In a case involving a sitting Travis County district judge and three former justices of the Austin Court of Appeals, the Austin Court of Appeals has upheld a trial court order granting the judicial defendants relief from a vexatious litigant.
Mary Louise Serafine v. The Honorable Karin Crump, The Honorable Bob Pemberton, The Honorable Melissa Goodwin, and The Honorable David Puryear (No. 03-21-00053-CV) arose from a lawsuit filed by an Austin attorney against the judges for alleged violations of her Fourteenth Amendment Rights. The judicial defendants moved for a determination that the attorney is a vexatious litigant (see Ch. 11, CPRC), should be required to furnish security for the defendants’ benefit, and be barred from filing pro se any new litigation in Texas state court without permission from the appropriate administrative law judge. The trial court agreed and granted both pre-trial relief and $5,000 in security. Plaintiff filed an interlocutory appeal. The court of appeals affirmed the trial court’s finding that plaintiff is a vexatious litigant and the award of pre-filing relief. The court, however, found that it did not have jurisdiction to hear the security issue, since the statute authorizing security does not explicitly provide for interlocutory relief.
Much of the court’s opinion is devoted to other issues asserted by plaintiff, such as a TCPA motion and the trial court’s evidentiary rulings, but the primary issue of interest for us is the court’s analysis of the statutory requirements for meeting the threshold for vexatious litigation. Section 11.054(1)(A), CPRC, requires a defendant seeking a finding that a person is a vexatious litigant to show “(1) that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant,” and (2) that the plaintiff “in the seven-year period immediately preceding the date the defendant ma[de] the [vexatious-litigant] motion . . . , has commenced, prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims court that have been . . . finally determined adversely to the plaintiff.” Consequently, the court’s analysis must determine “reasonable probability that the plaintiff will prevail,” which litigation falls within the seven-year period, which “litigations” count against the five, and what “pro se” means.
Regarding the “reasonable probability” prong of the test, the court found that because plaintiff lacked standing to bring her claims against the judicial defendants, she had no reasonable probability of prevailing. As the court reiterated, “[S]tanding is a constitutional prerequisite to suit” (citation omitted) and “requires a concrete injury to the plaintiff and a real controversy between the parties that the court can resolve” (citation omitted). The judicial defendants argued the plaintiff lacked an “injury-in-fact” because she sought only prospective remedies against a future deprivation of her rights that was not likely to occur. The reason? None of the three appellate justices were still on the bench, and the Judge Crump had recused herself from any actions filed by plaintiff.
Second, the court found that the requisite “five litigations” existed based on statutory construction. For purposes of counting separate “litigation,” the court found that the statute dictates that litigation moving from a trial court to an appellate court leads to “new litigation” and “that counting multiple appeals (and original proceedings) arising out of the same suit in a trial court does not offend Chapter 11” (citation omitted). In this case, the judicial defendants submitted evidence of 10 proceedings that plaintiff “commenced” or “maintained,” including a federal court case that ended in a take nothing judgment against plaintiff, a U.S. 5th Circuit ruling in the federal case, a ruling adverse to plaintiff in a case filed in Travis County district court against Judge Crump, a court of appeals opinion, an original proceeding for equitable relief decided against plaintiff, another original proceeding for mandamus denied by the 5thCircuit, and a denial of plaintiff’s petition for writ of certiorari in the U.S. Supreme Court. These were more than enough to meet the test, and the Court found that even though some of the actions were commenced outside the seven-year period, they were all “maintained” during the period.
Finally, the court determined that plaintiff was acting pro se in these matters, although she was an attorney and had retained “limited scope” counsel for parts of the same proceedings. Plaintiff argued that the term “pro se” means “without the benefit of an attorney,” and that as an attorney, she could never be a vexatious litigant. The judicial defendants countered that the lack of an attorney was not a prerequisite to a vexatious litigant determination. Agreeing with the defendants, the court found that plaintiff herself had indicated in her findings and oral statements that she was acting pro se in at least five of the actions and that the courts had recognized her that way. The only evidence in her favor was that she retained counsel for most of those cases, which the court found insufficient to disturb the trial court’s findings as against the great weight and preponderance of the evidence.
This case offers a thorough analysis of the case law relating to vexatious litigation. Perhaps the most interesting and critical part of the opinion is its determination of how to counting separate “litigations.” As the court noted, “[n]either the Supreme Court of Texas nor our Court has answered the statutory-interpretation confronting us.” Of the three intermediate appellate opinions on the subject, two supported the judicial defendants’ position and one, at least in dicta, supported the plaintiff’s (though the court pointed out that the San Antonio court of appeals has since rejected its reasoning in that case). Whether SCOTX will see the need to weigh in at some point remains to be seen, but it appears to us that the court of appeals got it right and that continuing to beat a dead case by serially appealing it and filing original proceedings arising out of it constitutes vexatious litigation.
