No Vexation Without Litigation

A pro se litigant has managed to obtain mandamus relief from the court of appeals.  The litigation started after Mr. Florance filed a $129 lien against the property of the Colin County Clerk.  The trial court invalidated the lien, and the court of appeals rejected both Florance’s appeal and a subsequent bill of review.  But the trial court had also declared Florance to be a vexatious litigant, a ruling that came well after the court lost its plenary power.  The court of appeals footnoted that problem in one of its previous opinions, and Florance took the opportunity to challenge the vexatious litigant finding by filing for a writ of mandamus.  Although the court of appeals initially denied any relief, the panel changed its mind after Florance filed a motion for en banc rehearing.   The panel held that the vexatious litigant order was not an exercise of the trial court’s continuing power to enforce its prior judgment, and that it was otherwise void because it was signed after the expiration of plenary power.  Because mandamus is the appropriate mechanism to require a trial court to vacate a void order, the court of appeals conditionally granted the writ.

In re Florance, No. 05-12-00713-CV (mandamus)

In re a Purported Lien or Claim Against Collin County Clerk Brenda Taylor, 219 S.W.3d 620 (Tex. App.-Dallas 2007, pet. denied) (first appeal)

Florance v. State, 352 S.W.3d 867 (Tex. App.-Dallas 2011, pet. denied) (appeal from bill of review)

Florance v. State, No. 05-08-00984-CR (memorandum opinion affirming conviction and 6-month sentence for failure to release fraudulent lien)

Florance v. Buchmeyer, 500 F.Supp.2d 618 (N.D. Tex. 2007) (dismissing lawsuit against state judge, federal judge, district attorney and assistant district attorneys, district attorney’s investigator, county clerk, unknown clerks, city prosecutor, assistant attorney general, Collin County, the State of Texas, and the federal government)

Be Specific, Please

The court has issued some interesting comments in connection with the denial of a motion for rehearing in a condemnation case.  In the jury charge conference, Dallas County objected to the property owner’s proposed definition of “Cost to Cure,” but the specific basis of the objection was unclear.  The trial judge eventually summarized the objection as being that the instruction amounted to a comment on the weight of the evidence, and the County agreed.  The trial judge fixed that problem by modifying the instruction to award cost to cure damages, “if any.”  On appeal, the County attempted to argue that the definition was actually “an incorrect statement of Texas law,” but the court of appeals rejected that claim:

A party objecting to the jury charge must “point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274. When the complaining party’s objection is, “in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable.” Id.
Reviewing the reporter’s record of the charge conference, we cannot determine the County’s exact complaint to the trial court concerning “cost to cure” except that it constituted a comment on the weight of the evidence. The trial court addressed that complaint by modifying the statement of the definition.

The court also rejected the County’s argument that the property owner’s expert had offered conclusory opinion testimony, since the County had failed to raise an issue as to the legal sufficiency of the testimony.  In its appellate briefing, the County had challenged the trial court’s admission of the expert testimony as being an abuse of discretion, but did not attack the legal sufficiency of the testimony.  For that reason, the court declined to evaluate whether the testimony was conclusory, and therefore denied the County’s motion for rehearing.

Dallas County, Texas v. Crestview Corners Car Wash, No. 05-09-00623-CV