




02-11-368-CV





















COURT
  OF APPEALS
SECOND
  DISTRICT OF TEXAS
FORT
  WORTH
 



 
NO. 02-11-00368-CV
 
 



IN RE MATTHEW JAMES LEACHMAN 


 


RELATOR



                                                                                                                             
 



 


 


 



 
                                                                                                                             
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ORIGINAL PROCEEDING
 
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MEMORANDUM OPINION[1]
 
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I. Introduction
Pro se Relator Matthew James Leachman, an inmate,
complains that Respondent, the Honorable W. Bernard Fudge, abused his
discretion by granting Real Parties in Interest Kerri Hansford and Rick
Thaler’s motion for partial dismissal and motion to strike.  We conditionally
grant Leachman’s petition for writ of mandamus and direct Respondent to vacate
his order granting Hansford and Thaler’s motion; the writ will issue only if
Respondent fails to do so.
II. Factual and Procedural Background
Hansford and Thaler filed the motion at issue here after
this court affirmed the dismissal of all but Doug Dretke from Leachman’s pro se
civil suit.  See Leachman v. Dretke, 261 S.W.3d 297, 316 (Tex. App.—Fort
Worth 2008, no pet.) (op. on reh’g).  We reversed and remanded the dismissal with
prejudice of Dretke to the trial court to allow Leachman a reasonable
opportunity to amend his pleadings.  See id. at 303, 305–06.  In our analysis
of his claim against Dretke, we stated:
Leachman
did not clearly demarcate his claim for injunctive relief against Dretke as
separate and apart from his claim for actual damages, although he did make such
a distinction with regard to his request for exemplary damages against Adams,
Boyle, Johnson, and Oncken.  Therefore, from his amended petition, the trial
court could have reasonably concluded that Leachman had failed to state a claim
with an arguable basis in law because it appeared that he was seeking damages
against someone who, in his official capacity, could not be held liable under [42
U.S.C.A] § 1983 [(West 2010)].
 
Furthermore,
Leachman clearly alleged that Milbern’s act of seizing his property was a due
process violation, but it is unclear from his amended petition which
constitutional rights he alleges that the DRC and Dretke violated, and whether
he is attacking the initial deprivation, the policy behind the deprivation, the
DRC’s review procedure, or the DRC’s decision to uphold the deprivation.  He
merely states that, by “allowing” and “upholding” Milbern’s seizure, Dretke,
through the DRC, violated Leachman’s “rights under the U.S. Constitution and
the Constitution of Texas.”
 
Based
on the ambiguities presented by Leachman in his claim against Dretke, we cannot
say that the trial court abused its discretion by dismissing his claim for
having no arguable basis in law.[]  Whether the trial court abused its
discretion by dismissing Leachman’s claims with prejudice depends on whether
Leachman’s errors could be remedied.  Because Leachman could have amended his
pleadings to clarify the ambiguities in his claim against Dretke, dismissal
with prejudice was an abuse of discretion.  Therefore, we overrule Leachman’s
third issue, but we sustain the portion of Leachman’s first issue regarding the
dismissal with prejudice of his claim against Dretke.
 
Id. at
305–06 (citations omitted).  In the conclusion of our opinion, we stated, 
We reverse the trial
court’s dismissal with prejudice as to Leachman’s claim against Dretke and
remand the case to afford Leachman a reasonable opportunity to amend his
pleadings as to that claim only.  Having overruled the remainder of Leachman’s
four points, we affirm the rest of the trial court’s judgment.
 
Id. at 316.
This court’s mandate issued on September 18, 2008.  In
our mandate, we stated, in pertinent part,
This
court has again considered the record on appeal in this case and holds that
there was error in part of the trial court’s judgment.  It is ordered that the
judgment of the trial court is affirmed in part and reversed and remanded in
part.  We affirm that portion of the trial court’s judgment as to Leachman’s
claims against Glenda J. Adams, Joseph C. Boyle, Deborah A. Johnson, and Denise
Oncken.  We reverse that portion of the trial court’s judgment with regard to
the dismissal with prejudice of Leachman’s claims against Doug Dretke and
remand the case to provide Leachman with a reasonable opportunity to amend his
pleadings as to that claim only.
Upon remand, Thaler and Hansford filed their motion,
arguing that Leachman had filed amended pleadings substituting Thaler in his
official capacity as the new Director of the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ-CID) for Dretke, the old
director, and adding Hansford in her individual and official capacities, as
TDCJ-CID’s Allred Unit’s mail room supervisor.  They moved to dismiss all of
the claims against Hansford, arguing that Relator was trying to expand his suit
beyond our mandate by adding Hansford as a new party and also by adding new
claims.  They asked Respondent to dismiss Hansford and to strike Leachman’s new
claim alleging the unconstitutionality of the TDCJ policy BP-0.391, which
prevents Leachman from contacting his victims.
In his response to the motion, Leachman argued that
there was “absolutely no basis under Texas law for partial dismissal or for
striking,” strenuously disagreeing with Hansford and Thaler’s characterization
of our mandate and pointing out that it should be read within the context of
the entire opinion.  Leachman stated,
The Court of Appeals was emphasizing that all other
defendants and claims were dismissed; it was not saying the case was forever
limited to claims against the Director . . . by recognizing the validity of the
claim, holding that its dismissal was improper, and remanding it to this Court,
the Court of Appeals simply returned the claim to its prior status and allowed
Plaintiff to proceed with it.
Respondent issued a letter in which he concluded that
our mandate was clear and unambiguous and that Leachman violated our mandate by
filing an amendment naming Hansford as a new party and by adding a new claim.  Respondent
issued an order incorporating this information on the same day, stating, in
pertinent part:
It
is hereby ORDERED, ADJUDGED and DECREED that said Motions be, and they are
hereby GRANTED, and Plaintiff’s cause of action against Defendant, Kerri L.
Hansford, is DISMISSED, and the Court further ORDERS that all claims by
Plaintiff alleging the unconstitutionality of [BP-0.391] and Section 38.111 of
the TEXAS PENAL CODE are DISMISSED, all costs of court are assessed against
Plaintiff.
III. Discussion
Leachman argues in his petition for writ of mandamus
that Respondent read our mandate too narrowly and complains that “it was
plainly inappropriate to dismiss claims against Hansford[] or strike claims
against Thaler, based on the mandate, and mandamus is the proper remedy when
the trial court ignores the mandate.”  The Attorney General’s office responded
on behalf of Thaler and Hansford and contends that Respondent did not err in
his interpretation of our mandate.
Generally, mandamus relief is appropriate only when
there has been a clear abuse of discretion by the trial court and there is no
adequate remedy on appeal.  In re State, No. 10-0235, 2011 WL 3796616,
at *2 (Tex. Aug. 26, 2011) (orig. proceeding).  However, a writ of mandamus “will
issue to compel compliance with the mandate of the Court of Appeals.”  Schliemann
v. Garcia, 685 S.W.2d 690, 692 (Tex. App.—San Antonio 1984, orig.
proceeding).
We have previously stated that when an appellate court
remands a case with specific instructions, the trial court is limited to
complying with the instructions and cannot relitigate issues controverted at
the former trial and that its authority is limited to only those issues
specified in the mandate.  Denton Cnty. v. Tarrant Cnty., 139 S.W.3d 22,
23 (Tex. App.—Fort Worth 2004, pet. denied).  However, “[i]n interpreting the
mandate of an appellate court, the trial court looks not only to the mandate
itself but also to the appellate court’s opinion,” and the trial court is
given a reasonable amount of discretion in complying with the mandate.  Id.
(emphasis added).  A trial court’s failure to comply with a court of appeals
mandate is an abuse of discretion, and mandamus will issue to ensure compliance
with the court’s judgment.  See Lee v. Downey, 842 S.W.2d 646, 648 (Tex.
1992) (orig. proceeding).
Here, in our opinion in Leachman, we stated
that we sustained the portion of Leachman’s first issue regarding the dismissal
with prejudice of his claim against Dretke and in the conclusion of the opinion,
we stated that we reversed the dismissal with prejudice “as to that claim only”;
however, the opinion provided the context of the parties sued by Leachman and
the claims that Leachman had brought.  See Leachman, 261 S.W.3d at
306, 316; cf. Madeksho v. Abraham, Watkins, Nichols, & Friend, 112
S.W.3d 679, 690–91 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on
reh’g) (stating that while in a perfect world appellate mandates would settle
all questions and end all disputes, when they do not, trial judges must do the
best they can to interpret the mandate and to follow it).
Leachman’s suit is a civil suit.  Under rule of civil
procedure 63, parties may amend their pleadings “as they may desire by filing
such pleas with the clerk at such time as not to operate as a surprise to the
opposite party,” as long as the amendments occur prior to seven days before the
date of trial.[2] 
Tex. R. Civ. P. 63; see City of Dallas v. Turley, 316 S.W.3d 762, 771
n.6 (Tex. App.—Dallas 2010, pet. denied) (stating that because the appellate
court was remanding the cause to the trial court to reconsider claims not
addressed in the plea to the jurisdiction, the landowners would have the
opportunity to seek to join additional parties or amend their pleadings as the
rules may allow, citing rules of civil procedure 39–41, 63).  And under rule of
civil procedure 37, additional parties may be brought as long as it does not
unreasonably delay the trial of the case.  See Tex. R. Civ. P. 37; see
also Tex. R. Civ. P. 39–40.  Misjoinder of parties is not a ground for
dismissal of an action.  See Tex. R. Civ. P. 41.
Because, within the context of the opinion, this
court’s mandate did not expressly preclude Leachman from including additional
claims or parties in the suit under the rules of civil procedure, we conclude
that Respondent abused his discretion by granting Hansford and Thaler’s motion. 
See Reynolds v. Murphy, 266 S.W.3d 141, 143 (Tex. App.—Fort Worth 2008,
pet. denied) (stating that this court’s opinion and mandate in the prior appeal
did not preclude appellant from freely amending his pleadings under rule of
civil procedure 63); see also Simulis, L.L.C. v. Gen. Elec. Capital Corp.,
No. 14-09-01055-CV, 2011 WL 505334, at *3–4 (Tex. App.—Houston [14th Dist.] Feb.
15, 2011, pet. filed) (concluding that on remand, Simulis was entitled to amend
its pleadings to add new claims or parties except as to the claim upon which
summary judgment was rendered in General Electric’s favor when the opinion and
mandate made clear that more than one claim was considered).
IV. Conclusion
Because we may issue mandamus to enforce compliance by
the trial court with our mandate, we conditionally grant Leachman’s petition
for writ of mandamus and direct Respondent to vacate his order granting
Hansford and Thaler’s motion; the writ will issue only if Respondent fails to
do so.  See Tex. R. App. P. 51.1; Lee, 842 S.W.2d at 648; In
re Castle Tex. Prod. Ltd. P’ship, 157 S.W.3d 524, 527 (Tex. App.—Tyler
2005, orig. proceeding); see also Schliemann, 685 S.W.2d at 692.
 
 
 
 
 
                                                                             BOB
MCCOY
                                                                             JUSTICE
 
 
PANEL:  DAUPHINOT, GARDNER, and MCCOY, JJ.       
 
DELIVERED:  November 10, 2011




[1]See
Tex. R. App. P. 47.4.


[2]There
is no indication that a trial date has been set in Leachman’s case.


