Jose B. De La Cerda v. Boyd Distribution Center and Clear Tech--Appeal from 87th District Court of Anderson County

NO. 12-06-00284-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSE B. DE LA CERDA, APPEAL FROM THE 87TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

BOYD DISTRIBUTION CENTER

AND CLEAR TECH,

APPELLEES ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Jose B. De La Cerda, an inmate proceeding pro se, filed an in forma pauperis suit against Boyd Distribution Center and Clear Tech. De La Cerda appeals the trial court s order dismissing his suit as frivolous and malicious pursuant to section 14.003 of the Texas Civil Practice and Remedies Code. In two issues, De La Cerda claims that the trial court erroneously dismissed his suit and that section 14.003, as construed by the trial court, violates the open courts provision of the Texas Constitution. We reverse and remand.

Background

De La Cerda is an inmate of the Texas Department of Criminal Justice Beto Unit at Tennessee Colony, Texas. De La Cerda claims that he purchased a typewriter from Boyd Distribution Center on February 25, 2005. Boyd is the alleged operator of the Beto Unit Commissary. The typewriter was allegedly manufactured by Clear Tech. De La Cerda alleges that the typewriter ceased to function properly sixty-one days after its purchase. De La Cerda sought the product s repair through an alleged manufacturer s warranty, but his efforts were unsuccessful.

On October 25, 2005, De La Cerda filed a lawsuit against Boyd and Olympia Lear Tech1 in the 87th District Court of Anderson County, Texas. On December 6, 2006, the trial court sua sponte dismissed his suit without prejudice finding that the amount of his alleged damages was below the minimum jurisdictional limits of that court. De La Cerda appealed the trial court s ruling. We dismissed his appeal for failure to comply with the Texas Rules of Appellate Procedure. De La Cerda v. Boyd Distrib. Ctr., No. 12-05-00403-CV, 2006 WL 133248, at *1 (Tex. App. Tyler Jan. 18, 2006, no pet.) (mem. op.) (per curiam).

On June 2, 2006, De La Cerda again filed suit in the 87th District Court. This time, De La Cerda claimed additional damages, pleaded a new cause of action for fraudulent misrepresentation, and named Clear Tech as the defendant manufacturer instead of Olympia. On July 11, 2006, without conducting a hearing, the trial court sua sponte dismissed De La Cerda s suit with prejudice pursuant to section 14.003. The trial court found that this suit involved the same parties and issues as the previous suit and thus constituted a frivolous and malicious claim under section 14.003. This appeal followed.

Dismissal of De La Cerda s Claims

In his first issue, De La Cerda contends that the trial court erred by dismissing his suit. Neither Boyd nor Clear Tech filed a brief.

Standard of Review

We review the dismissal of an inmate s action as frivolous or malicious under an abuse of discretion standard. Elias v. DeLeon, No. 12-04-00143-CV, 2005 WL 2404113, at *1 (Tex. App. Tyler Sept. 30, 2005, no pet.) (mem. op.). To establish that the trial court abused its discretion, the complaining party must show that the trial court acted without reference to any guiding rules or principles. Id. We will affirm such a dismissal if it was proper under any legal theory. Id. In considering the record before us, we review and evaluate pleadings of inmates proceeding pro se in civil suits with liberality and patience. Id.

Analysis

Inmate suits such as De La Cerda s are controlled by Chapter 14 of the Texas Civil Practice and Remedies Code. Section 14.003(a)(2) provides that a trial court may dismiss a claim if the trial court finds that the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous or malicious, a trial court may consider whether (1) the claim s realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or 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).

The trial court found De La Cerda s suit to be frivolous and malicious because it involved the same parties and issues as his previous suit. In making this finding, the trial court incorrectly interpreted the fourth consideration set forth in section 14.003(b). See id. 14.003(b)(4). The test is not whether the parties and the issues involved are the same as those in a previous claim but, instead, whether the claim arises from the same operative facts as a previous claim. See id. Therefore, the trial court s finding that the same parties and issues were involved does not support a finding that De La Cerda s case was frivolous and malicious under section 14.0003(b). See id.

Moreover, dismissal based upon the suit being substantially similar to a previous claim would have been improper. Generally, when a plaintiff fails to plead damages within the jurisdictional limits of a trial court, the proper remedy is to dismiss the case without prejudice. See Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 274 (Tex. App. Texarkana 2003, no pet.). Because a dismissal for lack of jurisdiction is usually not a decision on the merits, it generally cannot be done with prejudice and thus cannot usually bar a plaintiff from attempting to overcome the barriers that deprived the trial court of jurisdiction. See Bell v. State Dep t of Highways & Pub. Transp., 945 S.W.2d 292, 295 (Tex. App. Houston [1st Dist.] 1997, writ denied). On the other hand, a dismissal with prejudice constitutes an adjudication on the merits and operates as if a case has been fully tried and decided. Mullins, 111 S.W.3d at 273. A dismissal with prejudice will have res judicata and collateral estoppel effects. Id. at 273-74.

The first suit was dismissed without prejudice for want of jurisdiction. In the second suit, De La Cerda corrected the jurisdictional error.2 De La Cerda was thus entitled to have his second suit tested on the merits, and the trial court could not properly rely upon the dismissal of the first suit to determine whether De La Cerda s subsequent case was frivolous or malicious. See Bell, 945 S.W.2d at 295. Therefore, the trial court could not have dismissed the new suit under the substantially similar claims provision of section 14.003(b). See Mullins, 111 S.W.3d at 273-74; Thomas v. Skinner, 54 S.W.3d 845, 846-47 (Tex. App. Corpus Christi 2001, pet. denied).

Having determined that the trial court was not entitled to make a finding of substantial similarity or dismiss De La Cerda s suit on that ground, we must now determine if the dismissal was proper under any other legal theory. See Elias, 2005 WL 2404113, at *2. Because there was no fact finding hearing, the trial court was entitled to dismiss De La Cerda s suit only if the suit lacked an arguable basis in law. See Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App. Texarkana 2001, pet. denied).

To determine if the trial court could have properly decided that De La Cerda s suit had no arguable basis in law, we review the types of relief and causes of action he pleaded to determine if, as a matter of law, the petition states a cause of action that would authorize relief. See Elias, 2005 WL 2404113, at *2. To have no arguable basis in law, a claim must be based on an indisputably meritless legal theory or the facts alleged must rise to the level of irrational or wholly incredible. Gill, 64 S.W.3d at 603. Stated another way, the pleaded facts must not comprise a cause of action. Id. at 604. An in forma pauperis pro se inmate suit may not be dismissed simply because the trial court finds the plaintiff s allegations to be unlikely. Id. at 603-04.

De La Cerda alleges causes of action under the Texas Deceptive Trade Practices Act (DTPA) for breach of express and implied warranty and fraudulent misrepresentation. De La Cerda alleges that Boyd and Clear Tech breached an express one year warranty when they ignored his requests that they repair the typewriter despite adequate notice of its broken condition. He alleges that Boyd and Clear Tech violated their implied warranty of merchantability as well when they ignored these requests for repair. He alleges that Boyd and Clear Tech made knowingly fraudulent misrepresentations to him as to the brand and quality of the typewriter, which he (a consumer) relied upon to his detriment. Lastly, he alleges additional damages that meet the minimum jurisdictional limits of the trial court. See Chapa, 999 S.W.2d at 836.

Applying the liberal standard to pleadings filed pro se by inmates, and considering the facts set out in De La Cerda s petition, we conclude that he has stated three causes of action against Boyd and Clear Tech which, if proved, would authorize relief. See Tex. Bus. & Com. Code Ann. 17.50 (Vernon Supp. 2006). Therefore, De La Cerda s claim has an arguable basis in law. See Elias, 2005 WL 2404113, at *2. While inquiry into the factual bases of the claims may reveal that De La Cerda s suit is frivolous, based on the pleadings alone, it cannot be said that De La Cerda s DTPA claims are indisputably meritless, irrational, or wholly incredible. See Gill, 64 S.W.3d at 606. Accordingly, we hold that the trial court abused its discretion by dismissing De La Cerda s suit as frivolous and malicious. See id. De La Cerda s first issue is sustained.

Disposition

Having sustained De La Cerda s first issue, we need not consider his second issue. See Tex. R. App. P. 47.1. We reverse and remand this cause for further proceedings consistent with this opinion.

SAM GRIFFITH

Justice

Opinion delivered January 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 At the time, De La Cerda believed the typewriter had been manufactured by Olympia Lear Tech. He later determined that the manufacturer was actually Clear Tech.

2 De La Cerda has pleaded additional damages that are within the jurisdictional limits of the trial court. See Chapa v. Spivey, 999 S.W.2d 833, 836 (Tex. App. Tyler 1999, no pet.) (per curiam).