Opinion
No. 04-16-00269-CV
05-03-2017
IN THE ESTATE OF Billye M. HORMUTH, Deceased
MEMORANDUM OPINION
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2011PC4120
Honorable Tom Rickhoff, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This is the second appeal this court has considered relating to Barry Hormuth's application to probate a will allegedly executed by Billye M. Hormuth on October 13, 2010. In the first appeal, we reversed the trial court's order granting a motion in limine and dismissing Barry's application for lack of standing, and we remanded the cause to the trial court for further proceedings. See In re Estate of Hormuth, No. 04-14-00105-CV, 2014 WL 4438491, at *3 (Tex. App.—San Antonio Sept. 10, 2014, no pet.) (mem. op.) (Hormuth I). The sole issue presented in this second appeal is whether the trial court erred in dismissing Barry's application for want of prosecution. We affirm the trial court's order.
BACKGROUND
Billye died on October 16, 2011 and was survived by her two children, Beverly Haddock and Barry. On October 31, 2011, the trial court admitted Billye's will, dated December 30, 1985, for probate and appointed Beverly as the independent executrix of the estate. In the 1985 will, Billye devised her estate to Barry and Beverly in equal shares. On January 24, 2012, the trial court approved the inventory filed by Beverly.
On May 17, 2012, Barry filed an "Application to Probate Will and for Issuance of Letters Testamentary," seeking to admit for probate a will allegedly executed by Billye on October 13, 2010. Barry also filed a pleading entitled "Petition," in which he contested the probate of the 1985 will on the basis that it was revoked by the 2010 will. In the 2010 will, Billye revoked all prior wills and devised $10,000 to Beverly, $10,000 to Billye's two grandsons, and all remaining real and personal property to Barry.
On October 22, 2013, Barry filed motions for traditional and no-evidence summary judgment on the claims raised in his contest to the 1985 will, and Beverly filed a response to those motions on November 26, 2013. Also on November 26, 2013, Beverly filed a "Motion in Limine to Dismiss for Lack of Standing Plaintiff's Suit to Probate 2010 Will." The trial court granted the motion in limine and dismissed Barry's application to probate the 2010 will. Barry appealed, and, as previously noted, this court reversed the trial court's order and remanded the cause for further proceedings. In re Estate of Hormuth, 2014 WL 4438491, at *3. On February 13, 2015, this court's mandate was issued in Hormuth I, restoring jurisdiction in the trial court.
Although Barry's motions and Beverly's response are not contained in the clerk's record filed in this appeal, this court refers to the motions and response in Hormuth I. See In re Estate of Hormuth, 2014 WL 4438491, at *1.
In Hormuth I, we noted the trial court also dismissed Barry's contest of the 1985 will; however, we held the trial court erred in ruling on the motion for summary judgment relating to the contest without proper notice. See id. at *1 n.2.
After this court's mandate issued, the appellate record does not contain any additional filings until December 22, 2015, when Beverly filed a motion to dismiss Barry's suit for want of prosecution. Beverly asserted the lawsuit should be dismissed because Barry had not prosecuted his claims with due diligence. Barry filed a response setting forth actions he claimed were taken after this court's mandate issued, including (1) his attorney sent a detailed settlement offer on April 25, 2015, to which no response was received; (2) his attorney filed corrected affidavits to his motion for summary judgment in July of 2015, and set a hearing for August 25, 2015; (3) his attorney agreed to reset the hearing to September 17, 2015 at the request of Beverly's attorney; and (4) Beverly's attorney requested the setting be dropped in late August so the parties could try to settle. After that request, Barry's response states he was considering his options with regard to scheduling a settlement conference when the motion to dismiss was filed on December 22, 2015.
After a hearing, the trial court signed an order on January 22, 2016, granting the motion to dismiss. In its order, the trial court included the following findings:
The decedent's Last Will and Testament dated December 30, 1985 was admitted to probate on October 17, 2011. This court approved the Inventory and List of Claims on January 24, 2012. The independent executor began implementing the terms of the will and property was distributed to Barry Hormuth from the estate in the form of a deed to real property and a partial distribution of $50,000 on April 11, 2012. One month later, on May 17, 2012, after having already received a partial distribution of the estate, Plaintiff filed his original petition contesting the will which had been admitted to probate and seeking, instead, to probate a will dated October 13, 2010. Plaintiff took no action for more than a year after the filing of his suit. Plaintiff has never requested a trial setting during the four years this matter has been pending. Plaintiff has not engaged in any discovery except to propound a single request for disclosure. Plaintiff has not timely responded to discovery sent to him. A request for disclosure was propounded to plaintiff on June 21, 2012. Plaintiff did not respond until more than seven months later, on January 2, 2013. Plaintiff's only act of diligence has been to prosecute an appeal of one of this court's prior rulings. However, the mandate issued on February 13, 2015, and in the nearly 12 months since, Plaintiff has taken virtually no action to pursue his case other than to request a single resetting of a motion filed nearly two years ago. That setting was subsequently dropped.Based on the recited facts, the trial court concluded Barry had not prosecuted his claims with due diligence and dismissed the claims. Barry appeals, asserting the trial court erred in granting the motion to dismiss.
The will was actually admitted to probate on October 31, 2011.
Although Barry also filed a motion to reinstate, he does not challenge the trial court's denial of that motion on appeal. We note the trial court's order denying the motion to reinstate recites Barry failed to appear at the hearing on the motion resulting in a default.
STANDARD OF REVIEW
An appellate court reviews a trial court's order dismissing a case for want of prosecution under an abuse of discretion standard. Henderson v. Blalock, 465 S.W.3d 318, 321 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 728 (Tex. App.-San Antonio 2012, pet. denied). "A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules and principles." Dobroslavic, 397 S.W.3d at 728; accord In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016).
LAW GOVERNING DISMISSALS FOR WANT OF PROSECUTION
"The trial court's authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court's inherent power." Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); accord Dobroslavic, 397 S.W.3d at 727. Under its inherent power, the trial court may dismiss "when a plaintiff fails to prosecute his or her case with due diligence." Villarreal, 994 S.W.2d at 630; accord Dobroslavic, 397 S.W.3d at 728.
To determine if a plaintiff has exercised reasonable diligence, a trial court generally considers the following factors: (1) the entire history of the case and the length of time the case has been on file, (2) the extent of activity in the case and periods of inactivity, (3) whether a trial setting was requested, and (4) the existence of reasonable excuses for the delay. Henderson, 465 S.W.3d at 321; Dobroslavic, 397 S.W.3d at 729; Welborn v. Ferrell Enters., Inc., 376 S.W.3d 902, 907 (Tex. App.—Dallas 2012, no pet.). "No single factor is dispositive." Henderson, 465 S.W.3d at 321; Dobroslavic, 397 S.W.3d at 729. "The central issue is whether the plaintiff exercised due diligence in prosecuting the case . . . ." Henderson, 465 S.W.3d at 321.
ANALYSIS
In this case, Barry filed his application and contest on May 17, 2012. Although one set of discovery was exchanged in June of 2012, which Barry failed to answer for seven months, no additional activity occurred in the case until Barry filed his motions for summary judgment in October of 2013, almost sixteen months later. After Barry appealed the trial court's order granting Beverly's motion in limine, this court acquired plenary jurisdiction over the cause, and the trial court's authority to act was extremely limited until this court's plenary power expired on January 5, 2015. See TEX. R. APP. P. 19.1(a) ("A court of appeals' plenary power over its judgment expires . . . 30 days after the court overrules all timely filed motions for rehearing or en banc reconsideration, and all timely filed motions to extend time to file such a motion."); Saudi v. Brieven, 176 S.W.3d 108, 114 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
As previously noted, the only activity reflected in the appellate record after the trial court regained plenary power was Beverly's filing of the motion to dismiss on December 22, 2015. No reporter's record was made of the hearing on Beverly's motion to dismiss. In the absence of such a record, we must presume the trial court had "all necessary facts to support [its order] and passed on such facts which were necessary to support the [order]." Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex. App.—San Antonio 1989, writ denied). When the record does not show the complaining party offered evidence at the hearing on dismissal, "there is no abuse of discretion by the trial court in dismissing the cause for want of prosecution." Id.
Even if we consider the activity Barry references in his response to Beverly's motion, we still conclude the trial court did not abuse its discretion. See Henderson, 465 S.W.3d at 321; Dobroslavic, 397 S.W.3d at 729. First, Barry states his attorney sent a settlement offer on April 25, 2016, two months after our mandate issued, to which he received no response. However, "[i]t is well established that neither settlement activity nor the passive attitude of opposing parties excuses a want of diligent prosecution." F.D.I.C. v. Kendrick, 897 S.W.2d 476, 481 (Tex. App.—Amarillo 1995, no writ); see also Cruz v. Owens Handle Co., No. 04-02-00291-CV, 2003 WL 44797, at *2 (Tex. App.—San Antonio Jan. 8, 2003, no pet.) (mem. op.) ("[S]ettlement activity does not excuse want of diligent prosecution."). After the settlement offer was sent, Barry took no additional action until three months later when he states he filed corrected affidavits to his motion for summary judgment on July 21, 2015, and set the motion for a hearing on August 25, 2015. See Welborn, 376 S.W.3d at 907 (noting that the trial court may consider periods of inactivity in assessing plaintiff's diligence). After the hearing was reset to September 17, 2015, Barry states that in late August of 2015, the setting was dropped at the request of Beverly's counsel to set up a conference or a mediation to try to settle the case. Barry admits he took no additional action before the motion to dismiss was filed on December 22, 2015, because he was considering his options. But see Cruz, 2003 WL 44797, at *2 ("[S]ettlement activity does not excuse want of diligent prosecution."); Kendrick, 897 S.W.2d at 481 (same). Therefore, the record reflects an additional four months of inactivity from late August of 2015 to December 22, 2015, when the motion to dismiss was filed. See Welborn, 376 S.W.3d at 907 (noting trial court may consider periods of inactivity in assessing plaintiff's diligence). Finally, the record does not reflect that Barry ever requested a trial setting. Contra Henderson, 465 S.W.3d at 321 (requiring "due diligence in prosecuting the case"); Dobroslavic, 397 S.W.3d at 729 (same).
CONCLUSION
Because the record supports the trial court's finding that Barry failed to prosecute his claims with due diligence, the trial court did not abuse its discretion in granting Beverly's motion to dismiss Barry's lawsuit. The trial court's order is affirmed.
Patricia O. Alvarez, Justice