law-dismissal-with-prejudice-vs-without-prejudice | dismissal for want of prosecution (DWOP) | dismissal for want,
lack of jurisdiction | dismissal without a hearing on the pleadings | special exceptions | opportunity to amend,
replead |
DISMISSAL WITH / WITHOUT PREJUDICE CASE LAW
Jedkins v. Varghese (Tex.App.- Houston [14th Dist.] Dec. 31, 2009)(per curiam)
(dismissal with prejudice of pro se inmate suit affirmed)
Appellant, Larry Wayne Jedkins, a prison inmate, appeals pro se and as a pauper from an order dismissing his suit with prejudice.
Appellant filed suit alleging prison employees and/or agents violated his constitutional rights, engaged in a conspiracy, and
committed assault and battery. Appellant challenges both the dismissal for failure to state a cause of action and the dismissal of the
cause with prejudice. We affirm.
The failure to file a lawsuit by the statutory deadline cannot be remedied by amended pleadings. McCullough v. Texas Dep’t of
Criminal Justice—ID, No. 02-07-072-CV, 2008 WL 704419 (Tex. App.—Fort Worth 2008, no pet,) (mem. op.). Dismissal with prejudice
is proper when a suit is not timely filed pursuant to section 14.005(b. Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.—Houston
[1st Dist.] 2002, no pet.). The trial court did not abuse its discretion is dismissing appellant’s suit with prejudice. We overrule
appellant’s second issue.
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Christopher
14-08-00895-CV Larry Wayne Jedkins v. Mariamma Varghese, Et Al
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman
Martin v. State of Texas (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam)
(dismissal of lawsuit without a hearing, dismissal with prejudice)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-01174-CV Timothy Paul Martin v. The State of Texas
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman
Inmate's Suit re Parole Denial Dismissed with prejudice without hearing and without opportunity to
amend pleadings
Anthony v. Owens (Tex. App. - Houston [14th Dist.] Jul. 7, 2009)(Brown)
(prisoners pro se IFP suit complaining of denial of parole dismissal without opportunity to amend, dismissal with
prejudice, dismissal without evidentiary hearing)
AFFIRMED: Opinion by Justice Brown
Before Justices Frost, Brown and Boyce
14-07-01077-CV Milton James Anthony v. Rissie Owens, Linda Garcia, Charles Aycock, Juanita Gonzales, Jose
Aliseda, Jane/John Doe (1 , Jane/John Doe (2
Appeal from 412th District Court of Brazoria County
The trial court dismissed Anthony's claims on with prejudice; however, Anthony's claims' lack of an arguable basis
in law could not be remedied through additional pleading. Therefore, the trial court would not have erred in
dismissing Anthony's claims with prejudice under Chapter 14. See id.
Appellant's complaint regarding the dismissal “with prejudice" is sustained.
A dismissal for failure to comply with the conditions in section 14.004 is not a dismissal on the merits, but rather an
exercise of the trial court's discretion under chapter 14 of the Civil Practice and Remedies Code. See Hickman v.
Adams, 35 S.W.3d 120, 124 (Tex.App.- Houston [14th Dist.] 2000, no pet.). We modify the trial court's judgment to
delete the words “with prejudice."
Vaughn v. Hicks (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(per curiam)
(pro se prison inmate suit should have been dismissed without prejudice, rather than with prejudice)
AFFIRMED AS MODIFIED: Per Curiam
Before Justices Seymore, Brown and Sullivan
14-08-00726-CV Carlos A. L. Vaughn v. Natrenia L. Hicks, Russell D. Mittach, Jay A. North, Darron A. Lane, Wade
A. King, Jr., Joe N. Ross, Freddie M. English, and Gweldolyn J. Spurlock
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Mark A. Calhoon
Cooper v. TDCJ (Tex.App.- Houston [14th Dist.] May 12, 2009)(Frost)
(prisoner inmate IFP suit dismissal with prejudice affirmed)
AFFIRMED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-07-00741-CV Steven P. Cooper v. Texas Department of Criminal Justice Et Al
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman
Messina v. Messina (Tex.App- Houston [1st Dist.] July 24, 2008)(Bland)
(divorce post-judgment proceeding, undisclosed assets, MSA, sanctions, dismissal with prejudice following nonsuit)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00277-CV Susan Gail Messina v. Louis Anthony Messina
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster
DWOP DISMISSAL IS (SUPPOSED TO BE) WITHOUT PREJUDICE
Midland Funding NCC-2 Corp. v. Azubogu (Tex.App.- Houston [1st Dist.] Dec. 13, 2007)(Radack)
DWOP is without prejudice, sanctions complaint not preserved for appellate review)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00801-CV Midland Funding NCC-2 Corp. v. Josiah Azubogu
Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)
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