Summary
noting the relevant local rule provides "[i]f no action is taken by a party seeking affirmative relief in non-family civil matters within nine months directed toward a trial on the merits, the Court will proceed to dismiss the case for want of prosecution in accordance with Rule 165a."
Summary of this case from Skelton v. GrayOpinion
No. 04-16-00560-CV
05-17-2017
Louis V. DOSS, Appellant v. Deborah ROBINSON, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 11-320-B
Honorable Stephen B. Ables, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
In this appeal, Louis V. Doss challenges the dismissal of his case for want of prosecution and the denial of his motion to reinstate. We affirm.
BACKGROUND
On March 31, 2011, Doss filed suit against Deborah Robinson for breach of contract. On May 3, 2011, Robinson filed an answer to the suit. More than a year elapsed with no activity in the case. On May 15, 2012, the trial court notified the parties of its intent to dismiss the suit for want of prosecution. Doss filed a motion to maintain the suit on the court's docket, which the trial court granted.
On June 27, 2012, Doss filed a motion to set the case for trial on the non-jury docket, and the case was set for a non-jury trial on August 23, 2012. However, before the case went to trial, the trial court ordered the parties to mediation. On October 4, 2012, the mediator filed a report stating that the parties did not reach an agreement to settle the case.
No activity occurred in the case for about twenty months. Then, on June 2, 2014, Doss filed a motion to set the case on the jury docket. On June 11, 2014, the trial court again referred the case to mediation, but it quickly vacated the second mediation order. On July 1, 2014, Doss filed a combination pleading including a summary judgment motion. On July 31, 2014, Robinson filed a response to Doss's summary judgment motion and a cross-motion for summary judgment. However, neither summary judgment motion was ever set for hearing.
Another twenty months elapsed with no activity in the case. Then, on April 15, 2016, the trial court issued a dismissal notice informing the parties of its intent to dismiss the case for want of prosecution "[p]ursuant to Rule 165a, Texas Rules of [C]ourt, and the Local Rules of Practice." The notice further stated: "At the dismissal hearing, the court shall dismiss this case for want of prosecution unless there is good cause shown for the case to be maintained on the docket." The notice set the dismissal hearing for May 23, 2016.
At the dismissal hearing, Doss advised the trial court that he had a motion for jury trial pending "for quite some time now" and he had several other motions pending before the court, including a summary judgment motion. When the court pointed out that there had been no action taken in the case in two years, Doss replied that part of the delay was because his wife had died and he had undergone triple bypass surgery. Doss again advised the trial court that he had asked for a jury trial and paid the jury fee and he still wanted a jury trial. The trial court explained that it had been very lenient in retaining Doss's case on the docket, especially in light of the Texas Supreme Court's standards requiring resolution of cases within eighteen months. The trial court further explained that it is a party's responsibility to obtain settings on motions; the trial court did not rule on a motion unless a party obtained a setting for the motion. The trial court stated that, based on the file, it was going to dismiss the case. The trial court then signed an order dismissing the case for want of prosecution.
On May 27, 2016, Doss filed a verified motion to reinstate the case arguing, among other things, that "the trial court abused its discretion when it failed to perform ministerial duties and rule on [] motions." At the hearing on the motion to reinstate, Doss emphasized that the trial court had failed to rule on his summary judgment motion. Doss represented that he had made a written request for a setting for his summary judgment motion; however, the trial court was unable to find any such request in the court's file, and Doss was unable to produce a copy of any such request. Doss further explained that his wife had died and he had undergone heart surgery so he was "out of the picture for about seven months." Doss also stated that he had asked for a jury trial in the case, but the court had not set the case for a jury trial. Doss complained that the case had been "completely ignored" "for a long, long time by the Court." In response, the trial court explained to Doss that, as a general rule, the trial court did not set motions for hearings or cases for trial unless a party requested a setting in writing. At the conclusion of the hearing, the trial court denied the motion to reinstate. Doss appealed.
The Honorable M. Rex Emerson presided over the dismissal hearing. After the dismissal hearing, Doss filed a motion to recuse Judge Emerson, and Judge Emerson signed an order voluntarily recusing himself from the case. The Honorable Stephen B. Ables presided over the hearing on the motion to reinstate.
STANDARDS OF REVIEW
We review a trial court's decision to dismiss a case for want of prosecution for an abuse of discretion. Cappetta v. Hermes, 222 S.W.3d 160, 164 (Tex. App.—San Antonio 2006, no pet.). We also review the trial court's decision to deny a motion to reinstate for an abuse of discretion. Martinez v. Benavides, No. 04-15-00465-CV, 2016 WL 3085913, at *2 (Tex. App.—San Antonio June 1, 2016, no pet.). "The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules and principles." Cire v. Cummnings, 134 S.W.3d 835, 838-39 (Tex. 2004) (internal quotations omitted). "The trial court's ruling should be reversed only if it was arbitrary or unreasonable." Id. at 839.
DISMISSAL FOR WANT OF PROSECUTION
In his first issue, Doss argues that the trial court erred in dismissing his case for want of prosecution. A trial court may dismiss a case for want of prosecution under its inherent power, or under Texas Rule of Civil Procedure 165a when a litigant either fails to appear or fails to comply with the Texas Supreme Court's time standards for disposing of cases. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Texas Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex. App.—San Antonio 2002, pet. denied). These time standards provide that, as far as reasonably possible, civil jury cases should be brought to trial or final disposition within eighteen months from appearance date, and civil nonjury cases should be brought to trial or final disposition within twelve months from appearance date. TEX. R. JUD. ADM. 6.1(b). The Texas Supreme Court's time standards "provide the prima facie standard for what is unreasonable" in terms of prosecuting a case. Hosey v. Cnty. of Victoria, 832 S.W.2d 701, 704 (Tex. App.—Corpus Christi 1992, no writ).
Before a trial court may dismiss for want of prosecution, it must provide the parties with notice and an opportunity to be heard. Villarreal, 994 S.W.2d at 630. If the trial court's dismissal notice specifies a particular ground for dismissal, dismissal may only be granted on the ground stated in the notice. Morales v. Cotulla Indep. Sch. Dist., No. 04-13-00363-CV, 2014 WL 2158403, at *2 (Tex. App.—San Antonio May 21, 2014, no pet.). If the trial court's notice prescribes actions a party may take to avoid dismissal, and the party takes those actions, the trial court abuses its discretion in dismissing the case. Id.
In this case, the ground for dismissal specified in the trial court's notice was Rule 165a and the "Local Rules of Practice." The applicable part of Rule 165a is the failure to prosecute the case within the applicable time standards. Additionally, the relevant local rule provides "[i]f no action is taken by a party seeking affirmative relief in non-family civil matters within nine (9) months directed toward a trial on the merits, the Court will proceed to dismiss the case for want of prosecution in accordance with Rule 165a." 198th & 216th (Tex.) DIST. CT. RULES OF PRACTICE (Bandera, Gillespie, Kendall & Kerr Counties). Furthermore, according to the trial court's notice, Doss was required to make a showing of good cause to maintain the case on the docket.
On appeal, Doss complains generally about the trial court's decision to dismiss his case and, more specifically, that the trial court did not allow him to present evidence of good cause at the dismissal hearing. As to Doss's specific complaint that the trial court did not allow him to present evidence of good cause, the record shows otherwise. At the beginning of the hearing, the trial court asked, "Can either party explain to the Court why the case shouldn't be dismissed for want of prosecution?" In response, Doss presented argument, but he did not attempt to offer any evidence. Doss explained that the reason he did not diligently prosecute his case was because he was awaiting a ruling from the court on his summary judgment motion, he had asked for a jury trial in the case and had paid the jury fee, and his wife had died and he had undergone triple bypass surgery. Because the record shows Doss had an opportunity to present evidence of good cause, we reject Doss's complaint that he was not allowed to present evidence of good cause.
As to Doss's general complaint about the trial court's decision to dismiss, the record shows very little activity in the case over a long period of time. At the time of dismissal, five years had elapsed since the defendant's appearance date, which is far longer than the eighteen-month standard set by the Texas Supreme Court. The record also shows multiple periods of inactivity, each of which exceeded the nine-month time standard set by the local rules. At the dismissal hearing, Doss claimed that the inactivity was attributable to the trial court's failure to rule on his summary judgment motion. However, the local rules placed the burden on Doss to obtain a ruling on his summary judgment motion by setting the motion for a hearing. The record does not show that Doss sought to obtain a ruling on his summary judgment motion as required by the local rules. Doss also suggested that the delay was attributable to the trial court's failure to set the case for jury trial. However, again, the local rules placed the burden on Doss to obtain a jury setting, and nothing in the record shows that Doss followed the procedures in the local rules to obtain a jury setting. Instead, the record shows that Doss filed with the district clerk a motion to set the case on the jury docket, without taking any action to obtain a jury setting in the manner stated in the local rules. Finally, to the extent that Doss claimed that the inactivity in the case was attributable to his wife's death and his seven-month recovery from heart surgery, the trial court could have reasonably concluded that these events did not fully explain the lengthy, five-year delay in prosecuting this case.
The local rules provide:
When setting a civil case for pre-trial, jury trial, non-jury trial or post trial hearing, please call the Court Coordinator, prior to sending your Motion and Order Setting, to obtain available hearing dates. After you have available dates, please contact opposing counsel to obtain a date that is agreeable to all parties. Once you have an agreed date, fill that date in on your Order Setting and forward both your Motion and Order, along with a statement that the date is an agreed date, to the Court Coordinator for entry with the Court.198th & 216th (Tex.) DIST. CT. RULES OF PRACTICE (Bandera, Gillespie, Kendall & Kerr Counties).
THE DATES PROVIDED ARE NOT CONFIRMED UNTIL THE ORDER SETTING IS RECEIVED AND SIGNED BY THE COURT.
To request a setting in a jury case, the local rules provide:
A setting for trial on the merits will be made in response to a written Request for Setting submitted directly to the Court Coordinator at the Kerr County Office. The party requesting a setting should not file the Request for Setting with the Clerk.198th & 216th (Tex.) DIST. CT. RULES OF PRACTICE (Bandera, Gillespie, Kendall & Kerr Counties).
On this record, we cannot say the trial court's decision to dismiss the case was arbitrary and unreasonable. We conclude the trial court did not abuse its discretion in dismissing the case for want of prosecution. Doss's first issue is overruled.
MOTION TO REINSTATE
In his second issue, Doss argues that the trial court erred in denying his motion to reinstate because it failed to follow "the procedure and standards set forth in Rule 165a(3)." Rule 165(a)(3) of the Texas Rules of Civil Procedure provides that, after a case has been dismissed for want of prosecution, "[t]he court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." TEX. R. CIV. P. 165a(3). This standard is essentially the same as the standard for setting aside a default judgment. Martinez, 2016 WL 3085913, at *2 (citing Cappetta v. Hermes, 222 S.W.3d 160, 167 (Tex. App.—San Antonio 2006, no pet.)). A failure to diligently prosecute is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Id. Proof of such justification—whether it be by accident, mistake, or other reasonable explanation—negates the intent or conscious indifference for which reinstatement can be denied. Id.
When reviewing a ruling on a motion to reinstate, we consider whether the plaintiff provided proof of justification for his failure to prosecute the suit. Id. We consider the entire record. Id. A trial court does not abuse its discretion when it bases its ruling on conflicting evidence or when some evidence of a substantive and probative character exists to support the trial court's decision. Id.
In his motion to reinstate, Doss argued the case should be reinstated because the trial court had failed to perform its ministerial duty and rule on the parties' motions, particularly their summary judgment motions. However, the record does not show that the motions were set for hearing. At the hearing on the motion to reinstate, Doss represented that he had filed a written request for a setting on his summary judgment motion, but Doss was unable to produce a copy of such a request and the trial court found no such request in its file. Therefore, the trial court could have reasonably concluded that Doss failed to justify or reasonably explain his failure to prosecute the case in accordance with the time standards set by the Texas Supreme Court and the local rules. See TEX. R. CIV. P. 165a(3).
On this record, we cannot say the trial court's decision to deny the motion to reinstate was arbitrary or unreasonable. We conclude the trial court did not abuse its discretion in denying the motion to reinstate. Doss's second issue is overruled.
Doss also argues in his brief that his due process rights were violated because Judge Emerson failed to recuse himself, sua sponte, prior to the dismissal hearing. We cannot consider the factual assertions Doss makes in support of this argument because they are not supported by the appellate record. "[W]e do not consider factual assertions that appear solely in briefs and are not supported by the record." Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006); see also TEX. R. APP. P. 38.1(g),(i) (requiring an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
CONCLUSION
The trial court's judgment is affirmed.
Karen Angelini, Justice