Eric Drake v. Seana Willing
03-14-00665-CV
| Tex. App. | May 13, 2015Background
- Plaintiff Eric Drake sued several defendants (Kastl Law PC, attorneys, and Travis County officials including Seanna Willing) seeking injunctive and declaratory relief and damages; defendants moved to declare Drake a vexatious litigant and filed other procedural motions (transfers, motions to quash).
- On August 19, 2014 a visiting judge, Charles Ramsay, signed an order declaring Drake a vexatious litigant and entered a prefiling restriction; Drake objected at the hearing to Ramsay's assignment and to denial of discovery and witness testimony.
- Drake had filed motions to recuse all Travis County district judges before the hearing; he contends none of the judges timely recused or referred the recusal motions as required by Tex. R. Civ. P. 18a/18b, and no proper assignment order from an administrative judge appears in the record.
- Drake alleges the visiting judge was assigned by the court administrator (Warren Vavra), who lacked authority to make assignments, and therefore Ramsay lacked jurisdiction to hear the vexatious-litigant motion; he also alleges sham/untimely recusal/referral orders were later filed by other judges.
- Drake asserts Willing failed to prove the statutory prerequisites for a vexatious-litigant finding (no reasonable probability plaintiff would prevail; five qualifying adverse determinations in seven years) and that defense counsel (Scot Graydon) committed perjury about conferencing and other facts, rendering the order procured by fraud.
- Procedural posture: trial court entered the vexatious-litigant order (Aug. 19, 2014); Drake appealed and sought mandamus relief; he asks the appellate court to vacate the August 19, 2014 order and related recusal/referral orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Judge Ramsay's appointment | Drake: Ramsay is a "former" judge improperly assigned by a nonjudicial court administrator and lacked authority; Drake timely objected and Ramsay should have recused | Defendants: visiting judge assignment was proper (hearing could proceed); recusal motions were defective or untimely | Trial court: visiting judge presided and entered the vexatious order; appellant challenges assignment and seeks vacatur on appeal/mandamus |
| Compliance with TRCP 18a/18b (recusal/referral) | Drake: district judges failed their mandatory duty to recuse or refer within 3 business days; later ‘‘sham’’ orders were untimely and do not cure the defect | Defendants: motions or objections were insufficient or untimely; later orders cure any procedural defect | Trial court: no on‑record timely recusal action before hearing; appellant contends resulting orders are void and seeks relief on appeal |
| Authority of court administrator to assign visiting judge | Drake: Warren Vavra (court administrator) had no power to assign judges; only presiding/regional judge or chief justice may assign | Defendants: assignment was functionally effective; administrative acts permitted the hearing to proceed | Trial court: visiting judge acted; appellant contends assignment was void and therefore all subsequent orders are void |
| Sufficiency of evidence for vexatious‑litigant finding (Chapter 11) | Drake: Willing presented no competent sworn proof that Drake lacked reasonable probability of prevailing or that five qualifying adverse determinations occurred; discovery and witnesses were blocked | Defendants: evidence and litigation history supported vexatious finding and sovereign/official immunity defenses | Trial court: granted Willing’s motion and declared Drake vexatious; appellant challenges factual and procedural sufficiency on appeal |
| Alleged fraud/perjury by defense counsel (Graydon) | Drake: Graydon falsely certified he conferred with Drake and otherwise misled the court to procure the order; fraud renders the order voidable/vacatable | Defendants: counsel’s certifications and statements were sufficient or harmless; any errors do not invalidate order | Trial court: relied on counsel’s presentation; appellant contends record affidavits show perjury and seeks vacatur and sanctions |
| Jurisdiction / sovereign immunity / plea to jurisdiction | Drake: he sued Willing in individual and official capacities seeking declaratory/injunctive relief; sovereign immunity does not bar such relief where constitutional violations or unlawful acts are alleged | Defendants: asserted immunity and challenged jurisdiction as defense to relief and to show inability to prevail | Trial court: did not rule fully on pleads to jurisdiction before vexatious ruling; appellant asserts this procedural failure infected the result |
Key Cases Cited
- Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436 (Tex. 1997) (distinguishes "former" vs. "retired" judges for assignment/objection purposes)
- In re Union Pacific Resources Co., 969 S.W.2d 427 (Tex. 1998) (appellate relief available when judge refuses to remove himself after proper objection)
- In re Perritt, 992 S.W.2d 444 (Tex. 1999) (discusses disqualification rules for former judges)
- McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979) (mandatory duty to request presiding judge to assign another judge to hear recusal motion)
- Wanzer v. Garcia, 299 S.W.3d 821 (Tex. App. 2009) (standard of review for vexatious‑litigant determinations)
- Douglas v. American Title Co., 196 S.W.3d 876 (Tex. App. 2006) (Chapter 11 requirements and evidentiary burden in vexatious‑litigant proceedings)
- Amir‑Sharif v. Quick Trip Corp., 416 S.W.3d 914 (Tex. App. 2013) (plaintiff may offer evidence to show reasonable probability of prevailing when vexatious motion is presented)