Opinion
No. 10-05-00322-CV
Opinion Delivered and Filed November 16, 2005.
Appeal from the County Court at Law, Ellis County, Texas, Trial Court No. 05-C-3562.
Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Justice VANCE concurs with a note) (Chief Justice GRAY concurs with a separate opinion).
"(Justice Vance concurs with a note: A docketing statement is for administrative purposes only and does not affect our jurisdiction. TEX. R. APP. P. 32.4. This will be at least our third dismissal of a pro-se appeal for failure to file a docketing statement. Dismissal as a sanction is, in effect, a "death penalty," which precludes consideration of the merits of the appellant's claim. Under the law developed to evaluate trial-court dismissals as sanctions, such a sanction must be "just." Tansamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). That means a direct relationship must exist between the offensive conduct and the sanction imposed. Id. Furthermore, a permissible sanction should be no more severe than required to satisfy legitimate purposes. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). This means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id. We have not tried a lesser sanction. While we may conclude that the failure to file a docketing statement reflects adversely on the merits of a pro-se appeal, we should be cautious in doing so.)"
MEMORANDUM OPINION
Robert H. Hensley filed a notice of appeal from a final judgment giving possession of property to W.M. Specialty Mortgage LLC. The required docketing statement was not received. TEX. R. APP. P. 32. On September 19, 2005, we sent a letter explaining that the docketing statement must be filed and warning that the Court would dismiss the appeal if a docketing statement was not filed within 21 days. TEX. R. APP. P. 42.3(c).
More than 21 days have passed, and we have not received the docketing statement. Accordingly, we dismiss this appeal. Id.; see In the Interest of T.S.S., No. 10-04-00227-CV, 2004 Tex. App. LEXIS 10126 (Tex.App.-Waco Nov. 10, 2004, no pet.); Chadwell v. Ford Motor Co., No. 10-04-00272-CV, 2004 Tex. App. LEXIS 10115 (Tex.App.-Waco Nov. 10, 2004, no pet.); see also In the Interest of J.M., No. 12-05-000297-CV, 2005 Tex. App. LEXIS 8640 (Tex.App.-Tyler Oct. 19, 2005, no pet. h.) (publish); Morris v. Speedway Erection Serv. Co., No. 04-04-00109-CV, 2004 Tex. App. LEXIS 4008 (Tex.App.-San Antonio May 5, 2004, no pet.); Fincher v. Mortgage Elec. Registration Sys., No. 05-03-00614-CV, 2003 Tex. App. LEXIS 4262 (Tex.App.-Dallas May 19, 2003, no pet.) (released for publication May 19, 2003); Middleton v. State, No. 05-02-01318-CV, 2003 Tex. App. LEXIS 443 (Tex.App.-Dallas Jan. 17, 2003, no pet.).
CONCURRING OPINION
It is with some degree of reluctance that I write this concurring opinion. My reluctance was eventually overwhelmed by my concern for the public's, the legal profession's, and the parties's need to understand. It is the need to understand the system's purpose and how the concurring note fails to fulfill that purpose; indeed, how it is contrary to that purpose.
Our legal system is built around a concept known as the rule-of-law. I do not have the time to write a law review article on our system, generally, or the rule-of-law in particular. But one of the fundamental concepts is that if a rule is established for a particular fact pattern, when that basic fact pattern is again presented, the result should be the same as before. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) ("After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.").
The result of this appeal is entirely consistent with multiple prior decisions of this Court. See In the Interest of T.S.S., No. 10-04-00227-CV, 2004 Tex. App. LEXIS 10126 (Tex.App.-Waco Nov. 10, 2004, no pet.); Chadwell v. Ford Motor Co., No. 10-04-00272-CV, 2004 Tex. App. LEXIS 10115 (Tex.App.-Waco Nov. 10, 2004, no pet.). In these prior decisions, the litigants failed to file a docketing statement. The party was warned that if a docketing statement was not filed, the case would be dismissed. A docketing statement was not timely filed in these other appeals. The consequence of the failure to file was that the appeal was dismissed. Id.
These earlier dismissed appeals were each decided by a per curiam opinion and were each decided by the same three justices that sit on this panel. Except in very rare circumstances, not present here, I do not use per curiam opinions to dispose of cases assigned to me to draft. This case was assigned to me under our internal system, and so I drafted an opinion and circulated the draft opinion relying upon the precedent of this Court.
So each reader of the opinion, Justice Vance's concurring note, and this concurring opinion will have to decide for themselves why Justice Vance would decide to draft a concurring note to an opinion I drafted when he did not take the same position on previously issued per curiam opinions of this Court on the same issue.
In the concurring note, Justice Vance implies that the dismissal of this appeal for failure to file a docketing statement may be an improper sanction, a violation of the appellant's due process rights. Any time a due process issue is raised, one of the first questions is to identify what, if any, process is due. University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Due process normally relates to notice and the opportunity to be heard. Id. at 930. In the event of some types of procedural defaults, as in this instance, due process may require notice of the defect and the opportunity to cure the defect. See generally, Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 228 (Tex. 2002) (Appellee should be given an opportunity to cure a jurisdictional defect.); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998) (A timely objection to the reliability of the scientific evidence is required so the offering party is given an opportunity to cure any defect that may exist and will not be subject to trial and appeal by ambush.); Peek v. Equipment Service Co., 779 S.W.2d 802, 805 (Tex. 1989) ("Unless the petition affirmatively demonstrates that no cause of action exists or that plaintiff's recovery is barred, we require the trial court to give the plaintiff an opportunity to amend before granting a motion to dismiss or a motion for summary judgment.").
The appellate rules contemplate a dismissal for a procedural defect. See TEX. R. APP. P. 44.3. We must only give a reasonable opportunity to cure the defect before dismissing. Id. And we did. As the opinion notes, the appellant was given notice of the defect, which was the failure to file a docketing statement, and was told specifically what was necessary to cure the defect. The appellant was also told what the result would be for the failure to cure the defect. The defect was not cured; the docketing statement has not been filed. We did everything in this appeal to apprise the party of the defect and the result of the failure to cure that we have done in the earlier cases we dismissed. Other courts have also dismissed for the same failure. See In the Interest of J.M., No. 12-05-000297-CV, 2005 Tex. App. LEXIS 8640 (Tex.App.-Tyler Oct. 19, 2005, no pet. h.) (publish); Middleton v. State, No. 05-02-01318-CV, 2003 Tex. App. LEXIS 443 (Tex.App.-Dallas Jan. 17, 2003, no pet.); see also Morris v. Speedway Erection Serv. Co., No. 04-04-00109-CV, 2004 Tex. App. LEXIS 4008 (Tex.App.-San Antonio May 5, 2004, no pet.); Fincher v. Mortgage Elec. Registration Sys., No. 05-03-00614-CV, 2003 Tex. App. LEXIS 4262 (Tex.App.-Dallas May 19, 2003, no pet.) (released for publication May 19, 2003).
This dismissal is the result of an inference drawn when a party fails to proceed with their case. Dismissal of this appeal under these circumstances is not a violation of due process. I concur in the judgment of dismissal.