Talek Sherman v. Brain Setter and Vets Securing America

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00155-CV
___________________________

TALEK SHERMAN, Appellant

V.

BRAIN SETTER AND VETS SECURING AMERICA, Appellees

On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2024-008400-1

Before Kerr, Womack, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

A party cannot request a specific action from a trial court and then appeal an

order granting that request. Here, Appellant Talek Sherman attempts to appeal the

trial court’s dismissal of his lawsuit under Rule 91a, which he agreed to during a

hearing on Appellees Brian1 Setter and Vets Securing America’s Rule 91a motion:

“[MR. SHERMAN]: Okay, dismiss it.” Accordingly, we conclude that Sherman has

invited any error in the trial court’s dismissal of his lawsuit. We will affirm.

I. Factual and Procedural Background

Pro se litigant Sherman filed the following original petition against Setter and

Vets Securing America, which we quote:

To The Honorable Judge of said court Talek Sherman (plaintiff)
Complains of Brain Setter and Vets Securing America (“defendant(s)”)
and For its Cause of action would respectfully show the Court as
Follows. This cause of action Is governed by the rules For expedited
Actions under the Texas Rules of Civil Procedure Rule 169 because the
Plaintiff is seeking only monetary relief of two hundred and FiFty
thousand dollars and penalties and attorney’s Fee and costs. Discovery is
intended to be Conducted under Level 1 of Rule 19.02 of Texas Rules of
Civil Procedure. Damages sought are within the Jurisdictor limits of the
Court.

Setter and Vets Securing America answered, asserting numerous affirmative defenses

and demanding arbitration under an employment agreement with Sherman.

1
Sherman sued “Brain Setter” and used that name throughout his filings, which
is also in the case caption. In his answer, Setter stated that his name is Brian, but in his
other filings, Setter used the name “Brain.”

2
Setter and Vets Securing America then filed a combined Rule 91a motion with

an alternative motion to compel arbitration. See Tex. R. Civ. P. 91a. Despite the fact

that Sherman’s petition states no facts or a specific cause of action against Setter or

Vets Securing America, they urged dismissal because Sherman had not pleaded that he

had exhausted his administrative remedies under certain employment statutes. They

alternatively urged the court to compel arbitration. Sherman did not file a response.

The trial court conducted a hearing on the motion. During the hearing, Setter

and Vets Securing America stated that they “[we]re presuming” the case was about

age and disability discrimination and asked the trial court to either dismiss it or

compel arbitration. The trial court then read Sherman’s petition and stated, “I should

dismiss it, because I don’t see any cause of action.” The trial court and defense

counsel discussed the propriety of dismissing the case under Rule 91a, and then the

trial court and Sherman had the following exchange, in which Sherman agreed to the

trial court’s decision to dismiss his case:

THE COURT: I don’t know why 91a doesn’t apply. I’m going to
dismiss your claim because it fails to state a claim against anybody.

MR. SHERMAN: You doing it again?

THE COURT: I don’t know I’ve done it before.

MR. SHERMAN: Okay, do it again. Because I was on my way to
work. I was supposed to be there at work. Why are you dismissing this?

THE COURT: You do not state a claim against any party for
which relief can be granted.

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MR. SHERMAN: They escorted me off the premises while I was
doing my job.

THE COURT: Do an order granting Defendant’s Rule 91a
motion to dismiss.

MR. SHERMAN: Okay, dismiss it.

THE COURT: Yes, sir, I am.

MR. SHERMAN: Do it.

THE COURT: Thank you. Okay, we’re done. [Emphases added.]

The trial court then dismissed Sherman’s claims and causes of action in an

“Order” indicating it was intended to be final and appealable. Despite telling the trial

court to “dismiss it,” and following up “[d]o it,” Sherman appeals the dismissal. 2

II. Discussion

Sherman’s brief is not the model of clarity. In fact, it contains no record

references, lacks any citations to authority, and in many other respects fails to comply

with Rule 38.1. See Tex. R. App. P. 38.1. We previously pointed out Sherman’s

briefing deficiencies and gave him an opportunity to file a corrected brief, but his

corrected brief remains noncompliant and devoid of a clear and concise argument. See

2
We take judicial notice that after Sherman had perfected this appeal, a different
Tarrant County statutory county court at law has declared Sherman a vexatious
litigant. Available at http://www.txcourts.gov/judicial-data/vexatious-litigants/ (last
visited Oct. 22, 2025). See Hornbuckle v. Keller Williams Realty, No. 02-15-00398-CV,
2016 WL 7405807, at *1 & nn.2–3 (Tex. App.—Fort Worth Dec. 22, 2016, no pet.)
(mem. op.); see also Tex. Civ. Prac. & Rem. Code Ann. § 11.104(b) (requiring the
Office of Court Administration to post on its website a list of vexatious litigants
subject to a prefiling order).

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Tex. R. App. P. 38.8(a), 38.9(a), 42.3. We could decide this appeal based on the

inadequacy of Sherman’s briefing,3 but liberally construing his brief as raising a single

global issue challenging the trial court’s dismissal of his “cause of action”4—which

Sherman requested—we instead decide it upon the invited-error doctrine.

As the Supreme Court of Texas has explained, “a party cannot complain on

appeal that the trial court took a specific action that the complaining party requested,

a doctrine commonly referred to as ‘the invited[-]error’ doctrine.” Tittizer v. Union Gas

Corp., 171 S.W.3d 857, 862 (Tex. 2005) (quoting Ne. Tex. Motor Lines v. Hodges,

158 S.W.2d 487, 488 (1942)). “The rule is grounded in justice and dictated by

common sense.” Id. at 861 (citing Hodges, 158 S.W.2d at 488). To illustrate, this court

has previously held that when a party affirmatively requests a nonsuit of its claims,

3
See Tex. R. App. P. 38.1(i); Irisson v. Lone Star Nat’l Bank, No. 13-19-00239-CV,
2020 WL 6343336, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 29, 2020, no
pet.) (mem. op.) (“When an appellant’s brief fails to contain clear and concise
argument for the contentions made with appropriate citations to authorities, the
appellate court is not responsible for doing the legal research that might support a
party’s contentions.”); Richardson v. Marsack, No. 05-18-00087-CV, 2018 WL 4474762,
at *1 (Tex. App.—Dallas Sept. 19, 2018, no pet.) (mem. op.) (“Our appellate rules
have specific requirements for briefing,” including requiring “appellants to state
concisely their complaints, to provide succinct, clear, and accurate arguments for why
their complaints have merit in law and fact, to cite legal authority that is applicable to
their complaints, and to cite appropriate references in the record.”).
4
In his brief, Sherman frames his appellate complaints by referencing the
dismissal of his wrongful-termination, age-discrimination, retaliation, pay-
discrimination, and other employment claims—none of which are pleaded in his
original petition. See Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018) (“A liberal
construction does not require a court to read into a petition what is plainly not there.”
(citation modified)).

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that party cannot then challenge the trial court’s dismissal of such claims. Swain v.

Hutson, No. 2-09-038-CV, 2009 WL 3246750, at *6 (Tex. App.—Fort Worth Oct. 8,

2009, pet. denied) (mem. op.)

Because Sherman (1) filed no response objecting to the Rule 91a motion and

(2) instead affirmatively responded to the trial court’s statement that it intended to

dismiss his lawsuit under Rule 91a by first agreeing “[o]kay, dismiss it,” and then

confirming “[d]o it,” Sherman cannot complain on appeal that the trial court erred by

dismissing his “cause of action” against Setter and Vets Securing America. See Tittizer,

171 S.W.3d at 862; Swain, 2009 WL 3246750, at *6. We overrule Sherman’s sole

appellate issue.

III. Conclusion

Having overruled Sherman’s sole issue, we affirm the trial court’s dismissal

order.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: October 23, 2025

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