### 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, KENNETHKUYKENDALL, VIRGINIA BUCHANAN, GARYJOHNSON, E.J. PEDERSON, JOHNEATON, 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 DepartmentofCriminal Justice-InstitutionalDivision (T.D.C.J.-I.D.), the UniversityofTexas 

### 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, aninmate, brokehis handon September2,1999 whenhe fell in the prisonshower.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 pursuantto afederal 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 CriminalJustice - Inst'IDiv., 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 ofaviolation ofthe Eighth Amendment and conspiracy and the state law claims ofintentional infliction ofemotional distress and conspiracy against the remaining nine employees also survived. Additionally, the Section 1983 

### and state law retaliation claims against Kuykendall and Denson's requestforinjunctivereliefagainst the employees were remanded to the trial court for further proceedings. 

### After remand, all defendants filed special exceptions to Denson's original petition. On September2,2003, the trial court entered an order sustaining 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 ofdismissal 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 ofaction. 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 distinctrulings. 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 ofaction 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. SeeDowner v.Aquamarine Operators, Inc., 701 S.W.2d 238,241-42 (Tex. 1985). Under rule 91 ofthe rules ofcivil 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 originalpetitionfailed to state with anyparticularitythe 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 ofcertain paragraphs. The defendants' special exceptions failed to state with specificity the petition's defects. See id. The special exceptions therefore constitute aforbidden 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. SeeHudson 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 ofdismissal 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 ofAnderson 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 

### thejudgment ofthe court below, it is ORDERED, ADJUDGED and DECREED by this court that thejudgmentbe 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 courtbelow for
observance. Diane DeVasto, Justice. Panel consisted ofWorthen, C.J., Griffith, J., and DeVasto, J.