclose; and that a two-year statute of limitations barred the Kings' 6. Degen's failure to notify the Kings in 1982 and claims of legal malpractice and DTPA violations. See 1983 that he had paid property taxes, lienholders, TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) lease payments, or taxes on the lease, and their (Vernon 1986) (held applicable to legal malpractice in knowledge of the tax defaults. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988); TEX. BUS. & COM. CODE ANN. § 17.565 (Vernon Holland contends that the Kings did nothing to 1986) (DTPA). HN2[ ] The limitations periods begin investigate their rights, which investigation would have running when the injury occurs or when the injured led to their discovery of the [*236] absence of the parties discover or, in exercising due diligence, should protections they alleged he purported to provide. discover facts establishing the elements of the cause of Holland's evidence is controverted and fails to prove his action. Medical Protective Co. v. Groce, Locke & thesis as required. Holland provides excerpts from Hebdon, 814 S.W.2d 124, 127 (Tex. App.--Corpus depositions. The Kings provide Mr. King's affidavit. 1 Christi 1991, writ denied) (legal malpractice); TEX. BUS. & COM. CODE ANN. § 17.565 (Vernon 1986) (DTPA). The court may decide as a matter of law that the injured 1 Holland challenges the affidavit, noting that Mr. King fails to party failed to exercise reasonable diligence if the defendant provides uncontroverted evidence of such unqualifiedly and positively represent the facts as disclosed in failure. Wakefield v. Bevly, 704 S.W.2d 339, 346 (Tex. his affidavit to be true and within his knowledge as required. App.--Corpus Christi 1985, no writ). See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Instead, the affidavit is only stated to be "on his oath" and sworn before a notary public. The fact that the affidavit is HN3[ ] To prevail on [**10] summary judgment motion taken "on his oath" makes the statements therein assignable based on an affirmative defense like statute of as perjury, which is the goal. See id. His statements of what limitations, the defendant must conclusively establish he knew and when he knew it are inherently within his every factual element of that defense. Swilley v. knowledge. The affidavit is therefore not fatally defective. See Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Because the General Prod. Co. v. Black Coral Inv., 715 S.W.2d 121, 122- court did not specify on which basis it granted the 23 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). motion, we must affirm if any defensive theory survives Holland also attacks many parts of the affidavit as self-serving the motion. Rogers v. Ricane Enterprises, Inc., 772 and conclusory. He challenges the assertions of when the S.W.2d 76, 79 (Tex. 1989). Kings first discovered that Holland had harmed them. We need not consider this line of attack because the statements Nicole Mitchell Though Mr. King stated in his deposition that the Kings agreements failed to provide the protections they distrusted Holland on the day of the signing, he went on requested or that the exhibits which might provide the to say that they had dinner, cooled off, and decided to protections were missing. The exchange quoted by trust in Holland's assurances and sign the documents. Holland was as follows: Mr. King said he stopped payment on the check to Q. Today you have indicated that Exhibits A and B ensure that Holland would release an escrow account were left off of the security escrow agreement that as promised; Holland was upset by this action, but was prepared that night. And I gather there was no released [**12] the account in return for the Kings' Exhibit A and B to the security escrow agreement certified check. These incidents do not prove as a when you signed it that evening, was there sir? matter of law that the Kings should have investigated A. As far as I know there wasn't. facts which would have led to their discovery of the missing exhibits and the nonexistence of the security This excerpt does not show that Mr. King knew upon interest. signing the documents that the exhibits were missing, nor does it show when he learned or should have [**13] Neither does Holland's early release of stock learned that fact. The evidence showed that the Kings substantiate the summary judgment. Holland released were confronted [**15] with more than fifty documents stock related to the sale from a holding company in on the day of the signing. The Kings testified [*237] at 1982 three to four months earlier than Mr. King thought deposition that they went through the documents with he should. Holland did not personally notify the Kings of Holland and, because of their lack of expertise, relied on this release. Mr. King said in his deposition that he his assurances that everything was in order, including thought this move was discourteous and violated the the security interest that the missing exhibits would have agreement. The Kings did not sue on this issue; Mr. supplied. In his affidavit, Mr. King asserted that he did King said in his affidavit that they did not sue because not know that exhibits A and B were not attached, nor they were not harmed by the early release. Regardless, that the security interest they were to guarantee was this incident does not establish that the Kings knew or absent, until 1984. The quoted exchange shows only should have known of Holland's failure to include that, at the time of the deposition, Mr. King did not documents establishing a security interest in the real believe that the exhibits had been attached. estate. Genuine issues of fact persist as to when the Kings The Kings admit that they knew of Degen's defaults on knew or should have known about the defects in payments to them, on taxes, and on payments to the Holland's performance. Whether the Kings were original lienholder, but this knowledge does not prove reasonable in attempting to negotiate with the buyer to that, as a matter of law, they should have discovered gain performance instead of investigating and the deficiencies in the documents. The defaults do not discovering Holland's alleged malfeasance is a by themselves show that the Kings lacked a security disputed, material issue. We sustain point of error one. interest. Mr. King stated in his affidavit that Degen eventually made his 1982 and 1983 payments. Mr. King By points of error two and three, the Kings attack the averred that he talked with Degen or his office court's dismissal of the case for want of prosecution. throughout 1982, 1983, [**14] and 1984, keeping HN4[ ] We review the court's decision for a clear abreast of why Degen was not making the required abuse of discretion. Rotello, 671 S.W.2d at 508-09. payments. Mr. King stated that Degen assured him that HN5[ ] The [**16] trial court has the inherent power to he would make the payments. Mr. King stated that they dismiss cases not prosecuted with due diligence. Id. were trying to work with Degen to help him carry out the This inherent power is in addition to the power to agreement until early 1984, when they decided they dismiss found in the rules of procedure. See TEX. R. must foreclose on the land. Only then did they learn of CIV. P. 165a(4); City of Houston v. Thomas, 838 the deficiencies in Holland's performance, Mr. King said. S.W.2d 296, 297 (Tex. App.--Houston [1st Dist.] 1992, no writ); see also Torres v. Rios, 869 S.W.2d 555, 556- The centerpiece of Holland's evidence, properly viewed, 57 (Tex. App.--Corpus Christi 1993, no writ). This case fails to establish that the Kings knew that the must have been dismissed under the court's inherent power because it does not fit the profile of either subdivision of the procedural rules. We must, therefore, we cite in the text are statements of fact as to when the Kings consider the length of time the case was on file, the discovered the missing aspects of the agreement rather than extent of activity in the case, whether a trial setting was their discovery of "harm." Nicole Mitchell requested, and the existence of reasonable excuses for dismissed the case for want of jurisdiction. the delay. Rotello, 671 S.W.2d at 509. We find no abuse of discretion in the dismissal. The The case's eight-year tenure on the docket and the case languished for many years while the Kings Kings' previous dilatoriness set out above and apparent consistently neglected it. They had not requested a trial from the record support heightened scrutiny of the under Wharton County local rules. Though their Kings' actions after the reinstatement. The record prosecution had seemed jump-started after the reflects more activity than Holland asserts occurred. reinstatement of the case, [**19] it again ground to a Contrary to Holland's assertion here and in the trial court halt. The Kings may have understood the court to have that the Kings took only one deposition 1992, the record severed and abated the fraud action, but they took no indicates that the [**17] Kings participated in at least steps to formalize those orders or to see that they were four depositions during May and June 1992. A in the court's file; Holland provides some proof that the mediation attempt in August failed. Holland concedes abatement never existed. While in other cases such that the Kings nonsuited some defendants during the confusion might be excused, we cannot say that the summer. All activity appears to have screeched to a halt court abused its discretion in declining to excuse it in a following the motion to reconsider the September 17, case with a history of such neglect. We overrule points 1992 grant of the motion for partial summary judgment. two and three as they relate to the claims not eliminated by the summary judgment. The court's notes from that unrecorded hearing show that its grant of the partial motion left the fraud action Similarly, we affirm the court's decision not to reinstate alive. The notes show that the court granted a the case. By point four, the Kings contend that the severance of the causes covered by the summary nonreinstatement was error. The procedural rule judgment. The notes also mention a pretrial scheduling standard applies even to cases that courts dismiss order. The notes are silent as to any abatement of the under their inherent powers. See TEX. R. CIV. P. fraud action. 165a(4). HN6[ ] The rules require a court to reinstate a case dismissed for want of prosecution The Kings' attorney said in his bill of exceptions that he upon finding after a hearing that the failure of the recalled that the court accepted his argument that an party or his attorney was not intentional or the result abatement of the fraud action would be more efficient. of conscious indifference but was due to an He said he requested an abatement so that, in the event accident or mistake or that the failure has been the summary judgment was reversed, those actions otherwise reasonably explained. could be tried at one proceeding with the fraud claims. He also refers for support to the following passage from TEX. R. CIV. P. 165a(3). As we stated above, the Kings' the Defendants' Opposition to Plaintiffs' Motion to Retain [**20] long neglect of this case justifies the court's Case on Docket, "Plaintiffs' counsel asked the Court to dismissal for their failure either to formalize the refrain from entering [**18] any docket control orders or severance and abatement or to see that such orders trial settings until plaintiffs could lodge their interlocutory were in the court's file. Even accepting the Kings' appeal. The Court merely acceded to plaintiffs' request." characterization of the September hearing as accurate, we cannot say that the court abused its discretion in Holland's attorney filed an affidavit along with his implicitly finding that their inactivity in this case following objections to the bill. In it, he recalled the severance of that hearing rose to the level of conscious indifference the claims, but remembers requesting an exchange of given the history of neglect and recent dismissal and draft orders between himself and the Kings' attorney. reinstatement. We overrule point four. Holland's attorney sent a proposed order granting the summary judgment and requested a draft of the We affirm the dismissal of the fraud claim. We reverse severance order. He said he never received the draft. the summary judgment rendered against all of the Kings' He also avers that the Kings did not request, nor did the other claims. We remand those causes of action for new court order, an abatement of the fraud claim. He trial. contends that the court agreed to postpone the entry of the scheduling order because the Kings agreed to a Noah Kennedy speedy appeal of the summary judgment. Justice The court entered no order regarding severance or Opinion delivered and filed this the 6th day of October, abatement. Five months later, the [*238] court Nicole Mitchell 1994. End of Document Nicole Mitchell Neutral As of: March 23, 2018 5:05 PM Z Lessard v. Velsicol Court of Appeals of Texas, Thirteenth District, Corpus Christi - Edinburg April 23, 2009, Memorandum Opinion Delivered; April 23, 2009, Memorandum Opinion Filed NUMBER 13-00-00113-CV Reporter 2009 Tex. App. LEXIS 2811 *; 2009 WL 1089362 1990, alleging that it was responsible for the chemical MICHAEL JOSEPH LESSARD, DOROTHY ELAINE contamination of their home. In 1999, the trial court LESSARD, MONICA JEAN LESSARD, AND JEANNIE dismissed the action for want of prosecution. On appeal, MARIE LESSARD, Appellants, v. VELSICOL the court held that the trial court did not abuse its CHEMICAL CORPORATION, Appellee. discretion in dismissing the action because the homeowners were provided adequate notice of the trial Subsequent History: Rehearing denied by Lessard v. court's intent to dismiss for want of prosecution, as the Velsicol Chem. Corp., 2009 Tex. App. LEXIS 6042 (Tex. chemical company's joint motion to dismiss put the App. Corpus Christi, June 11, 2009) homeowners on notice that their claims could be Petition for review denied by Lessard v. Velsicol Chem. dismissed for want of prosecution by the trial court, and Corp., 2009 Tex. LEXIS 669 (Tex., Sept. 11, 2009) by conducting a hearing on the motion, the trial court afforded the homeowners' an opportunity to be heard. Prior History: [*1] On appeal from the 343rd District The record did not show that the homeowners were Court of Live Oak County, Texas. diligent in prosecuting their claims because nearly nine years elapsed between the date the case was first filed and the day the trial court dismissed it, the parties Lessard v. Savage Pest Control, 2000 Tex. App. LEXIS neither resolved their claims nor agreed on a visiting 3819 (Tex. App. Corpus Christi, June 8, 2000) judge to hear the case as ordered by the trial court in 1993, and the homeowners' counsel's employment Core Terms status did not justify the delay. The trial court did not err by denying the homeowners' motion for reinstatement of trial court, notice, want of prosecution, parties, visiting the action. judge, reinstatement, pet, motion to reinstate, motion to Outcome dismiss, prosecuting, abused, law firm, inherent power, The judgment was affirmed. diligence, lawsuit, requirements, proceedings, discovery, mediation, cases, opportunity to be heard, due process, no writ, appointment LexisNexis® Headnotes Case Summary Procedural Posture Civil Procedure > Appeals > Standards of Appellant homeowners challenged a judgment of the Review > Abuse of Discretion 343rd District Court of Live Oak County, Texas, granting Civil Procedure > Dismissal > Involuntary a motion to dismiss their negligence action for want of Dismissals > Failure to Prosecute prosecution under Tex. R. Civ. P. 165a in favor of appellee chemical corporation. HN1[ ] Standards of Review, Abuse of Discretion Overview An appellate court reviews a trial court's dismissal of a The homeowners sued the chemical corporation in suit for want of prosecution under an abuse of discretion Nicole Mitchell standard. The trial court abuses its discretion when it prosecution is a due process violation and requires acts without reference to any guiding rules or principles reversal. However, participation in a hearing on a or if the action is arbitrary or unreasonable. motion to reinstate cures any due process concerns for the trial court's failure to provide notice of its intent to dismiss for want of prosecution. Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary HN2[ ] Involuntary Dismissals, Failure to Dismissals > Failure to Prosecute Prosecute HN5[ ] Involuntary Dismissals, Failure to A trial court may dismiss a case for want of prosecution: Prosecute (1) when a party fails to appear at a hearing or trial; (2) when the case has not been disposed of within the See Tex. R. Civ. P. 165a(1). Supreme Court's time standards; or (3) under the trial court's inherent power to dismiss, when the case has not been prosecuted with due diligence. Tex. R. Civ. P. Civil Procedure > Dismissal > Involuntary 165a. The trial court's authority to dismiss is derived Dismissals > Failure to Prosecute both from Rule 165a and from its inherent power to manage its own docket. HN6[ ] Involuntary Dismissals, Failure to Prosecute Civil Procedure > Dismissal > Involuntary A dismissal for want of prosecution may be obtained by Dismissals > Failure to Prosecute the motion of the trial court or on the motion of any party to the suit. Furthermore, the Texas Supreme Court has HN3[ ] Involuntary Dismissals, Failure to held that either notice of the trial court's intent to dismiss Prosecute or notice of the actual order of dismissal is sufficient notice. When an unreasonable delay in the prosecution of a case occurs, it is presumed that the case has been abandoned. If that delay is not sufficiently explained, the Constitutional Law > ... > Fundamental presumption of abandonment is conclusive and the case Rights > Procedural Due Process > Scope of will be dismissed. A trial court, in exercising its inherent Protection authority, may consider periods of activity, intervals of inactivity, reasons for lack of attention, and the passage HN7[ ] Procedural Due Process, Scope of of time to determine whether the delay was reasonable. Protection All that due process requires is that a party be given Civil Procedure > Dismissal > Involuntary notice of the time and substance of the hearing, and an Dismissals > Failure to Prosecute opportunity to present arguments at the hearing. HN4[ ] Involuntary Dismissals, Failure to Prosecute Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Tex. R. Civ. P. 165a(1) provides that a party must be provided with notice and an opportunity to be heard HN8[ ] Involuntary Dismissals, Failure to before a trial court may dismiss a case for want of Prosecute prosecution under either Rule 165a or its inherent power. The requirements of notice and a hearing are A trial court may consider periods of activity, intervals of necessary to ensure that the dismissed claimant inactivity, reasons for lack of attention, and the passage received due process. The failure to provide adequate of time in determining whether a case should be notice of the trial court's intent to dismiss for want of Nicole Mitchell dismissed for want of prosecution. Furthermore, when By two issues, the Lessards argue that the trial court there is an unreasonable delay in the prosecution of the abused its discretion: (1) in dismissing their claims for case, it is presumed that the case has been abandoned want of prosecution; and (2) in refusing to reinstate their unless the dismissed claimant provided a sufficient claims pursuant to Texas Rule of Civil Procedure justification for the delay. 165a(3). See TEX. R. CIV. P. 165a(3). We affirm. I. BACKGROUND Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute This dispute involves damages arising from the chemical contamination of several residences in Live HN9[ ] Involuntary Dismissals, Failure to Oak County, Texas. Originally, the dispute involved Prosecute numerous parties; however, most of the parties have settled their claims, leaving only the Lessards, Velsicol, Tex. R. Civ. P. 165a(3) sets out the procedure for and Fruit of the Loom as parties. reinstating cases dismissed for want of prosecution. A trial court is compelled to reinstate a case upon finding The Lessards filed their original petition on December after a hearing that the failure of the party or his attorney 31, 1990, alleging, among other things, that Velsicol and was not intentional or the result of conscious Fruit of the Loom were negligent in designing, indifference but was due to an accident or mistake or manufacturing, and marketing Gold Crest C-100 that the failure has been otherwise reasonably Emulsifiable Concentrate, the chemical which allegedly explained. In order to determine whether the trial court contaminated the Lessards' residence. The abused its discretion in refusing reinstatement, an [*3] Lessards' lawsuit was one of three lawsuits against appellate court reviews the entire record and determine the same set of defendants--trial court cause numbers whether the evidence was sufficient to find that the 7202-C (filed by the Episcopal Church Corporation of failure of the party was not due to accident, mistake, or West Texas), 7205-C (filed by the Reynolds family), and other reasonable explanation. The party requesting 7214-C (filed by the Lessard family). The trial court reinstatement has the burden to bring forth a record consolidated the three lawsuits on December 16, 1991. establishing that reinstatement was required. On June 24, 1993, the trial court ordered that all further Judges: Before Chief Justice Valdez and Justices proceedings and the trial of the matter were to be Garza and Vela. Memorandum Opinion by Justice conducted before a visiting judge. The trial court further Garza. ordered the parties to "agree upon the identity of a visiting judge within ten days from the date of this Opinion by: DORI CONTRERAS GARZA Order." The parties never agreed on which visiting judge would conduct further proceedings. Opinion On April 22, 1994, all of the parties agreed to a joint motion to continue the upcoming May 23, 1994 trial MEMORANDUM OPINION of James S. Savage, deceased; Charyle M. Merritt, Sammey Allison Merritt; the unknown heirs of James S. Savage; James Memorandum Opinion by Justice Garza S. Savage d/b/a Savage Pest Control; Robert D. Nogueria, individually and as executor of the estate of James S. Savage Appellants, Michael Joseph Lessard, Dorothy Elaine (collectively the [*2] "Savage parties"). In fact, the Savage Lessard, Monica Jean Lessard, and Jeannie Marie parties jointly filed with Velsicol the motion to dismiss for want Lessard, appeal from the trial court's granting of a of prosecution complained about on appeal. This Court, on motion to dismiss for want of prosecution in favor of June 8, 2000, issued an order dismissing the appeal as to the Savage parties because the Savage parties and the Lessards appellee, Velsicol Chemical Corporation ("Velsicol"). 1 had settled their claims. As a result, this Court severed the Lessards' claims as to the Savage parties into a separate appellate cause number--13-00-349-CV--and dismissed the 1 The record reflects that the following parties were once part appeal. The Lessards' remaining issues against Velsicol of this appeal as appellees: Savage Pest Control; Leslie remained docketed under the current appellate cause number- Savage Bowles, individually and as the executor of the estate -13-00-113-CV. Nicole Mitchell setting, which the trial court granted. Velsicol, Fruit of suggested that the trial court select a visiting judge if the Loom, and the Savage parties filed a motion for the Velsicol and the Savage parties objected to his list of appointment of a visiting judge on July 28, 1994, visiting judges. Nowhere in the response did counsel for requesting that the trial court appoint a visiting judge the Lessards explain why the case had been delayed for since the Lessards and the other plaintiffs had rejected over nine years. each of the proposed visiting judges named on the defendants' list without offering a list of their own. The On November 17, 1999, the trial court conducted a record does not reflect [*4] that the trial court ruled on [*6] hearing on Velsicol and the Savage parties' joint this motion. motion to dismiss. At the hearing, counsel for the Savage parties noted that this matter would take more On February 28, 1997, the trial court entered an agreed than one week to try and alleged that the Lessards had order of referral appointing Steven W. Fieldcamp as the "basically sat on their hands for nine years in this case." mediator for the claims. 2 After mediation in 1997, Counsel for Velsicol stated that discovery in the case Velsicol, Fruit of the Loom, and the other defendants had not been updated since 1992 and that he was not settled with the plaintiffs in trial court cause numbers afforded the opportunity to finish a deposition of the 7202-C and 7205-C, leaving only the Lessards' claims Lessards' expert witness. Velsicol's counsel also unresolved. referenced a recent claim brought by the Lessards for damages associated with "painful, sensitive On March 14, 1999, the Lessards filed a motion with the polyneuropathy" and that the Lessards had not trial court requesting the trial court to set a docket participated in discovery regarding that claim. In control conference by telephone for the purpose of explaining why the case had taken so long to prosecute, scheduling a trial date. The trial court set the docket counsel for the Lessards noted the following: control conference for March 23, 1999, and sent notice [Counsel for the Lessards]: All right. I have filed a to the parties. It is not clear from the record before us response in this case. As I said, Your Honor, I when the new trial setting was scheduled. originally represented the Lessards. I have been out of this case for five years. I've just been rehired. Nevertheless, on October 19, 1999, Velsicol and the My first priority is to go forward with this case. Savage parties filed a joint motion to dismiss the .... Lessards' claims for want of prosecution. In this filing, Velsicol and the Savage parties argued that they had [Counsel for the Lessards]: I left the law firm, Your provided the [*5] Lessards with lists of visiting judges Honor, and went into practice elsewhere. And in on numerous occasions and that the Lessards failed to fact, I tried to retire from the practice of law first do anything. Velsicol and the Savage parties also [*7] of the year and found out I just couldn't do that. alleged that the case had been outstanding for nine And so Mr. Spagnoletti asked me to come back and years at the time of filing and that the Lessards were clear up some cases including this one. "the only outstanding claims despite mediation attempts .... and numerous letters sent to the Plaintiffs on behalf of [Counsel for the Lessards]: Now that I'm on the the Defendants to obtain a visiting judge." case, I'll see all that is done and I will do it expeditiously just as soon as it can possibly be On November 12, 1999, the Lessards filed a response done. And I'll see that it's done. to the joint motion to dismiss for want of prosecution. To correct what Counsel said, originally I The Lessards alleged that a jury trial of their claims represented the Lessards when I was with the would only take a week and requested a trial setting for Kleberg Law Firm in Corpus Christi. I have not been the first available week after February 2000. Counsel for associated with this case. I turned this case over to the Lessards noted that he was recently employed by Mr. Spagnoletti about four or five years ago. I the law firm of Spagnoletti & Associates for the specific haven't been associated with the case in the last purpose of prosecuting this matter, and he subsequently three years. proposed a new list of visiting judges and, alternatively, I'm back here. I know the Lessards personally and I originally represented them and I would-- just to have their day in court or get this thing 2 By signing the February 28, 1997 agreed order of referral, concluded for them. And that's all I ask, Your the trial court ostensibly denied the July 28, 1994 motion for Honor, and I will diligently do whatever this the appointment of a visiting judge filed by Velsicol, Fruit of the Court suggests or wants me to do with regards Loom, and the Savage parties. Nicole Mitchell [sic] to resolving it, and that'll be done. I March 13, 2000. promise Your Honor that. .... On December 29, 1999, Fruit of the Loom filed a THE COURT: They never did move the cases when voluntary petition for relief under Chapter 11 of the you left. United States Bankruptcy Code in the United States [Counsel for the Lessards]: I know. I intend to move Bankruptcy Court for the District of Delaware. This Court it now, Your Honor. was notified of Fruit of the Loom's bankruptcy filing on The trial court subsequently dismissed the Lessards' July 24, 2000. See TEX. R. APP. P. 8.1. On August 17, claims for want of prosecution. 2000, this Court stayed the Lessards' appeal pursuant to the automatic stay imposed by the bankruptcy On [*8] December 16, 1999, the Lessards filed various [*10] code. See 11 U.S.C. § 362(a). The Lessards filed post-judgment motions, including a verified motion to a motion to reinstate their appeal on June 8, 2007, reinstate, arguing that the trial court abused its noting that the bankruptcy proceedings involving Fruit of discretion in dismissing the case and that rule 165a of the Loom had concluded on March 21, 2007. See TEX. the Texas Rules of Civil Procedure mandated R. APP. P. 8.3(a). 4 On June 28, 2007, we granted the reinstatement. See TEX. R. CIV. P. 165a. Included with Lessards' motion to reinstate their appeal. This appeal their verified motion to reinstate was an affidavit followed. executed by Francis I. Spagnoletti in which he stated the following: My firm has continuously represented Plaintiffs [the II. ANALYSIS Lessards] since obtaining this case. The case was mediated in 1997, but no settlement could be reached. Although it is true that the case has now been on file for nine years (1990-1999), there are 4 Rule 8.3(a) of the Texas Rules of Appellate Procedure several reasons that explain this passage of time: provides the following: First, as is customary at my firm, I assigned this If a case has been suspended by a bankruptcy filing, a case to associates, who then prepare the case as party may move that the appellate court reinstate the necessary for trial, including propounding and appeal if permitted by federal law or the bankruptcy court. responding to discovery, obtaining medical records, If the bankruptcy court has lifted or terminated the stay, a and consulting with expert witnesses. Over the certified copy of the order must be attached to the years that this case has been on file, the handling motion. associate changed on several occasions. This fact has resulted in an unintended delay in handling. TEX. R. APP. P. 8.3(a). In the instant case, the Lessards included a copy of the status report from Fruit of the Loom's Second, this case is a consolidation of three bankruptcy proceedings as compiled by the PACER Docket separate lawsuits with separate [*9] sets of Service for the United States Bankruptcy Court for the District plaintiffs (the Reynolds, the Lessard[s], and the of Delaware with their motion to reinstate their appeal. This Episcopal Church), and includes separate status report is not certified, but it does indicate that Fruit of the Loom's bankruptcy proceedings terminated on March 21, defendants which are separately represented. The 2007, thereby demonstrating that the automatic stay is no claims of the Reynolds were finally settled after longer in effect. Though [*11] the status report is not certified, lengthy proceedings . . . . we find that the Lessards substantially complied with the requirements of rule 8.3(a) of the rules of appellate procedure. On December 20, 1999, the Lessards filed their original See id.; see also TEX. R. APP. P. 8.3(b); MCI Sales & Serv. v. notice of appeal, which they later supplemented on Hinton, No. 10-08-00353-CV, 2008 Tex. App. LEXIS 8200, at March 13, 2000. The trial court denied all of the *1 (Tex. App.--Waco Oct. 29, 2008, pet. filed) (mem. op.) (per Lessards' post-judgment motions on January 31, 2000. curiam) ("[An appeal] may be reinstated on motion of any party The trial court entered an amended order of dismissal showing that the stay has been lifted or modified and on February 9, 2000, adding Fruit of the Loom to the list specifying what action, if any, is required from this Court upon of defendants. 3 It is because of this alteration that the reinstatement of the appeal."); Ma-Stell, Inc. v. Anadarko E&P Lessards filed their supplemental notice of appeal on Co., Nos. 10-03-00358-CV & 10-05-00204-CV, 2005 Tex. App. LEXIS 3193, at *2 n.3 (Tex. App.--Waco Apr. 27, 2005, order) (noting that rule 8.3(b) of the rules of appellate 3 The Lessards did not name Fruit of the Loom as a party in procedure provides that the appeals court may sever and their March 13, 2000 supplemental notice of appeal. reinstate on its own initiative). Nicole Mitchell Inc., 858 S.W.2d 55, 57 (Tex. App.--Houston [14th Dist.] A. The Trial Court's Dismissal of the Lessard's 1993, no writ). The trial court's authority to dismiss is Claims for Want of Prosecution derived both from rule 165a of the Texas Rules of Civil Procedure and from its inherent power to manage its In their second issue, the Lessards argue that the trial own docket. Veterans' Land Bd. v. Williams, 543 S.W.2d court abused its discretion in exercising its inherent 89, 90 (Tex. 1976); Burton v. Hoffman, 959 S.W.2d 351, power to dismiss their case for want of prosecution. 353 (Tex. App.--Austin 1998, no pet.). Specifically, the Lessards contend that: (1) the trial court failed to give them notice that it planned [*12] to HN3[ ] When [*14] an unreasonable delay in the dismiss their case for want of prosecution; and (2) the prosecution of a case occurs, it is presumed that the record demonstrates that they were diligent in trying to case has been abandoned. Bilnoski, 858 S.W.2d at 57 obtain a trial setting from the trial court. Velsicol (citing Hosey v. County of Victoria, 832 S.W.2d 701, 704 counters by arguing that the Lessards received (Tex. App.--Corpus Christi 1992, no writ)). If that delay reasonable notice and were given an opportunity to be is not sufficiently explained, the presumption of heard before the trial court dismissed their claims after abandonment is conclusive and the case will be being on file for nine years at the time of dismissal. dismissed. Id. The trial court, in exercising its inherent authority, may consider periods of activity, intervals of inactivity, reasons for lack of attention, and the passage 1. Standard of Review of time to determine whether the delay was reasonable. Ozuna v. Sw. Bio-Clinical Labs., 766 S.W.2d 900, 902 HN1[ ] We review a trial court's dismissal of a suit for (Tex. App.--San Antonio 1989, writ denied); see King v. want of prosecution under an abuse of discretion Holland, 884 S.W.2d 231, 237 (Tex. App.--Corpus standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 Christi 1994, writ denied) (noting that in exercising its (Tex. 1997) (per curiam); State v. Rotello, 671 S.W.2d inherent power to dismiss a case, a trial court may 507, 509 (Tex. 1984); see also Sewell Motor Co. v. consider the length of time the case was on file, the Capitan Enters., Inc., No. 08-02-00454-CV, 2004 Tex. extent of activity in the case, whether a trial setting was App. LEXIS 3577, at **5-6 (Tex. App.--El Paso Apr. 22, requested, and the existence of reasonable excuses for 2004, pet. denied) (mem. op.). The trial court abuses its the delay). The Lessards did not request findings of fact discretion when it acts without reference to any guiding or conclusions of law, and the trial court did not specify rules or principles or if the action is arbitrary or the standard of dismissal used; therefore, we must unreasonable. Koslow's v. Mackie, 796 S.W.2d 700, 704 affirm the trial court's [*15] decision if any legal theory (Tex. 1990); Downer v. Aquamarine Operators, Inc., 701 for the dismissal is supported by the record. See Point S.W.2d 238, 241-42 (Tex. 1985). Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); see also Maughan v. Employees Ret. Sys. of HN2[ ] A trial court may dismiss a case for want of Tex., No. 03-07-00604-CV, 2008 Tex. App. LEXIS 5822, prosecution: (1) when a party fails to appear at a at *7 (Tex. App.--Austin Aug. 1, 2008, no pet.) (mem. hearing or trial; (2) when the [*13] case has not been op.). disposed of within the Supreme Court's time standards; 5 or (3) under the trial court's inherent power to dismiss, when the case has not been prosecuted with due 2. Discussion diligence. See TEX. R. CIV. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. The Lessards first argue that the trial court abused its 1999); Rotello, 671 S.W.2d at 509; Bilnoski v. Pizza Inn, discretion because it did not provide adequate notice of its intent to dismiss their case for want of prosecution. HN4[ ] Texas Rule of Civil Procedure 165a(1) provides 5 Texas Rule of Judicial Administration 6(b) provides that all that a party must be provided with notice and an civil jury cases should be brought to trial or final disposition opportunity to be heard before a trial court may dismiss within eighteen months from appearance date and that all civil a case for want of prosecution under either rule 165a or nonjury cases should be brought to trial or final disposition its inherent power. See TEX. R. CIV. P. 165a(1) (HN5[ within twelve months from appearance date. TEX. R. JUD. ] "Notice of the court's intention to dismiss and the ADMIN. 6(b). However, the supreme court "recognized that in date and place of the dismissal hearing shall be sent by especially complex cases or special circumstances it may not be possible to adhere to these standards." TEX. R. JUD. the clerk to each attorney of record, and to each party ADMIN. 6(e). not represented by an attorney."); Villarreal, 994 S.W.2d Nicole Mitchell at 630; Dueitt v. Arrowhead Lakes Prop. Owners, Inc., Sw. Crossing Homeowners Ass'n, 165 S.W.3d 89, 92- 180 S.W.3d 733, 737 (Tex. App.--Waco 2005, pet. 93 (Tex. App.--Houston [14th Dist.] 2005, pet. denied) denied); see also Callahan v. Staples, 139 Tex. 8, 161 (affirming the trial court's granting of appellee's motion S.W.2d 489, 491 (1942) (requiring notice for dismissals to dismiss for want of prosecution); Harvey v. Wetzel, under the court's [*16] inherent power); Gutierrez v. No. 03-03-00608-CV, 2004 Tex. App. LEXIS 6818, at Lone Star Nat'l Bank, 960 S.W.2d 211, 214 (Tex. App.-- *12 (Tex. App.--Austin July 29, 2004, no pet.) (same); Corpus Christi 1997, pet. denied) (requiring notice for Wright v. Tex. Dep't of Criminal Justice-Inst. Div., 137 dismissals under rule 165a). The requirements of notice S.W.3d 693, 694 (Tex. App.--Houston [1st Dist.] 2004, and a hearing are necessary to ensure that the no pet.) (same); Manning v. North, 82 S.W.3d 706, 712 dismissed claimant received due process. Dueitt, 180 (Tex. App.--Amarillo 2002, no pet.) (same). S.W.3d at 737 (citing Smith v. McKee, 145 S.W.3d 299, Furthermore, the Texas Supreme Court has held that 302 (Tex. App.--Fort Worth 2004, no pet.); Tex. Sting either notice of the trial court's intent to dismiss or notice Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.- of the actual order of dismissal is sufficient notice. See -San Antonio 2002, pet. denied); Franklin v. Sherman Harris County v. Miller, 576 S.W.2d 808, 810 (Tex. Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.-- 1979); see Lowe v. U.S. Shoe Corp., 849 S.W.2d 888, Dallas 2001, pet. denied)). The failure to provide 891 (Tex. App.--Houston [14th Dist.] 1993, writ denied). adequate notice of the trial court's intent to dismiss for want of prosecution is a due process violation and Velsicol filed its joint motion to dismiss for want of requires reversal. Villarreal, 994 S.W.2d at 630 (citing prosecution on October 18, 1999, more than nine years Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 after the Lessards had first filed their lawsuit. In its joint (Tex. App.--Houston [1st Dist.] 1996, writ denied); Davis motion, Velsicol noted the following: v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-47 (Tex. Trial was set for this case on January 9, 1995, in Civ. App.--Waco 1981, writ ref'd n.r.e.)); see Keough v. [*19] Live Oak County during a week that was not Cyrus U.S.A., Inc., 204 S.W.3d 1, 5 (Tex. App.--Houston a jury week. In approximately late October of 1994, [14th Dist.] 2006, pet. denied). However, participation in the Honorable Judge Rodriguez noted that there a hearing on a motion to reinstate cures any due would not be an actual jury setting in the case nor a process concerns for the trial court's [*17] failure to new docket control conference, unless and until the provide notice of its intent to dismiss for want of parties agreed to a visiting judge. Thereafter, the prosecution. Dueitt, 180 S.W.3d at 737. Defendants [Velsicol and others] on numerous The Lessards argue that they did not receive adequate occasions provided the Plaintiffs [the Lessards] lists notice of the trial court's intent to dismiss their case of visiting judges, among which included, Judge because the notice was promulgated by Velsicol via its Wells Stewart, Judge Vernon Harville, and the late joint motion to dismiss for want of prosecution and not Judge Onion. Despite the Defendants' efforts, the by the trial court itself. They argue that Velsicol's joint Plaintiffs failed to do anything. motion was only sufficient to inform the Lessards of It has been nearly nine years since the filing of this Velsicol's intentions and gave no indication of the trial suit. To date, all claims regarding the Defendants court's intentions. They further argue that Velsicol have been resolved with the exception of the claims cannot give notice of the trial court's intention to dismiss set forth by the Lessards. The Lessards remain the the claims using its inherent power, but that the trial only outstanding claims despite mediation attempts court must give notice of its own intentions. and numerous letters sent to the Plaintiffs on behalf of the Defendants to obtain a visiting judge. However, several Texas courts have held that HN6[ ] a dismissal for want of prosecution may be obtained by The Savage Defendants have made numerous the motion of the trial court or on the motion of any party efforts to resolve this claim and have heard no reply to the suit. See Dueitt, 180 S.W.3d at 738; see also from the Plaintiffs. To ensure that the interests of Sierra Club v. Tex. Comm'n on Envtl. Quality, No. 03- the Defendants are preserved and to reach a 04-00108-CV, 188 S.W.3d 220, 2005 Tex. App. LEXIS resolution in this long stalled case, the Defendants 454, at *5 (Tex. App.--Austin Jan. 21, 2005, no pet.) ask this Court [*20] to dismiss this matter for failure ("Contrary to appellants' arguments, the rule 165a of the Plaintiffs to properly and efficiently pursue reinstatement procedure applies to all dismissals for their case. want of prosecution, regardless [*18] of whether they WHEREFORE PREMISES CONSIDERED the are initiated by the court or motion of a party."); Polk v. Nicole Mitchell Defendants respectfully request the Court grant the S.W.3d at 740; see also Bilnoski, 858 S.W.2d at 57; Joint Motion to Dismiss for Want of Prosecution. Lowe, 849 S.W.2d at 891. (Emphasis added.) On November 12, 1999, the Next, the Lessards contend that the record Lessards filed a response to the joint motion to dismiss, demonstrates that they were diligent in prosecuting their alleging that the reason for the delay in the case was claims; therefore, the trial court abused its discretion in that the parties could not agree on a visiting judge and granting Velsicol's joint motion to dismiss. We disagree. proposing a list of three visiting judges. On November 17, 1999, the trial court conducted a hearing on As previously mentioned, HN8[ ] the trial court may Velsicol's joint motion to dismiss. It is not clear from the consider periods of activity, intervals of inactivity, record that the trial court notified the Lessards of its reasons for lack of attention, and the passage of time in intent to dismiss their claims for want of prosecution. determining [*23] whether a case should be dismissed See Alexander v. Lynda's Boutique, 134 S.W.3d 845, for want of prosecution. See Ozuna, 766 S.W.2d at 902; 849-50 (Tex. 2004) ("[M]ere silence as to whether notice see also King, 884 S.W.2d at 237. Furthermore, when [of intent to dismiss] was sent does not establish that there is an unreasonable delay in the prosecution of the notice was not sent . . . ."); see also Keough, 204 case, it is presumed that the case has been abandoned S.W.3d at 5. In any event, after hearing arguments from unless the dismissed claimant provided a sufficient Velsicol, the Savage parties, and the Lessards, the trial justification for the delay. See Bilnoski, 858 S.W.2d at court granted Velsicol's joint motion to dismiss for want 57; Hosey, 832 S.W.2d at 704. of prosecution. Here, the record supports an implied finding that the HN7[ ] All that due process requires is that a party be case was not prosecuted with diligence. Nearly nine given notice of the time [*21] and substance of the years elapsed between the date the case was first filed-- hearing, and an opportunity to present arguments at the December 31, 1990--and the date the trial court finally hearing. See Smith, 145 S.W.3d at 302; Tex. Sting Ltd., dismissed it--November 17, 1999. 7 During that time, the 82 S.W.3d at 648; see also Dueitt, 180 S.W.3d at 739. parties engaged in some discovery and participated in Velsicol's joint motion to dismiss put the Lessards on mediation. See Nichols v. Sedalco Constr. Servs., 228 notice that their claims may be dismissed for want of S.W.3d 341, 343 (Tex. App.--Waco 2007, pet. denied) prosecution by the trial court. See Dueitt, 180 S.W.3d at (holding that the trial court did not abuse its discretion in 740 (holding that "'a dismissal notice containing no dismissing a case for want of prosecution where brief reference to Rule 165a or the court's inherent authority periods of activity did not explain remaining long periods [is] sufficient to put the appellant on notice that the court of inactivity). However, the parties neither resolved their could dismiss under Rule 165a(1), Rule 165a(2), or its claims nor agreed on a visiting judge to hear the case, inherent authority'" (quoting Steward v. Colonial Cas. as ordered by the trial court on June 24, 1993. At the Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.--Waco November 17, 1999 hearing, [*24] counsel for the 2004, no pet.))). By conducting the November 17, 1999 Lessards stated that the reason for the delay centered hearing, the trial court afforded the Lessards an on his employment status. According to counsel for the opportunity to be heard and to provide adequate Lessards, he initially represented the Lessards until he justifications for the nine-year delay in prosecuting the discontinued employment with his law firm for five years. case. See Lowe, 849 S.W.2d at 891 ("It is generally held He admitted to the trial court that his law firm "never did that a party to a lawsuit is charged with notice that the move the case" until he returned to work for the law firm suit may be dismissed for want of prosecution when there is inaction for a long period of time. This constructive notice satisfies due process requirements.") (internal citation omitted). Thus, [*22] we conclude that signed or within the period prescribed by Rule 306a); see also the Lessards received due process. 6 See Dueitt, 180 Harris County v. Miller, 576 S.W.2d 808, 810 (Tex. 1979) (holding that either notice of the trial court's intent to dismiss or notice of the actual order of dismissal is sufficient notice); Lowe v. U.S. Shoe Corp., 849 S.W.2d 888, 891 (Tex. App.-- 6 Our conclusion is further supported by the fact that the Houston [14th Dist.] 1993, writ denied) (same). Lessards were provided a copy of the actual dismissal order, which allowed them to timely file their motion to reinstate. See 7 As noted earlier, the trial court did amend its [*25] dismissal TEX. R. CIV. P. 165a(3) (providing that a motion to reinstate order to include Fruit of the Loom as a defendant on January must be filed within thirty days after the order of dismissal is 31, 2000. Nicole Mitchell after his five year hiatus. 8 Moreover, the Lessards did not file a request for a trial setting from the trial court 1. Standard of Review until March 14, 1999. 9 The Lessards had an abundance of time with which to prosecute their claim, yet very little HN9[ ] Texas Rule of Civil Procedure 165a(3) sets out prosecution occurred in this case until it was it on the the procedure for reinstating cases dismissed for want verge of being dismissed. We do not find the Lessards' of prosecution. See TEX. R. CIV. P. 165a(3). A trial justifications to be sufficient in explaining the nine-year court is compelled to reinstate a case "upon finding after delay in prosecuting the case. See Ozuna, 766 S.W.2d a hearing that the failure of the party or his attorney was at 902; King, 884 S.W.2d at 237; Bilnoski, 858 S.W.2d not intentional or the result of conscious indifference but at 57; Hosey, 832 S.W.2d at 704. We therefore was due to an accident or mistake or that the failure has conclude that the trial court did not abuse its discretion been otherwise reasonably explained." Id. In order to in dismissing the Lessards' claims under its inherent determine whether the trial court abused its discretion in authority. See MacGregor, 941 S.W.2d at 75; Rotello, refusing reinstatement, we review the entire record and 671 S.W.2d at 509. Accordingly, we overrule the determine whether the [*27] evidence was sufficient to Lessards' second issue. find that the failure of the party was not due to accident, mistake, or other reasonable explanation. See Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. B. The Trial Court's Denial of the Lessard's Motion App.--San Antonio 1997, no writ); see also Torres v. for Reinstatement Rios, 869 S.W.2d 555, 557 (Tex. App.--Corpus Christi 1993, no writ). The party requesting reinstatement has In their first issue, the Lessards assert that the trial court the burden to bring forth a record establishing that abused its discretion in refusing to reinstate their claims reinstatement was required. Kenley v. Quintana pursuant to Rule 165a of the Texas Rules of Civil Petroleum Corp., 931 S.W.2d 318, 321 (Tex. App.--San Procedure. See TEX. R. CIV. P. 165a. The Lessards Antonio 1996, writ denied). argue that: (1) they were not consciously indifferent to the trial court's orders regarding the appointment of visiting judges; (2) they did not abuse the pretrial 2. Discussion discovery process; (3) they showed the trial court that they were ready for trial; (4) their claims are meritorious We have already determined that the record does not and they should be given an opportunity to be heard; support a finding that the trial court abused its discretion and (5) Velsicol did not demonstrate that it would be by dismissing the case. Moreover, the record supports unfairly prejudiced by the reinstatement of the Lessard's an implied finding that the Lessards did not prosecute lawsuit. [*26] Velsicol contends that the trial court did this case with diligence. See Dueitt, 180 S.W.3d at 741; not abuse its discretion in denying the Lessard's motion see also Luna v. UPS, Inc., No. 01-02-00144-CV, 2003 for reinstatement because: (1) the Lessards ignored for Tex. App. LEXIS 465, at **8-9 (Tex. App.--Houston [1st six years the trial court's orders to agree on a visiting Dist.] Jan. 9, 2003, pet. denied) (concluding that the trial judge; and (2) the Lessards failed to provide Velsicol court did not abuse its discretion in dismissing with discovery on a newly alleged medical claim. appellant's claims for failing to exercise diligence in Velsicol argues that the Lessard's justifications for the prosecuting his claims and that the trial court did not delays--that the case originally involved numerous abuse its discretion in denying appellant's [*28] motion parties and the law firm representing the Lessards had to reinstate because of the dismissal). Therefore, the reassigned the case to various associates over the Lessards have failed to meet their burden to bring forth years--were not adequate to warrant a reinstatement of a record supporting reinstatement. We overrule the the case. Lessards' first issue. 10

¹⁰ We note that the record reflects that the trial court conducted 8 Counsel's admission is supported by the affidavit filed by a hearing on Velsicol's joint motion to dismiss rather than the Spagnoletti, where he blamed the delay on the complexity of Lessards' motion to reinstate. See TEX. R .CIV. P. 165a(3) the case (involving multiple plaintiffs and defendants) and the (providing that a trial court is compelled to reinstate a case fact that the case had been handled by several associates at "upon finding after a hearing that the failure of the party or his the law firm. attorney was not intentional or the result of conscious 9 The Lessards renewed their request for a trial setting at the indifference but was due to an accident or mistake or that the November 17, 1999 hearing and in their motion to reinstate. failure has been otherwise reasonably explained."). The Nicole Mitchell IV. CONCLUSION We affirm the trial court's dismissal of the Lessards' claims for want of prosecution and its denial of the Lessards' motion to reinstate. DORI CONTRERAS GARZA, Justice Memorandum Opinion delivered and filed this the 23rd day of April, 2009. End of Document supreme court has held that when a verified motion to reinstate has been filed under rule 165a(3), an oral hearing is required, and a failure to hold such a hearing requires reversal. See Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). However, the Lessards do not argue on appeal that they were improperly denied an oral hearing on their motion for reinstatement and, instead, rely on the evidence presented at the trial court's November 17, 1999 hearing on Velsicol's joint motion [*29] to dismiss. Furthermore, the Lessards, in their verified motion to reinstate, did not request a hearing on the motion. See Keough v. Cyrus U.S.A., Inc., 204 S.W.3d 1, 6 n.3 (Tex. App.--Houston [14th Dist.] 2006, pet. denied) (noting that before trial court error can be found in the failure to set a hearing on a motion to reinstate, the movant must request a hearing); Cabrera v. Cedarapids, Inc., 834 S.W.2d 615, 618 (Tex. App.--Houston [14th Dist.] 1992, writ denied) (same); but see Matheson v. Am. Carbonics, 867 S.W.2d 146, 147-48 (Tex. App.-- Texarkana 1993, no writ) ("[T]he court is required to conduct a hearing on a timely filed motion to reinstate. Whether or not the movant requests a hearing on a motion to reinstate is irrelevant; a hearing is required unless waived.") (internal citations omitted). Moreover, the trial court, by providing the Lessards notice of and an opportunity to be heard at the November 17, 1999 hearing, afforded the Lessards with due process and, therefore, was not required to conduct a hearing on the Lessards' motion to reinstate. See Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 740-41 (Tex. App.--Waco 2005, pet. denied) (concluding that the [*30] trial court's failure to conduct a hearing on appellant's motion to reinstate was harmless error because appellants were provided due process in a prior hearing on appellee's motion to dismiss for want of prosecution). Nicole Mitchell Warning As of: March 23, 2018 5:06 PM Z Maida v. Fire Ins. Exch. Court of Appeals of Texas, Second District, Fort Worth March 25, 1999, Delivered NO. 2-98-232-CV Reporter occurred, the case was not on file in excess of the VINCENT MAIDA, APPELLANT v. FIRE INSURANCE supreme court's time standards, the case had been set EXCHANGE, APPELLEE for trial, the case was continued over appellant's objection, appellant lived out of state at the time of Prior History: [**1] FROM COUNTY COURT AT LAW notice and dismissal, and the court signed the notice of NO. 2 OF TARRANT COUNTY. dismissal only three days after allowing appellant's Disposition: Reversed and remanded. counsel to withdraw. Outcome Core Terms Judgment denying appellant's motion to reinstate his insurance claim reversed because the trial court abused reinstatement, trial court, want of prosecution, cases, its discretion in both dismissing the case and in failing to inherent authority, dismissal notice, withdraw, notice, reinstate the case that was improperly dismissed, and it abuse of discretion, time standards, days, motion to remanded for reinstatement. reinstate, no writ, courts, affirmative relief, dismissal order, trial setting, diligently, grounds, abused LexisNexis® Headnotes Case Summary Procedural Posture Appellant policyholder challenged a judgment from the Governments > Legislation > Interpretation County Court at Law No. 2 of Tarrant County (Texas), which denied his motion to reinstate his insurance claim HN1[ ] Legislation, Interpretation against appellee fire insurance exchange. The court is to construe briefing rules liberally. Tex. R. Overview App. P. 38.1(e), 38.9. Those rules require that Appellant policyholder sued appellee insurance carrier arguments be clear and concise as to the contentions for failing to settle his claim. The case was on file for 17 made, with appropriate citations to authorities in the months. There was a period of inactivity, appellant record. Tex. R. App. P. 38.1(h). A point is sufficient if it moved out of state, and his counsel withdrew close to directs the appellate court to the error about which trial. Appellant filed a letter with the court stating the complaint is made. withdrawal created a hardship and jeopardized his case. The trial court dismissed appellant's case for want of prosecution and denied his motion to reinstate. Appellant challenged the dismissal and the denial. The Civil Procedure > Dismissal > Involuntary court reversed and remanded. The court held it was an Dismissals > Failure to Prosecute abuse of discretion to dismiss the case for either noncompliance with the supreme court's time standards or Criminal Law & Procedure > ... > Standards of under the court's inherent authority. The court also held Review > Abuse of Discretion > General Overview that it was an abuse of discretion to fail to reinstate a case improperly dismissed. Significant discovery had Civil Procedure > Dismissal > Involuntary Nicole Mitchell Dismissals > General Overview stems from a trial court's power to maintain and control its docket. Civil Procedure > Dismissal > Involuntary Dismissals > Motions Civil Procedure > Dismissal > Involuntary Civil Procedure > Appeals > Standards of Dismissals > Failure to Prosecute Review > Abuse of Discretion Governments > Courts > Clerks of Court Criminal Law & Procedure > Trials > Judicial Discretion Civil Procedure > Dismissal > Involuntary Dismissals > General Overview HN2[ ] Involuntary Dismissals, Failure to Prosecute HN5[ ] Involuntary Dismissals, Failure to Prosecute A motion to reinstate a case dismissed for want of prosecution is addressed to the sound discretion of the Dismissal for Want of Prosecution: (a) The courts will court. In reviewing whether there was an abuse of periodically give notice of their intention to dismiss for discretion, the key question is whether the trial court want of prosecution. Such notice will be given at least acted without reference to any guiding rules and thirty (30) days prior to the signing of consequent principles, or in an arbitrary or unreasonable manner. dismissal order. (b) The clerk shall provide notice of the court's intention to dismiss for want of prosecution by complying with the provisions of Tex. R. Civ. P. 165a(1). Civil Procedure > Appeals > Standards of Local Rules of Practice of the District Courts of Tarrant Review > Abuse of Discretion County Rule 3.90 (Adopted October 2, 1990). Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Civil Procedure > Dismissal > Involuntary HN3[ ] Standards of Review, Abuse of Discretion Dismissals > General Overview In reviewing a court's refusal to reinstate, the court must Criminal Law & Procedure > Trials > Judicial first look to the court's basis for dismissal. Determination Discretion of the basis for the dismissal provides the measure HN6[ ] Dismissal, Involuntary Dismissals whereby the court may determine if the court has abused its discretion. A trial court has the inherent authority to dismiss a case that has not been diligently prosecuted. Whether a case has been diligently prosecuted is also an issue Civil Procedure > Dismissal > Involuntary committed to the trial court's sound discretion. Factors a Dismissals > Failure to Prosecute trial court may consider in dismissing under its inherent power include the length of time the case was on file, Civil Procedure > Dismissal > Involuntary the extent of activity in the case, whether a trial setting Dismissals > General Overview was requested, and the existence of reasonable excuses for delay. HN4[ ] Involuntary Dismissals, Failure to Prosecute Under Tex. R. Civ. P. 165a, a trial court may dismiss a Civil Procedure > Dismissal > Involuntary case for want of prosecution if a party fails to appear at Dismissals > Failure to Prosecute trial or a hearing, or if the disposition of a party's case is not in compliance with the supreme court's time Civil Procedure > Dismissal > Involuntary standards for disposition. A court also has the inherent Dismissals > General Overview authority to dismiss for want of prosecution cases that HN7[ ] Involuntary Dismissals, Failure to are not prosecuted with due diligence. This authority Nicole Mitchell Prosecute continue the case and to withdraw as Maida's counsel. The court set a hearing on both motions for April 3. On Where a party is ready for trial and has secured a trial March 30, Maida, who had since moved to California, setting or is otherwise making a diligent effort to get the sent a letter to the court requesting that the court deny case to trial, the case should not be dismissed for lack Boyle's request to withdraw. Nevertheless, on April 3, of prosecution. the court allowed Boyle to withdraw and removed the case from its April 13 setting. Counsel: ATTORNEY FOR APPELLANT: Wes Dauphinot, FORT WORTH, TEXAS. Then on April 6, just three days after Boyle's withdrawal, the court issued a second notice of dismissal. This ATTORNEY FOR APPELLEE: LOUIS J. SANDBOTE, second notice also stated that the court desired to P.C., Mark D. Cole, DALLAS, TEXAS. comply with the supreme court's guidelines for disposition of cases, and stated the case would be Judges: PANEL A: CAYCE, C.J.; LIVINGSTON and dismissed for "want of prosecution" in 30 days unless BRIGHAM, JJ. Maida obtained an order of retention, reached some final disposition in the case, or sought other affirmative Opinion by: TERRIE LIVINGSTON relief. Opinion On May 11, 1998, 35 days after sending the second notice of dismissal, the court dismissed the case "for want [**3] of prosecution." The following day, Maida's [*838] OPINION new counsel filed a notice of appearance with the court. On June 4, Maida filed a verified motion to reinstate. At In three points, appellant contends the trial court abused the hearing on Maida's motion to reinstate, the court its discretion by failing to reinstate his case, and violated denied his motion. his rights to a fair trial and due process. We reverse. II. DISCUSSION I. FACTS When a party seeks appellate review of a case that has Appellant Vincent Maida purchased an insurance policy been dismissed for want of prosecution and that has not through appellee Fire Insurance Exchange (Exchange) been reinstated, the party may cast its argument in one for coverage of personal property. After a theft during a of three ways: First, a party may argue the trial court move, Maida claimed $ 27,695 alleging either loss, theft, erred in dismissing the case; second, a party may or other damage to his personal property. Exchange contend it was error for the trial court to refuse to and Maida failed to settle the claim, and on December reinstate the case; and finally, a party may challenge 26, 1996, Maida filed suit claiming that Exchange had both the dismissal and the denial of reinstatement. breached the insurance contract and violated several Although each challenge, if sustained, is independently provisions of the Texas Insurance Code. On February 6, sufficient to obtain reinstatement, 1 the subtle 1997, Exchange answered, and between February 11 distinctions among the challenges affect both our ability and September 3 of 1997, the parties engaged in and the scope of our review. discovery. On October 1, 1997, Maida filed his first amended petition. [**4] Maida designates his arguments under point one On November 6, 1997, the court sent a notice of dismissal to the parties. The notice stated the court's 1A motion to reinstate is not a prerequisite for appeal. See desire to adhere to the supreme court's time standards for disposition [**2] of cases and that Maida's case Hosey v. County of Victoria, 832 S.W.2d 701, 703 (Tex. App.-- Corpus Christi 1992, no writ). For purposes of an appeal, the would be dismissed within 30 days unless some order of dismissal is the final judgment. See id.; Estate of disposition was made or other affirmative relief sought. Bolton v. Coats, 608 S.W.2d 722, 725 (Tex. Civ. App.--Tyler 1980, writ ref'd n.r.e.). As a result, a motion to reinstate is On November 14, Maida requested a trial setting, and similar to a motion for new trial, and thus, necessary only to the case was set for trial on April 13, 1998. But on develop facts that otherwise would not appear in the record. March 18, Maida's counsel, Ron Boyle, filed a motion to See Hosey, 832 S.W.2d at 703-04. Nicole Mitchell as challenges to the trial [*839] court's failure to reinstate. However, the substance of his argument is directed to the trial court's dismissal of the case. He 1. Court's Authority to Dismiss consistently argues that "dismissal on [inherent authority] grounds constitutes an abuse of discretion" HN4[ ] Under Texas Rule of Civil Procedure 165a, a and "dismissal on [rule 165a(1)] grounds constitutes an trial court may dismiss a case for want of prosecution if abuse of discretion." Furthermore, Maida, throughout his a party fails to appear at trial or a hearing, or if the argument, requests that we find the dismissal an abuse disposition of a party's case is not in compliance with of discretion. Nonetheless, Maida prays that we reverse the supreme court's time standards for disposition. See the order denying the motion to reinstate. TEX. R. CIV. P. 165a(1)-(2). Rule 165a, however, is not the only authority by which a trial court may dismiss a Maida's point is multifarious, and we are not required to case. review it. See Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 939 (Tex. App.--Fort Worth 1997, pet. A court also has the inherent authority to dismiss for denied). However, HN1[ ] we are to construe briefing want of prosecution cases that are not prosecuted with rules liberally. See TEX. R. APP. P. 38.1(e), 38.9; Texas due diligence. See State v. Rotello, 671 S.W.2d 507, Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54-55 508-09 (Tex. 1984); Villarreal v. San Antonio Truck & (Tex. 1998). Those rules require that arguments be Equip., Inc., 974 S.W.2d 275, 276 (Tex. App.--San clear and concise as to the contentions made, with Antonio 1998, pet. granted) (citing Rizk v. Mayad, 603 appropriate citations to authorities in the record. See S.W.2d 773, 776 (Tex. 1980)). This authority stems from TEX. R. APP. P. 38.1(h). A point is sufficient if it directs a trial court's power to maintain and control its docket. the appellate court to the error about which complaint is See Brim Laundry Mach. Co. v. Washex Mach. Corp., made. [**5] See Bouchet, 963 S.W.2d at 54-55. 854 S.W.2d 297, 301 (Tex. App.--Fort Worth 1993, writ Because Maida has sufficiently directed us to the errors denied). about which he complains--dismissal and failure to reinstate--we will address each of his complaints. [**7] Because the record in this case does not contain findings of facts or conclusions of law and the dismissal order does not specify the reason for dismissal other A. REINSTATEMENT than to generally dismiss for "want of prosecution," we must affirm on any [*840] legal theory supported by the HN2[ ] A motion to reinstate a case dismissed for want record. 2 See Ozuna v. Southwest Bio-Clinical Labs., of prosecution is addressed to the sound discretion of 766 S.W.2d 900, 901 (Tex. App.--San Antonio 1989, the court. See Smith v. Babcock & Wilcox Const. Co., writ denied) (op. on reh'g). 913 S.W.2d 467, 467 (Tex. 1995); Eustice v. Grandy's, 827 S.W.2d 12, 14 (Tex. App.--Dallas 1992, no writ); Goff v. Branch, 821 S.W.2d 732, 733 (Tex. App.--San 2. Application Antonio 1991, writ denied). In reviewing whether there was an abuse of discretion, the key question is whether Maida acknowledges that because the order is silent as the trial court acted without reference to any guiding to the reason for dismissal, we must affirm on any legal rules and principles, or in an arbitrary or unreasonable theory supported by the record. Nevertheless, he manner. See Downer v. Aquamarine Operators, Inc., argues that regardless of the basis for dismissal, it was 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 an abuse of discretion not to [**8] reinstate the case. U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). Maida postulates that the court's dismissal is based on In this instance, the parties disagree as to the one of two grounds: First is that the dismissal was under appropriate guiding rules and principles applicable to the court's inherent authority; second was his failure to this case. HN3[ ] In reviewing a court's refusal to reinstate, we must first look to the court's basis for dismissal. See, e.g., Shook v. Gilmore & Tatge [**6] 2 We do not mean to imply that in certain instances other Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.--Waco 1997, factors may not restrict our review to specific grounds of writ denied). Determination of the basis for the dismissal dismissal. See, e.g., Villarreal, 974 S.W.2d at 279-86 (Duncan, provides the measure whereby we may determine if the J., dissenting) (stating that where a notice of dismissal court has abused its discretion. specifies a single ground for dismissal, a trial court may not dismiss on any other ground). Nicole Mitchell seek affirmative relief as required in the notice of 14; Ozuna, 766 S.W.2d at 903; Stromberg Carlson dismissal. Maida analogizes the action of failing to "seek Leasing Corp. v. Central Welding Supply Co., 750 affirmative relief" to the court's power to dismiss under S.W.2d 862, 866 (Tex. App.--Houston [14th Dist.] 1988, 165a(1), when a party fails to appear. Despite this no writ); Moore v. Armour & Co., 748 S.W.2d 327, 331 analogy, he asserts that such an interpretation is devoid (Tex. App.--Amarillo 1988, no writ). We agree with those of statutory support and can not support the dismissal. decisions. He contends that the standard for reinstatement set forth in 165a(3) is applicable to either ground of The standard set out in 165a(3) is essentially the same dismissal. standard as that for setting aside a default judgment. See Babcock & Wilcox Const. Co., 913 S.W.2d at 468; Rule 165a(3) and (4) address reinstatement. 165a(3) see also Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 provides that a motion to reinstate shall be verified, [*841] (Tex. App.--Fort Worth 1998, no pet.); Johnson must be filed within 30 days of the order of dismissal, v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.--Fort and requires a hearing on the motion. See TEX. R. CIV. Worth 1986, no writ) (interpreting "conscious P. 165a(3). The rule also mandates reinstatement upon indifference" as a failure to take some action which a "finding . . . that the failure of the party or his attorney person of reasonable [**11] sensibilities under the was not intentional or the result of conscious same circumstances would deem necessary). Such a indifference but was due to an accident or mistake or standard is well suited for analyzing specific instances that the failure has been otherwise reasonably of conduct. On the other hand, it does not easily lend explained." Id. itself to determining whether a party diligently prosecuted a case or whether the disposition of the 165a(4) provides that dismissal and reinstatement [**9] case complies with the supreme court's time standards procedures are cumulative of other remedies and that for disposition. Cf. Stromberg Carlson Leasing Corp., the same reinstatement procedures and timetables are 750 S.W.2d at 866. applicable to all cases dismissed for want of prosecution, even those dismissed pursuant to the Furthermore, 165a(4) is consistent with application of court's inherent authority. See TEX. R. CIV. P. 165a(4). subdivision 3 to only instances of dismissal based on a failure to appear. 165a(4) requires that the procedures We do not find Maida's contention, that the trial court and timetable, be applied to all dismissals for want of was limited to two grounds for dismissal, persuasive. In prosecution. See Eustice, 827 S.W.2d at 15. Therefore, this case, we do not interpret the instructions in the we hold that the 165a(3)'s reinstatement standard, dismissal notice to be the basis for dismissal. Rather, "conscious indifference," only applies to cases we construe the enumerated actions, in the second dismissed for failure to appear. notice, as grounds to prevent dismissal. 3 See TEX. R. CIV. P. 165a(1) (stating that once a case is on the Because Maida's argument is predicated on application dismissal docket, the court shall dismiss at the dismissal of that standard, we do not find that the trial court hearing unless there is good cause for the case to be abused its discretion in refusing to reinstate because of maintained on the docket.) appellant's lack of conscious indifference. We overrule the portion of Maida's argument dealing with Maida's reinstatement argument is predicated on the reinstatement under 165a(3). application of 165a(3)'s standard for reinstatement. However, [**10] in this case, rule 165a(3) does not provide the appropriate measure for determining B. BASIS FOR DISMISSAL whether the court should have reinstated the case. Several of our sister courts have held that 165a(3)'s 1. Dismissal Under 165a(1) standard for reinstatement only applies to cases dismissed for failure to appear. See Burton v. Hoffman, [**12] Rule 165a(1) gives a court power to dismiss for 959 S.W.2d 351, 354 (Tex. App.--Austin 1998, no pet.); want of prosecution when a party or its counsel fail to Clark v. Yarbrough, 900 S.W.2d 406, 408-09 (Tex. App.- appear at a hearing or trial. Neither the notice of -Texarkana 1995, writ denied); Eustice, 827 S.W.2d at dismissal nor the order of dismissal were based on this subdivision. Nothing indicates that either Maida or his trial counsel failed to appear at any hearing. Therefore, 3 Thatis not to say a court could not dismiss a case under its 165a(1) is not applicable. inherent power for failing to seek affirmative relief. Nicole Mitchell on February 6, 1997. The trial court dismissed 2. Dismissal Under 165a(2) the [**14] case on May 11, 1998. Thus, Maida's case was dismissed only 15 months from appearance date. In 1988, rule 165a was amended and subdivision 2 was Because, the trial court did not follow the supreme added. That subdivision authorizes a trial court to place court's disposition guidelines, it was an abuse of a case on the dismissal docket when it is not disposed discretion to dismiss on this basis. See Hosey, 832 of in accordance within the time standards prescribed by S.W.2d at 704. the supreme court. See TEX. R. CIV. P. 165a(2). Those time standards state that: 3. Dismissal Under Inherent Authority District and statutory county court judges of the county HN6[ ] A trial court also has the inherent authority to in which cases are filed should, so far as reasonably dismiss a case that has not been diligently prosecuted. possible, ensure that all cases are brought to trial or See Rotello, 671 S.W.2d at 509; Ozuna, 766 S.W.2d at final disposition in conformity with the following time 901. Whether a case has been diligently prosecuted is standards: also an issue committed to the trial court's sound discretion. See Ozuna, 766 S.W.2d at 901-02. Factors a .... trial court may consider in dismissing under its inherent b. Civil Cases Other Than Family Law. power include the length of time the case was on file, the extent of activity in the case, whether a trial setting (1) Civil Jury Cases. was requested, and the existence of reasonable excuses for delay. See King v. Holland, 884 S.W.2d Within 18 months from appearance date. 231, 237 (Tex. App.--Corpus Christi 1994, writ denied). TEX. R. JUD. ADMIN. 6, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. F app. (Vernon 1998). 4. Application of Factors In line with this provision, the [**13] Tarrant County Here, the case was on file for 17 months, still within the district courts adopted Local Rule 3.90 which provides: supreme court's guidelines. 5 During that time, the Rule 3.90: HN5[ ] Dismissal for Want of Prosecution record reflects that significant discovery occurred in the eight months [**15] following Exchange's answer, at (a) The courts will periodically give notice of their which time Maida requested the April 13, 1998 trial intention to dismiss for want of prosecution. Such notice setting. Admittedly, from the time the first trial setting will be given at least thirty (30) days prior to the signing was requested until March 18, 1998, when Boyle sought of consequent dismissal order. to withdraw, Maida only took one deposition. However, the court did not give notice of its intent to dismiss (b) The clerk shall provide notice of the court's intention during this period of inactivity. Rather, the court sent its to dismiss for want of prosecution by complying with the dismissal notice after it removed the case from its April provisions of Paragraph (1) of Rule 165a of the Texas 13 trial setting and allowed Boyle to withdraw. Rules of Civil Procedure. Prior to the April 3 hearing, Maida filed a letter opposing LOCAL RULES OF PRACTICE OF THE DISTRICT Boyle's withdrawal. In that letter, Maida stated that he COURTS OF TARRANT COUNTY RULE 3.90 (Adopted currently resided in California and that Boyle's October 2, 1990). 4 experience with the case coupled with [**16] his withdrawal, so close in time to trial, would create a [*842] Thus, the supreme court has deemed 18 hardship to timely find a new attorney and would months to be a reasonable time period for disposing of a jeopardize the case. Nonetheless, the court dismissed case like this. Exchange filed an original answer and requested a jury 5 The original petition was filed on December 26, 1996, but no answer was filed until February 1997. The period between Maida's filing of his original petition and Exchange's filing of an 4 Although captioned as the rules for district courts, rule answer accounts, in large part, for the approximate two month 1.01(a) states that these rules govern proceedings in Tarrant difference between the "17 months on file" and the "15 months County district and statutory county courts. from appearance date." Nicole Mitchell Maida's case. Under these circumstances, because (1) significant discovery had occurred in the case, (2) the case was not on file in excess of the supreme court's time standards, (3) the case had been set for trial, (4) it was continued over Maida's objection, (5) Maida lived out of state at the time of notice and dismissal, and (6) the court signed the notice of dismissal only three days after allowing Boyle to withdraw, we hold that the court abused its discretion in dismissing Maida's case under its inherent authority. See Brim Laundry Mach. Co., 854 S.W.2d at 302; Moore v. Armour & Co., 660 S.W.2d 577, 578 (Tex. App.--Amarillo 1983, no writ); William T. Jarvis Co. v. Wes-Tex Grain Co., 548 S.W.2d 775 (Tex. Civ. App.--Waco 1977, writ ref'd n.r.e.); Rorie v. Avenue Shipping Co., 414 S.W.2d 948 (Tex. Civ. App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.) (each standing for the proposition that HN7[ ] where a party is ready for trial and has secured a trial setting or is otherwise making a diligent effort to get [**17] the case to trial, the case should not be dismissed for lack of prosecution). We sustain that portion of Maida's point dealing with the court's dismissal of his case. Because we hold that the court abused its discretion in dismissing the case under its inherent authority, it was also an abuse to fail to reinstate a case improperly dismissed. Because of our disposition on this [*843] point, we do not need to address Maida's second and third points. III. CONCLUSION We hold that it was an abuse of discretion to dismiss the case for either non-compliance with the supreme court's time standards or under the court's inherent authority. We also hold that it was an abuse of discretion to fail to reinstate and reverse the trial court's judgment and remand the case to the trial court for reinstatement in accordance with this opinion. TERRIE LIVINGSTON JUSTICE PANEL A: CAYCE, C.J.; LIVINGSTON and BRIGHAM, JJ. Delivered March 25, 1999 End of Document Nicole Mitchell Caution As of: March 23, 2018 5:07 PM Z Moore v. Armour & Co. Court of Appeals of Texas, Seventh District, Amarillo October 19, 1983 No. 07-81-0282-CV Reporter want of prosecution. The court held that appellant's JOHNNY MOORE, Appellant v. ARMOUR & request and readiness for trial at the time of the COMPANY, INC., AND JOE LEE BROWNING, dismissal forbade its dismissal for lack of prosecution. Appellees The court therefore remanded the cause for reinstatement on the docket of the trial court. Prior History: [**1] From the District Court of Lubbock County; 140th Judicial District; No. 59,334; Outcome Honorable William R. Shaver, Judge. The court reversed a trial court decision dismissing appellant's personal injury suit against appellees for lack Core Terms of prosecution. The court held that the trial court abused its discretion in dismissing the case. The court therefore trial court, lack of prosecution, announced, abused, time remanded the cause for reinstatement on the docket of of dismissal, trial setting, contending, reinstated, ref'd the trial court. Case Summary LexisNexis® Headnotes Procedural Posture Appellant sought review of a decision of the District Court of Lubbock County, 140th Judicial District, Texas, dismissing, for lack of prosecution, appellant's personal Civil Procedure > Dismissal > Involuntary injury suit against appellees. Appellant argued that the Dismissals > Failure to Prosecute trial court abused its discretion in dismissing the case. Criminal Law & Procedure > ... > Standards of Overview Review > Abuse of Discretion > General Overview Appellant filed suit against appellees, contending he was seriously injured in an auto-truck collision Civil Procedure > Dismissal > Involuntary negligently caused by appellee driver. After appellees Dismissals > General Overview answered, there was no activity in the case and the trial court dismissed it. However, pursuant to a motion by Civil Procedure > Dismissal > Involuntary appellant, the case was subsequently reinstated. Dismissals > Appellate Review Thereafter, there was sporadic activity, including unsuccessful attempts to depose appellee driver. Civil Procedure > ... > Pretrial Appellees filed a motion to dismiss for lack of Judgments > Nonsuits > Voluntary Nonsuits prosecution. The case was subsequently set for trial and appellant announced ready at a docket call. The case HN1[ ] Involuntary Dismissals, Failure to was eighth on the jury docket, however, and was not Prosecute reached for trial that week. A few days later, the trial court heard and granted the motion by appellees to A trial court has express power, Tex. R. Civ. P. 165a, dismiss the case for lack of prosecution. The court and inherent power to dismiss a case for lack of reversed the trial court decision, finding that the trial prosecution. When that occurs, the only question for court abused its discretion in dismissing the case for review is whether the trial court abused its discretion. In Nicole Mitchell resolving that question, the appellate court was not reached for trial that week. A few days later, on acknowledges that the trial court is entitled to consider September 18, 1981, the trial court heard and granted the entire history of the case, and the plaintiff's assertion the motion by Armour and Browning to dismiss the case at a dismissal hearing that he did not intend to abandon for lack of prosecution. the case is immaterial. Where, however, at the time of the dismissal hearing the plaintiff has announced ready By a single point of error, Moore contends the trial court for trial and has secured a trial setting or is otherwise abused its discretion in dismissing the case for want of making a diligent effort to get the case to trial, the case prosecution. He argues that, regardless of his should not be dismissed for lack of prosecution. inattention to the case in the past, his request and readiness for trial at the time of the dismissal forbad its Counsel: Mr. E. Warren Goss, Goss, Hale and Wells, dismissal for lack of prosecution. We must agree. P.C., Lubbock, Texas, for Appellant. All parties agree that HN1[ ] a trial court has both Mr. James L. Wharton, Jones, Trout, Flygare, Moody & express power, Tex. R. Civ. P. 165a, and inherent Brown, Lubbock, Texas, for Appellees. power, Bevil [**3] v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957), to dismiss a case for lack of Judges: Richard N. Countiss, Associate Justice. prosecution. When that occurs, the only question for Reynolds, J. review is whether the trial court abused its discretion. In resolving that question, we acknowledge that the trial Opinion by: COUNTISS court is entitled to consider the entire history of the case, see Denton County v. Brammer, 361 S.W.2d 198, Opinion 201 (Tex. 1962), and the plaintiff's assertion at a dismissal hearing that he did not intend to abandon the case is immaterial. Reed v. Reed, 158 Tex. 298, 311 [*577] This appeal is from a judgment dismissing, for S.W.2d 628, 630 (1958); Gaebler v. Harris, 625 S.W.2d lack of prosecution, appellant Johnny Moore's personal 5, 6-7 (Tex. Civ. App. -- San Antonio 1981, no writ). injury suit against appellees Armour & Company and Where, however, at the time of the dismissal hearing the Joe Lee Browning. The single issue before us is plaintiff has announced ready for trial and has secured a whether the trial court abused its discretion [*578] in trial setting or is otherwise making a diligent effort to get dismissing the case. We conclude that it did and the case to trial, the case should not be dismissed for reverse and remand. lack of prosecution. Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ. App. -- Houston 1967, writ On February 7, 1969, Moore filed suit against Armour ref'd n.r.e.); see also Wm. T. Jarvis Co. v. Wes-Tex and its alleged employee Browning, contending he was Grain Co., 548 S.W.2d 775, 778 (Tex. Civ. App. -- Waco seriously injured in an auto-truck collision negligently 1977, writ ref'd n.r.e.). caused by Browning. After the defendants answered, there was no activity in the case and it was dismissed In this case, Moore had announced ready, secured a by the trial court in December of 1976. However, trial setting [**4] and, as this record affirmatively pursuant to a motion by Moore, it was reinstated in reflects, stood ready to go to trial when his case was February of 1977. dismissed. We conclude that a dismissal under those circumstances is an abuse of discretion. Point of error Between April of 1979 and March of 1980, there was one is sustained. sporadic activity, [**2] including unsuccessful attempts to depose Browning who has disappeared. In August The judgment of the trial court is reversed and the case 1980, Armour and Browning filed a motion to dismiss for is remanded for reinstatement on the docket of the trial lack of prosecution. Soon thereafter Moore's present court. attorney, the latest of several, was employed and in December of 1980, he asked the trial court to set the case for trial "at your earliest convenience on your next End of Document jury docket." The case was subsequently set for trial during the week of September 8, 1981, and Moore announced ready at a September 4, 1981 docket call. The case was eighth on the jury docket, however, and Nicole Mitchell Caution As of: March 23, 2018 5:07 PM Z Rorie v. Avenue Shipping Co. Court of Civil Appeals of Texas, First District, Houston April 27, 1967 No. 14986 Reporter the case for a trial on its merits. The court found that the C. V. Rorie, Appellant v. Avenue Shipping Co., Ltd., et time just before the dismissal controlled the question of al, Appellees abandonment of the prosecution and that appellant's attorney had demonstrated good cause for the Subsequent History: [**1] N.R.E. unreasonable delay. Although several witnesses died Prior History: Appeal from District Court of Galveston during the delay, appellees did not object during that County time and did not attempt to procure testimony from the witnesses during the four-year delay. Core Terms Outcome The court reversed the dismissal of appellant ship, appellees, vessel, want of prosecution, motion to longshoreman's personal injury action against dismiss, prosecute, deposition, diligence, notice, cause appellees, ship owner and city, for want of prosecution of action, longshoreman, attorneys, operators, original and remanded the case for a trial on its merits. The petition, trial court, cross-action, stevedore's, court found that appellant's delay in bringing the case to announced, cases trial was reasonable because he was waiting for the outcome of a pending compensation claim. Also, Case Summary appellees did not object during the delay or interview witnesses during that time. Procedural Posture Appellant longshoreman sought review of the decision LexisNexis® Headnotes of the District Court of Galveston County (Texas), which denied his motion for a reconsideration of the dismissal of his personal injury action against appellees, ship owner and city. The district court dismissed appellant's for delay in prosecution. Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Overview Appellant longshoreman suffered personal injuries while Civil Procedure > ... > Pretrial unloading ore from a ship that was owned by appellee Judgments > Nonsuits > Voluntary Nonsuits ship owner. Appellant filed a personal injury action against appellees, ship owner and city. No action was HN1[ ] Dismissal, Involuntary Dismissals taken for four years, during which time appellant was pursuing a compensation claim under the The want of action at the time of or just before the Longshoremen's & Harbor Workers' Act. The district dismissal controls on the question of abandonment of court retained the case on the docket once it learned of the prosecution. In passing on a motion to dismiss on the other pending action, but then ultimately dismissed the grounds of abandonment the lack of action at the the action for delay in prosecution. Appellant's attorney time of the presentation of the motion or just before the had been busy with the action just before the dismissal. presentation governs the court's decision. Appellant's motion for reconsideration was denied. The appellate court reversed the dismissal and remanded Nicole Mitchell Civil Procedure > Dismissal > Involuntary of law. Dismissals > Failure to Prosecute Civil Procedure > ... > Responses > Defenses, Civil Procedure > Dismissal > Involuntary Demurrers & Objections > Motions to Dismiss Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Dismissals > General Overview Civil Procedure > Dismissal > Involuntary HN5[ ] Involuntary Dismissals, Failure to Dismissals > Motions Prosecute HN2[ ] Involuntary Dismissals, Failure to In the absence of a statutory prohibition, every court has Prosecute the power to dismiss a suit for want of prosecution. A motion to dismiss for want of prosecution should not be granted if at the time of the motion plaintiff is diligently prosecuting his claim, even though at some Civil Procedure > Appeals > Standards of prior period of time he had been guilty of gross Review > Abuse of Discretion negligence or neglect. Civil Procedure > Judgments > Relief From Judgments > General Overview Civil Procedure > Dismissal > Involuntary Civil Procedure > Judgments > Relief From Dismissals > General Overview Judgments > Motions for New Trials HN3[ ] Dismissal, Involuntary Dismissals HN6[ ] Standards of Review, Abuse of Discretion A suit may be dismissed for lack of diligence in its With respect to a motion for new trial, the fact that prosecution in the past, although the plaintiff's respondents have no intention to abandon it, or that objections to the dismissal at the hearing thereon their attorney has hopes of settling the case, cannot be manifest his intention to prosecute it to judgment. made a ground for charging an abuse of discretion by the trial court in dismissing the case. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss HN7[ ] Dismissal, Involuntary Dismissals Civil Procedure > Judgments > Relief From Where the defendant in a suit is called to answer and Judgments > General Overview has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a Civil Procedure > Judgments > Relief From conclusion with reasonable diligence, and whenever a Judgments > Motions for New Trials delay of an unreasonable duration occurs, such delay, if not sufficiently explained, raises a conclusive HN4[ ] Standards of Review, Abuse of Discretion presumption of abandonment of the plaintiff's suit, and a With respect to dismissal of a motion for new trial or an discontinuance results. independent suit, the matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Admiralty & Maritime Law > Maritime Personal Upon review, the question is whether there was a clear Injuries > Maritime Tort Actions > General Overview abuse of discretion by the trial court. That is a question Nicole Mitchell Admiralty & Maritime Law > Maritime Workers' 1965. Claims > General Overview On August 5, 1965, the court sent out notices to counsel HN8[ ] Maritime Personal Injuries, Maritime Tort for all parties except Strachan that the case would be Actions dismissed for want of prosecution at the call of the dismissal docket on October 6, 1965 unless good cause A longshoreman cannot recover for injuries sustained by was shown in open court at such time why said cause him against the owner of the ship when the equipment should not be dismissed. Upon receipt of said notice causing the injury is shore-based and not of the type appellant's counsel in writing on September 27, 1965 commonly found as a part of the gear that the ship requested the court not to dismiss the cause of action would be expected to furnish. for the reason that the case was not brought to trial prior to the date of such notice because of the then existing Judges: Ewing Werlein, Associate Justice. Associate pending claim for compensation under Title 33, Section Justice Coleman not sitting. 901 et seq., generally known as the Longshoremen's & Harbor Workers' Act. It was also [**3] stated, "It was felt Opinion by: WERLEIN that this would seriously jeopardize plaintiff's case if a compensation claim would not be disposed of first. This Opinion is to advise you that this claim had been disposed of by an award by the Honorable C. D. Calbeck, United States Deputy Commissioner, and, therefore, the case can now go to trial without prejudice to the rights he had [*949] On Motion For Rehearing under the Act. Our Mr. Kirtley is now requesting the WERLEIN, Justice. case for trial for your next jury assignment. Every effort is being made to dispose of this case by that date." As a On motion for rehearing appellant's motion for leave to result of such communication, the court retained the file supplemental transcript is granted and this Court's case upon the docket of the court. There was no opinion handed down on March 30, 1967 is withdrawn objection or exception to the court's action by any of the and the following opinion is substituted therefor. parties to the suit. Thereafter there was great activity in connection with the prosecution of the suit up to the time This is an appeal from a judgment entered July 12, 1966 it was dismissed. dismissing for want of prosecution appellant's cause of action brought to recover damages for personal injuries On December 14, 1965, as shown by the court's docket sustained by him on September 6, 1960 while working sheet, appellant requested a setting of the case for trial as a longshoreman in the hold of the SS Armagh on the jury [*950] docket in the December, 1965, term assisting in unloading bulk ore from such vessel. of court, and sent copies of such request to appellees, Appellant filed suit on March 24, 1961 against the City City of Galveston and Avenue. On December 23, 1965, of Galveston and the owners and operators of the ship, the suit was continued by agreement. Appellant did not Avenue Shipping Co., Ltd. and Trinder Anderson & sue Strachan since such company was his Company, Ltd., both foreign corporations, sometimes employer [**4] and he was covered under the United herein called Avenue, inasmuch as their positions in this States Longshoremen's & Harbor Workers' Act. litigation are identical. Said appellees were duly served Dismissal notices were again sent out by the court in with citation and answered. On March 27, 1961 March, 1966. On March 28, 1966 appellant requested a appellant demanded a jury and on April 13, 1961 filed setting for the April term. On April 1, 1966 the attorney his first amended [**2] original petition. On petition of for the City of Galveston notified appellant's attorneys Avenue, the suit was removed to the United States that the court had set a pretrial hearing of the case for District Court. It was remanded to the State court on April 8, and that the case was at the top of the docket motion of the City of Galveston on May 29, 1961. On for trial during the week of April 25, 1966. On April 8, September 14, 1961 Strachan Shipping Company, 1966, the case was continued on motion of appellees. In appellant's employer, the contract stevedore, sometimes said letter of April 1, 1966, counsel for the City of called herein Strachan, filed its answer to the cross- Galveston also stated that he would appreciate action filed against it by the City of Galveston. The appellant's counsel picking a day within the next two court's docket sheet shows that no action whatever was weeks that he could furnish appellant for the purpose of taken in the case from May 29, 1961 until August 5, taking his deposition. On April 4, 1966, counsel for Nicole Mitchell appellant notified counsel for appellees that he could adduced consisting of the testimony of the attorneys present appellant for deposition at any time upon giving representing appellant and appellees. The attorney for appellant's counsel two to three days' notice. the City of Galveston testified in substance that this suit [**7] grew out of an accident involving a crane On May 10, 1966, counsel for appellant wrote the court which was owned by The Galveston Wharves and that advising that the last time he appeared before the court, the operator of the crane, Frank McPeters, died on May the court had set the case down for trial on June 27, 8, 1965; that he had not talked to McPeters but had 1966 and for a pretrial hearing on June 10, 1966, and obtained a statement made by him; that he received a also advising that appellant [**5] would be ready to try notice that the case was set for dismissal in October, the case on June 27, 1966. On June 10, 1966, the plea 1965, and as he remembered [*951] the court allowed in abatement filed by the City of Galveston was it to stay on the docket at that time and that he did not overruled. On the same day the City filed its motion to object to the court's order doing so. dismiss and such motion was set for hearing on June 17, 1966. Strachan's and Avenue's motions to dismiss The attorney for Strachan testified in substance that also came up for hearing on June 17, 1966. After shortly after the cross-action was filed against Strachan hearing such motions and appellant's motion to he made a trip to Galveston and talked to a gentleman reconsider such motions to dismiss, filed by appellant named Calvin Floeck who was at that time an assistant on June 23, 1966, the court entered an order on July 12, stevedoring superintendent for Strachan, and obtained 1966 dismissing the cause of action and all cross- from him his evaluation and the circumstances of the actions. accident; that after this case was set on the dismissal docket in February, 1966, Mr. Floeck died; that he had The record shows further that on April 6, 1966 appellant been informed approximately six weeks ago that Mr. H. filed what is denominated "Plaintiff's First Amended Weber, who was gang foreman of Strachan at the time Original Petition" which in fact was his second amended of the accident, died during the latter part of 1965. original petition, since his first amended original petition was filed April 13, 1961. On May 12, 1966, appellant The attorney for Avenue testified in substance that filed his request for admissions addressed to the City of according to the records he had investigated, the SS Galveston and/or its attorneys by name, and on the Armagh was sold in 1961 and according [**8] to Lloyd's same day made request of Avenue for admissions. On List Reports on June 2, 1966 such vessel was in the Far May 12, 1966, appellant's counsel filed an answer to the East operating between Hong Kong and Japanese plea in abatement of the City of Galveston. On May 20, ports; that in his opinion there was no practical or 1966, the City of Galveston filed its reply to appellant's feasible way to have reliable people board the vessel to request for admissions. On May 27, 1966, [**6] ascertain certain conditions of her structure, especially appellant filed his third amended original petition. On in connection with Hold No. 5 in which appellant was June 10, 1966, Strachan filed its answer to the cross- working on the occasion in question; that after the action of Avenue. On May 16, 1966, there was filed in deposition of appellant was taken on April 12, 1966 it the court a stipulation of a compensation lien which was became obvious to Avenue that the physical setup in executed by the lawyers representing all the parties in the hold and its height and dimensions were material in the suit; on April 8, 1966, Avenue filed its first amended the case inasmuch as the attorney for appellant and original answer and cross-action against the City of appellant were primarily basing their cause of action Galveston, and impleaded Strachan; on May 12, 1966 against Avenue on the ground of failure of the appellant filed his exceptions to the answer of Avenue, stevedores to use mechanical equipment in the hold, which appellant asserts in his brief were discussed with which Avenue had reason to believe would not have the attorneys for Avenue who agreed that the been practical because of the size of the hold and the exceptions were good and who stated they would file an shaft alley which bisected it; that they were not given amended answer setting out specifically acts of notice in appellant's original and first amended petitions contributory negligence on the part of appellant. The that this was a specific ground of liability, and it was only case was set for trial three times and at each setting after appellant gave his deposition that they felt such appellant announced ready for trial. On April 12, 1966, physical conditions were pertinent; that he had written appellant's deposition was taken. On May 18, 1966, the his clients in England but that he had not as yet deposition of the witness, W. L. Patterson, was taken. been [**9] successful in getting any response; that they had no statements with information from the officers At the hearing of the motions to dismiss, evidence was aboard the ship; that in order to show that the Nicole Mitchell operations in question were not performed in any stated it would permit appellant to offer testimony to manner which would render the ship liable, it would be explain the delay. necessary to look to the testimony of employees of the City of Galveston and employees of Strachan, because One of appellant's attorneys testified as to other it was clear from appellant himself that the vessel's litigation of his firm and as to appellant's claim under the personnel did not participate in any of the operations Longshoremen's & Harbor Workers' Act. He undertook alleged to have caused appellant's injury. to explain the delay prior to the dismissal notice of August, 1965, by saying that appellant's counsel He also testified that Lloyd's Registry states the place deemed it advisable to secure appellant's compensation where the ship was built, but he had not contacted the rights before proceeding with the third party case, vessel's builder to determine whether the blueprints and although he admitted there was no legal reason why diagrams of the vessel were available; that in December both claims could not be prosecuted at the same time. he did not object to the case remaining on the docket; that he did not attend the hearing of the setting of the At the conclusion of the hearing on June 17, 1966, the case in March or April, 1966, when it was set again for court stated that it granted the motions for dismissal and dismissal, and that it was his impression that the April 6 found that appellant had failed [**12] to show good setting was taken off the show-cause docket; and that grounds for the delay in the trial of the case, and also the attorney for Strachan had obtained a capacity plan that appellees had been prejudiced thereby. On June of the vessel, or a sister vessel, from the ship builders 23, 1966, appellant filed his motion to reconsider and had given him a copy of that, but it did not supply appellees' motions to dismiss for want of prosecution, the information [**10] with respect to the dimensions of which motion was inadvertently omitted by the District the cargo hold in question or of the shaft alley which Clerk of Galveston County from the transcript filed bisects it or any longitudinal bulkheads in the hold which herein although the affidavit of Mr. Mandell, counsel for he considered material to the question as to the manner appellant, attached thereto, was included in the of discharging the particular cargo. transcript. Such motion is contained in the supplemental transcript now before us. After hearing appellees' testimony, the court stated that no action was taken in the case from May 29, 1961, until Appellant's point of error is: "In passing on a motion to August, 1965, when dismissal cards were sent to all dismiss for want of prosecution, the lack of action at a parties informing them that all cases which had been on time of or shortly before presentation of the motion to the docket more than three years would be set up for dismiss governs the court's action." Appellant in his brief dismissal on October 6, 1965, and that when such does not assert, other than by implication, that the court docket was called on that date Mr. Mandell or a member erred or abused its discretion in dismissing the case. of his firm was present and stated that they did not wish Nevertheless, appellant has made it clear in his brief the case dismissed and would proceed with it in the that he is complaining of the court's action in dismissing near future, and requested a setting for the December his cause of action and in denying him the valuable right term; that on December 14, 1965, at the call of the to a trial on the merits under the facts and docket it appeared [*952] to the court from the circumstances developed at the hearing of appellees' information available and discussions with the attorneys motions to dismiss and his motion for rehearing. that the case was not ready for trial, and it was It is appellant's [**13] contention, as set out in his brief continued by agreement. The court further stated that that neither the trial court nor this Court should consider no action was taken thereafter until the dismissal docket any delay in the case at bar from May 29, 1961 until was set up in March, 1966, for April 6, and that in the October 6, 1965, since the court at such latter date meantime appellant's firm submitted [**11] a request for retained the case on its docket, thereby indicating that it setting on March 28 for the April term; that the case was found there was good cause for the delay up to such put on the docket for the April term and upon the call of date. In Chapman v. Gibson, 8 S.W. 2d 711, the docket on April 8 was continued again after Tex.Civ.App. 1928, the court said: "HN1[ ] The want of considerable discussion among the lawyers and the action at the time of or just before the dismissal would court, and thereupon appellant again requested it be set control on the question of abandonment of the for the June term of court; and that at the call of the prosecution." Also in David Graham Hall Foundation v. docket on June 10, 1966, appellant announced ready. Highland Park Independent School District, 371 S.W. 2d The court then found as a matter of law that the case 762, Tex.Civ.App. 1963, ref., n.r.e., the court, citing had been on file for an unreasonable length of time but Nicole Mitchell Chapman v. Gibson, stated: "In passing on a motion to Chief Justice Hickman, used the following language dismiss on the grounds of abandonment the lack of HN4[ ] with respect to dismissal of a motion for new action at the time of the presentation of the motion or trial or an independent suit: just before the presentation will govern the court's decision." That case was an action for delinquent ad "The matter rests in the sound discretion of the trial valorem taxes. When the suit was originally filed in 1942 court. It is not an unbridled discretion, but a judicial only the taxes for the year 1941 were in question. When discretion subject to review. Upon review, the the school district and the town filed their amended question is whether there [**16] was a clear abuse pleadings in 1958 they sued for additional taxes which of discretion by the trial court. That is a question of had accrued up to the year 1958. The State [**14] and law. It is thought that only two decisions by this County appeared by intervention for the first time in court need be cited in support of the rule just 1959. announced. However, there are many Texas cases cited in support thereof in 15-A Texas Based upon the case of Ayers v. D. F. Quillen & Sons, Jurisprudence, p. 383, § 41. In the First National Inc., Del. Sup., 55 Del. 481, 188 A. 2d 510, the following Bank of Houston v. Fox, 121 Tex. 7, 39 S.W. 2d statement is made in [*953] 24 Am. Jur. 2d 51, § 59: 1085, 1086, this court held: "HN2[ ] A motion to dismiss for want of prosecution should not be granted if at the time of the motion plaintiff "'It is a well-established rule that HN5[ ] in the is diligently prosecuting his claim, even though at some absence of a statutory prohibition, every court has prior period of time he had been guilty of gross the power to dismiss a suit for want of prosecution. negligence or neglect." It is our view that after appellees 9 R.C.L., p. 206, § 25; 18 C.J. 1191, 1192, § 110; filed their motions to dismiss the case for want of Hall v. City of Austin, 31 Tex.Civ.App. 626, 73 S.W. prosecution, the court in considering such motions was 32.'" not restricted to what had occurred subsequent to October 6, 1965, but could also consider any delay The court further stated, HN6[ ] with respect to such which occurred prior to that date as well as all of the motion for new trial: "The fact that respondents had no evidence adduced upon the hearing of such motions. intention to abandon it, or that their attorney had hopes of settling the case, cannot be made a ground for Our Supreme Court has held that HN3[ ] a suit may be charging an abuse of discretion by the trial court. . . . dismissed for lack of diligence in its prosecution in the Petitioners owed no duty to seek a hearing on past, although the plaintiff's objections to the dismissal respondents' motion." at the hearing thereon manifest his intention to prosecute it to judgment. Reed v. Reed, Tex. Sup. In Callahan v. Staples, 139 Tex. 8, 161 S.W. 2d 489, 1958, 158 Tex. 298, 311 S.W. 2d 628; Bevil v. Johnson, our Supreme Court announced the general rule in this Tex. Sup. 1957, 157 Tex. 621, 307 S.W. 2d 85; Denton language: County [**15] v. Brammer, Tex. Sup. 1962, 361 S.W. "Such rule as so developed and applied may be 2d 198. In the early case of Roemer v. Shackelford, Tex.Civ.App., 23 S.W. 87, however, Justice Williams, in explained in these words: HN7[ ] Where the defendant [**17] in a suit is called to answer and speaking for the Court of Civil Appeals, stated: "There has responded to the call, the duty devolves on the was no error in the refusal of the court to dismiss the plaintiff to proceed in prosecuting the suit to a suit in 1889 for want of prosecution. The plaintiffs were conclusion with reasonable diligence, and prosecuting it, continuances being entered from term to whenever a delay of an unreasonable duration term, generally by agreement. If sufficient diligence was occurs, such delay, if not sufficiently explained, will not being used, defendants' remedy was to force raise a conclusive presumption of abandonment of plaintiffs to a trial, and not to dismiss for want of the plaintiff's suit, and a discontinuance results." prosecution when plaintiffs appeared to represent their See also Crosby v. DiPalma, 141 S.W. 321, cause." Appellant, in relying on Roemer v. Shackelford, Tex.Civ.App. 1911, error refused. supra, and Beasley v. Keck, 280 S.W. 855, Tex.Civ.App. 1926, asserts that appellees' remedy was [*954] It is our view that the instant case is factually to force appellant to trial, and not to have the suit distinguishable from the cases of Reed v. Reed, supra; dismissed for want of prosecution. Bevil v. Johnson, supra, and Denton County v. In Bevil v. Johnson, supra, the court, speaking through Brammer, supra. In Reed v. Reed, supra, the court Nicole Mitchell stated in substance that a suit may properly be of the ship from Galveston and its sale in all probability dismissed for past lack of diligence in its prosecution, made it just as difficult to obtain evidence from the not withstanding that the plaintiff's objection to the owners and operators thereof in 1961 as in 1965 or dismissal at the time of the corresponding hearing was 1966. It was not shown when counsel wrote his clients in effect a manifestation of his intent to prosecute the to obtain information. He requested no postponement suit to judgment. In the Reed case citation was not nor did he file any application for continuance in [**20] issued for a period of almost fifteen months after the suit order to have time to procure evidence from the owners was filed. In the instant case citation was promptly or operators with respect to the structure of the vessel issued and served. Furthermore, appellant did not and its hold and the nature and condition of the merely express an intention to prosecute [**18] the equipment used on the occasion in question. case. Appellant had been diligently prosecuting the case for approximately eight months prior to its dismissal. In We have examined the cases cited by appellee. In none Bevil v. Johnson, supra, there was no activity in the of them was there any activity for a substantial period of case for a period of some eight years. In Denton County time prior to the filing of the motion to dismiss. In the v. Brammer, supra, a condemnation suit, there was an instant case there was not only great activity for a period unexplained delay of seven years in the issuance and of nearly eight months prior to the time the suit was service of citation upon the condemnor, and an dismissed, but there was a diligent effort on the part of unexplained delay of five years following the appellant to bring the case to trial. He announced ready condemnees' withdrawal of the award before the for trial on three different occasions. This fact condemnees obtained a setting and trial of the case. distinguishes the instant case from the cases relied upon by appellees. It is our view that it was error and an abuse of discretion to dismiss appellant's cause of action under the peculiar The record indicates that appellant's counsel was acting facts and circumstances of this case. The testimony of in good faith in an effort to best serve his client by not counsel for the City of Galveston shows that the sooner [*955] pressing for trial. Although this suit might operator of the crane, McPeters, died on May 8, 1965. have been tried prior to the settlement of appellant's No attempt had been made to take the deposition of claim for compensation in 1965 under the United States McPeters. Moreover, all of the 8 months' activity in the Longshoremen's and Harbor Workers' Compensation suit occurred after the death of McPeters without Act, appellant's attorney felt that it would be in the best objection on the part of such counsel. interest of his client not to try the case until his client had reached the [**21] maximum state of recovery and Counsel for Strachan did not make any attempt to take the compensation claim had been disposed of. We are the deposition of Floeck or Weber. It is true that it has also of the opinion that appellant showed reasonable been held in this State that where a defendant has been grounds for not sooner pressing for trial in that there called upon to answer in a law [**19] suit, the duty was a serious question prior to 1965 as to the liability of devolves upon the plaintiff to prosecute the suit a ship owner for injuries to a longshoreman resulting diligently. This does not mean that the defendant should from the use of shore-based equipment. It had been not also prepare his defense diligently by procuring the held by several Federal courts that HN8[ ] a testimony of witnesses upon whom he relies. There is longshoreman could not recover for injuries sustained no reason why appellant should be charged with the by him against the owner of the ship when the loss of Strachan's witnesses as he had no more reason equipment causing the injury was shore-based and not to expect their deaths than did appellees. Nor was it of the type commonly found as a part of the gear that shown that other witnesses were not available who the ship would be expected to furnish. In McKnight v. N. could give substantially the same evidence as Floeck M. Paterson & Sons, Ltd., 181 F. Supp. 434, the court and Weber. held that where an independent contractor used a crane that was not an appurtenance of the ship, and the ship Counsel for Avenue failed to show that the evidence owner had no control over the choice of the crane, the concerning the structure of the ship and its hold could defect in the crane which resulted in injury did not not be obtained from the builders of the ship. Again no render the vessel unseaworthy and the longshoreman effort was made to take the depositions of any of the was not entitled to recover from the vessel owner on the owners or operators of the ship. Furthermore, the ship basis of unseaworthiness. This judgment was affirmed left Galveston sometime after the occurrence in by the U.S. Circuit Court of Appeals, 6th Cir., 286 F.2d question and was sold in the year 1961. The departure 250. Nicole Mitchell Appellant's counsel states that he was aware of [**22] the fact that there was pending in the U.S. District Court of California the case of Huff v. Matson Navigation Co., 225 F. Supp. 72 (1963). The judgment in such case was reversed by the U.S. Circuit Court of Appeals, 338 F.2d 205, 9th Cir. 1964, and certiorari was denied by the Supreme Court of the United States, 380 U.S. 943, 85 S. Ct. 1026, 13 L. Ed. 2d 963, on March 15, 1965. This case held that the liability of the owner of the vessel to the stevedore's longshoreman who was injured when hit in the hold of a vessel by a scraper which was a part of the stevedore's dockside crane used to unload bulk sugar from the vessel, could be predicated on a claim of unseaworthiness. Thus, the question as to the liability of the ship owner for shore-based equipment was not resolved until 1965. Appellant's counsel states that his duty to his client would have been substantially impaired had he prosecuted his client's suit prior to the time that such law question had been finally decided by the Supreme Court of the United States. See Spann v. Lauritzen, 344 F.2d 204 (3rd Cir. 1965) reversing the judgment of the U.S. District Court, 237 F. Supp. 569, certiorari denied 382 U.S. 1000, 86 S. Ct. 531, [**23] 15 L. Ed. 2d 489 (1966), holding the ship owner responsible for a longshoreman's injuries caused by a shore-based crane. See also Deffes v. Federal Barge Lines, Inc., 361 F.2d 422 (Ct. of App., 5th Cir. 1966). It is our view that appellant showed reasonable grounds for delay in bringing the case to trial in view of the unsettled state of the law prior to 1965. We are of the opinion also that the case should not have been dismissed for want of prosecution in view of the tremendous amount of activity in the case for some eight months prior to its dismissal, during which time none of the appellees or their counsel objected but instead measurably participated. Judgment of the Trial Court is reversed and the cause is remanded for trial on its merits. Associate Justice Coleman not sitting. End of Document Nicole Mitchell Warning As of: March 23, 2018 5:07 PM Z State v. Rotello Supreme Court of Texas June 6, 1984 No. C-2816 Reporter 671 S.W.2d 507 *; 1984 Tex. LEXIS 356 **; 27 Tex. Sup. J. 407 their motion to reinstate the case, which the trial court THE STATE OF TEXAS, Petitioner v. TOM ROTELLO denied. In reversing the judgment of the court of ET UX., Respondents appeals, the court determined that the trial court did not abuse its discretion in dismissing the case where it had Subsequent History: [**1] Rehearing Denied July 11, been pending for 15 years with little activity and was still 1984. not ready for trial. Prior History: FROM BRAZOS COUNTY Outcome FOURTEENTH DISTRICT. The court reversed the judgment of the court of appeals and affirmed the trial court's judgment dismissing the Core Terms landowners' case. trial court, notice, reinstate, want of prosecution, local rule, courts, ref'd LexisNexis® Headnotes Case Summary Procedural Posture Civil Procedure > Dismissal > Involuntary Petitioner State of Texas sought review of an order of Dismissals > Failure to Prosecute the court of appeals of Brazos County, Fourteenth District (Texas), which reversed the trial court's Civil Procedure > Dismissal > Involuntary judgment of dismissal for want of prosecution in an Dismissals > General Overview action filed by respondent landowners in which they sought an injunction and damages for inverse Civil Procedure > Dismissal > Involuntary condemnation relating to the flooding of their land. Dismissals > Hearings on Dismissal Overview HN1[ ] Involuntary Dismissals, Failure to The landowners filed suit against the State for inverse Prosecute condemnation. On remand from a previous appeal, the trial court dismissed the action for want of prosecution. Pursuant to Brazos County, Tex., Ct. R. 11-1, there The court of appeals reversed. On appeal, the court shall be a dismissal docket each April and October. The found that Brazos County, Tex., Ct. R. 11-1 provided rule further provides that cases that have been on file that there was a dismissal docket each April and over two years which are not set for trial or other October in which cases could be dismissed for lack of hearing shall be set for hearing for all parties to show prosecution. The landowners contended that they did cause why same should not be dismissed for want of not receive notice that the matter was on the dismissal prosecution; and without good cause shown, at or docket. However, they were charged with notice of the before such hearing such cases will be dismissed by the intent to dismiss by their attorney's knowledge of the court for want of prosecution without further notice. This local rule. The landowners had also been given prompt rule shall constitute notice of such hearings, and notice of the order of dismissal and, within 30 days after counsel shall keep informed as to the length of time it was signed, a full evidentiary hearing was held on each of their cases have been on file. Nicole Mitchell 671 S.W.2d 507, *507; 1984 Tex. LEXIS 356, **1 Civil Procedure > Dismissal > Involuntary [*507] On August 7, 1969, Tom Rotello and wife filed Dismissals > Appellate Review suit against the State of Texas seeking damages for inverse condemnation relating to the flooding of their Criminal Law & Procedure > ... > Standards of land and also seeking an injunction. Review > Abuse of Discretion > General Overview In 1972, the case was dismissed for want of Civil Procedure > Dismissal > Involuntary prosecution, but this dismissal was reversed and the Dismissals > General Overview case was remanded for trial. See Rotello v. State, 492 S.W.2d 347 (Tex. Civ. App. -- Houston [1st Dist.]), writ Civil Procedure > Dismissal > Involuntary ref'd n.r.e. per curiam, 497 S.W.2d 290 (Tex. 1973). It Dismissals > Failure to Prosecute was again dismissed for want of prosecution on July 30, 1982. The court of appeals reversed the trial court's Governments > Courts > Authority to Adjudicate judgment of dismissal and remanded the case to the trial court. 666 S.W.2d 194. We reverse [*508] the HN2[ ] Involuntary Dismissals, Appellate Review judgment of the court of appeals and affirm the trial court judgment. A trial court has the inherent power to dismiss cases not prosecuted with due diligence. The principal question presented is whether the Rotellos were afforded due process. Specifically, the inquiry is whether the Rotellos were given adequate notice of the trial court's intention to dismiss their case and, if not, Civil Procedure > Appeals > Standards of whether the Rotellos were given [**2] due process by Review > Abuse of Discretion the hearing on their motion for reinstatement. Finally, we must decide whether the trial court's order of dismissal Criminal Law & Procedure > ... > Standards of was an abuse of discretion. Review > Abuse of Discretion > General Overview This case was dismissed HN1[ ] pursuant to rule 11-1 Civil Procedure > Judicial of the local rules of the district courts of Brazos County. Officers > Judges > Discretionary Powers This rule provides in part that there shall be a dismissal docket each April and October. The rule further Civil Procedure > Dismissal > Involuntary provides: Dismissals > General Overview Cases that have been on file over two (2) years Civil Procedure > Dismissal > Involuntary which are not set for trial or other hearing SHALL Dismissals > Failure to Prosecute BE SET FOR HEARING for all parties to show cause why same should not be dismissed for want HN3[ ] Standards of Review, Abuse of Discretion of prosecution; and without good cause shown, at or before such hearing such cases will be The matter of whether to dismiss a case for want of dismissed by the Court for want of prosecution prosecution rests in the sound discretion of the trial without further notice . . . . This Rule shall court. It is not an unbridled discretion, but a judicial constitute notice of such hearings, and counsel . . . discretion subject to review. Upon review, the question shall keep informed as to the length of time each of is whether there was a clear abuse of discretion by the their cases have been on file. (emphasis added). trial court. This rule was adopted by the district courts of Brazos Judges: Charles W. Barrow, Justice. Sears McGee, County prior to April 1979 and was in effect at the time Justice. of this dismissal. This case was placed on the April 1982 dismissal docket by the trial court, but the order of Opinion by: BARROW dismissal was not signed until July 30, [**3] 1982. In the meantime, there was no communication with the trial Opinion court by the Rotellos or their attorney and thus no effort to show good cause for the case not being dismissed. Nicole Mitchell 671 S.W.2d 507, *508; 1984 Tex. LEXIS 356, **3 The Rotellos were given prompt notice of the order of S.W.2d 930 (Tex. 1975); Pollok v. McMullen Oil & dismissal, and, within thirty days after it was signed, a Royalty Co., 383 S.W.2d 837 (Tex. Civ. App. -- San full evidentiary hearing was held on their motion to Antonio 1964, writ ref'd); Bevil v. Johnson, 157 Tex. reinstate the case. This motion was denied by the trial 621, 307 S.W.2d 85 (1957). The test for appellate court. review of dismissal for want of prosecution was stated in Bevil v. Johnson as follows: It is urged that local rule 11-1 was void because a copy had not been furnished to the Supreme Court of Texas HN3[ ] The matter rests in the sound discretion of as required by Rule 817, Texas Rules of Civil the trial court. It is not an unbridled discretion, but a Procedure. This contention is without merit. Approval of judicial discretion subject to review. Upon review, the supreme court was not required at the time this case the question is whether there was a clear abuse of was dismissed 1 and, therefore, the purpose for discretion by the trial court. furnishing a copy to the supreme court was to provide a central place for notice to interested parties. This type 307 S.W.2d at 87. notice was not necessary in this case as the record conclusively establishes that the attorney for the In considering whether the trial court abused its Rotellos had actual notice of the local rule regarding discretion, we must start with the disturbing fact that at dismissal. He had filed several motions in other years in the time of dismissal this case had been on the court's compliance with this rule to successfully retain the case docket for nearly thirteen years. Notwithstanding [**6] on the active docket of the trial court. There was the fact that some activity occurred in recent years, the discussion at a prior pretrial [**4] conference that this trial court was entitled to consider the entire history of case was a candidate ripe for the dismissal docket. the case. Estate of Bolton v. Coats, 608 S.W.2d 722, 727 (Tex. Civ. App. -- Tyler 1980, writ ref'd n.r.e.); Rorie We conclude that the Rotellos are charged with notice v. Avenue Shipping Co., 414 S.W.2d 948, 952-53 (Tex. of the trial court's intention to dismiss this cause at the Civ. App. -- Houston 1967, writ ref'd n.r.e.). The case April 1982 dismissal docket by their attorney's had been dismissed once for want of prosecution and knowledge of the local rule. See Schlosser v. Tropoli, reinstated by the appellate courts only for lack of notice. 609 S.W.2d 255, 257-58 (Tex. Civ. App. -- Houston Despite this dismissal and reinstatement, it is conceded [14th Dist.] 1980, writ ref'd n.r.e.). This was sufficient by the Rotellos that there was nothing done to notice to satisfy the requirements of due process and to prosecute the case between 1973 and 1980. A pretrial authorize the trial court's dismissal of the case. conference was held in September 1980, but nothing further was done until late 1981. Depositions were It is therefore unnecessary to consider the effect of the taken in February 1982, but a scheduled pretrial hearing hearing on the Rotellos' motion for reinstatement. We was passed. With this background, the trial court was would observe, however, that the hearing was held at a fully justified in setting the case on the April 1982 time the trial court had full control of the judgment. Also, dismissal docket on its own motion. Nothing further was the Rotellos were given the same hearing with the same done by the Rotellos until after the order of dismissal burden of proof they would have been [**5] given was signed on July 30, 1982. before the order of dismissal was signed. Cf. Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 The Rotellos filed a motion to reinstate which was heard L. Ed. 2d 62 (1965). by the trial court while it had full control over the judgment. See Tex. R. Civ. P. 329b; cf. Harris [**7] The Rotellos further assert that the trial court abused its County v. Miller , 576 S.W.2d 808 (Tex. 1979). At the discretion in dismissing this case. It is settled law that hearing on the motion to reinstate, the son of the the HN2[ ] trial court has the inherent power to dismiss Rotellos and their lead attorney testified. It was stated [*509] cases not prosecuted with due diligence. See that Mr. Rotello had been sick during part of the inactive Southern Pacific Transportation Co. v. Stoot, 530 period and that the lead attorney had undergone serious eye surgery in February of 1982. We cannot say after an examination of this record that it 1 New Rule 3a, which became effective April 1, 1984, was a clear abuse of discretion for the trial court to superseded Rule 817 and it requires approval by the supreme dismiss this case. This proceeding has been plagued court of local rules prior to their promulgation. Tex. R. Civ. P. by delay and inactivity from the outset. It has been 3a. Nicole Mitchell 671 S.W.2d 507, *509; 1984 Tex. LEXIS 356, **7 pending for fifteen years, it has been in four appellate courts, and still it is not ready for trial. Such delay can not be tolerated in this day of crowded dockets. As was said by this court in Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d at 931: Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the [**8] entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding, and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If we do not get the facts right, there is little chance for the judgment to be right. The judgment of the court of appeals is reversed and the trial court judgment is affirmed. Dissent by: McGEE Dissent Sears McGee, Justice I respectfully dissent and would affirm the judgment of the court of appeals. 666 S.W.2d 194. OPINION DELIVERED: June 6, 1984 End of Document Nicole Mitchell Caution As of: March 23, 2018 5:08 PM Z Villarreal v. San Antonio Truck & Equip. Supreme Court of Texas April 7, 1999, Argued ; May 27, 1999, Delivered No. 98-0623 Reporter 994 S.W.2d 628 *; 1999 Tex. LEXIS 51 ** of prosecution. Plaintiff appeared and announced his MARTIN M. VILLARREAL, PETITIONER v. SAN readiness, but the court nevertheless dismissed. The ANTONIO TRUCK & EQUIPMENT AND ROBERT dismissal was upheld by the appellate court and plaintiff GONZALEZ, RESPONDENTS sought further review. In reversing and remanding for further proceedings, the court ruled that because Prior History: [**1] ON PETITION FOR REVIEW plaintiff appeared and made his announcement at the FROM THE COURT OF APPEALS FOR THE FOURTH dismissal hearing, the trial court could not dismiss under DISTRICT OF TEXAS. its authority granted by Tex. R. Civ. P. 165a. Moreover, Disposition: Reversed and remanded. the notice was insufficient to apprise plaintiff that the trial court would exercise its inherent power to dismiss for failure to diligently prosecute if he did not also show Core Terms cause why the case should not be dismissed. notice, trial court, announcement, want of prosecution, Outcome inherent power, diligently, dismissal notice, cases, The judgment upholding the dismissal was reversed parties, warn, court of appeals, sentences, invoking, because plaintiff had appeared at the dismissal hearing local rule, prosecute, reinstate, inherent authority, and announced his readiness to proceed, as required by district court, good cause, own motion, appearance, procedural rules; the notice did not adequately apprise literal plaintiff that he was also required to show cause why the case should not be dismissed by the trial court for Case Summary want of prosecution in the exercise of its inherent power. Procedural Posture LexisNexis® Headnotes Plaintiff employee petitioned for review of the judgment of the Court of Appeals for the Fourth District of Texas that affirmed an order dismissing, for want of prosecution, his complaint that defendant employers had failed to maintain a safe work environment, after Civil Procedure > Dismissal > Involuntary notice was given that the case would be dismissed if Dismissals > Failure to Prosecute plaintiff made no announcement at a dismissal hearing that he was ready to proceed. Civil Procedure > Dismissal > Involuntary Dismissals > General Overview Overview HN1[ ] Involuntary Dismissals, Failure to Plaintiff employee sued defendant employers, accusing Prosecute them of failure to maintain a safe work environment. Over two years later, after discovery had been A trial court's authority to dismiss for want of prosecution conducted, the trial court sua sponte sent plaintiff a stems from two sources: Tex. R. Civ. P. 165a and the notice that the case was set on the dismissal docket and court's inherent power. A trial court may dismiss under that if no announcement was made that plaintiff was Rule 165a(1) on failure of any party seeking affirmative ready to proceed, the case would be dismissed for want relief to appear for any hearing or trial of which the party Nicole Mitchell 994 S.W.2d 628, *628; 1999 Tex. LEXIS 51, **1 had notice or under Rule 165a(2) when a case is not HN4[ ] Involuntary Dismissals, Failure to disposed of within the time standards promulgated by Prosecute the Texas Supreme Court. In addition, the common law vests the trial court with the inherent power to dismiss Language in a notice to dismiss for want of prosecution independently of the rules of procedure when a plaintiff unless a plaintiff appears and announces his readiness fails to prosecute his or her case with due diligence. for trial will not be so construed or interpreted as to lead to absurd conclusions if the provision is subject to another, more reasonable interpretation. Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Dismissals > General Overview Governments > Courts > Judicial Precedent HN2[ ] Involuntary Dismissals, Failure to Prosecute Civil Procedure > Dismissal > Involuntary Dismissals > General Overview A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want HN5[ ] Involuntary Dismissals, Failure to of prosecution under either Tex. R. Civ. P. 165a or its Prosecute inherent authority. Rule 165a(1) provides that notice of the court's intention to dismiss and the date and place of To the extent that Ozuna v. Southwest Bio-Clinical the dismissal hearing shall be sent by the clerk to each Laboratories, 766 S.W.2d 900 (Tex. App. 1989, writ attorney of record. The failure to provide adequate denied), can be read to hold that the standard notice of notice of the trial court's intent to dismiss for want of dismissal, for failure to prosecute, used in Bexar County prosecution requires reversal. (Texas) district courts apprises parties of the court's intent to dismiss on a ground other than the failure to appear under Tex. R. Civ. P. 165a(1), or that Knight v. Trent, 739 S.W.2d 116 (Tex. App. 1987, no writ), Civil Procedure > Dismissal > Involuntary Gaebler v. Harris, 625 S.W.2d 5 (Tex. App.1981, writ Dismissals > Failure to Prosecute ref'd n.r.e.), and Laird v. Jobes, 580 S.W.2d 413 (Tex. App. 1979, no writ), imply that a party may be charged Criminal Law & Procedure > ... > Standards of with such notice, such language of those cases is Review > Abuse of Discretion > General Overview disapproved. Civil Procedure > Dismissal > Involuntary Counsel: Luis R. Vera, Jr., San Antonio, TX, Les Dismissals > General Overview Mendelsohn, Les Mendelsohn & Associates, San Antonio, TX, for Petitioner. HN3[ ] Involuntary Dismissals, Failure to Prosecute Peter Y. Henry, Law Office of Peter Y. Henry, San Antonio, TX., for Respondents. If a plaintiff complies with all the requirements of a notice to appear at a dismissal docket hearing and Judges: CHIEF JUSTICE PHILLIPS delivered the announce his readiness for trial, the trial court abuses opinion of the Court, in which JUSTICE HECHT, its discretion by invoking its inherent authority to dismiss JUSTICE OWEN, JUSTICE ABBOTT, JUSTICE for failure to prosecute diligently. HANKINSON, JUSTICE O'NEILL, and JUSTICE GONZALES joined. JUSTICE ENOCH filed a dissenting opinion, in which JUSTICE BAKER joined. Civil Procedure > Dismissal > Involuntary Opinion by: THOMAS R. PHILLIPS Dismissals > Failure to Prosecute Civil Procedure > Dismissal > Involuntary Opinion Dismissals > General Overview Nicole Mitchell 994 S.W.2d 628, *628; 1999 Tex. LEXIS 51, **1 [*629] The issue presented is whether the standard docket [call]." At oral argument, Defendants further notice of dismissal used by the district courts of Bexar acknowledged that "[the plaintiff] did announce that he County, which warns that a case will be dismissed "if no was ready." Because the sole issue on appeal is the announcement is made" at the dismissal hearing, adequacy of the Bexar County notice of dismissal, these adequately apprises parties of the trial court's intent to statements provide a sufficient factual basis to resolve dismiss for want of prosecution in the exercise of its the case. inherent power. Because we hold that it does not, we reverse the judgment of the court of appeals, 974 Villareal contends that the dismissal was improper S.W.2d 275, and remand this cause to the trial court for because he complied with the notice's conditions of (1) further proceedings. presence at the dismissal docket hearing, and (2) announcement of readiness for trial. The notice, he On June 21, 1994, Martin Villarreal sued San Antonio says, limited the trial court's discretion to dismiss to Truck and Equipment, Inc., and Robert Gonzales [**2] those instances where "no announcement [**4] is ("Defendants") in Bexar County district court for failure made." Thus, Villareal argues, the trial court abused its to maintain a safe work environment. The parties discretion by dismissing the case for want of engaged in discovery during the summer of 1994, but prosecution on the ground that "it appeared to the Court no further action was taken until the trial court, on its that there is good and sufficient reason for dismissal of own motion, notified Villarreal on August 30, 1996, that these cases for want of prosecution . . . ." 2 the case was set on the October 1996 dismissal docket. The notice of setting stated: Defendants maintain that the trial court committed no abuse because the Bexar County dismissal docket BY DIRECTION OF THE PRESIDING JUDGE OF SAID notice "did not mislead Villarreal. It clearly stated that COURT[,] NOTICE IS HEREBY GIVEN YOU THAT the case was being set for dismissal and did not state THE ABOVE CAUSE(S), UPON ORDER OF THE that all Villarreal had to do as he argues, is to show up COURT[,] IS SET FOR DISMISSAL ON THE 22ND and announce ready." Defendants argue that the notice DAY OF OCTOBER, 1996 . . . . YOU ARE provided adequate warning that Villarreal was required REQUESTED TO BE PRESENT AND MAKE YOUR to show good cause why his case should not be ANNOUNCEMENT. IF NO ANNOUNCEMENT IS dismissed at the docket call hearing. The court of MADE, THIS CAUSE WILL BE DISMISSED FOR appeals affirmed, with one justice dissenting. 974 WANT OF PROSECUTION. S.W.2d [**5] 275. ALL ORDERS THAT WILL REMOVE A CASE FROM HN1[ ] The trial court's authority to dismiss for want of THE DISMISSAL DOCKET MUST BE SUBMITTED TO prosecution stems from two sources: (1) Rule 165a of THE DISMISSAL DEPARTMENT ON OR BEFORE the Texas Rules of Civil Procedure, and (2) the court's THE DATE WHEN THE DOCKET IS CALLED. inherent power. See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson, 157 Tex. YOU ARE REMINDED THAT THIS IS NOT A DOCKET 621, 307 S.W.2d 85, 87 (Tex. 1957). A trial court may FOR THE RE-SETTING OF CASES, BUT FOR THEIR dismiss under Rule 165a on "failure of any party seeking DISMISSAL. affirmative relief to appear for any hearing or trial of On October 21, 1996, Villarreal filed a motion to set the which the party had notice," TEX. R. CIV. P. 165a(1), or case on the jury docket. On October 22, 1996, he filed a when a case is "not disposed of within the time motion to retain the case, asserting that he was ready to standards promulgated by the Supreme Court . . . ." proceed to trial. That same day, the trial court held the TEX. R. CIV. P. 165a(2). 3 In addition, the common law dismissal hearing. [**3] Although the record on appeal does not contain a reporter's record of the hearing, 1 [*630] Defendants conceded in their brief to this Court 2 Villarrealappealed the trial court's dismissal for want of that "the plaintiff and his attorney did appear at the prosecution without filing a motion to reinstate in the trial court pursuant to Texas Rule of Civil Procedure 165a(3). See TEX. R. CIV. P. 165(a)(3). 1 The reporter's record of the dismissal hearing was excluded from the record on appeal when the court of appeals denied 3 Rule 6 of the Rules of Judicial Administration provides that Villarreal's motion to file the record late on the ground that he civil jury cases must be disposed of within 18 months from the had not filed a timely motion for extension of time. appearance date. See TEX. R. JUD. ADMIN. 6. Nicole Mitchell 994 S.W.2d 628, *630; 1999 Tex. LEXIS 51, **5 vests the trial court with the inherent power to dismiss that the case was set on the dismissal docket upon the independently of the rules of procedure when a plaintiff court's own motion. The placement of a case on the fails to prosecute his or her case with due diligence. See dismissal docket on a court's own motion is nothing but Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); an exercise of the trial court's inherent authority to Williams, 543 S.W.2d at 90. control its docket. Therefore, it cannot be said that Villarreal was not alerted that the trial court was invoking [**6] HN2[ ] its inherent power to dismiss for lack of diligent prosecution when the court, on its own motion, placed However, a party must be provided with notice and an his case on the dismissal docket. opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or its inherent authority. See TEX. R. CIV. P. 165a(1) 974 S.W.2d at 278(citations omitted). We disagree. ("Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the The Fourth Court of Appeals has considered the clerk to each attorney of record . . . ."); General Elec. adequacy of the Bexar County dismissal notice twice Co. v. Falcon Ridge Apartments, Joint Venture, 811 before, reaching conflicting results. In the more recent S.W.2d 942, 943 (Tex. 1991); Gutierrez v. Lone Star case of Goff v. Branch, 821 S.W.2d 732 (Tex. App.--San Nat'l Bank, 960 S.W.2d 211, 214 (Tex. App.--Corpus Antonio 1991, writ denied), the court found that the Christi 1997, pet. denied) (requiring notice for dismissals Bexar County notice "merely gave the appellants notice under Rule 165a); see also State v. Rotello, 671 S.W.2d that the dismissal setting was pursuant to the provisions 507, 508-09 (Tex. 1984); Callahan v. Staples, 139 Tex. of Rule 165a(1)." Id. at 734. The court rejected an 8, 161 S.W.2d 489, 491 (Tex. 1942) (requiring notice for argument that, although a Rule 165a(1) dismissal was dismissals under the court's inherent power). The failure not warranted, the dismissal and failure to reinstate the to provide adequate notice of the trial court's intent to case were justified under the court's inherent power to dismiss for want of prosecution requires reversal. See dismiss for failure [**9] to diligently prosecute. The Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 386 court reasoned: (Tex. App.--Houston[1st Dist.] 1996, writ denied); Davis v. Laredo Diesel, Inc., 611 S.W.2d 943, 946-47 [*631] We can find no authority for a court to invoke for the first (Tex. Civ. App.--Waco 1981, writ ref'd n.r.e.). time, without prior notice, its inherent power to dismiss for want of prosecution in a reinstatement hearing The notice of setting [**7] sent to Villarreal warned of clearly involving only the review of a dismissal order dismissal for the failure to make an announcement at under TEX.R.CIV.P. 165a(1). This is especially true the dismissal hearing. Thus, the notice apprised when notice received by the party whose cause has Villarreal of a possible Rule 165a(1) dismissal for failure been dismissed was pursuant only to Rule 165a(1). If a to make an appearance. Because it is undisputed that trial court had authority to invoke its inherent powers to Villarreal did appear, the trial court could not have dismiss for want of prosecution at any time, with or dismissed this case for want of prosecution under Rule without proper notice, cases could be summarily 165a(1). Nonetheless, Defendants contend that the dismissed at random in the privacy of the court's dismissal was warranted under the trial court's inherent chambers. Such a situation would be unjust and power to dismiss 4 and argue that the notice of setting untenable. warned of the trial court's intent to invoke this power. Id. at 736. The court of appeals agreed: Earlier, in Ozuna v. Southwest Bio-Clinical Laboratories, [**8] The notice in the instant case expressly stated 766 S.W.2d 900 (Tex. App.--San Antonio 1989, writ denied), the court reached the opposite result. It concluded that the Bexar County notice was adequate 4 Although the Defendants make brief reference to the ability to to provide for dismissal "on two separate and dismiss a case pursuant to Rule 165a(2), warranting dismissal independent grounds: (1) failure to appear at the for failure to adhere to the Supreme Court time standards, dismissal hearing, and (2) failure to litigate the case with they do not urge that Villarreal violated this standard. Thus, we due diligence." Id. at 901. Because the record was do not consider the possibility of dismissal under Rule unclear on whether the parties had in fact appeared 165a(2), except to state that adequate notice of the court's at [**10] the dismissal hearing, the court affirmed the intent to dismiss on this ground is also required. Nicole Mitchell 994 S.W.2d 628, *631; 1999 Tex. LEXIS 51, **10 dismissal on the sole ground of the trial court's inherent understand that only an announcement of ready for trial power to dismiss for failure to diligently prosecute. See would justify removal from the dismissal docket, we id. reject Defendants' alternative construction. In deciding this case, the court of appeals relied upon Defendants also argue that Villarreal should be charged Ozuna, determining that Goff was not binding authority with notice of the court's inherent authority to dismiss for because "we are not presented with the issue of lack of diligent prosecution through Local Rule 3.26 of whether reinstatement was required under Rule the Bexar County District Courts Local Rules, which 165a(3), rather we are asked to determine [*632] provides: whether the trial court properly concluded that Villarreal's case had not been prosecuted with due Pursuant to Rule 165a, T.R.C.P., cases that have not diligence." 974 S.W.2d at 278. This statement been disposed of within the Supreme Court's time mischaracterizes the issue on appeal. Before deciding standards shall be scheduled for hearing to show cause whether the trial court properly concluded that Villarreal why they should not be dismissed for want of failed to exercise diligent prosecution, the court must prosecution. The local administrative judge shall first determine whether the trial court gave adequate periodically assign judges to preside over the dismissal notice of its intent to invoke its inherent authority to docket. dismiss on such ground. Thus, although this case does not involve a reinstatement hearing, as does Goff, Goff's rationale regarding the adequacy of the Bexar County BEXAR COUNTY (TEX.) DIST. CT. LOC. R. 3.26. dismissal notice is persuasive here. Defendants rely on our decision in Rotello, where we held that the plaintiffs were "charged with notice of the We reject Defendants' contention that "the dismissal trial court's intention to dismiss this cause at the . . . notice clearly indicated that the plaintiff's case would be dismissal [**13] docket by their attorney's knowledge of dismissed unless the plaintiff [**11] could show good the [Brazos County district courts'] local rule." Rotello, cause why it should not be dismissed for want of 671 S.W.2d at 508. This case is distinguishable from prosecution." A plain reading of the Bexar County Rotello. The Brazos County local rule explicitly states standard dismissal notice informs parties only of a that "'this rule shall constitute notice of [the dismissal] possible Rule 165a(1) dismissal. See Goff, 821 S.W.2d hearings,'" id. (quoting BRAZOS COUNTY (TEX.) DIST. at 734. In response to that notice, the plaintiff appeared CT. LOC. R. 11.1), while the Bexar County local rule and announced ready for trial at the dismissal docket omits such language. Furthermore, the Bexar County call. HN3[ ] Because Villarreal complied with all the notice flatly contradicts the local rule by suggesting that requirements of the notice, the trial court abused its an announcement will cure the lack of prosecution and discretion by invoking its inherent authority to dismiss by failing to warn that good cause must be shown to for failure to prosecute diligently. Cf. Shook v. Gilmore avoid dismissal. We therefore conclude that Rotello is & Tatge Mfg. Co., 951 S.W.2d 294, 297 (Tex. App.-- not controlling in this case. Waco 1997, pet. denied) (declining to decide appeal on Finally, Defendants contend that the last sentence of the plaintiff's failure to prosecute case diligently when the dismissal docket [*633] notice, which reminds litigants trial court failed to give notice that "the diligence of that "this is not a docket for the re-setting of cases, but prosecution would be a factor in the judge's deciding for their dismissal," serves as adequate notice that the whether to reinstate the case"). court will dismiss the case for want of prosecution Defendants contend that the notice's language, "if no unless good cause is shown at the docket call. We do announcement is made, this cause will be dismissed for not read the sentence in this way. Nothing in this want of prosecution," was not intended to be literally language notifies a party that good cause must be interpreted. They urge that a literal interpretation would shown to avoid dismissal, nor does it otherwise cure the permit even an announcement of "not ready for trial" to misleading effect [**14] of the earlier language. save the case from dismissal. However, HN4[ ] language "will [**12] not be so construed or interpreted HN5[ ] To the extent that Ozuna can be read to hold as to lead to absurd conclusions . . . if the provision is that the Bexar County notice of dismissal apprises subject to another, more reasonable interpretation." C & parties of the court's intent to dismiss on a ground other H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 than the failure to appear under Rule 165a(1), or that n.5 (Tex. 1994). Because a reasonable litigant would Knight v. Trent, 739 S.W.2d 116 (Tex. App.--San Nicole Mitchell 994 S.W.2d 628, *633; 1999 Tex. LEXIS 51, **14 Antonio 1987, no writ), Gaebler v. Harris, 625 S.W.2d 5 165a(1) dismissal." 2 But what is a Rule 165a(1) (Tex. App.--San Antonio 1981, writ ref'd n.r.e.), and dismissal? It is a dismissal based on a party's failure to Laird v. Jobes, 580 S.W.2d 413 (Tex. App.--San Antonio appear for a hearing. 3 Thus under the Court's "plain 1979, no writ), imply that a party may be charged with reading," the dismissal notice, apparently, would only such notice, we disapprove of the language of those tell a party: If you come to this dismissal hearing, you cases. We, therefore, reverse the judgment of the court won't get dismissed for not coming to this dismissal of appeals and remand this cause to the trial court for hearing. This "plain reading" is nonsense -- the whole further proceedings consistent with this opinion. point of the dismissal docket, as any lawyer who Thomas R. Phillips practices in Bexar County knows, 4 is to allow Bexar County District Courts to dismiss cases of parties who Chief Justice are not diligently pursuing their claims. OPINION DELIVERED: May 27, 1999 [**17] [*634] Third, the Court contradicts its own Dissent by: CRAIG T. ENOCH "plain reading" -- for the Court says "a reasonable litigant would understand [from the dismissal notice] that only an announcement of ready for trial would justify Dissent removal from the dismissal docket." 5 The Court in one breath reads a single warning -- that a party's case will be dismissed only if he fails to appear for the dismissal JUSTICE ENOCH, joined by JUSTICE BAKER, hearing. But in the next, the Court concludes that this dissenting. warning necessarily also warns the party that he must announce "ready for trial." I share the sentiment that, I think, motivates the Court to reach its result -- frustration at the Bexar County District The Court professes to be compelled to this Clerk's apparent refusal to change a badly worded contradiction in order to avoid the "absurd conclusion" dismissal notice, even after the court of appeals has that follows from its "literal interpretation" of the two expended significant judicial resources in several sentences. 6 Its interpretation is that these two reported decisions to answer [**15] parties' questions sentences promise that the case won't be dismissed if about the notice's wording. 1 But frustration should not the party appears and makes an announcement -- any decide cases. The issue here is whether the notice is announcement. But the Court follows false logic. The sufficient to warn litigants that the trial court might, sentences don't say what the Court fears. The under its inherent power, dismiss a case for want of sentences literally promise [**18] only that the case prosecution. While the notice is not a model of clarity or will be dismissed if no announcement is made. It's a good writing, it is sufficient. I dissent. simple statement. There is nothing absurd about it. And significantly, these sentences do not promise the The Court's reasoning is flawed in several respects. opposite -- that if one merely announces, his case will First, in construing the dismissal notice, the Court focuses its attention on only two sentences: "You are 2 994 S.W.2d at 632, 1999 Tex. LEXIS 51, *11. requested to be present and make your announcement. If no announcement is made, this cause will be 3 See TEX. R. CIV. P. 165a(1). dismissed for want of prosecution." But the Court ignores the last line of the notice: "You are reminded 4 See Bexar County Local Rule 3.26, RULES OF PRACTICE, that this is not a docket for the re-setting of cases, but PROCEDURE AND ADMINISTRATION IN THE DISTRICT for their dismissal." COURTS OF BEXAR COUNTY, TEXAS (April 1991) (providing for show cause hearings on dismissal docket when Second, only looking at the two sentences [**16] it cases are not diligently prosecuted); State v. Rotello, 671 cites, the Court then assumes that a "plain reading" of S.W.2d 507, 508 (Tex. 1984) ("We conclude that the Rotellos this language "informs parties only of a possible Rule are charged with notice of the trial court's intention to dismiss this cause at the April 1982 dismissal docket by their attorney's knowledge of the local rule."). 1 See Goff v. Branch, 821 S.W.2d 732 (Tex. App.--San Antonio 5 994S.W.2d at 632, 1999 Tex. LEXIS 51, *12 (emphasis 1991, writ denied); Ozuna v. Southwest Bio-Clinical added). Laboratories, 766 S.W.2d 900 (Tex. App.--San Antonio 1989, writ denied). 6 994 S.W.2d at 632, 1999 Tex. LEXIS 51, *11. Nicole Mitchell 994 S.W.2d 628, *634; 1999 Tex. LEXIS 51, **18 not be dismissed. Out of frustration, the Court undertakes a strained effort to read the notice to warn only of a potential Rule A "literal interpretation" of the entire notice, including the 165a(1) dismissal. [*635] And then it rewrites the final line, reveals that the notice warns that the trial court notice to require a "ready for trial" announcement in will exercise its inherent power to control its docket. As order to avoid absurdity. But it then denies to the trial mentioned, the last line of the notice states: "You are court the fundamental discretion to disbelieve the reminded that this is not a docket for the re-setting of announcement, even if [**21] the record shows the cases, but for their dismissal." Villarreal had notice that party's actions belying his words. The Court errs. The merely showing up and asking to be set for trial would dismissal notice in this case adequately informed not be enough -- he was coming to a hearing where the Villarreal that the trial court was invoking its inherent trial court would decide whether to dismiss his case for power to dismiss his claim for want of prosecution. I want of prosecution, and he had notice that the way to dissent. avoid dismissal was not just to show up, but to show up and convince the trial court not to exercise its inherent A final thought -- if I were the Bexar County District power to [**19] dismiss the case. Clerk, I'd rewrite the notice to include the phrase, "The trial court is invoking its inherent power to dismiss this And if those three lines weren't enough, the notice also case for want of prosecution." It would be more clear expressly stated that the trial court placed Villarreal's and, it appears, nothing less will do. claim on the dismissal docket on its own motion. As the court of appeals correctly noted, this additionally Craig T. Enoch indicated that the trial court was invoking its inherent power to, after a hearing, dismiss Villarreal's claim. 7 Justice Finally, we don't have a record of the dismissal hearing. Opinion delivered: May 27, 1999 So how can we determine whether the trial court abused its discretion? The answer is simple -- we can't. End of Document Therefore we presume the trial court didn't. 8 The Court, however, tries to gloss over the lack of a record by latching onto San Antonio Truck's concession that Villarreal appeared at the hearing and announced ready for trial. 9 But those facts are beside the point. San Antonio Truck conceded Villarreal's appearance and announcement precisely because, while it was true, it did not matter. To get to the Court's conclusion, it has to decide that the trial court, [**20] as a matter of law, had to believe Villarreal when he said he was ready. But the trial court didn't have to. Why should it -- after all, Villarreal had done nothing for two years before the trial court put the case on the dismissal docket. Furthermore, without a record, we don't know what Villareal's excuse, if he even gave one, was. The court of appeals stated it succinctly: "A belated trial setting or eager announcement of readiness to proceed to trial does not conclusively establish diligence." 10 7 974 S.W.2d at 278 (citation omitted). 8 See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Ozuna, 766 S.W.2d at 901. 9 994 S.W.2d at 632, 1999 Tex. LEXIS 51. 10 974 S.W.2d at 278. Nicole Mitchell Tex. R. Civ. P. 165a This document is current through March 7, 2018 Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 7. Abatement and Discontinuance of Suit Rule 165a Dismissal for Want of Prosecution 1. Failure to Appear. --A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket. If the court determines to maintain the case on the docket, it shall render a pretrial order assigning a trial date for the case and setting deadlines for the joining of new parties, all discovery, filing of all pleadings, the making of a response or supplemental responses to discovery and other pretrial matters. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Notice of the signing of the order of dismissal shall be given as provided in Rule 306a. Failure to mail notices as required by this rule shall not affect any of the periods mentioned in Rule 306a except as provided in that rule. 2. Non-Compliance with Time Standards.--Any case not disposed of within time standards promulgated by the Supreme Court under its Administrative Rules may be placed on a dismissal docket. 3. Reinstatement. --A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing. The 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. In the event for any reason a motion for reinstatement is not decided by signed written order within seventy- five days after the judgment is signed, or, within such other time as may be allowed by Rule 306a, the motion shall be deemed overruled by operation of law. If a motion to reinstate is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first. 4. Cumulative Remedies. --This dismissal and reinstatement procedure shall be cumulative of the rules and laws governing any other procedures available to the parties in such cases. The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court's inherent power, whether or not a motion to dismiss has been filed. Annotations Nicole Mitchell Tex. R. Jud. Admin. 1 This document is current through March 7, 2018 Texas Court Rules > STATE RULES > RULES OF JUDICIAL ADMINISTRATION Rule 1 Authority These rules are promulgated pursuant to Section 74.024 of the Texas Government Code. Texas Rules Copyright © 2018 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. End of Document Nicole Mitchell Tex. R. Jud. Admin. 6 This document is current through March 7, 2018 Texas Court Rules > STATE RULES > RULES OF JUDICIAL ADMINISTRATION Rule 6 Time Standards for the Disposition of Cases Rule 6.1 District and Statutory County Courts.--District and statutory county court judges of the county in which cases are filed should, so far as reasonably possible, ensure that all cases are brought to trial or final disposition in conformity with the following time standards: (a) Civil Cases Other Than Family Law. (1) Civil Jury Cases. --Within 18 months from appearance date. (2) Civil Nonjury Cases. --Within 12 months from appearance date. (b) Family Law Cases. (1) Contested Family Law Cases.--Within 6 months from appearance date or within 6 months from the expiration of the waiting period provided by the Family Code where such is required, whichever is later. (2) Uncontested Family Law Cases.--Within 3 months from appearance date or within 3 months from the expiration of the waiting period provided by the Family Code where such is required, whichever is later. (c) Juvenile Cases. --In addition to the requirements of Title 3, Texas Family Code: (1) Detention Hearings. --On the next business day following admission to any detention facility. (2) Adjudicatory or Transfer (Waiver) Hearings. (a) Concerning a juvenile in a detention facility:--Not later than 10 days following admission to such a facility, except for good cause shown of record. (b) Concerning a juvenile not in a detention facility:--Not later than 30 days following the filing of the petition, except for good cause shown of record. (3) Disposition Hearing. --Not later than 15 days following the adjudicatory hearing. The court may grant additional time in exceptional cases that require more complex evaluation. (4) Nothing herein shall prevent a judge from recessing a juvenile hearing at any stage of the proceeding where the parties are agreeable or when in the opinion of the judge presiding in the case the best interests of the child and of society shall be served. (d) Complex Cases. --It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards. Rule 6.2 Appeals in Certain Cases Involving the Parent-Child Relationship.--In an appeal of a suit for termination of the parent-child relationship or a suit affecting the parent-child relationship filed by a governmental entity for managing conservatorship, appellate courts should, so far as reasonably possible, ensure that the appeal is brought to final disposition in conformity with the following time standards: (a) Courts of Appeals. --Within 180 days of the date the notice of appeal is filed. (b) Supreme Court. --Within 180 days of the date the petition for review is filed. Nicole Mitchell Tex. Gov’t Code § 74.024 This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature Texas Statutes & Codes Annotated by LexisNexis® > Government Code > Title 2 Judicial Branch > Subtitle F Court Administration > Chapter 74 Court Administration Act > Subchapter B Supreme Court Sec. 74.024. Rules. (a) The supreme court may adopt rules of administration setting policies and guidelines necessary or desirable for the operation and management of the court system and for the efficient administration of justice. (b) The supreme court shall request the advice of the court of criminal appeals before adopting rules affecting the administration of criminal justice. (c) The supreme court may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions, and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted; (3) attorney’s accountability for and incentives to avoid delay and to meet time standards; (4) penalties for filing frivolous motions; (5) firm trial dates; (6) restrictive devices on discovery; (7) a uniform dockets policy; (8) formalization of settlement conferences or settlement programs; (9) standards for selection and management of nonjudicial personnel; (10) transfer of related cases for consolidated or coordinated pretrial proceedings; and (11) the conducting of proceedings under Rule 11, Rules of Judicial Administration, by a district court outside the county in which the case is pending. (d) Any rules adopted under this section remain in effect unless and until disapproved by the legislature. The clerk of the supreme court shall file with the secretary of state the rules or any amendments to the rules adopted by the supreme court under this section and shall mail a copy of the rules and any amendments to each registered member of the State Bar not later than the 120th day before the date on which they become effective. The supreme court shall allow a period of 60 days for review and comment on the rules and any amendments. The clerk of the supreme court shall report the rules or amendments to the rules to the next regular session of the legislature by mailing a copy of the rules or amendments to the rules to each elected member of the legislature on or before December 1 immediately preceding the session. History Enacted by Acts 1987, 70th Leg., ch. 148 (S.B. 895), § 2.93(a), effective September 1, 1987; Enacted by Acts 1987, 70th Leg., ch. 674 (S.B. 687), § 2.01, effective September 1, 1987; am. Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 3.01, effective September 1, 2003; am. Acts 2003, 78th Leg., ch. 747 (H.B. 3386), § 1, effective September 1, 2003; am. Acts 2005, 79th Leg., ch. 728 (H.B. 2018), § 8.001, effective September 1, 2005. Nicole Mitchell Tex. Gov’t Code § 74.024 Annotations Notes STATUTORY NOTES 2003 Note: Section 74.024(c), Government Code, as amended by Chapter 747, applies only to a suit filed on or after September 1, 2003. A suit filed before September 1, 2003, is governed by the law in effect on the date the suit was filed, and the former law is continued in effect for that purpose. Acts 2003, 78th Leg., ch. 747, § 2. Effect of amendments. 2005 amendment, rewrote (c) by combining two former versions of (c)(10) into one version. LexisNexis ® Notes Case Notes Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Prosecute Civil Procedure: Trials: Bench Trials Criminal Law & Procedure: Sentencing: Forfeitures: Proceedings Governments: Courts: Rule Application & Interpretation Civil Procedure: Dismissals: Involuntary Dismissals: Failures to Prosecute Rules of Judicial Administration, promulgated pursuant to Tex. Gov’t Code Ann. § 74.024, were nonbinding time standards, and the application of Tex. R. Jud. Admin. 6 was discretionary and nonbinding, and did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket; the trial court was therefore not bound by statute or rule to hear defendant’s forfeiture case within twelve months of the appearance date. Property v. State, No. 06-11-00113-CV, 2012 Tex. App. LEXIS 4093 (Tex. App. Texarkana May 22, 2012). There was no abuse of discretion by denying the motion to dismiss for want of prosecution, because Tex. R. Jud. Admin. 6 did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket. Jones v. Morales, 318 S.W.3d 419, 2010 Tex. App. LEXIS 3880 (Tex. App. Amarillo May 21, 2010), pet. denied No. 10- 0804, 2010 Tex. LEXIS 947 (Tex. Dec. 3, 2010). Civil Procedure: Trials: Bench Trials There was no abuse of discretion by denying the motion to dismiss for want of prosecution, because Tex. R. Jud. Admin. 6 did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket. Jones v. Morales, 318 S.W.3d 419, 2010 Tex. App. LEXIS 3880 (Tex. App. Amarillo May 21, 2010), pet. denied No. 10- 0804, 2010 Tex. LEXIS 947 (Tex. Dec. 3, 2010). Nicole Mitchell Tex. Gov’t Code § 74.024 Because the time limit in Tex. R. Jud. Admin. 6(a)(2) is discretionary, as indicated in Tex. Gov’t Code Ann. §  74.024(c)(1), a property owner was not entitled to a dismissal of a forfeiture action for want of prosecution based on the failure to meet the time limit. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 2009 Tex. App. LEXIS 7535 (Tex. App. Amarillo 2009)pet. deniedNo. 09-1059, 2010 Tex. LEXIS 29 (Tex. Jan. 8, 2010)pet. deniedNo. In re Fifty-One Gambling Devices & Twenty Six Thousand Eight Hundred Eighty Dollars in United States Currency, No. 09-1059, 2010 Tex. LEXIS 267 (Tex. Mar. 19, 2010). Criminal Law & Procedure: Sentencing: Forfeitures: Proceedings Rules of Judicial Administration, promulgated pursuant to Tex. Gov’t Code Ann. § 74.024, were nonbinding time standards, and the application of Tex. R. Jud. Admin. 6 was discretionary and nonbinding, and did not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket; the trial court was therefore not bound by statute or rule to hear defendant’s forfeiture case within twelve months of the appearance date. Property v. State, No. 06-11-00113-CV, 2012 Tex. App. LEXIS 4093 (Tex. App. Texarkana May 22, 2012). Governments: Courts: Rule Application & Interpretation Because the time limit in Tex. R. Jud. Admin. 6(a)(2) is discretionary, as indicated in Tex. Gov’t Code Ann. §  74.024(c)(1), a property owner was not entitled to a dismissal of a forfeiture action for want of prosecution based on the failure to meet the time limit. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 2009 Tex. App. LEXIS 7535 (Tex. App. Amarillo 2009)pet. deniedNo. 09-1059, 2010 Tex. LEXIS 29 (Tex. Jan. 8, 2010)pet. deniedNo. In re Fifty-One Gambling Devices & Twenty Six Thousand Eight Hundred Eighty Dollars in United States Currency, No. 09-1059, 2010 Tex. LEXIS 267 (Tex. Mar. 19, 2010). Research References & Practice Aids LexisNexis ® Notes LAW REVIEWS 41 Houston Lawyer 10, FEATURE: TEXAS LEGISLATURE HAMMERS OUT MASSIVE TORT REFORM BILL, By Patrice Pujol and Marty Thompson, July/August, 2003, Copyright (c) 2003 Houston Bar Association, The Houston Lawyer. 61 Tex. B. J. 994, ARTICLE: IN THE SUPREME COURT OF TEXAS MISC. DOCKET NO. 98-9170: APPROVAL OF REVISIONS TO THE TEXAS RULES OF JUDICIAL ADMINISTRATION, November, 1998, Copyright (c) 1998 by State Bar of Texas, Texas Bar Journal. 62 Tex. B. J. 946, FEATURES: IN THE SUPREME COURT OF TEXAS MISC. DOCKET NO. 99-9112: OPINION AND ORDER IMPLEMENTING RECOMMENDATIONS OF THE SUPREME COURT JUDICIAL CAMPAIGN FINANCE STUDY COMMITTEE, October, 1999, Copyright (c) 1999 by State Bar of Texas, Texas Bar Journal. TREATISES & ANALYTICAL MATERIALS 1-3 Texas Civil Trial Guide § 3.40, NONSUIT AND DISMISSAL FOR WANT OF PROSECUTION, DISMISSAL FOR WANT OF PROSECUTION, Making and Responding to Motions to Dismiss, Texas Civil Trial Guide. 19 Dorsaneo, Texas Litigation Guide III, SUMMARY OF 2003 CIVIL JUSTICE REFORM LEGISLATION, SPECIAL ALERT TO: DORSANEO, TEXAS LITIGATION GUIDE TEXAS TORTS AND REMEDIES DORSANEO & SOULES — TEXAS CODES AND RULES AUGUST 2003 William V. Dorsaneo I, Tex. H.B. 4, Dorsaneo, Texas Litigation Guide. Nicole Mitchell Tex. Gov’t Code § 74.024 Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2018 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. End of Document Nicole Mitchell