Texas Case Law

NABELEK v. ALDRICH, 14-04-00886-CV (Tex.App. [14th Dist.]
2006) IVO NABELEK, Appellant, v. BILLY M. ALDRICH, Et. Al.,
Appellees. No. 14-04-00886-CV Court of Appeals of Texas,
Fourteenth District, Houston. Memorandum Opinion filed June
22, 2006.

On Appeal from the 113th District Court, Harris County,
Texas, Trial Court Cause No. 03-62775.

Reversed and Remanded.

Panel consists of Justices HUDSON, FROST, and SEYMORE.

MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

Appellant Ivo Nabelek, appearing pro se, appeals from the
trial court’s judgment dismissing his suit for want of
prosecution. Appellant contends, among other things, that
the trial court abused its discretion in denying his motion
to retain and motion to reurge his motion for default
judgment against appellee Billy M. Aldrich. We conclude
that the trial court abused its discretion by denying
Nabelek’s motion to retain and dismissing his claims for
want of prosecution. Accordingly, we reverse the trial
court’s order of dismissal for want of prosecution and
remand Nabelek’s claims to the trial court for proceedings
consistent with this opinion.

I. PROCEDURAL BACKGROUND

Appellant Ivo Nabelek is an inmate of the Texas Department
of Criminal Justice — Institutional Division
(“TDCJ-ID”). In November 2003, he filed a pro se complaint
against appellee Billy M. Aldrich, a police officer who
allegedly arrested him in February 1993, and numerous other
defendants.[fn1] He alleged that, on and after his arrest,
the defendants did not inform him of his right, as an alien
resident from the Slovak Republic and former
Czechoslovakia, to communicate with a consular officer.
Nabelek asserted various claims including violations of
United States Code Title 42, sections 1981, 1983, and
1985;[fn2] “[t]orts under federal Constitution and laws”;
torts under the Texas Tort Claims Act;[fn3] and negligence.
He sought declaratory relief, $15 million in damages,
attorney’s fees, and costs.

The trial court granted Nabelek’s motion for leave to
proceed in forma pauperis.[fn4] On April 15, 2004, the
district court trial coordinator responded to an inquiry
from Nabelek and informed him, “Billy M. Aldrich was served
on December 3, 2003. No other Defendants have been served
at this time.”[fn5]

About two weeks later, on April 26, 2004, Nabelek filed a
motion for default judgment against Aldrich. In his notice
of submission filed the same day, Nabelek stated the motion
was to be submitted “for consideration on May 10, 2004 . .
. by written submission, and without necessity of oral
argument.” The record does not contain an order from the
trial court ruling on the motion for default judgment.

On June 4, 2004, the trial court issued its first notice
of intent to dismiss this case for want of prosecution. In
response to this notice, on June 15, 2004, Nabelek filed
(1) a combined motion to retain and motion to reurge his
motion for default judgment against Aldrich, which Nabelek
set for hearing on July 26, 2004, the deadline specified in
the notice of intent to dismiss, and (2) a motion for
permission to appear by telephone at the July 26, 2004
hearing and to order the clerk to set up a telephone link,
which Nabelek set for submission on June 28, 2004. There is
nothing in the record to indicate that the trial court
acted on Nabelek’s June 15, 2004 motions before issuing a
second notice of intent to dismiss his suit for want of
prosecution.

On July 14, 2004, the trial court issued a second notice
of intent to dismiss. This notice stated that the case
would be dismissed for want of prosecution unless a default
judgment or an answer was filed by August 9, 2004 or
Nabelek filed a verified motion to retain and appeared at
an oral hearing on that motion on August 9, 2004 at 1:30
p.m. On August 3, 2004, Nabelek filed a motion reurging his
previous motion for permission to appear by telephone and
his motion to retain and to reurge his motion for default
judgment. Nabelek set this motion for submission on August
9, 2004.

On August 19, 2004, the trial court dismissed Nabelek’s
claims for want of prosecution. By letter dated September
3, 2004, the trial court notified Nabelek it had (1) denied
his request to appear by telephone at the August 9, 2004
hearing on the notice of intent to dismiss, (2) denied his
motion to retain, and (3) signed an order dismissing the
case on August 19, 2004. On September 7, 2004, Nabelek
filed a motion for reconsideration and a notice of appeal.
The motion for reconsideration was overruled by operation
of law.[fn6]

II. ISSUES PRESENTED

On appeal, Nabelek asserts the following issues:[fn7]

(1) Did the trial court “err and abuse its discretion” by
denying him all means and avenues he pursued to prosecute
his claims and by dismissing all of his claims for want of
prosecution?

(2) Did the trial court err in denying his motion for
default judgment against Aldrich?

(3) Did the trial court err in denying his motion to
retain?

(4) Did the trial court err in denying Nabelek’s motion
to appear before the court by telephone or similar means?
and

(5) Did the trial court err in “refusing or failing to
hold and render a timely hearing and decision on [his]
motion for reconsideration and to re-instate the dismissed
suit?”

III. ANALYSIS

We first address issue three — Nabelek’s contention
that the trial court abused its discretion in denying his
motion to retain — because this issue, if sustained,
is dispositive of the appeal. However, there are several
issues that are intertwined with this issue. To completely
resolve this issue, we also must address issues one and
four. In issue one, Nabelek challenges the dismissal for
want of prosecution, which is connected with the motion to
retain. And, in issue four, Nabelek challenges the trial
court’s denial of his motion to appear by telephone at the
dismissal hearing.

We review a dismissal for want of prosecution under an
abuse-of-discretion standard. See MacGregor v. Rich, 941
S.W.2d 74, 75 (Tex. 1997). The test for abuse of discretion
is whether the trial court’s action was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985); see Sweed v. City of El
Paso, 139 S.W.3d 450, 452 (Tex.App.-El Paso 2004, no pet.)
(invoking Downer test in context of reviewing dismissal for
want of prosecution).

A trial court may dismiss a case for want of prosecution
under either Texas Rule of Civil Procedure 165a or the
court’s inherent common-law authority. Alexander v. Linda’s
Boutique, 134 S.W.3d 845, 850 (Tex. 2004). “A trial court
may dismiss under Rule 165a on `failure of any party
seeking affirmative relief 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. . . .'” Villarreal v. San Antonio
Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (quoting
TEX. R. CIV. P. 165a (1), (2)). Under the common law, the
trial court has an inherent power to dismiss, independent
of the rules of procedure, when a plaintiff fails to
prosecute his case with due diligence. Id.

In Nabelek’s combined motion, which he set for hearing on
August 9, 2004, Nabelek asked the trial court to retain the
case on its docket and to grant a default judgment against
Aldrich, who had been served but who had not answered.
Although the motion was not verified, Nabelek included an
unsworn declaration, in which he stated, “I, undersigned
Ivo Nabelek, do declare under penalty of perjury, that the
foregoing and below-stated allegations are true and
correct. I am presently being incarcerated at the TDCJ-ID
Jim Ferguson Unit, Madison County, Texas.” Because Nabelek
was an inmate, the unsworn declaration, which was in
writing and subscribed under penalty of perjury, served in
lieu of a verification. See TEX. CIV. PRAC. & REM. CODE
ANN. § 132.001, 132.002 (Vernon 2005).

Before a court may dismiss a case for want of prosecution,
the court must give the party notice and an opportunity to
be heard. Villarreal, 994 S.W.2d at 630. Additionally, a
court may not 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. The notice
of intent to dismiss referred only to a motion to retain;
it did not specify any particular content. If the trial
court had intended to require that Nabelek, in his motion
to retain, allege good cause or diligence in prosecution to
avoid dismissal, the notice needed to so state. See id.
(holding notice that informed plaintiff that case would be
dismissed only if the plaintiff did not appear and announce
ready could not be interpreted as giving notice of two
grounds for dismissal, that is, failure to announce ready
and failure to use diligence in prosecuting the case).
Therefore, to the extent the trial court dismissed based on
Nabelek’s failure to allege good cause or diligence, the
trial court abused its discretion. See 3V, Inc. v. JTS
Enters., Inc., 40 S.W.3d 533, 543-44 (Tex.App.-Houston
[14th Dist.] 2000, no pet.) (holding trial court abused its
discretion when, under the notice sent out, the trial court
was precluded from dismissing this case for any reason
other than the failure to file a final order and trial court
also was precluded from dismissing the case for failure to
file a final order because requisite event had not
occurred).

Because Nabelek filed the equivalent of a verified motion
to retain and set it for hearing on August 9, 2004 at 1:30
p.m., the only basis on which the trial court, consistent
with its notice, could have dismissed Nabelek’s claims was
Nabelek’s failure to appear at the hearing on his motion to
retain. Thus, we turn now to Nabelek’s “failure” to appear.

In response to the trial court’s first notice of intent to
dismiss, Nabelek filed a motion to appear by telephone and
requested the court to order the clerk to set up a
telephone link. Nabelek referred to the provision in the
notice making his appearance mandatory and explained he was
imprisoned at the TDCJ-ID, Jim Ferguson Unit, and could
appear only by means of a telephone conference hearing.
Nabelek resubmitted that motion in response to the court’s
second notice. By letter dated September 3, 2004, the trial
court notified Nabelek it had denied his request to appear
by telephone for the hearing.

The present case is analogous to Boulden v. Boulden, 133
S.W.3d 884 (Tex.App.-Dallas 2004, no pet.). In Boulden, the
inmate husband filed a petition for divorce and an affidavit
of inability to pay costs, with a declaration under Texas
Civil Practices and Remedies Code Chapter 132. Id. at 884;
see TEX. CIV. PRAC. & REM. CODE ANN. § 132.001-.003
(Vernon 2005); TEX. R. CIV. P. 145. Although the clerk was
to have issued citation, there was no record of citation
being issued or served, and the wife did not appear. See
Boulden, 144 S.W.3d at 885; see TEX. R. CIV. P. 145 (1).

The trial court sent the inmate notice of a dismissal
hearing set for October 15, 2002, directing him to appear
in person before the court administrator prior to that
date. Boulden, 144 S.W.3d at 885. The notice stated the
court would dismiss the case for want of prosecution under
Texas Rule of Civil Procedure 165a unless there was good
cause to maintain the case on the docket. Id. The notice
further directed that the inmate should not telephone or
write for a continuance. Id. In response, the inmate filed
a motion seeking a bench warrant to appear in person at the
hearing or alternatively, for a hearing by conference call.
He also filed a pauper’s affidavit requesting appointment
of an attorney ad litem and reiterating his financial
condition. Id. There was no record the trial court took any
action on these filings. Id. On October 24, 2001, the trial
court signed an order of dismissal for want of prosecution.
Id. The court of appeals reversed, reasoning:

Litigants cannot be denied access to the courts simply
because they are inmates. By requiring a pro se inmate’s
personal appearance at a hearing while not acting on that
inmate’s motion for a bench warrant or to conduct the
hearing by telephone conference or other means, the trial
court effectively closed its doors to the inmate. [The
inmate] could not physically appear in court and, as
indicated in his filings with the court, could not afford
to retain an attorney to appear on his behalf. Although
there is no absolute right for an inmate to appear in
person in a civil case, where the trial court determines
personal appearance is not warranted, it should allow the
inmate to proceed by affidavit, deposition, telephone, or
other effective means. [The inmate] proposed alternative
means of appearing such as appointment of an attorney ad
litem or conducting the dismissal hearing by conference
call. It appears that [the inmate] did everything he could
to respond to the trial court’s notice of dismissal. We
conclude that under these circumstances, the trial court
abused its discretion by dismissing the case for want of
prosecution.

Id. at 886-87 (citations and footnotes omitted).

The trial court in the present case required Nabelek’s
presence at the dismissal hearing. The trial court then,
either by not acting on Nabelek’s motion to appear by
telephone before the dismissal hearing or by denying the
motion, essentially closed the court’s doors to him. We
conclude that, under these circumstances, the trial court
abused its discretion by dismissing Nabelek’s claims
against all defendants, including Aldrich, for want of
prosecution. Accordingly, we sustain Nabelek’s first,
third, and fourth issues to the extent they challenge the
trial court’s dismissal of his claims for want of
prosecution. We reverse the trial court’s order of dismissal
for want of prosecution and remand Nabelek’s claims to the
trial court for proceedings consistent with this
opinion.[fn8]

[fn1] The other named defendants included
Investigator/Officer Reese (first name unknown) of the
Houston Police Department, the City of Houston, the City of
Houston Police Department, the Chief of the City of Houston
Police Department sitting in office between February 17,
1993 and May 12, 1994, the Mayor of the City of Houston
sitting in office between February 17, 1993 and May 12,
1994, the District Attorney of Harris County, Texas sitting
in office between February 17, 1993 and May 12, 1994,
Harris County Assistant District Attorneys Marie Munier and
Denise Oncken, the State of Texas, the 351st Judicial
District Court of Harris County, Texas (with then presiding
judge, the Honorable Lupe Salinas), the 180th Judicial
District Court of Harris County, Texas (with then presiding
judges, the Honorable Patricia Lykos and the Honorable Dan
E. Walton), the Texas Department of Public Safety and its
official representatives sitting in office between February
17, 1993 and May 12, 1994, the Sheriff of Harris County,
Texas sitting in office between February 17, 1993 and May
12, 1994, the Office of the Sheriff of Harris County, Texas,
and the United States of America. Nabelek also indicated
other defendants were to be specified upon the completion
of discovery.

[fn2] See 42 U.S.C. § 1981, 1983, 1985.

[fn3] See TEX. CIV. PRAC. & REM. CODE ANN. 101.001-.109
(Vernon 2005).

[fn4] See TEX. CIV. PRAC. & REM. CODE ANN. 14.002 (Vernon
2002); Tex. R. Civ. P. 145.

[fn5] The record contains a return of service showing that
Aldrich was served by certified mail on December 3, 2003.

[fn6] See TEX. R. CIV. P. 329b(c).

[fn7] No appellees’ brief has been filed in this appeal.

[fn8] Given our resolution of these issues, we need not
address Nabelek’s second and fifth issues. Further, as to
Nabelek’s second issue, our record does not contain any
order denying his motion for default judgment.