Michael R. Benbo v. UTMB

• Court: Court of Appeals of Texas
• Decided: July 24, 2007
• Docket: 07-06-00287-CV
• Status: Published

Opinion

NO. 07-06-0287-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 24, 2007 ______________________________

MICHAEL R. BENBO,

Appellant

v.

UNIVERSITY of TEXAS MEDICAL BRANCH at GALVESTON, et al.,

Appellees _________________________________

FROM THE 87TH DISTRICT COURT OF ANDERSON COUNTY;

NO. 10013; HON. PAM FOSTER-FLETCHER, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant Michael R. Benbo, an indigent inmate at the time of the filing of this

lawsuit, appeals from orders 1) transferring venue and 2) dismissing his suit against a

multitude of defendants. Through the suit, he sought damages for medical malpractice

purportedly committed on his toe and involving the treatment of a fungus. He purportedly

contracted the fungus while incarcerated. We affirm both orders. Venue

Suit was initially filed in Travis County. However, venue was later transferred to

Anderson County. According to appellant, the trial judge who executed the transfer order

lacked the authority to do so because she was not assigned to consider the matter in

conformance with Rule 11 of the Texas Rules of Judicial Administration. We disagree.

Said rule applies to a case involving material questions of fact and law in common

with another case pending in another court in another county. Tex. R. Jud. Admin. 11,

reprinted in TEX . GOV’T CODE ANN ., tit 2, subtit. F app. (Vernon 2005). Benbo neither

argues nor cites us to evidence illustrating that his suit involved questions of law and fact

in common with another suit pending elsewhere. Therefore, Rule 11 does not apply to the

dispute before us.

As for the allegations referring to the trial court’s decision to act upon the venue

motion “without any statement regarding [Benbo’s] motion for extension of time or good

cause to proceed without hearing” said dilatory motion, neither of the two opinions cited by

him, i.e. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) nor Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916 (Tex. 1985), are applicable. Both deal with writs of mandamus

and involve discovery in preparation for trial and the granting of a new trial, not motions for

an extension of time. Nor do they require the trial court to have “good cause to proceed

without hearing [the dilatory motion]” or obligate it to mention the motion when acting upon

an attempt to transfer venue.

Dismissal

Next, Benbo complains of the trial court’s order dismissing his lawsuit as frivolous

and argues that it could only dismiss the proceeding for want of prosecution. We disagree.

2 Statute obligates the trial court to dismiss an inmate’s suit if the inmate fails to file

his claim before the 31st day after the date he received the written decision from the

internal grievance system. TEX . CIV. PRAC . & REM . CODE ANN . §14.005(b) (Vernon 2002).

Benbo’s grievance was finally decided on November 5, 2002, and he received notification

of the decision on November 15, 2002. However, he did not commence suit until February

2, 2004, a date more than 31 days after the grievance decision was received. Thus, the

trial court had no choice but to dismiss the proceeding due to the delay.

Accordingly, we affirm the trial court’s orders.1

Brian Quinn Chief Justice

1 Benbo’s m otion that we dism iss and im pose m onetary sanctions against appellees for a “frivolous response” brief is denied.