                                MEMORANDUM OPINION
                                        No. 04-11-00293-CV

                                         David Carl GOAD,
                                             Appellant

                                                  v.

      ZUEHL AIRPORT FLYING COMMUNITY OWNERS ASSOCIATION, INC.,
                              Appellee

                    From the 166th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2010-CI-12496
                            Honorable Michael Peden, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: May 23, 2012

REVERSED AND REMANDED

           David Goad, pro se, appeals the trial court’s summary judgment declaring him a

vexatious litigant. We reverse and remand the judgment.

                                             BACKGROUND

           Zuehl Airport Flying Community Owners Association, Inc. (“ZAFCOA”) sued David

Carl Goad under the Texas Uniform Declaratory Judgment Act, seeking a declaration that Goad

is a “vexatious litigant” within the meaning of chapter 11 of the Texas Civil Practice and
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Remedies Code and requesting a permanent injunction to prohibit Goad from filing any litigation

against ZAFCOA, its officers, or directors, without first furnishing security for the benefit of

ZAFCOA. In addition, ZAFCOA asserted causes of action for malicious prosecution, abuse of

process, and civil conspiracy. Although Goad is a resident of Comal County, ZAFCOA filed suit

in Bexar County, alleging venue was proper because Goad filed several of the lawsuits that are

the basis of the declaratory judgment action in federal court in Bexar County.

         Several weeks after he was served, Goad filed a motion for extension of time to file an

answer. He later filed a motion to transfer venue, alleging mandatory venue in Comal County,

and filed his answer, subject to the motion to transfer. However, before Goad filed his motion to

transfer and answer, ZAFCOA served him with a motion for summary judgment on its claims for

declaratory and injunctive relief and set a hearing on the motion for twenty-one days later. Goad

filed objections to the motion and to the timing of the hearing, but the record does not reflect he

presented them to the trial court or obtained any express rulings. The trial court granted

ZAFCOA’s motion and signed an order that declared him a vexatious litigant and prohibited him

from filing any new litigation in a court of this State without either first obtaining permission

from the local administrative judge or furnishing security in the amount of $50,000.

         The trial court later heard and denied the motion to transfer venue. ZAFCOA then

nonsuited its remaining claims, making the summary judgment final and appealable. In this

appeal, Goad argues the trial court erred in denying his motion to transfer venue and in granting

the motion for summary judgment. 1




1
 Goad also contends the trial court erred in failing to reset his motion for reconsideration after Goad was unable to
appear at the original setting and in failing to make findings of fact and conclusions of law. Because of our
disposition of Goad’s other issues, we do not decide these issues.

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                                             VENUE

       The trial court denied Goad’s motion to transfer venue, finding in part that Goad waived

his objection to venue. We review the trial court’s determination of waiver for abuse of

discretion. Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 406 (Tex. App.—Houston

[14th Dist.] 2004, no pet.); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 787 (Tex. App.—

San Antonio 1998, pet. denied) (op. on reh’g). A court abuses its discretion if it acts “without

reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701

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

       “An objection to improper venue is waived if not made by written motion filed prior to or

concurrently with any other plea, pleading or motion except a special appearance.” TEX. R. CIV.

P. 86.1; see Union Carbide v. Loftin, 256 S.W.3d 869, 875 (Tex. App.—Beaumont 2008, pet.

dism’d). Goad was served with the original petition on August 2, 2010. On August 19, Goad

filed a motion for extension of time to file his answer, asking the court for a deadline of October

19, 2010, to file the answer. The trial court did not rule on the motion, and ZAFCOA proceeded

with discovery and the filing of its motion for summary judgment. Goad thereafter filed his

motion to transfer venue on October 18, and his answer on October 20. Goad’s objection to

venue was not made before or concurrent with any other plea or motion. The trial court therefore

acted in accordance with guiding rules and principles and did not abuse its discretion in finding

Goad waived his objection to venue.

                                      SUMMARY JUDGMENT

       We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In our review of the judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any



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doubts in the nonmovant’s favor. Id. Under Texas Rule of Civil Procedure 166a(c), the party

moving for a traditional summary judgment carries the burden to show that no genuine issue of

material fact exists and that it is entitled to judgment as a matter of law. Id.; TEX. R. CIV. P.

166a(c). The nonmovant has no burden to respond to the motion unless the movant met its

burden to conclusively establish all elements of its cause of action or defense. M.D. Anderson

Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).

        Chapter 11 of the Civil Practice and Remedies Code provides a mechanism for a

defendant to have a plaintiff declared a vexatious litigant. Specifically, section 11.051 provides

“the 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: (1) determining that the

plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security.” TEX. CIV.

PRAC. & REM. CODE ANN. §11.051 (West 2002). In Chapter 11, a “plaintiff” is “an individual

who commences or maintains a litigation;” a “defendant” is “a person or governmental entity

against whom a plaintiff commences or maintains or seeks to commence or maintain a

litigation;” and “litigation” means “a civil action commenced, maintained, or pending in any

state or federal court.” Id. §11.001 (West Supp. 2011). Section 11.054 sets out the criteria for

finding a plaintiff to be a vexatious litigant:

                A court may find a plaintiff 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:

                (1) the plaintiff, in the seven-year period immediately preceding
                the date the defendant makes the motion under Section 11.051, has
                commenced, prosecuted, or maintained in propria persona at least
                five litigations 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

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                       (C) determined by a trial or appellate court to be frivolous
                       or groundless under state or federal laws or rules of
                       procedure;

               (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 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; or

               (3) the plaintiff has previously been declared to be a vexatious
               litigant by a state or federal court in an action or proceeding based
               on the same or substantially similar facts, transition, or occurrence.

Id. § 11.054 (West 2002). In its motion for summary judgment, ZAFCOA asserted it had

established the elements of section 11.054(1) and section 11.054(2). In support of the motion,

ZAFCOA attached copies of eight court orders, judgments, and opinions. The trial court

determined ZAFCOA had established the criteria in section 11.054(1), finding Goad had pursued

seven actions against ZAFCOA in the three preceding years and each was finally determined

adversely to Goad or determined to be groundless. Additionally, the court found “there appears a

reasonable probability that ZAFCOA will prevail in this litigation.”

       On appeal, Goad contends the trial court erred in granting summary judgment because

(1) an order under Chapter 11 may only be sought by a “defendant,” by means of a motion,

against a “plaintiff” in a pending litigation, none of which occurred here, and (2) ZAFCOA did

not establish any of the criteria in section 11.054. We agree with Goad’s second contention, and

therefore do not reach the first ground.

       To meet its summary judgment burden, ZAFCOA had to conclusively establish Goad had

commenced, prosecuted or maintained at least five pro se civil actions that were either finally

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determined adversely to Goad or determined by a court to be frivolous or groundless. 2 See id.

§ 11.001(2) (West Supp. 2011); id. § 11.054(1),(2) (West 2002); see also Spiller v. Spiller, 21

S.W.3d 451, 454 (Tex. App.—San Antonio 2000, no pet.) (holding in context of section 11.054

that “in propria persona” is synonymous with “pro se;” both refer to litigant representing himself

without the benefit of an attorney). We examine each of the eight documents ZAFCOA filed as

its summary judgment evidence to determine whether it met its burden.

        • Order dated June 11, 2008, in James P. MacIvor and David Goad v. Tommy
        Anderson, et al., No. SA-08-CA-470-OG, in the United States District Court
        for the Western District of Texas

        This exhibit is an order denying the plaintiffs’ application for a temporary restraining

order. However, nothing in the order or in the rest of the summary judgment evidence

demonstrates the litigation in which this order was rendered was finally determined adversely to

Goad or that it was found to be frivolous.

        • Judgment and order of dismissal dated November 12, 2009, in David Goad
        v. Tommy Anderson, et al., No. SA-08-CA-674-FB, in the United States
        District Court for the Western District of Texas and
        • Order dated August 3, 2010, in David Goad v. Tommy Anderson, et al., No.
        10-50022, in the United States Court of Appeals for the Fifth Circuit,
        dismissing appeal from judgment in No. SA-08-CA-674-FB

        These exhibits evidence a civil litigation that was finally determined adversely to Goad.

However, nothing in the documents from either the district court or court of appeals suggests or

establishes Goad was proceeding pro se in the litigation. Accordingly, ZAFCOA did not prove

this litigation meets the criteria of section 11.054. 3




2
  ZAFCOA did not allege and the trial court did not find that Goad permitted any of the actions at issue to remain
pending at least two years without having been brought to trial or hearing. See id. § 11.054(1)(B).
3
  ZAFCOA appears to contend the district court proceeding and the appeal are separate “litigations” that were
“finally determined” against Goad. We disagree. An appeal of a judgment in a civil action is not a separate
“litigation” as that word is used in Chapter 11. Rather, the Fifth Circuit order simply satisfies ZAFCOA’s burden to
establish the litigation was finally determined against Goad.

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        • Memorandum opinion dated September 23, 2009, in David Goad v. State,
        No. 04-09-00429-CR, in the Fourth Court of Appeals

        This document is an opinion explaining the reasons for this court’s dismissal of Goad’s

appeal in a criminal case. Litigation meeting the criteria in section 11.054 must be civil, not

criminal. See id. § 11.001(2) (West Supp. 2011).

        • Memorandum opinion dated September 30, 2009, in In re David Goad, No.
        04-09-00586-CV, in the Fourth Court of Appeals

        This is a memorandum opinion in an original mandamus proceeding. The opinion states

the proceeding arises out of Cause No. 08-1872-CV, styled Zuehl Airport Flying Community

Owners Association v. Phoenix Air Transport, Inc., James MacIvor, David Goad, and Walter

Schmidt, then pending in the 25th Judicial District Court of Guadalupe County, Texas. Again, the

summary judgment evidence does not establish Goad pursued the mandamus proceeding pro se,

and therefore the criteria in section 11.054 are not satisfied. 4

        • Memorandum Opinion dated April 28, 2010, in David Goad v. Zuehl Airport
        Flying Community Owners Association, Inc., No. 04-09-00805-CV, in the
        Court of Appeals, Fourth District of Texas, dismissing for want of
        prosecution for failing to pay the fee for the clerk’s record;
        • Memorandum Opinion and judgment dated September 22, 2010, in David
        Goad v. Zuehl Airport Flying Community Owners Association, Inc., No. 08-10-
        00216-CV, in the Court of Appeals, Eighth District of Texas, dismissing for
        want of jurisdiction because no final order had been issued by the trial court;
        and
        • Order of Remand dated July 23, 2010, in Zuehl Airport Flying Community
        Owners Association v. Phoenix Air Transport, Inc., James MacIvor, David
        Goad, and Walter Schmidt, Civil Action No. SA-10-CA-608-FB, in the United
        States District Court for the Western District of Texas

        The first two of these documents are opinions in attempted appeals from orders of the

trial court in Cause No. 08-1872-CV, in the 25th Judicial District Court of Guadalupe County,

Texas. The third is the federal court’s order of remand after Goad attempted to remove the same

4
 The petition for a writ of mandamus was denied as moot because the trial court withdrew the order of which Goad
was complaining. We question whether a denial of mandamus relief under these circumstances is properly
considered an adverse determination.

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action to federal court. These proceedings are all part of the civil litigation in Guadalupe County

and are not three separate “litigations.” The appeal to this court was dismissed without a clerk’s

record having been filed. The opinion from the Eighth Court of Appeals and the federal court

order of remand make apparent that as of July 28, 2010, five days before ZAFCOA filed this

lawsuit, no final, appealable order had been rendered by the trial court in that action. That is, the

litigation had not been finally determined at all. Moreover, there is no summary judgment

evidence that Goad is a plaintiff in the Guadalupe County litigation. Both the style of that case

and language in the federal court order of remand suggest Goad is a defendant in the case.

       After reviewing the evidence, we conclude ZAFCOA did not conclusively establish that

in the seven years immediately preceding the filing of this suit, Goad had commenced,

prosecuted or maintained at least five pro se civil “litigations” that were either finally determined

adversely to Goad or determined by a court to be frivolous or groundless. Accordingly, the trial

court erred in granting summary judgment, declaring that Goad is a vexatious litigant under

section 11.054(1).

       ZAFCOA also asserted in its motion for summary judgment that Goad “has repeatedly

relitigated or attempted to relitigate, in propria persona, the validity of Guadalupe County

District Court’s determination (against Goad) that Plaintiff maintained a legal right to erect the

boundary fence that is at the heart of GOAD’s various suits and appeals.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 11.054(2) (West 2002). However, ZAFCOA did not file any summary

judgment evidence of the alleged prior determination by the Guadalupe County District Court, or

any evidence establishing that Goad, pro se, attempted to relitigate that determination.

Accordingly, this ground in the motion for summary judgment also fails to support the judgment.




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        ZAFCOA failed to satisfy its burden of producing summary judgment proof that

established a right to judgment as a matter of law. 5 We therefore reverse the trial court’s

judgment and remand the cause to that court for further proceedings.



                                                              Steven C. Hilbig, Justice




5
  After submission of this appeal, ZAFCOA filed a request for this court to take judicial notice of the magistrate’s
recommendation and the federal district court’s order in another litigation. Although we may take judicial notice of
the records of another court when provided copies of such records, the orders may not be used to supply the
summary judgment evidence that ZAFCOA failed to file in the trial court. Because these orders were not before the
trial court when it rendered its summary judgment and are not part of the appellate record, we may not consider
them in deciding whether ZAFCOA met its summary judgment burden.

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