458 S.W.3d 532
Tex.
2015

IN RE Michael Allyn CONNER and IESI Solid Waste Services, Relators

No. 14-0177

Supreme Court of Texas.

Opinion Delivered: March 20, 2015

458 S.W.3d 532

that when the plain meaning of one provision unambiguously requires that we not enforce another. See Tex. Lottery Comm‘n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex.2010). There is a direct conflict between section 11.1‘s provision that all disputes “shall be decided by arbitration” and section 12.13‘s provision that “this Subcontract does not contain a provision for the mandatory arbitration of disputes.” And if that were all that the two provisions provided, an ambiguity might exist that requires us to rely on canons of construction to determine the parties’ intent.

But section 12.13 explicitly states that the Subcontract does not require mandatory arbitration “[n]otwithstanding any provision to the contrary” in any of the contract documents. Cf. In re Lee, 411 S.W.3d 445, 454 (Tex.2013) (“The use of the word ‘notwithstanding’ indicates that the Legislature intended section 153.0071 to be controlling.“). Like the statute at issue in DeQueen, which expressly provided that any conflicting “rule of law, statute, or regulation is ineffective,” the language of section 12.13 “specifically provide[s] the means for resolving conflicts” by providing that, in the event of any conflict, section 12.13 prevails. DeQueen, 325 S.W.3d at 632, 637. There is thus no ambiguity, and we need not rely on canons of construction like the rules that earlier or more specific provisions prevail. Id. Although these canons provide useful tools for resolving conflicting provisions, there is no conflict to resolve here because the plain language of section 12.13 resolves the conflict. Id. at 638. We therefore conclude that, even if Sapphire is equitably estopped from denying its assent to the agreements contained in the subcontracts, those agreements do not include a valid, enforceable agreement to arbitrate its claims against the Subcontractors. The court of appeals, therefore, did not err in affirming the trial court‘s denial of the Subcontractors’ motions to compel arbitration.

We therefore affirm the court of appeals with respect to the trial court‘s denial of the Insurance Brokers‘, Engineers‘, and Subcontractors’ motions to compel arbitration.

IV.

Conclusion

We affirm in part and reverse in part. We affirm the portion of the court of appeals’ judgment affirming the trial court‘s denial of the Engineers‘, Insurance Brokers‘, and Subcontractors’ motions to compel arbitration of Sapphire‘s claims against them, and we reverse the portion of the court of appeals’ judgment affirming the trial court‘s denial of G.T. Leach‘s motion to compel arbitration of Sapphire‘s claims against it. We remand this case to the trial court for further proceedings consistent with this opinion.

J. S. Freels Jr., J. S. Freels, Jr., P.C., 114 S. Crockett St., Sherman, TX, for Real Party in Interest.

Bryan Kyle Briscoe, The Peavler Group, P.C., 3400 Carlisle Street, Suite 430, Daron L. Janis, Kirsten M. Castaneda, Locke Lord LLP, 2200 Ross Avenue, Suite 2200, Donna C. Peavler, The Peavler Group, P.C., 3400 Carlisle Street, Suite 430, Dallas, Mike A. Hatchell, Locke Lord LLP, 600 Congress Avenue, Suite 2200, Austin, TX, for Relator.

PER CURIAM

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. Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491 (1942). The issue here is whether a trial court abuses its discretion by refusing to grant a motion to dismiss for want of prosecution in the face of unmitigated and unexplained delay. We hold that it does.

In December 2002, Donald and Crystal Peel were traveling in their van along a highway when they were struck by a truck driven by Michael Conner and owned by his employer, IESI Solid Waste Services. One day short of two years later, the Peels sued Conner and IESI (collectively “Conner“) for damages. Conner timely answered and requested discovery, but the Peels did not respond. In June 2007, two months before a trial setting, Conner moved for summary judgment. The Peels responded. The trial setting was cancelled, and the motion was never heard.

By September 2011, the Peels had taken no other action to advance the case, and Conner moved to dismiss for want of prosecution. The Peels responded that the delay was due to their counsel‘s health issues, including a stroke requiring hospitalization and, later, bypass surgery. The Peels did not indicate when counsel‘s health issues had occurred. The trial court refused to dismiss the case.

In October 2013, when the Peels had still done nothing to pursue their claims, Conner again moved to dismiss for want of prosecution. At the hearing on the motion, the Peels offered no other excuse for their delay than they had before. Conner cited court records showing that the Peels’ counsel had appeared in many different matters in the prior two years. The trial court again refused to dismiss, directed the Peels to respond to Connor‘s discovery requests served more than eight years earlier, and set the case for trial.

Conner petitioned the court of appeals for mandamus directing the trial court to dismiss the case. The court of appeals denied relief, and Conner then petitioned this Court.

Trial courts are generally granted considerable discretion when it comes to managing their dockets. Such discretion, however, is not absolute. It has long been the case that “a delay of an unreasonable duration ..., if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiffs suit.” Callahan, 161 S.W.2d at 491. This presumption justifies the dismissal of a suit under either a court‘s inherent authority or Rule 165a of the Texas Rules of Civil Procedure. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999) (recognizing both common law source of power and rule based source of power); see, e.g., Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976) (finding seven-and-one-half year delay as failing to satisfy the demands of reasonable diligence); Denton Cnty. v. Brammer, 361 S.W.2d 198, 201 (Tex.1962) (same for five-year delay); Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 88 (1957) (same for eight-year delay).

Under Rule 165a, there are two grounds for dismissal for want of prosecution. One is when a “party seeking affirmative relief [fails] to appear for any hearing or trial of which the party had notice.” TEX. R. CIV. P 165a(1). In such cases, “[a] court shall dismiss ... unless there is good cause for the case to be maintained on the docket.” Id. The other is when a case is “not disposed of within [the] time standards promulgated by the Supreme Court.” TEX. R. CIV. P. 165a(2). And while Rule 165a(2) does not refer to Rule 165a(1)‘s procedural requirements, including notice and a hearing, neither does it suggest a basis for deviating from those procedures.

The Peels’ failure to provide good cause for their nearly decade-long delay mandates dismissal under Rule 165a(2). Our Rules of Judicial Administration require district and statutory county courts to ensure, “so far as reasonably possible,” that civil cases in which a jury has been demanded, other than those arising under the Family Code, are brought to trial or final disposition within eighteen months of the appearance date. TEX. R. JUD. ADMIN. 6.1(b)(1). The Peels’ suit well exceeded this time frame. Absent any reasonable explanation for the delay, the trial court clearly abused its discretion by disregarding the conclusive presumption of abandonment. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (“[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.“); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Mandamus will issue to correct such an abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). A trial court‘s erroneous refusal to dismiss a case for want of prosecution cannot effectively be challenged on appeal. A defendant should not be required to incur the delay and expense of appeal to complain of delay in the trial court. To deny relief by mandamus permits the very delay dismissal is intended to prevent. In addition, the danger that a trial will be hampered by stale evidence and lost or clouded memories is particularly distinct after the delay in this case. See So. Pac. Transp. Co. v. Stoot, 530 S.W.2d 930, 931 (Tex. 1975) (“[P]ossibilities for error multiply rapidly as time elapses between the original fact and its judicial determination.“).

Accordingly, we conditionally grant the petition for writ of mandamus, and without hearing oral argument, direct the trial court to vacate its order denying Conner‘s motion to dismiss filed October 24, 2013, and to dismiss this suit for want of prosecution. TEX. R. APP. P. 52.8(c). We are confident the trial court will promptly comply, and our writ will issue only if it does not.

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