Perry Lee Hammonds v. Jimmy D. Bagby

NO. 07-03-0465-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 31, 2004

______________________________



PERRY L. HAMMONDS, APPELLANT

V.

JIMMY D. BAGBY, APPELLEE



_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 91053-1; HONORABLE W. F. ROBERTS, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Perry L. Hammonds, an indigent inmate, challenges the trial court's order dismissing his claim as frivolous against appellee Jimmy D. Bagby, an employee of the Texas Department of Criminal Justice. Presenting a sole issue on appeal, he contends his Fourteenth Amendment rights were violated by Bagby when he confiscated certain commissary items. We affirm.

By his original petition filed on June 6, 2003, Hammonds alleged Bagby deprived him of property in violation of his due process rights and other rules and policies of the Texas Department of Criminal Justice. Specifically, he claims that certain commissary items such as sodas, chips, hot sauce, and chocolate peanuts were taken and never returned. As required by section 14.005(a)(1) of the Texas Civil and Practice Remedies Code, ⁽¹⁾ Hammonds filed his unsworn declaration describing two grievances he filed; however, copies of the written decisions from the grievance system are not included in the record as required by section 14.005(a)(2). On October 13, 2003, the trial court signed an order dismissing the case as frivolous.

Hammonds's suit is governed by the rules set forth in chapter 14 of the Code. Thompson v. Henderson, 927 S.W.2d 323, 324 (Tex.App.-Houston [1st Dist.] 1996, no writ). The purpose of chapter 14 is to assist the trial court in determining whether a suit is malicious or frivolous under section 14.003(a). Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ). In determining whether a claim is frivolous, the 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; and (4) the claim is substantially similar to a previous claim filed by the inmate because it arises from the same operative facts. Spurlock v. Johnson, 94 S.W.3d 655, 657 (Tex.App.-San Antonio 2002, no pet.). Where, as here, the trial court dismissed the suit without conducting a fact hearing, we are limited to reviewing only whether the claim had an arguable basis in law. Bohannan v.Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.App.-Austin 1997, writ denied); see also Sawyer v. Texas Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). A claim has no arguable basis in law if an inmate has not exhausted his administrative remedies. Retzlaff v. Texas Dept of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

The trial court has broad discretion to dismiss as frivolous a suit that is subject to chapter 14 of the Code, and the court's action is reviewed for abuse of discretion. Spurlock, 94 S.W.3d at 657; see also Hickson, 926 S.W.2d at 398. Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred. Id.

Hammonds couches his appellate argument in terms of deprivation of property and due process violations. He also asserts, however, that his suit was for property damages. Assuming, arguendo, that Bagby intentionally deprived Hammonds of his property, it does not constitute deprivation of a right of constitutional significance where an adequate post-deprivation remedy exists. See Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex.App.-Tyler 1996, writ denied), citing Hudson v. Palmer, 468 U.S. 517, 535, 104 S. Ct. 3194, 3204-05, 82 L. Ed. 2d 393 (1984). The Legislature has provided an administrative remedy to pay claims by inmates for property lost or damaged by the Department. See Tex. Gov't Code Ann. §§ 501.007 & 501.008 (Vernon 1998).

Appellant alleges in his unsworn declaration, as well as in his brief, that he exhausted his administrative remedies by filing grievances that were resolved against him. The clerk's record, however, does not contain any copies of his grievances nor the written decisions from the grievance system. We cannot conclude that he exhausted his administrative remedies and thus, his complaints of deprivation of property and denial of due process do not have an arguable basis in law. The trial court did not abuse its discretion in dismissing the suit as frivolous. Hammonds's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

1. All references to the Code are to the Texas Civil Practice and Remedies Code Annotated (Vernon 2002).

to dismiss the divorce, and (2) a representative of the "County Clerk[']s office" informed Valarie that no pending divorce action between Rex and Valarie could be located. We must determine whether Valarie was negligent in failing to file an answer in the divorce in reliance upon the representations of Rex and the clerk. ⁽²⁾

According to Valarie's affidavit, Rex asked Valarie, within a week of her receipt of the divorce petition, if she would agree with his dismissal of the divorce proceeding. Valarie agreed to the dismissal. In March, Valarie asked Rex "several times" if he had dismissed the divorce and he informed her that he had contacted his attorney to have the action dismissed. Valarie attempted to contact Rex's attorney to confirm the dismissal of the divorce, but was unable to obtain this information. Valarie had her sister contact Rex to determine the status of the divorce and Rex told Valarie's sister that the divorce had been dismissed. Valarie also contacted a "County Clerk[']s office" and was informed that no pending divorce action could be located. ⁽³⁾ Taking the evidence presented by Valarie as true, we conclude that Valarie raises genuine issues of material fact as to whether she acted without negligence in relying on the representations of Rex and as to whether she exercised reasonable diligence in determining that she did not need to file an answer.

Rex cites Gone v. Gone, 993 S.W.2d 845 (Tex.App.-Houston [14^th Dist.] 1999, no pet.), and Ramos v. Ramos, No. 01-98-00913-CV, 2000 Tex.App. LEXIS 8042 (Tex.App.-Houston [1^st Dist.] 2000, pet. denied), for the proposition that, after proper service is had upon a party to a lawsuit, reliance upon erroneous representations of dismissal by the opposing party constitutes negligence as a matter of law. However, both of these cases involved review of the actual bill of review proceedings, in which the burden of proof is on the petitioner, rather than summary judgments, where the burden is on the movant.

In Gone, the trial court found that the bill of review respondent did not represent to the bill of review petitioner that the divorce had been dismissed and, in the absence of any other explanation, further found that the bill of review petitioner had provided no evidence of why he failed to file an answer to the divorce. Gone, 993 S.W.2d at 847. By contrast, the trial court made no such finding in the present case. Further, because we must accept

Valarie's affidavit evidence as true, we must conclude that Rex did represent to Valarie that he had dismissed the divorce. As a result, we conclude that Gone is inapposite.

In Ramos, an unpublished opinion, the bill of review petitioner relied upon the representation of the respondent's attorney that the respondent intended to dismiss the divorce and that, if she did not, the attorney would notify the petitioner of any future court settings. Ramos, 2000 Tex.App. LEXIS 8042, at *11. Citing Gone, the Ramos court concluded that the bill of review petitioner's "lack of diligence in failing to file an answer after receiving notice of the divorce action . . . was negligence that contributed to the entry of the default judgment against him." Id. at *12. However, we fail to see how Gone supports the Ramos court's conclusion. Further, it appears that the Ramos petitioner made no effort to confirm the dismissal of the divorce. By contrast, Valarie's summary judgment evidence raises a material fact issue as to whether she exercised reasonable diligence in attempting to confirm that Rex had dismissed the divorce.

Thus, we conclude that neither the Gone or Ramos opinions apply to our review of the summary judgment rendered in this case. Further, we conclude that Rex has failed to show that Valarie's failure to file an answer, after proper service, based on erroneous representations of dismissal made by him constitutes negligence as a matter of law. CONCLUSION

We conclude that Valarie's summary judgment evidence raises a genuine issue of material fact as to whether her reliance upon Rex's representations that he had dismissed the divorce was non-negligent. Therefore, we reverse the Order Granting Respondent's Motion for No Evidence Summary Judgment and remand this cause to the trial court for further proceedings.

Mackey K. Hancock

Justice

1. We note that Rex objected, at the summary judgment hearing, to the affidavits constituting and containing hearsay. The context in which the court stated that "On those grounds, it will be admitted" makes it unclear whether the court was ruling that the affidavit was being admitted excluding those portions which were hearsay, or that the affidavit, as presented, was being accepted as an affidavit, or both. Thus, we are uncertain whether the trial court ruled on Rex's hearsay objection. See Tex. R. App. P. 33.1(a)(2)(A).

Further, both at the hearing and on appeal, Rex indicates only that the affidavits are "composed of hearsay statements." However, a general objection that an affidavit contains hearsay is insufficient to direct our attention to those portions which are objectionable. See Jensen Constr. Co. v. Dallas County, 920 S.W.2d 761, 769 (Tex.App.-Dallas 1996, writ denied).

2. Because we conclude that Valarie's summary judgment evidence raises a material fact question as to whether she was negligent in relying on Rex's representations that the divorce had been dismissed, we need not address the issue of Valarie's reliance on the representations of the clerk. See Tex. R. App. P. 47.1.

3. We express no opinion as to whether the information received by Valarie from the "County Clerk[']s office" constituted a mistake or error of a functionary of the court in the discharge of their official duties. See Baker, 582 S.W.2d at 407. Rather, we note Valarie's attempt to contact a clerk as relevant to the determination of whether Valarie has raised a genuine fact issue relating to the diligence she exercised in determining whether she needed to file an answer in the divorce.