MacE E. Johnson v. the Aetna Casualty and Surety Company

Johnson v. The Aetna

IN THE

TENTH COURT OF APPEALS

No. 10-93-117-CV

     MACE E. JOHNSON, ET AL.,

                                                                                              Appellants

     v.

     THE AETNA CASUALTY AND SURETY

     COMPANY, ET AL.,

                                                                                              Appellees

From the 333rd District Court

Harris County, Texas

Trial Court # 88-59529

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      This appeal was perfected from a judgment signed on May 3, 1993. By motions, Appellants state that they have settled all matters in controversy, they no longer desire to pursue the appeal and request that the appeal be dismissed.

      The motions are granted. The appeal is dismissed.

                                                                                     PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed

Opinion delivered and filed October 20, 1993

Do not publish

s Christi 2005, no pet.); accord Morris v. Collins, 916 S.W.2d 527, 530 (Tex. App.—Houston [1st Dist.] 1995, no writ).

      The trial court’s order did not state its grounds, and the trial court did not make findings of fact and conclusions of law. 

      Nichols argues as though Sedalco’s motion complained solely of Nichols’s counsel’s failure to appear at a single deposition.  Sedalco’s motion to dismiss alleged, first, and Sedalco argues on appeal, that Nichols’s case had not been disposed of within the time limits of the Rules of Judicial Administration.  Sedalco filed its answer in May 2004.  No jury was requested.  The trial court signed its dismissal order in May 2006.  Nichols’s case had thus been pending for twice the time allowed by the Rules.  Nichols concedes that he did not respond to Sedalco’s initial discovery requests, served in December 2004, until May 2005.  As to excuse for the delay, Nichols points to two matters.  First, Nichols seeks to excuse two weeks of that period, after Sedalco called Nichols’s attention to the late responses, by pointing to the presence of Nichols’s counsel at a trial.  Nichols complains that Sedalco did not notice Nichols for deposition until six months after Nichols’s responses, and Nichols argues that the “only other delay in completing Nichols’ deposition” occurred when Nichols’s counsel was unavailable to attend the second attempted deposition of Nichols because of another trial.  (Br. at 14.) 

      The record thus shows long periods of inactivity punctuated by brief bursts of activity prompted by Sedalco.  Nichols’s excuses for two, brief periods do not explain the remaining long periods of inactivity.  The trial court did not clearly abuse its discretion in dismissing Nichols’s suit for want of prosecution.  We overrule Nichols’s second issue.

      Nichols’s third and fourth issues concern the overruling of Nichols’s motion for new trial by operation of law.  Nichols’s motion does not attack the ground of Sedalco’s motion to dismiss on which we have overruled Nichols’s second issue above.  We overrule Nichols’s third and fourth issues.

      In Nichols’s first issue, he contends that the trial court erred in overruling Nichols’s motion for protection from discovery.  Because of our dispositions of Nichols’s other issues, we do not reach his first issue.

      Having overruled Nichols’s second, third, and fourth issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed May 23, 2007

[CV06]