Court of Appeals of Texas, Seventh District, Amarillo
ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
QUINN, C.J., and PIRTLE and PARKER, JJ.
QUINN, CHIEF JUSTICE
Callano petitioned for a writ of mandamus. He asks that we
direct the Honorable Stuart Messer, Judge of the 100th
Judicial District Court, to dismiss the civil forfeiture
action filed by the State of Texas in Carson County, assigned
No. 11707, and styled State of Texas v. Approximately
$198, 006.00 United States Currency. He argues that the
proceeding was "conclusively abandoned" by the
State because there had been no final disposition of it
within twelve months of the date he filed an answer and
appeared in the cause. We deny the petition.
cannot be doubted that a plaintiff has the duty to prosecute
his suit to a conclusion with reasonable diligence. In re
Conner, 458 S.W.3d 532, 534 (Tex. 2015). Furthermore,
Texas Rule of Civil Procedure 165a(2) provides that
"[a]ny case not disposed of within time standards
promulgated by the Supreme Court under its Administrative
Rules may be placed on a dismissal docket." Tex. R. Civ.
P. 165a(2). And, absent any reasonable explanation
for the delay, the trial court would be authorized to dismiss
it. In re Conner, 458 S.W.3d at 535.
the administrative rule in play is Rule 6.1 (a)(2). It
provides that "[d]istrict and statutory county court
judges of the county in which cases are filed should, so far
as reasonably possible, ensure that all cases are brought to
trial or final disposition in conformity with the following
time standards . . . Civil Nonjury Cases. -Within 12 months
from appearance date." Tex. R. Jud. Admin 6.1(a)(2).
Callano argues that this rule was violated which mandates the
dismissal of the State's suit.
record at bar illustrates that Callano filed his answer or
appearance in the forfeiture case on May 5, 2016. Thus, the
suit allegedly had to be finally disposed of by May 5, 2017,
absent a reasonable explanation for the delay. Since the suit
remained pending on the trial court's docket once the
anniversary date passed, Callano moved to dismiss it. The
matter came for hearing.
hearing, the State informed the trial court not only that
discovery it served on Callano remained unanswered but also
that it had moved for summary judgment. That led the trial
court to discuss the outstanding discovery with Callano's
attorney. Said attorney conceded that the discovery was
outstanding but argued that such was of no consequence
because it was the State's obligation to compel him to
comply. That lead the trial court to ask: "[a]nd so if
they had a Motion to Compel and asked for attorneys fees, you
think that would be appropriate because you're telling me
that you did it deliberately?" (Emphasis
added). Callano's attorney replied: "If they had
done that within the time period that they had to prosecute
this case before it was abandoned, I would agree with
that a hundred percent, Your Honor." (Emphasis
foregoing exchange reveals the presence of a reason for the
delay, at least in part. Despite the expectation that parties
and their attorneys cooperate in discovery, Tex. R. Civ.
P. 191.2, Callano "deliberately" neglected
to respond to discovery served on him by the State and
admitted through his attorney that his conduct would warrant
the imposition of sanctions if the suit were not subject to
dismissal. So, the trial court had evidence before it (i.e.,
the admission by Callano's attorney) from which it could
reasonably infer that Callano resurrected impediments to
"the efficient disposition of the case."
Id. (obligating the parties and their attorneys to
also make any agreements regarding discovery reasonably
necessary "for the efficient disposition of the
mandamus may be a legal remedy, the equitable doctrine of
unclean hands plays a role in its availability. See
Axleson, Inc. v. McIhany, 798 S.W.2d 550, 552 n.2 (Tex.
1990) (orig. proceeding) (stating that "[m]andamus is a
legal remedy, but it is governed to some extent by suitable
principles" and "the doctrine of unclean hands has
been used to deny issuance of the writ."); In re Jim
Walter Homes, Inc., 207 S.W.3d 888, 899 (Tex.
App.-Houston [14th Dist.] 2006, orig. proceeding) (stating
the same). Moreover, the doctrine normally applies to
situations where one's own conduct in connection with the
matter in dispute has been unconscientious, unjust or a want
of good faith and such conduct exposed the complaining party
to injury. In re Jim Walter Homes, 207 S.W.3d at
899. We find it rather problematic to dismiss the State's
suit because of a delay in its timely disposition when the
delay was caused, in part, by Callano's deliberate
disregard of his obligation to cooperate in discovery. That
would be tantamount to rewarding him for his unconscientious
actions to the rather extreme detriment of the State.
short, the trial court had before it both a reasonable
explanation of the delay and the State's motion for
summary judgment filed in effort to dispose of the suit, as
required by In re Conner. Additionally, the relief
asked of us tends to reward Callano for his own deliberate
conduct that violated the rules of ...