the Persimmon Hollow Company v. City of Austin ( 1995 )

CV4-374 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-94-00374-CV



The Persimmon Hollow Company, Appellant

v.

City of Austin, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. 400,537, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

PER CURIAM

The Persimmon Hollow Company appeals from the trial court's order dismissing its cause for want of prosecution. Appellant brings three points of error, contending that the trial court erred in dismissing the cause for want of prosecution because: (1) appellant had requested a trial setting; (2) appellant had prosecuted the cause with due diligence; and (3) appellant's cause had not been filed an undue length of time. We will affirm the trial court's order.

Background and Chronology of Events

In July 1986, appellant sued the City over events which occurred during 1984 and 1985. Appellant had built several duplexes located in the Williamson Creek wastewater- treatment-plant service area. This suit arose out of events caused by litigation between the State of Texas and the City that resulted in the "Williamson Creek Wastewater Moratorium." Appellant, whose duplexes did not receive the services that it considered had been promised, sued the City for breach of contract and breach of warranty.

A chronology of procedural events in the cause follows:

1986: Suit filed (7/11/86)

1987: Plaintiff's First Request for Production (12/23/87)

1988: Plaintiff's Second, Third, Fourth Requests for Production (6/3, 7/01/, 10/12); Plaintiff's First Amended Original Petition (8/22)

1989: Plaintiff's Attorney's Motion to Withdraw (7/17)

1990: No Activity

1991: Plaintiff's Attorney's Supplemental Motion to Withdraw; Granted (4/25, 4/29)

1992: No Action

1993: Plaintiff's Pro Se Motion for Referral to Alternate Dispute Resolution Hearing (1/15); Plaintiff failed to appear at hearing set 4/1/93; Defendant's Motion for Summary Judgment and Amended Motion (3/30, 4/2); Plaintiff's Pro Se Motion for Summary Judgment (5/5); motions denied; Designation of Plaintiff's Counsel (12/10); Notice of Setting (12/12)

1994: No action until motion to dismiss filed (3/18/94)

Appellant obtained new counsel in this cause in early December 1993, after almost five years of very little activity. Counsel set the cause for trial and gave notice of the setting. The suit had been on file for almost seven and one-half years with little activity before the setting request.

Standard of Review

A statement of facts from the hearing on the motion to dismiss is not part of the record in this cause. Absent any record of what evidence the trial court considered, we presume the trial court passed on all facts necessary to support its order. See Frenzel v. Browning-Ferris Indus., 780 S.W.2d 844, 846 (Tex. App.--Houston [14th Dist.] 1989, no writ).

A decision to dismiss a case for want of prosecution rests within the sound discretion of the trial court, and can be disturbed on review only if it amounted to a clear abuse of discretion. State v. Rotello, 671 S.W.2d 507, 508-9 (Tex. 1984). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). This Court may not reverse for abuse of discretion merely because we might disagree with the trial court's decision. Buller, 806 S.W.2d at 226; Downer, 701 S.W.2d at 242.

When deciding whether to dismiss a case the court may consider the amount of activity in the case, the length of time the case was on file, requests for a trial date, and the existence of reasonable excuses for delay. Bilnoski v. Pizza Inn, Inc. 858 S.W.2d 55, 56 (Tex. App.--Houston [14th Dist.] 1993, no writ).

Appellant's Contentions

Appellant's first complaint is a bit difficult to understand. It appears to complain that the court's order of dismissal after appellant had secured a trial setting operates as an improper dismissal with prejudice, even though the order did not so state. We find no authority for that proposition. The existence of a trial setting is simply one factor that the trial court could consider in its determination whether to dismiss the cause. See Bilnoski, 858 S.W.2d 58. We overrule point of error number one.

In point two, appellant complains that it exercised due diligence in its prosecution of the cause. It complains that the City used obstructionistic discovery tactics that caused part of the delay. We have no record, however, of any motions to compel, hearings on sanctions, or any other matter which would support this assertion. The trial court could consider the entire history of the cause, including the City's concern that many of the employees who would be needed as witnesses had left City employment due to the lapse of time between the events in question and any possible trial. The entire history of the cause, as set out in the chronology of events, does not demonstrate an abuse of discretion in dismissing the cause. We overrule point of error two.

In point of error three, appellant contends that the court abused its discretion in dismissing the cause based on the length of time the cause had been on file. We have no record to show that the court dismissed the cause based on only one factor. It is not an abuse of discretion to consider the length of time a case has been on file as a factor. This cause had been on file for an amount of time greatly in excess of the eighteen-month period set out in the Supreme Court administrative rules. Tex. R. Jud. Admin. 6(b)(1); Bilnoski, 858 S.W.2d at 58. We overrule point of error three.

We affirm the trial court's order.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: June 21, 1995

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