Dean's Campin' Co. v. Peter Hardsteen

NUMBER 13-05-468-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DEAN’S CAMPIN’ CO., Appellant,

v.

PETER HARDSTEEN, ET AL., Appellees.

On appeal from the 278th District Court of Grimes County, Texas.

MEMORANDUM OPINION

Before Justice Benavides, Vela, and Wittig1
Memorandum Opinion by Justice Wittig

Based upon a party’s motion, the trial court dismissed this cause for want of

prosecution after remand. This is the second appeal of this case. In the first appeal,

appellant, Dean’s Campin’ Co., successfully argued to the Houston Court of Appeals that

1
Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E AN N . § 74.003 (Vernon
2005).
it should be entitled to statutory retailer indemnity against appellee Rexhall Industries. See

Dean’s Campin’ Co. v. Hardsteen, No. 01-00-01190-CV, 2002 WL 1980840, *1 (Tex.

App.–Houston [1st Dist.] Aug. 29, 2002, pet. denied) (not designated for publication). It

also successfully argued that its cross claims against appellees, Peter Hardsteen and

Texas Farm Bureau, were improperly dismissed. Id. The Houston court ruled that

appellant was entitled to indemnity against Rexhall and remanded for determination of the

amount of appellant’s attorney’s fees and costs, which were improperly denied by the trial

court. Id. The court also reversed and remanded the trial court’s dismissal of the cross

claims of Hardsteen and Texas Farm Bureau.2 To date, the trial court has not complied

with the original mandate of the court of appeals to award costs wrongfully denied to

appellant in the original judgment and to determine the amount of attorney’s fees under

section 82.002(a) of the Civil Practice and Remedies Code. TEX . CIV. PRAC . & REM . CODE

ANN . § 82.002(a) (Vernon 1997).

In a single issue, appellant asserts that the trial court abused its discretion by

dismissing appellant’s claims against appellees for want of prosecution after the claims

were remanded. We agree and reverse and remand.

I. Jurisdiction

Appellees claim that this Court lacks jurisdiction to hear this appeal. The Houston

Court of Appeals issued its mandate on September 29, 2003. When appellant requested

mediation or a trial setting in June, 2004, appellees immediately filed a motion to dismiss

2
W e note the appellate court’s finding that the trial court “heard only m inim al argum ent” on the
m otions to dism iss based upon surprise, and that appellees offered no evidence to support their claim of
surprise. Id.

2
for want of prosecution. A hearing was held August 13, 2004, some ten months after the

appellate court mandate was filed with the trial court. The first order of dismissal was then

signed the same day. Appellant’s motion for rehearing was granted, and the case was

reinstated and ordered to mediation on October 8, 2004.

On October 12, 2004 appellees filed a motion to vacate the order of reinstatement.

Appellees gave notice of oral hearing on their Joint Motion to Vacate the Court’s Order of

Reinstatement and Order for Mediation for November 12, 2004. Yet on November 4, 2004,

the trial judge signed two conflicting orders, one of which appellees admit is interlocutory.3

The record reflects no notice of hearing either on November 4, 2004, when the court

signed the conflicting orders, or on November 12, 2004, the date appellees initially notified

the parties that a hearing would be held. According to appellant, the hearing was re-

noticed to be heard on December 16, 2004, and, again, the matter was requested to be

moved to January 14, 2005. In any event, the trial court signed the conflicting orders on

November 4, 2004, without a hearing or notice to the parties, and apparently did not grant

a hearing on any of the requested dates. The court made no docket entry regarding its

conflicting rulings on November 4, 2004.

One of the November orders denied appellees’ motion to vacate the order

reinstating the case and ordering mediation while the other order granted the same motion,

reinstating the prior order of dismissal. Appellees argue that the order reinstating the prior

dismissal was a final judgment and began appellant’s timetable for appeal. We disagree.

Between the time of the conflicting November 4, 2004 orders and the final order of

3
Appellees argue that one of the orders signed that day was interlocutory while the other order was
som ehow a final appealable judgm ent. As discussed herein, we conclude that both orders are interlocutory.

3
dismissal, dated March 11, 2005, the parties continued to serve discovery and file

objections to discovery. During that same period of time, the trial court issued a

memorandum to the parties directing them to determine the status of the case.

First, we must determine whether the trial court's dismissal order(s), which were

outside of the scope of the appellate mandate in this case, are void or merely voidable.

See In re State, 159 S.W.3d 203, 206 (Tex. App.– Austin 2005, orig. proceeding). In

Madeksho v. Abraham, Watkins, Nichols, & Friend, 112 S.W.3d 679, 685 (Tex.

App.–Houston [14th Dist.] 2003, pet. denied) (en banc), the Houston Court of Appeals

thoroughly discussed this issue and concluded that a trial court may abuse its discretion

by issuing an order beyond the scope of an appellate mandate, but that the issue of

subject-matter jurisdiction is not raised. See id. The Dallas Court of Appeals had

previously expressed the opposite position. See Dallas County v. Sweitzer, 971 S.W.2d

629, 630 (Tex. App.–Dallas 1998, no pet.); cf. Kenseth v. Dallas County, 126 S.W.3d 584,

599 (Tex. App.–Dallas 2004, pet. denied) (holding an order was not void where trial court

misinterpreted mandate).

In the past, a number of courts have held that in cases involving remand with

specific instructions, the district court is limited to complying with the instructions and

cannot relitigate issues controverted at the former trial. Seydler v. Keuper, 133 S.W.2d

189, 190 (Tex. Civ. App.–Austin 1939, writ ref'd). The district court's authority is limited to

trying only those issues specified in the mandate. V-F Petroleum v. A.K. Guthrie Op. Co.,

792 S.W.2d 508, 510 (Tex. App.–Austin 1990, no writ); Texacally Joint Venture v. King,

719 S.W.2d 652, 653 (Tex. App.–Austin 1986, writ ref'd n.r.e.). Where an appellate court

4
reversed and remanded a case for entry of a judgment nunc pro tunc, and a party then

filed a motion for remittitur with the trial court, the trial court correctly denied the motion;

the trial court had jurisdiction only to enter the nunc pro tunc judgment. Seydler, 133

S.W.2d at 190 (citing Wingfield v. Bryant, 614 S.W.2d 643, 645 (Tex. Civ. App.–Austin

1981, writ ref'd n.r.e.) (“It did not have the jurisdiction to change the judgment in any other

manner.”); see Los Campeones, Inc. v. Valley Int'l, 591 S.W.2d 312, 313-14 (Tex. Civ.

App.–Corpus Christi 1979, no writ) (a trial court's hearing and order after issuance of an

appellate court's mandate exceeded the mandate's scope and involved more than

ministerial duty of enforcing the judgment); Brock v. Briggs, 223 S.W.2d 645, 647 (Tex.

Civ. App.–San Antonio 1949, no writ) (where an appellate court reversed and remanded

with instructions for rendition of judgment, and motions were filed to set aside the

judgment, the trial court was required to carry out the appellate court's direction); see also

Martin v. Credit Protection Ass'n, 824 S.W.2d 254, 256 (Tex. App.– Dallas 1992, writ dis’m,

w.o.j.).

Prior to the Texas Supreme Court’s decision in Dubai, many jurisdictions held that

when an appellate court renders a judgment, the district court has no jurisdiction to review

or to interpret it. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (all

claims are presumed to fall within the jurisdiction of the district court unless the Legislature

or Congress has provided that they must be heard elsewhere); see, e.g., Myers v. Myers,

515 S.W.2d 334, 335 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ dism'd w.o.j.) (“It must

observe and carry out the mandate of the appellate court. Its orders carrying out the

mandate are ministerial.”) (citing Conley v. Anderson, 164 S.W. 985 (Tex. 1913)); see also

5
Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App.–San Antonio 1984, no writ). In

Dubai, the court observed that “the modern direction of policy is to reduce the vulnerability

of final judgments to attack on the ground that the tribunal lacked subject matter

jurisdiction.” Dubai, 12 S.W.3d 76 (citing RESTATEMENT (SECOND ) OF JUDGMENTS § 11 cmt.

e, at 113 (1982)). “Jurisdiction refers to a court's authority to adjudicate a case.” Reiss v.

Reiss, 118 S.W.3d 439, 443 (Tex. 2003). So long as the court entering a judgment has

jurisdiction of the parties and the subject matter and does not act outside its capacity as

a court, the judgment is not void. Id.; Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.

1990). “A court's action contrary to a statute or statutory equivalent” that does not involve

jurisdiction merely renders the judgment voidable so that it may be “corrected through the

ordinary appellate process or other proper proceedings.” Reiss, 118 S.W.3d at 443.

We therefore conclude that the trial court had subject matter jurisdiction even if it

erroneously ignored the mandate of the Houston court of appeals. Madeksho 112 S.W.3d

at 685; In re State, 159 S.W.3d at 205; see also Dubai, 12 S.W.3d at 76.

II. Final Judgment

Appellees contend that one of the conflicting orders of November 4, 2004 disposes

of all claims and states with “unmistakable clarity” that it is a final judgment. See Guajardo

v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (holding that a judgment is final for

purposes of appeal “if and only if either it actually disposes of all claims and parties then

before the court, or it states with unmistakable clarity that it is a final judgment.”). First, we

note the order does not state with unmistakable clarity it is a final judgment. Rather, it

provides in part “the Court’s order of Reinstatement and Order for Mediation of October 8,

6
2004 is vacated” and “the Court’s order of dismissal dated August 13, 2004, is reinstated

and this case is dismissed for want of prosecution as to all claims asserted in the cause

by Dean’s Campin’ Co. against Texas Farm Bureaus (sic) Insurance Companies, Peter

Hardsteen, Pauline Hardsteen, and Rexhall Industries, Inc.” Contemporaneously, the

same trial judge, on the same day, and at the same time, signed a conflicting order denying

the same motion to reinstate the dismissal order.4 Thus, one order sought to dispose of

all claims and the other order continued all claims by Dean’s Campin’ and seemingly

ordered mediation and a trial setting. What is unmistakable is the total absence of clarity.

Appellees also argue that the apparently conflicting order purporting to deny the

motion to vacate the earlier reinstatement “has no effect on the finality of the November

4, 2004 order dismissing Dean’s claims for want of prosecution.” Appellees cite no

material authority for this argument, other than the maxim that there can be only one final

judgment. See Dickerson v. Mack Fin. Corp., 452 S.W.2d 552, 555 (Tex. Civ. App.–

Houston [1st Dist.] 1969, writ ref’d n.r.e.) (citing Mullins v. Thomas, 136 Tex. 215, 150

S.W. 2d 83 (1941) (rule of procedure 301, provides that only one final judgment can be

entered in a suit; after a judgment meeting the test of a final judgment has been entered

in a cause, the entry of a second final judgment in the same case is not a vacation of the

first, and if there is nothing to show that the first is vacated, the second is a nullity).

Appellees also cite Gholson v. Thorn, 597 S.W.2d 568, 569 (Tex. Civ. App.–Dallas 1980,

no writ), holding that when two judgments appear in the record and the second does not

4
As noted, the two conflicting orders were signed without a hearing. No docket entry was m ade.
The clerk’s file stam p is dated Novem ber 10, 2004, and tim e m arked 3:33 PM on both orders. According to
appellant’s brief, the trial court was quoted in a m em o as saying “this is the m ost m ixed up m ess. . . .”

7
purport to vacate the first, the first judgment is effective to start the time for appeal, and the

second is void.

Appellees further cite Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (an order

that merely grants a motion for judgment is in no sense a judgment itself), and S. Tex.

GMAC Real Estate v. Cohyco, Inc., 124 S.W.3d 321, 325 (Tex. App.–Corpus Christi 2003,

no pet.) (notice of appeal, filed seventy-six days after the trial court signed the final

judgment, was untimely). Both cases are inapplicable because in neither case did the trial

court grant and deny the same relief on the same day with incompatible orders.

Appellees’ argument rests upon a faulty premise that there was, in fact, an earlier

final judgment dated November 4, 2004. They fail to address the fact that the conflicting

orders obviate one another because a trial judge cannot grant and deny mutually exclusive

remedies at the same time. See, e.g. Houston v. Adams, 269 S.W.2d 572, 577 (Tex. Civ.

App.–Galveston, 1954, no writ) (party cannot obtain an advantage available to it only under

one asserted remedy without thereby irrevocably electing to pursue that remedy to the

exclusion of all remedies inconsistent therewith). In discussing an analogous situation

involving inconsistent remedies, the Supreme Court held that an inconsistency will bar an

action in instances of manifest injustice. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d

848, 851 (Tex. 1980). “Even though the inconsistent position may not fit the mold of a

better defined principle, an election will bar recovery when the inconsistency in the

assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to

fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be

manifestly unjust.” Id.

8
 The trial court conducted a further hearing March 11, 2005, at the behest of

appellees. At that time the court signed a final order indicating “the Court’s order of

dismissal dated August 13, 2004 was reinstated as of November 4, 2004, and this case

was dismissed for want of prosecution as to all claims. . . .” Appellees again argue that the

signing of a second judgment, reaffirming an earlier judgment, cannot extend appellant’s

time table, citing Stephens v. Henry S. Miller Co., 667 S.W.2d 250, 252 (Tex. App.– Dallas

1984, writ dism’d by agr.) (trial court may not enlarge the time for perfecting an appeal by

making an order that simply affirms a former order) (citing Anderson v. Casebolt, 493

S.W.2d 509, 510 (Tex. 1973)). Stephens also notes that rule 306a provides that the date

a judgment is signed as shown of record determines the beginning of the periods

prescribed by the rules for filing various documents in connection with an appeal, but does

not determine what constitutes rendition of a judgment or order for any other purpose. Id.

Appellees conclude that the third dismissal/clarification order signed March 11, 2005

was void because the second dismissal order of November 4, 2004 was a final judgment.

However, in its March 11, 2005 order, the trial court acknowledged that it “considered the

conflicting Orders of this Court signed November 4, 2004.” It then concluded that the order

granting the Joint Motion to Vacate the Court’s Order of Reinstatement and Order for

Mediation “is the binding Order.” It stated that the first order of dismissal of August 13,

2004 was reinstated as of November 4, 2004, i.e., according to its order of March 11, 2005.

Appellant contends, and we agree, that for a judgment to be final, no further action

by the trial court should be necessary to settle and determine the entire controversy.

Normand v. Fox, 940 S.W.2d 401, 403 (Tex. App.–Waco 1997, no writ) (citing Retana v.

9
Tanner, 869 S.W.2d 669, 670 (Tex. App.–San Antonio 1994, no writ); see also Wagner v.

Warnasch, 295 S.W.2d 890, 892 (Tex. 1956). The Wagner court held: “To be final a

judgment must determine the rights of the parties and dispose of all the issues involved so

that no future action by the court will be necessary in order to settle and determine the

entire controversy.” Id. On a single day, the trial court signed conflicting orders which both

denied and granted appellees’ motion to “reinstate” the first order of dismissal dated

August 13, 2004. Under appellees’ theory, appellate courts would have jurisdiction to

review a permanent injunction that was granted and denied or a final judgment that was

granted in one order and a new trial granted in another.

In this case, the trial court both granted and denied motions totally inconsistent and

incompatible with a final judgment. It denied the only pending motion that was, or could

have been, the basis of the November dismissal order. “Where it has so spoken only a

clear and unequivocal written order or expression by that court will vacate, set aside,

modify or amend its first order. Any other rule would be the parent of uncertainty for the

orders of any court.” See Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366, 369 (Tex. Civ.

App.–Houston [14th Dist] 1969, writ dis’m, w.o.j.). There exists no clear and unequivocal

order here. We agree there can only be one final judgment. TEX . R. CIV. P. 301; North

East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). Here, there

was no judgment as of November 4, 2004, which settled all the legal issues and rights

between the parties that is final and appealable. See Tex. Prop. & Cas. Ins. Guar. Ass'n

v. De Los Santos, 47 S.W.3d 584, 587 (Tex. App.–Corpus Christi 2001, no pet.) (citing

Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985)).

10
 A somewhat analogous situation was presented in LaPointe. See LaPointe v. State,

166 S.W.3d 287, 300 (Tex. App.–Austin 2005), affirmed, 225 S.W.3d 513, 521 (Tex. Crim.

App. 2007)) (if a trial court's error prevents the proper presentation of the case to the

appellate court and that error can be remedied, then the appellate court must direct the trial

court to remedy the error so that the appellate court will be in a position to evaluate the

appeal properly). Like the genesis of the trial court’s conflicting orders of November 4,

2004, the LaPointe district court erred by failing to allow the parties to be present and

examine witnesses at a hearing as required by the rules of evidence. Id. Thus, the

appellate court was prevented from determining whether the error was harmless. Id.

(citing TEX . R. APP. P. 44.4(a)(1) which prohibits the court of appeals from affirming or

reversing a judgment if a trial court's erroneous action or inaction prevents a proper

presentation of a case to the court of appeals and the trial court can correct its action or

failure to act). Similarly, had appellant sought to appeal and invoke our jurisdiction based

on the conflicted orders of November 4, 2004, we in turn would have had to direct the trial

court to correct its erroneous entry of conflicting orders. TEX . R. APP. P. 44.4 (b); see also

Am. Home Prods. Corp. v. Clark, 38 S.W.3d 92, 97 (Tex. 2000) (holding that the court of

appeals complied with Rule 44.4 by requiring the trial court to enter a clarifying order to

allow a proper presentation of the appeal).

When there has not been a conventional trial on the merits, “an order or judgment

is not final for purposes of appeal unless it actually disposes of every pending claim and

party or unless it clearly and unequivocally states that it finally disposes of all claims and

all parties.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-05 (Tex. 2001). If only

11
a plaintiff’s claim against a defendant is adjudicated, other counterclaims, cross-claims or

third party claims are not adjudicated. Id. The law does not require that a final judgment

be in any particular form. Lehmann, 39 S.W.3d at 195. Therefore, whether a decree is a

final judgment must be determined from its language and the record in the case. Id.

Because the November order did not unequivocally dispose of all pending claims

and parties in the record, it is not final and not appealable. Garcia v. Comm'rs Court of

Cameron County, 101 S.W.3d 778, 784 (Tex. App.–Corpus Christi 2003, no pet); see

Lehmann, 39 S.W.3d 201. Appellant timely filed its notice of appeal after the trial court’s

clarification order of dismissal dated March 11, 2005.

III. Dismissal for Want of Prosecution

The Houston Court of Appeals issued its mandate remanding the case on

September 29, 2003. The trial court initially dismissed appellee’s remanded claims based

upon appellees’ joint motion to dismiss filed July 1, 2004, less than ten months after

remand. Appellees’ motion was an apparent response to appellant’s letter dated June 24,

2004. In this letter, counsel for appellant wrote: “Please advise if you are interested in

mediation before I set this matter for Trial. If I do not hear from anyone within the next five

(5) business days, I will set this matter for Trial.”

One of appellees’ trial counsel acknowledged receipt of the letter the next day on

June 25, 2004, and requested a delay in setting the case for trial in order to coordinate a

mutually convenient trial setting. “I would appreciate your not unilaterally setting a trial

date.” Less than one week later, all three appellees filed a joint motion to dismiss. They

asserted that the Texas Supreme Court returned the petition for review on June 12, 2003

12
and that “Since that date, Dean’s Campin’ Co. has taken no action in this court.”5

Apparently appellees’ trial counsel somehow thought, "to the signatory's best knowledge,

information, and belief, formed after reasonable inquiry," that requesting mediation or a trial

setting was “no action.” See TEX . CIV. PRAC . & REM . CODE ANN . § 10.001 (Vernon 2002).

Also, appellees seem to overlook that the mandate from the court of appeals was not filed

until October 10, 2003.

On August 9, 2004, appellant supplemented its prior discovery with an update on

attorney’s fees. This was the fifth supplementation. The record indicated that the trial

court in question is a circuit court, and that the only time the matter could have been set

for trial before August, 2004, was in April, 2004.6

Following the trial court’s initial dismissal for want of prosecution on remand, the

case was reinstated and the October 8, 2004 order required the mediation of the case.

Appellees resisted mediation. Appellant attempted to mediate the case both by its letter

of June 24, 2004, and after the court order of mediation on October 8, 2004. Appellant

also formally requested a trial setting, and the case was set for trial April 4, 2005. The trial

court entered the “reinstatement” of the original dismissal order on March 11, 2005, some

three weeks before the trial setting. Appellant contends that the senior district judge who

had tried the original action and reinstated the case, offered to try the case. Appellant

propounded a deposition upon written questions and appellees filed objections and a

5
Appellees’ trial counsel also represented to the trial court at the initial dism issal hearing that the
case was rem anded the year before i.e. August, 2003. In fact, the m andate from the court of appeals was
not issued until Septem ber 29, 2003.

6
Appellees com plain that appellant “m anufactured” this evidence which was not presented at the
initial hearing. W e trust that the trial judge him self surely was not unaware of the lim ited tim e he spent in
Grim es County.

13
motion to quash in March, 2005.

IV. Standard of Review

A court has the inherent power to dismiss a suit for failure to prosecute it with due

diligence even without statutory or rule authority, subject to review for abuse of discretion.

Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976).7 The decision to dismiss

a case for want of prosecution rests within the sound discretion of the trial court and can

be disturbed on appeal only if it amounted to a clear abuse of discretion. See State v.

Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d

85, 87 (Tex. 1957). Furthermore, as appellees correctly argue, not only does a trial court

have inherent power to dismiss a case, rule 165(a)4 expressly acknowledges the trial

court’s inherent power to dismiss for want of prosecution. TEX . R. CIV. P. 165(a)(4). The

same standard of review is applied in reviewing a denial of a motion to reinstate. Franklin

v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex. App.–Dallas 2001, pet. denied).

The test for abuse of discretion is whether the trial court acted without reference to any

guiding rules and principles, or equivalently, whether under all the circumstances of the

particular case, the trial court's action was arbitrary or unreasonable. Downer v.

Aquamarine Ops., Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

This case must have been dismissed under the court's inherent power because it

does not fit the profile of either subdivision of the procedural rules.8 See King v. Holland,

884 S.W.2d 231, 237 (Tex. App.–Corpus Christi 1994, writ denied). We therefore consider

7
In W illiams, there had been a seven and one-half year delay with no explanation. Id.

8
Appellant also argues and states as a fact that the case was dism issed based on the court’s
inherent power.

14
the length of time the case was on file, the extent of activity in the case, whether a trial

setting was requested, and the existence of reasonable excuses for the delay. Id. (citing

State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984) (proceeding has been plagued by delay

and inactivity from the outset and had been pending for fifteen years, had been in four

appellate courts, and still was not ready for trial)).

V. Discussion

Appellees seek to argue that the relevant time period concerning the length of

pendency of the claim dates back to the original filing in 1998. Of course appellant was

initially a defendant only and did not bring the original lawsuit. After being made a party,

it initially sought only indemnity as an innocent retailer. Therefore, it is incorrect to charge

appellant with the entire pendency of the lawsuit for several reasons. Appellant won its trial

to the jury. The trial court’s erroneous ruling granting appellees a summary judgment was

successfully appealed by appellant and reversed by the Houston Court of Appeals. As the

Houston court noted in its opinion, appellant’s claims based upon its status as an innocent

retailer were not established until the jury verdict exonerating appellant. See Dean’s

Campin’ Co., 2002 WL 1980840, at *1. This did not occur until late 2000, and in the

meantime, the trial court had erroneously granted a summary judgment against appellant.

Further, the trial court lost jurisdiction of the matter for several years, pending the final

mandate of the court of appeals in September 29, 2003. The mandate was not filed with

the trial court until October 10, 2003. Thus, it would appear that the relevant “length of

time” on the indemnity claim did not be begin until the trial court regained jurisdiction in the

Fall of 2003.

Appellees base their argument in part on Coats. See Estate of Bolton v. Coats, 608

15
S.W.2d 722, 726-27 (Tex. Civ. App.–Tyler 1980, writ ref’d n.r.e.). The court quoted the trial

court’s own order of dismissal:

This record reflects that Plaintiffs have been afforded over eight (8)
months in which to comply with the Court's order of May 2, 1978. Plaintiffs
have failed to join Johnny Mitchell as a party. In light of the fact that this
cause has been pending for fourteen (14) years without resolution, such
delay in complying with the Court's order is inexcusable. Plaintiffs have,
therefore, failed to prosecute their claim with diligence, and the Court, upon
its own motion, orders that this action be, and it is hereby, dismissed, with
unpaid costs taxed against Plaintiffs.

Id. Our situation is inapposite: (1) the trial court here had not ordered appellant to do

anything, nor did the court set the case for trial; (2) appellant’s indemnity did not ripen and

its claim could not have been pursued until October 2003 as discussed above; and (3)

Coats noted “In the more than 16 years that the suit has been pending, appellants have

exhibited no real effort to bring the case to trial.” Id. The Coats scenario of multi-year

inactivity is simply not present here. Nor did the trial court here carry out the mandate of

the court of appeals.

Even if we consider the entire time appellant’s claim was pending, dating back to

1998, the record indicates appellant’s active prosecution of the case. Appellant was

initially sued as a defendant June 12, 1996. It requested indemnity the next month and

filed a cross-claim on July 17, 1998. Appellant supplemented its discovery multiple times

in 2000. Appellant filed cross-claims and amended its indemnity claims in 2000. The trial

court erroneously granted appellees’ summary judgment and dismissed appellant’s

supplemental cross-claims in 2000. A seven-day jury trial was conducted resulting in a

favorable verdict and judgment for appellant on December 19, 2000. The gravamen of the

case at that point effectively placed appellant only as a defendant, not a plaintiff, because

16
the trial court had stripped appellant of all its affirmative claims. Thereafter, the appellate

process began, including a petition for error to the supreme court, which was denied.

Finally, the Houston appellate court’s mandate was filed with the trial court on October 10,

2003. The trial court then dismissed the remanded claims on August 13, 2004, a few

weeks after appellant demanded mediation or a trial setting, and after appellant had again

supplemented its discovery for the fifth time. The record of the case simply does not

suggest the lack of prosecution or diligence that is reflected in appellee’s cited authorities.

Appellees also cite Brim Laundry Mach. Co. v. Washex Mach. Corp., 854 S.W.2d

297, 302 (Tex. App.–Fort Worth 1993, writ denied). While pending for four years from

1988, the case was listed on the court's yearly dismissal docket. Id. In 1988, 1989, and

1990, motions to retain were filed and the case was taken off the dismissal docket. Id.

There was no discovery activity from May of 1991 until the case was dismissed, six months

later. Id. Brim Laundry is not on point because appellant here did supplement its

discovery and filed additional discovery–objected to by appellees. It both requested an

earlier trial setting and actually had obtained a trial setting just weeks before the court’s

final dismissal of the case.

Appellees’ reliance on Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 843 (Tex.

App.–San Antonio 1989, writ denied) is also misplaced. There, the record consisted of a

transcript only; there were no findings of fact or statement of facts. Id. The plaintiff made

no effort to get the case set for trial prior to the dismissal docket call, even though the case

had been on file for approximately thirty months prior to dismissal. Id. Here, appellant

supplemented its discovery and sought a trial setting within nine months after remand.

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 Appellees cite Bevil v. Johnson, 307 S.W.2d 85, 88 (Tex. 1957). “The fact that

respondents had no intention to abandon it, or that their attorney had hopes of settling the

case, cannot be made a ground for charging an abuse of discretion by the trial court.” Id.

However, in Bevil, the court decries, “a delay of an unreasonable duration occurs, such

delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of

the plaintiff's suit, and a discontinuance results.” Id. 87-88. There, the unreasonable

duration showed that a motion had remained on the docket for more than eight years and

for more than three years after the death of the plaintiff, John R. Bevil. Id. at 88. The

plaintiff never set the motion. Appellant’s case here does not suffer any of the neglect

reflected in Bevil.

Appellees next argue Moore v. Armour & Co., 748 S.W.2d 327, 329 (Tex.

App.–Amarillo 1988, no writ). In Moore, the case was pending for 18 years. Id. at 328.

It was first dismissed for want of prosecution in 1976, reinstated and dismissed again in

1979. Id. at 329. On appeal, the dismissal was reversed. Id. The court's mandate issued

on December 5, 1983. Id. Thereafter, no activity was evinced until November 20, 1986,

when the attorneys for defendants moved for a dismissal of the cause for want of

prosecution. Id. Moore states that the trial court had no affirmative duty to then set the

cause for trial, albeit the court could have done so.9 Id. at 330. As indicated by appellees,

the court held it was the plaintiff’s duty, once Armour and Browning had answered, to

proceed with reasonable diligence to prosecute his cause to a conclusion. Id. However,

Moore remarkably argued that dismissal was precluded by his announcement of ready in

9
Most m odern courts actively m anage their own dockets, particularly those provided with full tim e
coordinators.

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1980—at the time of the last dismissal. He proposed that when his cause was reinstated

upon remand, his 1980 announcement of ready and request for a trial setting remained

viable, which imposed on the trial court the affirmative duty to set the cause for trial after

remand in 1983. Id. Appellees’ reliance on Moore is unpersuasive.

Finally, appellees cite FDIC v. Kendrick, 897 S.W.2d 476, 481 (Tex. App.–Amarillo

1995, no writ). “It is well established that neither settlement activity nor the passive attitude

of opposing parties excuses a want of diligent prosecution.” Id. After several trial settings

and considerable discovery proceedings, in July 1993, FDIC’s counsel announced to the

trial court that a tentative settlement agreement had been reached, subject to final approval

by the various committees of the FDIC. Id. On August 4, 1993, the trial court notified the

parties that it expected the agreement to be consummated not later than October 8, 1993.

Id. The FDIC failed to comply with the court’s explicit order even in view of the trial court’s

express threat to dismiss the case for non-compliance. Id. Once again, like our discussion

of Coats above, the trial court here had not ordered appellant to do anything. Nor had

numerous trial settings been passed by appellant. To the contrary, appellant prevailed in

the first trial, effectively regained its right to indemnity on appeal, and then actively sought

a trial; it was appellees who resisted trial of the case, mediation and discovery.

Under the facts presented here, we find that the trial court abused its discretion by

dismissing appellant’s actively pursued indemnity claims, including one claim the Houston

court of appeals had already found to be due and owing. See Downer 701 S.W.2d at

241-42; Brown v. Prairie View A & M Univ., 630 S.W.2d 405, 413 (Tex. App.–Houston

[14th Dist.] 1982, writ ref'd n.r.e.); William T. Jarvis Co. v. Wes-Tex Grain Co., 548 S.W.2d

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775, 778 (Tex. Civ. App. –Waco 1977, writ ref'd n.r.e.); Rorie v. Avenue Shipping Co., 414

S.W.2d 948, 954-55 (Tex. Civ. App.–Houston 1967, writ ref'd n.r.e.); see also Collier Man.

& Supp., Inc. v. InterFirst Bank Austin, N.A., 749 S.W.2d 560, 563-65 (Tex. App. – Austin

1988, no writ).

VI. Mandate of the Appellate Court

When an appellate court remands a case with specific instructions, the trial court

is limited to complying with the instructions and cannot relitigate issues controverted at the

former trial. Denton County v. Tarrant County, 139 S.W.3d 22, 23 (Tex. App.–Fort Worth

2004, pet denied) (citing Kahn v. Seely, 37 S.W.3d 86, 88 (Tex. App.–San Antonio 2000,

no pet.); Ballard v. Cantrell, 597 S.W.2d 41, 42 (Tex. Civ. App.–Fort Worth 1980, writ ref'd

n.r.e.)). The trial court's authority is limited to only those issues specified in the mandate.

Id. (citing Martin v. Credit Prot. Ass'n, Inc., 824 S.W.2d 254, 256 (Tex. App.–Dallas 1992,

no writ). In interpreting the mandate of an appellate court, the trial court looks not only to

the mandate itself but also to the appellate court's opinion. Id. The trial court is given a

reasonable amount of discretion in complying with the mandate. Id. (citing Austin Transp.

Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 690 (Tex. App.–Austin

1992, writ denied). The trial court has no alternative but to follow the appellate court's

mandate, and its orders in compliance with the mandate are not reviewable. Id.

When the trial court clerk receives the mandate, the appellate court's mandate must

be enforced. TEX . R. APP. P. 51.1(b). Likewise, a trial court must observe and carry out an

appellate court's mandate. Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex. App. –San

Antonio 1984, orig. proceeding). “It must observe and carry out the mandate of the

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appellate court. Its orders carrying out the mandate are ministerial.” Myers v. Myers, 515

S.W.2d 334, 335 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ dism'd w.o.j.). A trial court's

failure or refusal to comply with a court of appeals mandate is an abuse of discretion. Lee

v. Downey, 842 S.W.2d 646, 648, (Tex. 1992) (orig. proceeding).

Here, the mandate of the Houston court provided that the supplemental cross-

claims should be determined and that the attorney’s fees and costs under section

82.002(a) of the civil practice and remedies should be determined. Just as the trial court

erred by not awarding appellant its costs in the original action reversed by the Houston

court, it repeated the same error when it dismissed appellant’s case once again without

awarding costs both of the appeal and of the original action to appellant.

VII. Conclusion

The trial court abused its discretion by dismissing appellant’s case for want of

prosecution. See Lee, 842 S.W.2d at 648. The trial court abused its discretion by not

following the mandate of the Houston court of appeals. See id. We accordingly reverse

and remand with instructions that the trial court carry out both mandates in this case.

DON WITTIG,
Justice

Memorandum Opinion delivered and filed
this the 29th day of August, 2008.

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