### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00198
- CV

Madeleine Connor, Appellant

v. Douglas Hooks, Appellee

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 005130, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Mad elein e Connor , a l a w yer acting pro se, 1 appeals from an order granting Douglas Hooks ’ s motion and determining that Connor is a vexatiou s litigant under Ch apter 11 of the Texas Civil Practi ce and Remedi es Code (Chapter 1 1 ). See generally Tex. Civ. Prac. & Rem. Code §§ 11.001

– .104 ; see id. § 11.101(c) (providing for appeal). Under Chapter 11, Hooks b ore the burden to show that there is not a “ reasonable probability ” Connor will pre vail in her Rule 202 petition for deposi t ion against him and that Connor met one of thre e other statutory criteria to be a vexat ious litigant. See id. § 11.054(1)

– (3) (describing three alternative criteria).
Because the trial court did not abuse its discretion in determining that Hoo k s met thi s statutory burden and because Connor ’ s other arguments are unavail ing , we affirm

.

1 After the parties filed their appellate briefing , Connor retained counsel , who filed a notice of appearance in this Court

.2 BACKGROUND In Sept ember 2018, Connor petitioned the trial court for a Rule 202 presuit deposition of “Douglas Hooks, Elizabeth Hooks, and Jane /John Doe 1

- 16 ” for “an antic i pate d de f amation per se suit

. ” See Tex. R. Civ. P. 202

. 1 (permitting pet ition for order authorizing deposition for use in anticipated suit or to investigate potential claim or suit). Connor ’ s Rule 202 petition relied on the follo wing alleged d e famatory p osting o n AVVO.com 2 that s he discover ed after “random ly googl [ing] hersel f ” on April 14 :

Hooks responded by fil ing a motion for a n order d etermin ing Connor a vexatious litigant and requesting secu rity (Chapter 11 Motion) , s e e Tex. Civ. Prac. & Rem

. Co de § 11.051 , and an or i ginal answer subject to th e Ch apte r 11 M otion

. Hooks primarily ar gued that the trial court should determine t hat Connor is a vexatious litigant under Section 11.054 ’s third criteri on because “Con n or has been deemed a vexat ious lit ig ant ” by United States District Jud ge Pit man

2 Conno r desc ribes AVVO .com as a website “ akin to YELP for attorne y s. ”3

of the W estern Dist rict of Texas in Connor v. Stewart , No. 1:17

- CV

- 827

- RP, 2018 WL 41 69150,
at *2

– 3 (W.D. Tex. Aug. 30, 2018) , a ff ’ d per curiam , 770 F

. App ’ x 244 (5th Cir. 201 9) (mem.) , and th a t case dealt with “ similar ” de famatory statements , s ee Tex. Civ. Prac. & Rem. Cod e § 11.054(3) , as admitted by Con nor in her Rule 202 petition

. Hooks also filed a supplement to his motion provid ing updates on recent cases filed by Connor. I n January 2 01 9, the trial court
h eard Hooks ’ s Chapter 11 M otion. See id. § 11.05 3

.

The day after the hearing, Connor filed a nonsuit with prejudice of her Rule 202 suit

. Connor also filed a supplemental brief and evidence

— permit ted by oral le ave of the trial

c o urt at the hearing

— a ttac h ing a notice of appeal to the Fifth Ci rcuit . Connor argued that Judge Pit man ’ s order was not final as she had app ealed th e order in October 2018 and that the order

“ did not involve the same or su b stantially similar facts

— as there is no mention of the AVV O review , ” the “ partie s are not the sa me, ” an d “ the claims are entirely different. ” Connor also filed

a “ Suggestion of Mootn ess ”

— lat er raising the same arguments in a p lea to the jurisdiction , whic h the Court denied

— claiming that h er Rule 202 s uit is no w moot because she had f iled a

“ true c au se of action ” against Hooks and nonsuited her Rule 202 suit

.

The next day , Hooks filed a second supplement to his motion , asserting that becau se Co nnor ha d nonsuited with prej u dice her Rule 202 pe tition , “ she would n ot prevail in this partic ular lawsuit. ” Connor responded , arguing that Judge Pit man ’ s “ order does not expressly declar e [Connor] to be a v exatious litigant ” because “ t h e language is just not there ” ; tha t case law requires “ a pr ec ise fo rmer ‘ declaration ’ o f a ‘ vexatious litigant, ’ even if the order were a final order, w hich it is not ” ; and that “ [t]here is simply not hing in [ Judge Pi tman ’ s] order about the Hookses, or t h eir illegal AVVO review. ” Connor a l so raised facial and as a pplied consti tutional chall enge s based on her right to petition. See U.S. Const. amend. I ; Tex. Const.4

a rt. I, § 27. Later that same day, t he trial court signed an order determining Connor a v e xatious litigant under Chapter 11 a n d pro hi b it ing C onnor from filing any n ew liti gation without the permission of the local a dministrative judge

. See Tex. Civ. Prac. & Rem . Code § § 11.101

– .10 2.
T he trial court expressly f o und that “ Co nnor wa s declared a vexatious litig a nt ” by Judge Pit man and concluded that because Conno r has nonsuited her case with prejudice “ security is no longer
necessary and will be dismissed as moot. ” Connor ap peal s from this order. See id. § 11.101(c ) ( “ A litigant may app eal from a prefi ling ord e r e nt ered under Subsection (a) designating the
perso n a ve xatious litiga nt. ” ).

Connor then requested findings of fact and conclusion s of law, which the trial court entered

. As relevant here , the trial court foun d that Connor was d eclar e d a v exatious litigant by Judge Pi tman; fou nd that the fe deral case b efore Judge Pi tman, among other cases,

“ are b ased on the same or substantially similar facts, transition, or occurrence as exist in the
in s tant case ” ; concluded that Connor ’ s nonsuit wit h pr ejudice “ confirm[e d ] there was no reasonable probab ility that she would prevail in t he li tigatio n ” against Hooks; and found that

“ Connor is determi ned a vexatious litigan t as defined by the statute. ” Con n or filed a motion for new trial, which was over r u le d as a matter of law.

A PPLICA BLE LAW AND STANDARD OF REVIEW
In C hapter 11 , “ the legi slature s truck a bal ance between Texans ’ right of access to their courts and the pu blic int er est in protecting defend a nts from those wh o ab use our civil justice s yst e m . ” Leonard v. Abbott , 171 S.W.3d 451, 455 (Tex. App.

— Austin 2005, p et. den ied)

. Chapter 11 provides that a defendant in “ a litigati on in this st ate ” may move for an order determinin g that the plaintiff is a ve x a tious litigant

. Tex . Civ. Prac. & Rem. C ode5

§ 1 1. 051; see id. § 11.001 (2) (defining “ Litigation ” to mean “ a ci vil act ion commenced, maintained, or pending in any state or federal court ” ) , (5) (defining “ Plainti ff ” to mea n “ an individual who commenc es or maintains a li tigatio n pro se ” )

. After a hea r ing o n the evidence ,

“ [ a ] court may find a plaintiff a vexatious l itig ant if t he defend ant shows, ” as re levant here :

th at there is not a reasonable probability that the plaintif f will prevail in the l itigation a g ainst the defend ant a nd that

. . . (3) t he p laint if f has previously been decl ared to be a vexatious litigant b y a sta te or federal court in an action o r pr o ce eding based on the same or substantially similar facts, transition , or occurrence. 3

Id. § 11.054

. We review a t rial court ’ s determination th a t a plaintiff is a vexati ous litigant for an abuse of discretion

. Le onar d , 171 S .W.3d a t 459. “ However, because a trial court may exercise its discretion to declar e a party a vexatious litigant only if it first ma kes prescribed statutory

e v id e ntiary findings, we also review the trial court ’ s subsidiary findings under [ C]hapte r 11 for legal and factual sufficienc y . ” See id. A legal sufficiency challenge fails “ if there is more than a

sc in ti lla of ev i dence to suppo rt the finding , ” and a fac t ua l sufficiency chal lenge fa ils unless the

“ ruling is so contrary to the overwhe lming w eight of the e v idence as to be clearly wrong and manifestly unjust. ” Id.

DISCUSSION

Connor raises five issues on appeal. F i rst, Connor cl aims that the trial court abuse d i t s discretion because ther e is legally and factually in suf ficient evi dence to support any of th e thr e e statutory criteria enu mera ted in Section 11.054 to declare a plaintiff a vexatious litig ant

.

3 As noted by our si st er court, “ A lthough t he leg islatu re referred to ‘ transi tion, or occurrenc e, ’ the legisla ture may have meant ‘ tra nsaction, or occurre nce, ’ a pa iring fo und in ma n y other rules and statute s. ” Jones v. An derson , No

. 14

- 16

- 00727

- CV, 2018 WL 2012407, at *3 n.1 (Tex. App.

— Houston [1 4th Di st.] Ma y 1, 2018, pet. denie d) (mem

. op.).6

Seco n d, Connor argues that the trial court e rr e d in f ailing to issue a finding o f fact or con clusion of law that “ there is not a reasonab le proba bility th at the pla intiff will prevail in the li tigation against the defendant, ” as required by Section 11.054. Th i rd, Connor challenges the jurisdiction of t h e trial court to make a vexatious litigant determination when the case wa s mooted by
Con nor ’ s no nsuit. F ou rth, Connor argues that Chapter 11 does not apply to a Rule 202 petition. Finally, Connor challenges Ch a pter 11 as unconstitut ional on its face a n d as applied. We begin with Connor ’ s th reshold third and fourth issues before turning to her issu es on the merits

.
Threshold Issues

In h er third and fourth issues, Connor claims that the trial court lost juris d iction

over her R ule 2 02 proceeding onc e s h e filed her nonsuit and that Chapter 11 does not apply to Rule 202 proceedings

. “ Under T exas law, parties have an absolute right to nonsuit their own claims for relief at any time during the litigation until the y have introduced al l e vidence other tha n r e b uttal evidence a t trial. ” Villafani v. Trejo , 251 S.W .3d 466, 46 8

– 6 9 (Tex. 2008) (citin g Tex. R. Civ. P. 162). “ If a claim is timely nonsu ited, the controversy as to that claim is extingui shed, the merits become m oot, and jurisdicti on as to the clai m i s los t. ” City of Dallas

v. Albe rt , 354 S.W.3d 368, 375 (Te x. 2011)

. “ But a nonsuit is no t allo wed to preju dice the right of an adverse party to be heard on a pending claim for affirmative relief. ” Id. ; se e T ex. R. Civ. P. 162 ( providing that dismissa l “ s h all not prejudice the right of an adverse party to be heard on a pending claim for affir mative re lief ” ). Connor argues that “ Rule 202 does not afford a respondent a right to seek

‘ affirmative relief ’ ” un der Ch apt e r 11 because “ Chapter 11 does not ap ply t o R ule 202 pre

- suit investig ations. ” We disagree. Chapter 11 permits a defendant to fi le a moti on for an order7

determining plaintiff a vexatious litigant “ [i ]n a litigation in this state. ” Tex. Civ. Prac. & Rem. Code § 1 1.0 51

. Cha p ter 11 defines “ Lit i gation ” as “ a civil action commenced , maintained, or pending in any state or federal cour t. ” Id. § 11.001( 2). The Code does not define the term “ c ivil action

. ” However, Black ’ s L aw D ictionary defin es “ c ivil a ction ” as “ [a]n action br ought to enforce , r e dr ess, or p rotect a priva te or civil right ; a noncriminal litigation ” in a subentry to

“ a ction , ” w hich is d efined as “ [a] civil or criminal judicial proceeding. ” Action , Black ’ s Law Dictionary (11th ed. 2019) ; see Beeman v. Livin g st on , 468 S.W.3d 534, 539 ( Tex. 2015) ( “ W e often look to dictionary definitions for the ordinary meaning of a term used in, but unde fined by,
a statute

. ” ) ; Retzlaff v . GoAmerica Comm c ’ ns Corp. , 356 S.W.3d 689, 699 (Te x. App.

— El Paso 2011, no pet.) ( l ooking to Black ’ s to interpret “ Litigation ” in Chapter 11)

. Moreover, Rule 202 ’ s
enactment was authorized by t h e Legisla ture ’s grant of “ full rulemak ing pow er in the practice and procedure in civil action s ” to the T exas S upreme C ourt

. S ee Tex. Gov ’t Code § 2 2 .004 ( a) (emphasis added) ; cf. Tex. R. Civ. P. 2 ( “ T hese rules shall govern the procedure in the justice,

co unty, and district court s of the State of Tex as in all actions of a civil nature , with su c h

e xce ptions a s may be her einafter stat ed. ” (emphasis adde d ))

. Because a Rule 202 petition initiates a civil judicial pr oceeding to enforce a petitioner ’ s right to a depositi on under the Texa s Rules of Civil Pr ocedure, a Rule 202 proceeding is a civil action an d there f ore “ a litigation in this state ” under Chapter 1 1

. See Te x . Ci v . Prac. & Rem. Code § 11.051. 4

4 Connor argu es that the use of the terms “defendant” and “pl aintiff” in Ch a p ter 11 preclude its appli cation t o a “petitioner ” and “responde nt ” in a Rule 202 proceed ing

. But if the Ru le 202 p roceeding is a “ liti gation ” fo r purposes of Ch ap ter 11, then Chapter 11 ’ s definitions of

“ Def endan t ” a nd “ Plaintiff

” would in clude a “ petitioner ” acting pro se a nd a “ resp ondent ” in a Rule 202 p roceeding. See Tex. Civ. P rac. & Rem. Code § 11.00 1(1 ) ( “ ‘ Defendant ’ mean s a pers on or gover nmental entity ag ainst whom a plaintiff commenc es or maintains or seeks to commence or maintai n a liti gation

. ” ), ( 5) ( “ ‘ Plaintiff ’ mean s an i ndivid ual who commence s or main t ains a litigation pro se. ” ).8 Additionally , Hooks ’ s pending Chapter 11 M otion to decl are Conno r a vexatious lit igant wa s a request for affirmative re lief and thus was not affected by Connor ’ s nonsu it

. See Crittendon v. Doe , No. 09

- 16

- 00375

- CV, 2 017 WL 5179790, at *2 (Tex. App.

— Beaumont
Nov. 9 , 2017, no pet.) (mem. op.) ( noting that defend ant “ s oug ht affirmative re lief from the trial court by fili n g a motion ” und er Ch apter 11 and therefore tha t plaintiff ’ s nonsuit “ had no effect on the trial court ’ s authori ty to consider and rule on ” pending C hapter 11 motion )

. 5 More over, i n addi tion to re questing an or de r , Hooks ’s Chapter 11 M o tion requested Conno r to furnish security. See Tex. Civ. Prac. & Rem. Code § 11.051(2). Security is “for the benefit of the
movi n g defendant ” “to assure payment to th e moving defendant of the mo ving defen dant ’s

rea sonable e xp ens es incurred in or in conne ction with a litigat ion c ommenced, caused to be commenced, maintained, or caused to be maintain ed by the plaint iff, including costs and

Connor als o a rgues that because S e c tion 1 1.051 se t s the deadline for the motion for order determ ining plaintiff a vexatio us litigant to be “on or befor e the 90th day after the date t he de fen dant file s the original a nswer or mak es a special appe ar ance , ” see id. § 11. 05 1 , Chapter 11 does no t apply when Rul e 202 does not requi re an answer or special app earance. But Section 11. 051 merely sets a deadlin e by which a defendant may file the motio n; it does n ot require that an ans wer or s pecial appearan ce be filed prior to t he filing of the motion

. See i d. Moreover, Texas case law suggests that a special appeara n ce or an answer with a g e neral denial

— which Hooks fi led in this case

— m ay b e an a ppro priate means for opp osing a Rule 202 peti tion for deposi ti on . S ee In re Doe , 4 44 S.W.3d 603, 60 5 (Tex. 2014 ) (orig. proceeding) ( notin g that i nterested party filed special appearance in Rule 202 proceeding challenging c ourt ’s personal juri s d iction and ar gu ing that “there is no ‘proper court ’ under Rule 20 2 to or der a deposition t o investigate a suit in which he may be a de fendant ”); In re East , 47 6 S .W.3d 61, 63

– 64 (Tex. App.

— Corpus Christi

– Edinburg 2014, orig. proceeding ) (noting that pot e n tial deponents in Rul e 202 proceedi n g f

iled original answer, includ ing ge neral deni al and s pecific assert ion that Sect ion 1.013 of Te xas P arks and Wi ldlife Code barred any cause of action against potential deponents).

5 Conn or argues : “ Hooks provides t h is Court with no publ i shed opinion s of any court that indicates th at a Ch apter 11 m otion can or should survive a non - suit of a Rule 202 ca se. ” But Rule 47 ’ s comment specifical ly state s: “ Effective January 1 , 2003, Rule 47 was amended to prospec ti v ely discontinue desig n a ting opinions in c ivil cas es as either ‘ publi s hed ’ or
‘ un pub lished. ’

. . . All opinions an d mem orandum opinions in civil cases iss ued after the 2003 amendment have precedential value. ” Tex. R. App. P. 47 cmt. to 2008 change.9

attorney ’s fees. ” I

d. § 11.055( a), (c). A request for attorney ’s fees and cost s is not af fec te d by a

non suit

. See Tex . R. Civ. P. 162 ( “A dis m issal under this rule shall have no effect on any motion for sanctions, attorney ’s fees or other costs, pe nding at the time of dismissal, as de termined by the court. ”). Although the t rial co urt d eeme d sec ur ity no l on ger nece ssary because of the

nonsu it , 6 a “moving defendant has recourse to the security ” if “the litigation is dismissed on its merits. ” T ex. Ci v. Prac. & Rem. Code § 11.057. A nonsuit with p rej ud ice is tantamount to a d is missal on the m erits. See Epps v. Fowler , 351 S .W.3d 862, 868 (Tex. 2011) ( “[W] e have no doubt that a defendant who is the beneficiary of a nonsuit with prejudice wou ld be a pr evailing party. As the Fifth Circuit has observ ed, a dismissal or nonsuit wi th preju dice is ‘ tantamo unt t o a j udgment on the merits. ’ ” (quoting Dean v. Riser , 240 F.3d 505, 509 (5th Cir. 2001)) ).

Thus, Hooks ’s pending Chapter 11 M otion for a n order de te r mining Connor a vexatious litiga nt and reques tin g security was not affecte d by Con nor ’s nonsu it wi th p r ejudice , and the trial court had ju risdiction to resolve the pending Chapter 11 M otion

. Accordingly, we overrule Connor ’ s third and fo urth i ssues.

Fin ding on Reasonable Probability

In her second i ssu e, Conno r claims that the trial c ourt failed to is s ue a findi ng of fact or con clusion of law that “ there is not a reasonable probability that the plaintiff will prevail in the litigation against the defend ant. ” See Tex. Civ. Prac. & Rem. Code § 11.054. H oo ks initially argued in h is moti on that “ th ere is not a reas onable pro bability Petitioner would prevail in any future defamation litigation against Respondents, in that such claims would be barr ed by

res judicata and collateral estoppel. ” But Hooks ’ s sec on d supplement to his Chap ter 11 M otion

6 Hooks d id not appeal th e determi nation that securit y was no longer necessary

.10

stat es tha t Co n nor “ h a s clearly demonstrat ed that she would not prevail in this partic ular lawsuit ” because she nonsuited with prejudice her Rule 202 petition

. T he t rial court e nter ed a finding regarding Connor ’ s no ns uit with prejudice and a conclu sion that t he non suit “ confi rm [ed] there was no reasonable proba bility that she would prevail in the litigation ” against Hooks.

C onnor argues that “ reasonabl e probabil i ty ” must be meas ur ed at the time Hooks filed his Chap ter 11 M ot ion and that “ wheth er Petitione r l ater non

- suit e d i s of no moment. ” But Chapter 11 i mpose s no such requirement

. 7 T he trial court did not abuse its discretion in finding that “there was no reasonab le probability t hat [Connor] w ould pre vail in the lit igation ” a gai nst Ho oks b ec ause Hooks sh owed that Con n or had nonsuit ed with prejudice the Rule 2 02 proceed ing b efore the trial court ma de the finding , thereby satisfying the first requirement of Section 1 1.054

. See id. We overrule Connor ’ s second issue.

Prior Cour t ’ s Vexatious Li tigant De clara t ion

I n he r fir st issue, Connor claims that the trial court abused its d iscretion in determining that Connor is a vexatious litigant under Chapter 11 because the evidence is insufficient to support at least on e of the three al ternative crit eria for a vex atious litigant f ind ing.
S ee id

. § 11.054(1)

– ( 3). As relevant here, the third criteri on requires a finding that “the plaintiff has previously been de clare d to be a v exatious litigant by a state or fe deral court in an action or

7 O n e of the thre e a lternative statutory c rit eria for fin ding plaintiff a vexatious litigant imposes a t ime period of a “ sev en - year period im mediately precedin g the date the defendant mak es the motion under Section 11.05 1. ” Tex . Civ. Prac. & Rem. Code § 1 1.0 5 4(1). But this time restriction is no t i nclu ded in t he ge neral requi rements for Section 1 1.054 or t he other two alte rna tive statutory criteria. See id. § 11.054(2)

– (3).11

proceeding ba sed on the sam e o r substantiall y similar facts, transition, or occurrence. ” Id. § 11.054(3). 8 T he trial court made the following relevant findings as to this statu tory criteri on :

1 9. Petitioner Madele in e Connor wa s declared a vexatious lit igant by Unite d States D ist r ic t Judge Robert Pit man on August 30, 2018

. . . . 20. Judge Pit man ’ s imposition of a pre

- fili ng injunct ion agai nst P etitioner satisfies Section 11.05 4(3) of the Texas Civi l Practice and Remedies Code for finding Plaintiff a vexatious litiga nt. The C ourt f i nds that Petit ioner was declared a vexatious litigant by a federal court. The Court finds t hat a fede ral C ourt det ermined Petitioner a vexatious li tigant. 21. The actions enumerated in Paragraph 18 above [whic h included the case before J udge Pittm an i n t he list ] were filed by Petitioner in federal court and state court and are based on the same or substant ially simi l ar facts, tr ansition, or occurren ce as exist in the instant case.
Nevertheless, i n her briefing before this Court, Connor ar gues that alth ou g h Judge Pi tman ’ s order “ mention s the word ‘ vexatiou s ’ multiple times, ” it “ does not declare Connor a ve xatious
li tig ant. ” We disagree.

As not ed by J ud ge Pit man in his order , to determine whether to impose a prefiling injunction u nder Federal la w , a c o urt must :
weigh all of the relev ant circumstances, including the fo llowing four fact ors (1) the pa rty ’s hist ory of litiga tion, in particular wheth e r she has filed v exatious, har assing , or duplicative lawsuits ; ( 2) whether the party had a good fait h bas i s for pursuing the litigation, or simply intended to harass; (3) t he extent o f the burden on the cour t s and oth er parties re sulting from the party ’ s fil ings; and (4) the adequacy of alternative sanctions.

Connor , 2018 WL 41 69150, at *2 (quo ting Baum v. Blu e Moon Ve ntures , LL C , 513 F.3d 181,
18 9 (5th Cir. 2008) )

. In Baum , the Fifth Circuit not ed that these four factors are required for a

8 Because we concl ude that legal and factu al evide nce supports this third criter i o n , we nee d not consider whether legal and fac tual evidence supports t he other two alternative criteria

.12

pre filing inju nctio n because “ the traditional standards for injunctive relief, i.e. irreparable inj ury

an d ina dequat e re med y a t la w, do not app ly to the issu ance of an injunction against a vexatious litigant. ” 513 F.3d at 189 (quoting In re Martin

– Trigona , 737 F.2d 125 4 , 12 62 (2d Cir. 1984)) ;

see In re Carroll , 850 F.3d 811, 815 (5th Cir. 2017) ( “ Federal cou r ts also ha ve aut h ori ty to enjo in v exatious litigants under the All Wr its Act, 28 U.S.C. § 1651. ” (citing Newby v. Enron Corp. , 302 F.3d 295, 302 (5 th Cir. 2002) ))

. Judge Pi tman, i n evaluating the first factor, expressly found “ that Connor has a h istory o f filin g ve xatiou s and har assi ng la wsuit s a gainst Def endants

—

both in this Co urt and others ” and that “ [t]he present action is the latest chapter in
Connor ’ s hist ory o f vexatiou s litigation against Defendants. ” Connor , 2018 WL 41 69150 , at *3 ( als o noti ng t hat Connor has s u e d D efendants in T exas state cou rt and that over c our se of th is litigation , “ a t least three se parate state court judges hav e sanctioned Connor o r fo und that she had brought her claims for an impr oper purp o se ” )

. After considering the remai ning t hree facto r s , Judge Pi tma n co ncluded “ tha t the impo sit ion of a p re - fil ing injunction against Connor is warranted ” and therefore Connor would not be allowed “ to fil e cl aims against Defendants or other officers of the Lost Cr eek Municipal Utility Distr ict without f irst receiv i ng leave t o do so. ” Id. a t *5. By ex pressly fi nding that Connor ha d a history of filing vexatious lawsuits

— including that the current action at i ssue in his order wa s part of Connor ’ s history of vexatious litigatio n

— and b y impos ing a pr e - filing i n juncti o n u nder t he s tan dards for issuing an injunction against a vexatious litigant , Judge Pi tman formally “ declared ” Connor a vexatious litigant in a fede ral court order

. See Declaration , B lack ’ s Law Dictionary (1 1th ed. 2019) ( “ A form al
statement , proc l amatio n , or anno unc eme nt, esp. o ne embodied in an instrument. ” )

. Thus,13

sufficient evidence supported the trial court ’ s finding that Connor “ has previo usly been declare d to be a v exatious litigant by a state or federal court

. ” Tex. Civ. Prac. & Rem. Code § 11.0 5 4( 3)

.

N eve rth eless, Con nor argues that even if Judge Pit man ha d declar ed her a vexatious litigant , sufficient evidence does not support the tri al court ’ s finding that the federal proceeding before Judge Pit man was “ based on the same or substant ia lly s imilar fac ts , transitio n,

or occurrence ” as the Rule 202 proceeding against Hooks. See i d. Given the record before us, however, we cannot conc lude that the trial court abused its discretion in concluding that the two proceedings we re “ based on the s ame o r subst ant ia lly similar facts, transition, or occurrence. ” Id. In her Rule 202 petitio n, Connor explained how the AVVO.com review descr ibed her as having a “ sarcastic demeanor before a trial court ” and then she stated, “ a similar n on - sarcastic collo qu y did i n fact t ak e place

. . . in another case (where Connor also acted pro se) onl y two days before the fake posting

— in volving a suit naming defendant s wh o Connor alleges have worked in concert with the instant Respondents to defame, r etaliate, and caus e Connor sever e

e mo tional distre ss. ” A t the hearing on the Chap ter 11 Motion , Connor testified that she “ had argued once bef

ore ” that the lawsuits “ were rel ated because I felt like all of the defendants were working together ” and “I thin k th at they have a ll been a cting to ge ther. ” 9 In h is Chapter 11 Motion, Hoo ks claim ed that Connor “ judicially admits in the Rule 202 Petition that ‘ similar ’ defamat ory sta teme nts were made about her in May 2017 in another case brought by Petitioner
Connor pro se in which Re sp ondent s alleged ly worked in co ncert with other defendants to defame Pe titioner. ” After noting that he is a n officer of the Lost Creek Nei ghborhood

9 As noted by J udg e Pi tman, “In addition to her hi story of litigation before t his Court, Connor has sued these Defendan ts and other Lost Creek direct o r s in Texas state cour t

. ” Connor v. Stewa rt , No. 1:17

- CV

- 8 27

- RP, 2018 WL 4169150, at * 3 ( W.D. T ex. Aug. 30, 2018) , aff ’ d per curiam , 770 F . App ’ x 244 (5th Cir. 2019) (mem.)

.14

Ass oc ia tion (LCNA) , Hooks also alleg ed that the Rule 202 petition and the lawsuit b efore J udge Pit m an ar o s e out of the same or substantially similar facts, transition, or occurrence , namely, “ the Petitioner ’ s ongoing feud with Lost Cr eek Limited District Board members and board members of the LCNA. ” Based on this evidence , the trial cou rt co u l d have re asonabl y conc luded that the
proce eding be fore Judge Pit man and the Rule 202 p roceeding were both based on the “ same or substantially si mila r . . . occurrence ” of Connor ’ s “ ongoing feud ” with Hooks and other Lost Creek officers and board mem bers

.

Moreover, the l awsuit before Jud ge Pit man was based on a llege dly defa matory statements in a litigation update regarding Lost Creek directors “ p reva il[ing] in every substantive and procedural ruling to date ” against Connor. Connor , 2018 WL 4169150, at * 3

. Similarly, in her Rule 202 peti t ion, Connor complain ed about alleged defamatory statements reg arding her
l awsuits, including her courtroom con duct and litigation services: “ The fictitious client (s ) complained of various poor professional in

- court room b e havior and litig ation services th a t

never happened, inclu ding bad work product, sarcasm to the trial court judge, and that the fake

- clients had ‘ was ted ’ their money on Connor ’ s services. ” Cf. Newby v. Quarterman , No. 09

- 08

- 00385

- CV, 2009 WL 3763790 , at * 6 (Tex. App.

— Beau mont Nov. 12, 200 9 , no pet.) (mem. op.) ( notin g “ ‘ similarity ’ between at least these two proceedings is determined by the gist

o f th e vexatious litigations ” and holding that trial court could reasonably conclude two proceeding s were based o n substantially similar facts, tr a nsition , or occurrence w hen b oth cases were base d on alleged attempts by prison officials to thwart litigation effo rts ).

G iven our standard of review and the record before us , we conclude that more than a scin tilla of evidence supp o rt s the trial court ’ s fi nding

. See Le onard , 171 S .W.3d a t 459. Case law concluding that trial court s have abu sed their discretion on this point generally rest on15

the fact that the movant did not offer any evidence

. See , e.g. , Douglas v. Am erican Tit le Co

. , 196 S.W.3d 876, 8 82 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) ( noting “ there was no evidence offered to est ablish ” that both cases we re based on substantially similar facts, transition, or occ urrence) ; D evoll v. Sta t e , 155 S.W.3d 498, 502 (Tex. App.

— Sa n Antonio 2004,

n o pe t.) ( concluding record “ reveals that no evidence was offered to establish ” that both ca se s are based on substantially similar facts, transition , or occurrence ). Here , on the other hand, there is

so m e evidence that th e tw o proceeding s are substantially sim ilar, even if a reviewing court might reach a different decision than the trial court d id

. See City of Keller v. Wilson , 168 S. W.3d 802, 822 (Tex. 2005) ( noting that in legal s ufficiency review, “ [a] reviewing court cannot substitute its judgment for that of the trier

- of

- fact, so long as the evidence falls within this zone of reasonable disagreement ”

— i.e., if evidence “ would enable reasonable and fair

- minded people to dif fer in their conclusions ” ). Nor can we c onclud e that the trial c ourt ’s ruling is so contrary to the o verwhelming weight of the evidence as to be clear ly w rong and manifestly unjust

. Connor has neither produced evidence contrary to the trial court ’ s findi ng n or cited to any evid ence in her brief

. See Douglas v. Ellio t t , No. 14

- 12

- 0102 5

- CV, 2014 WL 1410190, at *5 (Tex. App.

— Houston [14th Dist.] Apr. 10, 201 4, no pet.) (mem. op.) ( holding factual sufficiency ch allenge fail ed because appellant “ produced no evid ence c o ntrary to the finding, and he has not cited to any evid en ce in his b rief

” ). A ccordingly, the trial court did not abuse its disc retion in conclu ding that the proceeding before Judge Pit man and the Rule 202 proceeding were “ based on the same or subst antial l y similar facts, transition, or o ccur rence . ” Tex. Civ. Prac. & Rem. Cod e § 11.054(3). We overrule Connor ’ s first issue.16

Constitutional Challen ges

In her fifth issue, Connor argues that Ch apter 11 “ is unconstitutional because it infringes upon a citize n ’ s right to petition for red r ess of g rievances under U. S . Const. am e n d s. I,
X IV and Tex. Const. art. I, §§ 19, 2 7, and acts as an unconstitu tion al p rior restraint of protected First Amendment liberties ” and that her “ constitutional rights to ac cess t h e courts under the Unite d Sta tes and Texas Constitutions wer e infrin ged , and continue to be infringed up on , by application of the Texas Vexatiou s Li tigant Statute. ” Connor claims she is bringin g both facial and as applied challenges. But in her br iefing before th is Court, Connor does not identif y or allege any pa rticular circumst ances as to why Chapter 11 is unconstitutional as applied to her.
T exas Workers ’ Comp. Com m ’ n v. Garcia , 893 S.W.2d 504, 518 n.16 (Tex. 1995) (noting that in

“ an ‘ as applie d ’ cha l lenge

. . . the plaintiff argues that a s tatute, even thoug h generally
const itutional, operates unconstitutionally as to him or her because of t he p laintiff ’ s particular circumstances ” ) . Instead, her argument is cou ched entirely in terms of a facia l chal l enge, see id. at 518 ( “ Under a facial cha llenge, such as th at asserted here, the challenging party contends that the statute, by its terms , alwa ys o perates uncon s titutionally. ” ), and we t herefore analyze her constitutional challenge as such

.

As we dis c ern from her brief, Connor raise s four gr ounds as to wh y Chap ter 11 is faciall y unconstitutional. First, she ar gues that “ no restrictions may be placed on the right to petition , ” restrictions constitut e a n unconstitutional “ prior restraint ” on a “ co g nate right [] equal in dignity ” to the freedom of speech , and Chapt er 11 unconstitut ionally places “ multiple restrictions ” on that right , includi ng r equiring “ pre - filing approval to access the courts. ” S econd, she argues that Chapter 11 and the case law in t erpreting the ch apter are “ silent ” as to a ny “ clear public interes t, threatened by clear and present danger ” that is required “ to restrict Fi rst17

Ame ndment liberties

. ” Third, she asserts that because of the “extr aordinary expense of hiring
atto rneys , ” Cha p ter 11 “ i mpairs a litigant ’ s right to proceed unimpa ired pro se ” a nd “ impairs lower income citizens ’ rights to acce s s the court s. ” Fourth, she clai ms that Chapter 11 cannot “be reconciled with the Texas Constitutions’ open courts provision and reme dy by d ue course of law.” We find these grounds unav ailing.

As to the first two g rounds , t he United States Supreme Court has held that suits that lack a reasonable basis “are not within the scope of F i rst Amendment protection ” and

“ baseless litigation is no t immunized by the First Amendment right to pet ition. ” Bill Johnson ’ s Rest s . , Inc. v. N.L.R.B. , 461 U.S. 731, 743 (1983) ; see BE & K Const. Co. v. N.L.R.B. , 536 U.S. 516, 530 (2002) (not ing that “ Bill Johnson ’ s allow [s] certain baseless suits t o be e n joined ” ) ; Sparkman v. Microsoft Corp. , No. 12

- 13

- 00 175

- CV, 2015 WL 124453 8, at * 4 (Tex. Ap p.

— Tyler Mar. 18, 2015, pet. denied) (mem. op.) ( “ [T]h e Co nstitution does not establish a right to file frivolous litigation

. ” ) ; Ret zlaff , 356 S.W.3d at 70 2 ( “ One fi n al consideration guides us through Retzlaff ’ s chall enges to the ve x atious litigant statute s: There is no constitutional right to file frivolous lit igation. ” )

. 10 We have noted that the “ purpose of [C]hapter [11] is to restrict frivolous and vexatiou s liti g ation ” and that Chapter 11 “ does not authorize c our ts to act arbitrarily ” and “ permits the m to rest rict a plaintiff ’ s access to the courts only after firs t ma king

10 As one commentator noted : Without an ability t o limit court acce ss to at lea st non - frivolous clai ms, the courts could grind to a halt. N ot only would go vernment and its sponsors , th e taxpayer s, incur considerable expense, but other citizens also would suffer harm. The public generally woul d have les s access to justic e if the cou rts were overwhelmed with frivolous claims, and the defendant in particular w ould suffer reputation in jury and financ ial loss if forced to defend suits that have no merit. Carol Rice Andrews, A Right of Access to Co urt Under the Petition Claus e of the Fir st Amendment: Definin g the Right , 60 Ohio St ate L.J. 557, 649 ( 1999)

.18

specific findings that the plaintiff is a vexatious litigant based on factors that are closely t ied to the likelihood that the incident l itigati on is friv olous

. ” L eo nard , 171 S.W.3d at 457 (empha sis added) ; see Tex. Civ. Prac. & Rem. Code § 11.05 4

. Additionally, Ch apter 11 and the trial
court ’ s prefiling order do not “ categorically bar ” the curr ent lawsu i t or preclud e the filing of n ew la ws uits ; rather , t hey require the litigant “ to post security to cover appellees ’ anticipated expenses to defend wha t the circumsta n c es would reasonably suggest is a frivolous lawsuit ” and

“ to obtain permission fro m t h e loc a l administrative judge before fili ng ” new lawsuits. L eonard , 1 71 S.W.3d at 457 ; see Tex. Civ. Prac. & Rem. Code § 11.102

. And “ [a]n administra tive judge may grant permission for a vexatious litigant to file litigati on if t he liti gation has merit and is not being brought for harassment , ” and “a vexatious litigant may see k review of t he admin istrative j udge ’s decision ” by petitioning for a writ of mand amus. See R etzlaff , 3 56 S.W.3d at 704 ; see also Tex . Civ. Prac. & Re m. Cod e § 11.102( f ) (authorizi ng mandamus review of administrative judge ’s deni al)

.

Nor has Connor established that Chapter 11 ’ s restrictions are overbroad . As one federal distri ct c ourt noted in analyzing Californi a ’ s similar vexatious litigant s tatu te :

A s tatute affecting constitutionally protected speech is not overbroad if i t is narrowly tailored a nd does not prohi bit substa ntially more protected speech or conduct than necessa ry. Ironically, here, the very purpose of the notice and hearing require ment o f the statute, as well as the “prefiling orde r” process set forth in the statute, is to ensure th at c onstitutional ly protecte d activities (i.e. the filing of meritorious claims) are not prohibited in any way. Thus,

. . . the Vexatious Litigant Statu te is c onstitutional because it is narrowly tailored to further the compelling interest in having a leg al system that is not needlessly disrupted by baseless and frivolous litigation.

Wo lfe v. George , 385 F. Supp. 2d 1004, 1013 (N.D. Cal. 2005), aff ’ d , 48 6 F.3d 1120 (9th Cir. 2007)

. Under Chapter 11, like the Calif ornia statute, “ a vexatious litigant may file potentially19

meritorious claims not inte nded so lely to ha rass or delay, so the courtho use doors are not closed to him. ” Wolfe v. George , 486 F.3d 1120, 1125 (9th Cir. 2007) ; see Tex. Civ. Prac. & Rem. Code § 11.102

. A s this Co urt has noted, C h apter 1 1 ’s purpose “is t o restrict frivolous and vexatious litigatio n , ” and Chapter 11 ’ s restrictions do not violat e a l itigant ’ s right t o ac cess the courts bec au s e the “ restrictions a re not unreason able or a r bitrary when balanced against the purpose and basis o f the statute

. ” L eonard , 171 S.W.3d at 457. In sum, Con nor h as n ot identified how C hapter 11 unconstitutionally limits or imposes pri or restraints on laws u its that

are protected by the First Amendment rather than lawsuits outside t he scope of its protecti on or why a “ clea r and present danger ” is required to justify Cha pter 11.

As to the third and fourth grounds, we have already decide d those issues. See i d.
at 456

– 58 (h olding that Chapter 11 does not unconstitutionally discrimina te against p r o se litiga nts or deprive li tigants of their rights to access judicial s yste m under open courts provision) ; see also Caldwell v. Zi mmerm an , No. 0 3

- 18

- 00168

- CV, 2019 W L 1372027, at *2 (Tex. App.

— Austin Mar. 27, 2019, no pet.) (mem. op.) ( collec ting cases ; noting that this Court an d ou r sister courts have rejected due process, e qual pro tection , and right to pe tition constitutional challenges
to Ch apter 11 ; and holding that Chapter 1 1 does not deprive litigant of these constitutio nal rights)

. Con nor acknowledg es th at th is “Court has con cluded otherwise” in Leonard , but she asks t his Court to “r evisit the issue.” However , Leonard and Caldwell are b indin g pre ce d e nt on th is Cour t , and we find their reasoning more than adequate on this issue. 11

11 E ven i f we were inclined to revisit the issue, “[w]e may not overrule a prior panel opinion of this court absent an intervening change in the law by the Legislature or a higher court or by decision of this court sit ting en banc.” Lawson v. Keene , No. 03

- 13

- 0049 8

- CV, 2016 WL 767772, at *4 (Tex. App.

— Austin Feb. 23, 2016, pet. denied) (mem. op.) (quoting Ayeni v. State , 440 S.W.3d 707, 717 (Tex. App.

— Austin 2013, no pet.) (Pemberton, J. , c oncurring)).20 This Court, our sister court s, and f ederal di stri ct courts have repeatedly and consistent ly rejected con stitutional challenges to Chapter 11 that Co nnor advances here

. See Caldwell , 2019 WL 1372027, at *2; Bier wirth v. Rio Rancho P rop s . , LLC , N o. 03

- 17

- 00733

- CV, 2018 WL 4610447, at *4 (Tex. App.

— Aus tin Sept. 25, 2018, no pet.) (mem. op.) ; Guar dians hip of L.S. , No

. 14

- 15

- 00494

- CV, 2017 WL 1416190, at *5 (Tex. App.

— Houston [14 th Dist.] Apr. 18 , 2017, pet. denied) (mem. op.); Cooper v. McNulty , No

. 0 5

- 15

- 00801

- CV , 2016 WL 6093999 , at *4 (Tex. App.

— Dalla s Oct. 19, 2016, no pet.) (mem. op.); Thomas

v. Ad ams , No. 11

- 12

- 00312

- CV, 2014 WL 5463528, at *2 (Tex. App.

— Eastland Oct. 9, 2014, pet. denied) (mem. op.); Sparkman , 2015 WL 1244538, at *3

– 6 ; In re P otts , 399 S.W.3 d 685,
688

– 90 (Tex. App.

— Houston [14th Di st.] 2013, orig. proceeding ) ; Johnson v. Cornelius , No. 07

- 11

- 000 91

- CV, 2011 W L 4485465, at *5 ( Tex. App.

— Amarillo Sept. 28, 2011, no pet.) (mem. op.); I

n re Potts , 357 S.W.3d 766, 769 ( Tex. App.

— Hou s ton [14th Dist

. ] 2011, orig. proceeding ) ; Ret

zlaff , 356 S.W.3d at 70 2

– 0 4; Johnson v. Sloan , 320 S.W.3d 388 , 389

– 90 ( Tex. App.

— El Paso 20 10, pet. denied); Clifton v. Walters , 308 S.W.3d 94, 101

– 02 ( Tex. App.

— Fort Worth 2010, pet. denied); Dolenz v. Boundy , No. 05

- 08

- 01052

- CV, 2009 WL 4283106, at *3

– 4 (Tex. App.

— Dallas Dec. 2, 2009, no pet.) (mem. op.); In re Jo hnson , No. 07

- 0 9

- 0 0035

- CV,
2 0 09 WL 2632800, at *1 (Tex. App.

— Amarillo Aug. 27, 2009, orig. proceeding ) (mem. op.) ; In re Johnson , No. 07

- 07

- 00245

- CV, 2 008 WL 2681314 , at *2 ( Tex. App.

— Amari l l o July 9, 2008, orig. proceeding) (mem. op.); Leonard v. Hearst Co rp. , No. 01

- 04

- 01023

- CV, 20 0 5 WL 3118700 , at *8 (Tex. App.

— Hous ton [1st Dist.] Nov. 23, 2005, pet. denied) (mem. op.) ; see also Liptak

v. Banner , No. 3 : 01

- CV

- 095 3

- M , 2002 WL 378454, at *4

– 5 (N.D. Tex. Mar. 7, 2002) ; cf. Wolf e , 486 F.3d at 1125 ; Wolfe , 385 F. Supp. 2d at 1013

. Likew i se, we find Connor ’ s co nstitutional challenges unavailing here. We overrule Co nnor ’ s fifth issue.21 C ONCLUSION Having o verruled Connor ’ s issues on appeal, we a ffirm

.

__________________________________________ Meliss a Goodw in , Justice Bef ore Justices Goodwin , Kelly, and Sm ith Affirmed Filed : March 5, 2021