In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00031-CV
______________________________
JOE TURNER, Appellant
V.
JOHN PARKER, INDIVIDUALLY, AND D/B/A
JOHN PARKER'S DISCOUNT TIRES, Appellees
On Appeal from the 6th Judicial District Court
Fannin County, Texas
Trial Court No. 31,984
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Joe Turner appeals the trial court's dismissal of his lawsuit for want of prosecution, claiming he did not have notice of the hearing on the defendants' motion to dismiss. Turner also contends the trial court erred by denying his motion for additional time in which to hire a new trial attorney. We affirm.
I. Background
On May 24, 1996, Turner sued John Parker as an individual and in Parker's capacity as the owner of John Parker's Discount Tires (collectively "Parker"). According to Turner's original petition, Turner worked for Parker as a contract laborer when Turner was injured by an exploding tire. Turner sued Parker for negligence and sought recovery for medical expenses, lost income, and past and future pain and suffering. Parker was served with the plaintiff's original petition in May 1996 and Parker filed a general denial in June. Thereafter, the parties conducted discovery, including the filing of interrogatories and requests for production. Between March 17, 1997 and late August 2002, the record does not show the parties took any action in the case.
On August 29, 2002, Parker filed a motion to dismiss the suit for want of prosecution. Turner filed a notice with the trial court regarding a designation of new lead counsel in his case on September 5, 2002. One week later, Turner's substituted counsel withdrew from the case. That same day, the trial court dismissed the suit without prejudice for want of prosecution. Turner filed his timely notice of appeal on October 17, 2003. See Tex. R. App. P. 26.1 (notice of appeal is due within thirty days after judgment signed); and see Tex. R. App. P. 9.2(b) (document is timely filed if received by mail within ten days from deadline).
II. Dismissing Turner's Suit for Want of Prosecution
A trial court's dismissal of a lawsuit for want of prosecution is reviewed for abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). "When an unreasonable delay in the prosecution of a case occurs, it is presumed that the case has been abandoned." Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex. App.‒Houston [14th Dist.] 1993, no writ). "If that delay is not sufficiently explained, the presumption of abandonment is conclusive and the case will be dismissed." Id. A trial court's intention to dismiss may be imputed to a party when there has been inactivity for a long period of time. Id.; see also Tex. R. Civ. P. 165a.
A trial court abuses its discretion when its ruling falls outside the zone of reasonable disagreement. See, e.g., Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 632 (Tex. App.‒Amarillo 2000), rev'd on other grounds, No. 01-0057, 2003 WL 22038662 (Tex. Aug. 28, 2003). The key issue for us to decide is whether Turner exercised reasonable diligence in prosecuting his case. See MacGregor, 941 S.W.2d at 75.
Parker filed his motion to dismiss on August 29, 2002. The motion indicates service of the motion, as well as the notice of a hearing on the motion, was provided to Turner through his attorney of record on the same day. Accordingly, because Turner was represented by counsel at the time Parker filed his motion to dismiss, Turner is presumed to have received notice of the motion before September 12, 2002. See Tex. R. Civ. P. 21a (every notice required under the rules may be served on the party's attorney of record; attorney's certificate of service is prima facie evidence of service on the day listed in the certificate). There is nothing in the record to indicate Turner's then-counsel of record did not receive notice of the September 12, 2002, hearing on Parker's motion to dismiss. See id. (a party may offer proof that the instrument was not received). Moreover, the case had been languishing on the trial court's docket for more than six years with no activity having occurred since March 1997. Still further, the motion to withdraw filed by Turner's counsel on September 12, 2002, clearly states counsel had notified Turner of all pending settings and deadlines. We find the record does not supprt Turner's claim of lack of notice of the hearing on the motion to dismiss.
We also do not find the record supports Turner's contention that the trial court abused its discretion by dismissing the case for want of prosecution. As explained above, Turner's lawsuit against Parker was filed in May 1996. The clerk's record in this case shows nothing happened in this case between March 1997 and August 2002. We believe the trial court acted within the "zone of reasonable disagreement" when, after proper notice of the hearing, it dismissed a case for which the plaintiff failed to appear and in which the plaintiff had taken no action in more than five years. Cf. Bilnoski, 858 S.W.2d at 58 (mailing one offer of settlement during a two-year period is insufficient to demonstrate due diligence; dismissal for want of prosecution was proper). The record before us contains no evidence tending to defeat the presumption Turner had abandoned the case.
III. Denial of Turner's Motion for Additional Time in Which To Hire New Trial Counsel
Turner also contends the trial court erred by denying his motion for more time in which to hire new trial counsel after the trial court dismissed the lawsuit for want of prosecution. To preserve an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1. On October 8, 2002, Turner filed his motion for more time in which to hire trial counsel. The record before us does not indicate the trial court ruled on Turner's motion. Accordingly, Turner has not preserved this issue for our review.
IV. Conclusion
For the reasons stated, we affirm the trial court's judgment.
Jack Carter
Justice
Date submitted: October 22, 2003
Date decided: October 23, 2003
le="font-family: 'Times New Roman', serif"> Defendants' motion to dismiss asserted that Decker failed to file the required sworn statement of previous litigation and to file the required certified copy of his trust fund account. However, a review of the clerk's record shows a list of previous litigation with the same file-stamp date, May 27, 2004, as Decker's first petition alleging a 1983 violation, as well as a certified copy of Decker's trust fund account. Therefore, neither of those two bases supports the dismissal of Decker's lawsuit.
But Defendants' motion to dismiss also alleges Decker failed to properly exhaust available administrative remedies and to properly document and verify that process. Section 14.005 of the Texas Civil Practice and Remedies Code requires that an inmate file both (a) an affidavit or unsworn declaration stating the date the resolution of the inmate's grievance was received, and (b) a copy of the form denying the inmate relief. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1), (2) (Vernon 2002). Decker filed copies of several "Step 2" forms, which contain his complaints and then a ruling or decision from prison officials. None of his pleadings, however, contain the verified statement required by Section 14.005(a)(1). See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1).
Section 14.005 is quite clear in its requirement of both an affidavit and copies of the grievance form. In a similar situation, we held "it is incumbent on the inmate to provide the required information before it comes to the trial court for review. This is especially true because Section 501.008 of the Government Code precludes an inmate from filing a claim until he has exhausted his remedies through the grievance system." Smith v. Tex. Dep't of Criminal Justice–Institutional Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000, pet. denied); see Tex. Gov't Code Ann. § 501.008 (Vernon 2004).
Because Decker failed to comply with the statutory requirement of Section 14.005, the trial court did not abuse its discretion in dismissing the suit. We affirm the trial court's order of dismissal.
(2) A Hearing on a Motion To Dismiss Is Discretionary
Decker also contends the trial court erred in dismissing his suit without holding a hearing. The Texas Civil Practice and Remedies Code provides that, in determining whether to dismiss a claim as frivolous under Section 14.003, the court may hold a hearing. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002). A trial court's decision on whether to dismiss an inmate's suit based on failure to comply with statutory requirements is discretionary. Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Certainly, inmates have a constitutional right to access the courts for the purpose of presenting their complaints. Cruz v. Beto, 405 U.S. 319 (1972). But pro se litigants are held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex. App.—Amarillo 1997, no pet.). To curtail frivolous or malicious lawsuits, restricting or regulating the ability of inmates to proceed in forma pauperis does not implicate any constitutionally protected right per se. Hicks v. Brysch, 989 F.Supp. 797, 822 (Tex. 1997). Judgment on the pleadings or for failure to comply with procedural requirements, without holding an evidentiary hearing, is proper and does not violate due process. See Willis v. Capots, 902 F.2d 1570 (6th Cir. 1990).
For the reasons discussed above, we find no abuse of the trial court's discretion and overrule this point.
(3) The Dismissal Should Have Been Without Prejudice
As no hearing was held, the trial court could not have reached the merits of Decker's suit. When a claim is dismissed without a fact hearing, the trial court could not have determined that the suit had no arguable basis in fact. In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ); Harrison v. Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d 882, 887 (Tex. App.—Houston [1st Dist.] 1995, no writ). Dismissal without prejudice is the proper remedy, rather than dismissal with prejudice, where the inmate's suit failed to comply with a statutory requirement of an attached affidavit; such a failure is capable of cure by amending the pleadings. Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.—Corpus Christi 2001, pet. denied) (inmate failed to comply with Section 14.004 requirements of full statement of previous litigation).
We modify the trial court's judgment to make it a dismissal without prejudice, and affirm it as modified.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 24, 2005
Date Decided: August 16, 2005
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