Connor v. Hooks

Madeleine Connor, Appellant v. Douglas Hooks, Appellee

NO. 03-19-00198-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

March 5, 2021

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-18-005130, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

MEMORANDUM OPINION

Madeleine Connor, a lawyer acting pro se,¹ appeals from an order granting Douglas Hooks's motion and determining that Connor is a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code (Chapter 11). See generally Tex. Civ. Prac. & Rem. Code §§ 11.001-.104; see id. § 11.101(c) (providing for appeal). Under Chapter 11, Hooks bore the burden to show that there is not a "reasonable probability" Connor will prevail in her Rule 202 petition for deposition against him and that Connor met one of three other statutory criteria to be a vexatious litigant. See id. § 11.054(1)-(3) (describing three alternative criteria). Because the trial court did not abuse its discretion in determining that Hooks met this statutory burden and because Connor's other arguments are unavailing, we affirm.

BACKGROUND

In September 2018, Connor petitioned the trial court for a Rule 202 presuit deposition of "Douglas Hooks, Elizabeth Hooks, and Jane/John Doe 1-16" for "an anticipated defamation per se suit." See Tex. R. Civ. P. 202.1 (permitting petition for order authorizing deposition for use in anticipated suit or to investigate potential claim or suit). Connor's Rule 202 petition relied on the following alleged defamatory posting on AVVO.com² that she discovered after "randomly googl[ing] herself" on April 14:

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Hooks responded by filing a motion for an order determining Connor a vexatious litigant and requesting security (Chapter 11 Motion), see Tex. Civ. Prac. & Rem. Code § 11.051, and an original answer subject to the Chapter 11 Motion. Hooks primarily argued that the trial court should determine that Connor is a vexatious litigant under Section 11.054's third criterion because "Connor has been deemed a vexatious litigant" by United States District Judge Pitmanof the Western District of Texas in Connor v. Stewart, No. 1:17-CV-827-RP, 2018 WL 4169150, at *2-3 (W.D. Tex. Aug. 30, 2018), aff'd per curiam, 770 F. App'x 244 (5th Cir. 2019) (mem.), and that case dealt with "similar" defamatory statements, see Tex. Civ. Prac. & Rem. Code § 11.054(3), as admitted by Connor in her Rule 202 petition. Hooks also filed a supplement to his motion providing updates on recent cases filed by Connor. In January 2019, the trial court heard Hooks's Chapter 11 Motion. See id. § 11.053.

The day after the hearing, Connor filed a nonsuit with prejudice of her Rule 202 suit. Connor also filed a supplemental brief and evidence—permitted by oral leave of the trial court at the hearing—attaching a notice of appeal to the Fifth Circuit. Connor argued that Judge Pitman's order was not final as she had appealed the order in October 2018 and that the order "did not involve the same or substantially similar facts—as there is no mention of the AVVO review," the "parties are not the same," and "the claims are entirely different." Connor also filed a "Suggestion of Mootness"—later raising the same arguments in a plea to the jurisdiction, which the Court denied—claiming that her Rule 202 suit is now moot because she had filed a "true cause of action" against Hooks and nonsuited her Rule 202 suit.

The next day, Hooks filed a second supplement to his motion, asserting that because Connor had nonsuited with prejudice her Rule 202 petition, "she would not prevail in this particular lawsuit." Connor responded, arguing that Judge Pitman's "order does not expressly declare [Connor] to be a vexatious litigant" because "the language is just not there"; that case law requires "a precise former 'declaration' of a 'vexatious litigant,' even if the order were a final order, which it is not"; and that "[t]here is simply nothing in [Judge Pitman's] order about the Hookses, or their illegal AVVO review." Connor also raised facial and as applied constitutional challenges based on her right to petition. See U.S. Const. amend. I; Tex. Const.art. I, § 27. Later that same day, the trial court signed an order determining Connor a vexatious litigant under Chapter 11 and prohibiting Connor from filing any new litigation without the permission of the local administrative judge. See Tex. Civ. Prac. & Rem. Code §§ 11.101-.102. The trial court expressly found that "Connor was declared a vexatious litigant" by Judge Pitman and concluded that because Connor has nonsuited her case with prejudice "security is no longer necessary and will be dismissed as moot." Connor appeals from this order. See id. § 11.101(c) ("A litigant may appeal from a prefiling order entered under Subsection (a) designating the person a vexatious litigant.").

Connor then requested findings of fact and conclusions of law, which the trial court entered. As relevant here, the trial court found that Connor was declared a vexatious litigant by Judge Pitman; found that the federal case before Judge Pitman, among other cases, "are based on the same or substantially similar facts, transition, or occurrence as exist in the instant case"; concluded that Connor's nonsuit with prejudice "confirm[ed] there was no reasonable probability that she would prevail in the litigation" against Hooks; and found that "Connor is determined a vexatious litigant as defined by the statute." Connor filed a motion for new trial, which was overruled as a matter of law.

APPLICABLE LAW AND STANDARD OF REVIEW

In Chapter 11, "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). Chapter 11 provides that a defendant in "a litigation in this state" may move for an order determining that the plaintiff is a vexatious litigant. Tex. Civ. Prac. & Rem. Code§ 11.051; see id. § 11.001(2) (defining "Litigation" to mean "a civil action commenced, maintained, or pending in any state or federal court"), (5) (defining "Plaintiff" to mean "an individual who commences or maintains a litigation pro se"). After a hearing on the evidence, "[a] court may find a plaintiff a vexatious litigant if the defendant shows," as relevant here:

that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that . . . (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, or occurrence.³

Id. § 11.054. We review a trial court's determination that a plaintiff is a vexatious litigant for an abuse of discretion. Leonard, 171 S.W.3d at 459. "However, because a trial court may exercise its discretion to declare a party a vexatious litigant only if it first makes prescribed statutory evidentiary findings, we also review the trial court's subsidiary findings under [C]hapter 11 for legal and factual sufficiency." See id. A legal sufficiency challenge fails "if there is more than a scintilla of evidence to support the finding," and a factual sufficiency challenge fails unless the "ruling is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust." Id.

DISCUSSION

Connor raises five issues on appeal. First, Connor claims that the trial court abused its discretion because there is legally and factually insufficient evidence to support any of the three statutory criteria enumerated in Section 11.054 to declare a plaintiff a vexatious litigant.Second, Connor argues that the trial court erred in failing to issue a finding of fact or conclusion of law that "there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant," as required by Section 11.054. Third, Connor challenges the jurisdiction of the trial court to make a vexatious litigant determination when the case was mooted by Connor's nonsuit. Fourth, Connor argues that Chapter 11 does not apply to a Rule 202 petition. Finally, Connor challenges Chapter 11 as unconstitutional on its face and as applied. We begin with Connor's threshold third and fourth issues before turning to her issues on the merits.

Threshold Issues

In her third and fourth issues, Connor claims that the trial court lost jurisdiction over her Rule 202 proceeding once she filed her nonsuit and that Chapter 11 does not apply to Rule 202 proceedings. "Under Texas law, parties have an absolute right to nonsuit their own claims for relief at any time during the litigation until they have introduced all evidence other than rebuttal evidence at trial." Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008) (citing Tex. R. Civ. P. 162). "If a claim is timely nonsuited, the controversy as to that claim is extinguished, the merits become moot, and jurisdiction as to the claim is lost." City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). "But a nonsuit is not allowed to prejudice the right of an adverse party to be heard on a pending claim for affirmative relief." Id.; see Tex. R. Civ. P. 162 (providing that dismissal "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief").

Connor argues that "Rule 202 does not afford a respondent a right to seek 'affirmative relief'" under Chapter 11 because "Chapter 11 does not apply to Rule 202 pre-suit investigations." We disagree. Chapter 11 permits a defendant to file a motion for an orderdetermining plaintiff a vexatious litigant "[i]n a litigation in this state." Tex. Civ. Prac. & Rem. Code § 11.051. Chapter 11 defines "Litigation" as "a civil action commenced, maintained, or pending in any state or federal court." Id. § 11.001(2). The Code does not define the term "civil action." However, Black's...