      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00443-CV



                                     Erik Leonard, Appellant

                                                  v.

  Greg Abbott, Attorney General of Texas; the Harris County-Houston Sports Authority;
                   Harris County; and the City of Houston, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
         NO. GN300-269, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                           OPINION


               Appellant Erik Leonard appeals the orders of the trial court declaring Leonard a

vexatious litigant and dismissing his lawsuit after he failed to furnish court-ordered security. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001-.055 (West 2002). In six issues, Leonard contends

that the trial court violated his rights to due process, equal protection, and open courts, and that

appellees failed to meet their burden of proof under the vexatious litigant statute. We will affirm the

orders.


                                         BACKGROUND

               Leonard has a long history of filing lawsuits and appeals to contest the issuance and

approval of bonds in Harris County related to the construction of new sports arenas in that locale.

In August 1998, Leonard filed a pro se declaratory judgment action in Travis County District Court
against the Attorney General of Texas, the City of Houston, Harris County, and the Harris County-

Houston Sports Authority. The suit, cause number 98-09828, challenged the August 1998 bond

issue for the construction of the baseball stadium now known as Minute Maid Park, the home of

major league baseball’s Houston Astros. After the district court dismissed the suit for lack of

subject-matter jurisdiction, Leonard appealed to this Court, and we affirmed. See Leonard v.

Cornyn, 47 S.W.3d 524 (Tex. App.—Austin 1999, pet. denied). Leonard then unsuccessfully

petitioned the United States Supreme Court for certiorari. See Leonard v. Cornyn, 531 U.S. 1081

(2001).

               In March 2000, Leonard filed another suit in Travis County district court against the

same defendants. This suit, cause number GN0-00717, requested declaratory and injunctive relief

related to the bond issue for the construction of the football stadium now known as Reliant Stadium,

the home of the National Football League’s Houston Texans and the Houston Livestock Show and

Rodeo. On May 18, 2000, the district court dismissed Leonard’s suit for want of jurisdiction.

               On May 24, 2000, in cause number GN001516, Leonard filed a virtually identical suit

against the same parties in the same court. On June 8, 2000, the district court signed an order stating

that “given a second opportunity to consider its jurisdiction,” it was “still of the opinion” that it

lacked subject-matter jurisdiction over Leonard’s lawsuit. Leonard appealed the May 18 order to

this court. We noted that Leonard’s “request for declaratory judgment in this case involves the same

1996 election, the same 1997 legislation, and the same contention that voter approval of the bonds

authorized pursuant to the 1996 election is required. This suit simply attacks a different sports

venue.” Because the issues Leonard raised had already been decided, we affirmed the judgment.



                                                  2
See Leonard v. Cornyn, 2001 Tex. App. LEXIS 5356 (Tex. App.—Austin 2001, pet. denied);

Leonard, 47 S.W.3d at 524. Leonard again unsuccessfully petitioned the United States Supreme

Court for certiorari. See Leonard v. Cornyn, 123 S.Ct. 608 (2002). He then filed a motion for

rehearing with the Supreme Court, which was denied in January 2003.

               In December 2000, Leonard filed cause number 00-12-07633-CV in Montgomery

County district court against the chairman of the Harris County-Houston Sports Authority, this time

attacking the financing of a new basketball arena. That lawsuit requested a “declaration that the

2000 arena referendum set by the Harris County-Houston Sports Authority which asked voters to

authorize construction of a new arena be declared void.” On May 24, 2001, the district court granted

a plea to the jurisdiction and dismissed Leonard’s suit. Leonard appealed to the Beaumont Court of

Appeals, which affirmed the judgment.          See Leonard v. Burge, 74 S.W.3d 135 (Tex.

App.—Beaumont 2002, pet. denied).

               In March 2002, Leonard filed suit against the Attorney General of Texas, the City of

Houston, Harris County, and the Harris County-Houston Sports Authority in Travis County district

court; cause number GN201013. Leonard again challenged the Attorney General’s approval of

bonds related to construction of sports arenas in Harris County. The district court granted a plea to

the jurisdiction, and Leonard again appealed to this Court. We determined that Leonard did not

timely file his notice of appeal, and dismissed the appeal for want of jurisdiction. See Leonard v.

Abbott, 2002 Tex. App. LEXIS 8766 (Tex. App.—Austin 2002, pet. denied).

               This appeal arises from two more suits that Leonard filed in January 2003, which

were consolidated below. These suits named the same defendants as his previous suits and related



                                                 3
to the same claims. In fact, Leonard admits in his pleadings that his “same request for relief has been

included in one lawsuit or another continuously from August 31, 1998 through January 27, 2003.

There has been no significant development between January 27, 2003, and January 28, 2003, the date

of this filing.” Appellees filed a joint motion requesting that the district court declare Leonard a

vexatious litigant and require security as a condition for him to continue prosecuting the suit. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051-.055. The district court found that Leonard was a

vexatious litigant, ordered him to furnish security in the amount of $80,000 within one month, and

entered a prefiling order prohibiting Leonard from filing, pro se, new litigation in state court without

permission of the local administrative judge.1 See id. §§ 11.055, .101. Leonard failed to furnish the

security. In accordance with statutory requirements, the district court dismissed his lawsuit. See id.

§ 11.056. Leonard appeals both the order finding him a vexatious litigant and limiting future

lawsuits and the order dismissing his lawsuit.


                                           DISCUSSION

                In chapter 11 of the civil practice and remedies code, the legislature struck a balance

between Texans’ right of access to their courts and the public interest in protecting defendants from

those who abuse our civil justice system. See id. §§ 11.001-.055. Under chapter 11, a trial court may

place limitations on the litigation activities of a person determined by the court to be a “vexatious

litigant.” See id. § 11.101. The court may determine that the plaintiff is a vexatious litigant if the


        1
          The amount of $80,000 was requested by appellees, and derived from the amount of
attorneys’ fees they had spent defending Leonard’s prior lawsuits. From July 2000 through April
2003, the Sports Authority alone incurred bills in excess of $190,000 in defending against Leonard’s
lawsuits.

                                                   4
defendant demonstrates that there is not a reasonable probability that the plaintiff will prevail in the

litigation against the defendant and that 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 small claims court, that have

been finally determined adversely to the plaintiff. See id. § 11.054; Pease v. Principal Residential

Mortg., Inc., No. 03-02-00491-CV, 2004 Tex. App. LEXIS 4279, at *14 (Tex. App.—Austin 2004,

no pet.) (mem. op.). If the court determines, based on evidence presented at a hearing, that the

defendant is a vexatious litigant, it must order the plaintiff to furnish security for the benefit of the

moving defendant in an amount related to the costs and attorneys’ fees the defendant anticipates

incurring in defending the litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 11.055(a). If the

plaintiff fails to furnish the court-ordered security by the time set in the order, the court must dismiss

the suit. See id. § 11.056. The court may also, on its own motion or the motion of any party, enter

a prefiling order prohibiting a plaintiff from filing, pro se, a new lawsuit in state court without leave

of the local administrative judge. See id. § 11.101.


Constitutionality of the vexatious litigant statute

                In his first and fourth issues, Leonard attacks both the finding that he is a vexatious

litigant and the order requiring him to seek permission before filing new pro se lawsuits. See id.

§§ 11.054, .101. Leonard argues that the statutes are unconstitutionally vague and violate his

constitutional rights to due process,2 equal protection, and access to the courts.3 He also argues that


        2
       Leonard’s due process claim is predicated on his theory that the statute is unconstitutionally
vague. The vagueness doctrine is a component of the Constitution’s due process guarantee.

                                                    5
the statutes are unconstitutionally vague because they do not provide a method for determining his

probability of success in his lawsuit. See id. § 11.054. While not binding precedent on this Court,

a Texas federal district court has determined that the vexatious litigant statute is not

unconstitutionally vague. See Liptak v. Banner, No. 3:01-CV-0953-M, 2002 U.S. Dist. LEXIS 940,

at *13 (N.D. Tex. Jan. 18, 2002). However, Leonard claims that the statute is vague because he

could not have determined, before filing the underlying lawsuit, that there was no reasonable

probability that he would prevail in the underlying case. See id.

               We construe Leonard’s argument regarding the vagueness of the statute as a challenge

to the constitutionality of chapter 11 as applied. See id. §§ 11.001-11.102. A statute prohibiting

conduct that is not sufficiently defined is void for vagueness. In re Fisher, No. 04-0112, 2005 Tex.

LEXIS 394, at *52 (Tex. 2005); see Grayned v. City of Rockford, 408 U.S. 104, 108 (1972);

Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998). However, as the

Liptak court observed, “any person of reasonable intelligence would be able to discern that if he were

to file five lawsuits in seven years, all of which were decided in favor of the opposing party, were

determined to be frivolous, or met a series of other standards, he may be subject to being labeled a

vexatious litigant. There is no other practical reading of the subject statute.” 2002 U.S. Dist. LEXIS

940, at *13. We agree. Chapter 11 sufficiently outlines a standard of conduct, and a core of




Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998).
       3
          Leonard summarily recites that there “was no inquiry into the question of whether [he]
abused the judicial system in any way.” But he acknowledges that the “statute does not require such
inquiry” and that “appellees did not call for such inquiry,” and alleges only that his constitutional
rights were violated.

                                                  6
prohibited activity is well defined therein. Id.; see Margaret S. v. Edwards, 794 F.2d 994, 997 (5th

Cir. 1986).

               Moreover, Leonard’s own pleadings belie his claim that he could not have known he

was at risk of being held to be a vexatious litigant. He acknowledges that his underlying lawsuit

asserts the “same request for relief has been included in one lawsuit or another continuously from

August 31, 1998 through January 27, 2003.” With the knowledge that each of these previous

lawsuits has been dismissed, Leonard nonetheless filed the same pleading again. Leonard should

have known that there was no “reasonable probability” of success and that he was inviting the

application of the vexatious litigant statute. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101.

We hold that the vexatious litigant statute is not unconstitutionally vague.

               Next, Leonard argues that the statutes permitting the orders unreasonably restrict

access to the judicial system in violation of the open courts provision and discriminate against pro

se litigants and “the Davids who sue Goliaths.” See Tex. Const. art. 1 § 13. Article I, section 13 of

the Texas Constitution provides in part that “all courts shall be open, and every person for an injury

done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Id.;

Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 444 (Tex. App.—Austin 2004, pet.

denied). “The open courts provision includes at least three separate guarantees: (1) courts must

actually be operating and available; (2) the Legislature cannot impede access to the courts through

unreasonable financial barriers; and (3) meaningful remedies must be afforded, ‘so that the

legislature may not abrogate the right to assert a well-established common law cause of action unless

the reason for its action outweighs the litigants’ constitutional right of redress.’” Howell, 143



                                                  7
S.W.3d at 444 (quoting Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.

1995)) (internal citations omitted). A claim of unconstitutionality under the open courts provision

will only succeed if the claimant (1) has a cognizable common-law cause of action being restricted

by a statute, and (2) the restriction is unreasonable or arbitrary when balanced against the purpose

and basis of the statute. Rose v. Doctors Hosp., 801 S.W.2d 841, 843 (Tex. 1990); Sax v. Votteler,

648 S.W.2d 661, 666 (Tex. 1983). In applying this test, we consider both the statute’s general

purpose and the extent to which the claimant’s right to bring a common-law cause of action is

affected. Howell, 143 S.W.3d at 444; see Sax, 648 S.W.2d at 666.

                Assuming without deciding that Leonard had a cognizable common-law cause of

action restricted by the vexatious litigant statute, these restrictions are not unreasonable or arbitrary

when balanced against the purpose and basis of the statute. The purpose of chapter eleven is to

restrict frivolous and vexatious litigation. See Devoll v. State, 155 S.W.3d 498, 501 (Tex.

App.—San Antonio 2004, no pet.) (statute “provides a framework for courts and attorneys to curb

vexatious litigation”). It does not authorize courts to act arbitrarily, but permits them to restrict a

plaintiff’s access to the courts only after first making specific findings that the plaintiff is a vexatious

litigant based on factors that are closely tied to the likelihood that the incident litigation is frivolous.

See Tex. Civ. Prac. & Rem. Code Ann. § 11.054; Liptak, 2002 U.S. Dist. LEXIS 940, at *12-13.

Although Leonard was found to be a vexatious litigant, chapter 11 and the trial court’s order did not

categorically bar him from prosecuting his lawsuit, but merely required him to post security to cover

appellees’ anticipated expenses to defend what the circumstances would reasonably suggest is a




                                                     8
frivolous lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 11.055.4 Additionally, the prefiling

order does not preclude Leonard from filing new lawsuits; he is merely required to obtain permission

from the local administrative judge before filing. See id. §§ 11.101, .102. The restrictions are not

unreasonable when balanced with the significant costs of defending Leonard’s likely frivolous

lawsuits in the future.

                Moreover, the statute does not discriminate against pro se litigants or “the Davids

who sue Goliaths.” Leonard complains that because only pro se litigants, and not other individuals

such as attorneys are subjected to the vexatious litigant statute, his equal protection rights were

violated. An equal protection claim is not limited to members of a large class, but can be brought

by a “class of one,” where the plaintiff alleges that he has been intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment. See Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Allegheny Pittsburgh Coal Co. v.

County Commission of Webster County, 488 U.S. 336, 345-46 (1989). “‘The purpose of the equal

protection clause of the Fourteenth Amendment is to secure every person within the State’s

jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms

of a statute or by its improper execution through duly constituted agents.’” Olech, 528 U.S. at 564

(quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923) (quoting Sunday Lake

Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918)). Assuming without deciding that

Leonard could bring an equal protection claim because he is within a class of pro se litigants, or in




        4
            Leonard acknowledges in his brief that the statute protects defendants by requiring
plaintiffs to furnish security for defendants’ expenses.

                                                    9
a class by himself, we find that the statute does not implicate his constitutional right to equal

protection. Attorneys are subject to sanctions in various forms, including monetary sanctions

pursuant to rule 13. See Tex. R. Civ. P. 13. Similarly, pro se litigants are subject to chapter 11 of

the civil practice and remedies code. Leonard alleges that he was found to be a vexatious litigant

and his right to equal protection was violated because unlike appellees, he does not have financial

or political resources. To the contrary, the record demonstrates that Leonard was adjudicated a

vexatious litigant because the trial court found that he met the statutory requirements under chapter

11 of the civil practice and remedies code. Chapter 11 does not unlawfully discriminate against pro

se litigants or violate Leonard’s constitutional right to equal protection. We overrule Leonard’s first

and fourth issues.


Vexatious litigant order

               In Leonard’s second issue, he argues that there is insufficient evidence that he filed

five lawsuits that were finally determined adversely to him, as required by section 11.054(1), or,

alternatively, that he repeatedly relitigated or attempted to relitigate, pro se, prior litigation, as

required by section 11.054(2). See Tex. Civ. Prac. & Rem. Code § 11.054.

               Under chapter 11 of the civil practice and remedies code, as previously noted, a trial

court “may find a plaintiff a vexatious litigant” if certain statutory elements are met. Tex. Civ. Prac.

& Rem. Code Ann. § 11.054 (emphasis added). The legislature’s use of the term “may” denotes that

the court has discretion, once it has made the required statutory findings, to declare a party a

vexatious litigant. See Devoll,155 S.W.3d at 502 (reviewing chapter eleven issues under abuse of

discretion standard); see also Tex. Gov’t Code Ann. § 311.016 (West 2005) (“may” creates

                                                  10
discretionary authority or grants permission or a power”); cf. Bocquet v. Herring, 972 S.W.2d 19,

20 (Tex. 1998) (declaratory judgment act gives trial court discretion in ultimate decision of whether

to award attorney fees). Accordingly, we review the trial court’s ultimate determination that Leonard

is a vexatious litigant under an abuse of discretion standard. See Devoll,155 S.W.3d at 502. It is an

abuse of discretion for a trial court to rule arbitrarily, unreasonably, without regard to guiding legal

principles, or without supporting evidence. See Bocquet, 972 S.W.2d at 20.

                However, because a trial court may exercise its discretion to declare a party a

vexatious litigant only if it first makes prescribed statutory evidentiary findings, we also review the

trial court’s subsidiary findings under chapter 11 for legal and factual sufficiency. Cf. Bocquet, 972

S.W.2d at 21 (addressing analogous issue under declaratory judgment act); Tex. Civ. Prac. & Rem.

Code Ann. § 11.054. Leonard attacks only this aspect of the trial court’s finding that he was a

vexatious litigant. In reviewing a legal sufficiency challenge, the no-evidence challenge fails if there

is more than a scintilla of evidence to support the finding. See BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Tempest Broadcasting Corp. v. Imlay, 150 S.W.3d 861,

868 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In reviewing a factual sufficiency challenge,

we set aside the trial court’s decision only if its ruling is so contrary to the overwhelming weight of

the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Imlay, 150 S.W.3d at 868.

                As detailed in the background section, in the seven-year period immediately preceding

appellees’ April 14, 2003 motion, Leonard has commenced, prosecuted, and maintained in propria

persona at least five litigations, other than in a small claims court, that have been finally determined

adversely to him. Although Leonard argues that one lawsuit should not be included as one of five

                                                  11
litigations that was finally determined adverse to his interests because it was an election contest, we

disagree. A review of Leonard’s pleadings in that case, a certified copy of which was attached to

appellees’ motion, reveals that he requested a declaration that the referendum authorizing

construction of a new arena be declared void. In any event, the statute only excludes litigation filed

in small claims court, not election contests filed in a district court.5 See Tex. Civ. Prac. & Rem.

Code Ann. § 11.054(a) (West 2002). Certified copies of the pleadings and orders were attached to

appellees’ motion to declare Leonard a vexatious litigant. The five lawsuits are the following cause

numbers: (1) 98-09828, dismissed by the district court for lack of subject-matter jurisdiction and

affirmed on appeal by this Court; (2) GN0-00717, dismissed for lack of subject-matter jurisdiction;

(3) GN001516, dismissed by the district court for lack of subject-matter jurisdiction and affirmed

on appeal by this Court; (4) 00-12-07633-CV, dismissed by the district court for lack of subject-

matter jurisdiction and affirmed on appeal by the Beaumont Court of Appeals; and (5) GN201013,

dismissed by the district court for lack of subject-matter jurisdiction and dismissed for want of

jurisdiction by this Court on appeal. After filing these five suits, all of which were dismissed on

jurisdictional grounds and finally determined adverse to him, Leonard filed the two underlying suits

in this case on the very same grounds, as he admits in his petitions. There is more than a scintilla

of evidence to support the finding that Leonard met the requirements of section 11.054(1), and that

finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. We hold that there was factually and legally sufficient evidence that appellees met their



       5
           Furthermore, because the “election lawsuit” was properly included, Leonard’s due process
rights, if any, were not “violated by the trial court’s not timely ruling on [his] motion not to count
one of the lawsuits.”

                                                  12
burden of proof and that the trial court did not abuse its discretion.6 See id. § 11.054(a)(1). We

overrule Leonard’s second issue.


No reasonable probability that Leonard would prevail

               In his third issue, Leonard argues that appellees failed to show there was no

reasonable probability that he would prevail in this lawsuit. We disagree. Again, Leonard admitted

in his pleadings that this lawsuit contains the “same request for relief has been included in one

lawsuit or another continuously from August 31, 1998 through January 27, 2003.” With the

knowledge that each of these previous lawsuits has been dismissed on jurisdictional grounds, that

appellees are generally entitled to sovereign immunity, and that the bonds are generally incontestible

at this point, Leonard filed the same pleading again.7 Appellees met their burden of showing that

there was no reasonable probability that Leonard would prevail. See id. § 11.054. We overrule

Leonard’s third issue.


Limitation on oral argument time

               In his fifth issue, Leonard complains that the trial court violated his right to due

process by limiting his time to present oral argument at the hearing on his motion for extension of



       6
          We do not reach the issue of whether appellees met their burden under another section of
the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054(2) (West 2002).
       7
           The bonds are “valid and incontestible in a court or other form and are binding obligations
for all purposes according to their terms: (1) after the public security is approved by the attorney
general and registered by the comptroller; and (2) on issuance of the public security.” Tex. Gov’t
Code Ann. § 1202.006 (West 2000). Appellees argue that, under this section, Leonard’s claims are
moot. Because the vexatious litigant finding will affect Leonard in the future, we address the merits
of this issue.

                                                 13
time to furnish security and appellees’ motion to dismiss. Both motions were heard on June 19,

2003. The trial court has wide discretion in fixing the time allowed for oral argument and granting

motions for an extension of time. See Aultman v. Dallas Ry. & Terminal Co., 260 S.W.2d 596, 600

(Tex. 1953); Siddiqui v. Yellow Freight Sys., Inc., No. 03-98-00517-CV, 2000 Tex. App. LEXIS

6568, at *20-21 (Tex. App.—Austin 2000, pet. denied) (not designated for publication); see also

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002). In his motion for

extension of time, Leonard argued that he could not afford to furnish the security and would “be too

busy challenging the order to furnish the security to raise money soon.” However, the trial court

allowed Leonard to present oral argument that ultimately constituted six pages of the transcript. We

hold that, under the circumstances presented in this case, the trial court did not abuse its discretion

by limiting the time for oral argument or denying the motion for extension of time for furnish the

security. We overrule Leonard’s fifth issue.


Dismissal with prejudice

               In his sixth issue, Leonard argues that his suit should not have been dismissed with

prejudice. However, the error in dismissing a case with prejudice cannot be raised for the first time

on appeal and must be presented to the trial court. See Bird v. Kornman, 152 S.W.3d 154, 161 (Tex.

App.—Dallas 2004, no pet.); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568-69 (Tex.

App.—Houston [14th Dist.] 1990, writ denied). To complain about an error in the judgment

rendered, Leonard was required to present the error to the trial court in a timely post-judgment

motion such as a motion to alter or correct the judgment or a motion for new trial. See Arthur’s

Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex. App.—Dallas 1999, no


                                                  14
pet.). The final judgment dismissing Leonard’s claims with prejudice was signed June 19, 2003.

On July 23, 2003, Leonard filed a First Supplemental Motion for New Hearing, arguing for the first

time that the case should have been dismissed without prejudice.8 The supplemental motion,

however, was not timely filed within thirty days of the judgment and therefore cannot be considered.

See Tex. R. Civ. P. 329b; Bank of Tex., N.A. v. Mexia, 135 S.W.3d 356, 359 (Tex. App.—Dallas

2004, pet. denied). Although Leonard appears pro se, he must comply with the relevant rules of

procedural and substantive law. See Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Strange

v. Continental Cas. Co., 126 S.W.3d 676, 677-78 (Tex. App.—Dallas 2004, pet. denied). Because

the issue was not timely presented to the trial court, it was waived. We overrule Leonard’s sixth

issue.


                                         CONCLUSION

               Having overruled all of Leonard’s issues, we affirm the orders of the district court.




                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: July 21, 2005


         8
          Leonard’s original motion for new trial was filed in May 2003 in response to the vexatious
litigant order, a month before the trial court dismissed his claims with prejudice after Leonard did
not furnish the required security.

                                                15
