Affirm and Opinion Filed August 7, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00880-CV
DARIN DERAIL HARRIS, Appellant V. PROSPERITY BANK, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-09835
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Molberg Appellant Darin Harris appeals from the trial court’s order dismissing his suit
for want of prosecution. In his first two issues on appeal, liberally construed, Harris
generally argues the trial court abused its discretion in dismissing his suit for want
of prosecution. In his third issue, he argues reversal is required because the trial
court improperly dismissed his suit under rule of civil procedure 165a.1 We affirm
in this memorandum opinion. See TEX. R. APP. P. 47.4.
1 In a fourth issue, Harris complains certain documents (request for findings of fact and conclusions of law, motion to reinstate dismissed case, and proposed default judgment) are missing from the appellate record. A proposed default judgment, however, appears in the record before us. As to the other documents, Background
On August 18, 2022, Harris sued appellee Prosperity Bank, alleging the Bank
misappropriated funds from his trust account. Harris, who is incarcerated,
represented himself in the trial court and in this appeal. In his petition, Harris
requested service of process generally without any further specification or
instruction. The petition listed one of the Bank’s branch locations as the Bank’s
address. The record reflects that citation issued that day but was ultimately returned
unserved.
On November 26, 2022, the trial court notified Harris the suit was set for
dismissal on December 28, 2022. The notice explained that, “[i]f no answer has
been filed you are expected to have moved for a default judgment on or prior to the
above stated date. Failure to move for a default judgment will result in the dismissal
of the case on the above date.” The notice further stated, “If you have been unable
to obtain service of process and you wish to retain the case on the docket, you must
appear on the above date, either by appearance at the dismissal docket hearing or by
a filed motion to retain the case on the docket, unless you have obtained a new setting
from the court coordinator.”
On December 22, 2022, Harris filed a motion to retain the case on the docket
in which he stated his petition had requested service of process on the Bank. He also
Harris does not explain, nor do we discern, how any missing documents might affect our disposition. Thus, we overrule this issue. See Burns v. Bishop, 48 S.W.3d 459, 465 (Tex. App.—Houston [14th Dist.] 2001, no pet.). –2– requested service of process pursuant to rule of civil procedure 14 but did not provide
any additional information or instructions in support of this request. The trial court
granted the motion to retain the case on its docket.
On December 28, 2022, the trial court again notified Harris the case was set
for dismissal, this time for February 17, 2023; the notice included the same
instructions recited above. On January 20, 2023, Harris filed a motion for service of
process in which he requested that citations enclosed with his motion be served upon
the Bank, as well as an individual Harris alleged was the Bank’s president, at the
address referenced in the original petition. On February 7, 2023, he filed a motion
for enlargement of time, in which he stated he was trying to “diligently obtain service
of process on the defendant.” The trial court again ordered the case be retained on
its docket.
On February 8, 2023, the trial court notified Harris the case was set for
dismissal on March 17, 2023, again with the same instructions described in earlier
notices.
On March 1, 2023, Harris filed a second motion for service of process, again
requesting the constable serve enclosed citations upon Prosperity Bank or its
president. The record reflects that, on May 8, 2023, citation issued but was again
returned unserved. On May 22, 2023, Harris asked the trial court to retain his case
on the docket, explaining he was still attempting to serve process.
–3– On May 29, 2023, the court ordered the case be retained on the docket. On
May 31, 2023, the trial court notified Harris the case was set for dismissal on July
14, 2023. The notice stated, “If no answer has been filed you are expected to have
moved for a default judgment on or prior to the above stated date. Failure to move
for a default judgment will result in the dismissal of the case on the above date.”
Harris filed a motion to abate this order, arguing he could not move for default
judgment without first achieving service of process.
On August 2, 2023, the trial court denied Harris’s motion to abate and signed
an order dismissing Harris’s suit for want of prosecution. This appeal followed.
Discussion
As stated above, we will liberally construe Harris’s first two issues to argue
the trial court abused its discretion in dismissing his suit for want of prosecution.2
We review a dismissal for want of prosecution under a clear abuse of
discretion standard. Dixon v. AT&T Corp., No. 05-18-00593-CV, 2019 WL
1323964, at *2 (Tex. App.—Dallas Mar. 25, 2019, no pet.) (mem. op.). Thus, we
consider whether the trial court acted without reference to any guiding rules and
principles and will not reverse the trial court’s order unless it was arbitrary or
2 Harris stated these issues as follows in his brief: “whether a default judgment can be filed against a defendant when strict compliance of the rules has not been followed and defendant has not been served process to answer alleged claims”; and “whether it is abuse of discretion for trial court to propose Harris move for default judgment at the court’s direction, and failure to move for default judgment will result in dismissal of the case on the above date for want of prosecution.” –4– unreasonable. Stone v. Cunningham, No. 05-06-01151-CV, 2007 WL 1206677, at
*1 (Tex. App.—Dallas Apr. 25, 2007, pet. denied) (mem. op.).
A dismissal based on lack of service is grounded in the court’s inherent power
to dismiss. Gamboa v. Alecio, 604 S.W.3d 513, 517 (Tex. App.—Houston [14th
Dist.] 2020, no pet.); Stone, 2007 WL 1206677, at *1–2. The central issue in such a
case is whether the plaintiff exercised reasonable diligence in prosecuting his suit.
Dixon, 2019 WL 1323964, at *2 (citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.
1997) (per curiam)). A pro se litigant is held to the same standards as a licensed
attorney and must comply with applicable laws and rules of procedure. Strange v.
Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied).
Here, the trial court first provided Harris notice his suit would be dismissed
three months after the original petition was filed unless he moved for default
judgment or filed a motion to retain the case on the docket to secure more time to
obtain service of process. Thereafter, the trial court extended the time for Harris to
serve process three times, ultimately giving him nearly a year to do so. While the
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Affirm and Opinion Filed August 7, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00880-CV
DARIN DERAIL HARRIS, Appellant V. PROSPERITY BANK, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-09835
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Molberg Appellant Darin Harris appeals from the trial court’s order dismissing his suit
for want of prosecution. In his first two issues on appeal, liberally construed, Harris
generally argues the trial court abused its discretion in dismissing his suit for want
of prosecution. In his third issue, he argues reversal is required because the trial
court improperly dismissed his suit under rule of civil procedure 165a.1 We affirm
in this memorandum opinion. See TEX. R. APP. P. 47.4.
1 In a fourth issue, Harris complains certain documents (request for findings of fact and conclusions of law, motion to reinstate dismissed case, and proposed default judgment) are missing from the appellate record. A proposed default judgment, however, appears in the record before us. As to the other documents, Background
On August 18, 2022, Harris sued appellee Prosperity Bank, alleging the Bank
misappropriated funds from his trust account. Harris, who is incarcerated,
represented himself in the trial court and in this appeal. In his petition, Harris
requested service of process generally without any further specification or
instruction. The petition listed one of the Bank’s branch locations as the Bank’s
address. The record reflects that citation issued that day but was ultimately returned
unserved.
On November 26, 2022, the trial court notified Harris the suit was set for
dismissal on December 28, 2022. The notice explained that, “[i]f no answer has
been filed you are expected to have moved for a default judgment on or prior to the
above stated date. Failure to move for a default judgment will result in the dismissal
of the case on the above date.” The notice further stated, “If you have been unable
to obtain service of process and you wish to retain the case on the docket, you must
appear on the above date, either by appearance at the dismissal docket hearing or by
a filed motion to retain the case on the docket, unless you have obtained a new setting
from the court coordinator.”
On December 22, 2022, Harris filed a motion to retain the case on the docket
in which he stated his petition had requested service of process on the Bank. He also
Harris does not explain, nor do we discern, how any missing documents might affect our disposition. Thus, we overrule this issue. See Burns v. Bishop, 48 S.W.3d 459, 465 (Tex. App.—Houston [14th Dist.] 2001, no pet.). –2– requested service of process pursuant to rule of civil procedure 14 but did not provide
any additional information or instructions in support of this request. The trial court
granted the motion to retain the case on its docket.
On December 28, 2022, the trial court again notified Harris the case was set
for dismissal, this time for February 17, 2023; the notice included the same
instructions recited above. On January 20, 2023, Harris filed a motion for service of
process in which he requested that citations enclosed with his motion be served upon
the Bank, as well as an individual Harris alleged was the Bank’s president, at the
address referenced in the original petition. On February 7, 2023, he filed a motion
for enlargement of time, in which he stated he was trying to “diligently obtain service
of process on the defendant.” The trial court again ordered the case be retained on
its docket.
On February 8, 2023, the trial court notified Harris the case was set for
dismissal on March 17, 2023, again with the same instructions described in earlier
notices.
On March 1, 2023, Harris filed a second motion for service of process, again
requesting the constable serve enclosed citations upon Prosperity Bank or its
president. The record reflects that, on May 8, 2023, citation issued but was again
returned unserved. On May 22, 2023, Harris asked the trial court to retain his case
on the docket, explaining he was still attempting to serve process.
–3– On May 29, 2023, the court ordered the case be retained on the docket. On
May 31, 2023, the trial court notified Harris the case was set for dismissal on July
14, 2023. The notice stated, “If no answer has been filed you are expected to have
moved for a default judgment on or prior to the above stated date. Failure to move
for a default judgment will result in the dismissal of the case on the above date.”
Harris filed a motion to abate this order, arguing he could not move for default
judgment without first achieving service of process.
On August 2, 2023, the trial court denied Harris’s motion to abate and signed
an order dismissing Harris’s suit for want of prosecution. This appeal followed.
Discussion
As stated above, we will liberally construe Harris’s first two issues to argue
the trial court abused its discretion in dismissing his suit for want of prosecution.2
We review a dismissal for want of prosecution under a clear abuse of
discretion standard. Dixon v. AT&T Corp., No. 05-18-00593-CV, 2019 WL
1323964, at *2 (Tex. App.—Dallas Mar. 25, 2019, no pet.) (mem. op.). Thus, we
consider whether the trial court acted without reference to any guiding rules and
principles and will not reverse the trial court’s order unless it was arbitrary or
2 Harris stated these issues as follows in his brief: “whether a default judgment can be filed against a defendant when strict compliance of the rules has not been followed and defendant has not been served process to answer alleged claims”; and “whether it is abuse of discretion for trial court to propose Harris move for default judgment at the court’s direction, and failure to move for default judgment will result in dismissal of the case on the above date for want of prosecution.” –4– unreasonable. Stone v. Cunningham, No. 05-06-01151-CV, 2007 WL 1206677, at
*1 (Tex. App.—Dallas Apr. 25, 2007, pet. denied) (mem. op.).
A dismissal based on lack of service is grounded in the court’s inherent power
to dismiss. Gamboa v. Alecio, 604 S.W.3d 513, 517 (Tex. App.—Houston [14th
Dist.] 2020, no pet.); Stone, 2007 WL 1206677, at *1–2. The central issue in such a
case is whether the plaintiff exercised reasonable diligence in prosecuting his suit.
Dixon, 2019 WL 1323964, at *2 (citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex.
1997) (per curiam)). A pro se litigant is held to the same standards as a licensed
attorney and must comply with applicable laws and rules of procedure. Strange v.
Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied).
Here, the trial court first provided Harris notice his suit would be dismissed
three months after the original petition was filed unless he moved for default
judgment or filed a motion to retain the case on the docket to secure more time to
obtain service of process. Thereafter, the trial court extended the time for Harris to
serve process three times, ultimately giving him nearly a year to do so. While the
record reflects Harris attempted to serve process, he was unsuccessful in doing so.
“Upon the filing of the petition, the clerk, when requested, shall forthwith
issue a citation and deliver the citation as directed by the requesting party. The party
requesting citation shall be responsible for obtaining service of the citation and a
copy of the petition.” TEX. R. CIV. P. 99(a) (emphasis added). Under this rule, “it
is the duty of the clerk both to issue citations and deliver them as directed by the
–5– party requesting issuance,” and “[t]he clerk does not complete his duty under the
rule until he delivers the citations as directed.” Boyattia v. Hinojosa, 18 S.W.3d 729,
733–34 (Tex. App.—Dallas 2000, pet. denied). A party may ordinarily rely on the
clerk to perform this duty within a reasonable time. Id. Ultimately, however, the
duty to exercise diligence in ensuring that service is accomplished remains with the
plaintiff. De La Cerda v. Jaramillo, No. 01-17-00595-CV, 2018 WL 1189065, at
*5 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem. op.); Boyattia, 18
S.W.2d at 733 (noting plaintiff’s duty to exercise diligence continues until service
of process is achieved).
Nothing in the record shows that, over the course of the suit, Harris attempted
to provide the clerk with sufficient information to accomplish service after the initial
failure. Instead, it reflects that Harris doubled down on prior ineffective requests for
service. Given this, we cannot conclude the trial court abused its discretion in
dismissing Harris’s suit for want of prosecution. See Edison v. Houston Police
Dep’t, No. 01-06-00552-CV, 2007 WL 1633911, at *1 (Tex. App.—Houston [1st
Dist.] June 7, 2007, no pet.) (mem. op.) (concluding trial court did not abuse
discretion in dismissing suit for want of prosecution when appellant failed to achieve
service of process over course of year despite attempts at service because, “[w]ith
diligence, [appellant] should have been able to determine well before [dismissal] that
service not been completed and that he had not provided the clerk with correct
service information”); see also Stone, 2007 WL 1206677, at *2 (concluding trial
–6– court did not abuse discretion in dismissing suit for want of prosecution where the
inmate did not diligently pursue service of process); Allen v. Rushing, 129 S.W.3d
226, 231 (Tex. App.—Texarkana 2004, no pet.) (concluding trial court did not abuse
discretion in dismissing suit for want of prosecution when appellant failed to achieve
service of process over course of year when appellant “should have been able to
determine that the citation had not issued and service not completed because he had
not provided the clerk with sufficient information”). Harris’s first two issues are
overruled.
In his third issue, Harris argues the trial court improperly dismissed his suit
pursuant to rule of civil procedure 165a. See TEX. R. CIV. P. 165a (providing a case
may be dismissed for want of prosecution when (i) any party seeking affirmative
relief fails to appear for any hearing or trial of which the party had notice or (ii) the
case is not disposed of within the time standards promulgated by the Texas Supreme
Court under its Administrative Rules). He relies on two prior decisions of this Court.
In the first case, Lopez v. Harding, 68 S.W.3d 78, 79 (Tex. App.—Dallas
2001, no pet.), the trial court sent the appellant a notice his case was set for dismissal
“pursuant to Rule 165a, Texas Rules of Civil Procedure[.]” The notice stated, among
other things, “Failure to request a trial setting in writing, prior to [a certain date],
will result in dismissal. Id. at 79. Although the appellant requested a jury trial, he
did not do so in writing, and the trial court eventually dismissed the case because the
appellant failed to “take action after notice of intent to dismiss for want of
–7– prosecution.” Id. at 80. As pertinent here, the Court concluded that, because the
notice of dismissal referenced only rule 165a, the trial court could not rely on its
inherent authority in dismissing the case. Id.
Similarly, in Reyna v. Mitchell, No. 05-07-01259-CV, 2008 WL 5062954, at
*2 (Tex. App.—Dallas Dec. 2, 2008, no pet.) (mem. op.), the trial court’s dismissal
hearing notice referenced only rule 165a. We concluded that dismissal under rule
165a was improper under the circumstances present in that case. Id. Further,
“[b]ecause the dismissal notice stated the case was set for dismissal pursuant to rule
165a, dismissal for failure to prosecute this case diligently pursuant to the trial
court’s inherent authority was not authorized.” Id.
Here, by contrast, each of the trial court’s dismissal hearing notices referenced
“the inherent power of the court,” in addition to rule 165a, as the basis for dismissal.
The order of dismissal stated, in pertinent part, “It is therefore ordered, adjudged,
and decreed by the court that the case is hereby dismissed for want of prosecution.”3
Thus, the dismissal hearing notices did not inhibit the trial court here, as they did in
Lopez and Reyna. We conclude the trial court acted within its inherent authority in
dismissing the case. Harris’s third issue is overruled.
3 Harris contends the order specifically referred to rule 165a, but this is not correct. Although a notice of the order of dismissal sent by the clerk to Harris referenced rule 165a, Harris makes no argument why this notice controls over the plain language of the order of dismissal. –8– Conclusion
Having overruled Harris’s appellate issues, we affirm the trial court’s order of
dismissal. All pending motions are dismissed as moot.
/Ken Molberg/ KEN MOLBERG 230880F.P05 JUSTICE
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DARIN DERAIL HARRIS, On Appeal from the 134th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-22-09835. No. 05-23-00880-CV V. Opinion delivered by Justice Molberg. Justices Nowell and PROSPERITY BANK, Appellee Kennedy participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 7th day of August 2024.
–10–