Texas Judiciary Online - HTML Opinion

MEMORANDUM OPINION

Cedric=20 Christopher Edison appeals the dismissal for want of prosecution = of his=20 tort claims against the City of Houston Police Department and = others,=20 asserting that he should not be penalized for the Harris County = district=20 clerk=92s failure to effect timely service on the named = defendants. =20 Because the record shows that Edison failed to exercise due = diligence in=20 obtaining service and prosecuting his claims or comply with the = trial=20 court=92s instructions in its notice of intent to dismiss, we = affirm. =20

Background

In = early December=20 2004, Edison, an inmate acting pro se, filed suit against the City = of=20 Houston Police Department (=93Department=94), Lee P. Brown, and = certain police=20 officers. The Harris County Clerk=92s Office issued citation = to the=20 Department based on the information provided in Edison=92s = original=20 petition. A Harris County deputy constable attempted to = serve the=20 citation on the Houston Police Department, but was = unsuccessful. In=20 the Constable=92s Return, he noted =93[u]nable to serve no person = named for=20 service, governmental agency must have service name.=94 =

The = clerk=92s=20 office promptly notified Edison of this deficiency. Edison = responded=20 in late December 2004 with amended service of process information = for his=20 suit. Apparently unaware that Lee Brown=92s tenure as police = chief for=20 the City of Houston had ended in 1990, Edison named him as the=20 Department=92s agent for service of process at its downtown = address. =20 Edison also indicated that the other named defendants could be = served at=20 the Department=92s northeast substation address. The record = does not=20 indicate any further attempt to serve the defendants with = Edison=92s suit.=20

The = next activity=20 in the case occurred approximately one year later, when the trial = court=20 issued a notice of intent to dismiss on the ground that no answer = had been=20 filed. The notice instructed Edison that his case would be = dismissed=20 on February 20, 2006, unless (1) a default judgment was signed; = (2) an=20 answer was filed; or (3) a verified motion to retain was filed and = set for=20 hearing.

Following receipt=20 of the notice, Edison sought to compel the district clerk to serve = the=20 named defendants, renewed his application to proceed in forma = pauperis,=20 and requested additional time in which to perfect service. = By May=20 23, 2006, however, no proof of service or answer was on file, nor = had=20 Edison moved for a default judgment or to retain the case on the = docket.=20 Consequently, the trial court signed an order dismissing the = cause=20 on that date.

Propriety of=20 Dismissal for Want of Prosecution

Broadly = construed, Edison=92s sole issue on appeal asserts the = trial court=20 wrongly dismissed his suit for want of prosecution because the = district=20 clerk failed to serve the named defendants. Texas law = confers on=20 trial courts the discretionary authority to dismiss a case for = want of=20 prosecution. Tex. = R. Civ.=20 P. 165a; Villarreal v. San Antonio Truck & Equip. = Co.,=20 994 S.W.2d 628, 630 (Tex. 1999); City of Houston v. Thomas, = 838=20 S.W.2d 296, 297 (Tex. App.=97Houston [1st Dist.] 1992, no = writ). A=20 trial court may dismiss a case when (1) it finds that the case has = not=20 been prosecuted with due diligence; (2) the case has not been = disposed of=20 within the Texas Supreme Court=92s time standards; or (3) a party = fails to=20 appear at a hearing or trial. Villarreal, 994 S.W.2d = at 630;=20 Thomas, 838 S.W.2d at 297. = A court=20 may not, however, dismiss for want of prosecution on a ground = other than=20 those for which it gave notice of its intent to dismiss. See=20 Villarreal, 994 S.W.2d at 632=9633.

In = requiring=20 Edison to ensure that an answer was on file or move for a default = judgment=20 or to retain the case, the trial court essentially instructed = Edison to=20 show diligence in prosecuting his case. In determining = whether a=20 plaintiff has prosecuted his case with due diligence, =93[t]he = trial court=20 may consider the entire history of the case, including the length = of time=20 the case was on file, the amount of activity in the case, the = request for=20 a trial setting and the existence of reasonable excuses for = delay.=94 =20 Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. = App.=97Houston=20 [1st Dist.] 1996, no writ). A pro se litigant is as = responsible for=20 prosecuting his action with diligence as any other litigant. = See=20 Coleman v. Lynaugh, 934 S.W.2d 837, 838 (Tex. App.=97Houston = [1st Dist.]=20 1996, no writ). We may reverse a trial court=92s dismissal = of a claim=20 for want of prosecution only if the court clearly abused its=20 discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 = (Tex. 1997);=20 Nawas, 920 S.W.2d at 737.

Edison = contends that=20 his suit should have been retained on the docket because the = clerk=92s=20 failure or refusal to serve citation frustrated his efforts to = prosecute=20 his claims. Generally, a litigant may rely on the clerk to = issue=20 citation and have it served within a reasonable time. Tex. R. Civ. P. 21, = 99(a);=20 Allen = v.=20 Rushing, 129=20 S.W.3d 226, 230=9631 (Tex. App.=97Texarkana 2004, no pet.); see = Allen v.=20 Masterson, 49 S.W.2d 855, 856 (Tex. Civ. App.=97Galveston = 1932, writ=20 ref=92d). Nevertheless, the duty to exercise diligence in = ensuring=20 that service is ultimately accomplished remains with the = plaintiff. =20 Tex. R. Civ. P. = 99(a);=20 Rushing, 129 S.W.3d at 231 (alleged=20 delay by clerk=92s office was not valid excuse sufficient to = constitute due=20 diligence in effecting service of process; if plaintiff could have = easily=20 corrected clerk=92s failure to issue citation by exercising due = diligence,=20 plaintiff bears responsibility for delay) (quoting = Boyattia v.=20 Hinojosa, 18 S.W.3d 729, 733 (Tex. App.=97Dallas 2000, pet.=20 denied)).

With = diligence,=20 Edison should have been able to determine well before January 2006 = that=20 service not been completed and that he had not provided the clerk = with=20 correct service information.[1] =20 If Edison had a reasonable explanation for the delay, he did not = tell it=20 to the trial court.[2] =20

The = trial court=92s=20 notice of intent instructed Edison what he needed to do to prevent = dismissal of his case. Further, the trial court gave Edison = ample=20 opportunity to resolve or explain the delay in service, postponing = its=20 decision to dismiss the case a full three months after the date = originally=20 set forth in the notice of intent. Edison failed to = accomplish any=20 one of the three tasks that would have complied with the trial = court=92s=20 notice of intent, not even the one=97the filing of a motion to = retain=97that=20 was under his full control.

The = trial court=92s=20 order expressly states that Edison=92s suit was dismissed because = he failed=20 to comply with the court=92s notice of intent to dismiss. = Edison has=20 not provided any reasonable explanation for his lack of = compliance. =20 Thus, the trial court acted within its discretion in dismissing = Edison=92s=20 suit.

Conclusion

We = affirm the=20 judgment of the trial court.

All = pending=20 motions are dismissed as moot.

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Justice

Panel consists of = Justice=20 Nuchia, Hanks, and Bland.