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Having found a new lawyer to prosecute the suit, and responded to the same concern as the trial court, the plaintiff should not be precluded from reaching the merits of his suit because of the unfortunate timing of the notice to substitute.

The plaintiffs intent to abandon the suit is not the test to determine whether dismissal for want of prosecution was proper; the test was whether plaintiff prosecuted case with due diligence. Phillips v. Welch, S. Diamond Shamrock Corp. The standard we apply to review the trial court's refusal to reinstate is whether the trial court abused its discretion. Armentrout v. Murdock, S. Rowland, S. In exercising its discretion, the trial court may consider the entire history of the cause.

Armentrout, S. That is, we must ask if the trial court properly weighed the considerations of rule a: Was the failure to prosecute the suit intentional or the result of conscious indifference, or was it due to an accident or mistake or otherwise reasonably explained. If the trial court did not properly consider that standard, we must find that it abused its discretion. The plaintiff argues that equity dictates reinstatement and refers us to Wyatt.

In Wyatt, the court reversed the trial court's dismissal and refusal to reinstate, holding that the failings of counsel should not be attributed to the client. Wyatt, S. The counsel's failure in Wyatt was that plaintiff's counsel arrived about a half hour late on the second day of trial. At first blush, the case before us seems distinguishable from Wyatt because the plaintiff's lawsuit in this case was dismissed after 16 months of inactivity, not a mere minute lapse.

Yet, if we examine the plaintiff's response to the inactivity in his case, we can hardly blame the plaintiff for his lawyer's default. Here, the plaintiff realized the case was not being prosecuted and took steps to secure another lawyer. The notice of intent to dismiss was sent at that critical time when new counsel was taking on a case and the clerk's office did not have the name and address of the soon-to-be new lawyer. Both the trial court and the plaintiff had reasons to be unhappy with this case.

The trial court did what it could to move the case by notifying the lawyer that the case would be dismissed; the plaintiff did what he could by securing the services of a new lawyer. The trial court should not have penalized the plaintiff by refusing to reinstate when the plaintiff filed a motion to reinstate telling the court that he, too, found the lack of prosecution unacceptable and took steps to cure it.

The trial court should have reinstated the case when presented with the plaintiff's motion to reinstate. We sustain points of error one and two. We do not find it necessary to reach point of error three. Your Notes edit none. Cited By 21 This case has been cited by other opinions: Texas Dept.

Deck Nawas v. Hermes Torres v. Rios Smith v. Authorities 5 This opinion cites: Mercure Co. Texas Oklahoma Exp. Please support our work with a donation. Jack Howeth, Appellees. Court of Appeals of Texas, Houston 1st Dist. November 21, Rehearing Denied December 19, William F.

Harmeyer, Houston, for appellant. The conflicting affidavits The plaintiff's motion to reinstate, which was verified, stated most of the facts outlined above. The trial court's standard The standard the trial court must apply in reviewing motions to reinstate is set out in Tex. In fact, the Individual Defendants' liability in this dispute is predicated upon a 42 U. The venue in which these federal claims will be litigated is federal court.

For the Court to grant summary judgment, as the Individual Defendants request, would be for the Court to adjudicate claims that are not even before it and amount to the rendering of an improper advisory opinion. Because [the Howeth parties] have yet to assert a live cause of action against [the] Individual Defendants, it would be improper for the Court to assert summary adjudication upon a claim not before it.

Once [the Howeth parties'] federal takings claim ripens, they will have a 42 U. That is, in their summary-judgment response, the Howeth parties asserted that the only claim alleged against the individual defendants was reserved and thus "was not even before" the trial court, so that the trial court could not render summary judgment on that claim without rendering an improper advisory opinion.

Alternatively, the Howeth parties asserted substantive arguments on each of the three affirmative defenses that the individual defendants' motion had raised. The trial court rendered a take-nothing summary judgment in favor of the individual defendants without specifying grounds. Within that order, the trial court severed the claim against the individual defendants from the remaining claims in the suit, thereby making the summary-judgment order final.

The Howeth parties appeal. The individual defendants moved for traditional summary judgment, attacking the cause of action directly and also raising affirmative defenses. Summary judgment under rule a c is proper only when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

Randall's Food Mkts. Johnson, S. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. In our review, we indulge every reasonable inference in favor of the nonmovant, resolve any doubts in its favor, and take as true all evidence favorable to it.

When, as here, an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. See Star-Telegram, Inc. Doe, S. In their first and second issues, the Howeth parties argue that "the trial court erred in granting summary judgment in favor of the Individual Defendants on the merits of a federal [42 U.

That is, the Howeth parties argue that they alleged only an unripe section claim, which they reserved for adjudication in federal court and which was based on an unripe federal takings claim. In their petition, the Howeth parties alleged that they were suing the individual defendants in their individual capacities "for all of the claims asserted herein" against the City and the Commission.

The claim that the Howeth parties asserted against the City and the Commission was a regulatory-takings claim under the Texas Constitution. The petition thus asserted only a regulatory-takings claim under the Texas Constitution against the individual defendants. We also note that, in the portion of their petition in which they attempted to reserve for federal court "unripe federal Constitutional takings claims" against all defendants, the Howeth parties specifically represented that they were not "plead[ing] such [federal] claims at this time.

Taylor, U. Williams, U. Any section claims would thus have fallen under the heading of "unripe federal Constitutional takings claims," so that they would have been reserved, rather than offered for adjudication in state court. By expressly reserving an "unripe federal Constitutional takings claim[]"--i. For these reasons, we hold that the trial court's summary judgment adjudicated the only claim against the individual defendants that the petition had asserted for adjudication--the regulatory-takings claim asserted under the Texas Constitution.

More specifically, because no pleading asserted against the individual defendants asserted a section claim that was not also reserved from the trial court's consideration, we hold that the trial court could not have rendered, and that it did not render, summary judgment on the reserved section claim.

In their third issue, the Howeth parties argue alternatively that the trial court erred in rendering summary judgment because 1 they did not plead a state-law, constitutional-takings cause of action against the individual defendants, so that the individual defendants' summary-judgment ground that no private cause of action for damages existed for such claims was superfluous, and 2 the individual defendants did not carry their summary-judgment burden on their three affirmative defenses because either fact issues existed on them or the defenses did not apply as a matter of law.

We have already determined that the Howeth parties pleaded a state-law, constitutional-takings cause of action for damages against the individual defendants. Accordingly, at the time that the summary-judgment motion was filed, its ground attacking the validity of such a claim was not superfluous or inapposite. Subsequently, however, the Howeth parties in effect abandoned that state-law claim in their summary-judgment response by judicially admitting that such a claim had never been asserted.

Dolcefino, S. The state-law, constitutional-takings claim for damages was the only non-reserved claim asserted against the individual defendants. Because the Howeth parties abandoned their sole claim against the individual defendants, the trial court should have dismissed that claim without prejudice. Cullinan v. Cullinan, Tex. Kirkland, S. However, the trial court instead rendered a take-nothing summary judgment on this claim.

A take-nothing judgment is one on the merits. See, e. Express-News Corp. An adjudication on the merits of a claim is improper after the claim has been abandoned. Summary judgment cannot be rendered on the merits of a claim that has been abandoned before the summary-judgment ruling. Taliaferro v. Smith, S.

First Extended Serv. Because we are liberally to construe appellate briefing, 8 we construe the Howeth parties' challenge discussed here--that the summary-judgment ground asserting that no private cause of action for damages existed for their state constitutional claim was superfluous because no such claim had been pleaded--also to subsume an argument that the take-nothing judgment could not have been rendered on that claim because it had been abandoned by the time of judgment's rendition.

Having so interpreted this portion of the third issue, we sustain it. We hold that the trial court erred in rendering a take-nothing summary judgment on the state-law, constitutional-takings claims for damages asserted against the individual defendants. Accordingly, we need not reach the remaining portions of the third issue, in which the Howeth parties assert that the individual defendants did not carry their summary-judgment burden on their three affirmative defenses to that claim.

The parties appear to have disputed below whether the June plat applications were only preliminary or, in contrast, were complete. I, 17 "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person;. The Howeth parties did not specify against which "Defendants" they were reserving federal takings claims, but given the use of this term elsewhere in the petition, we conclude that they meant all of the defendants, even the individual ones.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Given our disposition and the posture of the case, we need not determine whether the Howeth parties' reservation of section claims against the individual defendants, based on the individuals' participation in an alleged regulatory taking, was effective. See San Remo Hotel, L. That issue is not before us because it does not ripen until the claims are asserted in a later federal suit and because the issue was not the subject of the individual defendants' summary-judgment motion.

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