Eric Drake v. Seana Willing

Opinion

ACCEPTED 03-14-00665-CV 4732856 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/1/2015 3:43:15 PM JEFFREY D. KYLE CLERK Case No. 03-14-00665-CV ______________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD JUDICIAL DISTRICT 4/1/2015 3:43:15 PM AUSTIN, TEXAS JEFFREY D. KYLE ______________________________ Clerk

ERIC DRAKE

Plaintiff - Appellant,

vs.

KASTL LAW FIRM P.C., ET. AL.

Defendants - Appellees. ______________________________

On Appeal from the 200th District Court, Travis County Case No. D-1-GN-14-001215 ______________________________

BRIEF OF APPELLEE ______________________________

KEN PAXTON SCOT M. GRAYDON Attorney General of Texas Texas State Bar No. 24002175 Assistant Attorney General CHARLES E. ROY Office of the Attorney General First Assistant Attorney General General Litigation Division P.O. Box 12548 JAMES E. DAVIS Capitol Station Deputy Attorney General for Defense Austin, Texas 78711-2548 Litigation Phone (512) 463-2120 Fax (512) 320-0667 ANGELA V. COLMENERO Chief, General Litigation Division ATTORNEYS FOR APPELLEE SEANA WILLING IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellee herein provides this Court with the following list of parties and names

and addresses of all trial and appellate counsel.

Appellant: Eric Drake, Pro Se PO Box 833688 Richardson, Texas 75083

Appellee: Seana Willing Attorney for Appellee: Scot M. Graydon Assistant Attorney General General Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 512-463-2120 512-330-0667 Fax scot.graydon@texasattorneygeneral.gov

The following were parties at the Trial Court level, but are not involved in the appeal:

Defendant: Kastl Law P.C. Attorney for Defendant: Kristina Kastl Kastl Law P.C. 4144 N. Central Expressway, Suite 300 Dallas, Texas 75204 214-821-0230 214-821-0231 Fax kkastl@kastllaw.com

Defendant: Carl Ginsberg ii Attorney for Defendant: David Harris Assistant Attorney General Law Enforcement Defense Division P.O. Box 12548 Austin, Texas 78711-2548 512-475-3042 512-370-9410 Fax david.harris@texasattorneygeneral.gov

Defendant: Vikki Ogden Attorney for Defendant: Frank Waite 411 Elm Street, Ste 500 Dallas, Texas 75202 214-653-7358 214-653-6134 Fax frank.waite@dallascounty.org

iii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv

TABLE OF AUTHORITIES .................................................................................. vii

BRIEF OF APPELLEE SEANA WILLING .............................................................1

STATEMENT OF THE CASE ..................................................................................2

A. Nature of the case .......................................................................................2

B. Course of the Proceedings ..........................................................................2

C. Trial Court’s Disposition of the Case.........................................................4

STATEMENT REGARDING ORAL ARGUMENT ...............................................5

ISSUES PRESENTED (RESTATED) ......................................................................6

STATEMENT OF FACTS ........................................................................................8

1. OBJECTION……………..………………………………………………8

2. FACTS…………………………………………………………………...8

SUMMARY OF THE ARGUMENT ......................................................................12

ARGUMENT AND AUTHORITIES ......................................................................17

A. STANDARD OF REVIEW......................................................................17

B. DETERMINATION MUST BE AFFIRMED DUE TO WAIVER.........18

iv ISSUE ONE........................................................................................................20

ISSUE TWO .......................................................................................................22

1. Appellant’s Lack of Standing .................................................................24

a. Appellant has Waived Argument Related to Lack of Standing ......25

b. Plaintiff Lacks Standing to Bring Claims against Ms. Willing…..26

(1). No Injury Caused By Ms. Willing……………………..27

(2). No Justiciable Issue Regarding Ms. Willing…………..28

2. Ms. Willing has Sovereign Immunity which Bars Appellant’s Claims 29

a. Appellant Waived Argument Related to Sovereign Immunity…..29

b. Sovereign Immunity Bars Claims Against Ms. Willing…………30

(1). No Individual Capacity Claims Against Ms. Willing....30

(2). No Waiver Applies to Claims Against Ms. Willing…..33

ISSUE THREE ...................................................................................................34

ISSUE FOUR .....................................................................................................37

ISSUE FIVE .......................................................................................................37

1. Good Cause to Hear the Matter, Despite the Motion to Recuse ............38

2. Alleged Procedural Defect Does Not Bar the Motion ............................42

ISSUE SIX .........................................................................................................44

v ISSUE SEVEN ...................................................................................................44

ISSUE EIGHT ....................................................................................................45

ISSUE NINE ......................................................................................................49

ISSUE TEN ........................................................................................................51

ISSUE ELEVEN ................................................................................................52

PRAYER ..................................................................................................................56

CERTIFICATE OF SERVICE ................................................................................58

CERTIFICATE OF COMPLIANCE .......................................................................59

vi TABLE OF AUTHORITIES

Cases

Amir–Sharif v. Quick Trip Corp., 416 S.W.3d 914 (Tex.App.–Dallas 2013, no pet.)................................... 17, 18, 19

Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011) .............................................................................. 34, 53

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) .................................................................................... 32, 33

Barron v. State of Tex. Att'y Gen., 108 S.W.3d 379 (Tex.App.-Tyler 2003) ...............................................................38

Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007) .............................................................................................32

Britton v. Texas Dept. of Criminal Justice, 95 S.W.3d 676 (Tex. App.-Houston [1st Dist.] 2002, no pet.) ...................... 18, 20

Brown v. Hearthwood II Owners Ass'n, Inc., 201 S.W.3d 153 (Tex. App.-Houston [14th Dist.] 2006, pet. denied)..................25

Brown v. Todd, 53 S.W.3d 297 (Tex. 2001) ...................................................................................27

Chambers v. Equity Bank, SSB, 319 S.W.3d 892 (Tex. App.—Texarkana 2010) ............................................ 36, 43

City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) ........................................................................... 17, 45

City of Paris v. Abbott, 360 S.W.3d 567 (Tex. App. - Texarkana 2011, pet. denied) ......................... 34, 53

vii Cleveland Constr., Inc. v. Levco Constr., Inc., 359 S.W.3d 843, 852 n. 1 (Tex. App.-Houston [1st Dist.] 2012, pet. dism'd) .....25

Clifton v. Walters, 308 S.W.3d 94 (Tex. App.-Fort Worth 2010).......................................................50

Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894 (Tex. App.-Tyler 2005) ..............................................................25

Dir. of Dept. of Agric. & Env't v. Printing Indus. Assoc. of Tex., 600 S.W.2d 264 (Tex. 1980) .......................................................................... 34, 53

Dishner v. Huitt–Zollars, Inc., 162 S.W.3d 370 (Tex.App. - Dallas, 2005) ..........................................................17

Drum v. Calhoun, 299 S.W.3d 360 (Tex.App.-Dallas 2009, pet. denied)....................... 42, 49, 52, 53

General Serv. Comm'n v. Little–Tex Insul. Co., 39 S.W.3d 591 n. 1 (Tex.2001) ................................................................ 25, 36, 43

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex.App.–Beaumont, April 10, 2014, pet. denied) ..................32

Green v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 213 (Tex. App.-El Paso, 2000) ...........................................................18

Gross v. Carroll, 339 S.W.3d 718 (Tex.App.—Houston [1st Dist.] 2011, no pet.) ...... 18, 20, 25, 29

Gulf Marine Warehouse Co. v. Towers, 858 S.W.2d 556 (Tex. App.-Beaumont 1993, writ denied) ..................................36

In re Hourani, 20 S.W.3d 819 (Tex.App.—Houston [14th Dist.] 2000)......................................21

In re Kim, No. 03-09-00113-CV, 2009 WL 1653856 *2 (Tex.App.-Austin June 2, 2009, orig. proceeding) ............................................................................................ 24, 50 viii In re Potts, 357 S.W.3d 766 (Tex.App.-Houston [14th Dist.] 2011, orig. proceeding) ..........42

In re Potts, 399 S.W.3d 685 (Tex.App.Houston [14th Dist.] 2013, orig. proceeding) ...........42

Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App.1995)...............................................................25

Leonard v. Abbott, 171 S.W.3d 451 (Tex. App.-Austin 2005) ............................................................29

Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528 (Tex., August 31, 2012) .............................................................54

Mann v. Denton County, 14 WL 5089189 *3 (Tex.App.-Fort Worth, October 09, 2014) ...........................39

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) .................................................................................28

Nivens v. City of League City, 245 S.W.3d 470, 475 n. 6 (Tex. App.-Houston [1st Dist.] 2007) ............ 19, 26, 30

Perry v. Cohen, 285 S.W.3d 137 (Tex.App.–Austin 2009, pet. denied) ........................................17

Plotkin v. IP Axess Inc., 407 F.3d 690 (5th Cir. 2005).................................................................................33

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) .................................................................................54

Rivera v. State, 981 S.W.2d 336 (Tex. App.-Houston [14th Dist.] 1998, no pet.) ........................35

Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, (Tex. App. – Houston [14 Dist.], 2009) ....................................27

ix Smith v. State, 959 S.W.2d 1 (Tex. App.-Waco 1998) .................................................................25

Spiegner v. Wallis, 80 S.W.3d 174 (Tex.App.-Waco 2002) ................................................................38

State Bar v. Gomez, 891 S.W.2d 243 (Tex. 1994) .................................................................................28

Texas Dep't of State Health Servs. v. Balquinta, 429 S.W.3d 726 (Tex. App.-Austin 2014, pet. filed) ...........................................33

Wakefield v. British Medical Journal Publishing Group, Ltd., 449 S.W.3d 172, (Tex. App.–Austin, September 19, 2014, no pet.) ....................35

Watkins v. Pearson, 795 S.W.2d 257 (Tex. App.-Houston [14th Dist.] 1990, writ denied) .......... 40, 41

Wild Rose Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211 (Tex.App.-Tyler 2012, no pet.) ..................................................46

Wilson v. State, 977 S.W.2d 379 (Tex.Crim.App.1998).................................................................35

Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App—Houston [14th Dist.] 2014, pet. filed) .....................32

Statutes

TEX. CIV. PRAC. & REM. CODE § 11.051....................................................................2

TEX. CIV. PRAC. & REM. CODE § 11.052 ............................................... 16, 47, 49, 50

TEX. CIV. PRAC. & REM. CODE § 11.054 ......................................................... passim

TEX. CIV. PRAC. & REM. CODE § 11.054 (3) ............................................................19

TEX. CIV. PRAC. & REM. CODE § 11.054(1)(A), (B), and (C)..................................19

x TEX. GOVT. CODE § 74.053(b) ................................................................ 3, 11, 13, 21

TEX. GOVT. CODE § 74.053(d) .......................................................................... 21, 22

TEX. GOVT. CODE § 74.056 ............................................................................... 34, 35

Rules

TEX. R. APP. P. 33.1(a) ................................................................................ 48, 52, 53

TEX. R. APP. P. 33.1(a)(1)(A)...................................................................... 19, 26, 30

TEX. R. APP. P. 38.1 .................................................................................... 36, 43, 54

TEX. R. APP. P. 38.1(f) .............................................................................................18

TEX. R. APP. P. 38.1(f, h) .........................................................................................25

TEX. R. APP. P. 38.1(h) .............................................................................................25

TEX. R. CIV. P. 166a (c) ...........................................................................................51

TEX. R. CIV. P. 18a (f)(2)(A) ............................................................................ passim

TEX. R. CIV. P. 18a and 18b .....................................................................................37

TEX. R. CIV. P. 18a(a)(3) ..........................................................................................41

TEX. R. CIV. P. 18a(f) ...............................................................................................17

Tex. R. Civ. P. 18b(a) ..............................................................................................36

TEX. R. CIV. P. 21.....................................................................................................52

TEX. R. CIV. P. 63 .....................................................................................................31

TEX. R. CIV. P. 91a ...................................................................................................32

xi TEX. R. CIV. P. 91a.1 ................................................................................................32

TEX. R. EVID. 103(a)(1)............................................................................................49

TRAVIS COUNTY DISTRICT COURT LOCAL RULE 3.9 ................................................35

xii Case No. 03-14-00665-CV ______________________________

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS ______________________________

On Appeal from the 200th District Court, Travis County Case No. D-1-GN-14-001215 ______________________________

BRIEF OF APPELLEE SEANA WILLING ______________________________

TO THE HONORABLE COURT OF APPEALS:

COME NOW SEANA WILLING (“Ms. Willing”), Appellee herein, and

files this Brief and in support thereof would respectfully show this Court the

following:

1 STATEMENT OF THE CASE

A. Nature of the case

The underlying case was a suit for damages and declaratory and injunctive

relief against various defendants. [CR 51]. The Order on appeal is the Order

Declaring Plaintiff a Vexatious Litigant. [CR 547].

B. Course of the Proceedings

On April 28, 2014, Eric Drake (“Appellant”) filed an Original Complaint.

[CR 5]. Appellant brought claims against Ms. Willing in her official capacity only,

alleging claims pursuant to 42 U.S.C. § 1983. [CR 38, ¶ 92(b) and 39, ¶ 97].

Ms. Willing filed her answer and a plea to the jurisdiction on July 28, 2014,

asserting Appellant’s lack of standing and her own sovereign immunity as

jurisdictional barriers to Appellant’s litigation. [CR 224]. Ms. Willing filed her

Motion to Declare Eric Drake a Vexatious Litigant on August 5, 2014, within 90

days of filing an answer, as required by CIV. PRAC. & REM. CODE § 11.051. [CR

1 For clarity and brevity, references to the Clerk’s Record will appear as “CR [page no.]”, in this case, signifying the first volume of the Clerk’s Record, at page 5. As multiple Reporters Records are present in this case, they will be designated by volume number before “RR” with page number notations, with a colon separating the page number from line numbers, and will look as follows: “[volume no.] RR [page no.]” For example, 3 RR 14:5-11 means the third volume of the Reporter’s Record, page 14, lines 5 to 11. There are four volumes of the Reporter’s Record, with a fifth volume (repeating the Volume 1), which is a hearing before Judge Gus Strauss on August 19, 2014. References to that transcript will be made with the volume identifier “S” for Strauss, for example: “S RR [page no.]”

2 263]. Ms. Willing provided Appellant with a Notice of Hearing on August 5 and

7, 2014, with the hearing date of August 19, 2014. [CR 508 and 517].

Appellant filed both a Nonsuit and a Motion to Recuse on August 7, 2014.

[CR 521 and 527]. The Order of Nonsuit was signed August 14, 2014. [CR 544].

Appellant filed a Response in opposition to the Motion to Declare Eric

Drake a Vexatious Litigant on August 19, 2014 at 8:07 a.m. [CR 556].

On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant

was assigned to Judge Gus Strauss. [S RR 4:1-62]. When Appellant objected to

the assignment of the case to the visiting Judge Strauss [S RR 5:2-11], Judge

Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S

RR 5:17-6:1].

Following this objection, still on August 19, 2014, the Motion to Declare

Eric Drake a Vexatious Litigant was assigned to Judge Charles Ramsay for a

hearing. [RR 1]. Plaintiff again objected, despite the statutory limit on his ability

to object3. [3 RR 10:18-11:4]. This was brought to Judge Ramsay’s attention.

[3RR 13:9-12]. Judge Ramsay proceeded with the hearing and granted the Motion.

[3 RR 59:10-11 and CR 547].

2 Again, as the transcript for the hearing before Judge Strauss is also identified as Volume 1, the volume identifier for references to this transcript are preceded by the letter “S” rather than a volume number. 3 See TEX. GOVT. CODE § 74.053(b).

3 C. Trial Court’s Disposition of the Case

On August 19, 2014, the Trial Court granted Ms. Willing’s Motion to

Declare Eric Drake a Vexatious Litigant. [3 RR 59:10-11 and CR 547].

Appellant filed post-hearing written responses to the Motion to Declare Eric

Drake a Vexatious Litigant on August 28 and September 8, 2014. [CR 564 and

572].

On September 15, 2014, Appellant sought a writ of mandamus with this

Court. In re Eric Drake, Cause No. 03-14-00583-CV, in the Third Court of

Appeals, Texas. The writ was denied.

On October 17, 2014, Appellant filed a Notice of Appeal. [CR 642].

4 STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument only to the extent that this Court believes

that such oral argument would assist the Court in determining the contested matters

of law as presented in the record.

5 ISSUES PRESENTED (RESTATED)

ISSUE ONE Judge Charles Ramsay did not abuse his discretion when he did not recuse himself from hearing the August 19, 2014 because Plaintiff objected based on his status as an assigned judge.

ISSUE TWO The Trial Court did not abuse its discretion by finding that Appellant had no reasonable probability of prevailing against Ms. Willing.

ISSUE THREE Whether or not Warren Vavra had the proper legal authority to appoint Judge Charles Ramsay to rule on Seana Willing August 19, 2014 hearing.

ISSUE FOUR Issues Regarding Judges David Phillips and Stephen Yelenosky are Moot.

ISSUE FIVE The Trial Court Did not Abuse its Discretion in Hearing this Matter Despite the Motion to Recuse.

ISSUE SIX Judge Charles Ramsay did not abuse his discretion in hearing the August 19, 2014 based on his status as an assigned judge.

ISSUE SEVEN The Trial Court did not abuse its discretion in signing the order declaring the Appellant as a vexatious litigant.

ISSUE EIGHT Appellant’s Right to Due Process Was Not Violated.

6 ISSUE NINE The Trial Court did not abuse its discretion in signing the August 19 Order rather than rule on other matters.

ISSUE TEN The Trial Court did not abuse its discretion in signing the August 19, 2014 order declaring Appellant vexatious because Ms. Willing's motion to declare Drake as a vexatious litigant was not procedurally defective.

ISSUE ELEVEN The Trial Court did not abuse its discretion in determining that sovereign immunity demonstrated that there was no reasonable probability that Appellant would prevail in the litigation against Ms. Willing.

7 STATEMENT OF FACTS

1. OBJECTION: Ms. Willing objects to consideration of the Statement of

Facts in Appellant’s Brief [Appellant’s Brief, pages 6-12] because it does not

comply with the requirements of Tex. R. App. P. 38.1(g) in that no portion of it

cites any reference to the record, and because it contains argument.

2. FACTS: Ms. Willing is the Executive Director of the Texas Commission

on Judicial Conduct, a state official. [3 RR 10:10-12]. Eric Drake (“Appellant”)

made a complaint to Ms. Willing4 regarding a judge. [CR 6, ¶ 2]. Appellant was

dissatisfied with Ms. Willing’s investigation 5. [CR 6, ¶ 2].

On April 28, 2014, Appellant filed an Original Complaint. [CR 5]. Appellant

brought claims against Ms. Willing in her official capacity only, alleging claims

pursuant to 42 U.S.C. § 1983. [CR 38, ¶ 92(b) and 39, ¶ 97]. Appellant seems to

suggest he has some constitutional right to the outcome of an administrative

investigation of a judge. [CR 39, ¶ 97].

Ms. Willing filed her Motion to Declare Eric Drake a Vexatious Litigant on

August 5, 2014. [CR 263].

4 Although the Complaint refers to Seana Williams, Ms. Willing assumes this refers to her. 5 It is unclear which actions Appellant alleges were performed by Seana Willing and which actions are alleged of Seana Williams, who is a different person identified in Appellant’s Complaint. [CR 6, ¶ 2, in which Appellant seeks relief against “Kastl Law firm, Vikki Ogden, Seana Williams, CRBC (for its failure to investigate a serious crime because of the Plaintiffs race) and against Seana Willing…”].

8 Prior to filing the instant lawsuit, Appellant had been found to be a vexatious

litigant in federal court. [CR 287: “the Court agrees with the Magistrate Judge that

Plaintiff is a vexatious litigant.”]. That court entered a pre-filing order against

Appellant. [CR 288].

Prior to filing the instant lawsuit, Appellant had also been found to be a

vexatious litigant in state court. Appellant was declared a vexatious litigant in the

44th Judicial District Court of Dallas County, Texas in 2004. [CR 499]. In a

separate litigation in the 44th Judicial District Court of Dallas County, Texas,

Appellant was again declared a vexatious litigant between 2009 and 2010. [CR

464-465]. Appellant appealed this determination, but was unsuccessful on appeal.

[CR 467].

Nothing in the record indicates that any of these orders has been overturned

or vacated6.

In the seven years before the filing of that motion, Appellant commenced,

prosecuted, or maintained as a pro se litigant at least five litigations other than in

small claims court that had been finally determined adversely to him. [CR 267-

277 and 283-500]. During that time, he had commenced, prosecuted, or

6 Other orders have also been entered against Appellant declaring him a vexatious litigant, and some of them have been overturned on appeal. However, nothing in the record suggests that the Orders discussed supra have been vacated.

9 maintained as a pro se litigant at twenty five litigations that were demonstrated to

the Trial Court. [3 RR 25:18-26:6; 4 RR 14-509].

On August 8, 2014, after Ms. Willing filed her Motion to Declare Eric Drake

a Vexatious Litigant, but before the hearing on the matter, Appellant sent letters to

state officials and apparently the media. [4 RR 11-12]. In those letters, Appellant

threatens to file lawsuits against numerous state officials and their spouses to avoid

any immunity that a state official has. [4 RR 11-12]. These state officials include

three District Court judges in Travis County, then-Attorney General Greg Abbott,

and counsel for Ms. Willing. [4 RR 11-12]. Appellant threatens to call news

conferences and place advertisements in newspapers all across the country. [4 RR

11-12]. Appellant made these threats after a District Court judge correctly

determined that a discovery matter could not be heard, as, by statute, litigation was

stayed for everything other than consideration of the vexatious litigant matter. [2

RR 9:10-19].

On August 7, 2014, Appellant filed a Motion for Nonsuit [CR 527] and also

a Motion to Recuse, in which he complained solely about the ruling of the judge.

[CR 521, ¶ 4]. In his Motion to Recuse, Appellant names numerous specific

judges. [CR 522, ¶ 4]. None of these judges had any involvement with the

vexatious litigant matter.

10 On August 19, 2014 at 8:07 a.m., Appellant filed a Response in opposition

to the Motion to Declare Eric Drake a Vexatious Litigant. [CR 556].

On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant

was assigned to Judge Gus Strauss. [S RR 4:1-6]. At that time, Appellant objected

to the assignment of the case to the visiting Judge Strauss. [S RR 5:2-11]. Judge

Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S

Following this objection, still on August 19, 2014, the Motion to Declare

Eric Drake a Vexatious Litigant was assigned to Judge Charles Ramsay for a

hearing. [RR 1]. Plaintiff again objected, despite the statutory limit on his ability

to object7. [3 RR 10:18-11:4]. This was brought to Judge Ramsay’s attention.

[3RR 13:9-12]. Judge Ramsay proceeded with the hearing and granted the Motion.

Appellant filed post-hearing written responses to the Motion to Declare Eric

Drake a Vexatious Litigant on August 28 and September 8, 2014. [CR 564 and

7 See TEX. GOVT. CODE § 74.053(b).

11 SUMMARY OF THE ARGUMENT

The decision of the Trial Court must be affirmed because Appellant has

failed to attack all independent grounds that support an adverse ruling. Appellant

has not disputed that he lacked standing to bring claims against Ms. Willing, which

independently satisfied the requirement that Ms. Willing prove that Appellant has

no reasonable probability of success against her. Further, Appellant has not

disputed either of the two independent findings regarding Appellant’s vexatious

history of litigation, either of which satisfies the remaining requirement to declare

Appellant a vexatious litigant. Because these independent reasons satisfy the

requirement of TEX. CIV. PRAC. & REM. CODE § 11.054, the determination of the

Trial Court must be affirmed.

In his Brief, Appellant presents 11 issues, but the majority of them present

issues not presented to the Trial Court and not preserved for appeal, or reiterations

of arguments in his other issues.

Appellant’s First Issue argues that Judge Ramsay should not have heard the

case because Appellant objected to him as a visiting judge. Appellant had

previously objected to a visiting judge for the hearing on August 19, 2014, and by

statute, he may only do so once. Judge Ramsay was correct that he was able to

hear this matter. Appellant’s argument is based on a statute that is no longer valid

12 and a case that interpreted the previous statute. The current statute is clear that

only one such objection is allowed per side. TEX. GOVT. CODE § 74.053(b).

Appellant’s Second Issue argues that Ms. Willing did not demonstrate that

Appellant had no reasonable probability of prevailing against Ms. Willing. The

reasons that Appellant had no probability of prevailing against Ms. Willing were

jurisdictional, and Appellant never presented any argument or authority on the

subject in the Trial Court, and may not raise his arguments for the first time on

appeal. Moreover, Appellant’s lack of standing and Ms. Willing’s sovereign

immunity preclude Appellant’s claims, so there was no chance he could prevail

against Ms. Willing.

Appellant’s Third Issue argues that the Court Administrator did not have the

legal authority to assign Judge Ramsay to hear this matter. Appellant never

presented any argument or authority on the subject in the Trial Court, and may not

raise his arguments for the first time on appeal. Further, even in his Brief it is

inadequately briefed and should not be considered. Finally, as a matter of law,

there is a presumption that the judge was duly appointed and in regular discharge

of his duties. Appellant cites to nothing in the record to support his assertions, let

alone overcome that presumption.

Appellant’s Fourth Issue argues that Appellant asks this Court to vacate

orders of recusal and referral by two judges who did not hear any matter in this

13 litigation. This issue is wholly moot, and has no effect on the order that Appellant

is a vexatious litigant.

Appellant’s Fifth Issue argues that Judge Charles Ramsay could not

entertain a hearing on Ms. Willing’s Motion to Declare Eric Drake a Vexatious

Litigant, pursuant to a motion to recuse that was defective on its face and did not

seek to recuse Judge Ramsay, and that a procedural defect related to an unspecified

Rule bars consideration of the Motion to Declare Eric Drake a Vexatious Litigant.

Even if Judge Ramsay he had been named in the motion to recuse, Judge Ramsay

determined that good cause existed to hear the matter, authorized by law pursuant

to TEX. R. CIV. P. 18a (f)(2)(A). With respect to the unspecified procedural defect,

a failure to confer before the filing of a motion, this matter was inadequately

briefed, and Appellant has never even suggested any harm or prejudice to him,

particularly in light of the fact that counsel for Ms. Willing conferred with

Appellant about the hearing on the matter some 12 days before Appellant appeared

at the hearing.

Appellant’s Sixth Issue is a repackaging of his First Issue. As such, a

summary of the argument is listed supra.

Appellant’s Seventh Issue argues that counsel for Ms. Willing committed

fraud on the Trial Court to secure the Order Declaring Plaintiff a Vexatious

Litigant. The alleged fraud was counsel for Ms. Willing informing the Trial Court

14 that while he did not confer with Appellant prior to filing the motion, he did confer

with Appellant in person on August 7, 2014 regarding the hearing and confirming

that Appellant was opposed to the motion. There is nothing in the record that

suggests that the conferring played any part in Judge Ramsay entering the order

that is appealed.

Appellant’s Eighth Issue argues that Appellant’s right to due process was

violated because he was prevented from calling witnesses at the hearing.

Appellant never attempted to call witnesses, even though he had previously asked

the court for a hearing so that he could call live witnesses. Appellant never

attempted to call witnesses related to the vexatious litigant motion, never asked for

a continuance, and never explained how witness testimony would operate to cure

the jurisdictional defect of his lack of standing or change his pleadings in such a

way as to allow him to evade sovereign immunity. Indeed, no witness could

provide testimony to fix defects in Appellant’s pleading. Accordingly, there was

no violation of Appellant’s due process rights.

Appellant’s Ninth Issue argues that the Trial Court abused its discretion by

ruling on the Motion to Declare Eric Drake a Vexatious Litigant before addressing

motions to transfer venue, special exceptions, or other matters. As a matter of law,

the Trial Court was required to consider the Motion to Declare Eric Drake a

15 Vexatious Litigant before any other matters. TEX. CIV. PRAC. & REM. CODE

§11.052.

Appellant’s Tenth Issue argues that procedural defects preclude the order

declaring him a vexatious litigant. He reiterates his argument about the Rule

requiring parties to confer and argument about his motion to recuse judges that

does not include Judge Ramsay. Then, for the first time on appeal, Appellant

argues that he had inadequate time to respond to the motion, despite having 12

days of notice and filing multiple post-hearing responses and not asking for a

continuance. Although he suggests he was surprised that the hearing would take

place on August 19, the record conclusively proves that he filed a written response

to the motion that was the subject of the hearing at 8:07 a.m. on the date of the

hearing.

Appellant’s Eleventh Issue argues that Ms. Willing was not protected by

sovereign immunity. Appellant suggests that he brought claims against Ms.

Willing in her individual capacity, although there is nothing in his pleadings to

support this. Further, despite participating in the hearing and filing numerous

responses to the Motion to Declare Eric Drake a Vexatious Litigant, Appellant has

never made the suggestion that he intended claims against Ms. Willing other than

her official capacity.

16 ARGUMENT AND AUTHORITIES

A. STANDARD OF REVIEW

The standard for review of Appellant’s issues is an abuse of discretion

standard. See Amir–Sharif v. Quick Trip Corp., 416 S.W.3d 914, 918 (Tex.App.–

Dallas 2013, no pet.) (review of a trial court's declaration that a litigant is vexatious

uses an abuse of discretion standard); see also See TEX. R. CIV. P. 18a(f); Dishner

v. Huitt–Zollars, Inc., 162 S.W.3d 370, 374 (Tex.App. - Dallas, 2005)(review of an

order denying a motion to recuse for an abuse of discretion). A trial court abuses

its discretion when it acts without reference to any guiding rules and principles.

Perry v. Cohen, 285 S.W.3d 137, 142 (Tex.App.–Austin 2009, pet. denied).

A trial court's findings under chapter 11 of the Texas Civil Practice and

Remedies Code may be reviewed for legal and factual sufficiency because section

11.054 requires the trial court to make evidentiary findings. Id. (internal citations

omitted). When examining a legal sufficiency challenge, an appellate court

reviews the evidence in the light most favorable to the challenged finding and

indulges every reasonable inference that would support it. City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex.2005). The ultimate test for legal sufficiency is whether

the evidence would enable a reasonable and fair-minded fact finder to reach the

verdict under review. Id., at 827. The fact finder is the sole judge of witness

credibility and the weight to give to the testimony. See Id., at 819.

17 B. DETERMINATION MUST BE AFFIRMED DUE TO WAIVER

Generally, when an appellant fails to attack all independent grounds that

support an adverse ruling, the ruling must be affirmed. See Gross v. Carroll, 339

S.W.3d 718, 723 (Tex.App.—Houston [1st Dist.] 2011, no pet.) (citing Britton v.

Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.]

2002, no pet.)). An argument not raised in Appellant's brief and has been waived.

See TEX. R. APP. P. 38.1(f); see also Green v. Texas Dep't of Protective &

Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso, 2000).

A court may find a plaintiff a vexatious litigant if the defendant shows: (1)

there is not a reasonable probability the plaintiff will prevail in the litigation; and

(2) there is other evidence regarding previous litigations by the defendant. TEX.

CIV. PRAC. & REM. CODE § 11.054; see also Amir-Sharif v. Quick Trip Corp., 416

S.W.3d 914, 919 (Tex. App.–Dallas, November 25, 2013). Other evidence

involving previous litigation may include evidence that 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 as a pro se litigant at

least five litigations other than in 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

18 of procedure. TEX. CIV. PRAC. & REM. CODE § 11.054(1)(A), (B), and (C); see

also Amir-Sharif, 416 S.W.3d at 919. In the alternative, a court may find a

plaintiff to be a vexatious litigant if 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. TEX. CIV. PRAC.

& REM. CODE § 11.054 (3).

In the instant case, Appellant does not attack all independent grounds that

support the Trial Court’s determination that he is a vexatious litigant. Specifically,

Appellant does not contest the Trial Court’s determination that there was no

reasonable probability that Appellant would prevail in his litigation against Ms.

Willing on the basis that he lacks standing to bring claims against her. [CR 554].

As discussed infra, Appellant has also waived any review of this matter by failing

to raise it before the Trial Court., and may not dispute it for the first time on

appeal. TEX. R. APP. P. 33.1(a)(1)(A) (to preserve a complaint for appellate

review, the record must show that appellant made the complaint to the trial court

and stated the grounds for ruling with sufficient specificity that the trial court was

made aware of the complaint); see also Nivens v. City of League City, 245 S.W.3d

470, 475 n. 6 (Tex. App.-Houston [1st Dist.] 2007) (finding that plaintiffs failed to

preserve their argument against granting the City's plea to the jurisdiction when

plaintiffs did not raise the issue before the trial court).

19 Additionally, Appellant does not attack any of the evidence regarding

previous litigations by the Appellant. The Trial Court made the following specific

findings:

The Court also FINDS that Eric Drake has 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 finally determined adversely to Eric Drake. The Court also FINDS that Eric Drake 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.

[CR 554 (emphasis in the original)].

Because these undisputed matters are sufficient to meet Ms. Willing’s

burden under TEX. CIV. PRAC. & REM. CODE § 11.054, the ruling of the Trial Court

must be affirmed. See Gross, 339 S.W.3d at 723; Britton, 95 S.W.3d at 681.

ISSUE ONE

Judge Charles Ramsay did not abuse his discretion when he did not recuse himself from hearing the August 19, 2014 because Plaintiff objected based on his status as an assigned judge.

Appellant’s first issue centers on whether Judge Charles Ramsay was

obligated to recuse himself because Plaintiff verbally objected to Judge Ramsay

hearing the case. [3 RR 10:18-11:4]. In support of his position, Appellant cites a

case, statute that is outdated and no longer says what he claims.

20 TEX. GOVT. CODE § 74.053(d) does not authorize an unlimited number of

objections to a visiting judge. TEX. GOVT. CODE § 74.053(d)8. Instead, the number

of times a part may object to the assignment of a judge is explicitly limited to one.

TEX. GOVT. CODE § 74.053(b). “The limits section 74.053 imposes were designed

to give precedence to court administration and to restrict attempts at forum

shopping that inevitably result when litigants are given even a small measure of

control over determining who will hear their case.” In re Hourani, 20 S.W.3d 819,

825 (Tex.App.—Houston [14th Dist.] 2000).

On August 19, 2014, the Motion to Declare Eric Drake a Vexatious Litigant

was assigned to Judge Gus Strauss. [S RR 4:1-6]. At that time, Appellant objected

to the assignment of the case to the visiting Judge Strauss. [S RR 5:2-11]. Judge

Strauss complied with TEX. GOVT. CODE § 74.053(b) and did not hear the case. [S

After Plaintiff objected once to a visiting judge, the case was assigned to

visiting Judge Charles Ramsay to hear the matter. [RR 1]. Plaintiff again

objected, despite the statutory limit on his ability to object. [3 RR 10:18-11:4].

This was brought to Judge Ramsay’s attention. [3RR 13:9-12].

8 That section of the statute reads as follows: “(d) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.” TEX. GOVT. CODE § 74.053(d).

21 Plaintiff has identified nothing in the record to suggest that Judge Ramsay

was “defeated in the last primary or general election for which the judge or justice

was a candidate for the judicial office held by the judge or justice” as required by

TEX. GOVT. CODE § 74.053(d). Moreover, even if that statute had not changed 13

years ago, Appellant identifies no evidence in the record to support his suggestion

that Judge Ramsay was a “former judge,” rather than a “retired judge” or any other

status of judge.

Accordingly, Judge Ramsay was under no obligation to refuse to hear the

matter before him on August 19, 2014, and his order is valid.

ISSUE TWO

The Trial Court did not abuse its discretion by finding that Appellant had no reasonable probability of prevailing against Ms. Willing.

The statute titled “Criteria for Finding Plaintiff a Vexatious Litigant” begins

as follows: “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…” TEX. CIV. PRAC. & REM. CODE § 11.054.

In his second issue, Appellant suggests that Appellee did not demonstrate

that there is not a reasonable probability that Appellant would prevail in the

22 litigation against Ms. Willing 9. Appellant bases his arguments on a lack of

evidence admitted in the August 19, 2014 hearing.

This argument ignores the actual reason that the Trial Court identified in

making its determination. [CR 549-550 and 554]. The Trial Court found that there

was no reasonable probability of success against Ms. Willing based on Appellant’s

own jurisdictional defects in Appellant’s pleadings. [CR 264-265; 3 RR 26:21-

27:15]. Ms. Willing originally brought these defects to the Court’s attention and to

Appellant’s attention in her Plea to the Jurisdiction. [CR 224-233].

In entering its order, the trial court made the following Finding:

… Eric Drake does not allege or produce any evidence to establish a waiver of the sovereign immunity of Defendant Seana Willing with respect to his claims, nor does Eric Drake have standing to bring any cause of action against Defendant Seana Willing.

Accordingly, after reviewing the record and all the pleadings in the case, this Court FINDS that there IS NOT a reasonable probability that Eric Drake will prevail.

Accordingly, Appellant must demonstrate that the trial court abused its

discretion in finding that 1) Appellant did not have standing to bring claims against

9 Although Appellant argues that Ms. Willing must demonstrate that Appellant had no reasonable probability that he would prevail against any defendant, Appellant cites no legal authority to support such an argument, and the statute does not say what Appellant argues. TEX. CIV. PRAC. & REM. CODE § 11.054.

23 Ms. Willing, and 2) that Ms. Willing’s sovereign immunity did not bar Appellant’s

claims.

1. Appellant’s Lack of Standing

Appellant was put on notice that his claims against Ms. Willing were barred

by sovereign immunity on or about July 29, 2014, when Ms. Willing filed her Plea

to the Jurisdiction. [CR 224, 227-229]. As discussed infra, Appellant has waived

any appellate issue regarding lack of standing because he did not raise it in his

Appellant’s Brief, nor did he raise any argument before the trial court. He may not

do so now, as a matter of law. Even if he had preserved such an issue, his

pleadings make it clear that Appellant lacks standing to bring claims against Ms.

Willing.

As this Court has previously determined, if a plaintiff lacks standing to

assert his complaints, that plaintiff has no reasonable probability of victory. In re

Kim, No. 03–09–00113–CV, 2009 WL 165385610 *2 (Tex. App.-Austin June 2,

2009, orig. proceeding) (citations omitted).

10 This case is publicly available online on March 24, 2015, at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=6e546e3a-de7c-4c45-a09c- 8d4f887f3102&coa=coa03&DT=Opinion&MediaID=a621d6b8-16bf-472c-8f91-44060e575a35. That plaintiff’s lack of standing demonstrating no reasonable probability of victory is on page 4- 5 of that document.

24 The determination of the trial court that there is not a reasonable probability

that Appellant would prevail in the litigation against Ms. Willing must be affirmed,

as a matter of law. See Gross v. Carroll, 339 S.W.3d at 723.

a. Appellant has Waived Argument Related to Lack of Standing

“The [appellant's] brief must state concisely all issues or points presented for

review.” TEX. R. APP. P. 38.1(f, h). Failure to state an issue or cite authority in

support of an issue waives the consideration of that issue on appeal. See General

Serv. Comm'n v. Little–Tex Insul. Co., 39 S.W.3d 591, 598 n. 1 (Tex.2001); see

also Cleveland Constr., Inc. v. Levco Constr., Inc., 359 S.W.3d 843, 852 n. 1 (Tex.

App.-Houston [1st Dist.] 2012, pet. dism'd) (failure to cite authority or advance

substantive analysis waives appellate issue); Brown v. Hearthwood II Owners

Ass'n, Inc., 201 S.W.3d 153, 161 (Tex. App.-Houston [14th Dist.] 2006, pet.

denied) (same); Consol. Petroleum Partners, I, LLC v. Tindle, 168 S.W.3d 894,

900 (Tex. App.-Tyler 2005) (citing TEX. R. APP. P. 38.1(h)); see also Smith v.

State, 959 S.W.2d 1, 17 (Tex. App.-Waco 1998) (citing Lawton v. State, 913

S.W.2d 542, 558 (Tex. Crim. App.1995).

Appellant’s Brief is wholly silent on the issue of Appellant’s standing to

bring claims against Ms. Willing. He has presented no argument or authority to

suggest that he established such standing.

25 Moreover, Appellant never disputed the fact that he lacked standing, despite

appearing at the hearing on August 19, 2014, and filing three separate written

responses to the Motion to Declare Eric Drake a Vexatious Litigant. [3 RR 1; CR

556, 564, and 572]. He may not wholly ignore the basis for the Trail Court’s

decision but dispute it for the first time on appeal. TEX. R. APP. P. 33.1(a)(1)(A)

(to preserve a complaint for appellate review, the record must show that appellant

made the complaint to the trial court and stated the grounds for ruling with

sufficient specificity that the trial court was made aware of the complaint); see also

Nivens, 245 S.W.3d at 475 n. 6 (plaintiffs failed to preserve their argument against

granting the City's plea to the jurisdiction when plaintiffs did not raise the issue

before the trial court).

Accordingly, he has waived any consideration of his standing, and may not

now dispute that there was no reasonable probability Appellant would succeed in

his litigation against Ms. Willing based on lack of standing.

Even if he had raised arguments related to standing, those arguments must

fail, as a matter of law, as discussed infra.

b. Plaintiff Lacks Standing to Bring Claims against Ms. Willing

Regardless of the capacity in which Ms. Willing was sued, Appellant did not

have standing to bring claims against her as a matter of law. Accordingly, the trial

court did not abuse its discretion when it determined that Appellant did not have a

26 reasonable likelihood that he would prevail against Ms. Willing.

Under Texas law, a party has standing to bring suit if (1) it has suffered a

distinct injury, and (2) there exists a real controversy that will be determined by the

judicial determination sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001).

This second component of standing refers to presentation of a justiciable issue.

Rodarte v. Investeco Group, L.L.C., 299 S.W.3d 400, (Tex. App. – Houston [14

Dist.], 2009).

(1). No Injury Caused By Ms. Willing

Appellant did not suffer a distinct injury at the hands of Ms. Willing. In his

Complaint, he does not identify any actual injury in connection with Ms. Willing.

Appellant is critical of her investigation after he made a complaint against a judge

[CR 6, ¶ 2, and 38, ¶ 92(b)] and makes the conclusory assertion that by doing so,

Ms. Willing “deprived the Plaintiff of his rights privileges under the constitution

and due process,” [CR 38, ¶ 92(b)]. Appellant identifies the following rights he

opines were violated: “the Plaintiff (sic) First Amendment Rights have been

violated, his Equal Protection Rights have been violated, his Due Process clause.”

[CR 39, ¶ 97].

Conclusory assertions notwithstanding, Appellant has never identified any

actual injury to a constitutionally protected right in connection with Ms. Willing.

Despite his opinion, Appellant does not identify any legally cognizable injury to

27 his “First Amendment Rights,” or articulate any way in which Ms. Willing violated

his “Equal Protection Rights,” particularly in light of the fact that Appellant

presented no factual allegation that his race had anything to do with Ms. Willing’s

investigation. Plaintiff has not alleged that his complaints against members of the

judiciary were treated any differently than similar claims made by other citizens

against other judges or justices. See Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 939 (Tex. 1998). Appellant’s conclusory assertions alone are insufficient.

(2). No Justiciable Issue Regarding Ms. Willing

To present a justiciable issue, a lawsuit must involve a real controversy that

will be resolved by the judicial relief sought. See e.g., State Bar v. Gomez, 891

S.W.2d 243, 245-46 (Tex. 1994).

While Appellant is correct that under some circumstances, an official in her

official capacity may be subject to declaratory and injunctive relief, that is not the

case in this particular litigation. In this case, Appellant wanted the trial court to

judicially review the outcome of an investigation by the State Commission on

Judicial Conduct [CR 40, second (c)], but identified no legal authority to suggest

judicial review is appropriate, or even within the jurisdiction of the trial court:

“Eric Drake does not identify any legal authority that allows for a judicial review of such an investigation, nor does he explain how this Court should have jurisdiction to evaluate the judicial conduct of another district judge, when such jurisdiction is provided under Article V, sec. 1-a (l0) of the Texas Constitution to reside with the

28 Commission on Judicial Conduct.”

[CR 550]. Thus, the relief sought is not available, and Appellant does not have

standing to bring claims against Ms. Willing as a matter of law.

2. Ms. Willing has Sovereign Immunity which Bars Appellant’s Claims

As discussed infra, Appellant has waived any appellate issue regarding Ms.

Willing’s sovereign immunity because he did not raise any waiver or abrogation of

her immunity before the Trail Court. He may not do so now, as a matter of law.

Even if he had preserved such an issue, his pleadings make it clear that Appellant’s

claims against Ms. Willing are, as a matter of law, barred by sovereign immunity.

This Court has previously held that an official’s entitlement to sovereign

immunity meets the “burden of showing that there was no reasonable probability

that [a plaintiff] would prevail.” Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex.

App.-Austin 2005).

Accordingly, the determination of the trial court that there is not a

reasonable probability that Appellant would prevail in the litigation against Ms.

Willing must be affirmed, as a matter of law. See Gross, 339 S.W.3d at 723.

a. Appellant Waived Argument Related to Sovereign Immunity

Appellant was put on notice that his claims against Ms. Willing were barred

by sovereign immunity on or about July 29, 2014, when Ms. Willing filed her Plea

to the Jurisdiction. [CR 224, 229-231]. Appellant never disputed the fact that his

29 claims were barred by sovereign immunity, despite appearing at the hearing on

August 19, 2014, and filing three separate written responses to the Motion to

Declare Eric Drake a Vexatious Litigant. [3 RR 1; CR 556, 564, and 572]. He

may not dispute it for the first time on appeal. TEX. R. APP. P. 33.1(a)(1)(A);

Nivens, 245 S.W.3d at 475 n. 6.

b. Sovereign Immunity Bars Claims Against Ms. Willing

At no point does Appellant suggest to the Trail Court that sovereign

immunity does not bar his claims against Ms. Willing. Now, for the first time on

appeal, he makes this argument based on two newly raised positions: 1) that he

also brought claims against Ms. Willing in her individual capacity, and 2) that his

injunctive and declaratory relief are not barred by sovereign immunity. Neither is

accurate, and because neither was even raised at the Trial Court, Appellant may not

now argue that the Trial Court abused its discretion by disregarding such

arguments.

(1). No Individual Capacity Claims Against Ms. Willing

In his Complaint, it is clear that Appellant brought his claims against Ms.

Willing in her official capacity only. [CR 37, ¶ 92: “Seana Willing in her official

capacity”). Appellant never made any reference in his Complaint to any capacity

of Ms. Willing other than her official capacity. [CR 37, ¶ 92]. Appellant does not

cite to anything in the record to support his suggestion that Ms. Willing was sued

30 in her individual capacity. Conversely, Appellant was on notice that his Complaint

only sought claims against Ms. Willing in her official capacity in Ms. Willing’s

Plea to the Jurisdiction [CR 224 and Fn 1], and again in her Motion to Declare Eric

Drake a Vexatious Litigant [CR 263], and again in the hearing on this matter [3 RR

26:21-27:15].

Appellant never made any suggestion in the hearing before the trial court, or

in his response to the Motion to Declare Eric Drake a Vexatious Litigant that he

intended to bring suit against Ms. Willing in her individual capacity. [CR 556,

564, and 572]. He may not do so now, without any support from the Complaint he

actually filed, and his Amended Responses should be disregarded as untimely and

filed in violation of TEX. R. CIV. P. 63, as Appellant does not demonstrate that he

received, or even sought, permission to file these documents, which were not filed

within seven days of the hearing. [CR 547, 564 11, and 572].

Even if this Court interprets the Complaint and interjects an individual

capacity claim where none was stated, it would not show an abuse of discretion by

the Trial Court, nor would it establish a reasonable probability Appellant would

succeed in his litigation against Ms. Willing. In the instant case, Appellant alleged

11 It is noteworthy that the only time Appellant suggested any individual capacity claim against Ms. Willing, he utterly failed to identify any portion of his Complaint that made such a claim [CR 565, ¶ 4], and that he made this suggestion for the first time 21 days after he filed his Nonsuit of all claims [CR 527] and 9 days after the Trial Court hearing on this matter. [Compare CR 564 with 547].

31 no facts in his Complaint that would entitle him to the outcome of his choice in any

investigation conducted by the Commission on Judicial Conduct, or that would

suggest that his dissatisfaction equates to the loss of some property interest in the

outcome of an investigation.

If Appellant had made any timely suggestion that he brought claims against

Ms. Willing In her individual capacity, the lack of pleading of any prima facie

claim against Ms. Willing would simply result in her moving for dismissal under

TEX. R. CIV. P. 91a, as Appellant’s claims against Ms. Willing would have no basis

in law. “A cause of action has no basis in law if the allegations, taken as true,

together with inferences reasonably drawn from them, do not entitle the claimant to

the relief sought.” TEX. R. CIV. P. 91a.1. Courts look to case law interpreting

federal rule of civil procedure 12(b)(6) in making their determination on a motion

under Rule 91a. See, e.g., Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App—

Houston [14th Dist.] 2014, pet. filed), GoDaddy.com, LLC v. Toups, 429 S.W.3d

752, 754 (Tex.App.–Beaumont, April 10, 2014, pet. denied) (“[w]hile not

identical, Rule 91a is analogous to Rule 12(b)(6)…”). To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations,

accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

32 content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. “We do not accept as true conclusory

allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP

Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also Iqbal, 556 U.S. at 679

(“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.”).

(2). No Waiver Applies to Claims Against Ms. Willing

Sovereign immunity generally extends to Texas state officials who are sued

in their official capacities, because that is merely “another way of pleading an

action against the entity of which [the official] is an agent.” Texas Dep't of State

Health Servs. v. Balquinta, 429 S.W.3d 726, 750 (Tex. App.-Austin 2014, pet.

filed) Consequently, to invoke the district court's subject-matter jurisdiction to

adjudicate their claims, Plaintiff has the burden of pleading or presenting facts that

would demonstrate his claims either come within a legislative waiver of immunity

or avoid implicating immunity in the first instance. Id.

Ms. Willing demonstrated to the Court that Appellant’s claims were barred

by sovereign immunity [CR 229-231, 264-265 and 3 RR 26:21-27:15]. Appellant

never provided the Trial Court with any argument or case law to suggest a waiver

or abrogation of Ms. Willing’s immunity. To the extent that Appellant suggests for

the first time on appeal that his declaratory and injunctive relief is not barred by

33 sovereign immunity, he cannot overcome the hurdle identified to the Trial Court

regarding his failure to plead a viable constitutional claim against Ms. Willing.

[CR 23-231]. Because Appellant did not plead a viable constitutional claim, he

may not rely on any waiver of Ms. Willing’s sovereign immunity. See generally

Andrade v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (official retained

immunity from suit unless plaintiffs pleaded “viable claim”); Dir. of Dept. of

Agric. & Env't v. Printing Indus. Assoc. of Tex., 600 S.W.2d 264, 265 (Tex. 1980);

City of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App. - Texarkana 2011, pet.

denied) (noting that governmental defendant remains immune from suit absent

plaintiff's pleading of viable claim). Accordingly, the Trial Court did not abuse its

discretion by determining that there was no reasonable probability that Appellant

would prevail in the litigation against Ms. Willing. [CR 554]. This determination

should be affirmed.

ISSUE THREE

Whether or not Warren Vavra had the proper legal authority to appoint Judge Charles Ramsay to rule on Seana Willing August 19, 2014 hearing.

In his third issue, Appellant complains that the hearing in question was heard

before a judge whom he had not attempted to recuse, and that Warren Vavra does

not have the legal authority to assign a case to be heard in a court to which a

visiting judge has been assigned, apparently suggesting that the assignment was

improper, pursuant to TEX. GOVT. CODE § 74.056. A procedural irregularity in the

34 assignment of an otherwise qualified former judge may not be objected to for the

first time on appeal. Wilson v. State, 977 S.W.2d 379, 380 (Tex.Crim.App.1998).

An objection of this nature must be made in the trial court to preserve error, if any,

and allow appropriate corrective action to be taken, if necessary. See Id. at 380-81.

In the absence of such an objection, a court of appeals will presume that a visiting

judge was duly appointed and in regular discharge of his duties under section

74.056. See Rivera v. State, 981 S.W.2d 336, 341 (Tex. App.-Houston [14th Dist.]

1998, no pet.) (citations omitted).

At the time of the hearing, Appellant did not object to Judge Ramsay’s

authority to hear cases based on improper assignment under TEX. GOVT. CODE §

74.056. Accordingly, he may not do so now, and this Court should presume that

Judge Ramsay was duly appointed and in regular discharge of his duties under

section 74.056. Rivera, 981 S.W.2d at 341.

Further, Appellant makes his argument without any citation to the record

showing that Mr. Vavra performed any action that was improper 12, or that Judge

Ramsay was not properly assigned to the 200th Judicial District Court of Travis

12 To the extent that Appellant suggests that the Court Administrator may not assign a matter to a judge, “most civil cases in Travis County are assigned to a central docket, and each hearing in the case may be heard by any judge.” Wakefield v. British Medical Journal Publishing Group, Ltd., 449 S.W.3d 172, (Tex. App.–Austin, September 19, 2014, no pet.). Further, the Local Rules lay out the different methods of Notice provided to parties regarding Visiting Judge Assignment and states the proper procedure for objecting. TRAVIS COUNTY DISTRICT COURT LOCAL RULE 3.9.

35 County, Texas on August 19, 2014. In the absence of arguments or citations to the

record or relevant legal authority, this portion of Appellant's argument is

inadequately briefed and should not be considered. See TEX. R. APP. P. 38.1; see

also, e.g., Chambers v. Equity Bank, SSB, 319 S.W.3d 892, 900 (Tex. App.—

Texarkana 2010); Little–Tex Insul. Co., 39 S.W.3d at 598 n. 1.

To the extent that Appellant suggests that he may bring this argument at any

time, he would be incorrect there as well. While disqualification of a judge

pursuant to Rule 18b(a) may be raised for the first time on appeal13, Appellant has

provided no evidence or argument that Judge Ramsay served as a lawyer in the

matter in controversy, or a lawyer with whom the judge previously practiced law

served during such association as a lawyer concerning the matter; Judge Ramsay

had an individual or fiduciary interest in the subject matter in controversy; or that

any of the parties are related to Judge Ramsay by affinity or consanguinity within

the third degree. Tex. R. Civ. P. 18b(a).

To summarize, Appellant has failed to preserve this issue for appellate

review, has not adequately briefed it even if it were preserved, and identifies

nothing in the record to support any impropriety in the assignment of Judge

Ramsay to the 200th District Court on the date in question, or any impropriety in

13 See, e.g., Gulf Marine Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex. App.-Beaumont 1993, writ denied).

36 the administrative process assigning this matter to that court on August 19, 2014.

This issue must be denied and the decision of the Trial Court affirmed.

ISSUE FOUR

Issues Regarding Judges David Phillips and Stephen Yelenosky are Moot.

In his Fourth Issue, Appellant asks this Court to vacate orders of recusal and

referral by two judges who did not hear any matter in this litigation. [Appellant’s

Brief, pages 30-33]. In light of the Nonsuit that Appellant filed and in light of the

fact that Judge Ramsay entered the Order which Appellant appeals [CR 547-555; 3

RR 1 and 59:10-11], and not Judges Phillips or Yelenosky, there are no matters

remaining that would be affected by the vacating of orders entered by Judges

Phillips and Yelenosky, rendering the topic moot.

ISSUE FIVE

The Trial Court Did not Abuse its Discretion in Hearing this Matter Despite the Motion to Recuse.

In his Fifth Issue, Appellant makes two unrelated arguments and mashes

them together. First, Appellant argues that Judge Charles Ramsay could not

entertain a hearing on Ms. Willing’s Motion to Declare Eric Drake a Vexatious

Litigant, pursuant to TEX. R. CIV. P. 18a and 18b. Second, Appellant argues that a

procedural defect bars consideration of the Motion to Declare Eric Drake a

Vexatious Litigant. Ms. Willing will address each separately:

37 1. Good Cause to Hear the Matter, Despite the Motion to Recuse

In making this argument, Appellant ignores the fact that Judge Ramsay was

not the subject of any pending motion for recusal, and in his presentation of the

Rule, Appellant intentionally omits the legal basis under which Judge Ramsay

entered his order, attempts to recuse other judges notwithstanding.

“A party who fails to file a motion which complies with Rule 18a waives the

right to complain of a judge's refusal to recuse himself.” Spiegner v. Wallis, 80

S.W.3d 174, 180 (Tex.App.-Waco 2002). Because Appellant never filed a motion

to recuse Judge Ramsay, as a matter of law, Judge Ramsay was not obligated to

recuse himself. See Barron v. State of Tex. Att'y Gen., 108 S.W.3d 379, 383

(Tex.App.-Tyler 2003) (holding that trial judge was not obligated to recuse or refer

until party filed formal timely, written, and verified motion to recuse); see also

Spiegner, 80 S.W.3d at 180.

In is uncontested by either party that on August 7, 2014, Appellant filed a

motion to recuse specific judges in Travis County, and that on that same date,

Appellant filed a Motion to Nonsuit. [CR 521 and 527]. It is uncontested by either

party that Judge Ramsay was not listed among the judges Appellant sought to

recuse. [CR 522].

As a threshold matter, Appellant has not presented any legal basis for the

position that a judge who is not the subject of a motion to recuse must take no

38 action in a case. Even if Judge Ramsay were named in the Motion to Recuse, TEX.

R. CIV. P. 18a(f)(2)(A) provides that a judge subject to a motion to recuse may hear

a matter under certain conditions.

In presenting Rule 18a “in pertinent part,” Appellant blatantly misrepresents

the Rule, stating that Rule 18a(f)(2)(A) says: “Motion Filed Before Evidence

Offered at Trial. If a motion is filed before evidence has been offered at trial, the

respondent judge must take no further action in the case until the motion has been

decided.” [Appellant’s Brief, page 34]. In using a period after the word

“decided,” Appellant seeks to mislead this Court into thinking that the sentence

ends there. In fact, that section of the Rule reads as follows:

(2) Restrictions on Further Action. (A) Motion Filed Before Evidence Offered at Trial. If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record.

Rule 18a (f)(2)(A)(emphasis added).

The “good cause” required by rule 18a concerns a justification for the

challenged judge to act at a specific time rather than waiting for the appropriate

judge to act at another time. See Mann v. Denton County, 14 WL 5089189 *314

(Tex.App.-Fort Worth, October 09, 2014)(pet. denied).

14 This case is publicly available online on March 27, 2015, at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=828ada3e-02fb-4572-967c-

39 Ms. Willing presented the Trial Court with case law that is on point in this

matter, Watkins v. Pearson, 795 S.W.2d 257, 260 (Tex. App.-Houston [14th Dist.]

1990, writ denied). {3 RR 15:12-21]. In Watkins v. Pearson, the 14th Court of

Appeals upheld a trial court’s orders on summary judgment and sanctions despite a

pending motion to recuse, because the court found that good cause existed that was

stated in the order, specifically “the motion for recusal was found to be untimely

filed, not in conformity with the rules, and brought without sufficient cause and

solely for the purpose of delay.” Id. Because the record contained substantial

information which could support he judge’s conclusions as to delay, his finding of

“good cause” was not an abuse of discretion. Id.

In the instant case, Ms. Willing presented her good cause to the Trial Court

in the hearing. [3 RR 15:22-23:4 and 4 RR 11-12]. There were two motions on

file to declare Appellant a vexatious litigant. [CR 61 and 263]. Appellant was

notified that the hearings on these motions were scheduled for August 19, 2014.

[CR 199, 508 and 517]. On August 7, 2014, Appellant filed a Motion to Nonsuit

and a motion to recuse specific judges in Travis County. [CR 521 and 527]. Even

though the motion to recuse was based on the following: “The defendants filed a

motion to quash and the trial court has granted the defendants motions…” which

Appellant disagreed with. [CR 521, ¶ 4]. Because of this, Appellant alleges that

68c63d87039b&coa=coa02&DT=Opinion&MediaID=18981ecb-5ea5-45ed-904b- 7a8ead6b8b9d. The description of “good cause” is on page 7 of that document.

40 he could not get a fair and impartial hearing from any judge in Travis County. [CR

522, ¶¶ 3-4]. As with the Watkins motion, the motion to recuse in this case was

not in conformity with the rules, and was in fact defective on its face as the sole

complaint was the ruling of a judge. TEX. R. CIV. P. 18a(a)(3) (stating that such a

motion “must not be based solely on the judge's rulings in the case…” Like in

Watkins, it was brought “without sufficient cause.” Watkins, 795 S.W.2d at 260.

As in the Watkins case, Appellant’s Motion to Recuse was filed solely for the

purpose of delay, to allow the Trial Court’s plenary jurisdiction to expire 15 before

considering Appellant as a vexatious litigant. The Trial Court could certainly infer

such a purpose from the filing of the Nonsuit and Motion to Recuse on the same

date. Indeed, in his Motion for Nonsuit, Appellant makes specific reference to the

“motions to determine the Plaintiff as a vexatious litigate (sic)…” [CR 527, ¶ 1].

Allowing Appellant to evade consideration of the Motion to Declare Eric Drake a

Vexatious Litigant by allowing him to use the motion to recuse to preclude action

until Trial Court lost plenary jurisdiction would violate the purpose of the

vexatious litigant statute, which is to prevent such abuse of the judicial system by

pro se litigants 16. Moreover, the Trial Court was presented with additional

15 The Motion for Non-Suit began the 30 day plenary jurisdiction of the trial court. [CR 547, ¶ 3]. 16 In enacting Chapter 11 of the Texas Civil Practice and Remedies Code, 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

41 evidence of Appellant’s bad faith in his vexatious filings, when Appellant sent

letters threatening litigation against the spouses of state officials solely for the

purpose of avoiding the immunity afforded to such officials. [4 RR 11-12; 3 RR

20:17-21:24].

Appellant did not refute any of these matters demonstrated by Ms. Willing in

her hearing, nor did he refute them in any of his subsequent written responses to

her motion. [CR 556, 564, and 572].

These arguments, and the related documents and filings, were presented to

the Trial Court. The Trial Court considered the documents, filings, and all

arguments of parties, and found that good cause existed, entering that finding and

the basis for it in writing on the face of the order, in compliance with TEX. R. CIV.

P. 18a(f)(2)(A).

2. Alleged Procedural Defect Does Not Bar the Motion

Appellant argues again that the Court Administrator could not assign Judge

Ramsay to hear the matter. [Appellant’s Brief, page 40 and 45]. That argument is

addressed in response to Issue Three, supra. Appellant then argues that the failure

lawsuits with little or no merit. Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex.App.-Dallas 2009, pet. denied). Additionally, purpose of the statute is to make it possible for courts to control their dockets rather than permitting courts to be burdened with repeated filings of frivolous and malicious litigation by litigants without hope of success while, at the same time, providing protections for litigants' constitutional rights to open courts when they have genuine claims that can survive the scrutiny of the administrative judge and the posting of security to protect defendants. In re Potts, 399 S.W.3d 685, 688 (Tex.App.Houston [14th Dist.] 2013, orig. proceeding) citing In re Potts, 357 S.W.3d 766, 768 (Tex.App.-Houston [14th Dist.] 2011, orig. proceeding).

42 to confer with Appellant prior to the filing of the Motion to Declare Eric Drake a

Vexatious Litigant precluded the Trial Court from considering the matter on

August 19, 2014. [Appellant’s Brief, page 45-46].

Appellant does not identify what specific Local Rule or Texas Rule of Civil

Procedure would indicate such an argument. He does not provide any case law

supporting such an argument. In the absence of arguments or citations to the

record or relevant legal authority, this portion of Appellant's argument is

inadequately briefed and should not be considered. See TEX. R. APP. P. 38.1; see

also, e.g., Chambers, 319 S.W.3d at 900; Little–Tex, 39 S.W.3d at 598 n. 1. Ms.

Willing is not placed on sufficient notice to identify what Rule is alleged to have

been violated.

Significantly, Appellant has never articulated any prejudice or harm he

suffered as a result or any alleged procedural defect. Not at the hearing, and not in

his Appellant’s Brief. Appellant does not inform this Court that he asked for a

hearing to address claims he was a vexatious litigant. [CR 177, ¶ 13].

The record is clear that counsel for Ms. Willing attempted to cure any

potential defect by conferring with Appellant on August 7, 201417, ensuring that he

17 Later in his Appellant’s Brief [page 60], Appellant identifies two typographical errors in the Certificate of Conference in suggesting counsel for Ms. Willing committed “perjury”: the use of “p.m.” instead of “a.m.” and the date August 6 instead of August 7. Both typographical errors do appear on that pleading. [CR 518]. At the hearing, counsel clarified any confusion by indicating that he spoke with Appellant on August 7. [3 RR 45:15-25].

43 was opposed to the Motion to Declare Eric Drake a Vexatious Litigant and that he

was aware of the hearing on August 19, 2014, and would be in attendance. [CR

517-18]. This was in addition to the other Notice of Hearing provided to

Appellant. [CR 508]. This was all brought to the attention of the Trial Court.

[See, e.g., 3 RR 44:25-45:25]. Nothing in Appellant’s Brief supports his

suggestion that a Travis County Local Rule precluded Judge Ramsay from

conducting the hearing on August 19, 2014, or that it was an abuse of discretion

based on a Local Rule.

ISSUE SIX

Judge Charles Ramsay did not abuse his discretion in hearing the August 19, 2014 based on his status as an assigned judge.

In his Sixth Issue, Appellant repeats the argument from Issue One. Ms.

Willing has addressed that supra.

ISSUE SEVEN

The Trial Court did not abuse its discretion in signing the order declaring the Appellant as a vexatious litigant.

In his Seventh Issue, Appellant argues that counsel for Ms. Willing

committed fraud on the Trial Court to secure the Order Declaring Plaintiff a

Vexatious Litigant. Appellant’s sole allegation of fraud is related to statements

that counsel for Ms. Willing conferred with Appellant on August 7, 2014, as

discussed supra. Appellant then leaps to the unsupported conclusion that this

44 means that the Order in question was obtained by fraud. Appellant does not

present any case law or authority to support his argument. The Order does not

indicate that Judge Ramsay relied on the conferring of August 7 in making his

ruling on August 19, 2014. [CR 547-55].

With respect to Appellant’s allegations that the representation that counsel

conferred with him on August 7, 2014 is false, Appellant is incorrect. The Trial

Court heard the arguments and statements of parties in the hearing. As fact finder,

The Trial Court is the sole judge of witness credibility and the weight to give to the

testimony and reviewed the pleadings on file. City of Keller, 168 S.W.3d at 819.

There is nothing to indicate that this was a factor in making his decision to enter

the Order.

Nothing in the record indicates that the Order was signed based on attempts

to confer. Accordingly, the Order should be affirmed.

ISSUE EIGHT

Appellant’s Right to Due Process Was Not Violated.

In his Eighth Issue, Appellant argues that his right to due process was

violated because he was not allowed to take discovery depositions before the

hearing on the Motion to Declare Eric Drake a Vexatious Litigant.

As a threshold matter, a distinction is needed between Appellant’s failure to

call witnesses at his hearing and his attempt to take discovery depositions.

45 Appellant specifically asked for an evidentiary hearing regarding (among other,

unspecified things) the suggestion that he was a vexatious litigant. [CR 217-218].

Appellant expressly indicated that he intended to call live witnesses at such a

hearing, and not rely on deposition testimony. [CR 217, ¶ 2]. It is clear from

Appellant’s own filing that he knows the difference between a live witness called

at a hearing and a deposition. When a party indicates that it plans to call a witness

in a hearing, but never actually attempts to call the witness, that party may not

complain about the lack of witness testimony on appeal. Wild Rose Rescue Ranch

v. City of Whitehouse, 373 S.W.3d 211, 217–18 (Tex.App.-Tyler 2012, no pet.)

(“To complain on appeal that the trial court erroneously excluded evidence, [the

appellant] must have offered the evidence during trial and obtained an adverse

ruling from the trial court.”).

Appellant appeared at the hearing on August 19, 2014 18. [3 RR 2]. At 8:06

a.m. on that date, Appellant filed “Plaintiffs Response to Defendants Attempts to

18 Although Appellant seeks to suggest to this Court that he was unaware of the hearing to declare him a vexatious litigant on August 19, 2014, [Appellant’s Brief, page 30: “To Appellant's surprise, Appellee Willing motion to declare him as a vexatious litigate was still going to be heard…”], this is demonstrably false, as Appellant judicially admitted that he was aware of the hearing on that date. [CR 556, ¶ 1]. He was not so surprised that he was unable to file a typed response at 8:07 a.m. on that date, some 4 ½ hours before the entry of the order. Compare CR 556 with 547.

46 Declare Him as a Vexatious Litigate.” [CR556]. He did not seek a continuance 19.

Appellant made no attempt to call a single witness to testify.

Rather than actually attempt to call a single witness, Appellant argued on the

record that he was prevented from calling witnesses because parties had previously

moved to quash discovery depositions 20. [3 RR 31:8-22].

There is nothing in the record to suggest that Appellant filed a motion to

compel testimony related to the hearing he requested [CR 217-218] and that was

noticed [CR 508 and 517] regarding his status as a vexatious litigant. By

Appellant’s own judicial admission, the only attempt to compel the deposition

testimony was in response to venue matters and NOT to compel testimony

regarding his status as a vexatious litigant. [CR 219]. By Appellant’s own

admission, “Plaintiff has requested these depositions in support of his opposition to

defendant's motions to transfer venue” [CR 220, ¶ 5] (emphasis added). The

hearing on Appellant’s motion to compel could not go forward, as all actions other

than those related to the vexatious litigant motion were stayed, pursuant to TEX.

CIV. PRAC. & REM. CODE §11.052 [2 RR 12:14-22; CR 256-57 and 520].

19 Appellant states that he filed a motion for continuance with respect to the vexatious litigant hearing, but the record does not support his statement. The only continuance sought by Appellant was related to a motion to transfer venue. [CR 206]. At the hearing, Appellant did not seek a continuance. [3 RR]. 20 Although Appellant leads the Court to believe he sought only “very limited discovery by oral depositions” [CR 207, ¶ 6], he was actually seeking to depose each of the noticed parties for “about 6 hours.” [CR 165, 167, 169 and 171].

47 Further, Appellant does not inform the Trial Court of any testimony he

sought to present at the hearing, had any witnesses been called. While he suggests

that they might have presented evidence to show there was a reasonable probability

he would prevail in his litigation against Ms. Willing [Appellant’s Brief, page 62],

this argument ignores the actual basis for Judge Ramsay determining there was no

such probability.

In reality, no witness testimony would have been able to cure the

jurisdictional defects in his pleadings, establish Appellant’s standing to bring

claims against Ms. Willing, or waive the sovereign immunity afforded to Ms.

Willing. [CR 548 and 554].

As a side note, Appellant peripherally mentions objections to exhibits and

the ruling on those objections. [Appellant’s Brief, page 63]. The Court did, in

fact, make rulings on his objections. [3 RR 26:2-6]. The ruling was correct. The

objection to exhibits in the hearing [3 RR 26:1-5] is not specific regarding the basis

for objection, nor is it specific about which particular exhibit is alleged to be

objectionable. Appellant did not identify any Rule of Evidence on which he was

relying, nor did he attempt to identify any way in which the exhibits were alleged

to be defective. Because he did not make specific objections to specific exhibits,

nor did he articulate the basis for a specific objection, his objections are not

preserved for appeal. See TEX. R. APP. P. 33.1(a) (record must show timely,

48 specific objection and ruling to preserve error for appeal); TEX. R. EVID. 103(a)(1)

(timely objection must appear of record stating specific ground of objection).

To summarize, although Appellant had previously indicated his intent to

“call between 15 and 20 witnesses to put on the stand and cross-examine them”

[CR 217, ¶ 2] at the hearing, he did not call a single witness, did not seek a

continuance or to compel any witness for that hearing, and has never explained

what witness testimony could create standing for him to bring claims against Ms.

Willing or provide his pleadings with sufficient basis to demonstrate a waiver of

her sovereign immunity.

Appellant’s right to due process was not violated. This Court should affirm

the Order at issue in this appeal.

ISSUE NINE

The Trial Court did not abuse its discretion in signing the August 19 Order rather than rule on other matters.

In his Ninth Issue, Appellant argues that the Trial Court abused its discretion

by ruling on the Motion to Declare Eric Drake a Vexatious Litigant before

addressing motions to transfer venue, special exceptions, or other matters.

As a matter of law, the Trial Court was required to consider the Motion to

Declare Eric Drake a Vexatious Litigant before any other matters. TEX. CIV. PRAC.

& REM. CODE §11.052. This includes discovery not directly related to the

vexatious litigant matter. See, e.g., Drum v. Calhoun, 299 S.W.3d 360, 369 (Tex.

49 App.-Dallas 2009, pet. denied) (holding that motions to compel discovery were

properly stayed, pursuant to TEX. CIV. PRAC. & REM. CODE §11.052). The hearing

on Appellant’s motion to compel related to a motion to transfer venue could not go

forward, as all actions other than those related to the vexatious litigant motion were

stayed, pursuant to [2 RR 12:14-22; CR 256-57 and 520]. Indeed, the court could

have entertained Ms. Willing’s plea to the jurisdiction only after the vexatious

litigant matter. TEX. CIV. PRAC. & REM. CODE §11.052.

Appellant argues that the Trial Court had to consider its jurisdiction prior to

entering the August 19 Order. However, courts may enter orders finding a litigant

vexatious and later address defects in subject matter jurisdiction. See generally

Clifton v. Walters, 308 S.W.3d 94 (Tex. App.-Fort Worth 2010). Indeed, this

Court has upheld vexatious litigant declarations based in relevant part upon lack of

subject matter jurisdiction because of lack of standing. See In re Kim, No. 03–09–

00113–CV, 2009 WL 1653856.

The Trial Court could have entertained the plea to the jurisdiction after the

vexatious litigant matter was resolved, but Appellant nonsuited all of his claims

[CR 527], so the Trial Court never ruled on the plea.

With respect to Appellant’s argument regarding his motion to recuse, the

Trial Court found that good cause existed to go forward on August 19, 2014,

entering that finding and the basis for it in writing on the face of the order, in

50 compliance with TEX. R. CIV. P. 18a(f)(2)(A). Further analysis of this is covered

in Issue Five, supra.

ISSUE TEN

The Trial Court did not abuse its discretion in signing the August 19, 2014 order declaring Appellant vexatious because Ms. Willing's motion to declare Drake as a vexatious litigant was not procedurally defective.

In his Tenth Issue, Appellant argues that three alleged procedural defects

precluded Judge Ramsay from entering the Order on August 19.

First, Appellant reargues his point about conferring, while again not

identifying any prejudice he suffered, or citing any specific Rule which was

alleged to have been violated. This matter is more fully addressed in Issue Five,

supra.

Second, Appellant apparently believes that he was not provided time to

adequately respond to the Motion to Declare Eric Drake a Vexatious Litigant. In

support of this, he argues that he had only 12 days of notice. [Appellant’s Brief,

page 69]. Appellant was served with a Notice of Hearing on August 5, and again

on August 7, 2014. [CR 508 and 517]. The record thus shows Appellant received

notice between 12-14 days before the hearing on August 19, 2014. Appellant

argues that summary judgment hearings must have 21 days of notice, pursuant to

an unspecified Rule of Civil Procedure 21. He does not present any authority to

21 It’s TEX. R. CIV. P. 166a (c).

51 suggest that this applies to motions under Chapter 11 of the TEX. CIV. PRAC. &

REM. CODE. Generally, any motion to the court for an order and any notice of a

hearing on a motion must be served upon the other party at least three days before

the hearing. TEX. R. CIV. P. 21. Further, Appellant did not raise this issue with the

Trial Court, during, the hearing or in any of his Responses. [3 RR 1; CR 556, 564,

and 572]. He may not present it for review at this stage. See TEX. R. APP. P.

33.1(a); see also Drum, 299 S.W.3d at 370.

Finally, Appellant again argues that Judge Ramsay should have recused

himself despite the fact that he was not named in the motion to recuse, and despite

the findings that good cause existed to go forward on August 19, 2014, in

compliance with TEX. R. CIV. P. 18a(f)(2)(A). Response to Appellant’s argument

about Judge Ramsay is addressed more completely in Issue Five, supra.

ISSUE ELEVEN

The Trial Court did not abuse its discretion in determining that sovereign immunity demonstrated that there was no reasonable probability that Appellant would prevail in the litigation against Ms. Willing.

In his Eleventh Issue, Appellant argues that Ms. Willing does not enjoy

sovereign immunity. This was discussed in response to Issue Two, supra. Again,

Appellant’s Issue Eleven in its entirety consists of arguments never presented to

the Trial Court, despite Appellant’s appearance at the hearing in question and three

written responses on file. [3 RR 1; CR 556, 564, and 572]. Appellant did not raise

52 any argument related to Ms. Willing and her sovereign immunity before the Trial

Court, and may not present it for review at this stage. See Tex. R. App. P. 33.1(a);

see also Drum, 299 S.W.3d at 370 (holding that arguments by a vexatious litigant

not raised in the trial court are not preserved for appellate review).

For the first time on appeal, Appellant argues that “his rights were violated

by Willing pursuant to an unconstitutional law.” [Appellant’s Brief, page 73]. He

does not identify any unconstitutional law, and there is no reference to an

unconstitutional law in his Complaint. [CR 5, generally].

Appellant then raises arguments regarding the general waiver of sovereign

immunity for injunctive relief sought against official capacity defendants.

Appellant may not present this for review at this stage. See Tex. R. App. P. 33.1(a);

see also Drum, 299 S.W.3d at 370. Even if he were able to do so, because

Appellant did not plead a viable constitutional claim against Ms. Willing

(including any protected right he alleges in the outcome of an administrative

investigation), he may not rely on any waiver of Ms. Willing’s sovereign

immunity. See generally Andrade, 345 S.W.3d at 11 (official retained immunity

from suit unless plaintiffs pleaded “viable claim”); Printing Indus. Assoc. of Tex.,

600 S.W.2d at 265; City of Paris v. Abbott, 360 S.W.3d at 583. Further, although

he suggests that he was complaining about Ms. Willing failing to perform her

ministerial duty [Appellant’s Brief, page 766], he was not asking the Trial Court to

53 compel her to perform such duties, but instead, to turn over the investigation to the

Trial Court itself. [CR 40, second (c)]. Further, Appellant was not seeking

prospective relief with respect to the complaint he made, but wanted Ms. Willing

to explain her actions to the Trial Court. [CR 43, ¶ 106]. Appellant does not have

standing for any further declaratory or injunctive relief in the hypothetical or

abstract future of investigations by Ms. Willing. Arguments related to sovereign

immunity and standing are more fully briefed in response to Issue Two, supra.

Appellant also argues that Ms. Willing waived immunity by seeking to have

him declared a vexatious litigant. He provides no legal authority supporting his

position, and by not presenting any legal support, has inadequately briefed this

matter. See TEX. R. APP. P. 38.1. As a matter of law, the Supreme Court held that

even litigation initiated by a governmental entity does not waive sovereign

immunity in general, but waives immunity only to the extent that the relief sought

by a counterclaimant would offset affirmative, monetary relief sought by the

governmental entity. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,

376-77 (Tex. 2006) (“Reata II”); see also Manbeck v. Austin Indep. Sch. Dist., 381

S.W.3d 528, 533 (Tex., August 31, 2012) (per curiam) (holding that a

governmental entity which availed itself of its statutory right, but never brought an

affirmative claim for money damages retained immunity). Appellant does not

54 identify in the record any attempt by Ms. Willing to seek monetary relief from

Appellant.

Finally, Appellant suggests that Ms. “Willing's counsel said in open court

that Appellant was suing Appellee Willing in her individual capacity also…”

[Appellant’s Brief, page 78]. Appellant does not cite the relevant portion of the

transcript, because this did not happen. The Reporter’s Record does not contain

such a statement. Indeed, although Appellant puts words in quotes, the word

“Prayer” does not appear in the Reporter’s Record, nor does reference to

judgement against Defendants. In the transcript, the only references to judgments

are as follows: a reference to a court having authority to vacate an order or

judgment [3 RR 22:12-14] the fact that the 44th District Court had not reversed an

order declaring Appellant to be a vexatious litigant, nor was the judgment reversed

[3 RR 54:11-55:6, citing CR 467] and some judgments that identify Exhibits

entered at the hearing. Appellant, however, asks this Court to order a court

reporter to alter the transcript. [Appellant’s Brief, page 78]. Appellant then

proceeds to present argument about qualified immunity, which was not an issue, as

he only brought claims against Ms. Willing in her official capacity, and never

suggested otherwise until his Appellant’s Brief.

55 Appellant’s arguments may not be raised for the first time on appeal, and

they are not availing even if he were allowed to do so. He has failed to meet his

burden to prove that Judge Ramsay abused his discretion.

PRAYER

Because Appellant did not appeal all of the independent reasons the Trial

Court entered its Order and declared Eric Drake a vexatious litigant, and because

he has waived appeal of those other reasons, the order of the Trial Court should be

affirmed.

Even on the issues briefed by Appellant, the Trial Court was correct to hear

the matter because good cause existed, in not hearing the matter would allow the

Appellant to abuse the litigation process and evade the very purpose of the

vexatious litigant statute. Additionally, Judge Ramsay was not named in the

motion to recuse, which was facially defective and not in compliance with Rule

18a.

The Trial Court was also correct to enter its order finding Eric Drake a

vexatious litigant because Ms. Willing was able to prove each necessary element of

Tex. Civ. Prac. & Rem. Code § 11.054.

Accordingly, this Court should affirm the ruling of the Trial Court.

56 Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Defense Litigation

ANGELA V. COLMENERO Chief–General Litigation Division

/s/ Scot M. Graydon Scot M. Graydon Assistant Attorney General State Bar No. 24002175 Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2120 (512) 320-0667 - facsimile

ATTORNEYS FOR APPELLEE SEANA WILLING

57 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent via regular mail and certified mail, return receipt requested on April 1, 2015 to: Eric Drake PO Box 833688 Richardson, Texas 75083 Pro Se Appellant

/s/ Scot M. Graydon Scot M. Graydon Assistant Attorney General

58 CERTIFICATE OF COMPLIANCE

Pursuant to TRAP 9.4(i)(3), the undersigned Assistant Attorney General hereby certifies that the preceding document complies with the type-volume limits in TRAP 9.4.

1. Excluding the exempted portions in TRAP 9.4(i)(1), the brief contains: 12,714 words22, and

2. This brief has been prepared using: Word in 14 pt Times New Roman conventional typeface Font with 12 pt footnotes.

The undersigned understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in TRAP 9.4, may result in the court's striking the brief and prohibiting the party from filing further documents of the same kind.

/s/ Scot M. Graydon Scot M. Graydon Assistant Attorney General

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