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Defendant's Attorney: Trey Qualls
Christopher A. Troutt

Description:

Fort Worth, Texas - Civil Rights lawyer represented Appellant with challenging the trial court’s order designating her as a vexatious litigant.

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
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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
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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-cv00687-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-cv00687-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).
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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
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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).
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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
8
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-ofdiscretion 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:
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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).
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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.”).
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C. We set forth the standards that a trial court applies to determine
whether a plaintiff is a vexatious litigant.
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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
2
There is a ninety-day time limit after a defendant files its answer to file a
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.
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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
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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).
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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).
15
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
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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
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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).

Outcome: 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
before filing any new litigation in propria persona, i.e., as a pro se plaintiff, in any court of the State of Texas.

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