Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 1 Dallas County,
Texas Trial Court Cause No. CC-18-00069-A
Justices Pedersen, III, Reichek, and Carlyle.
L. REICHEK, JUSTICE.
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.
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.
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,  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.
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.
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.
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.
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).
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
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 ...