Reversed and Remanded, and Opinion Filed November 25, 2013.




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-12-01143-CV

                     LAKEITH AMIR-SHARIF, Appellant
                                 V.
        QUICK TRIP CORPORATION AND CHESTER CADIEUX III, Appellees

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. DC-09-13818-E

                                            OPINION
                            Before Justices Moseley, Lang, and Brown
                                     Opinion by Justice Lang
       Lakeith Amir-Sharif, a pro se inmate, appeals the trial court’s orders declaring him a

vexatious litigant and dismissing his lawsuit against Quick Trip Corporation and Chester

Cadieux III without prejudice. In six issues Amir-Sharif argues: (1) the trial court erred when it

signed the order declaring him a vexatious litigant because he did not receive proper notice of the

hearing and his appearance was due to a bench warrant, which resulted in an “ambush hearing”;

(2) the trial court erred when it signed the order declaring him a vexatious litigant because the

trial court had a ministerial duty to ensure that he was provided with the requisite advance notice

of that hearing pursuant to section 11.053(a) of the Texas Civil Practice and Remedies Code; (3)

the evidence is legally and factually insufficient to support the trial court’s order declaring him a

vexatious litigant; (4) the trial court erred when it failed to file the requested findings of fact and
conclusions of law; (5) the trial court erred when it failed to have a hearing on his motions to

reconsider the trial court’s orders declaring him a vexatious litigant and dismissing his lawsuit;

(6) the trial court erred as a matter of law when it signed the orders declaring him a vexatious

litigant and dismissing his lawsuit because it failed to apply the “liberal construction” standard to

his pleadings.

       We conclude the evidence is legally insufficient to support the order declaring Amir-

Sharif a vexatious litigant. The trial court’s orders are reversed and the case is remanded for

further proceedings consistent with this opinion.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       In his original petition, Amir-Sharif filed a premises liability lawsuit against Quick Trip

Corporation and Cadieux, alleging he slipped and fell at a Quik Trip store. See also Amir-Sharif

v. Quick Trip Corp., No. 05-09-01497-CV, 2011 WL 1367042, *1 (Tex. App.—Dallas Apr. 12,

2011, no pet.) (mem. op.). On November 5, 2009, Quick Trip filed (1) a motion under Texas

Civil Practice and Remedies Code section 11.051 to declare Amir-Sharif a vexatious litigant, and

(2) a request under section 11.055 for Amir-Sharif to furnish security. Amir-Sharif, 2011 WL

1367042, at *1. The same day, the trial court set the motion to declare Amir-Sharif a vexatious

litigant and request for security for hearing on November 12, 2009. Amir-Sharif, 2011 WL

1367042, at *1. On November 5, 2009, Quick Trip served Amir-Sharif with the motion to

declare Amir-Sharif a vexatious litigant, request for security, and notice of the November 12,

2009 hearing by regular mail. Amir-Sharif, 2011 WL 1367042, at *1. Amir-Sharif was not

present at the November 12, 2009 hearing. Amir-Sharif, 2011 WL 1367042, at *2. After the

hearing, the trial court signed an order granting Quick Trip’s motion, declaring Amir-Sharif a

vexatious litigant, and ordering Amir-Sharif to furnish security to the trial court to guarantee

payment to Quick Trip for reasonable expenses incurred in connection with the lawsuit. Amir-


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Sharif, 2011 WL 1367042, at *2. Amir-Sharif filed objections and a motion to vacate the order

granting Quick Trip’s motion, alleging he did not receive the requisite notice in advance of the

hearing. Amir-Sharif, 2011 WL 1367042, at *2. Amir-Sharif failed to furnish the security by the

deadline stated in the trial court’s order and, without a hearing, the trial court dismissed without

prejudice Amir-Sharif’s claims. Amir-Sharif, 2011 WL 1367042, at *2. In addition, the trial

court signed a prefiling order pursuant to section 11.101 of the Texas Civil Practice and

Remedies Code, prohibiting Amir-Sharif from filing, pro se, a new litigation in this state. Amir-

Sharif, 2011 WL 1367042, at *2. Amir-Sharif appealed. Amir-Sharif, 2011 WL 1367042, at *2.

On appeal, this Court reversed the trial court’s order because Amir-Sharif had inadequate time to

respond to the motion and request in advance of the hearing, and remanded the case to the trial

court for further proceedings. Amir-Sharif, 2011 WL 1367042, at *3.

       On June 23, 2011, after the case was remanded to the trial court, Amir-Sharif filed his

second amended civil complaint, adding a claim for negligence. On August 19, 2011, Quick

Trip and Cadieux filed another motion seeking to declare Amir-Sharif a vexatious litigant and

requesting security. The motion was served on Amir-Sharif by certified mail. On August 29,

2011, Amir-Sharif filed a response to the motion. On September 6, 2011, Amir-Sharif filed a

motion for telephonic hearing or video conference on Quick Trip and Cadieux’s motion. Then,

on October 6, 2011, Amir-Sharif filed his objection to the hearing scheduled for that date and

sought a continuance. In response, counsel for Quick Trip and Cadieux sent Amir-Sharif a letter

by certified mail, stating that, in accordance with his request, the hearing was rescheduled for

October 26, 2011. However, it appears from the record on appeal that the hearing did not go

forward.

       On February 2, 2012, the trial court signed an order that sua sponte determined the

hearing on the motion to declare Amir-Sharif a vexatious litigant and request for security would

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be heard on March 8, 2012, a bench warrant would issue so that Amir-Sharif could appear and be

heard at the hearing, and all other pending motions would be stayed until the trial court heard and

determined the motion to declare Amir-Sharif a vexatious litigant. A bench warrant issued and

Amir-Sharif appeared at the hearing. After the hearing, the trial court granted Quick Trip and

Cadieux’s motion, declaring Amir-Sharif a vexatious litigant and requiring him to furnish

security in the amount of $2,500 by April 20, 2012 or the case would be dismissed without

prejudice. Also, pursuant to Texas Civil Practice and Remedies Code section 11.101, the trial

court, on its own motion, rendered a prefiling order, prohibiting Amir-Sharif from filing, pro se,

a new litigation in a court in this state. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.101(a)

(West Supp. 2012) (“A court may, on its own motion . . ., enter an order prohibiting a person

from filing in propria persona, a new litigation in a court in this state”). On March 29, 2012,

Amir-Sharif filed a motion for reconsideration of the trial court’s order declaring him a vexatious

litigant. Amir-Sharif failed to furnish the required security by April 20, 2012. As a result, on

April 26, 2012, the trial court dismissed Amir-Sharif’s claims against Quick Trip and Cadieux

without prejudice.

       On May 4, 2012, Amir-Sharif filed a motion for reconsideration of the order dismissing

his lawsuit and a request for findings of fact and conclusions of law. The trial court did not rule

on Amir-Sharif’s motions for reconsideration or enter findings of fact and conclusions of law.

      II. EFFECT OF PRIOR ORDER DECLARING AMIR-SHARIF VEXATIOUS

       On September 9, 2013, this Court sent the parties a letter noting it appeared that Amir-

Sharif had already been found to be a vexatious litigant. See Amir-Sharif v. Zeller, No. 07-10-

0244-CV, 2011 WL 691378, *1 (Tex. App.—Amarillo Feb. 28, 2011, pet. denied) (mem. op.)

(stating Amir-Sharif contends trial court erred in finding him to be a vexatious litigant).

However, it was not clear whether the 242nd District Court, Swisher County, Texas, had


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rendered a prefiling order and Amir-Sharif was not listed on the Office of Court Administration’s

list of vexatious litigants posted on its website as a result of any order by the 242nd District

Court. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.104 (West Supp. 2012). Section 11.101(a)

of the Texas Civil Practice and Remedies Code provides that after a person has been found to be

a vexatious litigant, “a court may . . . enter an order prohibiting a person from filing, in propria

persona, a new litigation in a court in this state.” See TEX. CIV. PRAC. & REM. CODE ANN. §

11.101(a). As a result, this Court requested the parties to provide letter briefs addressing the

issue of whether this appeal was moot as a result of any prior state court orders declaring Amir-

Sharif to be a vexatious litigant together with sworn or certified copies of any relevant state court

orders.

          Quick Trip and Cadieaux filed a certified copy of the 242nd District Court’s order. That

order did not include a prefiling order pursuant to Texas Civil Practice and Remedies Code

section 11.101(a). See also In re Amir-Sharif, No. 07-11-00294, 2011 WL 3568940, *1 n.2

(Tex. App.—Amarillo Aug. 15, 2011, orig. proceeding) (mem. op.). Accordingly, we conclude

this appeal is not moot.

                             II. SUFFICIENCY OF THE EVIDENCE

          In issue three, Amir-Sharif argues the evidence is legally and factually insufficient to

support the trial court’s order declaring him a vexatious litigant. Amir-Sharif argues, in part, the

following:

          The trial court abused its discretion and committed reversible error by failing to
          correctly apply the law at § 11.054 [Texas Civil Practice and Remedies Code],
          which contains a “two (2) prong” prerequisite [Quick Trip and Cadieux] must
          bear the burden of establishing before [Amir-Sharif] can be declared a vexatious
          litigant. . . .

          Under section 11.054, there are two (2) distinctive criterias [sic] that must first be
          met by [Quick Trip and Cadieux]. [Quick Trip and Cadieux] must prove: (1)
          [Amir-Sharif] has no realistic probability of prevailing on the claims presented in


                                                   –5–
            his lawsuit; and (2) that the factual requisite delineated under one of the three
            subsections of § 11.054 applies to [Amir-Sharif].

            . . . . [Amir-Sharif] has not only proffered his medical records, but also
            documentation of his communication with [Quick Trip and Cadieux’s] accident
            claims department. [record citation omitted]. . . . If ever presented to a jury,
            [Amir-Sharif’s] negligence and premises liability claims do have a reasonable
            probability for success, particularly in light of the supporting medical records
            proffered.

On appeal, Amir-Sharif does not challenge the sufficiency of the evidence showing that he has

maintained in excess of five lawsuits that were determined to be frivolous, dismissed for want of

prosecution, or decided adversely to him. 1 Quick Trip and Cadieux respond that with regard to

Amir-Sharif’s negligence claim alleging a premises defect, he has no evidence that there was an

unreasonably dangerous condition or that Quick Trip and Cadieux had actual or constructive

knowledge of the unreasonable dangerous condition.

                                                       A. Standard of Review

            An appellate court reviews a trial court’s declaration that a litigant is vexatious for an

abuse of discretion. Amir-Sharif, 2011 WL 1367042, at *2; Harris v. Rose, 204 S.W.3d 903, 906

(Tex. App.—Dallas 2006, no pet.). However, a trial court’s findings under chapter 11 of the

Texas Civil Practice and Remedies Code may be reviewed for legal and factual sufficiency

because section 11.054 requires the trial court to make evidentiary findings. Willms v. Americas

Tire Co., 190 S.W.3d 796, 801 (Tex. App.—Dallas 2006, pet. denied); Leonard v. Abbott, 171

S.W.3d 451, 459 (Tex. App.—Austin 2005, pet. denied).

            When examining a legal sufficiency challenge, an appellate court reviews the evidence in

the light most favorable to the challenged finding and indulges every reasonable inference that

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The ultimate test

for legal sufficiency is whether the evidence would enable a reasonable and fair-minded fact
1
    During the hearing on Quick Trip and Cadieux’s motion to declare Amir-Sharif a vexatious litigant, Amir-Sharif stated, “I don’t object to any
    of the argument about―and just to save the Court some time, I never objected to the one criteria with regards to the previous filings.”



                                                                      –6–
finder to reach the verdict under review. City of Keller, 168 S.W.3d at 827. The fact finder is

the sole judge of witness credibility and the weight to give to the testimony. See City of Keller,

168 S.W.3d at 819.

                                        B. Applicable Law

       A court may find a plaintiff a vexatious litigant if the defendant shows: (1) there is not a

reasonable probability the plaintiff will prevail in the litigation; and (2) there is other evidence

regarding previous litigations by the defendant. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054;

Willms, 190 S.W.3d at 804. Other evidence involving previous litigation may include evidence

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 (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(1)(A), (B), and (C).

       The defendant seeking a vexatious litigant declaration bears the burden of establishing

both parts of the test set out in section 11.054 of the Texas Civil Practice and Remedies Code.

TEX. CIV. PRAC. & REM. CODE ANN. § 11.054 (court may find plaintiff vexatious “if the

defendant shows” no reasonable probability of prevailing and one of the three litigation

histories); Drake v. Andrews, 294 S.W.3d 370, 375 (Tex. App.—Dallas 2009, pet. denied). The

plaintiff may offer evidence to show there is a reasonable probability he will prevail in the

litigation, but it is not his burden to do so. Drake, 294 S.W.3d at 375–76. When the defendant

offers evidence sufficient to satisfy the second part of the test relating to litigation history, but




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fails to offer any evidence showing why the plaintiff could not prevail in the suit, the defendant

has failed to meet his burden. Drake, 294 S.W.3d at 375–76.

                            C. Application of the Law to the Facts

       In his second amended civil complaint, Amir-Sharif sued Quick Trip and Cadieux “under

the common law theories of negligence and personal injury, and premises liability.” In their

motion seeking to declare Amir-Sharif a vexatious litigant, Quick Trip and Cadieux argued that

Amir-Sharif’s cause of action was a negligence claim alleging a premises defect.            They

maintained in their motion, in part, that Amir-Sharif had “no evidence” that there was an

unreasonably dangerous condition and that they had actual or constructive knowledge of the

unreasonably dangerous condition.

       At the outset of the hearing on Quick Trip and Cadieux’s motion to declare Amir-Sharif a

vexatious litigant, when the trial court invited counsel for Quick Trip and Cadieux to proceed

with their offer of evidence, counsel stated, “there is not actually any evidence with regard to

testimony.” Then, Quick Trip and Cadieux offered evidence of Amir-Sharif’s pro se litigation

history, which Amir-Sharif did not contest. In response, Amir-Sharif argued, in part, that Quick

Trip and Cadieux “have only shown that they had previous cases,” “they haven’t shown th[e]

[trial court] anything that shows where [he] can’t prove [his] claim,” and “they haven’t―the two

criterias [sic] haven’t been met here for th[e] [trial court]―for them to―for their motion to be

granted.” Amir-Sharif also cited this Court’s opinion of Drake v. Andrews, 294 S.W.3d 370

(Tex. App.—Dallas 2009, pet. denied). Quick Trip and Cadieux replied:

       We have to show that [Amir-Sharif] has no reasonable probability to prevail in
       this claim. He has filed a premises liability claim. He has to prove that Quick
       Trip had actual constructive notice of this premises defect.

       He can’t show that. There is not going to be any evidence of their actual
       knowledge of this substance on the ground because he is not going to be able to
       get that evidence. There won’t be any such evidence. He has no reasonable
       probability of prevailing on this claim

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       Then, the trial court asked Amir-Sharif what evidence he had that the condition he

claimed caused his injury existed for such a period of time that Quick Trip and Cadieux

reasonably should have known of it or that they had actual knowledge of it. Amir-Sharif

responded that

       There are other witnesses who were there who―who I intend to have come
       before this Court and testify that the water or liquid, whatever was on that floor,
       was there prior to my coming in there.

       Mr. Cory Vaughn, who I also named as a defendant in this case, when the incident
       happened, he came and apologized and said that he had gotten busy. And that’s
       why I had initially named him as a defendant. You could just bring him into
       court. I have been desperately trying to get him served so we can bring him into
       court and let him explain what happened.

       Without the discovery which I have requested from them, we can’t find out
       their―their―they had like inspection―inspection slips where they were cleaning
       up. I have asked―I have asked [Quick Trip and Cadieux’s counsel] for those
       documents, and they are resisting that there.

       This is what―I didn’t―and my understanding was that the suit, I’m alleging
       personal injury and premises liability. They knew or should have known that
       the―that that water or liquid was there if they―if they go and survey or look
       around the premises in a timely manner, and they didn’t. They couldn’t have.
       Had they done so, they would have cleaned it up. Someone would have seen it
       and cleaned it up.

       Mr. Vaughn’s statement to me in front of other people that he apologized because
       he had gotten busy, that―that―that kind of infers that, you know, you got behind
       and maybe this here was there, and he could have found it before the incident took
       place. But he didn’t, and I was injured as a result of that.

After this argument by Amir-Sharif, the trial court inquired whether there was anything further

from either side and both parties responded that there was not.

       In this case, Quick Trip and Cadieux offered evidence of Amir-Sharif’s pro se litigation

history, which appears sufficient to satisfy the second part of the test set out in section 11.054 of

the Texas Civil Practice and Remedies Code. See Drake, 294 S.W.3d at 375–76. However,

Quick Trip and Cadieux offered only argument, but no evidence showing why Amir-Sharif could

not prevail in this litigation. See Drake, 294 S.W.3d at 375–76. Section 11.054 specifically

                                                –9–
states that “A court may find a plaintiff a vexatious litigant if the defendant shows that there is no

reasonable probability that the plaintiff will prevail in the litigation against the defendant” and

one of the three litigation histories. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054 (emphasis

added); see Drake, 294 S.W.3d at 375.

       After reviewing the record on appeal, we conclude Quick Trip and Cadieux failed to

carry their burden and the evidence is legally insufficient to support the trial court’s order

declaring Amir-Sharif a vexatious litigant. Issue three is decided in favor of Amir-Sharif.

                                      VIII. CONCLUSION

       The evidence is legally insufficient to support the trial court’s order declaring Amir-

Sharif a vexatious litigant.

       The trial court’s orders are reversed and the case is remanded for further proceedings

consistent with this opinion.




                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
121143F.P05                                          JUSTICE




                                                –10–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

LAKEITH AMIR-SHARIF, Appellant                      On Appeal from the 101st Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-01143-CV         V.                       Trial Court Cause No. DC-09-13818-E.
                                                    Opinion delivered by Justice Lang. Justices
QUICK TRIP CORPORATION AND                          Moseley and Brown participating.
CHESTER CADIEUX III, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with the opinion.

       It is ORDERED that appellant LAKEITH AMIR-SHARIF recover his costs of this
appeal from appellees QUICK TRIP CORPORATION AND CHESTER CADIEUX III.


Judgment entered this 25th day of November, 2013.




                                                 /Douglas S. Lang/
                                                 DOUGLAS S. LANG
                                                 JUSTICE




                                             –11–
