Motion to Declare Plaintiff a Vexatious Litigant in Texas

What Is a Motion to Declare Plaintiff a Vexatious Litigant?

Background

In chapter 11 of the Civil Practice and Remedies Code, the legislature struck a balance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse our civil justice system. (Leonard v. Abbott (2005) 171 S.W.3d 451, 455 citing §§ 11.001-.055.)

Under chapter 11, a trial court may place limitations on the litigation activities of a person determined by the court to be a “vexatious litigant.” (See Tex. Civ. Prac. Rem. Code Ann. § 11.001-.055.) The purpose of chapter eleven is to restrict frivolous and vexatious litigation. (See Devoll v. State (2004) 155 S.W.3d 498, 501 [statute “provides a framework for courts and attorneys to curb vexatious litigation.”)

It does not authorize courts to act arbitrarily, but permits them to restrict a plaintiff's access to the courts only after first making specific findings that the plaintiff is a vexatious litigant based on factors that are closely tied to the likelihood that the incident litigation is frivolous. (See Tex. Civ. Prac. Rem. Code Ann. § 11.054; Liptak v. Banner, No. 3:01-CV-0953-M, 2002 U.S. Dist. LEXIS 940 (N.D.Tex. Jan. 18, 2002) at *12-13.)

Office of Court Administration, (the “OCA”) is required to maintain a list of vexatious litigants subject to prefiling orders under Section 11.101 of the Civil Practice and Remedies Code. (Id.) OCA has no discretion in maintaining the list, nor does it have the authority to remove a name from the list. In order to remove a name from the vexatious litigant list, OCA must receive an order directly from the issuing court vacating the prefiling order or from an appellate court reversing the order. (Id.)

How to Structure the Motion

Under section 11.051, a defendant may—within 90 days of filing an original answer or making a special appearance—move for an order determining that the plaintiff is a vexatious litigant and requiring him to furnish security. (Tex. Civ. Prac. & Rem. Code Ann. § 11.051.)

The court may determine that the plaintiff is a vexatious litigant if the defendant demonstrates that:

that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant; and
that the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations, other than in small claims court, that have been finally determined adversely to the plaintiff.

(See id. § 11.054; Pease v. Principal ResidentialMortg., Inc., No. 03-02-00491-CV, 2004 WL 1065639, at **4-5 2004 Tex.App. LEXIS 4279, at *14 [mem.op.])

The Court’s Decision

Upon the filing of such a motion, the trial court “shall, after notice to all parties, conduct a hearing to determine whether to grant the motion.” (Retzlaff v. GoAmerica (2011) 356 S.W.3d 689, 697 citing Tex. Civ. Prac. Rem. Code Ann. § 11.053(a).) The statutes set forth specific criteria that must be established before a vexatious litigant motion can be granted. (See id., citing § 11.054.)

“If the court determines, based on evidence presented at a hearing, that the defendant is a vexatious litigant, it must order the plaintiff to furnish security for the benefit of the moving defendant in an amount related to the costs and attorneys' fees the defendant anticipates incurring in defending the litigation.” (Leonard v. Abbott (2005) 171 S.W.3d 451, 455-56 citing Tex. Civ. Prac. Rem. Code Ann. § 11.055(a).)

If the plaintiff fails to furnish the court-ordered security by the time set in the order, the court must dismiss the suit. (See id. § 11.056.) The court may also, on its own motion or the motion of any party, enter a prefiling order prohibiting a plaintiff from filing, pro se, a new lawsuit in state court without leave of the local administrative judge. (See id. § 11.101.)

“[C]ourts have applied an abuse of discretion standard for frivolous lawsuits under section 13.001, an analogous chapter in the Civil Practice and Remedies Code. (See Thompson v. West (1991) 804 S.W.2d 575, 576, citing Johnson v. Lynaugh (1989) 766 S.W.2d 393, 394-95 [adopting and applying an abuse of discretion standard under section 13.001 of the Texas Civil Practice and Remedies Code]; see also W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 81 [2002].) Accordingly, ... the rationale for adopting an abuse of discretion standard under chapter thirteen is analogous to the concerns under chapter eleven. Therefore, courts adopt and apply an abuse of discretion standard. (Nell Nat. For. v. Vanguard UN (2004) 141 S.W.3d 668, 670.)

Note, however, that “...because section 11.054 requires a trial court to make certain evidentiary findings before it may exercise its discretion to declare a party a vexatious litigant, we also review those prescribed statutory evidentiary findings for legal and factual sufficiency.” (Donohue v. Bandera Cnty. Law Enf't Pers. (2020) No. 04-19-00273-CV, at *7.)

“Under the vexatious litigant statute, on the filing of a timely motion to declare the plaintiff a vexatious litigant, ‘the litigation is stayed’ until the motion is decided.” (Drum v. Calhoun (2010) 299 S.W.3d 360, 369 quoting Tex. Civ. Prac. Rem. Code Ann. § 11.052(a).)

Response

Subsection (d) of Section 11.103 provides that “[a] clerk of a court of appeals may file an appeal from a prefiling order entered . . . designating a person a vexatious litigant.” Civ. Prac. & Rem. § 11.103(d). Thus, an Appellant is permitted to appeal the vexatious litigant order, but where Appellant fails to include a statement delineating the issues or points presented for review on the matter, as required by Rule 38 of the Texas Rules of Appellate Procedure, the court must dismiss the appeal. (Stroble v. Livingston (2006) No. 11-16-00005-CV, at *5 citing Tex. R. App. P. 38.1. and affirming the trial court's orders in each case by which it declared Appellant a vexatious litigant.)

How to Make an Appeal of Vexatious Litigant Order

The Clerk of this Court may not file an appeal presented by a vexatious litigant subject to a prefiling order unless:

the litigant first obtains an order from the local administrative judge permitting the filing or
the appeal is from a prefiling order designating the person a vexatious litigant.

(Yazdchi v. Makansam Inc. (2020) No. 01-20-00008-CV, at 1, 3 citing Tex. Civ. Prac. & Rem. Code § 11.103(a), (d).)

Documents for Motion to Declare Plaintiff a Vexatious Litigant in Texas

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LIVESAY LAW OFFICE vs. Ethan Saenz,Nereida Singletarry document preview

Motion - RULE 28 MOTION

4 pages

Electronically Filed 3/25/2024 3:49 PM Hidalgo County District Clerks Reviewed By: Maria De Jesus Gonzal CASE NO. C-0590-24…

Case Name LIVESAY LAW OFFICE vs. Ethan Saenz,Nereida Singletarry