Arnold Macias v. Texas Department of Criminal Justice Parole Division, Tammy Boddy, Paul Morales, Lana Rhodes, Pat Ivy and Brian Collier, No. 03-07-00033-CV (Tex.App.- Austin, Aug. 21, 2007)(Opinion by Justice Henson ) (pro se suit dismissed, unrepresented litigants held to same standards; denial of free counsel in civil suit was not error)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002558, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Arnold Macias, proceeding pro se, sued the Texas Department of Criminal Justice, along with certain individual employees of the Department, alleging violations of the Texas Penal Code, as well as a charge of civil assault against Department employee Tammy Boddy.
The Department and individual employees specially excepted, arguing that Macias's petition did not plead with sufficient specificity to place them on notice about what actions or omissions were attributed to them. The trial court granted the special exceptions and Macias filed an amended petition, bringing suit against the Department and the individual employees for assault, stalking, abuse of office, abuse of official capacity, official oppression, failure to report assault to a police officer, and removal of government documents.
On August 4, 2005, the trial court dismissed all of Macias's claims other than the claim for civil assault as frivolous under chapter 13 of the civil practices and remedies code. Boddy filed a motion for summary judgment regarding the assault claim, which the trial court granted on October 23, 2006. Macias appeals the dismissal of his claims and the granting of the summary judgment. We affirm the trial court's judgment.
BACKGROUND
Macias's assault claim arises from an incident that took place on March 8, 2004, when Macias visited the parole office to meet with his parole officer, Paul Morales. Macias claims that Boddy, a unit supervisor in the parole office, struck him as he was walking down a hallway to Morales's office. According to Boddy's characterization of the incident, she spoke with Macias in the hallway and then "tapped him on his shoulder and continued to walk down the hall." She asserts that "[t]he tap was a sign of encouragement" and was "meant to be a friendly gesture." Morales, who witnessed the incident, stated that Boddy merely "placed her hand on [Macias's] shoulder for a second" in a gesture that was "not a slap or a punch."
Macias's remaining claims, which he attempted to bring under the Texas Penal Code, arise from other behavior by Department employees, namely Macias's allegations that Paul Morales and Matt Smith refused to allow him access to the law library, that Llana Rhodes removed certain documents related to his electronic-monitoring device from his record, that Morales failed to record Macias's work schedule in his supervised program daily schedule, and that Morales failed to meet the statutory requirements for employment as a parole officer.
Macias, proceeding pro se, asserts that the trial court erred in dismissing a portion of his claims under chapter 13 of the civil practice and remedies code and in granting Boddy's motion for summary judgment on the remaining claim for civil assault. On appeal, Macias also makes a number of procedural complaints, including claims that he was denied assistance of counsel, that he was denied an opportunity for discovery, and that no court reporter was available at his summary-judgment hearing.
DISCUSSION
Dismissal Under Chapter 13
Because Macias is proceeding in forma pauperis, his claims are subject to chapter 13 of the civil practice and remedies code. When an affidavit of inability to pay has been filed, a trial court may dismiss the action on a finding that it is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(1) (West 2002). In determining whether an action is frivolous, the trial court may consider whether (1) the action's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, or (3) it is clear that the party cannot prove a set of facts in support of the claim. Id. § 13.001(b). Because the Texas Supreme Court has discouraged reliance on the chances of ultimate success or the party's inability to prove a set of facts in support of the claim, we will focus on whether the claim lacks an arguable basis in law or in fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990); Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.--Houston [1st Dist.] 1993, no writ).
The trial court has broad discretion in determining whether to dismiss a claim as frivolous under § 13.001. Brewer, 857 S.W.2d at 822. A court abuses its discretion when it "acts arbitrarily, capriciously, and without reference to any guiding rules or principles." Id.
Macias attempted to bring his claims, other than his claim for civil assault, under the Texas Penal Code. However, "the Texas Penal Code does not create private causes of action," and as a result, "these allegations fail to state a viable claim for relief." Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.--San Antonio 2002, no pet.). Because those claims brought by Macias under the penal code lack an arguable basis in law, we hold that the trial court did not abuse its discretion by dismissing such claims as frivolous.
Civil Assault
In relation to Macias's civil-assault claim, Boddy filed a joint traditional and no-evidence motion for summary judgment under Texas Rules of Civil Procedure 166a and 166a(i). When multiple grounds for summary judgment are raised and the trial court does not specify the grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the grounds advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
A no-evidence summary judgment is properly granted when there is no evidence of one or more essential elements of a claim on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment, "the task of the appellate court is to determine whether the plaintiff has produced any evidence of probative force to raise fact issues on the material questions presented." Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.--Austin 1998, no pet.).
In order to establish a claim of civil assault, the complainant must establish the same elements required for criminal assault. Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). There are three avenues by which an assault can occur. See Tex. Penal Code Ann. § 22.01(a) (West Supp. 2006). An assault occurs under § 22.01(a)(1) if a person intentionally, knowingly, or recklessly causes bodily injury to another. Macias presented no evidence that he suffered bodily injury. Under § 22.01(a)(2), an assault occurs when a person intentionally or knowingly threatens another with imminent bodily injury. Again, Macias has not presented evidence that Boddy threatened him with imminent bodily injury. Under § 22.01(a)(3), an assault occurs when a person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Macias's evidence regarding the alleged assault consists solely of his statement that "Tammy Boddy strikes Arnold Macias [sic] Mar. 8, 2004." Boddy described this contact as a "tap on his arm" that was "meant to be a friendly gesture," and Morales, who witnessed the incident, also described the contact as "friendly" and stated, "I did not believe Macias would consider a simple tap on his should[er] an assault." Macias has not presented evidence that Boddy knew or should have reasonably believed that her contact with Macias would be regarded as offensive or provocative. Because Macias has failed to present evidence of an essential element of his claim, we hold that the trial court did not err by granting Boddy's motion for summary judgment.
Failure to Appoint Counsel
Macias further complains on appeal that he was denied assistance of counsel. The trial court denied Macias's request for appointed counsel, but it is within a trial court's discretion to do so in a civil case. See Tex. Gov't Code Ann. § 24.016 (West 2004); Travelers Indemn. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (holding that there is no constitutional right to counsel in civil proceedings); Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26-27 (1981) ("[A]n indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty."). There is no danger that the outcome of this litigation will cause Macias to be deprived of his physical liberty. As a result, we hold that the trial court did not abuse its discretion in denying Macias appointed counsel.
Lack of a Court Reporter
Macias also complains that there was no court reporter available to record his summary-judgment hearing. However, Macias failed to preserve this issue for appeal. When a party objects to a court reporter's failure to make a record of proceedings, the objection "must be preserved by filing a motion or other written objection." Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.--San Antonio 2005, no pet.). Furthermore, "litigants who represent themselves must comply with the applicable procedural rules." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Because the clerk's record does not contain a written motion or other objection regarding the court reporter's failure to record the summary-judgment hearing, Macias failed to preserve this issue for appeal.
Even if Macias had properly preserved the issue for appeal, the creation of a reporter's record is "a practice neither necessary nor appropriate to the purposes of such a hearing." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). At a summary-judgment hearing, a trial court's decision is based solely on written pleadings and evidence, rather than live testimony. Tex. R. Civ. P. 166a(c). Because a reporter's record is not necessary for a summary-judgment hearing, no error is presented.
Miscellaneous Additional Issues
Macias makes a number of additional complaints on appeal, none of which are adequately briefed. He contends that the trial judge and opposing counsel "introduced fabricated or manufactured evidence," that he was denied the opportunity for discovery, and that the trial judge violated various provisions of the Texas Code of Judicial Conduct. Because Macias does not explain or support these contentions, we consider them inadequately briefed and decline to address them. See Tex. R. App. P. 38.1(h). It is well-settled law that "a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.--Dallas 2004, pet. denied). Where, as here, an issue on appeal is inadequately briefed, "we cannot speculate as to the substance of the specific issues appellant claims we must address." Id. at 678. Accordingly, we resolve Macias's remaining issues against him.
CONCLUSION
Because the trial court did not err in dismissing a number of Macias's claims under chapter 13 of the civil practices and remedies code or in granting summary judgment on the remaining claim, we affirm the trial court's judgment.
__________________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 21, 2007
Showing posts with label frivolous suit. Show all posts
Showing posts with label frivolous suit. Show all posts
Tuesday, August 21, 2007
Thursday, August 9, 2007
Interlocutory appeal of frivolous-suit sanctions dismissed
Order imposing sanctions for filing claim without proper factual basis not appealable in the absence of a final judgment. Austin appeals court finds it lacks jurisdiction and dismisses the attempted appeal.
T. Christopher Robson v. Garrett Gilbreath and David Gilbreath, No. 03-06-00364-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Waldrop)(sanctions appeal, DWOJ)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002474, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
In this interlocutory appeal, T. Christopher Robson challenges the trial court's order sanctioning him $10,000 for failure to conduct a reasonable inquiry prior to filing a claim against David Gilbreath. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 353 (Tex. 1998).
A sanctions order is not among the trial court rulings that is subject to interlocutory appeal. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006). Accordingly, we have no jurisdiction and dismiss this appeal.
In response to an inquiry from this Court's clerk regarding the lack of finality and appealability of this order, Robson filed a motion to abate this appeal. He asserted that the case had been settled except for the sanctions, that the settlement required approval by a probate court, and that a final judgment would be presented to the district court for signature "immediately" after the settlement was approved as expected at a hearing set for July 10, 2007. Robson's notice of appeal challenging the sanctions order could then be treated as a premature filing that became effective and deemed filed the day of, but after, the final judgment. See Tex. R. App. P. 27.1(a). More than four weeks have passed without additional communication from the parties or the trial court. We have not been informed whether the settlement was approved and have not been provided with a supplemental clerk's record containing an order or judgment that would make Robson's premature notice effective and bestow jurisdiction upon this Court. We lack jurisdiction over this appeal.
We deny the motion to abate and dismiss this appeal.
T. Christopher Robson v. Garrett Gilbreath and David Gilbreath, No. 03-06-00364-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Waldrop)(sanctions appeal, DWOJ)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002474, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
In this interlocutory appeal, T. Christopher Robson challenges the trial court's order sanctioning him $10,000 for failure to conduct a reasonable inquiry prior to filing a claim against David Gilbreath. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 353 (Tex. 1998).
A sanctions order is not among the trial court rulings that is subject to interlocutory appeal. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006). Accordingly, we have no jurisdiction and dismiss this appeal.
In response to an inquiry from this Court's clerk regarding the lack of finality and appealability of this order, Robson filed a motion to abate this appeal. He asserted that the case had been settled except for the sanctions, that the settlement required approval by a probate court, and that a final judgment would be presented to the district court for signature "immediately" after the settlement was approved as expected at a hearing set for July 10, 2007. Robson's notice of appeal challenging the sanctions order could then be treated as a premature filing that became effective and deemed filed the day of, but after, the final judgment. See Tex. R. App. P. 27.1(a). More than four weeks have passed without additional communication from the parties or the trial court. We have not been informed whether the settlement was approved and have not been provided with a supplemental clerk's record containing an order or judgment that would make Robson's premature notice effective and bestow jurisdiction upon this Court. We lack jurisdiction over this appeal.
We deny the motion to abate and dismiss this appeal.
Consumer's time-barred DTPA suit dismissed as frivolous
Court of Appeals affirms dismissal of suit in which plaintiff alleged that a sandwich she bought from Jack in the Box made her sick; holds that negligence and DTPA claims were barred by two-year statute of limitations, and that trial court's dismissal of her claims as lacking an arguable basis in law was proper.
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Subscribe to:
Posts (Atom)