Stephen Patrick Black v. Dr. Nicholas Edd and Penile Plethysmorgraph Clinican II

• Court: Court of Appeals of Texas
• Decided: January 24, 2024
• Docket: 04-23-00923-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00923-CV

Stephen Patrick BLACK, Appellant

v.

Dr. Nicholas EDD and Penile Plethysmograph Clinician II, Appellees

From the 274th Judicial District Court, Guadalupe County, Texas Trial Court No. CC 23-1518-CV-B Honorable Gary L. Steel, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: January 24, 2024

DISMISSED

Appellant Stephen Patrick Black, proceeding pro se, challenges, inter alia, an order that

granted appellee Dr. Nicholas Edd’s motion to dismiss under section 14A.051 of the Texas Civil

Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 14A.051. We construe one

of Black’s pre-submission motions as a motion for voluntary dismissal and dismiss his appeal. 04-23-00923-CV

I. BACKGROUND

Since being civilly committed as a sexually violent predator, Black has filed a series of

lawsuits against Dr. Nichols Edd in Lamb County, Texas, and recently, in Guadalupe County,

Texas.

On December 3, 2020, Black filed an original petition against Dr. Edd in the Justice Court

of Lamb County, Texas (the “Lamb County Lawsuit”). Generally, Black alleged that Dr. Edd

negligently administered a December 2019 penile plethysmograph test (“PPG test”). Dr. Edd

responded with a plea to the jurisdiction, and he argued that the justice court lacked jurisdiction

over Black’s lawsuit because jurisdiction was proper in the committing court — the 274th District

Court of Guadalupe County, Texas. The justice court granted Dr. Edd’s plea and dismissed,

without prejudice, Black’s claim. Black filed a de novo appeal in the Lamb County Court. Dr.

Edd again filed a plea to the jurisdiction that repeated the grounds he had maintained in his

previous plea. The county court granted Dr. Edd’s plea, Black appealed, and our sister court

affirmed. Black v. Edd, No. 07-21-00168-CV, 2022 WL 1750651, at *1 (Tex. App.—Amarillo

Jul. 6, 2022, pet. denied). The Texas Supreme Court denied Black’s petition for review, and on

January 27, 2023, it denied Black’s motion for rehearing. On March 13, 2023, the Seventh Court

of Appeals issued its mandate.

On June 12, 2023, Black filed an original petition against Dr. Edd in the 274th District

Court of Guadalupe County, Texas (the “Guadalupe County Lawsuit”). Black’s June 12, 2023

petition, as does his December 3, 2020 petition, alleges that Dr. Edd negligently administered a

December 2019 PPG test. Dr. Edd filed a motion to dismiss pursuant to section 14A.051 of the

Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14A.051.

On September 28, 2023, the trial court signed an “Order Granting Defendant’s Motion to Dismiss

Pursuant to Tex. Civ. Prac. & Rem. Code § 14A.051A” (hereinafter the “trial court’s dismissal

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order”). The trial court’s dismissal order directs Black to “pay all fees associated with his filing

of this lawsuit pursuant to Tex. Civ. Prac. & Rem. Code 14A.054.” Black has appealed from the

trial court’s dismissal order.

On December 12, 2023, we ordered Black to remit to the clerk of this court a payment in

accordance with section 14A.054(b) of the Texas Civil Practice and Remedies Code on or before

January 11, 2024. On December 21, 2023, Black filed a “motion to dismiss or consider CPRC

Chapter 14A inapplicable.” Black’s motion contends that Chapter 14A of the Texas Civil Practice

and Remedies Code is “not applicable to this case, as it is not retroactive.” Specifically, Black

argues that the claims in his June 12, 2023 original petition filed in the Guadalupe County Lawsuit

are the same as those that are in a December 3, 2020 original petition that was filed in the Lamb

County Lawsuit, that these identical claims were filed multiple times in different courts but each

time they were “dismissed without prejudice” for failure to file in a court of proper jurisdiction,

and that section 16.064 of the Texas Civil Practice and Remedies Code effectively tolls or abates

the running of any limitations period. Under Black’s reasoning, because section 14A.054(b) does

not apply to his Guadalupe County Lawsuit, he is exempt from its provisions that grant us

discretion to impose “court fees, court costs, and other costs.” Black also asserts that, if section

14A.054(b) applies, “he will not be able to further prosecute this appeal due to the fact he does not

have any funds available in [his] trust fund account.”

II. BLACK’S PRE-SUBMISSION MOTION

Black’s attempt to escape application of section 14A.054 fails because, even if section

16.064(a) applies, it does not apply to the Guadalupe County Lawsuit. Moreover, the Guadalupe

County Lawsuit was filed after section 14A.054(b) became effective. Section 16.064(a) provides:

The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:

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(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and

(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.064(a). The Seventh Court of Appeals issued its mandate

on March 13, 2023. Accordingly, the latest date that the Lamb County Lawsuit arguably could

have become “final” under section 16.064(a) was March 13, 2023. See Sanders v. Boeing Co.,

No. 23-0388, 2023 WL 8285824, at *12 (Dec. 1, 2023) (“[I]f the appellate court affirms the

dismissal [for lack of jurisdiction], or if the appellate court was the first to dismiss because of lack

of jurisdiction, the dispute still exists until [the Texas Supreme Court] loses power to act on any

timely filed petition for review.”); see also Freeport-McMoRan Oil & Gas LLC v. 1776 Energy

Partners, LLC, 672 S.W.3d 391, 398–99 (Tex. 2023) (observing that “a court of appeals’ decision

is not final until it issues a mandate” and explaining that Texas Supreme Court decisions become

“final” when it issues a mandate). Black filed the Guadalupe County Lawsuit on June 12, 2023,

eighty-three days after the latest date that the Lamb County Lawsuit arguably could have become

final. Assuming without deciding that section 16.064(a) applies to the “action” Black has

attempted to maintain in Lamb and Guadalupe counties, his filing of the Guadalupe County

Lawsuit is beyond the sixty-day limit in section 16.064(a)(2). Id. Therefore, section 16.064(a)

does not apply, and Black’s Guadalupe County Lawsuit does not relate back to his Lamb County

Lawsuit for limitations purposes.

The provisions in Chapter 14A of the Texas Civil Practice and Remedies Code that grant

us discretion to impose “court fees, court costs, and other costs” became effective on May 24,

2023. See Act of May 24, 2023, 88th Leg., R.S., ch. 203 (codified at TEX. CIV. PRAC. & REM.

CODE ANN. 14A.054). Black filed the Guadalupe County Lawsuit on June 12, 2023, nineteen days

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after Section 14A.054 became effective. Therefore, section 14A.054 applies to the Guadalupe

County Lawsuit.

III. CONCLUSION

We gather from the title of Black’s motion and its arguments that, if Black is unable to

escape application of section 14A.054(b), then he seeks, as an alternative, voluntary dismissal.

Accordingly, we dismiss Black’s appeal. 1

1 Black’s other pending motions are denied as moot.

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