Mary Louise Serafine v. Karin Crump, in Her Individual and Official Capacities as Presiding Judge of the 250th Civil District Court of Travis County, Texas Melissa Goodwin, David Puryear, and Bob Pemberton in Their Individual and Official Capacities as Former Justices of the Third Court of Appeals at Austin, Texas

Supreme Court of Texas
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No. 23-0272
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Mary Louise Serafine,
Petitioner,

v.

Karin Crump, in Her Individual and Official Capacities as
Presiding Judge of the 250th Civil District Court of Travis
County, Texas; Melissa Goodwin, David Puryear, and Bob
Pemberton in Their Individual and Official Capacities as Former
Justices of the Third Court of Appeals at Austin, Texas,
Respondents

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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PER CURIAM

This procedural matter presents a definitional question that has
divided our courts of appeals: when a party appeals a trial court’s
judgment or order in a “civil action,” does that party “commence” a new
civil action, or is the same civil action now “pending” in the court of
appeals? We answer that filing a notice of appeal—or later, a petition
for review—does not commence a new civil action; it transfers
jurisdiction over the same civil action, which is now pending in an
appellate court for its review of the judgment. See Sanders v. Boeing
Co., 680 S.W.3d 340, 356 (Tex. 2023); Tex. Trunk R.R. v. Jackson, 22
S.W. 1030, 1031-32 (Tex. 1893), overruled on other grounds by Scurlock
Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986). Because the court of
appeals here held otherwise, we reverse.
Petitioner is a self-represented plaintiff whom a trial court found
to be a vexatious litigant under Chapter 11 of the Civil Practice and
Remedies Code. To be found a vexatious litigant, (1) the defendant must
show there is no reasonable probability the plaintiff will prevail in the
current litigation, and (2) among other options, the plaintiff must have
in the past seven years “commenced, prosecuted, or maintained at least
five litigations as a pro se litigant other than in a small claims court that
have been,” as relevant here, “finally determined adversely to the
plaintiff.” TEX. CIV. PRAC. & REM. CODE § 11.054(1)(A) (emphasis
added). Our question concerns the second requirement, and particularly
the statute’s definition of “litigation,” which “means a civil action
commenced, maintained, or pending in any state or federal court.” Id.
§ 11.001(2). A plaintiff found to be a vexatious litigant must furnish
security to continue his or her suit and may be prohibited from filing
future suits without court permission. Id. §§ 11.055, 11.101.
Petitioner filed an interlocutory appeal of the trial court’s orders
declaring her a vexatious litigant, see id. § 11.101(c), and the court of
appeals affirmed. 665 S.W.3d 93, 119-20 (Tex. App.—Austin 2023). On
the issue we address, the court of appeals held that each of the following
proceedings counted as a separate prior “litigation” for purposes of
Section 11.054(1)(A): (1) petitioner’s partially unsuccessful appeal to a

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Texas court of appeals of a final judgment in a civil action; 1 (2) her
unsuccessful petition for review of that court of appeals judgment and
motion for rehearing in this Court; (3) her unsuccessful petition for writ
of mandamus in the court of appeals concerning earlier trial court
rulings in the dispute; (4) a civil action she filed in federal district court
that was dismissed for lack of subject-matter jurisdiction;
(5) petitioner’s unsuccessful appeal of that dismissal to the Fifth
Circuit; 2 and (6) her unsuccessful petition for writ of mandamus in the
Fifth Circuit. See id. at 110-19.
There is growing disagreement among our courts of appeals—and
inconsistency within some courts of appeals—regarding how to count
“litigations.” Like the court of appeals in this case, another court has
held that “appeals and original proceedings filed by a litigant are
included in the number of proceedings to be counted against a litigant.”
Restrepo v. All. Riggers & Constructors, Ltd., 538 S.W.3d 724, 751 (Tex.
App.—El Paso 2017, no pet.) (counting six “litigations” where plaintiff
filed “three interlocutory appeals” and “three original proceedings” from

1 Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528, at *8 (Tex.

App.—Austin May 19, 2017, pet. denied) (reversing and remanding in part for
further proceedings regarding petitioner’s request for fees and sanctions).
Petitioner did not argue in the court of appeals that this property-dispute
litigation was not finally determined “adversely” to her. Accordingly, we
assume without deciding that it was. In addition, the trial court’s eventual
final judgment in this civil action was not counted as a separate litigation.
Under our decision today, the civil action in the trial court, on appeal to the
court of appeals, and on petition for review to this Court are part of the same
“litigation,” and that litigation may be counted as long as it was “prosecuted or
maintained” during the seven-year period. Accordingly, as explained below,
we count these proceedings as a single “litigation.”
2 Serafine v. Crump, 800 F. App’x 234 (5th Cir. 2020).

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the same civil action). But a different court has held that “[a]n appeal
of a judgment in a civil action is not a separate ‘litigation’ as that word
is used in Chapter 11.” Goad v. Zuehl Airport Flying Cmty. Owners
Ass’n, No. 04-11-00293-CV, 2012 WL 1865529, at *3 n.3 (Tex. App.—San
Antonio May 23, 2012, no pet.). 3 And at least one court has looked to
the subject matter of the mandamus petition to determine whether it
counts separately. See Retzlaff v. GoAmerica Commc’ns Corp., 356
S.W.3d 689, 700 (Tex. App.—El Paso 2011, no pet.).
We need not address how to count mandamus petitions to decide
this case. Assuming without deciding that the court of appeals was
correct to count these particular mandamus petitions as separate
“litigations,” we conclude that an appeal and a petition for review from
a judgment or order in a civil action are part of the same civil action and
count as a single “litigation.” 4 The court of appeals therefore erred in
counting items (2) and (5) separately in the list above. Accordingly,
petitioner maintained at most four litigations that were determined
adversely to her, so she does not meet the requirements to be found a
vexatious litigant under Section 11.054. 5

3 But see In re Est. of Aguilar, No. 04-16-00504-CV, 2018 WL 1176649,

at *1 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (counting as litigations
“eight matters—comprising civil actions, appeals, and original proceedings”).
4 In addition, because the denial of a petition for review is not a ruling

on the merits, its denial alone is not an adverse determination. See Loram
Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006).
5 In its thorough opinion, the court of appeals held that various other

proceedings did not qualify as “litigations,” and we accept those holdings for
purposes of our analysis without reviewing them. Serafine also raises laches
as a defense to her designation as a vexatious litigant. We agree with the court
of appeals that laches does not apply. See 665 S.W.3d at 119.

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As we have said, Section 11.001(2) defines “litigation” as “a civil
action commenced, maintained, or pending in any state or federal court.”
TEX. CIV. PRAC. & REM. CODE § 11.001(2). The court of appeals viewed
this language as “suggest[ing] that leaving one court for another leads
to a new ‘litigation.’” 665 S.W.3d at 116. But what matters under this
definition is not whether a proceeding is taking place in a different
court—it may be in “any court.” Instead, the question is whether the
proceeding “commences” a new civil action or “maintains” the original
one. In other words, an appeal to an intermediate appellate court and a
petition for review to a supreme court are within the same “litigation” if
they are a part of the same “civil action” that is simply “pending” in
different courts.
A long and unbroken line of our precedent answers this question
clearly and unequivocally: an appeal is simply the “continuation of the
action in suit brought in the trial court.” United N. & S. Oil Co. v.
Meredith, 258 S.W. 550, 554 (Tex. Civ. App.—Austin 1923), aff’d, 272
S.W. 124 (Tex. Comm’n App. 1925, judgm’t adopted); see Sanders, 680
S.W.3d at 356 (“[I]t is the settled law that an appeal . . . operates to
continue a pending suit . . . .” (quoting Dignowity v. Fly, 210 S.W. 505,
506 (Tex. 1919))); Tex. Trunk R.R., 22 S.W. at 1031-32 (proclaiming the
“settled rule in this state” that a “proceeding instituted [by appeal or
writ of error] is but the continuation of the action or suit brought in the
trial court”); Hickcock v. Bell, 46 Tex. 610, 613 (1877) (“A writ of error is
treated in this State as a continuation of . . . the proceedings in a suit.”).
Nothing in the statute signals that the Legislature intended to
depart from this settled meaning of the terms it used. See Amazon.com,

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Inc. v. McMillan, 625 S.W.3d 101, 106-07 (Tex. 2021). Nor does the
statute provide clear notice that a person’s rights to petition and to open
courts can be dramatically curtailed based on how many times she seeks
appellate review of a judgment or order in a civil action. See TEX. CONST.
art. I, §§ 13, 19, 27.
Because an appeal and a petition for review continue the action
brought in the trial court, they do not count as separate “civil actions”
and thus separate “litigations” under Section 11.054. Petitioner
therefore did not have five prior litigations determined adversely to her,
which the statute required for petitioner to be found a vexatious litigant
on this record. Pursuant to Texas Rule of Appellate Procedure 59.1,
without hearing oral argument, we grant the petition for review, reverse
the court of appeals’ judgment, render judgment denying the motions to
declare petitioner a vexatious litigant, and remand the case to the trial
court for further proceedings.

OPINION DELIVERED: June 21, 2024

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