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Read v. Verboski

Court of Appeals of Texas, Second District, Fort Worth

July 6, 2017

DONALD W. READ APPELLANT
v.
TIMOTHY W. VERBOSKI APPELLEE

         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-275890-14

          PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

          OPINION

          MARK T. PITTMAN JUSTICE

         Appellant Donald W. Read appeals from the trial court's dismissal of his suit brought against Appellee Timothy W. Verboski, [1] a 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.

         I. Background

         On the 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.

         Read 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).

         In 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.

         The trial court granted the motion without a hearing and dismissed Read's case. Read now appeals.

         II. Dismissal of Frivolous or Malicious Suits under Chapter 14 of the Civil Practice and Remedies Code

         Read 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. § 14.003(b).

         We 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.

         III. Discussion

         Read 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 ...


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