Tony Cantu and Elsa Cantu v. Ben Dominguez

Affirmed and Memorandum Opinion filed September 10, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00156-CV ____________ TONY CANTU AND ELSA CANTU, Appellants V. BEN DOMINGUEZ, Appellee On Appeal from the County Court at Law No. 4 Harris County, Texas Trial Court Cause No. 901776 M E M O R A N D U M   O P I N I O N Dr. Tony Cantu and his wife Elsa Cantu appeal the trial court=s orders declaring them to be vexatious litigants and dismissing their case for failing to deposit $75,000 as security into the court registry. The Cantus have also filed a motion requesting that this court expedite its mandate. For the reasons stated below, we deny the Cantus= motion, overrule their three appellate issues, and affirm. I Tony Cantu sued his former attorney Ben Dominguez for fraud, breach of contract, extortion, DTPA, and breach of fiduciary duty for alleged acts of wrongdoing relating to Dominguez=s representation of the Cantus in an earlier matter. Apparently, Mrs. Cantu was later added as a plaintiff, and is sometimes referred to in the record as an Ainvoluntary plaintiff.@ In October 2007, Dominguez moved for an order determining Tony Cantu a vexatious litigant and requiring him to post a bond as a condition of continuing the lawsuit. After a hearing, the trial court signed an order on February 8, 2008, declaring the Cantus to be vexatious litigants under chapter 11 of the Texas Civil Practice and Remedies Code and requiring them to provide security of $75,000 to be placed in the registry of the court. The trial court further ordered that if the Cantus did not provide the security within twenty days of the entry of the order, then the court would dismiss their case with prejudice. The Cantus did not provide the security, and so the trial court, by order signed March 19, 2008, dismissed their claims. II We begin with the Cantus= third issue because it challenges the trial court=s jurisdiction. Subject-matter jurisdiction is essential to a court=s jurisdiction and and cannot be waived. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443B44 (Tex. 1993). Determining whether a court has subject matter jurisdiction is a question of law we review de novo. See Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In this issue, the Cantus contend that when they filed an amended petition alleging damages in excess of the jurisdictional limit of the county court at law, the trial court lost jurisdiction over their case and so erred in failing to transfer it to a district court. The record reflects that the Cantus filed a motion to transfer on this basis but no ruling appears in the record. The Cantus assert that the trial court refused to rule on their motion. Initially, we note that the appellate record does not include as a filing the amended petition on which the Cantus base their jurisdictional complaint. The purported petition, which the Cantus refer to as APlaintiff and Involuntary Plaintiffs= Second Amended Petition and Request for Disclosure,@ appears in the record only as an exhibit to the Cantus= motion for reconsideration of the trial court=s determination that the Cantus were vexatious litigants. But Dominguez does not dispute that this petition was filed in the trial court, so we will presume this petition was filed and address the Cantus= argument accordingly. This petition bears a file stamp purporting to show that it was filed on December 7, 2007; we will therefore refer to it as the ADecember 2007 petition.@ As is relevant here, the trial court, the County Civil Court at Law No. 4 of Harris County (ACourt No. 4@), has jurisdiction over civil cases in which the matter in controversy exceeds $500 but does not exceed $100,000 Aas alleged on the face of the petition.@ See Tex. Gov=t Code Ann. '' 25.0003(c)(1), 25.1032(a) (Vernon Supp. 2009). The amount in controversy is ordinarily determined by looking at the allegations in the plaintiff=s original petition. See Peek v. Equip. Svc. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989); Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762, 763 (1924); Williams v. Le Garage De La Paix, Inc., 562 S.W. 2d 534, 535 (Tex. Civ. App.CHouston [14th Dist.] 1978, writ ref=d n.r.e.). We must presume jurisdiction unless the lack of jurisdiction affirmatively appears on the face of the petition. Peek, 779 S.W.2d at 804. As a general rule, when jurisdiction is once lawfully and properly acquired, no later fact or event can defeat the court=s jurisdiction. Isbell, 261 S.W. at 763. Further, the fact that an amended petition alleges damages in excess of the jurisdictional limits of the county court does not deprive that court of the jurisdiction it properly acquired when the original petition was filed. Id. at 763. The earliest petition in the appellate record is designated as APlaintiff=s Second Amended Petition and Request for Disclosure@ and was filed on October 25, 2007 (the AOctober 2007 petition@). In the October 2007 petition, Tony Cantu affirmatively states that A[t]his Court has jurisdiction over the claims and parties, and the amounts in controversy are with the Court=s jurisdiction limits.@ Further, a review of the prayer shows that Tony Cantu sought money damages totaling $61,900, plus various types of damages for which no amount is specified. Based on Cantu=s representation that the amount in controversy was within the court=s jurisdictional limit, and his prayer for damages that does not affirmatively exceed $100,000, we conclude that the trial court properly acquired jurisdiction over the case. See Isbell, 261 S.W. at 763; Williams, 562 S.W.2d at 535. In their brief, the Cantus argue that the trial court lost jurisdiction when the December 2007 petition was filed because this petition shows that the money damages sought Aplus the exemplary damages@ exceed the trial court=s jurisdiction.[1] The Cantus do not point to any specific portion of the petition or cite any to authority other than a general reference to Government Code section 25.003. A review of the December 2007 petition reveals that Elsa Cantu was named as a plaintiff, and the Cantus asserted the same claims made in the October 2007 petition as well as several new claims. The Cantus also sought specified money damages totaling $96,900Cwithin the trial court=s jurisdictionCplus unspecified amounts for other alleged damages.[2] Although the Cantus argue that we should consider the exemplary damages sought, exemplary damages are not considered for purposes of calculating the amount in controversy. See Tex. Gov=t Code Ann. ' 25.0003(c)(1) (providing that interest, statutory or punitive damages and penalties, and attorney=s fees and costs are excluded from the determination of the amount in controversy); see also Tex. Civ. Prac. & Rem. Code Ann. ' 41.001(5) (Vernon 2008) (exemplary damages include punitive damages). Additionally, in the December 2007 petition the Cantus again affirmatively represent that the trial court had jurisdiction over the claims and parties, and that the amounts in controversy were within the court=s jurisdictional limits. And the Cantus repeated this assertion two additional times in their first and second amended responses to Dominguez=s motion to have them declared vexatious litigants, both of which were filed after the December 2007 petition was filed. Arguably, then, based on the allegations of the petition, the money damages specifically requested, and the Cantu=s own repeated representations, the damages sought remained within the trial court=s jurisdiction. But even assuming the Cantus sought damages in excess of the trial court=s jurisdictional limit in the December 2007 petition, the filing of the December 2007 petition did not cause the trial court to lose the jurisdiction it originally acquired. See Isbell, 261 S.W. at 763B64; Williams, 562 S.W.2d at 536; see also Cook v. Jaynes, 366 S.W.2d 646, 647 (Tex. Civ. App.CDallas 1963, no pet.). Therefore, we overrule the Cantus= third issue. III In their first issue, the Cantus contend that, contrary to the trial court=s order, the evidence shows that they are not vexatious litigants. They argue that another court determined that they were not vexatious litigants, and that the other cases to which they have been parties do not meet the criteria of chapter 11 of the Civil Practice and Remedies Code. In chapter 11 of the Civil Practice and Remedies Code, the legislature struck a balance between Texans= right of access to their courts and the public interest in protecting defendants from those who abuse our civil justice system. Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.CAustin 2005, pet denied.). Under chapter 11, a trial court may place limitations on the litigation activities of a person determined by the court to be a vexatious litigant. Id. In relevant part, the trial court may find a plaintiff to be a vexatious litigant if the defendant shows that there is not a reasonable probability the plaintiff will prevail in the litigation against the defendant and that: (1) the plaintiff, in the seven‑year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been: (A) finally determined adversely to the plaintiff; (B) permitted to remain pending at least two years without having been brought to trial or hearing; or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure; (2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either: (A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or (B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined. Tex. Civ. Prac. & Rem. Code Ann. ' 11.054(1)B(2) (Vernon 2002). If the court determines that the plaintiff is a vexatious litigant, it must order the plaintiff to furnish security for the moving defendant=s benefit. Id. ' 11.055. If the plaintiff fails to timely furnish the court-ordered security, the court must dismiss the suit. Id. ' 11.056. We review a trial court=s determination that a plaintiff is a vexatious litigant for abuse of discretion. Wolter v. Delgatto, No. 14-05-00055-CV, 2006 WL 664214, at *3 (Tex. App.CHouston [14th Dist.] Mar. 16, 2006, no pet.) (mem. op.); Leonard, 171 S.W.3d at 459. A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Leonard, 171 S.W.3d at 459. The trial court=s order reflected findings that the Cantus have filed Anumerous lawsuits@ in Harris County, including seven district court and county court cases and four appeals specifically identified by style, cause number, and court. The order further reflected that the Cantus Ahave in the past and are continuing to file or threaten to file new litigations, and/or new Motions for the sole purposes of harassing, threatening, and intimidating numerous Parties, Witnesses, and various former legal counsel involved in the Cantus= previous litigations@ and that in the past, the Cantus Ahave been threatened with Sanctions, Sanctioned, and Held in Contempt by other Courts in an effort to curb their appetite for litigation and re-litigation of Orders, Final Determinations, and Judgments,@ but these efforts Ahave had no impact@ on the Cantus. The order additionally includes a determination that, based on the Cantus= actions, they Awill continue, and are continuing to use the Courts of this Jurisdiction for improper purposes and in bad faith.@ Accordingly, the trial court determined that the Cantus are vexatious litigants as defined by section 11.054 of the Texas Civil Practice and Remedies Code. The Cantus first contend that they were found not to be vexatious litigants in an action in a district court and further contend that, contrary to Dominguez=s representation to Court No. 4 below, that same district court declined to hear the Cantus= complaints or claims against Dominguez because it concluded that Court No. 4 was the proper court to hear them. In support of these contentions, the Cantus attach two purported court orders to their appellate brief. Dominguez complains that the attached orders are not included in the record and therefore we should not consider them. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. Bencon Mgmt. & Gen. Contracting, 178 S.W.3d 198, 210B11 (Tex. App.CHouston [14th Dist.] 2005, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Therefore, we do not consider the documents attached to the Cantus= appellate brief.[3] Next, the Cantus argue that certain of the cases on the trial court=s list do not satisfy the requirements of chapter 11. The Cantus make numerous assertions of fact concerning several of the previous lawsuits in which they were parties, but they do not cite to the record in support of their assertions, nor do they cite relevant authorities beyond references to section 11.054. Additionally, they make various references to matters that appear to be directed to the underlying case rather than the subject matter of the trial court=s order declaring them vexatious litigants. And the majority of their arguments are made in their statement of facts, rendering their issues less than a model of clarity.[4] In response, Dominguez contends that the Cantus have waived their appellate issues for failing to present a clear and concise argument for their contentions with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14th Dist.] 2005, no pet.).[5] But more significantly, the Cantus have failed to present a complete record on appeal. It was the Cantus= burden as appellants to furnish this court with a record supporting their allegations of error. See Christiansen v Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). Generally, absent a complete record of the proceedings, reviewing courts must presume that the evidence before the trial judge was adequate to support the decision. In re D.A.P., 267 S.W.3d 485, 487 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (citing Simon, 739 S.W.2d at 795). On appeal, we have a clerk=s record, a partial record of the hearing on the motion to declare the Cantus vexatious litigants, and a record of a hearing on February 27, 2008, after the trial court had signed its order declaring the Cantus vexatious litigants but before the case was dismissed. Thus, we lack a complete record of the hearing on the motion at issue. In Michiana Easy Livin= Country, Inc. v. Holten, the supreme court instructed that appellate courts should presume that pretrial hearings are nonevidentiary unless the proceeding=s nature, the trial court=s order, the party=s briefs, or other indications show that an evidentiary hearing took place in open court. 168 S.W.3d 777, 783 (Tex. 2005). Only if the hearing was evidentiary is a complaining party required to present a record of that hearing to establish harmful error. Id. Therefore, we must determine whether the hearing on February 27, 2008, was evidentiary or nonevidentiary before we may apply the presumption that the missing portion of the record supports the trial court=s judgment. After reviewing the record, we conclude that there is no question the hearing on Dominguez=s motion to declare the Cantus vexatious litigants was an evidentiary hearing. First and most significantly, the trial court=s February 8 order expressly reflects that the motion Awas the subject of an Evidentiary Hearing . . . .@ Also, the excerpt of the hearing the Cantus provided consists of Tony Cantu=s cross-examination of Dominguez, demonstrating that testimony was taken during the hearing. At the conclusion of this hearing, the judge also indicated that the hearing began at 9:00 a.m. and was concluding, with a few interruptions, at 12:10 p.m.Cthree hours later. And, at the hearing on February 27, Tony Cantu contended that he never saw the trial court=s February 8 order before it was signed, and he also complained about errors in the order and the cases listed in the order, but the trial judge responded that A[w]e went through the whole list. Remember?@ She then continued: No. We talked about them because we had to talk about, when somebody is trying to declare you a vexatious litigant, we have to go through all the cases. We went through all those, the fact that you continue to relitigate issues that were decided over and over and over. I know you suggest that you don=t, but you relitigate them either in Judge Dorfman=s court or now you=re down in here after what? An hour and a half? Didn=t you have 45 minutes a side? Y I found that you were vexatious. I said you can continue on with this, but you have to post a bond. The trial judge=s statement reflects that evidence concerning the cases listed in the order was presented at the hearing.[6] Further, in Dominguez=s response to the Cantus= motion for reconsideration, Dominguez asked the court to take judicial notice of and incorporate Aall seventy-one Exhibits admitted into evidence at the time of the hearing on January 25th 2008 and the testimony provided on this date.@ Thus, it is apparent that the hearing on Dominguez=s motion to declare the Cantus vexatious litigants was an evidentiary hearing at which considerable testimony was taken and many exhibits were admitted; yet, we have only that portion of the record the Cantus chose to presentCthe excerpt containing Tony Cantu=s cross-examination of Dominguez. In the absence of a complete record, we must presume that adequate evidence was presented at the hearing to support the trial court=s order. See Simon, 739 S.W.2d at 794B95; In re D.A.P., 267 S.W.3d at 487B88.[7] Therefore, we cannot hold that the trial court=s order was an abuse of discretion. IV In their second issue, the Cantus contend that, because the evidence shows that they are not vexatious litigants, the case should be Areinstated in full.@ But for the reasons explained above, we have determined that the Cantus have failed to demonstrate that the trial court abused its discretion in entering the February 8 order declaring them vexatious litigants. Therefore, we decline to reinstate the case on this basis. The Cantus also appear to contend that, because the February 8 order dismissed the case, the trial court should not have signed its March 19 order dismissing the case again. Consequently, they contend, the March 19 order should also be reversed. However, the February 8 order did not dismiss the Cantus= case. That order simply directed the Cantus to deposit $75,000 security within twenty days from the date of the entry of the order, or the court would dismiss the case. Thus, had the Cantus complied with the February 8 order, their case would not have been dismissed on March 19, when the trial court found that the Cantus had failed to pay the security as ordered. Thus, contrary to the Cantus= contention, the trial court did not purport to dismiss their case twice. We therefore overrule the Cantus= second issue. V For the foregoing reasons, we overrule the Cantus= appellate issues. Accordingly, we also deny the Cantus= request for $25,000 for the costs of appeal to be paid to them as well as the other relief requested in their prayer. VI Lastly, we turn to the Cantus= motion, taken with the case, in which the Cantus request that we expedite our mandate. Mandate may issue earlier than the prescribed times by agreement or for good cause on the motion of a party. See Tex. R. App. P. 18.1(c). The Cantus contend that we should expedite the mandate for good cause because this is an accelerated appeal and because Dominguez has allegedly Ablatantly lied@ to the trial court and this Court. The Cantus also assert, without explanation, that other cases Adepend highly@ on the mandate issuing from this appeal. The Cantus cite to no authority and merely direct us to their appellate brief and unidentified exhibits to support their request. As we have overruled the Cantus= appellate issues, we likewise conclude that the Cantus have failed to demonstrate good cause, and overrule their request to expedite the mandate. *** We overrule the Cantus= issues and affirm the trial court=s judgment. /s/ Jeffrey V. Brown Justice Panel consists of Justices Seymore, Brown and Sullivan. [1] Specifically, the Cantus contend the following: ASince the petition we filed on December 4, 2007 and the monetary damages exceed the jurisdiction of this court, it is clear that this court has not had jurisdiction of this case since the filing of the Appellants= Petition.@ [2] In addition to the damages previously alleged, Tony Cantu sought damages of $35,000 for an additional instance of alleged extortion. [3] Even if we did consider the documents, they do not advance the Cantus= issue. First, the district court order purporting to hold that the Cantus are not vexatious litigants does no such thing. Instead, it appears to deny a party=s motion to hold Tony Cantu in contempt for violating an agreed judgment. Although the document reflects that one of the grounds upon which the movant sought sanctions was that Cantu was Aengaging in harassing and/or vexatious litigation,@ the denial of the motion is not the equivalent of a finding that Cantu was not a vexatious litigant. As to the second purported order, it is difficult to evaluate out of context and, although it may support a contention that Dominguez knew at some point that the district court judge declined to hear the issues between Dominguez and the Cantus, the Cantus= failure to present a complete record would prevent us from evaluating the significance, if any, of this document. [4] A review of the Cantus= responses to Dominguez=s motion to declare them vexatious litigants reveals that the responses are similar to the Cantus= appellate brief. For example, the Cantus= first amended response to the motion appears directed more toward their claims against Dominguez than an effort to dispute the vexatious-litigant allegations, and the Cantus attach no evidence in support of this response. The Cantus= second amended response contains the same assertions, again unsupported by evidence. The only evidence attached to the second amended response was in support of an included motion for contempt and sanctions. The Cantus also filed a motion for reconsideration, but their assertions concerning the proceedings in several previous lawsuits were not supported by evidence, and the evidence that was submitted primarily related to the underlying lawsuit or the Cantus= contention that Dominguez knew that the district court had declined to hear the Cantus= complaints about him. [5] The Cantus also contend in their statement of facts that the requirement that they post the $75,000 security violates their right to a jury trial under the Seventh Amendment of the United States Constitution. See U.S. Const. amend. VII. The Cantus provide no argument or citations to relevant authority in support of this contention; therefore, it is waived on appeal. See Tex. R. App. P. 381(h); San Saba Energy, L.P., 171 S.W.3d at 338. Moreover, we note that at least one Texas court has held that vexatious litigant statute does not violate the open courts provision of the Texas Constitution. See Leonard, 171 S.W.3d at 457B58. [6] The Cantus also make a cursory complaint that they had no opportunity to review or defend themselves from the trial court=s order declaring them to be vexatious litigants, and that Dominguez Amanufactured@ the order, which they contend contains matters not raised in the hearing and other Afalsehoods.@ The Cantus do not elaborate or provide any evidence or authority to support this complaint. However, the record of this hearing suggests that the cases identified in the order, which Cantu sought to argue about, were addressed at the earlier hearing. [7] This court ordered the clerk=s record supplemented because it did not include Dominguez=s motion to declare Tony Cantu a vexatious litigant, which should have been included as a Apleading[] on which the trial was held.@ See Tex. R. App. P. 34.5(a) & 35.3(a). In contrast, and as discussed above, it was the Cantus= burden to present a complete reporter=s record, but they intentionally chose to provide this court with only a partial record of the hearing on Dominguez=s motion. See Tex. R. App. P. 34.6 & 35.3(b).