TERRY JAMES v. WANDA PARISH (2011)

MEMORANDUM OPINION

Opinion By Justice Murphy

Terry James appeals orders of the trial court declaring him a vexatious litigant and dismissing his suit.   We affirm the trial court's judgment.

Background

Representing himself, James filed his original action in the justice of the peace court against Wanda Parish, the director of human resources for Fiesta Food Mart, Inc., his former employer.   In his complaint, styled “Suit for Intentional Infliction of Emotion Distress and Retaliation,” James alleged Parish “wrote [James] [s]tating that she needed a formal request from [James's] insurance company or a legal representative” after James “requested documentation to provide to his insurer his loss wages as a result of [a prior automobile accident].”   James also alleged Parish failed to respond to a subsequent message he left informing her the information was his “personal information,” which the company “had no right to withhold,” and “it was unconstitutional for [Parish] to attempt to force [him] to hire an attorney.”   Although Parish filed a motion seeking to declare James a vexatious litigant, the JP court conducted a trial on the merits and rendered judgment against James.   James then appealed to the county court, where Parish filed another motion to declare James a vexatious litigant.   See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.001-.104 (West 2002).   The trial court conducted a hearing on the motion pursuant to the statute and declared James a vexatious litigant.   When James failed to furnish security as required by the trial court's order, the case was dismissed.   See id. §§ 11.055-.056. James appealed.

In two issues, James contends Parish did not meet her burden of proving he is a vexatious litigant and the trial court erred in failing to file findings of fact and conclusions of law.

Discussion

We review the trial court's determination that James is a vexatious litigant under an abuse of discretion standard.   See Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex.App.-Dallas 2006, pet. denied).   Under that standard, we are not free to substitute our own judgment for that of the trial court.   See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam).   The trial court abuses its discretion if it acts in an arbitrary or capricious manner without reference to any guiding rules or principles.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Under chapter 11 of the Texas Civil Practice and Remedies Code, a court may find a plaintiff is a vexatious litigant if the defendant shows (1) there is not a reasonable probability that the plaintiff will prevail in the litigation, and (2) plaintiff, acting pro se, has commenced, prosecuted, or maintained at least five litigations other than in a small claims court that have been determined adversely to plaintiff within the seven-year period preceding defendant's motion.   See Tex. Civ. Prac. & Rem.Code Ann. § 11.054(1)(A).   Chapter 11 includes additional grounds for declaring a plaintiff a vexatious litigant that we do not address in this appeal.   See id. § 11.054(1)-(3).

Based upon our review of the record, we cannot conclude the trial court abused its discretion when it found that James is a vexatious litigant.   James himself recites in his reply brief that Parish provided the trial court with documentation showing James had filed at least twelve lawsuits since 2003 that were determined adversely to James.   As to the merits of his claim against Parish, James asserts a generic claim for intentional infliction of emotional distress based on Parish's letter requesting authorization to disclose wage information and failing to respond to a voice-mail message left by James.

To recover on a claim for intentional infliction of emotional distress, James must establish that Parish acted intentionally or recklessly and her conduct was extreme and outrageous.   See Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex.2004).   To be actionable, Parish's conduct must be so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency;  the conduct must be regarded as atrocious and utterly intolerable in a civilized community.  Id. The court also must determine, in the first instance, whether Parish's conduct was extreme and outrageous.   Id. It is not sufficient if Parish acted with an intent that is tortious, malicious, or even criminal because it is her conduct that must be extreme and outrageous.   See Toles v. Toles, 113 S.W.3d 899, 921 (Tex.App.-Dallas 2003, no pet.).   Parish's conduct as alleged by James does not meet the threshold legal test for a claim of intentional infliction of emotional distress, and the trial court did not abuse its discretion in determining there is not a reasonable probability that James will prevail in the litigation.  Tex. Civ. Prac. & Rem.Code Ann. § 11.054. We overrule James's first issue.

In his second issue, James asserts the trial court failed to file findings of fact and conclusions of law.   Findings of fact and conclusions of law are not required for rulings on motions to declare a plaintiff a vexatious litigant.   See Willms, 190 S.W.3d at 802.   Additionally, James contends in his first issue that Parish did not meet her burden of proving he is a vexatious litigant.   The only prong of Parish's burden challenged by James is the lack of a reasonable probability James will prevail in the litigation.   Accordingly, he is aware of the trial court's finding and conclusion and does not have to guess at the basis for the trial court's ruling.   We overrule James's second issue.

Conclusion

The trial court did not abuse its discretion in finding James is a vexatious litigant.   We affirm the trial court's judgment.

100150F.P05

MARY MURPHY JUSTICE