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concluding regular mail not authorized method of service under rule 21a, which provides for service by physical delivery, certified or registered mail, telephonic document transfer, or such other manner as directed by trial court
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No. 05-09-01497-CV
Opinion Filed April 12, 2011.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-13818-E.
Before Justices MURPHY, FILLMORE, and MYERS.
MEMORANDUM OPINION
LaKeith Amir-Sharif appeals the trial court's order dismissing his case after finding that he is a vexatious litigant. In three points of error, Amir-Sharif contends generally that the trial court abused its discretion and committed reversible error by (1) "excluding and denying [him] an opportunity to participate in the decision making events in this case," (2) refusing or failing to consider and to render decisions on "papers/motions" Amir-Sharif filed, and (3) failing to review Amir-Sharif's lawsuit under a "liberal construction" standard.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite the facts here except as necessary to advise the parties of the Court's decision and the reasons for it. See Tex. R. App. P. 47.4. After reviewing the record, we conclude Amir-Sharif was not served in accordance with Rule 21a of the rules of civil procedure with a motion to declare Amir-Sharif a vexatious litigant, a request that Amir-Sharif be ordered to furnish security, and notice of a November 12, 2009 hearing on the motion and request. Therefore, without addressing the merits of the trial court's declaration that Amir-Sharif is a vexatious litigant and requiring Amir-Sharif to furnish security to the trial court, we reverse the trial court's judgment and remand this case to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).
Amir-Sharif, a pro se inmate, filed a premises liability lawsuit against appellee Quick Trip Corporation alleging he slipped and fell at a Quick Trip store. On November 5, 2009, Quick Trip filed (1) a motion under civil practice and remedies code section 11.051 to declare Amir-Sharif a vexatious litigant, and (2) a request under civil practice and remedies code section 11.055 for Amir-Sharif to furnish security (motion and request). See Tex. Civ. Prac. Rem. Code Ann. § 11.051 (West 2002) (on or before ninetieth day after date defendant files original answer or makes special appearance, defendant may move the court for an order determining that plaintiff is a vexatious litigant and requiring plaintiff to furnish security); Tex. Civ. Prac. Rem. Code Ann. § 11.055(a) (West 2002) (court shall order plaintiff to furnish security for the benefit of moving defendant if, after hearing the evidence on the motion, the court determines that plaintiff is a vexatious litigant). The same day, the trial court set the motion and request for hearing on November 12, 2009, the date Quick Trip requested. See Tex. Civ. Prac. Rem. Code Ann. § 11.053(a) (West 2002) (on receipt of a motion under section 11.051 to declare plaintiff a vexatious litigation and to require plaintiff to furnish security, "the court shall, after notice to all parties, conduct a hearing to determine whether to grant the motion"). On November 5, 2009, Quick Trip served Amir-Sharif with the motion and request and notice of the November 12, 2009 hearing by regular mail.
Amir-Sharif was not present at the November 12, 2009 hearing. After the hearing, the trial court signed the November 12, 2009 order granting Quick Trip's motion, declaring Amir-Sharif a vexatious litigant, and ordering Amir-Sharif to furnish security to the trial court by 5:00 p.m. on December 14, 2009 to guarantee payment to Quick Trip for reasonable expenses incurred in connection with the lawsuit. See Tex. Civ. Prac. Rem. Code Ann. § 11.055(a) (court in its discretion shall determine the date by which the security must be furnished). The trial court ordered that if Amir-Sharif did not furnish the security by the deadline, the trial court would dismiss this case in its entirety without prejudice. See Tex. Civ. Prac. Rem. Code Ann. § 11.056 (West 2002) (court shall dismiss litigation as to a moving defendant if plaintiff ordered to furnish security does not furnish the security within time set by the order). On November 20, 2009, Amir-Sharif filed objections to the November 12, 2009 hearing and a response and request to strike, dismiss, and deny Quick Trip's motion and request. Amir-Sharif alleged he did not receive the requisite notice in advance of the hearing. On December 4, 2009, Amir-Sharif filed objections and a motion to vacate the order granting Quick Trip's motion and request and a request for hearing before December 14, 2009 on all "disputed motions now pending."
Amir-Sharif failed to furnish the security by the stated deadline of December 14, 2009. Two days later, without a hearing, the trial court signed the order of dismissal without prejudice for Amir-Sharif's failure to furnish the security to the trial court as previously ordered. The trial court further ordered that pursuant to section 11.101 of the civil practice and remedies code, Amir-Sharif "is prohibited from filing, pro se, a new litigation in a court in this state." See Tex. Civ. Prac. Rem. Code Ann. § 11.101(a) (West 2002) (court may, on its own motion or motion of any party, enter an order prohibiting a person from filing, in propria persona, a new litigation in a court in this state, if the court finds, after notice and hearing, that the person is a vexatious litigant and the local administrative judge of the court in which the person intends to file the litigation has not granted permission to the person to file the litigation). Amir-Sharif filed this appeal.
In his first point of error, Amir-Sharif generally contends he was denied the opportunity to participate in the November 12, 2009 hearing of Quick Trip's motion and request. The record contains Amir-Sharif's statement that he received Quick Trip's motion and request and notice of the November 12, 2009 hearing on November 10, 2009. The record also contains a document purportedly signed by a prison mail room employee indicating the delivery date of the mail from Quick Trip's counsel to Amir-Sharif was November 10, 2009.
In his reply brief, Amir-Sharif argues more specifically that he was denied the opportunity to participate in the November 12, 2009 hearing because he did not receive actual notice of the hearing until November 10, 2009, "less than 48 hours prior to the hearing conducted."
We review a trial court's finding of a vexatious litigant under an abuse of discretion standard. Harris v. Rose, 204 S.W.3d 903, 906 (Tex. App.-Dallas 2006, no pet.). A trial court abuses its discretion if it acts in an arbitrary and capricious manner without reference to any guiding rules or principles. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Rule of civil procedure 21a specifies the methods by which any notice, pleading, plea, motion or other request that is subject to the rule may be served. Rule 21a provides that service may be accomplished by one of the following methods: (1) physical delivery in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; or (4) such other manner as the trial court in its discretion may direct. Tex. R. Civ. P. 21a; Kendrick v. Garcia, 171 S.W.3d 698, 704 (Tex. App.-Eastland 2005, pet. denied). Notice by regular mail is not an authorized method of service under Rule 21a. Id.; see also Miller v. Prosperity Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.-Dallas 2007, no pet.) (notice may be served on a party by delivering a copy via certified or registered mail to the party's last known address). The record confirms Quick Trip served Amir-Sharif with the motion and request and notice of the November 12, 2009 hearing by regular mail. See Dunn v. Menassen, 913 S.W.2d 621, 626 (Tex. App.-Corpus Christi 1995, writ denied) (where certificate of service states service by regular mail, certificate "on its face does not establish compliance with [Rule 21a]"). Quick Trip did not serve Amir-Sharif with Quick Trip's motion and request and notice of the November 12, 2009 hearing by a method of service authorized under Rule 21a.
"When attempted service pursuant to Rule 21a achieves actual timely delivery to the proper party in a manner that accomplishes the objective of the rule, and no harm is shown, courts have found adequate service." Spiegel v. Strother, 262 S.W.3d 481, 483-84 (Tex. App.-Beaumont 2008, no pet.); see also Jones v. Stayman, 732 S.W.2d 437, 438 n. 5 (Tex. App.-Dallas 1987, no writ) ("requirement of rule 21a that notice be sent by registered or certified mail is waived if the person to be notified actually receives the notice and is not prejudiced by the failure to follow the strict requirement of the rule"). But it is in those instances where parties "fail to make an appearance and participate in a hearing affecting their rights that an examination of the technical aspects of the rules of service and notice are and should be closely examined and adhered to." Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex. Civ. App.-Fort Worth 1966, no writ). This is not a case where the record demonstrates the absence of harm to a party improperly served under Rule 21a. To the contrary, the record reflects that Amir-Sharif received notice two days prior to the November 12, 2009 hearing on Quick Trip's motion and request and in this circumstance had inadequate time to respond to the motion and request in advance of the hearing.
Therefore, we conclude it was an abuse of discretion to declare Amir-Sharif a vexatious litigant and to order him to furnish security to the trial court as ordered on November 12, 2009. Accordingly, the trial court's dismissal of Amir-Sharif's case based on his failure to furnish security to the trial court was error. We sustain Amir-Sharif's first point of error.
In his second point of error, Amir-Sharif asserts the trial court abused its discretion and committed reversible error by refusing or failing to consider and to render decisions on "papers/motions" Amir-Sharif filed. In his third point of error, Amir-Sharif contends the trial court abused its discretion and committed reversible error by failing to review Amir-Sharif's lawsuit under a "liberal construction" standard. Based on our disposition of Amir-Sharif's first point of error, we need not address his second and third points of error. See Tex. R. App. P. 47.1.
We reverse the trial court's judgment and remand this case to the trial court for further proceedings.