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In re Wade

Court of Appeals of Texas, Fourteenth District

July 23, 2019

IN RE ALEX MELVIN WADE, JR., Relator ALEX MELVIN WADE, JR., Appellant
v.
BANK OF AMERICA N.A., Appellee

          On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2017-39002

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

          MEMORANDUM OPINION

          FRANCES BOURLIOT JUSTICE.

         Alex Melvin Wade, Jr. filed a petition for mandamus and an appeal complaining of the trial court's order declaring him a vexatious litigant. We consolidated both matters. In his reply brief, Wade raised several issues challenging the trial court's order dismissing his claims against Bank of America N.A. We deny the mandamus proceeding because the trial court's order declaring him a vexatious litigant is an appealable order.[1] We affirm the judgment of the trial court.

         Background

         Wade brought claims against Bank of America relating to two "drafts" that Wade attempted to deposit into a Bank of America account. Wade alleged that in rejecting these drafts, Bank of America failed to handle them "in accordance with banking laws" and caused Wade damages and injury, including confinement in jail for two years for forgery.

         Bank of America filed a motion to dismiss Wade's claims under Texas Rule of Civil Procedure 91a. The trial court signed an interlocutory order granting the motion, dismissing Wade's claims with prejudice, and allowing Bank of America to set for submission its request for attorney's fees.[2] Bank of America then notified the trial court that it would not seek an award of attorney's fees and requested a final order of dismissal. The trial court signed a final order dismissing Wade's claims with prejudice, but the trial court vacated the order three days later. On the same day that it vacated the order dismissing Wade's claims, the trial court also signed an order requiring Wade to appear at a hearing to show cause why the trial court should not declare him a vexatious litigant. Wade filed a motion to reset the hearing and did not attend it. The trial court denied Wade's motion to reset the hearing. The trial court signed an order with extensive findings of fact declaring Wade a vexatious litigant.

         Challenges to Trial Court's Vexatious Litigant Finding

         Wade raises several arguments in his opening brief challenging the trial court's vexatious litigant finding. We construe his arguments as follows: (1) the trial court lacked plenary power and thus did not have jurisdiction to find Wade a vexatious litigant; (2) the trial court abused its discretion in sua sponte finding him a vexatious litigant because a motion seeking such an order had not been timely filed; and (3) the trial court abused its discretion in failing to reset the show cause hearing.

         I. Trial Court's Plenary Power

         Construing Wade's brief liberally as we are required to do, we interpret his argument to be that the trial court lacked plenary power and thus jurisdiction to "raise the vexatious litigant issue sua sponte" because Bank of America did not file a motion seeking such an order and a motion was required to be filed within 90 days after Bank of America filed its answer.[3] See Tex. R. App. P. 38.9. Wade alternatively argues that the trial court could not declare him a vexatious litigant without a timely motion having been filed.[4]

         Wade did not object on these grounds below. Generally, a party may not complain on appeal of an issue he did not raise in the trial court. Tex.R.App.P. 33.1(a). However, a trial court's subject matter jurisdiction is an issue that cannot be waived, and it may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). A vexatious litigant order signed after a trial court's plenary power has expired is void for lack of jurisdiction. In re Florance, 377 S.W.3d 837, 839-40 (Tex. App.-Dallas 2012, no pet.) ("The [vexatious litigant] statute by its terms does not apply to post-judgment proceedings. Rather, a motion must be filed in a pending case."); see also Akinwamide v. Transp. Ins. Co., 499 S.W.3d 511, 520 (Tex. App.-Houston [1st Dist.] 2016, pet. denied) ("Once the trial court's plenary power expires, the court generally lacks jurisdiction to act, and any orders it issues are typically void."). However, the trial court retains plenary power until its judgment becomes final. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) ("The trial court . . . retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered."); cf. Florance, 377 S.W.3d at 840.

         Wade has not cited any authority suggesting that a trial court lacks plenary power if it makes a vexatious litigant finding even though a motion for a vexatious litigant finding has not been timely filed. We have not found any authority supporting this proposition. Regardless, we shall analyze whether the trial court had plenary power to find Wade a vexatious litigant at the time it signed the vexatious litigant order.

         The trial court dismissed Wade's claims and signed an interlocutory order allowing Bank of America to set for submission its request for attorney's fees under Rule 91a. Bank of America subsequently notified the trial court that it would not seek attorney's fees and requested a final order of dismissal. The trial court signed a final order of dismissal on March 17, 2018 but vacated its order three days later. The trial court signed the vexatious litigant order on May 15, 2018. A trial court has plenary power to vacate its judgment within 30 days after the judgment is signed. Tex.R.Civ.P. 329b(d); see also Rush v. Barrios, 56 S.W.3d 88, 98 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) ("A trial court has the inherent authority to change or modify any . . . judgment until the judgment becomes final."). Rule 329b applies to final Rule ...


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