Dale Roush, Individually and as Trustee of the Dale Roush Assets Trust v. Metropolitan Life Insurance Company and Joel Hart ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00458-CV
DALE ROUSH, INDIVIDUALLY AND AS TRUSTEE OF
THE DALE ROUSH ASSETS TRUST, APPELLANT
V.
METROPOLITAN LIFE INSURANCE COMPANY
AND JOEL HART, APPELLEES
On Appeal from the 69th District Court
Sherman County, Texas
Trial Court No. 4727, Honorable Ron Enns, Presiding
February 26, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
In 2006, appellant Dale Roush, appearing individually and as trustee of the Dale
Roush Assets Trusts, sued appellees the Metropolitan Life Insurance Company (MetLife)
and Joel Hart. In 2016, the trial court dismissed Roush’s suit for want of prosecution. It
later overruled his motion to reinstate. On appeal, Roush argues the trial court abused
its discretion by rendering these orders. Finding no abuse of discretion, we will affirm the
trial court’s orders.
Background
We have a limited clerk’s record in this appeal. For background we draw on facts
found by the trial court after it dismissed the case for want of prosecution and after it
denied Roush’s motion to reinstate, as well as Roush’s testimony at the reinstatement
hearing.
Roush filed his lawsuit on July 10, 2006, alleging causes of action for wrongful
foreclosure, conversion of personal property, and money had and received. Defendants
MetLife and Hart answered. On January 14, 2009, MetLife filed traditional and no-
evidence motions for summary judgment. An order denying the motions was “entered”
on May 23, 2012. On October 3, 2012, the law firm representing Roush filed a motion to
withdraw which was granted by order signed October 8, 2012.
Roush continued to work on the case without retaining new counsel. According to
Roush’s testimony, he hired an assistant to help him organize documents. He later hired
a paralegal to continue the organizational work. In August 2014, Roush was involved in
a motor vehicle accident in New Mexico. According to Roush’s testimony, he “took a
pretty hard shot.” He thereafter sought the treatment of a chiropractor for neck and
shoulder pain. In testimony, Roush stated he was unable to work much on the case “for
probably months” after the accident.
In February 2015, Roush was involved in a second vehicle accident. He testified
he suffered trauma to his neck, back, and arms. He continued treatment with his
chiropractor.
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Roush testified that in April 2015, he fell in the kitchen of his home, causing loss
of consciousness for fifteen to twenty minutes. He was taken to the hospital by
ambulance and there remained for about ten days. He then received occupational
therapy “for months and months” and had shoulder surgery.
It appears there was no activity in the case from the withdrawal of Roush’s counsel
in October 2012 until the spring of 2016 when MetLife and Hart filed motions to dismiss
for want of prosecution. At that point, the firm of attorneys formerly representing Roush
reentered the case on his behalf. They filed a response to the defendants’ motions and
in the response requested a December 2016 jury trial setting.
By order signed June 13, 2016, the trial court dismissed Roush’s case for want of
prosecution. According to the order, the trial court found Roush’s evidence offered to
explain the delay and lack of diligence was insufficient to overcome the presumption of
abandonment. Roush timely filed a verified motion to reinstate. A hearing was not held
and the motion was denied by operation of law. Roush appealed. On our finding that the
mandatory reinstatement hearing was not conducted by the trial court, we abated the
appeal and remanded the case for a hearing.1 After an evidentiary hearing the trial court
overruled Roush’s motion to reinstate. Thereafter, the record was supplemented
accordingly and the appeal reinstated.
1 We relied on Appellate Rule 44.4 as the means for authorizing the trial court to
hold the hearing. TEX. R. APP. P. 44.4; see Roush v. Metro. Life Ins. Co., 551 S.W.3d 903(Tex. App.—Amarillo 2018, per curiam order).
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Analysis
Dismissal for Want of Prosecution
By his first issue Roush argues the trial court abused its discretion by dismissing
his case for want of prosecution.
Trial courts are generally granted considerable discretion in managing their
dockets. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam).
We therefore review a trial court’s grant of a motion to dismiss for want of prosecution
under an abuse of discretion standard. In re Fifty-One Gambling Devices, 298 S.W.3d
768, 773 (Tex. App.—Amarillo 2009, pet. denied); Christian v. Christian, 985 S.W.2d 513,
514 (Tex. App.—San Antonio 1998, no pet.). A trial court abuses its discretion when it
acts without reference to guiding rules or principles. UHaul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012). The burden of proof rests on a litigant asserting an abuse
of discretion because there is a presumption the action of the trial court was justified.
FDIC v. Kendrick, 897 S.W.2d 476, 479 (Tex. App.—Amarillo 1995, no writ). An abuse
of discretion is generally not shown when a trial court dismisses a case on file for a lengthy
period of time with little or no substantive activity and no reasonable explanation offered
for the failure to prosecute. Coello v. Labarbera, No. 03-16-00670-CV, 2017 Tex. App.
LEXIS 8067, at *10 (Tex. App.—Austin Aug. 24, 2017, no pet.) (mem. op.) (citing Rainbow
Home Health, Inc. v. Schmidt, 76 S.W.3d 53, 56 (Tex. App.—San Antonio 2002, pet.
denied)).
A delay of unreasonable duration, if not reasonably explained, will give rise to a
conclusive presumption that the plaintiff abandoned the suit. In re Conner, 458 S.W.3d
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at 534 (finding abuse of discretion in trial court’s denial of motion to dismiss). The
presumption in turn justifies dismissal of the suit for want of prosecution under either Rule
165(a)(1),(2) of the Texas Rules of Civil Procedure or an exercise of the court’s inherent
power. Id.; see Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)
(noting the two sources of a trial courts authority for dismissing a case for want of
prosecution are Rule 165a and the trial court’s inherent power).
Dismissal for Non-Compliance with Time Standards
Under Rule 165a(2), a case may be dismissed if it is “not disposed of within time
standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). Rule 6.1(a) of
the Texas Rules of Judicial Administration provides a disposition standard for a non-family
law civil case of twelve months from appearance date for a nonjury case and eighteen
months for a jury case. TEX. R. JUD. ADMIN. 6.1(a), reprinted in TEX. GOV’T CODE ANN., tit.
2, subtit. F app. (West Supp. 2018). However, the rule recognizes that in “especially
complex cases or special circumstances it may not be possible to adhere” to the time
standards. TEX. R. JUD. ADMIN. 6.1(d).
It is undisputed the underlying case was not brought to disposition within the
standards of Rule 6.1. Roush therefore argues because the time standards are
discretionary the trial court abused its discretion by dismissing the case given its special
complexity and special circumstances. As proof Roush points to such factors as: “multiple
lawyers representing the different parties, health issues of [Roush], multiple summary
judgment motions, a three year delay in ruling on the summary judgment motions,
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attempted consolidation with related matters, and the bankruptcy of” an otherwise
unidentified entity.
No facts in this record even hint that Roush’s causes of action for wrongful
foreclosure, conversion of personal property, and money had and received presented the
parties and court such difficult questions of law or fact as to require almost a decade to
bring the case to trial. The trial court reasonably could have seen Roush’s decision to
pursue self-representation for almost four years as inconsistent with a contention the case
was “especially complex.” Further, even assuming Roush’s three accidents presented
an unusual state of affairs, nothing shows how these events, which occurred years after
the defendants appeared, hindered disposition of the case within Rule 6.1’s time
standards. After Roush’s counsel withdrew in 2012, almost two years passed before his
first accident. Yet during that time he took no substantive action to prosecute his case.
In sum, nothing in the record shows Roush’s case had such complexity or presented such
special circumstances as to make adherence to the standards not possible.
We find Roush did not provide a reasonable explanation justifying a finding of good
cause for his failure to bring the case to trial or final disposition within the standards
promulgated by the supreme court. In re Conner, 458 S.W.3d at 535 (“The [plaintiffs’]
failure to provide good cause for their nearly decade-long delay mandates dismissal
under Rule 165a(2)”). The trial court did not abuse its discretion in dismissing Roush’s
case for failure to comply with the time standards of Rule 6.1(a). TEX. R. JUD. ADM. 6.1(a);
TEX. R. CIV. P. 165a(2).
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Dismissal Under the Trial Court’s Inherent Power
Through the exercise of its inherent power to manage its docket, a trial court may
dismiss a case that has not been prosecuted with due diligence. State v. Forty-Two
Gambling Devices, No. 07-09-00383-CV, 2011 Tex. App. LEXIS 1792, at *5 (Tex. App.—
Amarillo Mar. 11, 2011, no pet.) (mem. op.) (citing Rampart Capital Corp. v. Maguire, 974
S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet. denied)). The due diligence
determination requires consideration of the entire case history. Dobroslavic v. Bexar
Appraisal Dist., 397 S.W.3d 725, 729-30 (Tex. App.—San Antonio 2012, pet. denied);
Welborn v. Ferrell Enters., 376 S.W.3d 902, 907 (Tex. App.—Dallas 2012, no pet.).
Generally, four factors guide the analysis: (1) the length of time the case has been on file;
(2) the extent of activity in the case; (3) whether a trial setting was requested; and (4)
whether there exists a reasonable excuse for the delay. Henderson v. Blalock, 465
S.W.3d 318, 321-22 (Tex. App.—Houston [14th Dist.] 2015, no pet.); WMC Mortg. Corp.
v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied). No single factor
is controlling, however. Blalock, 465 S.W.3d at 321. Reasonable diligence in prosecuting
a case is not established merely by a belated trial setting or an expression of readiness
for trial in the face of a motion to dismiss for want of prosecution. Dobroslavic, 397 S.W.3d
at 730 (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—
Houston [14th Dist.] 1999, no pet.)); Pantex Sales, Inc. v. Dale Roush Farms of Texas, et
al., No. 07-17-00401-CV, 2019 Tex. App. LEXIS 1144, at *13 n.2 (Tex. App.—Amarillo
Feb. 14, 2019, n. pet. h.) (mem. op.) (“The decision in Moore II, effectively nullified, sub
silentio, that portion of Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo
1983, no writ) (Moore I) which held ‘[w]here, however, at the time of the dismissal hearing
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the plaintiff has announced ready for trial and has secured a trial setting or is otherwise
making a diligent effort to get the case to trial, the case should not be dismissed for lack
of prosecution.’ Id.”).
As noted, by the time of dismissal the case had been on file for almost a decade
without a trial setting requested until counsel entered the case in 2016. To excuse
inactivity, Roush argues that he was unable to prosecute his lawsuit adequately because
of two motor vehicle accidents and a fall in his home. But Roush’s first accident occurred
in August 2014, some twenty-two months after his attorney withdrew. The trial court could
have reasonably concluded that Roush failed to demonstrate he exercised reasonable
diligence in prosecuting his lawsuit. And this is so even assuming the trial court, as trier
of fact, accepted Roush’s evidence he sustained injuries in the three accidents.
Whether dismissal was under Rule of Civil Procedure 165a(2), for failure to
dispose of the case within the applicable time standard, or as an exercise of the trial
court’s inherent power, we find the trial court did not abuse its discretion by dismissing
Roush’s case for want of prosecution. Roush’s first issue is overruled.
Denial of Motion to Reinstate
By his second issue Roush asserts the trial court abused its discretion by failing to
reinstate the case following the hearing on his motion.
We review a trial court’s ruling on a party’s motion to reinstate for abuse of
discretion. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995) (per
curiam). We defer to the trial court’s resolution of factual disputes under that standard of
review. Henderson v. Lewis, No. 07-14-00445-CV, 2015 Tex. App. LEXIS 5031, at *1
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(Tex. App.—Amarillo May 15, 2015, no pet.) (mem. op.) (citing In re Labatt Food Serv.,
L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding)).
Civil Rule 165a(3) provides that, after a case is dismissed for want of prosecution,
“[t]he court shall reinstate the case upon finding after a hearing that the failure of the party
or his attorney was not intentional or the result of conscious indifference but was due to
an accident or mistake or that the failure has been otherwise reasonably explained.” TEX.
R. CIV. P. 165a(3). The Rule 165a(3) standard “is essentially the same as that for setting
aside a default judgment.” Smith, 913 S.W.2d at 468. Thus the evidence must show an
adequate justification for the failure that negates intent or conscious indifference. Blalock,
465 S.W.3d at 323 (citing Smith, 913 S.W.2d at 468).
At the hearing on his motion to reinstate, Roush testified in some detail to relevant
events during the period from October 2012, when his attorney withdrew, until April 2016.
As noted, for almost two years he worked with assistants to organize documents related
to this case and other cases. He testified of the debilitating effects of the three accidents.
But he never explained why he took no substantive action in the case and did not seek
replacement counsel until 2016 when the defendants filed motions to dismiss for want of
prosecution.
In findings made in conjunction with its denial of Roush’s motion to reinstate the
trial court stated:
[Roush’s] failure to prosecute this case continued from 2009 through 2012
and well into 2016, when the Defendants filed their motions to dismiss for
want of prosecution in March and May of 2016.
As of June 1, 2016, the date of the hearing on Defendants’ Motions to
Dismiss for Want of Prosecution, [Roush] had failed to obtain a trial date,
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failed to seek any additional discovery, failed to obtain a scheduling order,
failed (until May 2016) to hire new counsel, and did not file any pleadings
during that timeframe whatsoever. In short, [Roush] took no steps to
prosecute his case.
At the time this Court dismissed this case for want of prosecution, it had
been pending for almost a decade (from July 10, 2006 to June 13, 2016).
The trial court applied the “intentional or conscious indifference” standard of Rule
165a(3). It concluded Roush “offered no satisfactory explanation for his delay and failure
to prosecute this case. More importantly, [Roush] has made no other showing supporting
that his failure to prosecute ‘was not intentional or the result of conscious indifference but
was due to an accident or mistake or that the failure has been otherwise reasonably
explained.’”
In sum, under the Rule 165a(3) standard which the trial court applied, Roush did
not present evidence of an accident or mistake that prevented him from prosecuting the
case nor could the proof amount to a reasonable explanation for the protracted case
inactivity. The evidence was insufficient to require reinstatement. We accordingly find
the trial court did not abuse its discretion in overruling Roush’s motion to reinstate.
Roush’s second issue is overruled.
Conclusion
Having overruled Roush’s appellate complaints, we affirm the trial court’s dismissal
order.
James T. Campbell
Justice
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