Request for Trial Setting in Texas

What Is a Request for Trial Setting?

Background

Under rule 245, the parties must be given at least 10 days notice of trial in the absence of their agreement. The right of a party to be heard in a contested case is fundamental, and failure to give adequate notice of the trial setting constitutes lack of due process. (Bosco Sons v. Conley (1982) 629 S.W.2d 142, 143-44 citing Armstrong v. Manzo (1965) 380 U.S. 545; Morris v. Morris (1977) 554 S.W.2d 792; Read v. Gee (1977) 551 S.W.2d 496.)

How to Structure the Request

Rule 245 provides that the court may set contested cases on motion of any party, or on the court's own motion, with reasonable notice of not less than 10 days to the parties, or by agreement of the parties. (Id.)

Further, under the same rule, “noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. With respect to a party who had no notice of setting of a contested case for trial....” (Id.)

Request for Trial Settings and Motions to Dismiss

A request for trial setting may come into play when a party is seeking to dismiss a cause of action for failure to prosecute with diligence. (See, e.g., Rainbow Home Hlth v. Schmidt (2002) 76 S.W.3d 53, 56; see alson, Mauldin v. Ransom Indus., Inc. (2014) No. 12-14-00071-CV, at *3 [“A trial court shall dismiss a case placed on the dismissal docket unless there is good cause for the case to be maintained on the docket [under] Tex. R. Civ. P. 165a(1).”)

Specifically, because “[w]hether a plaintiff has prosecuted a case with diligence is generally a question of fact ... [i]n determining whether due diligence exists, the trial court may consider the entire history of the case. (Id., citing MacGregor v. Rich (1977) 941 S.W.2d 74 75-76; Christian v. Christian (1998) 985 S.W.2d 513, at 514-15.)

The traditional factors that may be considered are:

the length of time the case was on file;
the extent of activity in the case;
whether a trial setting was requested; and
the existence of reasonable excuse for delay.

(Id.)

No single factor is dispositive. (Id.; see also Rainbow Home Hlth, supra, 76 S.W.3d at 56.)

The Court’s Decision

“A letter requesting a specific date for a trial or hearing, at least when a copy of that letter is sent to the opposing parties, is itself sufficient notice of the setting on that date; it is generally reasonable to assume that if a particular setting is requested, the litigants are put on notice that trial or hearing may be had on that requested date.” (Mansfield State Bank v. Cohn (1978) 573 S.W.2d 181, 185; Longoria v. United Blood Servs. (1995) 907 S.W.2d 605, 610.)

In deciding whether to dismiss a case for lack of due diligence, the trial court is entitled to review the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting, and the existence of reasonable excuses for delay. (Olin Corp. v. Coastal Water Authority (1993) 849 S.W.2d 852, 855 citing City of Houston v. Thomas (1992) 838 S.W.2d 296, 297.) No single factor is dispositive. (Id.) A trial court abuses its discretion and may be reversed only if it has acted in an unreasonable or arbitrary manner. (Beaumont Bank, N.A. v. Buller (1984) 806 S.W.2d 223, 226.)