Michael A. McCann v. Spencer Plantation Investments LTD ( 2021 )

Affirmed and Memorandum Opinion filed February 9, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00242-CV
MICHAEL A. MCCANN, Appellant
V.
SPENCER PLANTATION INVESTMENTS LTD, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 96820-CV
MEMORANDUM OPINION
Appellant, Michael McCann, appeals the trial court’s final judgment
dismissing his case without prejudice for failing to post a bond as well as finding
him a “vexatious litigant” pursuant to section 11.054(2) of the Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code § 11.054(2). In three issues he
contends that this court should reverse the decision of the trial court.1 We affirm.
1
Appellant states that he brings three issues on appeal, but within his brief raises another
issue that we address herein.
In his first issue, appellant contends that the trial court’s “finding of fact” is
clearly erroneous because there is “no evidence” that appellant filed five lawsuits
within the past seven years. In his second issue, appellant contends that there was
no “proper” evidence before the trial court for it to determine whether appellant
was a vexatious litigant. Appellant also argues that the trial court’s orders were
void because the judge failed to take or file constitutional oaths of office. In his
third issue, appellant contends that when his constitutional right to access the court
is at risk, he is entitled to a jury determination of whether he is a vexatious litigant
under the statute.
I. VEXATIOUS LITIGANT DECLARATION
A. General Legal Principles
We review a trial court’s declaration of a vexatious litigant for an abuse of
discretion. Douglas v. Am. Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). We “cannot overrule the trial court’s decision unless the
trial court acted unreasonably or in an arbitrary manner, without reference to
guiding rules or principles.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211
(Tex. 2002). A trial court’s findings under section 11.054 are reviewed for legal
and factual sufficiency. See Willms v. Ames. Tire Co., 190 S.W.3d 796, 803 (Tex.
App.—Dallas 2006, pet. denied). “In reviewing a legal sufficiency challenge, the
no-evidence challenge fails if there is more than a scintilla of evidence to support
the finding.” Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex. App.—Austin 2006,
pet. denied). “In reviewing a factual sufficiency challenge, we set aside the trial
court’s decision only if its ruling is so contrary to the overwhelming weight of the
evidence as to be clearly wrong or manifestly unjust.” Id.Without a reporter’s record, an appellate court cannot review a trial court’s
order for an abuse of discretion. Willms, 190 S.W.3d at 803; see also Michiana
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Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (“If the
proceeding’s nature, the trial court’s order, the party’s briefs, or other indications
show that an evidentiary hearing took place in open court, then a complaining
party must present a record of that hearing to establish harmful error.”). “When an
appellant fails to bring a reporter’s record, an appellate court must presume the
evidence presented was sufficient to support the trial court’s order.” Willms, 190
S.W.3d at 803.
In enacting Chapter 11 of the Civil Practice and Remedies Code, the
legislature struck a balance between the right to access courts and the public
interest in protecting defendants from those who abuse the civil justice system.
Leonard, 171 S.W.3d at 455. On or before the ninetieth day after the defendant
files the original answer, the defendant may move the trial court for an order
declaring the plaintiff a vexatious litigant and requiring the plaintiff to furnish
security before further pursuing the lawsuit. See Tex. Civ. Prac. & Rem. Code §
11.051. Pursuant to section 11.054, the trial court may declare a plaintiff a
vexatious litigant if:
[T]he 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
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;
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(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
(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 § 11.054. “Texas’s vexatious litigation statute
permits a court to designate a plaintiff a vexatious litigant if the defendant proves
that (1) in reasonable probability, the plaintiff will not prevail in the case against
the defendant and (2) the plaintiff has a history of pro se litigation covered by the
statute. In re Casey, 589 S.W.3d 850, 852 (Tex. 2019). The defendant must prove
one of three possible grounds before a trial court can declare a plaintiff a vexatious
litigant. See Tex. Civ. Prac. & Rem. Code § 11.054; Douglas, 196 S.W.3d at 881.
B. Background
Appellant filed the original petition in this case in May 2018, asserting that
appellee had converted two tracts of real property belonging to appellant.
Appellant further demanded that the trial court vacate appellee’s quitclaim deed
from the Brazoria County real property records. Appellee filed its answer asserting
the affirmative defense of res judicata, arguing that appellant had previously
brought claims to adjudicate the title to the same two parcels of real property in
Brazoria County in a case filed in December 2014. The prior case and its appeals
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concluded in favor of appellee. With its original answer appellee moved to declare
appellant a vexatious litigant under section 11.054(2) of the Civil Practice and
Remedies Code.
Appellee’s motion to determine appellant a vexatious litigant was heard by
the trial court in June 2018. The trial court rendered an order finding plaintiff a
vexatious litigant pursuant to section 11.054(2) of the Civil Practice and Remedies
Code. According to the order, appellee appeared to prosecute its motion and
appellant, although “served notice of [the] hearing,” did not appear. The order
further recited that the trial court “heard argument of counsel and considered
evidence proffered by [appellee].”2 The order stayed the litigation until appellant
posted security in the amount of $50,000. The order gave appellant thirty-days to
comply.
Appellant appealed the interlocutory order and the appeal was dismissed for
want of jurisdiction. See McCann v. Spencer Plantation Invs., Ltd., No. 14-18-
00613-CV, 2018 WL 5261052 (Tex. App.—Houston [14th Dist.] Oct. 23, 2018,
pet. denied) (mem. op.) (per curiam).3 After this court dismissed the appeal, in
2
Appellee states in its brief that the trial court conducted an evidentiary hearing on
appellee’s motion to declare appellant a vexatious litigant. Appellant asserts no hearing
occurred, but also states that he did not attend the hearing because he believed it was stayed by
his bankruptcy filing. The reporter’s record for this hearing is not part of the record on appeal.
3
Appellant asks this court to take judicial notice of the prior record in the interlocutory
appeal in this case. An appellate court may take judicial notice of adjudicative facts in its own
files that are “capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Tex. R. Evid. 201(b), (c); Office of Pub. Util. Counsel v. Pub.
Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (per curiam). We take judicial notice of
the materials included in the clerk’s record in the first appeal, but only for its existence, not for
its truth. Compare In re C.S., 208 S.W.3d 77, 82 (Tex. App.—Fort Worth 2006, pet. denied) (“It
is appropriate for a court to take judicial notice of a file in order to show that the documents in
the file are a part of the court's files, that they were filed with the court on a certain date, and that
they were before the court at the time of the hearing.”), with Guyton v. Monteau, 332 S.W.3d
687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[Courts] may not
take judicial notice of the truth of factual statements and allegations contained in the pleadings,
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January 2019 appellee moved to dismiss the litigation because appellant had not
posted the bond required under the vexatious litigant order. The trial court
conducted a hearing on appellee’s motion to dismiss in February 2019 and
concluded that the litigation should be dismissed because appellant failed to post
the security required to continue the litigation.4 The final judgment incorporated
the findings of the prior order declaring appellant a vexatious litigant, reaffirmed
those findings, and dismissed the cause without prejudice. Appellant filed this
appeal contending the trial court erred in declaring him a vexatious litigant.
C. Analysis
Appellant first argues that the trial court had “no evidence” before it that
appellant met the elements to be declared a vexatious litigant because only the
attorneys for appellee were present and “attorneys cannot give testimony,” the trial
court never “heard” from appellee itself, all the evidence submitted was “hearsay,”
and no hearing under section 11.055 was conducted because the trial court “had no
written or oral evidence; and evidence was not presented by witnesses or by
affidavit.”
The record shows that the trial court conducted an evidentiary hearing
pursuant to section 11.055 of the Civil Practice and Remedies Code in June 2018.
The notations from the court reporter indicate that the trial court received at least
three documents in evidence at the hearing. Appellee argues that in “the absence
of a court reporter’s record of the evidence adduced by [appellee] at that
hearing . . . this Court should presume that the omitted portions [o]f the evidentiary
record on appeal, support the trial court’s judgment.” See Holten, 168 S.W.3d at
affidavits, or other documents in the file.”).
4
At the hearing on appellee’s motion to dismiss, appellant handed the trial court a plea to
the jurisdiction for consideration and for filing. The trial court indicated that it would take
appellant’s plea under advisement along with appellee’s motion to dismiss.
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782. We agree. Because appellant has failed to bring forth a record of that
hearing, appellant cannot establish harmful error. It is not clear what evidence was
presented and considered by the trial court in declaring appellant a vexatious
litigant. However, in the absence of a record we must presume that evidence
presented was sufficient to support the trial court’s order. See Willms, 190 S.W.3d
at 803. We overrule appellant’s first issue.
Appellant next contends that he could not possibly be declared a vexatious
litigant because there was no evidence that he pursued “at least five litigations as a
pro se litigant” citing to section 11.054(1). “The major disputed material fact in the
case was that the attorneys didn’t prove the claim because there were not five cases
on which to assert their claim.” Because appellant has failed to bring forth a full
record, we presume that the evidence presented was sufficient to support the trial
court’s order. See id. Alternatively, because appellant has failed to challenge the
basis for the determination of the declaration contained in the trial court’s order, he
has failed to challenge all independent grounds that support the trial court’s
judgment. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381–82 (Tex.
1993) (regarding summary judgment, court of appeals limited to considering
grounds specified by trial court); Miller v. Debo Homes, LLC, No. 14-15-00004-
CV, 2016 WL 5399507, at *3 (Tex. App.—Houston [14th Dist.] Sept. 27, 2016,
pet. denied) (mem. op.) (court of appeals must affirm when appellant challenges
some but not all bases for judgment based on jury’s verdict). Here, the trial court
specified in the order that it made its declaration based on section 11.054(2) and
not section 11.054(1) as appellant contends. We overrule appellant’s second issue.
II. JUDICIAL OATHS
Appellant further asserts that the “judge in the case had no cloak of
authority” because “he failed to file the . . . mandatorily required oath and
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statement on file with the Texas Secretary of State and therefore . . . his orders are
void.” Appellant urges this court to look at the appendix to his brief for the
evidence that the trial court judge was not properly vested with authority.
Appellant contends that his appendix contains exhibits to his plea to the
jurisdiction that should have been included in the clerk’s record but were not.
Upon request for the exhibits to his plea to the jurisdiction, the clerk responded to
indicate that it has no exhibits of record with the plea to the jurisdiction filed by
appellant. Even assuming that the document attached to appellant’s brief was filed
with the trial court, the document was not authenticated and contained numerous
irregularities.
“[I]t has long been a ‘cardinal rule’ of appellate procedure in Texas that we
‘must indulge every presumption in favor of the regularity of the proceedings and
documents’ in the trial court.” Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (quoting McCloud v. State, 527 S.W.2d 885,
887 (Tex. Crim. App. 1975)); see Simon v. State, 525 S.W.3d 798, 799–800 (Tex.
App.—Houston [14th Dist.] 2017, no pet.). Appellant has the burden of presenting
evidence of impropriety to overcome the presumption of regularity of the trial
court’s judgment and proceedings. Macias v. State, 539 S.W.3d 410, 420 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d); Murphy v. Countrywide Home Loans,
Inc., 199 S.W.3d 441, 444 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
“Merely alleging a failure to take oaths is not sufficient to overcome the
presumption of regularity.” Simon, 525 S.W.3d at 800.
Because appellant has pointed to no evidence in the record that the trial
judge did not take the constitutional oaths of office, we hold that appellant has not
overcome the presumption of regularity of the trial court’s judgment and
proceedings. See Macias, 539 S.W.3d at 421; Simon, 525 S.W.3d at 800 (stating
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that defendant did not cite to any proof in record that visiting judge did not take
required oaths of office and that mere allegation of failure to take oaths was
insufficient to overcome presumption of regularity); Countrywide Home Loans,
199 S.W.3d at 444 (letter from Texas Secretary of State was insufficient to
overcome presumption of regularity without more); Murphy, 95 S.W.3d at 320 n.3
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (letter attached to motion for
rehearing from Texas Secretary of State showing failure to file required oath is not
proof of failure to take the constitutionally required oaths and letter was not part of
the record); see also In re Tasby, 120 S.W.3d 443, 445 (Tex. App.—Texarkana
2003, no pet.) (“Failing to file an oath of office does not, alone, deprive the judge
of the authority to act.”). We overrule this issue.
III. RIGHT TO JURY
Lastly, appellant argues that he is entitled to a jury determination when a
deprivation of his right to access the court is at stake. However, appellant also
acknowledges that “Texas Courts have opined that a loss hasn’t occurred when one
assumes the yoke of vexatious litigant because by asking permission of a judge to
file a suit, one still retains access to the courts.”
“The purpose of the [vexatious litigant] statute is to make it possible for
courts to control their dockets rather than permitting courts to be burdened with
repeated filings of frivolous and malicious litigation by litigants without hope of
success while, at the same time, providing protections for litigants’ constitutional
rights to open courts when they have genuine claims that can survive the scrutiny
of the administrative judge and the posting of security to protect defendants.” In re
Potts, 357 S.W.3d 766, 768 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Appellant has not shown that the restrictions in the vexatious litigant statute are
unreasonable or arbitrary when balanced against the purpose and basis for the
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statute. See id. Here, appellant merely has to seek permission from the local
administrative judge before filing. See Tex. Civ. Prac. & Rem. Code § 11.102.
Even assuming that appellant’s assertion that he is entitled to a jury determination
when a deprivation of his right to access courts is at stake, appellant has not shown
that he has been deprived of access to the courts. We overrule appellant’s third
issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Zimmerer.
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