### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00480- CV

Daneshjou Com pany, I nc., Appellan t

v. Mike Sand ers, Individ ually an d d/ b/a Modern Design & Construction; and

Mullican Flooring, Appellees

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 04- 2796 32, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Dane shjou Company , I n c. ap p eals from an order dismiss ing its claims ag ainst Mike Sanders, I ndividually and d/b/a Modern Desig n & Cons t ruction, and Mullican Flooring for
want of prosec ution. Dane shjou contends that its failure to prosec ute this case for near ly four y ear s afte r filing it was neither intentional nor the result of conscious indiffer ence , but was due in part to t h e refusal of appellee s’ counsel to respond to a reque st for ag ree ment to substitut ion of co u n s el and to confusion as to who was repr esenting Dane shjou in this case . We aff irm the dismiss al for want of pr osecution.

Dane shjou filed this suit on J uly 16, 2004, alleg ing damag es resulting from Sanders’ s installation of wood flooring manufa cture d by Mullican. On November 15, 2004, Mullican filed an

answe r. Sanders filed his answe r on J une 1, 2005. The next filing in the cler k’s rec ord is a chang eof-a ddress notice from Sanders’ s counsel, fi l ed Oc t o b er 3, 2005. Dane shjou asser ts withoutcontra diction that it reque sted that attorney Dolezal substitut e as counsel in this case on J une 7, 2007,

althoug h there is no indication of this reque st in the rec ord. The trial court sent notice of its intention
t o d i s miss this case for want of prosec ution on April 20, 2008. The next activities in the rec o rd 1

are Dane shjou’s Motion to Retain Case on C ourt’s Docke t and Unopposed Motion to Wit hdraw and Substi tute Attorney in Charg e, fi l ed May 27, 2008. The district court dismiss ed this case for want of pr osecution on May 30, 2008. We revie w a dismiss al of a ca s e fo r want of prosecution or a decision on a mot ion
to reinstate to deter

mine whether the trial court clea rly abused its discretion. City of Houston

v. Malone , 828 S.W .2d 567, 5 6 8 (Tex

. App.—Houston [14t h Dist.] 1992, no writ); see Polk

v. Southw est Crossing Homeowne rs Ass’n , 165 S.W .3d 89, 96 (Tex. App.—Houston [14t h Dist.] 2005, pet. denied)

. A court abuses its dis cr et i o n by acting without ref ere nce to any g uiding rules and princ iples. Downer v. Aquam arine Operators, Inc

. , 701 S.W .2d 238, 241-42 (Te x . 1985).

A court may dismiss a ca s e fo r wa nt of prosec ution under either Rule 165a or under i t s common law inhere nt authority

. Alexande r v. Lynda’s Boutique , 134 S.W .3d 845, 850 (Tex. 2004). Any case not disposed of within the supreme court’s time standard may be place d on a dismiss al docket. Tex. R. Civ. P. 165a(2)

. Statutory county court judge s should, so far as rea sonably possible, ensure th at al l n o n -f amily civil jury case s are broug ht to trial or final dispositi on within eig hteen months from appea ranc e date. Tex. R. J ud. Admin. 6(b)( 1). I n deter mining whether a party has demons t ra t ed a lack of diligenc e in prosec uting a claim, a trial court may consider the entire

This is demonstrated by a statement in the Orde r of Dismissal, signe d May 30, 2008. An 1 entry in the t rial court’s docket statement rec ites that this case wa s place d on the dismissal docket on April 17, 2008. 2history of the case , including the leng th of time the case was on file, the extent of activity in the case ,

whether a trial s et t i n g was reque sted, and the exis tence of rea sonable excuses for delay

. Jimene z

v. Transw estern Prop. Co. , 999 S.W .2d 125, 129 (Tex. App.—Houston [14t h Dist.] 1999, no pet.). No single fac tor is dispositi ve, and a belated trial setting or stated rea diness to proce ed to trial does not establish diligenc e. Id.

This case had been pending near ly four y ear s when it was dismiss ed. Dane shjou filed the motion to reta in three y ear s afte r Sanders answe red. There was essentially no activity in the case during that time. The trial court’s docket sheet lists no activity betwee n October 3, 2005—appellee ’s counsel’s chang e of addre ss notific ation—and April 17, 2008—the cour t’s notice placing the case

on the dismiss al docket. Appellee s asser t in their brief without contra dicti o n t h at no discovery

occur red, and we find no indication in the rec ord that any did. We find no trial setting in the rec ord, and we find no indication that Dane shjou was diligen t ly prosec uting this matter or was rea dy to proce ed. Dane shjou asser ts that the delay in prosec ution was due to appellee s’ failure to respond to his reque sts for ag ree ment with his motion to substitut e counsel and confusion over which counsel

was repr esenting Dane shjou in this case durin g this period. Even if appellee s’ failure to respond could somehow have preve nted Dane sh j o u fr o m filing the motion or if confusion over who was repr esenting Dane shjou preve nted prosec ution beg inning J une 7, 2007, the y ear s of inactivity befor e that date rema in unexplained and unexcused. Cf. Brown v. Howeth Invs., Inc. , 820 S.W .2d 900, 901 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (p l ai n t i ff who obtained new counsel afte r becoming dissatisfied with orig inal counsel’s inactivity afte r 16 months entitled to reinstateme nt). There is no showing of acc ident or mistake causing Dane shjou’s failure to prosec ute the case . There

3is no indication in the rec ord that Dane shjou took any actions toward prosec uting the case other than

try ing to reta in the case on the trial court’s docket. Ba sed on the y ear s of Dane shjou’s failure to prosec ute or pursu e t his case , we conclude that the trial court did not abuse its discretion by dismiss ing this case for want of prosec ution under either the rules of proc ed u re o r p u rsuant to its inhere nt power.

Affir med.

G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: De cembe r 2, 2009

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