                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-11-00483-CV
                             ________________________

                         ALCARIO ALVARADO, APPELLANT

                                            V.

   JOHNNY BOYLES AND THE LUBBOCK HEALTH CARE CENTER, APPELLEES

                           On Appeal from the 237th District Court
                                  Lubbock County, Texas
              Trial Court No. 2011-557,282, Honorable Leslie Hatch, Presiding


                                     May 17, 2013

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Alcario Alvarado through his sister Lucy Hernandez (“Alvarado”) appeals, pro se,

a summary judgment granted in favor of Johnny Boyles and the Lubbock Health Care

Center. In granting the summary judgment, the trial court denied Alvarado recovery

against Boyles and Lubbock Health Care for the third time in three separate suits.

Alvarado had commenced each suit by filing the same complaint against the same

defendants. The identical complaint was also filed against the same defendants in

federal court, which court dismissed it for want of jurisdiction. Furthermore, the trial
court found Alvarado to be a vexatious litigant when it granted Boyles and Lubbock

Health Care summary judgment for the second time in August of 2010 and the third time

below.

         Alvarado’s brief is rather incomprehensible but can be read as questioning the

trial court’s authority to grant summary judgment, find him to be a vexatious litigant, and

deny him appointed counsel. We affirm.

         First, assuming arguendo that legal counsel may be appointed to represent an

indigent’s interests in a civil proceeding, see TEX. GOV’T CODE ANN. § 24.016 (West

2004) (describing when counsel may be appointed in a civil matter), it is encumbent

upon the litigant to request one. We know of no obligation upon the trial court to foist

legal counsel upon an indigent sua sponte, nor did Alvarado cite us to any such

authority.    This is of import because we found no request by Alvarado for the

appointment of counsel. Having failed to ask for an attorney, Alvarado cannot fault the

trial court for not giving him one.

         Second, and to the extent he suggests that granting summary judgment denied

him due process because he was denied his “day in court,” rules providing for summary

judgment are not unconstitutional. Swafford v. Holman, 446 S.W.2d 75, 80 (Tex. Civ.

App.–Dallas 1969, writ ref’d n.r.e.). When applied correctly, they afford litigants notice

of the issues and opportunity to be heard. More importantly, a jury is not needed to

satisfy due process requirements when there are no material issues of fact

necessitating adjudication. See Sias v. Zenith Ins. Co., No. 08-02-00371-CV, 2003 Tex.

App. LEXIS 4388, at *12-13 (Tex. App.–El Paso May 22, 2003, pet. denied) (mem. op.)

(stating that “[t]he right to a jury trial in civil cases is not absolute, but rather is subject to

certain procedural rules. [Citations omitted]. The function of a summary judgment is

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not to deprive litigants of a jury trial on the merits of any genuine issue of fact. [Citation

omitted]. When a party cannot show a material fact issue, there is nothing to submit to

a jury, and the grant of summary judgment to the opposing party does not violate the

constitutional right to a jury trial”); Mills v. Rice, 441 S.W.2d 290, 292 (Tex. Civ. App.–El

Paso 1969, no writ) (stating that “[n]or does such rule [Rule 166a], when properly

applied, deprive a party of his right to trial by jury . . . . the right to trial by jury in Texas is

not an absolute right in civil cases, but is subject to certain procedural rules”). Here,

Alvarado does not contend that anyone deviated from Rule 166a of the Texas Rules of

Civil Procedure.

       Nor does he purport to show that there existed any material issue of fact

regarding application of res judicata here. That was one ground upon which summary

judgment was sought. And, given the identity between parties and claims depicted in

each of the three petitions filed in each of the three lawsuits, we find no basis to reverse

the trial court's summary judgment.

       Third, a court may find a plaintiff to be vexatious if there is no reasonable

probability that the plaintiff will prevail, and the plaintiff has previously been declared to

be a vexatious litigant by a state or federal court in an action or proceeding based on

the same or substantially similar facts. TEX. CIV. PRAC. & REM. CODE § 11.054(3) (West

2002). The record here satisfies those requirements, and Alvarado cites us to neither

record excerpts, argument, nor authority suggesting otherwise.

       Finally, Boyles and Lubbock Health Care argue that they “are entitled to

damages for the cost of responding to this appeal since it is frivolous and being used as

a weapon in this instance to waste Appellees’ and this Court’s time and resources.”

What those damages are, if any, and their amount went unmentioned. Moreover, the

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law will not mandate a useless act. City of Gladewater v. Pike, 727 S.W.2d 514, 518

(Tex. 1987). Having already been monetarily sanctioned by the trial court, Alvarado

(who is indigent and allegedly suffering from mental health issues) is unlikely to be

influenced by further monetary assessments. Nor have we been provided authority

suggesting that those who may lack mental capacity (that is, Alvarado apparently lacks

the ability to act for himself since a third party is acting on his behalf here) may be

subjected to sanctions. Our system of justice tends not to penalize those who lack the

mens rea to act.

      Accordingly, the judgment is affirmed.



                                               Per Curiam




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