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Click here for the full text of this decision FACTS:Eric Von Drake sued Alice Andrews for injuries he alleges he sustained in a May 5, 2004, traffic accident. Drake filed the first suit in the 44th Judicial Court of Dallas County and represented himself in the suit. On Aug. 30, 2004, visiting Judge Kent Sims entered an order in that case declaring Drake to be a vexatious litigant and ordering him to post security or have his suit dismissed. In response, Drake filed a notice of nonsuit in which he asserted that he would refile his lawsuit in another court with additional defendants. Drake filed a second suit against Andrews in federal court. Again, Drake represented himself. In this suit, he named several other defendants, including Sims and Andrews’ attorney. In April 2006, Drake nonsuited all defendants, except Sims. Less than two weeks later, on May 4, 2006, attorney Spencer Browne filed this suit against Andrews on Drake’s behalf in the 68th Judicial District Court. On Sept. 26, Andrews filed a motion requesting the court t 1. declare Drake a vexatious litigant, 2. require Drake to post security with the court; and 3. require Drake to obtain the local administrative judge’s permission to file suit. In her motion, Andrews asserted that Drake has commenced and prosecuted 14 pro se litigations in the past seven years in state or federal court that had been determined adversely to him or determined frivolous under federal law. In addition, Andrews asserted that over the past seven years, Drake filed another 17 suits. Some are ongoing; some settled; and some were nonsuited without settlement. Drake sued, among other individuals and entities, the U.S. Department of Justice, the FBI, his shoemaker, his dentist, NBC, his former employers, his family members and his doctors. Andrews attached to her motion some 31 exhibits, representing copies of the pleadings and corresponding dismissals. The then-presiding judge conducted a hearing on the motion in November. At issue was whether Drake could be required to furnish security, since he was represented by counsel. At the hearing, Drake’s retained counsel learned for the first time that Drake had filed this suit twice previously and had been declared a vexatious litigant. The judge took the motion under advisement but failed to rule on it before leaving the bench at the end of the year. On Feb. 15, 2007, a new judge heard Browne’s motion to withdraw as Drake’s counsel in this case. At the hearing, Browne said his firm wanted to withdraw for “a litany of reasons,” including that Drake had not been completely truthful when he first approached the firm for representation. In particular, Browne referred to the previous suits and the previous order declaring Drake a vexatious litigant. In addition, Browne referenced “certain actions” Drake took against his firm (a complaint with the State Bar of Texas) as an additional reason for withdrawing from the case. The trial judge granted the motion and gave Drake 60 days to hire an attorney or to proceed pro se. Drake subsequently represented himself in a number of hearings and continues to represent himself in this mandamus proceeding. As for the vexatious litigant motion, the issue was taken under advisement on March 16, 2007; however, the trial court did not rule on the motion. Consequently, at a hearing on June 11, 2007, the issue arose once again. The judge reasoned that because Drake had an attorney to begin with, the vexatious litigant statute did not apply. HOLDING:The court conditionally granted the writ of mandamus. Texas Civil Practice & Remedies Code �11.051 provides the mechanism to restrict frivolous and vexatious litigation. Under �11.051, a defendant may move the court for an order determining that the plaintiff is a vexatious litigant and to require the plaintiff to furnish security. A court may find a plaintiff to be a vexatious litigant if the defendant shows that there is a reasonable probability that the plaintiff will not prevail in the litigation and the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under �11.051, has commenced, prosecuted or maintained in propria persona at least five litigations finally determined adversely to the plaintiff, permitted to remain pending at least two years without having been brought to trial or hearing, or determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure. The court noted that Drake was no longer represented by counsel. To interpret the statute, the court stated, in such a way as to immunize Drake from its effect, simply because Drake was briefly represented by counsel, would be to thwart the statute’s purpose. Thus, the court found that the trial court’s interpretation of the statute was erroneous as a matter of law. Because Andrews would be required to await an appeal in order to complain of the trial court’s ruling, she would lose any ability to force Drake to post security in the event he later be declared a vexatious litigant. Thus, the court found that Andrews had no adequate remedy at law. OPINION:Francis, J.; Moseley, Bridges and Francis, JJ.

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