ACCEPTED
14-14-00927-cv
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/25/2015 11:51:39 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00927-CV
______________________________________________
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
6/25/2015 11:51:39 AM
AT HOUSTON
CHRISTOPHER A. PRINE
______________________________________________ Clerk
ULRIKA BJORKSTAM AND JOSEPH DANIEL DRAY,
Appellants,
v.
WOODWARD, INC.,
Appellee.
______________________________________________
From the 190th Judicial District Court, Harris County, Texas.
____________________________________________________________
APPELLEE’S BRIEF
____________________________________________________________
John Michael Kelly N. Terry Adams, Jr.
(admitted pro hac vice) State Bar No. 00874010
jkelly@amm-law.com tadams@bmpllp.com
Gina Marie Diomedi BEIRNE, MAYNARD & PARSONS, L.L.P.
(admitted pro hac vice) 1300 Post Oak Blvd., 25th Floor
gdiomedi@amm-law.com Houston, Texas 77056
Christine Marie Niemczyk Telephone: (713) 623-0887
(admitted pro hac vice) Fax: (713) 960-1527
cniemczyk@amm-law.com
ADLER MURPHY & MCQUILLEN LLP
20 South Clark Street, Suite 2500
Chicago, Illinois 60603
Telephone: (312) 345-0700
Fax: (312) 345-9860
Counsel for Appellee Woodward, Inc.
ORAL ARGUMENT REQUESTED
DESIGNATION OF RECORD REFERENCES
The record in this appeal consists of the clerk’s record, one supplement, and
the reporter’s record with one supplement. This brief uses the following
conventions in citing the record:
Clerk’s Record:
(CR. [page])
Supplemental Clerk’s Record:
(Supp. CR. [requested document number])1
Reporter’s Record:
(RR. [page])
Supplemental Reporter’s Record:
(Supp. RR. [page])
Appellant’s Brief:
(Br. [page])
1
On May 29, 2015, Woodward asked the Harris County District Clerk to prepare a
supplemental clerk’s record consisting of ten items. On June 22, counsel for Woodward was
informed by the Post Judgment Department that the supplemental clerk’s record would not be
ready until after the due date for this brief. As a result, to assist the Court, Woodward’s citation
to the supplemental clerk’s record includes the corresponding document number [1-10] as
requested by Woodward. See Appendix A.
ii
TABLE OF CONTENTS
DESIGNATION OF RECORD REFERENCES ...................................................... ii
INDEX OF AUTHORITIES ......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
RESPONSE TO ISSUES PRESENTED.................................................................. ix
STATEMENT OF FACTS.........................................................................................1
Plaintiffs’ Original Petition................................................................................1
Plaintiffs’ First Amended Petition .....................................................................2
Motion for Continuance #1................................................................................3
Mediation ...........................................................................................................4
Motion for Continuance #2................................................................................5
Attempted Service on Woodward......................................................................5
Motion to Apply Mexican Law .........................................................................6
Motion to Dismiss for Want of Prosecution ......................................................6
SUMMARY OF THE ARGUMENT .........................................................................8
ARGUMENT ...........................................................................................................10
I. The trial court properly exercised its inherent power in dismissing Plaintiffs’
claims against Woodward for want of prosecution because Plaintiffs failed to
diligently prosecute their claims by not serving process on Woodward for
nearly two years.................................................................................................10
A. Standard of review .................................................................................10
B. Plaintiffs offered no reasonable explanation for their failure to
diligently prosecute their claims against Woodward.............................11
1. Extensive length of time and virtually no case activity....................13
iii
2. Additional unavailing excuses for delay ..........................................15
II. Principles of equity and judicial economy support the trial court’s dismissal
of Plaintiffs’ claims against Woodward for want of prosecution due to lack
of diligence ....................................................................................................19
III. Affirmance of the trial court’s order dismissing Plaintiffs’ claims with
prejudice is proper in this case ......................................................................25
CONCLUSION AND PRAYER..............................................................................27
CERTIFICATE OF COMPLIANCE .......................................................................28
CERTIFICATE OF SERVICE.................................................................................28
iv
INDEX OF AUTHORITIES
CASES
3V, Inc. v. JTS Enters., Inc.,
40 S.W.3d 533 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................19
Allen v. Rushing,
129 S.W.3d 226 (Tex. App.—Texarkana 2004, no pet.) ..............................18
Andrews v. ABJ Adjusters, Inc.,
800 S.W.2d 567 (Tex. App.—Houston [14th Dist.] 1990, no pet.) ..............26
Bjorkstam v. MPC Prods. Corp.,
21 N.E.3d 1216 (Ill. App. 2014)........................................................... 2, 3, 16
Buchanan v. Cline,
2012 WL 760890 (Tex. App.—Eastland 2012, no pet.) ...............................18
Callahan v. Staples,
161 S.W.2d 489 (Tex. 1942) .................................................................. 12, 18
Daneshjou Co. v. Goergen,
2008 WL 3171256 (Tex. App.—Austin 2008, pet. denied)..........................20
Dobroslavic v. Bexar Appraisal Dist.,
397 S.W.3d 725 (Tex. App.―San Antonio 2012, pet. denied) ............. 10, 11
Dyersdale Energy, LP v. Petrzelka,
2010 WL 2764785 (Tex. App.—Dallas 2010, no pet.).................................10
Edison v. Houston Police Dept.,
2007 WL 1633911 (Tex. App.—Houston [1st Dist.] 2007, no pet.) 12, 17, 18
El-Khalidi v. Arabian Am. Dev. Co.,
2014 WL 2152101 (Tex. App. —Beaumont 2014, pet. denied)...... 12, 19, 22
Fox v. Wardy,
225 S.W.3d 198 (Tex. App. ―El Paso 2005, pet denied)................ 10, 13, 18
Gantt v. Getz,
2011 WL 1849085 (Tex. App. ―Houston [14th Dist.] 2011, no pet.) .........12
v
Harrison v. Employees Ret. Sys. of Texas,
2010 WL 2629893 (Tex. App.—Austin 2010, no pet.) ......................... 12, 22
Horowitz v. Berger,
377 S.W.3d 115 (Tex. App.―Houston [14th Dist.] 2012, no pet.) .............22
In re Conner,
458 S.W.3d 532 (Tex. 2015) ............................................................ 11, 12, 18
In the Interest of J.T.O.,
2008 WL 139295 (Tex. App.―San Antonio 2008, no pet.) ....................5, 21
Martin v. State,
2009 WL 2146025 (Tex. App.―Houston [14th Dist.] 2009, no pet.) .........26
Preslar v. Garcia,
2014 WL 824201 (Tex. App.—Austin 2014, no. pet.) .......................... 18, 22
Priddy v. Rawson,
282 S.W.3d 588 (Tex. App.―Houston [14th Dist.] 2009, ...........................26
Risely v. Alvarez,
2011 WL 397948 (Tex. App. ―Houston [14th Dist.] 2011,
pet. denied) ....................................................................................... 10, 11, 18
S. Pac. Transp. Co. v. Stoot,
530 S.W.2d 930 (Tex. 1975) ................................................................. passim
Saks & Co. v. Richardson,
2002 WL 31465813 (Tex. App.—San Antonio 2002, no pet.).....................19
Sawyer v. Texas Dept. of Crim. Justice,
2002 WL 1765121 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)......13
Stone v. Cunningham,
2007 WL 1206677 (Tex. App.—Dallas 2007, pet. denied) ..........................18
Thomas v. Tex. Dept. of Criminal Justice,
1997 WL 225977 (Tex. App.—Amarillo 1997, pet. denied) ........................12
Torres v. Clark,
2012 WL 1694607 (Tex. App.―Houston [14th Dist.] 2012, no pet.) .........26
vi
Villareal v. San Antonio Truck & Equipment,
994 S.W.2d 628 (Tex. 1999) .....................................................................8, 11
Zamarron v. Shinko Wire Co., Ltd.,
125 S.W.3d 132 (Tex. App. ―Houston [14th Dist.] 2003, pet. denied) .....26
Zanchi v. Lane,
408 S.W.3d 373 (Tex. 2013) .........................................................................20
RULES
TEX. R. APP. P. 38.2(a)(1)(B) .....................................................................................1
TEX. R. CIV. P. 99............................................................................................ 2, 5, 21
TEX. R. CIV. P. 103.................................................................................................2, 3
TEX. R. CIV. P. 106 .....................................................................................................3
TEX. R. CIV. P. 119.....................................................................................................3
vii
STATEMENT OF THE CASE
Nature of the Ulrika Bjorkstam and Joseph Daniel Dray (“Plaintiffs”)
case: filed this lawsuit against Woodward, Inc. (“Woodward”) on
March 11, 2011. (CR. 5.) Plaintiffs did not exercise due
diligence in prosecuting their claims against Woodward.
Plaintiffs did not attempt service of process on Woodward
for nearly two years, until January 31, 2013, about eight
months before the case was set for trial. (CR. 238, 423.)
Trial Court Hon. Patricia J. Kerrigan, Presiding Judge, 190th Judicial
information: District Court, Harris County, Texas.
Course of Woodward filed a motion to dismiss for want of
Proceedings: prosecution because Plaintiffs failed to exercise diligence
in prosecuting their claims against Woodward. (CR. 155-
161.) Plaintiffs filed a response (CR. 292-318) and
Woodward filed a reply (CR. 457-465.)
Trial Court Following an oral hearing, the trial court exercised its
disposition: inherent power and granted Woodward’s motion to dismiss
for want of prosecution because Plaintiffs did not exercise
diligence in pursuing their claims against Woodward. (CR.
469.) Plaintiffs waited nearly two years, about eight
months before trial, before attempting to serve Woodward.
(CR. 238, 423.)
viii
RESPONSE TO ISSUES PRESENTED
1. After filing suit against Woodward, Plaintiffs did not attempt
service of process on Woodward for nearly two years and
about eight months before the case was set for trial. The trial
court correctly exercised its inherent power in dismissing
Plaintiffs’ claims against Woodward for want of prosecution
because Plaintiffs failed to exercise due diligence in
prosecuting those claims.
2. The trial court did not abuse its discretion by considering
principles of equity, judicial economy, and impact on the fact
finding process when evaluating the substantial impediments
to the litigation created by Plaintiffs’ excessive,
unreasonable, and unexplained delay.
ix
STATEMENT OF FACTS
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(B), Woodward
objects to the Plaintiffs’ statement of facts because it confuses and misstates
several important facts. Woodward provides the following statement of facts to
accurately assist the Court.
Plaintiffs’ Original Petition
This case arises from an airplane crash that occurred in Mexico City, Mexico
in November 2008. Plaintiffs filed suit on May 18, 2010 against the aircraft
manufacturer, Learjet, Inc. (“Learjet”); the operator, Centros de Servicios de
Aviation Ejecutive S.A. de C.V. (“Centros”); and the maintenance providers,
Standard Aero, Inc. (“Standard Aero”) and Alvin Howell (“Howell”).2 (Supp. CR.
No. 8.) Plaintiffs immediately served the United States-based defendants—
Learjet, Standard Aero, and Howell—with process. (Supp. CR. Nos. 9, 10.)3
Plaintiffs asked the trial court to appoint a special process server to effect
service on Centros, a Mexican entity, through the Hague Convention. (Supp. CR.
No. 7.) The trial court granted the request and appointed a special process server
2
Two additional lawsuits arising from this incident were filed in Harris County – Castillo, et al.
v. Standard Aero, et al., Case No. 2010-73285 and Cue, et al. v. Learjet, Inc., et al., Case No.
2011-70467. (CR. 44-46, 504-505.) Castillo involved the claims of 22 plaintiffs and did not
name Woodward as a defendant. (CR. 44-46; RR 19.) Cue involved the claims of three
plaintiffs and named Woodward as a defendant, but never served Woodward. (CR. 99; RR 19.)
Those cases were consolidated with this matter on April 16, 2012 and February 13, 2012,
respectively. (CR. 46, 504-505, 508.)
3
For citation of the supplemental clerk’s record, see supra. p.ii, n.1.
1
on July 12, 2010. (CR. 508.) Five months later, Plaintiffs asked the trial court for a
modified service of citation on Centros; which the trial court granted. (Supp. CR.
No. 6; CR. 508.) On March 15, 2011, ten months after filing its original petition,
Plaintiffs served Centros through the Hague Convention. (Supp. CR. No. 1.) Thus,
by March 15, 2011, all of the defendants named in the original petition were finally
served.
Plaintiffs’ First Amended Petition
Plaintiffs filed an amended petition on March 11, 2011 that named five new
defendants: Woodward, MPC Products Corp. (“MPC”), General Electric Co.
(“GE”), GE Aviation Systems, LLC (“GE Aviation”), and Honeywell International
Inc. (“Honeywell”).4 (Compare CR. 5 with Supp. CR. No. 8.) Plaintiffs did not
cause citation to issue to any of the new defendants at that time. (CR. 147-148.)
Instead, as to Woodward, Plaintiffs’ counsel merely placed a copy of the
amended petition (without a citation) in the U.S. Mail (not certified) to counsel for
Woodward. (CR. 297, 412-415.) The mailing address, however, was incorrect
4
Plaintiffs originally sued these defendants in the Circuit Court of Cook County, Illinois. (CR.
388-410.) They moved to dismiss the Illinois action based on forum non conveniens, which the
Illinois court granted on December 10, 2010. (CR. 28-36.) Pursuant to the Illinois court’s order,
Plaintiffs had six months to file their complaint in a more convenient forum, including Harris
County, Texas where the instant matter was pending. (CR. 36.) In exchange, the defendants in
the Illinois case were required to waive the expired statute of limitations and accept service of
process from the new court. (CR. 36); see Bjorkstam v. MPC Prods. Corp., 21 N.E.3d 1216,
1225 (Ill. App. 2014) (holding that under the order Plaintiffs must serve process in accordance
with the laws of the forum in which Plaintiffs refile, i.e. Texas); see also TEX. R. CIV. P. 99, 103.
2
since it had the zip code for Atlanta, Georgia, instead of Chicago, Illinois. (CR.
412-415; RR 10.) Consequently, the mailing was never received by Woodward or
its counsel.5 (CR. 460-461; RR 10.)
Motion for Continuance #1
Trial was set for June 6, 2011. (CR. 508.) On May 11, 2011, less than 30
days before trial, Plaintiffs moved for a continuance. (CR. 145-150.) Plaintiffs
contended they needed more time to conduct fact discovery and admitted they still
needed to serve the new party-defendants named in their amended petition,
including Woodward. (CR 146-148.) The continuance was granted and the trial
court amended its docket control order, extending the deadline for “[a]ll parties [to]
be added and served” to November 21, 2011. (CR. 151) (emphasis added). The
trial court also moved the trial date back nearly one year to May 21, 2012. (CR
151.)
Despite the six-month extension to effectuate service on the additional party-
defendants, including Woodward, Plaintiffs made no attempt to do so before the
new deadline passed. Indeed, the docket reflects no substantive activity in the case
5
That attempted mailing of service of process did not comply with Texas law. TEX. R. CIV. P.
103, 106. Moreover, Woodward never waived the issuance or service of process in accordance
with Texas law. TEX. R. CIV. P. 119; Bjorkstam, 21 N.E.3d at 1224.
3
by Plaintiffs for a full year after the court extended its deadlines in May 2011.6
(CR. 508-509.)
Mediation
On November 29, 2011, all parties participated in an out-of-court, voluntary
mediation in San Francisco, California. (RR. 25-26.) At that mediation the
defendants named in the amended petition reminded Plaintiffs that they still had
not been served. (RR. 32; Br. 5.)
Although Plaintiffs contend that Honeywell, GE, and GE Aviation accepted
service through counsel following mediation (Br. 5), the record reveals otherwise.
Honeywell noted in a related matter that it had never been served in Plaintiffs’ case
and had not appeared in this action. (Supp. CR. No. 4.) There is no evidence that
GE and GE Aviation were ever served and, in fact, they were dismissed from
Plaintiffs’ case in January 2013 without ever filing an answer.7 (CR. 70, 492-510.)
Thus, Plaintiffs did not effectuate service on any of the additional party-defendants
named in the amended petition either before or immediately after the unsuccessful
mediation.
6
Although a petition to intervene and motions to consolidate were filed during this time frame,
it does not appear that Plaintiffs participated in those proceedings. (CR. 508.)
7
While GE Aviation Systems, Ltd. filed an appearance after service of Plaintiffs’ Second
Amended Petition in January 2013, GE Aviation Systems, Ltd., is a separate and distinct entity
from the GE entities who were named in Plaintiffs’ First Amended Petition but never served —
General Electric Co., and GE Aviation Systems, LLC. (CR. 5, 70.)
4
Motion for Continuance #2
On the day this case was set for trial, May 21, 2012, Woodward had still not
been served. Plaintiffs submitted a proposed amended docket control order that
once again sought to extend the deadlines previously set by the trial court and
requested trial be further delayed another 1½ years. (Supp. CR. No. 5.) On May
31, 2012, the trial court entered an amended docket control order. (CR. 237-238.)
It closed discovery on August 15, 2013 and set trial, again, on October 29, 2013.
(CR 237.) With respect to the joinder deadline, the trial court’s order gave the
parties until February 1, 2013 for “[a]ny new parties [to] be added and served by
this date.” (CR. 237) (emphasis added).
Attempted Service on Woodward
Plaintiffs did nothing for another eight months, until January 31, 2013, the
day before the joinder deadline for “new parties” expired. (CR. 423, 492-510.) On
that day, nearly two years after Plaintiffs had sued Woodward as a party-defendant,
and just eight months before the case was set for trial, Plaintiffs finally caused
citation to issue and be served on Woodward.8 (CR. 423.)
8
Plaintiffs’ attempted service was defective in that it failed to attach the operative pleading and
identified the incorrect date of the filing of the petition. (CR. 118-119, 160, 423; RR 14-15.)
Rule 99 requires the citation, which should be requested by the plaintiff to issue “[u]pon the
filing of the petition,” to be served with a copy of the operative petition and to correctly identify
the date of the filing of the petition. TEX. R. CIV. P. 99 (a), (b); see also In the Interest of J.T.O.,
2008 WL 139295 at *1 (Tex. App.—San Antonio 2008, no pet.) (“[A]n error in stating the
petition’s filing date is fatally defective.”).
5
Motion to Apply Mexican Law
After Woodward was purportedly “served,” but before it appeared,
Defendants Learjet, Standard Aero, Howell, GE, and GE Aviation Systems, Ltd.,
moved on February 8, 2013 to apply Mexican law to damages for all plaintiffs.
(Supp. CR. No. 3.) The motion was heard by the trial court on May 17, 2013 and
granted on May 29, 2013. (Supp. RR. 1-83; CR. 510; Supp. CR. No. 2.)
Motion to Dismiss for Want of Prosecution
On February 25, 2013, Woodward answered Plaintiffs’ amended petition.
(CR. 99-107.) Four days later, Woodward filed a motion to dismiss for want of
prosecution based on the trial court’s inherent power, asserting that Plaintiffs’ two-
year delay in effectuating service constituted a lack of due diligence as a matter of
law. (CR. 155-236.)
On June 14, 2013, the trial court entertained arguments on Woodward’s
motion to dismiss. (RR. 1-63.) During the hearing, Judge Kerrigan recognized that
Woodward was proceeding on “an argument of purely a lack of due diligence to
serve them” and indicated that Woodward had “strong arguments on diligence.”
(RR. 36, 50.) The court’s only question at the end of the hearing concerned the
proper remedy (i.e., dismissal) for Plaintiffs’ lack of diligence in prosecuting their
claims against Woodward. (RR. 50, 51, 54.)
6
Judge Kerrigan took the motion to dismiss under advisement and asked the
parties to submit any additional case law regarding dismissal for want of
prosecution due to lack of diligence in prosecuting a case, as opposed to a statute
of limitations argument. (RR. 56.) Pursuant to that request, Woodward submitted
six cases addressing the court’s inherent power to dismiss for want of prosecution
when a plaintiff fails to exercise due diligence in prosecuting its claims. (Appendix
B.) On June 21, 2013, the trial court exercised its inherent power and granted
Woodward’s motion to dismiss for want of prosecution. (CR. 469.)
7
SUMMARY OF THE ARGUMENT
The trial court properly dismissed Plaintiffs’ case for want of prosecution.
Nearly forty years ago, the Texas Supreme Court recognized that a plaintiff’s
failure to diligently prosecute a case wastes valuable judicial resources and hinders
fact finding. S. Pac. Transp. Co. v. Stoot, 530 S.W.2d 930, 932 (Tex. 1975). Thus,
Texas law is well settled that a trial court has the inherent power to dismiss a case
for want of prosecution if the case has not been prosecuted with due diligence.
Villareal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999).
In this case, Plaintiffs named Woodward as a party-defendant on March 11,
2011 and then waited nearly two years, and about eight months before the case was
set for trial, before attempting to serve Woodward with process. Plaintiffs
provided no reasonable explanation for their significant delay as their proffered
excuses were unsupported, and in some cases contradicted, by the record. On
these grounds alone, the trial court properly exercised its inherent power in
dismissing Plaintiffs’ claims against Woodward for want of prosecution.
Further, by not serving Woodward with process for almost two years,
Plaintiffs created a dilemma for the trial court—(1) force Woodward to proceed to
trial as scheduled in just eight months; (2) extend the trial date for the third time
and allow this 2010 case to linger on its docket into 2014; or (3) leave Plaintiffs to
the consequences of their dilatory actions, dismiss Woodward, and let the trial date
8
stand. The trial court’s decision to exercise its inherent power and impose the
latter is supported by the equities of the circumstances; to rule otherwise would
have resulted in considerable prejudice to Woodward, undermined judicial
economy, and impeded fact finding. Because the trial court was justified in
dismissing Plaintiffs’ lawsuit for want of prosecution, the trial court did not abuse
its discretion. Moreover, because Plaintiffs did not complain in the trial court or in
their appellant’s brief about the dismissal of their claims against Woodward with
prejudice, no error regarding that aspect of the trial court’s order has been
preserved—further justifying an affirmance in all things.
9
ARGUMENT
I. The trial court properly exercised its inherent power in dismissing
Plaintiffs’ claims against Woodward for want of prosecution because
Plaintiffs failed to diligently prosecute their claims by not serving
process on Woodward for nearly two years.
A. Standard of review.
A dismissal for want of prosecution is a decision committed to the sound
discretion of the trial court. Fox v. Wardy, 225 S.W.3d 198, 199-200 (Tex. App. ―
El Paso 2005, pet denied). That decision shall not be disturbed unless the trial
court acted arbitrarily or without reference to any guiding rules and principles. Id.
at 200; Risely v. Alvarez, 2011 WL 397948 at *3 (Tex. App.―Houston [14th Dist.]
2011, pet. denied). There is a presumption that the trial court’s decision was
justified and it is the appellant’s burden to defeat that presumption and prove an
abuse of discretion. Dyersdale Energy, LP v. Petrzelka, 2010 WL 2764785, at *3
(Tex. App.—Dallas 2010, no pet.). Because due diligence is a fact-driven
determination, the reviewing court may not substitute its judgment for that of the
trial court unless the trial court could have reached only one decision. Dobroslavic
v. Bexar Appraisal Dist., 397 S.W.3d 725, 728 (Tex. App. – San Antonio 2012,
pet. denied); see also Risely, 2011 WL 397948 at *3 (“An abuse of discretion is not
demonstrated merely because a trial court may decide a matter within its discretion
in a different manner than an appellate court would in a similar circumstance.”). If
10
the dismissal order does not specify a particular reason for the dismissal, this Court
will affirm if any proper ground supports dismissal. Risely, 2011 WL 397948 at *3.
B. Plaintiffs offered no reasonable explanation for their failure to
diligently prosecute their claims against Woodward.
It is well settled that a trial court has inherent power to dismiss a case when
a plaintiff fails to prosecute its claims with due diligence. In re Conner, 458
S.W.3d 532, 534 (Tex. 2015); Villarreal, 994 S.W.2d at 630. This authority stems
from the trial court’s power and duty to maintain and control its docket.
Dobroslavic, 397 S.W.3d at 728. The Texas Supreme Court has recognized both
the duty of a plaintiff to diligently prosecute a case and the harm to the judicial
process caused by delay, opining:
Delay haunts the administration of justice. . . . It crowds the
dockets of the courts, increasing the costs for all litigants,
pressuring judges to take short cuts, interfering with the prompt
and deliberate disposition of those causes in which all parties
are diligent and prepared for trial, and overhanging the entire
process with the pall of disorganization and insolubility. But
even these are not the worst of what delay does. The most
erratic gear in the justice machinery is at the place of fact
finding, and possibilities for error multiply rapidly as time
elapses between the original fact and its judicial determination.
If the facts are not fully and accurately determined, then the
wisest judge cannot distinguish between merit and demerit. If
we do not get the facts right, there is little chance for the
judgment to be right.
Stoot, 530 S.W.2d at 931.
11
When there is an unreasonable delay in prosecuting claims against a
defendant, the claims are presumed abandoned. The plaintiff must provide a
reasonable explanation for the delay or the presumption of abandonment is
conclusive and the trial court must dismiss. In re Conner, 458 S.W.3d at 534;
Gantt v. Getz, 2011 WL 1849085, at *6 (Tex. App.—Houston [14th Dist.] 2011,
no pet). Whether the plaintiff intended to abandon the suit is not the inquiry, and
the merits of the plaintiff’s claims are irrelevant. Harrison v. Employees Ret. Sys.
of Texas, 2010 WL 2629893 at *2 (Tex. App.—Austin 2010, no pet.); see also
Thomas v. Tex. Dept. of Criminal Justice, 1997 WL 225977 at *3 (Tex. App.—
Amarillo 1997, pet. denied) (“[D]ue diligence is not measured by statements of
intent but by actions actually taken in pursuance of a claim”).
The inquiry, rather, is whether the plaintiff acted as an ordinarily prudent
person would have acted under the same or similar circumstances and was diligent
up until the time the defendant was served. El-Khalidi v. Arabian Am. Dev. Co.,
2014 WL 2152101, *3 (Tex. App.—Beaumont 2014, pet. denied); Edison v.
Houston Police Dept., 2007 WL 1633911 at *2 (Tex. App.—Houston [1st Dist.]
2007, no pet.). It is the plaintiff’s burden to present evidence of the efforts made to
serve the defendant and explain any lapses in effort or periods of delay. Edison,
2007 WL 1633911 at *2; Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. 1942).
An unexplained or unreasonable lapse of time constitutes a lack of due diligence as
12
a matter of law. Sawyer v. Texas Dept. of Crim. Justice, 2002 WL 1765121 at *4
(Tex. App.—Houston [1st Dist.] 2002, pet. denied).
When evaluating a plaintiff’s lack of diligence, a trial court may consider the
entire history of the case, including the length of time the case was on file, the
amount of activity in the case, trial settings, and the existence of a reasonable
excuse for delay in prosecuting the case. Fox, 225 S.W.3d at 200. Here, the record
demonstrates that the relevant factors support the trial court’s conclusion that
Plaintiffs failed to diligently prosecute their case against Woodward.
1. Extensive length of time and virtually no case activity.
Plaintiffs note that at the time Woodward was dismissed in June 2013, the
case had been pending for over three years. (Br. 17-18.) Indeed, the case against
Woodward had been pending for almost two years before Plaintiffs even attempted
to serve Woodward by taking the elementary step of having the trial court issue a
citation. (CR. 5, 156, 203.) Critical to the trial court’s inquiry was what transpired
in the case during those two years, such that prompt and effective service of
process on Woodward could not be accomplished.
When detailing the extent of activity in the case, Plaintiffs rely on the trial
court’s comment during oral argument that she thought the parties had been busy
and cited to the choice of law motion and related discovery, as well as the time it
took Plaintiffs to serve Centros via the Hague Convention. (Br. 18-19.) However,
13
when the trial court took the matter under advisement and looked closer at the
record (RR. 56), she saw that the parties had not, in fact, been busy during the two
years that Plaintiffs failed to serve Woodward.
Although Plaintiffs point to their struggle in serving Centros as taking
significant time and diverting their attention from serving other entities, the return
of service filed by Plaintiffs confirms that Centros was served via the Hague
Convention on March 15, 2011, just four days after Plaintiffs amended their
petition to add Woodward as a defendant. (Supp. CR. No. 1; CR 5-36.) Thus,
Plaintiffs’ excuse regarding service on Centros, at most, explains 4 days in the 687
days of delay in serving Woodward and was therefore not a reasonable explanation
for their lack of due diligence.
Plaintiffs’ excuse regarding the choice of law motion and related discovery
also rings hollow. The other defendants filed the choice of law motion on
February 8, 2013, nine days after Plaintiffs finally attempted service on
Woodward. (Supp. CR. No. 3; CR 423; Br. 18.) Discovery related to that motion,
including the only depositions which Woodward attended, took place after
Woodward appeared and filed its motion to dismiss for want of prosecution. (CR.
155, 439-455; Br. 8 n.4.) In total, the briefing of the choice of law motion, related
discovery, oral argument, and the court’s ruling ultimately lasted four short
months, all of which occurred after Woodward was served. (Supp. CR. No. 2, 3;
14
CR 423, 510.) Thus, Plaintiffs’ proffered explanation for its delay in serving
Woodward does not even relate to the relevant time period and is therefore patently
unreasonable.
So what, specifically, transpired during the nearly two-year period between
Plaintiffs’ naming Woodward as a party-defendant and their attempt to have
Woodward served? Virtually nothing. Plaintiffs concede as much, noting that in
May 2011 they sought to extend the court’s docket control deadlines to allow more
time to serve Woodward and the other newly-named defendants, and the next case
activity comes one year later when they again sought another extension. (Br. 17-
18.)
Plaintiffs go on to admit that over eight months later, on the eve of the trial
court’s deadline to add and serve “new” parties (i.e., not Woodward, a party
already named), they finally caused a citation to issue and be served on Woodward.
(Br. 18.) They detail no other efforts to diligently prosecute their case during this
nearly two-year period. (Br. 18-20.) After reviewing the record in this case, the
trial court was made aware of Plaintiffs’ unexplained lack of activity in
prosecuting their claims and properly determined Plaintiffs had not been diligent.
2. Additional unavailing excuses for delay.
In addition to the unsupported and unreasonable explanations above,
Plaintiffs also claimed that their delay could be explained, in part, by their attempts
15
to have Woodward waive service of process and accept service through counsel as
other defendants had done. (CR. 298-299; RR. 33; Br. 18.) Plaintiffs’ argument is
disingenuous. First, the acts of other defendants are irrelevant to the proper and
diligent effectuation of service of Woodward. See Bjorkstam, 21 N.E.3d at 1225
(holding Woodward was entitled to service of process in accordance with Texas
law); (RR 53) (trial court concluding same).
Second, even if relevant, Plaintiffs’ contentions are belied by the record.
Honeywell, GE, and GE Aviation never accepted service through their counsel.
Honeywell unequivocally stated in May 2012 that it had not been served and had
not appeared in the Plaintiffs’ case. (Supp. CR. No. 4.) The record is devoid of
any Honeywell appearance any date thereafter. (CR. 492-510.) Similarly, GE and
GE Aviation were never served and never appeared, and instead were voluntarily
dismissed with the filing of Plaintiffs’ Second Amended Petition. (CR. 492-510.)
Additionally, Woodward’s counsel dispelled the notion that Plaintiffs made
repeated efforts to negotiate a waiver of service—Woodward’s counsel explained
at the hearing that he received one phone call from Plaintiffs’ counsel only a few
days before the February 1, 2013 deadline for joinder of “new” parties and he
advised that he could not, two years later, agree to waive issuance or service of
citation to Woodward. (RR. 26-27.)
16
Plaintiffs attempted at the hearing to avoid the insurmountable evidence of
their lack of diligence by making the specious argument that they served
Woodward within the court’s February 1, 2013 deadline for service on “new”
parties. (RR. 59-60; Br. 21-22.) Foremost, the February 1, 2013, deadline did not
apply to Woodward as an existing party-defendant. The plain language of the May
2012 order specifically applied only to “new” parties. (CR. 237.) Because
Woodward was named as a party-defendant in March 2011, it was not a “new”
party in May 2012. Further, the trial court rejected Plaintiffs’ ipso facto diligence
argument, noting: “I’m not sure that my order excuses any prior lack of due
diligence if there was a lack of due diligence. I’m not sure that my order . . . that
says get them in before point X means that there’s no scrutiny of the conduct
before then.” (RR. 59.) This is consistent with Texas law. See, e.g. Edison, 2007
WL 1633911 at *2, n.2 (concluding that plaintiff’s last-ditch effort to serve
defendant over one year later and on the heels of a court deadline “does not
absolve him of the duty to prosecute [his case] with diligence from the date it was
filed.”)
Once all of the foregoing fallacies were unveiled by the trial court upon
further examination of the record, the trial court correctly concluded Plaintiffs
failed to meet their burden—they failed to diligently prosecute their case against
Woodward by allowing their petition to languish on the docket for almost two
17
years before attempting service of process on Woodward and by failing to offer an
adequate explanation for their patently unreasonable delay. The trial court thus
determined, as a matter of law, that Plaintiffs’ unexplained and unreasonable lapse
of time constituted a lack of due diligence. (CR. 469); see In re Conner, 458
S.W.3d at 534 (“A delay of an unreasonable duration, if not sufficiently explained,
will raise a conclusive presumption of abandonment of the plaintiff’s suit. This
presumption justifies the dismissal of a suit under … a court’s inherent
authority….”) (quoting, in part, Callahan, 161 S.W.2d at 491)).
In light of the relevant factors and Plaintiffs’ unexplained lack of diligence,
the trial court acted within its inherent power in granting Woodward’s motion and
dismissing Plaintiffs’ claims against Woodward for lack of diligence. (CR. 469;
RR 51, 53); see Stone v. Cunningham, 2007 WL 1206677 at *2 (Tex. App.—
Dallas 2007, pet. denied) (dismissing case, finding the plaintiff’s failure to cause
citation to issue or to have defendants served for 4 months constituted a lack of due
diligence); Fox, 225 S.W.3d at 200 (same after 7 months); Risley, 2011 WL
397948 at *4 (same after 9 months); Allen v. Rushing, 129 S.W.3d 226, 231 (Tex.
App.—Texarkana 2004, no pet.) (same after 13 months); Edison, 2007 WL
1633911 at *2 & n.1 (same as to 18 months); Preslar v. Garcia, 2014 WL 824201
at *2 (Tex. App.—Austin 2014, no. pet.) (same as to 21 months); Buchanan v.
Cline, No. 2012 WL 760890 at *2 (Tex. App.—Eastland 2012, no pet.) (same after
18
28 months); Saks & Co. v. Richardson, 2002 WL 31465813 at *2 (Tex. App.—San
Antonio 2002, no pet.) (same). See also El-Khalidi, 2014 WL 2152101 at *3 (trial
court reasonably concluded plaintiff failed to prosecute claims against unserved
defendants where almost all case activity was conducted by served defendants and
little to no activity was pursued by plaintiff). The trial court’s proper exercise of
its inherent power to dismiss in this case warrants affirmance.
II. Principles of equity and judicial economy support the trial court’s
dismissal of Plaintiffs’ claims against Woodward for want of
prosecution due to lack of diligence.
The court used its inherent power to dismiss for want of prosecution to
prevent Plaintiffs from further delaying the prosecution of the already stale case.
The trial court’s decision was within the bounds of its authority to control its
docket and was consistent with its obligation to ensure that cases are diligently
prosecuted to prevent prejudice or injustice to any of the litigants. See 3V, Inc. v.
JTS Enters., Inc., 40 S.W.3d 533, 539-540 (Tex. App.—Houston [14th Dist.] 2000,
no pet.). As set forth above, Plaintiffs did nothing to advance their case for over
two years and repeatedly sought extensions from the trial court to complete the
simplest of procedural tasks – service of process.
Plaintiffs’ omission of critical details and references to time in their brief is
telling. For example, Plaintiffs omit any reference to the trial court’s November
21, 2011 deadline to serve the five defendants that they added as parties in their
19
amended petition. (CR.151.) Plaintiffs acknowledge that in May 2011 they asked
for more time to accomplish such service, but they gloss over the docket control
order that was entered thereafter which stated: “All parties must be added and
served. . . by this date.” (CR. 151) (emphasis added). This language unequivocally
applied to the five entities that were sued as party-defendants in the first amended
petition, like Woodward, but not yet served. See Zanchi v. Lane, 408 S.W.3d 373,
377 (Tex. 2013) (reaffirming that consistent with the common law one becomes a
“party” to a lawsuit when a claim is asserted it in a filed pleading, even though not
served with process).
Plaintiffs omit this detail because there is no dispute they allowed the
November 21, 2011 deadline to expire without any effort to serve Woodward. (CR.
151.) That deadline was not resurrected by the May 2012 amended docket control
order since it was specifically limited to the joinder of “new” parties. (CR 237.) In
other words, the joinder deadline in the May 2012 amended docket control order
only applied to “new” party-defendants sued on or after that date. See Id.
It is undisputed that Woodward was named as a party-defendant in the first
amended petition more than a year earlier. (CR. 5-36.) It was not a “new” party as
contemplated by the May 2012 amended docket control order as a matter of law.
(CR. 5-36, 237.) On that ground alone, the trial court could have properly
dismissed Woodward. See Daneshjou Co. v. Goergen, 2008 WL 3171256 at *2-3
20
(Tex. App.—Austin 2008, pet. denied) (affirming trial court’s dismissal of
plaintiff’s claims against newly-added defendant where plaintiff failed to serve
defendant before the court’s joinder deadline set forth in the scheduling order).
Even if the reference to “new” parties in the May 2012 amended docket
control order could be viewed as applying to Woodward (giving Plaintiffs 22
months to serve a defendant it named almost two years earlier), Plaintiffs still
failed to properly serve Woodward even during that extensive timeframe. (CR.
115-121.) Rule 99 of the Texas Rules of Civil Procedure sets forth the
requirements for service of process in clear and unambiguous terms. See generally
TEX. R. CIV. P. 99. Yet, Plaintiffs’ attempted service failed to comply with Rule 99
by failing to attach the operative pleading and identifying the incorrect date of the
filing of the petition. (CR. 118-119, 160, 423; RR 14-15.) These defects were fatal
to the attempted service, making it a legal nullity. In the Interest of J.T.O., 2008
WL 139295 at *1 (“The rules relating to the issuing and serving of processes are
mandatory, and failure to comply with such rules renders the service thereunder of
no effect.”)
Despite this, Woodward voluntarily appeared in the action on February 25,
2013 and immediately thereafter asked the trial court to put an end to Plaintiffs’ lax
and fumbled prosecution of their case. Regardless of whether Woodward may
have waived the aforementioned defects in the January 2013 service of process by
21
voluntarily appearing, Woodward most certainly did not waive its right to seek
dismissal of the case for Plaintiffs’ lack of diligence in prosecution. See, e.g.
Harrison, 2010 WL 2629893 at *2 (granting motion to dismiss for want of
prosecution after defendant appeared and answered); El-Khalidi, 2014 WL
2152101 at *3 (same); Preslar, 2014 WL 824201 at *1-2 (same). The only issue
that this Court must decide is whether the trial court acted within its discretion in
dismissing Plaintiffs’ case against Woodward. Given that Plaintiffs had abused the
trial court’s prior grants of extension on the docket control deadlines, and failed to
adhere to the clear legal requirements of service of process under Texas law, the
trial court properly exercised its inherent power in granting Woodward’s motion to
dismiss for want of prosecution.
Principles of equity and judicial economy thus support the trial court’s
decision. Contrary to Plaintiffs’ argument that the trial court should not have
considered prejudice (Br. 22-23), the trial court correctly weighed the
consequences that resulted from Plaintiffs’ delay. This Court has emphasized that
“[t]he interests of litigants are best served when courts adopt and utilize measures
that foster and enhance judicial economy.” Horowitz v. Berger, 377 S.W.3d 115,
128 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (Frost, J., concurring). As
the Texas Supreme Court noted in Stoot, delay undermines judicial economy by
crowding court dockets, pressuring judges to take short cuts, interfering with the
22
prompt disposition of cases that have been diligently prosecuted, and “overhanging
the entire process with the pall of disorganization and insolubility.” 530 S.W.2d at
931.
Here, Plaintiffs’ delay placed the trial court in the position of having to
decide whether to prejudice Woodward by forcing it to trial in just a few months or
to hinder the administration of the trial court’s docket by further delaying trial and
allowing this 2010 case to linger even longer. Alternatively, the trial court could
leave Plaintiffs with the “pall of disorganization and insolubility” of their own
making, and prohibit Plaintiffs from prosecuting their claim against Woodward
two years too late. The trial court correctly appreciated that the equities and
judicial economy warranted the latter option.
Plaintiffs’ lack of diligence also created “substantial impediments” to a fair
factual determination. See Id. If Plaintiffs would have simply taken the elementary
step of serving Woodward in March 2011, the fact finding process would have
commenced shortly thereafter. As Woodward argued to the trial court, if Plaintiffs
would have timely served Woodward with process, Woodward would have
immediately started working to secure the wreckage (or at least its component),
engaged in party discovery, identified eyewitnesses, and conducted numerous other
activities that are necessary to investigate the cause of the crash. (RR. 28-29, 51.)
But because Plaintiffs waited nearly two years to attempt service, lulling
23
Woodward into the false sense that it was not being pursued by Plaintiffs as it was
not pursued by majority of the plaintiffs involved in the accident (RR. 19-20),
Woodward was now “behind the curve” and in the difficult position of having to
begin the process of investigating a crash in a foreign country that, by that point,
had occurred over four years earlier. (RR. 51-52.) The condition of the wreckage
was unknown and witnesses’ recollections were certainly diminished as time
unnecessarily continued to elapse. (RR. 28-29); see generally Stoot, 530 S.W.2d at
931 (noting that the possibilities for error “multiply rapidly” as time elapses). The
trial court indicated that it found these arguments “compelling.” (RR. 53.)
Finally, Plaintiffs argue that, to the extent the trial court relied on
Woodward’s suggestion that Plaintiffs’ delay might have been a tactical move, it
abused its discretion. (Br. 25-26.) Such a claim is without merit. The trial court’s
consideration of the practical consequences of its decision and the precedent it may
set was certainly within its inherent power and discretion. Woodward highlighted
to the trial court that permitting a plaintiff to wait nearly two years before
attempting to serve process on a defendant in multi-defendant litigation may
incentivize a plaintiff to serve some defendants while not serving others in order to
settle against the first set of defendants and then proceed against the remaining
24
defendants, possibly under an inconsistent theory.9 (RR. 30-31.) In light of the
Texas Supreme Court’s concern that delay hinders judicial economy and impedes
fact finding, the trial court surely could have noted this practical consideration
when making its determination. Stoot, 530 S.W.2d at 932.
Similar to the trial court in Stoot, the trial court here took “a reasonable and
effective step to enforce the duty of diligence required of parties who seek relief in
that court” by dismissing Plaintiffs’ unreasonably delayed claims against
Woodward. Id. Plaintiffs were dilatory for over three years as the case languished
on the trial court’s docket without substantive progress in the matter. Woodward
should not be prejudiced by, nor Plaintiffs rewarded by, Plaintiffs’ failure to
exercise due diligence in the prosecution of its claims. Thus, like Stoot, the trial
court’s determination in this case was proper and should be affirmed.
III. Affirmance of the trial court’s order dismissing Plaintiffs’ claims with
prejudice is proper in this case.
Notably, Plaintiffs made no challenge or complaint to the trial court about
the dismissal of their case with prejudice. Even though the trial court’s dismissal
order did not become final until October 22, 2014 (CR. 488), sixteen months after
it was signed, Plaintiffs did not move to reinstate, nor did they ask the trial court to
9
Indeed, that is precisely what occurred here. Plaintiffs settled with defendants Learjet,
Standard Aero, Howell, and GE Aviation Systems, Ltd., who were then dismissed from the
litigation. Had Woodward not been dismissed for Plaintiffs’ lack of due diligence, it would have
been the last remaining defendant in the litigation (excluding Centros who had neither appeared
nor answered in more than two years after service).
25
modify the dismissal order to be without prejudice. As a result, any error in
dismissing Plaintiffs’ claims against Woodward with prejudice has not been
preserved for this appeal. See Torres v. Clark, 2012 WL 1694607 at *2 (Tex. App.
―Houston [14th Dist. 2012, no pet); Martin v. State, 2009 WL 2146025 at *1, n.1
(Tex. App.—Houston [14th Dist.] 2009, no pet.); Andrews v. ABJ Adjusters, Inc.,
800 S.W.2d 567, 568-69 (Tex. App.—Houston [14th Dist.] 1990, no pet).
Compounding the situation, and perhaps in recognition of it, Plaintiffs also
did not complain about the dismissal with prejudice in their appellant’s brief. Any
challenge to the propriety of the trial court’s dismissal of Woodward with
prejudice has therefore been waived by Plaintiffs, both at the trial court level and
on appeal. See Zamarron v. Shinko Wire Co., Ltd., 125 S.W.3d 132, 139 (Tex.
App. ―Houston [14th Dist.] 2003, pet denied) (complaint not raised in an original
appellate brief is waived). Plaintiffs are now precluded from raising any such
complaint for the first time in their reply brief. See Priddy v. Rawson, 282 S.W.3d
588, 597 (Tex. App. ―Houston [14th Dist.] 2009, pet. denied) (a complaint cannot
be made for the first time in a reply brief). Accordingly, for all of these reasons,
the trial court’s exercise of its inherent power in dismissing Plaintiffs’ claims
against Woodward for want of prosecution with prejudice was warranted and
should be affirmed by this Court in all things.
26
CONCLUSION AND PRAYER
For all of the reasons above, Appellee Woodward, Inc., requests the Court to
affirm the trial court’s order dismissing Plaintiffs’ claims against Woodward for
want of prosecution with prejudice in all things. Woodward additionally prays for
such other and further relief to which it may be justly entitled.
Respectfully submitted,
BEIRNE, MAYNARD & PARSONS,
L.L.P.
/s/ N. Terry Adams, Jr.
John Michael Kelly N. Terry Adams, Jr.
(admitted pro hac vice) State Bar No. 00874010
jkelly@amm-law.com tadams@bmpllp.com
Gina Marie Diomedi BEIRNE, MAYNARD & PARSONS, L.L.P.
(admitted pro hac vice) 1300 Post Oak Blvd., 25th Floor
gdiomedi@amm-law.com Houston, Texas 77056
Christine Marie Niemczyk Telephone: (713) 623-0887
(admitted pro hac vice) Fax: (713) 960-1527
cniemczyk@amm-law.com
ADLER MURPHY & MCQUILLEN LLP
20 South Clark Street, Suite 2500
Chicago, Illinois 60603
Telephone: (312) 345-0700
Fax: (312) 345-9860
Counsel for Appellee Woodward, Inc.
27
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4 because:
this brief contains 6,296 words, excluding the parts of the
brief exempted by TEX R. APP. P. 9.4.
2. This brief complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because:
this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2014 in 14 point New
Times New Roman font for the text and 12 point New
font for the footnotes.
/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
CERTIFICATE OF SERVICE
I hereby certify that I have complied with the Texas Rules of Appellate
Procedure and the Local Rules of this Court and that the foregoing Appellee’s
Brief has been electronically filed and served on all counsel of record below in
accordance with these Rules on this the 25th day of June, 2015.
John C. Schwambach, Jr.
Pierce & O’Neill, LLP
4119 Montrose Blvd., Suite 350
Houston, Texas 77006
jschwambach@pierceoneill.com
Counsel for Appellants
/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
28
APPENDIX A
5/29/2015 4:36:19 PM
Chris Daniel - District Clerk Harris County
Envelope No. 5478779
By: Michelle Gaines
Filed: 5/29/2015 4:36:19 PM
BEIRNE, MAYNARD & PARSONS, L.L.P.
1300 POST OAK BOULEVARD
SUITE 2500
HOUSTON, TEXAS 77056-3000
TERRY ADAMS, JR.
PARTNER (713) 623-0887 Direct Dial (713) 960-7319
Email: tadams@bmpllp.com
FAX (713) 960-1527
May 29, 2015
Attention: Civil Post Judgment -Appeals
Chris Daniel
Harris County District Clerk
Harris County Civil Courthouse
201 Caroline Street
Houston, Texas 77002
REQUEST FOR SUPPLEMENTAL CLERK’S RECORD
Re: No. 2010-31214; Ulrika Bjorkstam and Joseph Daniel Drey v. Woodward,
Inc; In the 190th District Court of Harris County, Texas;
No. 14-14-00927-CV; Ulrika Bjorkstam and Joseph Daniel Drey v.
Woodward, Inc; In the Fourteenth Court of Appeals at Houston, Texas.
Dear Mr. Daniel:
Appellee/Defendant, Woodward, Inc., requests that the following documents be
included in a Supplemental Clerk’s Record, pursuant to Texas Rule of Appellate
Procedure 34.5(c), and filed with the Fourteenth Court of Appeals in the above-captioned
appeal as soon as possible.
Description Document No. Date
1. Request for Service Abroad of Judicial or 60434459 04/15/2014
Extrajudicial Documents
Chris Daniel
Harris County District Clerk
May 29, 2015
Page 2
Description Document No. Date
2. Order Granting Objection to Discovery in Part 55910265 05/29/2013
Signed
Order Granting Objection to Production Req in
Part Signed
Order Signed Compelling Production
3. Defendants’ Motion to Apply Mexican Law to 54673012 02/08/2013
Plaintiffs’ Damages
4. Defendant Honeywell’s Traditional and 52293757 05/22/2012
Alternatively No-Evidence Motion for
Summary Judgment
5. Proposed Agreed Amended Docket Control 52282597 05/21/2012
Order
6. Joint/Unopposed Motion for Issuance of New 47165650 12/09/2010
Citation of Defendant Centro De Servicios de
Aviacion Ejecutiva S.A. DE C.V.
7. Motion to Appoint International Process Server 45568038 06/15/2010
8. Plaintiffs’ Original Petition 45340265 05/18/2010
9. Citation-Tracking #7009 0960 0001 1925 7572 45360586 ——
10. Citation Corporate – Tracking #s 7009 0960 45360587 ——
0001 1925 7596-7009 0960 001 1925 7589
We will of course pay your fees for preparing this Supplemental Clerk’s Record in
accordance with your usual practice. Thank you for your customary courtesy and
assistance.
Chris Daniel
Harris County District Clerk
May 29, 2015
Page 3
Respectfully submitted,
BEIRNE, MAYNARD & PARSONS, L.L.P.
By: /s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
Texas Bar No. 00874010
tadams@bmpllp.com
1300 Post Oak Blvd, Suite 2500
Houston, Texas 77056
(713) 623-0887 (Tel)
(713) 960-1527 (Fax)
ADLER MURPHY & MCQUILLEN LLP
John Kelly
(pro hac vice)
Gina M. Diomedi
(pro hac vice)
Christine M. Niemczyk
(pro hac vice)
20 South Clark Street, Suite 2500
Chicago, Illinois 60603
(312) 345-0700 (Tel)
(312) 345-9860 (Fax)
Counsel for Appellee/Defendant
CERTIFICATE OF SERVICE
I hereby certify that I have complied with the Texas Rules of Appellate Procedure
and the Local Rules of this Court and that the foregoing request to supplement the
clerk’s record has been electronically filed and served on all counsel of record below in
accordance with these Rules on this the 29th day of May, 2015.
John C. Schwambach, Jr.
PIERCE & O’NEILL, LLP
4119 Montrose Blvd., Suite 350
Houston, Texas 77006
Counsel for Appellants/Plaintiffs
/s/ N. Terry Adams, Jr.
N. Terry Adams, Jr.
APPENDIX B
John M. Kelly
From: John M. Kelly
Sent: Monday, June 17, 2013 2:27 PM
To: 'Codina, Lori (DCA)'
Cc: Daniel D Barks (ddb@barks-law.com); 'Sullivan, Ashley'; 'McConn, Tim';
The email addresses of the other counsel have been redacted to
ron@simonluke.com; matt@hwnn.com; ashley@hwnn.com; mark@collmerlaw.com;
protect any privacy concerns.
faw@wisner-law.com; faw@wisner-law.com; john@ammonslaw.com;
patricia@ammonslaw.com; mawash@austin.rr.com; rruckman@jw.com;
bbrown@jw.com; rsprague@gendrysprague.com; sloper@gendrysprague.com;
wsprague@sheehyware.com; djaques@mckennalong.com; mirel@mckennalong.com;
Christine Niemczyk; Michael G. McQuillen; Michael.Hull@mbhhpc.com;
Monica.Ramirez@mbhhpc.com; Cheryl.Aubel@mbhhpc.com; rob@ammonslaw.com;
cathy@h-nlaw.com
Subject: Bjorkstam v. Learjet, et al- 10-31214 Woodward's Motion to Dismiss for Want of
Prosecution - Additional authority
Attachments: Risley v. Alvarez, 2011 Tex. App. LEXIS 895.pdf; Fox v. Wardy, 225 S.W.3d 198.pdf;
Edison v. Houston Police Dept, 2007 Tex App LEXIS 4463.pdf; Buchanan v. Cline, 2012
Tex. App. LEXIS 1846.pdf; Marsh v. Livingston, 2010 Tex. App. LEXIS 2915.pdf; Saks &
Co. v. Richardson, 2002 Tex. App. LEXIS 7914.pdf
Lori: At Friday’s hearing on Woodward, Inc.’s Motion to Dismiss for Want of Prosecution, Judge Kerrigan
asked the parties to submit any additional cases that deal with dismissals based on a party’s failure to exercise
due diligence that did not involve a statute of limitations argument. We note that the Fox and Risley cases cited
in our original Motion (and attached here) directly address the Court’s inquiry. Also, attached are additional
cases that we were able to locate that support dismissal for lack of diligence outside the statute of limitations
context. We are happy to submit a brief analyzing these cases and their applicability to the facts of this case if it
will assist the Court.
John
John M. Kelly
ADLER MURPHY & McQUILLEN LLP
20 S. Clark Street, Suite 2500
Chicago, Illinois 60603
Main: (312) 345-0700
Direct: (312) 422-5704
Facsimile: (312) 345-9860
________________________________________________________________
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