Robert E. Barberee and Jane Barberee v. Todd Fanning and Fanning Construction, Inc.

Opinion filed October 4, 2018
In The
Eleventh Court of Appeals
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No. 11-16-00316-CV
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ROBERT E. BARBEREE AND JANE BARBEREE, Appellants
V.
TODD FANNING AND FANNING CONSTRUCTION, INC.,
Appellees
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CV31048
MEMORANDUM OPINION
Robert E. Barberee and Jane Barberee appeal the trial court’s dismissal of
their lawsuit for want of prosecution. Appellants challenge the dismissal in two
issues. We affirm.
Background Facts
Appellants contracted with Fanning Construction, Inc. in 2007 to build their
house in Stephenville. Appellants subsequently filed the underlying suit against
Todd Fanning and Fanning Construction on April 6, 2011. Appellants alleged that
Appellees violated the Texas Deceptive Trade Practices Act, committed common
law fraud, and breached the construction contract. See TEX. BUS. & COM. CODE
ANN. §§ 17.01–.955 (West 2011 & Supp. 2017) (DTPA).
At some point, the trial court placed the case on a dismissal docket.
Subsequently, Appellants’ attorney wrote the trial court on May 16, 2016, requesting
a trial setting on the contested, nonjury docket. The court coordinator sent the
attorneys a letter on June 1, 2016, setting the case for “FINAL HEARING or
Dismissal for Want of Prosecution” for August 18, 2016. In July 2016, Appellees
filed a motion to dismiss for want of prosecution. The trial court set the motion to
dismiss for a hearing on August 18, 2016, at the same time as the previous setting.
One day before the hearing, Appellants filed a response to the motion to dismiss for
want of prosecution. Appellants alleged in their response that they had had difficulty
finding experts that could quantify their damages.
The trial court heard the motion to dismiss on August 18, 2016. At the
hearing, Appellees presented a timeline showing that, from May 26, 2011, through
July 1, 2011, the parties exchanged discovery requests and responses. Additionally,
Appellants took the deposition of one of Appellees’ witnesses on August 21, 2012.
However, no discovery had been exchanged between the parties nor pleadings filed
in the case since August 2012. The trial court heard oral arguments from both
parties. The trial court also heard testimony from Appellant Jane Barberee
concerning the delay in the case proceeding to trial. She testified that they had had
difficulty getting contractors to determine the costs of repairs needed for their home,
and she attributed the delay in the suit on this difficulty. The hearing concluded with
the trial court discussing the potential effect of a recent opinion from the Texas
Supreme Court. See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig.
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proceeding). The trial court subsequently entered its “Order of Dismissal for Want
of Prosecution” on August 26, 2016.
Appellants filed a “Motion to Reinstate after Dismissal” on September 23,
2016. The motion included Appellant Jane Barberee’s affidavit. A hearing on the
motion to reinstate was held on October 24, 2016. The trial court subsequently
denied the motion to reinstate.
Analysis
Appellants bring two issues on appeal. In both issues, they assert that the trial
court abused its discretion by dismissing their suit for want of prosecution. In their
first issue, Appellants assert that they established that they were diligent in
prosecuting their suit. In their second issue, Appellants assert that the trial court
abused its discretion because they were ready to proceed to trial.
“A plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable
diligence,’ failing which a trial court may dismiss for want of prosecution.” In re
Conner, 458 S.W.3d at 534 (quoting Callahan v. Staples, 161 S.W.2d 489, 491 (Tex.
1942)). “The trial court’s authority to dismiss for want of prosecution stems from
two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s
inherent power.” Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999) (explaining both the statutory and common law sources of power). The
failure to prosecute a case with reasonable diligence will justify a dismissal either
under Rule 165a or the trial court’s inherent authority. In re Conner, 458 S.W.3d at
534.
Under Rule 165a(2), a case may be dismissed if it is “not disposed of within
time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). Under
Rule 6.1(a) of the Texas Rules of Judicial Administration, the time standard for a
nonfamily law civil case is twelve months if it is a nonjury case and eighteen months
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if it is a jury case. TEX. R. JUD. ADMIN. 6.1(a), reprinted in TEX. GOV’T CODE ANN.,
tit. 2, subtit. F app. (West 2013 & Supp. 2017). There is no dispute that this case
was not disposed of within the time limits promulgated by the Texas Supreme Court.
At the time the trial court placed the case on its dismissal docket, over five years had
passed since Appellants filed suit. Therefore, the trial court was authorized to
dismiss the case for want of prosecution under either Rule 165a(2) or the court’s
inherent authority.
Trial courts are generally granted considerable discretion when it comes to
managing their dockets. In re Conner, 458 S.W.3d at 534. We will reverse a trial
court’s dismissal for want of prosecution only if the court clearly abused its
discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). A trial
court abuses its discretion if it acts arbitrarily or without reference to any guiding
rules or principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012).
With respect to Appellants’ first issue, they contend that the trial court abused
its discretion by not finding their explanation satisfactory to constitute reasonable
diligence in prosecuting their lawsuit. We disagree. While Appellants outlined
difficulty in finding an expert to establish their damages, we note that the suit had
been pending for over five years at the time the trial court dismissed it and that
approximately four years had elapsed without any activity being reflected in the
clerk’s file. These periods at least doubled the period of time outlined in the Rules
of Judicial Administration for bringing a suit to trial. At some point, a plaintiff must
pursue a different course of action in order to prosecute his suit with diligence if he
cannot find an expert to establish his claim.
Appellants contend that the decision in In re Conner is distinguishable
because the delay in that case was much longer and the plaintiff did not provide an
explanation for the delay. However, the trial court in In re Conner denied the request
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to dismiss for want of prosecution. 458 S.W.3d at 534. Unlike the situation in In re
Conner, the trial court here dismissed the case for want of prosecution. The record
does not establish that the trial court abused its discretion in determining that
Appellants had not prosecuted their case with diligence irrespective of their
explanation of the delay.
Appellants’ second issue focuses on the matter of the trial setting. They cite
Moore v. Armour & Co., 660 S.W.2d 577 (Tex. App.—Amarillo 1983, no writ)
(Moore I), for the proposition that a case should not be dismissed for want of
prosecution if, at the time of the dismissal hearing, the plaintiff has announced ready
for trial and has secured a trial setting or is otherwise making a diligent effort to get
the case to trial. However, the Amarillo Court of Appeals revisited its opinion in
Moore I in Moore v. Armour & Co., 748 S.W.2d 327, 330–31 (Tex. App.—Amarillo
1988, no writ) (Moore II). In Moore II, the court noted that dismissal for want of
prosecution is not precluded by announcement of ready and a request for a trial
setting because “[t]hat position would deny the trial court the right it has to consider
the entire history of the cause . . . and would impermissibly allow the cause to linger
on the docket without being tried or dismissed.” Id. (citing Johnson v. J.W. Const.
Co., 717 S.W.2d 464, 467 (Tex. App.—Fort Worth 1986, no writ); Levermann v.
Cartall, 715 S.W.2d 728, 731 (Tex. App.—Texarkana 1986, writ ref’d n.r.e.)). We
agree with the holding in Moore II that an announcement of ready and a request for
a trial setting, particularly after the case has been placed on a dismissal docket, does
not preclude dismissal for want of prosecution.
The record does not establish that the trial court abused its discretion by
granting Appellees’ motion to dismiss for want of prosecution. We overrule
Appellants’ first and second issues.
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This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
October 4, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 1;
and Wright, S.C.J.2
Willson, J., not participating.
1
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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