Richard Tobias v. SLP Brownwood LLC D/B/A Cross Country Healthcare Center, the Owners of SLP Management, Inc., and Dr. N. Nigalye

Opinion filed June 24, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00247-CV
__________
RICHARD TOBIAS, Appellant
V.
SLP BROWNWOOD LLC D/B/A CROSS COUNTRY
HEALTHCARE CENTER, THE OWNERS OF SLP
MANAGEMENT, INC., AND DR. N. NIGALYE, Appellees
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1903123
MEMORANDUM OPINION
Appearing pro se both at trial and on appeal, Richard Tobias challenges the
trial court’s dismissal of his original petition under Rule 91a of the Texas Rules of
Civil Procedure. See TEX. R. CIV. P. 91a.1. Appellant brings three issues
challenging the dismissal. Because we agree with the trial court that Appellant failed
to plead a cause of action that has a basis in law or fact, we affirm the dismissal. See
id.
On March 20, 2019, Appellant filed suit against Appellees, SLP Brownwood
LLC d/b/a Cross Country Healthcare Center, the Owners of SLP Management, Inc.,
and Dr. N. Nigalye. He alleged that, in March 2017, Appellees engaged in a course
of conduct that caused his “abduction and trip without notice” by instituting legal
proceedings to have him committed to another facility in Midland. He alleged that
Appellees erroneously accused him of a physical altercation with another resident of
the healthcare facility, that Appellees caused a municipal judge to issue a court order
for Appellant’s removal, and that “[t]hey ordered me to get into a sheriff’s car with
the deputy. I had no notice or opportunity to pack and I was denied the opportunity
to go back to my room and pack a few things.”
Appellant alleged the following causes of action: lack of compliance with
Chapter 574 of the Texas Health and Safety Code, violations of Title 8 of the Texas
Property Code pertaining to landlord/tenant law, Title 4 of the Texas Health and
Safety Code pertaining to Health Facilities, the Americans with Disabilities Act, 42
U.S.C. § 1983, and “[d]ue process and equal protection of the law in Texas and U.S.
Constitutions.”
On April 11, 2019, Appellees filed a motion to dismiss Appellant’s causes of
action under Rule 91a. They asserted that Appellant’s claims did not have a basis in
law or fact. The trial court heard the motion to dismiss on May 23, 2019, and it
entered a written order on that date granting the motion.
In his first issue, Appellant contends that the trial court erred by denying his
motion for continuance. Appellant filed an unverified motion for continuance three
days prior to the hearing, asserting that he did not have transportation to attend the
hearing. The trial court overruled the motion for continuance at the outset of the
hearing. In doing so, the trial court noted that Appellant was notified of the
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availability to utilize a service to participate by telephone but that Appellant did not
do so. Appellant asserts on appeal that the denial of the motion for continuance
denied his “right to plead the case and clarify the issues.”
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.
2002). We do not substitute our judgment for the trial court’s judgment. In re Nitla
S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must
determine whether the trial court’s discretion was so arbitrary and unreasonable that
it amounts to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004). The test is whether the trial court acted
without reference to guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004).
Rule 251 of the Texas Rules of Civil Procedure governs motions for
continuance. This rule provides that a motion for continuance shall not be granted
without “sufficient cause supported by affidavit, or by consent of the parties, or by
operation of law.” TEX. R. CIV. P. 251. “Accordingly, motions for continuance
generally must be in writing, state the specific facts supporting the motion, and be
verified or supported by an affidavit.” In re Marriage of Harrison, 557 S.W.3d 99,
117 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). When a motion for
continuance does not comply with the rules because it is unwritten or unsupported
by verified facts, appellate courts generally presume that the trial court did not abuse
its discretion in denying the motion. Id.The trial court did not abuse its discretion by denying Appellant’s motion for
continuance. The motion did not comply with the applicable rule for a motion for
continuance. See id. Additionally, the trial court provided Appellant with an
alternative method for participating in the hearing. Furthermore, a Rule 91a motion
to dismiss is based on a review of the plaintiff’s pleadings without a consideration
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of evidence. TEX. R. CIV. P. 91a.6. The rule further permits the plaintiff to amend
his pleadings prior to the hearing. Id. R. 91.a.5(b). Accordingly, we disagree with
Appellant’s contention that the denial of his motion for continuance precluded him
from repleading his claims. We overrule Appellant’s first issue.
In his second issue, Appellant asserts that the trial court erred by granting
Appellees’ Rule 91a motion to dismiss. Under Rule 91a, “a party may move to
dismiss a cause of action on the grounds that it has no basis in law or fact.” Id.R. 91a.1. As specified in the rule: “A cause of action has no basis in law if the
allegations, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought.” Id. “A cause of action has no basis in
fact if no reasonable person could believe the facts pleaded.” Id.We review the trial court’s rulings on a Rule 91a motion to dismiss de novo.
City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). “We look
solely to the pleading and any attachments to determine whether the dismissal
standard is satisfied.” Estate of Savana, 529 S.W.3d 587, 592 (Tex. App.—Houston
[14th Dist.] 2017, no pet.); accord Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). To determine if the cause of action
has a basis in law or fact, we construe the pleadings liberally in favor of the plaintiff,
look to the pleader’s intent, and accept as true the factual allegations in the pleadings.
Wooley, 447 S.W.3d at 76.
The thrust of Appellant’s claims is that Appellees wrongfully instituted
involuntary mental commitment proceedings against him. Appellant cites
Chapter 574 of the Texas Health and Safety Code in his petition. See TEX.
HEALTH & SAFETY CODE ANN. ch. 574 (West 2017 & Supp. 2020). Chapter 574 of
the Texas Health and Safety Code governs court-ordered mental health services.
However, Appellant does not cite, and we have not found, a provision in Chapter 574
that creates a private cause of action against a person that files an application for
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another person to receive court-ordered mental health services. In this regard, a
statute creates a private cause of action “only when a legislative intent to do so
appears in the statute as written.” Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex.
2004).
Many of Appellant’s complaints are directed at the judge that entered the order
for Appellant’s involuntary commitment. However, the judge is not a party to this
action. Furthermore, a judge acting in his or her official judicial capacity enjoys
absolute immunity from liability for judicial acts performed within the scope of his
or her jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (judge not
deprived of immunity because action taken was in error, was done maliciously, or
was in excess of authority; immunity fails only when judge acts in clear absence of
jurisdiction); Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961). “Judges enjoy
absolute judicial immunity from liability for judicial acts, no matter how erroneous
the act or how evil the motive[.]” Alpert v. Gerstner, 232 S.W.3d 117, 127 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied) (quoting City of Houston v. W. Capital
Fin. Servs. Corp., 961 S.W.2d 687, 689 (Tex. App.—Houston [1st Dist.] 1998, pet.
dism’d w.o.j.)). Accordingly, Appellant has not pleaded a cause of action that has a
basis in law or fact under Chapter 574 of the Health and Safety Code.
Appellant also lists other statutory provisions under which he brought suit
against Appellees. 42 U.S.C. § 1983 provides a remedy for deprivation of rights
secured by the Constitution and the laws of the United States when that deprivation
takes place “under color of any statute, ordinance, regulation, custom, or usage, of
any State.” 42 U.S.C. § 1983; Lugar v. Edmondson Oil Co., 457 U.S. 922, 924
(1982). To prevail on a Section 1983 claim, the plaintiff must prove that he was
deprived of a right secured by the Constitution or the laws of the United States by a
person acting under color of law. Paz v. Weir, 137 F. Supp. 2d 782, 796 (S.D. Tex.
2001). A Section 1983 claim is not viable when the alleged infringement did not
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stem from conduct fairly attributable to the State because “‘[m]ere[] private conduct,
no matter how discriminatory or wrongful,’ is excluded from § 1983’s reach.”
Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005) (alterations in
original) (quoting Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 352
(5th Cir. 2003)).
In Blum v. Yaretsky, the United States Supreme Court held that decisions made
by nursing home personnel concerning the involuntary discharge of patients do not
constitute state action even though the facility is heavily regulated by state and
federal law. 457 U.S. 991, 1004–12 (1982); see T.L. v. Cook Children’s Med. Ctr.,
607 S.W.3d 9, 38 (Tex. App.—Fort Worth 2020, pet. denied), cert. denied, 141 S.
Ct. 1069 (2021). Accordingly, Appellant has not stated a viable Section 1983 claim
against Appellees because there is no state action. The same analysis is applicable
to Appellant’s claims for violations of the Constitutions of the United States and
Texas—claims for constitutional violations require state action in order to be
actionable. See Johnson v. State Farm Mut. Auto. Ins. Co., 520 S.W.3d 92, 101
(Tex. App.—Austin 2017, pet. denied) (citing Davis v. Fisk Elec. Co., 268 S.W.3d
508, 530 (Tex. 2008); Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 91, 93 (Tex.
1997); Yazdchi v. Tradestar Invs., Inc., 217 S.W.3d 517, 520 n.9 (Tex. App.—
Houston [14th Dist.] 2006, no pet.)).
In his petition, Appellant generally alleged the “Americans with Disabilities
Act” without citing any specific provision in the Act upon which he relied. See 42
U.S.C. §§ 12101–12213. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” GoDaddy.com, LLC v.
Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, pet. denied) (quoting
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).1 The same analysis applies to other
claims asserted by Appellant because he simply listed “Property Code Title 8
Landlord Tannate [sic]”2 and “Health and Safety Code Title 4 Health Facilities”3
without citing any specific provisions in these acts upon which he based his causes
of action. The facts alleged by Appellant would not support claims under these
statutory provisions. Accordingly, Appellant has not pleaded causes of action that
have a basis in law or fact under the Americans with Disabilities Act, Title 8 of the
Texas Property Code, or Title 4 of the Health and Safety Code.
On appeal, Appellant also asserts that he had claims under the “Affordable
Care Act,”4 the “U.S. Patient Bill of Rights,” the “Texas Patient Bill of Rights,” and
Sections 576.001, 576.021, and 576.026 of the Texas Health and Safety Code.5
However, Appellant did not plead these causes of action in his petition. As noted
above, “[w]e look solely to the pleading and any attachments to determine whether
the dismissal standard is satisfied.” Estate of Savana, 529 S.W.3d at 592.
Accordingly, the trial court did not err by granting Appellees’ Rule 91a motion to
dismiss. We overrule Appellant’s second issue.
In his third issue, Appellant asserts noncompliance with Section 1151.351 of
the Estates Code. See TEX. EST. CODE ANN. § 1151.351 (West 2020). This section
contains a “bill of rights” for wards in guardianship proceedings. However,
Appellant did not plead a cause of action under this statute or otherwise present this
complaint to the trial court. “Our rules regarding preservation are clear that, with
1
In Toups, the Beaumont Court of Appeals addressed the pleading requirements for a petition to
comply with the requirements of Rule 91a. 429 S.W.3d at 754. The Beaumont court cited Ashcroft for its
discussion of the federal counterpart to Rule 91a. Id.
2
See TEX. PROP. CODE ANN. §§ 91.001–94.303 (West 2014 & Supp. 2020).
3
See HEALTH & SAFETY §§ 221.001–326.004 (West 2017 & Supp. 2020).
4
See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
5
See HEALTH & SAFETY §§ 576.001, 576.021, 576.026 (West 2017).
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limited exceptions, a party cannot obtain reversal of a trial court’s judgment on
appeal based on an error that was never raised in the trial court.” In re G.X.H.,
No. 19-0959, 2021 WL 1704234, at *3 (Tex. Apr. 30, 2021); see TEX. R.
APP. P. 33.1(a). Thus, Appellant did not preserve this complaint for appellate
review. We overrule Appellant’s third issue.
This Court’s Ruling
We affirm the trial court’s order.
JOHN M. BAILEY
CHIEF JUSTICE
June 24, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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