Opinion
01-21-00019-CV
08-25-2022
EARNEST J. MATTHEWS, Appellant v. S.R.,[1] Appellee
On Appeal from the 240th District Court Fort Bend County, Texas, Trial Court Case No. 19-DCV-264316
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice.
Appellant Earnest J. Matthews, proceeding pro se, challenges the trial court's order dismissing his suit against appellee S.R. for want of prosecution. We affirm.
Background
Appellant Earnest J. Matthews ("Matthews") is an inmate incarcerated at the Hightower Unit of the Texas Department of Criminal Justice. In 2001, he was charged with multiple counts of aggravated sexual assault of a child and indecency with a child. After several of the counts against him were dismissed, Matthews pleaded guilty. He was placed on deferred adjudication for eight years. One year later, the State moved to revoke Matthew's probation and adjudicate his guilt. Matthews pleaded true to the State's motion and was sentenced to 25 years' imprisonment.
Although the record before us does not include Matthew's judgment of conviction, we may take judicial notice of his conviction in Cause No. 01-DCR-034572, The State of Texas v. Earnest James Matthews, 240th District Court of Fort Bend County, as reflected on the Texas Department of Criminal Justice's website. See Avery v. LPP Mortg., Ltd., No. 01-14-01007-CV, 2015 WL 6550774, at *3 (Tex. App.-Houston [1st Dist.] Oct. 29, 2015, no pet.) (mem. op.) (stating courts may take judicial notice of governmental websites).
On July 11, 2019, Matthews filed suit against Appellee ("S.R.") alleging she falsely accused Matthews of sexually assaulting her resulting in his conviction and subsequent sentence and imprisonment. Matthews asserted a claim against S.R. for defamation alleging she "lied to have [him] sent to prison." He sought $1,000,000 in damages and requested that the trial court refer the matter to the district attorney for criminal charges.
On October 20, 2020, the trial court notified Matthews in writing that his case was set on the trial/dismissal docket for December 17, 2020, at 9:00 a.m. The notice advised Matthews that he had to file a sworn motion to retain certifying that discovery was complete, settlement attempts had been unsuccessful, and the case was ready for trial. The notice advised Matthews that he had to file the sworn motion to retain with the district clerk no later than one week before the December 17, 2020 dismissal/trial docket. The letter stated, "APPEARANCE AT THE DOCKET CALL IS MANDATORY."
On November 9, 2020, Matthews filed several motions. Matthews, who was still incarcerated due to his conviction, filed a letter with the court stating he was "prepared to go forward" and requesting that an attorney "be allowed to stand for me if I'm not bench warranted in time." He also filed a Motion for Bench Warrant, stating in its entirety that:
1. This case has been set on the trial/dismissal docket for Dec. 17, 2020, and plaintiff is seeking one (1) week to prepare/seek a possible settlement.
2. This case is of imperative public importance because the results could lead to an innocent man (plaintiff) getting out of prison.
Separately, he filed a Motion for Appointment of Counsel under 28 U.S.C. §1915(c)(1) stating that a "civil rights plaintiff is entitled to appointment of counsel if his case presents exceptional circumstances." Ten days later, on November 19, 2020, Matthews filed a Motion to Retain stating discovery was complete, all settlement attempts had been unsuccessful, and the case was ready for trial.
On December 17, 2020, the trial court signed an order dismissing Matthews' suit for want of prosecution. The order states, in pertinent part:
Notice having been sent to attorneys of record and/or the parties in this cause, the matter was called by the Court for the purpose of determining whether such cause should be retained on the Court's docket or dismissed for lack of prosecution. After considering the response filed, if any, to the Court's notice of the setting of this cause for consideration of dismissal, the court finds that no good cause exists to retain this case on the Court's docket.
The trial court issued a notice on December 21, 2020, informing Matthews that a dismissal for want of prosecution had been entered in his case.
On December 28, 2020, Matthews filed a Motion for Continuance. He asserted that although the trial court had granted his request to proceed in forma pauperis on July 11, 2019, the court had not communicated with him until October 20, 2020, when it notified him that his case was set on the trial/dismissal docket for December 17, 2020. Citing generally to the Federal Rules of Civil Procedure, Matthews asserted he was counsel of record or a party to the case, but he had not received an answer or response to his settlement offer from S.R. Matthews also argued that his suit met the "exceptional circumstances" requirement under 28 U.S.C. section 1915(c)(1) warranting appointment of counsel.
"A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit." Saldana v. Villarreal, No. 01-19-00424-CV, 2020 WL 7062586, at *2 (Tex. App.-Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.). Matthews did not verify his motion or file an affidavit in support. Section 132.001(e) of the Civil Practice and Remedies Code permits inmates to file an unsworn declaration in lieu of an affidavit. Tex. Civ. Prac. & Rem. Code § 132.001(e). An inmate's unsworn declaration under Section 132.001(e) must have a jurat that includes certain listed information. See id. Matthew's motion does not include a jurat.
The record does not reflect, and Matthews does not indicate, whether the trial court ruled on any of Matthews' motions.
On January 6, 2021, Matthews filed his notice of appeal from the trial court's order dismissing his suit for want of prosecution. Appellant does not identify any specific points of error. Instead, he generally alleges that he was "entitled to appointment of counsel." Although it is unclear from his brief, Matthews appears to contend that the district court erred by failing to appoint him representation because his allegations, which raise a claim of actual innocence, present "exceptional circumstances" warranting appointment of counsel.Matthews also generally asserts, without any explanation, that he was not allowed to prosecute his suit "either in person, via internet, by phone, etc." We address each allegation below.
On April 16, 2021, Matthews prematurely filed an appellate brief before the reporter's record had been filed. This Court struck Matthew's brief and ordered him to file a corrected brief within thirty days after the reporter's record was filed. Matthews filed a corrected brief on September 13, 2021. We issued an order on October 14, 2021, striking Matthew's appellate brief for failure to comply with the Rules of Appellate Procedure, ordering him to file a corrected brief by November 15, 2021. On October 25, 20201, Matthews filed a response waiving his right to file an amended brief and stating "[i]f this case cannot be decided on the merits, then I choose not to keep fighting [S.R.]." On December 2, 2021, this Court issued an order notifying Matthews that his appeal was subject to dismissal for want of prosecution unless he filed a compliant appellate brief within thirty days of the notice. On December 13, 2021, Matthews filed a corrected brief. S.R. did not file a responsive brief.
Matthews also generally alleges that (1) the trial court had subject matter jurisdiction; (2) he did not hear from the trial court until October 20, 2020 when the court issued its trial setting; and (3) he did not receive an answer to his settlement offer from S.R. It is unclear how these statements concern his present appeal. The trial court did not dismiss Matthews' suit for lack of jurisdiction and Matthews does not identify what, if anything, he was entitled to hear from the trial court prior to the trial court's October 20, 2020 notice.
Appointment of Counsel
To the extent that Matthews argues the trial court erred in failing to appoint him counsel, we overrule his point of error. A pro se litigant is held to the same standard as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied). On appeal, as at trial, a pro se appellant must properly present his case. Id. at 678. Pursuant to the Rules of Appellate Procedure, appellant's brief must contain a "succinct, clear, and accurate statement of the arguments made in the body of the brief" with "appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h), (i). Rule 38 requires an appellant to provide the court with such discussion of the facts and relevant authorities as may be necessary to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). This is not accomplished merely by uttering brief conclusory statements. Id. An issue on appeal unsupported by argument or citation to legal authority presents nothing for the court to review. Strange, 126 S.W.3d at 678.
In the portion of his brief entitled "Exceptional Circumstances," Matthews asserts that "[t]his appeal is exceptional, because liberally construed, appellant's allegation(s) raise a claim of actual innocence, which 'serves as a gateway through which a petitioner may pass . . . (to excuse) the expiration of limitations." He claims that the failure to appoint him counsel constitutes a "deprivation[] of Right Constituting D[e]liberate Indifference, or/and Reckless Disregard for Truth under the Fourteenth Amendment." Matthews cites several cases listing the factors courts consider to determine whether exceptional circumstances warrant the appointment of counsel in civil cases. But he provides no substantive analysis of those authorities nor does he explain how the factors apply to the facts of his case to demonstrate the trial court abused its discretion. See Kozera v. Velemir, No. 01-17-00290-CV, 2018 WL 6542584, at *5 (Tex. App.-Houston [1st Dist.] Dec. 13, 2018, pet. denied) (mem. op.) (concluding defendant waived issue on appeal where he failed to provide substantive analysis showing how cited authority applied to facts of case and did not provide any legal analysis to support argument); Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex. App.-El Paso 2018, no pet.) (holding defendant waived argument by "provid[ing] no citation to authority, nor appl[ying] applicable law to the facts of the case in support of her second issue"); Marin Real Estate Ptrs. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.-San Antonio 2011, no pet.) ("A failure to provide substantive analysis of an issue waives the complaint."). Matthews' brief also lacks citations to the record. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.) ("Importantly, statements of fact must be supported by direct references to the record that are precise in locating the fact asserted. If record references are not made or are inaccurate, misstated, or misleading, the brief fails."). Given these deficiencies, we conclude Matthews waived his issue on appeal.
McQuiggin v. Perkins, 569 U.S. 383 (2013) (writ of habeas corpus), Schlup v. Delo, 513 U.S. 298 (1995) (same), and Naranjo v. Thompson, 809 F.3d 793 (5th Cir. 2015) (42 U.S.C. § 1983 claim).
Even absent waiver, we conclude Matthews failed to establish the existence of exceptional circumstances. Matthews cites Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015) in which the United States Fifth Circuit enumerated several factors a trial court should evaluate to determine whether exceptional circumstances warrant the appointment of counsel in civil cases, including (1) the type and complexity of the case, (2) the petitioner's ability to present and investigate his case, (3) the presence of evidence that largely consists of conflicting testimony so as to require skill in presentation of evidence and in cross-examination, and (4) the likelihood that appointment will benefit the petitioner, the court, and the defendants by shortening the trial and assisting in just determination. Id. at 799. Nothing in the record addresses these factors. Thus, notwithstanding Matthews' conclusory assertions that this case is exceptional because his allegations "raise a claim of actual innocence" and his "suit will consist in large part of conflicting testimony," Matthews has not shown the existence of exceptional circumstances.
Dismissal for Want of Prosecution
Under the portion of his brief entitled "Dismissal for Want of Prosecution," Matthew contends the trial court erred by dismissing his case for want of prosecution because although he "filed all of the proper documents to legally prosecute this suit . . . appellant was not granted counsel or allowed to represent himself." And, in the "Statement of Case" section of his brief, he argues "he was not allowed to prosecute his suit either in person, via internet, by phone, etc." Although his argument is not clear, we liberally construe Matthews's allegations as a complaint that he was not permitted to appear either in person or by alternative means at the dismissal/trial docket on December 17, 2020.
A. Standard of Review and Applicable Law
We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Wright v. Tex. Dep't of Crim. Justice-Inst'l Div., 137 S.W.3d 693, 696 (Tex. App.-Houston [1st Dist] 2004, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules and principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). That a trial court may decide a matter within its discretion differently than an appellate court would in similar circumstances does not demonstrate an abuse of discretion. Ringer v. Kimball, 2 74 S.W.3d 865, 867 (Tex. App.-Fort Worth 2008, no pet.).
A trial court's authority to dismiss a case for want of prosecution stems from Rule 165a of the Texas Rules of Civil Procedure and from the court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A trial court may dismiss a case for want of prosecution when (1) a party seeking affirmative relief fails to appear for any hearing or trial of which the party had notice, (2) the case is not disposed of within the time standards of the Supreme Court, or (3) the trial court finds that the case has not been prosecuted with due diligence. Wright, 137 S.W.3d at 696 (citing City of Houston v. Robinson, 837 S.W.2d 262, 264-65 (Tex. App.-Houston [1st Dist.] 1992, no writ)). The appellant bears the burden of presenting a record establishing the trial court abused its discretion in dismissing his case. See Dhanani v. J & N Global Constr. LLC, No. 01-18-01051-CV, 2019 WL 2750601, at *2 (Tex. App.-Houston [1st Dist.] July 2, 2019, no pet.) (mem. op.); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).
Relevant here, Subsection (1) of Rule 165a, entitled "Failure to Appear," expressly authorizes the trial court to dismiss a pending cause for want of prosecution "on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice." Tex.R.Civ.P. 165a(1). A trial court must dismiss a case for want of prosecution at the dismissal hearing "unless there is good cause for the case to be maintained on the docket." Id.; Graves v. Atkins, No. 01-04-00423-CV, 2006 WL 3751612, at *1 (Tex. App.-Houston [1st Dist.] Dec. 21, 2006, no pet.) (mem. op.).
B. Analysis
Matthews filed suit against S.R. seeking affirmative relief. In his appellate brief, Matthews acknowledges the trial court sent him notice of the trial/dismissal docket on October 20, 2020, stating that trial was set for December 17, 2020. The notice also informed Matthews that his appearance at the docket call was mandatory. Matthews did not appear at the dismissal docket and the trial court dismissed his case.
Matthews also acknowledged in his motion for continuance that the trial court notified him on October 20, 2020 that his case was set on the trial/dismissal docket for December 17, 2020.
Matthews does not provide any substantive analysis or explain why the court committed error by "not allow[ing him] to prosecute [his] suit either in person, via internet by phone, etc.," nor does he include any citations to the record. For that reason, he has presented nothing for our review. Even were we to consider his point of error, we conclude the trial court did not abuse its discretion in dismissing Matthews' suit.
All litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time in a meaningful manner. Larson v. Giesenschlag, 368 S.W.3d 792, 796-97 (Tex. App.-Austin 2012, no pet.); Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.-Houston [1st Dist.] 2000, no pet.), disapproved on other grounds, In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). Litigants cannot be denied access to the courts simply because they are inmates. See Hudson v. Palmer, 468 U.S. 517, 523 (1984); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). But an inmate does not have an absolute right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d at 165. Rather, courts weigh an inmate's right of access to the courts against protecting the integrity of the correctional system. Id.
The Texas Supreme Court has identified several factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant, including (1) the cost and inconvenience of transporting the prisoner to the courtroom, (2) the security risk the prisoner presents to the court and public, (3) whether the prisoner's claims are substantial, (4) whether the matter's resolution can be delayed reasonably until the prisoner's release, (5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot effectively be presented by deposition, telephone, or some other means, (6) whether the prisoner's presence is important to judge his demeanor and credibility, (7) whether the trial is to the bench or a jury, and (8) the prisoner's probability of success on the merits. Id. at 165-66. A litigant's status as an inmate does not alter his burden to identify with sufficient specificity the grounds for the ruling sought. Id. at 166; see Tex. R. App. P. 33.1(a)(1)(A). Thus, the burden is on the inmate to establish a right to the requested relief. Z.L.T., 124 S.W.3d at 166. If the inmate fails to present sufficient information for the trial court to evaluate the inmate's bench warrant request under the Z.L.T. factors, the trial court does not abuse its discretion in denying the request. Id. The decision to grant or deny a request for a bench warrant lies within the trial court's discretion. See In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.-Texarkana 2003, no pet.).
Matthews filed a motion for bench warrant with the trial court on November 9, 2020. The record contains no express rulings by the trial court on the motion. It is apparent from the record, however, that the trial court implicitly denied Matthews' motion for bench warrant because the trial court dismissed his case for want of prosecution on December 17, 2020, the date of the dismissal/trial docket, after giving notice that appearance at the docket call was mandatory. See Ringer, 274 S.W.3d at 867 (concluding trial court implicitly overruled inmate's bench warrant motion and alternative request for hearing by video conference, although record contained no express ruling by trial court on motion, because trial court dismissed case for want of prosecution on date of pretrial hearing after giving notice that party's failure to appear at hearing would result in dismissal); In re J.M.L.P., No. 06-15-00043-CV, 2015 WL 7540553, at *3 (Tex. App.-Texarkana Nov. 25, 2015, pet. denied) (mem. op.) (concluding trial court implicitly denied defendant inmate's motion for telephonic or video conference where trial court proceeded to trial without ruling on motion).
Matthew's motion does not contain information from which the trial court could assess the need for his personal appearance at the December 17, 2020 trial/dismissal docket. The only information in the motion pertinent to Matthews' request for a bench warrant is that the case was set on the trial/dismissal docket for Dec. 17, 2020 and "is of imperative public importance because the results could lead to an innocent man (plaintiff) getting out of prison." While this information is relevant to one of the Z.L.T. factors (whether the inmate's claim is substantial), neither the bench warrant motion nor Matthews' pleading presented information sufficient for the trial court to evaluate the remaining Z.L.T. factors. See McDorman v. Rogers, No. 09-06-514-CV, 2008 WL 1970928, at *9 (Tex. App.-Beaumont May 8, 2008, no pet.) (mem. op.) (noting that although inmate's pleading presented facts pertinent to one Z.L.T. factor, neither pleadings nor bench warrant motion presented facts sufficient for the trial court to evaluate remaining factors and thus lacked sufficient information to demonstrate trial court abused its discretion in failing to act on motion).
Because Matthews failed to meet his burden of presenting adequate information to enable the trial court to assess the need for his personal appearance at the dismissal/trial docket, the trial court did not abuse its discretion by not allowing him to appear in person at the docket hearing. See In re Z.L.T., 124 S.W.3d at 166 ("Although Thompson listed the Stone factors in his request, he failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system. In fact, the only pertinent information contained in the request was that he was located in Rosharon, Texas, more than 200 miles from the trial court."); see also Interest of K.H., No. 02-19-00247-CV, 2019 WL 6248557, at *15 (Tex. App.-Fort Worth Nov. 22, 2019, no pet.) (mem. op.) (concluding father failed to carry burden to demonstrate right to appear at trial where bench warrant motion provided no factual information other than fact he was "presently confined in the Tarrant County Jail located at 100 N. Lamar St., Fort Worth, Texas" and that "necessity exists for the issuance of a bench warrant for [defendant] to be before th[e] Court for the purpose of a jury trial in which a termination is requested of [defendant's] parental rights"); De La Cerda v. Jaramillo, No. 01-17-00595-CV, 2018 WL 1189065, at *7 (Tex. App.- Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem. op.) (concluding trial court did not abuse discretion in denying pro se inmate's motion for bench warrant where he did not present any information to trial court from which it could have assessed necessity of his appearance at pretrial conference); Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App.-Dallas 2009, no pet.) (finding no abuse of discretion where only information pro se inmate presented to trial court in connection with bench warrant request was fact of his incarceration and inability to appear at hearing).
Matthews also asserts the trial court erred in dismissing his suit for want of prosecution because it did not allow him to prosecute his suit "via internet, by phone, etc." "[T]o be entitled to appear in court in person or through alternate means, such as video communications technology, the burden rests squarely on the prisoner-inmate to request access to the court through these alternate means and to demonstrate why a trial court should authorize them." Brown v. Preston, No. 01-16-00556-CV, 2017 WL 4171896, at *3 (Tex. App.-Houston [1st Dist.] Sept. 21, 2017, no pet.) (mem. op.) (internal quotations omitted); see Tex. R. App. P. 33.1(a)(1)(A). "Trial courts have no independent duty, when a litigant is a pro se prison inmate, to inquire into relevant facts not provided by the prison-inmate seeking affirmative relief." Graves, 2006 WL 3751612, at *3 (citing In re. Z.L.T., 124 S.W.3d at 166). This reasoning is consistent with settled law holding that pro se litigants must comply with procedural rules and are held to the same standards as licensed attorneys. See Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.-San Antonio 1999, pet. denied); Chandler v. Chandler, 991 S.W.2d 367, 378-89 (Tex. App.-El Paso 1999, pet. denied).
The record does not reflect that Matthews requested alternative means of appearance, such as by telephone, videoconference, or affidavit before the December 17, 2020 trial/dismissal docket, despite being aware of the date of the hearing. Having failed to do so, Matthews did not preserve the right to appear by alternate means. See Camero v. Camero, No. 01-15-00860-CV, 2017 WL 219159, at *5 (Tex. App.-Houston [1st Dist.] Jan. 19, 2017, no pet.) (mem. op.) (holding trial court did not abuse discretion by not allowing inmate to participate in divorce proceeding where record showed that, although he was aware of trial date, defendant made no request before trial to appear by alternative means, such as by telephone conference, deposition, or affidavit, and inmate's post-trial motion for telephonic hearing did not preserve any complaint by inmate that he was not allowed to participate in trial by alternate means); Graves, 2006 WL 3751612, at *3 (concluding trial court did not err in dismissing inmate's suit for failure to appear where inmate failed to preserve right to appear at trial, either in person or by alternative means, because he did not request that bench warrant be issued so that he could appear in person to prosecute his case or by alternative means of appearance such as videoconference or affidavit); cf. Barton v. Off. of Att'y Gen., No. 01-19-00677-CV, 2021 WL 4897827, at *6 (Tex. App.-Houston [1st Dist.] Oct. 21, 2021, no pet.) (mem. op.) (concluding trial court abused its discretion by not allowing inmate to appear at final hearing by alternative means, such as phone or videoconference, where inmate filed motion for issuance of bench warrant requesting to appear in person or by alternative means).
Under these circumstances, we conclude the trial court did not abuse its discretion by dismissing Matthews' suit for want of prosecution. See Tex. R. Civ P. 165a(1). We overrule Matthews' issue.
Because we conclude the trial court did not abuse its discretion in dismissing Matthews' suit for want of prosecution, we need not address the remaining arguments in Matthews' brief. See Tex. R. App. P. 47.1.
Conclusion
We affirm the trial court's order dismissing Matthews' suit for want of prosecution. All pending motions are dismissed as moot.