Artis Charles Harrell v. Jerome Godinich Junior Appeal from 190th District Court of Harris County (memorandum opinion)

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Opinion issued October 19, 2017 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00338-CV ——————————— ARTIS CHARLES HARRELL, Appellant V. JEROME GODINICH JR., Appellee On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2014-63129 MEMORANDUM OPINION Appellant, Artis Charles Harrell, appearing as a pro se inmate, challenges the trial court’s judgment dismissing his suit against appellee, Jerome Godinich Jr., for breach of fiduciary duty. In two issues, Harrell contends that the trial court erred in sustaining the Harris County District Clerk’s contest to his affidavit of indigence1 and dismissing his suit with prejudice. We modify the trial court’s judgment and affirm as modified. Background In his amended petition, Harrell, an inmate of the Texas Department of Criminal Justice Institutional Division, alleged that Godinich, his former criminal defense attorney, breached his fiduciary duty by “refus[ing] to give Harrell” “the entire contents of his . . . client files” and “conceal[ing] exculpatory evidence from Harrell while [Godinich] represented [him] at [a] [p]reliminary [a]ssigned [a]ppearance and bond hearing and [two] [m]otion to [s]uppress [e]vidence 1 See TEX. R. CIV. P. 145 (affidavit of indigency); see also TEX. CIV. PRAC. & REM. CODE ANN. § 14.001–.014 (Vernon 2017) (Chapter 14 governs district, county, justice of peace, or small claims court suits, other than suits brought under the Family Code, filed by inmate who claims indigence by filing affidavit or unsworn declaration of inability to pay costs). In this opinion, we will use the term “affidavit of indigence” to refer to either an affidavit or unsworn declaration of an inability to pay costs under Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001(6) (defining “[u]nsworn declaration” (internal quotations omitted)), § 132.001 (Vernon Supp. 2016) (unsworn declaration may be used in lieu of affidavit); see also TEX. R. CIV. P. 145(a)–(b) (affidavit of indigency). Any reference to Texas Rule of Civil Procedure 145 is to the version that existed prior to September 1, 2016. See Supreme Court of Tex., Final Approval of Amendments to the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure and of a Form Statement of Inability to Afford Payment of Court Costs, Misc. Docket No. 16-9122 (August 31, 2016) (amending rule 145, effective September 1, 2016); Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL 6648747, at *2 n.3 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.) (referencing prior version of rule 145); Allen v. City of Fort Worth, No. 02-16-00299-CV, 2016 WL 5845931, at *1 (Tex. App.—Fort Worth Oct. 6, 2016, no pet.) (mem. op.) (amended rule 145 did not apply to case). 2 hearing[s].” According to Harrell, Godinich’s breach of his fiduciary duty “placed [him] at a disadvantage in other pending legal matters” and caused “severe emotional and mental distress.” Harrell attached to his original petition, filed on October 27, 2014, an affidavit of indigence, declaring that he is unable to pay the costs and fees associated with the proceedings and is “entitled to [the] relief” sought in his petition. Harrell further stated: (1) I am not employed nor do I earn any income because I am an inmate of the Texas Department of Corrections; (2) I do not have a spouse; (3) I own no real or personal property; (4) I hold no cash nor any amounts on deposits; (5) I have no assests [sic]; (6) I have no dependents; (7) I have no debts; (8) I have no monthly expenses; (9) I do not have the ability to obtain a loan for court costs or fees; (10) No attorney is providing free legal services; and (11) No attorney has agreed to pay for advance court costs. Harrell also attached to his original petition an affidavit “[r]elating [t]o [p]revious [f]ilings,” stating that in January 2006, he brought suit against several defendants for “wrongful termination of [a] lease agreement.”2 And he attached to his original petition “a current six (6) month history of [his] inmate trust account.”3 2 See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004; see also Clark v. Unit, 23 S.W.3d 420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“The purpose of section 14.004 is to curb the constant, often duplicative, inmate litigation, by requiring the inmate to notify the trial court of previous litigation and the outcome.”). 3 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004(c), 14.006(f). 3 On January 8, 2015, Harrell filed a Request for a Jury Trial and Oath of Inability to Pay Cost, asserting that he is unable to pay the fee for a jury trial. Harrell attached to his request an Application for Inability to Pay Cost for Jury Fee, declaring that he is unable to pay the costs and fees associated with the proceedings and is “entitled to relief.” Harrell stated that within the previous twelve months, he had not received “any money” from a “[b]usiness, profession[,] or [through] self-employment,” nor had he received any money from “[r]ent payments, interests[,] or dividen[d]s,” “[p]ensions, annuities[,] or life insurance,” “[g]ifts or inheritances,” or “[a]ny other source.” He does not “own cash” or have any “money in a checking or savings account” or his “prison[] account,” and he does not own “any real estate, stocks, bonds, notes, or other valuable property.” He does, however, receive $30 “a month” from his mother. Harrell attached to his application, “[a] [c]urrent [s]ix (6) [m]onth [h]istory [o]f [his] [i]nmate [t]rust [a]ccount.” On December 4, 2015, the Harris County District Clerk filed a contest to Harrell’s affidavit of indigence, asserting that he did not comply with the pertinent requirements.4 On December 14, 2015, Harrell, in response to the district clerk’s contest, filed a Supplemental Affidavit of Indigence, declaring that he is the plaintiff in this 4 See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a), (c); TEX. R. CIV. P. 145(b). 4 case, unable to pay the costs and fees associated with the proceedings, and “entitled to [the] relief” sought in his petition. He further stated: (1) Unrelated to the instant case, I previously filed a suit for breach of contract; (2) In the previous suit[,] . . . [t]he corporate defendants breach[ed] our contract by not giving me the required notice before terminating the lease agreement; (3) The case [was]: Conversion, Cause Number 2006-02867, District Court 189th, Artis Charles Harrell vs. Branch Brinson, et al., and the case was resolved by summary judgment[;] (4) The document that reflect[s] [my] inmate trust fund account during the six months preceeding [sic] the date upon which the instant claims w[ere] filed is on file already as to demonstrate the previous filings. In his Supplemental Affidavit of Indigence, Harrell also “object[ed]” to the district clerk’s contest to his affidavit of indigence, arguing that the trial court should not sustain the contest because he “is an inmate incarcerated in the Texas Department of Criminal Justice and does not earn any money, and his affidavit was filed in good faith.” And Harrell asserted that his claims are meritorious, he is “able to maintain []his suit,” and it is “probable” that he will “succeed at trial on all claims.” After a hearing, the trial court, on December 17, 2015, signed a Judgment and Order Sustaining Contest to Pauper’s Oath, finding that Harrell is able to pay all filings fees, he did not file his affidavit of indigence in good faith, and the contest should be sustained. It further enjoined any further proceedings in the case until Harrell paid $355 in filing fees and other incurred costs. And the trial court ordered Harrell to pay the required fees and costs by January 4, 2016, noting that if he failed 5 to do so, his suit would be dismissed without prejudice and a judgment would be entered against him in the amount of $355. On April 11, 2016, the trial court signed its Final Judgment, stating that it had previously entered a Judgment and Order Sustaining Contest to Pauper’s Oath in which it ordered Harrell “to pay in full all filing fees in the amount of $355[] plus any and all costs incurred in the process of th[e] case before January 4, 2016.” After then finding that Harrell had “failed to comply with the [c]ourt’s [previous] [o]rder,” it entered “[a] [t]ake [n]othing [j]udgment” against Harrell and dismissed his suit against Godinich. Standard of Review We review the trial court’s dismissal of an in forma pauperis suit under an abuse of discretion standard. Donaldson v. Tex. Dep’t of Criminal Justice-Corr. Insts. Div., 355 S.W.3d 722, 724 (Tex. App.—Tyler 2011, pet. denied); Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Clark v. Unit, 23 S.W.3d 420, 421 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it is proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990); Donaldson, 355 S.W.3d at 724. 6 Chapter 14 governs any district, county, justice of the peace, or small claims court suits, other than suits brought under the Family Code, filed by an inmate who claims indigence by filing an affidavit or unsworn declaration of an inability to pay costs.5 TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a)–(b) (Vernon 2017); see also id. § 14.001(6) (Vernon 2017) (defining “[u]nsworn declaration” (internal quotations omitted)), § 132.001 (Vernon Supp. 2016) (unsworn declaration may be used in lieu of affidavit); TEX. R. CIV. P. 145(a)–(b) (affidavit of indigency). A trial court may dismiss an inmate’s claim, either before or after service of process, on any number of grounds. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a) (Vernon 2017); see also id. §§ 14.005(b), 14.006(h) (Vernon 2017); Gross, 339 S.W.3d at 723. An appellant must attack all independent bases or grounds that fully support the complained-of ruling. See Gross, 339 S.W.3d at 723; Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Indigency In his second issue, Harrell argues that the trial court erred in sustaining the Harris County District Clerk’s contest to his affidavit of indigence because “the trial 5 We note that Chapter 14 also applies to appeals to an appellate court, including the supreme court and the court of criminal appeals. TEX. CIV. PRAC. & REM. CODE. ANN. § 14.002. 7 court did not sign any written order extending the submission hearing date” for his “application to proceed in forma pauperis.”6 Any party who is unable to afford costs associated with an original action must, in lieu of paying or giving security for such costs, file an affidavit that meets certain requirements. TEX. R. CIV. P. 145(a)–(b). An inmate who brings a suit in which he has filed an affidavit of indigence or an unsworn declaration of inability to pay costs must also comply with the procedural requirements set forth in Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a); Douglas v. Moffett, 418 S.W.3d 336, 339 (Tex. App.—Houston [14th Dist.] 2013, no pet.); In re Yates, No. 01-09-00031-CV, 2011 WL 6147768, at *1 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.); Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio 2002, pet. denied). This means that when an inmate litigant files an affidavit or unsworn declaration of inability to pay costs, Chapter 14 requires him to file an additional affidavit or unsworn declaration setting forth specific details on all previous actions filed pro se, other than in a suit brought under the Texas Family Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004; Moffett, 418 S.W.3d at 339. The inmate must also file with this affidavit or unsworn declaration a “certified copy of the 6 When a trial court dismisses a plaintiff’s suit, he may be able to appeal the trial court’s order sustaining the contest to his affidavit of indigence. See In re Ross, 394 S.W.3d 262, 263 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding). 8 [inmate’s] trust account statement” that “reflect[s] the balance of the account at the time [his] claim is filed and activity in the account during the six months preceding the date on which [his] claim is filed.”7 TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004(c), 14.006(f); Moffett, 418 S.W.3d at 339; see also Jaxson v. Morgan, No. 14-04-00785-CV, 2006 WL 914199, at *2 (Tex. App.—Houston [14th Dist.] Apr. 6, 2006, no pet.) (mem. op.). The filings required by Chapter 14 are “an essential part of the process by which courts review inmate litigation,” and failure to fulfill Chapter 14’s procedural requirements may result in the dismissal of the inmate’s suit before or after service of process. Moffett, 418 S.W.3d at 339–40 (internal quotations omitted); see TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.003(a), 14.006(h); see also In re Yates, 2011 WL 6147768, at *2; Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.); Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“A trial court may dismiss an inmate’s lawsuit for failing to comply with the procedural requirements of Chapter 14.”); Lilly, 100 S.W.3d at 336. Here, Harrell asserts that his “application to proceed in forma pauperis [was set] on the [trial] [c]ourt’s October 19, 2015 submission docket,” the district clerk 7 “The purpose of Chapter 14’s procedural requirements of filing affidavits . . . is to deter constant, often duplicative, inmate litigation.” Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex. App.—San Antonio 2002, pet. denied) (internal quotations omitted); see also Clark, 23 S.W.3d at 422. 9 had “sufficient notice of th[at] submission date,” “the trial court did not sign any written order ex[t]ending th[at] submission . . . date,” and the district clerk did not file its contest to his affidavit of indigence until after October 19, 2015. In order to preserve a complaint for appellate review, the complaining party must make a timely and sufficiently specific objection in the trial court, which must then rule on the objection. See TEX. R. APP. P. 33.1(a); Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003, pet. denied); see also Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (“The reason for the requirement that a litigant preserve a trial predicate for complaint on appeal is that one should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.”); In re Velez-Uresti, 361 S.W.3d 200, 205 (Tex. App.—El Paso 2012, pet. denied) (complaint regarding contest to affidavit of indigence not preserved for appellate review). Without a proper presentation of an alleged error to the trial court, a complaining party does not give the trial court any opportunity to correct the error. Birnbaum, 120 S.W.3d at 476; see also McKinney v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 772 S.W.2d 72, 74 (Tex. 1989) (specific objection enables trial court to understand precise complaint and make informed ruling); Richard v. Towery, No. 01-11-00132-CV, 2013 WL 1694861, at *18 (Tex. App.—Houston [1st Dist.] Apr. 10 18, 2013, no pet.) (mem. op.) (“The purpose of [r]ule 33.1’s requirement that parties preserve error by raising their complaints in the trial court in a timely and specific manner is to promote judicial efficiency by allowing the trial court an opportunity to correct an error.”). Further, any complaint made on appeal must comport with the objection raised in the trial court. Hous. R.E. Income Props. XV, Ltd. v. Waller Cty. Appraisal Dist., 123 S.W.3d 859, 862–63 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“An objection at trial not comporting with the complaint on appeal presents nothing for appellate review.”); Scurlock Permian Corp. v. Brazos Cty., 869 S.W.2d 478, 484 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Harrell did not object to the district clerk’s contest to his affidavit of indigence on the basis that “the trial court did not sign any written order ex[t]ending the submission . . . date” for his “application to proceed in forma pauperis” beyond October 19, 2015, and the district clerk did not file its contest until after that date. Instead, Harrell, in his Supplemental Affidavit of Indigence, filed in response to the district clerk’s contest, only argued that the trial court should not sustain the contest to his affidavit of indigence because he “is an inmate incarcerated in the Texas Department of Criminal Justice”; “does not earn any money”; “his affidavit was filed in good faith”; his claims are meritorious; he is “able to maintain []his suit”; and it is “probable” that he will “succeed at trial on all claims.” Because Harrell’s 11 complaint on appeal does not comport with the arguments he raised in the trial court, we hold that he has not preserved his complaint for appellate review. 8 See Hous. R.E. Income Props. XV, Ltd., 123 S.W.3d at 862–63; Scurlock Permian Corp., 869 S.W.2d at 484. Modification of Judgment In his first issue, Harrell argues that the trial court erred in entering, in its Final Judgment, “[a] [t]ake [n]othing [j]udgment by [d]ismissal” against him because, in doing so, it improperly entered a judgment “on the merits” and dismissed his case with prejudice. A dismissal of a suit with prejudice constitutes an adjudication on the merits and operates as if the case has 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); Garrett v. Williams, 250 S.W.3d 154, 160 (Tex. App.—Fort Worth 2008, no pet.); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Thus, an order dismissing a case with prejudice has full res judicata 8 We note that although we construe pro se pleadings and briefs liberally, a pro se litigant is still required to follow the same rules and laws as a litigant represented by a licensed attorney. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.—Dallas 2008, no pet.). Otherwise, a pro se litigant would have an unfair advantage over a litigant represented by a licensed attorney. Mansfield, 573 S.W.2d at 185; Cooper, 254 S.W.3d at 693. 12 and collateral estoppel effect, barring subsequent relitigation of the case, causes of action, or issues between the same parties. See Garrett, 250 S.W.3d at 160. However, a dismissal of a suit for failure to comply with the rules governing the filing of an in forma pauperis suit or Chapter 149 does not constitute a ruling on the merits, and a dismissal with prejudice under such circumstances is improper. See Peña v. McDowell, 201 S.W.3d 665, 665–66 (Tex. 2006); Hickman, 35 S.W.3d at 124–25; Light v. Womack, 113 S.W.3d 872, 874–75 (Tex. App.—Beaumont 2003, no pet.); see also Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Lentworth, 981 S.W.2d at 722–23 (dismissal with prejudice for not complying with Chapter 14 improper); but see Gross, 339 S.W.3d at 723–24 (suit not timely filed pursuant to Texas Civil Practice and Remedies Code section 14.005(b) barred and may be dismissed with prejudice). Here, the trial court, in its Final Judgment, entered “[a] [t]ake [n]othing [j]udgment” against Harrell and dismissed his suit against Godinich for not paying the required filing fees and other costs. The use of the phrase “[a] [t]ake [n]othing [j]udgment” by the trial court constitutes a dismissal with prejudice on the merits of Harrell’s claim for breach of fiduciary duty. See Nguyen v. Desai, 132 S.W.3d 115, 9 See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a)–(b) (Chapter 14 governs district, county, justice of the peace, or small claims court suits, other than suits brought under Family Code, filed by inmate who claims indigence by filing affidavit or unsworn declaration of inability to pay costs). 13 117–18 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding portion of trial court’s judgment ordering plaintiffs take nothing constituted “a dismissal with prejudice on the merits of the [plaintiffs’] claims”); see also Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 754 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[T]here is no difference between a dismissal with prejudice and a take-nothing judgment, and the terms frequently are used interchangeably.”); Lum v. Lacy, 616 S.W.2d 260, 261 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (“‘[T]ake nothing’ language in the judgment constitutes a ruling on the merits.”). Such a disposition in this case is improper. Accordingly, we modify the trial court’s Final Judgment to delete the statement: “A Take Nothing Judgment by Dismissal is hereby entered against Artis Charles Harrell.” Instead, we substitute the following statement: “Artis Charles Harrell’s suit against Jerome Godinich Jr. is dismissed without prejudice.”10 See TEX. R. APP. P. 43.2(b); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.— Beaumont 2001, no pet.) (“The proper remedy is to modify the judgment by deleting the words ‘with prejudice’ and by substituting the words ‘without prejudice.’”); Hickman, 35 S.W.3d at 125. We sustain Harrell’s first issue. 10 A dismissal without prejudice allows a plaintiff to file suit again on the same cause of action. See McConnell v. Attorney Gen. of Tex., 878 S.W.2d 281, 283 (Tex. App.—Corpus Christi 1994, no writ). 14 Conclusion We affirm the trial court’s judgment as modified. Terry Jennings Justice Panel consists of Justices Jennings, Bland, and Brown. 15

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