Texas Society, Daughters of the American Revolution, Inc. v. Estate of Hubbard
768 S.W.2d 858 · Court of Appeals of Texas · 1989
Facts
A counterclaim, filed in 1977 and severed in 1981, was dismissed with prejudice in 1988 for want of prosecution after 14 months of inactivity regarding a proposed transfer. The Texas Society, Daughters of the American Revolution, Inc. (Society) moved to reinstate, arguing its counsel forgot a necessary precondition for transfer and that settlement negotiations were ongoing. The trial court denied reinstatement, and the Society appealed.
Issue
Did the trial court abuse its discretion by refusing to reinstate the counterclaim, was the dismissal procedurally defective, and was it error to dismiss the counterclaim with prejudice?
Holding
The appellate court affirmed the trial court's denial of reinstatement, finding no abuse of discretion and no procedural defect in the dismissal. However, the court reformed the judgment to remove the 'with prejudice' clause, holding that dismissal for want of prosecution should be without prejudice.
Rule
A trial court's denial of reinstatement after dismissal for want of prosecution is reviewed for clear abuse of discretion, and neither settlement activity nor passive opposing parties excuse a lack of diligent prosecution. Dismissal for want of prosecution must be without prejudice, as it does not bar a subsequent suit.
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