ALFRED STONE, Appellant v. VICKERS CUNNINGHAM, SR., Appellee

AFFIRM and Opinion Filed April 25, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01151-CV
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ALFRED STONE, Appellant
V.
VICKERS CUNNINGHAM, SR., Appellee
.............................................................
On Appeal from the 116th District Court
Dallas County, Texas
Trial Court Cause No. 06-00932-F
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MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Richter
Opinion By Justice Richter
        Alfred Stone, appearing pro se, appeals the trial court's dismissal for want of prosecution. After considering his arguments, we affirm the trial court's judgment.
Background
        Stone was convicted of burglary of a building, enhanced by two prior felony convictions, in cause number 91-42452 in the 283rd district court and assessed a seventy-year sentence. We affirmed this conviction April 26, 1993.   See Footnote 1  In May 2006, Stone filed a petition for writ of habeas corpus complaining his 1991 felony conviction exceeded the maximum allowed. We dismissed his petition for want of jurisdiction on May 25, 2006.   See Footnote 2 
        Stone is now before us again appealing a dismissal for want of prosecution. His present claims are based on pretrial motions he filed on October 20, 2005 in the 283rd district court involving his prior burglary conviction. He alleges the trial court failed to rule on these motions. On January 27, 2006, Stone filed a “writ of mandamus,” which was assigned to the 116th civil district court, arguing Judge Cunningham should be compelled to rule on the pending pretrial motions.
        On March 21, 2006, Stone filed an appearance and motion for entry of default judgment because Judge Cunningham had failed to answer his “complaint.” On April 14, 2006, he filed a notice of citation with the district clerk informing the judge he had been sued. There is no evidence in the record Judge Cunningham was ever properly served. The district court sent notice on May 3, 2006 that the case was set for dismissal on May 18, 2006 unless good cause was shown.
        Stone filed a motion to retain the case on May 18, 2006 arguing the case should not be dismissed because (1) he filed a writ of mandamus and other documents with the court, (2) he has had no opportunity to be heard on his issue, and (3) Judge Cunningham was not hopelessly prejudiced in the case by him in any way. The trial court dismissed the case on May 31, 2006, and all post-judgment motions were overruled on August 4, 2006. He now appeals the trial court's dismissal for want of prosecution.
Standard of Review and Applicable Law
        We review a trial court's dismissal for want of prosecution for abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). The test is not whether, in our opinion, the record presents an appropriate case for the trial court's action, but “whether the court acted without reference to any guiding rules and principles.” Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). The trial court's order should be reversed only if it was arbitrary or unreasonable. Id. Further, because the order of dismissal in this case states it was “dismissed for want of prosecution,” we will review the order based on the inherent power of a trial court to dismiss a case that has not been prosecuted with due diligence. Rampart Capital Corp. v. Maguire, 974 S.W.2d 195, 197 (Tex. App.-San Antonio 1998, pet. denied).
 
        In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, the length of time the case was on file, the extent of activity in the case, the request of a trial setting, the existence of reasonable excuses for delay, and the reasonable diligence of serving the opposing party. Polk v. Southwest Crossing Homeowners Ass'n, 165 S.W.3d 89, 97 (Tex. App.-Houston [14th Dist.] 2005, pet. denied); Allen v. Rushing, 129 S.W.3d 226, 231 (Tex. App.-Texarkana 2004, no pet.).
Application of Law to Facts
        Although this cause of action was on the trial court's docket for less than four months prior to dismissal, the record does not support the conclusion that the trial court abused its discretion in concluding Stone failed to use reasonable diligence in advancing his case.   See Footnote 3  In determining whether Stone diligently prosecuted his claim, he provides no evidence in the record that he exercised reasonable diligence in serving Judge Cunningham. Allen, 129 S.W.3d at 231 (holding court may also consider evidence of attempting to serve the named defendant when determining if case was diligently prosecuted). The rules of procedure provide that once a plaintiff initiates a lawsuit by filing an original petition, citation should issue and be served as directed by the requesting party, along with the original petition, on all named defendants. Tex. R. Civ. P. 99(a). The party requesting citation is responsible for obtaining service of the citation and petition. Id. When the citation is not issued and served promptly, the suit is not affected unless the plaintiff is responsible for the failure of the district clerk to do his duty. Allen, 129 S.W.3d at 231.
        In Allen v. Rushing, the court held because the citation did not specify a manner of delivery (such as by private process server, through the sheriff's office, by publication, or certified mail), the petition provided the court clerk with no direction regarding the method and manner of delivery of the citation. 129 S.W.3d at 231. As such, this factor was considered by the court in determining whether plaintiff diligently prosecuted his claim. Id. Similar to the facts in Allen, here Stone failed to comply with Texas Rules of Civil Procedure 103 (who may serve) and 106 (method of service) because he never provided the district clerk with the method of service, who should be served, and who would deliver the actual citation.   See Footnote 4  Without such information, which was Stone's responsibility, the clerk was unable to carry out his duty of serving citation. See, e.g., Boyattia v. Hinojosa, 18 S.W.2d 729, 733 (Tex. App.-Dallas 2000, pet. denied) (noting plaintiff's duty to exercise diligence continues until service of process is achieved). Likewise, we note there is no return of citation or any other documentation in the record establishing Judge Cunningham was ever properly served with the alleged petition. Thus, Stone failed to diligently pursue his claim.
        Although Stone requested a trial setting and the case was not on the docket for a long period of time, our review of the activities and filings in the case establish the trial court did not act unreasonably or arbitrarily in dismissing the case for want of prosecution. Stone accepted the role of pro se plaintiff and had the burden of prosecuting his case with diligence and under the same rules as a licensed attorney. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied) (holding pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure). This he did not do.
        We overrule Stone's issue on appeal and affirm the trial court's judgment.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
061151F.P05                
 
Footnote 1 Stone v. State, No. 05-91-01392-CR, 1993 WL 147086 (Tex. App.-Dallas April 26, 1993, pet. ref'd) (not designated for publication).
Footnote 2 In re Stone, No. 05-06-00651-CV, 2006 WL 1430194 (Tex. App.-Dallas May 25, 2006, pet. transferred) (not designated for publication).
Footnote 3 We note Stone filed a “mandamus” and appears to be relying on this as his original petition in the suit against Judge Cunningham. Because the trial court treated Stone's mandamus as an original petition and a “liberal construction of the pleading is appropriate” when determining jurisdiction, we assume the trial court properly had jurisdiction over this matter. Tex. Dep't of Transp. v. Beckner, 74 S.W.3d 98, 103-04 (Tex. App.-Waco 2002, no pet.) (noting a liberal construction of the pleading is appropriate, and the trial court will assume jurisdiction until it is proven otherwise).
Footnote 4 He further failed to comply with the requirements of Rule 99(b). Tex. R. Civ. P. 99(b). Specifically, the citation we have in the record before us does not reflect the date the citation was issued, does not show the date any petition was filed, and does not show it was signed by the clerk under seal.