Opinion issued July 14, 2016




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-15-00438-CV
                           ———————————
                          ALI YAZDCHI, Appellant
                                       V.
                MIKE JONES AND SAM ADAMO, Appellees


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-05013


                                  OPINION

      Ali Yazdchi sued Mike Jones (his brother) and Sam Adamo (his former

attorney) over a dispute involving an alleged forged signature on a check. In two

issues, Yazdchi argues that the trial court erred in dismissing his lawsuit as

frivolous under Chapter 14 of the Civil Practice and Remedies Code and finding
that he is a vexatious litigant under Chapter 11 of the Civil Practice and Remedies

Code. We affirm.

                                     Background

      This lawsuit began in 2015 when Yazdchi sued Adamo and Jones for

various causes of action. Adamo had represented Yazdchi in a criminal case in

2010 in which Yazdchi was convicted of theft and of holding himself out to be a

lawyer. Yazdchi alleged that he paid Adamo to file a motion for probation but that

Adamo never filed that motion. At the same time, Adamo represented Yazdchi’s

brother, Jones, in a criminal case. Yazdchi claims that Jones forged Yazdchi’s

signature on some checks in 2010 and 2011 to pay Adamo for Jones’s legal fees

and that Adamo knew that Jones forged his signature but cashed the checks

anyway. Yazdchi was incarcerated when he filed this lawsuit and filed a

declaration of inability to pay court costs.

      Adamo filed a motion for summary judgment arguing that Yazdchi’s claims

were untimely because the statute of limitations had expired. Adamo also filed a

Section 11.051 motion requesting that the trial court find that Yazdchi is a

vexatious litigant.

      Yazdchi complains about three orders signed by the trial court. The first, a

partial summary judgment order signed on April 9, dismissed all of Yazdchi’s




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claims against Adamo but left the claims against Jones pending. It, therefore, was

an interlocutory order.

      The second order, signed on April 28, declared Yazdchi a vexatious litigant.

That order summarized some of Yazdchi’s litigation history. It briefly summarized

six cases that Yazdchi lost in the seven years (2008–2015) preceding the order. It

noted that Yazdchi had lost his appeals of his criminal conviction in this court and

the Texas Court of Criminal Appeals and that his petition for writ of certiorari was

denied by the U.S. Supreme Court. Additionally, it quoted a footnote from a

previous opinion of this court, Yazdchi v. Cornelius, which identified 12 appeals

Yazdchi lost between 1999 and 2007:

      We note that, in each of the following appeals brought by Ali
      Yazdchi, the trial courts’ judgments have been affirmed or the appeals
      brought by Ali Yazdchi have been dismissed. Yazdchi v. Nexcess
      Motorcars, No. 01-07-00185-CV, 2007 WL 1844901 (Tex. App.—
      Houston [1st Dist.] June 28, 2007, no pet.) (mem. op.); Yazdchi v.
      Allstate Ins. Co., No. 01-05-00327-CV, 2007 WL 1152983 (Tex.
      App.—Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem. op.);
      Yazdchi v. Am. Honda Fin. Corp., No. 05-10479, 2007 WL 464705
      (5th Cir. Feb. 6, 2007); Auto v. Travelers Ins. Co., No. 01-05-00327-
      CV, 2006 WL 2893324 (Tex. App.—Houston [1st Dist.] Oct. 12,
      2006, no pet.) (mem. op.); Yazdchi v. S. County Mut. Ins. Co., No. 11-
      06-00166-CV, 2006 WL 2253940 (Tex. App.—Eastland Aug. 3,
      2006, no pet.) (mem. op.); Yazdchi v. Am. Nat’l Prop. & Cas. Co., No.
      01-05-00750-CV, 2005 WL 3454142 (Tex. App.—Houston [1st Dist.]
      Dec. 15, 2005, no pet.) (mem. op.); Yazdchi v. Citicorp Credit Serv.,
      Inc., No. 01-05-00740-CV, 2005 WL 2989699 (Tex. App.—Houston
      [1st Dist.] Nov. 3, 2005, no pet.) (mem. op.); Yazdchi v. State, No. 14-
      04-00500-CV, 2005 WL 2149416 (Tex. App.—Houston [14th Dist.]
      Sept. 8, 2005, no pet.) (mem. op.); Yazdchi v. Am. Arb. Ass’n, No. 01-
      04-00149-CV, 2005 WL 375288 (Tex. App.—Houston [1st Dist.]

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      Feb. 17, 2005, no pet.) (mem. op.); Yazdchi v. Bennett Law Firm,
      P.C., No. 14-01-00928-CV, 2002 WL 1163568 (Tex. App.—Houston
      [14th Dist.] May 30, 2002, no pet.) (not designated for publication);
      Bouja v. State, No. 14-00-00072-CV, 2000 WL 674850 (Tex. App.—
      Houston [14th Dist.] May 25, 2000, no pet.) (not designated for
      publication); Yazdchi v. City of Houston, No. 14-98-01296-CV, 1999
      WL 219381 (Tex. App.—Houston [14th Dist.] Apr. 15, 1999, no pet.)
      (not designated for publication).

No. 01-07-00844-CV, 2009 WL 214547, at *1 n.1 (Tex. App.—Houston [1st Dist.]

Jan. 29, 2009, pet. denied) (mem. op.).1 The order detailed the reasons that

Yazdchi’s claims against Adamo were barred by limitations and additionally stated

that his claims against Jones were barred on the same grounds.

      Finally, the trial court signed a third order on May 1 finding Yazdchi’s

lawsuit frivolous under Chapter 14 of the Civil Practice and Remedies Code, which

governs inmate litigation, because Yazdchi had no reasonable probability of

ultimate success. The trial court’s order relied on several reasons, including that

the statute of limitations had expired for Yazdchi’s causes of action 2 and that

Yazdchi had failed to comply with the mandatory provisions of Section 14.004 of

the Civil Practice and Remedies Code, which requires an inmate defendant to file

certain disclosures with the trial court when the inmate files a lawsuit with a

1
      We can only consider cases filed seven years or less before the defendant’s motion
      to declare a plaintiff a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE ANN.
      § 11.054 (West Supp. 2015). Because all of the cases in the Yazdchi v. Cornelius
      footnote were decided more than seven years before Adamo’s motion, we cannot
      consider them in deciding whether Yazdchi is a vexatious litigant.
2
      Yazdchi disputes that the statute of limitations has expired for his claims.

                                            4
declaration of inability to pay costs. That third order dismissed all of Yazdchi’s

claims against Jones and Adamo.

         Yazdchi appeals the trial court’s dismissal orders and the trial court’s order

finding that he is a vexatious litigant.

                                   Dismissal of Case

         Yazdchi argues that the trial court’s May 1 order dismissing his lawsuit as

frivolous under Chapter 14 of the Civil Practice and Remedies Code was erroneous

because he filed his lawsuit before the statute of limitations expired on his claims

against Adamo and Jones and he has “a reasonable probability of prevailing in this

lawsuit.” Adamo responds that a “separate, additional, and independent ground”

exists to support the trial court’s dismissal of Yazdchi’s lawsuit because the trial

court found that Yazdchi did not comply with the mandatory provisions of Section

14.004 of the Civil Practice and Remedies Code.

         Because Yazdchi filed this lawsuit as an indigent inmate, this lawsuit is

governed by Chapter 14 of the Civil Practice and Remedies Code, which is entitled

“Inmate Litigation.” We review a Chapter 14 dismissal for an abuse of discretion.

Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no

pet.).

         Under Chapter 14, a trial court may dismiss a claim by an inmate, like

Yadzchi, if it finds the claim to be frivolous or malicious. TEX. CIV. PRAC. & REM.



                                            5
CODE ANN. § 14.003(a)(2) (West 2002); Comeaux v. Tex. Dep’t of Criminal

Justice, 193 S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A

claim is frivolous if it has no basis in law or fact. Comeaux, 193 S.W.3d at 86.

      An inmate who files a lawsuit and declares an inability to pay costs, as

Yazdchi did, must file an affidavit or declaration that satisfies the requirements of

Section 14.004. That Section requires an inmate to file certain information with the

trial court, including a separate affidavit or declaration “identifying each action,

other than an action under the Family Code, previously brought by the person and

in which the person was not represented by an attorney, without regard to whether

the person was an inmate at the time the action was brought” and “describing each

action that was previously brought.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.004

(West Supp. 2015). Such a declaration assists “the trial court in determining

whether a suit is malicious or frivolous . . . .” Gowan v. Tex. Dep’t of Criminal

Justice, 99 S.W.3d 319, 321 (Tex. App.—Texarkana 2003, no pet.). An inmate’s

claim will be dismissed “as frivolous” if the inmate does not satisfy the

requirements of Section 14.004. Anderson v. Tex. Dep’t of Criminal Justice, No.

10-14-00326-CV, 2015 WL 1570170, at *3 (Tex. App.—Waco Mar. 19, 2015, no

pet.); Thompson v. Rodriguez, 99 S.W.3d 328, 329–30 (Tex. App.—Texarkana

2003, no pet.) (affirming trial court’s dismissal of inmate’s claim as “frivolous”

because inmate did not comply with Section 14.004); Gowan, 99 S.W.3d at 322



                                          6
(“When an inmate does not comply with the requirements of Section 14.004, the

trial court is entitled to assume the suit is substantially similar to one previously

filed by the inmate and, therefore, frivolous.”); see Williams v. Brown, 33 S.W.3d

410, 412 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that trial court

did not err in dismissing inmate’s lawsuit as frivolous for failure to comply with

Section 14.004).

      The trial court’s order identifies several grounds for its dismissal of

Yazdchi’s lawsuit against Jones and Adamo. We must uphold a trial court’s

judgment “on any legal theory before it, even if the court gives an incorrect reason

for its judgment.” Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 290

(Tex. App.—Dallas 2008, pet. denied) (quoting Guar. Cty. Mut. Ins. Co. v. Reyna,

709 S.W.2d 647, 648 (Tex. 1986)). Thus, as long as any of the grounds listed in

Yazdchi’s dismissal is valid, we will affirm the judgment.

      The trial court found that, among other defects in his legal claims, “Yazdchi

failed to comply with the mandatory provisions of Section 14.004 of the Texas

Civil Practice and Remedies Code.” Yazdchi does not attack this ground on appeal

nor did he point to any evidence in the record to show that he did comply with

Section 14.004. Because of this independent, unchallenged ground for dismissal, it

is unnecessary for us to determine whether the trial court erred in finding that

Yazdchi’s claims were barred by limitations. We overrule Yazdchi’s first issue.



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                                Vexatious Litigant

      The trial court’s April 28 order finding that Yazdchi is a vexatious litigant

listed six cases that he filed within a seven-year period. Yazdchi argues that,

because he was an independent executor in two of those six cases, they should not

be counted toward the five-case minimum under the vexatious litigant statute.

Adamo responds that Yazdchi “has not presented the trial court any evidence, and

likewise has not identified anything in the record for this Court, that would

support” his contention that he was an independent executor in those cases.

A.    Standard of review and applicable law

      We review a trial court’s determination that a plaintiff is a vexatious litigant

for an abuse of discretion. Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—

Dallas 2006, no pet.). A trial court abuses its discretion when it “acts in an

arbitrary or capricious manner without reference to any guiding rules or

principles.” Id. (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).

      Yazdchi’s argument raises an issue of statutory interpretation. We review

statutory interpretation questions de novo. Molinet v. Kimbrell, 356 S.W.3d 407,

411 (Tex. 2011). In interpreting a statute, we must read words and phrases in

context and construe them according to the rules of grammar and common usage.

TEX. GOV’T CODE ANN. § 311.011 (West 2013). We must interpret the words

according to their plain and common meaning unless the context demonstrates a



                                          8
contrary intention or such a construction leads to absurd results. FKM P’ship v. Bd.

of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008). Our

primary aim is to discover the Legislature’s intent as indicated by the statute’s text.

In re Douglas, 333 S.W.3d 273, 283–84 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied).

      The vexatious litigant statute permits trial courts to control their dockets by

allowing expeditious dismissal “of frivolous and malicious litigation by litigants

without hope of success while, at the same time, providing protections for litigants’

constitutional rights to an open court when they have genuine claims that can

survive the scrutiny of the administrative judge and the posting of security” that is

required by the vexatious litigant statute. Id. at 284.

      Under Section 11.051 of the statute, a defendant may “on or before the 90th

day after the date the defendant files the original answer or makes a special

appearance, move the court for an order determining that the plaintiff is a

vexatious litigant and requiring the plaintiff to furnish security.” TEX. CIV. PRAC. &

REM. CODE ANN. § 11.051. A court must conduct a hearing on a Section 11.051

motion. Id. § 11.053. During the hearing, the court makes a two-step inquiry.

“First, in every instance, the judge must conclude there is no reasonable probability

the plaintiff will prevail in his litigation against the defendant. Second, the judge

must determine the plaintiff has a history of pro se litigation that is addressed by



                                           9
the statute . . . .” Drake v. Andrews, 294 S.W.3d 370, 374 (Tex. App.—Dallas

2009, pet. denied). The second step of the inquiry examines whether,

      (1)    the plaintiff, in the seven-year period immediately preceding
             the date the defendant makes the motion . . . has commenced,
             prosecuted, or maintained at least five litigations as a pro se
             litigant 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 11.054 (West Supp. 2015).

B.    Yazdchi is a vexatious litigant

      The Section 11.051 motion satisfied the first step of the vexatious litigant

test. The trial court, as discussed in the previous section, determined that there was

no reasonable probability that Yazdchi would prevail against Jones and Adamo

because Yazdchi did not meet the requirements of Section 14.004 and dismissed

his case as “frivolous” under Chapter 14. Yazdchi, therefore, did not have a

reasonable probability of prevailing in his litigation against them.

      Next, we must determine whether, in the seven years preceding Adamo’s

motion, Yazdchi “commenced, prosecuted, or maintained at least five litigations as

a pro se litigant” that satisfy the requirements of Section 11.054. The trial court’s



                                          10
order lists six cases that Yazdchi unsuccessfully “commenced, prosecuted, or

maintained” during the preceding seven years. Yazdchi does not dispute that three

of those cases satisfy the five-case minimum under Section 11.054. Although he

does not challenge that the three remaining cases were either determined to be

frivolous or groundless or resolved against him, Yazdchi argues that two of the

remaining three should not be included because he prosecuted those cases as a “pro

se executor.”3

      The Probate Code defines an “independent executor” as “the personal

representative of an estate under independent administration . . . .” TEX. EST. CODE

ANN. § 22.017 (West 2014); see Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). According to Yazdchi, because he was

acting as a “representative of an estate,” and not on his own behalf, the two cases

in which he acted as independent executor should not count toward the five-case

requirement. We disagree.

      The statutory text of Section 11.054 requires only that the alleged vexatious

litigant be a “litigant” that “commenced, prosecuted, or maintained” five cases, not

that the litigant be acting to secure his own interests. See TEX. CIV. PRAC. & REM.

3
      Because we hold that the two cases that Yazdchi prosecuted as a “pro se
      independent executor” count toward the five cases required by Section 11.054, we
      do not address the third case that allegedly originated in small claims court. Nor
      do we address the trial court exhibit of eight cases that Yazdchi has prosecuted
      since 2008 or the two additional cases Yazdchi has prosecuted in a county court at
      law.

                                          11
CODE ANN. § 11.054(1). In interpreting the word “litigant,” the Dallas court held

that a person not acting to secure his own interests was a litigant that “commenced,

prosecuted, or maintained” a case under Section 11.054. See Dolenz v. Boundy,

No. 05-08-01052-CV, 2009 WL 4283106, at *2–3 (Tex. App.—Dallas Dec. 2,

2009, no pet.) (mem. op.). In that case, the alleged vexatious litigant argued that

two cases should not count toward the five-case requirement “because he filed

them as a trustee.” Id. at *2. Although he held himself out as a lawyer when he was

acting as trustee, the Dallas court concluded that he, as a trustee, was a pro se

“litigant” under Section 11.054 and, thus, those two cases counted toward the five-

case requirement. Id. at *3.

      A litigant is a “party to a lawsuit; the plaintiff or defendant in a court action,

whether an individual, firm, corporation, or other entity.” Litigant, BLACK’S LAW

DICTIONARY (10th ed. 2014). An independent executor, even if not representing his

own personal interests, is a litigant that “commenced, prosecuted, or maintained” a

case under the meaning of Section 11.054 because he is a “party to a lawsuit.” See

id. Similarly, Yazdchi’s acting as an independent executor, even if not on his own

behalf, does not exclude those two cases from the five required under Section

11.054. Yazdchi, even if acting on behalf of an estate, prosecuted and maintained




                                          12
both cases as a “litigant.” Thus, the second prong of the vexatious litigant test is

satisfied.4

       Yazdchi cites to Steele v. McDonald to support his argument that a lawsuit

initiated by the plaintiff as an independent executor does not count toward the five-

case requirement. 202 S.W.3d 926, 928–29 (Tex. App.—Waco 2006, no pet.). But

Steele does not address Section 11.054; it holds that a non-lawyer cannot appear

pro se on behalf of an estate as an independent executor. See id. This case is,

therefore, inapplicable.

       The trial court did not abuse its discretion in finding that Yazdchi had

“commenced, prosecuted, or maintained” at least five lawsuits over a seven-year

period before Adamo’s motion. We, therefore, overrule Yazdchi’s second issue.

                                      Conclusion

       We affirm the trial court’s judgment and order declaring Yazdchi a

vexatious litigant.




                                                Harvey Brown
4
       Additionally, there was some dispute over whether Yazdchi was acting as an
       independent executor. In Cornelius, this court, on appeal, stated that, “[a]lthough
       we refer to Ali Yazdchi as appellant in his alleged capacity as independent
       executor for the estate of Abbas Yazdchi, this opinion should not be considered as
       establishing that he is in fact the independent executor . . . .” See Yazdchi v.
       Cornelius, No. 01-07-00844-CV, 2009 WL 214547, at *1 n.2 (Tex. App.—
       Houston [1st Dist.] Jan. 29, 2009, pet. denied) (mem. op.).

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                                            Justice

Panel consists of Justices Keyes, Brown, and Huddle.




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