Nance v. Nance

• Decision Date: 31 July 1995
• Docket Number: No. 13-92-712-CV,13-92-712-CV
• Parties: Sherry A. NANCE, Appellant, v. Thomas NANCE and Nelda Nance, Appellees.
• Court: Texas Court of Appeals

Page 890

904 S.W.2d 890

Sherry A. NANCE, Appellant, v. Thomas NANCE and Nelda Nance, Appellees.

No. 13-92-712-CV.

Court of Appeals of Texas,

Corpus Christi.

July 31, 1995.

Dissenting Opinion of Justice Yanez Aug. 3, 1995.

Sherry A. Nance, Gatesville, pro se.

David Aken, County Atty., Sinton, for appellees.

Before SEERDEN, C.J., and DORSEY and YANEZ, JJ.

OPINION

DORSEY, Justice.

Thomas M. Nance and Nelda Nance, appellees, sued Sherry A. Nance, appellant, for personal injuries to Thomas M. Nance and for the wrongful death of Thomas N. Nance. The injuries and death were caused by appellant shooting them. Appellant, although confined in state prison, appeared pro se by filing a written answer to appellees' action and a counter-claim seeking affirmative relief. After a non-jury trial, judgment was entered against appellant for $901,500, and she took nothing by her counter-claim. Appellant timely perfected appeal.

Appellant appears pro se in this Court. She has not filed a statement of facts. ¹ The judgment reflects that Thomas M. and Nelda Nance appeared in court and, by attorney of record, announced ready for trial but that Sherry Nance did not appear "due to the results of the hearing of September 11, 1992." The judgment further reflects that no jury was demanded and the matter was submitted to the court. The Court, "after hearing the evidence and arguments of counsel," awarded damages to the appellees and found appellant's counterclaim without merit.

Appellant's first point, in its unedited entirety, recites:

TRIAL COURT ERRED IN FAILING TO JOIN PARTIES WITHOUT WHICH JUST ADJUDICATION CANNOT BE OBTAINED. AND FAILED TO COMBINE CAUSES WHICH WOULD HAVE BEEN INDICATED THEY HAD DONE BY THE GIVING OF COUNTERCLAIM THE SAME NUMBER OF THE WRONGFUL DEATH ACTION 20,112-A. WHICH WOULD HAVE INDICATED TO A PERSON REASONABLE PERSON THIS HAD BEEN DONE.

We cannot determine the exact nature of appellant's complaint. The transcript bears the trial court's number 20,112-A. Appellees' and appellant's pleadings, as well as the judgment and all other documents contained in the transcript, bear this same cause number. There is no motion in the record for leave to join other parties and no order indicating the trial court refused to allow any requested joinder.

Appellant also asserts under this point of error that the trial court deprived her of constitutional rights by not notifying her of rulings on motions. The record before this Court, which consists of the transcript alone, fails to substantiate appellant's claim that the trial court failed to give appropriate notices. Point one is overruled.

In point two, appellant asserts:

TRIAL COURT FURTHER ERRED IN DISMISSING OF ACTION OF COUNTERCLAIM IN OPPOSITION TO RULE 41(2).

Appellant purports to quote Federal Rule of Civil Procedure 41(2). As this case was heard in state court, the federal rules are inapplicable. Therefore, appellant's argument is without merit.

If we treat the point as a challenge to the trial court's finding that appellant's counterclaim was without merit, we are nevertheless unable to reach the merits of the challenge because we lack a statement of facts. In the absence of a statement of facts, we assume the evidence, or lack of evidence, supports the judgment. Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex.1987). Point of error two is overruled.

Unedited, point three reads:

IN ACCORD WITH THE ABOVE NAMED RULE TRIAL COURT ERRED IN NOT RETAINING COUNTERCLAIM AS WAS NECESSARY FOR JUST ADJUDICATION TO DO THIS VIOLATED APPELLANTS RIGHT OF ACCESS TO COURTS WHICH ARE LIMITED BY VIRTUE OF HER INCARCERATION. THIS VIOLATED SUPREME LAW OF THE LAND AS SET DOWN BY THE SUPREME COURT.

Within her argument under this point, appellant asserts that she was deprived of property without due process of law and was denied access to the courts by the trial court's refusal to issue a bench warrant and refusal to appoint counsel for her in this matter. We presume appellant is complaining about the trial court's action on the appellees' claim as well as its action on appellant's counterclaim.

While we could extensively review the law relating to an indigent prisoner's right to be present at a civil trial, we find no such need in the present case. The courts addressing this issue have generally found that prisoners have no absolute right to appear personally at a civil proceeding, but the appellate courts have held that the trial court must balance, by considering various factors, the government's interest in protecting the integrity of the correctional system against the prisoner's right of access to the courts. See Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex.App.--San Antonio 1991, no writ); Birdo v. Holbrook, 775 S.W.2d 411, 413 (Tex.App.--Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex.App.--Dallas 1987, no writ); Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976); but see Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.App.--Tyler 1989, no writ). Texas courts continue to apply this analysis. See Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex.App.--Texarkana 1994, no writ); Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex.App.--Beaumont 1994, no writ).

In the present case, the transcript contains an order which reflects that after conducting a hearing, the trial court determined not to issue a bench warrant to secure appellant's presence at trial. The order reflects various findings demonstrating that the trial court did not arbitrarily refuse to issue the requested bench warrant.

An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear that the trial court's decision was arbitrary and unreasonable. Simon, 739 S.W.2d at 795. We do not have a statement of facts from the bench-warrant hearing, as noted above, because appellant failed to comply with the necessary Rules of Appellate Procedure. When an appellant fails to file a statement of facts on appeal, the reviewing court must presume that the evidence before the trial judge was adequate to support the decision. Simon, 739 S.W.2d at 795. Point of error three is overruled.

Appellant's fourth point reads:

THE TRIAL COURT ERRED IN BOTH DENYING THE JOINDER OF PARTIES AND IN NOT ALLOWING COUNTERCLAIM SEPARATE ADJUDICATION. THIS WAS DONE WITHOUT APPELLANTS KNOWLEDGE OF MOTION FOR THIS NOT KNOWING THIS COUNTERCLAIM WAS DENIED. JUDGE ABUSED HIS DISCRETION IN DOING THIS AND THEREBY VIOLATED APPELLANTS PRISONERS CONSTITUTIONAL RIGHTS, OF DUE PROCESS, EQUAL PROTECTION OF THE LAWS AND EQUAL ACCESS TO THE COURTS. ALSO THIS DENYING OF APPELLANTS BENCH WARRANT AND THE SUBSEQUENT RIGHT TO REPRESENT HER INTEREST IN LITIGATION TO DEPRIVE HER OF PROPERTY IS ALSO GROSS VIOLATION OF THE RIGHTS GUARANTEED BY THE SUPREME LAW OF THE LAND.

Under this point, appellant alleges that appellees' negligence exceeds that of her own negligence. Appellant also purports to cite another rule of federal procedure concerning consolidation of proceedings. We do not understand appellant's contentions. It is apparent that the trial court heard appellees' claims against appellant and appellant's counterclaim. Nothing in the record shows that appellant attempted to join anyone else or that the trial court denied any joinder. With respect to appellant's counterclaim argument, we again resolve any complaint in appellees' favor as appellant has not furnished us with a statement of facts. Simon, 739 S.W.2d at 795. Point four is overruled.

In point five, appellant complains that, because of the contributory negligence statute, see TEX.CIV.PRAC. & REM.CODE ANN. § 33.001 (Vernon Supp.1994), the trial court erred in awarding damages based on appellant's negligence. On the record we have, we cannot determine whether the trial court erred. Point five is overruled.

The judgment of the trial court is affirmed.

Dissenting Opinion by YANEZ, J.

YANEZ, Justice.

I respectfully dissent from the majority opinion. I find appellant's point of error number three meritorious. I would sustain appellant's due process points and reverse and remand.

Appellant filed an answer to Thomas and Nelda's petition and also counterclaimed against Thomas Nance, Nelda Nance, and Brenda Parr for money damages. Thomas and Nelda filed an answer to the counterclaim, as did Brenda Parr. Thereafter, appellant filed a motion for appointed counsel. She also requested a bench warrant so she could represent herself at trial. After a hearing on these motions, which appellant did not attend, the trial court denied both. The cause was heard on October 29, 1992, on which date appellees appeared and presented evidence. Appellant failed to appear, and the court entered a post-answer default judgment against her on appellees' claims. ¹ Appellant took nothing on her counterclaim. Appellant complains that the trial court denied her right to counsel, deprived her of access to the courts, and deprived her of property without due process of law. I address appellant's due process claim because I deem it dispositive of the current appeal.

Appellant contends generally that she was denied due process because her claims were foreclosed and the judgment against her was essentially rendered ex parte, without adequate notice of the trial setting, and without the assistance of counsel. The record shows that appellant filed pretrial motions and a motion for new trial urging these contentions. I address the issues of the ex parte judgment and of the denial of access to the courts.

A small body of case law exists in Texas on an inmate litigant's right to personally appear at a civil trial. While prisoners have a right of access to the courts, an inmate does not have an unconditional right to attend a civil trial in which she is a litigant. See Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984); Bounds v. Smith, 430 U.S. 817, 821-22, 97 S.Ct. 1491, 1494-95, 52 L.Ed.2d 72 (1977); Ballard v....