Timothy Paul Martin v. State ( 2009 )

Affirmed and Memorandum Opinion filed July 21, 2009

Affirmed and Memorandum Opinion filed July 21, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-01174-CV

____________

TIMOTHY PAUL MARTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 49743

M E M O R A N D U M   O P I N I O N

Timothy Paul Martin appeals from an order, signed November 18, 2008, dismissing the case with prejudice.^[1]  In a single issue, Martin claims the trial court abused its discretion by dismissing the case without a hearing.  We affirm.

According to the record, Martin was declared a vexatious litigant in 2001.  In this case, appellant filed a motion for permission to file litigation pursuant to section 11.102 of the Texas Civil Practices and Remedies Code.^[2] Martin also filed an original petition, alleging claims of tortious interference with business relations, negligence, and violations of constitutional rights.

Martin raises only one issueBthat the trial court abused its discretion in dismissing the suit without holding a hearing. Section 14. 003(c) states that a trial court Amay@ hold a hearing before dismissing a suit, but is not required to do so.  Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(c) (Vernon 2002). The decision whether to hold a hearing is within the trial court=s discretion.  Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.BFort Worth 1997, pet. denied). 

Martin contends he would have presented evidence if the trial court had held a hearing.  The alleged evidence noted in Martin=s brief is substantially the same as the lengthy recitation of factual allegations set out in Martin=s petition.  Martin does not explain how many of these factual allegations relate to the causes of action pled.  Martin notes that he had filed various motions in the trial court Ato develope [sic] the record,@ but this does not establish what evidence he would have presented at a hearing.  Aside from the factual allegations found in the petition, and those reiterated in his brief, Martin has not shown what particular evidence would have been presented at a hearing in the trial court. See id.  Accordingly, we find no abuse of discretion by the trial court in deciding to dismiss Martin=s case without holding a hearing.   

The judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Chief Justice Hedges, and Justices Yates and Frost. 

---

^[1]  Martin has not challenged the trial court=s dismissal Awith prejudice.@  If a trial court=s order dismisses a suit with prejudice, when a dismissal without prejudice would have been appropriate, the notation of Awith prejudice@ must be challenged or the error is waived and the suit may not be refiled.  See El Paso Pipe & Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981)(must appeal error or it is waived and suit may not be refiled); Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 742 (Tex. App.BWaco 2005, pet denied)(error in dismissing case Awith prejudice@ waived where appellant failed to raise it in the trial court by timely motion to reinstate or motion for new trial); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 569 (Tex. App.BHouston [14th Dist.] 1990, writ denied)(complaint regarding dismissal Awith prejudice@ waived because appellant failed to preserve complaint by presenting alleged error to the trial court).    

^[2]  Section 11.102 provides that a party found to be a vexatious litigant usually must obtain permission to file a suit and must seek permission to file a lawsuit from a local administrative judge.  See  Tex. Civ. Prac. & Rem. Code Ann. ' 11.102(a) (Vernon 2002). The record shows Martin filed a motion for permission, but with the wrong entity.  Martin filed the motion seeking permission to file his suit with the Brazoria County District Clerk.  If Martin, as a vexatious litigant, is subject to a pre-filing order under Section 11.101, the clerk of a court may not file the litigation unless Martin obtains an order from the local administrative judge permitting the filing.  See id. at ' 11.103(a).