Court of Appeals of Texas, Sixth District, Texarkana
Submitted: December 30, 2019
Appeal from the 258th District Court Polk County, Texas Trial
Court No. CIV32610
Morriss, C.J., Burgess and Stevens, JJ.
E. STEVENS, JUSTICE
his Chapter 14 inmate lawsuit was dismissed for want of
jurisdiction, Michael Kennedy sued Kaycee Jones, the district
court judge who entered the dismissal, the justices of the
Ninth Court of Appeals, the justices of the Texas Supreme
Court, and others for abuse of power, discrimination, false
imprisonment, and other claims. Kennedy "has, for
decades, been a prolific 'writ writer' and a Texas
prison inmate." Kennedy v. Staples, 336 S.W.3d
745, 746 (Tex. App.- Texarkana 2011, no pet.) (footnote
omitted) (finding that Kennedy had filed 253 separate
appellate court proceedings as of 2011). After a June 7,
2019, hearing at which Kennedy appeared, the 258th Judicial
District Court of Polk County, Texas, declared Kennedy a
vexatious litigant and ordered him to furnish security by
July 6, 2019, in the amount of $5, 000.00 to proceed in the
case. The trial court also entered a prefiling order
prohibiting Kennedy from filing any new litigation without
first obtaining permission from a local administrative judge.
interlocutory appeal, Kennedy raises several issues unrelated
to the vexatious litigant finding. For reasons shown below, we
only have jurisdiction to address the trial court's
prefiling order. As a result, we dismiss all of Kennedy's
arguments on appeal that do not relate to the prefiling order
for want of jurisdiction. We also find that Kennedy raises no
cognizable complaint about the prefiling order, which we
if a trial court determines that a plaintiff is a vexatious
litigant, it "shall order the plaintiff to furnish
security for the benefit of the moving defendant." Tex.
Civ. Prac. & Rem. Code Ann. § 11.055. "There is
no interlocutory appeal available from an order declaring a
plaintiff to be a vexatious litigant and requiring him to
furnish security." Florence v. Rollings, No.
02-17-00313-CV, 2018 WL 4140458, at *2 (Tex. App.-Fort Worth
Aug. 30, 2018, no pet.) (mem. op.) (citing Restrepo v.
Alliance Riggers & Constructors, Ltd., No.
08-15-00011-CV, 2015 WL 999950, at *1 (Tex. App.-El Paso Mar.
4, 2015, no pet.) (mem. op.); Lagaite v. Boland, No.
07-12-0422-CV, 2012 WL 6213259, at *1-2 (Tex. App.-Amarillo
Dec. 13, 2012, no pet.) (mem. op.); Douglas v. Honorable
Tex. Bd. of Pardons & Paroles, No. 14-11-00527-CV,
2012 WL 1154367, at *1 (Tex. App.-Houston [14th Dist.] Apr.
5, 2012, no pet.) (mem. op.); Almanza v. Keller, 345
S.W.3d 442, 443 (Tex. App.-Waco 2011, no pet.)). To the
extent Kennedy's appeal can be construed as relating to
the Section 11.055 order, we dismiss that portion of the
appeal for want of jurisdiction.
there is no final judgment in this case. "This
Court's appellate jurisdiction is limited to appeals from
final judgments and such interlocutory orders as the
legislature has deemed appealable." Ceasar v. Wells
Fargo Bank, N.A., No. 09-19-00374-CV, 2019 WL 6606792,
at *1 (Tex. App.-Beaumont Dec. 5, 2019, no pet. h.) (per
curiam) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 51.014; City of Houston v. Kilburn, 849
S.W.2d 810, 811 (Tex. 1993) (per curiam)); see Tex.
Civ. Prac. & Rem. Code Ann. § 51.012; Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Several
of Kennedy's complaints raise issues that are either
unrelated to the trial court's prefiling order, go to the
merits of the case, have not been decided by the trial court,
or constitute an impermissible collateral attack on his final
conviction. We dismiss these issues for want of jurisdiction
only issue before us within our jurisdiction is Kennedy's
prefiling order. A court may enter an order prohibiting a
person from filing new litigation in a court in this state if
the person is a vexatious litigant. Tex. Civ. Prac. & Rem.
Code Ann. § 11.101(a). "Section 11.101(c) expressly
permits an appeal from a prefiling order: '[a] litigant
may appeal from a prefiling order entered under [section
11.101(a)] designating the person a vexatious litigant."
Florence, 2018 WL 4140458, at *3 (alterations in
orginal) (quoting Tex. Civ. Prac. & Rem. Code Ann. §
11.101(c) (citing Tex. Civ. Prac. & Rem. Code Ann. §
11.103(d) ("permitting appellate-court clerk to file an
appeal from a prefiling order entered under section
11.101")). The Beaumont Court of Appeals has interpreted
Section 11.101(c) as providing for an interlocutory appeal of
the prefiling order. Jones v. Carter, No.
09-16-00081-CV, 2016 WL 2941412, at *1 (Tex. App.-Beaumont
May 19, 2016, no pet.) (mem. op.).
trial court's determination that appellant is a vexatious
litigant is reviewed under an abuse of discretion
standard." Newby v. Quarterman, No.
09-08-00385-CV, 2009 WL 3763790, at *2 (Tex. App.-Beaumont
Nov. 12, 2009, no pet.) (mem. op.) (citing Douglas v. Am.
Title Co., 196 S.W.3d 876, 879 (Tex. App.-Houston [1st
Dist.] 2006, no pet.)). "The trial court abuses its
discretion by acting arbitrarily, unreasonably, or without
consideration of guiding principles." Id.
(quoting Douglas, 196 S.W.3d at 879). "When the
trial court makes no formal findings of fact or conclusions
of law (as is the case here), we must presume the trial court
made all findings necessary to support its judgment."
Id. (citing Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam)). "In such situations,
the trial court's ruling must not be disturbed if 'it
can be upheld on any legal theory that finds support in the
evidence.'" Id. (quoting Worford,
801 S.W.2d at 109).
trial court's order was based on evidence presented by
the Appellees showing that all prerequisites to declaring a
person a vexatious litigant had been met. See Tex.
Civ. Prac. & Rem. Code Ann. § 11.054. While Kennedy
does not specifically mention the prefiling order, his brief
states that he "was improperly under vexatious."
Even so, Kennedy makes no argument challenging the
Appellees' evidence showing that the Section 11.054
requirements were met and does not otherwise argue that the
trial court abused its discretion in finding him to be a
vexatious litigant. Because there is no "colorable
argument regarding the Court's order that he be declared
vexatious," the Appellees argue that Kennedy has waived
the issue as a result of inadequate briefing. We agree.
we liberally construe pro se briefs, litigants who represent
themselves are held to the same standards as litigants
represented by counsel." Hollis v. Acclaim Physician
Grp., Inc., No. 02-19-00062-CV, 2019 WL 3334617, at *3
(Tex. App.-Fort Worth July 25, 2019, no pet.) (per curiam)
(mem. op.) (citing Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184-85 (Tex. 1978)). "To hold otherwise
would give pro se litigants an unfair advantage over
litigants with an attorney." Id.
Texas Rules of Appellate Procedure require that a brief
'contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the
record.'" Id. (citing Tex.R.App.P. 38.1(i);
ERI Consulting Eng'rs, Inc. v. Swinnea, 318
S.W.3d 867, 880 (Tex. 2010) ("recognizing that
"[t]he Texas Rules of Appellate Procedure require
adequate briefing")). "The appellate court has no
duty to brief issues for an appellant." Id.
(citing Huey v. Huey, 200 S.W.3d 851, 854 (Tex.
App.-Dallas 2006, no pet.)). Even on interlocutory appeal
from a prefiling order, "[i]n the absence of appropriate
record citations or a substantive analysis, a brief does not
present an adequate appellate issue." Id.
(citing Fredonia State Bank v. Gen. Am. Life Ins.
Co., 881 S.W.2d 279, 284-85 (Tex. 1994)); see
Redmond v. Kovar, No. 09-17-00099-CV, 2018 WL 651272, at
*3 (Tex. App.-Beaumont Feb. 1, 2018, no pet.) (mem. op.).
Briefing requirements are not met "by merely uttering
brief conclusory statements, unsupported by legal
citations." Hollis, 2019 WL 3334617, at *3
(quoting Tesoro Petroleum Corp. v. Nabors Drilling USA,
Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.]
2002, pet. denied)). We find that Kennedy's mere mention
of the vexatious litigant finding as "improper"
presents nothing for appellate review. See Redmond,
2018 WL 651272, at *3.
affirm the trial court's prefiling order entered under
Section 11.101 of the Texas Civil Practice and Remedies Code.
We dismiss the ...