Court of Appeals of Texas, Sixth District, Texarkana
Submitted: October 23, 2019
Original Mandamus Proceeding .
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice
Gail Sutton Levetz has filed a petition for writ of mandamus
complaining of the trial court's decision to retain the
case on its docket following a motion filed by real party in
interest, Thomas Michael Sutton. Specifically, Levetz asks
this Court to vacate the retention order entered by the
County Court at Law of Bowie County, and either (1) mandate
that the trial court dismiss the case for want of
prosecution, or, in the alternative, (2) require the trial
court to hold an evidentiary hearing on Sutton's motion
to retain the case on the docket. We conditionally grant
Levetz' petition for writ of mandamus and order the trial
court to vacate its prior retention order. Due to the unique
circumstances of this case, pursuant to Levetz' request,
we order the trial court to hold an evidentiary hearing on
the issue of good cause in a manner consistent with this
issues only when the mandamus record establishes (1) a clear
abuse of discretion or violation of a duty imposed by law and
(2) the absence of a clear and adequate remedy at law."
In re Good Shepherd Hosp., Inc., 572 S.W.3d
315, 319 (Tex. App.-Texarkana 2019, orig. proceeding) (citing
Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding)).
abuse of discretion occurs when a trial court "reaches a
decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law." Id.
(quoting Walker, 827 S.W.2d at 839). In determining
whether an abuse of discretion occurred, we may not
substitute our judgment for the trial court's
determination. In re Coats, 580 S.W.3d 431, 439
(Tex. App.- Texarkana 2019, orig. proceeding) (quoting In
re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017)
(orig. proceeding)). Mandamus relief is available only when
"the trial court could have reached only one
conclusion." Id. (quoting State Farm
Lloyds, 520 S.W.3d at 604). "Absent an
extraordinary circumstance, 'a denial of a motion to
dismiss . . . is a ruling incident to the ordinary trial
process which will not be corrected by mandamus, but by the
legal remedy of the ordinary appellate process.'"
In re Crawford, 560 S.W.3d 357, 363 (Tex.
App.-Texarkana 2018, orig. proceeding) (quoting Hooks v.
Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991)
(orig. proceeding)). However, an abuse of discretion occurs
in the refusal "to grant a motion to dismiss for want of
prosecution in the face of unmitigated and unexplained
delay." In re Conner, 458 S.W.3d 532, 534-35
(Tex. 2015) (per curiam) (orig. proceeding) (granting
petition for writ of mandamus directing the trial court to
vacate its order denying a motion to dismiss for want of
prosecution where there was no good cause for the
plaintiff's "unmitigated and unexplained"
"nearly decade-long delay").
addition to showing that the trial court had no option but to
have performed the act urged by the relator, the relator must
also have no adequate remedy at law. Crawford, 560
S.W.3d at 363. "The adequacy of an appellate remedy must
be determined by balancing the benefits of mandamus review
against the detriments." In re Team Rocket,
L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.
proceeding). "In evaluating benefits and detriments, we
consider whether mandamus will preserve important substantive
and procedural rights from impairment or loss." In
re Nowell, 548 S.W.3d 104, 106 (Tex. App.-Beaumont 2018,
orig. proceeding) (quoting Team Rocket, 256 S.W.3d
at 262). "These considerations implicate both public and
private interests." In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
We consider whether an "irreversible waste of judicial
and public resources . . . would be required here if mandamus
does not issue." In re State, 355 S.W.3d 611,
615 (Tex. 2011) (orig. proceeding) (citing In re Masonite
Corp., 997 S.W.2d 194, 198 (Tex. 1999) (orig.
plaintiff has a duty to 'prosecut[e] the suit to a
conclusion with reasonable diligence,' failing which a
trial court may dismiss for want of prosecution."
Conner, 458 S.W.3d at 534 (quoting Callahan v.
Staples, 161 S.W.2d 489, 491 (1942)). "A trial
court may dismiss a suit for want of prosecution either under
its inherent power or pursuant to Rule 165a of the Texas
Rules of Civil Procedure." Crawford, 560 S.W.3d
at 364 (citing Conner, 458 S.W.3d at 534) (per
curiam) (orig. proceeding)). Under Rule 165a(2) of the Texas
Rules of Civil Procedure, dismissal is proper when a case is
"not disposed of within the time standards promulgated
by the Supreme Court" under the Administrative Rules.
Id. (quoting Conner, 458 S.W.3d at 534)
(quoting Tex.R.Civ.P. 165a(2)).
courts are generally granted considerable discretion when it
comes to managing their dockets. Such discretion, however, is
not absolute." Id. (quoting Conner,
458 S.W.3d at 534). Rule 6.1 of the Texas Rules of Judicial
Administration directs that district and statutory county
court judges "should, so far as reasonably possible,
ensure that all [civil cases other than family law] cases are
brought to trial or final disposition" within eighteen
months from an appearance date in jury cases and twelve
months from an appearance date in nonjury
cases. Id. at 365 (quoting Tex. R. Jud.
Admin. 6.1.) "[D]ismissal for want of prosecution may be
obtained by motion of the trial court or on motion of any
party to the suit." In re Bordelon, 578 S.W.3d
197, 201 (Tex. App.-Tyler 2019, orig. proceeding) (quoting
Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180
S.W.3d 733, 738 (Tex. App.-Waco 2005, pet. denied)); see
Oliphant Fin. L.L.C. v. Hill, 310 S.W.3d 76, 77 (Tex.
App.-El Paso 2010, pet. denied) (citing Tex.R.Civ.P.
165a(1)-(2); Villarreal v. San Antonio Truck &
Equip., 994 S.W.2d 628, 630 (Tex. 1999)).
own motion, the trial court issued a notice of dismissal for
want of prosecution in July 2019 and set the matter for a
hearing August 19. The notice stated,
The Court, under either its inherent authority to dismiss a
case for want of prosecution where the parties fail to
diligently prosecute the action, or under the provisions of
Rule 165a, [Texas Rules of Civil Procedure], will dismiss the
case for want of prosecution at this time unless an attorney
or pro se party appears in person and shows good cause for
maintaining the case on the docket.
the hearing, Levetz filed an opposition to Sutton's
motion to retain the case and moved for dismissal under Rule
both Rule 165a and the trial court's inherent power, a
conclusive presumption of abandonment of a plaintiff's
suit is raised when there is a delay in prosecuting the suit
of an unreasonable duration, unless sufficiently
explained." Crawford, 560 S.W.3d at 364 (citing
Conner, 458 S.W.3d at 534). As we said in
Crawford, when a "case has been pending well in
excess of the stated timelines," the conclusive
presumption of abandonment applies, triggering a required
reasonable explanation for delay, failing which an abuse of
discretion occurs when the case is not dismissed.
Id. at 365; see Bordelon, 578 S.W.3d at 201
(citing Tex. R. Jud. Admin. 6.1(a)(1)). "Consequently,
the party opposing the dismissal has the burden to produce
evidence at the hearing showing good cause for its delay in
prosecuting the case." ...