Opinion
NUMBER 13-18-00008-CV
03-06-2018
IN RE TRANE U.S. INC. AND RIGOBERTO GARZA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case," but when "denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relators Trane U.S. Inc. and Rigoberto Garza filed a petition for writ of mandamus seeking to compel the trial court to vacate an order granting reinstatement of the underlying case after it was dismissed for want of prosecution. This original proceeding arises from a 2012 case regarding the alleged breach of a construction contract. We conditionally grant relief as stated herein.
This case arises from trial court cause number CR-12-4037-D in the County Court at Law No. 4 of Hidalgo County, Texas. The respondent in this original proceeding is the Honorable Fred Garza. See generally TEX. R. APP. P. 52.2.
I. BACKGROUND
According to the pleadings, the underlying breach of contract case arises from a subcontracting agreement between A.J.'s Steel Erectors, L.L.C. and STEX Industries (STEX) for the construction of a Family Dollar in Palmview, Texas. On November 15, 2012, A.J.'s Steel brought suit against STEX, Merdy Villarreal, and relators. On January 24, 2013, A.J.'s Steel obtained a final default judgment against STEX and Villarreal for, inter alia, $749,000.00 as the principal balance owed to A.J.'s Steel pursuant to contract.
On September 10, 2015, relators filed a motion to dismiss the case for want of prosecution. According to the motion, A.J.'s Steel "has done little to prosecute this case" since it was filed on November 15, 2012. Relators asserted that A.J.'s Steel had not engaged in any discovery since filing suit "other than including requests for disclosure in the original petition." Relators argued that A.J.'s Steel "requested a Level 2 discovery plan and, as a result, the discovery period expired on October 19, 2013, nine months after [relators] served responses to Plaintiff's requests for disclosure." The motion asserted that on January 24, 2013, A.J.'s Steel obtained a default judgment against codefendants STEX and Villarreal, but that A.J.'s Steel had not requested a trial setting. Relators asserted that A.J.'s Steel "has no reasonable excuse for delay in prosecuting" the case against them. In support of their motion to dismiss, relators argued that A.J.'s Steel failed to adjudicate this matter within the time standards promulgated by the Texas Supreme Court in its Administrative Rules and argued that the case should be dismissed pursuant to the trial court's inherent power. The trial court denied relators' motion to dismiss.
On May 25, 2017, the trial court sent the parties notice that the case was set for a dismissal hearing under Rule 165a of the Texas Rules of Civil Procedure on August 28, 2017 "to determine whether the above-referenced case should be dismissed for want of prosecution." See TEX. R. CIV. P. 165a. The court stated that the case would be dismissed for want of prosecution unless "good cause" was shown for maintaining the case on the docket.
On August 22, 2017, A.J.'s Steel filed a verified "Motion to Retain and Reinstate" in apparent response to the trial court's dismissal notice. A.J.'s Steel requested that the court set a trial date or enter a scheduling order, and also requested the court to "reinstate" the case. The motion asserted that on or about January 24, 2013, A.J.'s Steel obtained a judgment against defendants STEX Industries and Villarreal. A.J.'s Steel requested that the court retain the case "as it is in the process of being litigated" and asserted that there was "good cause" for the case to maintained on the docket.
On August 28, 2017, the trial court ordered the case dismissed for want of prosecution. That same day, A.J.'s Steel filed a motion to reconsider. The motion was verified and states in its entirety as follows:
Now Comes, A.J.'S STEEL ERECTORS, L.L.C., Plaintiff, and hereby requests that the Court Reconsider the dismissal of this case and assign a Trial date and/or Scheduling Order to the above styled and numbered cause. In addition, Plaintiff also requests this Court, under Rule 165a of the Texas Rules of Civil Procedure to reinstate this case.
I.
On or about August 28, 2017, the Dismissal Hearing was called in the docket. Attorney, Jorge Ortegon appeared in place of attorney of record Bobby Garcia; however, the case had already been called. The Plaintiff now moves this Court to Reconsider the Dismissal, as it is in the process of being litigated. There is good cause for the same to be maintained in the Court's Docket.
WHEREFORE, Plaintiff requests that this Court Reconsider and order the Reinstatement of this case.
Later that same day, relators filed a response to A.J.'s Steel's motion to reconsider. The response stated that the trial court had called several other cases on the dismissal docket before calling this case and that the court stated on the record that the case would be dismissed. Relators' response argued that A.J.'s Steel's motion to reconsider "is utterly without merit and fails to state any factual or legal basis on which the Court could find that good cause exists for the court to reconsider the order of dismissal." In addition to attacking A.J.'s Steel's failure to appear at the dismissal hearing, relators also argued that the case should be dismissed due to the delay in its prosecution:
In addition to the failure of Plaintiff's attorneys to appear on time for the dismissal hearing, there are ample reasons for the court to dismiss this case for want of prosecution. Plaintiff filed this lawsuit on November 15, 2012 and has done little to prosecute this case since that time. Plaintiff has not engaged in any discovery since filing suit other than including requests for disclosure in the original petition. Plaintiff requested a Level 2 discovery plan and as a result, the discovery period expired on October 19, 2013, nine months after Defendants served responses to Plaintiff's requests for disclosure. On January 24, 2013 Plaintiff obtained a default judgment against codefendants STEX Industries and Merdy Villarreal. Although this lawsuit has been on file for almost five years, no trial setting has ever been requested. On September 10, 2015 counsel for Defendants filed a Motion to Dismiss for Want of Prosecution and the court conducted a hearing on that motion on October 28, 2015. Although the court would have been within its discretion to dismiss this case for want of prosecution at the time of the hearing on Defendants' motion, it chose to deny the motion at that time. Now, twenty two months later, the Plaintiff has still done absolutely nothing to prosecute this case and the Court appropriately set the case for a dismissal hearing pursuant to Rule 165a of the Texas Rules of Civil Procedure. Plaintiff has not provided any reasonable excuse for the delay in prosecuting this matter against Defendants.Relators further reargued that A.J.'s Steel had failed to adjudicate this matter within the time standards promulgated in the administrative rules and argued that the trial court had inherent power to dismiss the lawsuit as a result of A.J.'s Steel's lack of diligence.
On October 11, 2017, the trial court held a hearing on A.J.'s Steel's motion to reconsider. Jorge Ortegon appeared for Bobby Garcia. Ortegon testified that Garcia had a "family emergency or some sort of emergency" and was unable to appear. Ortegon argued as follows:
And Judge, if I may briefly, there was originally a DWOP setting, Judge; however, we are here on a Motion to Reconsider, Judge. The issue with that day was I did arrive—I arrived at 9:07 [and] the case was called right at 9:00. It was the first case called on that day. If the Court would let me—I actually did text the Bailiff at 8:38 that morning that I had to stop at Court 7 and anybody who's been in Court 7 knows that sometimes you get held up in that court where you actually can't leave. So I texted the Bailiff; however, the text never really went through I guess it was an issue, it was an Apple-to-Apple thing, it never said delivered.
So as soon as I was able to leave Court 7, Judge, I ran over here—I got over here at 9:07 and I found out when we were looking for the case that it was the first one that had gotten called, Judge. There was no way that I could have been here, like I said, I got held up in Court 7, I tried leaving several times. I did get here seven minutes late; however, like I said I did send a text about 25 minutes ahead of time to the Bailiff letting him know that I would be checking in and stopping in another court real quick, but of course I got held up in there, Judge and got here on that day.
A.J.'s Steel's counsel further asserted that it was in the process of "getting some names for depositions." He argued that counsel for the defense filed a motion for summary judgment or "their own DWOP" in 2016 "that was denied by the Court." Counsel argued that this "backtracked" how A.J.'s Steel wanted to proceed, "however, they're preparing and they're getting ready to take depositions and things like that."
Relators' counsel argued that the facts recounted by plaintiff's counsel were "a little off," but stated that he did not think it "really matters." He asserted that this was not the first case that was called on the dismissal docket and that he was present in the courtroom until "probably 9:20 or so." He further argued:
But more fundamental[ly] Judge, this is a case that's been on file since 2012. The Court did hear a Motion for Summary Judgment and in its
discretion denied it. We had filed our own Motion to Dismiss and those motions were filed in 2015. You conducted a hearing on both and denied both motions.
. . . .
The point here is that the discovery period ended October of 2015. There's been the only discovery which has occurred in this case was there was a Request for Disclosures which was filed with the petition, that was answered in January of 2015 and there's not been a lick of discovery since that time. No one has ever contacted me requesting depositions. There's been nothing that has occurred in this case. When the Court issued the Rule 165 notice, 165(A) notice there was a Motion to Reinstate filed at that time by Mr. Garcia.
. . . .
It provided no explanation for the lack of activity on the case. After the issue came up on the date of the dismissal hearing, there was a Motion to Reconsider which is what we're here on today which explained that Mr. Ortegon had arrived late and that happens. I don't have any heart burn with his explanation, but the point, Judge, is to this day no one has ever provided you with an explanation for the non-prosecution of this lawsuit for the lack of discovery for the lack of any activity.
And so here we sit close to five years after the lawsuit was filed, nothing's happened. There has been no explanation provided that would suffice under Rule 165(A) so we think it's high time that the Court went ahead and dismiss the case for Want of Prosecution. And your order was entered on August the 28th and the Motion to Reconsider was filed by Mr. Garcia on August the 28th. We filed a response to that motion on August 28th and there's nothing else to be done . . . .
A.J.'s Steel's counsel reiterated the contentions he had asserted previously regarding his attempted appearance at the hearing and offered to provide proof that he had appeared at court that day, although belatedly. He again argued that A.J.'s Steel was "in the process of getting things in order for depositions," "this case is moving forward," and "it is being litigated." According to A.J.'s Steel's counsel, "[i]t has been a longer case, but there are a lot of different parties, there's a lot of issues going on in this case that are being resolved and like l said, Judge, they are in the process of, you know, getting ready." Near the conclusion of the hearing, the parties clarified that relators were the only defendants remaining in the case.
On November 14, 2017, the trial court entered an order granting A.J.'s Steel's motion to reconsider and reinstated the case. This original proceeding ensued.
By one issue, relators assert that the trial court abused its discretion by granting the motion to reconsider and reinstating this case despite the "presumption" that A.J.'s Steel "abandoned its claims by waiting a period of five years before prosecuting its claims and obtaining a trial setting." This Court requested and received a response to the petition for writ of mandamus from A.J.'s Steel. A.J.'s Steel argues that mandamus should be denied because: (1) relators delayed filing the petition for writ of mandamus; (2) relators were required to present their complaints to the trial court before presenting their complaints to this Court; (3) the trial court did not abuse its discretion in reinstating the case where A.J.'s Steel's counsel explained that he did not appear at the dismissal hearing because "he was preoccupied in another court and had attempted to contacted the court's bailiff"; (4) the trial court did not abuse its discretion in reinstating the case "because it believe[d] one attorney over another"; and (5) the trial court did not abuse its discretion in reinstating the case because it had set a trial date and the parties were attempting to schedule depositions.
II. STANDARD OF REVIEW
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). To obtain relief by writ of mandamus, a relator must establish that an underlying order is a clear abuse of discretion and that no adequate appellate remedy exists. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker, 827 S.W.2d at 840.
An abuse of discretion occurs when the trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). Similarly, a trial court abuses its discretion when it fails to analyze or apply the law correctly. In re Nationwide, 494 S.W.3d at 712; In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. A trial court's erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged on appeal, and the refusal is thus subject to review by petition for writ of mandamus. In re Conner, 458 S.W.3d 532, 535 (Tex. 2015) (orig. proceeding) (per curiam).
III. WAIVER
A.J.'s Steel argues that we should deny this petition for writ of mandamus based on the relators' delay in filing this original proceeding. Here, the trial court granted reinstatement of the case on November 14, 2017, and relators filed this petition for writ of mandamus on January 4, 2018. This is an alleged delay of fifty-one days. A.J.'s Steel does not argue that the delay has resulted in a detrimental change to its position or has in any other way caused it prejudice. The Texas Supreme Court has held that a two-month delay in seeking mandamus relief is not necessarily unreasonable. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam); see Strickland v. Lake, 357 S.W.2d 383, 384 (Tex.1962) (orig. proceeding); In re Cypress Tex. Lloyds, 437 S.W.3d 1, 6 (Tex. App.—Corpus Christi 2011, orig. proceeding). Based upon the record before us, we similarly conclude that the delay was not unreasonable as a matter of law. See In re Laibe Corp., 307 S.W.3d at 318; In re Cypress Tex. Lloyds, 437 S.W.3d at 6. We therefore reject A.J.'s Steel's argument that equitable considerations bar our consideration of this petition for writ of mandamus. We now turn to the merits of this original proceeding.
IV. DISMISSALS FOR WANT OF PROSECUTION
Trial courts are generally granted considerable discretion when it comes to managing their dockets; however, such discretion is not absolute. See In re Conner, 458 S.W.3d at 534. Accordingly, a plaintiff has a duty to prosecute its lawsuit to a conclusion with "reasonable diligence," and if the plaintiff fails in that duty, the trial court may dismiss the case for want of prosecution. In re Conner, 458 S.W.3d at 534; Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. 1942). The party opposing the dismissal has the burden to produce evidence showing good cause for its delay in prosecuting the case. Cotten v. Briley, 517 S.W.3d 177, 182 (Tex. App.—Texarkana 2017, no pet.); Tex. Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.).
The trial court may dismiss a suit that has not been prosecuted with reasonable diligence under either its inherent authority or Rule 165a of the Texas Rules of Civil Procedure. In re Conner, 458 S.W.3d at 534; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see TEX. R. CIV. P. 165a. Under Texas Rule of Civil Procedure 165a, the trial court may dismiss a case for want of prosecution in two circumstances: (1) when a party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice; or (2) when a case is "not disposed of within time standards promulgated by the Supreme Court." TEX. R. CIV. P. 165a. In such cases, "[a] court shall dismiss . . . unless there is good cause for the case to be maintained on the docket." Id.
To decide the diligence issue, trial courts consider the entire history of the case. Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729-30 (Tex. App.—San Antonio 2012, pet. denied); Welborn v. Ferrell Enters., 376 S.W.3d 902, 907 (Tex. App.—Dallas 2012, no pet.); King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied). A trial court generally will consider four factors in deciding whether to dismiss a case for want of prosecution: (1) the length of time the case has been on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for the delay. Henderson v. Blalock, 465 S.W.3d 318, 321-22 (Tex. App.—Houston [14th Dist.] 2015, no pet.); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied); Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.). No single factor is dispositive. Dobroslavic, 397 S.W.3d at 729; Scoville, 9 S.W.3d at 204; Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The central issue is whether the plaintiff exercised due diligence in prosecuting the case, and we review the entire record to determine whether the trial court abused its discretion. Henderson, 465 S.W.3d at 321.
Nevertheless, the Texas Supreme Court has held that a trial court abuses its discretion by refusing to grant a motion to dismiss for want of prosecution in the face of "unmitigated and unexplained delay." In re Conner, 458 S.W.3d at 534. A delay of an "unreasonable" duration, if not sufficiently explained, will raise a "conclusive presumption" of abandonment of the plaintiff's suit. Id.; see Callahan, 161 S.W.2d at 491. The failure to provide "good cause" for the delay "mandates" dismissal. In re Conner, 458 S.W.3d at 535. Courts have found that various periods of delay justify application of this presumption. See e.g., id. at 534 (finding that a nine-year delay without an explanation of good cause mandated dismissal); Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (finding that a seven-and-one-half year delay failed to satisfy the demands of reasonable diligence); Denton Cty. v. Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (same for a five-year delay); Bevil v. Johnson, 307 S.W.2d 85, 88 (Tex. 1957) (same for an eight-year delay).
V. ANALYSIS
We first address A.J.'s Steel's contention that mandamus relief should be denied because relators did not argue that the case should be dismissed due to "abandonment" to the trial court and that they raise this argument for the first time in this original proceeding. A.J.'s Steel thus argues that this argument for dismissal was not preserved. See generally TEX. R. APP. P. 33.1; In re Advance Payroll Funding, Inc., 254 S.W.3d 710, 714 (Tex. App.—Dallas 2008, orig. proceeding) (holding that arguments not presented to the trial court will not be considered in a petition for writ of mandamus). A.J.'s Steel contends that the trial court originally dismissed the case because its counsel failed to appear at the dismissal hearing and because the trial court accepted its argument that the absence was not intentional or the result of conscious indifference, therefore reinstating the case.
We disagree with A.J.'s Steel's view of the record. Relators repeatedly argued to the trial court that the case was "not disposed of within [the] time standards promulgated by the Supreme Court" and invoked the trial court's inherent authority to dismiss the case. See TEX. R. CIV. P. 165a(2); Villarreal, 994 S.W.2d at 630. Relators expressly made this argument on September 10, 2015 in their original motion to dismiss, on August 28, 2017 in their response to A.J.'s Steel's motion to reconsider, and on October 11, 2017 in oral argument at the hearing on A.J.'s Steel's motion to reconsider. In fact, the thrust of counsel for relators' argument at the hearing was the failure to prosecute the case. Accordingly, our review of this matter is not limited to grounds for dismissal pertaining to A.J.'s Steel's failure to appear at the dismissal hearing. See TEX. R. CIV. P. 165a(1).
We turn to whether the trial court abused its discretion in reinstating this case "in the face of unmitigated and unexplained delay." In re Conner, 458 S.W.3d at 534. Our rules of judicial administration require district and statutory county courts to ensure, "so far as reasonably possible," that civil cases in which a jury has been demanded, other than those arising under the family code, are brought to trial or final disposition within eighteen months after the appearance date, and civil non-jury cases within twelve months after the appearance date. See TEX. R. JUD. ADMIN. 6.1(b)(1),(2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. F app. (West, Westlaw through 2017 1st C.S.). We note that the record here does not include a jury demand. In any event, this case has been on file for five years, which well exceeds the period of time for disposition of the case as suggested by the Texas Rules of Judicial Administration. See id. The Texas Supreme Court has held that a similar period of delay was unreasonable. See Denton Cty., 361 S.W.2d at 201. Other courts have upheld dismissals on direct appeal regarding delays encompassing shorter periods of time. See, e.g., Henderson, 465 S.W.3d at 322 (upholding a dismissal where the delay encompassed three years and five months); see also Regent Care Ctr. at Med. Ctr. v. Hollis, No. 04-16-00131-CV, 2017 WL 1337652, at *2 (Tex. App.—San Antonio Apr. 12, 2017, no pet.) (mem. op.) (affirming a dismissal where the duration of the delay extended more than three years). Overall, there has been minimal activity in the case. A.J.'s Steel sent requests for disclosures to all of the defendants with its original petition in 2012 and obtained a default judgment against two defendants in 2013. The record shows no other activity on the part of A.J.'s Steel to litigate this matter during the five-year period that this suit has been pending. Counsel for A.J.'s Steel neither offered evidence showing good cause for the delay in prosecuting the case nor any cogent rationales, excuses, or explanations for the delay.
A.J.'s Steel contends that the trial court properly exercised its discretion in reinstating the case because the case has been set for trial and it is attempting to schedule depositions. Citing various cases, A.J.'s Steel argues that "past inactivity is forgiven" when the plaintiff has secured a trial setting and is otherwise making a diligent effort to get the case to trial. See, e.g., Moore v. Armour and Co., 660 S.W.2d 577, 578 (Tex. App.—Amarillo 1983, no writ); Wm. T. Jarvis Co., Inc. v. Wes-Tex Grain Co., 548 S.W.2d 775, 778 (Tex. Civ. App.—Waco 1977, writ ref'd n.r.e.); Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ. App.—Houston 1967, writ ref'd n.r.e.). We disagree with this interpretation of the law.
A.J.'s Steel's contention runs counter to established case law holding that when resolving a question of diligent prosecution, a court may consider the entire history of the litigation, and no single factor controls the analysis. See Dobroslavic, 397 S.W.3d at 729; Scoville, 9 S.W.3d at 204. The existence of a trial setting is not determinative of the issue of diligence and it is merely one factor which may be considered in conjunction with other circumstances. Coven v. Heatley, 715 S.W.2d 739, 741 (Tex. App.—Austin 1986, writ ref'd n.r.e.). Further, "stated readiness to proceed to trial does not conclusively establish diligence." Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 739 (Tex. App.—Waco 2005, pet. denied). Moreover, any actions taken by A.J.'s Steel after the dismissal, including its action in obtaining a trial setting, do not enter into the analysis of whether diligence has been exercised. Cotten, 517 S.W.3d at 184; Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 198 (Tex. App.—San Antonio 1998, no pet.) (requesting a trial setting after the receipt of a notice of a dismissal hearing does not excuse sixteen months of inactivity).
Based upon this record, A.J.'s Steel has not established good cause for its five year delay in prosecuting this suit. The delay of five years, which is unmitigated and largely unexplained, raises a "conclusive presumption" that A.J.'s Steel has not diligently prosecuted its suit. See In re Conner, 458 S.W.3d at 534; Callahan, 161 S.W.2d at 491. Absent any reasonable explanation for the delay, the trial court clearly abused its discretion by disregarding the conclusive presumption of abandonment. See In re Conner, 458 S.W.3d at 535; Callahan, 161 S.W.2d at 491; see also Walker, 827 S.W.2d at 840 ("[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ."). Therefore, the trial court abused its discretion by reinstating the case.
Mandamus will issue to correct such an abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). According to our supreme court:
A trial court's erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged on appeal. A defendant should not be required to incur the delay and expense of appeal to complain of delay in the trial court. To deny relief by mandamus permits the very delay dismissal is intended to prevent. In addition, the danger that a trial will be hampered by stale evidence and lost or clouded memories is particularly distinct after the delay in this case.In re Conner, 458 S.W.3d at 535. While addressing the denial of a motion to dismiss a case for want of prosecution, the rationale underlying Conner applies equally to the granting of a motion to reinstate following dismissal for want of prosecution. See id. Thus, relators lack an adequate remedy by appeal.
VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus, the mandamus record before us, the response, and the applicable law, is of the opinion that the relators have established their right to the relief sought. Accordingly, we lift the stay that we previously imposed in this case. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We conditionally grant the petition for writ of mandamus and direct the trial court to vacate its order reinstating the case and to dismiss this suit for want of prosecution. See id. R. 52.8(c). We are confident the trial court will promptly comply, and our writ will issue only if it does not.
NORA L. LONGORIA
Justice Delivered and filed the 6th day of March, 2018.