Clark Edward Dixon v. AT&T Corporation ( 2019 )

AFFIRMED; Opinion Filed March 25, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00593-CV
CLARK EDWARD DIXON, Appellant
V.
AT&T CORPORATION, Appellee
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-17-16892-D
MEMORANDUM OPINION
Before Justices Bridges, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
Appellant Clark Edward Dixon, a prisoner proceeding pro se, appeals the trial court’s order
dismissing his action for want of prosecution. Dixon enumerates two issues on appeal: (1) whether
foreign litigants in Texas courts are entitled to the same rights as Texas citizens; and (2) whether
the trial court’s dismissal of his subpoena request was contrary to the Supreme Court’s holding in
Brady v. Maryland, 373 U.S. 83 (1963). Although not enumerated as issues on appeal, Dixon also
challenges the trial court’s dismissal to the extent it was based on his failure to appear through an
attorney, and he contends the trial court abused its discretion by assessing costs against him.
We affirm.
I. FACTUAL AND PROCEDURAL CONTEXT
Dixon is an Oklahoma state prisoner who was tried and convicted in September 2011. At
his trial, his ex-wife purportedly testified she did not immediately call authorities to report Dixon’s
crime because her cell-phone reception was poor, and she did not have access to a land-line
telephone.1
On December 4, 2017, Dixon sent the trial court a document titled “MOTION FOR A
PLAIN OR SUBPOENA DUCES TECUM” (the Petition). Along with his Petition, Dixon sent a
sworn statement explaining that he was poor and could not afford to pay the filing fee. In his
Petition, Dixon theorized that, if he could obtain evidence showing his ex-wife placed or received
telephone calls or text messages during the relevant time period, he could demonstrate her
testimony was untruthful in his post-conviction proceedings. Thus, citing (and misinterpreting) an
Oklahoma statute concerning the issuance of subpoenas,2 Dixon’s Petition asked the trial court to
issue a subpoena to Appellee AT&T Corporation,3 requiring it to provide relevant phone records.
On December 13, 2017, the trial court sent Dixon a standard notice informing him it would
hold a hearing on February 8, 2018, at which Dixon would be required to show good cause as to
why his action should not be dismissed for want of prosecution. The notice instructed that, if
service was perfected and no answer filed, Dixon would have to move for or prove up a default
judgment prior to the hearing, otherwise the action would be dismissed. Further, it instructed that
failing to appear at the hearing would result in dismissal.
1
Although Dixon’s brief on appeal characterizes telephone access as the sole reason given by his ex-wife for why she waited to call authorities,
the partial transcript attached to his brief reveals telephone access was only one of the factors underlying her decision.
2
See OKLA. STAT. ANN. tit. 12, § 2004.1(A)(2)(b). This statutory provision addresses instances where a subpoena seeks records located in
Oklahoma in connection with an action pending outside of Oklahoma. It does not, as Dixon appears to believe, address the opposite situation—
where a subpoena seeks records located outside of Oklahoma in connection with an action pending in Oklahoma.
3
Dixon named the State of Texas as Appellee in his notice of appeal, but the State of Texas was not a party in the suit underlying the judgment
from which Dixon appeals and thus is not a proper party to this appeal.
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After receiving the notice, Dixon prepared a “Notice of Filing” in which he purported to:
(1) provide notice of the Petition to AT&T; (2) ask for a response within 10 days; and (3) explain
that he sent a certified copy of the Petition to AT&T’s subpoena division by certified mail on
January 2, 2018. According to the certificate of service, Dixon mailed his “Notice of Filing” to
AT&T’s subpoena division on January 4, 2018. On the same day, Dixon mailed the “Notice of
Filing” to the trial court, along with a letter explaining that he could not afford to pay a lawyer to
appear on his behalf and had no means of being transported to Dallas to appear at the scheduled
hearing. Thus, he requested that the trial court either appoint an attorney to represent him or allow
his Petition to speak for itself.
Two weeks later, Dixon sent the trial court another letter, attaching a copy of the return
receipt showing AT&T received his certified mailing on January 8, 2018. He further explained
that AT&T had not yet answered, and he asked that, if an answer was not received by the date of
the scheduled show-cause hearing, judgment be issued in his favor. He reiterated that he could
only argue through his Petition “[u]nless the court assigns . . . counsel to represent him.” As a post-
script, Dixon asked: “Is there a form to be filled out to provide for default judgment”?
On February 8, 2018, the trial court sent Dixon a notice stating that his show-cause hearing
would be re-set for April 12, 2018. In this second notice, the trial court made clear it would not
appoint counsel for Dixon and explained exactly what Dixon would need to do in order to prevent
his action from being dismissed for want of prosecution:
An attorney WILL NOT be appointed to represent you in this matter by this
Court. You will need to request service from the Dallas County District Clerk’s
office. If you have not perfected service on all parties prior to the dismissal date
you must appear at the dismissal hearing. During the hearing you will have the
opportunity to show good cause for maintaining the case on the docket. At the
dismissal hearing the court shall dismiss for want of prosecution unless there
is a showing of good cause.
If you have perfected service and no answer has been timely filed, you must have
moved for or have proved up a default judgment on or prior to the above date.
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Failure to do so prior to the dismissal hearing will result in the dismissal of the
case . . . . Failure to appear at this hearing shall result in dismissal of this case
for want of prosecution.
The record does not indicate Dixon contacted the Dallas County District Clerk’s office to
request service. On the contrary, Dixon responded approximately three weeks later by sending the
trial court a document titled “MOTION FOR DISPOSITION AND SUMMARY JUDGMENT.”
In that document, Dixon stated: “At this time, no responses, objections or answers has [sic] been
given by the AT &T CORPORATION or this Court.” Dixon therefore asked the trial court to
“immediately issue an order on this pending action, or issue Summary Disposition to the pending
motions currently filed.”
On April 12, 2018, the trial court issued the order from which Dixon timely appeals. It
states that a hearing was held and, “[d]espite due and adequate notice thereof, the counsel for
Plaintiff(s) failed to appear. The bailiff sounded the hall thrice, yet no appearance was made.” The
trial court therefore dismissed Dixon’s action for want of prosecution and taxed costs “against the
party incurring same.”
II. DISCUSSION
A. Standards of Review
We review a dismissal for want of prosecution under a clear-abuse-of-discretion standard.
See MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam); Stone v. Cunningham, No.
05-06-01151-CV, 2007 WL 1206677, at *1 (Tex. App.—Dallas Apr. 25, 2007, pet. denied) (mem.
op.). The central issue in such a case is whether the plaintiff exercised reasonable diligence.
MacGregor, 941 S.W.2d at 75. And the test for determining whether the trial court abused its
discretion is “whether the court acted without reference to any guiding rules and principles.”
Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Stone, 2007 WL 1206677, at *1. We
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will not reverse the trial court’s ruling unless it was arbitrary or unreasonable. Cire, 134 S.W.3d
at 839; Stone, 2007 WL 1206677, at *1.
B. Issues on Appeal
The two issues specifically enumerated by Dixon on appeal—(1) whether foreign litigants
in Texas courts are entitled to the same rights as Texas citizens and (2) whether the trial court’s
dismissal of his subpoena request was contrary to the Supreme Court’s holding in Brady v.
Maryland, 373 U.S. 83 (1963)—have been waived because Dixon failed to present them first to
the trial court. See TEX. R. APP. P. 33.1; USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510
(Tex. 2018); Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 871 (Tex. App.—Dallas
2005, no pet.). Likewise, to the extent Dixon challenges the district court’s assessment of costs, he
failed to preserve that issue for appeal. See Gober v. Davis, No. 10-06-00043-CV, 2007 WL
1147353, at *3 (Tex. App.—Waco Apr. 18, 2007, no pet.) (mem. op.) (“Parties must give notice
to the trial court of their dissatisfaction with the assessment of costs in order to complain of that
assessment on appeal.” (internal quotations omitted)).
Nevertheless, construed liberally, Dixon’s appellate brief raises a preserved challenge to
the dismissal—at least to the extent the dismissal was based on Dixon’s not being represented by
counsel. Dixon infers the trial court must have required him to appear through an attorney, because
the order of dismissal notes that counsel did not appear on Dixon’s behalf. But the trial court never
specified the method by which Dixon was required to appear to show cause, and its dismissal was
not based on Dixon’s lack of counsel; it was based on Dixon’s lack of diligence in obtaining service
and his failure to show good cause for keeping the case on the docket.
Further, although Dixon explained to the trial court that he could not arrange to be
transported to Dallas to attend the hearing in person, the record does not reflect any unresolved
requests from Dixon that proposed a reasonable alternative means for either attending the hearing
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or showing good cause. The only other request he made was for the court to rule on the papers he
submitted. Thus, this case is unlike others in which we have held that the trial court effectively
prevented a pro se inmate from pursuing his claims. See, e.g., Hutchinson v. Hutchinson, 299
S.W.3d 840, 842–43 (Tex. App.—Dallas 2009, no pet.) (holding that the trial court abused its
discretion by dismissing for failure to appear despite inmate’s motion to appear by reasonable
alternative means); Reese v. Reese, 256 S.W.3d 898, 899–900 (Tex. App.—Dallas 2008, no pet.)
(same); In re Marriage of Bolton, 256 S.W.3d 832, 834 (Tex. App.—Dallas 2008, no pet.) (same).
Moreover, Dixon failed to perfect service of process, despite the trial court’s clear
instruction that he request service through the clerk of the court. See TEX. R. CIV. P. 103 (“Service
by registered or certified mail . . . must, if requested, be made by the clerk of the court in which
the case is pending. But no person who is a party to or interested in the outcome of a suit may
serve any process in that suit . . . .”); Stone, 2007 WL 1206677, at *2 (holding that the trial court
was within its discretion to dismiss an inmate’s claim for want of prosecution where the inmate
did not diligently pursue service of process); see also De La Cerda v. Jaramillo, No. 01-17-00595-
CV, 2018 WL 1189065, at *6–7 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem.
op.) (same); Allen v. Rushing, 129 S.W.3d 226, 231 (Tex. App.—Texarkana 2004, no pet.) (same).
The trial court therefore did not abuse its discretion by dismissing Dixon’s action on account of
his failure to exercise reasonable diligence in prosecuting it.
III. CONCLUSION
We affirm the trial court’s order of dismissal.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
180853F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CLARK EDWARD DIXON, Appellant On Appeal from the 95th District Court,
Dallas County, Texas
No. 05-18-00593-CV V. Trial Court Cause No. DC-17-16892-D.
Opinion delivered by Justice Carlyle.
AT&T CORPORATION, Appellee Justices Bridges and Partida-Kipness
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 25th day of March, 2019.
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