Shirley Ann Charles v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-04-00051-CV

Shirley Ann Charles,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # C0T-03-35093

DISSENTING Opinion

I agree with virtually nothing in the Court’s determinative analysis other than the conclusion there were multiple grounds upon which the case could have been dismissed.

The use of non-chapter 14 dismissal cases in the discussion of allowing amendments and refiling is particularly irrelevant and inappropriate.  If the only basis upon which the trial court could have disposed of this case was by a detailed review of the pleadings, as the majority has done, maybe a change in the standard of review to de novo would be appropriate.  But when, as here, the pleadings affirmatively show the plaintiff failed to meet the statute of limitations and that ground would support a dismissal with prejudice, we should render the judgment the trial court should have rendered, dismissal with prejudice.  Otherwise, we frustrate the purpose for which Chapter 14 was adopted.  For this reason I dissent from the Court’s reformation of the trial court’s judgment[1] to be a dismissal without prejudice.

                                                       TOM GRAY

                                                       Chief Justice

Dissenting Opinion delivered and filed February 23, 2005

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[1] The Court has shown a propensity to abate an appeal if we cannot tell what the trial court has done.  See American Home Products v. Clark, 3 S.W.3d 57 (Tex. App.—Waco 1999, order); Harrison v. TDCJ-ID, 134 S.W.3d 490 (Tex. App. – Waco 2004, order). See also Davidoff v. GX Tech. Corp., 134 S.W.3d 514 (Tex. App.—Waco 2004, order); U.S. Fire Ins. Co.’s v. Gnade, 134 S.W.3d 511 (Tex. App. – Waco 2004, order).  I note here, in apparent fear, the trial court might actually render a judgment contrary to what they want to render, the majority makes the decision for the trial court rather than abate as they have done in the past.