Court of Appeals of Texas, Second District, Fort Worth
DONALD W. READ APPELLANT
TIMOTHY W. VERBOSKI APPELLEE
THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, KERR, and PITTMAN, JJ.
T. PITTMAN JUSTICE
Donald W. Read appeals from the trial court's dismissal
of his suit brought against Appellee Timothy W. Verboski,
witness in the criminal trial that resulted in Read's
conviction for driving while intoxicated. Upon Verboski's
motion, the trial court dismissed Read's suit under
chapter fourteen of the civil practice and remedies code.
See Tex. Civ. Prac. & Rem. Code Ann. §
14.003(a) (West 2017). We affirm.
night of February 17, 2013, Verboski called the police to
report an accident involving Read's vehicle. Read v.
State, No. 11-13-00344-CR, 2015 WL 6121536, at *1 (Tex.
App.-Eastland Oct. 15, 2015, pet. ref'd) (mem. op., not
designated for publication). The police report contained a
statement by Verboski to the police officer that he did not
witness the accident but drove by the scene after it
occurred. The police report recited that Verboski
"stated that he [had] observed an older SUV had ran
off of the road into the ditch and was stuck."
[Emphasis added.] At Read's criminal trial, Verboski
testified that he saw Read's vehicle in a ditch on his
drive home from work on the night of February 17. Verboski
then stopped and spoke to Read and noticed that Read's
speech was slurred and that he staggered. Id.
Verboski then called 9-1-1. Id. The police officer
who responded to Verboski's call performed field sobriety
tests on Read and then arrested him for driving while
intoxicated. Read was subsequently convicted of driving while
intoxicated, felony repetition.
filed this civil suit against Verboski alleging that he had
been wrongfully convicted because of Verboski's false
statement recited in the police report and his subsequent
perjury at Read's trial. Specifically, Read alleged that
Verboski's statement in the police report was false when
he told the officer that "he observed an older SUV had
ran off the road into the ditch and was stuck" and then
later, "contradicting" himself, stated that
"he did not witness the accident but drove past it after
it had happened." According to Read, Verboski "did
not see exactly what happened." By supplemental
petition, Read also alleged that Verboski falsely reported to
police that his vehicle had run off the road when Verboski
had not witnessed the accident. Read further alleged that
Verboski's testimony led to his conviction, and he sought
compensation under chapter 103 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code
Ann. § 103.001 (West Supp. 2016) (providing compensation
to persons who have been wrongfully convicted).
response to Read's lawsuit, Verboski filed a motion to
dismiss. He alleged that dismissal was proper under both
chapters thirteen and fourteen of the civil practice and
remedies code but ultimately urged the trial court to dismiss
the suit under chapter fourteen. See Tex. Civ. Prac.
& Rem. Code Ann. § 13.001 (West 2017) (providing for
dismissal of a frivolous suit brought by an indigent person),
§ 14.003(a) (providing for dismissal of malicious or
frivolous suits by indigent inmates). Verboski argued that
any statements made in the due course of a judicial
proceeding cannot form the basis of a suit for damages for
defamation. As such, he argued, Read's suit had no legal
basis and was therefore frivolous.
trial court granted the motion without a hearing and
dismissed Read's case. Read now appeals.
Dismissal of Frivolous or Malicious Suits under Chapter 14 of
the Civil Practice and Remedies Code
does not challenge the applicability of civil practice and
remedies code chapter fourteen to his suit. Under section
14.003 of that chapter, a court may dismiss a claim if it
finds that the claim is frivolous or malicious. Tex. Civ.
Prac. & Rem. Code Ann. § 14.003(a). A claim is
frivolous or malicious for purposes of the chapter if the
claim has no arguable basis in law or in fact. Id.
review a dismissal under chapter fourteen for abuse of
discretion, but we review de novo the legal question
of whether a claim has an arguable basis in law. Hamilton
v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.-Fort Worth
2010, no pet.). We affirm the dismissal if it was proper
under any legal theory. Id.
raises two points on appeal. In his first point, he argues
that although Verboski claimed in his motion to dismiss that
Read's suit was a defamation suit, in fact his suit
pertains to a wrongful conviction "based on crimes . . .
Verboski committed in [a] false report to peace officers and
perjured testimony at trial." In his second point, he
argues that "[the p]rosecution has no authority to grant
absolute immunity to allow crimes to be committed, rather
[it] has ...