Opinion
No. 04-07-00332-CV
Delivered and Filed: February 13, 2008.
Appealed from the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CI-15510 Honorable David A. Berchelmann, Jr., Judge Presiding.
AFFIRMED.
SITTING: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Robin Wakeland appeals the trial court's dismissal of her case against her parents, William and Gloria Wakeland, for failing to post bond as a vexatious litigant. Robin also appeals the trial court's designation of her as a vexatious litigant. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Texas Rule of Appellate Procedure 47.4.
1. Robin argues the trial court abused its discretion when it found she is a vexatious litigant in accordance with Chapter Eleven of the Texas Civil Practice and Remedies Code. A court may find a plaintiff a vexatious litigant if the defendant demonstrates there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that "after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona . . . 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." Tex. Civ. Prac. Rem. Code Ann. § 11.054(2) (Vernon 2002).
Although Robin asserts on appeal that she has a reasonable probability of prevailing in the litigation against her parents, Robin fails to provide any substantive analysis or discussion in support of her assertion. Absent such analysis or discussion, we cannot say that Robin has articulated a valid basis to disturb the trial court's finding as to the first vexatious litigant requirement.
As for the second vexatious litigant requirement, Robin argues her present lawsuit is not an attempt to relitigate a cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the lawsuit she filed against her parents in 2002. The record reveals Robin's current lawsuit claims she is entitled to damages and to have her mortgage debt to her parents forgiven because no consideration exists for the parties' mortgage contract, whereas Robin's unsuccessful lawsuit in 2002 sought damages and to have her mortgage debt forgiven on the ground that her parents committed a material breach of the parties' mortgage contract. Both of Robin's lawsuits involve similar issues of fact and law, and each concern the controversy of whether Robin is liable to her parents for her mortgage obligation. We decline to disturb the trial court's finding as to the second vexatious litigant requirement because it is apparent from the record that Robin is attempting to relitigate a cause of action, claim, controversy, or issues of fact and law already determined or concluded by the 2002 litigation.
2. Robin argues the trial court erred by excluding witness testimony that she believes corroborates the merits of her claim against her parents. "To challenge exclusion of evidence by the trial court on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception." In re Estate of Miller, No. 05-06-01471-CV, 2008 WL 82530, *3 (Tex.App.-Dallas 2008, no pet. h.); see Langley v. Comm'n for Lawyer Discipline, 191 S.W.3d 913, 915 (Tex.App.-Dallas 2006, no pet.) (concluding appellant failed to preserve error when no offer of proof or bill of exception was made). The record reveals Robin never presented the excluded evidence to the trial court by offer of proof or bill of exception. By failing to make an offer of proof or bill of exception, Robin has failed to preserve her complaint for appellate review. See Langley, 191 S.W.3d at 915.
3. Robin contends the trial court erred in failing to make additional findings of fact and conclusions of law relating to matters she believes would reveal that she is not a vexatious litigant. To obtain a reversal, an "appellant must show from the record that the trial court's refusal to file additional findings of fact and conclusions of law as requested was reasonably calculated to cause and did cause rendition of an improper judgment." Doncaster v. Hernaiz, 161 S.W.3d 594, 608 (Tex.App.-San Antonio 2005, no pet.). If the trial court's refusal to make additional findings does not prevent an adequate presentation on appeal, there is no reversible error. Id. "The issue is whether the circumstances are such that the appellant is forced to guess at the reasons for the trial court's decision." Id.
Assuming Robin's requested additional findings and conclusions were appropriate, we believe Robin has suffered no injury from the trial court's failure to file them. The findings of fact and conclusions of law issued by the trial court reveal the court found Robin is a vexatious litigant because: (1) Robin was relitigating claims, controversies, and other issues of fact and law already determined or concluded against her; and (2) Robin had no reasonable probability of prevailing in the suit against her parents. Given the findings of fact and conclusions of law issued by the trial court, we cannot say Robin was forced to guess at the basis for the trial court's vexatious litigant finding. We therefore conclude the trial court's refusal to make additional findings and conclusions has not prevented Robin from making an adequate presentation on appeal.
4. Robin complains the trial court violated her equal protection rights by permitting her parents' attorney to participate telephonically in the July 2007 hearing on her motion to determine the contents of the reporter's record. Robin contends the trial court should have afforded her the same rights and opportunities it afforded to her parents during the underlying proceeding and, thus, should have allowed her to appear telephonically at the hearing as well. The record, however, does not indicate that Robin ever sought to appear at the July 2007 hearing telephonically or that the trial court even denied her the opportunity to appear at the hearing telephonically. Absent proof that Robin's parents were granted rights or opportunities that the trial court had arbitrarily or capriciously denied to Robin, we must reject Robin's equal protection complaint.
The judgment of the trial court is affirmed.