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Doss v. Robinson

Court of Appeals of Texas, Fourth District, San Antonio

May 17, 2017

Louis V. DOSS, Appellant
v.
Deborah ROBINSON, Appellee

         From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 11-320-B Honorable Stephen B. Ables, Judge Presiding

          Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          Karen Angelini, Justice.

         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[1] 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.

         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 ...


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