Roile Shiloh-Bryant v. David Wren, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-186-CV

ROILE SHILOH-BRYANT,

Appellant

v.

DAVID WREN, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,324

O P I N I O N

Appellant Shiloh-Bryant appeals from the order of the trial court dismissing his pro se informa pauperis action as frivolous and malicious. Appellant, an inmate of the Texas Department of Criminal Justice, Institutional Division at the Alfred Hughes Unit in Gatesville, brought this action pro se against David Wren, individually and officially, and the Texas Department of Criminal Justice, Institutional Division. Wren is a Notary Public and employed by the TDCJ-ID.

Appellant alleged he presented documents of a trade-secret invention to be notarized // ; that Wren took possession of them and studied them, then refused to notarize, returned the documents to Appellant, and then walked away. Appellant alleges Wren discovered his trade-secret. He alleges that he suffered emotional, psychological, and monetary damages as the result of Wren's actions and seeks recovery of $250,000 in damages.

The trial court dismissed Appellant's suit pursuant to the Texas Civil Practices & Remedies Code 13.001, finding that the cause of action is frivolous and malicious because the claim stated therein has no arguable basis in law or in fact; and that Appellant had failed to state a cause of action. Appellant thereafter filed a motion to reinstate his suit asserting that he had stated a cause of action.

Appellant appeals on two points of error:

Point one: "The District Court erred and abused its discretion when it dismissed Appellant's cause on the finding that said cause of action is frivolous and malicious because the claim stated therein has no arguable basis in law or in fact, and there was a failure to state a cause of action."

Point two: "The District Court abused its discretion when it failed to grant Appellant's motion to reinstate in violation of Appellant's First and Fourteenth Amendments to the U.S. Constitution."

Texas Civil Practices & Remedies Code 13.001 authorizes a trial court to dismiss actions filed under Rule 145, Texas Rules of Civil Procedure (affidavit of inability to pay costs), upon a finding that the action is frivolous or malicious. In determining whether the action is frivolous or malicious, the court may consider whether (1) the action's realistic chance of 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. The trial court has broad discretion to determine whether such a suit should be dismissed. Johnson v. Lynaugh, 766 S.W.2d 393 (Tex. App. Tyler 1989), aff'd 796 S.W.2d 705 (Tex. 1990); Kendrick v. Lynaugh, 801 S.W.2d 153, 155 (Tex. App. Houston [14th Dist.] 1990).

The trial court did not abuse its discretion in dismissing Appellant's action, or in failing to reinstate it.

Both points are overruled and the judgment is affirmed

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 11, 1995

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