Historic Lufkin Manor, LLC v. Great Central Mortgage Acceptance Co., Ltd. ( 2013 )

NO. 12-12-00105-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
HISTORIC LUFKIN MANOR, LLC, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
GREAT CENTRAL MORTGAGE
ACCEPTANCE CO., LTD.,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Historic Lufkin Manor, LLC (Historic Lufkin) appeals from the trial court’s order
dismissing its wrongful foreclosure suit for want of prosecution. In one issue, Historic Lufkin
argues that the trial court abused its discretion in dismissing its suit for want of prosecution. We
affirm.
BACKGROUND
The record before us shows the following facts:
1. February 1, 2011—Historic Lufkin filed suit against Great Central Mortgage Acceptance
Co., Ltd. (Great Central) for wrongful foreclosure and trespass to try title.
2. February 7, 2011—Great Central Mortgage was served with the suit.
3. February 24, 2011—Great Central Mortgage filed an original answer and general denial.
4. February 8, 2012—Great Central filed a motion to dismiss for want of prosecution.
5. February 14, 2012—A new attorney filed a notice of appearance on behalf of Historic
Lufkin.
6. February 22, 2012—Historic Lufkin filed a first amended petition adding Sara E. Dysart,
Individually; Sara E. Dysart, as Substitute Trustee for Broadway National Bank
Custodian for Self-Directed IRA Account No. 67, formerly Account No. 67308; Sara
Dysart, P.C.; and Broadway National Bank Custodian for Self-Directed IRA Account No.
67, formerly Account No. 67308. None of these new parties sued by Historic Lufkin
were ever served.1
7. February 23, 2012—The trial court conducted a hearing on Great Central’s motion to
dismiss for want of prosecution. The attorneys for Historic Lufkin and Great Central were
present.
8. February 23, 2012—The trial court signed its order of dismissal for want of prosecution
against Historic Lufkin.
Historic Lufkin did not request findings of fact or conclusions of law. This appeal
followed
DISMISSAL FOR WANT OF PROSECUTION
In one issue, Historic Lufkin argues that the trial court abused its discretion in granting
the motion to dismiss for want of prosecution.
Standard of Review
We review a dismissal for want of prosecution under a clear abuse of discretion standard.
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it
acts arbitrarily or unreasonably, or without reference to guiding rules and principles. Dick Poe
Motors v. DaimlerChrysler Corp., 169 S.W.3d 478, 484 (Tex. App.—El Paso 2005, no pet.)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)).
Applicable Law
A court has the inherent power to dismiss a suit for failure to prosecute it with due
diligence even without statutory or rule authority. Veteran’s Land Bd. v. Williams, 543 S.W.2d
89, 90 (Tex. 1976). The central issue is whether the plaintiff exercised reasonable diligence.
MacGregor, 941 S.W.2d at 75. The trial court may consider the entire history of the case,
including the length of time the case was on file, the amount of activity in the case, the request
for a trial setting, and the existence of reasonable excuses for delay. City of Houston v. Thomas,
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The record before us does not show that Dysart, in any capacity, or Broadway National Bank, was ever
served with citation. Jurisdiction of a party is dependent upon citation being issued and served in a manner provided
for by law. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Because the trial court never had jurisdiction of
these parties, they are not a part of the appeal before us and will not be considered further in this opinion.
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838 S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no pet.). The complaining party has
the burden to bring forth a record to support its contention. Tex. Mut. Ins. Co. v. Olivas, 323
S.W.3d 266, 274 (Tex. App.—El Paso 2010, no pet.). The trial court’s decision will be reviewed
to determine whether the litigant demonstrated good cause for not prosecuting with greater
diligence. Id. When the record before us does not contain findings of fact or conclusions of law,
and the trial court did not specify the standard of dismissal used, we must affirm on the basis of
any legal theory supported by the record. City of Houston v. Robinson, 837 S.W.2d 262, 264
(Tex. App.—Houston [1st Dist.] 1992, no pet.).
Analysis
Following service of citation on Great Central, Historic Lufkin did nothing in this case
until Great Central filed a motion to dismiss for want of prosecution. Then, Historic Lufkin only
amended its petition, adding new parties to its suit, a day before the trial court’s scheduled
hearing on the motion to dismiss for want of prosecution. Historic Lufkin had the burden to
produce evidence at the hearing showing good cause for not prosecuting its case with greater
diligence. See Olivas, 323 S.W.3d at 274. Further, Historic Lufkin had the burden to bring forth
a record to support its contentions on appeal. See id. However, there is no reporter’s record
before us of the hearing on Great Central’s motion to dismiss. Therefore, we must presume that
Historic Lufkin offered no reasonable excuse for its lack of diligence in prosecuting this case.
See Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 861 (Tex. Civ. App.–San Antonio 1976, writ
ref’d n.r.e.). Because we must presume that Historic Lufkin produced no evidence of any
reasonable excuse to justify its lack of diligence in prosecuting this case, we cannot say that the
trial court abused its discretion in dismissing this suit for want of prosecution. See MacGregor,
941 S.W.2d at 75.
We further note that dismissal of this suit does not prevent Historic Lufkin from refiling
it against the same parties. See Thomas, 838 S.W.2d at 298. A litigant may refile an action that
has been dismissed for want of prosecution since the merits of such an action remain undecided.
See id. The statute of limitations for a wrongful foreclosure suit is four years. See TEX. CIV.
PRAC. & REM. CODE ANN. § 16.035(a) (West 2012).
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DISPOSITION
Having overruled Historic Lufkin’s sole issue, we affirm the trial court’s order of
dismissal.
JAMES T. WORTHEN
Chief Justice
Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 25, 2013
NO. 12-12-00105-CV
HISTORIC LUFKIN MANOR, LLC,
Appellant
V.
GREAT CENTRAL MORTGAGE ACCEPTANCE CO., LTD.,
Appellee
Appeal from the 159th Judicial District Court
of Angelina County, Texas. (Tr.Ct.No. CV-00315-11-02)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, HISTORIC LUFKIN MANOR, LLC, for which execution may issue,
and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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