Opinion
No. 10-04-00062-CV
Opinion delivered and filed April 13, 2005.
Appeal from the 52nd District Court Coryell County, Texas, Trial Court # Cot-03-34840.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Steven Deem filed suit against the Texas Department of Criminal Justice-Institutional Division and certain employees (Appellees). The trial court dismissed the suit for failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.
Background
Deem, an inmate at the Texas Department of Criminal Justice-Institutional Division and acting pro se, filed suit in forma pauperis against Appellees claiming theft of his property and seeking monetary damages. Deem filed a motion for summary judgment, and the Appellees filed a response to the motion along with a motion to dismiss. The trial court denied Deem's summary judgment motion and dismissed the case for failure to comply with the requirements of chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN § 14.005 (Vernon 2002).
Deem argues on appeal that the trial court erred in (1) granting the Appellees' motion to dismiss and (2) denying his motion for summary judgment because issues of material fact exist.
Motion to Dismiss
In his first issue, Deem argues that the trial court erred in granting the Appellees' motion to dismiss.
We review a trial court's dismissal of an inmate's claim under chapter 14 under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). A court abuses its discretion if it acts without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004).
Deem argues that the trial court erred in granting the dismissal because he had a right to cure any defect in his pleadings and to obtain compliance with the trial court's orders. Essentially, Deem argues that the trial court erred in denying him time to cure any defect in his pleadings. However, Deem failed to file a verified motion for continuance asking for additional time, nor did he apply for leave of court to amend or supplement his pleadings. See De Mino v. Sheridan, 2004 Tex. App. LEXIS 7252, **33-34 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, no pet.). Therefore, this issue is not preserved for review. TEX. R. APP. P. 33.1(a); Aguirre v. Phillips Properties, Inc., 111 S.W.3d 328, 344 (Tex. App-Corpus Christi 2003, pet. denied).
Deem also argues that the trial court erred in granting the dismissal because he did not file a frivolous claim. Deem argues that because his suit is an ordinary tort claim, it has an arguable basis in law or fact. However, the trial court did not dismiss Deem's case due to its frivolous nature, but specifically dismissed for failing to comply with chapter 14. See TEX. CIV. PRAC. REM. CODE § 14.005; TEX. GOV'T CODE ANN § 501.008 (Vernon 2004). Deem does not directly challenge this finding. Therefore, the trial court did not abuse its discretion in dismissing Deem's cause. Accordingly, we overrule Deem's first issue.
Conclusion
Because Deem's first issue is dispositive of this appeal, we need not consider his other issue. Accordingly, we affirm the judgment of the trial court.