Dale Roush, Individually and as Trustee of the Dale Roush Assets Trust v. Metropolitan Life Insurance Company and Joel Hart

07-17-00458CV ACCEPTED

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

3/23/2018 4:00 PM

Vivian Long, Clerk

APPELLATE NO. 07-17-00458-CV

IN THE COURT OF APPEALS FILED IN

7th COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICTAMARILLO, TEXAS

AMARILLO, TEXAS 3/23/2018 4:00:16 PM

VIVIAN LONG

CLERK

DALE ROUSH, INDIVIDUALLY AND AS TRUSTEE OF THE DALE

ROUSH ASSETS TRUST

Appellant,

v.

METROPOLITAN LIFE INSURANCE COMPANY AND JOEL HART

Appellees.

Appeal From No. 4727

th

69 District Court, Sherman County, Texas

The Honorable Ron Enns

BRIEF OF APPELLANT

Sprouse Shrader Smith PLLC

John F. Massouh, Texas State Bar No. 24026866

john.massouh@sprouselaw.com

P.O. Box 15008

Amarillo, Texas 79105

Phone: (806) 468-3300

Fax: (806) 373-3454

ATTORNEY FOR APPELLANT DALE ROUSH, INDIVIDUALLY AND AS

TRUSTEE OF THE DALE ROUSH ASSETS TRUST

MARCH 23, 2018

IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a), Appellant, Dale Roush, individually and

as trustee of the Dale Roush Assets Trust, certifies that the following is a complete

list of the names and addresses of the parties and their counsel:

Parties Counsel

Appellant Dale Roush, Sprouse Shrader Smith PLLC

individually and as John F. Massouh

trustee of the Dale P.O. Box 15008

Roush Assets Trust Amarillo, TX 79105-5008

Appellee Joel Hart Lewis Coppedge

Lewis Coppedge, P.C.

112 SW 8th Ave., Suite 301

Amarillo, TX 79101

and

Frederic Wolfram

Wolfram Law Firm, P.C.

600 S. Tyler St., Suite 1406

Amarillo, TX 79101

Appellee Metropolitan Life Jackson and Walker

Insurance Company and Scott A. Wheatley

777 Main Street, Suite 2100

Fort Worth, TX 76102-5366

BRIEF OF APPELLANT Page i

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ................................................................. i

INDEX OF AUTHORITIES........................................................................................... iv

STATEMENT OF THE CASE ....................................................................................... 1

REQUEST FOR ORAL ARGUMENT .......................................................................... 2

ISSUES PRESENTED ..................................................................................................... 3

1. The trial court abused its discretion by denying Plaintiff’s Motion to

Reinstate this case, as well as abused its discretion by granting Defendants’

Motion to Dismiss for Want of Prosecution, because Plaintiff has actively

prosecuted the case, including requesting a trial setting for the Court’s first

available jury trial docket, which was December 5, 2016. ............................. 3

STATEMENT OF FACTS .............................................................................................. 4

SUMMARY OF THE ARGUMENT ............................................................................. 6

ARGUMENT ..................................................................................................................... 8

I. Standard of Review ..........................................................................................8

II. The trial court abused its discretion by granting Appellees’ Motion to

Dismiss for Want of Prosecution because Appellant has actively prosecuted the

case, including seeking a December 2016 trial setting; further, the delay in

prosecution is mitigated by an explained delay due to Mr. Roush’s health. .........8

A. The trial court abused its discretion by dismissing this case under the two

grounds found in Texas Rule of Civil Procedure 165a. ...................................10

B. The trial court abused its discretion by dismissing this case through its

inherent power to dismiss a case when a plaintiff fails to prosecute its case

with due diligence. ............................................................................................13

BRIEF OF APPELLANT Page ii

PRAYER .......................................................................................................................... 16

CERTIFICATE OF COMPLIANCE ............................................................................ 18

CERTIFICATE OF SERVICE ...................................................................................... 19

APPENDIX ...................................................................................................................... 20

BRIEF OF APPELLANT Page iii

INDEX OF AUTHORITIES

Cases Page

City of San Benito v. Rio Grande Valley Gas Co.,

109 S.W.3d 750 (Tex. 2003). ......................................................................... 8

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238 (Tex. 1985). .......................................................................... 8

Dueitt v. Arrowhead Lakes Prop. Owners, Inc.,

180 S.W.3d 733 (Tex. App.—Waco 2005, pet. denied). ............................... 8

Fedco Oil Co. v. Pride Ref. Co.,

787 S.W.2d 572 (Tex. App.—Houston [14th Dist.] 1990, no writ). ............ 15

In re Connor,

458 S.W.3d 532 (Tex. 2015). .......................................................................15

In re Fifty-One Gambling Devices,

298 S.W.3d 768 (Tex. App.—Amarillo 2009, pet. denied). ........................ 10

In re S.D.W.,

811 S.W.2d 739 (Tex. App.—Houston [1st Dist.] 1991, no writ). .............. 11

Jones v. Morales,

318 S.W.3d 419 (Tex. App.—Amarillo 2010, pet. denied). ....................10,11

King v. Holland,

884 S.W.2d 231 (Tex. App.—Corpus Christi 1994, writ denied).....7,9,13,16

Lessard v. Velsicol,

No. 13-00-00113-CV, 2009 Tex. App. LEXIS 2811, at *1 (Tex. App.—

Corpus Christi Apr. 23, 2009, pet. denied) (mem. op.). ............................... 11

Maida v. Fire Ins. Exchange,

990 S.W.2d 836 (Tex. App.—Fort Worth 1999, no pet.). ................7,9,13,16

BRIEF OF APPELLANT Page iv

Moore v. Armour & Co.,

660 S.W.2d 577 (Tex. App.—Amarillo 1983, no writ). .............................. 14

Rorie v. Avenue Shipping Co.,

414 S.W.2d 948 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e). ..... 14

State v. Rotello,

671 S.W.2d 507 (Tex. 1984). ......................................................................... 8

Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628 (Tex. 1999). .................................................................7,9,13

Statutes

TEX. R. CIV. P. 165a ........................................................................................6,8,9,10

TEX. R. JUD. ADMIN. 1.............................................................................................10

TEX. R. JUD. ADMIN. 6..................................................................................7,9,10,11

TEX. GOV’T CODE ANN. § 74.024 (West 2017)........................................................ 10

Other

BLACK’S LAW DICTIONARY (10th ed. 2014) .............................................................11

BRIEF OF APPELLANT Page v

STATEMENT OF THE CASE

On June 13, 2016, the Court in this matter dismissed the claims of Plaintiff

and Appellant, Dale Roush, individually and as trustee of the Dale Roush Assets

Trust (“Roush”), with prejudice, by granting Defendants’ Motion to Dismiss for

Want of Prosecution. C.R. 56-58. On December 22, 2016, Appellant filed his

Notice of Appeal. C.R. 87-88.

BRIEF OF APPELLANT Page 1

REQUEST FOR ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39.7, Appellant, Dale Roush, individually and as

trustee of the Dale Roush Assets Trust, requests permission to make oral

arguments upon submission of this cause to the Court of Appeals. Oral argument

would grant the Court of Appeals a better opportunity to understand the

complexity of the case and the special circumstances surrounding the case.

BRIEF OF APPELLANT Page 2

ISSUES PRESENTED

1. The trial court abused its discretion by granting Defendants’ Motion

to Dismiss for Want of Prosecution, as well as abused its discretion by denying

Plaintiff’s Motion to Reinstate this case, because Plaintiff has actively prosecuted

the case, including requesting a trial setting for the Court’s first available jury trial

docket, which was December 5, 2016.

BRIEF OF APPELLANT Page 3

STATEMENT OF FACTS

This case has a long and winding history that includes the following:

multiple lawyers representing the different parties, health issues of the Plaintiff,

multiple summary judgment motions, a three year delay in ruling on the summary

judgment motions, attempted consolidation with related matters, and the

bankruptcy of party Tejas Farms. See C.R. 70-86. While this case has undoubtedly

been pending for a number of years, the long and sordid history of the case is not

the fault of Appellant, but merely a circumstance of such a complex case with

special circumstances. A very abbreviated overview of the various pleadings and

motions throughout the history of this case is detailed below:

Date of Filing: Description of Filing: Record Citation:

07/10/2006 Plaintiff’s Original Petition C.R. 70

08/07/2006 Defendant Hart’s Answer and Counterclaim C.R. 70

09/06/2006 Defendant Metropolitan’s Answer and C.R. 70

Cross-claim

11/13/2007 Motion for Withdrawal and Substitution of C.R. 71

Counsel for Defendant

02/22/2008 Notice of Hearing on Motion to Compel C.R. 71

03/07/2008 Plaintiff’s Motion to Compel Deposition of C.R. 71

Hart and Brief in Support

01/15/2009 Metropolitan’s Motion for Summary C.R. 72

Judgment and No Evidence Motion for

Summary Judgment on Roush’s Claim for

Conversion of Real Property

01/20/2009 Hart’s Motion to Consolidate C.R. 73

02/23/2009 Plaintiff’s First Amended Petition C.R. 73

02/25/2009 Metropolitan’s Motion to Strike Plaintiff’s C.R. 74

Amended Petition

03/02/2009 Metropolitan’s Brief in Support of Motion C.R. 74-75

for Summary Judgment

BRIEF OF APPELLANT Page 4

03/11/2009 Hart’s Second Amended Answer C.R. 77

03/16/2009 Metropolitans First Amended Answer, C.R. 77

Special Exceptions, and Cross-claim

03/20/2009 Plaintiff’s Second Amended Petition C.R. 77

03/25/2009 Suggestion of Bankruptcy of Defendant C.R. 77

Tejas Farms, Ltd.

03/25/2009 Hart’s Motion for Summary Judgment C.R. 77

against Metropolitan

03/25/2009 Hart’s Motion for Summary Judgment C.R. 77-78

Against Plaintiff

04/17/2009 Defendant’s Motion for Substitution of C.R. 80

Counsel

04/17/2009 Notice of Hearing on Plaintiff’s Motion to C.R. 81

Compel Deposition of Hart

04/17/2009 Plaintiff’s Third Amended Petition C.R. 82

04/17/2009 Plaintiff’s Notice of Lis Pendens C.R. 83

05/26/2009 Order Granting Metropolitan’s Conditional C.R. 84

Motion for Summary Judgment

10/14/2009 Motion to Consolidate by Roush and Hart C.R. 85

10/21/2009 Hart’s Motion for Summary Judgment C.R. 85

2/16/2012 Order denying Motion for Summary C.R. 86

Judgment

10/05/2012 Defendant’s Motion to Withdraw C.R. 86

10/10/2012 Order Granting Motion to Withdraw C.R. 86

12/30/2015 Motion for Substitution of Counsel for C.R. 86

Defendants

As clearly demonstrated from the above filings, which only represent a very

small portion of the trial court’s complete index, this case has been pending with

the trial court for the amount of time due to the complexity and ever-changing

nature of the case, attorneys, and parties involved in the lawsuit and due to a

mitigated and explained delay. After Mr. Roush began representing himself, he

suffered injuries from car accidents and a dramatic fall that has not allowed him to

BRIEF OF APPELLANT Page 5

adequately function from day-to-day and hampered his prosecution of the case.

Mr. Roush assumed responsibility for prosecuting this case after he granted

his attorneys’ withdrawal from the case in 2012. On August 28, 2014, Mr. Roush

was involved in a car accident in Taos, New Mexico. C.R. 67. The accident

necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr.

Roush was involved in a second car accident that exasperated his previous health

condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic

fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him

to stay ten days in the hospital, of which nearly half was in the intensive care unit.

C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R.

67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016,

he underwent surgery to correct the injury to his shoulder.

SUMMARY OF THE ARGUMENT

The Court abused its discretion by granting Defendants’ Motion to Dismiss

for Want of Prosecution, and this Court should therefore reverse the trial court’s

judgment and remand this case to the trial court for trial on the merits.

Under Texas Rule of Civil Procedure 165a, there are two grounds for

dismissal for want of prosecution. Only one is applicable in this case. The

applicable discretionary ground generally applies when a case is “not disposed of

within [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P.

BRIEF OF APPELLANT Page 6

165a(2) (referencing the administrative rules promulgated by the Texas Supreme

Court). Under this ground, a trial court has the discretion to dismiss for want of

prosecution whenever a case is not disposed of in eighteen months. See TEX. R.

JUD. ADMIN. 6.1(a)(1). However, though this is the general rule, it is not the rule

for complex cases: "It is recognized that in especially complex cases or special

circumstances it may not be possible to adhere to these standards." Id. R. 6.1(e).

This case is both complex and involves special circumstances, as clearly identified

in the Statement of Facts section of this brief and set forth in the 16 page docket

index. C.R. 70-86. Therefore, the general discretionary rule, requiring a case’s

disposal within eighteen months, is inapplicable in this matter, and the trial court

abused its discretion in dismissing the case pursuant to Rule 165a.

Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of civil procedure when a plaintiff fails to

prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628, 631-32 (Tex. 1999). The factors a trial court may consider in

dismissing a case under its inherent power include: the length of time the case is on

file, the extent of activity in the case, whether a trial setting was requested, and the

existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990

S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland,

884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this

BRIEF OF APPELLANT Page 7

case has been on file for a number of years, there has been extensive activity in the

case, including Appellant requesting a December 5, 2016 jury trial following the

undersigned’s substitution as counsel for Appellant. C.R. 70-96; APP’X n. 3 ¶ 8.

Further, Mr. Roush suffered a number of injuries from two car accidents and a fall

that mitigate and explain the delay in prosecution. C.R. 67-69. The trial court

abused its discretion in dismissing this case pursuant to its inherent powers.

ARGUMENT

I. Standard of Review

Courts of Appeal review dismissals for want of prosecution under an abuse-

of-discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Dueitt v.

Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco

2005, pet. denied). A trial court abuses its discretion when it acts “without

reference to any guiding rules or principles, or, stated another way, when the trial

court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio

Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

II. The trial court abused its discretion by granting Appellees’ Motion to

Dismiss for Want of Prosecution because Appellant has actively

prosecuted the case, including seeking a December 2016 trial setting;

further, the delay in prosecution is mitigated by an explained delay due to

Mr. Roush’s health.

Under the second discretionary ground of Texas Rule of Civil Procedure

165a, a trial court has the power to dismiss a case that is “not disposed of within

BRIEF OF APPELLANT Page 8

[the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2).

Though this is the general discretionary rule, “it is recognized that in especially

complex cases or special circumstances it may not be possible to adhere to these

standards." TEX. R. JUD. ADMIN. 6.1(e). This case is both complex and involves

special circumstances; therefore, the trial court should not have dismissed

Appellant’s claims pursuant to this ground. This Court should reverse the trial

court’s judgment and remand the case for trial on the merits.

Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of civil procedure when a plaintiff fails to

prosecute its case with due diligence. Villarreal v. San Antonio Truck & Equip.,

994 S.W.2d 628, 631-32 (Tex. 1999). Trial courts may consider a number of

factors in determining whether or not to dismiss the case in accordance with its

inherent power. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.—

Fort Worth—1999, no pet.) (Factors a trial court may consider in dismissing under

its inherent power include the length of time the case was on file, the extent of

activity in the case, whether a trial setting was requested, and the existence of

reasonable excuses for delay) (citing King v. Holland, 884 S.W.2d 231, 237 (Tex.

App.—Corpus Christi 1994, writ denied)). When considering these factors in light

of the facts of this case, Appellant’s case should not have been dismissed through

the trial court’s inherent power. This constitutes an abuse of discretion.

BRIEF OF APPELLANT Page 9

A. The trial court abused its discretion by dismissing this case under

the two grounds found in Texas Rule of Civil Procedure 165a.

Under Texas Rule of Civil Procedure 165a, there are two grounds for

dismissal for want of prosecution. One is when a “party seeking affirmative relief

[fails] to appear for any hearing or trial of which the party had notice.” TEX. R.

CIV. P. 165a(1). This ground is inapplicable to this case. The second discretionary

ground generally applies when a case is “not disposed of within [the] time

standards promulgated by the Supreme Court.” Id. R. 165a(2) (referencing the

administrative rules promulgated by the Texas Supreme Court). Under this ground,

a trial court has the discretion to dismiss for want of prosecution in a case

whenever it is not disposed of in eighteen months. See TEX. R. JUD. ADMIN.

6.1(a)(1).

According to Rule 1 of the Rules of Judicial Administration, the rules are

promulgated pursuant to § 74.024 of the Texas Government Code. TEX. R. JUD.

ADMIN. 1. Section 74.024 provides "the supreme court may consider the adoption

of rules relating to: (1) nonbinding time standards for pleading, discovery, motions,

and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the

dismissal is warranted . . . ." TEX. GOV'T CODE ANN. § 74.024(c)(1),(2) (West

2017) (emphasis added). Thus, the application of Rule 6 is discretionary and non-

binding. Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet.

denied); see also In re Fifty-One Gambling Devices, 298 S.W.3d 768, 774 (Tex.

BRIEF OF APPELLANT Page 10

App.—Amarillo 2009, pet. denied); In re S.D.W., 811 S.W.2d 739, 746 (Tex.

App.—Houston [1st Dist.] 1991, no writ) (juvenile case). In other words, “Rule

6 does not fix a bright line demarking the outward limit of a trial court's discretion

to control its docket.” Jones, 318 S.W.3d at 427. Dismissal after eighteen months

is not warranted in this case, as it is not a bright-line rule. The trial court, based on

the complexity of this case, should not have dismissed the case based on its failure

to come to a resolution within eighteen months.

Additionally, though an eighteen-month guideline promulgated by the Texas

Supreme Court is the general discretionary rule, a closer examination of Rule 6

reveals subsection (e), titled “Complex Cases”: "It is recognized that in especially

complex cases or special circumstances it may not be possible to adhere to these

standards." TEX. R. JUD. ADMIN. 6.1 (e). Therefore, the Supreme Court has carved

out an exception to the general timetable that allows more time for complex cases

or special circumstances. See Lessard v. Velsicol, No. 13-00-00113-CV, 2009 Tex.

App. LEXIS 2811, at *13 n. 5 (Tex. App.—Corpus Christi Apr. 23, 2009, pet.

denied) (mem. op.). While the statute does not define “complex case,” Black’s

Law Dictionary defines “complex litigation” as: “Litigation involving several

parties who are separately represented, and usu. involving multifarious factual and

legal issues.” Complex Litigation, BLACK’S LAW DICTIONARY (10th ed. 2014) 1075.

This case is both complex and involves special circumstances, including but

BRIEF OF APPELLANT Page 11

not limited to: multiple lawyers representing the different parties, health issues of

the Plaintiff, multiple summary judgment motions, a three year delay in ruling on

the summary judgment motions, attempted consolidation with related matters, and

the bankruptcy of party Tejas Farms. See C.R. 70-86. This case squarely fits the

definition of “complex litigation” as defined by Black’s Law Dictionary. In fact,

the civil docket sheet, or “index,” in this matter is seventeen pages long, and

contains over one-hundred and thirty entries. C.R. 70-96. The present case is not a

“normal” case, and it is not a case in which Appellant failed to take any sort of

action.

Appellant has recently been actively prosecuting this case. On May 16,

2016, the law firm of Sprouse Shrader Smith, PLLC noticed an appearance on

behalf of Appellant. C.R. 50-51. Following the undersigned’s appearance,

Appellant requested the case be set for the Court’s first available jury trial docket

on December 6, 2016. APP’X n. 3 ¶ 8. Further, Appellant announced ready for trial

in its Verified Motion to Reinstate. C.R. 63.

The Court should not have dismissed Appellant’s claim pursuant to the 18-

month discretionary timetable ground for two reasons: (1) this timetable is

nonbinding on the trial court, and the trial court abused its discretion in dismissing

the case pursuant to this timetable; and (2) this case is a “complex case” with

special circumstances, and the 18-month timetable is therefore inapplicable to this

BRIEF OF APPELLANT Page 12

matter and the trial court therefore abused its discretion in dismissing the case

pursuant to this timetable. The trial court clearly abused its discretion in dismissing

the case for want of prosecution, and in dismissing the matter while Appellant was

clearly prosecuting its claim and stood ready for trial.

B. The trial court abused its discretion by dismissing this case

through its inherent power to dismiss a case when a plaintiff fails

to prosecute its case with due diligence.

Under the common law, a trial court possesses the inherent power to dismiss

a case independently of the rules of procedure when a plaintiff fails to prosecute

his case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d

628, 631-32 (Tex. 1999). The factors a trial court may consider in dismissing a

case under its inherent power include: the length of time the case is on file, the

extent of activity in the case, whether a trial setting was requested, and the

existence of reasonable excuses for delay. Maida v. Fire Ins. Exchange, 990

S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.) (citing King v. Holland,

884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied)). Though this

case has been on file for a number of years, there has been extensive activity in the

case, up to the point where Appellant requested a trial setting for December 2016.

C.R. 70-86; APP’X n. 3 ¶ 8. Additionally, Appellant has reasonable excuses for its

delay in prosecution, namely: he has been involved in two car accidents and a

traumatic fall that prevented the further prosecution of this case. C.R. 67-69. This

BRIEF OF APPELLANT Page 13

all occurred while appellant was representing himself pro se.

“Where . . . at the time of the dismissal hearing the plaintiff has announced

ready for trial and has secured a trial setting or is otherwise making a diligent effort

to get the case to trial, the case should not be dismissed for lack of prosecution.”

Moore v. Armour & Co., 660 S.W.2d 577, 578 (Tex. App.—Amarillo 1983, no

writ) (citing Rorie v. Avenue Shipping Co., 414 S.W.2d 948, 954 (Tex. Civ.

App.—San Antonio 1981, writ ref’d n.r.e.)). Appellant requested a trial setting of

December 5, 2016 prior to the dismissal of this case. APP’X n. 3 ¶ 8. Further,

Appellant announced “ready for trial” in its Verified Motion to Reinstate. C.R. 63.

In Moore, Plaintiff Moore “had announced trial ready, secured a trial setting and . .

. stood ready to go to trial when his case was dismissed.” 660 S.W.2d at 578.

Similarly, Appellant requested a trial setting for December 2016, and Appellant

stood ready to stand trial at the time of dismissal. APP’X n. 3 ¶ 8; C.R. 63.

Therefore, “a dismissal under these circumstances is an abuse of discretion.”

Moore, 660 S.W.2d at 578.

The Fourteenth Court of Appeals in Houston agreed with the Amarillo Court

of Appeals’ reasoning in Moore:

In Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo 1983, no

writ), the court held that the trial judge abused his discretion in dismissing a

case for want of prosecution where, at the time of the dismissal hearing, the

plaintiff had announced ready for trial and had secured a trial setting or was

otherwise making a diligent effort to get the case to trial. Id. at 578. We agree

with this reasoning.

BRIEF OF APPELLANT Page 14

Accordingly, in the instant case, we find the trial court abused its discretion in

dismissing appellants’ causes of action for want of prosecution where this

record unquestionably shows that appellant Billingsley was making a diligent

effort to get the case to trial, and that trial settings had twice been secured for

the case.

Fedco Oil Co. v. Pride Ref. Co., 787 S.W.2d 572, 575 (Tex. App.—Houston [14th

Dist.] 1990, no writ). The trial court in this case abused its discretion in dismissing

Appellant’s causes of action for want of prosecution because Appellant was

making a diligent effort to get the case to trial and had announced ready for trial

and attempted to obtain a trial setting prior to dismissal of the cause. APP’X n. 3 ¶

8; C.R. 63.

Finally, Appellant has reasonable excuses for its delay in prosecution. See In

re Connor, 458 S.W.3d 532 (Tex. 2015). On August 28, 2014, Mr. Roush was

involved in a car accident in Taos, New Mexico. C.R. 67. The accident

necessitated multiple visits to a chiropractor. C.R. 67. On February 24, 2015, Mr.

Roush was involved in a second car accident that exasperated his previous health

condition. C.R. 67. Finally, on April 21, 2015, Mr. Roush experienced a dramatic

fall in the kitchen of his home. C.R. 67. The fall and resulting injuries required him

to stay ten days in the hospital, of which nearly half was in the intensive care unit.

C.R. 67. Mr. Roush broke his c4 vertebrae and suffered severe nerve damage. C.R.

67. Mr. Roush also injured his shoulder in the fall. C.R. 67-68. On April 26, 2016,

he underwent surgery to correct the injury to his shoulder.

BRIEF OF APPELLANT Page 15

Further, prior to Appellees’ Motion to Dismiss for Want of Prosecution,

Appellant was actively engaged in the furtherance of this lawsuit. First, Appellant

requested a trial setting for December 5, 2016. APP’X n. 3 ¶ 8. Second, Appellant

was ready for trial prior to the case’s dismissal. C.R. 63. By considering these

factors, which the trial court should have considered prior to dismissal of the

lawsuit, it is clear that the trial court abused its discretion in dismissing Appellant’s

claims. Maida, 990 S.W.2d at 842 (citing King, 884 S.W.2d at 237). This Court

should therefore reverse the final judgment of the trial court and remand the case

for trial on the merits.

PRAYER

WHEREFORE, Appellant prays that this Court conduct oral arguments, and

reverse and remand this matter to the trial court as reinstated due to the fact that the

trial court abused its discretion in dismissing Appellant’s claims for want of

prosecution.

BRIEF OF APPELLANT Page 16

Respectfully submitted,

SPROUSE SHRADER SMITH PLLC

John F. Massouh, State Bar No. 24026866

John.massouh@sprouselaw.com

701 S. Taylor, Suite 500

P. O. Box 15008

Amarillo, Texas 79105-5008

Phone: (806) 468-3300; Fax: (806) 373-3454

/s/ John F. Massouh

John F. Massouh

ATTORNEY FOR APPELLANT

PANTEX SALES, INC. D/B/A GRAPHIC

EQUIPMENT AND SUPPLY

BRIEF OF APPELLANT Page 17

CERTIFICATE OF COMPLIANCE

1. This petition complies with the type-volume limitation of the Texas

Rules of Appellate Procedure 9.4(i)(2)(A). This brief contains 3266 words,

excluding the parts of the petition exempted by the Texas Rules of Appellate

Procedure.

2. This brief complies with the typeface requirements of Texas Rules of

Appellate Procedure 9.4. This petition has been prepared in a proportionally spaced

typeface using Microsoft Word 2007 in 14-point font Times New Roman.

/s/ John F. Massouh

John F. Massouh

BRIEF OF APPELLANT Page 18

CERTIFICATE OF SERVICE

I hereby certify that on March 23, 2018, I electronically transmitted the

foregoing document to the Clerk of the Court using the eFileTexas.gov electronic

system for filing. Based on the records currently on file, the Clerk of the Court will

transmit a Notice of Electronic Filing to the following e-filing registrant:

Scott A. Wheatley

Jackson Walker LLP

777 Main St., Suite 2100

Fort Worth, TX 76102

Attorneys for Metropolitan Insurance Company

Lewis Coppedge

Lewis Coppedge, P.C.

112 SW 8th Ave., Suite 301

Amarillo, TX 79101

and

Frederic Wolfram

Wolfram Law Firm, P.C.

600 S. Tyler St., Suite 1406

Amarillo, TX 79101

Attorneys for Joel Hart

/s/ John F. Massouh

John F. Massouh

14251.05

1039406_1.docx

BRIEF OF APPELLANT Page 19

APPENDIX

1. Trial Court’s Order Granting Defendants’ Motions to Dismiss for Want of

Prosecution

2. Plaintiff’s Response to Defendants’ Motion to Dismiss for Want of

Prosecution

3. Docket Index

BRIEF OF APPELLANT Page 20

~"" "'" 11111 1111111111 ""1111111111 II 11111111111111 nlllllllill II I11I

I#-1015932

CAUSE NO. 4727

DALE ROUSH, Individually and as § IN THE DISTRICT COURT OF

Trustee oftbe Dale Ronsb Assets §

Trust, §

Plaintiff, §

v. § SHERMAN COUNTY, TEXAS

§

METROPOLITAN LIFE §

INSURANCE COMPANY, and JOEL §

HART, §

Defendants_ § 69 TH JUDICIAL DISTRICT

ORDER GRANTING DEFENDANTS'

MOTIONS TO DISMISS FOR WANT OF PROSECUTION

TO THE HONORABLE COURT:

On this day came to be considered Defendant, Metropolitan Life Insurance Company's

Motion to Dismiss for Want of Prosecution and Defendant, Joel Hart's Motion to Dismiss for

Want of Prosecution.

The Court, having considered the motion, the clerk's record in this matter, any supporting

evidence received and the arguments of counsel, is of the opinion that the Motions to Dismiss for

Want of Prosecution filed by Defendants Metropolitan Life Insurance Company and Joel Hart

should be GRANTED. In support of this decision, the Court FINDS the following:

I. This lawsuit was filed on July 10, 2006.

2. The Court denied Defendants' motions for summary judgment by Order entered

May 23, 2012. Plaintiff has taken no action to prosecute his case since that date and until he

responded to MetLife's motion to dismiss for want of prosecution. Moreover, this case has been

dormant since the parties completed briefing on the motions for summary judgment in 2009.

3. On May 22, 2012, Plaintiffs counsel, John Huffaker advised that he was no

longer with the firm of Sprouse Shrader Smith, p.e. Sprouse Shrader Smith, p.e. filed a motion

to withdraw on October 3, 2012, and the order granting the same was signed on October 8, 2012.

ORDER GRANTING DEFENDANTS' FILED

MOTIONS TO DISMISS FOR WANT OR PROSECUTION GINA GRAY PAGE I

16416459,,2 COUNTY & DISTRICT CLERK

Filed 06/17/2016 11:23 19AM

56

SH:(~TY TEXAS

BY . 1O:J DEPUTY

Plaintiff did not seek new counsel until he retained (once again) the firm of Sprouse Shrader and

attorney Alex Yarbrough in May 2016.

4. This case has been pending for almost a decade. Plaintiff has failed to take any

action to prosecute this case since the Court entered the Order denying Defendants' motions for

summary judgment on May 23, 2012. Plaintiff has failed to obtain a trial date, failed to seek any

additional discovery, failed to obtain a scheduling order, failed (until just last month, May 2016)

to hire a new attorney, and has not filed any pleadings during that timefrarne whatsoever.

5. Plaintiff s delay in failing to bring this case to trial or final disposition IS

umeasonable and presumptively and conclusively demonstrates that Plaintiff has abandoned his

suit. The explanation and evidence offered by Plaintiff for the delay and lack of diligence is

insufficient to rebut this conclusive preswnption of abandonment.

6. In Defendant Joel Hart's Motion to Dismiss, Joel Hart has stipulated and agreed

to dismiss his counterclaims against the Plaintiff conditioned on the Court granting the Motions

to Dismiss for Want of Prosecution. The Court finds that any and all claims that have been

asserted or could have been asserted by JOEL HART against DALE ROUSH, Individually and

as Trustee of the Dale Roush Assets Trust are in all things dismissed for want of prosecution.

IT IS THEREFORE ORDERED that, Defendant Metropolitan Life Insurance

Company's Motion to Dismiss for Want of Prosecution is hereby GRANTED.

IT IS FURTHER ORDERED that Defendant Joel Hart's Motion to Dismiss for Want

of Prosecution is hereby GRANTED.

IT IS FURTHER ORDERED that all claims asserted by DALE ROUSH, Individually

and as Trustee of the Dale Roush Assets Trust, are hereby and in all things dismissed for want of

prosecution.

ORDER GRA'JTrNG DEFENDANTS'

MOTIONS TO DISMISS FOR WANT OR PROSECUTION PAGE 2

16416459V.2

57

IT IS FURTHER ORDERED that any cOlmterclaims and/or cross-claims filed by any

party are hereby dismissed for want of prosecution.

This is a Final Judgment dispositive of all claims, and is final and appealable.

Costs shall be borne by each party incurring the same.

Signed this 13'ftfay of June, 2016.

JUDGE PRESIDING

AGREED AS TO FORM:

Scott A. Wheatley

Counsel for Metropolitan

Alex Yarbrough

Counsel for Plaintiff

ORDER GRANTING DEFENDANTS'

MOTIONS TO DISMISS FOR WANT OR PROSECUTION PAGE]

16416459V.2

58

111111111111111111111111111 11111 111111111 II I1111111111111 11111 1111111111111 Filed 5/25/20165:00:17 PM

#·1015744 Gina Gray

Combination Clerk

Sherman County, Texas

Kelsie Daves

CAUSE NO. 4727

DALE ROUSH, Individually and as Trustee § 69TH JUDICIAL DISTRICT COURT

of The Dale Roush Assets Trust, §

§

Plaintiff, §

§

vs. § IN AND FOR

§

METROPOLITAN LIFE INSURANCE §

COMPANY and JOEL HART, §

§

Defendants. § SHERMAN COUNTY, TEXAS

PLAINTIFF'S RESPONSE

TO DEFENDANTS' MOTION TO DISMISS FOR WANT OF PROSECUTION

TO THE HONORABLE COURT:

Plaintiff, Dale Roush, individually and as Trustee of the Dale Roush Assets Trust, hereby

files his response to Defendants' Motion to Dismiss for Want of Prosecution as follows:

The purpose of the Texas Rules of Civil Procedure is to "obtain a just, fair, equitable and

impartial adjudication of the rights of litigants under established principles of substantive law"

TEX. R. CIV. P. I. Therefore, a "just resolution of a case" almost always "requires a trial on the

merits, rather than a dismissal" Valence Operating Co. v. Anadarko Petrol. Corp., 303 S.W.3d

435,444 (Tex. App.-Texarkana 2010) (citing Sw. Airlines Co. v. Jaeger, 867 S.W.2d 824, 836

(Tex. App.-El Paso 1993);Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 858 (Tex.

App.-Houston [1st Dist.] 1993».

A. INTRODUCTION

A trial court's authority to dismiss a case for want of prosecution arises from two sources,

(I) Texas Rule of Civil Procedure 165a and (2) the court's inherent power. VillarrealI'. San

Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Defendants move to dismiss the

present case because it has not been disposed of within the time standards set by the Texas

89

Supreme Court. Therefore, the focus of the following discussion will be why special

circumstances exist making it unreasonably difficult to adhere to the general time standards.

Also, the following will explain why there has been a delay and the reasonable excuses for delay.

According to the Texas Rules of Civil Procedure, "Any case not disposed of within time

standards promulgated by the Supreme Court under its Administrative Rules may be placed on a

dismissal docket." TEx. R. CIV. P. I 65A(2). A quick reading of Rule 6 of the Rules of Judicial

Administration shows that civil jury cases, such as the present one, should be brought to trial or

final disposition within eighteen months from the appearance date. See TEX. R. JUD. ADMIN.

6b(l). A closer examination of Rule 6 reveals subsection e, which is titled Complex Cases: "ft is

recognized that in especially complex cases or special circumstances it may not be possible to

adhere to these standards." Id. R. 6e. Therefore, the Supreme Court carved out an exception to

the general timetable that allows more time for complex cases or special circumstances. This

case is both complex and involves special circumstances.

The Texas Supreme Court acknowledges that the eighteen-month standard may not be

suitable for "especially complex cases" or where there are "special circumstances," but the court

never defines these terms. Instead, in exercising its discretion, the trial court is entitled to

consider the entire history of the case to determine whether a dismissal is merited. See

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex.

1984). Considering the entire history of the present case certainly incllides the Pantex Sales, Inc.

d/b/a Graphic Equipment and Supply Suit, the multiple substitutions of counsel, and the Tejas

Farms bankruptcy.

Page 2 0[5

90

B. FACTS

1. On October 8, 2012, this Court granted John Huffaker's Motion to Withdraw as

Counsel. From October 2012 until May 2016, Plaintiff was represented pro se. During this

timeframe, Plaintiff, Dale Roush, was involved in mUltiple car accidents and suffered a dramatic

fall that required hospitalization. See Exhibit A - Affidavit of Dale Roush, attached hereto and

incorporated herein. Specifically, on August 28, 2014, Plaintiff was involved in a car accident in

Taos, New Mexico. The accident in New Mexico necessitated many visits to a chiropractor. On

February 24, 2015, Plaintiff was involved in another car accident that exasperated his health

condition at the time. Finally, on April 21, 2015, Plaintiff suffered a dramatic fall in the kitchen

of his home. The fall and resulting injuries required Plaintiff to stay ten (10) days in the hospital,

of which nearly half was in the intensive care unit. Plaintiff broke his c4 vertebrae and suffered

severe nerve damage. Plaintiff also injured his shoulder in the fall. On April 26, 2016, Plaintiff

underwent surgery to correct the injury he sustained to his shoulder pursuant to the fall on or

about April 21, 2015.

The history of the present case includes, but is not limited to, all parties substituting

counsel multiple times, extensive discovery issues, multiple summary judgments, attempts at

consolidating multiple cases with similar parties, and the bankruptcy of Tejas Farms. The

present case is not a "normal" case; it is complex and involves special circumstances. An

example of the complexity of this case can be seen from Exhibit A attached to the Defendants'

Motion to Dismiss. Exhibit A attached to the Defendants' Motion to Dismiss is the Court's

order regarding outstanding motions for summary judgment. There were over seven (7)

submissions the Court had to consider. Furthermore, the Defendants' included a copy of the

Court's docket or "index." The Court's index is at least fourteen (14) pages long, which contains

the numerous issues surrounding this lawsuit.

Page 30/5

91

C. ARGUMENTS AND AUTHORITIES

7. The court should not dismiss Plaintiffs suit on the docket because there is good

cause to maintain it on the docket. TEX. R. Cry. P. 165a(1).

8. Good cause exists in that Plaintiff suffered from poor health during the time frame

Defendants allege constitutes delay, Plaintiff has obtained new counsel, and a trial setting of

December 5, 2016 has been requested. Defendants complain in the last paragraph of their

Motion to Dismiss that this case should be dismissed because "Plaintiff has not requested a trial

setting, let alone obtained new counsel." However, as of the date of this Response, Plaintiff has

obtained new counsel and requests this case be set for the COUlt's first available jury trial docket,

which is December 5, 2016.

D. CONCLUSION & PRAYER

WHEREFORE, Plaintiff asks that the Court deny Defendants' Motion to Dismiss for

Want of Prosecution, set this case for trial the week of December 5, 2016, and for such other and

further relief to which Plaintiff may be justly entitled.

Respectfully submitted,

SPROUSE SHRADER SMITH PLLC

John Massouh, Texas State Bar No. 24026866

John.massouh@sprouselaw.com

Alex Yarbrough, Texas State Bar No. 24079615

Alex.yarbrough@sprouselaw.com

701 S. Taylor, Suite 500

P. O. Box 15008

Amarillo, Texas 79105-5008

(806) 468-3300; (806) 373-3454 fax

/s/ Alex Yarbrough

Alex Yarbrough

ATTORNEYS FOR PLAINTIFF

Page 4 0/5

92

CERTIFICATE OF SERVICE

I hereby certify that on May 25, 2016, a true and correct copy of the foregoing was

served as follows:

Attorney for Metropolitan Life Insurance Company:

Scott A. Wheatley Via E-service

Jay K. Wieser

Jackson Walker. LLP

777 Main Street, Suite 2100

Fort Worth, TX 76102

Attorney for Joel Hart:

Lewis Coppedge Via E-service

Attorney at Law

101 SE 11th Street, Suite 301

Amarillo, TX 79101

lsi Alex Yarbrough

Alex Yarbrough

14251.05

930689_1

Page 5 0/5

93

CAUSE NO. 4727

DALE ROUSH, Individually and as Trustee § 69TH JUDICIAL DISTRICT COURT

of The Dale Roush Assets Trust, §

§

Plaintiff, §

§

vs. § IN AND FOR

§

METROPOLITAN LIFE INSURANCE §

COMPANY and JOEL HART, §

§

Defendants. § SHERMAN COUNTY, TEXAS

AFFIDAVIT OF DALE ROUSH

STATE OF TEXAS §

§

COUNTY OF :Po ±-t-d , §

BEFORE ME, the undersigned notary, on this day personally appeared Dale Roush, a

person whose identity is known to me. After I administered an oath to him, upon his oath, he

said:

I. My name is Dale Roush. I am capable of making this Affidavit. I have personal

knowledge of the facts stated in this Affidavit, and they are true and correct.

2. For the last few years, I have been in poor health.

3. On August 28, 2014, I was involved in a car accident in Taos, New Mexico. The

accident in New Mexico necessitated many visits to a chiropractor. On February 24,2015, I was

involved in another car accident that exasperated my health condition at the time. Finally, on

April 21, 2015, I suffered a dramatic fall in the kitchen of my home. The fall and resulting

injuries required me to stay ten (10) days in the hospital, of which nearly half was in the

intensive care unit. I broke my c4 vertebrae and suffered severe nerve dan1age. I also injured

94

my shoulder in the fall. On April 26, 2016, I underwent surgery to correct the injury I sustained

to my shoulder pursuant to the fallon or about April 21, 2015.

4. The rest of this page is intentionally left blank.

2

95

Dale Roush

SWORN TO AND SUBSCRIBED BEFORE ME on this ~'day of_-.!.rv\.~~()..j1.Jt!-_,

2016, by Dale Roush to certify which witness my hand and seal of office. \

Notary Public, State of Texas

14251.05

930599_1

m~

SHERIDA STONE

NOTARY PUBLIC,

STATE OF TEXAS

NOTARY ID #576859-1

My Commission Expires 04-11-2019

3

96

CASE NO: dcv4727

DALE ROUSH, DALE ROUSH ASSESTS TRUST § IN THE 69TH JUDICIAL

PLAINTlFF(S)

-vs- § DISTRICT COURT OF

METROPOLITAN LIFE INSURANCE, JOEL HART § SHERMAN COUNTY,

TEXAS

DEFENDANT(S)

INDEX

DATE

FILED

T DATET

ISSUED

DATE

SERVED

I DOCUMENT

TYPE

I FILED BY

IPLAINTIFF COMMENTS

07/1012006 ORIGINAL PETITION PLAINTIFF'S

11:31:30 ORIGINAL

AM PETlnON

07/13/2006 07/1312006 CITATION NON ISSUED BY SERVED ON MET

12:00:00 FAMILY GENERAL CLERK LIFE

AM BY CERTIFIED MAIL

07/1312006 07/1312006 CITATION NON ISSUED BY SERVED ON

12:00:00 FAMILY GENERAL CLERK METROPOLITAN

AM BY CERTIFIED MAIL LIFE INSURANCE

COMPANY

08/0712006 ANS1NERAND DEFENDANT DEFENDANT JOEL

10:43:30 COUNTER CLAIM HART'S ORIGINAL

AM ANS1NER, SPECIAL

EXCEPTIONS &

COUNTERCLAIM

09/0512006 ANS1NERAND DEFENDANT FAXED COPY OF

03:42:42 COUNTER CLAIM ORIGINAL ANS1NER

PM AND CROSS-CLAIM

OF METROPOLITAN

LIFE INSURANCE

COMPANY

09/0612006 ANS1NERAND DEFENDANTS ORIGINAL ANS1NER

11:14:20 COUNTER CLAIM AND CROSS-CLAIM

AM OF METROPOLITAN

LIFE INSURANCE

COMPANY

10/17/2006 OTHER PLAINTIFF CERTIFICATE OF

10:47:47 DISCOVERY

AM

1112812006 RULE 11 DEFENDANT LETTER FROM

01:50:00 AGREEMENT DAVID LEBAS TO

PM JOHN HUFFAKER

RE:AGREEMENT AS

70

DATE

FILED

DATE I DATE I DOCUMENT I

IISSUED SERVED TYPE

FILEDBY I COMMENTS

ATTORNEY OF

RECORD AND

RULE 11 LETTER

EXTENDING

METLlFE'S

DISCOVERY

RESPONSE

DEADLINE TO

DECEMBER 14,

2006

12107/2006 AMENDED ANSWER DEFENDANT DEFENDANT JOEL

11:04:00 HARl'S FIRST

AM AMENDED

ANSWER, SPECIAL

EXCEPTIONS, &

COUNTERCLAIM

0211212007 NOTICE DEFENDANT NOTICE OF

11:22:00 APPEARANCE OF

AM CO-COUNSEL FOR

METROPOLITAN

LIFE INSURANCE

COMPANY

11/1312007 MOTION TO DEFENDANT MOTION FOR

08:59:41 WITHDRAW WITHDRAWAL AND

AM SUBSTITUTION OF

COUNSEL

01/1512008 OBJECTION DEFENDANT DEFENDANTS'

12:56:28 OBJECTION TO

PM NOTICE OF ORAL

DEPOSITION OF

BILLY JOYCE HART

01/1612008 OBJECTION DEFENDANT DEFENDANTS'

03:09:47 OBJECTION TO

PM NOTICE OF ORAL

DEPOSITION OF

JOEL HART

01/2312008 ORDER DISTRICT ORDER GRANTING

12:00:00 APPOINTING JUDGE MOTION FOR

PM ATTORNEY WITHDRAWAL AND

SUBSTITUTING

COUNSEL

0212212008 NOTICE OF DEFENDANT NOTICE OF

10:53:31 HEARING HEARING ON

AM MOTION COMPEL

03/07/2008 MOTION TO PLAINTIFF MOTION TO

09:32:46 COMPEL COMPEL THE

AM DEPOSITION OF

BILLY JOYCE HART

AND BRIEF IN

SUPPORT

03/1012008 RESPONSE DEFENDANT DEFENDANTS

04:06:00 RESPONSE TO

PM MOTION TO

71

DATE

FILED

I DATE

ISSUED

IDATE

SERVED

I DOCUMENT

TYPE

I FILED BY

I COMMENTS

COMPEL

0311012008 RESPONSE DEFENDANT DEFENDANT

04:05:00 METROPOLITAN

PM LIFE INSURANCE

COMPANY'S

RESPONSE IN

OPPOSITION TO

DEFENDANT JOEL

HART'S MOTION TO

CONSOLIDATE OR

ABATE

03/1112008 RESPONSE PLAINTIFF FAXED COPY-

10:55:00 PLAINTIFF DALE

AM ROUSH'S

RESPONSE IN

OPPOSITION TO

DEFENDANT JOEL

HART'S MOTION TO

CONSOLIDATE OR

ABATE

0311212008 RESPONSE PlAINTIFF ORIGINAl-

02:02:34 PLAINTIFF DALE

PM ROUSH'S

RESPONSE IN

OPPOSITION TO

DEFENDANT JOEL

HART'S MOTION TO

CONSOLIDATE OR

ABATE

0911812008 COURT SHORTHAND REPORTER'S

10:27:00 REPORTERS REPORTER CERTIFICATION

AM CERTIFICATE DEPOSITION OF

DALE PHilLIP

ROUSH AUGUST 5,

2008

10/15/2008 CORRESPONDENCE DISTRICT lETTER FROM

09:19:00 JUDGE JUDGE ENNS TO

AM ATIORNEY'S RE:

JURY TRIAL

CONFIRMATION

01/1512009 MOTION FOR DEFENDANT METROPOLITAN

11:48:00 SUMMARY LIFE INSURANCE

AM JUDGMENT COMPANY'S

MOTION FOR

SUMMARY

JUDGMENT AND

NO EVIDENCE

MOTION FOR

SUMMARY

JUDGMENT ON

PLAINTIFF DALE

ROUSH'S CLAIM

72

DATE

FILED

T DATE

ISSUED

TSERVED

DATE T DOCUMENT

TYPE

I FILED BY I COMMENTS

FOR CONVERSION

OF PERSONAL

PROPERTY

01/15/2009 MOTION FOR DEFENDANT METROPOLITAN

11:47:00 SUMMARY LIFE INSURANCE

AM JUDGMENT COMPANY'S

MOTION FOR

SUMMARY

JUDGMENT ON

PLAINTIFF DALE

ROUSH'S CLAIM

FOR CONVERSION

OF REAL

PROPERTY

0112012009 MOTION TO DEFENDANT DEFENDANT JOEL

10:37:00 CONSOLIDATE HARrS RENEWED

AM MOTION TO

CONSOLIDATE

0112012009 NOTICE DEFENDANT NOTICE OF

10:38:00 SUBMISSION FOR

AM METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTIONS FOR

SUMMARY

JUDGMENT

0211012009 NOTICE TO RULE DISTRICT NOTICE OF INTENT

11:23:00 WITHOUT HEARING JUDGE TO RULE WITHOUT

AM HEARING

0211112009 MOTION FOR PLAINTIFF (FAXED COPY)

08:50:00 CONTINUANCE PLAINTIFPS

AM MOTION TO

CONTINU,E

0211112009 MOTION FOR PLAINTIFF ORIGINAL-

11:02:00 CONTINUANCE PLAINTIFF'S

AM MOTION FOR

CONTINUANCE

AND PROPOSED

ORDER

0211112009 ORDER SETTING DISTRICT ORDER SETTING

11:02:00 HEARING JUDGE HEARING DATE

AM

0212312009 AMENDED PETITION PLAINTIFF PLAINTIFF'S FIRST

04:58:00 AMENDED

PM PETITION

0212312009 RESPONSE PLAINTIFF RESPONSE OF

05:00:00 DALE ROUSH TO

PM ''METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION FOR

SUMMARY

JUDGMENT AND

73

DATE DATE I DATE T DOCUMENT

TISSUED

FILED SERVED TYPE I FILED BY

I COMMENTS

NO-EVIDENCE

MOTION FOR

SUMMARY

JUDGMENT ON

PLAINTIFF DALE

ROUSH'S CLAIM

FOR CONVERSION

OF PERSONAL

PROPERTY"

0212412009 RESPONSE PLAINTIFF RESPONSE OF

12:04:00 DALE ROUSH TO

PM "METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION FOR

SUMMARY

JUDGMENT ON

PLAINTIFF DALE

ROUSH'S CLAIM

FOR CONVERSION

OF REAL .

PROPERTY"

0212512009 MOTION TO STRIKE DEFENDANT FAXED COPY-

08:42:00 DEFENDANT

AM METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

PLAINTIFPS

AMENDED

PETITION

0212612009 MOTION TO STRIKE DEFENDANT ORIGINAL-

11:00:00 DEFENDANT

AM METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

PLAINTIFPS

AMENDED

PETITION

0212712009 RESPONSE PLAINTIFF RESPONSE OF

11:00:00 DALE ROUSH TO

AM METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

PLEADINGS

ALTERNATIVE·

MOTION FOR

LEAVE TO FILE

AMENDED

PLEADING

03/0212009 RESPONSE DEFENDANTS METROPOLITAN

10:14:00 LIFE INSURANCE

74

DATE

FILED

DATE

ISSUED

TDATE

SERVED

T DOCUMENT

TYPE

I FILEDBY I COMMENTS

AM COMPANY'S REPLY

BRIEF IN SUPPORT

OF ITS MOTION

FOR SUMMARY

JUDGMENT ON

CONVERSION OF

PERSONAL

PROPERTY CLAIM

03(0212009 MOTION TO STRIKE DEFENDANT DEFENDANT

10:15:00 METROPOLITAN

AM LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

AFFIDAVIT OF

DALE ROUSH

03(0212009 ORDER PLAINTIFF ORDER GRANTING

10:15:00 DEFENDANT

AM METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

AFFIDAVIT OF

DALE ROUSH

03(0212009 MOTION TO STRIKE DEFENDANT METROPOLITAN

10:15:00 LIFE INSURANCE

AM COMPANY'S

MOTION TO STRIKE

AND OBJECTIONS

TO EVIDENCE

OFFERED BY

PLAINTIFF IN

RESPONSE TO

SUMMARY

JUDGMENT

MOTION ON

CONVERSION OF

PERSONAL

PROPERTY

03(0212009 ORDER FOR DISTRICT

12:09:00 CONTINUANCE JUDGE

PM

0310612009 2009-02-19 SUBPOENA ISSUED BY SUBPOENA TO

02:10:00 17:39:00.0 DEFENDANTS BENNY GARCIA

PM ATTORNEY

03(0612009 2009-02-23 SUBPOENA ISSUED BY SUBPOENA TO

02:10:00 11:29:00.0 DEFENDANTS BEVERLY MAHAN

PM ATTORNEY

03(0612009 NOTICE DEFENDANT NOTICE OF

02:03:00 SUBMISSION

PM

03(1012009 RESPONSE PLAINTIFF RESPONSE OF

08:03:00 DALE ROUSH TO

AM METROPOLITAN

75

DATE DATE I DATE I DOCUMENT I

IISSUED FILED BY I COMMENTS

FILED SERVED TYPE

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE·

AND OBJECTIONS

TO EVIDENCE

OFFE~EDBY

PLAINTIFF IN

RESPONSE TO

SUMMARY

JUDGMENT

MOTION ON

CONVERSION OF

PERSONAL

PROPERTY AND

MOTION TO

SUPPLEMENT THE

SUMMARY

JUDGMENT

RECORD

03/10/2009 DEFENDANTS DEFENDANT DEFENDANT

02:01:00 RESPONSE METROPOLITAN

PM LIFE INSURANCE

COMPANY'S

RESPONSE IN

OPPOSITION TO

DEFENDANT JOEL

HART'S RENEWED

MOTION TO

CONSOLIDATE

0311012009 PLAINTIFFS PLAINTIFF RESPONSE OF

02:01:00 RESPONSE DALE ROUSH TO

PM "METROPOLITAN

LIFE INSURANCE

COMPANY'S

MOTION TO STRIKE

AND OBJECTIONS

TO EVIDENCE

OFFERED BY

PLAINTIFF IN

RESPONSE TO

SUMMARY

JUDGMENT

MOTION ON

CONVERSION OF

REAL PROPERTY

AND MOTION TO

SUPPLEMENT THE

SUMMARY

JUDGMENT

RECORD

0311012009 PLAINTIFFS PLAINTIFF PLAINTIFPS

02:02:00 RESPONSE RESPONSE TO

PM "DEFENDANT

METROPOLITAN

76

10:32:00

AM

10:03:00 METROPOLITAN

AM LIFE INSURANCE

COMPANY'S FIRST

AMENDED

ANSWER, SPECIAL

EXCEPTIONS, AND

01:04:00 REPORTERS

PM CERTIFICATE

11:08:17 HART'S ORIGINAL

AM ANSWER TO

CROSS·CLAIM OF

METROPOLITAN

LIFE INSURANCE

11:09:00 HART'S THIRD

AM AMENDED

ANSWER, SPECIAL

EXCEPTIONS, &

BANKRUPTCY

11:05:01 SUMMARY HART'S MOTION

AM JUDGMENT FOR SUMMARY

JUDGMENT

AGAINST

DEFENDANT

METROPOLITAN

LIFE INSURANCE

77

DATE I DATE T DOCUMENT TFILED BY

TSERVED

FILED

AM

DATE

ISSUED TYPE

JUDGMENT

I COMMENTS

FOR SUMMARY

JUDGMENT

AGAINST

PLAINTIFF DALE

ROUSH

0312612009 MOTION FOR DEFENDANT METROPOLITAN

11:33:00 SUMMARY LIFE INSURANCE

AM JUDGMENT COMPANY'S

AMENDED

CONDITIONAL

MOTION FOR

SUMMARY

JUDGEMNTON

PLAINTIFF'S

CLAIMS OF

WRONGFUL

FORECLOSURE

AND MONEY HAD

AND RECEIVED

AND NO-EVIDENCE

MOTION FOR

SUMMARY

JUDGMENT

03/3012009 NOTICE DISSTRICT NOTICE OF INTENT

09:15:00 JUDGE TO RULE WITHOUT

AM HEARING

03/3012009 NOTICE DEFENDANT NOTICE OF

10:48:00 SUBMISSION

AM

04/0312009 COURT ANGIE REPORTER'S

12:07:57 REPORTERS WEAVER CERTIFICATION .

PM CERTIFICATE ORAL DEPOSITION

OF BENNIE GARCIA

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Caution

As of: March 23, 2018 4:58 PM Z

City of San Benito v. Rio Grande Valley Gas Co.

Supreme Court of Texas

January 8, 2003, Argued ; June 26, 2003, Delivered

NO. 02-0038

Reporter

109 S.W.3d 750 *; 2003 Tex. LEXIS 91 **; 46 Tex. Sup. J. 861

requests to opt out of the class. The court of appeals

CITY OF SAN BENITO, ET AL., PETITIONERS v. RIO

denied relief from the approval of the settlement. The

GRANDE VALLEY GAS COMPANY, AND SOUTHERN

cities petitioned for review. The court held that the trial

UNION COMPANY D/B/A SOUTHERN UNION GAS

court abused its discretion in refusing the six cities' opt-

COMPANY, RESPONDENTS

out requests, which their attorney had implied authority

to make without formal action in an open meeting. The

Prior History: [**1] ON PETITION FOR REVIEW

court held that the six cities were not were not required

FROM THE COURT OF APPEALS FOR THE

to intervene in order to appeal their objections to the

THIRTEENTH DISTRICT OF TEXAS.

settlement. Because the six cities filed requests to opt

out and objections to settlement, those unnamed class

City of San Benito v. Rio Grande Valley Gas Co. (In re

members' complaints were preserved for review by the

City of San Benito), 63 S.W.3d 19, 2001 Tex. App.

court of appeals and they were parties for purposes of

LEXIS 6120 (Tex. App. Corpus Christi, 2001)

appeal. The court held that the cities did not waive their

Disposition: Reversed and rendered in part; affirmed in complaints by failing to request an extraordinary writ.

part. The court did not consider the complaints of a seventh

city, which did not request to opt out or object to the

settlement, because they were not properly before the

Core Terms court of appeals.

cities, settlement, class member, requests, trial court,

Outcome

unnamed, opt-out, court of appeals, opt out, gas

The court reversed the court of appeals' judgment as to

company, class action, parties, mandamus relief, open

the six cities that successfully opted out of the class and

meeting, intervene, notice, purposes, mandamus, opted,

rendered judgment that they were not members of the

class settlement, municipalities, government body, final

class action. The court affirmed the judgment as to the

judgment, franchise fee, contracts, objected, nonsuit

city who did not successfully opt out of the class or

object to the settlement with the gas companies.

Case Summary

LexisNexis® Headnotes

Procedural Posture

Petitioner cities sought review of the decision of the

Court of Appeals for the Thirteenth District of Texas,

which denied them appellate relief from a judgment

approving a class settlement between the class of cities

Civil Procedure > ... > Class Actions > Class

and respondent gas companies on the ground that the

Members > Absent Members

cities failed to intervene in the trial court.

Governments > Legislation > Statute of

Overview

Limitations > General Overview

A class action was brought on behalf of the seven cities

to recover franchise fees from the gas companies. Six of Civil Procedure > ... > Subject Matter

the cities filed a motion objecting to the proposed class Jurisdiction > Jurisdiction Over Actions > General

settlement and requesting reconsideration of their Overview

Nicole Mitchell

Page 2 of 8

109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

Civil Procedure > Parties > Capacity of HN2[ ] Parties, Capacity of Parties

Parties > General Overview

Under Texas jurisprudence, an appeal can generally

Civil Procedure > Parties > Intervention > General only be brought by a named party to the suit. However,

Overview the doctrine of virtual representation is an exception to

the general rule. Appellant is a deemed a party under

Civil Procedure > Special Proceedings > Class virtual representation when (1) it is bound by the

Actions > General Overview judgment; (2) its privity of estate, title, or interest

appears from the record; and (3) there is an identity of

Civil Procedure > ... > Class Actions > Class interest between the appellant and a party to the

Members > General Overview judgment. Unnamed class members are deemed to be

parties under this doctrine. The Texas virtual

Civil Procedure > Special Proceedings > Class representation doctrine is, thus, quite similar to the

Actions > Compromise & Settlement United States Supreme Court's. The most important

consideration is whether the appellant is bound by the

Civil Procedure > Appeals > Reviewability of Lower judgment. When a non-party is allowed to challenge a

Court Decisions > General Overview judgment, the decision to allow him the right to appeal is

grounded on the fact that, because of the doctrine of

HN1[ ] Class Members, Absent Members

representation, he is bound by the judgment.

Texas follows the Supreme Court decision that

unnamed class members are not required to intervene

in order to appeal a trial court's judgment approving a Civil Procedure > Remedies > Writs > General

class settlement. An unnamed class member's failure to Overview

intervene does not implicate standing. Rather, the real

issue is whether or not the class member is a "party" for Criminal Law & Procedure > Criminal

purposes of appeal. The right to appeal is not restricted Offenses > Weapons Offenses > General Overview

to a case's named parties. The label "party" does not

indicate an absolute characteristic, but rather a Civil Procedure > Appeals > Reviewability of Lower

conclusion about the applicability of various procedural Court Decisions > General Overview

rules that may differ based on context. Thus, the

procedural rules governing class actions sometimes HN3[ ] Remedies, Writs

require unnamed parties to be treated as parties or

The Supreme Court of Texas sees no reason why an

nonparties in order to ease the administration of class

unnamed class member should be allowed to seek a

litigation. Unnamed class members are treated as

restricted appeal but not prosecute an ordinary appeal.

parties for statute of limitations purposes but as

Writ of error affords a review of the same scope as an

nonparties for diversity purposes. However, the most

appeal. The supreme court disapproves of the holding

important consideration is that the unnamed class

to the contrary in San Juan 1990-A, L.P. v. Meridian Oil

members will be bound by the class settlement. It is this

Inc., 951 S.W.2d 159, 163 (Tex. App.-Houston 14th

feature of class action litigation that requires that class

Dist. 1997).

members be allowed to appeal the approval of a

settlement when they have objected at the fairness

hearing. To hold otherwise would deprive nonnamed

class members of the power to preserve their own Civil Procedure > Appeals > Reviewability of Lower

interests in a settlement that will ultimately bind them, Court Decisions > Preservation for Review

despite their expressed objections before the trial court.

Energy & Utilities Law > Administrative

Proceedings > General Overview

Civil Procedure > Parties > Capacity of

HN4[ ] Reviewability of Lower Court Decisions,

Parties > General Overview

Preservation for Review

Civil Procedure > Appeals > Reviewability of Lower

To preserve a complaint for appellate review, a party

Court Decisions > General Overview

Nicole Mitchell

Page 3 of 8

109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

must complain in the trial court. Tex. R. App. P. Filing a request for an extraordinary writ is not a

33.1(a)(1)(A). prerequisite to an appeal.

Civil Procedure > ... > Class Actions > Class Civil Procedure > Appeals > Standards of

Members > Absent Members Review > Abuse of Discretion

Civil Procedure > Special Proceedings > Class HN8[ ] Standards of Review, Abuse of Discretion

Actions > General Overview

The test for abuse of discretion is whether the court

Civil Procedure > ... > Class Actions > Class acted without reference to any guiding rules and

Members > General Overview principles or, stated another way, whether its decision

was arbitrary or unreasonable.

Civil Procedure > Special Proceedings > Class

Actions > Notice of Class Action

Administrative Law > Governmental

Civil Procedure > ... > Notice of Class

Information > Public Information > Sunshine

Action > Content of Notice > Opt Out Provisions

Legislation

Civil Procedure > Appeals > Reviewability of Lower

Governments > Local Governments > Duties &

Court Decisions > Preservation for Review

Powers

HN5[ ] Class Members, Absent Members

Administrative Law > Governmental

A class member who wishes to opt out should not be Information > Public Information > General

forced to take the inconsistent action of becoming a Overview

formal member of the class in order to preserve a right

HN9[ ] Public Information, Sunshine Legislation

to appellate review. Requiring a timely request to opt out

is sufficient notice to the trial court to preserve a

The Open Meetings Act requires that every regular,

complaint for appellate review. Unnamed class

special, or called meeting of a governmental body shall

members whose requests to opt out of a class action

be open to the public, except as provided by this

are denied should also be considered parties on appeal.

chapter. Tex. Gov't Code Ann. § 551.002. It defines

"meeting" as a deliberation between a quorum of a

governmental body, or between a quorum of a

Civil Procedure > Special Proceedings > Class governmental body and another person, during which

Actions > General Overview public business or public policy over which the

governmental body has supervision or control is

Civil Procedure > Appeals > Appellate discussed or considered or during which the

Jurisdiction > Interlocutory Orders governmental body takes formal action. Tex. Gov't Code

Ann. § 551.001(4)(A). Cities can express and bind

HN6[ ] Special Proceedings, Class Actions themselves only by way of a duly assembled meeting. A

city's governing body may not delegate the right to make

There is no interlocutory appeal from an order denying a decisions affecting the transaction of city business.

party the right to opt out of a class. Tex. Civ. Prac. & However, cities may delegate to others the right to

Rem. Code Ann. § 51.014. perform acts and duties necessary to the transaction of

the city's business, but can do so only by resolution or

ordinance, by a majority vote.

Civil Procedure > Remedies > Writs > General

Overview

Civil Procedure > ... > Pretrial

HN7[ ] Remedies, Writs Judgments > Nonsuits > General Overview

Nicole Mitchell

Page 4 of 8

109 S.W.3d 750, *750; 2003 Tex. LEXIS 91, **1

Business & Corporate Law > Agency conclude that an unnamed class member is not required

Relationships > Authority to Act > General Overview to intervene in order to appeal its objections to a class

settlement or its opt-out requests. Thus, the cities are

Civil Procedure > Special Proceedings > Class parties for purposes of this appeal. We further conclude

Actions > General Overview that the cities could authorize their attorneys to opt out

of the litigation without formal action in an open meeting.

Civil Procedure > ... > Notice of Class Accordingly, we reverse the court of appeals' judgment

Action > Content of Notice > Opt Out Provisions and render judgment that six cities successfully opted

out of the class and one did not. Because these issues

Civil Procedure > Special Proceedings > Class are dispositive, we do not reach the remaining issue of

Actions > Voluntary Dismissals whether the settlement was fair.

Civil Procedure > Dismissal > Voluntary I

Dismissals > General Overview

The cities of Mercedes and Weslaco are the named

HN10[ ] Pretrial Judgments, Nonsuits class representatives in a class [*753] action for

franchise fees against Rio Grande Valley Gas Company

Texas courts hold that an attorney has implied authority and its successor in interest, Southern Union Gas

to nonsuit a client's claim when the nonsuit does not Company (hereinafter collectively referred to as "the gas

affect a substantial right or bar the bringing of another companies"). The trial court defined the class as follows:

suit based on the same cause of action. Just as a

nonsuit terminates litigation between the plaintiff and the All Texas municipal corporations, municipalities, cities,

nonsuited defendant, opting out of a class action has towns, or villages (hereinafter referred to as

the effect of terminating the particular litigation as to that "municipalities"), excluding the cities of Edinburg and

class plaintiff. Opting out does not, of itself, cause a loss McAllen, that have, or have had, existing or expired

of any substantial rights, as the party can bring its own municipal franchise fee ordinances [**3] or agreements

suit on the same cause of action. with Rio Grande Valley Gas Company or Southern

Union Gas Company (hereinafter referred to collectively

Judges: CHIEF JUSTICE PHILLIPS delivered the as the "LDC") and where the municipalities were entitled

opinion of the Court. JUSTICE ENOCH did not to a franchise fee or payment based on a percentage of

participate. the LDC's gross income derived from natural gas sales,

and where there has not been the execution of any

Opinion by: Thomas R. Phillips effective releases of the entire claims alleged in this

litigation.

Opinion The trial court authorized class notices to the 80 cities

that fell within this definition on June 24, 1996, providing

an opt-out deadline of August 1, 1996, barely five weeks

[*752] This class action was brought on behalf of an later.

alleged class of eighty south Texas cities for recovery of

franchise fees allegedly owed to them. A number of Before receiving notice, the cities of San Benito,

Texas cities, including the petitioners herein, tried to opt Palmview, Alton, La Villa, Port Isabel, and Edcouch

out of the class. Some were successful, but the trial (hereinafter "the six cities") each contracted with Texas

court denied the requests of the seven cities petitioning Municipal Technical Consultants, Inc. ("TMTCI") to

here and signed a final judgment approving settlement. determine if franchise fees were owed by the gas

We must decide whether an unnamed class member companies. Under these contracts, TMTCI had authority

must intervene in the trial court in order to appeal its to "audit[] and make[] a determination that uncollected

overruled objections to a class settlement and whether a compensation is due and owing to cities" and to "employ

city must hold an open meeting to authorize its attorney legal counsel of its choice . . . to represent cities in

to opt out of a class action. The court of appeals denied enforcing any claim through necessary litigation."

appellate relief because the cities failed to intervene in TMTCI hired Ramon Garcia of Edinburg to represent

the trial court and also denied mandamus relief because each of the cities. [**4] After the cities received the

the trial court did not abuse its discretion in refusing the class notice, Garcia filed opt- out notices on their behalf

cities' requests to opt [**2] out. 63 S.W.3d 19. We before the August opt-out deadline.

Nicole Mitchell

Page 5 of 8

109 S.W.3d 750, *753; 2003 Tex. LEXIS 91, **4

After the August deadline, the cities of San Benito, jurisdiction to hear this appeal. The court below held

Alton, Palmview, and La Villa ratified attorney Garcia's that because the cities failed to intervene formally in the

actions in open meetings. The cities of Edcouch and trial court, they lacked standing to appeal the trial court's

Port Isabel never ratified the opt-out requests in an open judgment. 63 S.W.3d at 24-25. Thus, it dismissed the

meeting. After a hearing some months later, the trial case for lack of subject matter jurisdiction. Id. After the

court ruled that none of the petitioner cities had properly court of appeals' decision was issued, the United States

opted out. Supreme Court held in Devlin v. Scardelletti, 536 U.S. 1,

153 L. Ed. 2d 27, 122 S. Ct. 2005 (2002), that HN1[ ]

On December 14, 2000, class counsel sent notice of a unnamed class members are not required to intervene

proposed class settlement, providing that the class in order to appeal a trial court's judgment approving a

members could file written objections to the settlement class settlement. We follow the Supreme Court's

by January 31, 2001. The six cities filed a joint motion decision in Devlin.

objecting to the settlement and a joint motion to

reconsider their opt-out requests. The trial court held a In Devlin, an unnamed class member objected to the

settlement fairness hearing after which it approved the class settlement at the fairness hearing, but did not

class settlement and rendered final judgment. successfully [**7] intervene in the proceedings. Id. at 8-

9. The Supreme Court held that an unnamed class

Class counsel filed a motion to withdraw as counsel for member's failure to intervene does not implicate

the city of Pharr, stating at the hearing on the opt-out standing. Id. at 6. Rather, it concluded that the real

requests that Pharr had hired Ramon Garcia to issue is whether or not the class member is a "party" for

represent its interests. However, nothing in the record purposes of appeal. Id. at 7.

reflects that Pharr filed an opt-out notice at any time or

raised any objection [**5] to the settlement. The Supreme Court observed that the right to appeal is

not restricted to a case's named parties. Id. at 12 (citing

All seven cities appealed to the court of appeals and Blossom v. Milwaukee & Chicago R.R., 68 U.S. 655, 17

sought mandamus relief from both the court of appeals L. Ed. 673 (1864); Hinckley v. Gilman, Clinton, &

and this Court. 1 [*754] We dismissed the petition for Springfield R.R., 94 U.S. 467, 24 L. Ed. 166 (1877);

writ of mandamus. The court of appeals considered both United States Catholic Conference v. Abortion Rights

the appeal and mandamus in a consolidated opinion. Mobilization, Inc., 487 U.S. 72, 76, 101 L. Ed. 2d 69,

108 S. Ct. 2268 (1988)). The "label 'party' does not

The court of appeals dismissed the appeal for want of

indicate an absolute characteristic, but rather a

jurisdiction, 63 S.W.3d at 24-25, [**6] and also denied

conclusion about the applicability of various procedural

mandamus relief. Id. at 30-31. It held that the trial court

rules that may differ based on context." Id. at 10. Thus,

did not abuse its discretion in refusing the opt-out

the procedural rules governing class actions sometimes

requests, because the requests of the six cities had not

require unnamed parties to be treated as parties or

previously been authorized in an open meeting, the

nonparties in order to ease the administration of class

subsequent ratifications were ineffective, and the city of

litigation. The Court listed as an example [**8] the

Pharr had made no attempt to opt out. Id.

treatment of unnamed class members as parties for

II statute of limitations purposes but as nonparties for

diversity purposes. Id. However, the most important

We must first decide if the court of appeals had consideration was that the unnamed class members

would be bound by the class settlement. Id. Thus, noted

the Court:

1 Additionally, the cities of Alamo, LaJoya, Primera, Santa

Rosa, San Juan, Penitas, and Elsa joined the petitions for writ it is this feature of class action litigation that requires

of mandamus and the appeal to the court of appeals. The city that class members be allowed to appeal the approval

of Elsa did not join the petition for review to this Court. Rio of a settlement when they have objected at the fairness

Grande moved to dismiss the petitions of Alamo, LaJoya, hearing. To hold otherwise would deprive nonnamed

Primera, and Santa Rosa because they accepted the benefits class members of the power to preserve their own

of the trial court's judgment, of Donna and San Juan because interests in a settlement that will ultimately bind them,

the court of appeals' judgment gives these cities the relief they despite their expressed objections before the trial court.

requested, and of Penitas because it is not a member of the

class. The cities did not oppose this motion; therefore, we Id. The unnamed class member in Devlin was a "party"

granted Rio Grande's motion to dismiss these petitions.

Nicole Mitchell

Page 6 of 8

109 S.W.3d 750, *754; 2003 Tex. LEXIS 91, **8

for purposes of the appeal. certification of the class prior to final judgment approving

a settlement, the gas companies agree that intervention

HN2[ ] Under Texas jurisprudence, an appeal can should not be required for a settlement class. However,

generally only be brought by a named party to the suit. in a non-settlement class, unnamed parties have an

Motor Vehicle Bd. of the Tex. Dep't of Transp. v. El opportunity to intervene, they point out. Why should

Paso Indep. Auto. Dealers Ass'n, 1 S.W.3d 108, 110, 42 unnamed class members be allowed to wait until the

Tex. Sup. Ct. J. 1128 (Tex. 1999). However, the eve of settlement before voicing objections?

doctrine of [*755] virtual representation is an exception

to the general rule. Id. (citing Gunn v. Cavanaugh, 391 We do not find this distinction dispositive. It is not "laying

S.W.2d 723, 725, 8 Tex. Sup. Ct. J. 442 (Tex. 1965)). behind the log" to wait to object until the fairness

An appellant is a deemed party under [**9] virtual hearing. The very purpose of settlement notice to class

representation when: "(1) it is bound by the judgment; members is to allow each of them to determine whether

(2) its privity of estate, title, or interest appears from the to object at the fairness hearing. See Gen. Motors Corp.

record; and (3) there is an identity of interest between v. Bloyed, 916 S.W.2d 949, 958, 39 Tex. Sup. Ct. J. 258

the appellant and a party to the judgment." Id. We have (Tex. 1995). [**11] Requiring intervention prior to the

deemed unnamed class members to be parties under settlement fairness hearing creates more work for all

this doctrine. See Robertson v. Blackwell Zinc Co., 390 involved with no corresponding benefit. See Devlin, 536

S.W.2d 472, 472, 8 Tex. Sup. Ct. J. 385 (Tex. 1965). 2 U.S. at 14 ("As such determinations still would most

Our virtual representation doctrine is thus quite similar likely lead to an appeal, such a requirement would only

to the United States Supreme Court's rule in Devlin. We add an additional layer of complexity before the appeal

agree with the Court's analysis that the most important of the settlement approval may finally be heard."). As

consideration is whether the appellant is bound by the one commentator has observed, intervention produces

judgment. See Grohn v. Marquardt, 487 S.W.2d 214, more work for the district court (a formal motion in

217 (Tex. Civ. App.-San Antonio 1972, writ ref'd n.r.e.) addition to the settlement hearing), no savings of time

("When a non-party is allowed to challenge a judgment, for the appellate court (in both cases it has conducted

the decision to allow him the right to appeal is grounded an appeal), and results in no review of the much more

on the fact that, because of the doctrine of basic issue (the fairness and reasonableness of the

representation, he is bound by the judgment."). Because settlement) by either court." [*756] Timothy A. Duffy,

the unnamed class members here would be bound to Comment, The Appealability of Class Action

the judgment approving the settlement, they should be Settlements by Unnamed Parties, 60 U. Chi. L. Rev.

considered "parties" for purposes of appeal. 933, 954 (1993).

[**10] The gas companies attempt to distinguish Devlin The gas companies further argue that class actions will

on the basis that the cities here were certified as a class become unmanageable and unproductive if each

prior to settlement, whereas Devlin involved a member can individually appeal a judgment without first

settlement class. See Northrup v. Southwestern Bell intervening in the action. We are not persuaded. HN4[

Tel. Co., 72 S.W.3d 1, 10 (Tex. App.-Corpus Christi ] To preserve a complaint for appellate review, a party

2001, pet. denied) (stating that "imposition of the must complain in the trial court. See TEX. R. APP.

intervention requirement is appropriate in non- [**12] P. 33.1(a)(1)(A). This requirement will

settlement class actions"). Because unnamed class significantly reduce the number of appeals by unnamed

members do not have the opportunity to challenge the class members. Devlin, 536 U.S. at 19. "As the

longstanding practice of allowing nonnamed class

members to object at the fairness hearing

demonstrates, the burden of considering the claims of

2 Although Robertson was a writ of error proceeding, now this subset of class members is not onerous." Id. Thus,

called a restricted appeal under Texas Rule of Appellate class actions will not become unmanageable if

Procedure 30, HN3[ ] we see no reason why an unnamed unnamed class members are allowed to appeal without

class member should be allowed to seek a restricted appeal prior intervention.

but not prosecute an ordinary appeal. Gunn v. Cavanaugh,

391 S.W.2d 723, 724, 8 Tex. Sup. Ct. J. 442 (Tex. 1965) ("Writ Finally, HN5[ ] a class member who wishes to opt out

of error affords a review of the same scope as an appeal."). should not be forced to take the inconsistent action of

We therefore disapprove of the holding to the contrary in San becoming a formal member of the class in order to

Juan 1990-A, L.P. v. Meridian Oil Inc., 951 S.W.2d 159, 163 preserve a right to appellate review. Requiring a timely

(Tex. App.-Houston [14th Dist.] 1997, pet. denied).

Nicole Mitchell

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109 S.W.3d 750, *756; 2003 Tex. LEXIS 91, **12

request to opt out is sufficient notice to the trial court to [*757] Although the court of appeals dismissed the

preserve a complaint for appellate review. Unnamed appeal for want of jurisdiction and considered the

class members whose requests to opt out of a class validity of the opt-out requests in connection with the

action are denied should also be considered parties on petition for writ of mandamus below, we will consider the

appeal. latter issue here as part of this appeal rather than

remand to the court of appeals for it to reiterate its

Because the six cities filed requests to opt out and holding. See TEX. R. APP. P. 53.4; Pub. Util. Comm'n

objected to the settlement, their complaints were of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d

preserved for review by the court of appeals, and these 310, 321 (Tex. 2001). The court [**15] of appeals in the

unnamed class members are parties for purposes of mandamus proceeding below determined that the trial

appeal. However, the city of Pharr did not request to opt court did not abuse its discretion in denying the opt-out

out of the class [**13] or object to the settlement. requests. The standard of review on appeal should also

Therefore, its complaints were not properly before the be whether the trial court abused its discretion. See In

court of appeals, and this Court will not consider them. re PaineWebber Ltd. P'ships Litig., 147 F.3d 132, 135

TEX. R. APP. P. 33.1(a)(1)(A). (2d Cir. 1998). HN8[ ] The test for abuse of discretion

is "whether the court acted without reference to any

III guiding rules and principles" or, stated another way,

whether its decision was arbitrary or unreasonable.

The gas companies next argue that the six cities waived

Downer v. Aquamarine Operators, Inc., 701 S.W.2d

their complaints regarding the denial of the opt-out

238, 242, 29 Tex. Sup. Ct. J. 88 (Tex. 1985).

requests because they failed to seek appellate or

mandamus review until after final judgment. The trial The gas companies claim the 1996 opt-out requests by

court heard the opt-out requests in November 1999, and the six cities were ineffective because the cities did not

the requests were denied on February 1, 2000. A year take formal action at an open meeting to authorize their

later, the cities filed objections to the proposed class attorney to file the opt-out requests. The cities respond

settlement and renewed their requests to opt out. When that their attorney was authorized to file the opt-out

the requests were again denied and final judgment was requests as part of his representation pursuant to the

rendered, the cities sought appellate and mandamus TMTCI contract.

relief in the court of appeals and mandamus relief from

this Court. However, after the court of appeals denied HN9[ ] The Open Meetings Act requires that "every

mandamus relief, the cities failed to inform this Court of regular, special, or called meeting of a governmental

the court of appeals' ruling. When the cities did not body shall be open to the public, except as provided by

actively pursue their mandamus relief in this Court, we this chapter." TEX. GOV'T CODE § 551.002. It defines

dismissed their petition. In re City of San Benito, 45 Tex. "meeting" [**16] as "a deliberation between a quorum

Sup. J. 305, 309 (Jan. 12, 2002). The gas companies of a governmental body, or between a quorum of a

argue that by waiting a year to seek appellate review governmental body and another person, during which

and by failing to [**14] reurge their petition for public business or public policy over which the

mandamus relief in this Court, the cities waived their governmental body has supervision or control is

right to complain of the trial court's order denying the discussed or considered or during which the

opt-out requests. governmental body takes formal action." Id. §

551.001(4)(A). Cities can express and bind themselves

We disagree. HN6[ ] There is no interlocutory appeal only by way of a duly assembled meeting. Cent. Power

from an order denying a party the right to opt out of a & Light Co. v. City of San Juan, 962 S.W.2d 602, 612

class. See TEX. CIV. PRAC. & REM. CODE § 51.014. It (Tex. App.-Corpus Christi 1998, pet. dism'd w.o.j.). "A

is true that the cities could have attempted to seek city's governing body may not delegate the right to make

mandamus relief in this Court after the court of appeals decisions affecting the transaction of city business." Id.

denied mandamus relief, but HN7[ ] filing a request for at 613. However, cities may "delegate to others the right

an extraordinary writ is not a prerequisite to an appeal. to perform acts and duties necessary to the transaction

Pope v. Stephenson, 787 S.W.2d 953, 954, 33 Tex. of the city's business, but can do so only by resolution or

Sup. Ct. J. 436 (Tex. 1990). The cities did not waive ordinance, by a majority vote." Id.

their complaints regarding the opt-out requests.

In their respective contracts, the six cities delegated to

IV TMTCI the right to investigate and pursue claims they

Nicole Mitchell

Page 8 of 8

109 S.W.3d 750, *757; 2003 Tex. LEXIS 91, **16

might have against the gas companies, including the McCorkle, [**19] Annotation, Authority of Attorney to

right to hire counsel for those purposes. Pursuant to the Dismiss or Otherwise Terminate Action, 56 A.L.R.2d

contract, TMTCI hired Ramon Garcia. Each contract 1290. Just as a nonsuit terminates litigation between the

contained nearly identical [**17] clauses stating: plaintiff and the nonsuited defendant, opting out of a

class action has the effect of terminating the particular

After auditing and making a determination that litigation as to that class plaintiff. Opting out does not, of

uncollected compensation is due and owing to city, itself, cause a loss of any substantial rights, as the party

TMTCI will negotiate with franchisees so as to recover can bring its own suit on the same cause of action.

uncollected compensation, if any, and if necessary, Pursuant to his contractual employment to pursue

employ legal counsel to recover such compensation. unpaid franchise fees through litigation, Garcia had

authority to opt the cities out of the class action. The

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