Martin v. State of Texas (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(per curiam)
vex lit designation, dismissal of lawsuit without a hearing), dismissal with prejudice on the pleadings)
AFFIRMED: Per Curiam     
Before Chief Justice Hedges, Justices Brock Yates and Frost   
14-08-01174-CV Timothy Paul Martin v. The State of Texas   
Appeal from 412th District Court of Brazoria County
Trial Court Judge: W. Edwin Denman  




On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 49743

M E M O R A N D U M   O P I N I O N

Timothy Paul Martin appeals from an order, signed November 18, 2008, dismissing the case
with prejudice.[1]  In a single issue, Martin claims the trial court abused its discretion by
dismissing the case without a hearing.  We affirm.

According to the record, Martin was declared a vexatious litigant in 2001.  In this case, appellant
filed a motion for permission to file litigation pursuant to section 11.102 of the Texas Civil
Practices and Remedies Code.[2]  Martin also filed an original petition, alleging claims of
tortious interference with business relations, negligence, and violations of constitutional rights.

Martin raises only one issue - that the trial court abused its discretion in dismissing the suit
without holding a hearing.  Section 14. 003(c) states that a trial court "may" hold a hearing
before dismissing a suit, but is not required to do so.  Tex. Civ. Prac. & Rem. Code Ann. §
14.003(c) (Vernon 2002). The decision whether to hold a hearing is within the trial court's
discretion.  Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.- Fort Worth 1997,
pet. denied).

Martin contends he would have presented evidence if the trial court had held a hearing.  The
alleged evidence noted in Martin's brief is substantially the same as the lengthy recitation of
factual allegations set out in Martin's petition.  Martin does not explain how many of these factual
allegations relate to the causes of action pled.  Martin notes that he had filed various motions in
the trial court "to develope [sic] the record," but this does not establish what evidence he would
have presented at a hearing.  Aside from the factual allegations found in the petition, and those
reiterated in his brief, Martin has not shown what particular evidence would have been presented
at a hearing in the trial court.  See id.  Accordingly, we find no abuse of discretion by the trial
court in deciding to dismiss Martin's case without holding a hearing.   

The judgment of the trial court is affirmed.


Panel consists of Chief Justice Hedges, and Justices Yates and Frost.

[1]  Martin has not challenged the trial court's dismissal “with prejudice."  If a trial court's order dismisses
a suit with prejudice, when a dismissal without prejudice would have been appropriate, the notation of
“with prejudice" must be challenged or the error is waived and the suit may not be refiled.  See El Paso
Pipe & Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981)(must appeal error
or it is waived and suit may not be refiled); Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d
733, 742 (Tex. App.- Waco 2005, pet denied)(error in dismissing case “with prejudice" waived where
appellant failed to raise it in the trial court by timely motion to reinstate or motion for new trial); Andrews
v. ABJ Adjusters, Inc., 800 S.W.2d 567, 569 (Tex. App.- Houston [14th Dist.] 1990, writ denied)(complaint
regarding dismissal “with prejudice" waived because appellant failed to preserve complaint by presenting
alleged error to the trial court).    

[2]  Section 11.102 provides that a party found to be a vexatious litigant usually must obtain permission
to file a suit and must seek permission to file a lawsuit from a local administrative judge.  See  Tex. Civ.
Prac. & Rem. Code Ann. § 11.102(a) (Vernon 2002). The record shows Martin filed a motion for
permission, but with the wrong entity.  Martin filed the motion seeking permission to file his suit with the
Brazoria County District Clerk.  If Martin, as a vexatious litigant, is subject to a pre-filing order under
Section 11.101, the clerk of a court may not file the litigation unless Martin obtains an order from the
local administrative judge permitting the filing.  See id. at § 11.103(a).