DRAFT 2 Brief on the merits - Supreme Court of Texas

D. Mandamus is Appropriate Because the Trial Court had a Duty to
Require Heritage to Prosecute its Suit With Diligence
The “trial judge has a duty and obligation to maintain control of the docket and to
require parties to prosecute their suits with diligence.” Solis, 2009 Tex. App. LEXIS 458
at *4, citing 3V, Inc. v. JTS Enterprises, 40 S.W.3d 533. Diligent prosecution means
diligence in procuring final judgment and concluding the case. 3V, 40 S.W.3d at 541.
“This goal of bringing a case through trial and to its ultimate conclusion is evident from
the [S]upreme [C]ourt’s own time standards which declare that a civil jury case must be
disposed of within 18 months from the appearance date.” Id. Thus, the trial court was
vested with a duty to ensure that Heritage diligently prosecuted its case—whether in
court or in arbitration. Because Heritage waived its right to arbitration by failing to
diligently prosecute its case, the trial court should have dismissed Heritage’s claims that
were abandoned years earlier. 3V, 40 S.W.3d at 541; see also, Sabine Sungas, Ltd. v.
Port of Port Arthur Navigation District of Jefferson County, Texas, NO. 09-09-00331-
CV, 2011 Tex. App. LEXIS 228 (Tex. App.—Beaumont, January 13, 2011, no pet. h.)
(“A trial court may dismiss a party’s claims with prejudice when the trial court orders the
party to arbitrate its claims and the party seeking relief fails to do so.”)
The trial court violated its duty and abused its discretion when it returned the case
to arbitration despite Heritage’s failure to diligently prosecute its lawsuit. The only
adequate remedy at law is to vacate the trial court's order compelling arbitration and to
order the trial court to dismiss the case.
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