Dennis A. Smith v. Brad Livingston

• Court: Court of Appeals of Texas
• Decided: January 7, 2010
• Docket: 11-09-00206-CV
• Status: Published

Opinion

Opinion filed January 7, 2010

In The

Eleventh Court of Appeals ___________

No. 11-09-00206-CV __________

DENNIS A. SMITH, Appellant

V.

BRAD LIVINGSTON ET AL, Appellees

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 24610

MEMORANDUM OPINION Dennis A. Smith filed suit under the Texas Tort Claims Act1 against appellees alleging breach of contract; unlawful confinement; violation of civil rights; assault; battery; emotional, physical, and mental anguish; unnecessary pain and suffering; violation of state and federal due process and protections against cruel and unusual punishment; and violation of the United Nations policy against torture. Smith sought $200,000 in damages as a result of alleged injuries he sustained when the extraction of two teeth was delayed while he was an inmate in the Ellis Unit in Walker

1 TEX. CIV. PRAC. & REM. CODE ANN. §§101.001-.109 (Vernon 2005 & Supp. 2009). County. The trial court dismissed his claims as frivolous for failure to comply with the requirements of TEX . CIV . PRAC. & REM . CODE ANN . §§ 14.001-.014 (Vernon 2002). We affirm. In seven issues, Smith contends that the trial court abused its discretion by dismissing his action and by not ruling on his various motions including a motion for a hearing, a motion to supplement, and a motion to transfer venue. We disagree. The trial court dismissed Smith’s claims as frivolous. The record supports the trial court’s actions. Smith failed to comply with the mandatory requirements of Section 14.004. Neither his original claim nor his motions to supplement contain allegations which support waiver of sovereign immunity. Section 14.003(b). The trial court is not required to conduct a hearing prior to dismissal. Section 14.008. Venue was mandatory in Walker County (the county where Smith’s claims accrued) pursuant to TEX . CIV . PRAC. & REM . CODE ANN . § 15. 019(a) (Vernon 2002), and Smith’s motion to transfer failed to comply with TEX . R. CIV . P. 257. The trial court did not abuse its discretion. All of Smith’s contentions on appeal have been reviewed. Each complaint is overruled. The order of the trial court is affirmed.

PER CURIAM

January 7, 2010 Panel consists of: Wright, C.J., McCall, J., and Strange, J.