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Cooper v. Bank of New York Mellon

Court of Appeals of Texas, Fifth District, Dallas

May 28, 2019

JAY COOPER, Appellant
v.
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK ASSUCCESSOR IN INTEREST TO JPMORGAN CHASE BANK, ET AL., Appellee

          On Appeal from the County Court at Law No. 6 Collin County, Texas Trial Court Cause No. 006-02636-2018

          Before Chief Justice Burns, Justice Brown, and Justice Nowell

          MEMORANDUM OPINION

          ROBERT D. BURNS, III CHIEF JUSTICE

         Appellant Jay Cooper has been declared a vexatious litigant and is prohibited from filing pro se any new litigation in a court of this State without first obtaining permission from the local administrative judge. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.102(a), 11.103(a). Cooper filed this appeal without first obtaining the required permission. See id. § 11.102(a); see also id. § 11.001(2) (defining "litigation" as "a civil action commenced, maintained, or pending in any state or federal court."); Id. § 11.103(a) (the clerk of a court "may not file a[n] ... appeal, ... presented, pro se, by a vexatious litigant subject to a prefiling order" unless the litigant first obtains permission); Donohue v. Martinez, No. 04-18-00588-CV, 2018 WL 4608240, at *1 (Tex. App.- San Antonio Sept. 26, 2018, no pet.) (mem. op.) ("The statute applies to appeals filed in Texas appellate courts" except for "an appeal from a prefiling order entered under Section 11.101 designating a person a vexatious litigant or a timely filed writ of mandamus under Section 11.102").

         By order dated January 24, 2019, we ordered Cooper to file a copy of the order from the local administrative judge giving permission to file this appeal by February 4, 2019. After granting three extensions, we cautioned Cooper that no further extensions would be granted and that failure to provide the requested documentation by April 1, 2019 would result in dismissal of this appeal without further notice.

         On April 1, 2019, the local administrative judge denied Cooper's request for permission to appeal, and Cooper filed a copy of the written order in this proceeding. On April 2, 2019, Cooper filed an "Emergency Opposed Plea in Abatement" and an "Emergency Opposed Motion for Temporary Stay" in which he asked the Court to abate the appeal and stay the order denying him permission to appeal so that he could seek mandamus relief from the denial of permission to appeal. By order dated April 3, 2019, we denied those motions but confirmed that Cooper was permitted under section 11.102(f) of the civil practice and remedies code to seek mandamus relief from the April 1, 2019 order by filing a petition for writ of mandamus by May 1, 2019. See Tex. Civ. Prac. & Rem. Code Ann. § 11.102(f) (allowing litigant to seek mandamus review of a decision denying permission to appeal not later than the 30th day after the date of the decision). We cautioned Cooper that we would dismiss the appeal for want of jurisdiction if he failed to file a petition for writ of mandamus by May 1, 2019. On April 26, 2019, Cooper filed an "Emergency Motion for Temporary Stay and Abatement" in which Cooper asked the Court to stay the April 1, 2019 order denying permission to appeal and to abate the May 1, 2019 deadline to file the petition for writ of mandamus. We denied that motion on April 29, 2019.

         Cooper thereafter filed a petition for writ of mandamus seeking review of the April 1, 2019 order denying permission to appeal. That original proceeding was docketed as cause number 05- 19-00549-CV. By opinion dated May 22, 2019, this Court denied the petition for writ of mandamus.

         Because the local administrative judge has issued an order denying Cooper permission to file this appeal and this Court denied Cooper's petition for writ of mandamus, we conclude this court does not have jurisdiction over Cooper's attempted appeal and dismiss the appeal for lack of jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 11.1035(b) (the court "shall dismiss the litigation unless the [vexatious litigant subject to a prefiling order] . . . obtains an order from the appropriate local administrative judge described by Section 11.102(a) permitting the filing of the litigation"); see also Moody v. Success Holding, LLC, No. 01-17-00492-CV, 2018 WL 650274, at *2 (Tex. App.-Houston [1st Dist.] Feb. 1, 2018, no pet.) (mem. op.) (dismissing appeal where local administrative judge denied appellant's request to pursue appeal); Tex.R.App.P. 42.3(a), 43.2(f).

         We also dismiss as moot Cooper's motion to review excessiveness of supersedeas bond. We also lift this Court's January 24, 2019 stay of the trial court's October 19, 2018 judgment, of all efforts to enforce that judgment, and of the January 3, 2019 order setting supersedeas bond.

         JUDGMENT

         In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction, appellant's motion to review excessiveness of supersedeas bond is DISMISSED AS MOOT, and this Court's January 24, 2019 stay of the trial court's October 19, 2018 judgment, of all efforts to enforce that judgment, and of the January 3, 2019 order setting supersedeas bond is hereby LIFTED.

         It is ORDERED that each party bear its own ...


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