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Fredrick v. Layton

Court of Appeals of Texas, Fifth District, Dallas

October 31, 2019

LAUREN FREDRICK, Appellant
v.
JAMES ROBERT LAYTON, AS REPRESENTATIVE OF THE ESTATE OF PATRICIA BELL, Appellee

          On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-18-00069-A

          Before Justices Pedersen, III, Reichek, and Carlyle.

          MEMORANDUM OPINION

          AMANDA L. REICHEK, JUSTICE.

         Lauren Fredrick appeals the trial court's dismissal of her case for want of prosecution. Bringing three issues, Fredrick contends the trial court erred in (1) failing to issue a writ of scire facias, (2) dismissing the case, and (3) failing to reinstate the case. We affirm the trial court's order.

         Background Facts

         Fredrick filed this personal injury suit against Patricia Bell on January 4, 2018. Fredrick alleged that Bell negligently caused a motor vehicle accident on January 7, 2016, which resulted in Fredrick suffering serious injuries. Citation for Bell was issued the day after suit was filed and mailed to Fredrick's attorney eleven days later when it had not been picked up.

         Two months later, when there was no return of service on Bell, the trial court set the case for a dismissal hearing on May 4. On the day of the hearing, Fredrick filed a motion to retain the case arguing she had made diligent attempts to serve Bell and recently discovered Bell died approximately eight months after the accident. Fredrick stated her process server was now attempting to locate Bell's son, James Layton, [1] and she requested a ninety-day extension to "obtain the information on the proper party, to have a writ of scire facias issued and served on Defendant's heir(s), and amend her petition to add the proper party(ies) in this matter." The motion was verified and attached an affidavit signed by Ruben Garza, a process server, who stated he attempted to serve Bell with process on three different occasions, but was unable to locate her.

         A second dismissal hearing was scheduled for June 15. On that day, Fredrick filed another motion to retain the suit setting forth the identical facts and arguments as the motion filed on May 4, but without attaching Garza's affidavit. The trial court's docket sheet indicates a hearing was conducted on the motion on July 20. The case was then reset for a dismissal hearing on September 28.

         Three days before the September 28 dismissal hearing, Fredrick filed an application for writ of scire facias asking that Layton be required to appear and defend the suit. Fredrick also filed an amended petition naming Layton as defendant in his capacity as representative of Bell's estate. No motion to retain the suit was filed.

         On October 11, the trial court dismissed the case for want of prosecution. Fredrick filed a motion to reinstate and for new trial on October 24. The motion to reinstate was not verified, but evidence was attached to the motion including (1) Fredrick's earlier verified motion to retain, (2) Garza's affidavit, (3) an affidavit by a second process server who testified she discovered on April 27, 2018 that Bell had died and her estate was being handled by Layton, (4) an email to Fredrick's counsel dated August 4 attaching two potential addresses for Layton, and (5) the application for writ of scire facias filed September 25. A hearing was conducted on the motion to reinstate on November 5, 2018. Although no reporter's record was created, Fredrick stated in her notice of appeal that the trial court orally denied her motion.

         Analysis

         In three issues, argued together, Fredrick contends the trial court erred in not issuing the writ of scire facias, dismissing the case for want of prosecution, and failing to reinstate the case. A trial court has broad discretion in dismissing a suit for want of prosecution. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Clark v. Turner, 505 S.W.2d 941, 946 (Tex. App.-Amarillo 1974, no writ). We will not reverse the trial court's ruling unless it was arbitrary or unreasonable. Stone v. Cunningham, No. 05-06-01151-CV, 2007 WL 1206677, at *1 (Tex. App.-Dallas April 25, 2007, pet. denied). The test is not whether, in our opinion, the record presents an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules and principles. Id. The central issue is whether the plaintiff exercised reasonable diligence. MacGregor, 941 S.W.2d at 75. Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of suit, issuance of the citation, and service of process. Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.-Dallas 2000, pet. denied).

         Fredrick argues the trial court erred in failing to issue the writ of scire facias because it had a mandatory duty to do so once she requested it. Fredrick does not explain, however, how the trial court's failure to issue the writ, which she requested only three days before the dismissal hearing, requires reversal of the court's decision to dismiss the case for want of prosecution. A plaintiff's request that the trial court take some action immediately prior to the dismissal hearing does not preclude the court from dismissing the action for want of prosecution. See Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 843 (Tex. App.-San Antonio 1989, writ denied) (request at dismissal docket call that case be set for trial does not, by itself, preclude dismissal of action). An unexplained delay in requesting a substitution of parties following the death of the defendant may result in a finding of lack of diligence and dismissal of the action. See Clark, 505 S.W.2d at 946.

         Fredrick argues that her motion to retain and the request for writ of scire facias show her diligence in this case. Fredrick filed two motions to retain; one on May 4, 2018, and an identical one on June 15. These motions show Fredrick knew prior to filing the first motion that Bell had died and her son represented her estate. There is no evidence in either motion of any action taken in the case by Fredrick or her counsel between May 4 and September 25 and no explanation for the nearly five-month delay before Fredrick requested service on Layton. An unexplained delay of five ...


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