Kristofer Thomas Kastner (Appellant/Cross Appellee) v. Martin, Drought & Torres, Inc. (Appellee/Cross Appellant) ( 2010 )

MEMORANDUM OPINION
No. 04-09-00565-CV
Kristofer Thomas KASTNER,
Appellant/Cross-Appellee
v.
MARTIN, DROUGHT & TORRES, INC., et al.,
Appellees/Cross-Appellants
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-06774
Honorable Andy Mireles, Judge Presiding 1
PER CURIAM
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 21, 2010
REVERSED AND RENDERED
In this cross-appeal, Martin, Drought & Torres, Inc., Gerald T. Drought, and Dain A.
Dreyer (collectively “Martin & Drought”) appeal the trial court’s order determining that the
appeal by Kristofer Thomas Kastner is not frivolous and denying Martin & Drought’s motion to
deny Kastner a free appellate record. This court ordered the parties to file briefs relating to the
1
The Honorable Antonia Arteaga is the presiding judge of the 407th Judicial District Court, Bexar County, Texas.
The Honorable Andy Mireles signed the order dated October 21, 2009 finding the appeal not frivolous and denying
the motion to deny a free appellate record.
04-09-00565-CV
cross-appeal and abated all other appellate deadlines. We reverse the trial court’s order and
render judgment that Kastner’s appeal is frivolous.
BACKGROUND
After the Texas Board of Legal Examiners (“Board”) determined that Kastner was not fit
for admission to the Texas Bar, Kastner retained Martin & Drought to represent him before the
Board in seeking reconsideration of his application for admission. After a hearing on Kastner’s
motion to reconsider in November of 1999, the Board issued an order confirming its prior
decision.
In August of 2006, Kastner sued Martin & Drought for legal malpractice and breach of
fiduciary duty (Kastner I). The trial court granted a no evidence summary judgment in favor of
Martin & Drought. This court affirmed the trial court’s summary judgment, holding Kastner’s
suit was barred by limitations and Kastner failed to present any requisite expert testimony on his
claims for professional negligence and breach of fiduciary duty. Kastner v. Martin & Drought,
Inc., No. 04-07-00342-CV, 2009 WL 260601 (Tex. App.—San Antonio Feb. 4, 2009, pet.
denied) (mem. op.).
In August of 2008, Kastner subsequently filed a second lawsuit against Martin &
Drought, alleging the same claims but adding an additional defendant (Kastner II). See Kastner
v. Martin & Drought, P.C., No. 04-08-00779-CV, 2009 WL 618698, at *3 (Tex. App.—San
Antonio Mar. 11, 2009, pet. denied) (mem. op.), cert. denied, Kastner v. Martin, Drought &
Torres, 176 L. Ed. 2d 570 (2010). The trial court granted a take nothing summary judgment based
on res judicata and found an appeal of its judgment would be frivolous. See id. This court
affirmed the trial court’s order, holding “There is nothing in the record or the briefs that would
warrant our finding an abuse of discretion by the trial court with regard to its finding the appeal
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frivolous.” Id. In addition to affirming the frivolous finding, we also affirmed the trial court’s
order sustaining contests to Kastner’s affidavit of inability to pay. Id. at *1-3. Accordingly, we
ordered Kastner to pay the filing fee for the appeal. Id. at *3. Because Kastner failed to pay the
filing fee, his appeal was dismissed for want of prosecution. See Kastner v. Martin & Drought,
P.C., No. 04-08-00779-CV, 2009 WL 962528 (Tex. App.—San Antonio Apr. 8, 2009, pet.
denied) (mem. op.), cert. denied, Kastner v. Martin, Drought & Torres, 176 L. Ed. 2d 570 (2010).
In April of 2009, Kastner filed the underlying lawsuit which again alleges claims against
Martin & Drought relating to the legal services provided to Kastner in representing him before
the Board (Kastner III). Martin & Drought filed a motion to declare Kastner a vexatious litigant.
The trial court granted the motion and declared Kastner to be a vexatious litigant. The trial court
further ordered Kastner to furnish security for Martin & Drought’s costs and attorney’s fee or his
lawsuit would be dismissed. Finally, the trial court’s order prohibited Kastner from filing any
further litigation against Martin & Drought unless he secured the permission of the local
administrative judge prior to filing. Kastner filed the instant appeal challenging the trial court’s
order.
Martin & Drought filed a motion in the trial court, requesting the trial court to declare
Kastner’s appeal frivolous pursuant to section 13.003 of the Texas Civil Practice and Remedies
Code. The trial court denied the motion, and Martin & Drought appeal.
DISCUSSION
In determining whether an appeal is frivolous, the trial court may consider whether the
appellant has presented a substantial question for appellate review. TEX. CIV. PRAC. & REM.
CODE ANN. § 13.003(c) (Vernon 2002). A proceeding is frivolous when it lacks an arguable
basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.
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App.—San Antonio 1998, order). We review a trial court’s determination of whether an appeal
is frivolous under an abuse of discretion standard. Id. A trial court abuses its discretion if it acts
without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985).
The trial court’s ruling in this case does not appear to be based on a determination of
whether the appeal lacked an arguable basis either in law or fact or presented a substantial
question for appellate review. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(c);
De La Vega, 974 S.W.2d at 154. Instead, the trial court’s decision appears to be based on its
belief that “people have a right to appeal” and because “the Court of Appeals has not stated that
[Kastner] can’t come back to Court.” The trial court appeared to believe it was only required “to
determine whether [Kastner] needed a record to go up on appeal.” The trial court concluded, “I
don’t think the issue of frivolity by Judge Peden or Judge Arteaga is frivolous in the sense that it
can’t be tested by the Appellate Court. To not give him a record of those things would disallow
the Court of Appeals to make that determination of whether it is, in fact, frivolous. Because
that’s not been determined by the Court of Appeals yet.” Based on these statements, it does not
appear that that the trial court acted in reference to the guiding rules and principles for
determining whether an appeal is frivolous, i.e., whether the appeal lacks an arguable basis either
in law or fact or fails to present a substantial question for appellate review. TEX. CIV. PRAC. &
REM. CODE ANN. § 13.003(c); De La Vega, 974 S.W.2d at 154.
“A court may find a plaintiff [to be] 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
and that: … (2) 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
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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.” TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(2) (Vernon 2002). At the
hearing on whether the appeal of the trial court’s order finding Kastner to be a vexatious litigant
would be frivolous, Martin & Drought admitted into evidence the pleadings in Kastner I and
Kastner II, the trial court’s summary judgments in those lawsuits, and this court’s opinions
disposing of the appeals of those judgments. Martin & Drought also introduced into evidence
the petition filed by Kastner in the underlying cause which pled claims arising out of the same
facts alleged in Kastner I and Kastner II. Finally, Martin & Drought introduced into evidence
the trial court’s findings of fact and conclusions of law in support of its order finding that
Kastner was a vexatious litigant. In its findings, the trial court initially recited the procedural
history of the three lawsuits. The trial court then found that the claims in Kastner III “arise out
of the same facts and transactions” alleged in Kastner I and Kastner II. The trial court also
found that Kastner was relitigating or attempting to relitigate, “in propria persona, the causes of
actions, claims, controversies, and issues of fact or law determined or concluded by a final
determination against the same Defendants as to whom litigation was finally determined in”
Kastner I and Kastner II. Moreover, the trial court found that Kastner was attempting to
relitigate, in propria persona, the validity of the determinations in Kastner I and Kastner II
against the same defendants as to whom the litigation was finally determined. Finally, the trial
court concluded that Kastner did not have a reasonable probability of prevailing against Martin
& Drought in Kastner III. Based on the evidence presented, we hold the trial court abused its
discretion in finding Kastner’s appeal not frivolous because the evidence conclusively
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established that an appeal of the trial court’s order lacked an arguable basis and such an appeal
would not present a substantial question for appellate review. TEX. CIV. PRAC. & REM. CODE
ANN. § 13.003(c); De La Vega, 974 S.W.2d at 154.
CONCLUSION
The trial court’s order is reversed. Judgment is rendered that the appeal by Kastner is
frivolous. Kastner is therefore ordered to pay the costs for the preparation of the reporter’s
record.
PER CURIAM
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