in Re Michael Allyn Conner and Iesi Solid Waste Services

IN THE SUPREME COURT OF TEXAS
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NO . 14-0177
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IN RE MICHAEL ALLYN CONNER AND IESI SOLID WASTE SERVICES, RELATORS

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ON PETITION FOR WRIT OF MANDAMUS
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PER CURIAM

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. Callahan v. Staples, 161 S.W.2d

489, 491 (Tex. 1942). The issue here is whether a trial court abuses its discretion by refusing to

grant a motion to dismiss for want of prosecution in the face of unmitigated and unexplained delay.

We hold that it does.

In December 2002, Donald and Crystal Peel were traveling in their van along a highway

when they were struck by a truck driven by Michael Conner and owned by his employer, IESI Solid

Waste Services. One day short of two years later, the Peels sued Conner and IESI (collectively

“Conner”) for damages. Conner timely answered and requested discovery, but the Peels did not

respond. In June 2007, two months before a trial setting, Conner moved for summary judgment.

The Peels responded. The trial setting was cancelled, and the motion was never heard.

By September 2011, the Peels had taken no other action to advance the case, and Connor

moved to dismiss for want of prosecution. The Peels responded that the delay was due to their
counsel’s health issues, including a stroke requiring hospitalization and, later, bypass surgery. The

Peels did not indicate when counsel’s health issues had occurred. The trial court refused to dismiss

the case.

In October 2013, when the Peels had still done nothing to pursue their claims, Conner again

moved to dismiss for want of prosecution. At the hearing on the motion, the Peels offered no other

excuse for their delay than they had before. Conner cited court records showing that the Peels’

counsel had appeared in many different matters in the prior two years. The trial court again refused

to dismiss, directed the Peels to respond to Connor’s discovery requests served more than eight years

earlier, and set the case for trial.

Conner petitioned the court of appeals for mandamus directing the trial court to dismiss the

case. The court of appeals denied relief, and Connor then petitioned this Court.

Trial courts are generally granted considerable discretion when it comes to managing their

dockets. Such discretion, however, is not absolute. It has long been the case that “a delay of an

unreasonable duration . . . , if not sufficiently explained, will raise a conclusive presumption of

abandonment of the plaintiff’s suit.” Callahan, 161 S.W.2d at 491. This presumption justifies the

dismissal of a suit under either a court’s inherent authority or Rule 165a of the Texas Rules of Civil

Procedure. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)

(recognizing both common law source of power and rule based source of power); see, e.g., Veterans’

Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (finding seven-and-one-half year delay as

failing to satisfy the demands of reasonable diligence); Denton Cnty. v. Brammer, 361 S.W.2d 198,

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201 (Tex. 1962) (same for five-year delay); Bevil v. Johnson, 307 S.W.2d 85, 88 (Tex. 1957) (same

for eight-year delay).

Under Rule 165a, there are two grounds for dismissal for want of prosecution. One is when

a “party seeking affirmative relief [fails] to appear for any hearing or trial of which the party had

notice.” TEX . R. CIV . P 165a(1). In such cases, “[a] court shall dismiss . . . unless there is good

cause for the case to be maintained on the docket.” Id. The other is when a case is “not disposed

of within [the] time standards promulgated by the Supreme Court.” TEX . R. CIV . P. 165a(2). And

while Rule 165a(2) does not refer to Rule 165a(1)’s procedural requirements, including notice and

a hearing, neither does it suggest a basis for deviating from those procedures.

The Peels’ failure to provide good cause for their nearly decade-long delay mandates

dismissal under Rule 165a(2). Our Rules of Judicial Administration require district and statutory

county courts to ensure, “so far as reasonably possible,” that civil cases in which a jury has been

demanded, other than those arising under the Family Code, are brought to trial or final disposition

within eighteen months of the appearance date. TEX . R. JUD . ADMIN . 6.1(b)(1). The Peels’ suit well

exceeded this time frame. Absent any reasonable explanation for the delay, the trial court clearly

abused its discretion by disregarding the conclusive presumption of abandonment. See Walker v.

Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or apply

the law correctly will constitute an abuse of discretion, and may result in appellate reversal by

extraordinary writ.”); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).

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 Mandamus will issue to correct such an abuse of discretion when there is no adequate remedy

by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). A trial court’s

erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged on

appeal. A defendant should not be required to incur the delay and expense of appeal to complain of

delay in the trial court. To deny relief by mandamus permits the very delay dismissal is intended to

prevent. In addition, the danger that a trial will be hampered by stale evidence and lost or clouded

memories is particularly distinct after the delay in this case. See So. Pac. Transp. Co. v. Stoot, 530

S.W.2d 930, 931 (Tex. 1975) (“[P]ossibilities for error multiply rapidly as time elapses between the

original fact and its judicial determination.”).

Accordingly, we conditionally grant the petition for writ of mandamus, and without hearing

oral argument, direct the trial court to vacate its order denying Conner’s motion to dismiss filed

October 24, 2013, and to dismiss this suit for want of prosecution. TEX . R. APP . P. 52.8(c). We are

confident the trial court will promptly comply, and our writ will issue only if it does not.

Opinion Delivered: March 20, 2015

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