PLENARY JURISDICTION HAD EXPIRED
A trial court may not dismiss for want of prosecution unless notice of the intent to dismiss is sent to each represented party's attorney and to each pro se party. Tex. R. Civ. P. 165a(1). Notice of a dismissal must be mailed to the parties immediately. See Tex. R. Civ. P. 165a(1), 306a(3). Unless a party files a timely motion that extends the trial court's plenary power, the court's plenary power expires thirty days after a judgment is signed. Tex. R. Civ. P. 329b(d).
After the court's plenary power expires, the "judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law," although the court may render a judgment nunc pro tunc to correct a clerical error and may sign an order declaring an earlier order void because it was signed after the court's plenary power had expired. Tex. R. Civ. P. 329b(f).
A judgment rendered in violation of rule or statute but signed by a court with proper jurisdiction over the cause is voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)) ("Errors other than lack of jurisdiction, such as 'a court's action contrary to a statute or statutory equivalent,' merely render the judgment voidable so that it may be 'corrected through the ordinary appellate process or other proper proceedings.'").
On July 19, 2007, the trial court signed the order dismissing the cause for want of prosecution. Regardless of whether notice was provided before or after the dismissal, the trial court had jurisdiction at the time it signed the order, and the dismissal is merely voidable. See id. The trial court lost plenary power thirty days later and thus was without jurisdiction to proceed any further as of August 20, 2007. Ms. Stepherson's inquiries and the trial court's instructions related to the motion to enforce occurred a year later.
The trial court had no jurisdiction over the case at the time it heard Mrs. Gerstacker's motion to enforce and signed the final divorce decree.
A party may file a bill of review to overturn an improper judgment within four years of the judgment's signing. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); see Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (when plaintiff did not receive notice of trial court's intent to dismiss for want of prosecution, dismissal is erroneous and plaintiff is entitled to pursue reinstatement through bill of review); see also Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) ("When extrinsic evidence is necessary to challenge a judgment, the appropriate remedy is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity to consider and weigh factual evidence."). A bill-of-review petitioner who did not receive notice of a trial court's intent to dismiss for want of prosecution must show she was not negligent in failing to seek to retain the case on the trial court's docket. See Caldwell v. Barnes, 154 S .W.3d 93, 96 (Tex. 2004) (bill of review petitioner generally must prove (1) meritorious defense (2) that she was prevented from making by opposing party or official mistake, (3) unmixed with her own fault or negligence, but petitioner claiming non-service is relieved of first two elements).
The motion to enforce filed by Mrs. Gerstacker is not a bill of review and does not allege any of the required elements of a bill of review. See id. The motion seeks only to enforce a prior order related to child support and does not refer to the dismissal in any form.
The July 2007 dismissal order was a final, appealable order entered in this case, and because there was no notice of appeal filed within thirty days of that order, we are without jurisdiction to consider the appeal. See State ex. rel Latty, 907 S.W.2d at 486.
We therefore have no choice but to declare the divorce decree void and dismiss the appeal for want of jurisdiction.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: September 4, 2009
CASE ID: 03-09-00022-CV (9/4/09)
Friday, September 4, 2009
Sunday, February 3, 2008
DWOP: Dismissal of creditor's suit on credit card debt affirmed
Plaintiff committed procedural errors, did not show diligence in securing and documenting efforts to serve citation on defendant, and did not properly preserve error for appellate review. Court of appeals holds that dismissal was proper, and affirms trial court's order.
Hudson & Keyse, LLC v. Gipson
(Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings) (credit card debt suit, DWOP, substitute service, motion to reinstate, failure to appear)
Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland
01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson
Appeal from County Civil Court at Law No 1 of Harris County (Judge Jack Cagle)
Disposition: Affirmed trial court judgment of dismissal
MEMORANDUM OPINION
Appellant, Hudson & Keyse, L.L.C. ("Hudson"), challenges the trial court's order of dismissal of its suit against appellees, Lavern W. Gipson and Emmett Gipson, to recover an outstanding credit card balance. In two issues, Hudson contends that the trial court erred in dismissing the case for want of prosecution and denying its motion for substitute service. We affirm.
Factual and Procedural Background
On May 23, 2006, Hudson filed suit against the Gipsons, alleging that they defaulted in making required payments pursuant to a credit card agreement. On May 25, 2006, citation was issued. On June 22, 2006, Hudson filed a motion for substitute service, stating that it had unsuccessfully attempted to serve the Gipsons, who "[could] probably be found" at 808 Junell Street in Houston, Texas, and that the Gipsons could be given notice of the suit through substitute service.
In support of its motion, Hudson attached an affidavit from its process server, who testified that she "attempted to make personal delivery" on the Gipsons at their "place of abode," (1) but had "deemed" such service "impractical." She believed that the Gipsons could be given notice of the suit "by delivering to anyone over the age of sixteen (16) at the [Gipsons'] usual place of abode or by attaching [the citation and petition] to the front entrance of the [Gipsons'] usual place of abode." The process server had previously attempted to serve the Gipsons at the Junell Street address on five occasions--May 31, June 2, June 3, June 5, and June 10, 2006--but there was no answer at the door. Thus, she left her card on the door. On June 6, 2006, she received a telephone call from a male individual who identified himself as Emmett Gipson and told her that she "should not come back to his house because neither he nor his wife [would] take anything that [she] had."
The clerk's record does not show that the trial court ruled on Hudson's motion for substitute service. (2) Moreover, there is no evidence in the record that Hudson ever again attempted to serve the Gipsons during the following eight months in which the suit remained pending or that Hudson filed any additional requests for substitute service supported by any new evidence.
On January 5, 2007, the trial court granted Hudson a continuance. (3) Three months later, on March 5, 2007, the trial court signed an order of dismissal "for want of prosecution," stating that the parties had been notified of the trial date and had "failed to appear."
On March 28, 2007, Hudson filed a motion to reinstate, in which it stated that it had filed a second motion for continuance on February 28, 2007, "explain[ing] that it was having difficulties serving [the Gipsons]." Although this motion for continuance is not contained in the clerk's record, Hudson, in its appellate briefing represents that it filed this second motion for continuance "prior to dismissal indicating to the trial court that it was having continuing difficulties with service." (Emphasis added). However, there is no evidence in the record that Hudson made continuing service efforts following its five service attempts in late May and early June 2006. In its motion to reinstate, Hudson also asserted that Harris County Appraisal District ("HCAD") records established that the Gipsons owned "homestead property" at the Junell Street address and that the Gipsons had not been home or were avoiding service. However, Hudson did not attach the referenced HCAD records to its motion, and they are not contained in the record before us.
On April 5, 2007, the trial court signed an order stating that it heard Hudson's motion to reinstate and that the motion was "not well taken." Thus, the trial court denied the motion to reinstate. Although the order recites that a hearing was held on the motion, there was no reporter's record filed with this Court.
Dismissal for Want of Prosecution
In its first issue, Hudson argues that the trial court erred in dismissing the case for want of prosecution because Hudson attempted service on five different occasions, it provided proof that it made these service attempts at the Gipsons' homestead, the trial court should have allowed substitute service, and it exercised diligence.
A court may dismiss a case for want of prosecution "on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Tex. R. Civ. P. 165a(1). In fact, "[a]t the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Id. In addition to the express authority under Rule 165, the common law vests trial courts with the inherent power to dismiss a case when the plaintiff fails to prosecute the case with due diligence. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a trial court's order dismissing a case for want of prosecution for an abuse of discretion. Wright v. Tex. Dep't of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.).
Here, the trial court, in its March 5, 2007 dismissal order, recited that the parties had been notified of the trial date and failed to appear. In its appellate briefing, Hudson does not address the consequence of failing to appear on the trial date. Hudson does not contend that the trial court failed to provide it with the required notice. See Tex. R. Civ. P. 165a(1) (setting forth notice requirements before case may be dismissed for want of prosecution for failure to appear). Nor does Hudson assert any specific reason as to why it was not required to appear.
Moreover, Hudson does not challenge the trial court's statement in the dismissal order that Hudson, in fact, failed to appear. We note that although Hudson, in its subsequently-filed motion to reinstate, referred to the filing of a February 28, 2007 motion for continuance prior to the trial court's dismissal, there is no copy of any such motion in the record. On this record, we cannot conclude that the trial court abused its discretion in dismissing the case for want of prosecution under Rule 165 when Hudson failed to appear on the trial date on March 5, 2007. See id.
In regard to Hudson's motion to reinstate, a party may file a motion setting forth grounds for reinstatement, and the trial court "shall set a hearing on the motion." Tex. R. Civ. 165a(3). The trial court "shall reinstate the case upon finding after a hearing 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 or that the failure has been otherwise reasonably explained." Id. We review a trial court's ruling on a motion for reinstatement for an abuse of discretion. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.--Dallas 2006, pet. denied).
Here, in its first issue, Hudson has not specifically challenged the trial court's denial of its motion to reinstate. However, to the extent that it seeks to challenge this ruling, it has not cited anything in the record to show that the trial court would have abused its discretion in not making the requisite finding to reinstate the case, i.e., the finding that Hudson's failure was not intentional or the result of conscious indifference but was due to an accident or mistake or that Hudson's failure has been otherwise reasonably explained. Tex. R. Civ. 165a(3).
In considering whether the record would support such a finding, we note that although the order denying the motion to reinstate suggests that a hearing was held on Hudson's motion, there was no reporter's record taken at the hearing. Thus, we are not aware of what additional evidence, if any, was considered by the trial court in denying the motion to reinstate. Furthermore, although Hudson, in its appellate briefing, suggests that it was having continuing difficulties with service, the only evidence in the record is that Hudson made five service attempts in an eleven-day period from May 31 to June 10, 2006. There is no evidence as to what service efforts, if any, Hudson undertook during the subsequent eight-month period from June 2006 until March 2007, when the case was dismissed. Accordingly, we hold that the trial court did not err in dismissing the case for want of prosecution and denying Hudson's motion to reinstate.
We overrule Hudson's first issue.
Substitute Service
In its second issue, Hudson argues that the trial court erred in denying its motion for substitute service because it made five separate service attempts at the Gipsons' residence and that the Gipsons would not "cooperate in the service process." Hudson asserts that "[c]learly they were evading service and substituted service was the only means available to serve them" and that the "quality and quantity" of its service attempts shows "extreme diligence." Hudson also asserts that the trial court's error "caused this case to remain pending without any disposition until the trial court dismissed it for want of prosecution."
Texas Rule of Civil Procedure 106(b) provides,
Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
Tex. R. Civ. P. 106(b).
We examine a trial court's denial of a motion for substitute service for an abuse of discretion. See Izen v. Sjostrom, No. 14-06-00142-CV, 2007 WL 968841, at *4 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (mem. op.).
Initially, we note that the record does not contain an order denying Hudson's motion for substitute service. It appears that the trial court simply did not rule on Hudson's motion. See Tex. R. App. P. 33.1 (providing that as prerequisite to presenting complaint for appellate review, record must show that trial court ruled on motion, expressly or implicitly, or refused to rule on motion, and complaining party objected to refusal).
Nevertheless, contrary to Hudson's assertions that it exercised "extreme diligence," the record does not establish that Hudson made continuous efforts to serve the Gipsons throughout the underlying proceedings. Rather, the record shows that Hudson's process server made five attempts during an eleven-day period to serve the Gipsons at their purported home address shortly after Hudson filed suit.
There is nothing in the record to indicate that, after these initial attempts, Hudson ever made any additional service attempts or that Hudson ever filed any additional motions for substitute service, supported by any additional evidence. Accordingly, we hold that the trial court did not abuse its discretion in not authorizing substitute service. See Izen, 2007 WL 968841, at *4 (holding that trial court did not abuse its discretion in denying motion for substitute service after plaintiff attempted to serve defendant at his residence on four separate occasions).
We overrule Hudson's second issue.
Conclusion
We affirm the order of the trial court dismissing the case for want of prosecution.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
1. The process server stated, without any explanation, that the Gipsons place of abode "was established personally in [her] efforts."
2. Although Hudson, in its briefing, asserts that the trial court denied its motion for substitute service, the clerk's record contains no such order.
3. The clerk's record does not contain a copy of any motion supporting Hudson's request for a continuance, nor does it contain any evidence as to the basis for the continuance.
Hudson & Keyse, LLC v. Gipson
(Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings) (credit card debt suit, DWOP, substitute service, motion to reinstate, failure to appear)
Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland
01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson
Appeal from County Civil Court at Law No 1 of Harris County (Judge Jack Cagle)
Disposition: Affirmed trial court judgment of dismissal
MEMORANDUM OPINION
Appellant, Hudson & Keyse, L.L.C. ("Hudson"), challenges the trial court's order of dismissal of its suit against appellees, Lavern W. Gipson and Emmett Gipson, to recover an outstanding credit card balance. In two issues, Hudson contends that the trial court erred in dismissing the case for want of prosecution and denying its motion for substitute service. We affirm.
Factual and Procedural Background
On May 23, 2006, Hudson filed suit against the Gipsons, alleging that they defaulted in making required payments pursuant to a credit card agreement. On May 25, 2006, citation was issued. On June 22, 2006, Hudson filed a motion for substitute service, stating that it had unsuccessfully attempted to serve the Gipsons, who "[could] probably be found" at 808 Junell Street in Houston, Texas, and that the Gipsons could be given notice of the suit through substitute service.
In support of its motion, Hudson attached an affidavit from its process server, who testified that she "attempted to make personal delivery" on the Gipsons at their "place of abode," (1) but had "deemed" such service "impractical." She believed that the Gipsons could be given notice of the suit "by delivering to anyone over the age of sixteen (16) at the [Gipsons'] usual place of abode or by attaching [the citation and petition] to the front entrance of the [Gipsons'] usual place of abode." The process server had previously attempted to serve the Gipsons at the Junell Street address on five occasions--May 31, June 2, June 3, June 5, and June 10, 2006--but there was no answer at the door. Thus, she left her card on the door. On June 6, 2006, she received a telephone call from a male individual who identified himself as Emmett Gipson and told her that she "should not come back to his house because neither he nor his wife [would] take anything that [she] had."
The clerk's record does not show that the trial court ruled on Hudson's motion for substitute service. (2) Moreover, there is no evidence in the record that Hudson ever again attempted to serve the Gipsons during the following eight months in which the suit remained pending or that Hudson filed any additional requests for substitute service supported by any new evidence.
On January 5, 2007, the trial court granted Hudson a continuance. (3) Three months later, on March 5, 2007, the trial court signed an order of dismissal "for want of prosecution," stating that the parties had been notified of the trial date and had "failed to appear."
On March 28, 2007, Hudson filed a motion to reinstate, in which it stated that it had filed a second motion for continuance on February 28, 2007, "explain[ing] that it was having difficulties serving [the Gipsons]." Although this motion for continuance is not contained in the clerk's record, Hudson, in its appellate briefing represents that it filed this second motion for continuance "prior to dismissal indicating to the trial court that it was having continuing difficulties with service." (Emphasis added). However, there is no evidence in the record that Hudson made continuing service efforts following its five service attempts in late May and early June 2006. In its motion to reinstate, Hudson also asserted that Harris County Appraisal District ("HCAD") records established that the Gipsons owned "homestead property" at the Junell Street address and that the Gipsons had not been home or were avoiding service. However, Hudson did not attach the referenced HCAD records to its motion, and they are not contained in the record before us.
On April 5, 2007, the trial court signed an order stating that it heard Hudson's motion to reinstate and that the motion was "not well taken." Thus, the trial court denied the motion to reinstate. Although the order recites that a hearing was held on the motion, there was no reporter's record filed with this Court.
Dismissal for Want of Prosecution
In its first issue, Hudson argues that the trial court erred in dismissing the case for want of prosecution because Hudson attempted service on five different occasions, it provided proof that it made these service attempts at the Gipsons' homestead, the trial court should have allowed substitute service, and it exercised diligence.
A court may dismiss a case for want of prosecution "on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Tex. R. Civ. P. 165a(1). In fact, "[a]t the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket." Id. In addition to the express authority under Rule 165, the common law vests trial courts with the inherent power to dismiss a case when the plaintiff fails to prosecute the case with due diligence. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 850 (Tex. 2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). We review a trial court's order dismissing a case for want of prosecution for an abuse of discretion. Wright v. Tex. Dep't of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.).
Here, the trial court, in its March 5, 2007 dismissal order, recited that the parties had been notified of the trial date and failed to appear. In its appellate briefing, Hudson does not address the consequence of failing to appear on the trial date. Hudson does not contend that the trial court failed to provide it with the required notice. See Tex. R. Civ. P. 165a(1) (setting forth notice requirements before case may be dismissed for want of prosecution for failure to appear). Nor does Hudson assert any specific reason as to why it was not required to appear.
Moreover, Hudson does not challenge the trial court's statement in the dismissal order that Hudson, in fact, failed to appear. We note that although Hudson, in its subsequently-filed motion to reinstate, referred to the filing of a February 28, 2007 motion for continuance prior to the trial court's dismissal, there is no copy of any such motion in the record. On this record, we cannot conclude that the trial court abused its discretion in dismissing the case for want of prosecution under Rule 165 when Hudson failed to appear on the trial date on March 5, 2007. See id.
In regard to Hudson's motion to reinstate, a party may file a motion setting forth grounds for reinstatement, and the trial court "shall set a hearing on the motion." Tex. R. Civ. 165a(3). The trial court "shall reinstate the case upon finding after a hearing 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 or that the failure has been otherwise reasonably explained." Id. We review a trial court's ruling on a motion for reinstatement for an abuse of discretion. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.--Dallas 2006, pet. denied).
Here, in its first issue, Hudson has not specifically challenged the trial court's denial of its motion to reinstate. However, to the extent that it seeks to challenge this ruling, it has not cited anything in the record to show that the trial court would have abused its discretion in not making the requisite finding to reinstate the case, i.e., the finding that Hudson's failure was not intentional or the result of conscious indifference but was due to an accident or mistake or that Hudson's failure has been otherwise reasonably explained. Tex. R. Civ. 165a(3).
In considering whether the record would support such a finding, we note that although the order denying the motion to reinstate suggests that a hearing was held on Hudson's motion, there was no reporter's record taken at the hearing. Thus, we are not aware of what additional evidence, if any, was considered by the trial court in denying the motion to reinstate. Furthermore, although Hudson, in its appellate briefing, suggests that it was having continuing difficulties with service, the only evidence in the record is that Hudson made five service attempts in an eleven-day period from May 31 to June 10, 2006. There is no evidence as to what service efforts, if any, Hudson undertook during the subsequent eight-month period from June 2006 until March 2007, when the case was dismissed. Accordingly, we hold that the trial court did not err in dismissing the case for want of prosecution and denying Hudson's motion to reinstate.
We overrule Hudson's first issue.
Substitute Service
In its second issue, Hudson argues that the trial court erred in denying its motion for substitute service because it made five separate service attempts at the Gipsons' residence and that the Gipsons would not "cooperate in the service process." Hudson asserts that "[c]learly they were evading service and substituted service was the only means available to serve them" and that the "quality and quantity" of its service attempts shows "extreme diligence." Hudson also asserts that the trial court's error "caused this case to remain pending without any disposition until the trial court dismissed it for want of prosecution."
Texas Rule of Civil Procedure 106(b) provides,
Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
Tex. R. Civ. P. 106(b).
We examine a trial court's denial of a motion for substitute service for an abuse of discretion. See Izen v. Sjostrom, No. 14-06-00142-CV, 2007 WL 968841, at *4 (Tex. App.--Houston [14th Dist.] 2007, pet. denied) (mem. op.).
Initially, we note that the record does not contain an order denying Hudson's motion for substitute service. It appears that the trial court simply did not rule on Hudson's motion. See Tex. R. App. P. 33.1 (providing that as prerequisite to presenting complaint for appellate review, record must show that trial court ruled on motion, expressly or implicitly, or refused to rule on motion, and complaining party objected to refusal).
Nevertheless, contrary to Hudson's assertions that it exercised "extreme diligence," the record does not establish that Hudson made continuous efforts to serve the Gipsons throughout the underlying proceedings. Rather, the record shows that Hudson's process server made five attempts during an eleven-day period to serve the Gipsons at their purported home address shortly after Hudson filed suit.
There is nothing in the record to indicate that, after these initial attempts, Hudson ever made any additional service attempts or that Hudson ever filed any additional motions for substitute service, supported by any additional evidence. Accordingly, we hold that the trial court did not abuse its discretion in not authorizing substitute service. See Izen, 2007 WL 968841, at *4 (holding that trial court did not abuse its discretion in denying motion for substitute service after plaintiff attempted to serve defendant at his residence on four separate occasions).
We overrule Hudson's second issue.
Conclusion
We affirm the order of the trial court dismissing the case for want of prosecution.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
1. The process server stated, without any explanation, that the Gipsons place of abode "was established personally in [her] efforts."
2. Although Hudson, in its briefing, asserts that the trial court denied its motion for substitute service, the clerk's record contains no such order.
3. The clerk's record does not contain a copy of any motion supporting Hudson's request for a continuance, nor does it contain any evidence as to the basis for the continuance.
Sunday, December 2, 2007
Pro Se Suit against Clerk dismissed for failure to serve citation
Amarillo court of appeals affirms dismissal in the absence of evidence of service of process on the clerk of the 5th Circuit.
Laurance Kriegel v. William C. Zapalac, Counsel of the Clerk's Office, No. 07-07-00342-CV (Tex.App.- Amarillo, Nov. 28, 2007)(Opinion by Justice Campbell)(pro se litigants, dismissal for failure to serve defendant affirmed)(Before Chief Justice Quinn, Justices Campbell and Pirtle)
Appeal from 287th District Court of Parmer County
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Laurance Kriegel, appearing pro se, appeals the trial court’s dismissal of his suit for want of prosecution. Finding the trial court did not abuse its discretion, we affirm.
Background
Also appearing pro se in the trial court, Kriegel filed suit on January 3, 2007.
if( bInlineFloats )
Because the original clerk’s record filed with this court did not contain a copy ofKriegel’s petition, and to understand the substance of his complaint, we obtained a copyof his live petition in a supplemental clerk’s record. See Tex. R. App. P. 34.5 (c)(1).
Kriegel contended appellee William Zapalac, counsel to the Clerk’s Office for the United States Court of Appeals for the Fifth Circuit,
if( bInlineFloats )
Hereinafter the United States Court of Appeals for the Fifth Circuit is identified asthe “Fifth Circuit.”
and unnamed other members of the office of that court’s clerk, failed to docket a matter brought before the Fifth Circuit by Kriegel. In particular, Kriegel asserted Zapalac owed him a fiduciary duty which was breached when Kriegel’s matter was not docketed or calendared with the Fifth Circuit. Kriegel asked the state trial court to: (1) order the clerk’s office of the Fifth Circuit to calendar and docket his matter; and (2) consider removing employees of the Fifth Circuit who violate their “fiduciary duty” to Kriegel.
The record reveals that on July 25, 2007, the trial court dismissed Kriegel’s suit, without prejudice, for want of prosecution. In its order of dismissal, the court found that no proper citation with proof of service on Zapalac appeared of record. The court further found that on May 29, 2007, it notified Kriegel of its intent to dismiss for lack of service of citation on Zapalac and granted Kriegel until June 19, 2007, to request a continuance. The court found Kriegel made no showing of good cause for a continuance. Accordingly, it dismissed Kriegel’s suit.
Kriegel filed a notice of appeal on August 1, 2007. With no record from the trial court, he nevertheless filed a document bearing the primary heading “Brief” with this court on August 13, 2007. On September 24, 2007, the clerk’s record was filed, consisting of the order of dismissal, Kriegel’s notice of appeal, and the court’s docket sheet.
Because it appeared Kriegel’s complaint was the trial court improperly dismissed his suit for failure to serve Zapalac, and as the clerk’s record did not contain citation with return, we notified Kriegel of the contents of the record by letter of September 28, 2007. We granted Kriegel until October 15, 2007, to file a supplemental clerk’s record containing additional documents he believed material to his appeal. Kriegel made no response to the letter and no supplemental clerk’s record was received by October 15, 2007.
Issue
Kriegel’s brief fails to comply with the requirements of Tex. R. App. P. 38.1 in several respects and for the essential requirements of an appellant’s brief we refer Kriegel to the text of Rule 38.1. However, in a single issue Kriegel argues:
“Appellant presented information to the Court showing service was lawfully presented on Appellee.”
In support of his issue, Kriegel asks us to consider an assortment of documentsattached to his brief. The documents Kriegel references are not part of the clerk’s recordand we may not give them consideration. See Goode v. Shoukfeh, 915 S.W.2d 666, 671n.6 (Tex.App.–Amarillo 1996), aff'd, 943 S.W.2d 441 (Tex. 1997).
Discussion
We review an order of dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). A trial court's authority to dismiss a case for want of prosecution proceeds from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the common law, which vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999). The record here provides no indication that the trial court acted under Rule 165a so we interpret the basis of its dismissal authority to be its inherent power.
Merely filing suit did not bring Zapalac within the jurisdiction of the trial court. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (defendant’s actual knowledge of suit not sufficient to invoke court’s jurisdiction to render default judgment; jurisdiction dependent on citation issued and served in manner provided by law). It was for Kriegel to request process and ensure its proper service on Zapalac. "Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." Tex. R. Civ. P. 99(a) (emphasis supplied). Kriegel’s failure to properly bring Zapalac before the court meant his suit lay dormant on the trial court’s docket. Moreover, it was Kriegel’s failure to properly obtain service and file the return that prompted the trial court’s warning of impending dismissal.
Despite Kriegel’s claim in this court that he provided proof of service for the trial court before June 19, 2007, the record, which is the sole object of our review, speaks otherwise. The court’s order of dismissal states the court’s finding “that no citation, or process under Rules 108 or 108a, TRCP, with proper proof of service on William C. Zapalac, has been filed with the clerk of the court.” The record before us contains no proof that at any time Kriegel either requested citation issue or undertook steps to make certain its proper service. His failure to do so came to the attention of the trial court prompting a warning of impending dismissal unless “a written request for continuance showing good cause was made on or before June 19, 2007, at 9:30 a.m.” The court found Kriegel failed to comply with this requirement and dismissed his case. The record does not reveal whether Kriegel filed a request for continuance that the court found inadequate or filed nothing. In either instance, we presume the evidence of Kriegel’s action or inaction supports the court’s finding that Kriegel “made no showing of good cause for continuance.” See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (in the absence of a record showing the trial court abused its discretion, the appellate court presumes the evidence before the trial court supports the judgment); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.–San Antonio 1989, writ denied) (when nothing in the record contradicts a judgment’s recitals, they are taken as true).
The record before us reflects that Kriegel did nothing to obtain proper service of Zapalac and then did not follow an order of the court specifying the means for avoiding dismissal. On such a record, we cannot say the trial court abused its discretion by dismissing Kriegel’s case for want of prosecution. Accordingly, we overrule Kriegel’s sole issue, and affirm the trial court’s order of dismissal.
James T. Campbell
Justice
Laurance Kriegel v. William C. Zapalac, Counsel of the Clerk's Office, No. 07-07-00342-CV (Tex.App.- Amarillo, Nov. 28, 2007)(Opinion by Justice Campbell)(pro se litigants, dismissal for failure to serve defendant affirmed)(Before Chief Justice Quinn, Justices Campbell and Pirtle)
Appeal from 287th District Court of Parmer County
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Laurance Kriegel, appearing pro se, appeals the trial court’s dismissal of his suit for want of prosecution. Finding the trial court did not abuse its discretion, we affirm.
Background
Also appearing pro se in the trial court, Kriegel filed suit on January 3, 2007.
if( bInlineFloats )
Because the original clerk’s record filed with this court did not contain a copy ofKriegel’s petition, and to understand the substance of his complaint, we obtained a copyof his live petition in a supplemental clerk’s record. See Tex. R. App. P. 34.5 (c)(1).
Kriegel contended appellee William Zapalac, counsel to the Clerk’s Office for the United States Court of Appeals for the Fifth Circuit,
if( bInlineFloats )
Hereinafter the United States Court of Appeals for the Fifth Circuit is identified asthe “Fifth Circuit.”
and unnamed other members of the office of that court’s clerk, failed to docket a matter brought before the Fifth Circuit by Kriegel. In particular, Kriegel asserted Zapalac owed him a fiduciary duty which was breached when Kriegel’s matter was not docketed or calendared with the Fifth Circuit. Kriegel asked the state trial court to: (1) order the clerk’s office of the Fifth Circuit to calendar and docket his matter; and (2) consider removing employees of the Fifth Circuit who violate their “fiduciary duty” to Kriegel.
The record reveals that on July 25, 2007, the trial court dismissed Kriegel’s suit, without prejudice, for want of prosecution. In its order of dismissal, the court found that no proper citation with proof of service on Zapalac appeared of record. The court further found that on May 29, 2007, it notified Kriegel of its intent to dismiss for lack of service of citation on Zapalac and granted Kriegel until June 19, 2007, to request a continuance. The court found Kriegel made no showing of good cause for a continuance. Accordingly, it dismissed Kriegel’s suit.
Kriegel filed a notice of appeal on August 1, 2007. With no record from the trial court, he nevertheless filed a document bearing the primary heading “Brief” with this court on August 13, 2007. On September 24, 2007, the clerk’s record was filed, consisting of the order of dismissal, Kriegel’s notice of appeal, and the court’s docket sheet.
Because it appeared Kriegel’s complaint was the trial court improperly dismissed his suit for failure to serve Zapalac, and as the clerk’s record did not contain citation with return, we notified Kriegel of the contents of the record by letter of September 28, 2007. We granted Kriegel until October 15, 2007, to file a supplemental clerk’s record containing additional documents he believed material to his appeal. Kriegel made no response to the letter and no supplemental clerk’s record was received by October 15, 2007.
Issue
Kriegel’s brief fails to comply with the requirements of Tex. R. App. P. 38.1 in several respects and for the essential requirements of an appellant’s brief we refer Kriegel to the text of Rule 38.1. However, in a single issue Kriegel argues:
“Appellant presented information to the Court showing service was lawfully presented on Appellee.”
In support of his issue, Kriegel asks us to consider an assortment of documentsattached to his brief. The documents Kriegel references are not part of the clerk’s recordand we may not give them consideration. See Goode v. Shoukfeh, 915 S.W.2d 666, 671n.6 (Tex.App.–Amarillo 1996), aff'd, 943 S.W.2d 441 (Tex. 1997).
Discussion
We review an order of dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). A trial court's authority to dismiss a case for want of prosecution proceeds from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the common law, which vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999). The record here provides no indication that the trial court acted under Rule 165a so we interpret the basis of its dismissal authority to be its inherent power.
Merely filing suit did not bring Zapalac within the jurisdiction of the trial court. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (defendant’s actual knowledge of suit not sufficient to invoke court’s jurisdiction to render default judgment; jurisdiction dependent on citation issued and served in manner provided by law). It was for Kriegel to request process and ensure its proper service on Zapalac. "Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." Tex. R. Civ. P. 99(a) (emphasis supplied). Kriegel’s failure to properly bring Zapalac before the court meant his suit lay dormant on the trial court’s docket. Moreover, it was Kriegel’s failure to properly obtain service and file the return that prompted the trial court’s warning of impending dismissal.
Despite Kriegel’s claim in this court that he provided proof of service for the trial court before June 19, 2007, the record, which is the sole object of our review, speaks otherwise. The court’s order of dismissal states the court’s finding “that no citation, or process under Rules 108 or 108a, TRCP, with proper proof of service on William C. Zapalac, has been filed with the clerk of the court.” The record before us contains no proof that at any time Kriegel either requested citation issue or undertook steps to make certain its proper service. His failure to do so came to the attention of the trial court prompting a warning of impending dismissal unless “a written request for continuance showing good cause was made on or before June 19, 2007, at 9:30 a.m.” The court found Kriegel failed to comply with this requirement and dismissed his case. The record does not reveal whether Kriegel filed a request for continuance that the court found inadequate or filed nothing. In either instance, we presume the evidence of Kriegel’s action or inaction supports the court’s finding that Kriegel “made no showing of good cause for continuance.” See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (in the absence of a record showing the trial court abused its discretion, the appellate court presumes the evidence before the trial court supports the judgment); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.–San Antonio 1989, writ denied) (when nothing in the record contradicts a judgment’s recitals, they are taken as true).
The record before us reflects that Kriegel did nothing to obtain proper service of Zapalac and then did not follow an order of the court specifying the means for avoiding dismissal. On such a record, we cannot say the trial court abused its discretion by dismissing Kriegel’s case for want of prosecution. Accordingly, we overrule Kriegel’s sole issue, and affirm the trial court’s order of dismissal.
James T. Campbell
Justice
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