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Click here for the full text of this decision FACTS:Appellant, Ralph O. Douglas, appeals from the trial court’s dismissal of his case for failure to post bond as a vexatious litigant. Douglas also appeals the court’s designation of him as a vexatious litigant which order merged into the final judgment. In May of 1999, Douglas contracted with American Title Co. to perform title services. Thereafter, Douglas was indicted for real estate fraud. The Harris County District Attorney’s Office requested that ATC halt all transactions and closings of properties involved in Douglas’s fraud. ATC complied with the DA’s request. In response, Douglas sued ATC, alleging a breach-of-contract cause of action related to a property located at 4703 Sauer (the 2003 suit). On Sept. 2, 2003, ATC filed a summary judgment motion in the 2003 lawsuit, and the trial court granted ATC’s motion. Douglas filed a restricted appeal. On March 10, 2005, this court dismissed the appeal in the 2003 lawsuit for lack of subject-matter jurisdiction. On Jan. 14, 2004, Douglas filed an original petition for the failure of ATC to produce mortgage records, which he alleged ATC had a duty to provide (the 2004 suit). On Feb. 4, 2004, ATC filed a motion in the 2004 suit to declare Douglas a vexatious litigant and requested security pursuant to Texas Civil Practice & Remedies Code ��11.054 and 11.055. On March 24, 2004, about three months after Douglas had filed the 2004 suit, the 164th District Court declared Douglas to be a vexatious litigant, in yet another suit, pursuant to Chapter 11, Civil Practice & Remedies Code. Under Chapter 11, the 164th district court declared Douglas a vexatious litigant and placed limitations on his litigation activities. On April 15, 2004, the trial court granted in the 2004 suit ATC’s vexatious-litigant motion and ordered Douglas to pay security in the amount of $5,000. In the April 15 order, the trial court placed limitations on the litigation activities of Douglas by prohibiting him from filing, in propria persona, any new litigation in a Texas court without permission from a local administrative judge. Although the April 15 order recited that there had been a hearing on ATC’s vexatious-litigant motion, there is no record of the hearing on appeal. On May 20, 2005, the trial court signed an order dismissing the 2004 suit for failure to furnish the ordered security within the time set out in the vexatious- litigant order. HOLDING:Reversed and remanded. ATC did not prove that subsection two of �11.054 of the Texas Civil Practice & Remedies Code applied. Although the same defendant, ATC, was involved in both suits, the court concludes that the cause of action, claim and controversy of the 2003 suit were different from those of the 2004 suit. In the 2003 suit, Douglas sued ATC for breach of contract related to a property located at 4703 Sauer. ATC filed a summary judgment motion in the 2003 suit, with supporting evidence attached, asserting that it was entitled to judgment as a matter of law because it had no duty to close the real-estate transaction. By contrast, in the 2004 suit, Douglas sued ATC for failure to produce documents for properties located at 5646 Belmark, 3406 Milbrad, 11515 Lockgate. The best argument that there was a commonality between the 2003 suit and the 2004 suit is an allegation that ATC acted wrongfully in both situations at the behest of the DA’s office. However, ATC’s motion for summary judgment in the 2003 suit contradicts that position. ATC stated unequivocally in its motion for summary judgment in the 2003 lawsuit that that suit had nothing to do with Douglas’s criminal case. ATC stated, “DOUGLAS contends that [ATC] negligently allowed [itself] to be misled by the Harris County District Attorney’s Office into breaching a contract to close because the [Sauer] property was not described in the indictment that resulted in his conviction and incarceration, but DOUGLAS’s criminal involvement had nothing to do with the failure of the proposed transaction to close. He did not have title to the property.” (Emphasis added.) In addition, Douglas did not allege that ATC’s wrongful conduct in the 2004 lawsuit was caused by the DA’s office. In fact, in his petition for the 2004 lawsuit, Douglas acknowledged that the DA’s office had subpoenaed the records for the properties located at Belmark, Milbrad and Lockgate, but that ATC had omitted material documents. Additionally, Douglas’ criminal trial for fraudulent real-estate transactions itself cannot be considered as falling under subsection (2)(B) because the criminal trial did not involve the same parties. The State prosecuted Douglas in his criminal trial, and ATC was not involved as a party. Accordingly, ATC did not prove that subsection two of section 11.054 of the Texas Civil Practice and Remedies Code applied. Assuming without deciding that the trial court could have granted ATC’s vexatious-litigant motion on a ground not alleged in its petition, the court finds that the trial court could not have granted ATC’s vexatious-litigant motion under the other subsections of �11.054. OPINION:Taft, J.; Taft, Higley and Bland, J.J.

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