In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00254-CV ___________________________
MERYL DESHA GUNN, Appellant
V.
SANDALWOOD MANAGEMENT INC., C/O COUNTRY PARK APTS, Appellee
On Appeal from the 431st District Court Denton County, Texas Trial Court No. 23-4644-431
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
I. BACKGROUND
Appellant Meryl Gunn, proceeding pro se, formerly lived at the Country Park
Apartments (Country Park) in Denton, Texas. Appellee Sandalwood Management,
Inc. (Sandalwood) manages Country Park. Gunn was evicted from Country Park for
nonpayment of rent in April 2023 via an eviction suit filed in the justice court. Gunn
appealed the eviction suit to the county court, and that appeal was dismissed for want
of jurisdiction on May 1, 2023.
Gunn then filed her original petition in the instant case on May 31, 2023. She
sued Sandalwood for violating both her 14th Amendment rights and Section 241 of
Title 18 of the United States Code (Section 241),1 alleging that she had been
discriminated against based on her familial status of being low income. She also
claimed that Sandalwood had engaged in retaliation, negligence, harassment,
defamation of character, bribery, housing fraud, and falsification of documents—all
related to her tenancy at Country Park. Gunn alleged that Sandalwood’s actions had
rendered her and her family homeless and ineligible to receive housing benefits; she
sought monetary relief in excess of $1 million.
1 Section 241—titled “Conspiracy against rights”—provides that a federal crime is committed “[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. . . .” 18 U.S.C.A. § 241 (West).
2 Sandalwood answered and filed a Rule 91a motion to dismiss. See Tex. R. Civ.
P. 91a.1. It argued that res judicata barred all of Gunn’s claims because she had
already raised them within the eviction suit.2 It also argued that Gunn had failed to
plead facts sufficient to support her claims for bribery, housing fraud, falsification of
documents, defamation, harassment, retaliation, and negligence. Sandalwood
requested its attorney’s fees pursuant to Rule 91a.7. See Tex. R. Civ. P. 91a.7.
After a hearing, the trial court granted Sandalwood’s motion to dismiss and
awarded it $2,400 in attorney’s fees.3 Gunn appeals from this order. We will affirm.
II. DISCUSSION
In her notice of appeal, Gunn indicated that she desired to appeal the trial
court’s order granting Sandalwood’s Rule 91a motion to dismiss. However, her
appellant’s brief in many ways reads more like an original petition than a challenge to
the trial court’s order. It contains a lengthy fact section outlining the many alleged
wrongs committed by Sandalwood and other related parties but with no citations to
the record or the pleadings specifically. Gunn does not provide us with the relevant
standard of review, the law governing Rule 91a motions to dismiss, or the law
2 In its answer, Sandalwood pleaded the affirmative defense of res judicata. 3 Though the trial court indicated orally at the hearing on Sandalwood’s motion to dismiss that it was granting the motion on grounds of collateral estoppel, res judicata, failure to state a valid cause of action, and the state action doctrine, its written order granting the motion did not indicate the grounds upon which it relied.
3 governing res judicata. And she does not request any relief as it relates to reversing or
undoing the trial court’s order.
Instead, she requests that we award her “the demands of at least six million
dollars or better . . . for punitive damages due to negligence, housing discrimination,
housing fraud[,] and other illegal practices that also includes violating my family’s right
to due process of law.” She concludes by asserting that this court “has the necessary
jurisdiction needed to also file criminal charges [against Sandalwood], Denton
Housing Authority, Denton County Justice of the Peace #1[,] and [Sandalwood’s
attorney].”
As such, the appellate issues raised by Gunn are not entirely clear, but—
endeavoring to liberally construe her brief, see Tex. R. App. P. 38.9—we understand
them to be that the trial court erred in granting Sandalwood’s Rule 91a motion to
dismiss because:
1. res judicata did not bar her claims;
2. her 14th Amendment claim had sufficient legal and factual bases;
3. her Section 241 claim had sufficient legal and factual bases;
4. her bribery claim (pursuant to Texas Penal Code Section 36.02(a)(2)(3)) had sufficient legal and factual bases;
5. her False Claims Act claim had sufficient legal and factual bases; and
6. her Equal Credit Opportunity Act claim had sufficient legal and factual bases.
4 A. STANDARD OF REVIEW AND RELEVANT LAW
We review de novo a trial court’s ruling on a Rule 91a motion to dismiss.
Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 537 S.W.3d 717, 719 (Tex.
App.—Fort Worth 2017, pet. dism’d). Rule 91a allows a party to move to dismiss a
claim brought against it if the claim has “no basis in law or fact.” Tex. R. Civ.
P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought.” Id. “A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.” Id.
A Rule 91a motion may be granted on an affirmative defense—including res
judicata—so long as the defense is “conclusively established by the facts in the
plaintiff’s petition.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C.,
595 S.W.3d 651, 656 (Tex. 2020); see Smale v. Williams, 590 S.W.3d 633, 637–38 (Tex.
App.—Texarkana 2019, no pet.) (holding that trial court properly granted Rule 91a
motion based on res judicata defense).
When, as here, an order granting a Rule 91a motion to dismiss does not specify
the grounds for dismissal, an appellant seeking reversal of the order must negate the
validity of each ground on which the trial court could have granted the motion;
otherwise the order must be affirmed on appeal. Palma v. Gen. Land Off. of Tex.,
No. 14-22-00350-CV, 2023 WL 5217768, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 15, 2023, pet. denied) (mem. op.). “A written order that does not specify
5 grounds controls over any oral pronouncement made by the court during the
hearing.” Estate of Savana, 529 S.W.3d 587, 592–93 (Tex. App.—Houston [14th Dist.]
2017, no pet.); see also Shumway v. Whispering Hills of Comal Cty. Tex. Prop. Owners Ass’n,
Inc., No. 03-15-00513-CV, 2016 WL 4429939, at *2 (Tex. App.—Austin Aug. 16,
2016, pet. denied) (mem. op.) (holding that even though trial court orally pronounced
it was granting Rule 91a motion based on limitations, judge’s written order, which did
not specify court’s reasons for granting motion, controlled for purposes of appellate
review).
B.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00254-CV ___________________________
MERYL DESHA GUNN, Appellant
V.
SANDALWOOD MANAGEMENT INC., C/O COUNTRY PARK APTS, Appellee
On Appeal from the 431st District Court Denton County, Texas Trial Court No. 23-4644-431
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
I. BACKGROUND
Appellant Meryl Gunn, proceeding pro se, formerly lived at the Country Park
Apartments (Country Park) in Denton, Texas. Appellee Sandalwood Management,
Inc. (Sandalwood) manages Country Park. Gunn was evicted from Country Park for
nonpayment of rent in April 2023 via an eviction suit filed in the justice court. Gunn
appealed the eviction suit to the county court, and that appeal was dismissed for want
of jurisdiction on May 1, 2023.
Gunn then filed her original petition in the instant case on May 31, 2023. She
sued Sandalwood for violating both her 14th Amendment rights and Section 241 of
Title 18 of the United States Code (Section 241),1 alleging that she had been
discriminated against based on her familial status of being low income. She also
claimed that Sandalwood had engaged in retaliation, negligence, harassment,
defamation of character, bribery, housing fraud, and falsification of documents—all
related to her tenancy at Country Park. Gunn alleged that Sandalwood’s actions had
rendered her and her family homeless and ineligible to receive housing benefits; she
sought monetary relief in excess of $1 million.
1 Section 241—titled “Conspiracy against rights”—provides that a federal crime is committed “[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. . . .” 18 U.S.C.A. § 241 (West).
2 Sandalwood answered and filed a Rule 91a motion to dismiss. See Tex. R. Civ.
P. 91a.1. It argued that res judicata barred all of Gunn’s claims because she had
already raised them within the eviction suit.2 It also argued that Gunn had failed to
plead facts sufficient to support her claims for bribery, housing fraud, falsification of
documents, defamation, harassment, retaliation, and negligence. Sandalwood
requested its attorney’s fees pursuant to Rule 91a.7. See Tex. R. Civ. P. 91a.7.
After a hearing, the trial court granted Sandalwood’s motion to dismiss and
awarded it $2,400 in attorney’s fees.3 Gunn appeals from this order. We will affirm.
II. DISCUSSION
In her notice of appeal, Gunn indicated that she desired to appeal the trial
court’s order granting Sandalwood’s Rule 91a motion to dismiss. However, her
appellant’s brief in many ways reads more like an original petition than a challenge to
the trial court’s order. It contains a lengthy fact section outlining the many alleged
wrongs committed by Sandalwood and other related parties but with no citations to
the record or the pleadings specifically. Gunn does not provide us with the relevant
standard of review, the law governing Rule 91a motions to dismiss, or the law
2 In its answer, Sandalwood pleaded the affirmative defense of res judicata. 3 Though the trial court indicated orally at the hearing on Sandalwood’s motion to dismiss that it was granting the motion on grounds of collateral estoppel, res judicata, failure to state a valid cause of action, and the state action doctrine, its written order granting the motion did not indicate the grounds upon which it relied.
3 governing res judicata. And she does not request any relief as it relates to reversing or
undoing the trial court’s order.
Instead, she requests that we award her “the demands of at least six million
dollars or better . . . for punitive damages due to negligence, housing discrimination,
housing fraud[,] and other illegal practices that also includes violating my family’s right
to due process of law.” She concludes by asserting that this court “has the necessary
jurisdiction needed to also file criminal charges [against Sandalwood], Denton
Housing Authority, Denton County Justice of the Peace #1[,] and [Sandalwood’s
attorney].”
As such, the appellate issues raised by Gunn are not entirely clear, but—
endeavoring to liberally construe her brief, see Tex. R. App. P. 38.9—we understand
them to be that the trial court erred in granting Sandalwood’s Rule 91a motion to
dismiss because:
1. res judicata did not bar her claims;
2. her 14th Amendment claim had sufficient legal and factual bases;
3. her Section 241 claim had sufficient legal and factual bases;
4. her bribery claim (pursuant to Texas Penal Code Section 36.02(a)(2)(3)) had sufficient legal and factual bases;
5. her False Claims Act claim had sufficient legal and factual bases; and
6. her Equal Credit Opportunity Act claim had sufficient legal and factual bases.
4 A. STANDARD OF REVIEW AND RELEVANT LAW
We review de novo a trial court’s ruling on a Rule 91a motion to dismiss.
Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 537 S.W.3d 717, 719 (Tex.
App.—Fort Worth 2017, pet. dism’d). Rule 91a allows a party to move to dismiss a
claim brought against it if the claim has “no basis in law or fact.” Tex. R. Civ.
P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant to
the relief sought.” Id. “A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.” Id.
A Rule 91a motion may be granted on an affirmative defense—including res
judicata—so long as the defense is “conclusively established by the facts in the
plaintiff’s petition.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C.,
595 S.W.3d 651, 656 (Tex. 2020); see Smale v. Williams, 590 S.W.3d 633, 637–38 (Tex.
App.—Texarkana 2019, no pet.) (holding that trial court properly granted Rule 91a
motion based on res judicata defense).
When, as here, an order granting a Rule 91a motion to dismiss does not specify
the grounds for dismissal, an appellant seeking reversal of the order must negate the
validity of each ground on which the trial court could have granted the motion;
otherwise the order must be affirmed on appeal. Palma v. Gen. Land Off. of Tex.,
No. 14-22-00350-CV, 2023 WL 5217768, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 15, 2023, pet. denied) (mem. op.). “A written order that does not specify
5 grounds controls over any oral pronouncement made by the court during the
hearing.” Estate of Savana, 529 S.W.3d 587, 592–93 (Tex. App.—Houston [14th Dist.]
2017, no pet.); see also Shumway v. Whispering Hills of Comal Cty. Tex. Prop. Owners Ass’n,
Inc., No. 03-15-00513-CV, 2016 WL 4429939, at *2 (Tex. App.—Austin Aug. 16,
2016, pet. denied) (mem. op.) (holding that even though trial court orally pronounced
it was granting Rule 91a motion based on limitations, judge’s written order, which did
not specify court’s reasons for granting motion, controlled for purposes of appellate
review).
B. RES JUDICATA GROUNDS
Sandalwood argued in its Rule 91a motion that all of the pleaded claims in
Gunn’s petition were barred by res judicata because they were or should have been
raised in the previous eviction suit. The trial court’s written order granted
Sandalwood’s motion without specifying the grounds on which it relied. Thus, the
trial court impliedly granted the motion on all grounds asserted by Sandalwood—
including res judicata—and Gunn must have sufficiently challenged that ground on
appeal, or we must affirm the trial court’s order. See Palma, 2023 WL 5217768, at *2.
Gunn failed to do so.
The following paragraph constitutes the entirety of Gunn’s discussion in her
appellant’s brief regarding whether Sandalwood’s res judicata defense barred her
claims:
6 Appellee was granted res judicata and collateral [sic] regarding which case? Appellant shows no final judgement for any cases other than 431st District Court and at the request of the Appellee. [Gunn] has never taken Sandalwood Management, Inc[.] or Country Park Apartments to court involving any previous suits.
An appellant’s brief must contain “a clear and concise argument” that includes
appropriate citations to legal authority and the appellate record. Tex. R. App.
P. 38.1(i). “[A]ppellate courts have no duty—or even the right—to perform an
independent review of the record and the applicable law to determine whether there
was error; we cannot make the party’s arguments for [her], and then adjudicate the
case based on the arguments we have made on [her] behalf.” Craaybeek v. Craaybeek,
No. 02-20-00080-CV, 2021 WL 1803652, at *5 (Tex. App.—Fort Worth May 6, 2021,
pet. denied) (mem. op.) (internal quotations omitted). “Were we to do so, even on
behalf of a pro se appellant, we would be abandoning our role as neutral adjudicators
and become an advocate for that party.” Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.
App.—El Paso 2007, no pet.) (noting also that pro se litigants “are held to the same
standards as licensed attorneys and must comply with all applicable rules of
procedure”).
These briefing requirements are “not satisfied by merely uttering brief,
conclusory statements unsupported by legal citations.” Matter of Marriage of Hudson,
No. 06-18-00011-CV, 2018 WL 4656288, at *4 (Tex. App.—Texarkana Sept. 28,
2018, no pet.) (mem. op.) (internal quotations omitted). Failure to adequately brief an
7 issue results in waiver of the complaint and provides nothing for the appellate court
to review. Craaybeek, 2021 WL 1803652, at *3; Valadez, 238 S.W.3d at 845.
In her challenge to Sandalwood’s res judicata ground, Gunn did not provide a
standard of review, citations to the record, citations to legal authority, or any legal
analysis on the issue. Accordingly, she has waived the issue for our review and we
must affirm the trial court’s order on res judicata grounds. We overrule Gunn’s first
issue. We also overrule Gunn’s second, third, and fourth issues because her 14th
Amendment, Section 241, and bribery claims—which were each raised in her original
petition—are thus barred by res judicata.
C. FALSE CLAIMS ACT AND EQUAL CREDIT OPPORTUNITY ACT
With her fifth and sixth issues, it appears that Gunn argues that she is entitled
to recovery under the “False Claims Act” and the “Equal Credit Opportunity Act.”
However, she did not plead these claims in her original petition. Gunn cannot raise
new issues or claims for the first time on appeal. See Tex. R. App. P. 33.1(a)(1)
(requiring that issue must have been raised to trial court “by a timely request,
objection, or motion”); Hatch v. Univ. of Tex. at Austin, No. 03-22-00489-CV, 2023 WL
5597358, at *2 (Tex. App.—Austin Aug. 30, 2023, no pet.) (mem. op.). We overrule
her fifth and sixth issues.
III. CONCLUSION
For all of the foregoing reasons, we affirm the trial court’s judgment.
8 /s/ Brian Walker
Brian Walker Justice
Delivered: May 16, 2024