ELOISA GOMEZ TELKAMP, Appellant v. STEIN MART, INC., LESLIE SULLIVAN, SHELLY FISHER MARTIN, Appellee

AFFIRM and Opinion Filed April 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00049-CV
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ELOISA GOMEZ TELKAMP, Appellant
V.
STEIN MART, INC., LESLIE SULLIVAN, SHELLY FISHER MARTIN, Appellee
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On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-05896-C
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MEMORANDUM OPINION
Before O'Neill, Lang, and Myers
Opinion By Justice O'Neill
                                
        Pro se appellant Eloisa Gomez Telkamp appeals an order declaring her a vexatious litigant and requiring her to furnish security before filing further suits against appellees Stein Mart, Inc., and store managers Leslie Sullivan and Shelly Fisher Martin. In four issues, Telkamp contends (1) the trial court lacked jurisdiction to grant appellee Leslie Sullivan relief, (2) the trial court erred in trying the case without a scheduling order, (3) a bill of review cannot trigger the vexatious litigant statute, and (4) she prevailed in the retrial of the underlying lawsuit. For the following reasons, we affirm the trial court's judgment.
        Telkamp, a former Steinmart employee, filed her first complaint against Steinmart and Sullivan in 2000 in U.S. District Court complaining of age discrimination and asserting she was constructively discharged. The federal court granted defendants' motion for summary judgment concluding Telkamp failed to make a prima facie case of discrimination. In 2002, Telkamp brought suit in State court alleging various claims against Steinmart, Sullivan and Martin in association with her termination and statements they made in the federal litigation with respect to her conduct as a Steinmart employee. In 2003, Appellees' motion for summary judgment was granted. Appellant attempted to appeal, but her appeal was untimely, and this Court dismissed for want of jurisdiction. Since 2003, appellant has brought four petitions for writ of mandamus, another state court lawsuit and another federal court lawsuit all complaining of the 2003 judgment. Finally, Telkamp brought the instant bill of review raising the same complaints.
        Appellees filed a motion for an order determining Telkamp a vexatious litigant and requiring her to furnish security before proceeding further in the bill of review. The trial court held a hearing and granted the motion and required Telkamp to furnish $30,000 security to proceed. She did not provide the security and the case was dismissed. She appeals.
        In her first issue, Telkamp contends the trial court erred in granting relief to appellee Leslie Sullivan because the trial court did not have jurisdiction over Sullivan. The record shows that before the trial court entered its order declaring Telkamp a vexatious litigant, Telkamp had nonsuited Sullivan and the trial court had signed an order granting the nonsuit. According to Telkamp, the trial court lost “plenary” jurisdiction over Sullivan. However, Sullivan was not severed from the case. The trial court's plenary jurisdiction does not begin to run until the trial court signs a final judgment disposing of all claims and all parties. Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, (Tex. App.-Fort Worth 1992, writ dism'd as moot), abrogated on other grounds by Took v. City of Mexia, (Tex. 2006). Here, the nonsuit was interlocutory until the trial court dismissed Telkamp's remaining claims. Therefore, the trial court retained jurisdiction over all parties and all claims. We resolve the first issue against Telkamp.
        In her second issue, Telkamp contends the trial court erred in proceeding to trial without having entered a scheduling order or allowing discovery. On the filing of a vexatious litigation motion, the litigation is stayed until ten days after the motion is denied or, if the motion is granted, ten days after the defendant is notified the plaintiff has posted the required security. Tex. Code Crim. Proc. Ann. art. 11.052 (Vernon 2002). Here, the trial court granted the motion concluding Telkamp could not proceed on the merits unless she furnished security for costs and attorneys fees. When Telkamp failed to do so, the trial court dismissed the case for want of prosecution. Thus, no scheduling order was appropriate. We resolve the second issue against appellant.
        In her third issue, Telkamp contends the trial court erred in determining she was a vexatious litigant because a bill of review proceeding cannot trigger the vexatious litigant statute. However, a bill of review proceeding is a litigation for purposes of the vexatious litigation statute. See Brown v. Texas Bd. of Nurse Examiners, 194 S.W.3d 721, 722 (Tex. App.-Dallas 2006, no pet.); see also Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex. App.-- San Antonio 2004, no pet.). We resolve the third issue against Telkamp.
        In her fourth issue, Telkamp contends the trial court erred in dismissing her case because “she prevailed” in the retrial of the underlying lawsuit. However, the record shows Telkamp did not prevail in the bill of review proceeding. Indeed, the trial court did not consider the bill of review on the merits. Instead, the bill of review was dismissed for want of prosecution because Telkamp failed to furnish security as required by the trial court's order. We resolve the fourth issue against Telkamp.
        In a supplemental issue, Telkamp contends a trial court does not have “subject-matter jurisdiction” to enter a vexatious litigation order in a bill of review proceeding. Her complaint is again based on her contention that a bill or review cannot trigger the vexatious litigation statute. Again, a bill of review proceeding is a litigation for purposes of the vexatious litigation statute. See Brown, 194 S.W.3d at 722; Nell Nations Forist, 141 S.W.3d at 670. We resolve the supplemental issue against Telkamp.
        We affirm the trial court's judgment.
 
                                                
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
090049F.P05