COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-114-CV
R. W. ROGERS, SR. APPELLANT
V.
ARLETHA GARLAND FRANKLIN APPELLEE
------------
FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellant R.W. Rogers, Sr. complains that the trial court erred by
dismissing his case against Appellee Arletha Franklin for want of prosecution.
We will affirm.
1
… See T EX. R. A PP. P. 47.4.
I. B ACKGROUND AND P ROCEDURAL H ISTORY
Rogers, an inmate serving a forty-year sentence, filed this suit and appeal
pro se. In the underlying suit, filed on June 20, 1997, Rogers alleged that
Franklin, a longtime family friend, had illegally obtained proceeds from four life
insurance policies after the death of Rogers’s mother. In his original petition,
Rogers requested that the trial court serve Franklin by U.S. mail. The trial court
attempted service, but someone other than Franklin signed the return receipt,
rendering service invalid. On October 7, 1997, before the return receipt with
the incorrect signature was filed, the trial court notified Rogers by letter of its
intent to set the case on the dismissal docket. In the letter, the trial court judge
told Rogers that the case had been on file in excess of ninety days “without
service being effected.”
The trial court sent a second notice of intent to dismiss, stating that the
defendant had not filed an answer and that Rogers had sixty days to take all
appropriate actions to secure a default judgment or the case would be set for
dismissal for want of prosecution. Rogers then sent a letter to the trial court
and requested that it enter a default judgment. The trial court did not respond,
prompting several letters from Rogers demanding to know why the trial court
had not ruled on his request. In total, the trial court sent Rogers eight notices
of intent to dismiss the case, and Rogers filed five motions to maintain the case
2
on the docket. On October 5, 2006, the trial court granted Rogers’s fifth
motion to maintain the case on the docket and sent a letter to Rogers informing
him that he had never completed service on Franklin because someone other
than Franklin had signed the return receipt. The trial court judge also informed
Rogers that the court would not maintain the case on the docket again if Rogers
did not pursue his case with due diligence, including securing good service on
Franklin by December 7, 2006.
On October 20, 2006, Rogers responded to the trial court’s notice by
filing a motion to re-issue service of process, in which he asked the court to
serve Franklin by U.S. mail. On that same day, Rogers sent a letter to the trial
court requesting that it serve Franklin by U.S. mail or for it to “exercise its
power to call upon the Tarrant [County] Deputy Marshal’s [Department] to
serve the Defendant[,] and if need be[,] the U.S. [Deputy Marshal’s Department]
pursuant to [Federal Rule of Civil Procedure 4-(b)ii-iii] . . . .” On October 25,
2006, the trial court re-attempted to serve Franklin by U.S. certified mail. The
citation returned unclaimed on December 6, 2006, and pursuant to the last
letter of intent to dismiss, the trial court dismissed the case for want of
prosecution on December 7, 2006, nine and one-half years after Rogers filed
his original petition.
3
II. D ISMISSAL FOR W ANT OF P ROSECUTION
In his first two issues, Rogers argues that the trial court erred by
dismissing his case for want of prosecution because (1) it failed to inform him
that Franklin had not been properly served and (2) it did not re-issue service by
hand delivery in the manner in which Rogers had requested.
We review a trial court’s order dismissing a case for want of prosecution
for a clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.
1997); Smith v. McKee, 145 S.W.3d 299, 302 (Tex. App.—Fort Worth 2004,
no pet.). A trial court abuses its discretion when it acts arbitrarily or
unreasonably, or without reference to guiding rules and principles. McKee, 145
S.W.3d at 302–03.
A trial court may dismiss a case for want of prosecution under rule 165a
of the Texas Rules of Civil Procedure or under its inherent power. See T EX. R.
C IV. P. 165a; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 850 (Tex.
2004); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
1999). A trial court may dismiss a case under rule 165a if a party seeking
affirmative relief fails to appear for any hearing or trial of which the party had
notice or when a case is not disposed of within the time standards promulgated
by the supreme court. T EX. R. C IV. P. 165a(1)–(2). In addition, the common
law vests the trial court with the inherent power to dismiss independently of
4
the rules of procedure when a plaintiff fails to prosecute his or her case with
due diligence. Villarreal, 994 S.W.2d at 630. To determine whether due
diligence exists, the trial court may consider the entire history of the case,
including the length of time the case was on file, the extent of activity in the
case, whether a trial setting was requested, and the existence of reasonable
excuses for delay. Polk v. Sw. Crossing Homeowners Ass’n, 165 S.W.3d 89,
97 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
In all but the first two notices of intent to dismiss, the trial court informed
Rogers that it intended to dismiss the case pursuant to both rule 165a and its
inherent power. Likewise, the trial court stated in its order dismissing the case
that it was acting based on its express authority in rule 165a and its inherent
power. The trial court specifically stated in the final order that it found that
Rogers had failed to take action as requested by the court and prosecute the
case with due diligence, thus implicating its inherent power. Moreover,
Rogers’s complaints are directed at the trial court’s dismissal based on due
diligence as it pertains to incomplete service of process. Thus, we will review
the record to determine whether the trial court abused its discretion by
dismissing the case under its inherent power.
5
A. Notice of Incomplete Service of Process
Rogers first complains that the trial court erred by dismissing the case
because it failed to inform him for nine years that Franklin had not been
properly served. The record belies any assertion that he was wholly unaware
that service had not been completed because the trial court sent a letter to
Rogers on October 7, 1997, stating that service had not been “effected.”
Rogers acknowledged that he had received the trial court’s letter stating that
service had not been completed in a letter he sent to the trial court on
November 14, 1997. In that letter, Rogers asked the trial court to see that
service was completed but gave no instruction on how to carry out this request.
The record shows that when the trial court sent the letter to Rogers on
October 7, 1997, the return receipt had not been filed with the clerk evidencing
an improper signature—the error that precluded complete service. Thus,
despite having notice that service had not been “effected,” Rogers asserts that
he was unaware of the exact reason why service was incomplete. From his
communications with the trial court, it appears that Rogers thought that the
trial court had never issued citation at all. The return receipt with the incorrect
signature was on file since October 14, 1997, and would have answered any
question as to why service was incomplete. There is no evidence on the record
that shows that Rogers ever requested a copy of the return receipt, but we
6
acknowledge that Rogers requested that the trial court inform him of what was
wrong with his suit, whether there was anything that was missing or needed
to be supplied, and whether citation was delivered. He specifically asked what
date citation was delivered, and if it was not delivered, why it was not
delivered. The trial court failed to respond to any of these inquiries until it sent
Rogers a letter on October 5, 2006, and told him that someone other than
Franklin had signed the return receipt. We agree with Rogers that the record
shows a general lack of communication on the part of the trial court regarding
these matters, but because the trial court eventually re-attempted service on
Franklin before it dismissed the case, among other reasons discussed below, we
cannot say that this deficient communication rendered the dismissal an abuse
of discretion.
B. Delivery of Citation
Rogers also complains that the trial court erred by dismissing his case
because it failed to act on his motion to re-issue service of process by not hand
delivering the citation to Franklin. Rule 99 of the Texas Rules of Civil Procedure
governs issuance and form of citation, stating that it is the clerk’s duty, when
requested, to issue a citation and deliver the citation as directed by the
requesting party. T EX. R. C IV. P. 99(a). The clerk does not complete his duty
under the rule until he delivers the citations as directed. Boyattia v. Hinojosa,
7
18 S.W.3d 729, 733–34 (Tex. App.—Dallas 2000, pet. denied). A party may
ordinarily rely on the clerk to perform his duty within a reasonable time. Id. at
734. But when a party learns, or by the exercise of diligence should have
learned, that the clerk has failed to fulfill his duty under rule 99, it is incumbent
upon the party to ensure that the job is done. Id.
Rogers requested in his motion to re-issue that the trial court re-issue
citation to Franklin by U.S. mail. He then requested by letter that the trial court
re-issue citation by U.S. mail or “in light [of] the prior problems,” for the trial
court to order a U.S. marshal or deputy marshal to deliver citation under Federal
Rule of Civil Procedure 4. See F ED. R. C IV. P. 4(c)(3). Rogers maintained that
he was entitled to such action by the trial court because of his indigent status.
See id. (“At the plaintiff’s request, the court may order that service be made
by a United States marshal or deputy marshal or by a person specially
appointed by the court. The court must so order if the plaintiff is authorized to
proceed in forma pauperis under 28 U.S.C. § 1915 . . . .” (emphasis added)).
Rogers’s assertions are misplaced. First, Rogers mistakenly requested action
by a state district court under a Federal Rule of Civil Procedure. Second,
although Rogers maintained that he was indigent, he never filed an affidavit or
8
a valid substitute with the trial court to that effect.2 Third, Rogers was not
clear on which method the trial court was to use in serving Franklin; he
requested that the trial court mail the citation or have a marshal deliver it. He
also stated in one paragraph of the letter to the court that he was enclosing an
envelope and stamps to send citation to Franklin and then in the next paragraph
of the document requested that a marshal deliver citation. For all the above
reasons, the trial court properly responded to the motion to re-issue by
attempting service by U.S. certified mail within a reasonable time and dismissed
the case for want of prosecution once the return receipt came back unclaimed.
Although Rogers’s complaint centers mainly on the motion to re-issue, we
note that over the nine and one-half years that the case was on the trial court’s
docket, Rogers requested four times, not including the original petition or
2
… Even though Rogers incorrectly relied on a Federal Rule of Civil
Procedure, he was likewise required under a similar Texas Rule of Civil
Procedure to file an affidavit of indigency to demand that the trial court send
citation to Franklin. See T EX. R. C IV. P. 145(a) (“Upon the filing of the affidavit
[of indigency], the clerk must docket the action, issue citation and provide such
other customary services as are provided any party.” (emphasis added)); Aguilar
v. Stone, 901 S.W.2d 955, 955 (Tex. App.—Houston [1st Dist.] 1995, orig.
proceeding) (stating that a pro se plaintiff who files an affidavit of indigency
under rule 145 is entitled to the issuance of citation). Alternatively, because
he was an inmate, Rogers could have filed an unsworn declaration of indigency
in lieu of an affidavit of indigency, but he failed to do so. See T EX. C IV. P RAC.
& R EM. C ODE A NN. §§ 132.001–.003 (Vernon Supp. 2007); Thomas v. Pankey,
837 S.W.2d 826, 830 (Tex. App.—Tyler 1992, no writ). Rogers has, however,
filed a pauper’s affidavit with this court to proceed as an indigent on appeal.
9
motion to re-issue, to have the trial court serve Franklin. However, none of
these requests informed the trial court of the manner in which the clerk was to
serve Franklin. See Allen v. Rushing, 129 S.W.3d 226, 231 (Tex.
App.— Texarkana 2004, no pet.) (holding in part that the trial court did not
abuse its discretion by dismissing a pro se inmate’s case for want of
prosecution when he requested that the court send citation but failed to specify
a manner of delivery of citation); see also Cordova v. Hodge, No. 13-06-00640-
CV, 2007 WL 4112018, at *4 (Tex. App.—Corpus Christi Nov. 20, 2007, no
pet.) (mem. op.) (not designated for publication) (same).
Two times, Rogers requested that the trial court serve Franklin pursuant
to various Federal Rules of Civil Procedure, some of which list ways to serve
a defendant; however, Rogers never specified a particular method. Additionally,
Rogers asked that the trial court send Franklin, by U.S. mail, a copy of the
motions and letters that contained his requests for issuance of service, but he
never specifically addressed the delivery method for issuance of service. Thus,
Rogers failed to give the clerk any direction regarding the method and manner
of delivery as required under rule 99. See T EX. R. C IV. P. 99, 103 (who may
serve), 106 (method of service); Allen, 129 S.W.3d at 231. In any event,
Rogers was not harmed by the trial court’s failure to send citation pursuant to
10
these general requests because the trial court eventually re-attempted service
on Franklin before it dismissed the case.3
C. Due Diligence
Rogers’s case remained on the trial court’s docket for nearly a decade.
During these nine and one-half years, Rogers never secured service of process
on Franklin. And although, at times, Rogers actively tried to pursue the case
by requesting a default judgment, filing discovery motions, writing letters
regarding the status of his case, and submitting proposed pretrial orders, he
also remained silent for months, and sometimes years, at a time. For instance,
on July 16, 1998, Rogers sent a letter to the trial court and requested that it
explain why his default judgment had not been granted but failed to take any
further action until he filed a motion to maintain the case on the docket
eighteen months later on January 31, 2000. Again, Rogers sent a letter to the
trial court on March 2, 2001 but failed to take any further action for thirteen
months, when he filed a motion to maintain the case on the docket on April 18,
2002. The longest delay occurred when Rogers filed a motion to maintain the
3
… We also note that Rogers stated in a motion to maintain the case on
the docket filed on April 18, 2002, that he would file a writ of mandamus if the
trial court did not complete service on Franklin, but he failed to take any such
action.
11
case on the docket on May 21, 2003, and remained silent for over three years
until he filed another motion to maintain the case on the docket on September
28, 2006. None of Rogers’s responses listed above were self-initiated but were
instead prompted by the trial court’s notices of intent to dismiss the case.
Further, Rogers has provided no explanations for these delays, and we find
none on the record.
We acknowledge the challenges that Rogers faced as a pro se plaintiff in
prison, but as a pro se plaintiff in a civil case, he had the burden of prosecuting
his case with diligence the same as any licensed attorney. Allen, 129 S.W.3d
at 231. We also note that Rogers requested several times for the trial court to
appoint an attorney to help him pursue his case with diligence. Rogers
repeatedly attempted to cast this case as a civil rights action and alleged that
Franklin “violated his [c]onstitutional right to [d]ue process and [e]qual
[p]rotection,” but he never showed the trial court that this was an “exceptional”
civil case, in which the “public and private interests at stake [were] such that
the administration of justice [would have been] best served by appointing a
lawyer.” See Travelers Indemnity Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex.
1996); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston [1st
Dist.] 1996, no writ). Rogers pointed to his alleged mental incapacity as a
bipolar patient taking medication as an impairment on his ability to pursue his
12
case with diligence, but there is nothing in the record that demonstrates the
severity of Rogers’s disorder or its effect on his ability to communicate with the
trial court.
Even though we have noted a general lack of communication by the trial
court, in reviewing the entire record, we cannot say that the trial court abused
its discretion by dismissing the case for want of prosecution when it attempted
on behalf of Rogers to complete service of process twice, granted five motions
to maintain the case on the docket, and kept the case on the docket for nine
and one-half years in light of year-long voids in activity and incomplete service
of process. For the above reasons, we overrule Rogers’s first two issues.
III. R ELIEF FROM J UDGMENT
In his third issue, Rogers argues that the trial court erred by refusing to
rule on his “relief from judgment” filed on December 27, 2006. In this motion,
Rogers asked the trial court to grant him relief from the order dismissing the
case and to attempt to secure service of process for a third time. However, in
order for the trial court to take such action, Rogers had to file a verified motion
to reinstate the case. See T EX. R. C IV. P. 165a. The relief from judgment filed
with the trial court was not verified,4 and therefore, cannot be construed as a
4
… As an inmate in prison, Rogers could have also filed unsworn
declarations in lieu of a verified motion to reinstate. See T EX. C IV. P RAC. & R EM.
13
motion to reinstate. Cf. City of McAllen v. Ramirez, 875 S.W.2d 702, 705
(Tex. App.—Corpus Christi 1994, no writ) (“The requirement of a verified
motion to reinstate is meaningless if the same general relief may be requested
by filing an unverified motion for new trial.”). We accordingly overrule Rogers’s
third issue.
IV. C ONCLUSION
Having overruled all of Rogers’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: HOLMAN, GARDNER, and WALKER, JJ.
DELIVERED: April 24, 2008
C ODE A NN. §§ 132.001–.003 (Vernon Supp. 2007). However, the language at
the end of the relief from judgment—“all of the aforesaid is true and
correct”—does not meet the requirements of section 132.002 because it does
not state that the declarations were made “under penalty of perjury.” See id.
§ 132.002 (“An unsworn declaration made under this chapter must be: (1) in
writing; and (2) subscribed by the person making the declaration as true under
penalty of perjury.”); Bahm v. State, 219 S.W.3d 391, 394 (Tex. Crim. App.
2007) (stating that “[t]he only phrase that the Legislature actually mandates
should be included in such declarations is “under penalty of perjury”); Mitchell
v. Houston Hous. & Urban Dev., No. 14-00-00142-CV, 2000 WL 1201698, at
*2 (Tex. App.—Houston [14th Dist.] Aug. 24, 2000, pet. denied) (not
designated for publication) (holding that the appellant failed to substantially
comply with the requirements for an unsworn declaration because he failed to
state that his declarations in his motion to reinstate were made “under penalty
of perjury”).
14