ChiefJustice ^£*^*^%y Clerk

James T.Worthen ^et^ana^ Cathy S.Lusk

TwelfthCourt ofAppeals Justices Chief Staff Attorney

Sam Griffith Margaret Hussey

Diane DeVasto

Thursday, March 31, 2005

Ms. Susan D. Bonnen Ms. Celia S. Flowers

Assistant Attorney General Flowers-Davis, PLLC

Transportation Division 1021 ESE Loop 323

P.O. Box 12548 Suite 200

Austin, TX 78711-2548 Tyler, TX 75701

RE: Case Number: 12-04-00010-CV

Trial Court Case Number: 44,456-A

Style: The State ofTexas

v.

Donald Howard Davis

Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and

numbered cause. Also enclosed is a copy ofthe court's judgment.

Very truly yours,

CATHY S. LUSK, CLERK

By: KiibuJMu Mm

Katrina McClenny, Chief Deputy Clerk

CC: Hon. John Ovard

Hon. Randall L. Rogers

Ms. Judy Carnes

1517West FrontStreet • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193

ServingAnderson, Cherokee, Gregg, Henderson,Hopkins, Houston,Kaufman, Nacogdoches, Panola, Rains,Rusk, Sabine,SanAugustine, Shelby,

Smith Upshur, VanZandt and WoodCounties

www.12thcoa.courts.state.tx.us
NO. 12-04-00010-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

THE STATE OF TEXAS,

APPELLANT

V.

DONALD HOWARD DA VIS,

APPELLEE

TYLER, TEXAS

§ APPEAL FROM THE

§ COUNTY COURT AT LAW#2 OF

§ SMITH COUNTY, TEXAS

MEMORANDUM OPINION

In one issue, the State of Texas contends that the trial court erred by dismissing its case for

want of prosecution and failing to reinstate the case. We reverse and remand.

Background

On September 1, 2000, the State filed an "Original Petition for Condemnation," seeking

the acquisition of a 6.12 acre tract of land out of a 7.7223 acre tract owned by Irene Elizabeth

Davis. The trial court appointed three Special Commissioners ("the Commissioners") to assess

the damages arising from the condemnation. On November 1, the Commissioners requested

appraisal reports and other records from the State that showed how much money the State paid

otherlandowners in the area for theirland. The Stateobjected to thisrequest, and a hearing was

held on November 21 to determine whether the State was required to produce these documents.

The trial court subsequently appointed an attorney for the Commissioners and, on December 27,

ordered the State to produce information on all real property acquired by the State and located

within three miles of the property at issue.

The State challenged the order by petition for writ of mandamus to this court. On

January 23, 2002, we held that although the trial court abused its discretion by making the
complained-of orders, the State had an adequate remedy at law by appeal of the Commissioners'

award of damages to the county court at law. See In re State, 65 S.W.3d 383, 388 (Tex. AppTyler 2002, orig. proceeding).

On April 10,2002, the Commissioners conducted a hearing and, at its conclusion, awarded

Davis $120,000.00 in damages and $9,000.00 in attorney's fees. The Commissioners also issued

a "Bill of Costs of Special Commissioners" against the State, requesting that the trial court order

the State to pay attorney's fees for their appointed counsel and transcript preparation expenses.

That same day, the trial court ordered the State to pay the Commissioners' bill.

Once again, the State filed a petition for writ of mandamus in this court, seeking an order

directing the trial court to withdraw its order regarding the payment of the Commissioners' bill.

In an opinion dated September 18, 2002, we conditionally granted the writ of mandamus and held

that the trial court's ordergranting the Commissioners' recovery of their expenses from the State

was an abuse of discretion because the trial court lacked jurisdiction to enter the order. See In re

State, 85 S.W.3d871, 875 (Tex. App.-Tyler 2002, orig. proceeding). We also held that the State

hadno adequate remedy by appeal. Id. at 877. We reasoned that theorder requiring payment of

the Commissioners' bill causedthe State to forfeitits right to avoid liability for an awardmadein

the administrative phase and proceed to a determination of damages in a trial de novo. Id. at 877.

On May 2, 2002, the State filed its "Objections to Award of Special Commissioners,"

contending that the Commissioners' award of damages on April 10 was 1) excessive, 2) not

calculated properly, and 3) an amount outside the scope of theCommissioners' jurisdiction and

authority.

On August 15, 2003, Donald Howard Davis, the Independent Executor of the Estate of

IreneElizabeth Davis, filed a "Suggestionof Death," informingthe trial court that Mrs. Davis had

died on May 24, 2003 and requesting the trial court to name him as the plaintiff in the instant

litigation. In an orderdatedSeptember 3, the trialcourtgranted Davis's request to allow the suit

to proceed in his name.

On September 30, the trial court issued a notice to all parties that the case was set for

hearing on November 21 at 9:00 a.m. on the court's dismissal docket. The notice further stated

that
Court records indicate that this case is eligible for DISMISSAL DOCKET because it has been on

file since 09/01/00. This case will be Dismissed for Want of Prosecution unless one of the

following actions is taken 5 days prior to the hearing date:

(1) A Judgment is signed; or

(2) A written request is made for a trial setting; or

(3) A verified Motion and Order to retain is filed.

On November 5, Davis filed a motion to dismiss, contending that the case should be

dismissed because the State had taken no substantive action in the case in over one year and three

months. In the motion, Davis also sought damages under sections 21.019 and 21.044 of the Texas

Property Code for attorney's fees and expenses and for damages for the State's possession of the

property at issue. See Tex. Prop. Code Ann. § 21.019 (Vernon 2004), § 21.044 (Vernon 2000).

On November 14, seven days before the hearing on the court's dismissal docket, the State

sent a letter to the trial court requesting that the case be removed from the dismissal docket and

set for a jury trial. On November 17, the court signed an order setting the case for trial on Monday,

April 12, 2004 at 9:00 a.m. The State also filed a response to Davis's motion to dismiss on

November 21, contending that the case should not be dismissed because it had diligently pursued

discovery since the trial court acquired jurisdiction in May of 2002. It also argued that the death

of Mrs. Davis made it difficult to conduct discovery because no supplemental discovery responses

were made that named additional persons with knowledge of relevant facts. In the response, the

State outlined the following dates on which discovery and other procedural matters took place:

September 1, 2000 State files its Original Petition

October 10, 2000 Landowner served with Notice of November 1, 2000 hearing

November 1, 2000 Special Commissioner's [sic] Hearing begins, recessed so that Special

Commissioner's [sic] could consult with the trial judge

November 12, 2000 Hearing held before Trial Court, order entered appointing attorney for

Commissioners

April 10, 2002 Hearing resumes, Special Commissioners enter award

May 2, 2002 State files its Objections to the Award of the Special Commissioners

June 28, 2002 State serves its Requests for Disclosure upon Landowner
August 9, 2002 State serves its Request for Entry upon Landowner's Property on

September 10, 2002

August 22,2002 State serves its DiscoveryRequests upon Defendant (including Requests

for Admissions)

February 21, 2003 State serves its Second Request for Admissions upon Defendant

February 19,2003 Condemnor transmits the appraisal report ofJohn Chesley and requests

available dates in March for the deposition ofthe landowner, Ms. Davis

August 14, 2003 Landowner files Suggestion of Death and Order on Same

After the hearing on November 21, the trial court ordered that the case be dismissed for

want of prosecution "[f]or failure to comply with the notice dated September 30, 2003 and after

hearing on 11-21-03." On December 4, the State filed a verified motion to reinstate the case and

attached the discovery-related documents outlined in its response to Davis's motion to dismiss!

The State also attached an affidavit from Alan L. Grundy, an attorney representing the State,

verifying the authenticity of those documents and outlining the procedural history of the case.

On January 2, 2004, Davis filed a "Brief in Support of Upholding Dismissal," asking the

court to sustain its dismissal of the case and deny the State's motion to reinstate. On January 2,

the trial court signed an order denying the State's motion to reinstate the case. The State filed a

notice of appeal on January 15.

Did the Trial Court Err by Dismissing and Refusing to Reinstate the Case?

In its sole issue, the State argues that the trial court erred by dismissing and refusing to

reinstate its case. Davis contends that this court does not have jurisdiction over this case because

the trial court's order of dismissal did not dispose of all issues and parties. He also maintains that

the trial court did not abuse its discretion by dismissing the State's case for want of prosecution

and refusing to reinstate it.

Standard of Review

The standard of review of a dismissal for want of prosecution and a denial of a motion to

Thesediscovery requests were alsoadmitted intoevidence, without objection, at the hearing on the

motion to dismiss.
reinstate is whether the trial court committed a clear abuse of discretion, and the main issue is

whether the plaintiffexercised reasonable diligence in pursuing his suit. MacGregor v. Rich, 941

S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Nawas v.R&S

Vending, 920 S.W.2d 734, 737 (Tex. App.- Houston [1st Dist.] 1996, no writ). The trial court

may consider the entire history of the case, including (1) the length of time the case was on file;

(2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence

of a reasonable excuse for the delay. In re Marriage ofSeals, 83 S.W.3d 870, 874 (Tex. AppTexarkana 2002, no pet.). In reviewing the trial court's decision, we look at the entire history of

the case and perform a fact-intensive, case-by-case determination. SeeFederal DepositIns. Corp.

v. Kendrick, 897 S.W.2d 476, 479-81 (Tex. App.- Amarillo 1995, no writ).

The test for abuse of discretion is whether the trial court acted without reference to guiding

rules and principles, or whether the trial court's actions were arbitrary and unreasonable. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A reviewing court cannot

conclude that a trial court abused its discretion simply because, in the same circumstances, it would

have ruled differently, or because the trial court committed a mere error in judgment. E.I. du Pont

de Nemours & Co. v. Robinson, 923 S.W.2d 549,558 (Tex.1995); Loftin v. Martin, 116 S.W.2d

145, 146 (Tex. 1989).

Applicable Law

A trial court's power to dismiss a suit for want of prosecution originates from two sources:

Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. T EX. R. Crv. P.

165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Steward v.

Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex. App.- Waco 2004, no pet.). A trial court

may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2)

when a suit is not disposed of within the time standards given by the supreme court. Tex. R. Crv.

P. I65a(l), (2); Steward, 143S.W.3d at 163-64. Independentof the rules of civil procedure,a trial

court may also dismiss a suit under its inherent authority by finding a lack of due diligence in

prosecutingthe case. Villarreal, 994 S.W.2d at 630;Allen v. Rushing, 129S.W.3d 226,230 (Tex.

App- Texarkana 2004, no pet.).

The trial court did not specify under what authority it dismissed the case. However, we
know from the record that the State did not fail to appear for trial or a hearing. Therefore, the trial

court could have dismissed the case only because the suit was not disposed of within the applicable

time periods or for lack of due diligence in prosecuting the case "because it [had] been on file since

09/01/00." Forjury trials, which the State requested, the applicable time period is eighteen months

from the appearance date. Tex. R. Jud. Admin. 6, reprinted in Tex. Gov't Code Ann. tit. 2,

subtit. F app. (Vernon 2005).

The judicial phase of a condemnation proceeding is first invoked only if, as here, a party

files objections to the special commissioners' award. In re State, 85 S.W.3d at 876. Upon filing

objections, the special commissioners' award is vacated, and a trial de novo is conducted. Id.; see

also Tex. Prop. Code Ann. § 21.018(b) (Vernon 2004). The case is tried "in the same manner

as other civil causes," and the commissioners' award is inadmissible. Id. In other words, the filing

of objections coupled with the service of citation on the other party signals the end of the

administrative proceeding and prevents reinstatement of the commissioners' award. State v.

Carlton, 901 S.W.2d 736, 738 (Tex. App.- Austin 1995, no writ).

Analysis

The instant case is similar to Villareal, where the notice of dismissal stated that

BY DIRECTION OF THE PRESIDING JUDGE OF SAID COURT[,] NOTICE IS HEREBY

GIVEN YOU THAT THE ABOVE CAUSE(S), UPON ORDER OF THE COURT[,] IS SET FOR

DISMISSAL ON THE 22ND DAY OF OCTOBER, 1996 .... YOU ARE REQUESTED TO BE

PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS MADE,

THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION. ALL ORDERS THAT

WILLREMOVE A CASE FROMTHE DISMISSAL DOCKET MUST BE SUBMITTED TO THE

DISMISSAL DEPARTMENT ON ORBEFORE THE DATE WHEN THE DOCKET IS CALLED.

YOU ARE REMINDED THAT THIS IS NOT A DOCKET FOR THE RE-SETTING OF CASES,

BUT FOR THEIR DISMISSAL.

Villareal, 994 S.W.2d at 629. Upon receiving the notice, Villareal 1) filed a motion to set the case

on thejury docket, 2) filed a motion to retain the case, asserting that he was ready to go to trial, and

3) appeared at the dismissal hearing and announced that he was ready for trial. Id. On appeal,

Villareal contended that dismissal wasimproper because he complied with the notice's conditions.

The Texas SupremeCourt heldthat because Villareal compliedwith allof the requirements of the

notice, the trial court abused its discretion by invoking its inherent authority to dismiss for failure
to prosecute diligently. Id. at 632.

In the instant case, the State filed a written request for a trial setting before the five-day

period mandated by the dismissal notice began. Upon receiving the request for a trial setting, the

court set the case for trial on April 12, 2004 at 9:00 a.m. The State complied with one of the three

methods delineated in the dismissal notice for keeping the case off the dismissal docket.

Accordingly, we hold that the trial court abused its discretion in dismissing the State's case by

acting without reference to its own rules. See Villareal, 994 S.W.2d at 632 ("Because a reasonable

litigant would understand that only an announcement ofready for trial would justify removal from

the dismissal docket, we reject Defendants' [argument]").

We also hold that the trial court abused its discretion by dismissing the case for lack of due

diligence in prosecuting the case because the record demonstrates the opposite. The judicial

proceedings in this case began on May 2, 2002, when the trial court invoked its jurisdiction after

the State filed its objections to the special commissioners' award. The case had been on file

approximately 17 months at the time the trial court sent notice that the case had been set for

hearing on the dismissal docket and was dismissed after being on file for approximately 19

months. Throughout those 17 months, discovery requests were sent and answered, a request for

available deposition dates for Mrs. Davis was sent, and the State's final discovery request, its

second request for admissions, was sent on February 21,2003, seven months before the court sent

the dismissal notice. Mrs. Davis answered those requests on March 24, 2003, six months before

the court sent notice that the case was being placed on the dismissal docket. On August 14,2003,

one month before the court sent the dismissal notice, Davis informed the court and the State that

Mrs. Davis had died on May 24 and that he would be taking over as the plaintiff in the case.

At the time the court sent the notice of dismissal, the case had not yet reached the 18-month

time period for disposing of cases and had not been on file since "09/01/00." The trial court

apparently mistook the date the original petition for condemnation was filed (September 1, 2000)

for the date it invoked jurisdiction over the case (May 2, 2002). Therefore, the trial court abused

its discretion bydismissing theState's casefor lackof diligence in prosecuting it when it hadonly

been on file for 17 months instead of 36 months as shown in the notice.
The State's sole issue is sustained.2

CONCLUSION

The trial court abused its discretion by dismissing the State's case when the record reflects

that 1) the State complied with the requirements contained in the notice for keeping the case from

being dismissed and 2) the case was still within the eighteen-month time period for a case to reach

its conclusion.

The judgment of the trial court is reversed and the cause is remanded to the trial court for

proceedings consistent with this opinion.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 31, 2005.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)

We have held that the trial court erroneously dismissed the State's case. Accordingly, we neednot

address Davis's contention thatthiscourtis without jurisdiction to consider the State's appeal because liveissues

regarding damages for temporary possession and attorney's fees resulting from the dismissal of the case remain in

the trial court.

8
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31, 2005

NO. 12-04-00010-CV

THE STATE OF TEXAS,

Appellant

V.

DONALD HOWARD DAVIS,

Appellee

Appeal from the County Court at Law No. 2

of Smith County, Texas (Tr.Ct.No.44,456-A)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being inspected, because it is the opinion of this Court that there was error

in the judgment of the court below it is ORDERED, ADJUDGED and DECREED by this Court

that the judgment be Reversed and the cause Remanded to the trial court For Further

PROCEEDINGS in accordance with the opinion of this court; and that this decision be certified to

the court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of"Worthen, C.J., Griffith, J., and DeVasto, J.