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In re Sutton Levetz

Court of Appeals of Texas, Sixth District, Texarkana

October 24, 2019

IN RE BRENDA GAIL SUTTON LEVETZ

          Submitted: October 23, 2019

          Original Mandamus Proceeding .

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice

         Brenda 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 opinion.

         "Mandamus 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)).

         An 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").

         In 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. proceeding)).

         "A 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)).

         "Trial 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.[1] 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)).

         On its 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.

         Before the hearing, Levetz filed an opposition to Sutton's motion to retain the case and moved for dismissal under Rule 165a(2).

         "Under 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." ...


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