Carl V. Long v. C. Tony Wright--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-01-173-CV

CARL V. LONG,

Appellant

v.

C. TONY WRIGHT,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 00-00-10201-CV

O P I N I O N

Carl Long was accused of manufacturing methamphetamine. In August 1999, the trial court appointed Don Phillips to represent him. Long subsequently hired C. Tony Wright as his lawyer. The docket sheet reflects a pre-trial hearing in October 1999 attended by Wright; Long s pre-trial motions were denied. Over time, there were numerous disagreements between Long and Wright, and in January 2000, Wright filed a motion to withdraw. However, at a hearing on January 19, Long told the court he wanted Wright to continue to represent him; the court denied the motion to withdraw.

But Long and Wright continued to have disagreements, and Long eventually filed a grievance against Wright. In addition, plea bargaining broke down between Long and the State. Without issuing an order allowing Wright to withdraw, in April the court reappointed Don Phillips to represent Long.

Five days before trial in August, Wright filed another motion to withdraw which the court granted. Trial proceeded with court-appointed counsel, Phillips. Long was convicted, and on August 15, 2000, he was sentenced to forty-five years in prison. Another attorney was appointed to represent Long post-trial.

In December 2000, from his prison cell, Long filed a pro-se civil suit against Wright, alleging inter alia:

" Long contracted with Wright for Wright to represent him through trial.

" The agreed fee was $15,000, payable by September 1, 2001.

" Long signed his homestead over to C. Tony Wright for collateral until he could pay Attorney Tony Wright for his services.

" Wright did not show up at a pre-trial hearing on January 14, 2000. Although requested to by Long, Wright did not reschedule the hearing. //

" Several months later, Long filed a grievance against Wright. Tony Wright broke the contract agreement. . . . Carl Long simply wanted Tony Wright to do his job as was agreed upon.

" Wright withdrew five days before trial, claiming a conflict of interest. This is Tony Wright s excuse so he can steal Carl Long s homestead.

" No property or money was refunded.

" Long is entitled to: (1) return of his homestead and homeowners deed, or in the alternative, $15,000, the agreed upon value of said homestead . . . by nature of the contract, (2) punitive damages of at least $15,000, and (3) any attorney s fees that may be incurred.

Wright filed a general denial and requests for disclosure. Tex. R. Civ. P. 83, 194. In April 2001, the trial court issued an Order of Dismissal under chapter fourteen of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ch. 14 (Vernon Supp. 2002). In the order, the court made three fact findings:

1. The complaint fails to show a coherent cause of action ;

2. The allegations contained therein are contrary to the Court s recollection of such events of which the Court takes judicial knowledge ; and

3. Such complaint is frivolous.

Long appeals pro se from this order.

Chapter fourteen provides that lawsuits in which an inmate files an affidavit of inability to pay, as did Long, or the unsworn declaration allowed for those incarcerated, may be dismissed if the action is frivolous or malicious or if the affidavit or declaration contains false claims. Id. 14.003(a)(2) (Vernon Supp. 2002); Tex. R. Civ. P. 145; Tex. Civ. Prac. & Rem. Code Ann. ch. 132 (Vernon 1992). The standard of review for a chapter fourteen dismissal is abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no pet.); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex. App. Houston [1st Dist.] 2000, no pet.). A trial court abuses its discretion in a chapter fourteen dismissal if it acts arbitrarily or unreasonably. Hickson, 926 S.W.2d at 398; see Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App. Austin 1997, writ denied) (a chapter thirteen case the equivalent dismissal proceeding for non-inmate litigation; it is an abuse of discretion to dismiss a case that has an arguable basis in fact or law) (citing Hector v. Thaler, 862 S.W.2d 176, 179 (Tex. App. Houston [1st Dist.] 1993, no writ)). The court may, but is not required to, hold a hearing before dismissing the case. See Tex. Civ. Prac. & Rem. Code Ann. 14.003(c). Here the court did not.

In determining whether the lawsuit is frivolous or malicious, the court may consider whether or not (1) the action s realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or in 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. Id. 14.003(b). After our review of the record, we find that Long has pled breach of a contract he claims he had with Wright. He has set forth facts underlying his claim and has pled for appropriate remedies. We do not find his pleadings incoherent. Furthermore, there is nothing in the record to contradict Long s allegations. The trial court s fact-findings do not establish that Long would not prevail at trial. Neither Wright s general denial nor his brief on appeal address the substance of Long s allegations. // In conclusion, we find no basis in the record on which a trial court could reasonably determine Long s case to be frivolous.

However, as Wright points out, Long never filed a separate affidavit or declaration as to whether he had ever filed other suits pro se, as is required by section 14.004. Id. 14.004 (Vernon Supp. 2002). We have held that failure to file this affidavit is fatal, and can be the basis of a dismissal. Hickson, 926 S.W.2d at 399.

Accordingly, the order of dismissal is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed January 9, 2002

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