NO. 12-04-00037-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TOMMIE J. DENSON,

APPELLANT

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE-INSTITUTIONAL DIVISION, §

THE UNIVERSITY OF TEXAS MEDICAL

BRANCH, TITO ORIG, MARY GOTCHER,

LANNETTE LINTHICUM, ARTIS MOSLEY,

KENNETH KUYKENDALL, VIRGINIA

BUCHANAN, GARYJOHNSON,

E.J. PEDERSON, JOHN EATON, DAVID

SMITHAND ELMO CA VIN, APPELLEES §

APPEAL FROM THE THIRD

JUDICIAL DISTRICT COURT OF

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Tommie J. Denson appeals from the dismissal ofhis pro se in forma pauperis suit against the

Texas Department ofCriminal Justice-Institutional Division (T.D.C.J.-I.D.), the University ofTexas

Medical Branch (U.T.M.B.), Tito Orig, Mary Gotcher, Lannette Linthicum, Artis Mosley, Kenneth

Kuykendall, Virginia Buchanan, Gary Johnson, E.J. Pederson, John Eaton, David Smith, and Elmo

Cavin. In seven issues, Denson contends the trial court erred in sustaining Appellees' special

exceptions and dismissing his suit. We reverse and remand.

Background

Denson, an inmate, brokehis handon September 2,1999 whenhe fell in the prison shower.
Because he felt that the medical care he received was less than adequate, he filed suit on

December 8, 1999. His petition included claims for violations of the Texas Tort Claims Act

(TTCA), the Texas Health and SafetyCode, the Texas Government Code, and allegations ofmedical

malpractice, intentional infliction ofemotional distress, and state law conspiracy and retaliation. He

alsobrought claims pursuant to a federal civil rights statute1 forviolation oftheEighth Amendment

to the United States Constitution, for retaliation, and for conspiracy. Denson requested damages and

injunctive reliefin the form ofsurgery on his hand and physical therapy.

In an order dated March 25, 2002, the trial court granted the defendants' motions to dismiss

and motions for summary judgment and dismissed the cause of action. Denson appealed that

decision to this court. We affirmed in part and reversed and remanded in part. Denson v. Tex.Dep 't

Criminal Justice - Inst'I Div., 12-02-00099-CV, 2003 Tex. App. LEXIS 10957 (Tex. App.-Tyler,

May 30,2003, no pet.). The only claim against T.D.C.J.-I.D. and U.T.M.B. that survived after that

appeal is the TTCA claim for negligent use oftangible personal property. All claims against Smith

and Cavin remained intact and were remanded. The Section 1983 claims ofa violation ofthe Eighth

Amendment and conspiracy and the state law claims ofintentional infliction of emotional distress

and conspiracy against the remaining nine employees also survived. Additionally, the Section 1983

and state law retaliation claims against Kuykendall and Denson's request for injunctive reliefagainst

the employees were remanded to the trial court for further proceedings.

After remand, all defendants filed special exceptions to Denson's original petition. On

September 2,2003, the trial court entered an ordersustaining each ofthe nine special exceptions and

ordering Denson to replead and cure the defects by November 3,2003. Denson did not replead. The

trial court signed the order of dismissal on January 21, 2004.

Special Exceptions

Read together, Denson complains in his seven issues that the trial court erred in granting the

defendants' special exceptions. Denson asserts that he pleaded his claims in plain and concise

language, this court found that he had pleaded a cause ofaction under the TTCA, and the trial court

42 U.S.C. § 1983 (1994).
abused its discretion when it dismissed his cause of action.

When special exceptions addressed to the pleadings are sustained, the pleader may amend

to meet the exception or refuse to amend and test the validity ofthe ruling on appeal. Spillman v.

Simkins, 757 S.W.2d 166, 167 (Tex. App.-San Antonio 1988, writ dism'd). When a trial court

dismisses a cause ofaction following the sustaining ofspecial exceptions, appellate review requires

an examination oftwo distinct rulings. Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.-Dallas 1993,

writ dism'd w.o.j.). First, we review the propriety ofthe trial court's decision to sustain the special

exceptions. We then review the propriety ofthe trial court's decision to dismiss the cause of action

to see ifthe trial court abused its discretion. Id. The test for abuse ofdiscretion is whether the trial

court acted without reference to any guiding rules or principles or acted in an arbitrary or

unreasonable manner. See Downer v.Aquamarine Operators, Inc., 701 S.W.2d 238,241-42 (Tex.

1985).

Under rule 91 ofthe rules of civil procedure, special exceptions must identify the pleading

excepted to, stating the "defect, omission, obscurity, duplicity, generality, or other insufficiency in

the allegations" with particularity. Tex. R. Civ. P. 91. When special exceptions lack specificity and

fail to point out how the plaintiffs allegations are faulty, they constitute a general demurrer, which

is prohibited under the rules. Tex. R. Civ. P. 90; Castano v. San Felipe Agric, Mfg., & Irrigation

Co., 147 S.W.3d 444, 453 (Tex. App.-San Antonio 2004, no pet.).

The defendants' special exceptions alleged that Denson's original petition failed to state with

any particularity the nature ofacts or omissions committed specificallyby the defendants, was vague,

ambiguous, indefinite, and failed to fairly apprise the defendants as to what allegations Denson was

making against them. The first special exception complained ofthe petition in its entirety, and the

remaining special exceptions complained of certain paragraphs.

The defendants' special exceptions failed to state with specificity the petition's defects. See

id. The special exceptions therefore constitute a forbidden general demurrer. Id. Further, in the first

appeal ofthis cause ofaction, this court held that Denson alleged a claim pursuant to the TTCA. See

Denson, 2003 Tex. App. LEXIS 10957, at *53. Under the law ofthe case doctrine, we are bound

by that determination. See Hudson v. Wakefield,!'11 S.W.2d 628, 630 (Tex. 1986). Accordingly,

the trial court abused its discretion in sustaining the special exceptions. Because the decision to
sustain the special exceptions was improper, the dismissal ofthe cause ofaction was also improper.

See Cole, 864 S.W.2d at 566. We sustain Denson's seven issues.

Disposition

We reverse the trial court's order of dismissal and remand the cause of action for further

proceedings consistent with this opinion.

Opinion delivered January 31, 2006.

Panel consisted ofWorthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

DIANE DEVASTO

Justice
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 31, 2006

NO. 12-04-00037-CV

TOMMIE J. DENSON,

Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION,

THE UNIVERSITY OF TEXAS MEDICAL BRANCH, TITO ORIG,

MARY GOTCHER, LANNETTE LINTHICUM, ARTIS MOSLEY,

KENNETH KUYKENDALL, VIRGINIA BUCHANAN,

GARY JOHNSON, E.J. PEDERSON, JOHN EATON,

DAVID SMITH AND ELMO CAVIN,

Appellees

Appeal from the 3rd Judicial District Court

of Anderson County, Texas. (Tr.Ct.No. 38,355)

THIS CAUSE came to be heard on the appellate record and the briefs filed

herein, and the same being inspected, because it is the opinion ofthis court that there was error in

the judgment ofthe court below, it is ORDERED, ADJUDGED and DECREED by this court that

the judgment be Reversed and the causeRemanded to the trial court for FurtherProceedings

in accordance with the opinion ofthis court; and that this decision be certified to the court below for

observance.

Diane DeVasto, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.