Chris Bell v. Republican Governors Association ( 2015 )

ACCEPTED
03-15-00078-CV
5234933
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/11/2015 3:24:10 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00078-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS,
5/11/2015 3:24:10 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
CHRIS BELL,
Appellant
v.
REPUBLICAN GOVERNORS ASSOCIATION,
Appellee.
On Appeal from the 261st Judicial District Court, Travis County
Honorable Judge Dietz Presiding
APPELLEE’S BRIEF
HUSH BLACKWELL LLP HANCE SCARBOROUGH, LLP
Elizabeth G. Bloch Terry L. Scarborough
State Bar No. 02495500 State Bar No. 17716000
Heidi.bloch@huschblackwell.com TScarborough@hslawmail.com
Thomas H. Watkins V. Blayre Pena
State Bar No. 20928000 State Bar No. 24050372
Tom.watkins@huschblackwell.com BPena@hslawmail.com
111 Congress Avenue, Suite 1400 400 W. 15th Street, Ste. 950
Austin, TX 78701 Austin, TX 78701
Telephone: (512) 472-5456 Telephone: (512) 479-8888
Facsimile: (512) 479-1101 Facsimile: (512) 482-6891
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
CHRIS BELL REPUBLICAN GOVERNORS
ASSOCIATION
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 53.2(a), the parties to the
judgment at issue in this appeal are:
APPELLANT ATTORNEYS FOR APPELLANT
Chris Bell Trial Counsel
Randall B. Wood
Doug W. Ray
Ray & Wood
2700 Bee Cave Rd. #200
Austin, Texas 78746
Counsel on Appeal
Elizabeth G. Bloch
Thomas H. Watkins
Husch Blackwell LLP
111 Congress Ave., Ste. 1400
Austin, Texas 78701
APPELLEE ATTORNEYS FOR APPELLEE
Republican Governors Association Trial and Appeal Counsel
Terry L. Scarborough
V. Blayre Pena
Hance Scarborough, LLP
400 W. 15th Street, Ste. 950
Austin, Texas 78701
2
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ……………………………….………...2
TABLE OF CONTENTS ………………………………………………….………3
INDEX OF AUTHORITIES ………………………………………………………4
STATEMENT OF THE CASE ……………………………………………..……..6
STATEMENT REGARDING ORAL ARGUMENT ……………………………..7
STATEMENT OF THE FACTS ……………………..……………………..……..8
SUMMARY OF THE RESPONSE… ……………………………….…………….9
ARGUMENT AND AUTHORITIES……...………………………..……………10
I. Standard of Review………………………………………………….10
II. Bell did not object to or otherwise controvert RGA’s evidence in
support of the reasonableness of its attorney’s fees. Accordingly, fees
may be awarded as a matter of
law………………...............................................................................11
III. Bell’s argument has no basis in law or
statute………………………………………………………………..13
1. The Texas Election Code and Texas’ statutory interpretation law
do not support Bell’s
argument…………..………………………………………….….13
2. Appellant cites to no case law which supports his position….......15
3. Case law supports the award fees to RGA……………………….17
4. The award of fees to RGA does not violate public interest……...18
CONCLUSION…………………………………………………………………...20
CERTIFICATE OF COMPLIANCE……………………………………………...21
CERTIFICATE OF SERVICE …………………………………………..….……22
3
INDEX OF AUTHORITIES
Cases
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.—
Austin 2006, no pet.) .............................................................................................................. 10
Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) ................................................................................................................ 10
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) ................................................ 10, 11
EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.—Austin 2005,
pet. denied) ................................................................................................................................ 10
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997) ................................................... 10
Hoelscher v. Kilman, 2006 Tex. App. LEXIS 1351, 18 (Tex. App.—Austin Feb.
16, 2006, no pet.) ..................................................................................................................... 12
Hunsucker v. Fustok, 238 S.W.3d 421, 432 (Tex. App.—Houston [1st Dist.] 2007,
no pet.)......................................................................................................................................... 12
In re Pirelli Tire, 247 S.W.3d 670 (Tex. 2007) ................................................................. 16
In the Interest of L.M.M., 2005 Tex. App. LEXIS 7191, 43 (Tex. App.—Austin
2005, no pet.) ............................................................................................................................ 10
Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) ............ 13
Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007) ...................................................... 11, 15
Mercedes-Benz Credit Corp v. Rhyne, 925 S.W.2d 664 (Tex. 1996)......................... 16
Osterberg v. Peca, 12 S.W.3d 31, 49 (Tex. 2000)............................................................ 19
Petroleum Analyzer Co. LP v. Olstowski, 2010 Tex. App. LEXIS 5581, 66 (Tex.
App.—Houston [1st Dist.] 2010, no pet.)........................................................................ 12
Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.—Houston
[1st Dist.] 1996, no writ) ....................................................................................................... 10
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) ........... 12
4
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) ............................................. 15
Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) ........................................................ 16
Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex.
App.—2010, pet. denied) ............................................................................................... 17, 18
Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300,
318-19 (Tex. App.—Texarkana 2006, pet. denied) ..................................................... 18
Texas Comptroller of Public Accounts v. Attorney General of Texas, 244 S.W.3d
629 (Tex. App—Austin 2008), aff’d in part, rev’d in part in other grounds, 354
S.W.3d 336 (Tex. 2010) ................................................................................................. 16, 17
Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.—Dallas 2005, no pet.) ...................... 10
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) ............................................... 11, 15
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) ........................ 11
Zapata County Appraisal Dist. v. Coastal Oil & Gas Corp., 90 S.W.3d 847 (Tex.
App.—San Antonio 2002, pet. denied) ............................................................................ 10
Statutes
CIV. PRAC. & REM. CODE § 37.008 ........................................................................................ 14
Civ. Prac. & Rem. Code § 18.001(b) .................................................................................... 12
TEX. ELEC. CODE §§ 253.131 – 253.133; §§ 254.231-32 ............................................... 19
TEX. ELEC. CODE §§ 253.131(e) and 254.231(d) .............................................................. 11
TEX. GOV’T CODE § 552.323(b) .............................................................................................. 14
5
STATEMENT OF THE CASE
Nature of Case: Chris Bell (“Bell” or “Appellant”), a Democratic
nominee for governor of Texas in 2006, brought suit
against the Republic Governors Association (“RGA” or
“Appellee”) alleging violations of the Texas Election
Code. This is the second appeal from that case. In the
first appeal, this Court correctly ruled that the RGA did
not violate the Texas Election Code, and as such reversed
a bench trial judgment in Bell’s favor. Republican
Governors Assoc. v. Bell, 412 S.W.3d 42 (Tex. App.—
Austin 2013, pet. denied). This Court also remanded the
case for the limited purpose of determining whether to
award attorney’s fees to the RGA. The trial court
ultimately did award attorney’s fees to RGA, and this
appeal followed.
Trial Court: The Honorable John Dietz of the 261st Judicial District
Court, Travis County, Texas.
Trial Court’s Actions: Upon remand, RGA filed its Motion for Attorney’s Fees
relying on previously submitted evidence in support of
fees pursuant to an agreement between the parties. Bell
did not object to or otherwise controvert the evidence.
The court then entered a Final Judgment awarding the
RGA $300,000.00 in attorney’s fees and conditional fees
upon appeal.1
Related Action: Prior appeal: Republican Governors Assoc. v. Bell, 412
S.W.3d 42 (Tex. App.—Austin 2013, pet. denied).
1
See Appellant’s Brief, Appendix A
6
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary. The only issue on appeal is a
straightforward one regarding the trial court’s award of attorney’s fees. Contrary
to Appellant’s position, there are no policy concerns at play, as this appeal requires
nothing more than the standard abuse of discretion review applying the plain
language of the statutes under which attorney’s fees were awarded. Accordingly,
oral argument is not necessary to assist the Court in determining the outcome of
this appeal.
7
STATEMENT OF THE FACTS
RGA does not generally disagree with Bell’s Statement of Facts subject to
the following exceptions. First, it is RGA’s position that this Court’s decision in
the First Appeal turned on a correct reading of the statutes at issue, as opposed to
Bell’s assertion that it turned on a “novel legal issue.” Additionally, clarification is
necessary as to the procedural history of the attorney’s fees evidence relied upon
by the trial court. During the first trial on this matter, the parties agreed that they
would submit evidence of their respective attorney’s fees post-trial, which they
did.2 Bell did not object to or controvert RGA’s evidence of fees. Upon remand
RGA filed its Motion for Attorney’s Fees relying on the previously submitted
evidence of its reasonable attorney’s fees3 pursuant to an agreement between the
parties.4 Once again, Bell did not object to or controvert the evidence.
2 First Appeal CR 574-78, 840-973 and 974-78; First Appeal RR 58-59.
3 CR 6 – 193.
4
CR 196 (Rule 11 Agreement providing that the Parties “stipulate and agree to the admissibility”
of the affidavit and exhibits submitted by RGA in support of Motion for Attorney’s Fees “both as
to the amount and reasonableness of past trial and appellate fees, and the amount and
reasonableness of future appellate fees.”).
8
SUMMARY OF THE RESPONSE
Bell incorrectly argues that the trial court’s award of attorney’s fees
constitutes an abuse of discretion under the relevant statutes because his original
claim was “colorable,”5 and as such the only just and equitable exercise of
discretion under the applicable guiding principles is that RGA should have not
been awarded any fees.6 However, the relevant statutes do not require the court to
make such determinations when exercising its discretion. To the contrary, the only
requirement of an attorney’s fee award under the statutes in question is that it be
reasonable. Bell did not object to or otherwise controvert RGA’s attorney’s fee
evidence as to the reasonableness of its fees, and as such it was within the trial
court’s discretion to award RGA its attorney’s fees as a matter of law.
Accordingly, there can be no abuse of discretion in making such award.
5
Appellant’s Brief p. 2.
6
Id. at p. 10.
9
ARGUMENT AND AUTHORITIES
I. Standard of Review7
An award of attorney’s fees must be reviewed under an abuse of discretion
standard. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); EMC
Mortgage Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.—Austin 2005, pet.
denied). A trial court abuses its discretion if its decision is arbitrary, unreasonable,
and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441,
446 (Tex. 1997). However, there is no abuse of discretion where an award of
attorney’s fees is supported by the evidence. See In the Interest of L.M.M., 2005
Tex. App. LEXIS 7191, 43 (Tex. App.—Austin 2005, no pet.) (mem. op.); Tull v.
Tull, 159 S.W.3d 758, 760 (Tex. App.—Dallas 2005, no pet.).
Further, when reviewing a trial court's decision under an abuse of discretion
standard, the court of appeals must view the evidence in the light most favorable to
the trial court's ruling and indulge every presumption in its favor. Aquaduct, L.L.C.
v. McElhenie, 116 S.W.3d 438, 444 (Tex. App.—Houston [14th Dist.] 2003, no
pet.); Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.—
Houston [1st Dist.] 1996, no writ). The judgment must be affirmed if it can be
7
Note that a line of cases exists which could be interpreted as requiring a mandatory award of
fees to RGA. See Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex.
App.—Austin 2006, no pet.); Zapata County Appraisal Dist. v. Coastal Oil & Gas Corp., 90
S.W.3d 847 (Tex. App.—San Antonio 2002, pet. denied). While RGA is not raising this issue
for the purposes of this appeal, nothing in this appeal should be taken as a concession by RGA
that those cases and their holdings do not apply to an award of fees under Texas Election Code
sections 253.131 and 254.231.
10
upheld on any legal theory that finds support in the evidence. Worford v. Stamper,
801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court abuses its discretion
when it acts without reference to any guiding rules or principles, not when it
simply exercises that discretion in a different manner than reviewing appellate
courts might. Low v. Henry, 221 S.W.3d 609, 620 (Tex. 2007). The Court may
not reconsider the facts and substitute its judgment for the judgment of the trial
court. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
II. Bell did not object to or otherwise controvert RGA’s evidence in
support of the reasonableness of its attorney’s fees. Accordingly, fees
may be awarded as a matter of law.
Texas Election Code sections 253.131 and 254.231 both read in relevant part
as follows: “Reasonable attorney’s fees incurred in the suit may be awarded to the
defendant if judgment is rendered in the defendant’s favor.”8 In this case judgment
was rendered in RGA’s favor.9 Thus, if the award of fees to RGA was reasonable
then there has been no abuse of discretion.
The reasonableness and necessity of an award of fees is a question of fact.
Bocquet, 972 S.W.2d at 21. However, although what constitutes reasonable
attorney's fees is a question of fact, clear, direct, and uncontroverted evidence,
even evidence from an interested witness, will establish that attorney's fees sought
are reasonable and necessary, particularly where the opposing party had means and
8
TEX. ELEC. CODE §§ 253.131(e) and 254.231(d).
9 CR 189.
11
opportunity to disprove the testimony but failed to do so. Ragsdale v. Progressive
Voters League, 801 S.W.2d 880, 882 (Tex. 1990); Tex. Civ. Prac. & Rem. Code
§18.001(b). In such instances, attorney’s fees may be awarded as a matter of law.
Ragsdale, 801 S.W.2d at 882.
The record is clear that the evidence submitted by Defendant as to the
reasonableness of its fees was clear, direct and uncontroverted and that Plaintiff did
not object to that evidence although he had the means and opportunity to do so.10
The reasonableness of the fees is therefore established.
In fact, under such circumstances it would have been an abuse of discretion
had the court failed to award any fees. See, e.g., Hoelscher v. Kilman, 2006 Tex.
App. LEXIS 1351, 18 (Tex. App.—Austin Feb. 16, 2006, no pet.) (mem. op.)
(finding the trial court abused its discretion by not awarding appellate attorney’s
fees under CPRC section 38.001, when defendant’s attorney’s testimony as to
reasonable appellate attorney’s fees was not controverted); Hunsucker v. Fustok,
238 S.W.3d 421, 432 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that
it is an abuse of discretion not to award fees when party submitted uncontroverted
affidavit establishing reasonableness of fees); Petroleum Analyzer Co. LP v.
Olstowski, 2010 Tex. App. LEXIS 5581, 66 (Tex. App.—Houston [1st Dist.] 2010,
10
See First Appeal CR 840-973 (Notice of Affidavit of Attorney’s Fees); CR 6 – 193 (RGA’s
Motion for Attorney’s Fees); CR 196 (Rule 11 Agreement regarding admissibility of fee
evidence); and CR 197-200 (Bell’s Response to RGA’s Motion for Attorney’s Fees)
12
no pet.) (mem. op.) (trial court had discretion to award less than requested, but to
have awarded nothing would have been abuse of discretion).
Accordingly, the trial court did not abuse its discretion in making an award
of fees to RGA.
III. Bell’s argument has no basis in common law or statute.
1. The Texas Election Code and Texas’ statutory interpretation law
does not support Bell’s argument.
Bell argues that the trial court’s decision to award fees to defendant was
unreasonable because his claim was “colorable” and the “guiding principles” of the
statute mandate that the only equitable and just outcome is no award of fees.11
However, as set forth above, the evidence submitted by RGA established the
reasonableness of the fees and supported an award of fees as a matter of law. What
Bell is really arguing is that additional language should be read into the statutes
concerning the discretion of a trial court to award fees. However, Texas law does
not support reading additional requirements into the statutory language.
It is well established under Texas law that courts must enforce a statute as
written and “refrain from rewriting text that lawmakers chose.” Jaster v. Comet II
Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting Entergy Gulf States, Inc.
v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). The court limits its analysis to the
11 Appellant’s Brief p. 2 and 10.
13
words of the statute and applies the plain meaning of those words “unless a
different meaning is apparent from the context or the plain meaning leads to absurd
or nonsensical results.” Id. (citing Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.
2011).
As set forth above, the only requirement imposed by the relevant statutes is
that any award be reasonable. The legislature clearly could have included
additional language in the statutes regarding how to assess fees had it so intended.
See, e.g., TEX. GOV’T CODE § 552.323(b) (providing that in exercising discretion to
award fees, the court shall “consider whether the conduct of the governmental
body had a reasonable basis in law and whether the litigation was brought in good
faith.”); CIV. PRAC. & REM. CODE § 37.008 (requiring that in addition to being
reasonable, attorney’s fees must be equitable and just). No such language exists
here. All that is required is that the award be reasonable.
Additionally, even if Bell is correct as to the factors the trial court should
have considered, which he is not, he points to nothing in the record supporting his
position that the Court did not consider the issues he raises.12 Where there are no
findings of fact or conclusions of law, the court of appeals must view the evidence
12
To the contrary, Bell raised these same arguments to the trial court, so it cannot be said that the
court was not aware of them when making its decision. See CR 197-200 and 217-19. It should
also be noted that the trial court in this matter actually reduced the amount of fees requested by
Defendant, which further suggests it did consider additional factors when making its
determination other than the reasonableness of the fees. See CR 9 (RGA’s request for an award
of $528,299.00) and 201-02 (Final Judgment awarding $300,000.00).
14
in the light most favorable to the trial court's ruling and indulge every presumption
in its favor. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per.
curiam). Accordingly, it must be presumed that the trial court considered the
appropriate factors in making its award, and just because Bell disagrees with the
outcome it does not establish that there was an abuse of discretion.
2. Appellant cites to no case law in support of his position
In support of his argument, Appellant cites to no case wherein a court was
found to have abused its discretion by awarding fees under a discretionary statute
when the evidence otherwise supported the award, nor is RGA aware of any such
case. This stands to reason, as it is well established under Texas law that a Court
of Appeals will not substitute its opinion for that of the trial court simply because it
disagrees with how the trial court exercised its discretion. See, e.g., Low v.
Henry, 221 S.W.3d 609, 620 (Tex. 2007); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992).
Finding no case law supporting his position, Appellant instead cites to a
variety of cases concerning alleged abuses of discretion in other contexts, none of
which are analogous and all of which are easily differentiated from the case at
hand.
15
In Mercedes-Benz Credit Corp v. Rhyne,13 it was held that the trial court
abused its discretion in denying the appellant a jury trial despite a previous order
from the court providing for expressly that. 925 S.W.2d 664 (Tex. 1996). In
Samlowski v. Wooten,14 it was held that the trial court abused its discretion in not
granting the appellant an extension to see if she could cure a defect in a required
expert report, as such denial effectively precluded plaintiff from having an
opportunity to present the merits of her case. 332 S.W.3d 404 (Tex. 2011). In In
re Pirelli Tire,15 it was held that the trial court abused its discretion in not
dismissing a case on forum-non-conveniens grounds when it was clear that Mexico
was the proper location for the case. 247 S.W.3d 670 (Tex. 2007). None of these
cases are even remotely related to the case at hand or dispositive of the issue
presented by this appeal.
The only case cited by Appellant in support of his arguments concerning an
award of fees is also easily differentiated. See Texas Comptroller of Public
Accounts v. Attorney General of Texas, 244 S.W.3d 629 (Tex. App—Austin 2008),
aff’d in part, rev’d in part in other grounds, 354 S.W.3d 336 (Tex. 2010).16 In that
case, a trial court did not award fees to a prevailing defendant because it found that
there was no evidence that the case was not brought in good faith, a factor which it
13
Appellant’s Brief p. 4.
14
Id.
15
Id.
16
Id. at pp. 9-10.
16
was expressly required to consider by statute.17 The trial court likewise exercised
its discretion not to award fees under the UDJA on the same basis. The crucial
difference between that case and this appeal is that in Texas Comptroller the statute
expressly set forth that the court must consider whether the case was brought in
good faith. No such language exists in the statutes under which the trial court
awarded RGA is fees, and even if it did it would not warrant a different outcome.
Accordingly, Bell’s appeal should be dismissed.
3. Case law supports the award fees to RGA.
The two cases which RGA has found that come closest to encompassing
Bell’s argument were, not surprisingly, not cited to in Appellant’s Brief. In Save
Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex.
App.—Austin 2010, pet. denied), the appellant argued that an award of fees to the
prevailing defendant under the UDJA was not equitable and just because it was a
"nonprofit organization dedicated to the public good." Id. at 893. Additional
arguments were made by amicus curae that an award of fees in the case would
have a chilling effect on citizen suits (an argument parroted by Bell in this case). .
Id. . This Court, in affirming an award of fees to the defendant, ruled that:
“[w]e do not consider this, standing alone, to make the award of
attorneys’ fees to Mark Foster inequitable or unjust. It may very well
17
TEX. GOV’T. CODE §552.323(b) (“In exercising its discretion under this subsection, the court
shall consider whether the conduct of the governmental body had a reasonable basis in law and
whether the litigation was brought in good faith.”).
17
have been equitable and just for the district court not to have awarded
fees or to award some other amount, but that does not make this
award inequitable or unjust.”
Id.
In another case involving the same plaintiff but a different Court of Appeals,
the court reached the same decision. See Save Our Springs Alliance, Inc. v. Lazy
Nine Mun. Util. Dist., 198 S.W.3d 300, 318-19 (Tex. App.—Texarkana 2006, pet.
denied) (holding that trial court did not abuse its discretion in award attorneys'
fees to defendant in UDJA action, even though SOS Alliance was "a local
nonprofit organization," because "reasonable minds can differ concerning whether
the attorney's fees are just and equitable").
These cases both illustrate that even when the statutory language provides
that an award be equitable and just, it is not an abuse of discretion to award fees to
a defendant, regardless of whether the plaintiff is fighting for the alleged public
good.18
4. The award of fees to RGA does not violate public interest.
A large portion of Appellant’s Brief is focused on unsubstantiated arguments
that the award of fees to RGA somehow violates the intended purposes of the
Texas Election Code and does not favor the public interest over private interest.
As an initial point, these arguments are nothing more than a red herring to distract
18
It should be noted that Bell is not a non-profit dedicated to the public good, but is instead a
failed gubernatorial candidate who brought suit after he lost the election.
18
from the actual language of the statutes in question, and as such do not merit a
lengthy response or analysis. However, a couple points do warrant mentioning.
Bell argues that the public interest underpinning the Election Code is an
interest encouraging actions by private citizens who believe there have been a
violation of the campaign finance laws.19 That is not correct. The public interest is
preventing campaign finance corruption and “[p]reventing evasion of…important
campaign finance provisions.” Osterberg v. Peca, 12 S.W.3d 31, 49 (Tex. 2000).20
An award of fees does not violate this public interest, because there was no
violation of the Election Code by RGA.
As a final note, the award of fees in this case will not serve to discourage
suits under the Election Code nor will it embolden potential violators to disregard
campaign finance laws and Bell points to no evidence establishing such. At most
the award makes clear that a potential plaintiff should carefully consider the merits
of his case before filing suit and causing an innocent defendant to incur years of
legal fees defending itself against baseless claims.
19
Appellant’s Brief p. 6.
20
The Election Code does this by providing for statutory damages against a party found to have
committed a violation. See TEX. ELEC. CODE §§ 253.131 – 253.133; §§ 254.231-32.
19
CONCLUSION
As established herein, the statutes under which the RGA was awarded its
fees require only that the award be reasonable. The evidence submitted by RGA in
support of its fees was clear, direct and uncontroverted and Bell did not object to
that evidence although he had the means and opportunity to do so. Accordingly,
the trial court was entitled to award RGA its attorney’s fees as a matter of law, and
it would only have been an abuse of discretion had the trial court failed to make an
award. Further, Bell cites to no case law in support of their position or language in
the relevant statues requiring the court to not award fees if Bell’s claim is colorable
or otherwise brought in good faith. Accordingly, this appeal should be denied in
its entirety.
Respectfully submitted,
HANCE SCARBOROUGH, LLP
400 W. 15th Street, Ste. 950
Austin, Texas 78701
Telephone: (512) 479-8888
Facsimile: (512) 482-6891
By: /s/ Terry L. Scarborough
Terry L. Scarborough
State Bar No. 17716000
tscarborough@hslawmail.com
V. Blayre Pena
State Bar No. 24050372
bpena@hslawmail.com
20
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 2609 words. This is a computer generated document created in
Microsoft Word, using 14 point typeface for all text, except for footnotes, which
are in 12-point typeface. In making this certificate of compliance, I am relying on
the word count provided by the software used to prepare the document.
/s/ Terry L. Scarborough
Terry L. Scarborough
21
CERTIFICATE OF SERVICE
I hereby certify that a copy of Appeellee’s Brief was served on the
following counsel of record on May 11, 2015, via certified mail, return receipt
requested, and/or the electronic filing system:
Trial Counsel
Randall B. Wood
Doug W. Ray
Ray & Wood
700 Bee Cave Rd. #200
Austin, Texas 78746
Phone: (512) 328-8877
Facsimile: (512) 328-1156
Counsel on Appeal
Elizabeth G. Bloch
Thomas H. Watkins
Husch Blackwell LLP
111 Congress Ave., Ste. 1400
Austin, Texas 78701
Phone: (512) 472-5456
Facsimile: (512) 479-1101
/s/ Terry L. Scarborough
Terry L. Scarborough
22