Michael Kennedy, TDCJ 01516203 v. Kaycee Jones ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00068-CV
MICHAEL KENNEDY, TDCJ #01516203, Appellant
V.
KAYCEE JONES, ET AL., Appellee
On Appeal from the 258th District Court
Polk County, Texas
Trial Court No. CIV32610
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
After his Chapter 14 inmate lawsuit was dismissed for want of jurisdiction, Michael
Kennedy sued Kaycee Jones, the district court judge who entered the dismissal, the justices of the
Ninth Court of Appeals, the justices of the Texas Supreme Court, and others for abuse of power,
discrimination, false imprisonment, and other claims. Kennedy “has, for decades, been a prolific
‘writ writer’ and a Texas prison inmate.” Kennedy v. Staples, 336 S.W.3d 745, 746 (Tex. App.—
Texarkana 2011, no pet.) (footnote omitted) (finding that Kennedy had filed 253 separate appellate
court proceedings as of 2011). After a June 7, 2019, hearing at which Kennedy appeared, the
258th Judicial District Court of Polk County, Texas, declared Kennedy a vexatious litigant and
ordered him to furnish security by July 6, 2019, in the amount of $5,000.00 to proceed in the case.
The trial court also entered a prefiling order prohibiting Kennedy from filing any new litigation
without first obtaining permission from a local administrative judge.
In this interlocutory appeal, Kennedy raises several issues unrelated to the vexatious
litigant finding. 1 For reasons shown below, we only have jurisdiction to address the trial court’s
prefiling order. As a result, we dismiss all of Kennedy’s arguments on appeal that do not relate to
the prefiling order for want of jurisdiction. We also find that Kennedy raises no cognizable
complaint about the prefiling order, which we affirm.
First, if a trial court determines that a plaintiff is a vexatious litigant, it “shall order the
plaintiff to furnish security for the benefit of the moving defendant.” TEX. CIV. PRAC. & REM.
1
Originally appealed to the Ninth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Count following the recusal of the Ninth Court. We follow the precedent of the Ninth Court of Appeals in deciding
this case. See TEX. R. APP. P. 41.3.
2
CODE ANN. § 11.055. “There is no interlocutory appeal available from an order declaring a
plaintiff to be a vexatious litigant and requiring him to furnish security.” Florence v. Rollings,
No. 02-17-00313-CV, 2018 WL 4140458, at *2 (Tex. App.—Fort Worth Aug. 30, 2018, no pet.)
(mem. op.) (citing Restrepo v. Alliance Riggers & Constructors, Ltd., No. 08-15-00011-CV, 2015
WL 999950, at *1 (Tex. App.—El Paso Mar. 4, 2015, no pet.) (mem. op.); Lagaite v. Boland,
No. 07-12-0422-CV, 2012 WL 6213259, at *1–2 (Tex. App.—Amarillo Dec. 13, 2012, no pet.)
(mem. op.); Douglas v. Honorable Tex. Bd. of Pardons & Paroles, No. 14-11-00527-CV, 2012
WL 1154367, at *1 (Tex. App.—Houston [14th Dist.] Apr. 5, 2012, no pet.) (mem. op.); Almanza
v. Keller, 345 S.W.3d 442, 443 (Tex. App.—Waco 2011, no pet.)). To the extent Kennedy’s appeal
can be construed as relating to the Section 11.055 order, we dismiss that portion of the appeal for
want of jurisdiction.
Next, there is no final judgment in this case. 2 “This Court’s appellate jurisdiction is limited
to appeals from final judgments and such interlocutory orders as the legislature has deemed
appealable.” Ceasar v. Wells Fargo Bank, N.A., No. 09-19-00374-CV, 2019 WL 6606792, at *1
(Tex. App.—Beaumont Dec. 5, 2019, no pet. h.) (per curiam) (mem. op.) (citing TEX. CIV. PRAC.
& REM. CODE ANN. § 51.014; City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993)
(per curiam)); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.012; Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). Several of Kennedy’s complaints raise issues that are either
unrelated to the trial court’s prefiling order, go to the merits of the case, have not been decided by
2
Although the defendants moved to dismiss the case for failure to furnish security, Kennedy’s claims have not yet
been dismissed.
3
the trial court, or constitute an impermissible collateral attack on his final conviction. We dismiss
these issues for want of jurisdiction as well.
The only issue before us within our jurisdiction is Kennedy’s prefiling order. A court may
enter an order prohibiting a person from filing new litigation in a court in this state if the person is
a vexatious litigant. 3 TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a). “Section 11.101(c)
expressly permits an appeal from a prefiling order: ‘[a] litigant may appeal from a prefiling order
entered under [section 11.101(a)] designating the person a vexatious litigant.” Florence, 2018 WL
4140458, at *3 (alterations in orginal) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(c)
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(d) (“permitting appellate-court clerk to file
an appeal from a prefiling order entered under section 11.101”)). The Beaumont Court of Appeals
has interpreted Section 11.101(c) as providing for an interlocutory appeal of the prefiling order.
Jones v. Carter, No. 09-16-00081-CV, 2016 WL 2941412, at *1 (Tex. App.—Beaumont May 19,
2016, no pet.) (mem. op.).
“The trial court’s determination that appellant is a vexatious litigant is reviewed under an
abuse of discretion standard.” Newby v. Quarterman, No. 09-08-00385-CV, 2009 WL 3763790,
at *2 (Tex. App.—Beaumont Nov. 12, 2009, no pet.) (mem. op.) (citing Douglas v. Am. Title Co.,
3
On June 7, 2019, the 258th Judicial District Court of Polk County, Texas, declared Kennedy a vexatious litigant. As
a result, Kennedy has been on the State of Texas’s list of vexatious litigants since that date. See generally TEX. CIV.
PRAC. & REM. CODE ANN. §§ 11.051–.057. Pursuant to that order, Kennedy is specifically prohibited from filing any
new litigation, including an appeal, in a court of this State without first obtaining permission from a local
administrative judge. Order, Michael Kennedy v. Kaycee Jones, et al., No. CIV32610 (258th Jud. Dist. Ct. Polk Cty.
June 7, 2019), available at https://www.txcourts.gov/media/1444585/michael-kennedy.pdf; see TEX. CIV. PRAC. &
REM. CODE ANN. §§ 11.101–.102. A “local administrative judge . . . may grant permission to a vexations litigant
subject to a prefiling order under Section 11.101 to file a litigation only if it appears to the judge that the litigation:
(1) has merit; and (2) has not been filed for the purposes of harassment or delay.” TEX. CIV. PRAC. & REM. CODE
ANN. § 11.102(d)(1)–(2).
4
196 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). “The trial court abuses its
discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles.” Id.
(quoting Douglas, 196 S.W.3d at 879). “When the trial court makes no formal findings of fact or
conclusions of law (as is the case here), we must presume the trial court made all findings necessary
to support its judgment.” Id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam)). “In such situations, the trial court’s ruling must not be disturbed if ‘it can be upheld
on any legal theory that finds support in the evidence.’” Id. (quoting Worford, 801 S.W.2d at 109).
The trial court’s order was based on evidence presented by the Appellees showing that all
prerequisites to declaring a person a vexatious litigant had been met. See TEX. CIV. PRAC. & REM.
CODE ANN. § 11.054. While Kennedy does not specifically mention the prefiling order, his brief
states that he “was improperly under vexatious.” Even so, Kennedy makes no argument
challenging the Appellees’ evidence showing that the Section 11.054 requirements were met and
does not otherwise argue that the trial court abused its discretion in finding him to be a vexatious
litigant. Because there is no “colorable argument regarding the Court’s order that he be declared
vexatious,” the Appellees argue that Kennedy has waived the issue as a result of inadequate
briefing. We agree.
“Although we liberally construe pro se briefs, litigants who represent themselves are held
to the same standards as litigants represented by counsel.” Hollis v. Acclaim Physician Grp., Inc.,
No. 02-19-00062-CV, 2019 WL 3334617, at *3 (Tex. App.—Fort Worth July 25, 2019, no pet.)
(per curiam) (mem. op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.
5
1978)). “To hold otherwise would give pro se litigants an unfair advantage over litigants with an
attorney.” Id.
“The Texas Rules of Appellate Procedure require that a brief ‘contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the record.’”
Id. (citing TEX. R. APP. P. 38.1(i); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880
(Tex. 2010) (“recognizing that “[t]he Texas Rules of Appellate Procedure require adequate
briefing”)). “The appellate court has no duty to brief issues for an appellant.” Id. (citing Huey v.
Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.)). Even on interlocutory appeal
from a prefiling order, “[i]n the absence of appropriate record citations or a substantive analysis, a
brief does not present an adequate appellate issue.” Id. (citing Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994)); see Redmond v. Kovar, No. 09-17-00099-
CV, 2018 WL 651272, at *3 (Tex. App.—Beaumont Feb. 1, 2018, no pet.) (mem. op.). Briefing
requirements are not met “by merely uttering brief conclusory statements, unsupported by legal
citations.” Hollis, 2019 WL 3334617, at *3 (quoting Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). We find
that Kennedy’s mere mention of the vexatious litigant finding as “improper” presents nothing for
appellate review. See Redmond, 2018 WL 651272, at *3.
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We affirm the trial court’s prefiling order entered under Section 11.101 of the Texas Civil
Practice and Remedies Code. We dismiss the remaining issues on appeal for want of jurisdiction.
Scott E. Stevens
Justice
Date Submitted: December 30, 2019
Date Decided: January 7, 2020
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