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Amrhein v. Bollinger

Court of Appeals of Texas, Fifth District, Dallas

October 3, 2019

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

          Before Justices Bridges, Molberg, and Partida-Kipness.

          OPINION

          KEN MOLBERG, JUSTICE.

         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.

         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.

         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 ...


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