Opinion
NO. 14-16-00727-CV
05-01-2018
HARVELLA JONES, Appellant v. JONATHAN ANDERSON, Appellee
On Appeal from the County Court at Law No. 2 Fort Bend County, Texas
Trial Court Cause No. 14-CCV-052079
MEMORANDUM OPINION
This is an appeal from an order signed by the Honorable Olen Underwood denying plaintiff Harvella Jones's motion to recuse the Honorable Jeffery McMeans, as well as the trial court's order granting defendant Jonathan Anderson's 2016 motion to declare plaintiff Harvella Jones a vexatious litigant and requiring her to post security of $20,000 to maintain the action against him.
Regarding Jones's argument that Judge Underwood abused his discretion in denying, without an oral hearing, Jones's motion to recuse Judge McMeans, we conclude that the denial without a hearing was authorized by Texas Rule of Civil Procedure 18a(g)(3)(A).
As for the vexatious-litigant ruling, the record shows that Anderson moved to declare Jones a vexatious litigant on the alternative grounds that (a) she had represented herself in at least five litigations in the preceding seven years that had been decided against her, and (b) a state court had declared her to be a vexatious litigant in 2014 in a proceeding based on the same facts. On appeal, Jones contends that the trial court erred in allegedly refusing to allow her to present evidence and argument at the hearing on Anderson's motion, but the record shows only that the trial court rejected her attempts to argue that the 2014 vexatious-litigant ruling was erroneous. As the trial court explained, it could not retry the 2014 vexatious-litigant motion filed by Anderson's co-defendants, which already had been appealed and affirmed. Because the 2014 vexatious-litigant ruling is final and is not subject to further review, we conclude that the trial court did not abuse its discretion in refusing to permit Jones to further pursue a futile argument or in granting Anderson's 2016 motion to declare her a vexatious litigant.
We affirm the trial court's judgment.
I. BACKGROUND
In 2002, the Villages of Town Center Owners Association voted to annex two new sections into the subdivision. The next year, Jones bought property in one of the new sections, believing it was part of the subdivision. Shortly thereafter, Jones began a series of lawsuits contesting the annexation and seeking to recover damages in the amount of the assessments paid to the homeowners' association. The present suit is a continuation of that effort. A. Jones I
In 2005, Jones filed Jones v. Villages of Town Center Owners Ass'n, Inc., Cause No. 05-CV-140570 in the 240th District Court, Fort Bend County ("Jones I"). Jones alleged that there was no quorum for the homeowners' association's July 16, 2002, annual meeting and, therefore, "the annexation of new sections 5 and 6 into the Villages of Town Center Subdivision did not occur." The trial court rendered final judgment that the quorum requirement was satisfied. B. Jones II and Jones III
In 2006, Jones sued the homeowners' association a second time in Cause No. 06-CV-148537 ("Jones II"). The judgment from that case is not in the record, and although Jones appealed the judgment, the appeal was dismissed. See Jones v. Vills. of Town Ctr. Owners Ass'n, Inc., No. 01-06-01176-CV, 2007 WL 1775999, at *1 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (per curiam) (mem. op.) ("Jones III"). C. Jones IV and Jones V
Jones sued the homeowners' association a third time in 2011 in Cause No. 11-DCV-192143 ("Jones IV"), again alleging that the homeowners' association had insufficient votes to pass the annexation at the 2002 annual meeting. The homeowners' association moved for summary judgment on the ground of res judicata, arguing that the question of whether sections 5 and 6 were properly annexed into the subdivision was decided against Jones in the 2005 case of Jones I. The trial court granted the motion, and we affirmed. See Jones v. Vills. of Town Ctr. Owners Ass'n, Inc., No. 14-12-00306-CV, 2013 WL 2456873, at *1 (Tex. App.—Houston [14th Dist.] June 6, 2013, pet. denied) ("Jones V"). D. Jones VI , VII , and VIII
In 2014, Jones filed Jones VI, Cause No. 14-CCV-052079, against the law firm and attorneys who represented the homeowners' association in earlier litigation. The defendants were Thi "Nina" Tran, James H. Leeland, Marc D. Markel, Clayton R. Hearn, Amy M. VanHoose, Dawn S. Holiday, Clinton Faver Brown, Jonathan Anderson, and Roberts Markel Weinberg Butler Hailey PC a/k/a Roberts Markel Weinberg PC a/k/a Roberts Markel PC a/k/a Roberts Markel Guerry, PC ("Roberts Markel"). Jones again alleged that the 2002 annexation failed, and she claimed that the defendants conspired with the homeowners' association to defraud Jones by concealing and misrepresenting the true count of the proxy votes at the 2002 annual meeting. Jones alleged that she discovered the true proxy count on her own in 2009.
Defendants Markel, Hearn, VanHoose, Holiday, Brown and Roberts Markel ("the Markel defendants") moved to have the trial court declare Jones a vexatious litigant and to require her to post security to maintain her claims against them. See TEX. CIV. PRAC, & REM. CODE ANN. § 11.051 (West 2017). The defendants argued that (1) there was no reasonable probability that Jones would prevail in the litigation against them because her claims were barred by res judicata and by limitations; and (2) in the seven years preceding the motion, Jones represented herself in at least five civil actions that were finally determined against her. See id. § 11.054(1)(A). The trial court granted the motion in March 2014 and required Jones to post security of $20,000. See id. § 11.055(a) ("A court shall order the plaintiff to furnish security for the benefit of the moving defendant if the court, after hearing the evidence on the motion, determines that the plaintiff is a vexatious litigant."). Jones appealed the ruling declaring her to be a vexatious litigant, and we affirmed the trial court's ruling. See Jones v. Markel, No. 14-14-002165-CV, 2015 WL 3878261 (Tex. App.—Houston [14th Dist.] June 23, 2015, pet. denied) (mem. op.) ("Jones VII").
More than two years after the trial court granted the motion to declare her a vexatious litigant, Jones moved to recuse the trial judge, the Honorable Jeffery McMeans, on the ground that his 2014 vexatious-litigant ruling demonstrated his bias against her. Judge McMeans declined to recuse himself voluntarily, and the Honorable Olen Underwood, Presiding Judge of the Second Administrative Judicial Region of Texas, denied the motion without a hearing. A week later, the trial court dismissed and severed Jones's claims against all of the remaining defendants with the exception of Johnathan Anderson, who had not yet appeared in the case; the parties dispute whether Anderson had been served.
Jones appealed the rulings denying her motion to recuse and granting Anderson's co-defendants' motions to dismiss and sever their claims. A week later, Jones voluntarily dismissed the appeal. See Jones v. Tran, No. 14-16-00339-CV, 2016 WL 3223719 (Tex. App.—Houston [14th Dist.] June 9, 2016, no pet.) (per curiam) (mem. op.) ("Jones VIII"). E. This Appeal: Jones IX
With the claims against all other defendants having been dismissed and severed, all that remained of Jones VI was Jones's claim against Jonathan Anderson for conspiracy to defraud. In 2016, Anderson filed his own motion to have Jones declared a vexatious litigant and to require her to post security to maintain her claim against him. In Anderson's motion, he asserted the same grounds raised by the Markel defendants, as well as the additional ground that Jones already had been declared a vexatious litigant by a state court "in an action or proceeding based on the same or substantially similar facts, transition [sic], or occurrence." TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(3). The trial court granted the motion and ordered Jones to post security of $20,000 to maintain her claim against Anderson. Jones failed to post the required security, and the trial court dismissed the case.
Although the legislature referred to "transition, or occurrence," the legislature may have meant "transaction, or occurrence," a pairing found in many other rules and statutes. See, e.g., TEX. R. CIV. P. 38, 40, 50, and 97; TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.004, 15.005, 15.052, and 15.062 (West 2017); TEX. CIV. PRAC. & REM. CODE ANN. §§16.068 and 16.069 (West 2015); TEX. FAM. CODE ANN. § 3.203 (West 2006).
In this appeal, Jones IX, Jones argues that Judge Olen Underwood erred in denying, without a hearing, Jones's motion to recuse Judge McMeans. She additionally asks us to reverse the trial court's grant of Anderson's motion to declare her a vexatious litigant and the dismissal of her claims against Anderson due to her failure to post security.
II. DENIAL OF JONES'S RECUSAL MOTION WITHOUT AN ORAL HEARING
Given that the denial of Jones's motion to recuse was the subject of her dismissed appeal in Jones VIII, we begin by explaining why Jones is not foreclosed from challenging the ruling in the present appeal.
An order denying a motion to recuse is reviewable only on appeal from the final judgment. See TEX. R. CIV. P. 18a(j)(1)(A). When Jones filed her notice of appeal in Jones VIII, a final judgment had been rendered in the underlying suit. All of her claims had been dismissed and severed into one of two cause numbers, leaving no claims or defendants in the underlying suit. After Jones moved to dismiss the appeal, the trial court issued an amended order that removed defendant Jonathan Anderson from the list of defendants whose claims were dismissed and severed. As a result of the amended judgment, there was no longer a final judgment in the underlying case. We therefore would not have had jurisdiction to review Jones's motion to recuse Judge McMeans in Jones VIII even if Jones had not moved to dismiss that appeal.
Turning to the merits of the motion, we note that although Jones titled the motion, "Plaintiff's Motion to Recuse or Disqualify," it was in substance a motion only for recusal. Jones argued in the motion that Judge McMeans's "impartiality might reasonably be questioned" and that he "has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." These are grounds for recusal, not grounds for disqualification. See TEX. R. CIV. P. 18b(b)(1)-(b)(3). Because she made no arguments for Judge McMeans's disqualification, we treat the motion solely as a motion to recuse. We review the denial of a motion to recuse under the abuse-of-discretion standard. See TEX. R. CIV. P. 18a(j)(1)(A). "A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence." See Jones VII, 2015 WL 3878261, at *2 (quoting 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.)).
Jones contends that the trial court erred in denying her recusal motion without first conducting an oral hearing. We disagree.
Texas Rule of Civil Procedure 18a states that a motion to recuse a judge "must not be based solely on the judge's rulings in the case." TEX. R. CIV. P. 18a(a)(3). "A motion to recuse that does not comply with this rule may be denied without an oral hearing. The order must state the nature of the noncompliance." TEX. R. CIV. P. 18a(g)(3)(A). Jones acknowledges that noncompliance with Rule 18a is grounds for denying the motion without a hearing, but she asserts that she did comply with the rule and that Judge Underwood's order denying the motion does not state otherwise.
In the order denying the motion to recuse, Judge Underwood wrote as follows:
The Court has reviewed the motion and determined that it complains of the trial judge's rulings and actions in the case, but does not allege extra-judicial conduct on the part of the trial judge that would constitute a basis for a recusal. . . . The Rule unambiguously indicates that a motion to recuse "must not be based solely on the judge's rulings in the case." See TEX. R. CIV. P. 18a(a)(3). A judge's conduct during a case does not constitute a basis for recusal unless it indicates a high degree of favoritism or antagonism that renders fair judgment impossible See Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex. App.—Houston [14th Dist.] 2000, pet. denied; Ludlow v. DeBerry, 959 S.W.2d 265, 270-72 (Tex. App.—Houston [14th Dist.] 1997, no writ). The motion does not meet this standard.Thus, Judge Underwood's order does state the nature of Jones's noncompliance: the order states that Jones's motion to recuse Judge McMeans did not comply with Rule 18a(a)(3) because the motion is based solely on Judge McMeans's rulings in the case and does not indicate a high degree of favoritism or antagonism that renders a fair judgment impossible.
Judge Underwood's assessment of Jones's recusal motion was not arbitrary, unreasonable, made without reference to guiding legal principles, or without supporting evidence. In her motion, Jones complained of Judge McMeans's hearing of, and ruling on, the motion filed by the Markel defendants to have Jones declared a vexatious litigant. The vexatious-litigant motion and notice of hearing were filed and served on February 28, 2014, and the motion was heard on March 11, 2014. The record shows that a hearing already had been set to be held at that time on two other defendants' pleas to the jurisdiction and special exceptions to Jones's petition. In her motion to recuse Judge McMeans, Jones states that she did not collect her mail before the March 11th hearing, and so she arrived at the hearing unaware that a vexatious-litigant motion had been filed and set for a hearing at the same time.
In her recusal motion, Jones asserted that Judge McMeans is biased against her because at the hearing on the vexatious-litigant motion, Judge McMeans denied her oral request for an extension of time to file a response. We considered a similar argument in her appeal of the 2014 vexatious-litigant order in Jones VII. In that appeal, Jones argued that she had no notice of the hearing on the vexatious-litigant motion, but "[a]t the hearing, the Markel [defendants] 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 4, more than three days prior to the March 11 hearing." Jones VII, 2015 WL 3878261, at *3. See also TEX. R. CIV. P. 21(b) (stating that a motion and notice of hearing, unless presented during a hearing or trial, "must be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court"). We further stated that "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." Jones VII, 2015 WL 3878261, at *3.
Jones also argued in her recusal motion that, in determining whether Jones had unsuccessfully prosecuted or maintained at least five actions as a pro se litigant in the preceding seven years, Judge McMeans improperly included three of the seven cases identified by the movants. This argument, too, was considered and rejected in Jones VII. We concluded that she represented herself in (1) 2008 litigation against Compass Bank; (2) an appeal of her litigation against the Secretary of Veterans Affairs sometime after November 8, 2010; (3) her 2011 litigation against the homeowners' association (Jones IV); (4) a 2012 lawsuit for libel and business disparagement against Michael Fitzmaurice and others; and (5) a mandamus proceeding in the Texas Supreme Court in which against Fitzmaurice was the real party in interest. Jones VII, 2015 WL 3878261, at *7-8. Each of these litigations was "finally determined adversely" to her, as required by the vexatious-litigant statute. See id. at *8 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 11.054(1)(A)).
Not only was Jones's recusal motion "based solely on the judge's rulings in the case," but Jones pointed out in the motion that she had appealed the vexatious-litigant ruling to this court. Our opinion in Jones VII would have disclosed to Judge Underwood that Jones had constructive notice of the hearing and that Judge McMeans's ruling on the vexatious-litigant motion was correct. It therefore could not be said that Judge McMeans's denial of Jones's motion for a continuance and grant of the Markel defendants' vexatious-litigant motion indicated a degree of favoritism or antagonism rendering a fair judgment impossible.
In sum, Jones's motion to recuse Judge McMeans did not comply with Texas Rule of Civil Procedure 18a(a)(3), and Judge Underwood did not abuse his discretion in denying the motion without holding an oral hearing. We overrule Jones's first issue.
III. PROCEEDINGS ON ANDERSON'S
MOTION TO DECLARE JONES A VEXATIOUS LITIGANT
Jones contends that the trial court erred in granting Anderson's vexatious-litigant motion in that (a) Anderson waived the opportunity to file a vexatious-litigant motion because he did not join in the similar motion filed by the Markel defendants in 2014, and (b) the trial court violated her constitutional rights by allowing Anderson to present argument and evidence at the hearing on his motion while denying her the same opportunity.
A. Anderson Did Not Waive the Opportunity to File a Vexatious-Litigant Motion.
Jones first argues that Anderson waived the opportunity to file a vexatious litigant motion because he filed the motion "more than two years after he was originally served with the other Defendants in 2014." The time for filing a motion to have a person declared a vexatious litigant is prescribed by statute, and the proper construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).
Texas Civil Practice and Remedies Code section 11.051 states that "the defendant may, on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order: (1) determining that the plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security." TEX. CIV. PRAC. & REM. CODE ANN. § 11.051 (West 2017). The record before us does not show that Anderson ever filed an answer or special appearance. His motion to have Jones declared a vexatious litigant appears to be the first document Anderson filed in this case. Indeed, Jones stated at the hearing on the motion that Anderson filed the vexatious-litigant motion "instead of filing an answer." Jones cites no authority in support of her position that Anderson waited too long to file his motion. Although she points out that the Markel defendants filed a vexatious-litigant motion two years before Anderson did, the statute does not require a defendant to join a vexatious-litigant motion filed by another defendant.
Because Anderson did not file his motion ninety or more days after filing an answer or a special appearance, we conclude that he did not waive the opportunity to move for a declaration that Jones is a vexatious litigant, and that his motion instead was timely filed.
B. The Trial Court Did Not Abuse Its Discretion in Granting Anderson's Motion Without Allowing Jones to Argue that the 2014 Vexatious-Litigant Ruling Was Wrong.
Jones next contends that the trial court violated her constitutional rights or otherwise erred in allegedly refusing to "allow any argument, evidence or testimony [Jones] had to counter Defendant Anderson's argument, evidence or testimony" at the hearing on Anderson's motion. We generally review a trial court's "procedural or other trial management determinations" under the abuse-of-discretion standard. See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); see also McLaughlin, Inc. v. Northstar Drilling Techs, Inc., 138 S.W.3d 24, 30-31 (Tex. App.—San Antonio 2004, no pet.) (applying this standard to the trial court's determination of the time allotted to present evidence). Similarly, we review the trial court's exclusion of evidence for abuse of discretion. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). We apply the same abuse-of-discretion standard when reviewing a trial court's vexatious-litigant determination. See Jones VII, 2015 WL 3878261, at *2. Finally, we adhere to the general rule that "an appellant must attack all independent bases or grounds that support an adverse ruling." State Farm Lloyds v. Fuentes, No. 14-14-00824-CV, 2016 WL 1389831, at *3 (Tex. App.—Houston [14th Dist.] Apr. 7, 2016, pet. pending) (mem. op.) (quoting Cont'l Carbon Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. 14-11-00162-CV, 2012 WL 1345748, at *4 (Tex. App.—Houston [14th Dist.] Apr. 17, 2012, no pet.) (mem. op.)). "When the appellant fails to do so, we must affirm." Id.
The record shows that Anderson attached evidentiary exhibits to his motion, and Jones did the same with her response. No evidence was admitted at the hearing.
We begin by explaining what was at issue at the hearing on Anderson's motion and what is at issue on appeal. Texas Civil Practice and Remedies Code section 11.054 sets forth multiple criteria by which a plaintiff can be declared a vexatious litigant, and the grounds on which Anderson relied included the following:
A court may find a plaintiff a vexatious litigant if the 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 . . . [or]
. . .
TEX. CIV. PRAC. & REM. CODE ANN. § 11.054.
(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, [sic] or occurrence.
On appeal, Jones does not contend that the first requirement was not satisfied, that is, she does not dispute that there is no reasonable probability that she could prevail on her conspiracy-to-defraud claim against Anderson. She challenges only the second criterion for declaring a plaintiff to be a vexatious litigant.
Jones's only claim against Anderson was for conspiracy to defraud, and Anderson argued that there was no reasonable probability that Jones would prevail in her claim because her claim was barred by res judicata and by the running of the statute of limitations. These were the same grounds asserted in 2014 by the Markel defendants in their motion to declare Jones a vexatious litigant. See Jones VII, 2015 WL 3878261, at *5-6. On appeal, we held that the evidence was legally and factually sufficient to support the trial court's implied finding that the same claim asserted against Anderson's co-defendants was time-barred. See id.
In Anderson's motion, he argued that the second criterion was satisfied for two alternative reasons. First, he asserted that in the seven years preceding the motion, Jones had commenced, prosecuted, or maintained at least five litigations as a pro se litigant that were finally determined adversely to her. See id. § 11.054(1)(A). In the alternative, Anderson argued that Jones already had been declared to be a vexatious litigant by the same court, in the same case, and based on the same facts. See id. § 11.054(3).
At the hearing and in her appellate brief, Jones focused exclusively on evidence related to the first of these two alternative grounds. She argued that when the trial court granted the Markel defendants' motion to have her declared a vexatious litigant in 2014, the trial court refused to allow her to present evidence or argument that fewer than five of the cases cited by the movants had been finally determined adversely to her. But, as the trial court informed Jones at the 2016 hearing on Anderson's motion, Anderson's alternative ground would be dispositive in any event: the trial court had declared Jones a vexatious litigant two years earlier in a proceeding based on the same facts.
Jones responded that by filing a motion to have her declared a vexatious litigant, Anderson "re-opened" the earlier vexatious-litigant determination obtained by Anderson's co-defendants, and thus, she should be allowed to present evidence rebutting the earlier determination. Jones argued not that she was not previously declared a vexatious litigant, but that she should not have been previously declared a vexatious litigant.
The trial court explained that it could not set aside the 2014 ruling and would not retry that issue. The trial court instead clarified that Jones needed to show why she is able to maintain the suit against Anderson despite the 2014 ruling, asking, [H]ow is it not stopped by the fact that you were declared a vexatious litigant and you've already appealed it up . . . . How can you get around that?" Jones continued to argue that she had not received an adverse result as a pro se litigant in enough cases to be considered a vexatious litigant. The trial court reminded Jones five times that she already had been determined to be a vexatious litigant, four times that she already had appealed that ruling, and three times that the ruling had been affirmed on appeal, but Jones's only argument was that the earlier ruling was erroneous.
We cannot agree that the trial court abused its discretion in limiting Jones's argument to an explanation of how to avoid the effect of the 2014 vexatious-litigant ruling. The trial court did not abuse its discretion in limiting Jones's argument to one dispositive ground because unless that ground was overcome, argument and evidence defeating the alternative ground would be futile, and a court does not abuse its discretion by refusing to permit a litigant to perform a futile act. Cf. City of Houston v. Ranjel, 407 S.W.3d 880, 893 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (reversing the denial of a defendant's plea to the jurisdiction and rendering a judgment of dismissal where a remand to allow the plaintiffs to amend their pleadings would be futile). Even if Jones had been able to prove at the hearing that she had not litigated a case pro se to an adverse result at least five times in the seven preceding years, this would have defeated only the portion of Anderson's motion based on Texas Civil Practice and Remedies Code section 11.054(1)(A). It would not have defeated the portion of Anderson's motion based on section 11.054(3), because such proof could not alter the finality 2014 ruling declaring Jones a vexatious litigant.
We conclude that the trial court did not abuse its discretion either in its manner of conducting the hearing on Anderson's motion or in granting the motion pursuant to Texas Civil Practice and Remedies Code section 11.054(3). We overrule Jones's second issue.
IV. CONCLUSION
Finding no abuse of discretion in any of the challenged rulings, we affirm the denial, without a hearing, of Jones's motion to recuse Judge McMeans; the trial court's order of August 16, 2016, declaring Jones to be a vexatious litigant and requiring her to post security; and the final judgment dismissing Jones's claims.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Brown, and Wise.