Opinion
NO. 09-11-00398-CV
03-22-2012
DONALD MCCRAY, Appellant v. MATTHEW KEITH, ET AL, Appellees
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-169,432
MEMORANDUM OPINION
Donald McCray, appearing pro se, appeals from the trial court's order dismissing his lawsuit for want of prosecution. McCray contends the trial court erred when it decided to dismiss his suit. Because the trial court did not abuse its discretion in ordering McCray's suit dismissed, we affirm the trial court's judgment.
Background
In December 2003, McCray sued Matthew Keith, a pharmacist employed by the Texas Department of Criminal Justice (TDCJ). McCray alleged that Keith misfilled his prescription for an ointment and that he received a cream that was different than the one ordered by his physician. In March 2005, McCray filed additional pleadings making Robert Sandmann, another TDCJ pharmacist, an additional defendant. In September 2006, Keith and Sandmann appeared and filed their answer. While the clerk's record shows that McCray filed exceptions to the defendants' answer in October 2006, the record reflects no other activity occurred until Keith and Sandmann, in October 2009, filed a motion to dismiss McCray's suit. The motion to dismiss alleges the suit should be dismissed for want of prosecution, and that McCray had no reasonable excuse to justify his delay in prosecuting his case.
In November 2009, McCray filed a response to the motion to dismiss, claiming that he had filed motions seeking a default judgment in 2007, 2008, and 2009. However, his motions, even if we were to accept McCray's bare claim to having filed them, are not in the record before us. Additionally, Keith's and Sandmann's answer was filed before the trial court took any action regarding their alleged delay in filing an answer. Nevertheless, McCray's response to the defendants' motion to dismiss requested that the trial court strike the motion to dismiss because Keith and Sandmann had not timely filed their answer. McCray's response requested the trial court to give him a judgment by default.
In June 2011, the trial court conducted a hearing on Keith's and Sandmann's motion to dismiss. McCray participated in the hearing by telephone. During the hearing, the defendants argued that the case should be dismissed because McCray had failed to actively prosecute his claims, and that McCray had no excuse for delaying prosecution of his claims. Consistent with his response, McCray argued that the defendants had failed to timely file their respective answers. After the hearing, the trial court granted the motion to dismiss and dismissed McCray's case. The record does not show that any party requested the trial court to make findings of fact or conclusions of law. See Tex. R. Civ. P. 296. McCray timely appealed from the trial court's order of dismissal.
We note that we have received an appellate brief from Keith, and that no brief has been filed for Sandmann.
Standard of Review
Where a trial court has dismissed a case for want of prosecution, we review the trial court's decision under an abuse of discretion standard. 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 when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985). To determine whether a trial court abused its discretion by dismissing a suit for failure to diligently prosecute it, we examine the record in its entirety. Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 856 (Tex. App.—Houston [1st Dist.] 1993, no writ.).
Analysis
A trial court can dismiss for want of prosecution where: (1) a party seeking affirmative relief fails to appear at a hearing or trial, (2) the case is not disposed of within the time standards established by the Texas Supreme Court, or (3) the trial court finds that the case not been prosecuted with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see Tex. R. Civ. P. 165a. We note that Rule 6 of the Rules of Judicial Administration requires that district and statutory county court judges dispose of civil jury cases, other than family law matters, "[w]ithin 18 months from appearance date." Tex. R. Jud. Admin. 6, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (West Supp. 2011). Thus, on the record before us, the trial court could have disposed of this case either under Rule 165a(2) for non-compliance with the deadlines of the Texas Supreme Court, or based on a court's inherent power to dismiss cases that are not prosecuted with due diligence. See Tex. R. Civ. P. 165a; Villarreal, 994 S.W.2d at 630.
Although acting pro se, McCray remained responsible to prosecute this action with diligence. See Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ). To avoid a dismissal based on a claim of lack of diligence, McCray was required to demonstrate to the trial court that he had exercised reasonable diligence in prosecuting his suit. See MacGregor, 941 S.W.2d at 75-76. Relevant considerations include the length of time the case was on file, the extent of activity in the case, whether trial settings were requested, and the existence of reasonable excuses for the delay. King v. Holland, 884 S.W.2d 231, 237 (Tex. App.—Corpus Christi 1994, writ denied).
At the hearing, McCray offered no reasonable explanation for his delay. The argument that McCray advanced at the hearing, that the defendants' failure to timely file answers entitled him to a default, is incorrect under the record before us. Trial courts cannot grant a default judgment when the defendant's answer is on file before the trial court signs the default judgment. See Tex. R. Civ. P. 239; Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) ("A default judgment may not be rendered after the defendant has filed an answer.").
McCray also argued that he had filed documents that are not in the court's record, but other than his argument, he provided no evidence showing that he filed pleadings that are not included in the record before us. Additionally, McCray has not requested the clerk to file additional records for our consideration in his appeal, nor has he asked that we require the trial court to have a hearing to determine whether any pleadings that were filed have been lost.
The court's record shows that this case had been on file for over six years at the time the defendants filed their motion to dismiss and for over eight years at the time the trial court conducted the hearing on the defendants' motion. From the record before it, and considering the arguments of the parties at the hearing, the trial court could reasonably conclude that McCray, without reasonable excuse, had failed to diligently prosecute his claims. See MacGregor, 941 S.W.2d at 75-76. Additionally, the trial court could reasonably conclude that the case had not been disposed of within the Texas Supreme Court's eighteen month time standard for civil jury cases. See Tex. R. Civ. P. 165a; Tex. R. Jud. Admin. 6.
We hold the trial court did not abuse its discretion in dismissing McCray's case. We overrule McCray's issues on appeal and affirm the trial court's judgment.
AFFIRMED.
___________________________
HOLLIS HORTON
Justice
Before Gaultney, Kreger, and Horton, JJ.