ChiefJustice ^£*^*^%y Clerk James T.Worthen ^et^ana^ CathyS.Lusk 

### Twelfth Court ofAppeals Justices Chief StaffAttorney 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'sjudgment. Very truly yours, CATHY S. LUSK, CLERK
By: 

# KiibuJMu Mm Katrina McClenny, ChiefDeputy Clerk

CC: Hon. John Ovard Hon. Randall L. Rogers Ms. Judy Carnes

1517WestFront Street • 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 COURTATLAW#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 forCondemnation," 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 ahearing 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-oforders, 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 conducteda 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 theirappointed counsel and transcriptpreparation 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 ofmandamus and held 

### that the trial court's ordergranting theCommissioners' recovery of theirexpenses 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.-Tyler2002, orig.proceeding). We also held that the State 

### hadnoadequate remedy byappeal. Id. at877. Wereasoned that theorderrequiring payment of the Commissioners' bill causedthe State to forfeitits right to avoidliability for an awardmadein the administrative phase and proceed to adetermination 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) anamount outside thescope 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 onMay 24, 2003 andrequesting thetrial court to name him as theplaintiffin 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 thatCourt 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 ofthe 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 ajurytrial. On November 17, the court signed an order settingthe 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 acquiredjurisdiction in May of2002. 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 ofrelevant 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 ofNovember 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 ofthe Special Commissioners June 28, 2002 State serves its Requests for Disclosure upon LandownerAugust 9, 2002 State serves its Request for Entry upon Landowner's Property on September 10, 2002 August22,2002 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 ofDeath and Order on Same
After the hearing on November 21, the trial court ordered that the case be dismissed for 

### want ofprosecution "[f]or failure to comply with the notice dated September 30, 2003 and after hearing on 11-21-03." On December4, 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 andrefusing to reinstate its case. Davis contends that this court does not havejurisdiction overthis 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 bydismissing the State's case for want ofprosecution and refusing to reinstate it.
Standard ofReview 

### 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 thehearing on the motion to dismiss.reinstate is whether the trial court committed a clear abuse of discretion, and the main issue is whetherthe plaintiffexercisedreasonable 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 ofactivity 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. App

### Texarkana 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. SeeFederalDepositIns. 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 whetherthe 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 concludethat a trial court abusedits discretion simply because, in the same circumstances, itwould 

### have ruled differently, or because the trial court committeda 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, 994S.W.2dat630;Allen v. Rushing, 129S.W.3d226,230 (Tex. App- Texarkana 2004, no pet.). 

### The trial court did not specify under what authority it dismissed the case. However, weknow from the record that the State did not fail to appearfor trial or a hearing. Therefore, the trial courtcouldhave dismissed the case onlybecausethe suit was notdisposed ofwithin the applicable time periods or for lack ofdue diligence in prosecutingthe case "becauseit [had] been on file since 09/01/00." Forjurytrials, which the Staterequested, the applicable timeperiodis 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 ofdismissal 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 FROMTHEDISMISSAL DOCKET MUST BE SUBMITTED TO THE DISMISSALDEPARTMENT ON ORBEFORETHE DATEWHEN THE DOCKETIS 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 amotion 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 contendedthat dismissal wasimproperbecause hecompliedwith thenotice's conditions. 

### The Texas SupremeCourt heldthatbecause Villareal compliedwith allof therequirements of the notice, the trial court abused its discretion by invoking its inherent authority to dismiss for failureto 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 withoutreference to its own rules. See Villareal, 994 S.W.2dat 632 ("Because areasonable 

### litigant would understandthat only an announcement ofready for trial wouldjustifyremoval from the dismissal docket, we reject Defendants' [argument]"). 

### We also hold that the trial court abusedits 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 itsjurisdiction 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 plaintiffin 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 invokedjurisdiction over the case (May 2, 2002). Therefore, the trial court abused 

### itsdiscretion bydismissing theState's casefor lackofdiligence inprosecuting itwhen 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 abusedits 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 periodfor a case to reach
its conclusion. Thejudgment ofthe 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 ofWorthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)

We have held that the trial courterroneously dismissed the State's case. Accordingly, we neednot address Davis'scontention thatthiscourtis withoutjurisdiction toconsider 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 ofSmith 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 ofthis Court that there was error 

### in thejudgment ofthe 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 ofthis court; and that this decision be certified to the court below for observance. James T. Worthen, ChiefJustice. Panel consisted of"Worthen, C.J., Griffith, J., and DeVasto, J.