Tom Williams, Independent of the Estate of Dora E. L. Barnett v. Marleen Kovalchik Barnett

• Court: Court of Appeals of Texas
• Decided: June 16, 2011
• Docket: 01-10-00526-CV
• Status: Published

Opinion

Opinion issued June 16, 2011

In The

Court of Appeals

For The

First District of Texas

———————————

NO. 01-10-00526-CV

Tom Williams, Independent Executor of the Estate of Dora Ernestine Luck Barnett, Appellant

V.

Marleen Kovalchik Barnett, Appellee

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Case No. 266009401

MEMORANDUM OPINION

          Tom Williams, independent executor of the Estate of Darlene Luck Barnett, appeals the trial court’s order denying his motion to dismiss Marleen Kovalchik Barnett’s entire case and instead dismissing the sole claim remanded to the trial court after an earlier appeal.  In the earlier appeal, the Texas Supreme Court reversed the trial court’s denial of Marleen’s claims for family allowance and remanded to the trial court for a determination of the amount of the allowance.  In two issues, Williams contends that the trial court erred by dismissing only the remanded family allowance claim and not the entire case and by failing to render a final judgment that includes the lower pre- and post-judgment interest rates that have become effective since the original judgment.  We conclude the trial court did not err by denying Williams’s motion to dismiss the entire case and that the interest rate in effect at the time of the original judgment applies.  We affirm.

Background

          Christopher Barnett and Marleen Kovalchik Barnett were separated and in the midst of a divorce when Christopher died on January 24, 1994.  In his will, Christopher named his mother Dora Ernestine Luck Barnett as the primary beneficiary and the independent executor of his estate.  Dora, having received proceeds from life insurance policies on behalf of the estate, distributed over $300,000 to family members and friends.

          Marleen sued Dora and the family members and friends who received the insurance proceeds asserting that the life insurance policies were community property, that Christopher committed a fraud on the community by giving the proceeds to Dora, and that a constructive trust should be imposed on the proceeds.  Marleen also sought her one-half of the community estate and a family allowance.  The trial court granted partial summary judgment for Dora and the family and friends regarding the life insurance proceeds.  The remaining claims proceeded to jury trial.  The trial court granted directed verdicts on behalf of the family and friends on some of Marleen’s claims.  The remainder of her claims resulted in a jury verdict for Marleen.  The trial court held a bench trial on Marleen’s claims for family allowance, which is a matter to be tried by the trial court.[1]  On May 1, 1997, the trial court rendered judgment for Marleen and against Dora, individually and as executor of Christopher’s estate, in the amount of $80,943.30 in accordance with the jury’s verdict and its earlier rulings and denied Marleen’s request for a family allowance.  Both Marleen and Dora appealed.

          On appeal, this court reversed the trial court’s summary judgment denying Marleen any portion of the life insurance proceeds, reversed the trial court’s denial for family allowance, and affirmed the remainder of the judgment, remanding the cause to the trial court for “further proceedings consistent with this opinion.”  Barnett v. Barnett, 985 S.W.2d 520, 535 (Tex. App.—Houston [1st Dist.] 1998), rev’d in part, 67 S.W.3d 107 (Tex. 2001).  Dora petitioned the Texas Supreme Court for review.  The Supreme Court reversed this court’s judgment concerning the life insurance proceeds.  The Supreme Court affirmed the remainder of this court’s judgment and remanded the cause to the trial court “for further proceedings.”  Barnett v. Barnett, 67 S.W.3d 107, 126 (Tex. 2001).

          The Supreme Court’s opinion and judgment issued December 6, 2001, with the mandate issuing February 15, 2002.  After the Supreme Court’s remand, the only remaining claim was Marleen’s claim for a family allowance.  Marleen, however, did not pursue her claim for a family allowance.  In 2003 and 2005, Dora paid Marleen two separate payments of $40,000 towards the judgment.  Dora died on November 6, 2007 and Williams was appointed independent executor of her estate.  In January 2010, Williams filed a “Motion to Dismiss for Want of Prosecution and/or Laches.”  Williams sought to dismiss Marleen’s entire case, not just her claim for family allowance.  In response, Marleen sought to nonsuit her claim for family allowance. 

          The trial court held a hearing.  At the hearing, Williams urged the trial court to dismiss the entire case and, alternatively, asked that, if the court only dismissed the family allowance claim, the court enter a new judgment substituting the lower pre- and post-judgment interest rates that were in effect in 2010.  The trial court signed an order dismissing Marleen’s claim for family allowance.  The trial court refused to modify its prior judgment in any other way.  Williams filed a motion for new trial, which the trial court overruled, and this appeal followed.

Dismissal for Want of Prosecution

          In his first issue, Williams contends that the trial court erred by denying his motion to dismiss for want of prosecution.  Specifically, Williams argues that because Marleen failed to pursue her claim for a family allowance for eight years after the Texas Supreme Court remanded the case to the trial court for further proceedings, the trial court should have dismissed her entire case, not just the claim for a family allowance.

          A trial court may dismiss a case for want of prosecution under Texas Rule of Civil Procedure 165a when a party fails to appear at a hearing or trial or when the case has not been disposed of within the Texas Supreme Court’s time standards.  Tex. R. Civ. P. 165a(1), (2).  A trial court also has inherent power to dismiss when the case has not been prosecuted with due diligence.  Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).  An appellate court reviews a trial court’s ruling on a motion to dismiss for want of prosecution for an abuse of discretion.  Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet. denied) (citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997)).  A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles.  Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).  In this case, Williams moved to dismiss for (1) failure to dispose of the case within the Supreme Court’s guidelines and (2) failure to prosecute the case with due diligence.

          1.       Failure to adhere to Texas Supreme Court guidelines

           Under Rule 6 of the Rules of Judicial Administration, in a non-jury civil case (other than a family law case), the trial court “should, so far as reasonably possible, ensure that all cases are brought to trial or final disposition . . . [w]ithin 12 months from appearance date.”  Tex. R. Jud. Admin. 6(b)(2), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F—Appendix (West Supp. 2010).  The Supreme Court makes the Rules of Judicial Administration under the Legislature’s grant of authority in section 74.024 of the Texas Government Code.  Tex. R. Jud. Admin. 1; see also Jones, 318 S.W.3d at 427.  Section 74.024 provides that “the supreme court may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions, and dispositions; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted . . . .” Tex. Gov’t Code Ann. § 74.024(c)(1), (2) (West Supp. 2010).  “[T]he application of Rule 6 is discretionary and non-binding.”  Jones, 318 S.W.3d at 427 (citing In re S.D.W., 811 S.W.2d 739, 746 (Tex. App.—Houston [1st Dist.] 1991, no writ)).  “Thus, Rule 6 does not fix a bright line demarking the outward limit of a trial court’s discretion to control its docket.”  Id.

          Williams specifically argues that, after remand, the only claim left in the case was Marleen’s claim for a family allowance, an issue for which there is no right for a jury trial.  See Tex. Prob. Code Ann. § 286 (West 2003).  Therefore, Williams asserts, the appearance date having passed, the trial court was required to dispose of the case within 12 months.  First, we note that Williams cites no authority—and we have found none—that applies Rule 6 to a case after remand.  Assuming without deciding that Williams is correct and the guidelines of Rule 6 apply upon remand from an appellate court, Williams still fails to cite any authority that the trial court abused its discretion by failing to dismiss Marleen’s entire case—not just the one remaining claim.  For the reasons discussed below, we conclude that the trial court did not abuse its discretion.

          First, Rule 6 sets the guidelines for a case to be “brought to trial or final disposition.”  Tex. R. Jud. Admin. 6(b)(2) (emphasis added).  It is undisputed that this case has already been to trial.  Second, again assuming that Rule 6 applies anew after remand, the only remaining claim that had not been brought to trial or disposed of was Marleen’s claim for a family allowance.  This is the claim the trial court dismissed.  Indeed, it is the only claim the trial court could address.  After remand, if an appellate court has affirmed a trial court’s judgment, the trial court has no jurisdiction to review or interpret the appellate court’s judgment; rather, the trial court is limited to the ministerial duty of carrying out the mandate of the higher court.  Denton Cnty. v. Tarrant Cnty., 139 S.W.3d 22, 23 (Tex. App.—Fort Worth 2004, pet. denied) (citing Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987)).  When an appellate court remands a case with instructions, the trial court only has the authority to comply with those instructions and may not relitigate issues settled in the former trial.  Id.  In this case, on appeal, the trial court’s judgment was affirmed in part and the cause was remanded to address Marleen’s claim for family allowance.  The trial court did so, dismissing the claim pursuant to Williams’s motion to dismiss and Marleen’s request for a nonsuit.  Having addressed the sole claim that was remanded, the trial court lacked power to address the matters previously litigated.  See id.  We cannot conclude that Williams has shown that the trial court abused its discretion by disposing of the only outstanding claim in accordance with the judgment and mandate of the Texas Supreme Court.

          2.       Marleen’s nonsuit

          Before the trial court heard Williams’s motion to dismiss for want of prosecution, Marleen filed her own motion to nonsuit her claim for family allowance.[2]  A plaintiff has an absolute right to take a nonsuit so long as the defendant has not made a claim for affirmative relief.  Tex. R.  Civ.  P. 162; BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 840–41 (Tex. 1990).  A plaintiff’s nonsuit is effective immediately upon filing.  See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862–63 (Tex. 2010).  A trial court abuses its discretion if it refuses to dismiss when a plaintiff files a nonsuit.  Id.; see also In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324–25 (Tex. 2009) (stating that “[g]ranting a nonsuit is a ministerial act”).  We therefore conclude that the trial court did not abuse its discretion by dismissing Marleen’s claim for family allowance.

          3.       The trial court’s inherent power to dismiss

          The trial court’s order does not expressly rule on Williams’s motion to dismiss.  Rather, it simply carries out the ministerial, non-discretionary act of granting Marleen’s nonsuit.  The trial court therefore never reached Williams motion.  Even if the trial court’s order is read to implicitly deny Williams’s motion to dismiss, the trial court did not abuse its discretion. 

          A trial court may dismiss a case for want of prosecution under its inherent power when the case has not been prosecuted with due diligence.  Villarreal, 994 S.W.2d at 630.  In deciding whether to dismiss a case for want of prosecution, 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.  Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).  Although he cites other cases, the primary case Williams cited in his motion to dismiss for want of prosecution before the trial court was Owens v. City of Waco, 437 S.W.2d 660, 661–62 (Tex. Civ. App.—Waco), affirmed 442 S.W.2d 324 (Tex. 1969).[3]  In Owens, the City of Waco sued Owens for unpaid taxes.  Owens, 437 S.W.2d at 661.  The city filed the suit in March 1960 for tax years 1956 through 1958.  Id. at 661–62.  The city took no action until October 1965 when Owens sought a dismissal.  Id. at 661.  The city then amended its petition in 1965, 1966, 1967, and 1968, adding additional years of delinquent taxes.  Id. at 662.  The court of appeals held—and the Texas Supreme Court affirmed—that the trial court abused its discretion in failing to dismiss the claims for taxes from 1956 to 1958 when the city delayed for five years in prosecuting the suit and offered no explanation for the delay.  Id. at 661–62.   

          Thus, even Williams’s authority supports the proposition that a trial court may dispose of some claims for want of prosecution without disposing of the entire case.  This is precisely what the trial court did in this case.  Furthermore, as explained above, Marleen’s family allowance claim is the only claim the trial court had authority to address under the mandate received from the Texas Supreme Court.  We conclude that Williams has not shown that the trial court abused its discretion even if the trial court’s order is treated as an implicit denial of Williams’s motion to dismiss the entire case.

          We overrule Williams’s first issue.

Pre- and Post-judgment Interest Rates

          In his second issue, Williams contends that after remand “for further proceedings” the trial court was compelled to enter a “new” final judgment reflecting the judgment on Marleen’s claims for a family allowance.  Therefore, Williams argues, the lower interest rates in effect at the time of the “new” judgment should be applied to the trial court’s judgment, including retroactively applying the new, lower rates to Marleen’s recovery first awarded on May 1, 1997.[4]

          Williams cites no authority to directly support his argument.  Rather, Williams cites authorities that state general propositions of law.  For example, Williams cites Rule 301 of the Texas Rules of Civil Procedure that provides, in pertinent part, “Only one final judgment shall be rendered in any cause . . . .”  Tex. R. Civ. P. 301.  But a nonsuit or severance of claims after a partial summary judgment or partial summary disposition of claims does not result in two separate judgments; it simply makes the trial court’s earlier partial judgment final and appealable.  See Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 493 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995)). 

          Williams also cites de la Garza v. de la Garza, 185 S.W.3d 924, 928 (Tex. App.—Dallas 2006, no pet.), which states the judgment interest rate statute in effect at the time the trial court renders judgment controls.  From these authorities, Williams argues that the date of the trial court’s judgment after remand should be the “new” final judgment date and the current, lower interest rates apply. 

          Williams, however, fails to recognize that the trial court has already rendered judgment.  This court and the Texas Supreme Court found that judgment erroneous, in part.  But that does not change the fact that the trial court rendered judgment in this cause on May 1, 1997.  The Texas Supreme Court has held that a party recovering damages is entitled to interest on the judgment from the time of the erroneous final judgment.  Thornal v. Cargill, Inc., 587 S.W.2d 384, 384–85 (Tex. 1979); American Paper Stock Co. v. Howard, 528 S.W.2d 576, 577 (Tex. 1975); see also Long v. Castle Texas Prod. Ltd. P’ship, 330 S.W.3d 749, 753 (Tex. App.—Tyler 2010, no pet. h.) (holding that, when case is affirmed in part and reversed and remanded in part, prevailing party is entitled to judgment interest from the date of original judgment “because it is the date upon which the trial court should have rendered a correct judgment”).  To change the interest rate in the judgment after the limited remand would be to retroactively alter the original judgment when the trial court had no authority to do so.  Denton Cnty., 139 S.W.3d at 203.

          We overrule this portion of Williams’s second issue.   

Conclusion

          We affirm the trial court’s order dismissing Marleen’s claim for family allowance. 

                                                                   Harvey Brown

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

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[1]           See Tex. Prob. Code Ann. § 286 (West 2003). 

[2]        Marleen’s motion was styled, in part, a motion to dismiss.  However, she asked for dismissal or nonsuit of her claim for family allowance.  We consider Marleen’s motion a request for a nonsuit.  See Tex. R.  Civ.  P. 162 (entitled “Dismissal or Non-Suit”); see also Ton’s Remodeling v. Fung’s Kitchen, Inc., No. 01-05-01077-CV, 2007 WL 1776030, at *5 (Tex. App.—Houston [1st Dist.] June 21, 2007, pet. denied) (“To take a non-suit, a party may file a written motion to dismiss.”) (citing Cook v. Nacogdoches Anesthesia Group, L.L.P., 167 S.W.3d 476, 482 (Tex. App.—Tyler 2005, no pet.)).

[3]           The other cases are Denton Cnty. Tex. v. Brammer, 361 S.W.2d 198 (Tex. 1962), Bevil v. Johnson, 307 S.W.2d 85 (1957), and Callahan v. Staples, 161 S.W.2d 489 (Tex. 1942), all of which are cited in Owens for authority to dismiss a case that has not been prosecuted with diligence.  See Owens, 437 S.W.2d at 661.  We note that none of those cases involved either a case on remand after appeal or a case with severable claims.  Owens, however, involved multiple claims—a claim for each year that taxes were not paid.  See id.  Of the cases cited by Williams, Owens is the most analogous to the instant case.

[4]           The applicable interest rate when the trial court rendered judgment on May 1, 1997 was ten percent.  See Act of May 8, 1987, 70th Leg., R.S., ch. 154, § 1, art. 1.05, sec. 2. 1987 Gen. Laws 1313, 1314 (current version at Tex. Fin. Code Ann. § 304.003(c) (West 2006)).  The applicable interest rate in January 2010 was five percent.  See Tex. Fin. Code Ann. § 304.003(c) (West 2003).