harvella-jones-v-marc-d-markel-clayton-r-hearn-amy-m-vanhoose-dawn ( 2015 )

Affirmed and Memorandum Opinion filed June 23, 2015.
In the
Fourteenth Court of Appeals
NO. 14-14-00216-CV
HARVELLA JONES, Appellant
V.
MARC D. MARKEL, CLAYTON R. HEARN, AMY M. VANHOOSE,
DAWN S. HOLIDAY, CLINTON FAVER BROWN, AND ROBERTS
MARKEL WEINBERG BUTLER HAILEY, PC AKA ROBERTS MARKEL
WEINBERG PC AKA ROBERTS MARKEL PC, Appellees
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 14-CCV-052079
MEMORANDUM OPINION
Appellant Harvella Jones argues that the trial court abused its discretion in
declaring her a vexatious litigant without the statutory findings required pursuant
to Texas Civil Practice and Remedies Code chapter 11. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2014, Jones filed the present lawsuit against Marc D. Markel,
Clayton R. Hearn, Amy M. Vanhoose, Dawn S. Holiday, Clinton Faver Brown,
Thi “Nina” Tran, James H. Leeland, Jonathan Anderson, and Roberts Markel
Weinberg Butler Hailey PC aka Roberts Markel Weinberg PC aka Roberts Markel
PC aka Roberts Markel Guerry PC. Jones brought a claim of fraud and conspiracy
to commit fraud, alleging that the defendants, who at various times represented the
Villages of Town Center Owners Association, Inc., conspired to commit fraud
upon her to conceal the “true proxy count” of the resolution passed by the
association when it annexed her property in 2002.
In February 2014, Markel, Hearn, Vanhoose, Holiday, Brown, and Roberts
Markel Weinberg Butler Hailey PC (the Markel appellees) filed a motion to
declare Jones a vexatious litigant. Tran, Leeland, and Anderson did not join in the
motion.1 The trial court conducted a hearing on March 11, 2014. At the hearing,
Jones protested that she had not received notice of the vexatious litigant motion
and of the hearing, and requested time to prepare a response.
On March 12, 2014, the trial court granted the motion, declaring Jones a
1
Jones noticed her appeal from the trial court’s March 12, 2014 order granting the
Markel appellees’ motion. The record also indicates Jones conferred with Tran and Leeland’s
attorney and requested Tran and Leeland withdraw their request that certain material be included
in the clerk’s record because Tran and Leeland “are not” “included in the appeal.”
Jones did not name Tran, Leeland, and Anderson as appellees in her brief. Tran and
Leeland filed a brief as appellees, and Jones filed a separate reply brief as to them. Anderson did
not file anything. “An appellee . . . must be someone against whom the appellant raises issues or
points of error in the appellant’s brief.” Showbiz Multimedia, LLC v. Mountain States Mortg.
Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Because
Jones’s issue concerns the trial court’s actions in connection with the Markel appellees’
vexatious litigant motion, which is consistent with her not naming Tran, Leeland, and Anderson
in her brief as appellees, we do not consider them as parties to this appeal. See id. (noting that
“an appellee need not be definitively identified until the appellant’s brief is filed”).
2
vexatious litigant, requiring her to post a bond as security, continuing abatement of
the lawsuit, and prohibiting her from filing new pro se litigation without
permission from a local administrative judge. The record below reveals the
following regarding Jones’s prior involvement in various court proceedings:
 In 2005, Jones filed a lawsuit against the association in the
240th Judicial District Court of Fort Bend County, Texas.
Jones disputed the legality of the 2002 annexation of her
property by the association due to lack of a quorum. After a
trial, the trial court found that a proper quorum existed, and
signed its final judgment on November 10, 2005.
 In 2006, Jones along with 35 other plaintiffs filed a lawsuit
against the association in the 240th Judicial District Court of
Fort Bend County, Texas. Jones sought a declaratory judgment
that the 2002 annexation was illegal because the association
committed fraud. The trial court dismissed this case on August
9, 2006, and the First Court of Appeals dismissed the appeal on
June 21, 2007.
 In 2008, Jones filed a lawsuit against Compass Bank in the
434th Judicial District Court of Fort Bend County, Texas. The
suit was removed to the Southern District of Texas and
dismissed with prejudice on November 26, 2008. The Fifth
Circuit upheld the dismissal on July 30, 2009.
 Sometime after November 8, 2010, Jones filed an appeal in the
U.S. Court of Appeals Federal Circuit in which she disputed a
U.S. Court of Appeals for Veteran Claims ruling. The Federal
Circuit affirmed the lower court’s ruling against Jones on
September 20, 2011.
 In 2011, Jones filed a lawsuit against the association in the
240th Judicial District Court of Fort Bend County, Texas.
Jones sought a declaratory judgment that the 2002 annexation
was illegal because there were not enough votes to pass the
annexation. The trial court granted traditional summary
judgment in favor of the association based on res judicata on
February 28, 2012, which ruling this court upheld. Jones v.
Villages of Town Ctr. Owners Ass’n, No. 14-12-00306-CV,
2013 WL 2456873, at *5, 7 (Tex. App.—Houston [14th Dist.]
3
June 6, 2013, pet. denied) (mem. op.).
 In 2012, Jones filed a lawsuit for libel and business
disparagement against Michael Fitzmaurice and others
(collectively, Fitzmaurice) in the 155th Judicial District Court
of Waller County, Texas. Fitzmaurice filed a motion to dismiss
based on the Anti-SLAPP statute,2 which the trial court denied.
Fitzmaurice appealed, and this court reversed and remanded for
the trial court to dismiss the case and award attorney’s fees to
Fitzmaurice. Fitzmaurice v. Jones, 417 S.W.3d 627, 634 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). The trial court
signed its final order dismissing the case on January 23, 2014.
 In 2013, Jones filed a petition for writ of mandamus in the
Supreme Court of Texas where the respondent was Judge
Thomas Culver of the 240th Judicial District Court of Fort
Bend County, Texas, and the real party in interest was the
association. The Supreme Court of Texas denied Jones’s
petition on September 20, 2013.
 Also in 2013, Jones filed a petition for writ of mandamus in the
Supreme Court of Texas where the respondent was Judge Jeff
Steinhauser of the 155th Judicial District Court of Waller
County, Texas, and the real party in interest was Fitzmaurice.
The Supreme Court of Texas denied Jones’s petition on January
3, 2014.
On appeal, Jones contends that the trial court abused its discretion because
the facts and the law do not support the court’s decision to grant the Markel
appellees’ motion to declare Jones a vexatious litigant. See Tex. Civ. Prac. &
Rem. Code Ann. § 11.101(c) (West, Westlaw through 2015 R. Sess.).
2
Chapter 27 of the Texas Civil Practice and Remedies Code is the Texas Anti-SLAPP
statute, where SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.”
Jardin v. Marklund, 431 S.W.3d 765, 767, 769 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
4
II. ANALYSIS
A. Standard of review
We review a trial court’s determination that a plaintiff is a vexatious litigant
for an abuse of discretion. Cantu v. Dominguez, No. 14-08-00156-CV, 2009 WL
3365854, at *4 (Tex. App.—Houston [14th Dist.] Sept. 10, 2009, pet. denied)
(mem. op.). “A trial court abuses its discretion when it rules arbitrarily,
unreasonably, without regard to guiding legal principles, or without supporting
evidence.” Id. (citing Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex. App.—
Austin 2005, pet. denied)).
The trial court’s order in this case does not recite any findings. It states that
the court heard and granted the motion to declare Jones a vexatious litigant. When
the trial court does not specify the basis for its decision, we must affirm the order if
it is correct on any legal theory supported by the record. Douglas v. Elliott, No.
14-12-01025-CV, 2014 WL 1410190, at *5 (Tex. App.—Houston [14th Dist.] Apr.
10, 2014, no pet.) (mem. op.); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990) (per curiam); Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—
Houston [14th Dist.] 1993, no writ).
B. Notice
As a subissue, Jones argues that she did not receive notice of the Markel
appellees’ motion to declare her a vexatious litigant. Jones contends that she
received the notice on March 12, after the hearing took place. The Markel
appellees respond that Jones has not rebutted the presumption of proper notice
based on their certificate of service. They further argue even if Jones did not
receive actual notice, then sufficient constructive notice exists where the record
indicates that the motion was “available for pickup” but Jones chose not to do so.
5
Rule 21a authorizes service in person, by agent, by courier-receipted
delivery, or by certified or registered mail, to the party’s last known address. Tex.
R. Civ. P. 21a; Jacobs v. Jacobs, 448 S.W.3d 626, 632 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). Service by certified mail is complete when the documents
are deposited in a properly addressed envelope, postage prepaid, in a post office or
official depository of the United States Postal Service. Tex. R. Civ. P. 21a;
Jacobs, 448 S.W.3d at 632. A certificate of service by an attorney of record is
prima facie evidence of the fact of service, and creates a presumption of receipt,
rebuttable through proof of nonreceipt. See Tex. R. Civ. P. 21a(e); Mayfield v.
Fullhart, 444 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). “The opposing party may present evidence to rebut the presumption that
notice was received.” Jacobs, 448 S.W.3d at 632.
The serving party also may establish “constructive notice” by demonstrating
compliance with rule 21a and presenting evidence that the intended recipient
engaged in instances of selective acceptance or refusal of certified mail relating to
the case. Id. at 632, 635 (concluding there was “some record evidence of the
method and manner of . . . service, and that [party] avoided service and refused
delivery of certified mail to a valid business address to support constructive
notice”).
The Markel appellees’ certificate of service states that Jones was served as
of February 28 by certified mail, return receipt requested, and provides the tracking
number, creating the presumption of receipt. However, even allowing that Jones
did not receive actual notice of the motion and hearing until March 12, she had
sufficient constructive notice. At the hearing, the Markel appellees presented a
printout, and Jones acknowledged, that the Postal Service placed the motion in her
own P.O. Box and that she was notified it was “available for pickup” as of March
6
4, more than three days prior to the March 11 hearing. See Tex. R. App. P. 21.
Jones also testified that she could have “picked [the motion] up and read it.”
Moreover, Jones has offered no explanation for why her refusal to pick up her
“available” mail does not constitute constructive notice. See Jacobs, 448 S.W.3d
at 635.
Under these circumstances, we conclude that the record reveals some
evidence to support the trial court’s implicit finding—imputing constructive notice
of the vexatious-litigant hearing to Jones. See id. Therefore, the trial court did not
abuse its discretion, and we overrule this subissue.
C. Vexatious litigant
Jones primarily challenges the trial court’s determination that she is a
vexatious litigant. In particular, Jones asserts that the trial court abused its
discretion by granting the Markel appellees’ motion “‘without’ the statutory
findings” under chapter 11 of the Texas Civil Practice and Remedies Code. The
Markel appellees respond that their evidence meets the statutory requirements.
Chapter 11 of the Texas Civil Practice and Remedies Code governs lawsuits
brought by vexatious litigants. Douglas v. Redmond, No. 14-12-00259-CV, 2012
WL 5921200, at *5 (Tex. App.—Houston [14th Dist.] Nov. 27, 2012, pet. denied)
(mem. op.). Under chapter 11, a trial court “may find a plaintiff a vexatious
litigant” if certain statutory elements are met. See Tex. Civ. Prac. & Rem. Code
Ann. § 11.054 (West, Westlaw through 2015 R. Sess.). If the trial court
determines, based on evidence presented at a hearing, that the plaintiff is a
vexatious litigant, it must order her to furnish security for the benefit of the moving
defendants in an amount related to the costs and attorneys’ fees the defendants
anticipate incurring in defending the litigation. See id. § 11.055 (West, Westlaw
7
through 2015 R. Sess.). If the plaintiff fails to furnish the court-ordered security by
the time set in the order, the court must dismiss the suit as to the moving
defendants. See id. § 11.056 (West, Westlaw through 2015 R. Sess.). The court
also may 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 (West, Westlaw through 2015 R. Sess.).
Two requirements must be satisfied before a trial court may declare a
plaintiff a vexatious litigant. See id. § 11.054; Elliot, 2014 WL 1410190, at *4.
First, the defendant must show there is not a reasonable probability that the
plaintiff will prevail in the litigation. See Tex. Civ. Prac. & Rem. Code Ann.
§ 11.054; Elliot, 2014 WL 1410190, at *4.
Second, the defendant must show one of three statutory circumstances:
(1) the plaintiff, in the seven-year period immediately preceding the
date the defendant makes the motion, has commenced, prosecuted, or
maintained as a pro se litigant at least five litigations 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;
(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; or
8
(3) the plaintiff has previously been declared to be a vexatious litigant
by a state or federal court in an action or proceeding based on the
same or substantially similar facts, transition, or occurrence.
Tex. Civ. Prac. & Rem. Code Ann. § 11.054; see also Elliot, 2014 WL 1410190, at
*4–5 (applying former version containing “in propria persona” instead of “pro se”
language).
Because a trial court may exercise its discretion to declare a party a
vexatious litigant (as it did here) only if the defendant has made the required
showings, we imply findings that the requirements have been met, and we review
those findings for legal and factual sufficiency. See Leonard, 171 S.W.3d at 459;
see also Redmond, 2012 WL 5921200, at *6 (considering “whether the evidence
was sufficient to support the trial court’s declaration”).
1. No reasonable probability of prevailing
In their motion, the defendants argued that Jones had no reasonable
probability of prevailing in the present suit due to res judicata or the running of the
statute of limitations for fraud. We conclude the record supports an implied
finding that Jones had no reasonable probability of prevailing due to limitations.
Texas law prescribes a four-year statute of limitations for fraud actions.3 See
Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a) (West, Westlaw through 2015 Rawle
3
In their motion, the Markel appellees argued that Jones’s conspiracy claim was not a
separate cause of action apart from fraud and did not argue that any other statute of limitations
applied. On appeal, Jones consistently characterizes her claim against the defendants as
“conspiracy to commit fraud with their client on a third-party, Plaintiff Harvella Jones.”
Although the precise nature of Jones’s claims is not before us, we note this court has recognized
that a two-year statute of limitations applies to conspiracy-to-defraud claims. See Navarro v.
Grant Thornton, LLP, 316 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(discussing binding precedent in this court applying section 16.003 to conspiracy-to-defraud
claims).
9
Sess.); Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 216 (Tex.
2011); Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 226 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). A cause of action for fraud accrues on the date that the
fraud is perpetrated—when the defendant makes the allegedly false
representations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.
1988); Seureau, 274 S.W.3d at 226. If the fraud is concealed, however, “[t]he
statute of limitations for fraud begins to run from the time the party knew of the
misrepresentation.” Emerald Oil, 348 S.W.3d at 216 (citing Little v. Smith, 943
S.W.2d 414, 420 (Tex. 1997)); see Seureau, 274 S.W.3d at 227–28.
Jones’s fraud claim arises from alleged misrepresentations related to the
number of proxy votes cast for the 2002 annexation. Consequently, Jones’s cause
of action accrued when the defendants allegedly misrepresented the proxy vote.
According to Jones, defendant Markel of defendant Roberts Markel Weinberg
Butler Hailey PC allegedly misrepresented the proxy count sometime before Jones
decided to pursue the quorum issue in her 2005 lawsuit. Therefore, Jones’s fraud
cause of action accrued sometime in 2005, which was the earliest the defendants
allegedly made false representations as to the proxy count. Defendants working
for the same defendant firm allegedly also were involved in misrepresenting such
proxy count during trial of the 2005 lawsuit, and allegedly continued to perpetuate
the false proxy count through two additional lawsuits filed by Jones and others, in
2006 and 2011.
“Irrespective of the potential effect of fraudulent concealment . . . on
limitations, actual knowledge of alleged injury-causing conduct starts the clock on
the limitations period.” Emerald Oil, 348 S.W.3d at 209. According to Jones, she
discovered the true, much-lower proxy count on her own in 2009. Indeed, after
this discovery, in 2011, Jones filed a declaratory judgment action against the
10
association alleging the annexation was illegal because the association did not have
enough votes to pass the 2002 annexation. Therefore, even if tolling based on
fraudulent concealment could apply here (which we need not decide), Jones had
sufficient knowledge in 2009 that the defendants had misrepresented the proxy
count.
Jones cites Likover v. Sunflower Terrace II, Ltd., apparently in support of
applying an exception to delay accrual or toll limitations in her case. Likover (and
its progeny) provides that attorneys may be liable for fraud if they knowingly
commit a fraudulent act that injures a third person, or knowingly enter into a
conspiracy to defraud a third person while representing their client. 696 S.W.2d
468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ); see also Gaia Envtl., Inc.
v. Galbraith, 451 S.W.3d 398, 404 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (discussing cases). While Likover certainly provides a basis for third
parties to bring fraud claims against attorneys, Likover does not provide for any
exception to the application of limitations simply because the fraud involved
attorneys, and we have not discovered any case that does. Here, no exception
applies to toll the statute or extend the accrual date any later than sometime in
2009. Since Jones did not bring this lawsuit until January 13, 2014, more than four
years after the statute began to run, her fraud claim is time barred. See Seureau,
274 S.W.3d at 227, 229–30.
We conclude there is legally sufficient evidence to support the finding that
there is not a reasonable probability that Jones will prevail in the litigation against
the defendants, and such finding is not so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. See Tex. Civ. Prac. & Rem. Code
Ann. § 11.054; Elliot, 2014 WL 1410190, at *5; Leonard, 171 S.W.3d at 460.
Therefore, the trial court could have implicitly found the first requirement under
11
section 11.054 satisfied. See Elliot, 2014 WL 1410190, at *5 (judicial immunity in
constitutional violation case); see also Redmond, 2012 WL 5921200, at *7 (no
duty existed and case law foreclosed recovery in professional negligence case).
2. Commencing or maintaining five litigations under section
11.054(1)
Next, we consider whether the record supports an implied finding that the
Markel appellees proved the second requirement.4
A trial court may find a plaintiff is a vexatious litigant if the plaintiff, pro se,
has commenced or maintained five litigations in a court of record, all of which
were within seven years of the defendant’s motion and were adversely determined
against the plaintiff. Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1)(A). Chapter
11 defines a “litigation” as “a civil action commenced, maintained, or pending in
any state or federal court.” Id. § 11.001(2) (West, Westlaw through 2015 R. Sess.).
“The language of these statutes plainly encompasses appeals. . . . [A] person who
files a notice of appeal is maintaining litigation.” Retzlaff v. GoAmerica Comm’ns
Corp., 356 S.W.3d 689, 699 (Tex. App.—El Paso 2011, no pet.). In addition, “a
person who seeks mandamus relief commences a civil action in the appellate
court.” Id. at 700. In Retzlaff, a denial of a mandamus petition aimed at a trial
judge’s refusal to rule on motions counted as a separate adverse determination for
purposes of section 11.054(1). Id. at 701. The court of appeals noted it was a
“separate, original proceeding that did not challenge the trial court’s final decision
in the underlying case or relate to the merits of the underlying case.” Id. at 700.
To satisfy the second requirement, the Markel appellees offered multiple
4
In their vexatious litigant motion, the Markel appellees also argued that Jones’s
litigation activities met subsection (2) of section 11.054. Because we conclude that the trial
court properly could have determined that Jones fell within subsection (1), we do not reach this
alternative ground. See Tex. R. App. P. 47.1.
12
exhibits5 in an attempt to show that Jones commenced or maintained six litigations
after February 28, 2007, which is seven years prior to when the Markel appellees
filed their vexatious litigant motion:
(1) Jones’s litigation against Compass Bank, filed July 30, 2008;
(2) Jones’s litigation against the Secretary of Veterans Affairs,
Federal Circuit appeal noticed sometime after November 8,
2010;
(3) Jones’s litigation against the association, filed August 9, 2011;
(4) Jones’s litigation against Fitzmaurice, filed June 28, 2012;
(5) Jones’s mandamus proceeding where the association was the
real party in interest, filed August 12, 2013; and
(6) Jones’s mandamus proceeding where Fitzmaurice was the real
party in interest, filed November 21, 2013.
Jones argues that the Markel appellees did not show the requisite five
litigations in the seven-year period under the statute because numbers 2, 3, 5, and 6
should not be counted.6 First, with regard to number 2, Jones asserts that she was
represented by counsel in her claim seeking Veterans benefits after her husband’s
death, and that such pension claim was commenced in 2004. However, the record
reflects that sometime after November 8, 2010, which falls within the seven-year
period, Jones brought a pro se appeal, which counts as maintaining a litigation pro
se. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1); Retzlaff, 356 S.W.3d 689
at 700. Therefore, number 2 counts as one litigation.
Next, Jones argues that number 3 should not be counted essentially because
it involved fraud. The statute does not provide for any exception based on fraud.
5
These exhibits included various trial and appellate state and federal court filings, orders,
judgments, opinions, and notices. The trial court overruled Jones’s relevancy objection, and
Jones does not challenge this ruling on appeal.
6
Jones does not dispute that numbers 1 and 4 should be counted.
13
See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1); Leonard, 171 S.W.3d at 459
(noting that “the statute only excludes litigation filed in small claims court” in
rejecting plaintiff’s argument election contest should not be counted). Jones
provides, and we have uncovered, no authority to support her position that fraud
cases do not count under section 11.054(1). Therefore, number 3 counts as one
litigation.
With regard to numbers 5 and 6, Jones argues that the two petitions for writs
of mandamus she filed in the Supreme Court of Texas should not be separately
counted in addition to the litigation against the association, number 3, and the
litigation against Fitzmaurice, number 4. Without explanation, Jones argues that
her writs did not fall within Retzlaff because they challenged “the trial court’s final
decision in the underlying case or relate[d] to the merits of the underlying case.”
She also notes that she initiated her writs in the court of appeals, not in the trial
court. We need not decide whether both mandamus proceedings count as separate
litigations because we conclude that number 6 does, meeting the five-litigation
threshold for section 11.054(1). See Retzlaff, 356 S.W.3d at 699.
In Retzlaff, the court of appeals indicated that where a mandamus proceeding
did not relate to the merits of or challenge the trial court’s final decision in the
underlying case, it may be counted for purposes of section 11.054(1). Id. at 701.
Retzlaff did not, however, indicate that whether the mandamus petition was filed in
the court of appeals or the Supreme Court would affect, much less preclude,
whether the proceeding counted. In her mandamus petition involving Fitzmaurice
as the real party in interest, Jones complained of this court’s error in reversing the
trial court’s denial of Fitzmaurice’s motion to dismiss “because discovery was
stayed.” As in the mandamus proceeding at issue in Retzlaff, Jones did not attack
the merits of the underlying case. Nor did Jones’s petition relate to the trial court’s
14
final decision in the underlying case—the trial court did not issue its final order
until after the Supreme Court denied her petition. Therefore, as in Reztlaff, where
the appellate court counted both an appeal and a mandamus proceeding arising
from the same underlying case, we conclude it is proper to separately count both
numbers 4 and 6.7 See id.
On this record, Jones’s litigation against Compass Bank counts as one
litigation; Jones’s litigation against the Secretary of Veterans Affairs counts as one
litigation; Jones’s litigation against the association counts as one litigation; Jones’s
litigation against Fitzmaurice counts as one litigation; and Jones’s mandamus
proceeding where the real party in interest was Fitzmaurice counts as one
litigation, totaling five litigations as a pro se litigant within the seven-year period.
See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1). And although Jones does not
complain that any of these litigations were not “finally determined adversely” to
her, the record confirms these five litigations also meet this qualification. See id.
§ 11.054(1)(A).
We conclude there is legally sufficient evidence to support the finding that
in the seven years preceding the Markel appellees’ filing their motion, Jones had
commenced, prosecuted, or maintained at least five lawsuits as a pro se litigant
other than in small claims court that were finally determined adversely to her, and
such finding is not so contrary to the evidence as to be clearly wrong and unjust.
See id. § 11.054(1)(A); Leonard, 171 S.W.3d at 460. Therefore, the trial court
could have implicitly found the second requirement under section 11.054(1)(A)
satisfied. See Redmond, 2012 WL 5921200, at *7; Retzlaff, 356 S.W.3d at 701;
Leonard, 171 S.W.3d at 459–60.
7
Also as in Retzlaff, no double-counting occurs here where the Markel appellees did not
seek to separately count both the trial and appellate portions of Jones’s lawsuit against
Fitzmaurice. See 356 S.W.3d at 700.
15
With both requirements of section 11.054 satisfied, we conclude that the trial
court did not abuse its discretion by declaring Jones a vexatious litigant. See
Elliott, 2014 WL 1410190, at *5; Redmond, 2012 WL 5921200, at *7–8; Leonard,
171 S.W.3d at 460.
We overrule Jones’s issue.
D. Additional subissues
In its March 12 order, the trial court ordered continued abatement of the
lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 11.052 (West, Westlaw through
2015 R. Sess.). For the first time on appeal, Jones asserts that the trial court should
not have abated the entire lawsuit because Tran, Leeland, and Anderson did not
join in the vexatious litigant motion. To preserve error for appellate review, a
timely and reasonably specific objection, followed by an adverse ruling, is
required. Tex. R. App. P. 33.1(a). The record fails to reveal that Jones raised this
complaint in the trial court. Therefore, Jones has waived this subissue on appeal.
See id.
Next, Jones asserts that the filed reporter’s record “has content that differ[s]”
from the hearing. Without any citation to the record, Jones claims she requested an
audio copy of the March 11 hearing but was informed that it was destroyed.
Absent proof, Jones is not entitled to a new trial. See Houser v. McElveen, No. 13-
05-00426-CV, 2010 WL 1256054, at *4 (Tex. App.—Corpus Christi Apr. 1, 2010,
pet. denied) (mem. op.) (citing Tex. R. App. P. 34.6(f)). We overrule this subissue.
16
III. CONCLUSION
Accordingly, having disposed of Jones’s issue and subissues, we affirm the
trial court’s order.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Busby, and Brown.
17