Adolfo R. Martinez v. Noel P. Benavides, Estate of J. C. Ramirez, et al.--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-05-00618-CV

Adolfo R. MARTINEZ,

Appellant

v.

Noel P. BENAVIDES, Estate of J.C. Ramirez, Pablo A. Ramirez, Jr., Oscar Ruben Santos, and Benjamin Santos ,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. DC-03-350

Honorable Alex Gabert , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: July 19, 2006

REVERSED AND REMANDED

Adolfo R. Martinez sued the Estate of J.C. Ramirez, Pablo A. Ramirez, Jr., Oscar Ruben Santos, Benjamin Santos, and Noel P. Benavides to establish title to real property that Martinez claimed through adverse possession. Martinez also alleged he had been unlawfully ousted from his property and sought to have title quieted in him. The trial court dismissed Martinez's suit for want of prosecution. We reverse and remand.

Factual and Procedural Background

Martinez filed suit alleging he was ejected from land which he claimed ownership to through adverse possession. Martinez claimed the defendants ejected him from the property by erecting barriers which prevented him from accessing his property. Thus, Martinez filed suit to establish title to the land against Benavides and the remaining defendants. Benavides, however, was the only defendant served.

One month after the suit was initiated, Benavides filed a motion for summary judgment on the basis that Martinez's pleadings failed to state a cause of action. Specifically, Benavides claimed he was not in possession of the land and he held no interest in the land; thus, Benavides claimed he was not a proper party in Martinez's title suit.

After Benavides filed his summary judgment motion, Martinez attempted to depose Benavides. Several letters were exchanged on this matter and Benavides ultimately refused to appear for a deposition. Martinez then filed a motion which requested the trial court to: 1) compel Benavides to appear for a deposition; and 2) continue the summary judgment hearing until further discovery was obtained.

The trial court granted Benavides' motion for summary judgment and awarded him attorney's fees and costs of suit. Martinez sought an appeal with this court, which was dismissed for want of jurisdiction because the trial court's judgment was interlocutory. Martinez v. Benavides, No. 04-04-00654-CV, 2005 WL 418593, at *1 (Tex. App.-San Antonio, Feb. 23, 2005, no pet.) (mem. op.) (Martinez I).

Before the trial court received the mandate from this court, several events occurred. First, the trial court sent each party notice setting the case for a hearing for dismissal due to want of prosecution. Next, Martinez again sought to depose Benavides. This prompted Benavides to file a motion for a protective order to prevent the deposition, which was granted. Shortly thereafter, Martinez filed a request for a docket control conference, and he again unsuccessfully attempted personal service on the remaining defendants. After a hearing, the trial court dismissed Martinez's case for want of prosecution.

Martinez now brings five issues for our review. He claims the trial court erred by: 1) barring discovery; 2) denying the continuance motion; 3) granting summary judgment; 4) awarding attorney's fees and costs; and 5) dismissing the case for want of prosecution.

Causes of Action Pled

Martinez asserts he pled two causes of action. While all parties agree that an action to establish title was pled, Martinez claims his petition also stated a second cause of action for tortious interference with property rights. We agree.

As a general rule, pleadings are to be construed liberally, especially when the complaining party has failed to file special exceptions. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex. 1988); Gulf, Colo. & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963). "It is well settled in Texas that '[a]ny intentional invasion of, or interference with, property, property rights, personal rights or personal liberties causing injury without just cause or excuse is an actionable tort.'" King v. Acker, 725 S.W.2d 750, 754 (Tex. App.-Houston [1st Dist.] 1987, no writ) (quoting Cooper v. Steen, 318 S.W.2d 750, 757 (Tex. Civ. App.-Dallas 1958, no writ)). In order to establish tortious interference a plaintiff must prove that interference with one's property or property rights occurred, that such interference was intentional and caused damage, and that the interference was conducted with neither just cause nor legal excuse. See Rankin v. Covington Oaks Condo. Owners Ass'n, Inc., No. 04-04-00861-CV, 2005 WL 3161039, at *3 (Tex. App.-San Antonio Nov. 23, 2005, no pet.) (mem. op.); Suprise v. Dekock, 84 S.W.3d 378, 382-83 (Tex. App.-Corpus Christi 2002, no pet.).

Here, Martinez's petition reads:

On or about September, 15, 2003, the Plaintiff was in actual possession of these premises. On this date, the Defendants unlawfully entered on, placed barriers prohibiting entry and exit attempting dispossession of the Plaintiff of his real property. The Defendants continue to obtruct, impair, and withold the possession of these premises from Plaintiff.

As relief due to the "actions...of Defendants," Martinez asked for out-of-pocket expenses, loss of use damages, and lost profits. Additionally, Martinez requested a temporary restraining order to "enjoin[] Defendants, particularly Defendant Noel P. Benavides, from entering the real property made the basis of this suit; from erecting any barrier to prevent or restrict in any way Plaintiff's entry, exit and access from said property...."

After liberally construing Martinez's pleadings, we conclude that he sufficiently stated two causes of action: 1) a suit to establish title through adverse possession; and 2) tortious interference with property rights.

Want of Prosecution

In his fifth issue, Martinez asserts the trial court erred in dismissing the case for want of prosecution. In support of this contention, Martinez notes that at the time of dismissal, he was still attempting to prosecute the case by requesting new citations, a docket control conference, and a deposition of Benavides. Accordingly, he argues the trial court abused its discretion in dismissing the case. We agree.

A trial court's authority to dismiss a cause for want of prosecution is established through two sources. The Texas Rules of Civil Procedure provide one basis for this authority; a trial court's inherent power provides the second source. Tex. R. Civ. P. 165a; Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). A trial court's inherent power to dismiss a case can be utilized when a plaintiff fails to prosecute the cause with due diligence. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). We review a trial court's decision to dismiss a case for a want of prosecution under an abuse of discretion standard. Williams, 543 S.W.2d at 90.

Several factors have been recognized as guidelines for a trial court's decision to dismiss a case for want of prosecution; however, no single factor is dispositive. See Blake v. Sw. Tex. Methodist Hosp., No. 04-95-00471-CV, 1996 WL 346894, at *1 (Tex. App.-San Antonio, June 26, 1996, no writ) (not designated for publication) (citing City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.-Houston [1st Dist.] 1992, no writ)). These factors include the length of time the case has been on file, the amount of activity in the case, the request for a trial setting, and the existence of reasonable excuses for delay. Id.

Length of time case was on file.

From the time the case was initially filed until the trial court ordered a dismissal for a want of prosecution, a total of nearly twenty months had elapsed. While this is a lengthy period of time, it is not in and of itself dispositive of the dismissal issue.

Amount of activity in case.

The activities which occurred during this time are important and are the second factor to consider when analyzing the trial court's dismissal. Id. During the twenty-month period the case was on file before it was dismissed, Martinez engaged in numerous activities. Specifically, Martinez: filed suit; made at least two efforts to serve all defendants; attempted to depose Benavides on more than one occasion; sought a docket control order; responded to Benavides' motion for summary judgment; sought a continuance of the summary judgment hearing; filed two motions for new trial once the summary judgment was granted; filed a notice of appeal with this court; and filed responsive briefing with this court. This case did not lay dormant for any extended period of time. Cf., Thomas, 838 S.W.2d at 298 (holding trial court did not abuse discretion in dismissing case when plaintiff did nothing for one year after filing suit).

Request for a trial setting.

The third factor involves whether the plaintiff requests a trial date. Although an actual motion to set the case for trial was never filed, Martinez requested the case go to trial rather than have the trial court grant Benavides' summary judgment motion. Again, this does not evidence a lack of diligence by Martinez.

Reasonable excuse for delay.

Pursuant to the fourth factor, a reasonable excuse for delay, Martinez contends that an impediment prevented him from prosecuting the case, namely, the case residing with this court on appeal. Martinez argues that upon appeal, jurisdiction was transferred to this court. See Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex. 1995). Therefore, Martinez contends that upon his initial appeal, the trial court lost jurisdiction of the case for nearly one year and the parties were then prevented from continuing the case.

Martinez argues that where an impediment delays prosecution of the case, "the relevant time period to determine adequate prosecution is from removal of the impediment to dismissal." See Ellmossallamy v. Huntsman, 830 S.W.2d 299, 299-300 (Tex. App.-Houston [14th Dist.] 1992, no writ). Martinez contends the alleged impediment (jurisdiction lying in the court of appeals) was not removed until this court sent its mandate to the trial court; however, the trial court dismissed Martinez's case for want of prosecution that same day. We agree with Martinez that this interval was too short, and that he was denied a sufficient period to prosecute his claim.

Reviewing this case in its entirety, we hold that the trial court abused its discretion in dismissing Martinez's suit for want of prosecution. Accordingly, the cause must be remanded to the trial court. Martinez's fifth issue is sustained.

Discovery Rulings

In light of the remand of this cause for further proceedings, we find it necessary to address Martinez's first issue regarding discovery. The court denied Martinez the opportunity to depose Benavides and granted summary judgment on the grounds that Benavides was an improper defendant because he had no interest in the property. While this may have been the correct ruling had Martinez pled only a suit to establish title, we have concluded that he also pled an action for tortious interference with property rights. In fact, Martinez specifically identified Benavides as the person who interfered with his property rights. A determination of Benavides' status as a titleholder to the land in question is immaterial to a tortious interference cause of action. Denying Martinez the ability to depose Benavides on the ground that Benavides was an improper defendant was in error. See Avary v. Bank of Am., N.A., 72 S.W.3d 779, 787 (Tex. App.-Dallas 2002, pet. denied) (acknowledging that the trial court's discovery rulings are reviewed under an abuse of discretion standard). We anticipate this issue will be reconsidered by the trial court on remand.

In light of the facts, we conclude that the trial court abused its discretion by dismissing Martinez's case. The record illustrates the case was pursued with due diligence; thus, the trial court's judgment should be reversed and the cause remanded. See Welch v. Monroe, No. 10-03-00013-CV, 2004 WL 2474504, at *5-6 (Tex. App.-Waco Nov. 3, 2004, no pet.) (mem. op.);Magoon v. Savage, No. 09-99-367-CV, 2000 WL 300515, at *1 (Tex. App.-Beaumont Mar. 23, 2000, no pet.) (not designated for publication). Accordingly, the trial court's order of dismissal is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Catherine Stone , Justice