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In re Bordelon

Court of Appeals of Texas, Twelfth District, Tyler

April 30, 2019



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Brian Hoyle, Justice

         Barbara Mott Bordelon filed this original proceeding in which she challenges the denial of her motion to dismiss for want of prosecution.[1] We conditionally grant the writ.


         On June 28, 2013, Real Party in Interest Lois Hale sued Albert N. Weathers and Bordelon for defamation, intentional infliction of emotional distress, and damages.[2] According to the petition, Bordelon and Weathers, believed to be in a romantic relationship, caused a felony complaint for harassment to be filed against Hale, which resulted in her arrest for an offense she says she did not commit. The petition further alleges that Bordelon pleaded "guilty" to fabricating physical evidence and confessed to sending text messages from a track phone to harass and cause Hale's arrest. Hale demanded a jury trial. Bordelon filed an original answer and a request for disclosure on July 30.

         On May 26, 2016, the Angelina County District Clerk informed Hale's counsel that the case had been on file for one year or longer and would be dismissed unless good cause is shown as to why the case should not be dismissed. The letter further advised that unless a written motion requesting that the case not be dismissed was filed within thirty days from May 26, an order would be entered dismissing the case at Hale's cost. On June 14, Hale filed a motion to retain, which stated that she "desires to pursue this cause of action and a disposition of this cause will occur within a reasonable length of time; for which reason [Hale] request[s] the Court to remove this case from the Dismissal Docket so that it might be brought to conclusion and justice done." The motion further requested a scheduling conference. On June 16, Respondent signed an order retaining the case on the docket.

         On May 2, 2018, Respondent signed a notice of hearing on the court's intention to dismiss the case for want of prosecution. The notice advised that the case would be dismissed unless a motion to retain was filed before May 21. Hale filed a motion to retain on May 14. This second motion to retain contained identical language to the first motion and again requested a scheduling conference. On May 28, Respondent signed an order retaining the case on the docket.

         In December, both Weathers and Bordelon filed motions to dismiss. In response, Hale argued that (1) new evidence surfaced in October 2018, (2) the co-defendants' stance changed because the two married, (3) the co-defendants engaged in further defamatory acts, thereby tolling the statute of limitations, and (4) she required mental health treatment because of the co-defendants' actions beyond the applicable eighteen-month time period, which serves as additional evidence of damages. In a supplemental response, Hale stated she could proceed to trial without additional discovery, "defendants cannot claim surprise as they determined in the five past years they did not need any discovery by their own deliberative actions," and the cause would not be further delayed except for unforeseen emergency. She further stated that she was ignored when she sought deposition dates and that the dismissal motions sought to usurp Respondent's power when the case was not on the dismissal docket.

         At the dismissal hearing on Weathers's motion, Hale testified that she filed charges against Bordelon in 2013 before filing suit. She acknowledged having financial problems because of surgery and work issues because of actions by Weathers and Bordelon, and not paying her attorney. She recently obtained some money and, approximately three months before the hearing, she asked her attorney to proceed. In October 2018, she discovered a letter, written in 2013, from Weathers to Bordelon, which created a concern that Weathers conspired to ruin Hale financially. Hale testified that she first saw the letter in the Angelina County District Attorney's file when they went to court before Bordelon was released from "probation" and she asked to read it. She had no previous knowledge of the letter.

         Hale further acknowledged receiving mental health treatment because of the litigation, for approximately one year but beyond the eighteen months from origination of the lawsuit. She could not pinpoint when treatment began, explaining that her memory was "not great" and she suffered three TIAs[3] and a mal stroke. Also beyond the eighteen-month time period, she learned that Weathers and Bordelon married, which furthered her suspicions of a conspiracy. She testified to contacting witnesses, collecting the offense report pertaining to Bordelon's arrest, text messages, and her mental health records, and attempting to mediate with Bordelon. She acknowledged conducting these activities early on in the proceeding but could not recall the dates because of her memory. She also participated in discussions with her attorney. On cross-examination, when asked about having five years to investigate, she testified, "I think we have tried to do some things." Because of her lack of funding and in the interest of justice, she sought to pursue the lawsuit to completion. Hale did not testify at the hearing on Bordelon's motion.

         Respondent subsequently granted Weathers's motion but denied Bordelon's motion. In a letter to the parties, Respondent stated, "Although action by Plaintiff in prosecuting the case is the same as to each Defendant, I do not find the converse to be true as to responses by each Defendant, most notably the absence of any objection by Defendant, Bordelon, to Plaintiff's Motions to Retain." On February 9, 2019, Respondent signed an order denying Bordelon's motion to dismiss and granting Hale's motion to retain the cause against Bordelon. This proceeding followed.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.- Tyler 2014, orig. proceeding.). "A trial court's erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged ...

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