Darlene C. Amrhein v. Attorney Lennie F. Bollinger, and Worminton & Bollinger Law Firm ( 2019 )

Affirm and Opinion Filed October 3, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00567-CV
DARLENE C. AMRHEIN, Appellant
V.
ATTORNEY LENNIE F. BOLLINGER, AND WORMINTON & BOLLINGER LAW
FIRM, Appellees
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 006-02654-2017
OPINION
Before Justices Bridges, Molberg, and Partida-Kipness
Opinion by Justice Molberg
Darlene Amrhein, appearing pro se, appeals the trial court’s order declaring her a vexatious
litigant, pursuant to which the trial court subsequently dismissed with prejudice her claims against
Attorney Lennie F. Bollinger, and Worminton & Bollinger Law Firm for failing to post the
required security.1 We affirm the trial court’s order.
BACKGROUND
This case has a long and complicated history. We recount that history only as necessary to
resolve the single discernable issue on appeal, namely, whether the trial court erred in declaring
Amrhein a vexatious litigant.
1
Amrhein does not appear to contend on appeal that the trial court erred by dismissing her case for failure to post
security.
Amrhein filed suit against appellees on October 26, 2017, and she filed an amended petition
on November 27, 2017, asserting a legal malpractice claim and other claims. On December 22,
2017, appellees filed a Texas Rule of Civil Procedure 91a motion to dismiss all of Amrhein’s
claims except for the legal malpractice claim. On January 30, 2018, the trial court granted
appellees’ Rule 91a motion to dismiss.2 The trial court’s order required Amrhein to file an
amended petition removing the dismissed causes of action within twenty days. The order stated
that failure to do so could result in dismissal of the lawsuit.
On February 9, 2018, appellees filed a motion for an order determining Amrhein to be a
vexatious litigant and requiring security pursuant to section 11.051 of the Texas Civil Practice and
Remedies Code. After conducting a hearing on April 5, 2018, the trial court signed an order
declaring Amrhein a vexatious litigant and requiring her to provide security by obtaining a bond
in the amount of $160,000 by May 5, 2018, at 5 p.m. The trial court’s order stated that if Amrhein
failed to post the security as ordered, the lawsuit would be dismissed. Amrhein failed to post
security, and on May 14, 2018, the trial court dismissed the lawsuit.3
Amrhein filed a notice of appeal on May 15, 2018, and she filed a pro se brief in this Court
on October 30, 2018. On November 6, 2018, we ordered Amrhein to file an amended brief
complying with Texas Rule of Appellate Procedure 38.1 no later than November 26, 2018. By
subsequent order, we granted Amrhein an extension of time to file an amended brief. Amrhein’s
amended brief was filed in this Court on February 6, 2019.
2
Specifically, the trial court dismissed Amrhein’s claims for violations of the Texas Disciplinary Rules of
Professional Conduct, breach of fiduciary duty, breach of contract, fraud, violations of the Deceptive Trade Practices
Act (DTPA), violations of the Texas Rules of Civil Procedure, “Bad Faith,” negligent misrepresentation, conspiracy,
violations of constitutional rights, and discrimination. The trial court also dismissed all causes of action brought in
Amrhein’s representative capacity of Anthony Baliestreri, deceased, or his estate or trust.
3
Although the order is not dated, there is no dispute the trial court signed its order dismissing the lawsuit for
failure to post the requisite security on May 14, 2018.
AMRHEIN’S BRIEF FAILS TO COMPLY WITH TEXAS RULE OF APPELLATE
PROCEDURE 38.1
Initially, we recognize that Amrhein is acting pro se on appeal, and we must construe her
brief liberally. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). However, our
rules of appellate procedure have specific requirements for briefing, see TEX. R. APP. P. 38.1, and
the law is well-settled that a party proceeding pro se must comply with all applicable rules. Harris
v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.—Dallas 2007, no pet.). We may not
apply different standards for litigants appearing without advice of counsel. Bolling v. Farmers
Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.); see also Morris
v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). Otherwise, pro se litigants would be afforded an unfair advantage over those represented by
counsel. See Sprowl v. Stiles, No. 05-18-01058-CV, 2019 WL 3543581, at *4 (Tex. App.—Dallas
Aug. 4, 2019, no pet.) (mem. op.). Therefore, on appeal, Amrhein must properly present her case
according to the rules of appellate procedure.
Requirements of Texas Rule of Appellate Procedure 38.1
The right to appellate review in Texas extends only to complaints made in accordance with
our rules of appellate procedure, which require an appellant to clearly articulate the issues we will
be asked to decide, to make cogent and specific arguments in support of its position, to cite
authorities, and to specify the pages in the record where each alleged error can be found. TEX. R.
APP. P. 38.1; Lee v. Abbott, No. 05-18-01185-CV, 2019 WL 1970521, at *1 (Tex. App.—Dallas
May 3, 2019, no pet.) (mem. op.); Bolling, 315 S.W.3d at 895 (rules require appellants to “state
concisely the complaint they may have, provide understandable, succinct and clear argument for
why their complaint has merit in fact and in law, and cite and apply law that is applicable to the
complaint being made along with record references that are appropriate”).
We will not look outside an appellate brief for arguments in support of an issue when doing
so would circumvent the rules of appellate procedure. See Lee, 2019 WL 1970521, at *1. Nor are
we responsible for searching the record for facts or for conducting legal research that may be
favorable to a party’s position. Id.; Bolling, 315 S.W.3d at 895. If we did so, we would be
abandoning our proper role as neutral arbiters and become advocates for a party. Bolling, 315
S.W.3d at 895.
Rule 38.1(f) requires Amrhein’s brief to “state concisely all issues or points presented for
review.” TEX. R. APP. P. 38.1(f). If Amrhein does not adequately articulate the issues, her brief
fails. Bolling, 315 S.W.3d at 896. Rule 38.1(i) requires Amrhein’s brief to contain “a clear and
concise argument for the contentions made, with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(i). If we must speculate or guess about Amrhein’s contentions, her
brief fails. Bolling, 315 S.W.3d at 896. Moreover, an appellate brief containing “[r]eferences to
legal authority that have nothing to do with the issue to be decided” does not comply with Rule
38.1(i). Id. If Amrhein’s brief does not cite “existing authority that can be applied to the facts of
the case,” her brief fails. Id.
The rules of appellate procedure additionally require Amrhein’s brief to include a statement
of facts that “state[s] concisely and without argument the facts pertinent to the issues or points
presented.” TEX. R. APP. P. 38.1(g). The statement of facts must be supported by record
references. Id. To fulfill these requirements, Amrhein must “provide us with such discussion of
the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Morrill
v. Cisek, 226 S.W.3d 545, 548 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not
done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. (quoting
Tesoro Petrol. Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston
[1st Dist.] 2002, pet. denied)). Amrhein must explain how the law in the cited authorities applies
to the material facts in the record and supports her arguments on appeal. Schmitz v. Denton Cty.
Cowboy Church, 550 S.W.3d 342, 363 (Tex. App.—Fort Worth 2018, pet. denied).
When the issue on appeal is unsupported by argument or lacks citation to the record or to
legal authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc.,
150 S.W.3d 423, 427 (Tex. 2004).
Amrhein’s Brief Contains Little to No Cogent Argument,
Analysis, or Articulation of the Issues on Appeal
Amrhein’s amended brief utterly fails to comply with Rule 38.1. Although Amrhein
purports to present eighteen issues for our review, her brief fails to present applicable facts,
argument, authorities, and record references for each purported issue. To the contrary, Amrhein’s
brief is rambling and largely incoherent. It consists mainly of a fifty-page string of jumbled and
chaotic references to laws, constitutional rights, alleged crimes, wrongdoing, and complaints,
making it difficult, if not impossible, to ascertain the issues presented. For example, Amrhein
articulates “Issue 1” and “Issue 2” as follows:
Issue 1: United States Constitution, Bill of Rights Applicable
Amendments, 5th and 14th Amendment, Protection of Free Speech, Freedom
of Religion, “Due Process,” Access To Courts, “[sic] Life, Liberty &
Property Protected, Rights to Redress, Grievances Heard, Legal Remedies,
No Discriminations, As Guaranteed To All American Born Citizens, etc.;
Issue 2: Texas Constitution, Adopted Federal Laws, State Laws, Access
to Courts, “Due Process,” Religion, Freedom of Speech, Religion, Life,
Liberty Property, Adopted Federal Laws, ADA Accommodations, Redress,
Legal Remedies for Grievances by Un Bias [sic] Trier of Fact, No
Discrimination & Equal Protection Clause To All Texas Residents Within
United States of America;
All eighteen of Amrhein’s “issues” are similarly articulated.
The brief also complains of action and wrongdoing by individuals who are not defendants
in the underlying action, including judges and court clerks. For example, Amrhein’s “Issue 18”
states:
Issue 18: Conspiracy by More Than Two Defendants, agreement,
commingled, collusion, concealment, deceptions, stalking harassments, new
personal injuries, judicial abuses, crimes_contrary [sic] to rules & laws, abuse
sworn oath, authority & offices, abuse of discretion, no judicial duties, no
examination of evidence & facts of lawsuit, no immunities for frauds &
crimes committed, “Void Judgments,” unjust enrichment benefits at
Appellant’s expenses, approximate total $350,000.00 for “no due process,”
as bias [sic] by legal professionals, organized crimes, extortion of money for
favorable unjust rulings & sanctions, frauds & discriminations against
“indigent,” RICO, white collar crimes by Judges, Attorneys, Clerks’
manipulate, slander, defamation, corruption, cause unnecessary litigation,
destroys United States & Texas Judiciary & Appellant” [sic] to prevent all
Courts’ Justice in America!
Amrhein fails to concisely and coherently state the facts and the legal issues presented for
our review; she fails to provide succinct, clear, and accurate arguments addressing how her
complaints have merit in law and fact; and she fails to cite legal authority or appropriate references
to the record with respect to her specific complaints. TEX. R. APP. P. 38.1(f), (h), (i). Any
references made by Amrhein to the record or to legal authority are not accompanied by discussion,
argument, or explanation of how such references relate to an issue on appeal. In short, Amrhein’s
brief provides no substantive analysis and makes no cogent argument. Our best efforts to construe
an issue raised by Amrhein’s brief leave us with only a complaint that the trial court erred by
declaring her a vexatious litigant.
We conclude that Amrhein’s complaints are inadequately briefed, and she has preserved
no issue for our review except for the question of whether the trial court abused its discretion in
declaring her a vexatious litigant.4 See TEX. R. APP. P. 38.1; Kupchynsky v. Nardiello, 230 S.W.3d
685, 692 (Tex. App.—Dallas 2007, pet. denied).
4
Indeed, that is the only issue Amrhein could raise in this Court without an order from a local administrative
judge permitting the filing. TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a), (d).
THE TRIAL COURT DID NOT ERR BY DECLARING
AMRHEIN A VEXATIOUS LITIGANT
Chapter 11 of the Texas Civil Practice and Remedies Code provides a mechanism to restrict
vexatious litigation by pro se individuals who abuse the legal system by pursuing numerous
frivolous lawsuits. TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.001–.104. The statute seeks to curb
vexatious litigation by requiring plaintiffs found by the court to be “vexatious” to post security for
costs before proceeding to trial. Id. §§ 11.051–.056.
Under Chapter 11, a defendant against whom a civil action is commenced, maintained, or
pending may move the trial court for an order determining that the plaintiff is a vexatious litigant.
Id. § 11.051. The court may find that a pro se plaintiff is a vexatious litigant if the defendant shows
(1) there is a reasonable probability that the plaintiff will not prevail in the litigation, and (2) in the
seven-year period immediately preceding the filing of the defendant’s motion, the plaintiff “has
commenced, prosecuted, or maintained at least five litigations as a pro se litigant” that were
“finally determined adversely to the plaintiff,” excluding any suits in small claims court. Id.
§ 11.054(1)(A).5
If the trial court determines the plaintiff is a vexatious litigant, then it must order the
plaintiff to furnish security. Id. § 11.055. If the plaintiff does not timely furnish the security, the
trial court has no option but to dismiss the litigation as to the defendant who filed the motion. Id.
§ 11.056. We review a trial court’s order determining that a litigant is vexatious for an abuse of
discretion. Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.—Dallas 2006, no pet.). Under this
standard, we may not substitute our judgment for the judgment of the trial court. Id.
A hearing on appellees’ motion seeking an order declaring Amrhein a vexatious litigant
was held on April 5, 2018. However, the record on appeal does not include a reporter’s record of
5
Section 11.054 provides several alternative criteria by which a court may determine that a plaintiff is a vexatious
litigant. TEX. CIV. PRAC. & REM. CODE ANN. § 11.054.
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. Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.—
Dallas 2006, pet. denied). Moreover, “when an appellant fails to bring a reporter’s record” of the
hearing, we must presume the evidence presented was sufficient to support the trial court’s order
declaring Amrhein a vexatious litigant. See id.
We therefore conclude the trial court did not abuse its discretion by declaring Amrhein a
vexatious litigant or by dismissing the case when Amrhein failed to post the requisite security. We
resolve Amrhein’s sole issue against her.
AMRHEIN FAILED TO OBTAIN THE REQUISITE PERMISSION
TO APPEAL ANY OTHER ISSUES
The Clerk of this Court may not file an appeal presented by a vexatious litigant subject to
a prefiling order, unless the litigant obtains an order from the local administrative judge authorizing
the appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a). Therefore, to the extent Amrhein
purports to appeal any order of the trial court other than the order declaring her a vexatious litigant,
she was required to obtain an order from the appropriate local administrative judge permitting the
filing. See id. Amrhein failed to do so. Consequently, even if Amrhien’s brief complied with the
briefing requirements of Rule 38.1—which it does not—the Clerk of this Court is not authorized
to file any such appeal. See id.
We affirm the trial court’s order. We deny all other motions pending in this Court as moot.
/Ken Molberg//
KEN MOLBERG
180567F.P05 JUSTICE
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARLENE C. AMRHEIN, Appellant On Appeal from the County Court at Law
No. 6, Collin County, Texas
No. 05-18-00567-CV V. Trial Court Cause No. 006-02654-2017.
Opinion delivered by Justice Molberg.
ATTORNEY LENNIE F. BOLLINGER, Justices Bridges and Partida-Kipness
AND WORMINTON & BOLLINGER participating.
LAW FIRM, Appellees
In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.
It is ORDERED that appellees ATTORNEY LENNIE F. BOLLINGER, AND
WORMINTON & BOLLINGER LAW FIRM recover their costs of this appeal from appellant
DARLENE C. AMRHEIN.
Judgment entered this 3rd day of October 2019.