      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00056-CV



                                  Sheila K. Barnes, Appellant

                                                 v.

                                     Ana Jimenez, Appellee


           FROM COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
         NO. 05-1676-CC2-4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Sheila Barnes, acting pro se, sued Ana Jimenez for an injunction and damages. For

a short time, Barnes and Jimenez shared a residence owned by a third party. Barnes alleged that

Jimenez wrongfully evicted her, refused to return her personal property, and committed several

other tortious and wrongful acts against her.         The county court dismissed Barnes’s suit

without explanation, and Barnes appealed, claiming that the court abused its discretion. We will

reverse and remand.


                      FACTUAL AND PROCEDURAL BACKGROUND

               Barnes alleges that on September 29, 2005, after she lost her house to Hurricane Rita,

she became a tenant by oral agreement in a Williamson County house owned by her brother (who

lived elsewhere). Barnes alleges that Jimenez also lived in the house under an oral agreement with

Barnes’s brother. Barnes alleges that on October 7, 2005, Jimenez demanded the proceeds of an
insurance reimbursement check that Barnes received. Barnes alleges that she refused and that later

the same day Jimenez physically attacked her. Barnes alleges that she left the house the next day,

and when she returned that evening, Jimenez refused to let her enter. Jimenez summoned police

officers to the house, and the officers issued Barnes a criminal trespass warning. Barnes alleges that

she had $70,000 worth of property in the house to which she was denied access. It appears that

Barnes immediately began living elsewhere and still had not regained possession of her property at

the time she filed this appeal.

               On November 18, 2005, Barnes applied for and obtained a writ of reentry in a

Williamson County Justice of the Peace court. Jimenez appealed the writ in the issuing court and

obtained an order dismissing it. Barnes appealed that dismissal to Williamson County Court and

requested a jury trial. Barnes later filed a related petition in the county court for an injunction and

damages. She asked the court to enjoin Jimenez from doing a broad range of things, including

damaging or disposing of Barnes’s property, and to award Barnes $70,000 in damages. Barnes also

filed an affidavit of indigency.

               Barnes proceeded to serve discovery on Jimenez and to file various motions after

Jimenez failed to answer.         The county court scheduled a hearing on Barnes’s motions for

September 5, 2006. The record does not contain a transcript of the hearing, but the court’s

subsequent order and Barnes’s appellate brief indicate that rather than simply responding to Barnes’s

motions, Jimenez orally moved to dismiss Barnes’s entire cause of action. Barnes alleges that the

court refused to let her testify or argue on the matter. The court granted Jimenez’s motion and issued

an order stating in its entirety: “On the 5th day of September, the Court considered the Oral Motion



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of Dismissal by Defendant in the above entitled and numbered cause. IT IS HEREBY ORDERED

that the case is dismissed.”

                Barnes moved for a new trial and perfected this appeal after her motion was denied.

In six related points of error, she alleges that the trial court abused its discretion by granting

Jimenez’s motion to dismiss.


                                            DISCUSSION

                The county court did not explain why it dismissed Barnes’s suit.            In such

circumstances, we “uphold the trial court’s decision if any theory of law applicable to the case has

support in the evidence.” Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 96

(Tex. App.—Houston [14th Dist.] 2005, pet. denied). The only theory of dismissal arguably

supported by the record before us is section 13.001 of the Texas Civil Practice and Remedies Code.

Section 13.001 allows a court to dismiss frivolous or malicious actions in which the plaintiff has

filed an affidavit of indigency. See Tex. Civ. Prac. & Rem. Code § 13.001(a) (West 2002). As we

now interpret the statute, “frivolous or malicious” means lacking any arguable basis in law or fact.

See Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.—Austin 2002, no pet.).

                We review dismissals under section 13.001 for abuse of discretion. Id. A court

abuses its discretion under section 13.001 if it dismisses a case that arguably has a basis in law or

fact. Id. A case has no basis in law if it relies on an “‘indisputably meritless legal theory.’”

Thomas v. Holder, 836 S.W.2d 351, 352 (Tex. App.—Tyler 1992, no writ) (quoting Thompson

v. Ereckson, 814 S.W.2d 805, 807 (Tex. App.—Waco 1991, no writ)). A case has no basis in fact

if it arises “out of fantastic or delusional scenarios.” Id.


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               A court cannot dismiss a case under section 13.001 for lacking a basis in fact unless

the court first holds an evidentiary hearing.          Morris v. Collins, 916 S.W.2d 527, 528

(Tex. App.—Houston [1st Dist.] 1995, no writ). Where the record does not reveal that such a

hearing was held, we can affirm a section 13.001 dismissal only if the plaintiff’s case had no basis

in law. See id. Here, a hearing was held at which Jimenez orally moved to dismiss Barnes’s

petition, but nothing in the record indicates that the hearing was evidentiary in nature. See Michiana

Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005) (absent indications in record

that hearing was evidentiary in nature, we presume it was not). The record does not contain a

transcript of the hearing, Jimenez has filed nothing to illuminate what transpired at the hearing, and

the subsequent dismissal order says nothing about the nature of the hearing. On the other hand,

Barnes alleges that she was prevented from presenting evidence at the hearing, and with nothing in

the record to oppose that allegation, we must accept it as true. See Perales v. Kinney, 891 S.W.2d

731, 732 (Tex. App.—Houston [1st Dist.] 1994, no writ) (where pro se petition is only item before

court, court must construe petition in light most favorable to petitioner); see also Tex. R. App.

P. 38.1(g) (“In a civil case, the court will accept as true the facts stated [in a brief] unless another

party contradicts them.”). Thus, we must conclude that the September 5, 2006 hearing was not a

proper evidentiary hearing, which means that we can only affirm dismissal if Barnes’s petition had

no basis in law.1




       1
          We note that even if the hearing was evidentiary, we would still need a fuller record to
affirm dismissal. See Perales v. Kinney, 891 S.W.2d 731, 732 (Tex. App.—Houston [1st Dist.]
1994, no writ) (where pro se petition is only item before court, court must construe petition in light
most favorable to petitioner).

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               Barnes espoused many legal theories in her petition. On the record before us, it

appears that at a minimum her theory of conversion was potentially meritorious. See Ojeda

v. Wal-Mart Stores Inc., 956 S.W.2d 704, 707 (Tex. App.—San Antonio 1997, pet. denied) (plaintiff

has cause of action for conversion if defendant unlawfully assumed control over plaintiff’s property

and refused to return it on demand). As a result, Barnes’s petition arguably had a basis in law. In

implicitly holding otherwise and dismissing Barnes’s petition, the county court failed to follow

guiding principles and, therefore, abused its discretion. See Jones, 78 S.W.3d at 628 (abuse of

discretion to dismiss under section 13.001 if case arguably has basis in law).


                                         CONCLUSION

               Because the record does not demonstrate that Barnes’s petition lacked any legal or

factual basis, we hold that the trial court abused its discretion in dismissing Barnes’s petition. We

reverse and remand for further proceedings consistent with this opinion.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Reversed and Remanded

Filed: August 13, 2009




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