1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-18-00072-CV



### _________________ IN RE CHARLES CURTIS NOWELL JR., MEDIQ-PRN LIFE SUPPORT SERVICES, INC., HILLENBRAN D INDUSTRIES, HILL-ROM HOLDINGS, INC., and HI LL-ROM COMPANY, INC.

___________________ __________________ __________________ _________________ Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-185,832

___________________ __________________ __________________ _________________ OPINION In this mandamus proceeding filed by Charles Curtis Nowell, Jr., Mediq-PRN Life Support Services, Inc., Hillenbrand Industries, Hill-Rom Holdings, Inc., and Hill-Rom Company, Inc., Relat ors, we must decide whet her the trial court clearly abused its discretion by denying a motion to dismiss for want of prosecution when that motion was filed after the trial court set the case for disposition on the trial docket. We conclude Relators have not established that the trial court committed a clear abuse of discretion for which Relat ors lack an adequate remedy by appeal. See2 In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Accordingly, we deny th e petition for a writ of mandamus. Background Martha Henson sued Relators for personal injuries that Henson sustained in a January 29, 2008, motor vehicle accident. Rel ators filed their original answer in February 2010. 1 Henson’s July 2010 supplemen tal response to requests for disclosure identified medica l expenses of $22,363.13 a nd lost wages of $1,573.80. In August 2010, Relators took Henson’s deposition and she supplemented her disclosures to increase her medical expenses to $22,431.13. Henson obtained medical records dated as of March 10, 2010, and she received additional medical records in July 2010. In January 2017, a newly elected tria l judge assumed re sponsibility for the court. After Relators’ telephone inquiry regarding the status of the case, the trial court set the case on the trial docket for April 2018. In January 2018, Henson disclosed additional medical records that had been obtained between 2008 and 2011. At that time, Henson designa ted her expert witnesses.

1 An affidavit attached to the answer includes statements that Hill-Rom Holdings, Inc. was formerly known as Hill enbrand Industries, In c., that Mediq-PRN Life Support Services, LLC is a subsidiary of Hill-Rom Company, Inc., the employer of Charles Curtis Nowell Jr., and Hill-Rom Company, Inc. is a subsidiary of HillRom Holdings, Inc.3 On January 23, 2018, Relators filed a motion to dismiss for want of prosecution and alternatively, for a conti nuance. Counsel for Relators informed the trial court that the case had never been on the trial docket. In the hearing on the motion to dismiss for want of prosecution, Henson’s counsel explained that he joined the law firm after the case was filed, but he was unaware of the case until it appeared on the docket. 2 Upon receiving notice of the tr ial setting from the court, he immediately provided the medical record s affidavits and de signated experts. Henson’s counsel added that he was unaware that the case had ever appeared on a dismissal docket before that day, and he announced that th ey were ready to try the case in February. The trial court denied th e motion to dismiss but granted the motion for continuance and allowed He nson to be re-deposed. On Fe bruary 1, 2018, the trial court signed an order denying the motion to dismiss for want of prosecution and set the case for a July 2018 trial. Mandamus Review Mandamus will issue only to correct a cl ear abuse of discretion for which the relator has no adequa te remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d at 135–36. A trial court abuses its discretion if it fa ils to analyze or apply the

2 Henson’s original counsel of record did not appear at the hearing, but instead, an associate not employed with the law firm at the time of filing appeared and explained the delay.4 law correctly because a trial court has no di scretion in determining what the law is or applying the law to the facts. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “The ad equacy of an appellate re medy must be determined by balancing the benefits of mandamus review against the detriments.” In re Team Rocket, L.P. , 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). “In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural ri ghts from impairment or loss.” Id. “These considerations implicate both public and private interests.” Prudential , 148 S.W.3d at 136. We consider whether an i rreversible waste of judi cial and public resources would be required if ma ndamus does not issue. In re Masonite Corp , 997 S.W.2d 194, 198 (Tex. 1999). Dismissal for Want of Prosecution Trial courts are generally granted c onsiderable discretion when it comes to managing their dockets. Such discretion, however, is not absolute. It has long been the case that “a delay of an unreasonable dura tion . . . , if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit.” In re Conner , 458 S.W.3d 532, 534 (Tex. 2015) (quoting Callahan v. Staples , 161 S.W.2d 489, 491 (Tex. 1942)). “This pres umption justifies the dismi ssal of a suit under either a court's inherent authority or Rule 165a of the Texas Rules of Civil Procedure.” Id.5 (citing Villarreal v. San Antonio Truck & Equip ., 994 S.W.2d 628, 630 (Tex. 1999) (recognizing both common law source of power and rule based source of power)). The Rules of Judicial Administration prov ide that district and statutory county court judges “should, so far as reasonably po ssible, ensure” that civil cases in which a jury has been demanded, other than those arising under the Family Code, are brought to trial or final disposition with in eighteen months of the appearance date. Tex. R. Jud. Admin. 6.1(b) . Henson failed to prosecute he r case to conclusion within the eighteen-month administrative time standard. See Id

. “Absent any reasonable explanation fo r the delay, the trial court clearly abuse[s] its discretion by disregarding the conclusive presumption of abandonment.” In re Conner , 458 S.W.3d at 535. Relators argue Henson failed to provide good cause for the delay. Relying upon In re Conner , Relators argue a conclusive presumption that Henson abandoned her case operates to require the trial court to grant their motion to dismiss the case for want of prosecution. In this case, Henson’s counsel appeared and explained why the case had not been prosecuted. The trial court evidently determined that counsel sufficiently explained why the case had not gone to tr ial sooner and conclu ded that Henson had not abandoned her case.6 The differences between the facts of th is case and the situation presented in Conner are sufficient for the trial court to reasonably conclude that Henson established good cause to retain the case on the docket. The cases are similar in that the suit commenced near the end of the limitations period and remained on the docket for a period of time well exceeding the administrative time standards. See id

. at 534. But, in Conner the plaintiffs had failed to re spond to discovery for four years when the defendant filed its first motion to dismiss the case for want of prosecution. Id. The trial court retained the case on the doc ket after plaintiffs’ counsel attributed the delay to his health issues. Id. The plaintiffs then did nothing further to pursue their case for another two years. Id. The defendant filed a second motion to dismiss for want of prosecution. Id. At the hearing on the second motion, the defendant refuted counsel’s explanati on offered for the delay by showing that plaintiffs’ counsel had appeared in many different matters in the prior two years. Id. In this case, Henson submitted to a deposition and obtai ned her medical records, and there is no indication that sh e failed to respond to requests for discovery. Sufficient facts were before the trial court to enable the trial court to conclude that the delay was not attributable to conscious indifference but that the lawsuit had not proceeded to trial because both the trial court and plaintiff’s counsel had inadvertently lost track of the case. The case was set on the trial docket for the first7 time in January 2018. Henson designated her witnesses and pr ovided her medical records to Relators before Relators file d a motion to dismiss the case for want of prosecution. Relators have not shown that the trial court clearly abused its discretion. The petition for a writ of mandamus is denied. PETITION DENIED.

_______ _________________________ CHARLES KREGER Justice Submitted on March 8, 2018 Opinion Delivered April 5, 2018 Before Kreger, Horton, and Johnson, JJ.1 DISSENTING OPINION In this case, the majority holds that the trial court c ould have reasonably accepted the explanation offered by the atto rney who appeared on behalf of Martha Henson at a motion to dismiss hearing to explain the approximate eight-year period between the date the defenda nts appeared in response to Henson’s suit and the date the trial court denied the defendants’ motion to dismiss. The Rules of Judicial Administration that applied to Henson’s case required that her case be finally resolved within an eighteen-month period, which started in February 2010. Tex. R. Jud. Admin. 6.1(b)(1). The “attorney in charge” 1 of Henson’s case never appeared during the hearing th e trial court conducte d on the defendants’ motion to dismiss, and the record cont ains no affidavit or correspondence from Henson’s attorney in charge to explain w hy the delays in Henson’s case occurred. The explanation that appears in the r ecord came from an associate of the attorney in charge. The record does not show that the associate was ever the “attorney in charge” of Henson’s case. And, during the hearing, the associate advised the trial court that he had not “even made an appearance in the case until today[.]” The associate also advised the trial court th at “if I would have known about it sooner,

1 Rule 8 of the Texas Rules of Civil Pr ocedure makes the “attorney in charge . . . responsible for the suit as to such party.” Tex. R. Civ. P. 8.2 realized it, there would have been more done.” Then, the associate explained that because he did not know about the case, “t hat’s why there isn’t any more done than there is.” This explanation is apparently what bot h the trial court and the majority accept as constituting a reasonable explanation for the attorney in charge of Henson’s case to bring the case to a conclusion within ei ghteen months of the date the defendants appeared in the suit. See id . In my opinion, the explana tion offered by the associate served as no explanation for the significan t delays apparent in the record. The associate obviously had very little if any knowle dge about the history of Henson’s file, and it is apparent that he was unaware of the file until the attorney in charge recognized that he had not handled He nson’s suit in a timely manner. In my opinion, In re Conner , 458 S.W.3d 532 (Tex. 2015) controls our disposition of this original proceedi ng. No reasonable explanation appears explaining why Henson’s suit was not handled within the eighteen-month time period established by the Rules of Judicial Administration. See Tex. R. Jud. Admin. 6.1(b)(1). “Absent any reasonable explanati on for the delay, the trial court clearly abused its discretion by disregarding the conclusive presumption of abandonment.” Conner , 458 S.W.3d at 535.3 I would conditionally grant the Relator s’ petition for writ of mandamus and direct the trial court to vacate its order denying the Relators’ motion to dismiss and to render an order dismissing the suit. “A defendant should not be required to incur the delay and expense of appeal to co mplain of delay in the trial court.” Id . Because the majority fails to grant the Rela tors’ request for relief, I dissent.

_____________ ___________________ HOLLIS HORTON Justice Dissent Delivered April 5, 2018