CROSSOVER: Stale SAPCRs and Lingering Suits: Why ‘Lack of Funds’ and Post-Notice ‘Announcements of Ready’ Won’t Save Your Case from DWOP

Howell Sand Company, Inc. v. Triple L Utilities, Inc., 07-25-00224-CV, February 26, 2026.

On appeal from the 64th District Court of Hale County, Texas.

Synopsis

The Amarillo Court of Appeals affirmed the dismissal of a lawsuit for want of prosecution where the plaintiff exhibited two distinct six-year periods of inactivity. The court held that a trial court does not abuse its discretion by dismissing a case when the offered excuses—financial inability to pay counsel and an unverified belief in a bankruptcy stay—fail to demonstrate reasonable diligence over the “entire history” of the litigation.

Relevance to Family Law

While Howell Sand Company involves a breach of contract, its application to Texas family law is immediate and profound, particularly in protracted modification suits and complex property divisions. It is common for a petitioner in a Suit Affecting the Parent-Child Relationship (SAPCR) to initiate a modification and then allow the case to languish due to shifting personal finances or a temporary “truce” with the other parent. This opinion clarifies that “financial hardship” is not a get-out-of-jail-free card for failing to move a case toward final orders. If you represent a respondent in a stale enforcement or modification action that has sat dormant for years, this case provides the appellate ammunition to move for dismissal and successfully defend that dismissal against a motion to reinstate.

Case Summary

Fact Summary

Howell Sand Company filed suit in July 2012 for breach of contract and sworn account. Following initial discovery in 2013, the case fell into a six-year period of total inactivity. In 2018, the defendant filed a Motion to Dismiss for Want of Prosecution (DWOP). Howell responded by citing a lack of funds to pay its attorney and an unverified belief that one of the defendants was under bankruptcy protection. The parties agreed to cancel the 2018 dismissal hearing, yet the case then languished for another six and a half years with no substantive filings.

In January 2025, the trial court issued a Rule 165a notice. Howell filed a motion to retain, asserting that it was finally “ready” to file a motion for summary judgment and requested a trial setting. The trial court, noting the thirteen-year history of the case and the extended periods of dormancy, dismissed the case under its inherent power. Howell’s subsequent motion to reinstate was denied.

Issues Decided

1. Whether the trial court abused its discretion by dismissing the suit for want of prosecution when the plaintiff appeared and announced “ready” at the dismissal hearing.
2. Whether the trial court erred in denying a motion to reinstate when the plaintiff alleged financial hardship and a mistaken belief regarding a bankruptcy stay.

Rules Applied

• Texas Rule of Civil Procedure 165a: Governs dismissal for want of prosecution for failure to appear or failure to comply with time standards.
• Inherent Power to Dismiss: Beyond Rule 165a, a trial court possesses the inherent authority to dismiss a case when a plaintiff fails to prosecute with “reasonable diligence.”
• The “Entire History” Test: In determining diligence, courts must look at the length of time the case was on file, the amount of activity, the request for a trial setting, and the existence of reasonable excuses for delay. City of Houston v. Thomas, 838 S.W.2d 296 (Tex. App.—Houston [1st Dist.] 1992, no writ).
• Standard for Reinstatement: A case shall be reinstated if it is shown that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake.

Application

The Amarillo Court of Appeals rejected the notion that a last-minute “announcement of ready” shields a party from DWOP. While Howell relied on older precedent suggesting that an announcement of ready limits a court’s discretion, the Court clarified that such a rule would impermissibly allow cases to linger indefinitely on the docket. The court’s analysis focused on the two six-year gaps in activity.

Regarding the excuses offered, the Court found that Howell’s “inability to pay attorney’s fees” did not constitute a legal justification for a decade of stagnation. Furthermore, the “bankruptcy stay” excuse was deemed insufficient because Howell’s counsel never filed a suggestion of bankruptcy nor independently verified the filing. The Court emphasized that actions taken after a notice of dismissal is sent—such as requesting a trial setting—do not retroactively cure a historical lack of diligence. The trial judge’s observation that the only filing in seven years was an “attorney vacation letter” underscored the lack of conscious effort to move the case to completion.

Holding

The Court of Appeals held that the trial court acted within its discretion in dismissing the case. The court noted that a plaintiff has a continuous burden to prosecute their suit with diligence, and the trial court is entitled to consider the entire history of the cause rather than just the plaintiff’s status at the moment of the dismissal hearing.

As to the motion to reinstate, the Court held that Howell failed to prove the delay was the result of an “accident or mistake.” Because the excuses of financial hardship and unverified bankruptcy were conclusory and did not negate “conscious indifference,” the trial court’s refusal to reinstate the case was affirmed.

Practical Application

For the family law practitioner, this case is a reminder that the trial court’s “inherent power” to clear its docket is a potent tool.

• Defense Strategy: If a client is being “held hostage” by a pending modification or property dispute that the petitioner refuses to set for trial, use this case to argue that the petitioner’s financial inability to fund the litigation is not “good cause” for retention.
• The “Ready” Trap: Do not assume that filing a Request for Trial Setting or an MSJ after receiving a DWOP notice will save the case. The court is now explicitly authorized to look past your current “readiness” to your historical “laziness.”
• Verification Matters: In family law, bankruptcy is often threatened or filed by a spouse to stall property division. This case highlights that a mere “belief” in a stay is insufficient; counsel must verify the bankruptcy and file a suggestion of bankruptcy to protect the timeline of the state court case.

Checklists

Defending Against a DWOP Notice

• Verify the Record: Document every substantive action taken in the last 12–24 months (discovery served, depositions taken, mediation attended).
• Avoid Conclusory Excuses: If citing financial hardship, provide specific evidence of why it precluded all activity, though recognize this is a weak argument under Howell.
• Account for the “Entire History”: Be prepared to explain gaps in the file chronologically.
• Show “Accident or Mistake”: If a deadline was missed, frame the failure as a specific clerical error or a misunderstood court notice rather than a strategic pause.

Moving for DWOP (The Aggressive Defense)

• Identify Dormancy: Flag cases with more than six months of zero activity.
• Highlight Lack of Discovery: Point out that no discovery has been propounded or answered in years.
• Object to “Ready” Announcements: Cite Howell Sand Company to argue that a last-minute trial request does not negate a history of neglect.
• Check for Unverified Stays: If the other side claims a bankruptcy or “informal stay,” highlight the lack of a formal Suggestion of Bankruptcy.

Citation

Howell Sand Company, Inc. v. Triple L Utilities, Inc., No. 07-25-00224-CV, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Feb. 26, 2026, no pet. h.).

Full Opinion

View the Full Opinion Here

Family Law Crossover

In the context of a divorce with a significant property estate or a high-conflict custody battle, Howell Sand Company can be weaponized to terminate “lingering” litigation. Often, a party will file a Motion for Enforcement or a Petition to Modify and then use the existence of the pending suit as leverage or a “cloud” over the other party’s life without ever intending to go to trial.

This ruling confirms that a respondent can force the issue. If the petitioner has not moved the case for a significant period—even if they claim they “couldn’t afford the expert” or “thought the other side was in bankruptcy”—the respondent can push for a DWOP. Once dismissed, the petitioner may face statute of limitations issues (in property enforcement) or the higher burden of showing a material and substantial change in circumstances that has occurred since the dismissal if they choose to refile. It is a strategic “reset button” that can save clients thousands in ongoing, unproductive legal fees.

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