Tracy Eugene Gatlin v. Sergeant Clyde Turner

Gatlin v. Turner, et al. IN THE TENTH COURT OF APPEALS No. 10-95-187-CV      TRACY EUGENE GATLIN,                                                                                               Appellant      v.      SERGEANT CLYDE TURNER, ET AL.,                                                                                               Appellees From the 52nd District Court Coryell County, Texas Trial Court # 29,322                                                                                                     O P I N I O N                                                                                                           Appellant Gatlin appeals from an order of the trial court dismissing his pro se informa pauperis action as to officers Thomas Hudson and Morris A. Gonsalves.       Appellant Gatlin, an inmate of the Texas Department of Criminal Justice, Institutional Division at the Alfred D. Hughes Unit in Gatesville, sued Correctional Officers Sergeant Clyde Turner, Thomas Hudson, and Morris A. Gonsalves, alleging that they refused to take action on his complaint that someone had stolen his headphones; that he was told to return to his cell; that when he did not do so Sergeant Turner grabbed him and pushed him; and that Officers Hudson and Gonsalves were present.       Appellant claimed violation of his civil rights, as well as injury by Sergeant Turner, and sought $20,000 actual damages and $10,000 punitive damages from each of the officers.       The trial court dismissed the case as to Officers Hudson and Gonsalves as "frivolous and malicious because the claim stated therein has no arguable basis in law or in fact." Kendrick v. Lynaugh, 801 S.W.2d 153, 155 (Tex. App.—Houston [14th Dist.] 1990); Johnson Peterson, 799 S.W.2d 345, 346 (Tex. App.—Houston [14th Dist.] 1990); Huntsberry v. Lynaugh, 807 S.W.2d 16 (Tex. App.—Tyler 1991); Johnson v. Lynaugh, 796 S.W.2d 705 (Tex. 1990).       The trial court did not abuse its discretion in dismissing Appellant's action against officers Hudson and Gonsalves as frivolous,       All of appellant's contentions are overruled. The judgment is affirmed.                                                                                 FRANK G. McDONALD                                                                                Chief Justice (Retired) Before Justice Cummings,       Justice Vance, and       Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed September 20, 1995 Do not publish ement stated: IT IS FURTHER ORDERED that the settlement funds as defined in the mediated settlement agreement shall be immediately disbursed to Plaintiffs.  The trial court’s final order modified this provision: IT IS FURTHER ORDERED that the settlement funds as defined in the mediated settlement agreement shall be [] disbursed to Plaintiffs upon Defendant’s receipt of the executed release from Plaintiffs.  The Tuckers filed a motion to modify. At a hearing, they argued that the modification “contradicted the terms and provisions of the Mediated Settlement Agreement.”[2] The trial court denied the motion. On appeal, the Tuckers argue that return of the two checks was the only condition for payment of the settlement funds and that the trial court’s modification imposed a new condition.            In Cobb v. Morace, No. 01-07-01036-CV, 2009 Tex. App. LEXIS 5753 (Tex. App.—Houston [1st Dist.] July 23, 2009, no pet. h.) (mem. op.), Cobb refused to sign formal settlement documents after reaching an agreement with Morace. See Cobb, 2009 Tex. App. LEXIS 5753, at *5. Cobb challenged the final judgment’s compliance with the mediated settlement agreement. Id. at *10. He complained, in part, that “although the MSA required Morace to begin making quarterly payments to Cobb on May 9, 2007, the judgment did not require that the quarterly payments begin until ‘90 days after the judgment’ became final.” Id. at *12.  The First Court held, “Although the trial court modified the date on which the quarterly payments to Cobb would begin, this modification did not significantly alter the original terms of the MSA or undermine the intent of the parties:” Pursuant to the MSA, Morace should have begun sending quarterly payments to Cobb on May 9, 2007, ninety days after the parties had signed the MSA.  However, Cobb had refused to execute settlement documents drafted by Morace.  As a result of this and other disputes, the trial court incorporated the MSA into its judgment and required that Morace begin making payments ninety days after the judgment became final instead of ninety days after the MSA had been signed.  However, the trial court did not alter the amount that Morace owed, the frequency of the payments, or the “interest rate of 5.75% per annum” on the payments.  Id. at *13-14.             Like Cobb, the trial court in this case did not alter the amount or the time of the payment itself. The Tuckers had already returned the two checks to First American and First American had tendered the settlement funds. The trial court’s modification is consistent with the parties’ discussion regarding disbursement of funds and a deadline for signing of the settlement documents.[3] We cannot say that the trial court’s modification significantly altered the original terms of the mediated settlement agreement or undermined the intent of the parties. See Beyers, 199 S.W.3d at 362; see also Cobb, 2009 Tex. App. LEXIS 5753, at *13-14. We overrule the Tuckers’ sole issue and affirm the judgment.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed October 28, 2009 [CV06]        [1]              The Tuckers also sued other parties who are not involved in this appeal. [2]              Counsel further argued that the modification was contrary to provisions of the insurance code. That issue has not been raised on appeal. [3]              The Tuckers maintain that they made two separate requests at the hearing, the trial court ruled on their request to allow disbursement of funds, and the trial court inquired about their request for a deadline. They argue that the trial court did not overturn its previous ruling and, if it intended to do so, failed to do so with sufficient clarity to place them on notice. We disagree. First American’s counsel made it clear that he had no objection to release of the funds upon delivery of the settlement documents to him. The trial court’s response indicates acceptance of this request. This exchange was sufficient to place the Tuckers on notice of the trial court’s understanding regarding the disbursement of funds.            Â