Patricia Skelton v. Guy James Gray ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00007-CV
Patricia SKELTON,
Appellant
v.
Guy James GRAY,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 16416A
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: November 2, 2022
REVERSED AND REMANDED
Appellant Patricia Skelton appeals the trial court’s dismissal of her suit for want of
prosecution. We reverse the trial court’s order of dismissal and remand the cause to the trial court
for further proceedings.
BACKGROUND
In 2016, Skelton filed a legal malpractice suit against appellee Guy James Gray, an attorney
who represented Skelton in a 2007 criminal trial. In the criminal proceedings, Skelton appealed
her conviction on, inter alia, ineffective assistance of counsel grounds. See Skelton v. State, No.
04-22-00007-CV
04-08-00720-CR, 2010 WL 2298859, at *4 (Tex. App.—San Antonio June 9, 2010, pet. ref’d)
(not designated for publication). We affirmed the conviction and the Texas Court of Criminal
Appeals refused Skelton’s petition for discretionary review. See id. Skelton then applied for a writ
of habeas corpus, which the trial court denied. See Ex parte Skelton, 434 S.W.3d 709, 716 (Tex.
App.—San Antonio 2014, pet. ref’d) (opin. on reh’g). In the habeas appeal, we reversed the trial
court’s judgment, granted habeas relief on ineffective assistance grounds, and vacated the criminal
judgment against Skelton. Id. at 732–34.
In the malpractice case, Gray filed an answer, a jury demand, and a Rule 91a motion to
dismiss. His motion to dismiss relied on the Peeler doctrine, which provides that convicted
individuals may not sue their criminal-defense attorneys for malpractice unless they have been
exonerated. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality op.).
The trial court dismissed the malpractice case with prejudice in 2016. This court reversed the trial
court’s dismissal of the claim and remanded the cause to the trial court for further proceedings.
Skelton v. Gray, 547 S.W.3d 272, 276–77, 280 (Tex. App.—San Antonio 2018) (holding Peeler
doctrine did not apply because Skelton’s conviction had been vacated), aff’d, 595 S.W.3d 633(Tex. 2020). The Texas Supreme Court granted Gray’s petition for review, affirmed our judgment,
and remanded this case for trial. Gray v. Skelton, 595 S.W.3d 633, 636, 641 (Tex. 2020)
(concluding that Peeler doctrine did not bar Skelton’s malpractice claim, but that she must prove
her innocence as a necessary predicate). The Supreme Court issued its mandate on March 26, 2020,
returning jurisdiction over the malpractice case to the trial court.
After a year with no activity on the case, on March 18, 2021, the trial court sua sponte
notified the parties of its intent to dismiss the case for want of prosecution based on Rule 165a and
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the Local Rules of Practice. 1 At the April 19, 2021 dismissal hearing, the trial court: (1) retained
the case “until 10/30/21 on which date it shall be automatically dismissed”; and (2) ordered the
parties to mediate by July 30, 2021. On May 13, 2021, Gray filed a no-evidence motion for
summary judgment; on June 7, 2021, Skelton filed a traditional motion for summary judgment.
On July 27, 2021, the trial court denied both motions. On October 28, 2021, Skelton filed a motion
asking the trial court to set the case for a jury trial in January or February 2022 and to refer the
case to mediation.
On November 15, 2021, the trial court signed an order dismissing the case for want of
prosecution. Skelton filed a notice of appeal and a verified motion to reinstate. In that motion,
Skelton averred that Gray’s counsel had “advised [Skelton’s] counsel and the Court’s coordinator
that [he] was not available for a jury trial until 2022.” In response, Gray’s attorney swore, “I never
said I had no availability in 2021.” The trial court overruled by operation of law Skelton’s motion
to reinstate the case.
In her appellate brief, Skelton raises two issues. First, she claims the trial court abused its
discretion by dismissing the case for want of prosecution despite the parties’ “demonstrated desire”
to resolve the case via jury trial when juries were not available for civil trials due to the COVID-
19 pandemic. Second, she argues the trial court abused its discretion by failing to set a hearing on
her verified motion to reinstate.
1
See Doss v. Robinson, No. 04-16-00560-CV, 2017 WL 2124488, at *2 (Tex. App.—San Antonio May 17, 2017, no
pet.) (mem. op.) (noting the relevant local rule provides “[i]f no action is taken by a party seeking affirmative relief in
non-family civil matters within nine (9) months directed toward a trial on the merits, the Court will proceed to dismiss
the case for want of prosecution in accordance with Rule 165a.”).
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ANALYSIS
Dismissal for Want of Prosecution
Applicable Law and Standard of Review
A plaintiff has a responsibility to prosecute a suit to an end with reasonable diligence,
“failing which a trial court may dismiss for want of prosecution.” In re Conner, 458 S.W.3d 532,
534 (Tex. 2015) (orig. proceeding) (per curiam). “A trial court’s authority to dismiss for want of
prosecution has two sources: Rule 165a of the Texas Rules of Civil Procedure and the trial court’s
inherent power.” Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 727 (Tex. App.—San
Antonio 2012, pet. denied). Under Rule 165a(2), a trial court can dismiss a case “not disposed of
within time standards promulgated by the Supreme Court[.]” TEX. R. CIV. P. 165a(2); Dobroslavic,
397 S.W.3d at 727–28. Those standards require district courts to ensure, “‘so far as reasonably
possible,’” that non-family law civil cases in which a jury has been demanded are brought to trial
or final disposition within eighteen months of the appearance date. In re Conner, 458 S.W.3d at
535 (quoting TEX. R. JUD. ADMIN. 6.1(b)(1)). “At the dismissal hearing, the court shall dismiss for
want of prosecution unless there is good cause for the case to be maintained on the docket.” TEX.
R. CIV. P. 165a(1); In re Conner, 458 S.W.3d at 535 (noting that “while Rule 165a(2) does not
refer to Rule 165a(1)’s procedural requirements, including notice and a hearing, neither does it
suggest a basis for deviating from those procedures”). The trial court also “has the inherent power
to dismiss when a plaintiff fails to prosecute his case with due diligence.” Dobroslavic, 397 S.W.3d
at 728. “This authority stems from the trial court’s power to maintain and control its docket.” Id.
“To decide the diligence issue, trial courts consider the entire history of the case, including whether
the plaintiff requested a trial setting, the amount of activity in the case, the passage of time, and
the plaintiff’s excuses for the delay.” Id. at 729.
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We review a trial court’s order dismissing a case for want of prosecution for an abuse of
discretion. Id. at 728. A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner or without reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). With respect to factual matters, an abuse
of discretion occurs only when the record shows “the trial court could reasonably have reached
only one decision.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “We may not reverse for
abuse of discretion merely because we disagree with the decision of the trial court.” Dobroslavic,
397 S.W.3d at 728.
Application
Here, the trial court’s dismissal references its prior order that if the case was not “finalized”
by October 30, 2021, it would be dismissed. When the court set the hearing that led to its prior
order, it referenced “Rule 165a, Texas Rules of [C]ourt, and the Local Rules of Practice.” We
construe this as an invocation of Rule 165a(2) and the trial court’s inherent authority. See Dueitt
v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco 2005, pet.
denied) (where plaintiffs did not request fact findings and trial court did not specify dismissal
standard used, appellate court must “affirm on the basis of any legal theory supported by the
record”).
Because more than eighteen months had passed since the Texas Supreme Court’s mandate
issued, this delay meets the prima facie standard for what is unreasonable in terms of prosecuting
a case. Doss, 2017 WL 2124488, at *2; see also TEX. R. CIV. P. 165a(2) (“Any case not disposed
of within time standards promulgated by the Supreme Court under its Administrative Rules may
be placed on a dismissal docket.”). Because this delay gave rise to a presumption of abandonment,
we must determine whether Skelton sufficiently explained the delay using well-established factors.
In re Conner, 458 S.W.3d at 535; see also Dobroslavic, 397 S.W.3d at 729.
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Whether plaintiff requested a trial setting. Skelton twice requested that the case be set
for trial: on April 19, 2021 (at the dismissal hearing) and again on October 28, 2021 (in a motion).
The amount of activity in the case. Aside from some informal settlement negotiations,
there was no activity in the case before the trial court’s April 19, 2021 dismissal hearing. After
that, the record reflects the following activity:
• 4/20/21 Gray served written discovery on Skelton 2
• 5/13/21 Gray filed a no-evidence motion for summary judgment
• 5/20/21 Skelton responded to written discovery requests
• 6/7/21 Skelton filed a traditional motion for summary judgment
• 6/28/21 The trial court heard the parties’ motions for summary judgment
• 7/27/21 The trial court signed an order denying both motions
• 10/28/21 Skelton filed a motion to set the case on the jury docket and refer it to
mediation
Approximately two weeks after Skelton filed her motion to set the case on the jury docket, the trial
court dismissed the case for want of prosecution.
The passage of time. The Texas Supreme Court issued its mandate returning the case to
the trial court on March 26, 2020; the trial court dismissed the case on November 15, 2021. The
case was therefore on the docket for just under twenty months.
The plaintiff’s excuses for the delay. At the dismissal hearing, Skelton did not offer
evidence, but explained that the case could not be heard by a jury due to the court’s pandemic-
related backlog; she had been unable to obtain any jury setting from the court’s administrator, “Ms.
McEntyre.” We agree with Skelton that the trial court acted in an arbitrary and unreasonable
2
This date, as well as the May 20, 2021 date Skelton responded to Gray’s discovery, come from the affidavit Gray’s
counsel attached to Gray’s response to Skelton’s motion to reinstate. The clerk’s record does not contain this
discovery.
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manner by dismissing the case after setting a deadline it knew the parties would be unable to meet
and in the face of their ongoing active participation in the case. By the time the Texas Supreme
Court’s mandate issued, the COVID-19 pandemic had disrupted every facet of life in this state.
The Texas Supreme Court had issued emergency orders prohibiting in-person proceedings and
jury trials, with certain exceptions, due to safety concerns associated with the pandemic. See, e.g.,
Eighteenth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 122, 123 (Tex.
June 29, 2020); Twenty-Second Emergency Order Regarding COVID-19 State of Disaster, 609
S.W.3d 129, 130 (Tex. Aug. 6, 2020).
By the April 19, 2021 dismissal hearing, the Texas Supreme Court had lifted many
restrictions on jury trials. See Thirty-Sixth Emergency Order Regarding COVID-19 State of
Disaster, 629 S.W.3d 897, 898 (Tex. March 5, 2021). Despite that, the trial court recognized that
the parties’ chances of having a jury available for a civil trial in the next year were slim, stating,
“I don’t know that you’ll get a jury in the next-year either. We’ve got a year’s worth backlog of
criminal cases that are -- they jump the line, they take a precedence over civil cases, so any trial
setting you get is all going to be subject to a criminal jury anyway.” In ruling, the trial court
reiterated that obtaining a jury trial would be a challenge, stating:
Plaintiff’s case is retained until October 30th of 2021, on which date it will be
automatically dismissed. The parties shall mediate the case on or before July 30 of
2021. . . . And that will be the end of the road. So I don’t know if you can get a trial
date by then or not. That’s going to be a hurdle you have to overcome then.
When Skelton asked, “[W]hat do we do if we’re unable to get a trial date?” the trial court
responded, “You might consider a bench trial or mediate and settle.” 3
3
Importantly, Gray—not Skelton—filed the jury demand in this case. Skelton lacked the ability to waive Gray’s
demand that the case be tried to a jury. See Cardenas v. Montfort, Inc., 894 S.W.2d 406, 408 (Tex. App.—San Antonio
1994, writ denied) (recognizing a court “does not have discretion, when a party has properly requested a jury trial
under TRCP 216, and is present in court, to deny that party a jury trial without that party’s assent.”); see also Tex.
Const. art. I, § 15 (“The right of trial by jury shall remain inviolate.”).
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Activity in the case continued, with both parties participating in the discovery process and
filing motions for summary judgment, and with Skelton’s October 28, 2021 motion to set the case
on the jury docket and to refer the case to mediation. The trial court dismissed the case for want
of prosecution in the face of mitigated and explained delay. The facts here bear no resemblance to
facts the Texas Supreme Court recognized as raising a conclusive presumption of abandonment of
the plaintiff’s suit. In re Conner, 458 S.W.3d at 534–35 (plaintiff offered no explanation for the
eight-year delay in bringing the case to trial) (citing Veterans’ Land Bd. v. Williams, 543 S.W.2d
89, 90 (Tex. 1976) (finding seven-and-one-half year delay as failing to satisfy the demands of
reasonable diligence); Denton County v. Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (same for
five-year delay); Bevil v. Johnson, 307 S.W.2d 85, 88 (Tex. 1957) (same for eight-year delay)).
Nor do the facts here resemble those in Pence v. S&D Builders, LLC, No. 07-21-00080-
CV, 2021 WL 5919466, at *4 (Tex. App.—Amarillo Dec. 15, 2021, no pet.) (mem. op.)—a case
cited by Gray in which our sister court upheld a dismissal of a case pending during the COVID-
19 pandemic. There, the appellate court rejected the plaintiffs’ argument that the trial court erred
in not cancelling its dismissal docket during the pandemic because the plaintiffs did not present
that argument to the trial court at the hearing on the motion to dismiss. Id.Another case cited by Gray, in which another sister court upheld a dismissal for want of
prosecution during the pandemic, is also distinguishable. In In Matter of McBryde Family Tr., No.
13-20-00473-CV, 2021 WL 4897562, at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 21, 2021,
no pet.) (mem. op.), plaintiff’s counsel argued that the need to assist and supervise his children
during the early months of the pandemic severely hindered his ability to prosecute his client’s case
for five of the eighteen months the case was on file. The appellate court held the trial court could
have reasonably concluded that COVID-19 was not a reasonable excuse for delay given the
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“minimal activity for a case on file for eighteen months” and counsel’s lack of a detailed
explanation of how the closures affected plaintiff’s case. Id.Here, Skelton explained how COVID-19 affected her case—she could not obtain a jury
trial. Gray makes much of Skelton’s failure to present evidence that she could not obtain a jury
setting, but the trial court expressed its own awareness on the record of the fact that juries likely
would not be available for civil trials, even the following year. Gray also notes that Skelton made
no attempt to mediate the case before July 30, 2021, and only asked the trial court to set the case
for mediation in her October 28 motion. But that pleading followed the parties’ motions for
summary judgment and the trial court’s denial of those motions, demonstrating Skelton’s active
prosecution of her case. Examining the entire record, and in light of the history of this dispute—
including four appeals to this court, two appeals to the Texas Court of Criminal Appeals, and one
appeal to the Texas Supreme Court—we conclude the trial court’s decision was arbitrary,
unreasonable, and without reference to guiding principles. See Downer, 701 S.W.2d at 241–42.
CONCLUSION
For these reasons, and in the interests of justice, we reverse the trial court’s order
dismissing the case and remand this matter to the trial court to reinstate Skelton’s case on the
court’s docket. TEX. R. APP. P. 43.2(d), 43.3. Having sustained Skelton’s first issue, we need not
consider Skelton’s second argument about the trial court’s failure to hold a hearing on her motion
to reinstate. TEX. R. APP. P. 47.1.
Beth Watkins, Justice
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