Arthur Carson v. David Walker, Pete Lopez, Jr., George Utters, Texas Tech Medical Branch (Clements Unit) TDCJ-ID and the Clements Unit Law Library

NO. 07-01-0402-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 27, 2003

______________________________

ARTHUR CARSON, APPELLANT

V.

DAVID WALKER, ET AL., APPELLEES

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 86,799-D; HONORABLE STEVEN EMMERT, JUDGE

_______________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1

OPINION

Arthur Carson, an inmate proceeding pro se and in forma pauperis, presents eight

issues by which he contends the trial court erred in dismissing his action for negligence,

1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
violations of the Civil Rights Act and Americans with Disabilities Act, and other claims

against David Walker, Pete Lopez, Jr., and George Utters, Correction Officers at the

William P. Clement’s Unit, Texas Tech Medical Branch (Clements Unit), TDCJ-ID Inmate

Trust Fund, and the Clements Unit Law Library, appellees. By his issues, he asserts (1)

the evidence was insufficient to support a finding of vexatious litigation; (2) the trial court

erred in dismissing the entire lawsuit; (3) the trial court inappropriately admitted documents

of his previous case; (4) the trial court abused its discretion in denying witnesses; and (5)

in failing to calculate the filing fee costs based on previous six months deposits; (6) the

trial court violated his due process in arbitrarily imposing contempt sanctions (no written

order, oral announcement of $500 fine); (7) the trial court abused its discretion in failing

to give him the opportunity to be heard; and (8) the trial court erroneously dismissed the

lawsuit as frivolous. Based upon the rationale expressed herein, we reform and affirm.

Carson brought the underlying action against appellees alleging, among other

claims, negligence and violations of the Civil Rights Act and Americans with Disabilities

Act. Represented by the Attorney General’s Office, appellees filed an amended motion

to dismiss Carson’s case under section 14.003 of the Texas Civil Practice and Remedies

Code (Vernon 1997), and for a determination that Carson is a vexatious litigant under

Chapter 11 of the Texas Civil Practice and Remedies Code (Vernon 1997). At the

conclusion of a pretrial evidentiary hearing on appellees’ amended motion, the trial court

2
signed one order finding Carson to be a vexatious litigant and a second order dismissing

Carson’s suit as frivolous.

Before addressing Carson’s issues, we first note that even though he is proceeding

pro se, he is held to the same standard as licensed attorneys and must comply with the

applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834

(Tex.App.--Amarillo 1997, no writ); see also Mansfield State Bank v. Cohn, 573 S.W.2d

181, 185 (Tex. 1978) (holding that litigants who represent themselves must comply with

the procedures established by the rules notwithstanding the fact that they are not licensed

attorneys). In our review, we consider Carson’s issues in logical rather than sequential

order.

By his second issue, Carson contends the trial court erred in dismissing the entire

lawsuit. Then, by his eighth issue, he contends the trial court erred in dismissing his suit

as frivolous. We disagree. A trial court’s decision to dismiss an inmate’s lawsuit under

chapter 14 of the Code is reviewed under an abuse of discretion standard. Wallace v.

Texas Department of Criminal Justice-Institutional Div., 36 S.W.3d 607, 610

(Tex.App.–Houston [1st Dist.] 2000, pet. denied). Also, where, as here, the order does not

state the specific ground on which it was granted, Carson must show that each of the

independent arguments alleged in the motion to dismiss is insufficient to support the order.

A court abuses its discretion if it acts without reference to guiding rules or principles.

Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.--Houston [1st Dist.] 2000, no pet.).

3
 By their amended motion to dismiss, appellees contended Carson failed to comply

with section 14.004(a)(2) which required him to file an affidavit or declaration describing

each suit previously commenced by him by:

(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in
which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including if the suit was
dismissed as frivolous and malicious under Section 13.001 or
Section 14.003, or otherwise.

Carson’s affidavit listed 22 lawsuits previously initiated by him. Regarding requirement (C)

that the affidavit name each party to the suits, we note that although Carson’s third suit

indicates the presence of multiple defendants, the affidavit provides the name of only one

of the defendants. Also, although the designation for his first, fourth, and tenth suits

provided the name of only one defendant, the “et al.” designation in each suit indicates the

presence of unnamed defendants.

In addition, section 14.004(a)(2)(A) requires the affiant to provide the operative facts

for which relief was sought in the suits filed by him. (Emphasis added). Although Carson’s

affidavit does indicate the legal nature of the suits or identify the type of action by legal

conclusion, i.e. negligence, claim for retaliation, etc., and the actions described as

numbers two, five, nine, eleven, and fourteen do state facts beyond conclusions of law or

4
claims denominated as negligence or retaliation claims, the descriptions of the remaining

17 suits do not state the operative facts for which relief was sought. (Emphasis added).

During his testimony at the hearing on appellees’ amended motion, Carson admitted

he filed the suits described in Carson v. Johnson, 112 F.3d 818, 822 n.5 (5th Cir. 1997).2

After comparing Carson’s affidavit of previous filings with the list of cases described by

footnote in the Fifth Circuit opinion, we conclude his affidavit is incomplete. Because

Carson’s affidavit did not state the operative facts for which relief was sought in 17 of the

suits listed, the trial court was unable to consider whether Carson’s underlying claims are

substantially similar to 17 of his previous claims. Accordingly, we must assume the

present suit is substantially similar to one or more of his suits previously filed and is,

therefore, frivolous. Clark v. Unit, 23 S.W.3d 420, 422 (Tex.App.--Houston [1st Dist.]

2000, pet. denied).

Carson, unlike other litigants, has everything to gain and nothing to lose by filing

a frivolous suit; its costs him little or nothing; and prisoners are not often deterred by the

threat of possible sanctions for malicious or frivolous actions. Hickson v. Moya, 926

S.W.2d 397, 399 (Tex.App.--Waco 1996, no pet.), citing Green v. McKaskle, 788 F.2d

1116, 1119 (5th Cir. 1986). Although he may be unsuccessful, he can at “least look

2
A copy of the opinion was introduced into evidence at the hearing.

5
forward to a short sabbatical” in the nearest courthouse. Green, 788 F.2d at 1119. We

decline to relax the rule that he is held to the same standards as a licensed attorney.

Carson did not comply with the procedures established by chapter 14 of the Code.

Accordingly, we hold the trial court did not abuse its discretion in dismissing his case,

however, the proper order in the present case is dismissal without prejudice. See Williams

v. Brown, 33 S.W.3d 410, 412 (Tex.App.--Houston [1st Dist.] 2000, no pet). Carson’s

second and eighth issues are overruled.

By his first issue, Carson contends the evidence was insufficient to warrant a finding

that he was a vexatious litigant. Dismissal of Carson’s suit for his failure to comply with

the requirements of chapter 14 of the Code was not a ruling on the merits; thus, the order

of involuntary dismissal was without prejudice. Cf. Hughes v. Massey, 65 S.W.3d 743, 746

(Tex.App.–Beaumont 2001, no pet.) (holding it was error to dismiss with prejudice an

inmate’s suit for failure to comply with the rules governing the filing of in forma pauperis

suits). Although an order for monetary sanctions imposed as punishment for failure to

comply with procedural rules will survive a nonsuit because it is a voluntary dismissal, see

Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 n.4 (Tex. 1993), in this instance,

the involuntary dismissal put an end to the litigation and returned the parties to the

positions they were in before the court’s jurisdiction was invoked. See Melton v. Rylander,

727 S.W.2d 299, 303 (Tex.App.--Dallas 1987, writ ref’d n.r.e.). Because only one final

judgment may be rendered in any case, see Tex. R. Civ. P. 301, the order determining

6
Carson to be a vexatious litigant was not severed, see Pierce v. Reynolds, 329 S.W.2d 76,

78 (Tex. 1959) and Pan American Petroleum Corporation v. Texas Pacific Coal & Oil

Company, 160 Tex. 198, 324 S.W.2d 200, 201 (Tex. 1959), discussing severance of

interlocutory orders, and because the order of dismissal was involuntary, the order finding

Carson to be a vexatious litigant did not survive the dismissal without prejudice. Thus,

issue one presents nothing for review and we need not address it.

Regarding issue seven, Carson contends he was denied the opportunity to be heard

on various pretrial motions. However, because he testified at the hearing on appellees’

amended motion and the trial court dismissed the action, presentation of his motions was

rendered moot. Issue seven is overruled.

We have not overlooked Carson’s third issue by which he contends the trial court

erred in admitting documents of his previous case. However, because he did not make a

timely objection to the admission of any evidence, the contention is not preserved for

review. See Tex. R. App. P. 33.1(a); see also In Re United Supermarkets, Inc., 36 S.W.3d

619, 622 (Tex.App.--Amarillo 2000, no pet.). Carson’s third issue is overruled. Our

disposition of issues one, two, three, seven, and eight renders our consideration of

Carson’s remaining issues unnecessary.

Accordingly, we reform the judgment to reflect the cause is dismissed “without

prejudice.” As reformed, the judgment is affirmed.

7
Don H. Reavis
Justice

8