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explaining discontinuance as to unserved defendant "acts as a nonsuit without prejudice as to defendant[]"
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No. 01-06-01097-CV
Opinion issued November 26, 2008.
On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2004-48326.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Appellant, Ivo Nabelek, an inmate at a state correctional facility, proceeding pro se and in forma pauperis, appeals from a judgment dismissing his petition for bill of review. In 1998, Nabelek filed a civil action ("the 1998 action") against the City of Houston ("the City"), Lee Brown (the then-mayor of the City), and C.O. "Brad" Bradford (the then-chief of the Houston Police Department), specifically alleging that he was suing the latter two defendants in their official capacities, raising claims under chapters 101 and 104 of the Texas Tort Claims Act, the Texas Theft Liability Act, the due process clause of the United States Constitution, and "other applicable statutes and laws," regarding property taken pursuant to a police search and subsequently introduced into evidence in criminal cases against Nabelek. The 1998 case was disposed of by summary judgment against Nabelek on September 12, 2000, and a subsequent appeal to this Court was dismissed for want of jurisdiction. See Nabelek v. City of Houston, No. 01-02-00912-CV, 2003 WL 21101285, at *1 (Tex.App.-Houston [1st Dist.] May 15, 2003, no pet.) (memo op.).
See TEX. CIV. PRAC. REM. CODE ANN. §§ 101.001-.109, 104.001-.009(Vernon 2005 Supp. 2008).
See TEX. CIV. PRAC. REM. CODE ANN. §§ 134.001-.005 (Vernon 2005 Supp. 2008).
Nabelek's appeal was dismissed because it was untimely filed. See Nabelekv. City of Houston, No. 01-02-00912-CV, 2003 WL 21101285, at *1 (Tex.App.-Houston [1st Dist.] May 15, 2003, no pet.) (memo op.). In denyingrelief on Nabelek's motion for rehearing, we commented that Nabelek's recourse was by petition for a bill of review.
On August 31, 2004, Nabelek filed a petition for bill of review seeking to set aside the summary judgment in the original action. The original petition for bill of review named as defendant only the City, but an amended petition, filed on August 29, 2006, also named former Mayor Brown and former Police Chief Bradford as parties. The record does not reflect the issuance of citation or service of process as to any defendant, but the City filed an answer on October 3, 2006, asserting that the suit was barred by the statute of limitations pursuant to section 16.003 of the Texas Civil Practice and Remedies Code, and moving for dismissal in its favor, arguing that Nabelek had failed to use due diligence in procuring service. The trial court granted the City's motion to dismiss on November 20, 2006.
TEX. CIV. PRAC. REM. CODE ANN. § 16.003(a) (Vernon Supp. 2008) (establishing two-year statute of limitations period for certain claims). Actually, the statute of limitations for bills of review is four years. Caldwellv. Barnes, 975 S.W.2d 535, 538 (Tex. 1998) (holding that residual four-year statute of limitations of Texas Civil Practice and Remedies Code section16.051 applies to bills of review). Nabelek's original underlying suit was dismissed on September 12, 2000, and his bill of review petition was filed on August 31, 2004.
In three issues, Nabelek complains that (1) the trial court abused its discretion in granting the City's motion to dismiss because he exercised due diligence in effecting service on the City; (2) the trial court violated his rights to due process and due course of law because it granted the City's motion to dismiss without examining the pleadings and relied on inaccurate and misleading statements by counsel for the City and Nabelek at the hearing on the motion to dismiss; (3) the trial court erroneously dismissed all claims as to all parties based on the City's motion, rather than only dismissing the claims against the City; and (4) an incomplete appellate record requires that the judgment be vacated and a new hearing on the motion to dismiss be ordered to develop the lost record. We determine (1) whether the trial court erroneously dismissed Nabelek's claims against parties other than the City and, if not, whether the order granting the City's motion to dismiss is a final and appealable judgment of dismissal; (2) whether the loss of a document alleged to have been filed in the trial court, but absent from the appellate record, requires vacating the judgment and remanding the cause for a new hearing; (3) whether the City was entitled to a dismissal of the claims against it as a matter of law because it was not served within the statute of limitations; and (4) whether Nabelek has preserved a claim that his due process and due course of law rights were violated. We affirm the judgment of dismissal.
The Order of Dismissal — Its Scope and Finality
Nabelek asserts, as one of the contentions in his first issue, that the trial court improperly dismissed "the entire suit and all claims as to all parties," although only the City answered the suit and only the City asserted a statute of limitations bar and asked for dismissal. Nabelek avers that he also named Brown, Bradford, current Mayor Bill White, and "the police chief in office at the time the petition was filed" as defendants in his petition, asserts that all defendants were served in September of 2006, and argues that no answer or motion to dismiss was filed by Brown, Bradford, "or the Mayor and police chief in their individual capacities." He further argues that the City did not act on behalf of those defendants and thus the trial court had no authority to dismiss his "claims brought against [Brown and Bradford], as distinguished from those brought against the City only," based on the City's motion. Nabelek contends that the trial court should have retained the suit as to the other defendants or granted Nabelek a motion for default judgment against them.
The record indicates that the only persons specifically named as defendants inthe petition for bill of review, in addition to the City, were former MayorBrown and former Police Chief Bradford. Nabelek filed a document in the trialcourt requesting service on Mayor Bill White and the "Chief of Houston Police Department" (unnamed), but neither the original nor the amended petition forbill of review names either as a party.
Nothing in the record indicates that Nabelek ever requested a default judgment against either Brown or Bradford. Nabelek did file a motion for default judgment in April 2005; however, Brown and Bradford were not named partiesin the original petition for bill of review, which was on file at that time. They were named as parties in the first amended petition filed on August 9, 2006.
The trial court's order granting the City's motion to dismiss reads:
On the ____ day of ____, 2006 came to be considered Defendant City of Houston's Motion to Dismiss. After considering the same, the Court is of the opinion that this motion should be in all things GRANTED; it is thereby
ORDERED, ADJUDGED, and DECREED that Defendant City of Houston's Motion to Dismiss is GRANTED.
The City's motion to dismiss argued that the City was entitled to a dismissal in its favor and prayed that Nabelek "take nothing against said City of Houston by reason of this suit." At the motion-to-dismiss hearing, the trial court inquired about service on other parties and then stated that it would grant the City's motion to dismiss and "dismiss [Nabelek's] cause of action, [his] bill of review." The record is clear that the trial court believed that the order was a final judgment of dismissal as to all defendants. However, the subsequent written order did not specifically name all of the defendants named in the petition.
A written judgment controls over a trial court's oral announcements. See Nine Greenway LTD. v. Heard, Goggan, Blair Williams, 875 S.W.2d 784, 787 (Tex.App.-Houston [1st Dist.] 1994, writ denied). The written order dismisses only Nabelek's claim against the City, apparently with prejudice. Nabalek's contention that the trial court abused its discretion by dismissing Nabelek's claims against Brown and Bradford, based on the City's motion to dismiss, is therefore not supported by the record, and we overrule this portion of Nabelek's first issue.
The order does not state whether the dismissal is with, or without, prejudice, but the City asked in its motion that Nabelek "take nothing." A defense based on a statute of limitations is an affirmative defense, TEX. R. CIV. P. 94, or a "plea in bar," In re A.M., 936 S.W.2d 59, 62 (Tex.App.-San Antonio 1996, no writ), which goes to the merits of a case and, if sustained, results in a take-nothing judgment disposing of the controversy. See Union Pac. Fuels Inc. v.Johnson, 909 S.W.2d 130, 134 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding) (citing Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d208, 214 (1958)). Therefore, the trial court's grant of the motion for dismissal would necessarily have resulted in a dismissal of the claims against the City with prejudice. See Walker v. Sharpe, 807 S.W.2d 442, 446 n. 2 (Tex.App.-Corpus Christi 1991, no writ) (noting that proper procedure insustaining plea in bar is entry of take-nothing judgment in favor of defendant and that dismissal with prejudice generally has same effect and will be treated as summary judgment that plaintiff take nothing).
However, if the trial court's order dismissed only Nabalek's claims against the City, and not his claims as to any other named defendants, a question is raised as to whether the order is final and thus whether we have jurisdiction to entertain this appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93, 195 (Tex. 2001) (noting that appeal may only be taken from final judgment and holding that judgment is final only if either it actually disposes of all pending parties and claims then before the court or states with unmistakable clarity that it is final judgment as to all claims and parties). It is jurisdictional, fundamental error for a court of appeals to assume appellate jurisdiction over an interlocutory order when not expressly authorized to do so by statute. N. Y. Underwriters Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990). We therefore review jurisdictional issues sua sponte. Keith v. Keith, 221 S.W.3d 156, 162 (Tex.App.-Houston [1st Dist.] 2006, no pet.).
When a trial court enters a judgment expressly disposing of some, but not all, defendants, the remaining defendants were not served with citation and did not answer, and nothing in the record indicates that the plaintiff ever expected to obtain service on the non-served defendants, the case stands as if there had been a discontinuance as to the unserved defendants. Youngstown Sheet Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); In re Sheppard, 193 S.W.3d 181, 187 (Tex.App.-Houston [1st Dist.] 2006, original proceeding). The discontinuance acts as a nonsuit without prejudice as to defendants that were not served, First Dallas Petroleum, Inc. v. Hawkins, 715 S.W.2d 168, 169-70 (Tex.App.-Dallas, 1986, no writ), and the judgment is regarded as final for the purposes of appeal. Penn, 363 S.W.2d at 232; Sheppard, 193 S.W.3d at 187; First Dallas Petroleum, 715 S.W.2d at 169, 170; see also M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) (stating that holding in Penn was not overruled by Lehmann and applying Penn). Conversely, when the record reflects that a plaintiff expects to obtain service on unserved parties, a judgment disposing of solely served parties is interlocutory. See, e.g., Maryland Cas. Co. v. Amer. Home Assurance Co., No. 01-06-00237-CV, 2007 WL 926514, at *3 (Tex.App.-Houston [1st Dist.] Mar. 29, 2007, no pet.) (memo op.) (concluding that summary judgment was interlocutory because record indicated that plaintiff did expect to obtain service on remaining parties); Wanzer v. Mendoza, No. 04-05-00505-CV, 2005 WL 2368007, at *1 (Tex.App.-San Antonio Sept. 28, 2005, no pet.) (memo op.) (holding that dismissal order was interlocutory when supplemental record reflected that plaintiff expected to obtain service on and to pursue claims against unserved parties).
The record in the case before us does not establish service on any defendants, though the City filed an answer and asserted at the hearing on the motion to dismiss that it was served in September 2006. Neither Brown nor Bradford — private citizens and former city officials at the time that they were named individually as defendants, separate from the City, in the amended petition for bill of review — filed answers, and nothing in the record indicates that service was ever requested or obtained on either individual. The amended petition for bill of review does not request service of citation on either Lee or Brown; it requests only service of citation on representatives of the City at either the City's physical or mailing address. The addresses given by Nabelek in the petition for all defendants are City Hall and a post office box used by the City of Houston.
At the hearing on the motion to dismiss, the trial court asked if there were other defendants besides the City. Nabelek responded that "former Mayor Lee Brown" and "former Chief of Police . . . Bradford" were parties. When asked if any service attempts had been made on them, the attorney for the City responded, "No." Nabelek made no response. The court then granted the motion to dismiss and informed Nabelek that it was dismissing his "cause of action, [his] bill of review." Nabelek replied, "All right. Your Honor, could I give the oral notice of appeal, if that would please the Court?" At no time did Nabelek assert to the trial court that he expected to serve Brown or Bradford.
In his brief on appeal, Nabelek states that the City's response was misleading because, he now contends, all parties were served when the City was served. This assertion ignores the fact that (1) Brown and Bradford were named individually as defendants in the petition for bill of review, apart from the City;(2) Nabelek himself maintains that he is asserting claims against Brown and Bradford that are distinct from his claims against the City; and (3) Brown and Bradford were private citizens, not city officials, at the time that they were made parties in the amended petition for bill of review. Contradicting his assertion that service on Brown and Bradford individually was had when he served the City, Nabelek also states in his brief that arguably service was not executed on Brown and Bradford. Irrespective of these dissonant assertions, Nabelek does not contend on appeal that he expects to effect service on either Brown or Bradford, and nothing in the record indicates any expectation ofservice on Brown or Bradford after the trial court's ruling disposing of Nabelek's claims against the City.
"It is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished. This responsibility extends to seeing that service is properly reflected in the record." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (citation omitted); see also TEX. R. CIV. P. 99(a). There is nothing in the record indicating that Nabelek expected to serve either Brown or Bradford after the trial court made its ruling disposing of Nabelek's claims against the City. See M.O. Dental Lab, 139 S.W.3d at 674; Penn, 363 S.W.2d at 232; Sheppard, 193 S.W.3d at 187. Accordingly, although the trial court in the present case entered only an order dismissing Nabelek's claims against the City, because there were remaining defendants — Brown and Bradford — who were not served, and because the record does not indicate that Nabelek expected to obtain service on the remaining defendants, the case stands as if there was a discontinuance as to the remaining defendants, Brown and Bradford, and the order dismissing Nabelek's claims against the City is a final judgment for the purpose of appeal. See M.O. Dental Lab, 139 S.W.3d at 674; Penn, 363 S.W.2d at 232; Sheppard, 193 S.W.3d at 187; First Dallas Petroleum, 715 S.W.2d at 169, 170.
The Record on Appeal
In his third issue, Nabelek asserts that "the loss of the trial court record and resulting incompleteness of the appellate record warrants vacating the trial court's final judgment and remanding of the cause for a new hearing on defendant's motion to dismiss." Specifically, Nabelek complains that the "Plaintiff's Response and Objections to Defendant's Answer to First Corrected Amended Petition for Bill of Review and Motion to Dismiss" and "two letters-requests for execution of service" are missing and that their omission prejudices the outcome of his appeal because, without them, this Court cannot consider the facts and claims asserted therein.
On February 22, 2007, this Court ordered the district clerk to prepare a supplemental clerk's record "containing the items that appellant requested in his November 21, 2006 letter to the district clerk. . . ." Among the requested items were the two letters and the "Plaintiff's Response and Objections to Defendant's Answer to First Corrected Amended Petition for Bill of Review and Motion to Dismiss." On November 1, 2007, a second supplemental clerk's record was filed with this Court and includes the two letters referenced by Nabelek in his third issue. Thus, as to these two letters, Nabelek's contention is without factual support.
Not present in the record is the "Plaintiff's Response and Objections to Defendant's Answer to First Corrected Amended Petition for Bill of Review and Motion to Dismiss." There is a notation on the index page of the first supplemental clerk's record that the district clerk could not locate this document. Although the record before us does not reflect a formal request under Texas Rule of Appellate Procedure 34.5(e), it does include a letter from Nabelek to the district clerk, dated October 12, 2007, which references a letter sent to the district clerk dated August 8, 2007, pertinent to this document. According to the recitations in Nabelek's October 12 letter, he provided a copy of the missing document to the district clerk's office for filing on August 8. In his October 12 letter, Nabelek requests the district clerk's office to look into the matter and to file the previously provided copy in the court of appeals. Although that copy of the document does not appear in the appellate record, Nabelek has provided a verbatim recitation of the contents of the missing document in his brief and requests us to consider them in our determination of his contentions on appeal. The City has not opposed this request. We will therefore consider the assertions set forth in the Nabelek's verbatim recitation of the "Plaintiff's Response and Objections to Defendant's Answer to First Corrected Amended Petition for Bill of Review and Motion to Dismiss," contained in his brief, in our resolution of his contentions on appeal.
See TEX. R. APP. P. 34.5(e). This rule provides that if a filing designated forinclusion in the clerk's record has been lost or destroyed, the parties may, bywritten stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk's record or a supplement. Id. If the parties cannot agree, the trial court must — on any party's motion or at the appellate court'srequest — determine what constitutes an accurate copy of the missing item andorder it to be included in the clerk's record or a supplement. Id. Rule 34.5(e)does not provide for a new trial if the trial record is lost; rather it provides a means by which the record may be supplemented to include the lost item, either by agreement of the parties or though determination of the trial court.
The City did not file a brief on appeal.
Accordingly, we overrule Nabelek's third issue.
The Question of Due Diligence in Procuring Service
In the balance of his first issue, Nabelek contends that the trial court abused its discretion in granting the City's motion to dismiss on the ground that Nabelek did not use due diligence to serve the City. Nabelek acknowledges that the City was not served until about two years after the petition had been filed, which was also about two years after the statute of limitations had expired, but argues that the trial court abused its discretion when it granted the City's motion to dismiss because Nabelek demonstrated that he had exercised due diligence in effecting service.
A. Procedural mechanism below and standard of review to be applied
The City asserted its limitations argument in a motion to dismiss, which was incorporated in the same document as its answer to the petition for bill of review. The trial court considered the motion to dismiss in a hearing in which it heard arguments from both parties. No evidence was attached to the motion to dismiss, nor was any formal evidence presented at the hearing on the motion to dismiss, though the trial court entertained arguments and factual assertions from both parties.
The statute of limitations operates as an affirmative defense. TEX. R. CIV. P. 94; Estate of Whitsett v. Junell, 218 S.W.3d 765, 768 (Tex.App.-Houston [1st Dist.] 2007, no pet.). An affirmative defense, or "plea in bar," serves to prohibit the assertion of a cause of action and involves the final disposition of a case. In re A.M., 936 S.W.2d 59, 62 (Tex.App.-San Antonio 1996, no writ). The proper procedural mechanism to dispose of a case based on an affirmative defense is a motion for summary judgment or a trial on the merits. See id.; In re D.J.D., 79 S.W.3d 804, 806 (Tex.App.-Corpus Christi 2002, no pet.). However, the parties may agree to the consideration of an affirmative defense in a preliminary hearing. Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 189, 309 S.W.2d 208, 214 (1958); A.M., 936 S.W.2d at 62; D.J.D., 79 S.W.3d at 806; Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex.App.-Corpus Christi 1991, no writ). If the parties so agree, or if they do not object when the trial court determines the merits of an affirmative defense in a preliminary hearing, then the plea in bar may be properly sustained in the preliminary hearing. Kelley, 309 S.W.2d at 214; A.M., 936 S.W.2d at 62; D.J.D., 79 S.W.3d at 806; Walker, 807 S.W.2d at 447.
In the present case, the City pursued its affirmative defense of limitations through a motion to dismiss. The issue of limitations was conducted in a pretrial hearing to which neither party objected and in which both parties participated. The actions of the parties indicated their consent to the resolution of this affirmative defense in a preliminary hearing, rather than at a summary judgment or at trial. Accordingly, any error that might have occurred because the trial court resolved the limitations issue at a preliminary hearing, rather than by summary judgment or at trial, has been waived. See D.J.D., 79 S.W.3d at 806.
However, the pre-trial resolution of affirmative defenses outside of the procedural safeguards of summary judgment procedure can result in uncertainty for the parties, trial court, and appellate courts, making review on appeal problematic. See In re D.K.M., 242 S.W.3d 863, 865-66 (Tex.App.-Austin 2007, no pet.) (reversing order dismissing case on basis of affirmative defense raised in motion to dismiss rather than in motion for summary judgment, noting that it was unclear what evidence trial court reviewed, what rules and principles were applied by trial court, and what rules and standards should be applied on appeal and remanding case for hearing consistent with rules of civil procedure). Nabalek asserts in his brief that the City moved for summary judgment and makes his contentions on appeal under that assumption, arguing, for example, that there was a genuine issue of material fact in dispute and that the trial court erred in finding that the City was entitled to judgment as a matter of law. We note that the City's motion to dismiss cited to summary judgment case law, claimed that the City was entitled to dismissal as a matter of law, and prayed that a take-nothing judgment be entered. Accordingly, we will apply the standard of review for summary judgments. See Harris County Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 312-15 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (concluding that motion to dismiss was functional equivalent of motion for summary judgment because it was directed to merits of claims, issues were concurrently developed in combined response to motion for summary judgment, same or similar issues were often subject for motions for summary judgment, and neither party had discussed appropriate standard of review to apply to dismissal; determining that appropriate standard of review to apply was that applied to grant of summary judgment).
Review of a summary judgment is de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). "Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law." Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). In our review, we indulge every reasonable inference in favor of the nonmovant, resolve any doubts in its favor, and take as true all competent evidence favorable to it. Id.
B. Law applicable to due diligence
To "bring suit" within the prescribed limitations period, a plaintiff must not only timely file suit, but must also use diligence to have the defendant served with process. Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970). The mere filing of suit does not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). If service is diligently effected after limitations have expired, the date of service will relate back to the date of filing. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). In assessing diligence, the relevant inquiry is determined by a two-pronged analysis (1) whether the plaintiff acted as an ordinary, prudent person would have acted under the same or similar circumstances; and (2) whether the plaintiff acted diligently up until the time that the defendant was served. Id. at 216. In determining the second prong, courts consider (1) the time that it took to procure citation, service, or both and (2) the type of effort or lack of effort that the plaintiff expended in procuring service. Id.
Nabelek's status as a pro se litigant does not alter the standard of diligencerequired. Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston[14th Dist.] 2002, pet. denied) (holding that pro se litigant was held to same standard of diligence in serving defendant applicable to licensed attorney). Noallowance is to be made for the fact that a plaintiff is not a lawyer. Bailey v.Rogers, 631 S.W.2d 784, 786 (Tex.App.-Austin 1982, no writ). "Litigantswho represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
Once a defendant has affirmatively pleaded the limitations defense and shown that service was effected after the limitations period expired, the burden shifts to the plaintiff to "explain the delay." Id. at 215-16. If the plaintiff's explanation for the delay raises an issue of material fact concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the explanation does not demonstrate due diligence. Id. at 216. However, in some instances, a plaintiff's explanation of its service efforts may be legally improper, or may demonstrate a lack of due diligence as a matter of law, such as when one or more lapses between service efforts are unexplained or patently unreasonable. Id. Delays of five and six months in requesting issuance and service of citation have been held to constitute a lack of due diligence as a matter of law. See Butler v. Ross, 836 S.W.2d 833, 836 (Tex.App.-Houston [1st Dist.] 1992, no writ) (holding that five-and-a-half months of inactivity and no service efforts between failed attempts at wrong address and proper service at correct address constituted lack of due diligence); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.-Corpus Christi 1991, no writ) (stating that failure to cause issuance of citation for service until five months after suit was filed affirmatively demonstrated lack of due diligence). It is the plaintiff's burden to present evidence regarding the efforts that were made to obtain service of citation upon the defendant and to explain every lapse in effort or period of delay. Proulx, 235 S.W.3d at 216.
C.Application to the facts
This dispute has been pending for 10 years. The original cause of action was filed in September 1998, summary judgment was granted in 2000, and the subsequent appeal was dismissed in 2003. The petition for bill of review was filed on August 31, 2004, but citation was not served on the City until nearly two years later, approximately two years after the expiration of the statute of limitations period. Although the actual return of service is not present in the record, the record reflects that Nabelek filed a motion to compel service on the City on June 30, 2006, and the City filed an answer on October 3, 2006, thus indicating that service took place between those dates.
This is not Nabelek's first attempt to retrieve his items. See Nabelek v. Dist.Attorney of Harris County, No. 14-03-00965-CV, 2005 WL 2148999 (Tex.App.-Houston [14th Dist.] Sept. 8, 2005, pet. denied) (memo op).
See footnote 4.
There is nothing in the record indicating the exact day of service, but the City asserted at the hearing on its motion to dismiss that it was served in September2006, and Nabelek asserts in his brief that service occurred in September 2006.
Nabelek argues that he exercised diligence in procuring issuance and service of citation and that his efforts were those that an ordinarily prudent person would have used under the same or similar circumstances, considering that he is a pro se inmate, proceeding in forma pauperis. He asserts that he made repeated requests for the execution of service to the proper authorities and that the failure of the authorities to execute service in a diligent fashion was due to no fault of his own. He avers that, being a layman and an inmate, he had limited or no knowledge of the law and whom to serve. Nabelek contends that it was the fault of the clerk of the court, the trial court itself, the constable who executed the original service, and the City's legal counsel that service was not executed until September 2006.
The record reveals that service was initially attempted on Judith Sanchez, counsel for the City in the original action, on September 14, 2004, but that sherefused service because she was not the City's agent for service. Nabelekasserts that he did not designate Sanchez as the person to be served in hisoriginal petition for bill of review and that the district clerk must have madethat designation, so that the failed service was not due to his misdesignation, but to that of the clerk. Nabelek did, however, later request service on the City by serving Sanchez. Nabelek asserts that he did not know whom to serve; thatSanchez was the counsel litigating the matters out of which the bill of reviewpetition arose; that he did not know that she was not the proper person to serveuntil mid-2006; and that he thought that the bill of review was a part, and a continuation, of the original 1998 action.
The record reflects that Nabelek made efforts to effect service of citation on the City. However, the record also reveals facts that conclusively defeat Nabelek's contention of due diligence.
Some examples of these efforts were:
April 7, 2005 — Nabelek sent a letter to the court coordinator, asking whether service had been executed and requesting that the coordinator askthe "appropriate court authority" to ensure that service be done without delay.
April 19, 2005 — Nabelek sent a " pro se request for execution of service"to the clerk of court, specifically requesting service at the City's Legal Department, through mail or service on the City's counsel, Judith Sanchez.
November 21, 2005 — Nabelek sent a letter to the court coordinator, complaining that the district clerk failed to execute service, asking that the matter be brought up to the judge or that other measures be taken to prompt the clerk to execute service, and requesting that the court rule on his April19, 2005 request for execution of service. Nabelek also sent a letter to the district clerk, noting his prior request for service, and again requesting that service of citation be executed on "the City of Houston, et. al."
January 19, 2006 — Nabelek filed a "corrected request" for issuance of service, requesting service to be executed on Mayor Bill White and his predecessor, Lee Brown (neither of whom was named as a party in the petition on file), "Chief of City of Houston Police Department" (no name listed) and his predecessor, Clarence O'Neal Bradford (neither of whom was named as a party in the petition on file), and the "City of Houston and other yet unknown employees, agents, and representatives of the City of Houston," to be served by and through "Hon. Anna Russell (or current) City of Houston Secretary, Hon. Bill White Lee P. Brown, Mayors, Hon.Clarence O'Neal Bradford and Current Police Chief City of Houston."
June 23, 2006 — Nabelek filed a Motion for a Court Order to compelissuance of service on representatives of the City.
August 29, 2006 — Nabelek filed his first amended petition for bill ofreview, which named the City, the former mayor of Houston, Lee Brown, and the former police chief of Houston, Clarence O. Bradford, as defendants and requested execution of service of petition and citation on the City through the City secretary, the mayor, the clerk of the city, or the treasurer.
First, Nabelek's original petition for bill of review did not request the issuance of citation or execution of service on any party. Nabelek admits in his brief that he did not request execution of service at all in his original petition for bill of review and did not designate any party or agent for execution of service. He explains that he expected that the clerk would execute service on the proper agent designated by law.
It is the responsibility of the party requesting service to ensure that service is properly accomplished. See TEX. R. CIV. P. 99(a) ("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 . . .") (emphasis added); see also Primate Constr., Inc., 884 S.W.2d at 153. Nabelek did not request issuance of citation and execution of service on anyone until April 19, 2005 — nearly eight months after filing his original petition. The failure to request service at all, combined with a lengthy delay, demonstrates a lack of due diligence as a matter of law. See Cooke v. Maxam Tool Supply, Inc. 854 S.W.2d 136, 140 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (holding that failure to request service on any party at all at time of filing of original petition, combined with lapse of six months before requesting service, demonstrated lack of due diligence as matter of law); Hansler, 807 S.W.2d at 5 (determining that failure to cause issuance of citation for service until five months after suit was filed affirmatively demonstrated lack of due diligence).
In addition to failing to request any issuance of citation or execution of service for eight months, the record reflects that Nabelek did not request issuance of citation or execution of service on the proper agent for service for the City until January 19, 2006 — nearly 17 months after filing his petition. From April 2005 to January 19, 2006, Nabelek's only pending request for service was on the City's legal department, or Judith Sanchez, neither of which was a proper agent for service for the City.
The proper agent for service for a municipality is expressly stated in Texas Civil Practices and Remedies Code section 17.024(b). It was Nabelek's responsibility to ascertain the proper person to serve, to request that citation be issued on that person, to ensure that service was executed on that person, and to do so with due diligence. See TEX. R. CIV. P. 99(a); Primate Constr., Inc., 884 S.W.2d at 153; Rigo Mfg. Co., 458 S.W.2d at 182. The fact that Nabelek is not a lawyer does not relieve him of this responsibility. Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). A delay of 17 months before even requesting issuance of citation and execution of service on the proper agent for service, when the proper agent for service is expressly provided for by statute, demonstrates a lack of due diligence as a matter of law. See, e.g., Hoehn v. Dallas County Mental Health Mental Retardation Ctr., No. 05-94-01515-CV, 1995 WL 500271, at *3 (Tex.App.-Dallas Aug. 16, 1995, no writ) (not designated for publication) (holding that plaintiff's explanation that she had served wrong person because she believed him to be proper agent for government agency, in contravention of explicit statute in Texas Civil Practice and Remedies Code providing correct agent for service, and her failure to learn of her mistake for five months, did not raise fact question on due diligence and was not consistent with due diligence).
"In a suit against an incorporated city, town, or village, citation may be servedon the mayor, clerk, secretary, or treasurer." TEX. CIV. PRAC. REM. CODEANN. § 17.024(b) (Vernon 2008).
The record reflects that there is no material question of fact as to due diligence in effecting service and that the claims against the City were barred by the statute of limitations as a matter of law because the City was not served within the statute of limitations. The trial court therefore did not err in dismissing Nabelek's claims against the City, and we overrule issue one.
Constitutional Challenges
In his second issue, Nabelek contends that the trial court violated his right to due process under the Fourteenth Amendment of the U.S. Constitution, and his right to due course of law under Article I, Sections 10, 19, and 27 of the Texas Constitution, by not examining the pleadings in the record, and the facts therein, and relying instead on "misleading and inaccurate information" provided to the court by Nabelek and opposing counsel during the hearing on the motion to dismiss.
Nabelek has failed to cite any authorities that support his contention that the trial court's alleged reliance on his arguments, and those of the City's counsel, or its alleged failure to review the pleadings on file, was a violation of Nabelek's right to due process and due course of law. See TEX. R. APP. P. 38.1(h) (requiring clear and concise argument for contentions made, with appropriate citations to authorities and record); see also Gomez v. Pasedena Health Care, Inc., 246 S.W.3d 305, 311 n. 3 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (declining to consider constitutional issue on appeal when brief did not provide explanation, argument, or analysis of constitutional provision at issue). Nabelek also did not object at trial that his constitutional rights were being violated by the trial court's considering his arguments in support of his position, along with the arguments of the City's attorney, nor did he object that the trial court had not reviewed the record and that such alleged failure was a violation of his constitutional rights to due process and due course of law. Nabelek has failed to preserve his constitutional challenges for appellate review. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that even constitutional challenges must be presented to trial court in order to be preserved for appellate review).
We therefore overrule Nabelek's second issue.
Conclusion
We affirm the judgment of the trial court.
Any pending motions are dismissed as moot.