In Re the Villas of Mount Pleasant, LLC v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00136-CV

IN RE THE VILLAS OF MOUNT PLEASANT, LLC, ET AL.

Original Mandamus Proceeding

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION

Relators, The Villas of Mount Pleasant, LLC d/b/a Greenhill Villas f/d/b/a Villas of

Mount Pleasant, Mt. Pleasant Operators, LLC, and Lloyd Douglas (collectively Relators),

petition this Court for a writ of mandamus complaining of the trial court’s decision to retain this

case on its docket following a motion filed by real party in interest, Kyle King, individually and

as Administrator of the Estate of Marilou Whatley King, Deceased, and on behalf of the

wrongful death beneficiaries of Marilou Whatley King (King).

Relators argue that the trial court erred in retaining this case and in denying their motion

to dismiss the matter for want of prosecution. As a result, Relators request that this Court vacate

the trial Court’s order retaining this case and ruling denying their motion to dismiss. Relators

also request this Court to direct the trial court to dismiss the underlying suit for want of

prosecution. In response, King requests that this Court vacate the trial court’s order retaining

this case on the docket and instruct the trial court to hold an evidentiary hearing on King’s

motion to retain.

We conditionally grant Relators’ petition for a writ of mandamus and order the trial court

to vacate its prior retention order and ruling on the motion to dismiss. Even so, due to the unique

circumstances of this case, we order the trial court to hold an evidentiary hearing on the issue of

whether there is a reasonable explanation of delay in a manner consistent with this opinion.

I. Standard of Review and Applicable Law

“Mandamus issues only when the mandamus record establishes (1) a clear abuse of

discretion or violation of a duty imposed by law and (2) the absence of a clear and adequate

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remedy at law.” In re Good Shepherd Hosp., Inc., 572 S.W.3d 315, 319 (Tex. App.—Texarkana

2019, orig. proceeding) (citing Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig.

proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.

proceeding)).

“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.” MacGregor

v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam) (citing Veterans’ Land Bd. v. Williams, 543

S.W.2d 89, 90 (Tex. 1976) (per curiam) (orig. proceeding)). “A trial court abuses its discretion if

it acts without reference to any guiding rules and principles or reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.” Franklin v. Benton-Elam, No.

06-13-00126-CV, 2014 WL 1722165, at *7 (Tex. App.—Texarkana Apr. 30, 2014, no pet.)

(mem. op.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985)).

“Absent an extraordinary circumstance, ‘a denial of a motion to dismiss . . . is a ruling

incident to the ordinary trial process which will not be corrected by mandamus, but by the legal

remedy of the ordinary appellate process.’” In re Crawford, 560 S.W.3d 357, 363 (Tex. App.—

Texarkana 2018, orig. proceeding) (quoting Hooks v. Fourth Ct. of Appeals, 808 S.W.2d 56, 59

(Tex. 1991) (orig. proceeding)). That said, an abuse of discretion occurs in the refusal “to grant

a motion to dismiss for want of prosecution in the face of unmitigated and unexplained delay.”

In re Conner, 458 S.W.3d 532, 534, 535 (Tex. 2015) (per curiam) (orig. proceeding) (granting

petition for a writ of mandamus directing the trial court to vacate its order denying a motion to

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dismiss for want of prosecution where there was no good cause for the plaintiff’s “unmitigated

and unexplained” “nearly decade-long delay”).

“A plaintiff has a duty to ‘prosecut[e] the suit to a conclusion with reasonable diligence,’

failing which a trial court may dismiss for want of prosecution.” In re Levetz, No. 06-19-00086-

CV, 2019 WL 5444158, at *2 (Tex. App.—Texarkana Oct. 24, 2019, orig. proceeding) (mem.

op.) (alteration in original) (quoting In re Conner, 458 S.W.3d at 534 (quoting Callahan v.

Staples, 161 S.W.2d 489, 491 (Tex. Comm’n App. 1942))). “A trial court may dismiss a suit for

want of prosecution either under its inherent power or pursuant to Rule 165a of the Texas Rules

of Civil Procedure.” Id. (quoting In re Crawford, 560 S.W.3d at 364 (citing In re Conner, 458

S.W.3d at 534)). “Under Rule 165a(2) of the Texas Rules of Civil Procedure, dismissal is proper

when a case is ‘not disposed of within the time standards promulgated by the Supreme Court’

under the Administrative Rules.” Id. (citing In re Crawford, 560 S.W.3d at 364 (quoting In re

Conner, 458 S.W.3d at 534) (quoting TEX. R. CIV. P. 165a(2))).

“Trial courts are generally granted considerable discretion when it comes to managing

their dockets. Such discretion, however, is not absolute.” Id. (quoting In re Crawford, 560

S.W.3d at 364) (quoting In re Conner, 458 S.W.3d at 534).

Rule 6.1 of the Texas Rules of Judicial Administration directs that district and
statutory county court judges “should, so far as reasonably possible, ensure that
all [civil cases other than family law] cases are brought to trial or final
disposition” within eighteen months from an appearance date in jury cases and
twelve months from an appearance date in nonjury cases.

Id. (alteration in original) (quoting In re Crawford, 560 S.W.3d at 365 (citing TEX. R. JUD.

ADMIN. 6.1.)) “[D]ismissal for want of prosecution may be obtained by motion of the trial court

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or on motion of any party to the suit.” In re Bordelon, 578 S.W.3d 197, 201 (Tex. App.—Tyler

2019, orig. proceeding) (alteration in original) (quoting Dueitt v. Arrowhead Lakes Prop.

Owners, Inc., 180 S.W.3d 733, 738 (Tex. App.—Waco 2005, pet. denied)); see In re Levetz,

2019 WL 5444158, at *1–2.

II. Background Facts

King filed his lawsuit against Relators in September 2013. Relators moved to compel

arbitration in March of 2014. That motion was denied by the trial court on May 14, 2014.

Relators then filed a notice of accelerated appeal in this Court in May 2014. This Court issued

its opinion in December 2014 and reversed the trial court’s judgment and remanded this case for

further proceedings. This case proceeded to arbitration. In February 2017, the arbitrator entered

an award against the Relators. King filed a motion to confirm arbitration in February of 2017.

An order, or the arbitration award, and judgment were entered by the trial court in August 2017.

King amended his petition in April 2018. After Relators answered in May 2018, there was some

activity in the case regarding an agreed confidentiality and protective order. That activity

continued through August of 2018. The case then remained inactive until the trial court entered

a scheduling order in February 2021. At the end of November 2021, there was a notice of

cessation of practice and motion for abatement and continuance filed. The record does not

reflect which party filed that motion, or if it was an agreed motion. From December 2021 until

July 2025, there was no activity in this case.

On July 16, 2025, the trial court sua sponte placed the matter on its dismissal docket,

issuing a notice stating:

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BE IT KNOWN that the above styled case has been set for Dismissal for Want of
Prosecution hearing on August 13, 2025[,] at 9:00 A.M. in person at the Titus
County Annex located at 105 West First Street, Mount Pleasant, TX 75455.
Notice will be e-filed to all parties for service.

On August 12, 2025, at 10:45 a.m., King filed a motion to retain the case on docket stating that

“Trial [wa]s not currently scheduled,” “Discovery beyond [i]nitial [d]isclosures ha[d] not been

completed, in part due to changes in [Relators’] Counsel,” and no previous continuances had

been requested. At 10:48 a.m. that same morning, the trial court granted the motion to retain the

case, ordering that a scheduling order be in place no later than August 29, 2025. That evening, at

9:39 p.m., Relators filed an objection and response to King’s motion to retain. King asserts that

the following day, August 13, King appeared before the trial court for a hearing, as noticed by

the trial court’s sua sponte dismissal docket notice.1

On August 29, 2025, Relators moved to dismiss the case for want of prosecution,

essentially arguing that the case had been substantively inactive since 2018. A new scheduling

order was signed on September 2, 2025, with a trial date set for June 8, 2026. On November 13,

2025, the trial court held a hearing on Relators’ motion to dismiss, and the trial court denied their

motion.

III. Analysis

There was a period of inactivity, at the very least, from the November 2021 motion to

abate until the July 2025 notice of potential dismissal. Because there was a delay of over three

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We note that there is a dispute between the parties as to whether the dismissal hearing occurred and what took place
at that hearing. The mandamus record does not contain a record of an August 13, 2025, dismissal docket hearing,
but it is referenced before the trial court at the November 13, 2025, hearing on Relators’ motion to dismiss.
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years, King was required to show good cause for his delay in prosecuting the case. See In re

Crawford, 560 S.W.3d at 364 (citing In re Conner, 458 S.W.3d at 534).

In our review of this case, we address the following four factors on mandamus that a

trial court generally will consider . . . in deciding whether to dismiss a case for
want of prosecution: (1) the length of time the case has been on file; (2) the
extent of activity in the case; (3) whether a trial setting was requested; and (4) the
existence of reasonable excuses for the delay.

In re Ford Motor Co., No. 13-19-00083-CV, 2019 WL 1440574, at *1 (Tex. App.—

Corpus Christi–Edinburg Apr. 1, 2019, orig. proceeding) (mem. op.) (citing Najera v. Martinez,

557 S.W.3d 846, 850 (Tex. App.—El Paso 2018, no pet.); Henderson v. Blalock, 465 S.W.3d

318, 321–22 (Tex. App.—Houston [14th Dist.] 2015, no pet.)); see In re Trane U.S. Inc., No. 13-

18-00008-CV, 2018 WL 1192712, at *6 (Tex. App.—Corpus Christi–Edinburg Mar. 6, 2018,

orig. proceeding) (mem. op.); Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 729 (Tex.

App.—San Antonio 2012, pet. denied); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752

(Tex. App.—Dallas 2006, pet. denied). “No single factor is dispositive.” In re Ford Motor Co.,

2019 WL 1440574, at *1.

We find that the first three factors could not have been weighed in King’s favor. The

case was on file for over ten years. While there had been some activity in the case between 2013

and 2021, the case had been sitting idle for over three years at the time the trial court issued the

notice of potential dismissal. Also, at the time of the notice of dismissal, there was no trial

setting being contemplated.

The fourth and final factor to be considered is the existence of reasonable excuses for the

delay. Although not required by the trial court in its notice to dismiss, King filed an unverified
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motion to retain the case the day before the hearing. In his motion, King explained that

discovery in the case had not been completed because of changes in defense counsel. King also

requested that the case be retained on the trial court’s docket. Those statements were insufficient

to rebut the conclusive presumption of abandonment. See In re Levetz, 2019 WL 5444158, at *5.

Here, as in In re Crawford, there were no findings made regarding King’s “reasonable

explanation for the delay,” and we find none in the record. See In re Crawford, 560 S.W.3d at

365 (quoting In re Conner, 458 S.W.3d at 535). “Instead, we find that the [over three]-year

period of inactivity before the notice of dismissal is not sufficiently explained” by the record. In

re Levetz, 2019 WL 5444158, at *5 (citing In re Bordelon, 578 S.W.3d at 201 (Nichols v.

Sedalco Constr. Servs., 228 S.W.3d 341, 343 (Tex. App.—Waco 2007, pet. denied))).

Accordingly, King has failed to meet his burden of showing good cause. “Without a reasonable

explanation for the delay, an abuse of discretion occurred, given the conclusive presumption of

abandonment.” Id. (citing In re Crawford, 560 S.W.3d at 364 (quoting In re Conner, 458

S.W.3d at 535)).

Even so, based on this Court’s decision in In re Levetz, King requests this Court to vacate

the trial court’s order and to instruct the trial court to conduct an evidentiary hearing on King’s

motion to retain the case on the docket. King’s reliance on In re Levetz, however, is misplaced

as the cases are distinguishable. In In re Levetz, the relator filed a petition for a writ of

mandamus complaining of the trial court’s decision to retain the case on its docket after a

barebones motion to retain was filed by the real party in interest. In re Levetz, 2019 WL

5444158, at *5. As in this case, without explanation, the trial court granted the motion to retain,

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and an opposition to the motion was received later the same day, which included a motion to

dismiss. See id. at *4. Although the trial court had already granted the motion to retain, the trial

court held a hearing on the motion to dismiss. Id. Neither the real party in interest nor counsel

for real party in interest appeared at the hearing. Id. The trial court maintained its decision to

retain the case. Id.

On appeal, we held that the trial court abused its discretion by failing to dismiss because

there was no evidence showing good cause was presented. Id. at *5–6. However, we opted to

“employ [relator’s] request to require the trial judge to hold an evidentiary hearing” to determine

whether good cause existed to retain, ultimately giving the real party in interest its opportunity to

be heard. Id. at *6. Here, we find that the facts are not analogous. Instead, we have the opposite

situation—the party who had the burden to show good cause to retain, King, was present at both

the dismissal hearing and at the motion to dismiss hearing. Furthermore, unlike in In re Levetz

where the relator requested the case be sent back for a proper adversarial hearing, here, King is

requesting the hearing, and Relators are requesting dismissal. While this case certainly presents

a unique set of circumstances that at first blush mirror those in In re Levetz, we are not persuaded

that In re Levetz controls on this set of facts.

However, King also requests the Court to remand this case to the trial court for an

evidentiary hearing “in the interest of justice.” See In re J.E.H., 384 S.W.3d 864, 872 (Tex.

App.—San Antonio 2021, no pet.) (quoting In re S.E.W., 168 S.W.3d 875, 885–86 (Tex. App.—

Dallas 2005, no pet.)). “An appellate court has ‘broad discretion to remand in the interest of

justice.’” Id. (quoting In re S.E.W.,168 S.W.3d at 885–86). “As long as there is a probability

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that a case for any reason has not been fully developed, an appellate court has the discretion to

remand rather than render a decision.” Id. at 872 (quoting In re S.E.W., 168 S.W.3d at 886); see

also Est. of Jenkins, No. 06-25-00021-CV, 2025 WL 2972416, at *7 (Tex. App.—Texarkana

2025, no pet.) (mem. op.). “Although appellate courts have broad discretion to remand in the

interest of justice, justice does not require parties be afforded another ‘bite at the apple.’” In re

J.M.T., 617 S.W.3d 604, 609 (Tex. App.—San Antonio 2020, no pet.) (quoting Jackson v.

Ewton, 411 S.W.2d 715, 719 (Tex. 1967)). We choose to exercise that discretion here.

As noted above, while this case is several years old, there was significant activity in this

case, including an interlocutory appeal, an arbitration, a partial arbitration award, and then back

to the trial court to confirm the arbitration award. The trial court entered a scheduling order in

February 2021. Yet, at the end of November 2021, there was a notice of cessation of practice

and motion for abatement and continuance filed. The record does not reflect which party filed

that motion, or if it was an agreed motion. In King’s motion to retain, he did mention there was

a change of defense counsel and discovery had not been completed. That seemed to satisfy the

trial court, and it granted King’s motion to retain, which was the first motion to retain filed in

this case.

Even though the trial court granted King’s motion, Relators filed a response to the motion

to retain. The following day, King showed up for the previously noticed hearing. The

mandamus record reflects that King claims he had a further discussion with the trial court about

the case. Relators failed to show up for that hearing. No record of that hearing was provided to

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this Court, and it is unknown if one exists. Soon thereafter, the trial court set this case for trial in

June 2026.

Relators filed a subsequent motion to dismiss. At the motion to dismiss hearing, King

apparently believing he had satisfied any burden to retain the case on the trial court’s docket,

pointed out what happened at the August hearing. King mentioned that he had been trying to

locate “Mr. Douglas, the fact that [h]e had other cases with Mr. Douglas. They’re in a similar

position where management companies ha[d] been sold.” Additionally, King mentioned that he

“ha[d] a notice of deposition to possibly the most important person that [he had] been trying to

get a deposition notice on for the last several years.” King also advised the Court

Under 165a, . . . there is an exception to the timeframes for [he] believe[s] it’s
special or unique circumstances. While there are certainly more complicated
cases than this one, it’s not every day that you’ve got a case that has an
arbitration, an appeal, a partial arbitration award, a partial nonsuit, an attorney’s
subbing in, that attorney passing away, that attorney subbing out, new counsel on
the case.

At the conclusion of the hearing, the trial court was still satisfied that the case should

remain on the trial docket rather than be dismissed and denied Relators’ motion to dismiss. Yet,

when making its ruling, the trial court did not address any findings regarding King’s reasonable

explanation for the delay in support of the order denying Relators’ motion to dismiss the case.

On this record, we conclude that Relators have established entitlement to mandamus

relief. Accordingly, we vacate the trial court’s order retaining the case on the docket. That said,

we find that this case involves a unique set of circumstances. As a result, we choose to employ

King’s request to remand and require the trial judge to hold an evidentiary hearing on Relators’

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motion to dismiss the case and make findings as to whether there is a reasonable explanation of

delay.

We conditionally grant Relators’ petition for a writ of mandamus and order the trial court

to vacate its prior retention order and ruling on the motion to dismiss. Pursuant to King’s

request, we order the trial court to hold an evidentiary hearing in a manner consistent with this

opinion.

Scott E. Stevens
Chief Justice

Date Submitted: April 21, 2026
Date Decided: April 22, 2026

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