Lonnie Kade Welsh v. Michael Searcy

• Court: Court of Appeals of Texas
• Decided: May 25, 2022
• Docket: 07-22-00023-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00023-CV

LONNIE KADE WELSH, APPELLANT V. MICHAEL SEARCY, ET AL., APPELLEES

On Appeal from the 154th District Court Lamb County, Texas Trial Court No. DCV-20525-21, Honorable John A. Didway, Presiding

May 25, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Is Lonnie Kade Welsh a vexatious litigant? The trial court found him such and

entered two orders to that effect. Through the first, labelled “Order Declaring Plaintiff

Vexatious,” it made the requisite finding of vexatiousness and required him to post $2,500

as security to proceed with his lawsuit against Marsha McLane, Chris Greenwalt, and

over twenty other defendants. Through the second, labelled “Pre-Filing Order,” the trial

court barred him “from filing, in forma pauperis, any new litigation in a court of this State

without first obtaining permission from a local administrative judge.” Welsh appealed

both. We dismiss in part and affirm in part. The complaints underlying his lawsuit against numerous parties arose during

Welsh’s commitment as a sexually violent predator. They involve, among other things,

purported instances of confiscating personalty, denying his request for particular books,

physically restraining him, punishing him excessively, assaulting him, abusing process,

negligently injuring him via tangible personal property, falsely imprisoning him, denying

him his constitutional right to “professional judgment,” denying him both procedural and

substantive due process, creating a private nuisance, libeling him, and intentionally

inflicting upon him emotional distress. Two of the accused, McLane and Greenwalt,

sought the foregoing vexatious litigant and prefiling orders under Chapter 11 of the Texas

Civil Practice and Remedies Code. The trial court convened a hearing on the request,

received evidence from the movants, entertained argument, and ultimately entered the

orders from which Welsh appealed. The record before us does not indicate that the trial

court dismissed or otherwise finally disposed of the underlying suit.

Jurisdiction

We initially address the issue of jurisdiction. We have none over the order finding

Welsh to be a vexatious litigant and obligating him to post security to continue with his

suit. Simply put, such a decision is not reviewable through an interlocutory appeal.

Lagaite v. Boland, No. 07-12-00422-CV, 2012 Tex. App. LEXIS 10382, at *1–2 (Tex.

App.—Amarillo Dec. 13, 2012, no pet.) (mem. op.); accord Kennedy v. Jones, No. 06-19-

00068-CV, 2020 Tex. App. LEXIS 37, at *2 (Tex. App.—Texarkana Jan. 7, 2020, no pet.)

(mem. op.) (stating same); Florence v. Rollings, No. 02-17-00313-CV, 2018 Tex. App.

LEXIS 7140, at *6 (Tex. App.—Fort Worth Aug. 30, 2018, no pet.) (mem. op.) (stating

same). McLane/Greenwalt asserted as much in their joint appellate brief, and Welsh

2 failed to respond otherwise. Thus, we dismiss this aspect of the appeal for want of

jurisdiction.

Regarding the “pre-filing order,” statute provides that a “litigant may appeal from a

prefiling order entered under . . . [§ 11.101(a)] designating the person a vexatious

litigant.”1 TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(c). The manner of appeal includes

those interlocutory in nature. Kennedy, 2020 Tex. App. LEXIS 37, at *3; Florence, 2018

Tex. App. LEXIS 7140, at *7. Given this, we can and do entertain the trial court’s “Pre-

Filing Order.”

Merits

Statute authorizes a defendant, “in a litigation in this state,” to move for an order

“determining that the plaintiff is a vexatious litigant.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 11.051(1), (2). At least two criteria must be satisfied for a litigant to be found vexatious.

One obligates the defendant to “show[] that there is not a reasonable probability that the

plaintiff will prevail in the litigation against the defendant.” Id. § 11.054. The other

requires him to “show” that, “in the seven-year period immediately preceding the date the

defendant makes the motion under Section 11.051,” the plaintiff “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 the plaintiff; [or] . . .

permitted to remain pending at least two years without having been brought to trial or

hearing; or . . . determined by a trial or appellate court to be frivolous or groundless under

state or federal laws or rules of procedure.” Id. § 11.054(1)(A)–(C). The legislature

1 Section 11.101(a) of the Civil Practice and Remedies Code allows a court to “enter an order

prohibiting a person from filing, pro se, a new litigation in a court to which the order applies . . . without permission of the appropriate local administrative judge . . . if [it] finds, after notice and hearing . . . that the person is a vexatious litigant.” TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a).

3 defined “litigation” as “a civil action, commenced, maintained, or pending in any state or

federal court.” Id. § 11.001(2). And, we emphasize that the burden lies with the defendant

to satisfy both prongs. Jackson v. Ellis, No. 07-13-00184-CV, 2015 Tex. App. LEXIS

5731, at *6 (Tex. App.—Amarillo June 4, 2015, no pet.) (mem. op.). Finally, our review

of a trial court’s determination of vexatiousness is under the standard of abused

discretion. Comeaux v. Hamilton, No. 07-13-00170-CV, 2014 Tex. App. LEXIS 2976, at

*2 (Tex. App.—Amarillo Mar. 17, 2014, no pet.) (mem. op.).

Welsh does not contest that McLane/Greenwalt satisfied the second prong of the

two-part test. Instead, he challenges the determination regarding the improbability of his

success. His handwritten fifty-seven-page appellant’s brief addresses a number of topics.

He left several unaddressed, though. They concern several grounds upon which

McLane/Greenwalt based their allegation that Welsh’s litigation had little likelihood of

success. Those grounds were immunity under § 841.147(1) of the Texas Health and

Safety Code, official immunity, and immunity from suit under the Eleventh Amendment of

the United States Constitution.2 Moreover, the trial court’s order mentioned no particular

ground upon which the court relied in sustaining the motion of McLane/Greenwalt. Thus,

Welsh had the obligation to address each and explain why none were viable. See Retzlaff

v. GoAmerica Commc’ns Corp., 356 S.W.3d 689, 698–99 (Tex. App.—El Paso 2011, no

pet.) (involving a vexatious-litigant finding and stating that the “appellant must attack all

independent grounds that support an adverse ruling”); accord Thoele v. Tex. Bd. of

Pardons & Paroles, No. 03-19-00826-CV, 2021 Tex. App. LEXIS 3518, at *4–5 (Tex.

App.—Austin May 6, 2021, no pet.) (mem. op.) (concluding that “[b]ecause Thoele has

2 We distinguish these from sovereign and qualified immunity, which were independently urged by

McLane/Greenwalt below and discussed by Welsh in some fashion on appeal.

4 failed to attack each of the independent grounds supporting the trial court’s vexatious-

litigant declaration, we must uphold the trial court’s ruling”). Welsh having failed in that

regard, we must uphold the trial court’s ruling.

In sum, the appeal of the “Order Declaring Plaintiff Vexatious” is dismissed for want

of jurisdiction. However, we affirm the trial court’s “Pre-filing Order.”

Per Curiam