Cedric Christopher Edison v. Houston Police Department

Opinion issued March 29, 2007 Issued June 7, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00552-CV CEDRIC CHRISTOPHER EDISON, Appellant V. HOUSTON POLICE DEPARTMENT, LEE P. BROWN, OFFICER B.C. McDANIEL, OFFICER SPARKS, SGT. SMART, and OFFICER J.E. ADKINS, Appellees On Appeal from the 157th District Court Harris County, Texas Trial Court Cause No. 2004-68643 MEMORANDUM OPINION Cedric Christopher Edison appeals the dismissal for want of prosecution of his tort claims against the City of Houston Police Department and others, asserting that he should not be penalized for the Harris County district clerk’s failure to effect timely service on the named defendants. Because the record shows that Edison failed to exercise due diligence in obtaining service and prosecuting his claims or comply with the trial court’s instructions in its notice of intent to dismiss, we affirm. Background In early December 2004, Edison, an inmate acting pro se, filed suit against the City of Houston Police Department (“Department”), Lee P. Brown, and certain police officers. The Harris County Clerk’s Office issued citation to the Department based on the information provided in Edison’s original petition. A Harris County deputy constable attempted to serve the citation on the Houston Police Department, but was unsuccessful. In the Constable’s Return, he noted “[u]nable to serve no person named for service, governmental agency must have service name.” The clerk’s office promptly notified Edison of this deficiency. Edison responded in late December 2004 with amended service of process information for his suit. Apparently unaware that Lee Brown’s tenure as police chief for the City of Houston had ended in 1990, Edison named him as the Department’s agent for service of process at its downtown address. Edison also indicated that the other named defendants could be served at the Department’s northeast substation address. The record does not indicate any further attempt to serve the defendants with Edison’s suit. The next activity in the case occurred approximately one year later, when the trial court issued a notice of intent to dismiss on the ground that no answer had been filed. The notice instructed Edison that his case would be dismissed on February 20, 2006, unless (1) a default judgment was signed; (2) an answer was filed; or (3) a verified motion to retain was filed and set for hearing. Following receipt of the notice, Edison sought to compel the district clerk to serve the named defendants, renewed his application to proceed in forma pauperis, and requested additional time in which to perfect service. By May 23, 2006, however, no proof of service or answer was on file, nor had Edison moved for a default judgment or to retain the case on the docket. Consequently, the trial court signed an order dismissing the cause on that date. Propriety of Dismissal for Want of Prosecution Broadly construed, Edison’s sole issue on appeal asserts the trial court wrongly dismissed his suit for want of prosecution because the district clerk failed to serve the named defendants. Texas law confers on trial courts the discretionary authority to dismiss a case for want of prosecution. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip. Co., 994 S.W.2d 628, 630 (Tex. 1999); City of Houston v. Thomas, 838 S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ). A trial court may dismiss a case when (1) it finds that the case has not been prosecuted with due diligence; (2) the case has not been disposed of within the Texas Supreme Court’s time standards; or (3) a party fails to appear at a hearing or trial. Villarreal, 994 S.W.2d at 630; Thomas, 838 S.W.2d at 297. A court may not, however, dismiss for want of prosecution on a ground other than those for which it gave notice of its intent to dismiss. See Villarreal, 994 S.W.2d at 632–33. In requiring Edison to ensure that an answer was on file or move for a default judgment or to retain the case, the trial court essentially instructed Edison to show diligence in prosecuting his case. In determining whether a plaintiff has prosecuted his case with due diligence, “[t]he trial court may consider the entire history of the case, including the length of time the case was on file, the amount of activity in the case, the request for a trial setting and the existence of reasonable excuses for delay.” Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ). A pro se litigant is as responsible for prosecuting his action with diligence as any other litigant. See Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex. App.—Houston [1st Dist.] 1996, no writ). We may reverse a trial court’s dismissal of a claim for want of prosecution only if the court clearly abused its discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Nawas, 920 S.W.2d at 737. Edison contends that his suit should have been retained on the docket because the clerk’s failure or refusal to serve citation frustrated his efforts to prosecute his claims. Generally, a litigant may rely on the clerk to issue citation and have it served within a reasonable time. Tex. R. Civ. P. 21, 99(a); Allen v. Rushing, 129 S.W.3d 226, 230–31 (Tex. App.—Texarkana 2004, no pet.); see Allen v. Masterson, 49 S.W.2d 855, 856 (Tex. Civ. App.—Galveston 1932, writ ref’d). Nevertheless, the duty to exercise diligence in ensuring that service is ultimately accomplished remains with the plaintiff. Tex. R. Civ. P. 99(a); Rushing, 129 S.W.3d at 231 (alleged delay by clerk’s office was not valid excuse sufficient to constitute due diligence in effecting service of process; if plaintiff could have easily corrected clerk’s failure to issue citation by exercising due diligence, plaintiff bears responsibility for delay) (quoting Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet. denied)). With diligence, Edison should have been able to determine well before January 2006 that service not been completed and that he had not provided the clerk with correct service information.[1] If Edison had a reasonable explanation for the delay, he did not tell it to the trial court.[2] The trial court’s notice of intent instructed Edison what he needed to do to prevent dismissal of his case. Further, the trial court gave Edison ample opportunity to resolve or explain the delay in service, postponing its decision to dismiss the case a full three months after the date originally set forth in the notice of intent. Edison failed to accomplish any one of the three tasks that would have complied with the trial court’s notice of intent, not even the one—the filing of a motion to retain—that was under his full control. The trial court’s order expressly states that Edison’s suit was dismissed because he failed to comply with the court’s notice of intent to dismiss. Edison has not provided any reasonable explanation for his lack of compliance. Thus, the trial court acted within its discretion in dismissing Edison’s suit. Conclusion We affirm the judgment of the trial court. All pending motions are dismissed as moot. Jane Bland Justice Panel consists of Justice Nuchia, Hanks, and Bland. [1] Depending on the circumstances, Texas courts have concluded that periods of unexplained activity before service much shorter than the year-long delay in this case demonstrate a lack of due diligence as a matter of law. See Webster v. Thomas, 5 S.W.3d 287, 291 & n.3 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (plaintiff who made only careless and sporadic efforts to serve over period spanning four months and ten days lacked due diligence as matter of law; court also observed that courts have reached same conclusion in considering periods of unexplained inactivity ranging from five and four-fifths months to thirty-eight months). [2] Edison’s last-ditch, unsuccessful effort to serve the defendants after receiving notice of the trial court’s intent to dismiss his case does not absolve him of the duty to prosecute it with diligence from the date it was filed. See Proulx v. Wells, 186 S.W.3d 630, 633 (Tex. App.—Fort Worth 2006, pet. filed) (duty to use due diligence continues from date suit is filed until date defendant is served).