ida-mae-anderson-sallie-baylor-christal-boone-elaine-coleman-katie ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00203-CV
IDA MAE ANDERSON, SALLIE BAYLOR,
CHRISTAL BOONE, ELAINE COLEMAN,
KATIE DELANEY, RAYMOND C. GREEN,
DORIS M. HALL, MARGARET HARRIS,
MARY LEE JONES, WILBUR JONES, HARVEY
L. MCMURRAY, BENJI NEWMAN, CADINO
NEWMAN, RUBY SHAW, HELEN SMITH,
HOSEA W. TATE, SR.,
Appellants
v.
CIRCLE X LAND & CATTLE CO., LTD.,
Appellee
From the 82nd District Court
Robertson County, Texas
Trial Court No. 00-12-16,098-CV-A
MEMORANDUM OPINION
Ida Mae Anderson and twenty other heirs (hereinafter “Anderson”) who each
own undivided interests in a parcel of real property appeal the granting of a motion for
traditional summary judgment in favor of Circle X Land & Cattle, Ltd. See TEX. R. CIV.
PROC. 166a(c). The trial court granted a motion for a partial summary judgment filed by
Circle X and entered an order that granted Circle X a judgment for amounts Circle X
paid to the taxing authority for property taxes and granted Circle X subrogation rights
to the real property. The trial court then severed the remainder of the case from that
order, making that order a final judgment as to those claims. Anderson complains that
the trial court erred in granting the motion for summary judgment, erred by granting
the severance, and erred by denying their motion for dismissal for want of prosecution.
Because we find that the trial court abused its discretion by denying Anderson’s motion
to dismiss, we reverse the judgment of the trial court.
Circle X purchased the interests of three of the heirs who owned undivided
interests in the property, which originally consisted of approximately 369 acres. Circle
X paid the entire balance of the property taxes that were due on the property for three
tax years. In December of 2000, Circle X filed a petition against Anderson and the
twenty other heirs in order to be reimbursed for property taxes that Circle X had paid
on the entire parcel of land and later added a suit to demand partition of the property.
Anderson’s Motion to Dismiss
When multiple grounds for reversal of a judgment on appeal are presented, we
first address those points or issues that would afford a party the greatest relief. CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Bradleys' Elec., Inc. v. Cigna Lloyds Ins.
Co., 995 S.W.2d 675, 677 (Tex. 1999). If disposition of one issue would result in a
rendition, the court should consider that issue before addressing any issues that would
only result in a remand. Bradleys' Elec., 995 S.W.2d at 677.
Anderson v. Circle X Land & Cattle Co., Ltd. Page 2
The trial court first sent a notice of hearing for a dismissal for want of
prosecution on February 12, 2004. Circle X responded by filing a motion to retain the
case. Anderson filed a motion to dismiss or alternatively, to abate the case on
September 27, 2007. A hearing was set on October 9, 2007, at which time it appears that
the trial court deferred a ruling for 45 days to allow Circle X to make progress on the
case. A second hearing on that motion was heard on May 19, 2008, the same day as the
hearing on the motion for summary judgment. The trial court denied the motion to
dismiss by a written ruling on May 23, 2008. Anderson complains that the trial court
abused its discretion in denying the motion to dismiss.
Abuse of Discretion
A trial court’s ruling on a motion to dismiss is reviewed under an abuse of
discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997);
Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.—San Antonio 1998, pet.
denied); Christian v. Christian, 985 S.W.2d 513, 514 (Tex. App.—San Antonio 1998, no
pet.) An abuse of discretion with respect to factual matters occurs if the record
establishes that the “trial court could reasonably have reached only one decision.”
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Christian, 985 S.W.2d at 514. The
question is whether the trial court acted without reference to any guiding rules and
principles, or whether the act was arbitrary or unreasonable. On factual issues or other
matters committed to the trial court’s discretion, we may not substitute our judgment
for that of the trial court. Walker, 827 S.W.2d at 839. Even if we would decide the issue
differently, we should not disturb the trial court’s decision unless it is without reference
Anderson v. Circle X Land & Cattle Co., Ltd. Page 3
to any guiding rules and principles, or it is arbitrary and unreasonable. Walker, 827
S.W.2d at 840; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding); see also MacGregor, 941 S.W.2d at 76.
However, we give less deference when we review the trial court’s application of
the law. A trial court has no discretion to determine what the law is or to apply the law
to the facts. Walker, 827 S.W.2d at 840. The trial court’s clear failure to analyze or
correctly apply the law is an abuse of discretion. Walker, 827 S.W.2d at 840.
Dismissal for Want of Prosecution
There are three grounds upon which a trial court may dismiss a case: (1) when a
party fails to appear at a hearing or trial pursuant to Texas Rule of Civil Procedure
165a(1); (2) when the case has not been disposed of within the Supreme Court’s time
standard pursuant to Texas Rule of Civil Procedure 165a (2); and (3) by the trial court’s
inherent power to dismiss when the case has not been prosecuted with due diligence.
See Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex. 1999). On
appeal, Anderson raises only the abuse of discretion in the trial court’s failure to invoke
its inherent power to dismiss.
Whether a plaintiff has prosecuted a case with diligence is generally a question of
fact. See MacGregor, 941 S.W.2d at 75-76; Christian, 985 S.W.2d at 515. In determining
whether due diligence exists, the trial court may consider the entire history of the case.
See Christian, 985 S.W.2d at 514-15. The traditional factors that may be considered are
(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 reasonable excuse for
Anderson v. Circle X Land & Cattle Co., Ltd. Page 4
delay. See WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006,
pet. denied); Christian, 985 S.W.2d at 514-515. No single factor is dispositive. Id.
However, the failure to exercise due diligence is conclusively established if (1) the delay
in prosecuting a case is unreasonable as a matter of law and (2) the delaying party fails
to establish a “sufficient excuse.” Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491
(1942); Christian, at 515.
In this case, the original petition was filed on December 12, 2000. An answer was
filed by all of the named defendants by one attorney on February 28, 2001. A final
hearing was set on September 21, 2001. On September 11, 2001, a claim for a partition
was added in an amended petition filed by Circle X. Circle X filed a motion to show
authority for the attorney’s representation of all of the listed defendants. The trial court
granted the motion and struck the answer of all of the defendants except for Appellants.
The trial court sent a notice to the parties of a dismissal hearing on February 12,
2004 due to a lack of activity on the case for more than a year. Circle X filed a motion to
retain the case, citing that the parties were attempting to reach an agreed settlement on
the partition. A motion to quash regarding two depositions was filed by Circle X on
January 21, 2005. An order granting Anderson’s motion to abate was signed on March
15, 2005 as to the partition action only in order for Circle X to join the necessary parties,
as the defendants whose answers had been stricken had not yet been served. A final
hearing was set for September 12, 2005, apparently while the case was still abated. The
abatement was lifted by agreement on February 14, 2007, although service had not yet
been completed on any of the other named defendants whose answers had been
Anderson v. Circle X Land & Cattle Co., Ltd. Page 5
stricken. Anderson filed their motion to dismiss or to abate on September 27, 2007,
which was set for hearing on October 16, 2007. A letter from Anderson on November
27, 2007 is the only document in the clerk’s record until Circle X filed a motion for
summary judgment on March 6, 2008, which was granted as to the money judgment
and equitable subrogation issues only on June 5, 2008, and denied as to the dismissal.
The case was on file for almost seven and a half years. See Denton County v.
Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (delay of seven years is unreasonable as a
matter of law). Compare TEX. R. JUD. ADMIN. 6(b)(2), reprinted in TEX. GOV’T CODE ANN.,
tit. 2, subtit. F app. (Vernon Supp. 2008) (civil nonjury cases should be tried within
twelve months). The only defendants that were served in the case were the Appellants.
There is nothing in the record to demonstrate any attempts by Circle X to serve the
other named defendants at any time, even after the case was abated for Circle X to
attempt to serve the other defendants. Circle X did not file a response to the motion to
dismiss. The transcript of the hearing where the trial court denied Anderson’s motion
to dismiss is brief. Circle X did not make any attempt to explain its lack of diligence,
other than to vaguely reference attempted settlement as to the partition action, even
when specifically asked to explain by the trial court. At the time of the hearing, the
motion to sever had not yet been filed.
In its brief to this Court, Circle X merely states in response to Anderson’s issue
that the trial court did not err in denying the motion to abate because the other named
defendants were not necessary to the money judgment for the reimbursement of the
property taxes or the judgment granting equitable subrogation. There is still no
Anderson v. Circle X Land & Cattle Co., Ltd. Page 6
explanation as to why the delay of more than seven years was necessary or why the
case needed to be abated if the parties were not necessary. If this were the case, there is
certainly no explanation as to the necessity to wait for seven years to file the motion for
partial summary judgment at issue before us. We find that the length of time the case
remained pending with no action and no explanation for the lack of activity in what
even Circle X asserts is a simple action for reimbursement for taxes was unreasonable as
a matter of law and that the trial court abused its discretion in determining that Circle X
exercised due diligence in the prosecution of this case as they provided virtually
nothing to rebut that conclusion.
We have recently addressed the issue of the denial of a motion to dismiss for
want of prosecution and found that the trial court did not abuse its discretion in
denying that motion after a delay of twelve years. See Flying Diamond-West Madisonville
Ltd. P'ship v. GW Petroleum, Inc., No. 10-07-00281-CV, 2009 Tex. App. LEXIS 6891 (Tex.
App.—Waco Aug. 26, 2009, no pet. h.). However, we find that case to be
distinguishable. The legal issues involved in Flying Diamond were extensive both in
length and complexity, which is not present in this case. Additionally, in that case, a
response was filed by the plaintiffs and an explanation as to specific reasons for the
delay was given in that response and in the hearing on the motion which we held was a
reasonable explanation for the delay. See Flying-Diamond, 2009 Tex. App. LEXIS 6891 at
*10. Circle X did neither.
Anderson v. Circle X Land & Cattle Co., Ltd. Page 7
The trial court abused its discretion by not granting Anderson’s motion to
dismiss. We sustain issue three. Because we sustain this issue, we do not reach
Anderson’s first issue.
Severance
Generally, we would not reach Anderson’s second issue based on our disposition
of issue three. However, due to the somewhat unique procedural history of the case,
we find it necessary to address Anderson’s second issue, albeit in an abbreviated
manner. See TEX. R. APP. P. 43.3 & 47.1. Anderson’s complaint in their second issue is
that the trial court erred by granting a severance of the partition claim from the money
judgment for reimbursement and equitable subordination claims. Circle X filed a
motion to sever the claims on March 3, 2009, which was granted by the trial court on
March 30, 2009. The partition claim was severed into a new cause number, making the
partial judgment granting the motion for summary judgment final for purposes of
appeal. Because we have held that the trial court should have granted the motion to
dismiss the suit in its entirety prior to the severance, it is necessary for our disposition
of this appeal that the severance must also be set aside based on the prior error
regarding dismissal. We sustain issue two.
Conclusion
We find that the trial court abused its discretion by denying Anderson’s motion
to dismiss. Because the trial court should have dismissed Circle X’s claims in their
entirety, the order of severance was also erroneous and is set aside. Therefore, we
Anderson v. Circle X Land & Cattle Co., Ltd. Page 8
reverse the judgment of the trial court and render a judgment of dismissal as to all
claims filed by Circle X.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
“(Justice Davis concurs in part with the Court’s judgment that the judgment
should be reversed. He dissents in part because the cause should not have been severed
and therefore, would remand. He does not join the Court’s opinion. A separate
opinion will not issue.)”
Reversed and rendered
Opinion delivered and filed March 24, 2010
[CV06]
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