TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00599-CV
Bannum, Inc., Appellant
v.
Eugene Mees d/b/a Encore House, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-07-002493, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING
MEMORANDUM OPINION
Bannum, Inc. appeals from the district court’s order dismissing its case for want of
prosecution. Because we cannot conclude that the district court abused its discretion in dismissing
the case, we affirm the judgment of dismissal.
BACKGROUND
In August 2007, Christopher Tovar sued Bannum and appellee Mees over
construction work Bannum had hired Tovar to do on property owned by Mees. Bannum filed
counterclaims against Tovar, and Bannum and Mees filed cross-claims against each other. After
years of litigation and disposition of several claims by either settlement or summary judgment, the
case went to trial before a jury, with Bannum and Tovar aligned as plaintiffs against Mees. The
jury returned a verdict against Bannum and Tovar in 2011, and the district court subsequently rendered a take-nothing final judgment for Mees.1 Bannum and Tovar appealed to this Court and
the case was transferred to the Amarillo Court of Appeals, which affirmed the final judgment in
part but reversed and remanded two of Bannum’s claims. See Bannum, Inc. v. Mees, No. 07-12-
00458-CV, 2014 WL 2918436, at *7 (Tex. App.—Amarillo June 24, 2014, no pet.) (mem. op.).
The Amarillo Court of Appeals issued its mandate in October 2014, returning Bannum’s case to
the district court.
Three years later, in December 2017, Mees moved to dismiss Bannum’s lawsuit for
want of prosecution. Bannum responded by explaining that there had been no recent activity
because its president, John Rich, was unavailable for deposition by Mees due to personal and
business issues. Mees’s motion to dismiss was not heard at that time.
One year later, in December 2018, the district clerk issued a notice that the case
would be dismissed for want of prosecution in January 2019. Bannum responded with a motion
to retain, which was set for hearing along with Mees’s motion to dismiss. Ultimately, in July 2019,
the district court issued an order granting Mees’s motion to dismiss, denying Bannum’s motion to
retain, and dismissing all pending claims for want of prosecution. This appeal ensued.
ANALYSIS
In one issue, Bannum argues that the district court abused its discretion in
dismissing Bannum’s claims because (1) the district court failed to provide a substantive analysis
of guiding rules or principles; and (2) the case has a substantial litigation history and Bannum
provided reasonable excuses for not presenting its president for deposition. We disagree.
1 For a more in-depth discussion of the underlying facts and litigation, see Bannum, Inc. v. Mees, No. 07-12-00458-CV, 2014 WL 2918436, at *7 (Tex. App.—Amarillo June 24, 2014, no pet.) (mem. op.). 2 A trial court has the inherent power to dismiss a case not prosecuted with due
diligence. State v. Rotello, 671 S.W.2d 507, 508–09 (Tex. 1984). To avoid dismissal for want of
prosecution, Bannum had the burden to establish that he prosecuted his claim with reasonable
diligence. See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam).
When considering whether a party has exercised due diligence, the court may consider the entire
history of the case, including whether the party requested a trial setting, the amount of activity in
the case, how much time has passed, and the party’s excuses for the delay. See Rotello, 671 S.W.2d
at 509; Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729–30 (Tex. App.—San Antonio
2012, pet. denied); Fontenot v. Brookshire, No. 03-05-00378-CV, 2007 WL 1711768, at *2 (Tex.
App.—Austin June 12, 2007, no pet.) (mem. op.) (citing City of Houston v. Robinson, 837 S.W.2d
262, 264 (Tex. App.—Houston [1st Dist.] 1992, no writ)). We review a trial court’s decision to
dismiss for want of prosecution for a clear abuse of discretion. See MacGregor v. Rich, 941
S.W.2d 74, 75 (Tex. 1997); Enriquez v. Livingston, 400 S.W.3d 610, 614 (Tex. App.—Austin
2013, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. See Walker v. Gutierrez, 111 S.W.3d
56, 62 (Tex. 2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
From the record before us, we cannot conclude that it was a clear abuse of discretion
for the district court to dismiss the case. The record shows that the Amarillo Court of Appeals’
mandate issued in October 2014, which had the effect of remanding Bannum’s case to the district
court. On remand, Bannum obtained a scheduling order in December 2015 and filed an amended
petition in March 2016 but after that, its only activity in the case before Mees filed a motion to
dismiss was entering into a Rule 11 agreement to suspend the scheduling order. After Mees’s
3 motion to dismiss, Bannum’s activities were limited to avoiding dismissal, not moving the case
forward:
• December 2015—the district court issues scheduling order.
• March 2016—Bannum amends petition.
• May 2016—the parties enter into Rule 11 agreement “suspending all current deadlines pending the depositions of Eugene Mees and [Bannum’s president] John Rich.”
• December 2017—Mees files motion to dismiss for want of prosecution.
• January 2018—Bannum responds to Mees’s motion to dismiss.
• December 2018—the district clerk issues notice of dismissal for want of prosecution.
• January 2019—Bannum files motion to retain.
• July 2019—the district court dismisses Bannum’s claims for want of prosecution.
Notably, in the three years between the parties’ Rule 11 agreement and the district court’s order,
Bannum did not schedule depositions or set the case for trial.
Referring to well-established abuse-of-discretion standards, Bannum argues that
the district court abused its discretion because it “did not engage in any substantive analysis” and
“rendered its decision without reference to any guiding rules or principles.” See Gutierrez, 111
S.W.3d at 62 (“A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.” (citing Downer, 701 S.W.2d at 241–42));
Walker, 827 S.W.2d 833, 840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or apply
the law correctly will constitute an abuse of discretion.”). Instead, Bannum contends, the district
court “merely heard the arguments and, at the end of the arguments, stated ‘I agree’ with [Mees]’s
argument, and granted the motion.” But the abuse-of-discretion standard set forth in Walker v.
Packer and other cases does not stand for the proposition that the trial court must provide an
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00599-CV
Bannum, Inc., Appellant
v.
Eugene Mees d/b/a Encore House, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-07-002493, THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING
MEMORANDUM OPINION
Bannum, Inc. appeals from the district court’s order dismissing its case for want of
prosecution. Because we cannot conclude that the district court abused its discretion in dismissing
the case, we affirm the judgment of dismissal.
BACKGROUND
In August 2007, Christopher Tovar sued Bannum and appellee Mees over
construction work Bannum had hired Tovar to do on property owned by Mees. Bannum filed
counterclaims against Tovar, and Bannum and Mees filed cross-claims against each other. After
years of litigation and disposition of several claims by either settlement or summary judgment, the
case went to trial before a jury, with Bannum and Tovar aligned as plaintiffs against Mees. The
jury returned a verdict against Bannum and Tovar in 2011, and the district court subsequently rendered a take-nothing final judgment for Mees.1 Bannum and Tovar appealed to this Court and
the case was transferred to the Amarillo Court of Appeals, which affirmed the final judgment in
part but reversed and remanded two of Bannum’s claims. See Bannum, Inc. v. Mees, No. 07-12-
00458-CV, 2014 WL 2918436, at *7 (Tex. App.—Amarillo June 24, 2014, no pet.) (mem. op.).
The Amarillo Court of Appeals issued its mandate in October 2014, returning Bannum’s case to
the district court.
Three years later, in December 2017, Mees moved to dismiss Bannum’s lawsuit for
want of prosecution. Bannum responded by explaining that there had been no recent activity
because its president, John Rich, was unavailable for deposition by Mees due to personal and
business issues. Mees’s motion to dismiss was not heard at that time.
One year later, in December 2018, the district clerk issued a notice that the case
would be dismissed for want of prosecution in January 2019. Bannum responded with a motion
to retain, which was set for hearing along with Mees’s motion to dismiss. Ultimately, in July 2019,
the district court issued an order granting Mees’s motion to dismiss, denying Bannum’s motion to
retain, and dismissing all pending claims for want of prosecution. This appeal ensued.
ANALYSIS
In one issue, Bannum argues that the district court abused its discretion in
dismissing Bannum’s claims because (1) the district court failed to provide a substantive analysis
of guiding rules or principles; and (2) the case has a substantial litigation history and Bannum
provided reasonable excuses for not presenting its president for deposition. We disagree.
1 For a more in-depth discussion of the underlying facts and litigation, see Bannum, Inc. v. Mees, No. 07-12-00458-CV, 2014 WL 2918436, at *7 (Tex. App.—Amarillo June 24, 2014, no pet.) (mem. op.). 2 A trial court has the inherent power to dismiss a case not prosecuted with due
diligence. State v. Rotello, 671 S.W.2d 507, 508–09 (Tex. 1984). To avoid dismissal for want of
prosecution, Bannum had the burden to establish that he prosecuted his claim with reasonable
diligence. See In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam).
When considering whether a party has exercised due diligence, the court may consider the entire
history of the case, including whether the party requested a trial setting, the amount of activity in
the case, how much time has passed, and the party’s excuses for the delay. See Rotello, 671 S.W.2d
at 509; Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729–30 (Tex. App.—San Antonio
2012, pet. denied); Fontenot v. Brookshire, No. 03-05-00378-CV, 2007 WL 1711768, at *2 (Tex.
App.—Austin June 12, 2007, no pet.) (mem. op.) (citing City of Houston v. Robinson, 837 S.W.2d
262, 264 (Tex. App.—Houston [1st Dist.] 1992, no writ)). We review a trial court’s decision to
dismiss for want of prosecution for a clear abuse of discretion. See MacGregor v. Rich, 941
S.W.2d 74, 75 (Tex. 1997); Enriquez v. Livingston, 400 S.W.3d 610, 614 (Tex. App.—Austin
2013, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. See Walker v. Gutierrez, 111 S.W.3d
56, 62 (Tex. 2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
From the record before us, we cannot conclude that it was a clear abuse of discretion
for the district court to dismiss the case. The record shows that the Amarillo Court of Appeals’
mandate issued in October 2014, which had the effect of remanding Bannum’s case to the district
court. On remand, Bannum obtained a scheduling order in December 2015 and filed an amended
petition in March 2016 but after that, its only activity in the case before Mees filed a motion to
dismiss was entering into a Rule 11 agreement to suspend the scheduling order. After Mees’s
3 motion to dismiss, Bannum’s activities were limited to avoiding dismissal, not moving the case
forward:
• December 2015—the district court issues scheduling order.
• March 2016—Bannum amends petition.
• May 2016—the parties enter into Rule 11 agreement “suspending all current deadlines pending the depositions of Eugene Mees and [Bannum’s president] John Rich.”
• December 2017—Mees files motion to dismiss for want of prosecution.
• January 2018—Bannum responds to Mees’s motion to dismiss.
• December 2018—the district clerk issues notice of dismissal for want of prosecution.
• January 2019—Bannum files motion to retain.
• July 2019—the district court dismisses Bannum’s claims for want of prosecution.
Notably, in the three years between the parties’ Rule 11 agreement and the district court’s order,
Bannum did not schedule depositions or set the case for trial.
Referring to well-established abuse-of-discretion standards, Bannum argues that
the district court abused its discretion because it “did not engage in any substantive analysis” and
“rendered its decision without reference to any guiding rules or principles.” See Gutierrez, 111
S.W.3d at 62 (“A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles.” (citing Downer, 701 S.W.2d at 241–42));
Walker, 827 S.W.2d 833, 840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or apply
the law correctly will constitute an abuse of discretion.”). Instead, Bannum contends, the district
court “merely heard the arguments and, at the end of the arguments, stated ‘I agree’ with [Mees]’s
argument, and granted the motion.” But the abuse-of-discretion standard set forth in Walker v.
Packer and other cases does not stand for the proposition that the trial court must provide an
4 analysis of its decision; rather, it requires that the trial court correctly analyze the law. See Walker,
827 S.W.2d at 840. Further, Texas appellate courts have impliedly acknowledged that trial courts
are not required to provide such an analysis by adopting a standard of review for appeals where
the trial court has not provided an explanation or basis for dismissal. See, e.g., Najera v. Martinez,
557 S.W.3d 846, 849 (Tex. App.—El Paso 2018, no pet.) (“If the trial court does not specify under
what ground it was exercising its authority to dismiss the case, we may affirm the trial court’s
ruling under any applicable theory of law.”); Wells Fargo Bank, N.A. v. Edwards, No. 04-11-
00527-CV, 2012 WL 2021803, at *5 (Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.)
(“When the trial court’s order does not state a particular reason for the dismissal, we will affirm
the judgment under any applicable legal theory.”); Harvey v. Wetzel, No. 03-03-00608-CV, 2004
WL 1685879, at *3 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.) (“[B]ecause the trial
court did not specify under what ground it was exercising its authority to dismiss [the] case, we
may affirm the judgment under any applicable legal theory.”); City of Houston v. Thomas, 838
S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ) (“Because the record does not
contain findings of facts 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.”).
Regarding the merits of the dismissal, Bannum attributes the delay in prosecuting
its claims to the fact that Bannum’s president, John Rich, was unavailable for deposition because
he was going through an acrimonious divorce, raising his young children as a single parent, and
addressing Bannum’s declining business and related litigation issues. But these excuses relate
only to Rich’s availability for deposition by Mees; they do not explain Bannum’s lack of effort
and activity in other areas of the case. Regardless, the district court could have concluded that
Rich’s unavailability for deposition did not outweigh the other factors it could consider in deciding
5 whether to dismiss, including that the case had been on file since 2007 and had been remanded
from the appellate court since 2014, that there had been very little activity in the case since remand,
and that Bannum had not requested a trial date. See, e.g., Robinson, 837 S.W.2d at 264 (“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. . . . No single factor is dispositive.”).
Bannum also faults Mees’s attorney for failing to inquire about dates for deposing
Rich and for failing to respond to its offer to set the matter for trial. But it was Bannum’s
responsibility to prosecute the case; Mees had no duty to advance Bannum’s case. See Conner,
458 S.W.3d at 534 (“A plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable
diligence.’” (quoting Callahan v. Staples, 161 S.W.2d 489, 491 (Tex. 1942)). Further, the record
shows that Bannum did not offer to set a trial date until after the district court issued the notice of
dismissal. Actions taken after a motion to dismiss is filed or a notice of dismissal is issued,
including the obtaining of a trial setting, do not affect the analysis of whether a plaintiff exercised
reasonable diligence in prosecuting its case. See In re Bordelon, 578 S.W.3d 197, 202 (Tex.
App.—Tyler 2019, no pet.) (orig. proceeding) (“Actions taken after a motion to dismiss is filed,
including the obtaining of a trial setting or filing of a jury demand, do not enter into the analysis
of whether diligence has been exercised.”); Bjorkstam v. Woodward, Inc., No. 14-14-00927-CV,
2016 WL 1072298, at *3 (Tex. App.—Houston [14th Dist.] Mar. 17, 2016, no pet.) (mem. op.)
(noting that “activity in the case and appellants’ related excuses occurring after the filing of the
motion to dismiss do not affect the analysis of whether appellants exercised reasonable diligence
in prosecuting their case”); Harrison v. Employees Ret. Sys. of Tex., No. 03-09-00259-CV, 2010
WL 2629893, at *3 (Tex. App.—Austin July 1, 2010, no pet.) (mem. op.) (affirming dismissal
6 after there was no activity for twenty-seven months and reasoning that evidence of the plaintiff’s
diligence after the filing of the motion to dismiss did “not explain or alleviate the lack of diligence
prior to the motion to dismiss”).
Finally, Bannum asserts that the entire history of the case—particularly the pre-
remand jury trial and subsequent appeal and the paper discovery that the parties engaged in after
the case was remanded—shows that Bannum intended to pursue its claims, not abandon them. But
the relevant inquiry in a dismissal for want of prosecution is whether Bannum prosecuted its suit
to a conclusion with reasonable diligence, not whether it intended to pursue its claims. See Conner,
458 S.W.3d at 534. As explained above, the record supports the district court’s conclusion that
Bannum stopped prosecuting its case after the parties entered into the Rule 11 agreement.
On this record, we cannot say that the district court abused its discretion in
dismissing Bannum’s case for want of prosecution. Accordingly, we overrule Bannum’s issue.
CONCLUSION
We affirm the district court’s judgment of dismissal.
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Triana
Affirmed
Filed: February 9, 2021