Eric Drake v. Seana Willing
03-14-00665-CV
| Tex. App. | Apr 1, 2015Background
- Appellant Eric Drake (pro se) sued various defendants including Seana Willing (Executive Director, Texas Commission on Judicial Conduct) in her official capacity under 42 U.S.C. § 1983; Willing moved to declare Drake a vexatious litigant under Tex. Civ. Prac. & Rem. Code ch. 11.
- Willing filed a plea to the jurisdiction (sovereign immunity, lack of standing) and a motion to declare Drake vexatious; hearing was set for Aug 19, 2014; Drake filed a nonsuit and a motion to recuse before the hearing.
- Visiting Judge Gus Strauss was first assigned and excused after Drake objected; the matter proceeded before Judge Charles Ramsay despite another verbal objection by Drake. Judge Ramsay found "good cause" to proceed and signed the vexatious-litigant order.
- The trial court found (1) Drake lacked standing and (2) sovereign immunity barred his claims against Willing, and also found Drake had the requisite history of prior vexatious filings under § 11.054.
- Drake appealed raising multiple issues (recusal/assignment, sufficiency of proof, procedural defects, due process). Willing argues many issues were waived for failure to raise in trial court and that independent grounds support affirmance.
Issues
| Issue | Plaintiff's Argument (Drake) | Defendant's Argument (Willing) | Held |
|---|---|---|---|
| 1. Whether Judge Ramsay should have recused due to being a visiting/assigned judge | Objected to visiting judge assignment and contends objection required recusal | Only one objection to a visiting judge is allowed by statute; Drake already objected to the first visiting judge; Ramsay properly heard the case | Court affirms: Ramsay did not abuse discretion; statutory limits on objections apply |
| 2. Whether Willing showed no reasonable probability Drake would prevail | Drake claims insufficient evidence at hearing to show no probability of success | Willing shows jurisdictional defects (lack of standing) and sovereign immunity as independent bases; Drake waived many arguments by not raising them below | Court affirms: no reasonable probability to prevail due to standing and immunity; waiver bars new arguments on appeal |
| 3. Validity of assignment authority (Court Administrator/Warren Vavra) | Assignment was improper under Tex. Gov’t Code and thus judge lacked authority | Assignment regularity not challenged at trial; appellate presumption that visiting judge was properly appointed; issue waived and inadequately briefed | Court affirms: issue not preserved and presumption of regularity applies |
| 4. Procedural defects (notice, conferring, ability to call witnesses/discovery) | Drake contends inadequate notice/conferring and inability to call witnesses violated due process | Willing: notice and confer occurred; Drake filed responses and did not request continuance or call witnesses; discovery stayed by statute while vexatious motion pending; no prejudice shown | Court affirms: no due process violation; procedural complaints waived or without prejudice |
Key Cases Cited
- Amir–Sharif v. Quick Trip Corp., 416 S.W.3d 914 (Tex. App.–Dallas 2013) (standards and elements for vexatious-litigant determination)
- Gross v. Carroll, 339 S.W.3d 718 (Tex. App.—Houston [1st Dist.] 2011) (failure to attack all independent grounds supporting adverse ruling requires affirmance)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal-sufficiency review and deference to factfinder on credibility)
- Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011) (governmental immunity and requirement to plead viable claim to overcome immunity)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (sovereign-immunity waiver rules and limits)
- Drum v. Calhoun, 299 S.W.3d 360 (Tex. App.-Dallas 2009) (stay of discovery and procedure while vexatious-litigant matters pending)