Opinion
Nos. 13-04-606-CV, 13-04-607-CV
Memorandum Opinion Delivered and Filed December 1, 2005.
On Appeal from the 25th District Court of Lavaca County, Texas.
Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
MEMORANDUM OPINION
This appeal arises from the dismissal for want of prosecution of two cases filed by appellants, Patterson-UTI Drilling Co. South LP, LLP, and Patterson-UTI Drilling Co. LP, LLLP, et al. (collectively "Patterson"). For the reasons that follow, we conclude that the trial court did not abuse its discretion in dismissing Patterson's cases.
The two cases have been consolidated for purposes of appeal.
This appeal involves two ad valorem tax cases in which Patterson claimed that its mobile drilling rigs were not taxable in Lavaca County, but instead were taxable at its principal place of business in Scurry County. See TEX. TAX. CODE ANN. § 21.02 (Vernon 2001). The record reflects that Patterson filed the first suit (the "2001 case") on August 24, 2001, and filed the second suit (the "2002 case") on August 16, 2002. In June 2003, the trial court placed the 2002 case on the dismissal docket. Patterson filed a motion to retain explaining that (1) it had cases pending in several counties with identical questions of law and virtually identical fact situations, (2) it had been engaged in settlement discussions with several cases having settled, and (3) the cases will be decided on motion for summary judgment or set for trial. The trial court granted the motion and the case was retained.
We note that Patterson's brief contains misstatements of facts. Patterson states that, in its motion to retain, it explained that it was "pursuing a plan to get an appellate decision in one case to help resolve all the cases." Patterson states that, by granting the motion to retain, the trial court "tacitly" accepted its "overall strategy to get one case before an appellate court." These statements are incorrect. Neither Patterson's first motion to retain nor the trial court's order mentions Patterson's "overall strategy" of getting a case to an appellate court. The motion to retain only states that there were other cases pending, that they were involved in settlement negotiations, that some cases had settled, and that others would be decided on motions for summary judgment or set for trial.
On July 26, 2004, appellee filed motions in both cases seeking to dismiss for want of prosecution. Patterson responded by filing motions to retain, abate, or alternatively, to set for trial. In its motions, Patterson explained that it had not prosecuted the cases with reasonable diligence because it had a plan to get an appellate decision on a similar case with the expectation that the appellate decision would resolve all the cases. Patterson contended that it was "seeking to promote judicial efficiency and economy by pushing one case to the appellate level to resolve the common legal issue and to avoid multiplicity of trials and appeals." After a hearing on the motion, the trial court dismissed both cases with prejudice for want of prosecution. Patterson subsequently filed motions to reinstate both cases. After a hearing, the trial court denied the motions to reinstate. This appeal ensued.
An appellate court reviews the dismissal of a case for want of prosecution and a denial of a motion to reinstate for clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Nawas v. RS Vending, 920 S.W.2d 734, 737 (Tex.App.-Houston [1st Dist.] 1996, no writ). An abuse of discretion occurs if the trial court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A reviewing court cannot conclude that a trial court abused its discretion simply because, in the same circumstances, it would have ruled differently, or because the trial court committed a mere error in judgment. E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).
In resolving the question of due diligence, the trial court may consider the entire history of the case, including (1) the length of time the case was on file, (2) the extent of activity in the case, (3) whether a trial setting was requested, and (4) the existence of reasonable excuse for the delay. See King v. Holland, 884 S.W.2d 231, 237 (Tex.App.-Corpus Christi 1994, writ denied); City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ). No single factor is dispositive, including the request for a trial setting. Bard v. Frank B. Hall Co., 767 S.W.2d 839, 843 (Tex.App.-San Antonio 1989, writ denied). Because the balancing of these factors to determine the existence or non-existence of due diligence is largely a fact-driven enterprise, we may not substitute our judgment for that of the trial court unless the trial court could have reached only one decision. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
The trial court's authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court's inherent power. See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); see also Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957). A trial court may dismiss under rule 165a on the "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice," TEX. R. CIV. P. 165a(1), or if a case is "not disposed of within the time standards promulgated by the Supreme Court. . . ." TEX. R. CIV. P. 165a(2). In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure if a plaintiff fails to prosecute his or her case with due diligence. See Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980); Williams, 543 S.W.2d at 90.
Rule 6 of the Texas Rules of Judicial Administration provides that civil non-jury cases must be disposed of within 12 months from the appearance date. See TEX. R. JUD. ADMIN. 6. The parties have conceded that the cases at issue were civil non-jury cases.
The scope of our review depends on whether the dismissal order specifies the basis for dismissal. Shook v. Gilmore Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex.App.-Waco 1997, pet. denied); City of Houston v. Robinson, 837 S.W.2d 262, 264 (Tex.App.-Houston [1st Dist] 1992, no writ). If the order is silent, the plaintiff seeking reinstatement must negate all possible grounds for dismissal, including whether the dismissal was prompted by a lack of due diligence in prosecuting the suit, failure to appear at trial or a hearing, or violation of the supreme court's time standards. See Shook, 951 S.W.2d at 296. If, however, the dismissal order lists a specific ground, the plaintiff seeking reinstatement must negate only the reason stated in the dismissal order. See id. In the present case, the parties agree and the record reflects that the cases were dismissed in response to Lavaca County's motion to dismiss for failure to prosecute with reasonable diligence. Accordingly, we limit our review to whether Patterson negated lack of due diligence.
The record reflects that the cases had been on file for two and three years, respectively. The cases were never set for pre-trial conference, docket control conference, or trial. Patterson served discovery requests for the 2001 case on July 22, 2002, but took no further action on the case until it was set for dismissal in July 2004. Patterson did not conduct discovery in the 2002 case, and other than its motion to retain the case in response to its placement on the June 2003 dismissal docket, Patterson took no action in the case until it was again set for dismissal in 2004. The record also reveals that Patterson did not (1) inform the court of its plan to wait for another case to make it to a court of appeals, (2) request the court to abate the cases, or (3) move for trial settings until after the cases were set on the dismissal docket.
At the hearing on the motion to retain, counsel for Patterson announced that it was ready to try the cases at any time. As good cause for the delay in prosecution of the cases, counsel informed the court that Patterson had twenty cases with the same issues pending across fifteen different counties in the state. Counsel assured the court that Patterson was not dragging its feet, but that it had actually decided, in the interest of judicial economy, to pursue a limited number cases through appeal in the hope that an appellate decision would resolve all pending cases, including the two now before this Court. The trial court was not given any explanation for why Patterson had not moved for abatement at an earlier date, even though the 2002 case had, at one point, been set for dismissal.
Patterson would have us hold that its activity in similar cases and its attempt to secure an appellate decision resolving the cases constitute due diligence. However, we disagree. See Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex.App.-San Antonio 1998, pet. denied) (finding court did not abuse its discretion in dismissing for want of prosecution where 16 months elapsed without activity and where appellant's explanation was that it had to prosecute a related case); cf. MacGregor v. Rich, 941 S.W.2d 74, 75-76 (Tex. 1997) (finding no abuse of discretion in dismissing suit where plaintiffs failed to notify defendants of separate bankruptcy proceedings).
Patterson's attorneys testified on its behalf at the hearing on Patterson's motion to reinstate. The essence of their testimony reiterated Patterson's plan to obtain an appellate decision in an effort to avoid multiplicity of suits and that the pursuit of this strategy constituted good cause for the delay, if not a showing of due diligence. They also pointed out numerous times that, if the cases were not reinstated, Patterson would have no remedy to avoid double taxation. They noted that appeals relating to tax cases have to be filed within forty-five days of a final decision by the appraisal review board, and that any dismissal in this case whether with or without prejudice would effectively be with prejudice because Patterson will nonetheless be outside of the forty-five day time period.
Although we appreciate how Patterson's plan could have theoretically minimized the costs of this litigation, we are also very cognizant of Patterson's obligations to keep the trial court apprised of its intentions and to seek permission before pursuing a plan that would necessarily entail inactivity and significant delays in the trial court's disposition of its docket. Patterson's failure to fulfill these obligations was viewed by the trial court as a lack of due diligence. As sympathetic as we may be towards Patterson's overall goal of minimizing the costs of this litigation, we cannot substitute our judgment for that of the trial court in this regard. Accordingly, we find no abuse of discretion and affirm the trial court's orders dismissing Patterson's cases without prejudice.