Summary
holding that plaintiff could not serve citation on defendants
Summary of this case from Poplin v. Amerisure Mut. Ins. Co.Opinion
No. 09-09-00373-CV
Submitted on April 27, 2010.
Opinion Delivered May 13, 2010.
On Appeal from the 253rd District Court, Liberty County, Texas, Trial Cause No. CV64979.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
In 2002, Michael Kennedy filed a lawsuit against fellow inmates Jose Gutierrez and Tarrence Reese. The trial court dismissed the suit for want of prosecution in 2009. On appeal, Kennedy complains that the trial court abused its discretion in dismissing the suit in the face of repeated requests for a trial setting. Because Kennedy never perfected service on the defendants, the trial court did not err in failing to set the case on the trial docket. We affirm the dismissal for want of prosecution.
We review a dismissal for want of prosecution for abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). The central issue is the exercise of reasonable diligence by the plaintiff. Id. The trial court may consider the entire history of the case. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984). Relevant considerations include the length of time the case has been on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. King v. Holland, 884 S.W.2d 231, 237 (Tex. App.-Corpus Christi 1994, writ denied).
Kennedy complains that he filed many motions to set the case for trial and the trial court refused to set a trial date or grant his repeated motions for entry of a default judgment. The plaintiff cannot take a default judgment unless the officer's return has been on file for ten days and the defendant's time to file an answer has passed. See TEX. R. CIV. P. 107; TEX. R. CIV. P. 239. A defendant need not appear unless he has been duly cited. See TEX. R. CIV. P. 237. Until the defendant's appearance day, the case cannot be set for trial. See TEX. R. CIV. P. 238; TEX. R. CIV. P. 245. In this case, the trial court placed the case on the trial docket for July 7, 2009. Although Kennedy filed his original petition on December 31, 2002, on the date set for trial Kennedy had not obtained service of citation on either of the defendants.
Kennedy also claims that he unsuccessfully sought mandamus relief in this Court. Kennedy actually sought mandamus relief in the First and Fourteenth Courts of Appeals. See In re Kennedy, No. 01-06-00232-CV, 2006 WL 1227311, at *1 (Tex. App.-Houston May 4, 2006, orig. proceeding) (mem. op.); In re Kennedy, No. 01-06-00058-CV, 2006 WL 1225326, at *1 (Tex. App.-Houston May 4, 2006, orig. proceeding) (mem. op.); In re Kennedy, No. 14-06-00252-CV, 2006 WL 771573, at *1 (Tex. App. [14th Dist.] Mar. 28, 2006, orig. proceeding) (mem. op.); In re Kennedy, No. 01-05-00900-CR, 2005 WL 2989887, at *1 (Tex. App.-Houston [1st Dist.] Nov. 3, 2005, orig. proceeding) (mem. op.). As the First Court of Appeals noted in one of its opinions, those courts did not grant relief because "Liberty County is in the court of appeals district for the Ninth Court of Appeals." Kennedy, 2006 WL 1225326 at *1.
The history of this case places the trial court's actions in their proper context. Kennedy requested a default judgment and an evidentiary hearing on damages in 2004. Correspondence from the trial court informed Kennedy that "[t]he file does not reflect that service of citation to either of the defendants in the lawsuit has been perfected[.]" Kennedy eventually replied by sending the trial court a copy of a handwritten citation with a letter that informed the trial court that Kennedy had served the defendants by mailing them a copy of the "citation" and his petition. Kennedy again requested a default judgment in 2005. The motion stated that the district clerk had issued citation by mail. Correspondence from the trial court notified Kennedy that "citation was issued on January 2, 2003 but service was not perfected[.]" The trial court directed Kennedy to the Rules of Civil Procedure for information on perfecting service and notified Kennedy that the trial court would consider the motion after service was perfected.
Kennedy filed another motion for default judgment. The motion alleged that the Unit mail room supervisor had told Kennedy that the defendants were given the complaint on April 3, 2005. A subsequent request for entry of a default judgment alleged that the clerk sent all parties a copy of the citation and petition on January 2, 2003, that Kennedy "personally" served the defendant on April 1, 2005, and that the defendants received a mailed copy of the citation and petition on May 26, 2005. Kennedy also suggested that he needed a court order for service because he was unable to directly communicate with prisoners without a court order. The same motion stated that Gutierrez had been released from prison and Kennedy did not know where Gutierrez could be located. Kennedy asked for all of the parties to be subpoenaed to appear in court. The court clerk notified Kennedy of a setting for a hearing on his motion to enter default judgment. On the date of the scheduled hearing, the trial court again mailed correspondence to Kennedy that informed Kennedy that "service has still not been perfected[.] The trial court notified Kennedy that "[c]itation must be issued by the District Clerk and be served upon the defendants in the manner provided by the Texas Rules of Civil Procedure." Evidently, Kennedy had been unavailable for transport to the courthouse, as the letter stated, "Advise me when you have been relocated to the Hightower Unit . . . and at that time I will bench warrant you here for a hearing regarding this matter."
In 2005, Kennedy filed several motions in which he complained that the inmate correspondence rules prevented him from serving the defendants. Kennedy requested that the defendants be bench warranted for a hearing. In November 2005, Kennedy notified the trial court that he would be housed in the Hightower Unit until November 20, 2005, and requested that he be bench warranted for a hearing. Kennedy notified the court that Reese was about to be released from prison. On November 28, 2005, Kennedy requested that citation issue by certified mail, return receipt requested. On that same date, correspondence from the trial court informed Kennedy that the trial court had contacted the Hightower Unit regarding a bench warrant, but was informed "that you were not in their unit, nor had you ever been housed in their unit." According to the Department officials who communicated with the trial court, Kennedy was in a Huntsville unit awaiting transfer. Again, the trial court warned Kennedy that service had not been perfected and that until service was perfected the case would not be ready to proceed to trial. Kennedy responded that he was briefly housed at the Hightower Unit while receiving medical treatment in Galveston. Kennedy filed additional motions with the trial court and stated that if the trial court would bench warrant Kennedy for a hearing he would prove that he had served the defendants. Kennedy again insisted that inmate correspondence rules prevented him from serving the defendants with citations and complaints.
In January 2006, correspondence from Kennedy to the trial court complained that "I told you I served personally citations on these defendants" and asserted that he had complied with Rule 99. Kennedy noted that he would be released from prison the following month. In February 2006, Kennedy filed a handwritten document titled "Citation" issued by "certified mail return receipt requested by Michael Kennedy." Kennedy then filed another motion for entry of default judgment. Kennedy wrote to the trial court that Kennedy had received return receipt cards.
On March 3, 2006, the trial court once again wrote a letter to Kennedy. The trial court referred Kennedy to the provision in Rule 99 of the Texas Rules of Civil Procedure that it is the clerk's duty, on request, to issue citations. See TEX. R. CIV. P. 99(a). The letter notified Kennedy that neither of the citations prepared on January 2, 2003, had been executed. The trial court informed Kennedy that it had sua sponte directed the clerk to issue new citations which were enclosed with the letter "if you desire to perfect these citations now." The trial court informed Kennedy that he would not set a hearing until Kennedy served the opposing party.
On June 1, 2009, the trial court sent a notice that the case had been placed on the dismissal docket and warned that failure to appear would result in dismissal pursuant to Rule 165a. See TEX. R. CIV. P. 165a. Kennedy filed a written response that stated he was ready for trial. Kennedy proffered a proposed order setting the case for trial on July 7, 2009, and the trial court signed the order. On July 7, 2009, the trial court dismissed the case for want of prosecution. Kennedy filed a motion to reinstate and requested a bench warrant.
"The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." TEX. R. CIV. P. 99a. This record does not show that Kennedy ever delivered a citation to any person for execution and return. See TEX. R. CIV. P. 105. It appears instead that Kennedy believed he had perfected service of citation by personally mailing a citation and copy of the petition to the defendants. See TEX. R. CIV. P. 21a.
Rule 21a does not apply to "citation to be served upon the filing of a cause of action[.]" Id. Furthermore, "[n]o person who is a party to or interested in the outcome of a suit may serve process in that suit[.]" TEX. R. CIV. P. 103. The trial court repeatedly warned Kennedy over many years that, notwithstanding Kennedy's personal belief that he had provided adequate notice of the suit to the defendants, he had not perfected service. The trial court also warned Kennedy that service in accordance with the Texas Rules of Civil Procedure was required before the suit could proceed. Notwithstanding the warnings, Kennedy pursued an ineffective course of action. Although the court certainly could have authorized an alternative method of service, Kennedy never demonstrated any attempt to obtain proper service of citation through conventional means; the trial court therefore did not abuse its discretion by failing sua sponte to fashion some alternate method of service. See generally TEX. R. CIV. P. 106. The trial court informed Kennedy of the particular defect that prevented his case from moving forward. Moreover, Kennedy requested that the trial court place the case on the trial docket after the trial court had new citations issued and sent to Kennedy so that Kennedy could obtain service on the defendants.
On this record, no abuse of discretion is shown. Accordingly, we overrule the issue raised on appeal and affirm the trial court's order dismissing the case for want of prosecution.
AFFIRMED.