Opinion
No. 04-06-00395-CV
Delivered and Filed: December 6, 2006.
Appeal from the 37th Judicial District Court, Bexar County, Texas. Trial Court No. 2004-CI-11985. Honorable Lori Massey , Judge Presiding.
Opinion by: CATHERINE STONE, Justice, SITTING: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, KAREN ANGELINI, Justice.
REVERSED AND REMANDED
MEMORANDUM OPINION
John Karnei appeals the trial court's judgment dismissing his suit against Polly Jackson Spencer, Steven P. Price, Joe W. Hely, Janice A. Karnei, and Michael B. Karnei (collectively, the appellees). Karnei complains the trial court abused its discretion in dismissing his suit for want of prosecution without ruling on his motion to participate in the dismissal hearing by telephone. We reverse and remand for further proceedings.
Karnei, who is incarcerated, filed suit against the appellees when he was removed as the executor of his deceased mother's estate and his mother's house was subsequently sold at an auction for less than its market value. One month after filing suit, Karnei filed a motion for appointment of an attorney ad litem to assist him with the prosecution of his case. The trial court did not act on this motion, and Karnei did nothing to prosecute his case over the ensuing 20-month period.
The trial court subsequently sent Karnei a notice of a dismissal hearing, stating the court would dismiss the case for want of prosecution unless there was good cause to maintain the case on the docket. In response to the notice, Karnei filed an objection to the case being dismissed and asked the court to permit him to participate in the dismissal hearing by telephone. The trial court, however, did not act on any of Karnei's filings, and the court proceeded with the dismissal hearing as scheduled. The trial court, without affording Karnei an opportunity to participate in the proceeding, dismissed Karnei's case for want of prosecution.
He also filed an amended petition and requested the clerk to issue and serve citations on the appellees at their respective addresses.
"Litigants cannot be denied access to the courts simply because they are inmates." Boulden v. Boulden, 133 S.W.3d 884, 886 (Tex.App.-Dallas 2004, no pet.). If an inmate is not allowed to participate in a proceeding in person, or as in this case, does not request to do so, a trial court should afford the inmate the opportunity to proceed by affidavit, deposition, telephone, or other means. Id. at 886-87; Lann v. La Salle County, No. 04-02-00005, 2003 WL 141040, *1 (Tex.App.-San Antonio 2003, no pet.) (mem. op.). We review a trial court's failure to act on a litigant's request to participate in a proceeding in person or through some other means for an abuse of discretion. SeeBoulden, 133 S.W.3d at 886.
Karnei, as indicated in his filings with the court, could neither physically appear at the dismissal hearing nor retain an attorney to appear on his behalf. Karnei should therefore have been afforded the opportunity to proceed by some other viable means, such as the telephone conference he had expressly requested. By not acting on Karnei's motion to participate by telephone, the trial court effectively closed its door to inmate Karnei and, in doing so, abused its discretion. We therefore reverse the trial court's judgment and remand the cause for proceedings consistent with this opinion.