Opinion filed January 6, 2011




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-09-00036-CV
                                         __________

                            ROBERT A. LANSINK, Appellant

                                                 V.

                                LISA K. LANSINK, Appellee


                            On Appeal from the 324th District Court

                                      Tarrant County, Texas

                              Trial Court Cause No. 324-356592-03


                             MEMORANDUM OPINION

       Robert A. Lansink appeals the trial court’s amended final order of November 12, 2008, in
which Robert was declared a vexatious litigant toward Lisa K. Lansink, their children, and Lisa’s
attorney. In the order, the trial court ordered Robert to pay $11,700 to Lisa’s attorney, struck
part of Robert’s earlier affidavit of relinquishment, enjoined the parties from communicating
with the court ex parte, and ordered Robert to deposit into the registry of the trial court attorney’s
fees of $25,000 if he filed an appeal or a postjudgment motion. We affirm.
          Robert presents five issues on appeal. In the first issue, Robert argues that the trial court
erred in finding that his suit had been dismissed by the 48th District Court. In the second and
third issues, Robert challenges the trial court’s authority to strike portions of an affidavit that had
been filed in a prior suit. In his fourth issue, Robert complains of the trial court’s effective denial
of his motion for new trial. Finally, Robert urges that the trial court erred in declaring him to be
a vexatious litigant.
          With respect to his first issue, the record does not support Robert’s assertion that the trial
court in this case, the 324th court, found that the 48th court had “dismissed” Robert’s claims.
To the contrary, the record shows that Robert’s claims were disposed of by the 324th court.
Robert filed the petition at issue in this appeal in the 48th court. The 48th court transferred the
case upon finding that Robert’s claims stemmed from an action for divorce that had already been
disposed of by the 324th court. Lisa filed an answer in which she requested attorney’s fees and
also asserted a plea in bar, a motion to consider the petition as a bill of review and to require a
security deposit, and a motion to declare Robert a vexatious litigant. The 324th court disposed of
Robert’s claims in an order signed April 9, 2008, which provided that the petition originally filed
by Robert in the 48th court “is barred,” that the petition “should have been filed as a Bill of
Review under the original cause number,” and that Robert failed to deposit $25,000 into the
court’s registry within three days of the filing of his petition. Robert’s first issue is overruled.
          In the next two issues, Robert complains of the trial court’s striking portions of an
affidavit that Robert had filed in support of his voluntary relinquishment of parental rights. The
judgment reflects that the trial court “on its own motion” struck portions of an affidavit of
relinquishment that Robert had filed in the clerk’s office on December 17, 2007. The trial court
noted in open court that the affidavit of relinquishment filed by Robert in the clerk’s office was
“not the one that was presented to the Court” and that the affidavit he filed contained “allegations
of evidentiary fact that should not have been included.” 1
          A trial court has exclusive jurisdiction of proceedings to determine the correctness of or
to change the face of its own records. Boggess v. Harris, 39 S.W. 565 (Tex. 1897). A trial court

          1
            We note that the trial court purported to act pursuant to TEX. FAM. CODE ANN. § 6.402(c) (Vernon 2006), which
requires a trial court to “strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own
motion” in a suit for dissolution of marriage. Robert correctly asserts that Section 6.402(c) applies only to suits for dissolution of
marriage and that the Lansinks had been divorced for well over two years when he filed the affidavit of relinquishment. The trial
court’s misguided reliance upon Section 6.402(c), however, does not affect the propriety of its ruling.



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is authorized to change the contents of its record. Gerneth v. Galbraith-Foxworth Lumber Co.,
300 S.W. 17, 20 (Tex. 1927); Goode v. Shoukfeh, 915 S.W.2d 666, 671 n.6 (Tex. App.—
Amarillo 1996), aff’d, 943 S.W.2d 441 (Tex. 1997). Robert does not take issue with the trial
court’s finding that the affidavit Robert filed in the clerk’s office was not the one that he had
presented to the trial court at the hearing regarding termination of parental rights. Nor does the
record in this appeal controvert that finding. A final order terminating Robert’s parental rights
had been entered on December 17, 2007. The propriety of that order was not at issue in the
underlying proceeding and is not at issue in this appeal. Consequently, any error in striking
portions of the affidavit from the clerk’s record would not be reversible error because it did not
cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1. The second and third
issues are overruled.
       In his fourth issue, Robert contends that the trial court erred in effectively denying his
motion for new trial with respect to the trial court’s order of April 9, 2008. Prior to entering that
order, the trial court held a hearing in March. Robert was not present at the hearing and had not
been given timely notice of a trial setting. See TEX. R. CIV. P. 245. A trial court may, however,
hold a pretrial hearing upon shorter notice than the notice required by Rule 245 for a trial setting.
See TEX. R. CIV. P. 21, 166. The record reflects that Lisa’s counsel certified that he complied
with the rules in serving notice of the hearing. The trial court ruled that the petition filed by
Robert was actually a bill of review; that Robert was required, pursuant to the final order of
December 17, 2007, to deposit $25,000 into the court’s registry within three days of filing a bill
of review; and that Robert violated the December 17 order by failing to deposit $25,000 into the
court’s registry or post a $25,000 bond. The trial court also declared Robert to be a vexatious
litigant and ordered him to pay $4,800 in attorney’s fees to Lisa’s attorney. The trial court
subsequently granted in part a motion for new trial filed by Robert. The court explicitly granted
the new trial only on the issues relating to attorney’s fees and to Robert being declared a
vexatious litigant. Robert asserts that a new trial should have been granted as to the entire April
order. We disagree.
       A trial court is authorized to grant a motion for new trial in part when the matter upon
which the new trial is granted may be separated without unfairness to the parties. TEX. R. CIV.
P. 320. The claims asserted by Robert were separable from those upon which the trial court
granted a new trial. Furthermore, a judgment may be rendered by way of a pretrial hearing in

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limited circumstances where the only issues to decide are legal issues. Walden v. Affiliated
Computer Servs., Inc., 97 S.W.3d 303, 323 (Tex. App.—Houston [14th Dist.] 2003, pet. denied);
Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354-55 (Tex. App.—San Antonio 1999, pet. denied).
The trial court did not err in using the pretrial hearing to decide legal issues involving no fact
disputes. After Robert failed to deposit funds into the registry of the court, the trial court held a
hearing and determined that Robert had failed to comply with the previous order of the trial
court. Based upon Robert’s noncompliance, the trial court was authorized to dismiss Robert’s
petition. See Sweed v. Nye, 319 S.W.3d 791 (Tex. App.—El Paso 2010, pet. denied). Robert has
not shown that the trial court abused its discretion in refusing to grant a new trial as to the claims
asserted in his petition. The fourth issue is overruled.
        In his final issue, Robert argues that the trial court erred in declaring him to be a
vexatious litigant. We disagree.
        A plaintiff may be declared a vexatious litigant pursuant to TEX. CIV. PRAC. & REM.
CODE ANN. § 11.054(2) (Vernon 2002) if the defendant shows that there is not a reasonable
probability that the plaintiff will prevail in the litigation against the defendant and that:
        [A]fter 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.

Section 11.054(2). On appeal, we review a determination that a person is a vexatious litigant
under an abuse of discretion standard. Pandozy v. Beaty, 254 S.W.3d 613, 619 (Tex. App.—
Texarkana 2008, no pet.).
        The record in this case shows that the trial court had entered a final decree of divorce in
March 2005 disposing of the parties’ marital property and that among the numerous filings by
Robert against Lisa are two pro se petitions that support the trial court’s vexatious finding.
These petitions were effectively bills of review attacking the earlier disposition of the marital
property due to Lisa’s alleged fraud and negligence. The more recent of these two petitions was
filed in the 48th court on December 20, 2007, and was subsequently transferred to the 324th

                                                   4
court. In February 2007, Robert had filed a similar petition alleging the same causes of action
against Lisa in the 141st court. That pro se petition was consolidated into the case in the 324th
court, where it was subsequently struck in a December 3, 2007 order of the trial court upon the
granting of a motion for sanctions against Robert. The order striking Robert’s February petition
constituted a final determination of the causes of action pleaded therein against Lisa. See
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (sanctions such
as striking pleadings may have the effect of adjudicating a dispute). Robert’s subsequent refiling
of these claims in the December 20 petition was an attempt to thwart the order striking his
February petition and constituted an attempt to relitigate the same claims against Lisa that had
already been adjudicated.      Because the February petition had been struck, there was no
reasonable probability that Robert would prevail in a subsequent petition alleging the same
claims against the same defendant. We hold that the trial court did not abuse its discretion in
determining that Robert is a vexatious litigant. The fifth issue is overruled.
       The judgment of the trial court is affirmed.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE


January 6, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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