Margaret Meece and Patrick Meece v. OCC Construction Corporation

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00329-CV

Marrgaret Hiebeler,

                                                                                    Appellant

 v.

OCC Construction Corporation,

                                                                                    Appellee

And

No. 10-08-00354-CV

Margaret Meece and Patrick Meece,

                                                                                    Appellants

 v.

OCC Construction Corporation,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-001642-CV-361

Consolidated with No. 03-001643-CV-361

DISSENT TO SEVERANCE AND REINSTATEMENT ORDER

            The Court’s opinion and judgment in 10-08-00329-CV has not issued. On September 18, 2008 we received a notice of bankruptcy of two of the Appellants.  On October 7, 2008 we acknowledged the automatic stay due to having received the notice of bankruptcy.  Today we purport to sever the proceeding on our own motion.  I would not.

            I would inquire of the parties regarding whether the matter was appropriate for severance, in particular whether the Appellees’ claims against the Appellants as well as the Appellants’ claims and counterclaims are severable.  Before I vote to attempt to sever the Appellants, I would request briefing on the issue of severability.  Further, it appears we may be creating an undesirable course of proceeding because, while represented by able counsel, none of the parties has sought this Court’s intervention in this manner.

            Accordingly, I respectfully dissent from the severance and reinstatement order.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissent to Severance and Reinstatement Order delivered and filed October 15, 2008

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l court dismissing his pro se in forma pauperis action as frivolous.

      Appellant, a prison inmate, filed suit against the Texas Department of Criminal Justice-Internal Affairs Division; Hughes Unit; John Vanderwrueff; James L. Trefftzs; Jimmy Wilcox; Special Prosecution Unit TDCJ Gatesville; Riley J. Simpson, District Attorney; Sandy Gately, Ex District Attorney; and Phillip Zeigler, District Judge Coryell County.

      Appellant alleged Appellees violated his civil rights in a number of ways and sought damages of $999,999.00 jointly and severally against each Appellee, plus exemplary damages.

      On April 12, 2000, the trial court dismissed the case as frivolous pursuant to Chapter 14 of the Tex. CIV. Prac. & Rem. code.

      Appellant appeals contending the trial court erred in dismissing his case.

      Appellees Vanderwrueff, Trefftzs and Wilcox are employees of the TDCJ-ID in Gatesville; Appellee Simpson is District Attorney of the 52^nd District; Appellee Gately is a former District Attorney of the 52^nd District; and Appellee Zeigler is District Judge of the 52^nd District.

      Section 14.003(a) provides that a court may dismiss a claim, either before or after service of process, if the court finds that: (2) the claim is frivolous or malicious. Section 14.003(b) provides that in determining whether a claim is frivolous or malicious, the 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.

      Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1929).

      Appellees Vanderwrueff, Trefftzs, and Wilcox, as employees of the TDCJ-ID have common law immunity from personal liability while performing discretionary duties within the scope of their employment, so long as those duties are performed in good faith. Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex. App.—Waco 1990, writ denied); Campbell v. Jones, 264 S.W.2d 425, 427 (Tex. 1954).

      Appellees Simpson and Gately as District Attorneys of the 52^nd District are entitled to absolute prosecutorial immunity for any activity associated with the judicial process. Imbler v. Pachtman, 424 U.S. 409 (1976); Brandt v. West, 892 S.W.2d 56, 70 (Tex. App.—Houston 1994, writ denied).

      Appellee Zeigler is entitled to absolute judicial immunity for any activity associated with the judicial process. Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961); Brandt v. West, Id.

      All acts asserted by Appellant as a basis for liability against Appellees were acts performed in connection with their official duties as prison officials, prosecutors, and as Judge. There is no allegation in the amended petition against the prison officials or that the actions of the prison officials were in bad faith as would be necessary to prevail on the claims, if any, against them.

      Thus the trial court did not act without reference to any guiding principles and did not abuse his discretion in dismissing Appellant’s lawsuit as frivolous.

      Appellant’s contentions are overruled.

      The judgment is affirmed.

                                                                   FRANK G. McDONALD

                                                                   Chief Justice (Retired)

Before Chief Justice Davis

            Justice Gray and

            Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 15, 2001

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