Juan Manuel Albarado v. Amanda M. Jimenez

Opinion filed May 4, 2017

In The

Eleventh Court of Appeals
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No. 11-16-00280-CV
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JUAN MANUEL ALBARADO, Appellant
V.
AMANDA M. JIMENEZ, Appellee

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 15-11402N

MEMORANDUM OPINION
This is an appeal from the trial court’s order dismissing Juan Manuel
Albarado’s petition for divorce for lack of prosecution. In a single issue, Albarado
contends that the trial court erred in dismissing his case for lack of prosecution. We
affirm.
 Background Facts
Albarado is an inmate in the Texas Department of Criminal Justice. On
June 2, 2015, Albarado filed a pro se petition for divorce from Amanda M. Jimenez.
In his original petition, Albarado indicated that he did not need to obtain service of
process upon Jimenez because he thought she would answer or execute a waiver of
service. On June 8, 2015, Albarado requested Jimenez to be served with citation by
certified mail. The record indicates that the trial court clerk mailed the citation by
certified mail on June 18, 2015, to Jimenez at the address provided by Albarado in
his petition. The citation was returned to the clerk’s office on July 12, 2015, with
the notation “return to sender” because it was unclaimed and could not be forwarded.
On August 4, 2016, the trial court sent Albarado a dismissal notice. On
August 25, 2016, Albarado filed a motion for an order to remove the case from the
dismissal docket asserting that he “made every possible attempt to ensure proper
notice and service” on Jimenez. He attached an affidavit in which he claimed that
he complied with all service requirements and made multiple attempts to contact
Jimenez, to no avail. On August 30, 2016, the trial court entered an order dismissing
Albarado’s case for lack of prosecution. Albarado filed his notice of appeal on
September 21, 2016.
Analysis
We review the trial court’s dismissal for want of prosecution under an abuse
of discretion standard. See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997);
Ringer v. Kimball, 274 S.W.3d 865, 867 (Tex. App.—Fort Worth 2008, no pet.). A
trial court abuses its discretion when it acts “arbitrarily or unreasonably, without
reference to guiding rules or principles.” Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
The court must provide a party with notice and an opportunity to be heard
before it may dismiss a case for lack of prosecution. Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Reese v. Reese, 256 S.W.3d 898,
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899 (Tex. App.—Dallas 2008, no pet.). Here, the trial court sent a notice of dismissal
to Albarado, which he obviously received because he filed a motion to remove his
case from the dismissal docket. A trial court’s power to dismiss a case for want of
prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil
Procedure and (2) the trial court’s inherent authority to manage its own docket. See
TEX. R. CIV. P. 165a; Villarreal, 994 S.W.2d at 630. A trial court may dismiss a
case under Rule 165a when a party or its counsel fails to appear at a hearing or trial
or when a case is “not disposed of within time standards promulgated” by the Texas
Supreme Court. TEX. R. CIV. P. 165a(1), (2). Additionally, the trial court has the
inherent power to dismiss independently of the rules of procedure when a plaintiff
fails to prosecute its case with due diligence. Villarreal, 994 S.W.2d at 630;
Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 839 (Tex. App.—Dallas 2009, no
pet.).
“Although a pro se litigant is held to the same standards as a licensed attorney
as far as knowledge of the rules of practice and procedure are concerned, the level
of reasonable diligence for prison inmates is somewhat lower than that for litigants
who are free and represented by counsel.” In re Marriage of Buster, 115 S.W.3d
141, 144 (Tex. App.—Texarkana 2003, no pet.) (citation omitted). However, “[l]ack
of diligence need not amount to abandonment for a case to be properly dismissed.”
See WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006,
pet. denied). The trial court may consider the entire history of the case, including
the amount of activity in the case, the length of time the case was on file, requests
for a trial date, and the existence of reasonable excuses for delay. See Oliphant, 299
S.W.3d at 839; Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—Houston
[14th Dist.] 1993, no writ).
Albarado relies on Buster to support his position that the trial court abused its
discretion in dismissing his case for lack of prosecution. 115 S.W.3d at 144. In that
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case, a pro se inmate filed for divorce and asked for the right to appear personally or
proceed through alternate means, asked for the trial court to appoint him an attorney
so he could complete service, asked for permission to proceed in forma pauperis,
and repeatedly asked for assistance in adjudicating his divorce. Id. at 145. None of
the motions or requests were acted on by the court. Id. at 143. Instead, the court
dismissed the case for want of prosecution. Id. The court of appeals determined that
“Buster did everything he could reasonably do to diligently prosecute his case.” Id.
at 144–45.
This case is distinguishable from Buster. Here, the trial court was responsive
to Albarado’s requests. Albarado claims on appeal that he made every reasonable
attempt to successfully obtain service on Jimenez, including mailing a copy of the
suit to Jimenez by first class mail and certified mail, attempting to obtain service by
publication, and filing numerous motions and letters with the trial court. However,
the appellate record does not support his claims. Specifically, the record only shows
that Albarado attempted to serve Jimenez on one occasion by certified mail and that
he filed a motion asking the trial court to grant the divorce even though Jimenez had
not been served. The record does not show that Albarado attempted to obtain service
by publication.
At least fourteen months elapsed in this case between the filing of Albarado’s
original petition for divorce and the trial court’s notice of dismissal. The record
shows that (1) in his original petition for divorce, Albarado did not request that the
trial court attempt to serve Jimenez; (2) after filing his petition, Albarado requested
that the clerk of the trial court attempt to obtain service on Jimenez by certified mail,
which the clerk attempted without success; (3) he filed a motion requesting that the
trial court enter an order granting the divorce; and (4) he filed a motion for an order
to remove his case from the dismissal docket after receiving a notice of dismissal.
The only other source of support for Albarado’s claims is his own affidavit filed with
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his motion to remove his case from the dismissal docket. The affidavit details
activities that Albarado purportedly undertook to informally contact Jimenez about
the suit.
Although Albarado undertook steps to prosecute his case, he did not do
“everything he could reasonably do to diligently prosecute his case.” Buster, 115
S.W.3d at 144–45. Albarado never obtained service of process upon Jimenez.
Furthermore, approximately one year elapsed from the last time that Albarado
attempted to serve Jimenez with citation until the trial court sent a dismissal notice
to Albarado. We conclude that the trial court did not abuse its discretion in
dismissing Albarado’s case for lack of prosecution. We overrule Albarado’s sole
issue on appeal.
This Court’s Ruling
We affirm the order of the trial court.

JOHN M. BAILEY
JUSTICE

May 4, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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