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., HILLENBRAND INDUSTRIES, HILL-ROM 

HOLDINGS, INC., and HILL-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., Relators, we must decide whether 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 Relators lack an adequate remedy by appeal. See 
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In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. 

proceeding). Accordingly, we deny the 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. Relators filed their original answer in 

February 2010.1

 Henson’s July 2010 supplemental response to requests for 

disclosure identified medical expenses of $22,363.13 and 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 trial judge assumed responsibility 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 designated her expert witnesses.

                                                             1

 An affidavit attached to the answer includes statements that Hill-Rom 

Holdings, Inc. was formerly known as Hillenbrand Industries, Inc., 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. 
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On January 23, 2018, Relators filed a motion to dismiss for want of 

prosecution and alternatively, for a continuance. 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 trial setting from the court, he 

immediately provided the medical records affidavits and designated 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 they were ready to try the 

case in February. The trial court denied the motion to dismiss but granted the motion 

for continuance and allowed Henson to be re-deposed. On February 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 clear abuse of discretion for which the 

relator has no adequate 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 fails 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. 
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law correctly because a trial court has no discretion 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 adequacy of an appellate remedy 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 rights from impairment or loss.” Id. “These 

considerations implicate both public and private interests.” Prudential, 148 S.W.3d 

at 136. We consider whether an irreversible waste of judicial and public resources 

would be required if mandamus 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 considerable 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 duration . . . , 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 presumption justifies the dismissal of a suit under either 

a court's inherent authority or Rule 165a of the Texas Rules of Civil Procedure.” Id.
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(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 provide that district and statutory county 

court judges “should, so far as reasonably possible, 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 within eighteen months of the appearance date. 

Tex. R. Jud. Admin. 6.1(b). Henson failed to prosecute her case to conclusion within 

the eighteen-month administrative time standard. See Id. 

 “Absent any reasonable explanation for 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 trial sooner and concluded that Henson had 

not abandoned her case. 
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The differences between the facts of this 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 respond 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 docket 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 explanation 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 obtained her medical 

records, and there is no indication that she 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 first 
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time in January 2018. Henson designated her witnesses and provided her medical 

records to Relators before Relators filed 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. 
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DISSENTING OPINION 

In this case, the majority holds that the trial court could have reasonably 

accepted the explanation offered by the attorney who appeared on behalf of Martha 

Henson at a motion to dismiss hearing to explain the approximate eight-year period 

between the date the defendants 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 the trial court conducted on the defendants’ 

motion to dismiss, and the record contains no affidavit or correspondence from 

Henson’s attorney in charge to explain why the delays in Henson’s case occurred. 

The explanation that appears in the record 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 that “if I would have known about it sooner, 

                                                             1

 Rule 8 of the Texas Rules of Civil Procedure makes the “attorney in charge 

. . . responsible for the suit as to such party.” Tex. R. Civ. P. 8. 
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realized it, there would have been more done.” Then, the associate explained that 

because he did not know about the case, “that’s why there isn’t any more done than 

there is.” 

This explanation is apparently what both 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 eighteen months of the date the defendants 

appeared in the suit. See id. In my opinion, the explanation offered by the associate 

served as no explanation for the significant delays apparent in the record. The 

associate obviously had very little if any knowledge 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 Henson’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 proceeding. 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 explanation for the delay, the trial court clearly 

abused its discretion by disregarding the conclusive presumption of abandonment.” 

Conner, 458 S.W.3d at 535. 
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I would conditionally grant the Relators’ 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 complain of delay in the trial court.” Id. Because 

the majority fails to grant the Relators’ request for relief, I dissent. 

 ________________________________ 

 HOLLIS HORTON 

 Justice 

Dissent Delivered 

April 5, 2018