1901 NW 28th Street Trust v. Lillian Wilson, LLC
535 S.W.3d 96
| Tex. App. | 2017Background
- In 2009 Joseph Yammine, as trustee for 1901 NW 28th Street Trust (the Trust), authorized transfer of a tax lien on property after Lillian Wilson paid delinquent ad valorem taxes; Yammine executed a note and deed of trust securing repayment. The deed of trust was recorded June 16, 2009.
- A special warranty deed conveying the property from Yammine to his brother was recorded June 12, 2009 (before the deed of trust’s recording).
- Yammine defaulted; Lillian Wilson obtained an expedited foreclosure of the transferred tax lien under Rule 736 and scheduled a sale. Yammine filed a pro se suit (as purported trustee) the day before the sale, alleging due-process defects and lack of lien attachment.
- Lillian Wilson moved (within 90 days of its answer) to have Yammine declared a vexatious litigant under Tex. Civ. Prac. & Rem. Code ch. 11 and to require security; at the hearing Yammine asserted lack of notice, need for counsel and a translator, and medical impairment and then refused to continue testifying.
- The trial court found Yammine a vexatious litigant, ordered $15,000 security; Yammine did not post security and the suit was dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yammine qualifies as a “plaintiff” under chapter 11 (i.e., can be declared vexatious) | Yammine: the named plaintiff was the Trust, not him, so chapter 11 cannot apply to him | Wilson: chapter 11 defines “Plaintiff” as an individual who commences or maintains litigation pro se; Yammine brought the suit pro se | Court: Yammine is a "plaintiff" under chapter 11 because he commenced the suit pro se; issue overruled |
| Whether Wilson failed to show Yammine lacked a reasonable probability of prevailing | Yammine: he was likely to prevail because lien could not attach—he did not own the property when the deed of trust was filed | Wilson: tax liens attached earlier (Jan 1 each year); transferee is subrogated to taxing unit’s rights; recording of deed of trust preserved existing tax lien | Court: held Wilson had reasonable probability of prevailing; deed of trust preserved/transferred existing tax lien; Yammine’s argument rejected |
| Whether Wilson proved five qualifying pro se litigations finally determined adversely in prior seven years (statutory predicate) | Yammine: Wilson did not prove five qualifying prior litigations | Wilson: submitted nine causes and records showing at least five qualifying actions (including dismissals and counterclaims) | Court: Wilson met burden; dismissals and maintained counterclaims counted; issue overruled |
| Procedural/fairness complaints about the vexatious-liigant hearing (notice, time to hire counsel/translator, exhibit review, specificity of order) | Yammine: trial court denied opportunity to secure counsel/translator, failed to notify witnesses, failed to allow time to review exhibits, and order lacked specificity | Wilson: (implicit) hearing proceeded and evidence was admitted; statutory procedure followed | Court: these complaints were not preserved on appeal (inadequately briefed); issues waived |
Key Cases Cited
- Harris v. Rose, 204 S.W.3d 903 (Tex. App.—Dallas 2006) (standard: abuse of discretion review for vexatious-litigant determinations)
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) (use statutory definitions when legislature defines terms)
- Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014) (give undefined statutory terms their ordinary meaning)
- ABN AMRO Mortg. Grp. v. TCB Farm & Ranch Land Invs., 200 S.W.3d 774 (Tex. App.—Fort Worth 2006) (tax lien classified as special/inextinguishable lien)
- Guillot v. Hix, 838 S.W.2d 230 (Tex. 1992) (subrogation: transferee takes derivative rights of subrogor)
- Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. App.—Dallas 1996) (deed of trust may preserve and extend existing tax lien)
- Retzlaff v. GoAmerica Commc’ns. Corp., 356 S.W.3d 689 (Tex. App.—El Paso 2011) (repeated filings dismissed by plaintiff may count toward vexatious-litigant predicate)