                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00414-CV

DARNELL SMITH,
                                                           Appellant
v.

ROBERT H. QUADA JR., MELVIN JOYCE WANZA,
GARLAND GOODRUM, S. GILMORE,
DAVID MCLEOD, CHARLES BELL,
AND KELLY STRONG,
                                     Appellees



                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 24,576


                          MEMORANDUM OPINION


      By six issues, which can be categorized as two, appellant, Darnell Smith, a prison

inmate at the Wynne Unit in Huntsville, Texas, appeals the trial court’s dismissal of his

lawsuit against appellees, seven Texas Department of Criminal Justice—Institutional

Division employees: Robert H. Quada Jr., Garland Goodrum, Shelly Gilmore, Meioin

Wanza, Charles C. Bell, Kelly Strong, and David McLeod. We affirm.
                                          I.       BACKGROUND

        In his lawsuit, appellant alleged that appellees violated his constitutional right of

access to court, failed to protect him from harassment, and violated the Texas Theft

Liability Act. Specifically, appellant asserted that appellees tampered with his legal

mail on multiple occasions in retaliation for filing another lawsuit—trial court cause

number 24,114.1         Appellant also asserted that appellees failed to stop additional

retaliation he faced, refused to provide him with additional boxes for his legal

materials, and seized his photocopied case law in an attempt to obtain an unfair

        1  On August 4, 2009, appellant filed a motion seeking to consolidate this matter with the dispute
filed in trial court cause number 24,114, a case which is still pending in the trial court. Specifically, in his
motion, appellant asserted that “the facts underlying each action are interrelated and hopelessly
intertwined . . . [and] arise from similar events and circumstances . . . .” Moreover, in compliance with
section 14.004 of the civil practice and remedies code, appellant filed an unsworn declaration of previous
filings, in which he described the matter in trial court cause number 24,114 as follows:

                 Smith v. Quada, Jr., et al., 24114, Walker County State Disitrict [sic] Court (12th
        Judicial) in Huntsville, Texas; names multiple defendant prison officials (Robert [H.]
        Quada, Jr.; Garland Goodrum, A Crofton, L. Jones; Scott Bailey; Steven Jeffcoat; Herbert
        Gary; Tracy Bailey; Lonny Johnson; Kelly Strong; Robin R. Robinson; Charless [sic] Bell;
        Robert Treon; and Nathanial Quarterman . . . brought 42 U.S.C. § 1983 action alleging
        retaliation, denial of equal protection, denial of access to courts, inter alia. The crux of
        this action stems from (1) prison officials reprisls [sic]/harassments perpetuated against
        Plaintiff due to his exercise of both administrative grievances and redress through courts,
        and (2) among other things, (2) flagrant manipulation and exploitation of legal storage
        box policies to deprive Plaintiff of adequate space to secure all his legal materials per AD
        03.72.

See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (Vernon 2002); see also Parker v. Thomas, No. 10-08-00318-
CV, 2010 Tex. App. LEXIS 6990, at *2 (Tex. App.—Waco Aug. 25, 2010, no pet.) (mem. op.). On appeal,
appellant argues that there is “a factual dispute as to whether the two suits are substantially similar . . . .”
However, we note that appellant has already judicially admitted, through his motion for consolidation,
that the two suits are substantially similar, and such an admission is binding upon appellant. See Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (“‘Assertions of fact, not plead in the
alternative, in the live pleadings of a party are regarded as formal judicial admissions.’” (quoting Houston
First Am. Savs. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983))); see also AEP Tex. Cent. Co. v. Pub. Util. Comm’n
of Tex., 286 S.W.3d 450, 459 n.24 (Tex. App.—Corpus Christi 2008, pet. denied) (noting that a “judicial
admission is binding on the party admitting it, and he may not introduce contradicting evidence”). Also
in his unsworn declaration of previous filings, appellant listed numerous other lawsuits in which he filed
pro se, many of which were dismissed as frivolous or for some other reason.


Smith v. Quada, et al                                                                                   Page 2
advantage at an August 25, 2008 hearing in trial court cause number 24,114. Appellant

sought declaratory, injunctive, and monetary relief from appellees.

        Appellees responded to appellant’s lawsuit by filing an original answer and a

motion to dismiss pursuant to chapter 14 of the civil practice and remedies code. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (Vernon 2002). On June 8, 2009, the

trial court conducted a hearing on appellees’ motion to dismiss with all the parties

present. During the hearing, the trial court granted appellant additional time to file a

response to appellees’ arguments. On November 12, 2009, appellant filed his response.

Shortly thereafter, the trial court dismissed appellant’s lawsuit as frivolous in

accordance with chapter 14. See id. § 14.003(a)-(b). This appeal followed.2

                        II.     FINDINGS OF FACT AND CONCLUSIONS OF LAW

        By his first issue, appellant asserts that the trial court erred by failing to enter

findings of fact and conclusions of law in this matter.                   Here, appellant made two

requests for findings of fact and conclusions of law via post-dismissal motions. A trial

court is required in certain circumstances to file written findings of fact and conclusions

of law requested by a party. See TEX. R. CIV. P. 296, 297. However, many Texas courts

have held that rules 296 and 297 do not apply in an inmate suit that is dismissed for

failure to comply with the chapter 14 pleading requirements. See Timmons v. Luce, 840

S.W.2d 582, 586 (Tex. App.—Tyler 1992, no writ) (citing Kendrick v. Lynaugh, 804 S.W.2d

153, 156 (Tex. App.—Houston [14th Dist.] 1990, no writ)); see also Addicks v. Quarterman,

No. 12-09-00098-CV, 2011 Tex. App. LEXIS 1077, at *12 (Tex. App.—Tyler Feb. 16, 2011,

        2   Appellees have not filed an appellate brief in this matter.

Smith v. Quada, et al                                                                        Page 3
no pet.) (mem. op.); Walker v. Callahan, No. 04-05-00095-CV, 2005 Tex. App. LEXIS 7887,

at **3-4 (Tex. App.—San Antonio Sept. 28, 2005, no pet.) (mem. op.); In re Decker, No. 06-

04-00134-CV, 2004 Tex. App. LEXIS 10843, at *3 (Tex. App.—Texarkana Dec. 3, 2004,

orig. proceeding) (mem. op.); Harris v. West, No. 09-98-231-CV, 1998 Tex. App. LEXIS

7626, at **5-6 (Tex. App.—Beaumont Dec. 10, 1998, no pet) (per curiam) (not designated

for publication) (“The procedure for filing findings of fact and conclusions of law

applies only to cases tried on the merits. The trial court need not make findings of fact

and conclusions of law where there has been no bench trial.”) (internal citations

omitted). The reasons for not applying rules 296 and 297 when a case is dismissed

pursuant to chapter 14 are that: (1) the case was dismissed due to deficiencies in the

pleadings; and (2) the trial court has not conducted a trial on the merits of the inmate’s

suit.   See Timmons, 840 S.W.2d at 586.       Because appellant’s suit was summarily

dismissed as frivolous without a trial, we conclude that the trial court was under no

duty to file findings of fact and conclusions of law in this case. See id.; Kendrick, 804

S.W.2d at 156; see also Addicks, 2011 Tex. App. LEXIS 1077, at *12; Walker, 2005 Tex. App.

LEXIS 7887, at **3-4; In re Decker, 2004 Tex. App. LEXIS 10843, at *3; Harris, 1998 Tex.

App. LEXIS 7626, at **5-6. Thus, we overrule appellant’s first issue.

                        III.   THE TRIAL COURT’S DISMISSAL ORDER

        By his second issue, appellant contends that the trial court abused its discretion

in dismissing this lawsuit as frivolous. We disagree.




Smith v. Quada, et al                                                               Page 4
A. Standard of Review and Applicable Law

        Generally, the dismissal of inmate litigation under chapter 14 is reviewed for

abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no

pet.). “To establish an abuse of discretion, an appellant must show the trial court’s

actions were arbitrary or unreasonable in light of all the circumstances. The standard is

clarified by asking whether the trial court acted without reference to any guiding rules

or principles.” Spurlock v. Schroedter, 88 S.W.3d 733, 735-36 (Tex. App.—Corpus Christi

2002, pet. denied) (internal citations omitted).

        In addition, the trial court has broad discretion to dismiss an inmate’s claim as

frivolous. Spurlock, 88 S.W.3d at 736. To determine whether a claim is frivolous, the

trial court may consider if: (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 because the claim arises from the same operative facts. TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(b); see Spurlock, 88 S.W.3d at 736.

B. Discussion

        As noted above, appellant filed a motion to consolidate this matter with trial

court cause number 24,114—a motion that was not ruled upon by the trial court. In that

motion, appellant admitted that the operative facts in this matter are interrelated,

“hopelessly intertwined,” and arise from similar events and circumstances as that of

trial court cause number 24,114. Furthermore, in his unsworn declaration of previous

Smith v. Quada, et al                                                                 Page 5
filings, appellant’s description of the facts involved in trial court cause number 24,114 is

substantially similar to appellant’s recitation of facts in this matter. Because appellant’s

claim in this matter is substantially similar to his claim in trial court cause number

24,114, section 14.003(b)(4) authorized the trial court to dismiss this matter as frivolous.

See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(4); see also Spurlock, 88 S.W.3d at 736;

Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.—Houston [14th Dist.] 2001, no pet.)

(“The purpose of sections 14.003 and 14.004 is to reduce the problem of constant, often

duplicative, inmate litigation requiring the inmate to notify the trial court of previous

litigation and the outcome. When an inmate complies with section 14.004, the trial

court can determine, based on previous filings, if the suit is frivolous because the

inmate had already filed a similar claim.”). As a result, we cannot say that the trial

court abused its discretion in dismissing appellant’s suit as frivolous under chapter 14.

See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(4); Brewer, 268 S.W.3d at 767; Spurlock,

88 S.W.3d at 736; see also Doyle v. Teske, No. 12-09-00359-CV, 2011 Tex. App. LEXIS 2360,

at **6-7 (Tex. App.—Tyler Mar. 31, 2011, no pet.) (mem. op.) (noting that when a trial

court does not make separate findings of fact and conclusions of law, we must assume

that the trial court made all findings in support of its judgment, and we must affirm the

trial court’s judgment if it can be upheld on any legal theory finding support in the

record). Accordingly, we overrule appellant’s second issue on appeal.3

                                       IV.    CONCLUSION



        3Given our disposition of appellant’s second issue, we need not address appellant’s remaining
sub-issues, as their resolution is not necessary to our disposition. See TEX. R. APP. P. 47.1.

Smith v. Quada, et al                                                                         Page 6
        We affirm the judgment of the trial court.



                                           AL SCOGGINS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 6, 2011
[CV06]




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