Court of Appeals of Texas, Fourth District, San Antonio
Louis V. DOSS, Appellant
Deborah ROBINSON, Appellee
the 198th Judicial District Court, Kerr County, Texas Trial
Court No. 11-320-B Honorable Stephen B. Ables, Judge
Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice
Irene Rios, Justice.
appeal, Louis V. Doss challenges the dismissal of his case
for want of prosecution and the denial of his motion to
reinstate. We affirm.
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.
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.
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
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.
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
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.
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.