Opinion
No. 14-09-00752-CV
Opinion filed August 25, 2011.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2008-71252.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
MEMORANDUM OPINION
Pro se appellant Ralph O. Douglas, an inmate in the Texas Department of Criminal Justice, Institutional Division, appeals from the trial court's order dismissing his lawsuit for want of prosecution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2008, appellant filed his "Original Petition for Trespass to Try Title." Appellee Elise Selma Ingersoll was the named defendant.
On June 3, 2009, the trial court sent a "Notice of Intent to Dismiss-No Answer Filed" to appellant. The notice informed appellant:
Court records indicate that this case is eligible for dismissal for want of prosecution because no answer has been filed in this case. The case will be DISMISSED FOR WANT OF PROSECUTION, unless one of the following actions is taken by 07-31-2009.
1. You file and have heard, by oral hearing or written submission, a meritorious motion for default judgment . . .; or,
2. An answer is filed; or,
If neither of the above has been done, then you must file a verified motion to retain, showing good cause to retain the case or diligence in prosecution to avoid dismissal, and appear at the oral hearing, to be held at the Harris County Civil Courthouse, 201 Caroline, Houston, Texas 77002, on 07-31-2009 at 10:00 AM.
On June 18, 2009, appellant filed a motion for default judgment and asked that it be submitted to the trial court on June 29, 2009. In his motion appellant asserted that appellee "was served through its attorney on December 22, 2008;" however no return of service appears in the appellate record.
On August 11, 2009, the trial court signed an order dismissing appellant's lawsuit for want of prosecution.
On August 24, 2009 appellant filed, among other things, a verified motion to reinstate. On that same date, appellant filed a "Notice of Hearing for Motion to Reinstate" scheduling his motion to reinstate for hearing at 8:00 a.m. on August 31, 2009 at the 270th District Court of Harris County, Texas. Stamped on the first page of appellant's motion to reinstate is: "PASSED (NOT TIMELY)" with the handwritten notation "8/27." Appellant requested a hearing on his motion to reinstate and asked the trial court "to allow [him] to appear via any alternative means, i.e. telephone conference and/or video conference, etc. to represent himself for the hearing on the motion to reinstate." There is no evidence in the appellate record that a hearing did not occur. Appellant's motion to reinstate and his motion for new trial were overruled by operation of law. This appeal followed.
DISCUSSION
Appellant raises six issues on appeal, which we consolidate into three.
A. Dismissal for want of prosecution
In his first consolidated issue, appellant asserts the trial court erred when it dismissed his suit against appellee for want of prosecution based on appellant's failure to serve appellee with his lawsuit. In support of his argument, appellant asserts he properly served appellee. We disagree.
As mentioned above, there is no return of service to be found in the appellate record. To be effective a return of service must state when the citation was served, state the manner of service, and be signed officially by the officer affecting service. Aguilar v. Livingston, 154 S.W.3d 832, 834 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Because the record does not demonstrate that appellant served appellee, we conclude the trial court did not err when it dismissed appellant's lawsuit. We overrule appellant's first issue on appeal.
Appellant attached as an appendix to his appellate brief a document he contends is the return of service on appellee. This document is not included in the appellate record. We begin by noting that we may not consider documents attached to an appellate brief that are not part of the appellate record. Ramex Construction Co. v. Tamcon Services, Inc., 29 S.W.3d 135, 138 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Even if we could consider appellant's document, it would not change the result as it demonstrates on its face that the constable was unable to serve appellee because appellant provided an incorrect address.
B. Motion to Reinstate
In his second consolidated issue, appellant contends "the trial court abused its discretion for failure to conduct a mandatory hearing on [appellant's] motion to reinstate."
Rule 165a(3) provides, in part:
A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed or within the period provided by Rule 306a. . . . The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable. The court shall notify all parties or their attorneys of record of the date, time and place of the hearing.
Tex. R. Civ. P. 165a(3). The Supreme Court has determined that an oral hearing is required on any timely motion to reinstate under Rule 165a. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (citing Gulf Coast Investment Corp. v. NASA 1 Business Center, 754 S.W.2d 152, 153 (Tex. 1988)).
Appellant's motion was timely filed within the thirty-day deadline required by Rule 165a. Appellant's motion was verified as required by Rule 165a. In addition, appellant scheduled a hearing on his motion to reinstate on August 31, 2009 at 8:00 a.m. Even though the grounds stated within appellant's motion to reinstate may not trigger mandatory reinstatement of his lawsuit under Rule 165a(3), appellant "is entitled to a hearing on his motion." Id.
Appellant alleges in his appellate brief that the required hearing did not take place. However, as mentioned above, there is no evidence in the appellate record that the hearing did not occur. Absent some evidence in the appellate record that the trial court refused to honor appellant's notice of setting, we refuse to hold that the trial court erred. See Russell v. City of Bryan, 919 S.W.2d 698, 706 (Tex. App.-Houston [14th Dist.] 1996, writ denied) ("The burden is on appellants to demonstrate the record supports their contentions and to make accurate references to the record to support their complaints on appeal."). We overrule appellant's second issue on appeal.
C. Motion for New Trial
In his third consolidated issue, appellant asserts the "trial court abused its discretion in allowing appellant's motion for new trial to be overruled by operation of law." In support of his third issue, appellant points to the same alleged errors already addressed in his first two issues on appeal. Because we have already found no error with respect to these earlier issues, we conclude the trial court did not abuse its discretion in allowing appellant's motion for new trial to be overruled by operation of law. We overrule appellant's third issue.
CONCLUSION
Having overruled appellant's issues on appeal, we affirm the judgment of the trial court.