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Appellant
Appellees
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Appellant Michael R. Benbo, an indigent inmate at the time of = the=20 filing of this lawsuit, appeals from orders 1) transferring venue = and 2)=20 dismissing his suit against a multitude of defendants. Through the = suit,=20 he sought damages for medical malpractice purportedly committed on = his toe=20 and involving the treatment of a fungus. He purportedly contracted = the=20 fungus while incarcerated. We affirm both orders.
Venue Suit was initially filed in Travis County. However, venue was = later=20 transferred to Anderson County. According to appellant, the trial = judge=20 who executed the transfer order lacked the authority to do so = because she=20 was not assigned to consider the matter in conformance with Rule = 11 of the=20 Texas Rules of Judicial Administration. We disagree. Said rule applies to a case involving material questions of = fact and=20 law in common with another case pending in another court in = another=20 county. Tex. R. Jud. Admin. 11, reprinted in Tex. Gov't = Code=20 Ann., tit 2, subtit. F app. (Vernon 2005). Benbo neither argues = nor cites=20 us to evidence illustrating that his suit involved questions of = law and=20 fact in common with another suit pending elsewhere. Therefore, = Rule 11=20 does not apply to the dispute before us. As for the allegations referring to the trial court's decision = to act=20 upon the venue motion "without any statement regarding [Benbo's] = motion=20 for extension of time or good cause to proceed without hearing" = said=20 dilatory motion, neither of the two opinions cited by him, = i.e.=20 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) nor = Johnson v.=20 Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985), are = applicable.=20 Both deal with writs of mandamus and involve discovery in = preparation for=20 trial and the granting of a new trial, not motions for an = extension of=20 time. Nor do they require the trial court to have "good cause to = proceed=20 without hearing [the dilatory motion]" or obligate it to mention = the=20 motion when acting upon an attempt to transfer venue. Dismissal Next, Benbo complains of the trial court's order = dismissing=20 his lawsuit as frivolous and argues that it could only dismiss the = proceeding for want of prosecution. We disagree. Statute obligates the trial court to dismiss an inmate's suit = if the=20 inmate fails to file his claim before the 31st day = after the=20 date he received the written decision from the internal grievance = system.=20 Tex. Civ. Prac. & Rem. Code Ann. =A714.005(b) (Vernon 2002). = Benbo's=20 grievance was finally decided on November 5, 2002, and he received = notification of the decision on November 15, 2002. However, he did = not=20 commence suit until February 2, 2004, a date more than 31 days = after the=20 grievance decision was received. Thus, the trial court had no = choice but=20 to dismiss the proceeding due to the delay. Accordingly, we affirm the trial court's orders. Brian Quinn Chief Justice
1. Benbo's =
motion that=20
we dismiss and impose monetary sanctions against appellees for a=20
"frivolous response" brief is=20
denied. |