567 S.W.3d 462
Tex. App.2019Background
- Paul E. Nunu (appellant) is one of three siblings contesting administration and distribution of their mother’s estate; prior litigation produced a 2016 final judgment disposing of many of Paul’s claims (Nunu I).
- In Nunu I Paul brought multiple claims against his sister Nancy (as independent executrix) and sought removal, forfeiture, and enforcement of a partition agreement; on day three he nonsuited most claims with prejudice, reserving only limited claims.
- While post-judgment administration continued (including appointment of a dependent administrator), Paul filed additional pleadings (the Third Application) seeking to revive claims against Nancy and their brother Charles that had been dismissed with prejudice.
- Nancy and Charles moved to have Paul declared a vexatious litigant and sought (1) a security bond to maintain the current action and (2) a prefiling order under Tex. Civ. Prac. & Rem. Code § 11.101(a) requiring Paul to obtain permission from the local administrative judge before filing new pro se suits.
- The trial court granted the motion, ordered a $15,000 surety bond (which Paul posted), and issued the prefiling order; Paul appealed, challenging the vexatious-litigant finding, the sufficiency of evidence, and application of law-of-the-case.
- The Court of Appeals concluded it lacked jurisdiction to review the security-order portion but held it had interlocutory jurisdiction under § 11.101(c) to review the prefiling order; it affirmed the prefiling-order portion and dismissed the remainder for want of jurisdiction.
Issues
| Issue | Plaintiff's Argument (Paul) | Defendant's Argument (Nancy & Charles) | Held |
|---|---|---|---|
| Whether the trial court abused discretion in declaring Paul a vexatious litigant | No evidence was offered/admitted to support the finding; judicial notice is not evidence | Pleadings, the 2016 final judgment, and transcript excerpts (judicially noticed) show Paul repeatedly attempts to relitigate claims dismissed with prejudice | Affirmed: evidence (judicially noticed documents) supports vexatious-litigant finding |
| Whether statutory prerequisites for a vexatious finding were met under Tex. Civ. Prac. & Rem. Code § 11.054(2) | Statutory elements not satisfied; some allegations concern post-judgment conduct | Paul previously nonsuited the same claims with prejudice; attempts to resurrect same causes of action show no reasonable probability of prevailing | Affirmed: § 11.054(2) requirements satisfied because Paul relitigated finally determined matters |
| Whether the trial court misapplied the law of the case when declaring Paul vexatious | Trial court applied law-of-the-case incorrectly (re: post-judgment claims) | Law of the case and Nunu I preclude reopening claims nonsuited with prejudice; the prefiling order properly applied that law | Overruled: court correctly applied law of the case in vexatious-litigant ruling |
| Whether the appeal may reach both the prefiling order and the security-bond order | Paul appealed entire order including bond/security requirement | Statute § 11.101(c) authorizes interlocutory appeals from prefiling orders but not from security orders under § 11.051; other portions are interlocutory and unappealable | Partially: appellate jurisdiction exists only as to the prefiling order under § 11.101(c); bond/security portion dismissed for lack of jurisdiction |
Key Cases Cited
- In re Estate of Nunu, 542 S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2017) (prior opinion establishing effects of Paul’s nonsuit and scope of remand)
- Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) (nonsuit with prejudice treated as judgment on the merits)
- Chambers v. O’Quinn, 242 S.W.3d 30 (Tex. 2007) (interlocutory appeal principles under statutes permitting appeals)
- Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., 540 S.W.3d 577 (Tex. 2018) (final-judgment requirement for appeals)
- In re Estate of Gaines, 262 S.W.3d 50 (Tex. App.—Houston [14th Dist.] 2008) (appellate courts must determine jurisdiction de novo)