Tommy L. Parker v. Ron McLaurin, Jesse Mendez & Vilsen Salinas ( 2012 )

Opinion issued June 7, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00507-CV

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TOMMY L. PARKER, Appellant

V.

RON MCLAURIN, JESSE MENDEZ, AND VILSEN SALINAS, Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 2010-51822

MEMORANDUM OPINION

          Tommy L. Parker, appearing pro se, appeals the trial court’s dismissal of his suit against appellees Ron McLaurin, Jesse Mendez, and Vilsen Salinas.  Parker identifies four issues on appeal. 

          We affirm.

Background Summary[1]

          In 1991, Ron McLaurin, a Texas attorney, represented Tommy L. Parker in a legal malpractice suit in Lubbock County.  A judgment was rendered against Parker, in 1994, based on a directed verdict. 

          Parker then sued McLaurin for legal malpractice in Lubbock County.  In 1995, the case was tried to a jury, which found against Parker in favor of McLaurin.  The Amarillo Court of Appeals affirmed the judgment. 

          In 1996, Parker filed a petition for bill of review in Lubbock County, naming McLaurin as the defendant and challenging the 1995 judgment in favor of McLaurin. The trial court denied the bill-of-review petition and dismissed the case.  The Amarillo Court of Appeals affirmed the judgment.[2] 

          Parker next filed suit against McLaurin in Dallas County and added appellees Jesse Mendez and Vilsen Salinas as defendants.  Parker non-suited the case but later filed suit against appellees in Harris County.  Parker also non-suited that case. 

          Parker re-filed the litigation in Lubbock County in 2000.  The case was later dismissed for want of prosecution. 

          Parker then filed suit against appellees in Tarrant County.  The case was transferred to Lubbock County.  In 2006, the trial court in Lubbock County granted appellees’ motion for summary judgment and signed an order declaring Parker a vexatious litigant. The Amarillo Court of Appeals issued an opinion affirming both the trial court’s summary judgment and the trial court’s order adjudicating Parker to be a vexatious litigant.[3] 

          Parker filed the instant suit in Harris County on August 18, 2010, again attempting to re-litigate his legal malpractice claims against appellees and assailing the Lubbock County order declaring him a vexatious litigant.  On March 8, 2011, the trial court signed an order detailing the history of Parker’s litigation against appellees.  The trial court recognized that the district court in Lubbock County had declared Parker to be a vexatious litigant and that the court had signed a prefiling order prohibiting Parker from filing new litigation in Texas state court unless he first obtained permission from the local administrative judge.

          The March 8, 2011 order also states that the Harris County district clerk had mistakenly filed the instant suit without an order from the local administrative judge permitting Parker to file this suit.  The trial court stayed the litigation for 10 days to permit Parker to obtain the permission of the local administrative judge to file the instant litigation.  The order provided that, if Parker did not obtain permission within 10 days, Parker’s suit would be dismissed. 

          Pursuant to the order, Parker sought permission from the local administrative judge of Harris County to file the instant litigation. The judge denied the request on May 25, 2011.  The judge indicated he had determined that Parker had been declared a vexatious litigant by the Lubbock County district court in 2006 and that the Amarillo Court of Appeals had affirmed the order.  The local administrative judge also stated that he had determined Parker was declared a vexatious litigant in 2001 by a district court in Randall County.  In denying Parker’s request to file the instant litigation, the local administrative judge determined that the instant litigation is an attempt by Parker “to challenge the judgment affirmed by the Amarillo Court of Appeals in 2007.”  The judge also determined that Parker’s “current claims do not appear to have merit.”

          Detailing the history of the litigation and referencing the local administrative judge’s written denial, the trial court signed an order dismissing Parker’s suit on June 2, 2011.  The court expressly noted that Parker had been declared a vexatious litigant in Lubbock County and in Randall County. 

          This appeal followed.  Parker lists four issues on appeal.

Permission to File Litigation

          In his first issue, Parker contends that “the trial court erred when it state[d] that appellant did not ask, nor did he receive permission to file this litigation.”  Parker is apparently referencing a finding in the trial court’s March 8, 2011 order, which stayed the proceedings and gave Parker 10 days to obtain permission from the local administrative judge to file the litigation.  In the order, the trial court found, inter alia, that Parker “has not asked for, nor has he received permission from the local Administrative Judge of Harris County to file this litigation.” 

          The trial court also stated in its June 2, 2011 order dismissing appellant’s claims: “On March 8, 2011, this Court issued an Order immediately staying all proceeding[s] in the above case.  The Court’s Order found that [Parker] had been previously adjudicated as a vexatious litigant and had not asked for, nor received permission from the local Administrative Judge of Harris County to file this litigation.”

          To support his contention that he had, in fact, asked permission to file suit prior to the March 8 order, Parker points to a letter addressed to the local administrative judge and filed with the district clerk on August 18, 2010, the same day that Parker’s original petition was filed. 

          Section 11.102 of the Civil Practice and Remedies Code provides that a local administrative judge may grant a vexatious litigant permission to file suit if it appears to the judge that the litigation has merit and has not been filed for the purposes of harassment or delay.  Tex. Civ. Prac. & Rem. Code Ann. § 11.102(a) (Vernon Supp. 2011).  Section 11.103(a) prohibits a clerk of a court from filing litigation presented by a vexatious litigant subject to a prefiling order under section 11.101, [4] unless the litigant obtains an order from the local administrative judge permitting the filing.  See Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a) (Vernon Supp. 2011).  If the clerk mistakenly files the litigation without an order from the local administrative judge, any party may file with the clerk and serve on the plaintiff and the other parties to the suit a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order.  Id. § 11.103(b). On the filing of the notice, the court is required to dismiss the suit unless the plaintiff, within 10 days after the notice is filed, obtains an order from the local administrative judge permitting the filing of the litigation.  Id.

          It is undisputed that Parker had been declared a vexatious litigant by two Texas courts and was subject to a prefiling order. Nothing in the record shows that Parker had requested or obtained the permission of the local administrative judge before filing the litigation; rather, Parker contemporaneously filed the request for permission with his original petition, which the district clerk mistakenly accepted.  See id.

          Logically construed, the statute requires that the request and the grant of permission must occur before the litigation may be filed.  See id. Here, no request or grant of permission occurred before the district clerk mistakenly filed the litigation.  Read in context of the proceedings, the trial court was correct when it stated that Parker had not requested or obtained permission to file the litigation when it was filed. 

          In any event, the determinative factor under the statute is whether Parker obtained the local administrative judge’s permission, not whether he merely requested permission.  See id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 11.102.  Even if the trial court incorrectly found that Parker had not previously requested permission, the trial court correctly dismissed Parker’s suit because Parker did not obtain permission to file the litigation.  To the contrary, his request was expressly denied by the local administrative judge.  See id. § 11.103(b).  The trial court had no discretion under the statute to do anything but dismiss the case.  See id.

Unchallenged Basis for Dismissal Order

          We construe Parker’s second, third, and fourth issues to be a collateral attack on the order from the Lubbock district court adjudicating Parker to be a vexatious litigant.  Parker challenges the trial court’s orders and the local administrative judge’s denial of Parker’s request to file the instant litigation on the ground that the orders are based on the Lubbock County district court’s order adjudicating Parker to be a vexatious litigant, which Parker claims is void.  Parker asserts that the Lubbock County order is void because it arises from earlier judgments—rendered against Parker in suits with appellees—which he claims are void. 

          Without determining the propriety of Parker’s arguments, we note that the trial court’s order dismissing Parker’s suit, as well as the local administrative judge’s denial of permission to file the litigation, rely on the Lubbock County district court’s order and the Randall County district court’s order declaring Parker to be a vexatious litigant.  Parker makes no argument why the trial court’s order dismissing the instant litigation cannot be premised on the Randall County order.  

          An appellant seeking to reverse a trial court’s judgment must attack all independent bases or grounds that fully support a complained-of ruling or judgment.  Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.); Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see Humphries v. Advanced Print Media, 339 S.W.3d 206, 207 (Tex. App.—Dallas 2011, no pet).  If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground.  Oliphant Fin. LLC, 295 S.W.3d at 424; see Britton, 95 S.W.3d at 681.  As a result, any error in the grounds actually challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment.  Britton, 95 S.W.3d at 681. In short, an appellant’s failure to attack all independent grounds supporting a judgment or ruling results in our affirming the judgment.  See id.  Because he does not challenge the dismissal judgment on the ground that it cannot be based on the Randall County order declaring him a vexatious litigant, we overrule Parker’s second, third, and fourth issues.  

Conclusion

          We affirm the judgment of the trial court.

                                                                      Laura Carter Higley

                                                                      Justice

Panel consists of Justices Higley, Sharp, and Huddle.

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[1]         Appellees have not filed a brief on appeal.  When an appellee does not file a brief, the appellate court may accept any factual statement made in appellant’s brief as true, if supported by record references.  See Tex. R. App. P. 38.1(g).

[2]         See Parker v. McLaurin, No. 07-96-0316-CV, 1996 WL 709442 (Tex. App.—Amarillo Dec. 10, 1996, no pet.) (not designated for publication).

[3]         See Parker v. McLaurin, No. 07-06-0472-CV, 2007 WL 1529684, at *1 (Tex. App.—Amarillo May 25, 2007, no pet.) (mem. op.).

[4]         Section 11.101 of the vexatious litigant statute allows a court to enter a prefiling order prohibiting a plaintiff from filing, pro se, any new lawsuit without leave of the local administrative judge.  See Tex. Civ. Prac. & Rem. Code Ann. § 11.101(a) (Vernon Supp. 2011).