Court of Appeals of Texas, Third District, Austin
Stephen J. Seavall, Appellant
The Cadle Company, Appellee
THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-13-000273, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
Justices Goodwin, Baker, and Shannon [*]
an appeal from an order of the district court of Travis
County dismissing a case for want of prosecution. Appellant
is Stephen J. Seavall; appellee is the Cadle Company. This
Court will affirm the order.
March 2013, the district court, in response to Cadle's
Rule 201.2 motion, ordered Seavall to submit to a deposition
and to respond to discovery requests. See Tex. R.
Civ. P. 201.2 (allowing for deposition of witness in Texas
pursuant to "a mandate, writ, or commission" issued
by another state). Seavall, however, sought and received
mandamus relief in this Court. See In re Seavall,
No. 03-13-00205-CV, 2013 WL 3013872 (Tex. App.-Austin. June
11, 2013) (orig. proceeding) (mem. op.). This Court concluded
that the New Mexico judgment, upon which Cadle's
discovery order was predicated, was dormant and not the
proper subject for post-judgment discovery. Id. at
*2-3. Accordingly, this Court directed the district court to
vacate its order, which it did.
Seavall then filed a sanctions motion in district court,
which he later amended and supplemented, seeking sanctions
against Cadle for its previously sought discovery efforts. In
the sanctions filings, he requested, among other things, that
the court render a declaratory judgment that Cadle's
discovery efforts and conduct constituted an abuse of
process. After hearing, the district court denied
Seavall's sanctions motion in January 2015.
more than three years the case lay dormant with no activity
by either party. This dead calm was broken in June 2018, when
the Travis County District Clerk sent the parties notice that
the case was set for dismissal for want of prosecution unless
a motion to retain was filed. The dismissal notice prompted a
flurry of filings by Seavall, including an original and a
supplemental motion to retain and a third supplemental motion
and claims for abuse of process, for sanctions and for
attorney's fees, costs, expenses, and interest.
did not oppose dismissal of the case. To the contrary, Cadle
moved to strike Seavall's motion to retain and further
moved to "close the case" and remove it from the
court's docket. Upon hearing, the district court signed
its order denying Seavall's motion to retain, granting
Cadle's motion to "close" the case and removing
it from the court's docket.
Court, Seavall suggests that "there may be no final
judgment and jurisdiction may still be vested with [sic] the
trial court." This is so, Seavall contends, because
"the trial court simply ordered the case be closed
without adjudicating any of the claims presented."
close means "to bring to an end." Close,
Black's Law Dictionary (10th ed. 2014).
Considering the nature and purpose of the hearing (dismissal
for want of prosecution), we think it plain that
"closing the case and removing it from the docket"
is equivalent to a dismissal of the case.
"a judgment issued without a conventional trial is final
for purposes of appeal if and only if either it actually
disposes of all claims and parties then before the court,
regardless of its language, or it states with unmistakable
clarity that it is a final judgment as to all claims and all
parties." Lehmann v. Har-Con Corp., 39 S.W.3d
191, 192-93 (Tex. 2001). However, there is no presumption
that an order of dismissal for want of prosecution disposes
of issues in an independent cross-action or counterclaim.
Id. at 205; PHB v. Goldsmith, 539 S.W.2d 60
(Tex. 1976) (per curiam); North E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 897 (Tex. 1966).
true that Seavall filed his third supplemental motion and
counterclaim for abuse of process and sanctions before the
district court signed the order dismissing the case. But an
examination of this pleading demonstrates that Seavall
asserts in it the same claim that he stated in his first
amended motion and brief for sanctions and in his first
supplemental amended motion and brief for sanctions that was
considered and denied by the district court in January 2015.
In the January 2015 hearing, Seavall requested, as here,
declaratory relief finding that Cadle's discovery efforts
and conduct amounted to an abuse of process. That claim was
finally disposed of by the district court in January 2015.
Its re-assertion in Seavall's third supplemental motion
and counterclaim does not resurrect it, thereby rendering the
dismissal order non-final. Accordingly, we conclude
jurisdiction vests in this Court to consider the appeal.
Court reviews an order dismissing a case for want of
prosecution under a clear-abuse-of-discretion standard.
McGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997);
Enriquez v. Livingston, 400 S.W.3d 610, 614 (Tex.
App.-Austin 2013, pet. denied). A court abuses its discretion
if it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. See
Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 911 (Tex.
court has the inherent power to dismiss a case not prosecuted
with due diligence. State v. Rotello, 671 S.W.2d
507, 508-09 (Tex. 1984). To avoid dismissal for want of
prosecution, Seavall had the burden to establish that he
prosecuted his claim with reasonable diligence. In re
Conner, 458 S.W.3d 532, 534 (Tex. 2015) (per curiam)
(orig. proceeding). When considering whether a party has
exercised due diligence, the court may consider the entire
history of the case, including whether the party requested a
trial setting, the amount of activity in the case, how much
time has passed, and the party's excuses for ...