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holding that prefiling order applied to an appeal in a matter that had been pending in trial court at the time that the prefiling order was signed in a different proceeding
Summary of this case from Morgan v. ShawOpinion
NO. 01-17-00301-CV
05-23-2017
ALI YAZDCHI, Appellant v. JP MORGAN CHASE BANK, N.A., AND WILLIAM E. RYAN, Appellees
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2014-72421
MEMORANDUM OPINION
Appellant, Ali Yazdchi, proceeding pro se, has filed a notice of appeal, attempting to challenge an order, signed by a federal district judge on August 2, 2016, vacating that court's prior order remanding this case back to state court. Appellant filed a pro se motion to abate this appeal because he claims that he filed a motion for new trial in the state district court. We dismiss this appeal for want of jurisdiction and dismiss this motion as moot.
Although the district clerk's letter of assignment lists the order on appeal as signed by the trial court on April 10, 2017, the actual order attached to that letter is signed by the federal district judge on August 2, 2016, and it was filed as received by the state district clerk on April 10, 2017. Because there is no clerk's record filed in this Court, due to appellant's claim of indigence, a review of the district clerk's website shows that there was no order signed by the state court.
"A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, pro se, a new litigation in a court to which the order applies under this section without permission of the appropriate local administrative judge described by Section 11.102(a) to file the litigation if the court finds, after notice and hearing as provided by Subchapter B, that the person is a vexatious litigant." TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a) (West 2013). "Litigation" is defined as "a civil action commenced, maintained, or pending in any state or federal court." Id. § 11.001(2) (West 2013).
Section 11.102(a) provides that a "vexatious litigant subject to a prefiling order under Section 11.101 is prohibited from filing, pro se, new litigation in a court to which the order applies without seeking the permission of" the local administrative judge. Id. § 11.102(a)(1) (West 2013). However, while the Clerk of this Court may file an appeal from a prefiling order, the Clerk of this Court "may not file a litigation, original proceeding, appeal, or other claims presented, pro se, by a vexatious litigant subject to a prefiling order under Section 11.101 unless the litigant obtains an order from the appropriate local administrative judge described by Section 11.102(a) permitting the filing." Id. § 11.103(a), (d).
The Office of Court Administration ("OCA") of the Texas Judicial System is required to post a list of vexatious litigants subject to prefiling orders on its website. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.104(b) (West 2013). The OCA's website reflects that appellant has been declared a vexatious litigant via a prefiling order on three separate occasions, with the most recent one signed on July 15, 2015, in Ali Yazdchi v. BBVA Compass Bank, Cause No. 2015-05657 in the 151st District Court of Harris County, Texas. See OCA List of Vexatious Litigants Subject to Prefiling Orders under Section 11.101, Civil Practice and Remedies Code, available at http://www.txcourts.gov/media/1437964/vexatious-litigants-04_17_17.pdf (last viewed on Apr. 28, 2017); see also TEX. CIV. PRAC. & REM. CODE ANN. § 11.104(b) (West 2013) (requiring OCA to maintain and post list of vexatious litigants on agency's website); Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (taking judicial notice of Harris County record of vexatious litigants). Although this appeal is not from a prefiling order, this Court has previously affirmed an order declaring appellant a vexatious litigant. See Yazdchi v. Jones, 499 S.W.3d 564, 571 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (affirming judgment and order declaring appellant vexatious litigant and his claims frivolous). Thus, appellant is a vexatious litigant subject to a prefiling order under section 11.101.
On May 2, 2017, the Clerk of this Court notified appellant that his appeal was subject to dismissal unless, within ten days of the date of the notice, he filed proof that he had obtained an order from the appropriate local administrative judge permitting the filing of this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a); TEX. R. APP. P. 42.3(a), (c); see also TEX. CIV. PRAC. & REM. CODE ANN. § 11.1035(b) (noting that, if district clerk mistakenly files litigation from vexatious litigant, court shall immediately stay litigation and shall dismiss litigation unless plaintiff obtains order from local administrative judge within ten days of clerk's notice).
Appellant timely responded to the notice by referring to his motion to abate this appeal, which he claims will provide this Court jurisdiction after the state court signs an order on his motion for new trial. In the alternative, appellant contends that the prefiling orders do not apply here because they only preclude "new litigations" and not an appeal from trial court cause number 2014-72421, which he claims the trial court proceeding was still pending before the prefiling orders were signed in 2015. However, the vexatious litigant statute clearly applies to appeals because it states that the Clerk of this Court "may not file a[n] . . . appeal, . . . presented, pro se, by a vexatious litigant subject to a prefiling order" unless litigant first obtains permission. Id. § 11.103(a) (emphasis added), (d); see, e.g., Potts v. Burger, No. 01-14-00909-CV, 2015 WL 222125, at *1 (Tex. App.—Houston [1st Dist.] Jan. 15, 2015, no pet.) (per curiam) (mem. op.) (dismissing appeal for want of jurisdiction after providing notice of intent to dismiss because vexatious-litigant appellant subject to prefiling order failed to provide order from administrative judge permitting filing of appeal).
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f). We dismiss all pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Massengale.