Andrew Colby Livingston v. Clinton L. Shaffer ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00151-CV
___________________________
ANDREW COLBY LIVINGSTON, Appellant
V.
CLINTON L. SHAFFER, Appellee
On Appeal from the County Court at Law
Cooke County, Texas
Trial Court No. CV2101981
Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant Andrew Colby Livingston appeals the trial court’s order granting
Appellee Clinton Shaffer’s motion to dismiss Livingston’s fraud cause of action
pursuant to Section 13.001 of the Texas Civil Practice and Remedies Code. We will
affirm.
I. BACKGROUND
In May 2021, Livingston, acting pro se,1 sued Shaffer for fraud.2 Along with
his petition, Livingston filed an affidavit of inability to pay court costs. See generally
Tex. R. Civ. P. 145.
In his petition, Livingston recited the following facts in support of his claim:
On April 27[], 2017[,] . . . Shaffer took possession of Plaintiff’s
belongings by moving Plaintiff’s items out of his (Plaintiff’s) apartment.
This can be verified via the Clerk’s Record for Cause No. CR17-00284 in
the 235th District Court as an “Affidavit for Search Warrant” No.
17-016 issued by judge Janelle Haverkamp on the 26th day of April,
2017 and is clerk stamped by Melissa Gann on May 1[], 2017[,] at 4:39
PM. When that search was executed, . . . Shaffer was at Plaintiff’s
residence . . . and had taken possession of Plaintiff’s property[,] which
was all of the items from Plaintiff’s apartment. Police reports from
when said warrant was executed do indicate that [Shaffer] had loaded
Plaintiff’s property onto [Shaffer’s] truck and trailer. Later, . . . Shaffer
testified under oath that he had told Plaintiff that he would hold on to
Plaintiff’s property. . . . Shaffer did also testify that he had lied to
1
Livingston was incarcerated at the time he filed suit and is currently serving a
life sentence in the Texas Department of Criminal Justice unit located in Lamesa,
Texas.
2
In his original petition, Livingston labels his cause of action as “[f]raud by
[d]eception and/or [m]isrepresentation.”
2
Plaintiff about holding on to Plaintiff’s belongings. . . . Shaffer also
admits to disposing of Plaintiff’s camper trailer and truck.
Plaintiff lost around one-hundred-thousand-dollars [sic] due to
[Shaffer’s] fraudul[e]nt actions. Plaintiff was harmed by [Shaffer’s]
actions and false/fraudul[e]nt statements. Plaintiff was deceived by
[Shaffer’s] false statements.
Moreover, Plaintiff had made his mother . . . his Power of
Attorney[,] and . . . Shaffer refused to allow [her] access to Plaintiff’s
belongings.
In addition, Livingston’s petition described his cause of action as follows:
Shaffer committed the act of fraud by lying to the Plaintiff about his
intentions as to how he would handle Plaintiff’s property. More[]
specifically, . . . Shaffer told Plaintiff that he would ‘hold on’ to Plaintiff’s
property when he had no intention to do so as [Shaffer] has already
admitted while under oath in court.
In March 2022, Shaffer filed a motion to dismiss the lawsuit pursuant to
Section 13.001 of the Texas Civil Practice and Remedies Code on the grounds that it
has no basis in law or fact.3 The trial court granted Shaffer’s motion and signed an
3
Although Livingston has not raised this issue, we note that because Livingston
was incarcerated, Shaffer should have filed his motion to dismiss pursuant to
Chapter 14, not Chapter 13, of the Texas Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code §§ 13.004, 14.002(a). Because Shaffer filed his motion under
Section 13.001, we frame our analysis under Chapter 13. However, because the two
statutes are counterparts and contain essentially identical provisions authorizing a trial
court to dismiss a lawsuit as frivolous on the grounds that it has no arguable basis in
law or fact, our analysis would be the same under either chapter. Compare id.
§ 13.001(a)(2), (b)(2), with id. § 14.003(a)(2), (b)(2). See West v. Robinson, 486 S.W.3d
669, 672 (Tex. App.—Amarillo 2016, pet. denied) (discussing the relationship between
Chapters 13 and 14 and concluding that trial court’s mistaken reference to Chapter 14
instead of Chapter 13 in order dismissing lawsuit as frivolous was “of no moment”
“because there is effectively no difference in the two statutes’ descriptions of the
court’s inquiry”).
3
order dismissing the lawsuit “for failure to state a cause of action.” This appeal
followed.
II. DISCUSSION
On appeal, Livingston raises two issues. First, he argues that the trial court
erred by dismissing his fraud lawsuit under Section 13.001 because, notwithstanding
the trial court’s determination, he “did state a cause of action in his original petition.”
Second, he argues that the trial court abused its discretion by dismissing his lawsuit
without first giving him the opportunity to amend his petition. These arguments are
without merit.
A. DISMISSAL UNDER SECTION 13.001
Section 13.001 of the Texas Civil Practice and Remedies Code authorizes a trial
court to dismiss a cause of action in which the plaintiff has filed an affidavit of
inability to pay court costs if it finds that either “the allegation of poverty in the
affidavit is false” or “the action is frivolous or malicious.” Tex. Civ. Prac. & Rem.
Code Ann. § 13.001(a). In determining whether an action is frivolous or malicious,
the court may consider, inter alia,4 whether “the claim has no arguable basis in law or
4
The statute provides that the court may also consider whether “the action’s
realistic chance of success is slight” or whether “it is clear that the party cannot prove
a set of facts in support of the claim.” Tex. Civ. Prac. & Rem. Code Ann.
§ 13.001(b)(1), (3). However, the Texas Supreme Court has discouraged reliance on
these grounds for dismissal. See Brown v. Lynaugh, 817 S.W.2d 813, 814 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (citing Johnson v. Lynaugh, 796 S.W.2d 705, 706–07
(Tex. 1990)). Because Shaffer’s motion expressly sought dismissal on the grounds
4
in fact.” Id. § 13.001(b)(2). “A cause of action has no basis in law if the allegations,
taken as true, together with inferences reasonably drawn from them, do not entitle the
claimant to the relief sought.” DeVoll v. Demonbreun, No. 04-14-00116-CV, 2014 WL
7440314, at *1 (Tex. App.—San Antonio Dec. 31, 2014, no pet.) (quoting Tex. R. Civ.
P. 91a.1). “A cause of action has no basis in fact if no reasonable person could
believe the facts pleaded.” Id.A trial court has broad discretion to determine whether to dismiss a lawsuit
pursuant to Section 13.001. Brown, 817 S.W.2d at 815; Thompson v. West, 804 S.W.2d
575, 576 (Tex. App.—Houston [14th Dist.] 1991, writ denied); Johnson v. Lynaugh,
766 S.W.2d 393, 394 (Tex. App.—Tyler 1989), writ denied, 796 S.W.2d 705 (Tex. 1990).
Thus, we will not reverse a trial court’s order of dismissal under Section 13.001 absent
a clear abuse of discretion. See Brown, 817 S.W.2d at 815; see also Black v. Jackson,
82 S.W.3d 44, 49–50 (Tex. App.—Tyler 2002, no pet.) (providing that standard of
review of dismissal under Section 13.001 is abuse of discretion).
To prevail on a cause of action for fraud, a plaintiff must prove
(1) that a material representation was made; (2) the representation was
false; (3) when the representation was made, the speaker knew it was
false or made it recklessly without any knowledge of the truth and as a
positive assertion; (4) the speaker made the representation with the
intent that the other party should act upon it; (5) the party acted in
reliance on the representation; and (6) the party thereby suffered injury.
that Livingston’s cause of action had no basis in law or fact, we need not address the
viability of the alternate grounds for dismissal set forth in Section 13.001(b)(1) and (3).
5
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex.
2011) (quoting Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.
2009)).
A review of Livingston’s petition reveals that the allegations therein together
with the inferences reasonably drawn from them, even if taken as true, are insufficient
to establish all of the elements of fraud. The only representation Livingston alleges
Shaffer made was his statement that he “would hold on to [Livingston’s] property.”
While a false promise of future performance may be actionable as a false
representation, the plaintiff must show that the promise was sufficiently certain and of
the type that a person could reasonably and justifiably rely on. See Gilmartin v. KVTV-
Channel 13, 985 S.W.2d 553, 558 (Tex. App.—San Antonio 1998, no pet.). An illusory
promise will not give rise to a cause of action for fraud. See Sawyer v. E.I. DuPont De
Nemours & Co., 430 S.W.3d 396, 400 (Tex. 2014). Here, Shaffer’s vague statement
that he would “hold on” to Livingston’s property is not sufficiently certain to support
a fraud cause of action. It is unclear what exactly Shaffer meant when he allegedly
said that he would “hold on” to Livingston’s property or for how long he would
“hold on” to it. Moreover, Livingston does not allege that Shaffer intended
Livingston to act upon his representation or that Livingston did, in fact, act in reliance
upon it. Indeed, because Livingston’s petition does not make clear exactly when or
under what circumstances Shaffer made the representation, it is impossible to infer
Shaffer’s intent that Livingston would rely on it or that Livingston actually did so.
6
Thus, Livingston’s cause of action has “no arguable basis in law,” and consequently,
we cannot conclude that the trial court abused its discretion by dismissing
Livingston’s lawsuit under Section 13.001. Tex. Civ. Prac. & Rem. Code Ann.
§ 13.001(b)(2).
We overrule Livingston’s first issue.
B. OPPORTUNITY TO AMEND
In his second issue, Livingston asserts that the trial court abused its discretion
by dismissing his lawsuit without first giving him an opportunity to amend his
petition. However, the trial court was not required to allow Livingston to amend his
petition before dismissing his lawsuit under Section 13.001.5 See Kendrick v. Lynaugh,
804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no writ); Peterson, 799
S.W.2d at 347; Johnson, 766 S.W.2d at 395. Thus, we find no abuse of discretion.
5
Livingston cites County of Cameron v. Brown, 80 S.W.3d 549, 559 (Tex. 2002),
and KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898 (Tex. App.—Dallas 2003, no
pet.), for the proposition that a trial court must afford a party who filed a defective
pleading an opportunity to cure the defect by repleading. However, these cases
concern special exceptions and pleas in abatement, not motions to dismiss under
Section 13.001 and are therefore distinguishable. See Brown, 80 S.W.3d at 559
(addressing special exceptions); KSNG Architects, 109 S.W.3d at 898 (discussing pleas
in abatement and special exceptions). Livingston cites no caselaw requiring a trial
court to grant a plaintiff leave to amend before dismissing a suit under Section 13.001.
Moreover, one of our sister courts has expressly rejected the argument that a trial
court’s failure to provide a plaintiff an opportunity to amend its petition before
dismissing a lawsuit under Section 13.001 constitutes reversible error even where the
movant has filed special exceptions along with its motion to dismiss because the trial
court’s dismissal power under Section 13.001 takes precedence over the rules
applicable to special exceptions. See Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex.
App.—Houston [14th Dist.] 1990, no writ).
7
We overrule Livingston’s second issue.
III. CONCLUSION
Having overruled both of Livingston’s issues, we affirm the trial court’s
judgment.6
/s/ Brian Walker
Brian Walker
Justice
Delivered: February 9, 2023
6
In October 2022, Livingston filed a motion for default judgment in this court
pursuant to Rule 239 of the Texas Rules of Civil Procedure. Because Rule 239 is
inapplicable to proceedings in this court, we deny Livingston’s motion. See Tex. R.
Civ. P. 2 (“These rules shall govern the procedure in the justice, county, and district
courts of the State of Texas . . . .”).
8