Pruske v. Dempsey
| Decision Date | 27 November 1991 |
| Docket Number | No. 04-91-00205-CV,04-91-00205-CV |
| Parties | Alfred David PRUSKE, Sr., Appellant, v. Susan DEMPSEY, Appellee. |
| Court | Texas Court of Appeals |
Alfred D. Pruske, Sr., pro se.
E. Nicholas Milam, Guevara & Milam, P.C., San Antonio, for appellee.
Before PEEPLES, BIERY and CARR, JJ.
Susan Dempsey sued Alfred Pruske, Sr., appellant, for monetary damages arising out of Pruske's alleged physical beating and mental harassment of Dempsey. Pruske was served with citation in the Texas Department of Corrections Institutional Division and filed a pro se answer on October 19, 1990. On October 29, 1990, Dempsey's attorney, E. Nicholas Milam, obtained a non-jury trial setting for December 17, 1990, and certified that the notice of trial setting was sent to Pruske by certified mail return receipt requested. Pruske responded by writing to Mr. Milam, acknowledging receipt of the notice of the December 1990 setting, and pointing out that he had asked the court to appoint an "attorney ad litem" for him and to issue a bench warrant.
On December 17, 1990, a post-answer default judgment was entered against Pruske in the amount of $150,000.00, and his purported third-party claims against numerous individuals were found to have no evidence supporting them. A take nothing judgment was entered as to the purported third-party claims. 1
Pruske filed a motion to set aside the judgment, and a hearing was set for January 22, 1990, at which time the motion for new trial was overruled by a written order. Apparently, a second motion for new trial was filed which was subsequently overruled by written order on March 1, 1991.
Although Mr. Pruske made a request for a statement of facts, 2 no statement of facts from the hearings below was presented to this Court. Mr. Pruske appeals presenting four points of error claiming the court erred in: (1) depriving Mr. Pruske of effective, meaningful, or adequate access to the courts; (2) failing to apply the liberal standard requirement of Rule 45 of the Texas Rules of Civil Procedure with reference to Mr. Pruske's pleadings; (3) depriving Mr. Pruske of the right to appear and defend in court; and (4) abusing its discretion in entering the default judgment which was void as a matter of law.
We first address Mr. Pruske's second point, which contends that the trial court failed to apply Rule 45 of the Texas Rules of Civil Procedure requiring all pleadings to be construed so as to do substantial justice. While we agree with appellant's authorities that pleadings are to be construed liberally so as to do substantial justice, we cannot agree with his apparent argument that because the trial judge did not accede to appellant's pleaded requests, Rule 45 was violated. Point of error number two is overruled.
We next address points of error one, three, and four. Taken together, these points of error present two issues: (a) whether an incarcerated indigent individual has a right to appointed counsel in a civil action; and (b) whether an incarcerated individual representing himself has the right to be physically present in court to confront witnesses and to present defenses in a civil damage lawsuit.
Mr. Pruske cites us to no authority, and we have found none supporting the proposition that he is entitled to appointed counsel in a civil case. Accordingly, to the extent that points of error one, three, and four relate to his entitlement to appointed counsel contention, they are overruled.
More troubling to us is Mr. Pruske's predicament of being unable to hire a lawyer to defend him and the further inability to appear in person and defend himself. We recognize the practical problems presented to the civil trial courts in bringing incarcerated individuals before the bench. We have found three recent Texas cases which shed some light on the issue; however, all three cases involve situations where the incarcerated individual was a plaintiff seeking affirmative...
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