Affirmed and Memorandum Opinion filed August 26, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00669-CV
EDDIE ROY TAYLOR, Appellant
V.
JANICE RENEE TAYLOR BRIDGES, Appellee
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Court Cause No. 13-02-013326 CV
MEMORANDUM OPINION
This is an appeal from the dismissal for want of prosecution of pro se
appellant Eddie Roy Taylor’s petition for divorce. Taylor contends the trial court
erred in dismissing his case because: (1) the case was dismissed for failure to
appear, but the trial court’s notice of intent to dismiss was based on want of
prosecution, and (2) the trial court never considered his motion to proceed by
telephone conference before dismissing his case. We affirm.
BACKGROUND
Taylor filed his petition for divorce from appellee Janice Renee Taylor
Bridges on February 4, 2013; he requested that citation be issued to Bridges on
February 21. On May 8, the trial court issued a notice of intent to dismiss, stating
that court records indicated the case was eligible for dismissal for want of
prosecution because it had been on file for more than 90 days without service of
citation being perfected. The court’s notice advised Taylor that the court would
consider retention of the case if a verified motion to retain was filed specifying the
due diligence undertaken and showing good cause why the case should not be
dismissed. The notice specified that the motion to retain “must be filed seven (7)
[days] prior to the hearing date” designated as June 28, 2013, at 1:30 p.m.
On May 31, Taylor filed a verified motion to retain,1 asserting that the case
was not appropriate for dismissal under the “90-day rule” because nothing
indicated it was an uncontested divorce. He further asserted that he had shown
“diligence in prosecuting his divorce act” because he was “under the impression”
that Bridges had been served but was mistaken. He sought more time to serve
Bridges if the court found that he had not served her because he did not
“intentionally delay[] the process, and any delay would be due[] to a
misunderstanding that the clerk had served the process or had the proper
official . . . do so.” Taylor acknowledged in this motion that it was his
responsibility to see that service was properly accomplished and properly reflected
in the record. That same day, Taylor filed a request to the clerk to issue citation on
Bridges; he attached a copy of this letter to his motion to retain. Taylor also filed a
“Request for Paper Hearing or That Hearing Be Held by Telephone” referencing
1
Taylor is an inmate incarcerated in the Texas Department of Criminal Justice. He
substantially complied with the unsworn declaration statute for inmates. See Tex. Civ. Prac. &
Rem. Code Ann. § 132.001(e).
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the June 28 hearing date specified in the trial court’s notice of intent to dismiss as
well as his motion to retain.
On June 28, the trial court held the scheduled dismissal hearing. At this
hearing, the following transpired:
THE COURT: Eddie Taylor and Janice Taylor Bridges. Is Mr.
Taylor or Ms. Bridges present?
(No response)
THE COURT: No answer. The case will be dismissed.
That same day, the trial court signed an order of dismissal for want of prosecution.
This order provides:
BE IT REMEMBERED, on this date, after due notice required by law,
came on to be heard the above styled and numbered cause on the
Dismissal Docket, and neither party having appeared to show cause
why such case should not be dismissed from the docket of this court;
it is accordingly, ORDERED, ADJUDGED, and DECREED that this
cause be and the same hereby is dismissed for Want of Prosecution.
Without filing a motion to reinstate or a motion for new trial, Taylor timely noticed
his appeal from this dismissal order.
ANALYSIS
In his first issue, Taylor asserts that the trial court erred by dismissing his
case for “failure to appear” when its notice of intent to dismiss indicated that it
would dismiss the case for “want of prosecution.” Taylor urges that the dismissal
of his suit on a different basis than that stated in the notice constitutes a violation
of his due process rights. In his second issue, he urges that the trial court abused
its discretion by refusing to consider his motion to appear via telephone for the
dismissal hearing.
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A trial court’s authority to dismiss for want of prosecution arises from the
express authority of Texas Rule of Civil Procedure 165a as well as the court’s
inherent power to manage its own docket. Villareal v. San Antonio Truck & Equip.
Co., 994 S.W.2d 628, 630 (Tex. 1999). A court may dismiss a case for want of
prosecution when, as is relevant here, it finds that the case has not been prosecuted
with due diligence. See id. The trial court must provide a party with notice and
opportunity to be heard before the trial court may dismiss a case for want of
prosecution. Id. A failure to provide adequate notice of the court’s intent to
dismiss for want of prosecution requires reversal. Enriquez v Livingston, 400
S.W.3d 610, 615 (Tex. App.—Austin 2013, pet. denied) (citing Villareal, 994
S.W.2d at 628.). Due process considerations are satisfied when “‘notice is
reasonably calculated, under the circumstances, to apprise interested parties of the
pendency of the action and afford them the opportunity to present their
objections.’” Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988) (quoting
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). We may
reverse a trial court’s dismissal for want of prosecution only if the court clearly
abused its discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per
curiam).
In his first issue, Taylor asserts the trial court abused its discretion and
violated his due process rights by dismissing his case for failure to appear rather
than for want of prosecution. First, we note that Taylor failed to raise his due
process challenge in the trial court by filing a motion to reinstate or motion for new
trial. But it is well-settled that even constitutional issues, such as due process
claims, must be properly raised in the trial court or they are waived on appeal. See
Franklin v. City of Fort Worth, No. 02-12-00456-CV, 2014 WL 3696092, at *1
(Tex. App.—Fort Worth July 24, 2014, no pet. h.) (mem. op.) (“[B]ecause Franklin
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did not raise his due process complaint in the trial court, Franklin failed to preserve
this complaint for appellate review.”); see also Nivens v. City of League City, 245
S.W.3d 470, 475 n.6 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (taxpayers
failed to preserve argument that trial court violated their due process rights by
granting plea to the jurisdiction when they did not raise complaint in trial court).
Moreover, even if he had preserved his due process complaint for our
review, as shown above, the notice of dismissal sent to Taylor informed him that
his case was eligible for dismissal for want of prosecution because it had been “on
file for more than 90 days without service of citation being perfected on any
respondent.” The notice further provided Taylor with an opportunity to be heard
before dismissal by filing a verified motion to retain within seven days before the
dismissal hearing. In turn, the dismissal order clearly states that Taylor’s case was
dismissed for want of prosecution. The notice provided Taylor the reason for
dismissal and an opportunity to respond; thus, his due process rights were not
violated.2 See Enriquez, 400 S.W.3d at 615–16; cf. Perlata, 485 U.S. at 86
2
Importantly, although the dismissal order states that neither party “appeared to show
cause why [this] case should not be dismissed,” Taylor does not assert that the trial court erred in
refusing to consider his motion to retain as an “appearance.” Further, Taylor does not complain
that the trial court abused its discretion in concluding that he failed to prosecute the action, nor
does he challenge the trial court’s implicit denial of his motion to retain. And, Taylor does not
complain that he had inadequate time to respond to the threatened dismissal; he filed two
responsive pleadings before the dismissal order was signed, as well as a request for service of
citation on Bridges. Cf. Enriquez, 400 S.W.3d at 615–16 (noting that plaintiff filed three
responsive pleadings before the dismissal order was signed). In sum, Taylor has failed to
challenge the trial court’s denial of his motion to retain and instead focuses his argument entirely
on the asserted difference between the stated reason for dismissal in the motion to dismiss and
the language of the dismissal order. Thus, whether the trial court erred in denying his motion to
retain is not properly before us.
Finally, the record reflects that service of citation on Bridges was perfected on June 25,
2013, three days before the trial court’s dismissal hearing. However, nothing indicates the trial
court was made aware of this fact: As emphasized above, Taylor did not file a motion to
reinstate or motion for new trial. Thus, he failed to notify the trial court that citation had been
perfected. Because he did not raise this issue in the trial court or brief it on appeal, he has
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(reversing on due process grounds because court “assume[d] that the judgment
against him and the ensuing consequences occurred without notice to appellant,
notice at a meaningful time and in a meaningful manner that would have given him
an opportunity to be heard”).
We conclude that Taylor failed to preserve his due process complaint for our
review. Nonetheless, even had he preserved this issue for our review, no violation
of his due process rights is shown on this record, nor did the trial court abuse its
discretion in dismissing his case for want of prosecution. Under these
circumstances, we overrule his first issue.
In his second issue, Taylor complains that the trial court abused its discretion
by refusing to consider his motion to appear via telephone for the dismissal
hearing. It is well-established that litigants cannot be denied access to the courts
on the basis that they are inmates. In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).
Our rules place the burden on litigants to identify with sufficient specificity the
grounds for a ruling they seek; a litigant’s status as an inmate does not alter that
burden. Id.
Here, Taylor’s request states in its entirety:
This court has issued its Notice of Intent to Dismiss, and stated
in such notice that a hearing will be held on June 28, 2013 at 1:30
p.m. The notice advised the plaintiff that the court will consider a
verified motion to retain the case, if filed seven days prior to the
hearing. The plaintiff is filing his Motion to Retain in a timely
manner. If the court can not make a proper determination based on
the motion itself (paper hearing), then the plaintiff requests the he be
waived any error on the basis that he perfected citation before dismissal. See Keough v. Cyrus
USA, Inc., 204 S.W.3d 1, 5–6 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Tex.
R. App. P. 33.1, 38.1 and concluding that even if the trial court failed to notify appellant of its
intent to dismiss, appellant’s failure to raise this issue in the trial court or on appeal waives the
error).
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allowed to attend via telephone (aka telephonic hearing) so that he
may present his motion to the court in a oral manner.
Wherefore, the plaintiff prays that this court consider the proper
procedures for the up coming hearing.
Taylor’s motion included no information that indicated a necessity for his
appearance by telephone and in fact indicated that the telephonic hearing was only
necessary if the court could not make a proper determination based on the motion
itself—i.e., a paper hearing. Under the Montgomery County local rules, a request
for oral argument on a motion “shall be in writing and set forth the reasons for the
necessity of such hearing.” Montgomery Cnty. (Tex.) Cnty. Ct. Loc. R. 2.3(d).
Pro se inmates are held to the same standards as licensed attorneys and must
comply with applicable rules of procedure. See, e.g., Taylor v. Corr. Med. Servs.,
Inc., No. 01-11-00836-CV, 2013 WL 2246052, at *2 (Tex. App.—Houston [1st
Dist.] May 21, 2013, no pet.) (mem. op.); Anderson v. City of Port Arthur, No. 14-
09-00029-CV, 2010 WL 3636134, at *2 (Tex. App.—Houston [14th Dist.] Sept.
21, 2010, no pet.) (mem. op.); White v. Cole, 880 S.W.2d 292, 294 (Tex. App.—
Beaumont 1994, writ denied). Taylor neither explicitly requested oral argument
nor provided reasons for the necessity of such argument in his conditional request.
We conclude that Taylor has failed to show that the trial court abused its
discretion. First, Taylor challenges the trial court’s failure to consider his motion
to appear by telephone. Taylor assumes that because the trial court did not grant
his motion to appear that the trial court did not consider the motion. The record
does not support this assumption. Taylor’s motion asked the trial court to allow
him to participate by telephone if the papers proved insufficient. As discussed
above, the trial court called the dismissal hearing, for which Taylor received
notice. After no one appeared in person to present oral argument, the trial court
ordered the case dismissed for the stated reason: want of prosecution. Taylor
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points to nothing in the record that suggests that the trial court did not, upon the
papers in the file, (a) consider Taylor’s motion to attend by telephone; (b) consider
Taylor’s motion to retain; (c) determine that it was able to resolve Taylor’s motion
to retain without the necessity of oral argument; (d) therefore deny Taylor’s motion
to appear by telephone to provide oral argument; (e) deny Taylor’s motion to
retain; and, finally (f) dismiss the case for want of prosecution.
Further, assuming the trial court did not consider the motion to appear by
telephone conference, Taylor failed to follow the local rules in submitting his
conditional request to participate by telephone. Not only did Taylor’s motion fail
to urge that oral argument was necessary and therefore a telephone hearing was
necessary because Taylor is an inmate, it urged the opposite: appearance by
telephone was requested only if the court determined it was unable to properly
determine the motion without oral argument.
In summary, we cannot say that the trial court did not consider Taylor’s
motion to appear by telephone. We can say that upon the unique facts of this case,
the trial court did not abuse its discretion in conducting the hearing without
granting Taylor’s motion to appear by telephone. We overrule Taylor’s second
issue.
CONCLUSION
Having overruled each of Taylor’s appellate issues, we affirm the trial
court’s dismissal order.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
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