Connell Spain v. Surgeon Charles Thomas Black, M.D., Pediatric Surgical Associates of Fort Worth, Baylor All Saints Med Ctr, Tarrant Cty Commissioners, Tarrant County, Texas, Dallas County Commissioners, on Behalf of Dallas County, and Dallas County, Texas

• Court: Court of Appeals of Texas
• Decided: August 31, 2010
• Docket: 08-09-00036-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CONNELL SPAIN, §

Appellant, §

v. § No. 08-09-00036-CV

SURGEON CHARLES THOMAS § Appeal from the BLACK, M.D., PEDIATRIC SURGICAL ASSOCIATES OF FORT WORTH, § 191st District Court BAYLOR ALL SAINTS MEDICAL CENTER, TARRANT COUNTY § of Dallas County, Texas COMMISSIONERS, TARRANT COUNTY, TEXAS, DALLAS COUNTY § (TC# DC-08-12732-J) COMMISSIONERS, ON BEHALF OF DALLAS COUNTY, AND DALLAS § COUNTY, TEXAS, § Appellees. OPINION

Connell Spain, pro se, appeals from an order dismissing his suit against Appellees. For the

following reasons, we affirm.

FACTUAL SUMMARY

Spain, individually and as next friend of his daughter, Brandi Lashaun Spain, filed suit

against Appellees raising numerous claims related to the health care provided to his daughter. Spain

attached as an exhibit to his petition a copy of an order signed by the 236th District Court of Tarrant

County on November 6, 2002. That order recited that Spain had been determined to be a vexatious

litigant by the 236th District Court on November 1, 2001. It required Spain to attach to any petition

“filed in any Texas district, county, justice, or small claims court an affidavit stating the evidence

he is ready and able to present supporting his claim and identifying the name and address of every witness he intends to call and the substance of the witness’s testimony.” Although Spain attached

the order to his petition, he did not attach the affidavit required by the order. Spain also attached to

his petition a copy of an order entered on December 30, 1994, by the Honorable Terry R. Means,

United States District Judge, which required Spain to obtain leave of court before filing any

pleading, motion, or other document in the United States District Court for the Northern District of

Texas.1 The District Clerk later notified the trial court in writing that Spain is a vexatious litigant

under Chapter 11 of the Texas Civil Practice and Remedies Code2 and he had not obtained

permission to file suit. The District Clerk attached to the notice an order entered by the 236th

District Court of Tarrant County on November 1, 2001 granting a motion filed by Waste

Management of Texas Incorporated to declare Spain a vexatious litigant;3 and (2) the November 6,

2002 order entered in the same case granting Waste Management’s motion for sanctions and

injunctive relief. Spain filed a motion to strike the District Clerk’s notice.

At the hearing on the motion to strike, Spain asserted that he had not been declared a

vexatious litigant and he had not been ordered by a court to obtain permission to file suit. Counsel

for the District Clerk introduced into evidence: (1) a motion filed by Waste Management in the

Spain v. Waste Management suit asking that the 236th District Court enter an order declaring Spain

to be a vexatious litigant; (2) the November 1, 2001 order entered by the 236th District Court which

1 Like the order entered by the 236th District Court, the order also required Spain to attach to any complaint an affidavit stating the evidence is ready and able to present supporting his claim and identifying the name and address of evidence witness he intends to call and the substance of the witness’s testimony; and include with the filing of all claims in all courts in the United States a copy of the injunction order and a copy of an exhibit attached to the order describing Spain’s history of filing frivolous suits.

2 See T EX .C IV .P RAC .&R EM .C O D E A N N . §§ 11.001-11.104 (Vernon 2002).

3 The order was entered in cause number 236 187533 01, Connell Spain, Plaintiff, and Preceding Next Friend for Brandi Lashaun Spain, a Child v. Waste Management of Texas Incorporated and City of Fort Worth. For convenience, we will refer to this order as the November 1, 2001 order. W e will refer to the suit as the Spain v. Waste Management suit. granted Waste Management’s motion to declare Spain a vexatious litigant and required Spain to post

security for costs; and (3) the November 6, 2002 order. The trial court denied Spain’s motion to

strike and dismissed his suit with prejudice because he had failed to comply with the requirements

of the November 6, 2002 order and he had failed to seek permission before filing suit. This appeal

follows.

VEXATIOUS LITIGANT

In his sole issue, Spain argues that the order entered by the 236th District Court on November

6, 2002 is unconstitutionally invalid because it modified or altered an injunction entered by the

federal district court, it is not derived from a constitutionally credible or competent source, and it is

not entitled to full faith and credit. Spain admits in his brief that he unsuccessfully appealed the

November 6, 2002 order. Baylor All Saints Medical Center initially responds that Spain waived this

argument by not presenting it in the trial court. Alternatively, it contends that Spain’s argument is

an impermissible collateral attack on the November 6, 2002 order.

Waiver and Impermissible Collateral Attack

Spain attempts to avoid application of the November 6, 2002 order’s pre-filing requirements

by arguing for the first time on appeal that the order is invalid for a number of reasons. Spain did

not raise these issues in his motion to strike or at the hearing on his motion. Instead, Spain argued

in the trial court that no order existed declaring him a vexatious litigant and the defendants had failed

to produce such an order.

The issue presented on appeal is an impermissible collateral attack on a final judgment.

Collateral attacks on final judgments are generally disallowed because it is the policy of the law to

give finality to the judgments of the courts. Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005);

Tice v. City of Pasadena, 767 S.W.2d 700, 703 (Tex. 1989). Chapter 11 of the Civil Practice and Remedies Code (the vexatious litigant statute) does not authorize a collateral attack on an order

declaring a person to be a vexatious litigant. Further, Spain has cited no authority which would

permit him to collaterally attack the November 6, 2002 order entered by the 236th District Court and

we are aware of none.

Even if Spain could collaterally attack the November 6, 2002 order, he failed to preserve the

issue for appellate review by objecting on these grounds in the trial court. As a prerequisite to

presenting a complaint for appellate review, the record must show that the complaint was made to

the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial court aware

of the complaint. TEX .R.APP.P. 33.1(a)(1)(A). Further, if the argument raised on appeal does not

comport with the objection made in the trial court, nothing is presented for our review.

TEX .R.APP .P. 33.1(a)(1)(A); Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62 (Tex.App.--El

Paso 2010, no pet.). Because Spain did not raise these challenges to the November 6, 2002 order

in the trial court, he has failed to preserve the issue for our review. It is unnecessary to address the

remaining issues raised by the Appellees. Accordingly, we overrule the sole issue presented on

appeal and affirm the judgment of the trial court.

August 31, 2010 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.