In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_______________________________
06-20-00009-CV
_______________________________
EDWIN RAY SEWELL, Appellant
V.
J. MICHAEL BROCK, J. MICHAEL BROCK PLLC,
HOWARD MOWERY, AND MOWERY LAW FIRM, Appellees
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 14C0986-102
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
In this legal malpractice case, Edwin Ray Sewell appeals the dismissal of his suit against
his former attorneys, J. Michael Brock (Brock), J. Michael Brock, PLLC (Brock, PLLC),
Howard Mowery (Mowery), and Mowery Law Firm (collectively Attorneys). On appeal, Sewell
complains that (1) the County Court at Law of Titus County (Titus CCL) erroneously transferred
his suit from Titus County to Bowie County, and (2) the 102nd Judicial District Court of Bowie
County (102nd District Court) erroneously dismissed his suit for want of prosecution. Because
we find that the Titus CCL did not err when it transferred the suit to Bowie County and that the
102nd District Court did not abuse its discretion by dismissing the suit for want of prosecution,
we affirm the 102nd District Court’s judgment.
I. Transfer of the Suit Was Not Error
A. Procedural Background and Evidence Relating to Venue
On July 1, 2014, Sewell filed his original petition in the Titus CCL in which he asserted
claims against Attorneys for legal malpractice, professional negligence, negligent
misrepresentation, and gross negligence. He alleged that (1) he had retained Attorneys to
represent him in a motor vehicle accident that occurred in Titus County on September 8, 2010,
(2) Attorneys had engaged in settlement negotiations with an insurance company, and (3) when
Attorneys failed to file suit prior to the expiration of the statute of limitations, the insurance
company withdrew its settlement offer.
The petition also alleged that Sewell, Brock, and Mowery resided in Bowie County and
that Brock, PLLC, and Mowery Law Firm did business in Bowie County. It also asserted that
2
venue was proper in Titus County “under Section 15.002(a)(1) of the Texas Civil Practice and
Remedies Code because all or a substantial part of the events or omissions giving rise to [the]
lawsuit occurred in [Titus] county.”
On July 24, 2014, Attorneys filed a motion to transfer venue and an affidavit in support
of that motion. In their motion, Attorneys specifically denied that venue in Titus County was
proper because the contract of legal representation was not negotiated or made in Titus County,
no part of the cause of action was based or performed in Titus County, and none of the alleged
acts or omissions giving rise to the cause of action occurred in Titus County. They also pleaded
that all or a substantial part of the cause action occurred in Bowie County, that they resided in
Bowie County, and that their principal office in this state was in Bowie County. In the affidavit,
Mowery asserted that both he and Brock were sole practitioners and that their offices and
residences were in Bowie County; that any agreement for legal representation of Sewell was
negotiated and performed in Bowie County; that all telephonic, in-person, and written
communications between Attorneys and Sewell occurred in Bowie County; that neither Mowery
nor Brock travelled to Titus County for any reason related to their representation of Sewell; that
no communications with any liability insurer for the tortfeasor in the motor vehicle accident
occurred in Titus County; and that no lawsuit in connection with the accident was filed in Titus
County.
3
On July 31, 2014, the Titus CCL granted the motion 1 and transferred the suit to the
County Court at Law of Bowie County. 2 On August 11, 2014, Sewell filed a motion to set aside
the order transferring venue but did not obtain a ruling from the Titus CCL. Sewell also did not
submit an affidavit in support of venue in Titus County with his motion.
In September 2014, after the Titus CCL lost its plenary jurisdiction to correct the transfer
order, 3 Sewell filed, in the Titus CCL, his Plaintiff’s Response By Submission to Plaintiff’s
Motion to Set Aside Order Transferring Venue and the affidavits of David F. Freudiger, one of
Sewell’s attorneys, and of Sewell. 4 As relevant to the arguments in this appeal, Freudiger
claimed that all or a substantial part of the events giving rise to Sewell’s malpractice claims
occurred in Titus County, that Sewell’s underlying personal injury accident occurred in Titus
County, and that Sewell had to seek medical treatment from the accident from Titus Regional
Medical Center and other Titus County medical providers. Sewell’s affidavit (1) averred that he
was involved in a motor vehicle accident in Titus County and that he was transported to Titus
County Regional Hospital where he was treated for injuries and (2) attached the accident report.
The only other evidence in the record relating to venue was the Contingent Fee
Agreement (Agreement) executed by Sewell, which was Exhibit 2 to Attorneys’ motion for
On appeal, Sewell does not complain about not receiving the notice required by Rule 87 of the hearing on the
1
motion to transfer. See TEX. R. CIV. P. 87(1).
The case was later transferred to the 102nd District Court by the presiding judge of the First Administrative Judicial
2
Region.
3
See In re Gibbs, No. 06-15-00002-CV, 2015 WL 400468, at *1 (Tex. App.—Texarkana Jan. 30, 2015, orig.
proceeding) (mem. op.) (plenary jurisdiction to correct a transfer order expires after thirty days) (citing In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) (orig. proceeding)).
4
This motion and the accompanying affidavits were not filed in the 102nd District Court until May 27, 2020, over
three months after the notice of appeal was filed in this Court.
4
summary judgment filed in the 102nd District Court. The Agreement recites that Sewell
retain[ed] the Mowery Law Firm and the Michael J. Brock Law Firm to prosecute Sewell’s claim
for personal injuries and damages sustained in a motor vehicle accident on October 8, 2010. 5
The Agreement also recited that it was “performable in BOWIE County, Texas.”
B. Applicable Law and Standard of Review
“[A] plaintiff has the first opportunity to fix venue in a proper county by filing suit in that
county.” In re Harding, 563 S.W.3d 366, 370 (Tex. App.—Texarkana 2018, orig. proceeding)
(citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding)). When, as
here, the defendant properly “objects to the plaintiff’s choice of venue through a motion to
transfer, the plaintiff has the burden to present prima facie proof by affidavit that venue is
maintainable in the county where the suit has been filed.” Id. (citing TEX. R. CIV. P. 87(3); In re
Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999) (orig. proceeding)). “A plaintiff satisfies
this burden ‘when the venue facts are properly pleaded and an affidavit, and any duly proved
attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such
pleading.’” Id. (quoting TEX. R. CIV. P. 87(3)(a)). “If the plaintiff fails to establish proper
venue, the trial court must transfer venue to the county specified in the defendant’s motion to
transfer, provided that the defendant has requested transfer to another county of proper venue.”
Id. (quoting Masonite Corp., 997 S.W.2d at 197). “On this issue, the defendant has the burden of
proof.” Id. (citing Masonite Corp., 997 S.W.2d at 197).
After Attorneys filed a motion for summary judgment, Sewell amended his petition to recite that October 10, 2010,
5
was the date of the motor vehicle accident.
5
In an appeal challenging the trial court’s ruling on a motion to transfer venue, we “review
. . . the entire record to determine whether venue was proper in the ultimate county of suit.” Ruiz
v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993); see TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.064(b). If there is probative evidence to support the trial court’s ruling, we will defer to its
decision, even if the preponderance of the evidence is to the contrary. Ruiz, 868 S.W.2d at 758.
If there is no such evidence, we must reverse the judgment and remand the case to the trial court.
Id. We review “the record in the light most favorable to the trial court’s ruling,” but “[w]e do
not defer . . . to the trial court’s application of the law.” Id.
C. Analysis
In Sewell’s first issue, he contends that the Titus CCL erred in transferring the suit
because venue was proper in Titus County. In his original petition, Sewell alleged that venue
was proper in Titus County under Section 15.002(a)(1) of the Texas Civil Practice and Remedies
Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1) (providing for venue “in the
county in which all or a substantial part of the events or omissions giving rise to the claim
occurred”). Even so, after Attorneys challenged venue 6 in Titus County through a motion to
transfer venue, Sewell did not file any affidavits or duly proved attachments supporting any
venue facts pleaded in his original petition at any time while the Titus CCL retained plenary
jurisdiction. Since Attorneys pleaded that venue in Bowie County was proper because all or a
substantial part of the cause action occurred in Bowie County, the individual Attorneys resided
in Bowie County, and the principal offices of their firms in this state were in Bowie County, and
6
Sewell does not assert that Attorneys did not properly challenge venue in Titus County or that they did not carry
their burden to show that venue in Bowie County was proper.
6
supported those pleadings with an affidavit, the Attorneys carried their burden to establish that
venue was proper in Bowie County. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(2), (3)
(providing for venue “in the county of defendant’s residence at the time the cause of action
accrued if defendant is a natural person” and “in the county of the defendant’s principal office in
this state, if the defendant is not a natural person”). The Titus CCL therefore was required to
transfer the case to Bowie County. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999)
(orig. proceeding); Harding, 563 S.W.3d at 370.
That said, we must review the entire record in the case, including any evidence that may
have been introduced after the suit was transferred to Bowie County, to determine whether venue
was proper in Bowie County, the ultimate county of suit. See Ruiz, 868 S.W.2d at 758. This
requires us first to determine whether any evidence showed that venue was proper in Titus
County, because, if the plaintiff has submitted probative evidence that shows venue is proper in
the county in which suit was filed, “no other county can be a proper venue in that case.” Wilson
v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994).
In his brief, Sewell asserts that venue was proper in Titus County based on Section
15.002(a)(1) because all or a substantial part of the events giving rise to the cause of action
occurred in Titus County. He points to two factual allegations in his original petition that he
argues support venue under this section: (1) the motor vehicle accident occurred in Titus County
and (2) he had to seek medical treatment in Titus County as a result of the accident. 7
7
Sewell’s original petition does not specifically allege that he had to seek medical treatment in Titus County because
of the accident. Yet, in alleging the damages he would have been able to recover in the claim related to the accident,
the original petition states that he incurred expenses “for the necessary care and treatment of the injuries resulting
7
The cause of action asserted against Attorneys was for legal malpractice, which in Texas
is based on negligence. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989) (op. on
reh’g). “Generally, to recover on a claim of legal malpractice, a plaintiff must prove: (1) the
attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately
caused the plaintiff's injuries; and (4) damages occurred.” Peeler v. Hughes & Luce, 909 S.W.2d
494, 496 (Tex. 1995). To show venue was proper under Section 15.002(1)(a), Sewell was
required to allege a substantial act or omission by Attorneys that breached their duty to him and
that occurred in Titus County. See Foreman v. Rowe, 511 S.W.2d 544, 545 (Tex. App.—Austin
1974, no writ) (decision under prior statute).
In Foreman, Rowe sued for legal malpractice against Foreman, his former attorney, in
Bell County. Rowe had hired Foreman to prosecute a personal injury suit arising out of an
incident in Bell County in which Rowe had sustained gunshot wounds. Foreman instituted the
personal injury suit in Bell County, but then allowed it to be dismissed for lack of prosecution.
Id. The evidence at the plea of privilege hearing showed that Foreman had mailed the petition to
Bell County, that he had not made an appearance in the case in Bell County, and that all
consultations about the case had taken place in Harris County where Foreman resided. No
from the accident complained of . . . and such charges are reasonable and were usual and customary charges for such
services in Titus County, Texas.”
Sewell also directs us to the two affidavits filed as attachments to his Plaintiff’s Response by Submission to
Plaintiff’s Motion to Set Aside Order Transferring Venue. However, those affidavits were filed in the Titus CCL
after it lost plenary jurisdiction and were not filed in the 102nd District Court until three months after Sewell filed
his notice of appeal, long after that court lost plenary jurisdiction of the case. So, these affidavits were not before
either court while they had jurisdiction of the case and, therefore, cannot be considered evidence in the record of this
case.
8
evidence showed that Foreman had been in Bell County at any time in connection with the suit
or that he had performed any act in Bell County related to the suit. Id.
In reversing the trial court’s denial of Foreman’s plea of privilege, the Austin Court of
Appeals explained,
If Foreman negligently failed to act, in an effort to prevent dismissal of the suit, or
thereafter failed to act in an effort to reinstate the cause, his omissions, if there
were any, occurred in Harris County.
....
In the hearing on the plea of privilege, Rowe had the burden to show that
some act or omission of negligence occurred in Bell County which was a
proximate cause of the damages he claims.
Id. at 546. Thus, it is where the negligent acts or omissions by an attorney occurred, not where
the incidents leading to the cause of action that the attorney was hired to prosecute occurred, that
is relevant to determining in what county venue is proper under Section 15.002(a)(1).
Here, the evidence showed that all communications between Attorneys and Sewell
occurred in Bowie County, that the Agreement was negotiated and entered in Bowie County, and
that all settlement negotiations occurred in Bowie County. No evidence showed that Attorneys
performed any action in Titus County in relation to the underlying claim. This record shows that
if Attorneys committed any negligent act or omission, such as by failing to settle the claim or by
failing to file suit prior to the expiration of the statute of limitations, the negligent act or omission
occurred in Bowie County, not Titus County. Venue, therefore, was not proper in Titus County
under Section 15.002(a)(1).
9
Sewell also argues that, since in a legal malpractice action he is required to show how
much he would have recovered in damages in the underlying claim, the damages he incurred in
Titus County as a result of the underlying accident are relevant to whether venue was proper
there. We agree that, at any trial of a legal malpractice cause of action, to establish his damages
the plaintiff must establish that the true value of the underlying claim was greater than what he
received as a result of his attorney’s negligent representation. See Elizondo v. Krist, 415 S.W.3d
259, 263 (Tex. 2013). The damages Sewell incurred in the underlying claim were relevant to
establishing the amount of the damages, if any, that he suffered because of Attorneys’ alleged
negligence. That said, any damages incurred by Sewell in the underlying accident were not
caused by the negligence of Attorneys. Any damages caused by the negligence of Attorneys
would be the difference between those damages and what Sewell received because of Attorneys’
alleged negligence.
Consequently, assuming damages are a relevant consideration, only those caused by any
negligence of Attorneys would be relevant in determining the proper county of venue. Here, the
evidence showed that all of Attorneys’ actions in relation to the underlying claim occurred in
Bowie County and that Sewell was a resident of Bowie County. Thus, under this record, any
damages caused by the negligent acts and omissions of Attorneys, if any, would have been
incurred by Sewell in Bowie County.
Sewell also asserts that the Titus CCL erred in transferring venue because Sewell
requested that the suit remain in Titus County for the convenience of witnesses and in the interest
of justice under Section 15.002(b) of the Texas Civil Practice & Remedies Code. See TEX. CIV.
10
PRAC. & REM. CODE ANN. § 15.002(b). But the record shows that Sewell only made this request
in his Plaintiff’s Response By Submission to Plaintiff’s Motion to Set Aside Order Transferring
Venue, which was not filed in the Titus CCL until after that court had lost plenary jurisdiction of
the case. To preserve an error for appellate review, the record must show, among other things,
that “the complaint was made to the trial court by a timely request, objection, or motion.” TEX.
R. APP. P. 33.1(a)(1). Because Sewell’s request was not made until after the Titus CCL had lost
jurisdiction, his request was untimely. As a result, he has not preserved this complaint for our
review.
The record shows that venue was not proper in Titus County and that probative evidence
supports the trial court’s determination that venue was proper in Bowie County under Section
15.002(a), subsections (1), (2), and (3), of the Texas Civil Practice and Remedies Code. We,
therefore, find that the Titus CCL did not err in transferring the case to Bowie County. For these
reasons, we overrule Sewell’s first issue.
II. The 102nd District Court’s Dismissal Was Not an Abuse of Discretion
A. Applicable Law and Standard of Review
In his second issue, Sewell complains that the 102nd District Court abused its discretion
by dismissing his suit for want of prosecution. “We review a dismissal for want of prosecution
under a clear abuse of discretion standard; the central issue is whether the plaintiffs exercised
reasonable diligence.” MacGregor v. Rich, 941 S.W.3d 74, 75 (Tex. 1997) (per curiam) (citing
Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (per curiam)). “A trial court
abuses its discretion if it acts without reference to any guiding rules and principles or reaches a
11
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”
Franklin v. Benton-Elam, No. 06-13-00126-CV, 2014 WL 1722165, at *7 (Tex. App.—
Texarkana Apr. 30, 2014, no pet.) (mem. op.) (citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)).
“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.” In re Levetz, No. 06-19-00086-
CV, 2019 WL 5444158, at *2 (Tex. App.—Texarkana Oct. 24, 2019, orig. proceeding) (mem.
op.) (quoting In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (per curiam) (orig. proceeding)
(quoting Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. Comm’n App. 1942))). “A trial court
may dismiss a suit for want of prosecution either under its inherent power or pursuant to Rule
165a of the Texas Rules of Civil Procedure.” Id. (quoting In re Crawford, 560 S.W.3d 357, 364
(Tex. App.—Texarkana 2018, orig. proceeding) (citing Conner, 458 S.W.3d at 534)). “Under
Rule 165a(2) of the Texas Rules of Civil Procedure, dismissal is proper when a case is ‘not
disposed of within the time standards promulgated by the Supreme Court’ under the
Administrative Rules.” Id. (quoting Crawford, 560 S.W.3d at 364 (quoting Conner, 458 S.W.3d
at 534) (quoting TEX. R. CIV. P. 165a(2))).
“Trial courts are generally granted considerable discretion when it comes to managing
their dockets. Such discretion, however, is not absolute.” Id. (quoting Crawford, 560 S.W.3d at
364 (quoting Conner, 458 S.W.3d at 534)). “Rule 6.1 of the Texas Rules of Judicial
Administration directs that district and statutory county court judges ‘should, so far as reasonably
possible, ensure that all [civil cases other than family law] cases are brought to trial or final
12
disposition’ within eighteen months from an appearance date in jury cases and twelve months
from an appearance date in nonjury cases.” 8 Id. (quoting Crawford, 560 S.W.3d at 365 (quoting
TEX. R. JUD. ADMIN. 6.1.)). “[D]ismissal for want of prosecution may be obtained by motion of
the trial court or on motion of any party to the suit.” Id. (quoting In re Bordelon, 578 S.W.3d
197, 201 (Tex. App.—Tyler 2019, orig. proceeding) (quoting Dueitt v. Arrowhead Lakes Prop.
Owners, Inc., 180 S.W.3d 733, 738 (Tex. App.—Waco 2005, pet. denied))).
B. Procedural Background
The record shows that this case was initially transferred to the County Court at Law of
Bowie County on July 31, 2014. Other than pleadings related to the transfer of venue, the next
activity in the record was Attorney’s motion for summary judgment, supporting affidavits, brief
in support of the motion for summary judgment, motion for a protective order, and Defendants’
First Amended Answer and Special Exceptions, all filed by Attorneys on April 15, 2015. In
response, Sewell filed Plaintiff’s First Amended Original Petition on April 29, 2015. Soon after,
Attorneys filed their Defendants’ Answer and Special Exceptions to First Amended Original
Petition on May 26, 2015.
Almost two years later, Sewell filed a motion to retain the case on the docket on April 20,
2017, which the trial court granted one week later. The judge of the County Court at Law of
Bowie County then recused himself on May 2, 2017, and the case was transferred to the 102nd
District Court and a visiting judge was appointed on May 8, 2017, by the presiding judge of the
First Administrative Judicial Region.
8
The record shows that no jury demand was filed by any party.
13
After over two more years of inactivity, the 102nd District Court sent a Notice of
Dismissal for Want of Prosecution to the parties on July 26, 2019, set a dismissal hearing, and
warned the parties that the case would be dismissed “unless an attorney . . . appear[ed] in person
and show[ed] good cause for maintaining the case on the docket.” In response, Sewell filed
Plaintiff’s Motion for Summary Judgment on Deemed Admissions 9 and gave notice of a hearing
on October 28, 2019. He then filed a motion to retain the case on the docket and cited his motion
for summary judgment and its hearing as the reasons for retention. On October 10, 2019, Sewell
filed a Notice of Hearing on Defendants’ Motion for Protective Order, set for November 1, 2019.
On October 25, 2019, Sewell filed responses to Attorneys’ motion for summary judgment and
motion for a protective order.
On November 1, 2019, the 102nd District Court held a hearing on the motion to retain,
both motions for summary judgment, and the motion for a protective order. At the hearing,
Sewell blamed his lack of prosecution on transferring the case to Bowie County, the recusal of
the judge of the County Court at Law of Bowie County, the Attorneys’ refusal to answer his
requests for admissions, and the Attorneys’ filing a motion for summary judgment.
C. Analysis
“[T]o avoid dismissal for want of prosecution under the trial court’s inherent authority,
[Sewell was] required to demonstrate to the trial court that [he] had exercised reasonable
diligence in prosecuting [his] suit.” Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729
(Tex. App.—San Antonio 2012, pet. denied) (citing McCray v. Keith, No. 09-11-00398-CV,
9
The requests for admissions on which the motion was based were served on March 18, 2015.
14
2012 WL 983172, at *2 (Tex. App.—Beaumont Mar. 22, 2012, no pet.) (mem. op.) (citing
MacGregor v. Rich, 941 S.W.2d 74, 75–76 (Tex. 1997) (per curiam))). In considering whether
reasonable diligence has been shown, “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.” Id. (citing Scoville v. Shaffer, 9
S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.)). “No single factor is dispositive.” Id.
(citing Scoville, 9 S.W.3d at 204).
“Under both Rule 165a and the trial court’s inherent power, a conclusive presumption of
abandonment of a plaintiff’s suit is raised when there is a delay in prosecuting the suit of an
unreasonable duration, unless sufficiently explained.” In re Crawford, 560 S.W.3d 357, 364
(Tex. App.—Texarkana 2008, orig. proceeding) (citing Conner, 458 S.W.3d at 534).
“Consequently, the party opposing the dismissal has the burden to produce evidence at the
hearing showing good cause for its delay in prosecuting the case.” Id. (citing Historic Lufkin
Manor, LLC v. Great Cent. Mortg. Acceptance Co., No. 12-12-00105-CV, 2013 WL 3270884, at
*1 (Tex. App.—Tyler June 25, 2013, no pet.) (mem. op.) (citing Tex. Mut. Ins. Co. v. Olivas, 323
S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.))). “Absent any reasonable explanation for
the delay, the trial court clearly abuse[s] its discretion by disregarding the conclusive
presumption of abandonment.” Id. (quoting Conner, 458 S.W.3d at 535).
Here, no jury demand appears in the record. In August 2019, this case had been pending
for more than five years, well beyond the one-year timeline set out for non-jury cases in Rule 6.1
of the Texas Rules of Judicial Administration. The unreasonable delay in the prosecution of this
15
suit raised a conclusive presumption of abandonment by Sewell. Id. Although he had the burden
to produce evidence showing reasonable diligence in prosecuting the case and good cause for the
delay, Sewell only pointed to events in the case that had occurred over two years before, with no
explanation for the over two years of inactivity after the suit was transferred to the 102nd District
Court. He also failed to explain how these events prevented him from conducting any discovery,
other than sending requests for admissions, why he delayed for over four years to request a
hearing on the Attorneys’ motion for protective order, or why he delayed for over two years to
file a motion for summary judgment based on the unanswered requests for admissions. Further,
Sewell gave no indication that the suit was ready for trial or that any significant progress had
been made in preparing the suit for trial.
On this record, we find that neither reasonable diligence in prosecuting the suit, nor good
cause for the unreasonable delay in prosecuting it, was shown. As a result, the conclusive
presumption of abandonment applied, and the 102nd District Court was justified in dismissing
the suit under either Rule 165a or its inherent authority. See In re Connor, 458 S.W.3d 532, 534
(Tex. 2015) (per curiam) (orig. proceeding); Dobroslavic, 397 S.W.3d at 729. We, therefore,
find that the 102nd District Court did not abuse its discretion in dismissing the suit for want of
prosecution. We overrule Sewell’s second issue.
16
III. Conclusion
For the reasons stated, we affirm the 102nd District Court’s judgment.
Scott E. Stevens
Justice
Date Submitted: July 3, 2020
Date Decided: September 2, 2020
17
Edwin Ray Sewell v. J. Michael Brock, J. Michael Brock PLLC, Howard Mowery, and Mowery Law Firm
Combined Opinion