Summary
determining that plaintiff failed to preserve complaints as to constitutionality of vexatious-litigant statute
Summary of this case from Thoele v. Tex. Bd. of Pardons & ParolesOpinion
NO. 03-19-00783-CV
08-12-2020
Kyle Jason McCarrell, Appellant v. Dunham & Jones Attorneys at Law P.C. and James Erickson, Appellees
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-006982 , THE HONORABLE WILLIAM C. KIRKENDALL, JUDGE PRESIDING MEMORANDUM OPINION
Kyle Jason McCarrell, acting pro se, appeals the district court's order declaring him a vexatious litigant in the underlying malpractice suit against his former counsel who represented him on a felony forgery charge. See Tex. Civ. Prac. & Rem. Code § 11.101(c); Tex. Penal Code § 32.21(b), (d). McCarrell challenges the court's determination that he is a vexatious litigant and the constitutionality of the vexatious litigant statute. We will affirm the order.
McCarrell lists twenty-five issues that fail to correspond to the order or substance of his briefing. For example, his fifth issue is that the vexatious litigant statute "Violates the Doctrine of Double Effect," a concept referenced nowhere else in his brief and distinct from his twenty-fourth issue alleging that the statute violates the Double Jeopardy Clause. Cf. Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise arguments for contentions made). To the extent we can discern his contentions, and if he preserved them for review, we address them within two issues: his challenge to the district court's determination that he is a vexatious litigant and to the constitutionality of the vexatious-litigant statute. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (requiring litigants representing themselves to comply with applicable procedural rules).
BACKGROUND
McCarrell's brief omits any statement of facts. Cf. Tex. R. App. P. 38.1(g) (requiring briefs to state concisely and without argument facts pertinent to issues presented, supported by record references).
Criminal Proceedings Against McCarrell
McCarrell's arrest-warrant affidavit alleged that McCarrell deposited a $1,000 check into his bank account and six months later, the same $1,000 check was re-deposited again into his account with an altered date and check number. As part of an investigation into the latter transaction, a financial-crimes detective subpoenaed McCarrell's bank records, contacted bank staff, and spoke with McCarrell. The bank records showed that McCarrell was the only authorized account holder. Bank staff told the detective that the forged check was deposited into McCarrell's account by "Mobile Deposit," a phone application that uses multifactor authentication to verify that the person making the deposit owns the account being accessed and requires entry of the user's unique information each time the "app" is opened. McCarrell told the detective that he let a roommate borrow one of his old phones to deposit the check using a mobile app and that the roommate must have committed the forgery. Unconvinced, the detective averred that McCarrell committed the felony offense of forgery by knowingly passing the altered $1,000 check via mobile phone deposit with intent to defraud or harm another.
McCarrell also told a police sergeant that his roommate said he was going to deposit a check into McCarrell's account using McCarrell's old phone, but McCarrell did not know his roommate's name or phone number. McCarrell testified during the vexatious-litigant hearing that after the forged check was deposited into his account, he withdrew some of it in cash, gave the cash to the roommate, and then drove the roommate to a location to buy "product," which McCarrell assumed, and the roommate confirmed, was marihuana.
McCarrell retained Appellees to defend him. Appellees took McCarrell on a self-surrender "walkthrough" at the jail and obtained his release on a personal bond. After a grand jury indicted McCarrell for the felony offense of forgery of a financial instrument, Appellees requested and received discovery from the State, obtained from the court a favorable change as to his release conditions, attended several of his hearings, and evaluated his forgery explanations.
While his forgery charge was pending, McCarrell was charged with another felony offense, alleging a theft of $2,000 to $3,000 involving returned checks written from a bank account with insufficient funds. McCarrell insisted that Appellees represent him in the second criminal case at no charge and stated that if they refused, he would sue them and file grievances against the firm's attorneys. Appellees declined to take McCarrell's new criminal case and filed a motion to withdraw from representing him in the forgery case, which the district court granted.
McCarrell subsequently alleged his indigence and received appointed counsel. Appellees refunded the $3,000 fee that McCarrell had paid them and gave him the portions of his file allowed by law. See Tex. Code Crim. Proc. art. 39.14(f) (prohibiting counsel from providing defendant with discovery obtained from State). McCarrell then sent a letter demanding that Appellees pay him $275,000 "within 10 days" or he would sue them. Payment was not made. On May 22, 2019, McCarrell sued Appellees for malpractice in Hays County while his felony forgery charge remained pending. Because McCarrell filed suit in the wrong county, Appellees filed a motion to transfer the case to Travis County.
Vexatious Litigant Proceedings Against McCarrell
Subject to their motion to transfer venue, on September 20, 2019, Appellees filed a motion to declare McCarrell a vexatious litigant under chapter 11 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 11.051 (authorizing defendant to file motion for order determining that plaintiff is vexatious litigant and requiring plaintiff to furnish security). The motion alleged that McCarrell, formerly known as Gustavus Addison Morgan IV,
is a prolific pro se litigant with . . . a long history of filing frivolous lawsuits in state and federal court in the hopes of extracting nuisance settlement payments. When he is sanctioned, McCarrell files for bankruptcy to stymie creditors while using the bankruptcy court to continue filing frivolous adversary matters. Although he claims to occasionally receive nuisance settlement payments, McCarrell's lawsuits are routinely dismissed when opposed.The motion further alleged that McCarrell's malpractice suit against Appellees was frivolous, that his claim was unripe because his criminal charges remained pending, and that even if he had been convicted, he had not been exonerated, which is an essential element for pursuing a postconviction criminal-defense-legal-malpractice claim. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995).
On October 28, 2019, after Appellees prevailed on their venue challenge and the case was transferred to Travis County, the district court heard the vexatious-litigant motion. During that Monday afternoon hearing, McCarrell told the court that his forgery charge "ha[d] been dismissed since last Friday." But McCarrell did not tell the court that his forgery charge was dismissed because of "Restitution Paid." In response to the court's further questions, McCarrell acknowledged that his separate charge for theft remained pending.
McCarrell did not provide the civil district court with the dismissal order from his forgery case. But Appellees have provided us with a file-stamped copy of the order signed October 25, 2019, in State of Texas v. Kyle McCarrell, Cause No. D-1-DC-17-302480, in the 299th District Court of Travis County, Texas, specifying that the criminal district court granted the State's motion to dismiss the referenced forgery cause against McCarrell because restitution was paid. We take judicial notice of this order. See Tex. R. Evid. 201(c); Freedom Commc'ns v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) ("[A] court will take judicial notice of another court's records if a party provides proof of the records.").
At the conclusion of the hearing on Appellees' motion, the district court signed an order declaring McCarrell a vexatious litigant. The order includes the court's determinations that McCarrell had no reasonable probability of prevailing in his suit against Appellees and that during the seven years before Appellees filed their motion, McCarrell filed at least five pro se litigations that were finally determined adversely to McCarrell, remained pending at least two years without a trial or hearing, or were determined by a court to be frivolous or groundless. See Tex. Civ. Prac. & Rem. Code § 11.054(1). The court ordered McCarrell to furnish $10,000 security by December 1, 2019, and prohibited him from filing, pro se, any new litigation without first obtaining permission of the local administrative judge. See id. §§ 11.055, .101(a), (e). After McCarrell failed to furnish the security within the time set by the order, a final judgment was signed dismissing McCarrell's suit with prejudice. See id. § 11.056. This appeal followed.
DISCUSSION
Vexatious Litigant Statute and Determination
By enacting the vexatious-litigant statute in chapter 11 of the Civil Practice and Remedies Code, the Legislature "struck a balance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse our civil justice system." Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.—Austin 2005, pet. denied); see Tex. Civ. Prac. & Rem. Code §§ 11.001-.104. The vexatious-litigant statute authorizes a trial court's placement of limitations on the litigation activities of a person who is determined by the court to be a "vexatious litigant." See Tex. Civ. Prac. & Rem. Code § 11.101; Leonard, 171 S.W.3d at 455.
When the court makes a determination, based on evidence presented at a hearing, that the plaintiff is a vexatious litigant, it must order the plaintiff to furnish security to assure payment of the moving defendant's reasonable expenses, including costs and attorneys' fees, that the defendant anticipates incurring in defending the litigation. See Tex. Civ. Prac. & Rem. Code § 11.055(a). If the plaintiff fails to furnish the court-ordered security by the time set in the order, the court must dismiss the suit. See id. § 11.056; Leonard, 171 S.W.3d at 456. Further, the court may, on its own motion or any party's motion, enter a prefiling order prohibiting a plaintiff from filing, pro se, a new lawsuit in state court without leave of the local administrative judge. See Tex. Civ. Prac. & Rem. Code § 11.101; Leonard, 171 S.W.3d at 456.
We review a trial court's ultimate determination that a plaintiff is a vexatious litigant under an abuse-of-discretion standard, considering whether the court ruled arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Leonard, 171 S.W.3d at 459. However, because a trial court must make certain statutory evidentiary findings before exercising its discretion to declare a party a vexatious litigant, we also review those statutory evidentiary findings for legal and factual sufficiency. See id. When reviewing findings for legal sufficiency, if there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Leonard, 171 S.W.3d at 459. When reviewing findings for factual sufficiency, 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 and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Leonard, 171 S.W.3d at 459.
Determining that a plaintiff is a vexatious litigant requires proof of two statutory elements: (1) there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant, and (2) in the seven years before the filing of the defendant's motion seeking the vexatious-litigant determination, the plaintiff has commenced, prosecuted, or maintained at least five pro se litigations that were (a) finally determined adversely to him, (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. See Tex. Civ. Prac. & Rem. Code § 11.054(1). Only the first element is at issue here.
As to the second statutory element, the record contains orders dismissing thirteen of McCarrell's pro se suits—including dismissals for failure to state a claim, for want of prosecution, and for filing a baseless cause of action under Texas Rule of Civil Procedure 91a—filed between June 2014 and January 2019. McCarrell's suits were filed during the seven-year period preceding Appellees' September 2019 filing of their motion seeking the vexatious-litigant determination and the number of pro se suits he filed during that time period exceeded the minimum of five necessary to be considered a vexatious litigant. See Tex. Civ. Prac. & Rem. Code § 11.054(1). As McCarrell acknowledged to the district court, "[T]hey have met their burden on the number of cases, but I've had multiple cases that I've actually won that they didn't address."
McCarrell contests the district court's determination as to his reasonable probability of prevailing against Appellees in his malpractice suit. He pleaded claims against Appellees based on his complaints about their legal services as to his forgery charge. Under the antifracturing rule, McCarrell's lawsuit is treated as a single claim for legal malpractice. See Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.—Houston [1st Dist.] 2016, no pet.) ("Texas law does not permit a client to divide or fracture his legal malpractice claims into additional causes of action."); Beck v. Law Offices of Edwin J. Terry, Jr., P.C., 284 S.W.3d 416, 428 (Tex. App.—Austin 2009, no pet.) (noting that regardless of theory plaintiff pleads, if crux of his complaint is that his attorney did not provide adequate legal representation, plaintiff's claim is one for legal malpractice).
A legal-malpractice claim requires a former client to show that the lawyer owed a duty of care to the client, that the lawyer breached that duty, and that the lawyer's breach proximately caused damage to the client. Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017) (citing Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013)); Hansen v. Roach, No. 03-15-00378-CV, 2017 Tex. App. LEXIS 4895, at *6-7 (Tex. App.—Austin May 31, 2017, no pet.) (mem. op.). Absent harm caused to the former client, no valid claim for legal malpractice exists. Zanetti, 518 S.W.3d at 40; see Arnold & Itkin, L.L.P. v. Dominguez, 501 S.W.3d 214, 222 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (concluding that legal-malpractice claim was not ripe for adjudication because clients had sustained no injury); see also Hansen, 2017 Tex. App. LEXIS 4895, at *20 (affirming judgment denying recovery in legal-malpractice case after concluding that client was not harmed by attorney's negligence in failing to file timely appeal because even if timely filed, appeal would not have been successful). Thus, when a legal-malpractice case arises from prior litigation, the former client must prove that he would have obtained a more favorable result in that litigation had the attorney conformed to the proper standard of care. Zanetti, 518 S.W.3d at 401.
Here, McCarrell faults Appellees for not pursuing his allegation that a roommate forged the $1,000 check. But because McCarrell was not convicted of that forgery—the charge was dismissed after payment of restitution—he sustained no harm from the alleged omission that he attributes to Appellees. Further, because the $1,000 from the forged check was deposited in McCarrell's account, which had no other authorized account holder, a restitution payment for the $1,000 that McCarrell received but was not entitled to keep would have caused him no harm. Finally, McCarrell testified that he received a full refund of the fee he paid to Appellees. Given this evidence, there was no reasonable probability that McCarrell could prove harm, i.e., that he "would have obtained a more favorable result" as to his forgery case but for Appellees' alleged negligence or omission in pursuing allegations about a roommate who "ghosted." See id. at 400.
Chief among McCarrell's complaints were his assertions that Appellees did not issue subpoenas for his phone records or follow up on "a possible lead" that he provided to locate the roommate who allegedly committed the forgery and then "ghosted." Appellees note that McCarrell would have had access to his own phone records without need for a subpoena. They further note that McCarrell's evolving and elaborate explanation for the forgery allegedly committed by a disappearing roommate was not helpful because it ultimately implicated McCarrell in another criminal offense, assisting with a marihuana purchase.
On this record, there is more than a scintilla of evidence to support the district court's determination that the requirements of subsection 11.054(1) were met, and the district court's determination is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Tex. Civ. Prac. & Rem. Code § 11.054(1). Accordingly, we conclude that there was legally and factually sufficient evidence showing that Appellees met their burden of proof under subsection 11.054(1) and that the district court did not abuse its discretion by determining that McCarrell is a vexatious litigant. See id.; Leonard, 171 S.W.3d at 460. We overrule McCarrell's first issue.
As we have noted, McCarrell challenged only the "reasonable probability of prevailing" element of the two that are required to show that a plaintiff is a vexatious litigant. See Tex. Civ. Prac. & Rem. Code § 11.054(1). He made no challenge to the court's determination that Appellees showed at least five of McCarrell's pro se suits were dismissed—for failure to state a claim, for want of prosecution, and for being a baseless cause of action—and that McCarrell filed those suits during the immediate seven-year period preceding Appellees' filing of their motion seeking the vexatious-litigant determination. See id.
Constitutionality of Vexatious Litigant Statute
Next, McCarrell challenges the constitutionality of the vexatious-litigant statute. When considering a challenge to the constitutionality of a statute, we begin with the presumption that the statute is constitutional, and the burden of demonstrating otherwise is on the party challenging it. Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 55 (Tex. 2014); Retzlaff v. GoAmerica Commc'ns Corp., 356 S.W.3d 689, 702 (Tex. App.—El Paso 2011, no pet.). McCarrell opines that the vexatious-litigant statute is discriminatory, ambiguous, overly broad, and an ex post facto law and bill of attainder; violates his rights to due process, equal protection of the law, free speech, and to petition and access the courts; violates the prohibitions against double jeopardy and excessive fines, including violation of his indigency status; and violates the "interstate/dormant commerce clauses." Few of these constitutional complaints were presented to the district court.
Constitutional complaints must be presented to the trial court to be preserved for appellate review. See Loftin v. Lee, 341 S.W.3d 352, 356 n.11 (Tex. 2011) (concluding that party failed to preserve complaints that statute was vague and violated open courts and due course of law guarantees by not raising those issues with trial court); Drum v. Calhoun, 299 S.W.3d 360, 369 (Tex. App.—Dallas 2009, pet. denied). The party's argument on appeal must comport with its argument in the trial court to preserve error. Drum, 299 S.W.3d at 369; see Tex. R. App. P. 33.1(a). Here, McCarrell failed to present to the district court his complaints that the vexatious litigant statute in chapter 11 of the Civil Practice and Remedies Code is discriminatory, ambiguous, overly broad, an ex post facto law, and a bill of attainder; and that the statute violates double-jeopardy prohibitions and the "interstate/dormant commerce clauses." See Tex. R. App. P. 33.1(a). We need not address these unpreserved constitutional complaints on appeal. See Loftin, 341 S.W.3d at 356 n.11; Drum, 299 S.W.3d at 369; Brown v. Texas Bd. of Nurse Exam'rs, 194 S.W.3d 721, 723 (Tex. App.—Dallas 2006, no pet.) (concluding that "constitutional claim regarding the vexatious-litigant statute was not preserved for appeal"); McIntyre v. Wilson, 50 S.W.3d 674, 688 (Tex. App.—Dallas 2001, pet. denied) (concluding that party failed to preserve claims that vexatious litigant statute was unconstitutionally overbroad, violated open courts provisions and limited right to file suits in federal court).
Further, as to McCarrell's complaints that the vexatious-litigant statute violates constitutional rights to due process, equal protection, free speech, and to petition and access the courts, we note that several Texas courts, including ours, have considered and rejected such arguments. See, e.g., Caldwell v. Zimmerman, No. 03-18-00168-CV, 2019 Tex. App. LEXIS 2339, at *5-6 (Tex. App.—Austin Mar. 27, 2019, no pet.) (mem. op.) (concluding that vexatious-litigant statute does not violate pro se litigant's rights to due process, equal protection of law, or to petition courts for relief); Retzlaff, 356 S.W.3d at 703-04 (rejecting contentions that vexatious-litigant statute violates access to courts, due process, equal protection, freedom of speech, freedom of expression, or constitutes "invalid prior restraint"); Dolenz v. Boundy, No. 05-08-01052-CV, 2009 Tex. App. LEXIS 9196, at *8-11 (Tex. App.—Dallas Dec. 2, 2009, no pet.) (mem. op.) (concluding that vexatious-litigant statute does not violate open courts provision, does not unlawfully discriminate against pro se litigants, or violate constitutional right to equal protection); In re Johnson, No. 07-07-0245-CV, 2008 Tex. App. LEXIS 5110, *4 (Tex. App.—Amarillo July 9, 2008, orig. proceeding) (concluding that vexatious litigant statute does not violate due process by requiring dismissal if suit is filed without permission of local administrative judge); Leonard, 171 S.W.3d at 457-58 (concluding that vexatious-litigant statute does not violate constitutional rights to open courts, due process, or equal protection); In re Potts, 357 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (concluding that restrictions in vexatious-litigant statute do not violate constitutional rights to due process or access to courts); see also Bierwirth v. Rio Rancho Props., No. 03-17-00733-CV, 2018 Tex. App. LEXIS 7778, at *10 (Tex. App.—Austin Sept. 25, 2018, no pet.) (mem. op.) ("This Court and other courts have previously confirmed the constitutionality of the vexatious litigant statute.").
Similarly, we are not persuaded by McCarrell's complaint that the vexatious-litigant statute, by requiring security to be furnished, violates the constitutional prohibition against excessive fines. The excessive fines prohibition in the Eighth Amendment applies to punishment imposed on a defendant after a criminal conviction and does not purport to address whether a party should be allowed to pursue civil litigation without paying costs. See U.S. Const. amend. VIII; Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex. App.—Amarillo 2011, no pet.) (noting that Eighth Amendment prohibition against cruel and unusual punishment pertains to punishment after conviction for crime and that consideration of whether one is indigent and entitled to proceed without paying costs of court or filing fees has nothing to do with punishment); Clifton v. Walters, 308 S.W.3d 94, 102 (Tex. App.—Fort Worth 2010, pet. denied) (noting that Eighth Amendment forbids extreme sentences that are grossly disproportionate to crime committed and that chapter 11 of Civil Practice and Remedies Code does not involve punishment); see also Lagaite v. Pittman, No. 01-10-00554-CV, 2012 Tex. App. LEXIS 3684, at *13 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.) (concluding that trial court did not err by requiring indigent inmate plaintiff to furnish security or risk dismissal of his claim after court declared him vexatious litigant). It is undisputed that McCarrell's felony forgery charge was dismissed and that the security that he was ordered to pay was unrelated to any criminal conviction.
In sum, McCarrell fails to distinguish or acknowledge any cases, including those from this Court, contrary to the constitutional arguments that he presents here. Accordingly, to the extent that McCarrell's second issue was preserved and briefed, we overrule it. See Tex. R. App. P. 33.1(a), 38.1(i).
CONCLUSION
We affirm the district court's October 28, 2019 order declaring McCarrell a vexatious litigant.
/s/_________
Gisela D. Triana, Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: August 12, 2020