Carla Dunlap v. City of Fort Worth

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00130-CV
___________________________

CARLA DUNLAP, Appellant

V.

CITY OF FORT WORTH, Appellee

On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-321589-20

Before Bassel, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

In this interlocutory appeal, Appellant Carla Dunlap challenges the trial court’s

order designating her as a vexatious litigant; the order was entered at the request of

Appellee City of Fort Worth. The order requires that Dunlap obtain permission from

the local administrative judge before filing any new litigation in the State of Texas and

that she deposit security into the court’s registry before pursuing her present suit

against the City. We have jurisdiction to review only the portion of the order

requiring Dunlap to obtain permission to file new litigation based on a finding that

she is a vexatious litigant. But we lack the ability to review the question of whether

the trial court properly exercised its discretion by requiring Dunlap to obtain

permission to file new litigation: the appellate record contains no reporter’s record of

the evidentiary hearing conducted by the trial court, and such record is necessary for

us to conduct that review. For the sake of completeness, we review the grounds

alleged by the City in its motion and conclude that it alleged an adequate basis to

determine that Dunlap is a vexatious litigant. Accordingly, we affirm the trial court’s

decision to enter the vexatious-litigant order.

II. Factual and Procedural Background

Dunlap was a long-time employee of the Fort Worth Police Department. The

City terminated her employment in 2015, and an independent hearing officer

confirmed her termination in 2016. Even before her employment with the City

2
ended, Dunlap began filing pro se suits against the City and its departments. The civil

rights suits that she filed in federal court prior to her termination were dismissed

because Dunlap had failed to effect service and because the City’s legal department

was not a separate department of the City.

After her termination, Dunlap continued to sue the City and its employees:

• In 2018, Dunlap filed her first post-termination suit in state court, and

the City removed the suit to federal court. The suit appears to have

alleged causes of action for constitutional violations, discrimination

based on race and disability, tort violations, and violations of criminal

law. This suit also sought the termination of a number of City

employees and the revocation of the law licenses of a number of present

and former city attorneys and the hearing officer who confirmed

Dunlap’s termination. The federal court granted the City’s motion for

summary judgment and dismissed Dunlap’s claims with prejudice.

• Before the dismissal of the 2018 suit, Dunlap filed a 2019 suit against the

City and this time joined more than twenty current and former City

employees as well as an ATF agent. The City once again removed the

suit to federal court. Dunlap’s claims in the 2019 suit appear to have

mimicked those alleged in the 2018 suit. Relying on the doctrine of res

judicata, the federal court granted a motion to dismiss and again

3
 dismissed Dunlap’s claims with prejudice. The federal court also

determined that res judicata barred Dunlap’s claims against city

employees in their official capacities.

• Before the dismissal of the 2019 suit, Dunlap went straight to federal

court and filed a 2020 suit. This suit again alleged federal civil rights

claims. The new wrinkle in this suit was Dunlap’s claim that the Lily

Ledbetter Fair Pay Act revived her claims. The City’s brief that was filed

in this court attaches the federal court’s order dismissing with prejudice

the claims in the 2020 suit, except for a breach-of-contract claim that the

federal court dismissed without prejudice because it concluded that it

lacked subject-matter jurisdiction over that claim. 1

• While the 2020 suit was pending, Dunlap filed the instant state-court

litigation that triggered the City’s motion seeking a determination that

she is a vexatious litigant. Dunlap’s complaint that is contained in the

clerk’s record before us is titled “Plaintiff’s Third Amended Complaint(s)

for Willful Neglect of Duties by Administrative Managers/Assistant

1
Our research confirms the existence of the orders, and we view their rulings as
applicable authority for our holdings in this matter. See Dunlap v. Qualls, No. 4:20-cv-
00687-P-BP, 2021 WL 1845529, at *1–6 (N.D. Tex. Apr. 14, 2021) (relaying findings,
conclusions, and recommendation of magistrate judge); Dunlap v. Qualls, No. 4:20-cv-
00687-P-BP, 2021 WL 1841399, at *1 (N.D. Tex. May 7, 2021) (accepting as a court
order the findings, conclusions, and recommendation of magistrate judge); see also Tex.
R. Evid. 201(b)(2).

4
 Managers/Supervisors/Colleagues and Continuous Discrimination

Under Tile [sic] VII Act of 1964 (ADEA & ADA) – The Fair Pay Act of

2007 (Retroactive) and Rule 47 of Texas Rules of Civil Procedures.”

The defendants are the City and twelve of its employees. The body of

the pleading contains 101 numbered sentences that describe a host of

alleged misdeeds by the City and its employees. The petition alleges acts

with no more specificity than that they were committed by a

“defendant” or “defendants,” i.e., the petition does not identify which

defendant allegedly committed the act. Dunlap describes the basis for

her right to recovery as follows: “The Plaintiff seeks to recover all that

is due her under Title VII of the Civil Rights Act of 1964 in accordance

with 42 U.S.C.[A. §] 1981a(b)(D) for compensatory damages. She is also

seeking to recover what is owed to her under the American[s] With

Disabilities Act of 1981a(b)(3)(D) . . . .”

After the City answered Dunlap’s latest suit, it sought a determination that

Dunlap is a vexatious litigant. The vexatious-litigant motion charted Dunlap’s

litigation history against the City, which is described above, and included a

voluminous appendix containing the relevant pleadings and orders from the prior

litigation. The motion provided elaborate detail regarding why Dunlap had no

reasonable probability of prevailing in her present suit. Generally, the City contended

that Dunlap’s claims were barred by res judicata, governmental immunity, and

5
limitations; that Dunlap had failed to exhaust her administrative remedies; and that

Dunlap lacked standing to allege criminal violations. The motion then explained why

Dunlap’s present suit attempted to relitigate issues that had been previously finally

determined against her.

The trial court entered an order designating Dunlap as a vexatious litigant. The

order recites that the trial court had conducted an evidentiary hearing on the City’s

motion. The order prohibits Dunlap from filing “in propria persona any new

litigation in any court of the State of Texas without first obtaining permission from

the appropriate local administrative judge as required by Texas Civil Practice &

Remedies Code, Section 11.102.” The order further required Dunlap to deposit in the

court’s registry $2,500 within 60 days of the order and stated that if she failed to do

so, her present suit might be dismissed.

Dunlap then filed a notice of appeal. A clerk’s record was filed. The court

reporter, however, reported that no financial arrangements had been made for

preparation of a reporter’s record and that no request to prepare the record had been

made. By letter, we notified the parties that “[b]ecause appellant(s) [had] failed to pay

or make arrangements to pay for the reporter’s record[] and [had] failed to request a

reporter’s record, the court [would] consider and decide those issues or points that do

not require a reporter’s record for a decision.” See Tex. R. App. P. 37.3(c).

6
III. The Legal Principles that Apply to our Analysis of our Jurisdiction and the
Trial Court’s Determination that Dunlap Is a Vexatious Litigant

A. This court has jurisdiction to review only the propriety of the trial
court’s order prohibiting Dunlap from filing new litigation with
permission of the local administrative judge.

The Civil Practice and Remedies Code prescribes two methods to control the

behavior of vexatious litigants, and the trial court’s order in this case utilizes both

methods. But the Civil Practice and Remedies Code gives us jurisdiction to review

only one of the methods.

Under the first method, once the trial court has determined that a plaintiff is a

vexatious litigant, the trial court may “requir[e] the plaintiff to furnish security.” See

Tex. Civ. Prac. & Rem. Code Ann. § 11.051. Specifically, once the trial court

conducts a hearing and makes the determination that the plaintiff is a vexatious

litigant, the trial court may order “the plaintiff to furnish security for the benefit of the

moving defendant” and then “determine the date by which the security must be

furnished.” Id. §§ 11.053, .055(a), (b). Failure to timely post the security requires the

trial court to dismiss “litigation as to a moving defendant.” Id. § 11.056. This court

and a host of our sister courts have held that there is no right to an interlocutory

appeal of an order requiring a person to post security based on a trial court’s finding

that she is a vexatious litigant. See Hollis v. Acclaim Physician Grp., Inc., No. 02-19-

00062-CV, 2019 WL 3334617, at *2–3, (Tex. App.—Fort Worth July 25, 2019, no

pet.) (per curiam) (mem. op.); Florence v. Rollings, No. 02-17-00313-CV, 2018 WL

7
4140458, at *2–3 (Tex. App.—Fort Worth Aug. 30, 2018, no pet.) (mem. op.)

(collecting cases from sister courts).

But an interlocutory appeal is authorized to review the second method of

controlling vexatious litigants. This method again requires a finding that a person is a

vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101(a). Under Section

11.101, the trial court may “enter an order prohibiting a person from filing, pro se, a

new litigation in a court to which the order applies under this section without

permission of the appropriate local administrative judge.” Id. The Civil Practice and

Remedies Code then sets out the procedure to obtain the required permission. Id.

§ 11.102. The right to appeal an order requiring a litigant to obtain permission to file

future suits comes from the provision in Section 11.101 that “[a] litigant may appeal

from a prefiling order . . . designating the person a vexatious litigant.” Id. § 11.101(c).

Thus, under the dichotomy created by the Civil Practice and Remedies Code,

we have jurisdiction to review only the propriety of the portion of the trial court’s

order that required Dunlap to obtain permission before filing new litigation.

B. We set forth the standard of review that we apply to the aspect of
the trial court’s order that we have jurisdiction to review.

We review the trial court’s finding that a litigant is vexatious under an abuse-of-

discretion standard. Amrhein v. Bollinger, 593 S.W.3d 398, 404 (Tex. App.—Dallas

2019, no pet.). That standard circumscribes our review and does not permit us to

simply substitute our judgment for that of the trial court:

8
 On an abuse[-]of[-]discretion challenge, we are not free to substitute our
own judgment for the trial court’s judgment. Bowie Mem[’l] Hosp[.] v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). We can only find an abuse of
discretion if the trial court “acts in an arbitrary or capricious manner
without reference to any guiding rules or principles.” Bocquet v. Herring,
972 S.W.2d 19, 21 (Tex. 1998). The court’s decision must be “so
arbitrary and unreasonable as to amount to a clear and prejudicial error
of law.” BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 801 (Tex.
2002). Applying these principles, we must determine whether the trial
court’s application of the vexatious litigant statute constitutes an abuse
of discretion.

Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.).

We cannot conduct a review of the trial court’s exercise of discretion when we

lack an adequate record to determine how the trial court exercised that discretion.

The Dallas Court of Appeals explained why a record of an evidentiary hearing is so

vital to our review when the trial court has exercised its discretion to determine that a

litigant is vexatious:

[W]ithout a reporter’s record, an appellate court cannot review a trial
court’s order for an abuse of discretion. See Christiansen v. Prezelski, 782
S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present a
sufficient record to show error requiring reversal); Simon v. York Crane &
Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Marion v. Davis, 106 S.W.3d
860, 869 (Tex. App.—Dallas 2003, pet. denied); Birnbaum v. Law Offices of
G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003,
pet. denied) . . . . Also, when an appellant fails to bring a reporter’s
record, an appellate court must presume the evidence presented was
sufficient to support the trial court’s order. See Sandoval v. Comm’n for
Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.]
2000, pet. denied) (holding reviewing court must presume omitted
evidence supported trial court’s discretionary sanction decision when
party failed to bring reporter’s record of sanction hearing).

9
Willms v. Ams. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied).

Other courts of appeals have cited Willms to hold that they cannot review the trial

court’s exercise of its discretion in determining that a party is a vexatious litigant

without a reporter’s record of an evidentiary hearing. See Hernandez v. Hernandez, 621

S.W.3d 767, 778 (Tex. App.—El Paso 2021, no pet.) (stating that “[t]he trial court’s

written order expressly referenced ‘evidence submitted by the parties,’ as well as ‘[t]he

discussion, analysis, comments[,] and ruling of the [c]ourt during the hearing on

Defendants’ Vexatious Litigant Motion’ as a basis of support for its determination”

and presuming that there was legally and factually sufficient evidence to support the

trial court’s final determination based on “the evidence attached to the Appellees’

motion describing Hernandez’s unsuccessful but extensive litigation against them, as

well as the litigation filed in this Court, and in the absence of the reporter’s record

demonstrating otherwise”); Rodriguez v. Storm, Nos. 04-19-00642-CV, 04-19-00795-

CV, 2020 WL 2139298, at *4 (Tex. App.—San Antonio May 6, 2020, no pet.) (mem.

op.) (“Because a reporter’s record from the hearing is required to consider

Rodriguez’s issues challenging the trial court’s vexatious litigant order, we do not

further address them.”); Amrhein, 593 S.W.3d at 404 (“However, the record on appeal

does not include a reporter’s record of the April 5 hearing. In this case, without a

reporter’s record, we cannot review a trial court’s order for an abuse of discretion.”).

10
 C. We set forth the standards that a trial court applies to determine
whether a plaintiff is a vexatious litigant.2

Section 11.054 sets out the criteria for finding a plaintiff a vexatious litigant.

See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. The first criteria is “that there is not

a reasonable probability that the plaintiff will prevail in the litigation against the

defendant.” Id. Then the section requires proof that the plaintiff is vexatious and

provides three alternatives of proof. Id.; see also Akinwamide v. Transp. Ins. Co., 499

S.W.3d 511, 532 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Subsection (2)

sets out one alternative as follows:

(2) [A]fter a litigation has been finally determined against the plaintiff,
the plaintiff repeatedly relitigates or attempts to relitigate, pro se, either:

(A) the validity of the determination against the same defendant as
to whom the litigation was finally determined; or

(B) the cause of action, claim, controversy, or any of the issues of
fact or law determined or concluded by the final determination
against the same defendant as to whom the litigation was finally
determined.

Tex. Civ. Prac. & Rem. Code Ann. § 11.054(2). The City pleaded this subsection as

its basis for a determination that Dunlap is a vexatious litigant.

The initial phrase of Subsection (2) allows a movant to prove either that the

plaintiff has repeatedly litigated the matter dealt with in Subsections (A) and (B) or

There is a ninety-day time limit after a defendant files its answer to file a
2

motion seeking a determination that a plaintiff is vexatious and should post security.
See Tex. Civ. Prac. & Rem. Code Ann. § 11.051. The record demonstrates that the
City met that deadline.

11
that the plaintiff simply attempted to relitigate that matter. See Forist v. Vanguard

Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex. App.—San Antonio 2004, no pet.)

(“Section 11.054 allows a trial court to find a litigant vexatious if she either ‘repeatedly

relitigates’ or ‘attempts to relitigate’ a matter that has been finally determined against

her.”). Also, the term “litigation” as used in Chapter 11 of the Civil Practice and

Remedies Code “means a civil action commenced, maintained, or pending in any state

or federal court.” See Tex. Civ. Prac. & Rem. Code Ann. § 11.001(2) (emphasis added).

IV. Our Holdings

A. We lack an adequate record to review the trial court’s
determination that Dunlap was a vexatious litigant.

Initially, the trial court’s order recites that it conducted an evidentiary hearing.

No reporter’s record containing a transcription of that hearing was filed with this

court. The nature of Dunlap’s pro se brief makes it difficult to understand the nature

of the attacks that she makes on the trial court’s order. But to the extent we surmise

that she is raising evidentiary challenges to the finding that she is a vexatious litigant,

we cannot review such challenges because we must have the necessary record to do

so.

B. The City’s motion seeking a vexatious-litigant determination
states adequate grounds to support the trial court’s exercise of its
discretion.

Even if we go further and look to the validity of the grounds alleged in the

City’s motion, those clearly support the trial court’s exercise of its discretion to

12
determine that Dunlap is a vexatious litigant. See Hernandez, 621 S.W.3d at 778

(conducting review of adequacy of vexatious-litigant motion even though no

reporter’s record was filed). We turn first to the question of whether there was no

reasonable probability that Dunlap would prevail in the present litigation against the

City. The City’s brief details why Dunlap’s claims were legally unfounded—a

conclusion supported by the federal court’s grant of summary judgment in Dunlap’s

first post-termination suit against the City. Dunlap does not challenge those

arguments on appeal. The City also emphasized that Dunlap’s claims were barred by

res judicata—a conclusion borne out by the federal court’s dismissal order in

Dunlap’s second post-termination suit and apparently now by the federal court’s

order dismissing her third post-termination suit. See Dunlap, 2021 WL 1841399, at *1.

Also, the appendix to the motion amply supports a finding that Dunlap has

pursued a strategy of filing new suits against the City when it becomes apparent that

she is about to receive an adverse ruling in litigation that she has previously filed.

This supports a finding that she has repeatedly litigated or is attempting to relitigate

the final determinations of the federal court or a “cause of action, claim, controversy,

or any of the issues of fact or law determined or concluded by the final determination

against the same defendant as to whom the litigation was finally determined.” See

Tex. Civ. Prac. & Rem. Code Ann. § 11.054(2).

13
 C. To the extent that we can discern what Dunlap argues, none of her
arguments constitute a viable challenge to the trial court’s ruling.

Finally, even though Dunlap’s brief fails to cite relevant authority, lacks record

references, relies on ad hominem attacks, and is mostly an explication of her lay view

regarding why the trial court erred, we will briefly address her arguments as we

understand them. 3 Her arguments are as follows:

• Her suit against the City is not frivolous. This argument makes no

attempt to apply the standards of Section 11.054 of the Civil Practice

and Remedies Code. Dunlap cites only cases from New Jersey

appellate courts. She also claims that she attempted to settle her claims

against the City. We do not understand how her attempts at settlement

warrant or justify her repeated and failed attempts to sue the City.

• The Lily Ledbetter Act revives her claims. She cites no authority for this

proposition, and the federal court’s most recent order rejected this

argument. See Dunlap, 2021 WL 1841399, at *1.

• Dunlap is not a vexatious litigant because she is seeking justice. This

argument makes no attempt to apply the standards at play under the

3
Dunlap’s brief filed June 23, 2021, and her reply brief filed August 30, 2021,
are the operative briefs in this matter; her later “opening brief” was presented without
leave for its filing. We cannot break down the review of Dunlap’s brief by issue
because her Appellant’s brief lacks a statement of the issues that she raises. See Tex.
R. App. P. 38.1 (requiring the inclusion of, among other things, a statement of issues
presented for review).

14
 Civil Practice and Remedies Code to the order that is the subject of our

review.

• Dunlap has prima facie evidence of her discrimination claims based on

the historic actions of the City. Again, this argument is not a challenge

to whether she has legally viable claims or whether her claims are barred

by res judicata.

• Dunlap’s prior suits should not have been dismissed because they had

merit. We have no jurisdiction to review judgments entered by a federal

court. See Tex. Gov’t Code Ann. § 22.221(a).

• “If the Plaintiff continues receiving discriminatory retirement checks and

the denial of other resources related to a normal retiree, the doctrine of

res judicata should always be defeated, especially in cases of pay

discrimination under the Lily Ledbetter Fair Pay Act of 2009.” The

federal court disagreed, and she cites no authority to support this

argument.

• “Plaintiff’s claims of neglectful management are not barred by

governmental immunity because it is continuous.” We do not

understand what argument Dunlap is attempting to make.

• “Plaintiff’s discrimination claims under Title VII Civil Rights Act of

1964 are very timely and are retroactive under the Lily Ledbetter

15
 Legislation of 2009.” Again, Dunlap offers no explanation of how this

Act would prevent her claims from being time barred or barred by res

judicata.

• “Plaintiff’s constitutional claims are not barred by the statute of

limitations.” Dunlap offers no authority to support this assertion.

• “Plaintiff does have factual evidence to pursue criminal violations against

all defendants at higher levels of government.” Dunlap does not offer

any authority to establish that she has standing to assert a criminal

violation or a theory that could be predicated on a criminal violation. See

Delgado v. Combs, No. 07-11-00273-CV, 2012 WL 4867600, at *2 (Tex.

App.—Amarillo Oct. 15, 2012, no pet.) (mem. op.) (“The Texas Penal

Code is criminal in nature and does not create any private civil causes of

action.”).

• Dunlap did not file the present litigation to harass anyone. Harassment

is not the standard applied to the vexatious-litigant determination.

• “In order that the plaintiff is deemed a vexatious litigant, 5 or more cases

must have been filed over a period of seven years, not a decade . . . .”

This is a reference to the vexatious-litigant standard set out in Section

11.054(1) of the Civil Practice and Remedies Code and not Section

16
 11.054(2) that was the basis of the City’s motion. See Tex. Civ. Prac. &

Rem. Code Ann. § 11.054(1), (2).

• “The litigation law under Texas Civil [Practice &] Remedies Code

[Section] 11.051 only applies to state cases, and not federal ones.” This

statement is contrary to the definition of “litigation” contained in

Section 11.001(2) that we cited above. See id. § 11.001(2).

V. Conclusion

We lack jurisdiction to review the portion of the trial court’s order requiring

Dunlap to post security. For the remaining portion of the order requiring permission

of the local administrative judge before Dunlap files additional litigation, we lack an

adequate record to review the trial court’s determination that Dunlap is a vexatious

litigant. Going further in our review than required, the motion filed by the City

provided an adequate basis for the trial court to exercise its discretion and make the

twin decisions required to support its order: (1) that there is a reasonable probability

that Dunlap will not prevail in her current litigation against the City and (2) that

Dunlap litigated or repeatedly attempted to relitigate prior adverse determinations of

her claims against the City. Finally, we address the arguments that we understand

Dunlap to be making in her brief and conclude that none of them are viable.

Accordingly, we affirm the trial court’s determination that Dunlap is a vexatious

litigant and that she must obtain the permission of the local administrative judge

17
before filing any new litigation in propria persona, i.e., as a pro se plaintiff, in any

court of the State of Texas.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: October 28, 2021

18