FERNANDO IRIZARRY v. MICHAEL J. CLAYBORNE--Appeal from 343rd District Court of Bee County

  NUMBER 13-01-751-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTIBEDINBURG

FERNANDO IRIZARRY, Appellant,

v.

MICHAEL J. CLAYBORNE, Appellee.

On appeal from the 343rd District Court of Bee County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Justice Ya ez

Appellant, Fernando Irizarry, an inmate, appeals the dismissal of his pro se legal malpractice suit for lack of prosecution. We affirm.

Facts

Irizarry filed his original petition on April 23, 1992. Service of process was unsuccessful, and appellant filed a motion for default judgment on July 27, 1993. The trial court never ruled on this motion. Appellant did not take further action until almost four years later, on June 27, 1997, when he requested a pre-trial hearing. The trial court did not honor the request. Nearly two years later, on April 20, 1999, appellant attempted to initiate service of process again. After another unsuccessful attempt to find defendant, the trial court set the case for July 12, 2001. The day before the trial, the court received appellant=s motion for issuance of a bench warrant, or in the alternative, a default judgment. Neither appellant nor appellee appeared on the day of the proceedings and the judge stated, APlaintiff had requested a bench warrant, which I denied; requested default, but service has not been had in this case for over nine years, so the case is dismissed for lack of prosecution.@

Standard of Review

AWe review a dismissal for want of prosecution under a clear abuse of discretion standard; the central issue is whether the plaintiff[] exercised reasonable diligence.@ MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). AThe test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or, equivalently, whether under all the circumstances of the particular case the trial court=s action was arbitrary or unreasonable.@ Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App.BCorpus Christi 1997, no pet.) (citing Koslow=s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990)).

Analysis

By one point of error, with sub-points, Irizarry contends the trial court abused its discretion by dismissing his lawsuit for failure to appear without affording him any method by which he could appear. Yet, the court did not dismiss for appellant=s failure to appear. The court dismissed the suit for lack of prosecution. Nevertheless, in a sub-point, Irizarry complains of the trial court=s failure to issue a bench warrant to afford him an opportunity to appear at hearings related to his lawsuit. However, Aprisoners have no absolute right to appear personally at civil proceedings.@ Pedraza, 960 S.W.2d at 342 (citing Nance v. Nance, 904 S.W.2d 890, 893 (Tex. App.BCorpus Christi 1995, no writ)).

This Court has decided that when determining whether an inmate should attend court proceedings:

the trial court must balance the interest of the State in preserving the integrity of the correctional system with the prisoner=s interest in access to the courts and strike a balance that is fundamentally fair. Factors to be considered in weighing these two interests include: the cost and inconvenience of transporting the prisoner, the security risk presented by the prisoner, the substance of the matter, the need for witnessing the prisoner=s demeanor, whether the trial is before a jury or a judge, and the possibility of delaying trial until the prisoner is released.

Pedraza, 960 S.W.2d at 342 (citing Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.BSan Antonio 1991, no writ)). AGiven that a prisoner has no right to appear in court in a civil case he has initiated, it follows that he must justify his personal appearance.@ Id. Irizarry offered no such justification. His motion for issuance of a bench warrant contains no argument for granting it. Accordingly, the trial court=s refusal to grant appellant=s bench warrant was not an abuse of discretion. Id. Appellant=s sub-point is overruled.

By another sub-point, Irizarry contends that he exercised reasonable diligence in the prosecution of his lawsuit. In essence, he contends the trial court abused its discretion in dismissing for lack of prosecution. In Texas, A[w]hen an unreasonable delay in activity occurs in the prosecution of a case, it is presumed that the action has been abandoned.@ Hosey v. County of Victoria, 832 S.W.2d 701, 704 (Tex. App.BCorpus Christi 1992, no writ). Factors to be considered in determining whether a case was properly dismissed for lack of prosecution are Athe length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and excuses for any delays.@ Id. (citing Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 843 (Tex. App.BSan Antonio 1989, writ denied)). Here, ten years have passed since the initiation of the suit, the suit lay dormant for two- and four-year periods of time, and appellant offers no excuses for his inaction. See MacGregor, 941 S.W.2d at 75-76 (eight-year delay). On these facts, we cannot conclude that the trial court acted arbitrarily or unreasonably when it dismissed the suit for lack of prosecution. Id. at 76. Appellant=s sub-point is overruled.

We have considered all of Irizarry=s pertinent sub-points, and they are all overruled. Consequently, his sole point of error is overruled. The judgment of the trial court is affirmed.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

5th day of December, 2002.