Arcade J. Comeaux, Jr. v. Shellie Hamilton, RN, Dr. Dhariajlal Patel, Etal ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00170-CV
ARCADE J. COMEAUX, JR., APPELLANT
V.
SHELLIE HAMILTON, RN,
DR. DHARIAJLAL PATEL, ET AL, APPELLEES
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 101331-E, Honorable Douglas Woodburn, Presiding
March 17, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Arcade J. Comeaux, Jr., proceeding pro se, appeals an order entered
by the trial court declaring Comeaux a vexatious litigant.1 We will reverse.
1
The order from which Comeaux attempts to appeal does not even purport to
dispose of all issues and parties in his suit against appellees. While this raises an issue
concerning our jurisdiction to hear this appeal, we are persuaded by the Texarkana
court’s analysis finding jurisdiction over a similar order in Pandozy v. Beaty, 254 S.W.3d
613, 618-19 (Tex. App.—Texarkana 2008, no pet.).
Comeaux’s sole issue on appeal is:
Whether the trial court erred, abused its discretion and action(s) violated
the due process clause of both the statute and the constitutions when it
declared appellant a “vexatious litigant” on its own motion without the
mandatory notice, hearing and process required by the statutory’s
provision(s) and whether it erred in its dismissal of the case.
Appellees, Shellie Hamilton, Dhariajlal Patel, and Kirk Heil, filed a motion to dismiss this
appeal on December 7, 2013. By letter dated January 8, 2014, this Court denied
appellees’ motion. On January 31, 2014, appellees filed an “admission of procedural
error,” in which they admit that the trial court did not give Comeaux notice and a hearing
before declaring Comeaux a vexatious litigant, as required. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 11.053(a) (West 2002), .101(a) (West Supp. 2013); Turner v. Grant, No.
07-11-00250-CV, 2011 Tex. App. LEXIS 9250, at *6-9 (Tex. App.—Amarillo Nov. 22,
2011, no pet.) (mem. op.).
We review a determination that a person is a vexatious litigant under an abuse of
discretion standard. Pandozy, 254 S.W.3d at 619. We have reviewed the record and
determined that it does not contain any form of notice to Comeaux, and there is no
indication that the trial court held the required evidentiary hearing before declaring
Comeaux a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.053(a),
.101(a). Further, the record does not contain any evidence to support a declaration that
Comeaux is a vexatious litigant. See id. § 11.054 (West Supp. 2013); Turner, 2011
Tex. App. LEXIS 9250, at *7-8. Consequently, the trial court abused its discretion in
entering an order declaring Comeaux a vexatious litigant.
2
As such, we reverse and render judgment vacating the trial court’s April 9, 2013
Order declaring Comeaux to be a vexatious litigant. See TEX. R. APP. P. 43.2(c).
Mackey K. Hancock
Justice
3