                                   MEMORANDUM OPINION
                                            No. 04-09-00565-CV

                                      Kristofer Thomas KASTNER,
                                        Appellant/Cross-Appellee

                                                       v.

                          MARTIN, DROUGHT & TORRES, INC., et al.,
                                  Appellees/Cross-Appellants

                     From the 407th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-06774
                             Honorable Andy Mireles, Judge Presiding 1

PER CURIAM

Sitting:         Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: July 21, 2010

REVERSED AND RENDERED

           In this cross-appeal, Martin, Drought & Torres, Inc., Gerald T. Drought, and Dain A.

Dreyer (collectively “Martin & Drought”) appeal the trial court’s order determining that the

appeal by Kristofer Thomas Kastner is not frivolous and denying Martin & Drought’s motion to

deny Kastner a free appellate record. This court ordered the parties to file briefs relating to the


1
  The Honorable Antonia Arteaga is the presiding judge of the 407th Judicial District Court, Bexar County, Texas.
The Honorable Andy Mireles signed the order dated October 21, 2009 finding the appeal not frivolous and denying
the motion to deny a free appellate record.
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cross-appeal and abated all other appellate deadlines. We reverse the trial court’s order and

render judgment that Kastner’s appeal is frivolous.

                                         BACKGROUND

       After the Texas Board of Legal Examiners (“Board”) determined that Kastner was not fit

for admission to the Texas Bar, Kastner retained Martin & Drought to represent him before the

Board in seeking reconsideration of his application for admission. After a hearing on Kastner’s

motion to reconsider in November of 1999, the Board issued an order confirming its prior

decision.

       In August of 2006, Kastner sued Martin & Drought for legal malpractice and breach of

fiduciary duty (Kastner I). The trial court granted a no evidence summary judgment in favor of

Martin & Drought. This court affirmed the trial court’s summary judgment, holding Kastner’s

suit was barred by limitations and Kastner failed to present any requisite expert testimony on his

claims for professional negligence and breach of fiduciary duty. Kastner v. Martin & Drought,

Inc., No. 04-07-00342-CV, 2009 WL 260601 (Tex. App.—San Antonio Feb. 4, 2009, pet.

denied) (mem. op.).

       In August of 2008, Kastner subsequently filed a second lawsuit against Martin &

Drought, alleging the same claims but adding an additional defendant (Kastner II). See Kastner

v. Martin & Drought, P.C., No. 04-08-00779-CV, 2009 WL 618698, at *3 (Tex. App.—San

Antonio Mar. 11, 2009, pet. denied) (mem. op.), cert. denied, Kastner v. Martin, Drought &

Torres, 176 L.Ed.2d 570 (2010). The trial court granted a take nothing summary judgment based

on res judicata and found an appeal of its judgment would be frivolous. See id. This court

affirmed the trial court’s order, holding “There is nothing in the record or the briefs that would

warrant our finding an abuse of discretion by the trial court with regard to its finding the appeal



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frivolous.” Id. In addition to affirming the frivolous finding, we also affirmed the trial court’s

order sustaining contests to Kastner’s affidavit of inability to pay. Id. at *1-3. Accordingly, we

ordered Kastner to pay the filing fee for the appeal. Id. at *3. Because Kastner failed to pay the

filing fee, his appeal was dismissed for want of prosecution. See Kastner v. Martin & Drought,

P.C., No. 04-08-00779-CV, 2009 WL 962528 (Tex. App.—San Antonio Apr. 8, 2009, pet.

denied) (mem. op.), cert. denied, Kastner v. Martin, Drought & Torres, 176 L.Ed.2d 570 (2010).

         In April of 2009, Kastner filed the underlying lawsuit which again alleges claims against

Martin & Drought relating to the legal services provided to Kastner in representing him before

the Board (Kastner III). Martin & Drought filed a motion to declare Kastner a vexatious litigant.

The trial court granted the motion and declared Kastner to be a vexatious litigant. The trial court

further ordered Kastner to furnish security for Martin & Drought’s costs and attorney’s fee or his

lawsuit would be dismissed. Finally, the trial court’s order prohibited Kastner from filing any

further litigation against Martin & Drought unless he secured the permission of the local

administrative judge prior to filing. Kastner filed the instant appeal challenging the trial court’s

order.

         Martin & Drought filed a motion in the trial court, requesting the trial court to declare

Kastner’s appeal frivolous pursuant to section 13.003 of the Texas Civil Practice and Remedies

Code. The trial court denied the motion, and Martin & Drought appeal.

                                               DISCUSSION

         In determining whether an appeal is frivolous, the trial court may consider whether the

appellant has presented a substantial question for appellate review. TEX. CIV. PRAC. & REM.

CODE ANN. § 13.003(c) (Vernon 2002). A proceeding is frivolous when it lacks an arguable

basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.



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App.—San Antonio 1998, order). We review a trial court’s determination of whether an appeal

is frivolous under an abuse of discretion standard. Id. A trial court abuses its discretion if it acts

without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985).

       The trial court’s ruling in this case does not appear to be based on a determination of

whether the appeal lacked an arguable basis either in law or fact or presented a substantial

question for appellate review.       See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(c);

De La Vega, 974 S.W.2d at 154. Instead, the trial court’s decision appears to be based on its

belief that “people have a right to appeal” and because “the Court of Appeals has not stated that

[Kastner] can’t come back to Court.” The trial court appeared to believe it was only required “to

determine whether [Kastner] needed a record to go up on appeal.” The trial court concluded, “I

don’t think the issue of frivolity by Judge Peden or Judge Arteaga is frivolous in the sense that it

can’t be tested by the Appellate Court. To not give him a record of those things would disallow

the Court of Appeals to make that determination of whether it is, in fact, frivolous. Because

that’s not been determined by the Court of Appeals yet.” Based on these statements, it does not

appear that that the trial court acted in reference to the guiding rules and principles for

determining whether an appeal is frivolous, i.e., whether the appeal lacks an arguable basis either

in law or fact or fails to present a substantial question for appellate review. TEX. CIV. PRAC. &

REM. CODE ANN. § 13.003(c); De La Vega, 974 S.W.2d at 154.

       “A court may find a plaintiff [to be] a vexatious litigant if the defendant shows that there

is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant

and that: … (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



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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(2) (Vernon 2002). At the

hearing on whether the appeal of the trial court’s order finding Kastner to be a vexatious litigant

would be frivolous, Martin & Drought admitted into evidence the pleadings in Kastner I and

Kastner II, the trial court’s summary judgments in those lawsuits, and this court’s opinions

disposing of the appeals of those judgments. Martin & Drought also introduced into evidence

the petition filed by Kastner in the underlying cause which pled claims arising out of the same

facts alleged in Kastner I and Kastner II. Finally, Martin & Drought introduced into evidence

the trial court’s findings of fact and conclusions of law in support of its order finding that

Kastner was a vexatious litigant. In its findings, the trial court initially recited the procedural

history of the three lawsuits. The trial court then found that the claims in Kastner III “arise out

of the same facts and transactions” alleged in Kastner I and Kastner II. The trial court also

found that Kastner was relitigating or attempting to relitigate, “in propria persona, the causes of

actions, claims, controversies, and issues of fact or law determined or concluded by a final

determination against the same Defendants as to whom litigation was finally determined in”

Kastner I and Kastner II. Moreover, the trial court found that Kastner was attempting to

relitigate, in propria persona, the validity of the determinations in Kastner I and Kastner II

against the same defendants as to whom the litigation was finally determined. Finally, the trial

court concluded that Kastner did not have a reasonable probability of prevailing against Martin

& Drought in Kastner III. Based on the evidence presented, we hold the trial court abused its

discretion in finding Kastner’s appeal not frivolous because the evidence conclusively



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established that an appeal of the trial court’s order lacked an arguable basis and such an appeal

would not present a substantial question for appellate review. TEX. CIV. PRAC. & REM. CODE

ANN. § 13.003(c); De La Vega, 974 S.W.2d at 154.

                                              CONCLUSION

          The trial court’s order is reversed. Judgment is rendered that the appeal by Kastner is

frivolous. Kastner is therefore ordered to pay the costs for the preparation of the reporter’s

record.

                                                 PER CURIAM




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