in Re Christopher Callano, Relator ( 2017 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00435-CV
IN RE CHRISTOPHER CALLANO, RELATOR
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
December 18, 2017
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Christopher Callano petitioned for a writ of mandamus. He asks that we direct the
Honorable Stuart Messer, Judge of the 100th Judicial District Court, to dismiss the civil
forfeiture action filed by the State of Texas in Carson County, assigned No. 11707, and
styled State of Texas v. Approximately $198,006.00 United States Currency. He argues
that the proceeding was “conclusively abandoned” by the State because there had been
no final disposition of it within twelve months of the date he filed an answer and appeared
in the cause. We deny the petition.
Authority
It cannot be doubted that a plaintiff has the duty to prosecute his suit to a
conclusion with reasonable diligence. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015).
Furthermore, Texas Rule of Civil Procedure 165a(2) provides that “[a]ny case not
disposed of within time standards promulgated by the Supreme Court under its
Administrative Rules may be placed on a dismissal docket.” TEX. R. CIV. P. 165a(2). And,
absent any reasonable explanation for the delay, the trial court would be authorized to
dismiss it. In re Conner, 458 S.W.3d at 535.
Here, the administrative rule in play is Rule 6.1(a)(2). It provides that “[d]istrict and
statutory county court judges of the county in which cases are filed should, so far as
reasonably possible, ensure that all cases are brought to trial or final disposition in
conformity with the following time standards . . . Civil Nonjury Cases. –Within 12 months
from appearance date.” TEX. R. JUD. ADMIN 6.1(a)(2). Callano argues that this rule was
violated which mandates the dismissal of the State’s suit.
Analysis
The record at bar illustrates that Callano filed his answer or appearance in the
forfeiture case on May 5, 2016. Thus, the suit allegedly had to be finally disposed of by
May 5, 2017, absent a reasonable explanation for the delay. Since the suit remained
pending on the trial court’s docket once the anniversary date passed, Callano moved to
dismiss it. The matter came for hearing.
At that hearing, the State informed the trial court not only that discovery it served
on Callano remained unanswered but also that it had moved for summary judgment. That
led the trial court to discuss the outstanding discovery with Callano’s attorney. Said
attorney conceded that the discovery was outstanding but argued that such was of no
consequence because it was the State’s obligation to compel him to comply. That lead
the trial court to ask: “[a]nd so if they had a Motion to Compel and asked for attorneys
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fees, you think that would be appropriate because you’re telling me that you did it
deliberately?” (Emphasis added). Callano’s attorney replied: “If they had done that
within the time period that they had to prosecute this case before it was abandoned, I
would agree with that a hundred percent, Your Honor.” (Emphasis added).
The foregoing exchange reveals the presence of a reason for the delay, at least in
part. Despite the expectation that parties and their attorneys cooperate in discovery, TEX.
R. CIV. P. 191.2, Callano “deliberately” neglected to respond to discovery served on him
by the State and admitted through his attorney that his conduct would warrant the
imposition of sanctions if the suit were not subject to dismissal. So, the trial court had
evidence before it (i.e., the admission by Callano’s attorney) from which it could
reasonably infer that Callano resurrected impediments to “the efficient disposition of the
case.” Id. (obligating the parties and their attorneys to also make any agreements
regarding discovery reasonably necessary “for the efficient disposition of the case”).
Though mandamus may be a legal remedy, the equitable doctrine of unclean
hands plays a role in its availability. See Axleson, Inc. v. McIhany, 798 S.W.2d 550, 552
n.2 (Tex. 1990) (orig. proceeding) (stating that “[m]andamus is a legal remedy, but it is
governed to some extent by suitable principles” and “the doctrine of unclean hands has
been used to deny issuance of the writ.”); In re Jim Walter Homes, Inc., 207 S.W.3d 888,
899 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (stating the same).
Moreover, the doctrine normally applies to situations where one’s own conduct in
connection with the matter in dispute has been unconscientious, unjust or a want of good
faith and such conduct exposed the complaining party to injury. In re Jim Walter Homes,
207 S.W.3d at 899. We find it rather problematic to dismiss the State’s suit because of a
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delay in its timely disposition when the delay was caused, in part, by Callano’s deliberate
disregard of his obligation to cooperate in discovery. That would be tantamount to
rewarding him for his unconscientious actions to the rather extreme detriment of the State.
In short, the trial court had before it both a reasonable explanation of the delay and
the State’s motion for summary judgment filed in effort to dispose of the suit, as required
by In re Conner. Additionally, the relief asked of us tends to reward Callano for his own
deliberate conduct that violated the rules of civil procedure. Both circumstances compel
us to deny the petition for a writ of mandamus.
Brian Quinn
Chief Justice
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