TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00025-CV
Louis Barrelle, Appellant
v.
James F. Miller, Appellee
NO. 163,147-C, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING
BACKGROUND
Barrelle and Miller were involved in a car accident on May 10, 1985. On February 13, 1997, Barrelle sued Miller for slander based on statements Miller made to an insurance investigator shortly after the accident. Barrelle did not request a jury trial. Miller filed his original answer on September 2, 1997. The parties conducted discovery over the next twenty months. The record shows that Barrelle made his final discovery request on April 29, 1999.
On May 24, 1999, the district court notified Barrelle that the case was set for the dismissal docket on September 2, 1999 and would be dismissed for want of prosecution if not set for trial or a hearing. The district court also notified Barrelle that a contested setting request must include proof of mediation or a motion to show cause why mediation is inappropriate and an agreed Rule 165a scheduling order. (1)
Barrelle failed to appear before the court at the docket call on September 2. (2) Barrelle also failed to comply with the contested setting request requirements. The court dismissed the case without prejudice on September 2 "in accordance with Rule 165 for want of prosecution." On September 10, 1999, Barrelle filed a motion to reinstate. The court denied appellant's motion.
Following the denial of his motion to reinstate, Barrelle requested findings of fact and conclusions of law. The court found that Barrelle had never requested a trial setting or submitted an agreed Rule 165a scheduling order; thus, the court concluded that the case was dismissed without prejudice in accordance with Rule 165a for want of prosecution.
DISCUSSION
Barrelle argues that the district court erroneously relied upon a former version of Texas Rule of Civil Procedure 165a when it dismissed his case. A trial court may dismiss under Rule 165a for "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice," Tex. R. Civ. P. 165a(1), or when a case is "not disposed of within the time standards promulgated by the Supreme Court . . . ." Tex. R. Civ. P. 165a(2). Rule 6(b)(2) of the Rules of Judicial Administration provides that civil nonjury cases must be disposed of within twelve months from the appearance date. See Tex. R. Jud. Admin. 6(b)(2); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 631 (Tex. 1999). (3)
Appellant contends that in dismissing the case, the district court improperly relied upon the version of Rule 165a(1) in effect from February 1, 1973 until December 31, 1975, which provided for dismissal for failure to appear at any hearing, trial, or docket call. Appellant argues that it was error to dismiss the case based on his failure to attend the dismissal docket call because the reference to "docket call" was deleted in the 1976 amendment to Rule 165a(1). See Davis v. Laredo Diesel, 611 S.W.2d 943, 946 (Tex. Civ. App.--Waco 1981, writ ref'd n.r.e.) (dismissal cannot be based upon failure to appear at docket call).
The decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court and can be disturbed on review only if it amounted to a clear abuse of discretion. See State v. Rotello, 671 S.W.2d 507, 508-09 (Tex. 1984); Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Although the district court stated in the judgment that dismissal was based upon Rule 165a, the court did not specify whether it relied upon Barrelle's failure to appear or failure to prosecute the case within the time standards promulgated by the Texas Supreme Court. (4) Nor did the court specify in its findings of fact and conclusions of law on which section of Rule 165a it relied. Accordingly, we will consider whether the trial court abused its discretion by dismissing Barrelle's case on either basis provided for by Rule 165a, beginning with the failure to try the case within the supreme court's time guidelines.
Barrelle filed his original petition in February 1997. Miller filed his answer on September 2, 1997. The trial court notified Barrelle in May 1999 that his case would be dismissed in September 1999 unless set or heard. The record reflects that Barrelle took no further action and that his case was dismissed on September 3, 1999, approximately twenty-four months after Miller's appearance. The Texas Supreme Court has deemed twelve months to be a reasonable time period for disposing of a case like this. We cannot say that the trial court abused its discretion in dismissing the case pursuant to Rule 165a(2).
Appellant also contends that the trial court erroneously based its dismissal on language in a former version of Rule 165a(1), authorizing dismissal for failure to request a hearing or take other action specified by the court within fifteen days after the mailing of notice of the court's intention to dismiss. Having concluded that the trial court did not abuse its discretion in dismissing the case pursuant to Rule 165a(2), we need not address this argument. See Tex. R. App. P. 47.1. We affirm the district court judgment.
Jan P. Patterson, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: June 15, 2000
Do Not Publish
1. Barrelle does not contend that he received inadequate notice.
2.
3. A trial court also has inherent power to dismiss a case when a plaintiff fails to prosecute the
case with due diligence. See Villarreal, 994 S.W.2d at 630. Because the trial court specified that
the Rule 165a standard of dismissal was used, we do not address the independent common law
power of dismissal.
4.
[t]he parties and/or their attorneys having been notified more than fifteen (15) days prior hereto, and no action being taken to request a hearing or otherwise, the court on its own motion finds that such cause should be in all things dismissed without prejudice in accordance with Rule 165a for want of prosecution.
miss the case based on his failure to attend the dismissal docket call because the reference to "docket call" was deleted in the