David Rodriguez v. Richard R. Storm Jr. H-E-B, LP, Law Office of Shelton & Valadez Mark A. Giltner William Tate And Stephen Martinez

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00642-CV
David RODRIGUEZ,
Appellant
v.
Richard R. STORM, Jr.; H-E-B, LP; Law Office of Shelton & Valadez; Mark A. Giltner;
William Tate; and Stephen Martinez,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-13590
Honorable Mary Lou Alvarez, Judge Presiding
&
No. 04-19-00795-CV
David RODRIGUEZ,
Appellant
v.
H-E-B, Jointly and Severally; William Tate, Jointly and Severally and as employee of H-E-B,
LP; Stephen Martinez, Jointly and Severally and as employee of H-E-B, LP; Meredith Reid as
employee of H-E-B LP, Jointly and Severally; Debra Ann Godoy as employee of H-E-B, LP,
Jointly and Severally; and Mark Giltner, Jointly and Severally,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-16263
Honorable Cynthia Marie Chapa, Judge Presiding
04-19-00642-CV & 04-19-00795-CV
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 6, 2020
AFFIRMED
In these consolidated appeals, David Rodriguez challenges the trial court’s orders
dismissing his claims in trial court cause number 2019-CI-13590 and declaring him to be a
vexatious litigant subject to a pre-filing order in trial court cause number 2019-CI-16263. We
affirm the trial court’s orders.
BACKGROUND
David Rodriguez filed a lawsuit in trial court cause number 2018-CI-23741 against HEB
and several HEB employees asserting loss of consortium claims on his own behalf and on behalf
of his minor son. The loss of consortium claims arose from emotional injuries Rodriguez’s wife
allegedly suffered while employed by HEB. An agreed order appointing Richard Storm, Jr. as the
minor’s attorney ad litem was signed on April 11, 2019, and the parties entered into a settlement
and release agreement on May 22, 2019. Pursuant to the settlement and release, Rodriguez
released all of his claims against all of the defendants in the pending cause, including the claims
brought on behalf of his minor son, and HEB paid $6,500 to Rodriguez and $1,000 to his minor
son. Both Storm and the trial court approved the settlement.
Rodriguez next sued Storm, HEB and its employees, and HEB’s attorneys Shelton &
Valadez and Mark Giltner in trial court cause number 2019-CI-13590 alleging claims relating to
the settlement, including claims for fraud and misrepresentation. All of the defendants filed
motions to dismiss Rodriguez’s claims on various grounds, including section 13.001 of the Texas
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Civil Practice and Remedies Code (“Code”). After a hearing, the trial court signed an order on
September 13, 2019, dismissing Rodriguez’s claims. 1
Rodriguez next sued HEB, its employees, and Giltner in trial court cause number 2019-CI-
16263, alleging they breached the settlement agreement and also alleging defamation claims for
statements made by the defendants in various pleadings. The defendants filed a motion requesting
the trial court to declare Rodriguez a vexatious litigant, require him to post security, and require
him to obtain court approval before filing any future litigation. After a hearing, the trial court
signed an order granting the defendants’ motion. In the order, the trial court expressly found: (1)
there was not a reasonable probability Rodriguez would prevail on his claims; (2) Rodriguez had
commenced, prosecuted, or maintained at least five litigations as a pro se litigant in the seven-year
period immediately preceding the date of the defendants’ motion that had been: (a) finally
determined adversely to him; (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; and (3) Rodriguez had continuously attempted to re-litigate decided matters.
Rodriguez appeals both the dismissal order and the order declaring him to be a vexatious
litigant. This court consolidated the appeals and ordered them to be disposed of by one opinion,
judgment, and mandate.
DISMISSAL ORDER
Rodriguez contends the trial court erred in entering the dismissal order because the only
motion set for a hearing was the defendants’ Rule 91a motion and the trial court did not find his
claims had no basis in law or fact.
1
Based on a motion to show authority, the trial court previously entered an order striking all pleadings Rodriguez
filed on behalf of his minor son.
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All of the defendants filed motions to dismiss asserting various grounds, including a motion
to dismiss “all of Plaintiffs’ claims” under section 13.001 of the Code. 2 Although Rodriguez
contends the trial court’s hearing was only to consider a Rule 91a motion to dismiss, the trial
court’s order set the hearing on “Defendants’ Motion to Dismiss and Motion to Dismiss Pursuant
to Rule 91a.”
At the hearing, the history of the prior lawsuit and the terms of the settlement and release
were detailed for the trial court. A portion of the hearing before the trial court seeking approval
of the settlement was read into the record, including Rodriguez’s testimony that he approved the
settlement and was not aware of any fraud, duress, compulsion, or undue influence that caused
him to accept the settlement. At the conclusion of the defendants’ presentation and argument, the
trial court clarified the defendants were moving to dismiss the cause under section 13.001(a)(2) of
the Code.
In response to Rodriguez’s contention that section 13.001 was not pled as a basis for the
dismissal, the trial court pointed Rodriguez to the specific page of the pleading setting forth section
13.001 as a ground for dismissal. When Rodriguez argued the section 13.001 motion to dismiss
was not set for the hearing, the trial court responded the motion set for the hearing encompassed
section 13.001. The trial court then instructed Rodriguez to explain how his claim was not
frivolous by establishing “what basis in law and fact [he] believe[d] [he] ha[d] to survive the
motion to dismiss.” See TEX. CIV. PRAC. & REM. CODE ANN. § 13.001(a)(2) (authorizing dismissal
of an action on a finding that “the action is frivolous or malicious”). After providing Rodriguez
an opportunity to explain, the trial court verbally pronounced the motion to dismiss was granted
and signed the order.
2
Separate motions asserting the same ground were filed by HEB and its employees and by Shelton & Valadez and
Giltner. Storm filed a pleading joining their motions to dismiss.
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A trial court may dismiss an action under section 13.001 in which an affidavit of inability
to pay is filed under Texas Rule of Civil Procedure 145 on a finding that “the action is frivolous
or malicious.” 3 Id. In determining whether an action is frivolous, a trial court may consider,
among other factors, whether a claim “has no arguable basis in law or in fact.” Id. § 13.001(b)(2).
“The standard of review for a dismissal pursuant to section 13.001 is whether the trial court abused
its discretion.” Black v. Jackson, 82 S.W.3d 44, 49 (Tex. App.—Tyler 2002, no pet.); see also
Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex. App.—San
Antonio 2004, no pet.) (noting abuse of discretion is standard for reviewing dismissal of frivolous
lawsuits under section 13.001). “A trial court abuses its discretion by failing to follow guiding
rules and principles.” Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018).
In his first two issues, Rodriguez contends the trial court erred in dismissing his claims
because the only motion set for the hearing was a Rule 91a motion to dismiss. Having reviewed
the pleadings and the trial court’s order setting the hearing, we overrule Rodriguez’s issues because
the record reflects the motions set for the hearing asserted section 13.001 as a ground for dismissal.
Rodriguez next contends the trial court erred in failing to file findings of fact and
conclusions of law. The only law cited by Rodriguez in support of this contention, however, is the
Texas Court of Criminal Appeals’ holding in State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim.
App. 2006), that a trial court is required to enter findings of fact and conclusions of law in ruling
on a motion to suppress. Cullen, however, is no authority for Rodriguez’s contention that such
findings and conclusions were required in this context. See TEX. R. APP. P. 38.1(i) (requiring
arguments in briefs to be supported by appropriate citations to authorities). And, we note authority
exists to support the absence of such a mandatory duty in ruling on a section 13.001 motion to
3
The record reflects Rodriguez filed a Rule 145 statement of inability.
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dismiss in this context. Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th
Dist.] 1990, no writ). Even if the trial court was required to enter findings of fact and conclusions
of law, however, such a failure does not require reversal unless Rodriguez was harmed by being
required to guess at the basis for the trial court’s order. See Mora v. Mora, No. 04-17-00428-CV,
2018 WL 4903079, at *4 (Tex. App.—San Antonio Oct. 10, 2018, pet. denied) (mem. op.). Here,
the statements made by the trial court on the record established the basis for its ruling; therefore,
Rodriguez was not required to guess at the basis for the ruling. Finally, the trial court was
presented with the release Rodriguez signed in the prior lawsuit and the reporter’s record of the
hearing at which the parties sought the trial court’s approval of the settlement which contained
Rodriguez’s testimony that he approved the settlement and was not aware of any fraud. 4
Accordingly, we hold the trial court did not abuse its discretion in granting the motion to dismiss.
VEXATIOUS LITIGANT ORDER
Rodriguez also challenges the trial court’s order declaring him to be a vexatious litigant,
requiring him to post security, and requiring him to obtain court approval before filing any future
litigation. Although Rodriguez presents three separate issues, all of his issues address whether the
trial court abused its discretion in entering the order and whether the evidence is sufficient to
support the findings made by the trial court in support of its order.
Section 11.054 of the Code contains the criteria for finding a plaintiff to be a vexatious
litigant and provides, in pertinent part:
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 and that:
(1) the plaintiff, in the seven-year period immediately preceding the date the
defendant makes the motion under Section 11.051, has commenced, prosecuted, or
4
We note the release required HEB to pay Rodriguez’s minor son $1,000 and to pay Rodriguez $6,500.00, and
Rodriguez knew the procedural history of the lawsuit when he signed the release.
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maintained at least five litigations as a pro se litigant other than in a 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 of procedure; [or]
(2) after a litigation has been finally determined against the plaintiff, the
plaintiff repeatedly relitigates or attempts to relitigate, pro se, 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[.]
TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1)–(2). In addition, section 11.101(a) provides:
A court may, on its own motion or the motion of any party, enter an order
prohibiting a person from filing, pro se, a new litigation in a court to which the
order applies under this section without permission of the appropriate local
administrative judge . . . if the court finds, after notice and hearing . . ., that the
person is a vexatious litigant.
Id. § 11.101(a)
Here, the order contains all of the findings required by section 11.054. Rodriguez,
however, contends the trial court abused its discretion in making the findings and the findings are
not supported by sufficient evidence. We note, however, that the reporter’s record of the trial
court’s hearing has not been filed because Rodriguez failed to pay for its preparation. We further
note Rodriguez failed to pay for the preparation of the reporter’s record despite orders from this
court informing him that such a failure would result in this court only considering those issues that
do not require a reporter’s record for a decision. See TEX. R. APP. P. 37.3(c). Because a reporter’s
record from the hearing is required to consider Rodriguez’s issues challenging the trial court’s
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vexatious litigant order, we do not further address them. Amrhein v. Bollinger, 593 S.W.3d 398,
404 (Tex. App.—Dallas 2019, no pet.) (quoting Willms v. Americas Tire Co., 190 S.W.3d 796,
803 (Tex. App.—Dallas 2006, pet. denied)) (holding that, without a reporter’s record of the hearing
resulting in a vexatious litigant order, an appellate court cannot review the trial court’s order for
an abuse of discretion and must presume the evidence presented was sufficient to support the trial
court’s order); In re Guardianship of L.S., No. 14-15-00494-CV, 2017 WL 1416190, at *5 (Tex.
App.—Houston [14th Dist.] Apr. 18, 2017, pet. denied) (mem. op.) (presuming evidence supported
trial court’s vexatious litigant determination based on absence of reporter’s record); see also In re
N.M.D., No. 04-13-00849-CV, 2014 WL 3339627, at *2 (Tex. App.—San Antonio July 9, 2014,
no pet.) (mem. op.) (noting appellate court cannot review a trial court’s order for an abuse of
discretion without a reporter’s record); Sareen v. Sareen, 350 S.W.3d 314, 317 (Tex. App.—San
Antonio 2011, no pet.) (“without a complete reporter’s record, it is impossible to review all the
evidence presented to the trier of fact or to apply the appropriate sufficiency standards”). The trial
court’s order is affirmed.
CONCLUSION
The trial court’s orders dismissing Rodriguez’s claims in trial court cause number 2019-
CI-13590 and declaring him to be a vexatious litigant subject to a pre-filing order in trial court
cause number 2019-CI-16263 are affirmed.
Sandee Bryan Marion, Chief Justice
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