in Re Judith Shoemaker Gibson
533 S.W.3d 916
| Tex. App. | 2017Background
- Plaintiff Suzanne Shelby sued Judith Gibson for injuries from a 10/23/2015 car wreck the day before the statute of limitations expired.
- Shelby did not properly serve Gibson until April 11, 2017 (about 18 months after filing).
- Gibson moved to dismiss for lack of due diligence in service and argued prejudice from delayed service; the motion relied in part on the court’s inherent authority and Tex. R. Civ. P. 165a.
- At the dismissal hearing neither side offered evidence; counsel argued facts and counsel for Shelby explained she had emailed an adjuster and assumed service would be accepted.
- The trial court denied Gibson’s motion to dismiss and instructed the parties to set a trial date.
- Gibson filed an original mandamus petition asking the appellate court to compel dismissal; the appellate court denied mandamus.
Issues
| Issue | Plaintiff's Argument (Shelby) | Defendant's Argument (Gibson) | Held |
|---|---|---|---|
| Whether trial court was required to dismiss for lack of due diligence in serving citation | Case filed within limitations; delay was not shown to be willful or prejudicial and plaintiff ready to proceed | Service was untimely, plaintiff failed to exercise due diligence in serving the defendant the day before limitations ran; dismissal with prejudice warranted | Denied mandamus — trial court had discretion to deny dismissal; no ministerial duty shown |
| Whether Rule 165a mandated dismissal | N/A (Rule invoked by court; Shelby opposed dismissal and showed good cause at hearing) | Sought dismissal under court’s docket-control authority and Rule 165a principles | Rule 165a is discretionary and was already exercised by trial court; denial not ministerial |
| Whether mandamus was appropriate remedy for denial of dismissal | N/A | Sought extraordinary writ because denial prevented immediate protection from prejudicial delay | Mandamus inappropriate: denial of motion to dismiss is ordinarily reviewable on appeal; no extraordinary circumstances shown |
| Whether summary judgment procedure (Rule 166a) should be used instead of immediate dismissal | Plaintiff favored resolving by ordinary procedures and trial readiness | Wanted immediate dismissal without summary evidence | Appellate court encouraged use of summary judgment/ordinary procedures; trial court not compelled to dismiss without evidence |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standards; appellate remedy adequacy)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (practical/prudential balancing for mandamus; benefits v. detriments)
- Hooks v. Fourth Court of Appeals, 808 S.W.2d 56 (Tex. 1991) (denial of motion to dismiss usually corrected on appeal, not by mandamus)
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (cases dismissing for lack of due diligence involved summary-judgment-type evidence)
- In re Rodriguez, 248 S.W.3d 444 (Tex. App.—Dallas 2008) (mandamus granted where trial court acted contrary to statutory prohibition and record lacked supporting evidence)
- In re J.B. Hunt Transp., Inc., 492 S.W.3d 287 (Tex. 2016) (mandamus appropriate where permitting case to proceed in wrong court would waste resources)