Michael Lou Garrett v. Darryl E. Glenn

NO. 07-06-0171-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 14, 2006 ______________________________

MICHAEL LOU GARRETT,

Appellant

v.

DARRYL E. GLENN, ET AL.,

Appellees

_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 94,029-A; HON. HAL MINER, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Michael Lou Garrett, an indigent inmate, appeals from an order dismissing his suit against Darryl E. Glenn and numerous other employees or agents of the Texas Department of Criminal Justice as well as Caroline Woodburn, the District Court Clerk of Potter County, and Christopher Champion Wike, an assistant attorney general for the State of Texas. He contends that the trial court abused its discretion in dismissing the cause. We overrule the issue and affirm the final order.

On December 12, 2005, appellant filed, pursuant to Chapter 14 of the Civil Practice and Remedies Code, his 150-page complaint addressing 83 grievances. The trial court dismissed that complaint on March 30, 2006, finding that the claims were frivolous or malicious. In support of that finding, it also stated that 1) the defendants were entitled to qualified immunity from appellant's federal law claims, to official immunity from his state law claims, and to sovereign immunity from his claims of conspiracy, intentional torts, and negligence, 2) appellant's claims of denial of access to courts were belied by his affidavit of previous filings, 3) appellant failed to attach a copy of the written decisions of his 83 grievances, and 4) a written decision on all but four of the grievances was received by appellant more than 31 days prior to the filing of his petition. Appellant challenges all of these findings on appeal.

The trial court has broad discretion to dismiss lawsuits filed under Chapter 14 of the Civil Practice and Remedies Code. Retzlaff v. Texas Dep't of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.- Houston [14^th Dist.] 2002, pet. denied). And, though several reasons justifying the dismissal at bar were mentioned, we may affirm the decision if any of those grounds are legitimate. Williams v. Texas Dep't of Criminal Justice - Institutional Division, 176 S.W.3d 590, 593 (Tex. App.-Tyler 2005, pet. denied).

Next, statute requires an inmate who files a claim that was subject to a grievance to provide the trial court a copy of the written decision of the body entertaining the grievance. Tex. Civ. Prac. & Rem. Code Ann. §14.005(a)(2) (Vernon 2002). A handwritten summary of the decision does not suffice. Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.-Fort Worth 2004, pet. denied). Thus, the handwritten summaries provided by Garrett of the 83 grievances filed with and considered by the prison's grievance system fell short of meeting the statutory dictate. And, though he avers that his summaries reiterated the findings verbatim, statute requires that a copy of the decision be provided. ⁽¹⁾ We cannot ignore that which the legislature wrote and governor enacted.

So, Garrett's failure to comply with §14.005(a)(2) of the Civil Practice and Remedies Code warranted dismissal of the suit. Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.- Beaumont 2004, pet. denied). And, the trial court did not err in so concluding.

The order of dismissal is affirmed.

Brian Quinn

Chief Justice

1. Lacking an actual copy of the written decisions, we are unable to verify the accuracy of Garrett's representation that his summaries are verbatim reiteration of those decisions.

2d 271, 271 (Tex. 1944); Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25, 30 (Tex.App.-San Antonio 1998, pet. dism'd w.o.j.).

Gibson's second issue presents the same question with regard to the legal sufficiency of the evidence of Ray's apparent authority. Both actual and apparent authority are created through the conduct of the principal communicated either to the agent (actual authority) or to a third party (apparent authority). Suarez v. Jordan, 35 S.W.3d 268, 273 (Tex.App.-Houston [14^th Dist.] 2000, no pet.).

For actual authority, there must be evidence the principal intentionally conferred the authority upon the agent; intentionally allowed him to believe that he possessed the authority; or, by want of care, allowed him to believe that he possessed the authority. Streetman v. Benchmark Bank, 890 S.W.2d 212, 215-16 (Tex.App.-Eastland 1994, writ denied). As noted, in this case, the question is whether Ray had "actual authority to authorize more than one medical treatment" for Hughes. During the cross-examination of Ray, the following transpired:

Q: ... I'm just saying you have the authority to authorize more than one visit to a doctor's office, correct?

A: Yes.

...

Q: ... So you authorized an employee to go see the doctor, that employee goes to see the doctor, and that's pretty much the end of your involvement. You can't authorize- you can authorize more than one, but you didn't this time so your testimony is.

A: That's correct.

Q: Of course in deposition you also testified that you have never authorized anybody to have more than one visit; is that correct?

A: No. It may have been what I said at the time, but I was confused. I can authorize more than one if it's like to have the stitches removed.

Q: Okay. So you can authorize more than one. Can you authorize more than two?

A: It depends on the case.

...

Q: ... Can you authorize more than three?

A: I would get permission to do it from Scott Gibson.

(emphasis added). This testimony provides legally sufficient evidence to demonstrate Gibson had conferred on Ray actual authority to authorize more than one medical treatment for Hughes. Glover, 619 S.W.2d at 401; Streetman, 890 S.W.2d at 215-16. We overrule Gibson's first issue on appeal. Because we have determined Ray's actual authority to authorize more than one medical treatment for Hughes was supported by legally sufficient evidence, we need not address Gibson's second issue regarding her apparent authority.

We next consider Gibson's fourth issue asking whether the evidence is legally sufficient to support an award of $3,000 for actual damages against Gibson. The evidence at trial demonstrates the cost of Hughes' first visit was $385 and the total bill for 51 visits was $12,425. ⁽²⁾ Gibson complains that at no time did the balance ever total exactly $3,000 ⁽³⁾ and that the "award of $3,000.00 was a number arbitrarily pulled from the proverbial hat, and not based on any evidence in the case . . . . [and] the judgment should be reversed . . . ." We disagree.

The trier of fact has discretion to award damages within the range of evidence presented at trial and we are not permitted to disregard the damages award because the trier of fact's reasoning in arriving at its figure is unclear. Duggan v. Marshall, 7 S.W.3d 888, 893 (Tex.App.-Houston [1^st Dist.] 1999, no pet.); Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 710 (Tex.App.-Houston [1^st Dist.] 1988, writ denied). Evidence corresponding to the precise amount found by the trier of fact is not essential. See Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 695 (Tex.App.-Austin 1989, no writ) (deceptive trade practice claim). Since the amount awarded was within the range of evidence presented at trial, we overrule Gibson's fourth issue on appeal. Duggan, 7 S.W.3d at 893. Because we find the damages award of $3,000 was proper, we need not address Gibson's third issue questioning whether the evidence is legally sufficient to support a judgment for more than the fee for the first visit. Our disposition of Gibson's fourth issue also pretermits our consideration of its sixth issue by which it challenges Coolbaugh's recovery of attorney's fees by contending the demand for $12,425 was excessive.

By its fifth issue, Gibson asserts Coolbaugh failed to present his claim to Gibson, precluding his recovery of attorney's fees. See TEX. CIV. PRAC. & REM. CODE ANN. §38.002 (providing the prerequisite that the claimant present the claim to the opposing party in order to recover its attorney's fees). We overrule the issue. As noted, Coolbaugh testified he sent a second bill to Gibson after he completed the treatment of Hughes in November 2001. Gibson claimed it never received the bill. The fact finder, as opposed to the reviewing court, enjoys the right to resolve credibility issues and conflicts within the evidence. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex. 1973). The trier of fact may choose to believe all, part, or none of the testimony of any particular witness. In the Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.-Amarillo 1995, no writ). Coolbaugh's testimony supports a conclusion the claim was presented in November 2001.

Further, Hughes testified she hand-delivered a copy of Coolbaugh's final bill to Gibson in June 2002. In her testimony, Ray confirmed she received the bill at that time. Coolbaugh's original petition is dated June 16, 2003. ⁽⁴⁾ The trial court was justified in concluding the claim was presented as required under section 38.002.

Having overruled Gibson's issues on appeal, we affirm the judgment of the trial court. ⁽⁵⁾

James T. Campbell

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. The "Statement of Account," beginning on August 1, 2001 and ending November 29, 2001, was admitted in evidence at trial.

3. Gibson notes that Hughes's account surpassed $3,000 during the course of her 16^th visit on August 31, 2001. Gibson states the balance was $2,940 after the 15^th visit and $3,120 after the 16^th visit.

4. Even if Gibson did not receive the bill from Coolbaugh until June 2002, a question we need not decide, it was still received more than 30 days prior to the commencement of this lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. §38.002 (3) ("payment for the just amount owed must not have been tendered before the expiration of the 30^th day after the claim is presented").

5. In its prayer for relief, Coolbaugh requests that we award "attorney's fees for Appellee on appeal." In its judgment, the trial court did not award attorney's fees for appeal to Coolbaugh. A party who seeks to alter the trial court's judgment must file a notice of appeal. TEX. R. APP. P. 25.1(c). Without a showing of just cause, we may not grant him more favorable relief than did the trial court. Id.