Opinion
No. 01-05-01177-CV
Opinion issued May 10, 2007.
On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 12976.
Panel consists of Justices TAFT, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Howard Vanzandt Williams, appeals an order dismissing his lawsuit against appellees, the Institutional Division of the Texas Department of Criminal Justice (TDCJ) and corrections officer Kimberly Frazer, as frivolous under chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 14.003(a)(2) (Vernon 2002). In four issues on appeal, Williams contends that the trial court violated the Texas and United States constitutions and abused its discretion (1) by dismissing his lawsuit when his case was already set for trial, (2) by dismissing his lawsuit when the parties had not agreed to a statement of facts, (3) by entering a void judgment, and (4) by violating various rules of civil procedure. We conclude that the trial court had jurisdiction to dismiss the case under chapter 14 of the Civil Practice and Remedies Code, which permits the trial court to dismiss a lawsuit without a hearing, without an agreed statement of facts, and after the case has been set for trial. We further conclude that Williams's assertions that the judgment is void and the state and that federal constitutions were violated are inadequately briefed, and are therefore waived. We affirm.
Background
Williams was an inmate at TDCJ's Darrington Unit in Rosharon, Texas. Williams, a diabetic, received surgery for carpal tunnel syndrome in his right hand at John Sealy Hospital in Galveston, but he reported no improvement of his symptoms when he was later examined by his surgeon. On May 30, 2002, about two years after his surgery, Williams was transported from John Sealy Hospital to the Darrington Unit after medical appointments. According to Williams, corrections officer Frazer placed leg irons over his hand braces, despite a pass that provided that on that day he was to wear "leg irons only." The leg irons "cut grooves" into his hands and "increased the pain."
Williams is now an inmate at the Beto I unit in Tennessee Colony, Texas, identified in the TDCJ by CID #539975.
Upon arrival at the Darrington Unit, a nurse at the TDCJ clinic examined Williams's hands and reported that there were no cuts on his hands, that restraints were placed over the wrist supports he wore as treatment for his carpal tunnel syndrome, that there was no redness or swelling, and that there was a small red mark on the right wrist. Approximately 45 minutes later, the same nurse again examined Williams's hands, when he complained of swelling in his hands due to restraints that were too tight. The nurse noted "slight swelling" at the right wrist area and a minor skin mark at the right wrist. On June 12, 2000, Williams had a follow-up doctor's appointment by video link. Although Williams complained of swelling in his hand, the doctor ascertained that the wound was healing and gave a prognosis that "[t]his is likely stable."
Williams filed a lawsuit against Frazer and the TDCJ, claiming that the injuries received while under Frazer's supervision violated his Eight Amendment rights under 42 U.S.C. § 1983. See 42 U.S.C.S. § 1983 (LexisNexis 2002). Williams filed the lawsuit in forma pauperis in the Brazoria County District Court by filing an unsworn declaration claiming that he is incarcerated and has insufficient funds in his inmate trust account or from any other source to pay the filing fees for the lawsuit. At the time the original petition was filed, Williams also filed, pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, (1) a copy of the offender grievance form that was used to complain of this matter in the internal grievance system of TDCJ, and (2) a declaration detailing previous lawsuits filed by Williams. Tex. Civ. Prac. Rem. Code Ann. §§ 14.004, 14.005 (Vernon 2002).
Williams filed a motion to sever TDCJ as a defendant so that he could continue against Frazer only, and filed a motion for default judgment against Frazer. A trial date was set for December 5, 2005.
Frazer filed an answer on October 11, 2005, asserting that she was immune from liability and acting in her "official capacity as an employee of an agency of the State of Texas." She additionally asserted that Williams failed to state a claim upon which relief could be granted.
Also on October 11, 2005, TDCJ and Frazer, through the Attorney General, filed a Motion to Dismiss under section 14.003 of the Texas Civil Practice and Remedies Code. The motion asserted that the claims against Frazer and TDCJ are "frivolous or malicious" under chapter 14 because (1) TDCJ is not a person under 42 U.S.C. § 1983, (2) Williams cannot recover from Frazer under 42 U.S.C. § 1983, (3) Williams had only de minimis injuries and he failed to state a claim against Frazer as an individual, (4) Frazer is entitled to qualified immunity, (5) Williams's chances of being successful under the lawsuit are slight, and (6) Williams's claims have no basis in law. Williams was mailed notice that the motion for dismissal would be submitted to the trial court on November 7, 2005 without a hearing. Williams filed an objection on November 7, 2005. Two weeks later, the trial court granted the motion to dismiss the lawsuit.
Chapter 14
As part of his second and fourth issues, Williams challenges the trial court's dismissal of his lawsuit under chapter 14 of the Texas Civil Practice and Remedies Code by claiming that the trial court improperly dismissed the case in violation of the rules of civil procedure. Williams specifically points to violations of rules 245 and 247 by asserting that they require a showing of good cause before his case can be taken from the trial court's docket, and rule 263 by claiming that parties must file an agreed statement of facts before the motion to dismiss can be considered without a hearing. See Tex. R. Civ. P. 245, 247, 263.
Rule 245. Assignment of Cases for Trial
The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties. . . .
A request for trial setting constitutes a representation that the requesting party reasonably and in good faith expects to be ready for trial by the date requested, but no additional representation concerning the completion of pretrial proceedings or of current readiness for trial shall be required in order to obtain a trial setting in a contested case.
Tex. R. Civ. P. 245.
Rule 247. Tried When Set
Every suit shall be tried when it is called, unless continued or postponed to a future day or placed at the end of the docket to be called again for trial in its regular order. No cause which has been set upon the trial docket of the court shall be taken from the trial docket for the date set except by agreement of the parties or for good cause upon motion and notice to the opposing party.
Tex. R. Civ. P. 247.
Rule 263. Agreed Case
Parties may submit matters in controversy to the court upon an agreed statement of facts filed with the clerk, upon which judgment shall be rendered as in other cases; and such agreed statement signed and certified by the court to be correct and the judgment rendered thereon shall constitute the record of the cause.
Tex. R. Civ. P. 263.
Chapter 14 of the Texas Civil Practice and Remedies Code applies to a lawsuit brought, as this suit was, by an inmate who seeks to proceed in forma pauperis by filing an affidavit or unsworn declaration of inability to pay costs. See Tex. Civ. Prac. Rem. Code Ann. § 14.002 (Vernon 2002). It imposes certain procedural requirements that must be met before an inmate may proceed. See, e.g., id. §§ 14.004, 14.005, 14.006(f). Chapter 14 further permits a trial court to dismiss an inmate's lawsuit that the court finds to be malicious or frivolous. Id. § 14.003(a)(2).
We review a dismissal under chapter 14 for abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court commits an abuse of discretion if it acts arbitrarily, capriciously, and without reference to guiding rules or principles. Id.
To dismiss under chapter 14, the trial court may grant a hearing, but a hearing is not required. Tex. Civ. Prac. Rem. Code Ann. § 14.003(c) ("In determining whether [to dismiss a suit as frivolous or malicious], the court may hold a hearing."). Thus, whether or not to hold a hearing when dismissing a suit as frivolous lies within the sound discretion of the trial court. See Moreland, 95 S.W.3d at 394 (citing Williams v. Brown, 33 S.W.3d 410, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.)). Chapter 14 also does not restrict the timing of the hearing, if any hearing is held. Tex. Civ. Prac. Rem. Code Ann. § 14.003(c) ("The hearing may be held before or after service of process."). We conclude that the dismissal under chapter 14 was not improper merely by the trial court's decision not to conduct a hearing.
Williams further complains that the rules of civil procedure were not followed by the trial court because the trial court dismissed the case on November 21, 2005, after it had been set for trial on December 5, 2005. Williams also contends that there was no agreed statement of facts. Chapter 14 "may not be modified or repealed by a rule adopted by the supreme court." Tex. Civ. Prac. Rem. Code Ann. § 14.014 (Vernon 2002). Williams may not rely on the rules of civil procedure to constrain the trial court's broad discretion on a chapter 14 motion to dismiss. See id.; see also Retzlaff v. Tex. Dept. of Crim. Justice, 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) ("Trial courts are given broad discretion in determining whether a case should be dismissed" under section 14.003); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (holding that, consistent with statute's purpose of controlling flood of frivolous suits, "applicability of chapter fourteen is not contingent on the defendant's satisfaction of any procedural rule") (emphasis in original). We conclude that the trial court did not need an agreed statement of facts to dismiss the lawsuit under chapter 14. See McCollum, 980 S.W.2d at 537. We also conclude that the trial court could properly dismiss the lawsuit under chapter 14 even though the case had been set for trial. See id. We hold that trial court did not abuse its discretion by dismissing Williams' lawsuit under chapter 14, despite any failure by the court to apply rules 245, 247, and 263 of the Texas Rules of Civil Procedure. We overrule those portions of Williams's second and fourth issues pertaining to the alleged violations of the Texas Rules of Civil Procedure.
Constitutional Issues and Voidness
In his first issue, Williams asserts that the trial court abused its discretion by considering the motion to dismiss under chapter 14 thereby "changing the trial court's order that set the case for trial," which violated "the due course provisions of the Texas Constitution and the Due Process clause of the United States Constitution and laws of the United States." In his second and fourth issues, Williams also complains of violations of the Texas and United States constitutions. Williams's third issue as listed in his brief challenges the trial court's dismissal by stating that it "OFFEND[S] THOSE PROVISIONS AS SET OUT IN THE DUE COURSE PROVISIONS (ARTICLE 1, SECTIONS 13 AND 19) OF THE TEXAS CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE CONSTITUTION AND LAWS OF THE UNITED STATES." (Emphasis in original.) He also includes a "question" that suggests that the dismissal was contrary to the 5th, 6th, and 14th Amendments of the United States Constitution. He further claims that the trial court's judgment is void. An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). An appellate issue is waived when the brief fails to contain clear argument for the contentions made. See id.; see also Brock v. Sutker, 215 S.W.3d 927, 929 (Tex.App.-Dallas 2007, no pet.) (holding issue waived by brief that makes no attempt to analyze trial court's order within context of cited authority). Williams cites several provisions of the federal and state constitutions, asserting that the trial court's order violates these provisions. However, he does not explain his assertions, nor does he cite to any authority in support thereof. He further cites to no authority supporting the contention that the trial court's dismissal was void. We hold that Williams's constitutional arguments and assertion about a void judgment are waived. See Tex. R. App. P. 38.1(h); Brock, 215 S.W.3d at 929.
We overrule Williams's complaints of constitutional violations and claim of void judgment, as asserted in his first through fourth issues.
Reply Brief
Williams briefly addresses the substantive merits of the trial court's dismissal for the first time in his reply brief filed in this appeal. The Texas Rules of Appellate Procedure do not allow an appellant to include in his reply brief a new issue that responds to a matter that was raised in appellee's brief but that was not raised in the appellant's original brief. 2218 Bryan Street, Ltd., v. City of Dallas, 175 S.W.3d 58, 65 (Tex.App.-Dallas 2005, pet. denied); see also Tex. R. App. P. 38.3. We hold that appellant has waived any challenge to the substantive merits of the chapter 14 dismissal due to his failure to assert on appeal any challenge to the merits of the dismissal until his reply brief. See 2218 Bryan Street, 175 S.W.3d at 65; see also Tex. R. App. P. 38.3.
Conclusion
We affirm the judgment of the trial court.