Court of Appeals of Texas,
Houston (14th Dist.).
Patrick Olajide AKINWAMIDE, Appellant
TRANSPORTATION INSURANCE CO., CNA Insurance Co. & Automatic Data Processing, Inc., Appellee.
March 11, 2008.
On Appeal from the 80th District Court, Harris County, Texas, Trial Court Cause No.2004-12332.
Attorneys & Firms
Patrick Olajide Akinwamide, pro se.
Jeffrey L. Diamond, for Transportation Insurance Co.
Panel consists of Chief Justice BOYCE.
JOHN S. ANDERSON, Justice.
*1 After two unsuccessful lawsuits to recover on a workers’ compensation claim, appellant, Patrick Olajide Akinwamide, filed a bill of review in the trial court in an attempt to set aside a final judgment rendered against him in 2000. The trial court granted summary judgment in favor of appellees, Transportation Insurance Co., CNA Insurance Co., and Automatic Data Processing, Inc. Additionally, the trial court declared appellant a vexatious litigant, and ordered appellant to pay a $2,500 security bond, which was subsequently released to appellees. In eight points of error, appellant, a pro se litigant, contends the trial court erred in granting appellees’ motion for summary judgment, erred in declaring appellant a vexatious litigant, and erred in releasing the security posted. We vacate and dismiss in part and reverse and render in part.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant has been litigating his claims against appellees for over ten years. Appellant’s suit began when he filed a workers’ compensation claim with the Texas Industrial Accident Board (IAB) claiming he had developed respiratory problems in October 1989 caused by the inhalation of second-hand smoke while working at Automatic Data Processing, Inc. (ADP). In August 1997, the IAB issued a final ruling denying appellant’s claim. In response, in September 1997, appellant filed suit against ADP in the district court (hereinafter “first suit”). Appellant later sought to add Transportation Insurance Co. (TIC) and CNA Insurance Co. (CNA) as defendants, but the district court denied appellant’s motion to join.
Appellant’s case was tried to a jury in June 2000, and the jury determined appellant failed to timely file his appeal from the IAB ruling. The court signed the final judgment in August 2000, and appellant timely appealed the trial court’s decision. The Thirteenth Court of Appeals affirmed the trial court’s judgment in August 2004.
While appellant’s first suit was pending in the appellate court, appellant again attempted to recover damages by filing a second lawsuit against ADP, TIC, and CNA (hereinafter “second suit”). In this suit, alleging all three companies conspired to misrepresent facts pertinent to appellant’s claim for compensation, appellant sued for fraud, negligence, and fraudulent concealment. Appellees filed a motion for summary judgment, which the trial court granted in April 2002. Appellant appealed this decision, and in May 2003, the Fourteenth Court of Appeals affirmed the trial court’s judgment. Appellant subsequently appealed the decision to the Texas Supreme Court, and the Supreme Court denied the petition for review in October 2003.
In yet another attempt to collect damages, appellant filed a bill of review with the trial court in March 2004 seeking review of the trial court’s decision in appellant’s first suit. Appellant claimed the judgment in the first suit was voidable, and it should be replaced with a default judgment in his favor. In response to this third suit, appellees filed a motion to declare appellant a vexatious litigant, and the trial court granted the motion in March 2006. The order declaring appellant a vexatious litigant required appellant to post a $2,500 security, which appellant posted. Appellees also filed a motion for summary judgment in July 2004, and the trial court granted their motion in September 2006. Appellant filed a motion for new trial and a motion to vacate the judgment, and both orders were subsequently denied. In October 2006, the trial court ordered the release of appellant’s security to the appellees. Appellant filed a timely notice of appeal.
A. Did the Trial Court Err in Granting Appellees’ Motion for Summary Judgment?
*2 Appellant’s first five issues all challenge the trial court’s granting of appellees’ motion for summary judgment. In his first issue, appellant argues the trial court erred in granting the appellees’ summary judgment because appellees failed to properly serve the motion for summary judgment on appellant. In his next four issues, appellant argues the trial court erred in granting the motion for summary judgment because appellees’ exhibits attached to the motion were not properly certified, appellees’ evidence was insufficient, and the verification attached to the motion was insufficient.
1. Bill of Review
A bill of review is an equitable proceeding brought by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex.1980).
To invoke the equitable powers of the court, the bill of review petitioner must, as a preliminary matter, make a prima facie showing of a meritorious defense to the cause of action alleged to support the judgment. In re L.N.M., 182 S.W.3d 470, 474-75 (Tex.App.-Dallas 2006, no pet.). Thus, we first address whether the trial judge erred in failing to find appellant made a prima facie showing of a meritorious claim or defense.
In appellant’s bill of review, his meritorious claim argument centers around the idea that appellees did not have workers’ compensation insurance in full force and effect at the time of his injury. Appellant argued appellees were negligent in failing to provide a reasonably safe work place and failing to protect him against injuries while acting in the course and scope of his employment. Appellant also argued appellees intentionally engaged in the misrepresentation of facts, engaged in intentional fraudulent acts, and engaged in deceptive acts to conceal the truth, which caused appellant harm. Appellant attaches affidavits and twenty-four exhibits to his petition, which include things such as medical reports, petitions and answers filed in the first suit, motions and orders filed in the first suit, the final judgment of the first suit, and documents from his claim with the IAB. After reviewing the proof presented by appellant in his bill of review petition, we cannot say it is sufficient prima facie proof to support appellant’s argument of a meritorious claim or defense. His evidence merely proves he has litigated this issue multiple times in the past. Furthermore, a bill of review may not be used as an additional remedy after one has made a timely, but unsuccessful appeal. Rizk, 603 S.W.2d at 775. Thus, we find appellant failed to present prima facie proof in support of his claim of a meritorious claim or defense.
*3 When a petitioner fails to make a prima facie showing, the proceeding terminates, and “the trial court shall dismiss the case.” Rich, 2006 WL 2106715, at *1-3.
B. Did the Trial Court Err in Declaring Appellant a Vexatious Litigant?
In appellant’s sixth issue, he argues the trial court erred in declaring him a vexatious litigant because appellees failed to comply with section 11.051 of the Texas Civil Practice and Remedies Code. More specifically, appellant argues appellees failed to file their motion within the requisite ninety-day time period.
1. Standard of Review
We review the trial court’s ultimate determination that appellant is a vexatious litigant under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).
2. Applicable Law
Texas law provides a mechanism allowing a plaintiff to be declared a vexatious litigant. See Tex. Civ. Prac. & Rem.Code Ann. ch. 11 (Vernon 2006). But, a defendant must file the motion triggering that mechanism “on or before the 90th day after the date the defendant files the original answer.” Id. § 11.051.
In this case, appellees filed their original answer on April 12, 2004. They filed their motion to declare appellant a vexatious litigant on July 21, 2004. Appellees motion was filed after the statutory ninety-day period had expired; therefore, it was an abuse of discretion for the trial court to grant relief under that circumstance. See Spiller v. Spiller, 21 S.W .3d 451, 454 (Tex.App.-San Antonio 2000, no pet.) (holding the motion filed outside the ninety-day period was untimely).
*4 Appellees argue even though the time to file a motion may have expired, the court had the inherent power to prevent such vexatious litigation. Appellees cite to University of Texas v. Morris and Birdo v. Holbrook in support of this proposition, but their reliance on these two cases is misplaced. See Tex.R.App. P. 47.1.
C. Did the Trial Court Err in Ordering the Release of Security to Appellees?
In his eighth issue, appellant argues the trial court erred in releasing his security to appellees. After appellant was declared a vexatious litigant, he was ordered to furnish security for the benefit of appellees in the amount of $2,500. Appellant complied with the order and deposited $2,500 with the trial court. On October 27, 2006, the trial court ordered the registry to release the security to appellees’ attorney. The only reason the trial court required appellant to deposit this security was because it declared appellant a vexatious litigant. See Tex. Civ. Prac. & Rem.Code Ann. § 11.055 (Vernon 2006) (requiring the court to order plaintiff to furnish security upon a finding the plaintiff is a vexatious litigant). In light of our decision that the trial court abused its discretion in declaring appellant a vexatious litigant, we hold the court also abused its discretion in requiring appellant to furnish a security and further abused its discretion in releasing this security to appellees. We sustain appellant’s eighth issue.
*5 We vacate the trial court’s order granting appellees’ motion for summary judgment, and we dismiss appellant’s bill of review. We reverse the order of the trial court declaring appellant a vexatious litigant and render judgment that appellant is not a vexatious litigant. We further reverse the order of the trial court releasing the $2,500 security to appellees and render judgment that appellant recover the $2,500 security from appellees.