In re Trane U.S. Inc., NUMBER 13-18-00008-CV

• Decision Date: 06 March 2018
• Docket Number: NUMBER 13-18-00008-CV
• Parties: IN RE TRANE U.S. INC. AND RIGOBERTO GARZA
• Court: Texas Court of Appeals

IN RE TRANE U.S. INC. AND RIGOBERTO GARZA

NUMBER 13-18-00008-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 6, 2018

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Longoria, and Hinojosa

Memorandum Opinion by Justice Longoria¹

Relators Trane U.S. Inc. and Rigoberto Garza filed a petition for writ of mandamus seeking to compel the trial court to vacate an order granting reinstatement of the underlying case after it was dismissed for want of prosecution.² This original proceedingarises from a 2012 case regarding the alleged breach of a construction contract. We conditionally grant relief as stated herein.

I. BACKGROUND

According to the pleadings, the underlying breach of contract case arises from a subcontracting agreement between A.J.'s Steel Erectors, L.L.C. and STEX Industries (STEX) for the construction of a Family Dollar in Palmview, Texas. On November 15, 2012, A.J.'s Steel brought suit against STEX, Merdy Villarreal, and relators. On January 24, 2013, A.J.'s Steel obtained a final default judgment against STEX and Villarreal for, inter alia, $749,000.00 as the principal balance owed to A.J.'s Steel pursuant to contract.

On September 10, 2015, relators filed a motion to dismiss the case for want of prosecution. According to the motion, A.J.'s Steel "has done little to prosecute this case" since it was filed on November 15, 2012. Relators asserted that A.J.'s Steel had not engaged in any discovery since filing suit "other than including requests for disclosure in the original petition." Relators argued that A.J.'s Steel "requested a Level 2 discovery plan and, as a result, the discovery period expired on October 19, 2013, nine months after [relators] served responses to Plaintiff's requests for disclosure." The motion asserted that on January 24, 2013, A.J.'s Steel obtained a default judgment against codefendants STEX and Villarreal, but that A.J.'s Steel had not requested a trial setting. Relators asserted that A.J.'s Steel "has no reasonable excuse for delay in prosecuting" the case against them. In support of their motion to dismiss, relators argued that A.J.'s Steel failed to adjudicate this matter within the time standards promulgated by the Texas Supreme Court in its Administrative Rules and argued that the case should be dismissed pursuant to the trial court's inherent power. The trial court denied relators' motion to dismiss.

On May 25, 2017, the trial court sent the parties notice that the case was set for a dismissal hearing under Rule 165a of the Texas Rules of Civil Procedure on August 28, 2017 "to determine whether the above-referenced case should be dismissed for want of prosecution." See TEX. R. CIV. P. 165a. The court stated that the case would be dismissed for want of prosecution unless "good cause" was shown for maintaining the case on the docket.

On August 22, 2017, A.J.'s Steel filed a verified "Motion to Retain and Reinstate" in apparent response to the trial court's dismissal notice. A.J.'s Steel requested that the court set a trial date or enter a scheduling order, and also requested the court to "reinstate" the case. The motion asserted that on or about January 24, 2013, A.J.'s Steel obtained a judgment against defendants STEX Industries and Villarreal. A.J.'s Steel requested that the court retain the case "as it is in the process of being litigated" and asserted that there was "good cause" for the case to maintained on the docket.

On August 28, 2017, the trial court ordered the case dismissed for want of prosecution. That same day, A.J.'s Steel filed a motion to reconsider. The motion was verified and states in its entirety as follows:

Now Comes, A.J.'S STEEL ERECTORS, L.L.C., Plaintiff, and hereby requests that the Court Reconsider the dismissal of this case and assign a Trial date and/or Scheduling Order to the above styled and numbered cause. In addition, Plaintiff also requests this Court, under Rule 165a of the Texas Rules of Civil Procedure to reinstate this case.

I.

On or about August 28, 2017, the Dismissal Hearing was called in the docket. Attorney, Jorge Ortegon appeared in place of attorney of record Bobby Garcia; however, the case had already been called. The Plaintiff now moves this Court to Reconsider the Dismissal, as it is in the process of being litigated. There is good cause for the same to be maintained in the Court's Docket.

WHEREFORE, Plaintiff requests that this Court Reconsider and order the Reinstatement of this case.

Later that same day, relators filed a response to A.J.'s Steel's motion to reconsider. The response stated that the trial court had called several other cases on the dismissal docket before calling this case and that the court stated on the record that the case would be dismissed. Relators' response argued that A.J.'s Steel's motion to reconsider "is utterly without merit and fails to state any factual or legal basis on which the Court could find that good cause exists for the court to reconsider the order of dismissal." In addition to attacking A.J.'s Steel's failure to appear at the dismissal hearing, relators also argued that the case should be dismissed due to the delay in its prosecution:

In addition to the failure of Plaintiff's attorneys to appear on time for the dismissal hearing, there are ample reasons for the court to dismiss this case for want of prosecution. Plaintiff filed this lawsuit on November 15, 2012 and has done little to prosecute this case since that time. Plaintiff has not engaged in any discovery since filing suit other than including requests for disclosure in the original petition. Plaintiff requested a Level 2 discovery plan and as a result, the discovery period expired on October 19, 2013, nine months after Defendants served responses to Plaintiff's requests for disclosure. On January 24, 2013 Plaintiff obtained a default judgment against codefendants STEX Industries and Merdy Villarreal. Although this lawsuit has been on file for almost five years, no trial setting has ever been requested. On September 10, 2015 counsel for Defendants filed a Motion to Dismiss for Want of Prosecution and the court conducted a hearing on that motion on October 28, 2015. Although the court would have been within its discretion to dismiss this case for want of prosecution at the time of the hearing on Defendants' motion, it chose to deny the motion at that time. Now, twenty two months later, the Plaintiff has still done absolutely nothing to prosecute this case and the Court appropriately set the case for a dismissal hearing pursuant to Rule 165a of the Texas Rules of Civil Procedure. Plaintiff has not provided any reasonable excuse for the delay in prosecuting this matter against Defendants.

Relators further reargued that A.J.'s Steel had failed to adjudicate this matter within the time standards promulgated in the administrative rules and argued that the trial court had inherent power to dismiss the lawsuit as a result of A.J.'s Steel's lack of diligence.

On October 11, 2017, the trial court held a hearing on A.J.'s Steel's motion to reconsider. Jorge Ortegon appeared for Bobby Garcia. Ortegon testified that Garcia had a "family emergency or some sort of emergency" and was unable to appear. Ortegon argued as follows:

And Judge, if I may briefly, there was originally a DWOP setting, Judge; however, we are here on a Motion to Reconsider, Judge. The issue with that day was I did arrive—I arrived at 9:07 [and] the case was called right at 9:00. It was the first case called on that day. If the Court would let me—I actually did text the Bailiff at 8:38 that morning that I had to stop at Court 7 and anybody who's been in Court 7 knows that sometimes you get held up in that court where you actually can't leave. So I texted the Bailiff; however, the text never really went through I guess it was an issue, it was an Apple-to-Apple thing, it never said delivered.

So as soon as I was able to leave Court 7, Judge, I ran over here—I got over here at 9:07 and I found out when we were looking for the case that it was the first one that had gotten called, Judge. There was no way that I could have been here, like I said, I got held up in Court 7, I tried leaving several times. I did get here seven minutes late; however, like I said I did send a text about 25 minutes ahead of time to the Bailiff letting him know that I would be checking in and stopping in another court real quick, but of course I got held up in there, Judge and got here on that day.

A.J.'s Steel's counsel further asserted that it was in the process of "getting some names for depositions." He argued that counsel for the defense filed a motion for summary judgment or "their own DWOP" in 2016 "that was denied by the Court." Counsel argued that this "backtracked" how A.J.'s Steel wanted to proceed, "however, they're preparing and they're getting ready to take depositions and things like that."

Relators' counsel argued that the facts recounted by plaintiff's counsel were "a little off," but stated that he did not think it "really matters." He asserted that this was not the first case that was called on the dismissal docket and that he was present in the courtroom until "probably 9:20 or so." He further argued:

But more fundamental[ly] Judge, this is a case that's been on file since 2012. The Court did hear a Motion for Summary Judgment and in itsdiscretion denied it. We had filed our own Motion to Dismiss and those motions were filed in 2015. You conducted a hearing on both and denied both motions.

. . . .

The point here is that the discovery period ended October of 2015. There's been the only discovery which has occurred in this case was there was a Request for Disclosures which was filed with the petition, that was answered in January of 2015 and there's not been a lick of discovery since that time. No one has ever contacted me requesting depositions. There's been nothing that has occurred in this case. When the Court issued the Rule

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