MacGregor v. Rich

Decision Date31 January 1997
Docket NumberNo. 96-0627,96-0627
Parties40 Tex. Sup. Ct. J. 298 George L. MacGREGOR, Jr., Matt Landry, First South-West Investments Company, Inc., and First South-West Associates, Inc., Petitioners, v. Jack RICH, individually and as assignee of John Muir Kipp and Rex Kipp, Jr., as assignee of William Marble Kipp, Respondents.
CourtTexas Supreme Court

Ronals Scott, W. Stephen Benesh, Reagan Mark Brown, Andrew L. Pickens, Houston, Randy Lee, El Paso, for Petitioners.

Bryan H. Hall, Doris A. Sipes, Malcolm McGregor, John C. Schwambach, Jr., El Paso, for Respondents.

PER CURIAM.

In this case, we consider whether the court of appeals erred by reversing a trial court's order of dismissal for want of prosecution and for violation of a local rule. We hold that it did. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court's order.

This appeal arises from a dismissal after the plaintiffs, Jack Rich, John Kipp, and William Kipp, did not appear at a hearing on a motion to transfer venue. The trial court's order indicates that three kinds of conduct precipitated the dismissal: (1) counsel's failure to appear at the venue hearing; (2) the plaintiffs' failure to give proper notice of their bankruptcy proceedings and discharges, in violation of El Paso Local Rule 3.10; and (3) a ten-year delay in the prosecution of Rich's and the Kipps' claims.

The court of appeals interpreted this dismissal as a sanction rather than a dismissal for want of prosecution, citing language in the trial court's order referring to the dismissal as a sanction. 932 S.W.2d at 83 n. 3. Applying the analysis for the review of death penalty sanctions based on discovery abuse, which we set forth in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex.1991), the court of appeals held that the trial court abused its discretion and remanded the case to the trial court. We hold, however, that the trial court properly dismissed this suit for want of prosecution. We do not reach the issue of whether the court of appeals properly applied the TransAmerican requirements outside the context of discovery sanctions.

The trial court's order is ambiguous, because it reasonably could be understood either as a sanctions order under Local Rule 3.10 or as a dismissal for want of prosecution. When an ambiguous order is susceptible to two reasonable constructions, an appellate court should adopt the construction that correctly applies the law. See Gough v. Jones, 212 S.W. 943, 944 (Tex. Comm'n App.1919, judgm't adopted); Garza v. Fleming, 323 S.W.2d 152, 156 (Tex.Civ.App.--San Antonio 1959, writ ref'd n.r.e.).

We review a dismissal for want of prosecution under a clear abuse of discretion standard; the central issue is whether the plaintiffs exercised reasonable diligence. See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976). Here, by issuing notices of its intent to dismiss for want of prosecution, the trial court warned Rich and the Kipps on four occasions between 1985 and 1995 to act promptly on their claims. Nevertheless, after serving their petition, one set of interrogatories, and a response to the motion to transfer venue, Rich and the Kipps did nothing to press their claims for eight years.

The plaintiffs attribute their delay in prosecuting this suit to various bankruptcy proceedings between 1987 and 1993 and to difficulty in obtaining their files from counsel between December 1993 and their retention of present counsel in February 1995. The plaintiffs offered no evidence that the bankruptcies interfered with the prosecution of this suit. 1 Nor did they offer evidence of any attempt to communicate with counsel about the prosecution of this suit before December 1993. Jack Rich and ...

To continue reading

Request your trial
198 cases
  • Indian Beach Prop. Owners' Ass'n v. Linden
    • United States
    • Texas Court of Appeals
    • March 22, 2007
  • Flying Diamond-West Madisonville Limited Partnership v. GW Petroleum, Inc., No. 10-07-00281-CV (Tex. App. 8/26/2009)
    • United States
    • Texas Court of Appeals
    • August 26, 2009
    ...Abuse of Discretion A trial court's ruling on a motion to dismiss is reviewed under an abuse of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.-San Antonio 1998, pet. denied); Christian v. Christian,......
  • Enriquez v. Livingston
    • United States
    • Texas Court of Appeals
    • March 20, 2013
    ...OF REVIEW We review the trial court's dismissal for want of prosecution for a clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); State v. Rotello, 671 S.W.2d 507, 508 (Tex.1984). We also apply an abuse-of-discretion standard to the denial of a motion to reinstate. S......
  • Pedraza v. Crossroads Sec. Systems, 13-96-233-CV
    • United States
    • Texas Court of Appeals
    • December 18, 1997
    ...under a clear abuse of discretion standard; the central issue is whether appellant exercised reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.1997); Hosey, 832 S.W.2d at 704. The test for abuse of discretion is whether the trial court acted without reference to any guiding ru......
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER 2 Standards of Review and Scope of Review
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex. 2011).[219] Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex. 2011).[220] MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam).[221] Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (per curiam).[222] Veterans' Land Bd. v. Wi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT