gregory-daniels-v-balcones-woods-club-inc-douglas-huyck-john-schexnayder ( 2009 )


Menu:
  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-05-00772-CV
    Gregory Daniels, Appellant
    v.
    Balcones Woods Club, Inc.; Douglas Huyck; John Schexnayder; Thomas Terry; Bonnie
    Lockhart; and William Dugat III, Individually and as Managing Partner of Bickerstaff,
    Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Appellees
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
    NO. GN500294, HONORABLE SUZANNE COVINGTION, JUDGE PRESIDING
    MEMORANDUM OPINION
    Gregory Daniels sued Balcones Woods Club, Inc. (“Balcones Woods Club”), Douglas
    Huyck, John Schexnayder, Thomas Terry, Bonnie Lockhart, and William Dugat III, individually and
    as managing partner of Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. (“Bickerstaff
    Heath”) for damages arising out of their conduct in pursuing an earlier lawsuit that resulted in
    Daniels’s being permanently enjoined from violating neighborhood association restrictive covenants.
    In the current lawsuit, on the defendants’ motions, the district court declared Daniels a vexatious
    litigant and ordered him to furnish security totalling $100,000. Daniels failed to furnish the
    court-ordered security, and the defendants filed motions to dismiss. The district court dismissed the
    case with prejudice as to all defendants. Daniels appeals the orders of the district court declaring him
    a vexatious litigant and dismissing his suit. We will affirm the district court’s orders.
    FACTUAL AND PROCEDURAL BACKGROUND
    Balcones Woods Club is a neighborhood association charged with enforcing the
    restrictive covenants of the neighborhood in which Daniels owned a home. In March 2002, Balcones
    Woods Club sued Daniels (“the 2002 suit”) seeking to enjoin him from parking his car on his lawn
    in violation of those restrictive covenants. Lockhart, an attorney with Bickerstaff Heath, represented
    Balcones Woods Club in the 2002 suit. After a bench trial, the district court granted a permanent
    injunction and assessed attorneys’ fees and costs against Daniels. Daniels appealed, complaining
    that the district court was not fair and impartial and challenging the findings of fact and conclusions
    of law supporting the injunction. This Court affirmed the district court’s order in February 2006.
    See Daniels v. Balcones Woods Club, Inc., No. 03-03-00310-CV, 2006 Tex. App. LEXIS 957
    (Tex. App.—Austin Feb. 2, 2006, pet. denied) (mem. op.).
    In January 2004, while the appeal of the 2002 suit was pending, Daniels sued
    Balcones Woods Club, Huyck, one of Daniels’s neighbors, Balcones Wood Club board members
    Schexnayder and Terry, and Balcones Woods Club’s legal counsel Lockhart and Dugat and their law
    firm, Bickerstaff Heath (“the 2004 suit”), seeking damages he alleged resulted from prosecution of
    the 2002 suit. Daniels alleged that Huyck “pursued a campaign of harassment” by participating in
    the 2002 suit and that Huyck, Terry, and Schexnayder made false and misleading statements during
    proceedings in the 2002 suit. Daniels claimed that Balcones Woods Club pursued the 2002 suit
    against him in order to inflict “emotional and financial harm.”
    With respect to Lockhart, Dugat, and Bickerstaff Heath, Daniels alleged that they
    made judicial campaign contributions for the purpose of obtaining improper influence over the
    2
    district judge, then exercised that influence to successfully pursue “false and completely fabricated
    cases” against him. He further alleged that Lockhart, Huyck, Terry, and Schexnayder engaged in a
    “civil conspiracy to cause intentional emotional and financial harm, with malice, by abuse of
    process.”
    All defendants in the 2004 suit filed special exceptions. The trial court sustained each
    of the defendants’ special exceptions, finding that Daniels’s original petition failed to state a cause
    of action. The court ordered that Daniels correct the pleading deficiencies by filing an amended or
    supplemental pleading within ten days. Daniels filed an amended petition but failed to cure the
    pleading defects. Consequently, the trial court, on the defendants’ motions, dismissed Daniels’s
    claims against all defendants. Each of the dismissal orders specifically stated that the dismissal was
    without prejudice.1
    In 2005, Daniels filed the instant case against the same defendants named in the
    2004 suit. Daniels again alleged that Huyck “pursued a campaign of harassment” against him by
    participating in the 2002 suit. He again complained that Lockhart, Dugat, and Bickerstaff Heath
    used the influence they gained through judicial campaign contributions to successfully pursue a
    “fraudulent lawsuit” against him. Daniels also reurged his claim that Lockhart, Huyck, Terry, and
    1
    Having found that, after amendment, Daniels’s petition failed to state a cause of action, the
    trial court could have dismissed the case with prejudice. See Lentworth v. Trahan, 
    981 S.W.2d 720
    ,
    722-23 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Hubler v. City of Corpus Christi,
    
    564 S.W.2d 816
    , 823 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.)); accord Kutch v. Del
    Mar College, 
    831 S.W.2d 506
    (Tex. App.—Corpus Christi 1970, writ ref’d n.r.e.) (distinguishing
    between pleadings that state valid cause of action and those that do not and holding trial court cannot
    dismiss case with prejudice if pleadings state valid cause of action but are vague, overbroad, or
    otherwise susceptible to valid special exceptions). It is unclear why the dismissal of the 2004 suit
    was without prejudice.
    3
    Schexnayder engaged in a “civil conspiracy to fraudulently and maliciously cause intentional
    emotional and financial harm.”
    Each of the defendants in the instant suit filed motions requesting that the district
    court declare Daniels a vexatious litigant and require him to furnish security as a condition of
    prosecuting his suit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051-.055 (West 2002). The
    district court found that Daniels was a vexatious litigant and ordered him to furnish security in the
    aggregate amount of $100,000 within twenty days. See 
    id. § 11.055.
    Daniels failed to furnish the
    security by the court-ordered deadline. In accordance with statutory requirements, the district court
    dismissed his suit. See 
    id. § 11.056.
    Daniels appeals from the order of dismissal, complaining of
    the order finding him a vexatious litigant.
    STANDARD OF REVIEW
    We review the trial court’s determination that a party is a vexatious litigant under an
    abuse of discretion standard. Leonard v. Abbott, 
    171 S.W.3d 451
    , 459 (Tex. App.—Austin 2005,
    pet. denied). A trial court abuses its discretion if it acts arbitrarily, unreasonably, without
    regard to guiding legal principles, or without supporting evidence. K-Mart Corp. v. Honeycutt,
    
    24 S.W.3d 357
    , 360 (Tex. 2000); Bocquet v. Herring, 
    972 S.W.2d 19
    , 20 (Tex. 1998). Because a
    trial court may exercise its discretion to declare a party a vexatious litigant only after it makes certain
    statutorily prescribed evidentiary findings, we also review the trial court’s underlying findings for
    legal and factual sufficiency. 
    Leonard, 171 S.W.3d at 459
    (citing 
    Bocquet, 972 S.W.2d at 21
    ). In
    a legal sufficiency challenge, we must determine whether there is more than a scintilla of evidence
    to support the finding. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 827 (Tex. 2005). We review the
    4
    evidence in the light most favorable to the challenged finding, crediting favorable evidence if a
    reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could
    not. 
    Id. at 821-22,
    827. More than a scintilla of evidence exists if the evidence rises to a level that
    would enable reasonable and fair-minded people to differ in their conclusions. Ford Motor Co.
    v. Ridgway, 
    135 S.W.3d 598
    , 601 (Tex. 2004). In reviewing a factual sufficiency challenge, we
    consider and weigh all the evidence in the record, both in support of and against the finding, and set
    aside a finding only if the evidence that supports it is so weak or against the great weight and
    preponderance of the evidence that it is clearly wrong and manifestly unjust. Dow Chem. Co.
    v. Francis, 
    46 S.W.3d 237
    , 242 (Tex. 2001).
    DISCUSSION
    Chapter 11 of the civil practice and remedies code provides that, within ninety days
    of filing an original answer, a defendant may move for an order declaring the plaintiff a vexatious
    litigant and requiring the plaintiff to furnish security. Tex. Civ. Prac. & Rem. Code Ann. § 11.051.
    The security is for the benefit of the moving party and serves as an undertaking by the plaintiff to
    assure payment of the moving party’s reasonable expenses incurred in or in connection with the
    litigation, including costs and attorneys’ fees. 
    Id. § 11.055.
    On the filing of a motion under section
    11.051, the litigation is stayed until the district court rules on the motion. The district court may
    determine that the plaintiff is a vexatious litigant if the moving party demonstrates that there is not
    a reasonable probability that the plaintiff will prevail in the litigation and:
    5
    after a litigation has been finally determined against the plaintiff, the
    plaintiff repeatedly relitigates or attempts to relitigate, in propria
    persona, either:
    (A) the validity of the determination against the same defendant as to
    whom the litigation was finally determined; or
    (B) the cause of action, claim, controversy, or any of the issues of fact
    or law determined or concluded by the final determination against the
    same defendant as to whom the litigation was finally determined.
    
    Id. § 11.054(2).
    If the motion is granted, the district court must order the plaintiff to furnish the
    security by a date within its discretion, and if the plaintiff fails to do so, the district court must
    dismiss the litigation as to the moving defendant. 
    Id. §§ 11.055-.056.
    By one issue on appeal, Daniels “asks the Third Court of Appeals to determine if the
    Trial Judge abused her discretion by arbitrarily considering prior orders to dismiss ‘without
    prejudice’ equivalent to dismissal ‘with prejudice’ to deem Appellant a vexatious litigant.” In his
    brief, Daniels takes issue with two of the district court’s findings supporting the conclusion that he
    is a vexatious litigant: (1) that previous litigation between him and the defendants in the present case
    has been “finally determined” against him, and (2) that the previous litigation involved the same
    cause of action, claim, controversy or any of the issues of fact or law at issue in the present case.
    Daniels argues that the district court erred by concluding that the dismissal of the
    2004 suit “without prejudice” was a “final determination” within the meaning of chapter 11 of the
    civil practice and remedies code. See 
    id. The record
    evidence establishes that Daniels did not
    perfect an appeal of the dismissal of the 2004 suit, and that the district-court judgment became final
    by operation of law. Daniels cites no authority for his contention that a dismissal without prejudice
    is not a final determination within the meaning of the statute. While there is authority for the
    6
    proposition that a nonsuit without prejudice is not a final judgment, see, e.g., McGowen v. Huang,
    
    120 S.W.3d 452
    , 462 (Tex. App.—Texarkana 2003, pet. denied), an order of dismissal
    that completely disposes of the case is a final and appealable judgment. Armendaiz v. Ray,
    
    215 S.W.2d 210
    , 212 (Tex. Civ. App.—San Antonio 1948, no writ); see also Hosey v. County of
    Victoria, 
    832 S.W.2d 701
    , 703 (Tex. App.—Corpus Christi 1992, no writ) (order of dismissal for
    want of prosecution was final judgment); Dilmore v. Russell, 
    519 S.W.2d 278
    , 280 (Tex. Civ.
    App.—Dallas 1975, no writ) (judgment of dismissal is final in sense that it disposes of pending
    action although not adjudicating merits).
    By arguing that the dismissal order “without prejudice” is not a final determination
    of the prior litigation for purposes of declaring him a vexatious litigant, Daniels asks this Court to
    hold that chapter 11 requires there to have been a prior determination on the merits of his claim. The
    statute, however, simply requires that the prior determination was “final,” not that it adjudicated the
    merits of the claim. Daniels’s apparent concern that application of chapter 11 results in the dismissal
    of meritorious claims is unwarranted—a prerequisite to the district court’s determination that a party
    is a vexatious litigant is its conclusion that there is not a reasonable probability that the party will
    prevail on his claims. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. The district court’s
    determination that Daniels is a vexatious litigant entails a finding that it was not reasonably probable
    that Daniels would prevail in this litigation against these defendants. Daniels does not contend on
    appeal that there was error in this finding.
    The evidence establishes not only that a final judgment had been rendered in the
    2002 suit, but also that the 2004 suit was dismissed, no appeal was taken therefrom, and the
    7
    judgment in that case is final. This evidence is sufficient to support the district court’s finding that
    there had been a final determination of both the 2002 suit and the 2004 suit between Daniels and one
    or more of the defendants in the instant case. See 
    id. § 11.054(2).
    Daniels also complains of the district court’s finding that there was no meaningful
    difference between the pleadings in the 2004 suit and the pleadings in the instant suit.2 After
    comparing the pleadings in the 2004 suit to the pleadings in this case, we conclude that the evidence
    supports the district court’s implied finding that the instant suit is an attempt to relitigate the causes
    of action and issues Daniels raised in the 2004 suit. In both cases, Daniels complains of a campaign
    of harassment carried out by Huyck, and a civil conspiracy among Lockhart, Huyck, Terry, and
    Schexnayder to cause him financial harm. Both suits contain allegations that Lockhart and
    Bickerstaff Heath exercised undue influence over the trial judge, and that they derived their influence
    through judicial campaign contributions. The only difference between the two suits that Daniels
    identifies is “the removal of the malicious prosecution claim, and the inclusion of additional
    evidence.” The elimination of a claim in the instant case does not make the remaining claims
    different from those made in the 2004 suit. Nor do additional allegations supporting a cause of
    action change its nature. The evidence supports the trial court’s finding that there was no meaningful
    distinction between Daniels’s claims in the instant case and those stated in the 2004 suit. The statute
    2
    Although not raised by any discrete issue, we address this argument because Daniels
    includes it in his brief. Appellate issues are to be construed reasonably, yet liberally, so that the right
    to appellate review is not lost by waiver. See El Paso Natural Gas v. Minco Oil & Gas, Inc.,
    
    8 S.W.3d 309
    , 316 (Tex. 1999). Appellate courts should reach the merits of an appeal whenever
    reasonably possible. Perry v. Cohen, 
    272 S.W.3d 585
    , 587 (Tex. 2008) (per curiam).
    8
    requires only a repeated relitigation or attempted relitigation of “any of the issues of fact or law”
    previously determined.
    Moreover, a determination of the issues raised in this case would also require
    relitigating issues of fact or law already decided in the 2002 suit. For example, to demonstrate that
    Lockhart and Bickerstaff Heath exercised undue influence over the district judge in the 2002 suit,
    as alleged in the present case, Daniels would be required to show that the trial court in the 2002 suit
    was not fair or impartial. This Court has already rejected Daniels’s claim that the trial court
    in the 2002 suit “made it obvious” that it favored Balcones Woods Club and “effectively
    eliminated any possibility of discovering the complete truth behind this matter.” See Daniels,
    2006 Tex. App. LEXIS 957, at *6-9. We conclude that the trial court did not act unreasonably in
    finding that, in bringing the instant case, Daniels was repeatedly attempting to relitigate causes of
    action or issues of fact or law finally determined against him in previous litigation. Therefore, the
    trial court did not abuse its discretion in declaring Daniels a vexatious litigant under chapter 11 of
    the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. §11.054. We overrule
    Daniels’s sole issue.
    CONCLUSION
    Having found no abuse of discretion in the district court’s determination that Daniels
    is a vexatious litigant pursuant to chapter 11 of the civil practice and remedies code, we affirm the
    district court’s orders of dismissal.
    9
    __________________________________________
    J. Woodfin Jones, Chief Justice
    Before Chief Justice Jones, Justices Patterson and Pemberton
    Affirmed
    Filed: May 19, 2009
    10