# Dale Roush, Individually and as Trustee of the Dale Roush Assets Trust v. Metropolitan Life Insurance Company and Joel Hart > Court of Criminal Appeals of Texas · March 23, 2018 URL: https://www.frixlaw.com/law-library/cases/4258349 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 23, 2018 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4258349 ## How later opinions describe it (automated extraction) - holding that either notice of the trial court's intent to dismiss or notice of the actual order of dismissal is sufficient notice - recognizing mandamus permits the very delay dismissal is intended both common law source of power and rule based to prevent. In addition, the danger that a trial will be source of power ## Opinion text 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 04/0812009 AMENDED ANSWER DEFENDANT DEFENDANT 11:39:13 METROPOLITAN AM LIFE INSURANCE COMPANY'S SECOND AMENDED ANSWER, SPECIAL EXCEPTIONS, AND CROSS-CLAIM 04/1312009 RESPONSE PLAINTIFF RESPONSE OF 03:08:38 DALE ROUSH TO PM DEFENDANT JOEL HARrS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF DALE ROUSH 04/13/2009 RESPONSE PLAINTIFF RESPONSE OF 03:00:18 DALE ROUSH TO PM "METROPOLITAN 78 COMPANY'S AMENDED CONDITIONAL MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAlMSOF WRONGFUL FORECLOSURE AND MONEY HAD AND RECEIVED AND NO-EVIDENCE MonON FOR SUMMARY JUDGMENT' (NKIA "METLIFE'S SECOND CONDITIONAL , HEARING JUDGE HEARING DATE 02:25:02 HARTS REPLY TO PM RESPONSE OF DAlE ROUSH TO JOEL HARTS MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF DALE PENDENS CERTIFIED MAIL CLERK NONFAMILY 01 RESPONSE 79 DATE FILED 1 DATE ISSUED ISERVED DATE 1 DOCUMENT ·1 TYPE FILED BY 1 COMMENTS EXCEPTION, AND COUNTERCLAIM 04/1712009 ORIGINAL ANSWER DEFENDANT ORGINAL ANSWER 01:41:25 AND CROSS-CLAIM PM OF METROPOLITAN LIFE INSURANCE COMPANY 04/17/2009 ORIGINAL ANSWER DEFENDANT ORGINAL ANSWER 01:50:12 CONTINUED WITH PM LETTERS AND COPIES OF RECEIPT 04/1712009 ORIGINAL -ANSWER DEFENDANT ORGINAL ANSWER 02:04:09 CONTINUED WITH PM LETTER, CERTIFIED MAIL, RETURN RECEIPT 0411712009 ORIGINAL ANSWER DEFENDANT ORIGINAL ANSWER 02:08:09 AND CROS8-CLAIM PM OF METROPOLITAN LIFE INSURANCE COMPANY 04/1712009 OTHER PLAINTIFF PLAINTIFF'S 02:13:41 CERTIFICATE OF PM DISCOVERY 0411712009 OTHER OTHER LETTER 02:18:46 PM 04/1712009 OTHER OTHER LETTER 02:21:05 PM 04/1712009 AMENDED ANSWER DEFENDANT DEFENDANT FIRST 02:24:42 AMENDED ANSER, PM SPECIAL EXCEPTIONS, & COUNTER CLAIM 04/1712009 NOTICE PLAINTIFF NOTICE OF 02:40:49 APPEARANCE OF PM CO-COUNSELFOR METROPOLITAN LIFE INSURANCE COMPANY 04/1712009 OTHER ATTORNEY LETTER FOR 02:43:51 FOR MOTION FOR PM DEFENDANT WITHDRAWAL AND ORDER GRANTING MOTION FOR WITHDRAWAL 04/1712009 MOTION FOR ATTORNEY MOTION FOR 02:48:03 SUBSTITUTION OF FOR WITHDRAWAL AND PM COUNSEL DEFENDANT SUBSTITUTION OF COUNSEL 80 I DATE I DOCUMENT I ISERVED FILED BY DATE FILED 04/17/2009 DATE ISSUED TYPE CORRESPONDENCE IDEFENDANT COMMENTS LETTER 03:03:52 ACCOMPANYING PM DEFENDANTS' OBJECTION TO NOTICE OF ORAL DEPOSITION OF BILLYE JOYCE HART 0411712009 OBJECTION ATTORNEY DEFENDANTS' 03:10:37 FOR OBJECTION TO PM DEFENDANT NOTICE OF ORAL DEPOSITION OF BILLYE JOYCE HART 04/17/2009 CORRESPONDENCE ATTORNEY LETTER 03:13:44 FOR ACCOMPANYING PM DEFENDANT DEFENDANTS' OBJECTION TO MOTICE OF ORAL DEPOSITION OF JOEL HART 04/17/2009 OBJECTION ATTORNEY DEFENDANT'S 03:16:57 FOR OBJECTION TO PM DEFENDANT NOTICE OF ORAL DEPOSITION OF JOEL HART 04117/2009 NOTICE ATTORNEY NOTICE OF INTENT 03:25:35 FOR TO TAKE ORAL PM DEFENDANT DEPOSITION OF JOEL HART 04/17/2009 ORDER DISTRICT ORDER GRANTING 03:33:56 JUDGE MOTION FOR PM WITHDRAWAL AND SUBSTITUTING COUNSEL 04/17/2009 CORRESPONDENCE ATTORNEY LETTER 03:36:41 FOR ACCOMPANYING PM PLAINTIFF PLAINTIFFS' NOTICE OF HEARING ON MOTION TO COMPEL 0411712009 NOTICE ISSUED BY NOTICE OF 03:39:04 CLERK HEARING ON PM MOTION TO COMPEL 04117/2009 PLAINTIFFS ATTORNEY PLAINTIFF DALE 03:41:34 RESPONSE FOR ROUSH'S PM PLAINTIFF RESPONSE IN OPPOSITION TO DEFENDANT JOEL HART'S MOTION TO CONSOLIDATE OR 81 ·~T~T DATE I -TYPE" I FILED BY I II .. . 1\111\' t: I 04/f772009- 1\' ,,-,,,,.,, 1 LET't:K 03:44:15 FOR ACCOMPANYING PM PLAINTIFF PLAINTIFF'S MOTION TO , COMPEL THE DEPOSITION OF BILLY JOYCE HART ~DBRIEFIN 04/17/2009 MOT'ONTO MUIIUNTO 03:47:08 COMPEL '" '~OI'<~':T COMPEL THE PM PLAINTIFF DEPOSITION OF BILLY JOYCE HART Li:RIEFIN . 04/17/2009 1\ I I"",.", rTER 03:50:56 FOR ACCOMPANYING PM DEFENDANT DEFENDANTS' RESPONSE TO TO I U'IIllr.!UUli 03:53:55 1\1 FOR -iii: RESPONSE TO II':; PM DEFENDANT ~~mONTO 04/17/2U09 Il'nr:. 1\, . 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FOR DEFENDANT 12:51:02 JUDGE MOTION FOR PM SUBSTITUTION OF 86 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 Page 7 of 8 109 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 ... cities were not required to hold an open meeting to If, after good faith attempts to negotiate with a specifically authorize the opt-out requests. Because the franchisee, TMTCI is not able to resolve an uncollected decision to opt out was within their attorney's authority, compensation dispute with such franchisee or to obtain the trial court abused its discretion in refusing the cities' access to the books and records of franchisee as opt-out requests. outlined . . . above, or otherwise deems it necessary in V order to fulfill its obligations under this Agreement, TMTCI, after having consulted with city, shall have the The cities claim that the settlement the trial court power and right to employ legal counsel of its choice. approved is unfair because the gas companies are allowed to recover any funds paid to the cities and class [*758] Although the record does not contain the counsel by increasing the gas costs to their customers, minutes of the open meetings at which these contracts the cities' residents. Although the cities make an were approved, neither the validity of these contracts interesting argument, we do not reach the issue nor Ramon Garcia's status as the cities' attorney has because we hold six [**20] of the petitioner cities are been challenged. Class counsel stated at oral argument not bound by the settlement and the seventh failed to that a motion to show authority was filed in the trial object to the settlement in the trial court. TEX. R. APP. court, but nothing in the record indicates that such a P. 33.1(a)(1)(A). motion was filed or that the trial court made any ruling thereon. Thus, we must assume that Ramon Garcia is VI the [**18] cities' attorney. Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 766 (Tex. 1942) (holding Because the cities of San Benito, Palmview, Alton, La challenge to attorney's authority under precursor to Villa, Port Isabel, and Edcouch properly opted out of the Texas Rule of Civil Procedure 12 may not be raised for class, we reverse the judgment of the court of appeals the first time on appeal); Taylor v. Tex. Dep't of Pub. and render judgment that they are not members of the Welfare, 549 S.W.2d 422, 425 (Tex. Civ. App.-Fort class action. However, we affirm the judgment as to the Worth 1977, writ ref'd n.r.e.) (holding same under rule city of Pharr because there is no evidence in the record 12). The only question before the court is whether that Pharr filed a notice to opt out or that it objected to Ramon Garcia had implied authority pursuant to the the settlement in the trial court. contract with TMTCI to opt the cities out of the litigation. Thomas R. Phillips A similar question is whether an attorney has authority to nonsuit a client's claim without prior consent. HN10[ Chief Justice ] Texas courts have held that an attorney has implied authority to nonsuit a client's claim when the nonsuit End of Document does not affect a substantial right or bar the bringing of another suit based on the same cause of action. See Fed. Underwriters Exch. v. Read, 142 S.W.2d 440, 443 (Tex. Civ. App.-Beaumont 1940), rev'd on other grounds, 138 Tex. 271, 158 S.W.2d 767 (Tex. 1942); Dyer v. Johnson, 19 S.W.2d 421, 425 (Tex. Civ. App.- Fort Worth 1929, writ dism'd w.o.j.); see also C.R. Nicole Mitchell Caution As of: March 23, 2018 5:11 PM Z Downer v. Aquamarine Operators, Inc. Supreme Court of Texas December 4, 1985, Decided No. C-4141 Reporter 701 S.W.2d 238 *; 1985 Tex. LEXIS 1089 **; 29 Tex. Sup. J. 88 hearing. The trial court granted plaintiff's motion for IDA E. DOWNER, Petitioner, v. AQUAMARINE sanctions, struck defendant's answer, and entered a OPERATORS, INC., Respondent default judgment as to liability. The court of appeals reversed the trial court's judgment as an error of law and Subsequent History: [**1] Rehearing Denied an abuse of discretion. The court reversed the court of January 15, 1986. appeals and affirmed the judgment of the trial court, Prior History: Appeal from Harris County, Fourteenth holding that the trial court had plenary jurisdiction to District. consider facts from all of the pleadings that were before it when considering whether to impose sanctions and that the appeals court erroneously ruled that the trial Core Terms court abused its discretion by imposing sanctions. trial court, sanctions, depositions, court of appeals, Outcome discovery, sanctions hearing, default judgment, crew, The court reversed the appellate court's ruling that the notice, vessel, abuse of discretion, interlocutory, trial court erred in striking defendant employer's answer damages, pleaded, struck to complaint by plaintiff, a deceased employee's widow, after defendant failed to produce deposition witnesses Case Summary or to appear at the hearing for sanctions because the trial court had authority to consider all facts contained in the pleadings and did not abuse its discretion. Procedural Posture Defendant employer appealed a judgment from the 151st District Court of Harris County (Texas), which LexisNexis® Headnotes granted a motion by plaintiff, a deceased employee's widow, for discovery sanctions, struck defendant's answer, and entered an interlocutory default judgment against defendant. The court of appeals reversed the trial court judgment, holding that it was erroneous and Civil Procedure > Discovery & an abuse of discretion. Disclosure > Discovery > Misconduct During Discovery Overview Plaintiff, a deceased employee's widow, sued defendant Civil Procedure > ... > Methods of employer after employee was drowned while working Discovery > Depositions > Oral Depositions upon a vessel owned and operated by defendant. After members of the crew had failed to appear on three HN1[ ] Discovery, Misconduct During Discovery separate deposition dates, plaintiff filed a motion for sanctions. Defendant responded that work was scarce Prior to an amendment effective August 1, 1984, Tex. R. and, when work was available, it was necessary to send Civ. P. 215a(c) stated that if a party or an officer or the vessel and crew to sea rather than produce them for managing agent of a party, except for good cause depositions. Defendant failed to appear at the sanctions shown, fails to appear before the officer who is to take hearing because its attorney was repairing his home his oral deposition, the court in which the action is from hurricane damage and preparing for a federal court pending on motion and notice may strike out all or any Nicole Mitchell Page 2 of 5 701 S.W.2d 238, *238; 1985 Tex. LEXIS 1089, **1 part of the pleading of that party or dismiss the action or Civil Procedure > Judgments > Pretrial proceeding or any part thereof. Judgments > General Overview Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments Civil Procedure > Appeals > Standards of Review > De Novo Review Torts > ... > Defenses > Comparative Fault > General Overview Governments > Courts > Authority to Adjudicate Torts > ... > Defenses > Contributory Civil Procedure > Judgments > Relief From Negligence > General Overview Judgments > General Overview HN4[ ] Affirmative Defenses, Contributory Civil Procedure > Judgments > Relief From Negligence Judgments > Motions for New Trials Contributory negligence is an affirmative defense which HN2[ ] Standards of Review, De Novo Review must be pleaded. A trial court's plenary jurisdiction gives it not only the Judges: James P. Wallace, Justice. authority but the responsibility to review any pre-trial order upon proper motion. In doing so, it is presumed Opinion by: WALLACE that the court is familiar with the entire record of the case up to and including the motion to be considered. Opinion Civil Procedure > Appeals > Standards of Review > Abuse of Discretion [*239] This is an appeal from a judgment for damages in a suit brought under the Jones Act and under HN3[ ] Standards of Review, Abuse of Discretion admiralty law. The trial dealt only with damages because the trial court struck the defendant's answer as The test for abuse of discretion is not whether, in the a discovery abuse sanction and signed an interlocutory opinion of the reviewing court, the facts present an default judgment as to liability. The court of appeals appropriate case for the trial court's action. Rather, it is reversed the trial court judgment, holding that the action a question of whether the court acted without reference of [*240] that court was an error of law and an abuse to any guiding rules and principles. Another way of of discretion. 689 S.W.2d 472. We reverse the judgment stating the test is whether the act was arbitrary or of the court of appeals and affirm the judgment of the unreasonable. The mere fact that a trial judge may trial court. decide a matter within his discretionary authority in a different manner than an appellate judge in a similar The issues before us are whether TEX. R. CIV. P. circumstance does not demonstrate that an abuse of 215a(c), as it existed prior to the amendment effective discretion has occurred. August 1, 1984, authorized the trial court to strike defendant's answer, and, if so, whether the exercise of that authority constituted an abuse of discretion. Civil Procedure > ... > Defenses, Demurrers & Edward P. Downer was a seaman aboard the vessel Objections > Affirmative Defenses > Contributory Four Point IV. He drowned while attempting to free a Negligence line that had fouled the vessel's propeller. Ida E. Downer, his widow, brought this action against Torts > ... > Contributory Negligence > Procedural Aquamarine [**2] Operators, Inc., the owner and Matters > General Overview operator of the vessel. The case was filed in the 151st District Court of Harris County. Both Downer and Civil Procedure > ... > Defenses, Demurrers & Aquamarine are residents of Harris County, Texas. Objections > Affirmative Defenses > General Overview Downer filed Notice of Intent to Take the Depositions of Nicole Mitchell Page 3 of 5 701 S.W.2d 238, *240; 1985 Tex. LEXIS 1089, **2 All Members of The Crew on June 1. The notice hearing set in federal court in Beaumont on the following identified each crew member, including the captain, day and was directing all of his available attention to Chester P. Dalfrey, by name only. Downer also that matter. requested depositions of the immediate supervisor of Chester Dalfrey and the custodian of Edward Downer's To his Motion to Reconsider the Sanctions, Mr. Ayres personnel file. On June 1, Aquamarine notified Downer attached an affidavit from his secretary, which stated that the crew was at sea and would not appear. that she had called the clerk of the court on July 7, and Aquamarine at that time agreed to produce the had advised her that Mr. Ayres had to make a docket requested persons on June 22. On June 21, call in Angleton on August 22. She understood the clerk Aquamarine again notified Downer that the crew was at to say that the sanctions hearing would be reset for sea and would not appear. It agreed to produce them on September 6. In response to this motion, Downer's July 5. attorney advised the court by letter of his version of the circumstances leading up to the non-appearance on Downer filed written Notice of Intent to Take Depositions July 5, and the time when he was first advised [*241] of the same individuals for July 5. On that date, the that the named individuals would not appear. Attached requested deponents did not appear, whereupon to this letter to the court was a copy of a letter dated Downer filed a Motion for Sanctions. A hearing on the July 28, written by Mr. Bales, an associate of Mr. Ayres, Motion for Sanctions was set for August 22. Aquamarine which confirmed that the sanctions hearing was set for made no appearance at the hearing; the trial court August 22. granted the Motion for Sanctions and signed an Order Striking Aquamarine's Answer. [**5] With the above information before it, the trial court overruled Aquamarine's Motion to Reconsider the [**3] Downer filed a Motion for Interlocutory Default Sanctions and to reinstate its answer. The court signed Judgment to which Aquamarine responded. The an order granting an interlocutory default judgment as to response contained Aquamarine's reasons for not liability. Aquamarine filed a Motion to Set Aside the producing the requested individuals for depositions and Default Judgment. The motion contained practically the its failure to appear at the sanctions hearing. same information as the Motion to Reconsider Sanctions set out above. The trial court considered this The reason offered for the first two occasions was that motion and overruled it. On April 16, 1984, the case was work for the FOUR POINT IV was scarce and, when preferentially set for trial for June 4, and the trial court work was available, it was necessary to send the vessel refused to consider Aquamarine's Second Motion to Set and crew to sea rather than produce them for Aside the Interlocutory Default Judgment and Reinstate depositions. On the third occasion, the vessel was in Defendant's Pleadings. port at New Iberia, Louisiana, but Coast Guard regulations required a skeleton crew to be kept aboard A jury trial was had in a different court, the 334th at all times. Aquamarine's attorney stated that he District, on the issue of damages. At the trial, Chester notified Downer's attorney on July 1 of the necessity to Dalfrey testified that he was captain of the FOUR take the depositions in New Iberia. Downer's attorney POINT IV and as such he was in complete charge of the stated that he first learned that the individuals would not vessel with authority over all of its operations. Mr. Clark appear as noticed when Aquamarine's attorney called Ivans testified that he was president of Aquamarine at him an hour after the depositions were scheduled to all times pertinent to this case, and that as such, he was commence. Both agreed that Aquamarine requested the immediate supervisor of Chester Dalfrey. that the depositions be taken in New Iberia on July 6. However, Downer's attorney stated that he could not do We now address the issue of whether the trial court had so because he was preferentially set for trial in Houston authority under Rule 215a(c) to [**6] strike starting at 9:00 a.m. on July 6. Aquamarine's answer. HN1[ ] That rule stated in pertinent part: The reason given [**4] by Aquamarine for not If a party or an officer or managing agent of a party, appearing at the sanctions hearing was that Hurricane except for good cause shown, fails to appear before Alicia had struck La Porte, the residence of Mr. Ayres, the officer who is to take his oral deposition . . . the Aquamarine's lead counsel, four days previously. Mr. court in which the action is pending on motion and Ayres was involved in cleaning up after the hurricane notice may strike out all or any part of the pleading and mitigating the damages to his home. Also, he had a of that party or dismiss the action or proceeding or Nicole Mitchell Page 4 of 5 701 S.W.2d 238, *241; 1985 Tex. LEXIS 1089, **6 any part thereof . . . . S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial judge may decide a matter within his discretionary As noted above, Ivans testified that as president of authority in a different manner than an appellate judge Aquamarine he was in complete charge of all operations in a similar circumstance does not demonstrate that an of the company. Thus he was a party as contemplated abuse of discretion has occurred. Southwestern Bell by Rule 215a(c). Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d The next question is whether the trial court, in refusing 290, 295 (Tex. 1959). to grant a new trial and reinstate Aquamarine's answer, could consider the evidence introduced subsequent to To determine the trial judge's guiding rules and the original sanctions hearing. Aquamarine contends principles in imposing sanctions for discovery abuse, we that the trial court, in imposing sanctions, could consider must look to the Texas Rules of Civil Procedure as only the evidence before it at the time of the sanctions promulgated and amended by this court as well as the hearing, and not any evidence subsequently produced. decisions of appellate courts of this State and of HN2[ ] A trial court's plenary jurisdiction gives it not the [**9] United States. The Texas Rules of Civil only the authority but the responsibility to review any Procedure pertaining to discovery and sanctions for pre-trial order upon proper motion. In doing so, it is noncompliance have been amended several times, presumed that the court is familiar with the [**7] entire culminating in Rule 215a as it existed at the time of this record of the case up to and including the motion to be case, and now embodied in Rule 215. The use of considered. The plenary jurisdiction of the trial court in sanctions by trial courts to prevent discovery abuse has this case continued through the final judgment and developed steadily over the past several years. These overruling of Aquamarine's motion for new trial. When changes reflect the continuing pattern both to broaden considering the motion for new trial, the court had the discovery process and to encourage sanctions for before it the reasons advanced by Aquamarine for not failure to comply. appearing for depositions or the sanctions hearing; Downer's response to Aquamarine's motions; and the The United States Supreme Court in National Hockey evidence produced at the trial on damages. Thus, the League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, court of appeals erred in holding that the trial court did 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976) approved the not have authority under Rule 215a(c) to strike use of sanctions not only to assure compliance with the Aquamarine's answer. discovery process but also to deter those who might be tempted to abuse discovery in the absence of a We now turn to the court of appeals holding that the trial deterrent. court abused its discretion in striking Aquamarine's answer. The court of appeals concluded its review of the This court and various courts of appeals have also abuse of discretion issue by stating: "The facts of the followed this progression. See, e.g., Dyson v. Olin case simply do not, in our opinion, show this to be an Corp., 692 S.W.2d 456 (Tex. 1985) (Kilgarlin, J., appropriate case to impose the ultimate sanctions of concurring) (unnamed witness not permitted to testify); striking the pleadings and entering default judgment." Jarrett v. Warhola, 695 S.W.2d 8 (Tex. App. -- Houston We interpret that statement to mean that the court of [14th Dist.] 1985, writ ref'd) (plaintiff's cause of action appeals disagreed with the decision of the two trial dismissed); City of Houston v. Arney, 680 [**10] judges who reviewed the matter. S.W.2d 867 (Tex. App. -- Houston [1st Dist.] 1984, no writ) (defendant's answer struck for failure to answer HN3[ ] The test for abuse of discretion is not whether, interrogatories); Southern Pacific Transportation v. in the [**8] opinion of the reviewing court, the facts Evans, 590 S.W.2d 515 (Tex. Civ. App. -- Houston [1st present an appropriate case for the trial court's action. Dist.] 1979, writ ref'd n.r.e.) (defendant's answer struck Rather, it is a question of whether the court acted and interlocutory default judgment rendered as to without reference to any guiding rules and [*242] liability), cert. denied, 449 U.S. 994, 66 L. Ed. 2d 291, principles. Craddock v. Sunshine Bus Lines, 134 Tex. 101 S. Ct. 531 (1980). 388, 133 S.W.2d 124, 126 (Tex. Comm. App. -- 1939, opinion adopted). Another way of stating the test is In various speeches and law review articles, different whether the act was arbitrary or unreasonable. members of this court have encouraged trial judges to Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 use sanctions to the degree necessary to assure (Tex. 1982); Landry v. Travelers Insurance Co., 458 compliance with discovery procedures and deter abuse Nicole Mitchell Page 5 of 5 701 S.W.2d 238, *242; 1985 Tex. LEXIS 1089, **10 of the process. Barrow and Henderson, 1984 action sufficient to give fair notice of the claim involved. Amendments to the Texas Rules of Civil Procedure Our rules do not require pleadings to contain evidence Affecting Discovery, 15 ST. MARY'S L. J. 713 (1984) or factual detail. That point is overruled. (presented to the Texas College of the Judiciary Nov. 29, 1984); Kilgarlin and Jackson, Sanctions for The second point was that the trial court improperly Discovery Abuse Under New Rule 215, 15 ST. MARY'S refused to strike a juror for cause. After the court had L. J. 767 (1984); Pope and McConnico, Practicing Law ruled on challenges for cause, there were 26 names left With the 1981 Texas Rules, 32 BAYLOR L. REV. 457 on the jury list. Each party was given six jury strikes, so, (1981); Spears, The Rules of Civil Procedure: 1981 after making those strikes, 14 names remained on the Changes In Pretrial Discovery, 12 ST. MARY'S L. J. 633 list. [**13] The challenged juror was Number 14 and (1981). was thus a spare. There was no harm in refusing to dismiss him for cause. The trial court in this case was free [**11] to examine the factors before it to determine whether to levy The third point was that the trial court improperly sanctions. Among these were the following: (1) whether refused to admit evidence of Downer's contributory voluntarily sending the crew to sea rather than negligence. HN4[ ] Contributory negligence is an producing them for depositions as agreed on two affirmative defense which must be pleaded. occasions was in conscious disregard of this court's Aquamarine's answer had been struck and default rules; (2) whether the contradictory statements of both judgment rendered as to liability. Thus, defendant had attorneys indicated that Aquamarine's attorney did in no pleading to support contributory negligence, so the fact wait until one hour past the scheduled time for court did not err in refusing to admit the requested depositions on July 5, to advise Downer's attorney that evidence. he would have to fly to New Iberia and take depositions Aquamarine's remaining point before the court of on the following day; (3) whether Aquamarine's attorney appeals was that the trial court erred in awarding consciously disregarded the sanctions hearing in prejudgment interest in a Jones Act case tried to a jury. preference to his personal needs and the federal court This point was not presented to the trial court and was case set the following day; (4) whether the information thus waived. contained in the secretary's affidavit as to the date of the sanctions hearing conflicted with the letter from an Aquamarine's points of error presented to the court of attorney [*243] in that law firm confirming that the appeals but not considered by that court concerned hearing was set on August 22; and (5) the unexplained questions of law over which we have jurisdiction. There failure of Aquamarine to produce for depositions on any is no merit to these points so it is not necessary for this of the occasions in question Clark Ivans, the immediate cause to be remanded to the court of appeals. supervisor of Chester Dalfrey and the president of Aquamarine. The judgment of the court of appeals is reversed and the judgment of the trial court is [**14] affirmed. The record contains no indication that the [**12] trial court was capricious, arbitrary, or unreasonable. Thus, the court of appeals erred in holding that the trial court End of Document abused its discretion. In determining whether to reverse and render this cause or to remand it to the court of appeals, we must look to the four points of error raised by Aquamarine before the court of appeals but not addressed by that court. If those points raise questions of law, as opposed to questions of fact, they can be addressed by this court. The first point was that Downer's First Amended Original Petition was insufficient to support the judgment. The contention is that the facts supporting the cause of action were not pleaded. TEX. R. CIV. P. 47 requires that a petition contain a short statement of the cause of Nicole Mitchell Caution As of: March 23, 2018 5:00 PM Z Dueitt v. Arrowhead Lakes Prop. Owners, Inc. Court of Appeals of Texas, Tenth District, Waco October 26, 2005, Opinion Delivered ; October 26, 2005, Opinion Filed No. 10-04-00274-CV Reporter 180 S.W.3d 733 *; 2005 Tex. App. LEXIS 8830 ** want of prosecution and the court affirmed on appeal. JERRY O. AND ROSE DUEITT, Appellants v. The owners presented their arguments to the trial court, ARROWHEAD LAKES PROPERTY OWNERS, INC., and the owners were given adequate notice and ET AL. Appellees participated in the hearing, and thus received due process. The trial court did not err in finding that the Subsequent History: Petition for review denied by owners did not prosecute their case with due diligence. Dueitt v. Arrowhead Lakes Prop. Owners, 2006 Tex. Although certain appellees died during the proceedings, LEXIS 141 (Tex., Mar. 3, 2006) and the owners did as the law required after the death Prior History: [**1] From the 284th District Court of each one, no other affirmative action was taken on Montgomery County, Texas. Trial Court No. 90-12- the case. In 13 years, the owners never requested a trial 04407 CV. setting. The trial court erred in failing to hold a hearing under Tex. R. Civ. P. 165a(3) on their motion to Disposition: Affirmed. reinstate, but the error was harmless under Tex. R. App. P. 44.1(a) because (1) the case was on file for over 13 years, (2) the owners never requested a trial setting, (3) Core Terms the owners offered no evidence, and (4) they were not prevented from presenting their case on appeal. trial court, want of prosecution, motion to reinstate, notice, motion to dismiss, pet, fail to hold, due diligence, Outcome due process, phase, inherent authority, prosecuting, The court affirmed. abused, issues, adequate notice, thirteen year, harmless, inform, trial setting, intentions, requires LexisNexis® Headnotes Case Summary Procedural Posture Appellant lot owners challenged a decision of the 284th Civil Procedure > Dismissal > Involuntary District Court, Montgomery County (Texas), which Dismissals > Failure to Prosecute dismissed for want of prosecution their case against appellees, a property owners' association and current HN1[ ] Involuntary Dismissals, Failure to and former directors, which sought declaratory relief and Prosecute damages for fraud, slander of title, deceptive trade practices, and violations of fair debt collection practices A trial court's power to dismiss a suit for want of acts. prosecution originates from two sources: (1) Tex. R. Civ. P. 165a and (2) the trial court's inherent authority. Tex. Overview R. Civ. P. 165a. A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or The owners' property was subject to deed restrictions hearing or (2) when a suit is not disposed of within the that levied a fee for maintenance purposes. After a time standards given by the Texas Supreme Court. Tex. dispute arose concerning the amount of the levy, they R. Civ. P. 165a(1), (2). Independent of the rules of civil filed this action. The trial court dismissed the action for procedure, a trial court may also dismiss a suit under Nicole Mitchell Page 2 of 8 180 S.W.3d 733, *733; 2005 Tex. App. LEXIS 8830, **1 the inherent authority given to it by common law. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection Civil Procedure > Dismissal > Involuntary HN6[ ] Dismissal, Involuntary Dismissals Dismissals > Appellate Review The requirements of notice and a hearing are necessary HN2[ ] Involuntary Dismissals, Appellate Review to ensure the dismissed claimant has received due process. The failure to provide adequate notice of the When a party does not request findings of fact or trial court's intent to dismiss for want of prosecution conclusions of law, and the trial court does not specify requires reversal. However, participation in a hearing on the standard of dismissal used, the appellate court must a motion to reinstate cures any due process concerns affirm on the basis of any legal theory supported by the for the failure to provide notice of intent to dismiss. record. Civil Procedure > Dismissal > Involuntary Civil Procedure > Dismissal > Involuntary Dismissals > Failure to Prosecute Dismissals > Appellate Review HN7[ ] Involuntary Dismissals, Failure to HN3[ ] Involuntary Dismissals, Appellate Review Prosecute The appellate court reviews a dismissal for want of Dismissal for want of prosecution may be obtained by prosecution under an abuse of discretion standard. A motion of the trial court or on motion of any party to the trial court abuses its discretion when it acts without suit. The Tex. R. Civ. P. 165a reinstatement procedure reference to any guiding rules or principles, or, stated applies t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4258349. Public record. Not legal advice.