McCormick v. Shannon West Texas Memorial Hospital

665 S.W.2d 573, 1984 Tex. App. LEXIS 4938

• Court: Court of Appeals of Texas
• Decided: January 25, 1984
• Docket: 13856
• Status: Published

Opinions

SHANNON, Justice.

Charlene McCormick and others appeal from the order of the district court of Tom Green County refusing to reinstate a previously dismissed cause. Appellants insist that the district court’s order should be reversed and the cause reinstated. This Court will affirm the order of the district court.

Appellants, acting through their counsel, Sandra Thomas, filed suit in the district court in Galveston County on October 3, 1980.. On February 23, 1981, the lawsuit was transferred, by the agreement of all parties, to the district court of Tom Green County, where it was refiled on March 20, 1981. Because there had been no activity in the lawsuit, the court placed the cause on a “dismissal docket” on October 30, 1981.

Thereafter, appellants’ counsel, Thomas, filed a .motion seeking an order that the court not dismiss the case for want of prosecution, but instead retain the case on the active docket of the court. In response, on November 23, 1981, the trial court signed an order reinstating the case and providing as follows:

On this day for good cause this case heretofore placed on the Dismissal Docket is removed from said Dismissal Docket and reinstated on the active docket of this Court.

This order reinstating the case on the active docket is made on condition that some dispositive action be taken not later than January 15, 1982; failure to do so will make this case subject to summary dismissal without further notice to the parties, [emphasis added]

A copy of this order was mailed to appellants’ attorney-of-record at her law firm’s address, forwarded by the post office to a new address, and received by Thomas’ law partner, David M. Oualline, between November 23 and December 12,1981, and was placed in the lawsuit’s file.

Thereafter, appellants took no action in the lawsuit, “dispositive” or otherwise. As a result, the district court on March 4, 1982, signed an order dismissing the lawsuit for want of prosecution. The district clerk sent notice of the order of dismissal to appellants’ attorney-of-record, but the notice was returned by the post office with the notation that it was not delivered.

As we understand from the sparse record, the district court in handling this case followed the dismissal procedures set out by the local rules of the district courts of Tom Green County.

In May, 1982, one of the defendants filed a motion for summary judgment in the suit. The court replied by letter, a copy of which was received by attorney Oualline on July 19, 1982. The court’s letter, dated July 15, 1982, related that the court had dismissed the lawsuit for want of prosecution and that the court was of opinion that it no longer had jurisdiction to act on the motion for summary judgment.

On July 29, 1982, appellants filed a motion seeking reinstatement of the cause pursuant to Tex.R.Civ.P. 165a. After hearing, on August 23, 1982, the trial court signed an order overruling appellants’ motion to reinstate.

Appellants attack the district court’s orders dismissing the lawsuit and refusing to reinstate it upon the basis, in part, that the court in rendering those orders failed to follow the procedure mandated by Rule 165a.

Rule 165a is not the exclusive source from which the trial court derives its authority to dismiss a lawsuit for want of prosecution. A court has the inherent power to dismiss a lawsuit for failure to prosecute it with due diligence separate and apart from statutory or rule authority. Veterans’ Land Bd. v. Williams, 543 S.W.2d 89 (Tex.1976); Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Coven v. Dailey, 652 S.W.2d 527 (Tex.App.1983, writ ref’d n.r.e.). Due process requires that notice be afforded a party before the court exercises its inherent power to dismiss for want of prosecution. See Rotello v. State, 492 S.W.2d 347 (Tex.Civ.App.), writ ref’d n.r.e., 497 S.W.2d 290 (Tex.1973). The court’s exercise of its inherent power to dismiss for want of prosecution is subject to reversal only upon a clear showing of abuse of discretion. Veterans’ Land Bd. v. Williams, supra; Coven v. Dailey, supra.

The case now on appeal was dismissed by the district court about three years and seven months after the occurrence made the basis for the suit. Suit was filed in the district court of Galveston County in October 1980 and then transferred by agreement to the district court of Tom Green County in March, 1981. The lawsuit had been pending in Tom Green County for eight months when the court on November 23, 1981 notified appellants’ attorney-of-record that the case was subject to dismissal after January 15, 1982. The court’s order of that date provided that “some dispositive action” be taken before January 15, 1982 or that the lawsuit would be subject to dismissal without further notice. Appellants’ counsel did not reply nor did she respond by taking any steps in moving the case toward trial; in fact, appellants’ counsel departed the state without taking further action on the case. Although counsel abandoned her representation of appellants, she failed to file with the court a motion to substitute counsel. Counsel’s former law partner, Oualline, however, received the file and assumed responsibility for appellants’ representation.

The November 23, 1981, order adequately apprised appellants’ attorney-of-record that some “dispositive action” must be taken in the case before January 15, 1982 or else the lawsuit would be subject to summary dismissal without further notice to the parties. Rotello v. State, supra. Yet appellants’ counsel did nothing in the lawsuit before January 15, 1982 or for months thereafter. As a result, this Court is not called upon to determine what act by counsel would constitute some “dispositive action” under the terms of the order.

Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding, and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If we do not get the facts right, there is little chance for the judgment to be right. Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930, 931 (Tex.1975).

The district courts of Tom Green County recognized the problem of delay, took responsibility for the condition of their dockets, and took steps by rule to avoid the mischiefs of protraction. The passage of three years and seven months presented substantial impediments to the full and fair determination of the facts in this case or in any case. Allen v. Bentley Laboratories, Inc., 538 S.W.2d 857 (Tex.Civ.App.1976, writ ref’d n.r.e.). In the case at bar, appellants made no effort whatsoever to bring the suit to trial, even in face of the notice in the November 23rd order. Under these circumstances, the district court did not abuse its discretion in dismissing the suit for want of prosecution.

The order of the district court is affirmed.