Thomas v. Knight

• Decision Date: 28 June 2001
• Docket Number: No.13-01-034-CV,13-01-034-CV
• Citation: 52 S.W.3d 292
• Parties: (Tex.App.-Corpus Christi 2001) DAN THOMAS, Appellant, v. LINDA BILBY KNIGHT AND METTIE FAYE DEGETAIRE, Appellees
• Court: Texas Court of Appeals

Page 292

52 S.W.3d 292 (Tex.App.-Corpus Christi 2001)

DAN THOMAS, Appellant, v. LINDA BILBY KNIGHT AND METTIE FAYE DEGETAIRE, Appellees.

No.13-01-034-CV

Court of Appeals of Texas, Corpus Christi

June 28, 2001

Rehearing Overruled August 9, 2001.

On appeal from the 411th District Court of Polk County, Texas.

Before Justices Dorsey, Hinojosa, and Rodriguez

OPINION

Opinion by Justice Hinojosa

Appellant, Dan Thomas, appeals from an order dismissing with prejudice his pro se, in forma pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code. Appellant is an inmate at the Terrell Unit of the Texas Department of Criminal Justice--Institutional Division. Appellant filed a lawsuit against appellees, Linda Bilby Knight and Mettie Faye Degetaire, Terrell Unit Mailroom Supervisors, alleging they had violated his rights under 42 U.S.C.A. § 1983 and various provisions of Texas law by interfering with his mail. Appellant filed an unsworn declaration of his inability to pay costs. ¹ Without a hearing, ² the trial court dismissed appellant's lawsuit "with prejudice" because he failed to file a proper and complete affidavit concerning previous filings, in violation of section 14.004 of the civil practice and remedies code. ³ In a separate order, the court assessed all costs against appellant. This appeal ensued.

In two issues, appellant contends the trial court erred in dismissing his claims "with prejudice" and in assessing all costs against him. We modify the trial court's dismissal order and affirm it, as modified. We affirm the trial court's costs order.

Inmate litigation (except suits brought under the family code) in which the inmate files an affidavit or unsworn declaration of inability to pay costs is governed by special procedural rules set out in chapter fourteen of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.001 (Vernon Supp. 2001). The legislature enacted this statute to control the flood of frivolous lawsuits being filed in Texas courts by prison inmates; these suits consume many valuable judicial resources with little offsetting benefits. Thomas v. Bilby, 40 S.W.3d 166, 169 (Tex. App.-Texarkana 2001, no pet.);Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.-Waco 1996, no writ). The rules set out in chapter 14 may not be modified or repealed by the regular rules of civil procedure. Tex. Civ. Prac. & Rem. Code Ann. § 14.014 (Vernon Supp. 2001).

The trial court has broad discretion to dismiss a lawsuit brought under chapter 14 as frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon Supp. 2001); Jackson v. Tex. Dep't of Crim. Justice - Institutional Div., 28 S.W.3d 811, 813 (Tex. App.-Corpus Christi 2000, pet. denied); Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (b) (Vernon Supp. 2001).

The proper standard of review of the dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs is whether the court abused its discretion. Jackson, 28 S.W.3d at 813; Barnum v. Munson, 998 S.W.2d 284, 286 (Tex. App.-Dallas 1999, pet. denied); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 536 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Hickson, 926 S.W.2d at 398. To establish abuse of discretion, the complaining party must show that the trial court's action was arbitrary or unreasonable in light of all the circumstances in the case. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984). Stated differently, abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); McCollum, 980 S.W.2d at 536-37.

In his first issue, appellant does not complain that the trial court dismissed his lawsuit as frivolous, but rather that the case should not have been dismissed "with prejudice" for failure to file an adequate affidavit of previous lawsuits, as required by section 14.004 of the civil practice and remedies code. ⁴

The trial court dismissed appellant's suit and found that his affidavit of previous filings was insufficient to meet the requirements of section 14.004. In that affidavit, appellant listed nine other lawsuits. ⁵ Although he stated the type of relief sought for the nine listed lawsuits, he failed to state any operative facts for which relief was sought, failed to identify each party named in the previous suits, failed to state the result of each suit, and failed to state the date of the final orders affirming the dismissal if a previous suit was dismissed as frivolous or malicious. Because appellant did not meet the requirements of section 14.004, the trial court was entitled to assume that this case was substantially similar to one previously filed by appellant. Thus, the trial court did not abuse its discretion by dismissing appellant's suit as frivolous. See Samuels v. Strain, 11 S.W.3d 404, 406-07 (Tex. App.-Houston [1st Dist.] 2000, no pet.).

However, dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999); Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Therefore, orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex. 1992).

In this case, the court's dismissal with prejudice acts as a bar to any suit, arising out of the same facts, brought by appellant against appellees. We hold that a dismissal for failure to comply with the conditions set out in section 14.004 is not a dismissal on the merits, but rather an exercise of the trial court's discretion under chapter 14 of the civil practice and remedies code. See Denton v. Hernandez, 504 U.S. 25 (1992) (dismissal of an inmate's suit brought under the federal in forma pauperis statute is not a dismissal on the merits, but it is merely an exercise of the trial court's discretion under the statute); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.] 2000, no pet.). When an appellate court reviews whether a trial court abused its discretion in dismissing an inmate's suit, it should consider whether the suit was dismissed with prejudice and if the suit was, determine whether the inmate's error could be remedied through more specific pleading. Denton, 504 U.S. at 34; Hickman, 35 S.W.3d at 124. If the error could be remedied, then a dismissal with prejudice is improper. Accordingly, we sustain appellant's first issue.

In his second issue, appellant contends the trial court abused its discretion by ordering him to pay the court costs and fees for his lawsuit. Specifically, appellant asserts that his lawsuit was filed in forma pauperis and, thus, he has substantially complied with the requirements to proceed without payment of costs.

A court may order an inmate who has filed a claim to pay court fees, court costs, and other costs in accordance with section 14.006 and section 14.007. See Tex. Civ. Prac. & Rem. Code Ann. § 14.006(a) (Vernon Supp. 2001).

After determining that appellant had incurred court costs and fees in the amount of $372.00, the trial court ordered that appellant pay said amount out of his Inmate Trust Account as follows:

Pay an initial amount equal to the lesser of:

(1) 20% of the preceding six month's deposits in the Inmate Trust Account; or

(2) The total amount of fees and costs.

In each month following in which the initial payment is made above, the [appellant] shall pay an amount equal to the lesser of:

(1) 10% of that month's deposit to the Inmate Trust Account; or

(2) the total amount of fees that remain unpaid.

Payments are to continue until the total amount certified is paid, or the [appellant] is released from confinement.

The trial court's order follows sections 14.006(b), (c), and (d) of the civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. § 14.006(b), (c), & (d) (Vernon Supp. 2001). We hold the trial court did not abuse its discretion in ordering that appellant pay the costs and fees incurred in the underlying suit. ⁶ Appellant's second issue is overruled.

We modify the trial court's order of dismissal by deleting the words "with prejudice" and substituting the words "without prejudice." As modified, the trial court's dismissal order is affirmed. The trial court's order assessing all costs against appellant is also affirmed.

1. Chapter 132 of the Texas Civil Practice & Remedies Code allows prison inmates to file unsworn declarations if they meet certain requirements. Section 132.001 provides:

§ 132.001. Use by Inmates in Lieu of Sworn Declaration

(a) Except as provided by Subsection (b), an unsworn declaration made as provided by this chapter by an inmate in the Texas Department of Corrections or in a county jail may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.

(b) This chapter does not apply to an oath of office or an oath required to be taken before a specified official other than a notary public.

Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon 1997). Section 132.002 provides:

§ 132.002. Requirements of...