Eric Drake v. Seana Willing ( 2015 )

ACCEPTED
03-14-00665-CV
4732856
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/1/2015 3:43:15 PM
JEFFREY D. KYLE
CLERK
Case No. 03-14-00665-CV
______________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT 4/1/2015 3:43:15 PM
AUSTIN, TEXAS JEFFREY D. KYLE
______________________________ Clerk
ERIC DRAKE
Plaintiff - Appellant,
vs.
KASTL LAW FIRM P.C., ET. AL.
Defendants - Appellees.
______________________________
On Appeal from the 200th District Court, Travis County
Case No. D-1-GN-14-001215
______________________________
BRIEF OF APPELLEE
______________________________
KEN PAXTON SCOT M. GRAYDON
Attorney General of Texas Texas State Bar No. 24002175
Assistant Attorney General
CHARLES E. ROY Office of the Attorney General
First Assistant Attorney General General Litigation Division
P.O. Box 12548
JAMES E. DAVIS Capitol Station
Deputy Attorney General for Defense Austin, Texas 78711-2548
Litigation Phone (512) 463-2120
Fax (512) 320-0667
ANGELA V. COLMENERO
Chief, General Litigation Division ATTORNEYS FOR APPELLEE SEANA
WILLING
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Appellee herein provides this Court with the following list of parties and names
and addresses of all trial and appellate counsel.
Appellant: Eric Drake, Pro Se
PO Box 833688
Richardson, Texas 75083
Appellee: Seana Willing
Attorney for Appellee: Scot M. Graydon
Assistant Attorney General
General Litigation Division
P.O. Box 12548
Austin, Texas 78711-2548
512-463-2120
512-330-0667 Fax
scot.graydon@texasattorneygeneral.gov
The following were parties at the Trial Court level, but are not involved in
the appeal:
Defendant: Kastl Law P.C.
Attorney for Defendant: Kristina Kastl
Kastl Law P.C.
4144 N. Central Expressway, Suite 300
Dallas, Texas 75204
214-821-0230
214-821-0231 Fax
kkastl@kastllaw.com
Defendant: Carl Ginsberg
ii
Attorney for Defendant: David Harris
Assistant Attorney General
Law Enforcement Defense Division
P.O. Box 12548
Austin, Texas 78711-2548
512-475-3042
512-370-9410 Fax
david.harris@texasattorneygeneral.gov
Defendant: Vikki Ogden
Attorney for Defendant: Frank Waite
411 Elm Street, Ste 500
Dallas, Texas 75202
214-653-7358
214-653-6134 Fax
frank.waite@dallascounty.org
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iv
TABLE OF AUTHORITIES .................................................................................. vii
BRIEF OF APPELLEE SEANA WILLING .............................................................1
STATEMENT OF THE CASE ..................................................................................2
A. Nature of the case .......................................................................................2
B. Course of the Proceedings ..........................................................................2
C. Trial Court’s Disposition of the Case.........................................................4
STATEMENT REGARDING ORAL ARGUMENT ...............................................5
ISSUES PRESENTED (RESTATED) ......................................................................6
STATEMENT OF FACTS ........................................................................................8
1. OBJECTION……………..………………………………………………8
2. FACTS…………………………………………………………………...8
SUMMARY OF THE ARGUMENT ......................................................................12
ARGUMENT AND AUTHORITIES ......................................................................17
A. STANDARD OF REVIEW......................................................................17
B. DETERMINATION MUST BE AFFIRMED DUE TO WAIVER.........18
iv
ISSUE ONE........................................................................................................20
ISSUE TWO .......................................................................................................22
1. Appellant’s Lack of Standing .................................................................24
a. Appellant has Waived Argument Related to Lack of Standing ......25
b. Plaintiff Lacks Standing to Bring Claims against Ms. Willing…..26
(1). No Injury Caused By Ms. Willing……………………..27
(2). No Justiciable Issue Regarding Ms. Willing…………..28
2. Ms. Willing has Sovereign Immunity which Bars Appellant’s Claims 29
a. Appellant Waived Argument Related to Sovereign Immunity…..29
b. Sovereign Immunity Bars Claims Against Ms. Willing…………30
(1). No Individual Capacity Claims Against Ms. Willing....30
(2). No Waiver Applies to Claims Against Ms. Willing…..33
ISSUE THREE ...................................................................................................34
ISSUE FOUR .....................................................................................................37
ISSUE FIVE .......................................................................................................37
1. Good Cause to Hear the Matter, Despite the Motion to Recuse ............38
2. Alleged Procedural Defect Does Not Bar the Motion ............................42
ISSUE SIX .........................................................................................................44
v
ISSUE SEVEN ...................................................................................................44
ISSUE EIGHT ....................................................................................................45
ISSUE NINE ......................................................................................................49
ISSUE TEN ........................................................................................................51
ISSUE ELEVEN ................................................................................................52
PRAYER ..................................................................................................................56
CERTIFICATE OF SERVICE ................................................................................58
CERTIFICATE OF COMPLIANCE .......................................................................59
vi
TABLE OF AUTHORITIES
Cases
Amir–Sharif v. Quick Trip Corp.,
416 S.W.3d 914 (Tex.App.–Dallas 2013, no pet.)................................... 17, 18, 19
Andrade v. NAACP of Austin,
345 S.W.3d 1 (Tex. 2011) .............................................................................. 34, 53
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) .................................................................................... 32, 33
Barron v. State of Tex. Att'y Gen.,
108 S.W.3d 379 (Tex.App.-Tyler 2003) ...............................................................38
Bell Atl. Corp. v. Twombly,
550 U.S. 544, (2007) .............................................................................................32
Britton v. Texas Dept. of Criminal Justice,
95 S.W.3d 676 (Tex. App.-Houston [1st Dist.] 2002, no pet.) ...................... 18, 20
Brown v. Hearthwood II Owners Ass'n, Inc.,
201 S.W.3d 153 (Tex. App.-Houston [14th Dist.] 2006, pet. denied)..................25
Brown v. Todd,
53 S.W.3d 297 (Tex. 2001) ...................................................................................27
Chambers v. Equity Bank, SSB,
319 S.W.3d 892 (Tex. App.—Texarkana 2010) ............................................ 36, 43
City of Keller v. Wilson,
168 S.W.3d 802 (Tex.2005) ........................................................................... 17, 45
City of Paris v. Abbott,
360 S.W.3d 567 (Tex. App. - Texarkana 2011, pet. denied) ......................... 34, 53
vii
Cleveland Constr., Inc. v. Levco Constr., Inc.,
359 S.W.3d 843, 852 n. 1 (Tex. App.-Houston [1st Dist.] 2012, pet. dism'd) .....25
Clifton v. Walters,
308 S.W.3d 94 (Tex. App.-Fort Worth 2010).......................................................50
Consol. Petroleum Partners, I, LLC v. Tindle,
168 S.W.3d 894 (Tex. App.-Tyler 2005) ..............................................................25
Dir. of Dept. of Agric. & Env't v. Printing Indus. Assoc. of Tex.,
600 S.W.2d 264 (Tex. 1980) .......................................................................... 34, 53
Dishner v. Huitt–Zollars, Inc.,
162 S.W.3d 370 (Tex.App. - Dallas, 2005) ..........................................................17
Drum v. Calhoun,
299 S.W.3d 360 (Tex.App.-Dallas 2009, pet. denied)....................... 42, 49, 52, 53
General Serv. Comm'n v. Little–Tex Insul. Co.,
39 S.W.3d 591 n. 1 (Tex.2001) ................................................................ 25, 36, 43
GoDaddy.com, LLC v. Toups,
429 S.W.3d 752 (Tex.App.–Beaumont, April 10, 2014, pet. denied) ..................32
Green v. Texas Dep't of Protective & Regulatory Servs.,
25 S.W.3d 213 (Tex. App.-El Paso, 2000) ...........................................................18
Gross v. Carroll,
339 S.W.3d 718 (Tex.App.—Houston [1st Dist.] 2011, no pet.) ...... 18, 20, 25, 29
Gulf Marine Warehouse Co. v. Towers,
858 S.W.2d 556 (Tex. App.-Beaumont 1993, writ denied) ..................................36
In re Hourani,
20 S.W.3d 819 (Tex.App.—Houston [14th Dist.] 2000)......................................21
In re Kim,
No. 03-09-00113-CV, 2009 WL 1653856 *2 (Tex.App.-Austin June 2, 2009,
orig. proceeding) ............................................................................................ 24, 50
viii
In re Potts,
357 S.W.3d 766 (Tex.App.-Houston [14th Dist.] 2011, orig. proceeding) ..........42
In re Potts,
399 S.W.3d 685 (Tex.App.Houston [14th Dist.] 2013, orig. proceeding) ...........42
Lawton v. State,
913 S.W.2d 542 (Tex. Crim. App.1995)...............................................................25
Leonard v. Abbott,
171 S.W.3d 451 (Tex. App.-Austin 2005) ............................................................29
Manbeck v. Austin Indep. Sch. Dist.,
381 S.W.3d 528 (Tex., August 31, 2012) .............................................................54
Mann v. Denton County,
14 WL 5089189 *3 (Tex.App.-Fort Worth, October 09, 2014) ...........................39
Mayhew v. Town of Sunnyvale,
964 S.W.2d 922 (Tex. 1998) .................................................................................28
Nivens v. City of League City,
245 S.W.3d 470, 475 n. 6 (Tex. App.-Houston [1st Dist.] 2007) ............ 19, 26, 30
Perry v. Cohen,
285 S.W.3d 137 (Tex.App.–Austin 2009, pet. denied) ........................................17
Plotkin v. IP Axess Inc.,
407 F.3d 690 (5th Cir. 2005).................................................................................33
Reata Constr. Corp. v. City of Dallas,
197 S.W.3d 371 (Tex. 2006) .................................................................................54
Rivera v. State,
981 S.W.2d 336 (Tex. App.-Houston [14th Dist.] 1998, no pet.) ........................35
Rodarte v. Investeco Group, L.L.C.,
299 S.W.3d 400, (Tex. App. – Houston [14 Dist.], 2009) ....................................27
ix
Smith v. State,
959 S.W.2d 1 (Tex. App.-Waco 1998) .................................................................25
Spiegner v. Wallis,
80 S.W.3d 174 (Tex.App.-Waco 2002) ................................................................38
State Bar v. Gomez,
891 S.W.2d 243 (Tex. 1994) .................................................................................28
Texas Dep't of State Health Servs. v. Balquinta,
429 S.W.3d 726 (Tex. App.-Austin 2014, pet. filed) ...........................................33
Wakefield v. British Medical Journal Publishing Group, Ltd.,
449 S.W.3d 172, (Tex. App.–Austin, September 19, 2014, no pet.) ....................35
Watkins v. Pearson,
795 S.W.2d 257 (Tex. App.-Houston [14th Dist.] 1990, writ denied) .......... 40, 41
Wild Rose Rescue Ranch v. City of Whitehouse,
373 S.W.3d 211 (Tex.App.-Tyler 2012, no pet.) ..................................................46
Wilson v. State,
977 S.W.2d 379 (Tex.Crim.App.1998).................................................................35
Wooley v. Schaffer,
447 S.W.3d 71 (Tex. App—Houston [14th Dist.] 2014, pet. filed) .....................32
Statutes
TEX. CIV. PRAC. & REM. CODE § 11.051....................................................................2
TEX. CIV. PRAC. & REM. CODE § 11.052 ............................................... 16, 47, 49, 50
TEX. CIV. PRAC. & REM. CODE § 11.054 ......................................................... passim
TEX. CIV. PRAC. & REM. CODE § 11.054 (3) ............................................................19
TEX. CIV. PRAC. & REM. CODE § 11.054(1)(A), (B), and (C)..................................19
x
TEX. GOVT. CODE § 74.053(b) ................................................................ 3, 11, 13, 21
TEX. GOVT. CODE § 74.053(d) .......................................................................... 21, 22
TEX. GOVT. CODE § 74.056 ............................................................................... 34, 35
Rules
TEX. R. APP. P. 33.1(a) ................................................................................ 48, 52, 53
TEX. R. APP. P. 33.1(a)(1)(A)...................................................................... 19, 26, 30
TEX. R. APP. P. 38.1 .................................................................................... 36, 43, 54
TEX. R. APP. P. 38.1(f) .............................................................................................18
TEX. R. APP. P. 38.1(f, h) .........................................................................................25
TEX. R. APP. P. 38.1(h) .............................................................................................25
TEX. R. CIV. P. 166a (c) ...........................................................................................51
TEX. R. CIV. P. 18a (f)(2)(A) ............................................................................ passim
TEX. R. CIV. P. 18a and 18b .....................................................................................37
TEX. R. CIV. P. 18a(a)(3) ..........................................................................................41
TEX. R. CIV. P. 18a(f) ...............................................................................................17
Tex. R. Civ. P. 18b(a) ..............................................................................................36
TEX. R. CIV. P. 21.....................................................................................................52
TEX. R. CIV. P. 63 .....................................................................................................31
TEX. R. CIV. P. 91a ...................................................................................................32
xi
TEX. R. CIV. P. 91a.1 ................................................................................................32
TEX. R. EVID. 103(a)(1)............................................................................................49
TRAVIS COUNTY DISTRICT COURT LOCAL RULE 3.9 ................................................35
xii
Case No. 03-14-00665-CV
______________________________
IN THE COURT OF APPEALS FOR THE
THIRD JUDICIAL DISTRICT
AUSTIN, TEXAS
______________________________
ERIC DRAKE
Plaintiff - Appellant,
vs.
KASTL LAW FIRM P.C., ET. AL.
Defendants - Appellees.
______________________________
On Appeal from the 200th District Court, Travis County
Case No. D-1-GN-14-001215
______________________________
BRIEF OF APPELLEE SEANA WILLING
______________________________
TO THE HONORABLE COURT OF APPEALS:
COME NOW SEANA WILLING (“Ms. Willing”), Appellee herein, and
files this Brief and in support thereof would respectfully show this Court the
following:
1
STATEMENT OF THE CASE
A. Nature of the case
The underlying case was a suit for damages and declaratory and injunctive
relief against various defendants. [CR 51]. The Order on appeal is the Order
Declaring Plaintiff a Vexatious Litigant. [CR 547].
B. Course of the Proceedings
On April 28, 2014, Eric Drake (“Appellant”) filed an Original Complaint.
[CR 5]. Appellant brought claims against Ms. Willing in her official capacity only,
alleging claims pursuant to 42 U.S.C. § 1983. [CR 38, ¶ 92(b) and 39, ¶ 97].
Ms. Willing filed her answer and a plea to the jurisdiction on July 28, 2014,
asserting Appellant’s lack of standing and her own sovereign immunity as
jurisdictional barriers to Appellant’s litigation. [CR 224]. Ms. Willing filed her
Motion to Declare Eric Drake a Vexatious Litigant on August 5, 2014, within 90
days of filing an answer, as required by CIV. PRAC. & REM. CODE § 11.051. [CR
1
For clarity and brevity, references to the Clerk’s Record will appear as “CR [page no.]”, in this
case, signifying the first volume of the Clerk’s Record, at page 5. As multiple Reporters Records
are present in this case, they will be designated by volume number before “RR” with page
number notations, with a colon separating the page number from line numbers, and will look as
follows: “[volume no.] RR [page no.]” For example, 3 RR 14:5-11 means the third volume of
the Reporter’s Record, page 14, lines 5 to 11. There are four volumes of the Reporter’s Record,
with a fifth volume (repeating the Volume 1), which is a hearing before Judge Gus Strauss on
August 19, 2014. References to that transcript will be made with the volume identifier “S” for
Strauss, for example: “S RR [page no.]”
2
263]. Ms. Willing provided Appellant with a Notice of Hearing on August 5 and
7, 2014, with the hearing date of August 19, 2014. [CR 508 and 517].
Appellant filed both a Nonsuit and a Motion to Recuse on August 7, 2014.
[CR 521 and 527]. The Order of Nonsuit was signed August 14, 2014. [CR 544].
Appellant filed a Response in opposition to the Motion to Declare Eric
Drake a Vexatious Litigant on August 19, 2014 at 8:07 a.m. [CR 556].
On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant
was assigned to Judge Gus Strauss. [S RR 4:1-62]. When Appellant objected to
the assignment of the case to the visiting Judge Strauss [S RR 5:2-11], Judge
Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S
RR 5:17-6:1].
Following this objection, still on August 19, 2014, the Motion to Declare
Eric Drake a Vexatious Litigant was assigned to Judge Charles Ramsay for a
hearing. [RR 1]. Plaintiff again objected, despite the statutory limit on his ability
to object3. [3 RR 10:18-11:4]. This was brought to Judge Ramsay’s attention.
[3RR 13:9-12]. Judge Ramsay proceeded with the hearing and granted the Motion.
[3 RR 59:10-11 and CR 547].
2
Again, as the transcript for the hearing before Judge Strauss is also identified as Volume 1, the
volume identifier for references to this transcript are preceded by the letter “S” rather than a
volume number.
3
See TEX. GOVT. CODE § 74.053(b).
3
C. Trial Court’s Disposition of the Case
On August 19, 2014, the Trial Court granted Ms. Willing’s Motion to
Declare Eric Drake a Vexatious Litigant. [3 RR 59:10-11 and CR 547].
Appellant filed post-hearing written responses to the Motion to Declare Eric
Drake a Vexatious Litigant on August 28 and September 8, 2014. [CR 564 and
572].
On September 15, 2014, Appellant sought a writ of mandamus with this
Court. In re Eric Drake, Cause No. 03-14-00583-CV, in the Third Court of
Appeals, Texas. The writ was denied.
On October 17, 2014, Appellant filed a Notice of Appeal. [CR 642].
4
STATEMENT REGARDING ORAL ARGUMENT
Appellee requests oral argument only to the extent that this Court believes
that such oral argument would assist the Court in determining the contested matters
of law as presented in the record.
5
ISSUES PRESENTED (RESTATED)
ISSUE ONE
Judge Charles Ramsay did not abuse his discretion when he did not recuse
himself from hearing the August 19, 2014 because Plaintiff objected based on
his status as an assigned judge.
ISSUE TWO
The Trial Court did not abuse its discretion by finding that Appellant had no
reasonable probability of prevailing against Ms. Willing.
ISSUE THREE
Whether or not Warren Vavra had the proper legal authority to appoint
Judge Charles Ramsay to rule on Seana Willing August 19, 2014 hearing.
ISSUE FOUR
Issues Regarding Judges David Phillips and Stephen Yelenosky are Moot.
ISSUE FIVE
The Trial Court Did not Abuse its Discretion in Hearing this Matter Despite
the Motion to Recuse.
ISSUE SIX
Judge Charles Ramsay did not abuse his discretion in hearing the August 19,
2014 based on his status as an assigned judge.
ISSUE SEVEN
The Trial Court did not abuse its discretion in signing the order declaring the
Appellant as a vexatious litigant.
ISSUE EIGHT
Appellant’s Right to Due Process Was Not Violated.
6
ISSUE NINE
The Trial Court did not abuse its discretion in signing the August 19 Order
rather than rule on other matters.
ISSUE TEN
The Trial Court did not abuse its discretion in signing the August 19, 2014
order declaring Appellant vexatious because Ms. Willing's motion to declare
Drake as a vexatious litigant was not procedurally defective.
ISSUE ELEVEN
The Trial Court did not abuse its discretion in determining that sovereign
immunity demonstrated that there was no reasonable probability that
Appellant would prevail in the litigation against Ms. Willing.
7
STATEMENT OF FACTS
1. OBJECTION: Ms. Willing objects to consideration of the Statement of
Facts in Appellant’s Brief [Appellant’s Brief, pages 6-12] because it does not
comply with the requirements of Tex. R. App. P. 38.1(g) in that no portion of it
cites any reference to the record, and because it contains argument.
2. FACTS: Ms. Willing is the Executive Director of the Texas Commission
on Judicial Conduct, a state official. [3 RR 10:10-12]. Eric Drake (“Appellant”)
made a complaint to Ms. Willing4 regarding a judge. [CR 6, ¶ 2]. Appellant was
dissatisfied with Ms. Willing’s investigation 5. [CR 6, ¶ 2].
On April 28, 2014, Appellant filed an Original Complaint. [CR 5]. Appellant
brought claims against Ms. Willing in her official capacity only, alleging claims
pursuant to 42 U.S.C. § 1983. [CR 38, ¶ 92(b) and 39, ¶ 97]. Appellant seems to
suggest he has some constitutional right to the outcome of an administrative
investigation of a judge. [CR 39, ¶ 97].
Ms. Willing filed her Motion to Declare Eric Drake a Vexatious Litigant on
August 5, 2014. [CR 263].
4
Although the Complaint refers to Seana Williams, Ms. Willing assumes this refers to her.
5
It is unclear which actions Appellant alleges were performed by Seana Willing and which
actions are alleged of Seana Williams, who is a different person identified in Appellant’s
Complaint. [CR 6, ¶ 2, in which Appellant seeks relief against “Kastl Law firm, Vikki Ogden,
Seana Williams, CRBC (for its failure to investigate a serious crime because of the Plaintiffs
race) and against Seana Willing…”].
8
Prior to filing the instant lawsuit, Appellant had been found to be a vexatious
litigant in federal court. [CR 287: “the Court agrees with the Magistrate Judge that
Plaintiff is a vexatious litigant.”]. That court entered a pre-filing order against
Appellant. [CR 288].
Prior to filing the instant lawsuit, Appellant had also been found to be a
vexatious litigant in state court. Appellant was declared a vexatious litigant in the
44th Judicial District Court of Dallas County, Texas in 2004. [CR 499]. In a
separate litigation in the 44th Judicial District Court of Dallas County, Texas,
Appellant was again declared a vexatious litigant between 2009 and 2010. [CR
464-465]. Appellant appealed this determination, but was unsuccessful on appeal.
[CR 467].
Nothing in the record indicates that any of these orders has been overturned
or vacated6.
In the seven years before the filing of that motion, Appellant commenced,
prosecuted, or maintained as a pro se litigant at least five litigations other than in
small claims court that had been finally determined adversely to him. [CR 267-
277 and 283-500]. During that time, he had commenced, prosecuted, or
6
Other orders have also been entered against Appellant declaring him a vexatious litigant, and
some of them have been overturned on appeal. However, nothing in the record suggests that the
Orders discussed supra have been vacated.
9
maintained as a pro se litigant at twenty five litigations that were demonstrated to
the Trial Court. [3 RR 25:18-26:6; 4 RR 14-509].
On August 8, 2014, after Ms. Willing filed her Motion to Declare Eric Drake
a Vexatious Litigant, but before the hearing on the matter, Appellant sent letters to
state officials and apparently the media. [4 RR 11-12]. In those letters, Appellant
threatens to file lawsuits against numerous state officials and their spouses to avoid
any immunity that a state official has. [4 RR 11-12]. These state officials include
three District Court judges in Travis County, then-Attorney General Greg Abbott,
and counsel for Ms. Willing. [4 RR 11-12]. Appellant threatens to call news
conferences and place advertisements in newspapers all across the country. [4 RR
11-12]. Appellant made these threats after a District Court judge correctly
determined that a discovery matter could not be heard, as, by statute, litigation was
stayed for everything other than consideration of the vexatious litigant matter. [2
RR 9:10-19].
On August 7, 2014, Appellant filed a Motion for Nonsuit [CR 527] and also
a Motion to Recuse, in which he complained solely about the ruling of the judge.
[CR 521, ¶ 4]. In his Motion to Recuse, Appellant names numerous specific
judges. [CR 522, ¶ 4]. None of these judges had any involvement with the
vexatious litigant matter.
10
On August 19, 2014 at 8:07 a.m., Appellant filed a Response in opposition
to the Motion to Declare Eric Drake a Vexatious Litigant. [CR 556].
On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant
was assigned to Judge Gus Strauss. [S RR 4:1-6]. At that time, Appellant objected
to the assignment of the case to the visiting Judge Strauss. [S RR 5:2-11]. Judge
Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S
RR 5:17-6:1].
Following this objection, still on August 19, 2014, the Motion to Declare
Eric Drake a Vexatious Litigant was assigned to Judge Charles Ramsay for a
hearing. [RR 1]. Plaintiff again objected, despite the statutory limit on his ability
to object7. [3 RR 10:18-11:4]. This was brought to Judge Ramsay’s attention.
[3RR 13:9-12]. Judge Ramsay proceeded with the hearing and granted the Motion.
[3 RR 59:10-11 and CR 547].
Appellant filed post-hearing written responses to the Motion to Declare Eric
Drake a Vexatious Litigant on August 28 and September 8, 2014. [CR 564 and
572].
7
See TEX. GOVT. CODE § 74.053(b).
11
SUMMARY OF THE ARGUMENT
The decision of the Trial Court must be affirmed because Appellant has
failed to attack all independent grounds that support an adverse ruling. Appellant
has not disputed that he lacked standing to bring claims against Ms. Willing, which
independently satisfied the requirement that Ms. Willing prove that Appellant has
no reasonable probability of success against her. Further, Appellant has not
disputed either of the two independent findings regarding Appellant’s vexatious
history of litigation, either of which satisfies the remaining requirement to declare
Appellant a vexatious litigant. Because these independent reasons satisfy the
requirement of TEX. CIV. PRAC. & REM. CODE § 11.054, the determination of the
Trial Court must be affirmed.
In his Brief, Appellant presents 11 issues, but the majority of them present
issues not presented to the Trial Court and not preserved for appeal, or reiterations
of arguments in his other issues.
Appellant’s First Issue argues that Judge Ramsay should not have heard the
case because Appellant objected to him as a visiting judge. Appellant had
previously objected to a visiting judge for the hearing on August 19, 2014, and by
statute, he may only do so once. Judge Ramsay was correct that he was able to
hear this matter. Appellant’s argument is based on a statute that is no longer valid
12
and a case that interpreted the previous statute. The current statute is clear that
only one such objection is allowed per side. TEX. GOVT. CODE § 74.053(b).
Appellant’s Second Issue argues that Ms. Willing did not demonstrate that
Appellant had no reasonable probability of prevailing against Ms. Willing. The
reasons that Appellant had no probability of prevailing against Ms. Willing were
jurisdictional, and Appellant never presented any argument or authority on the
subject in the Trial Court, and may not raise his arguments for the first time on
appeal. Moreover, Appellant’s lack of standing and Ms. Willing’s sovereign
immunity preclude Appellant’s claims, so there was no chance he could prevail
against Ms. Willing.
Appellant’s Third Issue argues that the Court Administrator did not have the
legal authority to assign Judge Ramsay to hear this matter. Appellant never
presented any argument or authority on the subject in the Trial Court, and may not
raise his arguments for the first time on appeal. Further, even in his Brief it is
inadequately briefed and should not be considered. Finally, as a matter of law,
there is a presumption that the judge was duly appointed and in regular discharge
of his duties. Appellant cites to nothing in the record to support his assertions, let
alone overcome that presumption.
Appellant’s Fourth Issue argues that Appellant asks this Court to vacate
orders of recusal and referral by two judges who did not hear any matter in this
13
litigation. This issue is wholly moot, and has no effect on the order that Appellant
is a vexatious litigant.
Appellant’s Fifth Issue argues that Judge Charles Ramsay could not
entertain a hearing on Ms. Willing’s Motion to Declare Eric Drake a Vexatious
Litigant, pursuant to a motion to recuse that was defective on its face and did not
seek to recuse Judge Ramsay, and that a procedural defect related to an unspecified
Rule bars consideration of the Motion to Declare Eric Drake a Vexatious Litigant.
Even if Judge Ramsay he had been named in the motion to recuse, Judge Ramsay
determined that good cause existed to hear the matter, authorized by law pursuant
to TEX. R. CIV. P. 18a (f)(2)(A). With respect to the unspecified procedural defect,
a failure to confer before the filing of a motion, this matter was inadequately
briefed, and Appellant has never even suggested any harm or prejudice to him,
particularly in light of the fact that counsel for Ms. Willing conferred with
Appellant about the hearing on the matter some 12 days before Appellant appeared
at the hearing.
Appellant’s Sixth Issue is a repackaging of his First Issue. As such, a
summary of the argument is listed supra.
Appellant’s Seventh Issue argues that counsel for Ms. Willing committed
fraud on the Trial Court to secure the Order Declaring Plaintiff a Vexatious
Litigant. The alleged fraud was counsel for Ms. Willing informing the Trial Court
14
that while he did not confer with Appellant prior to filing the motion, he did confer
with Appellant in person on August 7, 2014 regarding the hearing and confirming
that Appellant was opposed to the motion. There is nothing in the record that
suggests that the conferring played any part in Judge Ramsay entering the order
that is appealed.
Appellant’s Eighth Issue argues that Appellant’s right to due process was
violated because he was prevented from calling witnesses at the hearing.
Appellant never attempted to call witnesses, even though he had previously asked
the court for a hearing so that he could call live witnesses. Appellant never
attempted to call witnesses related to the vexatious litigant motion, never asked for
a continuance, and never explained how witness testimony would operate to cure
the jurisdictional defect of his lack of standing or change his pleadings in such a
way as to allow him to evade sovereign immunity. Indeed, no witness could
provide testimony to fix defects in Appellant’s pleading. Accordingly, there was
no violation of Appellant’s due process rights.
Appellant’s Ninth Issue argues that the Trial Court abused its discretion by
ruling on the Motion to Declare Eric Drake a Vexatious Litigant before addressing
motions to transfer venue, special exceptions, or other matters. As a matter of law,
the Trial Court was required to consider the Motion to Declare Eric Drake a
15
Vexatious Litigant before any other matters. TEX. CIV. PRAC. & REM. CODE
§11.052.
Appellant’s Tenth Issue argues that procedural defects preclude the order
declaring him a vexatious litigant. He reiterates his argument about the Rule
requiring parties to confer and argument about his motion to recuse judges that
does not include Judge Ramsay. Then, for the first time on appeal, Appellant
argues that he had inadequate time to respond to the motion, despite having 12
days of notice and filing multiple post-hearing responses and not asking for a
continuance. Although he suggests he was surprised that the hearing would take
place on August 19, the record conclusively proves that he filed a written response
to the motion that was the subject of the hearing at 8:07 a.m. on the date of the
hearing.
Appellant’s Eleventh Issue argues that Ms. Willing was not protected by
sovereign immunity. Appellant suggests that he brought claims against Ms.
Willing in her individual capacity, although there is nothing in his pleadings to
support this. Further, despite participating in the hearing and filing numerous
responses to the Motion to Declare Eric Drake a Vexatious Litigant, Appellant has
never made the suggestion that he intended claims against Ms. Willing other than
her official capacity.
16
ARGUMENT AND AUTHORITIES
A. STANDARD OF REVIEW
The standard for review of Appellant’s issues is an abuse of discretion
standard. See Amir–Sharif v. Quick Trip Corp., 416 S.W.3d 914, 918 (Tex.App.–
Dallas 2013, no pet.) (review of a trial court's declaration that a litigant is vexatious
uses an abuse of discretion standard); see also See TEX. R. CIV. P. 18a(f); Dishner
v. Huitt–Zollars, Inc., 162 S.W.3d 370, 374 (Tex.App. - Dallas, 2005)(review of an
order denying a motion to recuse for an abuse of discretion). A trial court abuses
its discretion when it acts without reference to any guiding rules and principles.
Perry v. Cohen, 285 S.W.3d 137, 142 (Tex.App.–Austin 2009, pet. denied).
A trial court's findings under chapter 11 of the Texas Civil Practice and
Remedies Code may be reviewed for legal and factual sufficiency because section
11.054 requires the trial court to make evidentiary findings. Id. (internal citations
omitted). When examining a legal sufficiency challenge, an appellate court
reviews the evidence in the light most favorable to the challenged finding and
indulges every reasonable inference that would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex.2005). The ultimate test for legal sufficiency is whether
the evidence would enable a reasonable and fair-minded fact finder to reach the
verdict under review. Id., at 827. The fact finder is the sole judge of witness
credibility and the weight to give to the testimony. See Id., at 819.
17
B. DETERMINATION MUST BE AFFIRMED DUE TO WAIVER
Generally, when an appellant fails to attack all independent grounds that
support an adverse ruling, the ruling must be affirmed. See Gross v. Carroll, 339
S.W.3d 718, 723 (Tex.App.—Houston [1st Dist.] 2011, no pet.) (citing Britton v.
Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.]
2002, no pet.)). An argument not raised in Appellant's brief and has been waived.
See TEX. R. APP. P. 38.1(f); see also Green v. Texas Dep't of Protective &
Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso, 2000).
A court may find a plaintiff a vexatious litigant if the defendant shows: (1)
there is not a reasonable probability the plaintiff will prevail in the litigation; and
(2) there is other evidence regarding previous litigations by the defendant. TEX.
CIV. PRAC. & REM. CODE § 11.054; see also Amir-Sharif v. Quick Trip Corp., 416
S.W.3d 914, 919 (Tex. App.–Dallas, November 25, 2013). Other evidence
involving previous litigation may include evidence that the plaintiff, in the seven
year period immediately preceding the date the defendant makes the motion under
section 11.051, has commenced, prosecuted, or maintained as a pro se litigant at
least five litigations other than in small claims court that have been (A) finally
determined adversely to the plaintiff; (B) permitted to remain pending at least two
years without having been brought to trial or hearing; or (C) determined by a trial
or appellate court to be frivolous or groundless under state or federal laws or rules
18
of procedure. TEX. CIV. PRAC. & REM. CODE § 11.054(1)(A), (B), and (C); see
also Amir-Sharif, 416 S.W.3d at 919. In the alternative, a court may find a
plaintiff to be a vexatious litigant if the plaintiff has previously been declared to be
a vexatious litigant by a state or federal court in an action or proceeding based on
the same or substantially similar facts, transition, or occurrence. TEX. CIV. PRAC.
& REM. CODE § 11.054 (3).
In the instant case, Appellant does not attack all independent grounds that
support the Trial Court’s determination that he is a vexatious litigant. Specifically,
Appellant does not contest the Trial Court’s determination that there was no
reasonable probability that Appellant would prevail in his litigation against Ms.
Willing on the basis that he lacks standing to bring claims against her. [CR 554].
As discussed infra, Appellant has also waived any review of this matter by failing
to raise it before the Trial Court., and may not dispute it for the first time on
appeal. TEX. R. APP. P. 33.1(a)(1)(A) (to preserve a complaint for appellate
review, the record must show that appellant made the complaint to the trial court
and stated the grounds for ruling with sufficient specificity that the trial court was
made aware of the complaint); see also Nivens v. City of League City, 245 S.W.3d
470, 475 n. 6 (Tex. App.-Houston [1st Dist.] 2007) (finding that plaintiffs failed to
preserve their argument against granting the City's plea to the jurisdiction when
plaintiffs did not raise the issue before the trial court).
19
Additionally, Appellant does not attack any of the evidence regarding
previous litigations by the Appellant. The Trial Court made the following specific
findings:
The Court also FINDS that Eric Drake has in the seven-year
period immediately preceding the date the defendant makes the
motion under Section 11.051, has commenced, prosecuted, or
maintained at least five litigations as a pro se litigant other than in a
small claims court that have been finally determined adversely to Eric
Drake.
The Court also FINDS that Eric Drake has previously been
declared to be a vexatious litigant by a state or federal court in an
action or proceeding based on the same or substantially similar facts,
transition, or occurrence.
[CR 554 (emphasis in the original)].
Because these undisputed matters are sufficient to meet Ms. Willing’s
burden under TEX. CIV. PRAC. & REM. CODE § 11.054, the ruling of the Trial Court
must be affirmed. See Gross, 339 S.W.3d at 723; Britton, 95 S.W.3d at 681.
ISSUE ONE
Judge Charles Ramsay did not abuse his discretion when he did not recuse
himself from hearing the August 19, 2014 because Plaintiff objected based on
his status as an assigned judge.
Appellant’s first issue centers on whether Judge Charles Ramsay was
obligated to recuse himself because Plaintiff verbally objected to Judge Ramsay
hearing the case. [3 RR 10:18-11:4]. In support of his position, Appellant cites a
case, statute that is outdated and no longer says what he claims.
20
TEX. GOVT. CODE § 74.053(d) does not authorize an unlimited number of
objections to a visiting judge. TEX. GOVT. CODE § 74.053(d)8. Instead, the number
of times a part may object to the assignment of a judge is explicitly limited to one.
TEX. GOVT. CODE § 74.053(b). “The limits section 74.053 imposes were designed
to give precedence to court administration and to restrict attempts at forum
shopping that inevitably result when litigants are given even a small measure of
control over determining who will hear their case.” In re Hourani, 20 S.W.3d 819,
825 (Tex.App.—Houston [14th Dist.] 2000).
On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant
was assigned to Judge Gus Strauss. [S RR 4:1-6]. At that time, Appellant objected
to the assignment of the case to the visiting Judge Strauss. [S RR 5:2-11]. Judge
Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S
RR 5:17-6:1].
After Plaintiff objected once to a visiting judge, the case was assigned to
visiting Judge Charles Ramsay to hear the matter. [RR 1]. Plaintiff again
objected, despite the statutory limit on his ability to object. [3 RR 10:18-11:4].
This was brought to Judge Ramsay’s attention. [3RR 13:9-12].
8
That section of the statute reads as follows: “(d) An assigned judge or justice who was
defeated in the last primary or general election for which the judge or justice was a candidate for
the judicial office held by the judge or justice may not sit in a case if either party objects to the
judge or justice.” TEX. GOVT. CODE § 74.053(d).
21
Plaintiff has identified nothing in the record to suggest that Judge Ramsay
was “defeated in the last primary or general election for which the judge or justice
was a candidate for the judicial office held by the judge or justice” as required by
TEX. GOVT. CODE § 74.053(d). Moreover, even if that statute had not changed 13
years ago, Appellant identifies no evidence in the record to support his suggestion
that Judge Ramsay was a “former judge,” rather than a “retired judge” or any other
status of judge.
Accordingly, Judge Ramsay was under no obligation to refuse to hear the
matter before him on August 19, 2014, and his order is valid.
ISSUE TWO
The Trial Court did not abuse its discretion by finding that Appellant had no
reasonable probability of prevailing against Ms. Willing.
The statute titled “Criteria for Finding Plaintiff a Vexatious Litigant” begins
as follows: “A court may find a plaintiff a vexatious litigant if the defendant
shows that there is not a reasonable probability that the plaintiff will prevail in the
litigation against the defendant…” TEX. CIV. PRAC. & REM. CODE § 11.054.
In his second issue, Appellant suggests that Appellee did not demonstrate
that there is not a reasonable probability that Appellant would prevail in the
22
litigation against Ms. Willing 9. Appellant bases his arguments on a lack of
evidence admitted in the August 19, 2014 hearing.
This argument ignores the actual reason that the Trial Court identified in
making its determination. [CR 549-550 and 554]. The Trial Court found that there
was no reasonable probability of success against Ms. Willing based on Appellant’s
own jurisdictional defects in Appellant’s pleadings. [CR 264-265; 3 RR 26:21-
27:15]. Ms. Willing originally brought these defects to the Court’s attention and to
Appellant’s attention in her Plea to the Jurisdiction. [CR 224-233].
In entering its order, the trial court made the following Finding:
… Eric Drake does not allege or produce any evidence to establish a
waiver of the sovereign immunity of Defendant Seana Willing with
respect to his claims, nor does Eric Drake have standing to bring any
cause of action against Defendant Seana Willing.
Accordingly, after reviewing the record and all the pleadings in the
case, this Court FINDS that there IS NOT a reasonable probability
that Eric Drake will prevail.
[CR 554 (emphasis in the original)].
Accordingly, Appellant must demonstrate that the trial court abused its
discretion in finding that 1) Appellant did not have standing to bring claims against
9
Although Appellant argues that Ms. Willing must demonstrate that Appellant had no
reasonable probability that he would prevail against any defendant, Appellant cites no legal
authority to support such an argument, and the statute does not say what Appellant argues. TEX.
CIV. PRAC. & REM. CODE § 11.054.
23
Ms. Willing, and 2) that Ms. Willing’s sovereign immunity did not bar Appellant’s
claims.
1. Appellant’s Lack of Standing
Appellant was put on notice that his claims against Ms. Willing were barred
by sovereign immunity on or about July 29, 2014, when Ms. Willing filed her Plea
to the Jurisdiction. [CR 224, 227-229]. As discussed infra, Appellant has waived
any appellate issue regarding lack of standing because he did not raise it in his
Appellant’s Brief, nor did he raise any argument before the trial court. He may not
do so now, as a matter of law. Even if he had preserved such an issue, his
pleadings make it clear that Appellant lacks standing to bring claims against Ms.
Willing.
As this Court has previously determined, if a plaintiff lacks standing to
assert his complaints, that plaintiff has no reasonable probability of victory. In re
Kim, No. 03–09–00113–CV, 2009 WL 165385610 *2 (Tex. App.-Austin June 2,
2009, orig. proceeding) (citations omitted).
10
This case is publicly available online on March 24, 2015, at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=6e546e3a-de7c-4c45-a09c-
8d4f887f3102&coa=coa03&DT=Opinion&MediaID=a621d6b8-16bf-472c-8f91-44060e575a35.
That plaintiff’s lack of standing demonstrating no reasonable probability of victory is on page 4-
5 of that document.
24
The determination of the trial court that there is not a reasonable probability
that Appellant would prevail in the litigation against Ms. Willing must be affirmed,
as a matter of law. See Gross v. Carroll, 339 S.W.3d at 723.
a. Appellant has Waived Argument Related to Lack of Standing
“The [appellant's] brief must state concisely all issues or points presented for
review.” TEX. R. APP. P. 38.1(f, h). Failure to state an issue or cite authority in
support of an issue waives the consideration of that issue on appeal. See General
Serv. Comm'n v. Little–Tex Insul. Co., 39 S.W.3d 591, 598 n. 1 (Tex.2001); see
also Cleveland Constr., Inc. v. Levco Constr., Inc., 359 S.W.3d 843, 852 n. 1 (Tex.
App.-Houston [1st Dist.] 2012, pet. dism'd) (failure to cite authority or advance
substantive analysis waives appellate issue); Brown v. Hearthwood II Owners
Ass'n, Inc., 201 S.W.3d 153, 161 (Tex. App.-Houston [14th Dist.] 2006, pet.
denied) (same); Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894,
900 (Tex. App.-Tyler 2005) (citing TEX. R. APP. P. 38.1(h)); see also Smith v.
State, 959 S.W.2d 1, 17 (Tex. App.-Waco 1998) (citing Lawton v. State, 913
S.W.2d 542, 558 (Tex. Crim. App.1995).
Appellant’s Brief is wholly silent on the issue of Appellant’s standing to
bring claims against Ms. Willing. He has presented no argument or authority to
suggest that he established such standing.
25
Moreover, Appellant never disputed the fact that he lacked standing, despite
appearing at the hearing on August 19, 2014, and filing three separate written
responses to the Motion to Declare Eric Drake a Vexatious Litigant. [3 RR 1; CR
556, 564, and 572]. He may not wholly ignore the basis for the Trail Court’s
decision but dispute it for the first time on appeal. TEX. R. APP. P. 33.1(a)(1)(A)
(to preserve a complaint for appellate review, the record must show that appellant
made the complaint to the trial court and stated the grounds for ruling with
sufficient specificity that the trial court was made aware of the complaint); see also
Nivens, 245 S.W.3d at 475 n. 6 (plaintiffs failed to preserve their argument against
granting the City's plea to the jurisdiction when plaintiffs did not raise the issue
before the trial court).
Accordingly, he has waived any consideration of his standing, and may not
now dispute that there was no reasonable probability Appellant would succeed in
his litigation against Ms. Willing based on lack of standing.
Even if he had raised arguments related to standing, those arguments must
fail, as a matter of law, as discussed infra.
b. Plaintiff Lacks Standing to Bring Claims against Ms. Willing
Regardless of the capacity in which Ms. Willing was sued, Appellant did not
have standing to bring claims against her as a matter of law. Accordingly, the trial
court did not abuse its discretion when it determined that Appellant did not have a
26
reasonable likelihood that he would prevail against Ms. Willing.
Under Texas law, a party has standing to bring suit if (1) it has suffered a
distinct injury, and (2) there exists a real controversy that will be determined by the
judicial determination sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001).
This second component of standing refers to presentation of a justiciable issue.
Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, (Tex. App. – Houston [14
Dist.], 2009).
(1). No Injury Caused By Ms. Willing
Appellant did not suffer a distinct injury at the hands of Ms. Willing. In his
Complaint, he does not identify any actual injury in connection with Ms. Willing.
Appellant is critical of her investigation after he made a complaint against a judge
[CR 6, ¶ 2, and 38, ¶ 92(b)] and makes the conclusory assertion that by doing so,
Ms. Willing “deprived the Plaintiff of his rights privileges under the constitution
and due process,” [CR 38, ¶ 92(b)]. Appellant identifies the following rights he
opines were violated: “the Plaintiff (sic) First Amendment Rights have been
violated, his Equal Protection Rights have been violated, his Due Process clause.”
[CR 39, ¶ 97].
Conclusory assertions notwithstanding, Appellant has never identified any
actual injury to a constitutionally protected right in connection with Ms. Willing.
Despite his opinion, Appellant does not identify any legally cognizable injury to
27
his “First Amendment Rights,” or articulate any way in which Ms. Willing violated
his “Equal Protection Rights,” particularly in light of the fact that Appellant
presented no factual allegation that his race had anything to do with Ms. Willing’s
investigation. Plaintiff has not alleged that his complaints against members of the
judiciary were treated any differently than similar claims made by other citizens
against other judges or justices. See Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 939 (Tex. 1998). Appellant’s conclusory assertions alone are insufficient.
(2). No Justiciable Issue Regarding Ms. Willing
To present a justiciable issue, a lawsuit must involve a real controversy that
will be resolved by the judicial relief sought. See e.g., State Bar v. Gomez, 891
S.W.2d 243, 245-46 (Tex. 1994).
While Appellant is correct that under some circumstances, an official in her
official capacity may be subject to declaratory and injunctive relief, that is not the
case in this particular litigation. In this case, Appellant wanted the trial court to
judicially review the outcome of an investigation by the State Commission on
Judicial Conduct [CR 40, second (c)], but identified no legal authority to suggest
judicial review is appropriate, or even within the jurisdiction of the trial court:
“Eric Drake does not identify any legal authority that allows for a
judicial review of such an investigation, nor does he explain how this
Court should have jurisdiction to evaluate the judicial conduct of
another district judge, when such jurisdiction is provided under
Article V, sec. 1-a (l0) of the Texas Constitution to reside with the
28
Commission on Judicial Conduct.”
[CR 550]. Thus, the relief sought is not available, and Appellant does not have
standing to bring claims against Ms. Willing as a matter of law.
2. Ms. Willing has Sovereign Immunity which Bars Appellant’s Claims
As discussed infra, Appellant has waived any appellate issue regarding Ms.
Willing’s sovereign immunity because he did not raise any waiver or abrogation of
her immunity before the Trail Court. He may not do so now, as a matter of law.
Even if he had preserved such an issue, his pleadings make it clear that Appellant’s
claims against Ms. Willing are, as a matter of law, barred by sovereign immunity.
This Court has previously held that an official’s entitlement to sovereign
immunity meets the “burden of showing that there was no reasonable probability
that [a plaintiff] would prevail.” Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex.
App.-Austin 2005).
Accordingly, the determination of the trial court that there is not a
reasonable probability that Appellant would prevail in the litigation against Ms.
Willing must be affirmed, as a matter of law. See Gross, 339 S.W.3d at 723.
a. Appellant Waived Argument Related to Sovereign Immunity
Appellant was put on notice that his claims against Ms. Willing were barred
by sovereign immunity on or about July 29, 2014, when Ms. Willing filed her Plea
to the Jurisdiction. [CR 224, 229-231]. Appellant never disputed the fact that his
29
claims were barred by sovereign immunity, despite appearing at the hearing on
August 19, 2014, and filing three separate written responses to the Motion to
Declare Eric Drake a Vexatious Litigant. [3 RR 1; CR 556, 564, and 572]. He
may not dispute it for the first time on appeal. TEX. R. APP. P. 33.1(a)(1)(A);
Nivens, 245 S.W.3d at 475 n. 6.
b. Sovereign Immunity Bars Claims Against Ms. Willing
At no point does Appellant suggest to the Trail Court that sovereign
immunity does not bar his claims against Ms. Willing. Now, for the first time on
appeal, he makes this argument based on two newly raised positions: 1) that he
also brought claims against Ms. Willing in her individual capacity, and 2) that his
injunctive and declaratory relief are not barred by sovereign immunity. Neither is
accurate, and because neither was even raised at the Trial Court, Appellant may not
now argue that the Trial Court abused its discretion by disregarding such
arguments.
(1). No Individual Capacity Claims Against Ms. Willing
In his Complaint, it is clear that Appellant brought his claims against Ms.
Willing in her official capacity only. [CR 37, ¶ 92: “Seana Willing in her official
capacity”). Appellant never made any reference in his Complaint to any capacity
of Ms. Willing other than her official capacity. [CR 37, ¶ 92]. Appellant does not
cite to anything in the record to support his suggestion that Ms. Willing was sued
30
in her individual capacity. Conversely, Appellant was on notice that his Complaint
only sought claims against Ms. Willing in her official capacity in Ms. Willing’s
Plea to the Jurisdiction [CR 224 and Fn 1], and again in her Motion to Declare Eric
Drake a Vexatious Litigant [CR 263], and again in the hearing on this matter [3 RR
26:21-27:15].
Appellant never made any suggestion in the hearing before the trial court, or
in his response to the Motion to Declare Eric Drake a Vexatious Litigant that he
intended to bring suit against Ms. Willing in her individual capacity. [CR 556,
564, and 572]. He may not do so now, without any support from the Complaint he
actually filed, and his Amended Responses should be disregarded as untimely and
filed in violation of TEX. R. CIV. P. 63, as Appellant does not demonstrate that he
received, or even sought, permission to file these documents, which were not filed
within seven days of the hearing. [CR 547, 564 11, and 572].
Even if this Court interprets the Complaint and interjects an individual
capacity claim where none was stated, it would not show an abuse of discretion by
the Trial Court, nor would it establish a reasonable probability Appellant would
succeed in his litigation against Ms. Willing. In the instant case, Appellant alleged
11
It is noteworthy that the only time Appellant suggested any individual capacity claim against
Ms. Willing, he utterly failed to identify any portion of his Complaint that made such a claim
[CR 565, ¶ 4], and that he made this suggestion for the first time 21 days after he filed his
Nonsuit of all claims [CR 527] and 9 days after the Trial Court hearing on this matter. [Compare
CR 564 with 547].
31
no facts in his Complaint that would entitle him to the outcome of his choice in any
investigation conducted by the Commission on Judicial Conduct, or that would
suggest that his dissatisfaction equates to the loss of some property interest in the
outcome of an investigation.
If Appellant had made any timely suggestion that he brought claims against
Ms. Willing In her individual capacity, the lack of pleading of any prima facie
claim against Ms. Willing would simply result in her moving for dismissal under
TEX. R. CIV. P. 91a, as Appellant’s claims against Ms. Willing would have no basis
in law. “A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought.” TEX. R. CIV. P. 91a.1. Courts look to case law interpreting
federal rule of civil procedure 12(b)(6) in making their determination on a motion
under Rule 91a. See, e.g., Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App—
Houston [14th Dist.] 2014, pet. filed), GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex.App.–Beaumont, April 10, 2014, pet. denied) (“[w]hile not
identical, Rule 91a is analogous to Rule 12(b)(6)…”). To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations,
accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
32
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “We do not accept as true conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP
Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.”).
(2). No Waiver Applies to Claims Against Ms. Willing
Sovereign immunity generally extends to Texas state officials who are sued
in their official capacities, because that is merely “another way of pleading an
action against the entity of which [the official] is an agent.” Texas Dep't of State
Health Servs. v. Balquinta, 429 S.W.3d 726, 750 (Tex. App.-Austin 2014, pet.
filed) Consequently, to invoke the district court's subject-matter jurisdiction to
adjudicate their claims, Plaintiff has the burden of pleading or presenting facts that
would demonstrate his claims either come within a legislative waiver of immunity
or avoid implicating immunity in the first instance. Id.
Ms. Willing demonstrated to the Court that Appellant’s claims were barred
by sovereign immunity [CR 229-231, 264-265 and 3 RR 26:21-27:15]. Appellant
never provided the Trial Court with any argument or case law to suggest a waiver
or abrogation of Ms. Willing’s immunity. To the extent that Appellant suggests for
the first time on appeal that his declaratory and injunctive relief is not barred by
33
sovereign immunity, he cannot overcome the hurdle identified to the Trial Court
regarding his failure to plead a viable constitutional claim against Ms. Willing.
[CR 23-231]. Because Appellant did not plead a viable constitutional claim, he
may not rely on any waiver of Ms. Willing’s sovereign immunity. See generally
Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (official retained
immunity from suit unless plaintiffs pleaded “viable claim”); Dir. of Dept. of
Agric. & Env't v. Printing Indus. Assoc. of Tex., 600 S.W.2d 264, 265 (Tex. 1980);
City of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App. - Texarkana 2011, pet.
denied) (noting that governmental defendant remains immune from suit absent
plaintiff's pleading of viable claim). Accordingly, the Trial Court did not abuse its
discretion by determining that there was no reasonable probability that Appellant
would prevail in the litigation against Ms. Willing. [CR 554]. This determination
should be affirmed.
ISSUE THREE
Whether or not Warren Vavra had the proper legal authority to appoint
Judge Charles Ramsay to rule on Seana Willing August 19, 2014 hearing.
In his third issue, Appellant complains that the hearing in question was heard
before a judge whom he had not attempted to recuse, and that Warren Vavra does
not have the legal authority to assign a case to be heard in a court to which a
visiting judge has been assigned, apparently suggesting that the assignment was
improper, pursuant to TEX. GOVT. CODE § 74.056. A procedural irregularity in the
34
assignment of an otherwise qualified former judge may not be objected to for the
first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 (Tex.Crim.App.1998).
An objection of this nature must be made in the trial court to preserve error, if any,
and allow appropriate corrective action to be taken, if necessary. See Id. at 380-81.
In the absence of such an objection, a court of appeals will presume that a visiting
judge was duly appointed and in regular discharge of his duties under section
74.056. See Rivera v. State, 981 S.W.2d 336, 341 (Tex. App.-Houston [14th Dist.]
1998, no pet.) (citations omitted).
At the time of the hearing, Appellant did not object to Judge Ramsay’s
authority to hear cases based on improper assignment under TEX. GOVT. CODE §
74.056. Accordingly, he may not do so now, and this Court should presume that
Judge Ramsay was duly appointed and in regular discharge of his duties under
section 74.056. Rivera, 981 S.W.2d at 341.
Further, Appellant makes his argument without any citation to the record
showing that Mr. Vavra performed any action that was improper 12, or that Judge
Ramsay was not properly assigned to the 200th Judicial District Court of Travis
12
To the extent that Appellant suggests that the Court Administrator may not assign a matter to
a judge, “most civil cases in Travis County are assigned to a central docket, and each hearing in
the case may be heard by any judge.” Wakefield v. British Medical Journal Publishing Group,
Ltd., 449 S.W.3d 172, (Tex. App.–Austin, September 19, 2014, no pet.). Further, the Local
Rules lay out the different methods of Notice provided to parties regarding Visiting Judge
Assignment and states the proper procedure for objecting. TRAVIS COUNTY DISTRICT COURT
LOCAL RULE 3.9.
35
County, Texas on August 19, 2014. In the absence of arguments or citations to the
record or relevant legal authority, this portion of Appellant's argument is
inadequately briefed and should not be considered. See TEX. R. APP. P. 38.1; see
also, e.g., Chambers v. Equity Bank, SSB, 319 S.W.3d 892, 900 (Tex. App.—
Texarkana 2010); Little–Tex Insul. Co., 39 S.W.3d at 598 n. 1.
To the extent that Appellant suggests that he may bring this argument at any
time, he would be incorrect there as well. While disqualification of a judge
pursuant to Rule 18b(a) may be raised for the first time on appeal13, Appellant has
provided no evidence or argument that Judge Ramsay served as a lawyer in the
matter in controversy, or a lawyer with whom the judge previously practiced law
served during such association as a lawyer concerning the matter; Judge Ramsay
had an individual or fiduciary interest in the subject matter in controversy; or that
any of the parties are related to Judge Ramsay by affinity or consanguinity within
the third degree. Tex. R. Civ. P. 18b(a).
To summarize, Appellant has failed to preserve this issue for appellate
review, has not adequately briefed it even if it were preserved, and identifies
nothing in the record to support any impropriety in the assignment of Judge
Ramsay to the 200th District Court on the date in question, or any impropriety in
13
See, e.g., Gulf Marine Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex. App.-Beaumont
1993, writ denied).
36
the administrative process assigning this matter to that court on August 19, 2014.
This issue must be denied and the decision of the Trial Court affirmed.
ISSUE FOUR
Issues Regarding Judges David Phillips and Stephen Yelenosky are Moot.
In his Fourth Issue, Appellant asks this Court to vacate orders of recusal and
referral by two judges who did not hear any matter in this litigation. [Appellant’s
Brief, pages 30-33]. In light of the Nonsuit that Appellant filed and in light of the
fact that Judge Ramsay entered the Order which Appellant appeals [CR 547-555; 3
RR 1 and 59:10-11], and not Judges Phillips or Yelenosky, there are no matters
remaining that would be affected by the vacating of orders entered by Judges
Phillips and Yelenosky, rendering the topic moot.
ISSUE FIVE
The Trial Court Did not Abuse its Discretion in Hearing this Matter Despite
the Motion to Recuse.
In his Fifth Issue, Appellant makes two unrelated arguments and mashes
them together. First, Appellant argues that Judge Charles Ramsay could not
entertain a hearing on Ms. Willing’s Motion to Declare Eric Drake a Vexatious
Litigant, pursuant to TEX. R. CIV. P. 18a and 18b. Second, Appellant argues that a
procedural defect bars consideration of the Motion to Declare Eric Drake a
Vexatious Litigant. Ms. Willing will address each separately:
37
1. Good Cause to Hear the Matter, Despite the Motion to Recuse
In making this argument, Appellant ignores the fact that Judge Ramsay was
not the subject of any pending motion for recusal, and in his presentation of the
Rule, Appellant intentionally omits the legal basis under which Judge Ramsay
entered his order, attempts to recuse other judges notwithstanding.
“A party who fails to file a motion which complies with Rule 18a waives the
right to complain of a judge's refusal to recuse himself.” Spiegner v. Wallis, 80
S.W.3d 174, 180 (Tex.App.-Waco 2002). Because Appellant never filed a motion
to recuse Judge Ramsay, as a matter of law, Judge Ramsay was not obligated to
recuse himself. See Barron v. State of Tex. Att'y Gen., 108 S.W.3d 379, 383
(Tex.App.-Tyler 2003) (holding that trial judge was not obligated to recuse or refer
until party filed formal timely, written, and verified motion to recuse); see also
Spiegner, 80 S.W.3d at 180.
In is uncontested by either party that on August 7, 2014, Appellant filed a
motion to recuse specific judges in Travis County, and that on that same date,
Appellant filed a Motion to Nonsuit. [CR 521 and 527]. It is uncontested by either
party that Judge Ramsay was not listed among the judges Appellant sought to
recuse. [CR 522].
As a threshold matter, Appellant has not presented any legal basis for the
position that a judge who is not the subject of a motion to recuse must take no
38
action in a case. Even if Judge Ramsay were named in the Motion to Recuse, TEX.
R. CIV. P. 18a(f)(2)(A) provides that a judge subject to a motion to recuse may hear
a matter under certain conditions.
In presenting Rule 18a “in pertinent part,” Appellant blatantly misrepresents
the Rule, stating that Rule 18a(f)(2)(A) says: “Motion Filed Before Evidence
Offered at Trial. If a motion is filed before evidence has been offered at trial, the
respondent judge must take no further action in the case until the motion has been
decided.” [Appellant’s Brief, page 34]. In using a period after the word
“decided,” Appellant seeks to mislead this Court into thinking that the sentence
ends there. In fact, that section of the Rule reads as follows:
(2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. If a motion
is filed before evidence has been offered at trial, the respondent
judge must take no further action in the case until the motion
has been decided, except for good cause stated in writing or
on the record.
Rule 18a (f)(2)(A)(emphasis added).
The “good cause” required by rule 18a concerns a justification for the
challenged judge to act at a specific time rather than waiting for the appropriate
judge to act at another time. See Mann v. Denton County, 14 WL 5089189 *314
(Tex.App.-Fort Worth, October 09, 2014)(pet. denied).
14
This case is publicly available online on March 27, 2015, at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=828ada3e-02fb-4572-967c-
39
Ms. Willing presented the Trial Court with case law that is on point in this
matter, Watkins v. Pearson, 795 S.W.2d 257, 260 (Tex. App.-Houston [14th Dist.]
1990, writ denied). {3 RR 15:12-21]. In Watkins v. Pearson, the 14th Court of
Appeals upheld a trial court’s orders on summary judgment and sanctions despite a
pending motion to recuse, because the court found that good cause existed that was
stated in the order, specifically “the motion for recusal was found to be untimely
filed, not in conformity with the rules, and brought without sufficient cause and
solely for the purpose of delay.” Id. Because the record contained substantial
information which could support he judge’s conclusions as to delay, his finding of
“good cause” was not an abuse of discretion. Id.
In the instant case, Ms. Willing presented her good cause to the Trial Court
in the hearing. [3 RR 15:22-23:4 and 4 RR 11-12]. There were two motions on
file to declare Appellant a vexatious litigant. [CR 61 and 263]. Appellant was
notified that the hearings on these motions were scheduled for August 19, 2014.
[CR 199, 508 and 517]. On August 7, 2014, Appellant filed a Motion to Nonsuit
and a motion to recuse specific judges in Travis County. [CR 521 and 527]. Even
though the motion to recuse was based on the following: “The defendants filed a
motion to quash and the trial court has granted the defendants motions…” which
Appellant disagreed with. [CR 521, ¶ 4]. Because of this, Appellant alleges that
68c63d87039b&coa=coa02&DT=Opinion&MediaID=18981ecb-5ea5-45ed-904b-
7a8ead6b8b9d. The description of “good cause” is on page 7 of that document.
40
he could not get a fair and impartial hearing from any judge in Travis County. [CR
522, ¶¶ 3-4]. As with the Watkins motion, the motion to recuse in this case was
not in conformity with the rules, and was in fact defective on its face as the sole
complaint was the ruling of a judge. TEX. R. CIV. P. 18a(a)(3) (stating that such a
motion “must not be based solely on the judge's rulings in the case…” Like in
Watkins, it was brought “without sufficient cause.” Watkins, 795 S.W.2d at 260.
As in the Watkins case, Appellant’s Motion to Recuse was filed solely for the
purpose of delay, to allow the Trial Court’s plenary jurisdiction to expire 15 before
considering Appellant as a vexatious litigant. The Trial Court could certainly infer
such a purpose from the filing of the Nonsuit and Motion to Recuse on the same
date. Indeed, in his Motion for Nonsuit, Appellant makes specific reference to the
“motions to determine the Plaintiff as a vexatious litigate (sic)…” [CR 527, ¶ 1].
Allowing Appellant to evade consideration of the Motion to Declare Eric Drake a
Vexatious Litigant by allowing him to use the motion to recuse to preclude action
until Trial Court lost plenary jurisdiction would violate the purpose of the
vexatious litigant statute, which is to prevent such abuse of the judicial system by
pro se litigants 16. Moreover, the Trial Court was presented with additional
15
The Motion for Non-Suit began the 30 day plenary jurisdiction of the trial court. [CR 547, ¶
3].
16
In enacting Chapter 11 of the Texas Civil Practice and Remedies Code, Texas legislature
sought to strike a balance between Texans' right of access to their courts and the public interest
in protecting defendants from those who abuse the Texas court system by systematically filing
41
evidence of Appellant’s bad faith in his vexatious filings, when Appellant sent
letters threatening litigation against the spouses of state officials solely for the
purpose of avoiding the immunity afforded to such officials. [4 RR 11-12; 3 RR
20:17-21:24].
Appellant did not refute any of these matters demonstrated by Ms. Willing in
her hearing, nor did he refute them in any of his subsequent written responses to
her motion. [CR 556, 564, and 572].
These arguments, and the related documents and filings, were presented to
the Trial Court. The Trial Court considered the documents, filings, and all
arguments of parties, and found that good cause existed, entering that finding and
the basis for it in writing on the face of the order, in compliance with TEX. R. CIV.
P. 18a(f)(2)(A).
2. Alleged Procedural Defect Does Not Bar the Motion
Appellant argues again that the Court Administrator could not assign Judge
Ramsay to hear the matter. [Appellant’s Brief, page 40 and 45]. That argument is
addressed in response to Issue Three, supra. Appellant then argues that the failure
lawsuits with little or no merit. Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex.App.-Dallas 2009,
pet. denied). Additionally, purpose of the statute is to make it possible for courts to control their
dockets rather than permitting courts to be burdened with repeated filings of frivolous and
malicious litigation by litigants without hope of success while, at the same time, providing
protections for litigants' constitutional rights to open courts when they have genuine claims that
can survive the scrutiny of the administrative judge and the posting of security to protect
defendants. In re Potts, 399 S.W.3d 685, 688 (Tex.App.Houston [14th Dist.] 2013, orig.
proceeding) citing In re Potts, 357 S.W.3d 766, 768 (Tex.App.-Houston [14th Dist.] 2011, orig.
proceeding).
42
to confer with Appellant prior to the filing of the Motion to Declare Eric Drake a
Vexatious Litigant precluded the Trial Court from considering the matter on
August 19, 2014. [Appellant’s Brief, page 45-46].
Appellant does not identify what specific Local Rule or Texas Rule of Civil
Procedure would indicate such an argument. He does not provide any case law
supporting such an argument. In the absence of arguments or citations to the
record or relevant legal authority, this portion of Appellant's argument is
inadequately briefed and should not be considered. See TEX. R. APP. P. 38.1; see
also, e.g., Chambers, 319 S.W.3d at 900; Little–Tex, 39 S.W.3d at 598 n. 1. Ms.
Willing is not placed on sufficient notice to identify what Rule is alleged to have
been violated.
Significantly, Appellant has never articulated any prejudice or harm he
suffered as a result or any alleged procedural defect. Not at the hearing, and not in
his Appellant’s Brief. Appellant does not inform this Court that he asked for a
hearing to address claims he was a vexatious litigant. [CR 177, ¶ 13].
The record is clear that counsel for Ms. Willing attempted to cure any
potential defect by conferring with Appellant on August 7, 201417, ensuring that he
17
Later in his Appellant’s Brief [page 60], Appellant identifies two typographical errors in the
Certificate of Conference in suggesting counsel for Ms. Willing committed “perjury”: the use of
“p.m.” instead of “a.m.” and the date August 6 instead of August 7. Both typographical errors do
appear on that pleading. [CR 518]. At the hearing, counsel clarified any confusion by indicating
that he spoke with Appellant on August 7. [3 RR 45:15-25].
43
was opposed to the Motion to Declare Eric Drake a Vexatious Litigant and that he
was aware of the hearing on August 19, 2014, and would be in attendance. [CR
517-18]. This was in addition to the other Notice of Hearing provided to
Appellant. [CR 508]. This was all brought to the attention of the Trial Court.
[See, e.g., 3 RR 44:25-45:25]. Nothing in Appellant’s Brief supports his
suggestion that a Travis County Local Rule precluded Judge Ramsay from
conducting the hearing on August 19, 2014, or that it was an abuse of discretion
based on a Local Rule.
ISSUE SIX
Judge Charles Ramsay did not abuse his discretion in hearing the August 19,
2014 based on his status as an assigned judge.
In his Sixth Issue, Appellant repeats the argument from Issue One. Ms.
Willing has addressed that supra.
ISSUE SEVEN
The Trial Court did not abuse its discretion in signing the order declaring the
Appellant as a vexatious litigant.
In his Seventh Issue, Appellant argues that counsel for Ms. Willing
committed fraud on the Trial Court to secure the Order Declaring Plaintiff a
Vexatious Litigant. Appellant’s sole allegation of fraud is related to statements
that counsel for Ms. Willing conferred with Appellant on August 7, 2014, as
discussed supra. Appellant then leaps to the unsupported conclusion that this
44
means that the Order in question was obtained by fraud. Appellant does not
present any case law or authority to support his argument. The Order does not
indicate that Judge Ramsay relied on the conferring of August 7 in making his
ruling on August 19, 2014. [CR 547-55].
With respect to Appellant’s allegations that the representation that counsel
conferred with him on August 7, 2014 is false, Appellant is incorrect. The Trial
Court heard the arguments and statements of parties in the hearing. As fact finder,
The Trial Court is the sole judge of witness credibility and the weight to give to the
testimony and reviewed the pleadings on file. City of Keller, 168 S.W.3d at 819.
There is nothing to indicate that this was a factor in making his decision to enter
the Order.
Nothing in the record indicates that the Order was signed based on attempts
to confer. Accordingly, the Order should be affirmed.
ISSUE EIGHT
Appellant’s Right to Due Process Was Not Violated.
In his Eighth Issue, Appellant argues that his right to due process was
violated because he was not allowed to take discovery depositions before the
hearing on the Motion to Declare Eric Drake a Vexatious Litigant.
As a threshold matter, a distinction is needed between Appellant’s failure to
call witnesses at his hearing and his attempt to take discovery depositions.
45
Appellant specifically asked for an evidentiary hearing regarding (among other,
unspecified things) the suggestion that he was a vexatious litigant. [CR 217-218].
Appellant expressly indicated that he intended to call live witnesses at such a
hearing, and not rely on deposition testimony. [CR 217, ¶ 2]. It is clear from
Appellant’s own filing that he knows the difference between a live witness called
at a hearing and a deposition. When a party indicates that it plans to call a witness
in a hearing, but never actually attempts to call the witness, that party may not
complain about the lack of witness testimony on appeal. Wild Rose Rescue Ranch
v. City of Whitehouse, 373 S.W.3d 211, 217–18 (Tex.App.-Tyler 2012, no pet.)
(“To complain on appeal that the trial court erroneously excluded evidence, [the
appellant] must have offered the evidence during trial and obtained an adverse
ruling from the trial court.”).
Appellant appeared at the hearing on August 19, 2014 18. [3 RR 2]. At 8:06
a.m. on that date, Appellant filed “Plaintiffs Response to Defendants Attempts to
18
Although Appellant seeks to suggest to this Court that he was unaware of the hearing to
declare him a vexatious litigant on August 19, 2014, [Appellant’s Brief, page 30: “To Appellant's
surprise, Appellee Willing motion to declare him as a vexatious litigate was still going to be
heard…”], this is demonstrably false, as Appellant judicially admitted that he was aware of the
hearing on that date. [CR 556, ¶ 1]. He was not so surprised that he was unable to file a typed
response at 8:07 a.m. on that date, some 4 ½ hours before the entry of the order. Compare CR
556 with 547.
46
Declare Him as a Vexatious Litigate.” [CR556]. He did not seek a continuance 19.
Appellant made no attempt to call a single witness to testify.
Rather than actually attempt to call a single witness, Appellant argued on the
record that he was prevented from calling witnesses because parties had previously
moved to quash discovery depositions 20. [3 RR 31:8-22].
There is nothing in the record to suggest that Appellant filed a motion to
compel testimony related to the hearing he requested [CR 217-218] and that was
noticed [CR 508 and 517] regarding his status as a vexatious litigant. By
Appellant’s own judicial admission, the only attempt to compel the deposition
testimony was in response to venue matters and NOT to compel testimony
regarding his status as a vexatious litigant. [CR 219]. By Appellant’s own
admission, “Plaintiff has requested these depositions in support of his opposition to
defendant's motions to transfer venue” [CR 220, ¶ 5] (emphasis added). The
hearing on Appellant’s motion to compel could not go forward, as all actions other
than those related to the vexatious litigant motion were stayed, pursuant to TEX.
CIV. PRAC. & REM. CODE §11.052 [2 RR 12:14-22; CR 256-57 and 520].
19
Appellant states that he filed a motion for continuance with respect to the vexatious litigant
hearing, but the record does not support his statement. The only continuance sought by
Appellant was related to a motion to transfer venue. [CR 206]. At the hearing, Appellant did not
seek a continuance. [3 RR].
20
Although Appellant leads the Court to believe he sought only “very limited discovery by oral
depositions” [CR 207, ¶ 6], he was actually seeking to depose each of the noticed parties for
“about 6 hours.” [CR 165, 167, 169 and 171].
47
Further, Appellant does not inform the Trial Court of any testimony he
sought to present at the hearing, had any witnesses been called. While he suggests
that they might have presented evidence to show there was a reasonable probability
he would prevail in his litigation against Ms. Willing [Appellant’s Brief, page 62],
this argument ignores the actual basis for Judge Ramsay determining there was no
such probability.
In reality, no witness testimony would have been able to cure the
jurisdictional defects in his pleadings, establish Appellant’s standing to bring
claims against Ms. Willing, or waive the sovereign immunity afforded to Ms.
Willing. [CR 548 and 554].
As a side note, Appellant peripherally mentions objections to exhibits and
the ruling on those objections. [Appellant’s Brief, page 63]. The Court did, in
fact, make rulings on his objections. [3 RR 26:2-6]. The ruling was correct. The
objection to exhibits in the hearing [3 RR 26:1-5] is not specific regarding the basis
for objection, nor is it specific about which particular exhibit is alleged to be
objectionable. Appellant did not identify any Rule of Evidence on which he was
relying, nor did he attempt to identify any way in which the exhibits were alleged
to be defective. Because he did not make specific objections to specific exhibits,
nor did he articulate the basis for a specific objection, his objections are not
preserved for appeal. See TEX. R. APP. P. 33.1(a) (record must show timely,
48
specific objection and ruling to preserve error for appeal); TEX. R. EVID. 103(a)(1)
(timely objection must appear of record stating specific ground of objection).
To summarize, although Appellant had previously indicated his intent to
“call between 15 and 20 witnesses to put on the stand and cross-examine them”
[CR 217, ¶ 2] at the hearing, he did not call a single witness, did not seek a
continuance or to compel any witness for that hearing, and has never explained
what witness testimony could create standing for him to bring claims against Ms.
Willing or provide his pleadings with sufficient basis to demonstrate a waiver of
her sovereign immunity.
Appellant’s right to due process was not violated. This Court should affirm
the Order at issue in this appeal.
ISSUE NINE
The Trial Court did not abuse its discretion in signing the August 19 Order
rather than rule on other matters.
In his Ninth Issue, Appellant argues that the Trial Court abused its discretion
by ruling on the Motion to Declare Eric Drake a Vexatious Litigant before
addressing motions to transfer venue, special exceptions, or other matters.
As a matter of law, the Trial Court was required to consider the Motion to
Declare Eric Drake a Vexatious Litigant before any other matters. TEX. CIV. PRAC.
& REM. CODE §11.052. This includes discovery not directly related to the
vexatious litigant matter. See, e.g., Drum v. Calhoun, 299 S.W.3d 360, 369 (Tex.
49
App.-Dallas 2009, pet. denied) (holding that motions to compel discovery were
properly stayed, pursuant to TEX. CIV. PRAC. & REM. CODE §11.052). The hearing
on Appellant’s motion to compel related to a motion to transfer venue could not go
forward, as all actions other than those related to the vexatious litigant motion were
stayed, pursuant to [2 RR 12:14-22; CR 256-57 and 520]. Indeed, the court could
have entertained Ms. Willing’s plea to the jurisdiction only after the vexatious
litigant matter. TEX. CIV. PRAC. & REM. CODE §11.052.
Appellant argues that the Trial Court had to consider its jurisdiction prior to
entering the August 19 Order. However, courts may enter orders finding a litigant
vexatious and later address defects in subject matter jurisdiction. See generally
Clifton v. Walters, 308 S.W.3d 94 (Tex. App.-Fort Worth 2010). Indeed, this
Court has upheld vexatious litigant declarations based in relevant part upon lack of
subject matter jurisdiction because of lack of standing. See In re Kim, No. 03–09–
00113–CV, 2009 WL 1653856.
The Trial Court could have entertained the plea to the jurisdiction after the
vexatious litigant matter was resolved, but Appellant nonsuited all of his claims
[CR 527], so the Trial Court never ruled on the plea.
With respect to Appellant’s argument regarding his motion to recuse, the
Trial Court found that good cause existed to go forward on August 19, 2014,
entering that finding and the basis for it in writing on the face of the order, in
50
compliance with TEX. R. CIV. P. 18a(f)(2)(A). Further analysis of this is covered
in Issue Five, supra.
ISSUE TEN
The Trial Court did not abuse its discretion in signing the August 19, 2014
order declaring Appellant vexatious because Ms. Willing's motion to declare
Drake as a vexatious litigant was not procedurally defective.
In his Tenth Issue, Appellant argues that three alleged procedural defects
precluded Judge Ramsay from entering the Order on August 19.
First, Appellant reargues his point about conferring, while again not
identifying any prejudice he suffered, or citing any specific Rule which was
alleged to have been violated. This matter is more fully addressed in Issue Five,
supra.
Second, Appellant apparently believes that he was not provided time to
adequately respond to the Motion to Declare Eric Drake a Vexatious Litigant. In
support of this, he argues that he had only 12 days of notice. [Appellant’s Brief,
page 69]. Appellant was served with a Notice of Hearing on August 5, and again
on August 7, 2014. [CR 508 and 517]. The record thus shows Appellant received
notice between 12-14 days before the hearing on August 19, 2014. Appellant
argues that summary judgment hearings must have 21 days of notice, pursuant to
an unspecified Rule of Civil Procedure 21. He does not present any authority to
21
It’s TEX. R. CIV. P. 166a (c).
51
suggest that this applies to motions under Chapter 11 of the TEX. CIV. PRAC. &
REM. CODE. Generally, any motion to the court for an order and any notice of a
hearing on a motion must be served upon the other party at least three days before
the hearing. TEX. R. CIV. P. 21. Further, Appellant did not raise this issue with the
Trial Court, during, the hearing or in any of his Responses. [3 RR 1; CR 556, 564,
and 572]. He may not present it for review at this stage. See TEX. R. APP. P.
33.1(a); see also Drum, 299 S.W.3d at 370.
Finally, Appellant again argues that Judge Ramsay should have recused
himself despite the fact that he was not named in the motion to recuse, and despite
the findings that good cause existed to go forward on August 19, 2014, in
compliance with TEX. R. CIV. P. 18a(f)(2)(A). Response to Appellant’s argument
about Judge Ramsay is addressed more completely in Issue Five, supra.
ISSUE ELEVEN
The Trial Court did not abuse its discretion in determining that sovereign
immunity demonstrated that there was no reasonable probability that
Appellant would prevail in the litigation against Ms. Willing.
In his Eleventh Issue, Appellant argues that Ms. Willing does not enjoy
sovereign immunity. This was discussed in response to Issue Two, supra. Again,
Appellant’s Issue Eleven in its entirety consists of arguments never presented to
the Trial Court, despite Appellant’s appearance at the hearing in question and three
written responses on file. [3 RR 1; CR 556, 564, and 572]. Appellant did not raise
52
any argument related to Ms. Willing and her sovereign immunity before the Trial
Court, and may not present it for review at this stage. See Tex. R. App. P. 33.1(a);
see also Drum, 299 S.W.3d at 370 (holding that arguments by a vexatious litigant
not raised in the trial court are not preserved for appellate review).
For the first time on appeal, Appellant argues that “his rights were violated
by Willing pursuant to an unconstitutional law.” [Appellant’s Brief, page 73]. He
does not identify any unconstitutional law, and there is no reference to an
unconstitutional law in his Complaint. [CR 5, generally].
Appellant then raises arguments regarding the general waiver of sovereign
immunity for injunctive relief sought against official capacity defendants.
Appellant may not present this for review at this stage. See Tex. R. App. P. 33.1(a);
see also Drum, 299 S.W.3d at 370. Even if he were able to do so, because
Appellant did not plead a viable constitutional claim against Ms. Willing
(including any protected right he alleges in the outcome of an administrative
investigation), he may not rely on any waiver of Ms. Willing’s sovereign
immunity. See generally Andrade, 345 S.W.3d at 11 (official retained immunity
from suit unless plaintiffs pleaded “viable claim”); Printing Indus. Assoc. of Tex.,
600 S.W.2d at 265; City of Paris v. Abbott, 360 S.W.3d at 583. Further, although
he suggests that he was complaining about Ms. Willing failing to perform her
ministerial duty [Appellant’s Brief, page 766], he was not asking the Trial Court to
53
compel her to perform such duties, but instead, to turn over the investigation to the
Trial Court itself. [CR 40, second (c)]. Further, Appellant was not seeking
prospective relief with respect to the complaint he made, but wanted Ms. Willing
to explain her actions to the Trial Court. [CR 43, ¶ 106]. Appellant does not have
standing for any further declaratory or injunctive relief in the hypothetical or
abstract future of investigations by Ms. Willing. Arguments related to sovereign
immunity and standing are more fully briefed in response to Issue Two, supra.
Appellant also argues that Ms. Willing waived immunity by seeking to have
him declared a vexatious litigant. He provides no legal authority supporting his
position, and by not presenting any legal support, has inadequately briefed this
matter. See TEX. R. APP. P. 38.1. As a matter of law, the Supreme Court held that
even litigation initiated by a governmental entity does not waive sovereign
immunity in general, but waives immunity only to the extent that the relief sought
by a counterclaimant would offset affirmative, monetary relief sought by the
governmental entity. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
376-77 (Tex. 2006) (“Reata II”); see also Manbeck v. Austin Indep. Sch. Dist., 381
S.W.3d 528, 533 (Tex., August 31, 2012) (per curiam) (holding that a
governmental entity which availed itself of its statutory right, but never brought an
affirmative claim for money damages retained immunity). Appellant does not
54
identify in the record any attempt by Ms. Willing to seek monetary relief from
Appellant.
Finally, Appellant suggests that Ms. “Willing's counsel said in open court
that Appellant was suing Appellee Willing in her individual capacity also…”
[Appellant’s Brief, page 78]. Appellant does not cite the relevant portion of the
transcript, because this did not happen. The Reporter’s Record does not contain
such a statement. Indeed, although Appellant puts words in quotes, the word
“Prayer” does not appear in the Reporter’s Record, nor does reference to
judgement against Defendants. In the transcript, the only references to judgments
are as follows: a reference to a court having authority to vacate an order or
judgment [3 RR 22:12-14] the fact that the 44th District Court had not reversed an
order declaring Appellant to be a vexatious litigant, nor was the judgment reversed
[3 RR 54:11-55:6, citing CR 467] and some judgments that identify Exhibits
entered at the hearing. Appellant, however, asks this Court to order a court
reporter to alter the transcript. [Appellant’s Brief, page 78]. Appellant then
proceeds to present argument about qualified immunity, which was not an issue, as
he only brought claims against Ms. Willing in her official capacity, and never
suggested otherwise until his Appellant’s Brief.
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Appellant’s arguments may not be raised for the first time on appeal, and
they are not availing even if he were allowed to do so. He has failed to meet his
burden to prove that Judge Ramsay abused his discretion.
PRAYER
Because Appellant did not appeal all of the independent reasons the Trial
Court entered its Order and declared Eric Drake a vexatious litigant, and because
he has waived appeal of those other reasons, the order of the Trial Court should be
affirmed.
Even on the issues briefed by Appellant, the Trial Court was correct to hear
the matter because good cause existed, in not hearing the matter would allow the
Appellant to abuse the litigation process and evade the very purpose of the
vexatious litigant statute. Additionally, Judge Ramsay was not named in the
motion to recuse, which was facially defective and not in compliance with Rule
18a.
The Trial Court was also correct to enter its order finding Eric Drake a
vexatious litigant because Ms. Willing was able to prove each necessary element of
Tex. Civ. Prac. & Rem. Code § 11.054.
Accordingly, this Court should affirm the ruling of the Trial Court.
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Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Defense
Litigation
ANGELA V. COLMENERO
Chief–General Litigation Division
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
State Bar No. 24002175
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 463-2120
(512) 320-0667 - facsimile
ATTORNEYS FOR APPELLEE SEANA
WILLING
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
sent via regular mail and certified mail, return receipt requested on April 1, 2015
to:
Eric Drake
PO Box 833688
Richardson, Texas 75083
Pro Se Appellant
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
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CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4(i)(3), the undersigned Assistant Attorney General
hereby certifies that the preceding document complies with the type-volume limits
in TRAP 9.4.
1. Excluding the exempted portions in TRAP 9.4(i)(1), the brief contains:
12,714 words22, and
2. This brief has been prepared using:
Word in 14 pt Times New Roman conventional typeface Font with 12 pt
footnotes.
The undersigned understands that a material misrepresentation in completing this
certificate, or circumvention of the type-volume limits in TRAP 9.4, may result in
the court's striking the brief and prohibiting the party from filing further documents
of the same kind.
/s/ Scot M. Graydon
Scot M. Graydon
Assistant Attorney General
Word count was calculated using “Word Counter," using “Word Counter,” an Add-on Tool for
22
Adobe Acrobat.
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