in Re Timothy Paul Martin

Opinion issued February 4, 2010 In The Court of Appeals For The First District of Texas NO. 01-09-00175-CV __________ IN RE TIMOTHY PAUL MARTIN, Appellant On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 50736 MEMORANDUM OPINION Appellant, Timothy Paul Martin, who is incarcerated and represents himself pro se, contends that the trial court abused its discretion in determining that his lawsuit is frivolous and dismissing his lawsuit with prejudice without holding an evidentiary hearing. We affirm. Background In his petition, Martin alleges that between 2000 and 2009, he had corresponded with defendants Holloway House Publishing, Editor Leonard King, Associate Editor Mitchel Neal, Time Warner, Random House, Harper Collins, Penguin Group USA, Inc., and Liza Dawson Associates, Literary Agent Partnership Group (collectively, the defendants), about his interest in collaborating with the defendants “regarding the consignment, publication, promotion and distribution” of numerous “original works of literature” that he authored. Martin complains that the defendants had “neglected to review [his] works or collaborate with due diligence or in good faith.” Martin further alleges that he had produced multiple “manuscripts” that he considered to be “priceless and worth millions of dollars.” These manuscripts included, among others, a true story about himself entitled “In Search of Paradise,” a story about an attorney who saved his secretary from being sacrificed entitled “The Madeanna Dagger,” a science fiction work involving a mission to a second universe “to bring seven new suns and moons out of eclipse in order to save the original universe” entitled “Eclipse,” a fairy tale about famous traditional holidays entitled “The Holiday Collection,” and a “porno” story. Martin states that the defendants had taken advantage of the “unequal power they had accumulated” in the publishing business, violated a special and confidential relationship between him and them, failed to return certain manuscripts to him, and destroyed some of the manuscripts. Martin also asserts that the defendants had misled him in violation of the Texas Deceptive Trade Practices Act (“DTPA”). Finally, Martin asserted that defendants had discriminated against him and had violated his due process and equal protection rights under the United States Constitution. Martin states in his petition that he had previously pursued “various other lawsuits” against all of the named defendants, other than Holloway House. Martin also filed, in conjunction with his petition, a motion for permission to file this lawsuit. In this motion, Martin stated that “the facts of the present claims were not a part of any prior judgment because the present facts arose after any prior court judgment,” but he further stated that prior court judgments proximately caused his present claims. Martin also filed an affidavit related to lawsuits he had previously filed. After reviewing the pleadings, the trial court determined that Martin’s lawsuit is frivolous and that Martin had failed to state a cause of action as a matter of law. Thus, it dismissed Martin’s lawsuit with prejudice. Dismissal In his sole issue, Martin argues that trial court abused its discretion in dismissing his lawsuit with prejudice without holding an evidentiary hearing because he was denied the opportunity to present letters to the trial court establishing that he and the defendants had engaged in correspondence regarding his manuscripts. Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014. (Vernon 2002). Under Chapter 14, a trial court may dismiss an inmate suit brought in forma pauperis, either before or after service of process, by finding that it is frivolous or malicious. Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b)(1)–(4). In finding that a claim is frivolous or malicious, the court “may” hold a hearing “before or after service of process” and “it may be held on motion of the court, a party, or the clerk of the court.” Id. § 14.003(c). We generally review a trial court’s dismissal of an inmate’s suit under Chapter 14 for abuse of discretion. See Wilson v. TDCJ-ID, 268 S.W.3d 756, 758 (Tex. App.—Waco 2008, no pet.); Thompson v. Tex. Dep’t of Crim. Justice–Inst. Div., 33 S.W.3d 412, 414 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). When a lawsuit is dismissed as frivolous for having no basis in law or in fact, and no fact hearing was held, our review focuses on whether the inmate’s lawsuit has an arguable basis in law, which we review de novo. Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory. Id. In conducting our de novo review, we take as true the allegations of the inmate’s petition. Id. Martin has not cited any authority or offered any explanation that would allow him to proceed on a claim for the violation of the DTPA as a result of his engaging in correspondence with and mailing of manuscripts to the defendants. We note that consumer status is an essential element of a DTPA claim. Rivera v. S. Green Ltd. P’ship, 208 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)). A consumer is an individual who seeks or acquires goods or services by purchase or lease. Id.; Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon Supp. 2009) (“‘Consumer’ means an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more, or that is owned or controlled by a corporation or entity with assets of $25 million or more.”). Whether a plaintiff is a consumer under the DTPA is a question of law for the court to decide. Rivera, 208 S.W.3d at 21. Martin’s petition reveals that he does not claim to qualify as a consumer of a good or service from the defendants. Similarly, Martin has made no allegation supportive of a due process or equal protection claim. In sum, based upon the claims asserted in his petition, the trial court could have concluded that Martin’s lawsuit lacked any merit and was frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003. Finally, in regard to his complaint about the lack of a hearing, the statute expressly provides that a trial court “may,” in its discretion, conduct a hearing to determine whether an inmate’s suit is frivolous. Id. § 14.003(c); Presiado v. Sheffield, 230 S.W.3d 272, 274–75 (Tex. App.—Beaumont 2007, no pet.) (“The statute states that the trial court “may” hold a hearing, but it does not require the trial court to do so before dismissing a claim.”). Accordingly, we hold that the trial court did not abuse its discretion in not holding an evidentiary hearing and did not err in dismissing Martin’s lawsuit under Chapter 14 as frivolous. We overrule Martin’s sole issue. Conclusion We affirm the order of the trial court. Terry Jennings Justice Panel consists of Justices Jennings, Hanks, and Bland.