Opinion
05-21-00360-CV
06-30-2023
MOLLY L. WILKERSON, Appellant v. MARK MALDONADO, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-51795-2021.
Before Justices Pedersen, III, Goldstein, and Smith
MEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
Appellant Molly L. Wilkerson appeals the trial court's April 21, 2021 "Order Declaring Molly L. Wilkerson a Vexatious Litigant" (the Order). In four issues, Wilkerson: challenges the constitutionality of the vexatious litigant statute, both facially and as applied in this case; challenges the trial court's designation of her as a vexatious litigant without allowing evidence or argument; and contends that the vexatious litigant statute violated her substantive rights when it infringed upon her parental rights and rights to appeal. We affirm the trial court's Order.
Background
Wilkerson and Maldonado began a romantic relationship in late 2005. Their daughter was born in 2013; a son was born in 2015. In January 2020, Wilkerson and Maldonado ended their relationship. In June of that year, Maldonado filed a SAPCR petition, and Wilkerson filed a suit for divorce, alleging an informal marriage. The trial court subsequently consolidated the SAPCR into the divorce suit, and those claims have been tried and appealed. During the pendency of the consolidated action in the trial court-between October 7, 2020 and April 5, 2021-Wilkerson filed five separate applications for protective order against Maldonado. The fifth application forms the basis of the underlying suit in this appeal.
The Motion
After Wilkerson filed the fifth application, Maldonado filed "Respondent's Motion to Designate Petitioner Molly L. Wilkerson a Vexatious Litigant" (the Motion). The Motion urged two grounds: (1) that Wilkerson had filed five lawsuits requesting protective orders and two modification lawsuits in approximately six months, alleging that Maldonado is abusive and/or neglectful, that she should have primary possession of their children, and that he should be restricted from access to her and the children, and (2) given the fact that the trial court had already considered Wilkerson's allegations of abuse and ruled against her, this lawsuit represents an effort by her to relitigate either the court's determination or the same issues underlying that determination. The Motion sought to have Wilkerson post bond before any additional filings, obtain permission from the local administrative judge before any additional filings, and pay Maldonado an award of attorney's fees. The Motion specifically asked the trial court to take judicial notice of each of the independent case files in which Wilkerson had filed an application for a protective order.
Wilkerson responded to the Motion, asserting a general denial and calling the Motion "a frivolous pleading which serves to harass and bring emotional distress" to her.
The trial court set Wilkerson's fifth application and Maldonado's Motion for a single hearing. In support of her application, Wilkerson successfully offered four exhibits and the testimony of her brother, Paul Wilkerson, Jr. When the hearing turned to addressing the Motion specifically, Wilkerson offered only argument, but no evidence. Maldonado's counsel requested, and the court took, judicial notice of all of the following: the current filing; the evidence on the specific filings that had been previously denied; the issues concerning Wilkerson's behavior that were contained in the court's orders, findings of fact, and conclusions of law; and a criminal case pending against Wilkerson in Dallas County (specifically including bond conditions, the indictment, and the Richardson Police Department report).
Wilkerson's exhibits included: e-mails from her former attorney "about harassment by opposing counsel"; e-mails from the Office of the Attorney General indicating she had withdrawn her request for child support; a text message thread between her and Maldonado; and e-mails between her and Maldonado's counsel concerning an Annual Admission, Review and Dismissal finding concerning her daughter's education progress. Wilkerson's brother testified that he was concerned for the children's welfare and for his sister; he expressed that he, and his ill mother, wanted the opportunity to see the children. The court ruled that none of this evidence would cause him to change his ruling against granting her a protective order.
The court orally denied Wilkerson's fifth application and granted Maldonado's Motion.
The Order
After hearing Wilkerson's evidence and argument, and taking judicial notice of all files before the court involving these parties, the court signed two orders: one denying Wilkerson's fifth application for a protective order, and the other-the Order before us in this appeal-granting Maldonado's Motion and naming Wilkerson a vexatious litigant. The Order required Wilkerson to obtain permission from the local administrative judge before filing any further pro se litigation, but the trial court denied Maldonado's request for bond and for an award of attorney's fees.
This appeal followed. Wilkerson appears pro se in this Court as she did in the proceeding below.
Discussion
Chapter 11 of the Texas Civil Practice and Remedies Code provides a mechanism to restrict frivolous and vexatious litigation. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.051-.057. “[T]he Texas legislature sought to strike a balance between Texans' right of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit.” Drum v. Calhoun, 299 S.W.3d 360, 364-65 (Tex. App.-Dallas 2009, pet. Denied). We review a trial court's order declaring a litigant vexatious for an abuse of discretion. Id. at 364.
The Vexatious Litigant Determination
In her third issue, Wilkerson argues that the trial court erroneously declared her a vexatious litigant without allowing evidence submissions and arguments. Two statutory grounds are relevant to our review of that determination:
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;
(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; [or]
(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;
(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[.]CIV. PRAC. &REM. § 11.054(1), (2). The threshold for a subsection (1) finding is somewhat mechanical: five qualifying litigations in seven years; subsection (2) is grounded in repetitive litigations against the same defendant, challenging a determination against him or the issues underlying that determination. Maldonado urged both section 11.054 grounds in the Motion, and the trial court concluded that both grounds supported a finding that Wilkerson should be declared a vexatious litigant.
A third statutory ground is based upon a prior finding of vexatious litigation. Wilkerson has not previously been declared to be a vexatious litigant. See CIV. PRAC. & REM. § 11.054(3).
The trial court opened the hearing on Wilkerson's fifth application and Maldonado's Motion by reading the list of applications she had filed during the pendency of the divorce and SAPCR actions and the dates they were denied.Wilkerson contends that she filed her applications for protective order "for her own protection because Appellee was abusive and posed threats to her." The Motion alleged that Wilkerson repeatedly filed unsupported claims against Maldonado, including-in three of the first four applications-submitting the identical three-page document to support the application. At the hearing, the trial court explained its earlier rulings, saying: "Based on the filings as they were, the Court determined them to be frivolous and without merit in each of the filings. And they were repetitive and they were, again, denied by this Court."
Wilkerson filed these earlier applications in: Cause Number 366-56037-2020, filed October 27, 2020, and denied November 12, 2020; Cause Number 366-56922-2020, filed December 15, 2020, and denied the same day; Cause Number 366-50247-2021, filed January 20, 2021; and denied January 21, 2021; and Cause Number 366-50063-2021, filed February 5, 2021, and denied February 10, 2021. The fifth application at issue in the hearing was filed in this case (Cause Number 366-51795-2021) on April 5, 2021, and was denied April 21, 2021.
Before addressing Wilkerson's specific arguments, we reject her assertion that the trial court made its decision without allowing her to submit evidence or argument. We have reviewed the reporter's record of the hearing, and the trial court repeatedly encouraged Wilkerson to offer evidence to support her fifth application, any new evidence she might have relating to her earlier applications, and any evidence to defend against the Motion. As we noted above, the trial court admitted a number of exhibits offered by Wilkerson as well as her brother's testimony. In addition to this evidence, the majority of the record contains argument by Wilkerson as to why her protective orders were valid, why the Motion was improper, and why she was unfairly being kept from being with her children. Wilkerson was given every opportunity to support her applications and to defend against the Motion by offering evidence and relevant legal argument.
In one place in her brief, Wilkerson appears to base this couching of her issue on the trial court's statement that he would, as Maldonado requested in the Motion, take judicial notice of all the filings in this litigation as well as each of the earlier litigations that had been denied. Judicial notice is not a refusal to hear evidence and argument. On the contrary, judicial notice is a method of placing before the court "a fact that is not subject to reasonable dispute because it: . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." TEX. R. EVID. 201(b)(2). Trial courts routinely take judicial notice of the documents in their own case files.
In this Court, Wilkerson argues first that she has filed only a single unified lawsuit-the divorce-and that she filed that one through an attorney. However, the statute speaks not to "lawsuits," but to "litigations." And the statute defines a "litigation" as "a civil action commenced, maintained, or pending in any state or federal court." Civ. Prac. &Rem. § 11.001(2). An application for a protective order is a separate civil action, given its own case number at filing, and resolved separately from any proceeding that may be pending between the parties involved. We conclude that each of Wilkerson's applications for protective orders was a litigation within the meaning of section 11.054. Moreover, although Wilkerson's divorce was initially filed by an attorney, Maldonado represents-and Wilkerson does not challenge-that her attorney withdrew from the representation on October 15, 2020. All five of Wilkerson's applications for protective orders were filed by her, pro se, after that withdrawal date. We reject Wilkerson's argument that her applications do not qualify as litigations within the ambit of the vexatious litigant statute.
As to whether Wilkerson was "relitigating" determinations already made by the trial court, we stress that all of the protective order proceedings were referred to the 366th district court; thus, the same judge presided over and ruled on each application. We defer, as we must, to his credibility determinations in these proceedings. The judge stated on the record that Wilkerson "every single time" filed frivolous motions and lied in her filings. As to the applications for protective order, he said:
You have filed specific lawsuits, namely, these protective orders that have been denied by this Court multiple times. So you continue to file them. You continue to file frivolous motions with regard to this Court
and regard to every single case that we've been dealing with, specifically, your protective orders and the original filings.
On another occasion in the hearing, in response to Wilkerson's broad arguments about harassment, the trial court stated:
[Y]ou're telling me all of these things that are not legally sufficient. And you keep filing all of these documents. You keep filing all these protective orders that don't have any basis in fact, they don't have any basis in reality, that don't have any basis in regards to the law. And so I keep denying them and you continue to keep coming back up here after being told time and time again by the Court to do certain things that you do not do.
Based on the files and evidence before it, the trial court could rationally have concluded that Wilkerson's filings amounted to relitigating the same issues in her applications for protective orders.
Wilkerson argues without citation to authority that "[b]oth [protective orders and SAPCRs] are intended to be relitigated after being finally determined." We disagree. A SAPCR proceeding remains pending during a child's minority, but SAPCR orders are open to modification only when the party seeking modification can establish that circumstances have materially and substantially changed. See TEX. FAM. CODE ANN. § 156.101(A). NO AUTHORITY SUPPORTS THE ARGUMENT THAT EITHER SAPCR ORDERS OR PROTECTIVE ORDERS ARE OPEN TO REPETITIVE RELITIGATION OF THE SAME ISSUES UNDER THE SAME CIRCUMSTANCES.
Finally, Wilkerson argues that her earlier applications for protective orders were not "finally determined" until the hearing on April 20, 2021, which of course was after the Motion was filed. Again, we disagree. Each of Wilkerson's first four applications was denied or dismissed shortly after it was filed. For Wilkerson's benefit-given that she was faced with the Motion based at least in part upon the earlier applications-the trial court invited her to offer any new evidence she had as to those applications as well as her fifth application. Had she done so, the trial court could have ruled differently on the protective order she repeatedly sought. But Wilkerson offered no such evidence, and the trial court's original rulings did not change.
At the hearing, Wilkerson asserted that some of her applications resulted in dismissals. A dismissal is an adverse determination for purposes of section 11.054. See Copeland v. MIC Gen. Ins. Corp., No. 05-21-01009-CV, 2023 WL 2782719, at *3 (Tex. App.-Dallas Apr. 5, 2023, no pet.) (mem. op.).
We conclude that after the trial court had determined that Wilkerson was not entitled to a protective order based upon her allegations of abusive conduct by Maldonado, Wilkerson-acting pro se-repeatedly attempted to relitigate that same determination and the factual issues underlying it against Maldonado. Accordingly, the trial court did not abuse its discretion in finding Wilkerson to be a vexatious litigant pursuant to subsection (2) of the vexatious litigant statute. See CIV. PRAC. &REM. § 11.054(2). WE OVERRULE WILKERSON'S THIRD ISSUE.
Challenges to the Statute
In her remaining issues, Wilkerson asserts that the vexatious litigant statute is unconstitutional on its face, unconstitutional as applied in her case, and violates her substantive rights because it infringes upon her parental rights and rights to appeal. Wilkerson's briefing on these issues fails to point us to Texas authorities that support her complaints. Although we construe pro se pleadings and briefs liberally, a pro se litigant is still required to follow the same rules as a litigant represented by a licensed attorney. See Drum, 299 S.W.3d at 364. Otherwise a pro se litigant would have an unfair advantage over a litigant represented by a licensed attorney. Id. Among the rules of appellate procedure is the requirement that an appellant's brief contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). We cannot review an issue on appeal when it is not supported by citation to relevant legal authority. See Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 477 (Tex. App.-Dallas 2003, pet. denied).
Wilkerson's arguments under these issues are emotional rather than legal, and they regularly misstate and overstate the effect of the court's Order. When arguing against the Motion, she asserted that she had been denied the ability to appeal "I can't appeal final orders that completely, permanently restrict my access to the children." Neither this Order, nor any other order of the trial court has terminated her parental rights to her children. As the trial court stressed during the hearing in this matter, Wilkerson has been made aware of the conditions she must satisfy to regain rights of visitation and possession of her children; she had not complied with those conditions at the time of the hearing. Likewise, the Order does not prevent her from filing any and all litigation. It does not require that she post a bond before filing, as most vexatious litigants are required to do. Instead, Wilkerson is prohibited only "from filing, pro se, a new litigation in any court in Texas without written permission of the appropriate local administrative judge." The local administrative judge then may grant Petitioner permission to file if the litigation has merit and has not been filed for the purposes of harassment or delay. Id. § 11.102(a). Wilkerson has not been unfairly denied recourse in matters involving her children.
For example, citing that Order, Wilkerson states that "[Maldonado] was GRANTED the right to maintain pride in his traumatizing behaviors, and [Wilkerson] was ORDERED to live in fear that she will never be able to see her children again."
As to relevant legal arguments, when Wilkerson does cite cases in her brief, she quotes language that actually refers to very different statutes; these cases do not support directly, or by analogy, any constitutional infirmity in the vexatious litigant statute. We conclude that Wilkerson has offered no adequate legal basis for a conclusion that the statute is unconstitutional either facially or as applied to her.
We overrule her remaining issues.
Conclusion
We affirm the trial court's April 21, 2021 Order Declaring Molly L. Wilkerson a Vexatious Litigant.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's April 21, 2021 Order Declaring Molly L. Wilkerson a Vexatious Litigant is AFFIRMED.
It is ORDERED that appellee Mark Maldonado recover his costs of this appeal from appellant Molly L. Wilkerson.
Judgment entered.