Opinion issued March 21, 2019




                                 In The

                          Court of Appeals
                                For The

                       First District of Texas
                         ————————————
                          NO. 01-18-00031-CV
                        ———————————
                ARTIS CHARLES HARRELL, Appellant
                                   V.
     BRANCH BRINSON, R. BURT BRINSON, BONNER BRINSON,
       S.P. DAIRY ASHFORD, LLC D/B/A SALON PARK, AND
             BRINSON MANAGEMENT CORP., Appellees


                 On Appeal from the 189th District Court
                          Harris County, Texas
                    Trial Court Case No. 2017-28390


                      MEMORANDUM OPINION
      Artis Charles Harrell is an indigent inmate serving a sentence on a

conviction for aggravated robbery.1 Before his arrest for that offense, Harrell had a

dispute with his landlord over a workstation Harrell was leasing at Salon Park hair

salon. Harrell believed that his landlord, along with affiliated individuals and

entities, had wrongly terminated his lease, stolen his personal belongings, and

engaged in other tortious and contractual wrongs. He sued some of those he

accused of wrongdoing. After he began his prison sentence, Harrell’s claims

against two of the defendants were dismissed for want of prosecution, and his

claims against a third defendant were defeated on summary judgment.

      Eight years later, in 2014, Harrell sued a subset of the same group of

defendants. His claims were resolved against him on limitations grounds.2

      Harrell now brings this third suit against the earlier-named defendants plus

two new defendants, arguing that they fraudulently concealed information from

him in the earlier suit that would have enabled him to timely serve various

defendants and avoid dismissal for want of prosecution. Because his claim has no

basis in law, we affirm the dismissal of Harrell’s third suit under Chapter 14 of the


1
      See Harrell v. State, No. 14-05-00753-CR, 2006 WL 1140418, at *1 (Tex. App.—
      Houston [14th Dist.] Apr. 27, 2006, pet. ref’d) (mem. op., not designated for
      publication).
2
      Harrell v. S.P. Dairy Ashford, No. 01-15-00865-CV, 2017 WL 1149683, at *2
      (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, no pet.) (mem. op.).

                                         2
Civil Practice and Remedies Code, which permits dismissal of an indigent inmate’s

suit that is frivolous or malicious.3

                                        Background

      About 15 years ago, Artis Charles Harrell was leasing a workstation at Salon

Park hair salon. He accused his landlord of wrongfully terminating his lease and

seizing his personal property. During the on-going dispute with the landlord,

Harrell became the subject of a robbery investigation and was ultimately charged

with and convicted of aggravated robbery. See Harrell v. State, No. 14-05-00753-

CR, 2006 WL 1140418, at *1 (Tex. App.—Houston [14th Dist.] Apr. 27, 2006,

pet. ref’d) (mem. op., not designated for publication). During his time in prison,

Harrell has filed several suits against entities and individuals related to his 2003

landlord dispute.

A.    Harrell’s first two suits

      In 2006, Harrell sued Branch Brinson and two related entities, S.P. Dairy

Ashford d/b/a Salon Park (Salon Park) and Brinson Management Corporation

(BMC), for claims arising out of his contract to lease the Salon Park workstation.

See Harrell v. S.P. Dairy Ashford, No. 01-15-00865-CV, 2017 WL 1149683, at *1

(Tex. App.—Houston [1st Dist.] Mar. 28, 2017, no pet.) (mem. op.). Brinson was

granted summary judgment on Harrell’s claims. Id. The two corporate defendants


3
      See TEX. CIV. PRAC. & REM. CODE § 14.003(a)(2).
                                            3
were dismissed for want of prosecution. Id. A panel of this Court dismissed

Harrell’s appeal because Harrell failed to pay the required fees or establish

indigence for purposes of appellate costs. Id. Harrell pursued various writs of

mandamus and a restricted appeal, all of which were dismissed or denied no later

than 2013. Id.

      The next year, in 2014, Harrell filed a second lawsuit against Salon Park and

BMC based on the same allegations as his 2006 suit. Id. He alleged that Salon Park

wrongly terminated his 2003 workstation lease, and he asserted claims for breach

of contract, conversion, tortious interference, and exemplary damages. Id. Salon

Park and BMC moved for summary judgment on the affirmative defense of

limitations, arguing that Harrell’s four-year and two-year claims had expired long

before his 2013 petition’s filing date. Id. at *1–2. The trial court granted their

motion, Harrell appealed, and a panel of this Court affirmed, rejecting Harrell’s

argument that his claims could relate back to the filing date of his dismissed 2006

suit as well as his arguments for application of the discovery rule and equitable

tolling principles. Id. at *2. In resolving Harrell’s appeal, this Court affirmed the

trial court’s ruling that Harrell’s claims arising out of the alleged breach of the

Salon Park lease agreement are barred by limitations. See id. at *2–3.




                                         4
B.       This third suit

         In 2017, Harrell again sued Salon Park, BMC, and Branch Brinson, as well

as two Brinson relatives, for breach of contract, conversion, trespass, fraud,

conspiracy to commit fraud, and tortious interference with an existing contract.

Harrell filed his petition under the procedures outlined in Chapter 14 of the Civil

Practice and Remedies Code for indigent inmates. Consistent with those statutory

requirements, Harrell listed his earlier litigation against some of these same

defendants. See TEX. CIV. PRAC. & REM. CODE § 14.004(a) (requiring indigent

inmates to file affidavit or unsworn declaration identifying each pro se action

previously brought and describing the parties, operative facts, and outcome of

each).

         Salon Park, BMC, and Branch Brinson (collectively, Salon Park) moved to

dismiss Harrell’s 2017 claims as frivolous or malicious. See id. § 14.003(a)(2)

(permitting dismissal of frivolous or malicious indigent inmate claims). While the

dismissal motion was pending, Harrell twice amended his petition and, in doing so,

dropped all claims except fraud and conspiracy to commit fraud. Specifically,

Harrell pleaded that the defendants had fraudulently concealed the identity of the

parties that could accept service in the earlier litigation.




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      The trial court found Harrell’s claims to be frivolous and malicious, granted

Salon Park’s dismissal motion, and dismissed Harrell’s claims with prejudice.

Harrell’s motion for new trial was denied by operation of law. He appeals.

                   Chapter 14 Dismissal of Inmate Litigation

      Harrell contends that the trial court erred in dismissing his claims. Before

addressing Harrell’s arguments, we consider the applicable law and standard for

reviewing a judgment to dismiss an indigent inmate’s claims.

A.    Criteria for dismissal under Chapter 14 and standard of review

      Chapter 14 addresses the dismissal of indigent inmates’ claims. TEX. CIV.

PRAC. & REM. CODE § 14.002 (scope of chapter). A district court may dismiss an

inmate’s claims, before or after service of process, if the inmate has filed an

unsworn declaration of indigency and the court finds, among other options, that the

inmate’s claims are “frivolous or malicious.” Id. § 14.003(a)(2). The statute lists

four grounds on which a trial court may conclude that an inmate’s claims are

frivolous or malicious:

      (1)   the claim’s realistic chance of ultimate success is slight;
      (2)   the claim has no arguable basis in law or in 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.

Id. § 14.003(b). Salon Park relies on the second and fourth grounds.

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      We ordinarily review a trial court’s decision to dismiss a claim on the

grounds of frivolousness for an abuse of discretion. Thompson v. Tex. Dep’t of

Crim. Justice–Inst. Div., 33 S.W.3d 412, 414 (Tex. App.—Houston [1st Dist.]

2000, pet. denied). But when dismissal is based on there being no arguable basis in

law for the asserted claim, we review that determination de novo. Scott v.

Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.);

Camacho v. Rosales, 511 S.W.3d 82, 86 (Tex. App.—El Paso 2014, no pet.).

When a trial court dismisses an inmate’s claims without specifying on which

ground its judgment rests, an appellate court may affirm under any applicable legal

theory. Camacho, 511 S.W.3d at 85–86.

B.    Harrell’s contention that the trial court could not grant a mooted
      dismissal motion

      Within his first issue, Harrell argues that Salon Park’s Chapter 14 dismissal

motion was filed before he amended his petition and that his later amendment

mooted the pending motion. He contends that the trial court lacked authority to

grant Salon Park’s motion to dismiss because it had been mooted. We disagree.

      A trial court has discretion to dismiss an indigent inmate’s claims sua sponte

under Chapter 14, regardless of the status of any action taken by the defendant in

seeking dismissal. See Gross v. Carroll, 339 S.W.3d 718, 722 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (affirming trial court’s sua sponte authority to

dismiss under Chapter 14). A pending motion to dismiss is not a prerequisite for a

                                         7
trial court’s dismissal of an indigent inmate’s claims as frivolous. See TEX. CIV.

PRAC. & REM. CODE § 14.003(a) (permitting dismissal even before defendant is

served process or has opportunity to move for dismissal). As such, there is no

requirement under Chapter 14 that a movant’s pending dismissal motion be

sufficiently tied to the live pleading to authorize dismissal. And, as a result, any

argument that a movant’s dismissal motion was moot is irrelevant to the trial

court’s authority to dismiss under Chapter 14.

C.    Harrell’s contention that the trial court erred in dismissing his claims

      The remainder of Harrell’s first issue argues that the trial court abused its

discretion in dismissing Harrell’s claims because none of the Section 14.003 bases

for determining that his claims were frivolous or malicious were met. Specifically,

he argues that his claims were not substantially similar to those pleaded in his

earlier litigation, the trial court did not hold an evidentiary hearing to determine

whether his claims had any basis in fact, and his claims have a basis in law. We

conclude that Harrell’s pleaded claims have no basis in law and, therefore, were

properly dismissed.

      In both the 2006 and the 2014 suits, Harrell sued Salon Park and BMC for

claims arising out of the terminated Salon Park lease. See Harrell, 2017 WL

1149683, at *1. In the 2014 suit, Salon Park and BMC moved for summary

judgment on the affirmative defense of limitations, which was granted. Id. at *2.


                                         8
During the appeal of that judgment, Harrell “conceded his claims accrued more

than ten years” earlier but argued that the statutes of limitations were tolled under a

relation-back theory, the discovery rule, or equitable tolling. Id. at *2–3. This

Court rejected all three arguments and affirmed dismissal of Harrell’s time-barred

claims. Id.

      Harrell initiated this round of litigation in April 2017 when he filed his

original petition, asserting multiple causes of action, including breach of contract,

conversion, trespass, and fraud. Within a couple months, Harrell amended his

petition to delete all causes of action except fraud and conspiracy to commit fraud.

Specifically, he based his fraud claim as an allegation that, during his earlier suits

against these defendants, the defendants had “fraudulently concealed the identity of

the person who may accept service of process” on behalf of Salon Park and BMC

“until the statute of limitations had” run on Harrell’s claim against the defendants.

In other words, in this 2017 suit, Harrell attempts to raise a counter-defense to an

earlier dismissal on limitations grounds, which has already been affirmed on

appeal.

      Fraudulent concealment is a counter-defense to the affirmative defense of

limitations. See KPMG Peat Markwick v. Harrison Cty. Hous. Fin. Corp., 988

S.W.2d 746, 749 (Tex. 1999); United Healthcare Servs., Inc. v. First St. Hosp. LP,

No. 01-17-00237-CV, 2018 WL 6215960, at *13–14 (Tex. App.—Houston [1st


                                          9
Dist.] Nov. 29, 2018, pet. filed). A party asserting fraudulent concealment has the

burden to raise a fact issue on each element of its counter-defense. KPMG, 988

S.W.2d at 749; United Healthcare, 2018 WL 6215960, at *14.

      In the earlier litigation, Salon Park and BMC moved for summary judgment

on limitations, but Harrell did not argue fraudulent concealment in response.

Instead, he relied on the discovery rule and other equitable tolling theories. This

Court considered the defenses Harrell raised, rejected them, and affirmed dismissal

of Harrell’s claim on limitations grounds. See Harrell, 2017 WL 1149683, at *3.

      The appropriate time for Harrell to have argued fraudulent concealment was

in response to the limitations defense raised by Salon Park and BMC in the earlier

litigation. There is no basis in law to argue for tolling limitations after a judgment

dismissing claims as untimely has been affirmed; neither is there any basis in law

to raise this counter-defense as an independent cause of action. See Tex. Dep’t of

Protective & Regulatory Servs. v. Lynn, No. 03-04-00635-CV, 2005 WL 1991809,

at *7 n.16 (Tex. App.—Austin Aug. 16, 2005, pet. denied) (mem. op.) (stating that

fraudulent concealment must be pleaded and argued in response if opposing party

raised limitations as defense; for example, in party’s response to limitations-based

summary-judgment motion); Advent Trust Co. v. Hyder, 12 S.W.3d 534, 542 (Tex.

App.—San Antonio Nov. 30, 1999, pet. denied) (stating that party seeking to avoid

limitations has burden to plead and secure findings on issue and holding that party


                                         10
waived fraudulent-concealment issue by failing to properly raise it in trial court).

There is no basis in law for Harrell’s fraud-based claims. See Mayes v. Stewart, 11

S.W.3d 440, 452 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (stating that

fraudulent concealment is affirmative defense to statute of limitations, not

independent cause of action). We overrule Harrell’s first issue.4

D.    Harrell’s contention that the trial court erred by dismissing with
      prejudice

      In his second issue, Harrell contends that the trial court erred by dismissing

his suit with prejudice to refiling.

      A dismissal with prejudice constitutes an adjudication on the merits and

operates as though the case has been fully tried and decided. See Ritchey v.

Vasquez, 986 S.W.2d 611, 612 (Tex. 1999). An order dismissing a case with

prejudice has full res judicata and collateral estoppel effect and bars subsequent

relitigation of the same causes of action or issues between the same parties. See

Nabelek v. District Att’y of Harris Cty., 290 S.W.3d 222, 233 (Tex. App.—

Houston [14th Dist.] 2005, pet. denied). A dismissal with prejudice is improper if

the dismissed pleading’s deficiencies could be remedied through repleading. See

4
      Because Harrell’s suit was properly dismissed as having no basis in law under
      Section 14.003(b)(2), we need not address whether his claims were also subject to
      dismissal under other Section 14.003(b) subsections, including Subsection (4) for
      claims that are substantially similar to an inmate’s previously filed claim. See TEX.
      CIV. PRAC. & REM. CODE § 14.003(b) (enumerating alternative bases for
      determining that indigent inmate’s claims are subject to dismissal as frivolous or
      malicious).
                                           11
id. On the other hand, dismissal with prejudice is proper if the error resulting in the

dismissal of an inmate’s claims cannot be remedied. See id.

      The trial court did not err in dismissing Harrell’s claims with prejudice

because the failure to establish an arguable basis in law for asserting a counter-

defense to an already successfully adjudicated limitations defense cannot be

remedied through pleading amendment. See id.; see also Harris v. Bell-Gray,

No. 01-15-00686-CV, 2016 WL 3162315, at *4 (Tex. App.—Houston [1st Dist.]

June 2, 2016, pet. denied) (mem. op.) (affirming dismissal with prejudice because

claim had no arguable basis in law and deficiency was not remediable).

      We overrule Harrell’s second issue.

                                     Conclusion

      Because fraudulent concealment must be raised as a counter-defense to a

defense of limitations and cannot support an independent cause of action after a

judgment on limitations has issued, we affirm the dismissal of this indigent

inmate’s claims, in which he sought to perpetuate litigation against a landlord and

related entities and individuals for events that occurred 15 years earlier.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Keyes, Higley, and Landau.

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