Darrell J. Harper v. State

ACCEPTED 03-15-00405-CV 8231515 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 4:52:27 PM JEFFREY D. KYLE CLERK No. 03-15-00405-CV In the Court of Appeals FILED IN 3rd COURT OF APPEALS for the Third District of Texas AUSTIN, TEXAS At Austin, Texas 12/14/2015 4:52:27 PM JEFFREY D. KYLE ___________________________________ Clerk DARRELL J. HARPER, Appellant, v. THE STATE OF TEXAS, Appellees. ____________________________________ On Direct Appeal from the 98th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14004224 ____________________________________ APPELLEE THE STATE OF TEXAS’ BRIEF ____________________________________ KEN PAXTON DANIEL C. NEUHOFF* Attorney General of Texas Assistant Attorney General CHARLES E. ROY OFFICE OF THE ATTORNEY First Assistant Attorney General GENERAL P.O. Box 12548 JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General Tel: (512) 463-2080 for Civil Litigation Fax: (512) 936-2109 KAREN D. MATLOCK Counsel for Appellee Chief, Law Enforcement *Attorney-In-Charge Defense Division TABLE OF CONTENTS STATEMENT OF THE CASE .................................................................................. 1 STATEMENT REGARDING ORAL ARGUMENT ............................................... 2 ISSUES PRESENTED...............................................................................................3 STATEMENT OF FACTS ........................................................................................4 SUMMARY OF THE ARGUMENT ........................................................................ 5 ARGUMENT .............................................................................................................6 A. Standard of Review ....................................................................................6 B. Harper is a Vexatious Litigant.................................................................... 6 1. Criteria for Finding a Litigant Vexatious......................................... 7 2. The Trial Court did not Abuse its Discretion when it found there was no Reasonable Probability that Harper will Prevail in the Current Litigation. ............................................................................8 3. The Trial Court did not abuse its discretion when it Found Harper Exceeded the Litigation Requirements of Chapter 11. .................. 10 4. The Trial Court did not Abuse its Discretion when it Dismissed Harper’s Claims after he failed to furnish the security. ................ 11 PRAYER ..................................................................................................................12 NOTICE OF ELECTRONIC FILING .....................................................................14 CERTIFICATE OF SERVICE ................................................................................14 CERTIFICATE OF COMPLIANCE .......................................................................15 TABLE OF AUTHORITIES Cases BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002) ...............6 Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). ..............................................6 City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ) ..........................................................................................................9 City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995).................................8 Cronen v. Ray, 2006 WL 2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006, pet. Denied)(mem. op.) ...........................................................................................9 Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex. 1980) .......................................................................................................................8 Douglas v. American Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ................................................................................................6 Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.) ..........6, 10 Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex. 1976) ........................8, 9 Nebout v. City of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999) ..................8 Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994) ..............8, 9 ii Statutes TEX. CIV. PRAC. & REM. CODE § 11.051................................................................6, 7 TEX. CIV. PRAC. & REM. CODE § 11.052....................................................................7 TEX. CIV. PRAC. & REM. CODE § 11.054......................................................... 7, 8, 11 TEX. CIV. PRAC. & REM. CODE § 11.055....................................................................7 TEX. CIV. PRAC. & REM. CODE § 11.056....................................................................7 TEX. CIV. PRAC. & REM. CODE § 11.057..................................................................12 TEX. CIV. PRAC. & REM. CODE § 11.101....................................................................7 TEX. CIV. PRAC. & REM. CODE § 11.102....................................................................7 TEX. CIV. PRAC. & REM. CODE § 101.021..................................................................9 TEX. CIV. PRAC. & REM. CODE § 101.022..................................................................9 TEX. CIV. PRAC. & REM. CODE § 101.057..................................................................9 iii STATEMENT OF THE CASE On October 13, 2014, Plaintiff-Appellant Darrell J. Harper (“Harper”), an offender currently incarcerated in the Texas Department of Criminal Justice (“TDCJ”) Ellis Unit, filed suit for damages in the amount of $3,000,000 against the State of Texas for harassment, entrapment, false incarceration, false arrest and malicious prosecution. C.R. at 4-5. On November 18, 2014, Texas filed its motion to have Harper declared a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code. C.R. at 19. On January 20, 2015, the district court held a hearing and granted Texas’ motion to have Harper declared a vexatious litigant and ordered him to furnish security in the amount of $2500 by March 2, 2015. C.R. at 86. Harper failed to furnish the required security on time. On May 29, 2015, the district court entered its Final Judgment that Harper was determined to be vexatious and failed to furnish the required security and dismissed his case as to all claims and Defendants. C.R. at 254. 1 STATEMENT REGARDING ORAL ARGUMENT The defendant-appellee, the State of Texas, does not request oral argument before the Court. 2 ISSUES PRESENTED Whether the district court abused its discretion when it concluded that Harper is a vexatious litigant when, within the past seven years, he commenced, prosecuted, or maintained at least nine litigations as a pro se litigant, not in small claims court, that were finally determined adversely to him? Whether the district court abused its discretion when it concluded that Harper is a vexatious litigant when there is not a reasonable probability that he would prevail in the current litigation against the defendant? 3 STATEMENT OF FACTS Harper was incarcerated for the offense of terroristic threat. C.R. 4-5 & 19. Since Mar. 1, 2011, Mr. Harper has commenced, prosecuted or maintained 12 separate civil lawsuits. Nine of these cases have been finally determined adversely to Mr. Harper. On Aug. 20, 2012, Harper v. State of Texas, No. D-1-GN-11-000623, was dismissed for want of prosecution. C.R. 31. On Dec. 19, 2012, Harper v. State of Texas, No. D-1-GN-12-002702, was dismissed with prejudice. C.R. 34. On Oct. 8, 2013, Harper v. State of Texas, et al., No. D-1-GN-12-003417, was dismissed with prejudice. C.R. 36-37. On Aug. 8, 2014, Harper v. State of Texas, et al., No. D-1- GN-12-003624, was dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014, Harper v. Grizzard, No. D-1-GN-12-003656, was dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014, Harper v. City of Houston, No. D-1-GN-12-003735, was dismissed for want of prosecution. C.R. 45. On Aug. 8, 2014, Harper v. Knutson, No. D-1-GN-12-003820, was dismissed for want of prosecution. C.R. 45. On Aug. 25, 2014, Harper v. City of Austin, No. D-1-GN-13-001126, was dismissed for want of prosecution. C.R. 55. On Nov. 14, 2014, Harper v. Tex. Comm’n on Jail Standards, No. D-1-GN-14-001263, was dismissed without prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. C.R. 59. A total of nine cases have been determined adversely to Harper. 4 SUMMARY OF THE ARGUMENT The trial court did not abuse its discretion because Harper is a vexatious litigant and was properly dismissed by the district court after he failed to furnish security. Harper’s claims have no reasonable probability to prevail because he cannot overcome the State of Texas’ entitlement to sovereign immunity. Furthermore, Harper exceeds the requisite number of filings in the past seven years to qualify as a vexatious litigant. 5 ARGUMENT A. Standard of Review. A trial court’s determination that a Plaintiff is a vexatious litigant is reviewed under an abuse of discretion standard. Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.); Douglas v. American Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The Court can only find an abuse of discretion if the trial court “acts in an arbitrary or capricious manner without reference to any guiding rules or principles.” Harris, 204 S.W.3d at 905 (quoting Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). “The court’s decision must be ‘so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.’” Id. (quoting BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex. 2002)). Thus the Court must apply these principles when determining whether the trial court’s application of the vexatious litigant statute constitutes an abuse of discretion. B. Harper is a Vexatious Litigant. The trial court found Harper to be a vexatious litigant and ordered him to furnish security in the amount of $2500 by March 2, 2015 to proceed in the case. C.R. 86. Chapter 11 provides that a defendant may move the court for an order determining that a plaintiff is vexatious and requiring the plaintiff to furnish security for the defendant’s benefit to proceed with his case. TEX. CIV. PRAC. & REM. CODE 6 § 11.051. On the filing of a motion under § 11.051, the litigation is stayed until after the motion’s disposition. TEX. CIV. PRAC. & REM. CODE § 11.052. If, after hearing the evidence on the motion, the Court grants the motion, it “shall order the plaintiff to furnish security for the benefit of the moving defendant” to be paid by a date determined by the Court. TEX. CIV. PRAC. & REM. CODE § 11.055. If the plaintiff fails to pay the security within the court’s deadline, the court shall dismiss the litigation. TEX. CIV. PRAC. & REM. CODE § 11.056 (emphasis added). The word “shall” shows that this is not discretionary. This is a mandatory requirement. Additionally, a court may, sua sponte or on any party’s motion, issue an order prohibiting a person from filing additional pro se litigation in Texas unless the person first obtains permission to sue from a local administrative judge. TEX. CIV. PRAC. & REM. CODE § 11.101. The administrative judge screens subsequent litigations to ensure each: (1) has merit; and (2) was not filed for harassment or delay. TEX. CIV. PRAC. & REM. CODE § 11.102. The administrative judge has discretion regarding whether to require the furnishing of security for the defendant’s benefit. TEX. CIV. PRAC. & REM. CODE § 11.102(e). 1. Criteria for Finding a Litigant Vexatious Under section 11.054, a court may find a plaintiff a vexatious litigant if the defendant shows there is no reasonable probability the plaintiff will prevail in the litigation against the defendant, and that the plaintiff, in the seven preceding years, 7 “has commenced, prosecuted, or maintained [pro se] at least five litigations other than in a small claims court” that were: (1) finally determined against him; (2) are permitted to remain pending at least two years without having been brought to trial; or (3) “determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure.” TEX. CIV. PRAC. & REM. CODE § 11.054(1). The claims may be filed in either state or federal court. 2. The Trial Court did not Abuse its Discretion when it found there was no Reasonable Probability that Harper will Prevail in the Current Litigation. The trial court did not abuse its discretion when it found that Harper failed to overcome the State of Texas’s protection from suit by sovereign immunity. It is well settled that sovereign immunity precludes suit against the State unless the Legislature creates a waiver through “clear and unambiguous language.” See City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex. 1980). The State of Texas cannot be held liable for causes of action brought under Texas common law unless the Texas Legislature has expressly waived governmental immunity. Nebout v. City of Hitchcock, 71 F. Supp. 2d 702, 707 (S.D. Tex. 1999)(holding that a Texas municipality cannot be held liable for causes of action brought under Texas common law unless the legislature has expressly waived governmental immunity)(citing Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994)). “This immunity has only been waived as to claims brought pursuant to the Texas Tort 8 Claims Act.” Id. (citing Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298-99 (Tex. 1976)). The Texas Tort Claims Act (TTCA) creates a limited waiver of sovereign immunity for certain damages: (1) arising from the operation of a motor-driven vehicle or motor-driven equipment; (2) those caused by a condition or use of tangible personal or real property; or (3) certain claims arising from premises defects. TEX. CIV. PRAC. & REM. CODE § 101.021 & 101.022. However, the TTCA’s waiver of sovereign immunity does not apply to a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” TEX. CIV. PRAC. & REM. CODE § 101.057. This is an express non-waiver of sovereign immunity. False arrest, malicious prosecution and false imprisonment are intentional torts and the Tort Claims Act does not waive immunity for intentional torts. City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ)(Holding plaintiff’s claims fail because most of plaintiff’s allegations are for intentional torts—false arrest, malicious prosecution, defamation and the Tort Claims Act does not waive immunity for intentional torts); Cronen v. Ray, 2006 WL 2547989, at *4 (Tex. App.—Houston [14th Dist.] 2006, pet. Denied)(mem. op.)(Holding that appellant sued appellees for false arrest and false imprisonment. These constitute intentional torts and therefore are barred.). Harper sued the state of Texas for harassment, entrapment, false incarceration (imprisonment), false arrest, and malicious prosecution. Accordingly, Harper’s 9 claims against the State of Texas for malicious prosecution, false arrest and false imprisonment are barred insofar as they are intentional torts and the State of Texas does not waive sovereign immunity for intentional torts. The trial court did not abuse its discretion by ruling so. Harper’s claims that the State of Texas is liable for harassment and entrapment are not covered by the Tort Claims Act’s limited waiver of immunity. Harassment and entrapment do not fall into one of the three claims giving rise to the limited waiver of sovereign immunity. They do not arise from the operation or use of a motor vehicle. They are not caused by a condition or use of tangible personal or real property. Finally, they are not claims that arise from a premises defect. Harper’s claims against the State of Texas for harassment and entrapment are barred by the doctrine of sovereign immunity, as the trial court correctly found. The trial court referred to these rules and guidelines when making its determination that Harper had not reasonable probability of success in this litigation. The trial court did not act “in an arbitrary or capricious manner without reference to any guiding rules or principles.” Harris, 204 S.W.3d at 905. To the contrary, the trial court followed both Chapter 11 and Chapter 101 of the Texas Civil Practice and Remedies Code as well as relevant case law in making its determination. 3. The Trial Court did not abuse its discretion when it Found Harper Exceeded the Litigation Requirements of Chapter 11. 10 The trial court found that, within the seven years before the State of Texas filed its motion to declare Harper a vexatious litigant, Harper filed at least nine litigations, not in small claims court that meet the criteria of Chapter 11. Harper only needed to commence, prosecute, or maintain five litigations as a pro se litigant other than in a small claims court that were finally determined adversely to him. TEX. CIV. PRAC. & REM. CODE. §11.054(1)(A). All of Mr. Harper’s nine previous litigations were dismissed and, as such, were determined adversely to Mr. Harper. C.R. 31, 34, 36-37, 45, 55, & 59. In order to be determined a vexatious litigant, Mr. Harper need only have filed five such claims in the past seven years, which criteria he has exceeded. See Supra Appellee’s Brief at 4. Accordingly, the trial court determined Harper qualifies as a vexatious litigant under section 11.054(1). The State of Texas sent a notice of hearing and an amended notice of hearing to Harper, informing him that a hearing on the motion to declare him vexatious would be held at 2:00 p.m. on Tuesday, January 20, 2014. C.R. 61-62, 68-69. The trial court also sent a letter informing the warden at Harper’s unit of assignment to make Harper available to appear at the hearing by phone on the date of the hearing. C.R. 80. The trial court held the hearing and declared Harper to a vexatious litigant pursuant to section 11.054 of the Texas Civil Practice and Remedies Code and ordered him to furnish security of $2500 by March 2, 2015. This was not an abuse of discretion. 4. The Trial Court did not Abuse its Discretion when it Dismissed Harper’s Claims after he failed to furnish the security. 11 The trial court did not abuse its discretion when, pursuant to section 11.057 of the Texas Civil Practice and Remedies Code they dismissed Harper’s litigation after he failed to furnish security by March 2, 2015. “The Court shall dismiss a litigation as to a moving defendant if a plaintiff ordered to furnish security does not furnish the security within the time set by the order.” Tex. Civ. Prac. & Rem. Code § 11.057. This is not discretionary. If a plaintiff does not furnish the security the case will be dismissed. On May 29, 2015, more than two months after the court required Harper to furnish security and he did not do so, the court dismissed his case. C.R. 254. The trial court did not abuse its discretion when it dismissed Harper’s case because it did not have discretion to do so, the outcome was statutorily mandated. PRAYER Defendant State of Texas requests the Court affirm the decision of the court below in declaring Harper to be a vexatious litigant and dismissing his case when he failed to furnish the required security. Date: December 14, 2015 Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General 12 JAMES E. DAVIS Deputy Attorney General for Civil Litigation KAREN D. MATLOCK Assistant Attorney General Chief, Law Enforcement Defense Division /s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General Attorney-in-Charge Texas Bar No. 24088123 Law Enforcement Defense Division P. O. Box 12548, Capitol Station Austin TX 78711 (512) 463-2080/Fax (512) 936-2109 daniel.neuhoff@texasattorneygeneral.gov ATTORNEYS FOR APPELLEE STATE OF TEXAS 13 NOTICE OF ELECTRONIC FILING I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, do hereby certify that I have electronically submitted for filing, a true and correct copy of the above and foregoing Brief in accordance with the electronic filing system for the Third Court of Appeals on this the 14th day of December, 2015. /s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General CERTIFICATE OF SERVICE I, DANIEL C. NEUHOFF, Assistant Attorney General of Texas, certify that a true and correct copy of the above and foregoing APELLEE’S BRIEF has been served by placing it in the United States Mail, postage prepaid, on December 14, 2015, addressed to: Darrell J. Harper, No.1957729 TDCJ - Ellis Unit 1697 FM 980 Huntsville, TX 77343 Plaintiff Pro Se /s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General 14 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned certifies this brief complies with the type-volume limitations of Texas Rule of Appellate Procedure 9.4. 1. Exclusive of the exempted portions in Texas Rule of Appellate Procedure 9.4(i)(1, this brief contains 2,046 words, including headings and footnotes. 2. This brief has been prepared in proportionally spaced typeface using: Microsoft Word 2010 in Times New Roman, size 14 for text. 3. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Texas Rule of Appellate Procedure 9.4 may result in the court’s striking the brief and imposing sanctions against the person signing the brief. /s/ Daniel C. Neuhoff DANIEL C. NEUHOFF Assistant Attorney General 15 No. 03-15-00405-CV In the Court of Appeals for the Third District of Texas At Austin, Texas ___________________________________ DARRELL J. HARPER, Appellant, v. THE STATE OF TEXAS, Appellees. ____________________________________ On Direct Appeal from the 98th Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-14004224 ____________________________________ APPELLEE THE STATE OF TEXAS’ BRIEF ____________________________________ APPENDIX TABLE OF CONTENTS Exhibit A Order dated Jan. 20, 2015 Exhibit B Final Judgment dated May 29, 2015 Exhibit C Tx. Civ. Prac. & Rem. §11.051 Exhibit D Tx. Civ. Prac. & Rem. §11.052 Exhibit E Tx. Civ. Prac. & Rem. §11.054 Exhibit F Tx. Civ. Prac. & Rem. §11.055 Exhibit G Tx. Civ. Prac. & Rem. §11.056 Exhibit H Tx. Civ. Prac. & Rem. §11.057 Exhibit I Tx. Civ. Prac. & Rem. §11.101 Exhibit J Tx. Civ. Prac. & Rem. §11.102 Exhibit K Tx. Civ. Prac. & Rem. §101.021 Exhibit L Tx. Civ. Prac. & Rem. §101.022 Exhibit M Tx. Civ. Prac. & Rem. §101.057 2