Melko Dobroslavic and Southampton Properties, L.L.C. v. Bexar Appraisal District and Bexar County Appraisal Review Board

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00207-CV

Melko DOBROSLAVIC and Southampton Properties, L.L.C.,
Appellants

v.

BEXAR APPRAISAL DISTRICT and Bexar County Appraisal Review Board,
Appellees

From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-16309
Honorable Martha Tanner, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice

Delivered and Filed: December 28, 2012

AFFIRMED

Appellants Melko Dobroslavic and Southampton Properties, L.L.C., appeal the trial

court’s judgment dismissing their suit for want of prosecution. We affirm.

BACKGROUND

On September 28, 2010, the appellants filed a pro se suit for judicial review of a decision

by the Bexar County Appraisal Review Board. The Bexar County Appraisal Review Board and

the Bexar County Appraisal District, the appellees, filed separate answers to the suit on October

14, 2010, and October 19, 2010, respectively. For the next thirteen months, nothing was filed in
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the case. Then, on December 1, 2011, the trial court clerk sent appellants a notice advising them

that their case was set for dismissal for want of prosecution on March 6, 2012. The notice stated

that appellants’ case had been “on file for an extended period of time” and had “not been

prosecuted,” and that “the court [was] of the opinion that in accordance with the Supreme Court

guidelines” the case should be “specially set for dismissal for want of prosecution.” The notice

further stated that the case was set for dismissal on March 6, 2012, at 8:30 a.m. “unless good and

sufficient cause is shown for [its] retention on the docket.” After receiving the dismissal notice,

appellants retained counsel to represent them.

On January 13, 2012, appellants’ counsel filed a notice of appearance in the case and

asked the trial court clerk to set the case for a bench trial on July 9, 2012. Appellants received

conflicting responses to their request for a trial setting. The trial court clerk responded that the

case would not be set for trial because it was set on the dismissal docket. However, the trial court

clerk also returned a copy of an order, signed by the trial court, setting the case for a bench trial

on July 9, 2012.

On February 15, 2012, appellees filed a jury demand and paid the jury fee. On February

29, 2012, appellants filed a verified motion to retain the case on the trial court’s docket. In the

motion, appellants urged the trial court to retain their case on the docket because they wished to

prosecute the case. The motion also stated that during the period of time since appellants’

counsel had been hired in December 2011, expert witnesses had been retained, expert reports had

been prepared and served on the appellees, and limited discovery had taken place. The motion

further requested that the case be set for a jury trial after June 1, 2012.

On March 6, 2012, appellants and appellees appeared in the trial court in accordance with

the dismissal notice. The trial court held a hearing. Thereafter, the trial court signed an order

dismissing the case for want of prosecution. This appeal ensued.
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APPLICABLE LAW

A trial court’s authority to dismiss for want of prosecution has two sources: Rule 165a of

the Texas Rules of Civil Procedure and the trial court’s inherent power. Scoville v. Schaffer, 9

S.W.3d 201, 203 (Tex. App.—San Antonio 1999, no pet.). First, under Rule 165a, a trial court

may dismiss on “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). Second,

under the common law, the trial court has the inherent power to dismiss when a plaintiff fails to

prosecute his case with due diligence. Scoville, 9 S.W.3d at 203. This authority stems from the

trial court’s power to maintain and control its docket. Maida v. Fire Ins. Exch., 990 S.W.2d 836,

839 (Tex. App.—Fort Worth 1999, no pet.).

We review a trial court’s order dismissing for want of prosecution for an abuse of

discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion

when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). With

respect to factual matters, an abuse of discretion occurs only when the record shows “the trial

court could reasonably have reached only one decision.” Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992). We may not reverse for abuse of discretion merely because we disagree with the

decision of the trial court. Texas Mut. Ins. v. Olivas, 323 S.W.3d 266, 273 (Tex. App.—El Paso

2010, no pet.).

DISCUSSION

In their brief, appellants raise complaints about the adequacy of the dismissal notice and

the trial court’s decision to dismiss their suit.

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1. Adequacy of the Dismissal Notice

A party must be provided with notice and an opportunity to be heard before a trial court

may dismiss for want of prosecution under either Rule 165a or its inherent authority. Villarreal

v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). The Texas Supreme Court has

held that a trial court’s failure to provide adequate notice of its intent to dismiss requires reversal

because a party’s due process rights have been violated. See id.; but see Hernandez v. ISE, Inc.,

No. 04-06-00888-CV, 2008 WL 80005, at *3 (Tex. App.—San Antonio 2008, no pet.)

(concluding there was no need to reverse the trial court’s judgment for failure to provide

adequate notice when the appellant was provided with an opportunity to refute the dismissal of

her case at a hearing on a motion to reinstate).

In the present case, appellants contend the dismissal notice was inadequate to inform

them of the trial court’s intention to dismiss for want of prosecution. In support of this

contention, the appellants rely on the Texas Supreme Court’s holding in Villarreal. 994 S.W.2d

at 631-33. There, the trial court’s dismissal notice stated the case was set for dismissal and the

party was “requested to be present and make your announcement. If no announcement is made,

this cause will be dismissed for want of prosecution.” Id. at 629. The supreme court held that the

notice in Villarreal could only fairly be read as providing notice that the case would be dismissed

under Rule 165a(1) if the parties failed to appear at the hearing; it did not provide notice of the

trial court’s intent to dismiss under its inherent power. Id. at 632-33.

The present case is distinguishable from Villarreal. In the present case, the notice does

not make dismissal contingent on the appellants’ failure to make an announcement. Rather, the

notice expressly states that appellants’ case had been “on file for an extended period of time” and

had “not been prosecuted,” and that “the court [was] of the opinion that in accordance with the

Supreme Court guidelines” the case should be “specially set for dismissal.” When considered as
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a whole, the dismissal notice in this case could fairly be read as informing the plaintiffs of the

trial court’s intent to dismiss for want of prosecution under either Rule 165a(2) for failure to

comply with time standards established by the Texas Supreme Court or the trial court’s inherent

authority.

According to appellants, the dismissal notice was inadequate because it failed to warn

them that they were required to show that their case had been prosecuted with due diligence;

instead, the notice warned them only that they must show “good and sufficient cause” to retain

their case on the docket. Appellants’ argument has no merit. To avoid dismissal on the ground

that the case was not prosecuted with diligence, appellants were required to demonstrate that

they exercised reasonable diligence in prosecuting their suit. See McCray v. Keith, No. 09-11-

00398-CV, 2012 WL 983172, at *2 (Tex. App.—Beaumont 2012, no pet.) (citing MacGregor,

941 S.W.2d at 75-76)). Courts articulate this reasonable diligence standard in terms of a showing

of “good cause” or “sufficient excuse” for maintaining the suit on the trial court’s docket. See

Villarreal, 994 S.W.3d at 633; Olivas, 323 S.W.3d at 274; Binner v. Limestone Cnty., 129

S.W.3d 710, 714 (Tex. App.—Waco 2004, pet. denied); Christian v. Christian, 985 S.W.2d 513,

514-15 (Tex. App.—San Antonio 1998, no pet.); see also TEX. R. CIV. P. 165a(1). Thus, the

statement in the dismissal notice that appellants’ case would be dismissed “unless good and

sufficient cause” was “shown for [its] retention on the docket” was consistent with the standard

for demonstrating due diligence in prosecuting a suit. We hold the trial court provided appellants

adequate notice of its intention to dismiss for want of prosecution under Rule 165a(2) and its

inherent authority.

2. Decision to Dismiss for Want of Prosecution

When the trial court’s order does not state a particular reason for dismissal, we may

affirm the judgment under any applicable legal theory. Olivas, 323 S.W.3d at 274; Fox v. Wardy,
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225 S.W.3d 198, 200 (Tex. App.—El Paso 2005, pet. denied). When reviewing a trial court’s

decision to dismiss a case under its inherent authority, we examine the record in its entirety.

Olivas, 323 S.W.3d at 274. When challenging the trial court’s decision to dismiss, the appellant

has the burden to bring forth a record that demonstrates an abuse of discretion. Olivas, 323

S.W.3d at 274; Fox, 225 S.W.3d at 200.

Appellants have not caused a reporter’s record to be filed in this appeal. The appellate

record in this case consists only of a clerk’s record. The clerk’s record contains the dismissal

order, which does not state the specific basis for the trial court’s decision to dismiss for want of

prosecution. Based on the dismissal notice, two theories applied: Rule 165a(2) and the trial

court’s inherent authority. We analyze this case under the latter theory.

Again, to avoid dismissal for want of prosecution under the trial court’s inherent

authority, appellants were required to demonstrate to the trial court that they had exercised

reasonable diligence in prosecuting their suit. See McCray, 2012 WL 983172, at *2 (citing

MacGregor, 941 S.W.2d at 75-76)). To decide the diligence issue, trial courts consider the entire

history of the case, including whether the plaintiff requested a trial setting, the amount of activity

in the case, the passage of time, and the plaintiff’s excuses for the delay. Scoville, 9 S.W.3d at

204; Christian, 985 S.W.2d at 514-15. No single factor is dispositive. Scoville, 9 S.W.3d at 204;

Christian, 985 S.W.2d at 515. Reasonable diligence is generally a question of fact. Christian,

985 S.W.2d at 515 (citing MacGregor, 941 S.W.2d at 75-76)).

Here, the record shows there was a complete absence of activity in this case from the

time the appellees filed their answers in October 2010, until January 13, 2012, when appellants’

counsel filed a notice of appearance. No trial setting was requested until January 13, 2012, when

the appellants made their initial request for a bench trial setting. Thus, the record shows

appellants did not begin to prosecute their case until after it had been set on the dismissal docket.
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In addition, the record contains appellants’ verified motion to retain the case on the trial court

docket. This motion expresses appellants’ “wish to prosecute this case,” and advises that counsel

took over the representation in this case in December 2011, and thereafter retained expert

witnesses, served expert reports on appellees, and engaged in nominal discovery. However, the

motion wholly fails to mention any excuses for the delay in prosecuting the case.

In addition, even if the appellants had caused the reporter’s record to be filed in this

appeal, nothing indicates it would alter our analysis. In their appellate brief, appellants state that

counsel appeared at the dismissal hearing and “argued that (1) the Plaintiffs (Appellants) had

retained counsel in December of 2011 to prosecute the case, (2) that the Appellants were

prepared to proceed to trial in the case, (3) that an expert witness had been retained and that

expert reports (supplemental disclosure) had been submitted to Defendant, BCAD, (4) that initial

discovery requests had been served, and [(5)] that Appellants had requested that the case be

retained and scheduled for jury trial (based upon the jury request having been made by Appellee,

BCAD).” Thus, the arguments appellants made at the dismissal hearing simply mirrored the

arguments made in their verified motion to retain.

None of the arguments made in appellants’ motion to retain, or purportedly made at the

dismissal hearing, provided any excuse for the delay in prosecuting the suit. See Scoville, 9

S.W.3d at 204; Christian, 985 S.W.2d at 515. Rather, appellants’ arguments focused on their

desire to prosecute this case and their trial readiness. But reasonable diligence in prosecuting a

suit is not established simply by a belated trial setting or a stated readiness to proceed to trial.

Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.]

1999, no pet.).

The trial court was entitled to consider all of the relevant factors in evaluating the

appellants’ diligence in prosecuting their suit; no single factor was determinative. See id.;
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Christian, 985 S.W.2d at 514-15. At the time of dismissal, the appellants’ suit had been pending

for seventeen months. There was a complete lack of activity in the case from October 2010 to

January 2012. Moreover, appellants offered no excuse whatsoever for their delay in prosecuting

the suit. Based on these factors, the trial court could have reasonably concluded that appellants

failed to demonstrate they had exercised reasonable diligence in prosecuting their suit. We hold

the trial court did not abuse its discretion in dismissing the appellants’ case.

CONCLUSION

The judgment of the trial court is affirmed.

Karen Angelini, Justice

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