Marla Cuellar v. Omar Maldonado ( 2015 )

ACCEPTED
13-14-00491-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/15/2015 7:31:37 AM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-491-CV
In The RECEIVED IN
13th COURT OF APPEALS
Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS
2/15/2015 7:31:37 AM
For the
DORIAN E. RAMIREZ
Thirteenth Appellate District Clerk
Corpus Christi/Edinburg, Texas
MARLA CUELLAR FILED
IN THE 13TH COURT OF APPEALS APPELLANT
CORPUS CHRISTI
V. 02/17/15
DORIAN E. RAMIREZ, CLERK
BY CCoronado
OMAR MALDONADO APPELLEE
RECEIVED
BRIEF OF APPELLEE RECEIVED
2/17/15
13th COURT OF APPEALS
E. OMAR MALDONADO 2/17/15
13th COURT OF APPEALS
Daniel M.L. Hernandez KEITH C. LIVESAY
HERNANDEZ LAW FIRM, P.C. LIVESAY LAW OFFICE
308 E. Villa Maria Rd. BRAZOS SUITES NO. 9
Bryan, Texas 77801 517 W. Nolana Ave.
Telephone: 1.979.822.6100 McAllen, Texas 78504
Facsimile: 1.979.822.6001 (956) 928-0149
Hitesh K. Chugani George D. Durham III
H.K.C. LAW GSK LAW
517 West Nolana #7 517 West Nolana, #6
McAllen, Texas 78501 McAllen, Texas 78504
Tel: (956) 212-1601 Tel: (956) 900-4187
Fax: (956) 524-5153
February 16, 2015
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
STATEMENT OF NATURE OF CASE 2
ISSUES PRESENTED 2
STATEMENT OF FACTS 4
SUMMARY OF ARGUMENT 10
ARGUMENT 11
[A] Presiding Judge Properly Ignored
Objection to Appointed Judge 11
[B] Mere Disagreement With Trial Court Insufficient
for Reversal 17
[C] Contestant Failed to Present Evidence
of Her Good Faith 21
[D] Contestee Not Required to Present Time Figure
for Each Activity 33
CONCLUSION AND PRAYER 42
CERTIFICATE OF COMPLIANCE 43
CERTIFICATE OF SERVICE 44
ii
TABLE OF AUTHORITIES
CASES
Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d
732, 742 (Tex. App.--Houston [14th Dist.] 2000, no pet.) 38
Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex.
App.--Corpus Christi 2000, no pet.) 20
Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653
(Tex. App.--Beaumont 1990, no writ) 18
Amoco Production Co. v. Smith, 946 S.W.2d 162, 165 (Tex.
App.--El Paso 1997, no writ) 38
Amadi v. City of Houston, 369 S.W.3d 254, 256 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) 14
Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d
812, 818 (Tex. 1997) 37
Bates v. Randall County, 297 S.W.3d 828, 838 n. 10 (Tex.
App.--Amarillo 2009, pet. denied) 40
Beasley v. Peters, 870 S.W.2d 191, 196 (Tex. App.—Amarillo
1994, no writ) 32
Booth v. Malkan, 858 S.W.2d 641, 643-44 (Tex. App.--Fort Worth
1993, writ denied) 22
Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.--Houston [1st Dist.]
1994, writ denied) 21
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp.,
113 S.W.3d 889, 898 (Tex. App.--Dallas 2003, no pet.) 41
iii
Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--Corpus Christi
1996, writ denied) 20
City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2013) 41
City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex. App.—
Corpus Christi 1998, writ denied) 20
City of San Antonio ex rel. City Public Service Board v.
Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 923
(Tex. App.--Austin 2009, pet. dism’d) 12
Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 381 (Tex.
App.--Houston [14th Dist.] 2012, pet. denied) 35
Cuellar v. Maldonado, 2014 WL 2158135 (Tex. App.—Corpus
Christi 2014, no pet.) 4
de Laurentis v. United Services Auto. Ass'n, 162 S.W.3d 714, 722
n. 6 (Tex. App.--Houston [14th Dist.] 2005, pet. denied) 29
Delcor USA, Inc. v. Texas Indus. Specialties, Inc., 2011 WL 6224466at 5 (Tex. App.--Houston [14th Dist.] 2011, no pet.) 41
Delgado v. Methodist Hospital, 936 S.W.2d 479, 487-88 (Tex.
App.--Houston [14th Dist.] 1996, no writ) 23
E.C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex.
App.--Corpus Christi 2000, no pet.) 19
E.I. Du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995) 18
El Apple I v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012) 41
Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343,
354 (Tex. App.--Corpus Christi 1997), writ denied per
iv
curiam, 989 S.W.2d 360 (Tex. 1998) 18
Flores v. Banner, 932 S.W.2d 500 (Tex. 1996) 15
Flores v. Velasco, 68 S.W.3d 86 (Tex. App.–-Dallas 2001, no pet.) 16
Fonseca v. County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ.
App.--Corpus Christi 1975, writ ref'd n.r.e.) 20
Garcia-Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.—Dallas
2004, no pet.) 13
Garrod Investments, Inc. v. Schlegel, 139 S.W.3d 759, 768 (Tex.
App.--Corpus Christi 2004, no pet.) 38
Garza v. Dare, 475 S.W.2d 340, 342 (Tex. Civ. App.—Corpus
Christi 1971, no writ) 5
Gonzalez v. Ables, 945 S.W.2d 253 (Tex. App.--San Antonio
1997, no writ) 16
Gonzalez v. Nielson, 770 S.W.2d 99, 102-03 (Tex. App.—Corpus
Christi 1989, writ denied) 38
Goss v. State, 944 S.W.2d 748, 750 (Tex. App.--Corpus Christi
1997, no p.d.r.) 29
Griego v. State, 853 S.W.2d 664, 666 (Tex. App.--Houston [1st
Dist.] 1993, no p.d.r.) 14
Gutierrez v. Elizondo, 139 S.W.3d 768, 775 (Tex. App.—Corpus
Christi 2004, no pet.) 28
Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 n. 1 (Tex.
App.--Corpus Christi 2001, no pet.) 29
Hays & Martin, L.L.P. v. Ubinas-Brache, 192 S.W.3d 631, 636 (Tex.
v
App.--Dallas 2006, pet. denied) 40
Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697, 701
(Tex. App.--Corpus Christi 2000, no pet.) 19
Home Owners Funding Corp. of America v. Scheppler,
815 S.W.2d 884, 889 (Tex. App.--Corpus Christi 1991,
no writ) 18
In re A.S.G., 345 S.W.3d 443, 451(Tex. App.--San Antonio 2011,
no pet.) 40
In re Braden, 960 S.W.2d 834, 836 (Tex. App.--El Paso 1997,
no pet.) 35
In re Estate of Johnson, 340 S.W.3d 769, 789 (Tex. App.—San
Antonio 2011, pet. denied) 37
In re Estate of Washington, 262 S.W.3d 903, 906 (Tex. App.—
Texarkana 2008, no pet.) 29
In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.—Corpus
Christi 2003, mand. denied) 18
In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.--Corpus Christi
2005, no pet.) 19
In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.--Dallas 2007, no
pet.) 38
Keaton v. Ybarra, 552 S.W.2d 612, 616 (Tex. Civ. App.—Corpus
Christi 1977, writ ref'd n.r.e.) 32
Keith v. Keith, 221 S.W.3d 156, 166-67 (Tex. App.--Houston [1st
Dist.] 2006, no pet.) 22
King v. First Nat. Bank of Baird, 161 S.W.3d 661, 663 (Tex.
vi
App.–Eastland 2005, no pet.) 23
K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 607 (Tex. App.—
Houston [14th Dist.] 2012, pet denied) 22
La Ventana Ranch Owners' Ass'n, Inc. v. Davis, 363 S.W.3d
632, 651 (Tex. App.--Austin 2011, pet. denied) 41
Law Offices of Robert D. Wilson v. Texas Univest-Frisco, Ltd.,
291 S.W.3d 110, 113 (Tex. App.--Dallas 2009, no pet.) 22
Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.--Corpus Christi
2003, pet. denied) 30
Loeffler v. Lytle Independent School Dist., 211 S.W.3d 331, 349
(Tex. App.--San Antonio 2006, pet. denied) 22
Metzger v. Sebek, 892 S.W.2d 20, 53 n. 31 (Tex. App.–Houston
[1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868,
116 S.Ct. 186, 133 L.Ed.2d 124 (1995) 33
Miller v. Armogida, 877 S.W.2d 361, 365 (Tex. App.--Houston [1st
Dist.] 1994, writ denied) 35
Mission Consol. Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635
(Tex. 2012) 32
Monroe v. Grider, 884 S.W.2d 811, 817 (Tex. App.—Dallas 1994,
writ denied) 23
Moore v. Edna Hospital Dist., 449 S.W.2d 508, 520 (Tex. Civ.
App.--Corpus Christi 1969, no writ) 5
New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins.
Co., 856 S.W.2d 194, 205 (Tex. App.--Dallas 1993, no writ) 29
Ogunboyejo v. Prudential Property and Cas. Co., 844 S.W.2d
vii860, 863 (Tex. App.—Texarkana 1992, writ denied) 34
O'Carolan v. Hopper, 414 S.W.3d 288, 299 (Tex. App.--Austin
2013, no pet.) 14
Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 289 (Tex. App.—
Dallas 2012, no pet.) 30
Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963) 12
Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d
537, 576 (Tex. App.--San Antonio 2011, no pet.) 35
Reading & Bates Const. Co. v. O'Donnell, 627 S.W.2d 239, 244
(Tex. App.--Corpus Christi 1982, writ ref’d n.r.e.) 19
Regalado v. Munoz, 2014 WL 3542056 (Tex. App.--Corpus Christi
2014, no pet.) 5
Robson v. Gilbreath, 267 S.W.3d 401, 405-06 (Tex. App.—Austin
2008, pet. denied) 22
Sabine Offshore Service, Inc. v. City of Port Arthur, 595 S.W.2d
840, 841 (Tex. 1979) 29
Scheel v. Alfaro, 406 S.W.3d 216, 227 (Tex. App.--San Antonio
2013, pet. denied) 30
Scott Bader, Inc. v. Sandstone Products, Inc., 248 S.W.3d 802,
816 (Tex. App.--Houston [1st Dist.] 2008, no pet.) 35
Sellers v. Gomez, 281 S.W.3d 108, 116 (Tex. App.--El Paso 2008,
pet. denied) 34
Springer v. Johnson, 280 S.W.3d 322, 329 (Tex. App.--Amarillo
2008, no pet.). 14
viii
Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) 12
Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.—Waco
2009, p.d.r. ref'd) 17
Tesoro v. Alvarez, 281 S.W.3d 654, 660 n. 3 (Tex. App.—Corpus
Christi 2009, no pet.) 30
Tita v. State, 267 S.W.3d 33, 38 n. 7 (Tex. Cr. App. 2008) 13
United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir.
2005) 31
Vazaldua v. Munoz, 2014 WL 2937014 (Tex. App.--Corpus Christi
2014, no pet.) 5
View Point Bank v. Allied Property and Cas. Ins. Co., 439 S.W.3d
626, 636 (Tex. App.--Dallas 2014, pet. filed) 37
Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex. App.--
Corpus Christi 1999, writ denied) 18
Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1150 (1939) 14
Zeifman v. Nowlin, 322 S.W.3d 804, 809-10 (Tex. App.—Austin
2010, no pet.) 22
STATUTES
Tex. Elec. Code §231.004 11
Tex. Elec. Code §232.010 15
Tex. Gov't Code §74.056(a) 13
Tex. Gov't Code §74.053 11
ix
WAIVER OF ORAL ARGUMENT
Exactly like the table of authorities, "[O]ral arguments are as
useless." Wice, An Invitation to Persuade? We Decline, 15 TEX. LAW. 32
(1999). It adds little to the ultimate result of a contested case.
Aldisert, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT 294 (NITA
rev. ed. 1996). This Court has already reached this conclusion and
has denied oral argument. Appellee wholeheartedly agrees with
this Court's assessment.
x
CAUSE NO. 13-14-491-CV
In The
Court of Appeals
For the
Thirteenth Appellate District
Corpus Christi/Edinburg, Texas
MARLA CUELLAR
APPELLANT
V.
E. OMAR MALDONADO
APPELLEE
BRIEF OF APPELLEE
E. OMAR MALDONADO
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES E. OMAR MALDONADO, Appellee in the above
styled and numbered cause, and files this his BRIEF OF APPELLEE,
demonstrating that the regional presiding judge properly denied
Appellant’s objection to reassignment of the retired trial judge who
was already familiar with the matter, and that sanctions are clearly
appropriate when the losing candidate repeatedly admits she does
not possess evidence to support her allegations.
xi
STATMENT OF NATURE OF CASE
The loser of a judicial primary race files an election contest,
parroting the allegations contained in the Election Code for
obtaining new election. But such petition ignored one problem:
such allegations were premised on a wing and a prayer, instead of
actual evidence of an improper tally. The election winner was
required to expend $60,000 attempting to vindicate the results and
clean the stain on the election and his judicial position. The trial
court, the 206th District Court of Hidalgo County, Texas, Hon. J.
Manuel Banales, visiting judge presiding, finds such election contest
completely without merit, and accordingly sanctions the losing
candidate and her attorneys for the cost of the defense. And from
such sanctions, the losing candidate appeals.
ISSUES PRESENTED
Does the Election Code provide a party to an election contest
an absolute right to object to the appointed judge?
Do specific statutes control over general statutes?
Would permitting a party to an election contest an absolute
xii
right to object to the appointed judge run contrary to the Legis-
lature's express policy of expedited resolution of election contests?
Must a litigant possess evidence of an improper vote tally
before she files an election contest?
Does a litigant engage in sanctionable conduct when she files
an election contest without any evidence to support her allegations
that the election tally does not represent the true intention of the
voters?
Must testimony in a deposition be actually presented to the trial
court, before it can be considered as substantive evidence, either at
trial or on appeal?
In adjudicating an appeal, can this Court consider evidence
which was never expressly presented to the trial court?
Does the adage that a prosecutor could convince a grand jury
to indict a ham sandwich ring true in the Rio Grande Valley?
Are the underlying merits of a claim adjudicated in a plea to
the jurisdiction?
Is a sanction excessive when the amount awarded constitutes
the costs for defending frivolous litigation?
xiii
Must the attorney's fees awarded as sanction be premised on
evidence of their reasonableness and necessity?
Must a litigant seeking to recover attorney's fee prove how
each second of time was spent?
STATEMENT OF FACTS
The case at bar presents the sequel to Cause No. 13-14-228-CV,
Cuellar v. Maldonado, 2014 WL 2158135 (Tex. App.--Corpus Christi
2014, no pet.), Cl.R. 17-27. This Court in the prior appeal completely
ignored the entire lack of evidence to support the claims of an
improper election result (which thus rendered the initial dismissal for
lack of jurisdiction harmless). Now this Court must address such
complete lack of evidence, but in the context of sanctions
awarded.
Marla Cuellar, Appellant herein, and E. Omar Maldonado,
Appellee herein, were both vying to be the democratic party
candidate for the County Court at Law No. 8 of Hidalgo County.
After a hard fought campaign, the voters decided: the majority of
Democrats wanted Appellee to be their next County Court at Law
No. 8 judge. Mr. Maldonado received 51.82% of the vote, thereby
xiv
avoiding a run off. 5 C.R. 23.
Numerous candidates could not believe the election results.
given the disparities of the final tally and their polling data. But the
only piece of concrete evidence impugning the result was the
malfunctioning of a single voting machine in the District Attorney's
race. Nevertheless, numerous election contests, objecting to the
Democratic Party primary were subsequently filed.1 As part of this
group, Appellant (hereinafter referred to as “Contestant”) filed an
election contest in her race. Because of her allegations failed to
sufficiently invoke the jurisdiction of the trial court in the context of an
election contest, Garza v. Dare, 475 S.W.2d 340, 342 (Tex. Civ. App.--
Corpus Christi 1971, no writ); Moore v. Edna Hospital Dist., 449 S.W.2d
508, 520 (Tex. Civ. App.--Corpus Christi 1969, no writ), Appellee
(hereinafter referred to as "Contestee") filed a plea to the jurisdiction.
While the trial court granted the plea, this Court reversed. Cl.R. 17-
27.2
1See, e.g., Regalado v. Munoz, 2014 WL 3542056 (Tex. App.--Corpus Christi 2014,
no pet.); Vazaldua v. Munoz, 2014 WL 2937014 (Tex. App.--Corpus Christi 2014, no
pet.); Cuellar v. Maldonado, supra.
2This Court's opinion completely failed to cite (much less discuss) the legal
authorities which supported the trial court's decision.
xv
Pursuant to the election code, an out of county visiting judge
must be appointed to adjudicate an election contest. Tex. Elec.
Code §231.004. Pursuant to this statutory requirement, after remand,
the presiding administrative judge reappointed a retired judge to this
matter, Hon. J. Manuel Banales, the same judge who had previously
granted the plea to the jurisdiction. Cl.R. 45. In an effort to further
delay the proceedings, Contestant objected to Judge Banales,
demanding the appointment of another visiting judge. Cl.R. 46-48.
The presiding administrative judge, sua sponte,3 denied Contestant’s
request, based upon his interpretation of the applicable statutes.
Cl.R. 49-50.
Judge Banales subsequently set Contestant’s election contest
for trial. Because no evidence supported Contestant's allegations,
Contestee filed a motion for sanctions, seeking relief under Tex. Civ.
Prac. & Rem. Code ch. 9, Tex. Civ. Prac. & Rem. Code ch. 10, and
Tex. R. Civ. P. 13. Cl.R.93-98.4 To insure that Contestant appeared at
3Contestee did not enter this fray; his main interest was obtaining an expedited
resolution of Contestant's claims, whether it be before Judge Banales or before
another visiting judge.
4Contestant failed to assert special exceptions to the motion, or otherwise
complain of the motion's insufficiency.
xvi
trial, she was served with a trial subpoena. Cl.R. 57, 60-61.5
Ignoring the subpoena, Contestant failed to appear at the
scheduled trial, and was instead vacationing in Alaska.6 3 C.R. 12; 4
C.R. 17; Cl.R. 52. Because her counsel informed her of the trial date,
3 C.R. 13, either Contestant did not care about her election contest,
or she was attempting to further delay the proceedings. Contestee
objected. Cl.R. 83-92. But such misconduct succeeded: Judge
Banales reset the trial of her election contest. 3 C.R. 33; 4 C.R. 16.7
The new trial date approached, and finally Contestant realized
that she could not prevail on her claims. Consequently, she non
suited her contest. 5 C.R. 5. Contestee demanded that her claims
be dismissed with prejudice, which the trial court granted. Cl.R. 136.
Accordingly, Contestee proceeded with his motion for sanctions. 5
C.R. 7.
To support such motion, Contestee presented damning
testimony from Contestant's own lips: she was asked what evidence
5Contestant was not happy about this. Cl.R. 92.
6Given the pennies public servants are paid, and the impecunious legal market,
the closest Contestee and his attorneys will ever get to Alaska is by watching the
Travel Channel.
7Contestee also filed a motion for contempt for such a blatant abuse of the
process. Cl.R. 130-33.
xvii
supported various allegations contained in her petition, and she
repeatedly responded, "I don't have any". 5 C.R. 25-34. The
impropriety of such conduct was confirmed by Contestee's attorney,
who also testified that, based on the evidence developed, the
contest was frivolous, 5 C.R. 44, and that $60,000 was expended in
defending Contestee against Contestant's spurious allegations. 5
C.R. 43-44. Contestant's response at the hearing: dead silence; she
completely failed to present any evidence to contradict her
repeated admissions of "no evidence" made during her deposition.8
5 C.R. 35.
After considering such evidence, Judge Banales made the
following findings:
The Court finds that Contestant alleged in her petition
that based on irregularities‒tampering with electronic
voting and equipment and the resulting misdirecting of
votes‒ that were reported in the race for District Attorney
in the same primary election as hers, the final tabulation in
her race for Judge of County Court at Law No. 8 may
have been affected by the same irregularities. It was
necessary, she alleged, that the voting machines be
examined to determine whether any tampering had
occurred or any votes misdirected in her race. She appears
to be saying that, because of the alleged irregularity that
8Asexplain in more detail, infra, Contestee does not believe the other portions of
Contestant's deposition testimony, which allegedly justified her conduct, were
properly before the trial court.
xviii
occurred in another race, it must have occurred in her
race as well. The Court finds that this pleading is
groundless and frivolous without any allegation of facts to
support it and that it was made in bad faith.
The Court further finds that, during her deposition
testimony presented as evidence, Contestant admitted that
she had no evidence to support her allegations, that she
had no facts to support a charge of tampering of the voting
machines, that no voter had complained of any irregularity
in her race similar to what was reported in the District
Attorney’s race, that she had no evidence that any of votes
had been diverted to Contestee, and that she had no
evidence of election fraud committed by anyone. The
Court also finds that Contestant had no evidence that
Contestee may have tampered with the election machines
or the vote or the outcome of the election. Even so, she
filed her election contest without knowledge of any facts to
support it. The [Court] finds that this pleading is
groundless and frivolous without any allegation of facts to
support it and was made in bad faith.
A sanction may be imposed against a party, her counsel or
both. Counsel has a duty to make a good faith preliminary
inquiry to determine whether facts exist to support a claim
by a potential plaintiff and to plead sufficient facts to show
that the claim has merit. Mere speculation or surmise is
not enough. A careful reading of the petition shows that
counsel did not plead facts to show that Contestant is
entitled to relief. It is proper in this case to impose
sanctions against both Contestant and her counsel.
Cl.R. 170 (emphasis added).9 As a result, both Contestant and her
attorneys were sanctioned $60,000, jointly and severally. Cl.R. 172.
Naturally disliking this result, Contestant appealed this judgment.
9Suchfindings clearly satisfy Tex. R. Civ. P. 13's requirement of specificity, and
Contestant fails to complain of lack of specificity herein.
xix
Cl.R. 173-74.
SUMMARY OF ARGUMENT
Generally, a litigant possesses the right to object to an
appointed judge. However, such right is limited to appointments
made pursuant to the Government Code. In the case at bar, Judge
Banales' appointment was made pursuant to the Election Code. No
right exists to automatic disqualification exists under the Election
Code.
Every litigant (including candidates who file election contests)
are required to investigate their claims prior to filing their petition. In
the case at bar, the trial court heard uncontradicted evidence that
Contestant did not possess any evidence to support the allegations
contained in her contest, and did not possess any evidence on the
day the contest was filed. As a result, the trial court was well within
its discretion in sanctioning Contestant.
The amount of sanctions awarded lies within the discretion of
the trial court, and thus the abused litigant is not required to prove
either the reasonableness or necessity of his attorney's fees.
Accordingly, whether Contestee provided time figures for each
xx
second spent in defense of this lawsuit is completely irrelevant, and
does not impugn the trial court's award. Furthermore, a sanction
cannot be considered excessive when it constitutes the costs of
defense.
ARGUMENT
[A] Presiding Judge Properly Ignored Objection to Appointed Judge
The Election Code provides as follows:
(a) The judge of a judicial district that includes
any territory covered by a contested election
that is less than statewide is disqualified to
preside in the contest.
(b) If a contest is filed in which a judge is
disqualified under Subsection (a), the district
clerk shall promptly call the filing to the
attention of the judge. The judge shall promptly
request the presiding judge of the admini-
strative judicial region to assign a special judge
to preside in the contest.
Tex. Elec. Code §231.004. However, the Government provides as
follows:
(a) When a judge is assigned to a trial court
under this chapter:
(b) If a party to a civil case files a timely
objection to the assignment, the judge shall not
hear the case. . . .
xxi
(c) An objection under this section must be
filed not later than the seventh day after the
date the party receives actual notice of the
assignment or before the date the first hearing
or trial, including pretrial hearings, commences,
whichever date occurs earlier. . . .
(d) An assigned judge or justice who was
defeated in the last primary or general election
for which the judge or justice was a candidate
for the judicial office held by the judge or
justice may not sit in a case if either party
objects to the judge or justice.
Tex. Gov't Code §74.053 (emphasis added). Based on the wording
of such statutes, the presiding judge refused to disqualify Judge
Banales based on Contestant's objection; his appointment was
pursuant to the Election Code (which does not provide for
objections to assignments) and not the Government Code (which
does). Cl.R. 49-50. In light of the subsequent sanctions, Contestant
naturally complains of the presiding judge's action. However, the
presiding judge herein correctly applied the applicable statutes.
“[I]t is settled that every word in a statute is presumed to have
been used for a purpose; and a cardinal rule of statutory
construction is that each sentence, clause and word is to be given
xxii
effect if reasonable and possible.” Perkins v. State, 367 S.W.2d 140,
146 (Tex. 1963). Thus, statutes must be enforced as written, City of
San Antonio ex rel. City Public Service Board v. Bastrop Cent.
Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin 2009, pet.
dism’d), despite any imperfections contained therein. Stockton v.
Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).
A litigant’s right to an automatic objection applies to visiting
judges appointed pursuant to the Government Code; the statute
providing such rights expressly states that it exists for judges
appointed under "this subchapter". Tex. Gov’t Code §74.053. The
Government Code's provisions of "This subchapter" authorizes the
presiding judge to appoint judges " to hold special or regular terms of
court in any county of the administrative region to try cases and
dispose of accumulated business." Tex. Gov't Code §74.056(a). But
given the nature of Contestant's allegations, Judge Banales'
appointment was pursuant to (and limited by) the Election Code,10
and not the Government Code. Cl.R. 49-50; Tex. Elec. Code
10Contestant's claim that Judge Banales' appointment was the functional
equivalent to an appointment under Chapter 74 of the Government Code,
Appellant's Brief, p. 11, is false. The Election Code specifically limits whom may
be appointed to preside over an election contest.
xxiii
§231.004. Thus, pursuant to the plain terms of the statute, Contestant
did not possess the statutory right to object to Judge Banales.
Such construction is consistent with other maxims of statutory
construction. "A fundamental rule of statutory construction is that a
more specific statute controls over a more general one." Garcia-
Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.--Dallas 2004, no pet.);
accord, Tita v. State, 267 S.W.3d 33, 38 n. 7 (Tex. Cr. App. 2008). Thus,
when the law makes a general provision, apparently for all classes,
and a special provision for a particular class, the general must yield
to the special, insofar as the particular class is concerned. Springer
v. Johnson, 280 S.W.3d 322, 329 (Tex. App.--Amarillo 2008, no pet.).
In the case at bar, the Government Code provides the general
provision, to be applied in most cases. Tex. Gov’t Code §74.053.
However, the Election Code provides a specific provision for
mandatory recusal, and restricting the class of persons who may be
appointed as visiting judge. Tex. Elec. Code §231.004. Such
provisions are limited to a particular class of lawsuits, i.e. election
contests. Thus, the Election Code (and its lack of a provision for
objection) controls. Springer v. Johnson, supra.
xxiv
Finally, Contestee would point out that “A statute should not be
construed in a spirit of detachment as if it were a protoplasm floating
around in space.” Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138,
1150 (1939). Thus, in construing statutes, courts should consider the
consequences of a particular interpretation. O'Carolan v. Hopper,
414 S.W.3d 288, 299 (Tex. App.--Austin 2013, no pet.); Amadi v. City of
Houston, 369 S.W.3d 254, 256 (Tex. App.--Houston [14th Dist.] 2011,
pet. denied). This remains true, even if the statute is unambiguous.
Springer v. Johnson, supra; Griego v. State, 853 S.W.2d 664, 666 (Tex.
App.--Houston [1st Dist.] 1993, no p.d.r.).
The Legislature has mandated that election contests proceed
on the "rocket docket", with an answer filed within five days, Tex.
Elec. Code §232.010, trial within ten (10) days, Tex. Elec. Code
§232.012(d), and only one continuance permitted. Tex. Elec. Code
§232.012(e). Permitting objections to assigned judges can only
interfere with the Legislature's mandate of expedited resolution of
election contests. Theoretically, if the presiding administrative judge
kept appointing retired judges (who may be the only ones willing to
accept such politically radioactive appointments), trial on the merits
xxv
could be postponed indefinitely. But even if retired judges were not
appointed, permitting objections inevitably delay the proceedings,
allowing the parties a week to file an objection, and then forcing the
administrative judge to find and appoint another judge. Such delay
is directly contrary to the Legislature's intent.
The cases relied upon by Contestant do not address the
interplay between Tex. Elec. Code Tex. Elec. Code §231.004 and Tex.
Gov’t Code §74.053.11 For example, in Flores v. Banner, 932 S.W.2d
500 (Tex. 1996), one of the litigants repudiated the settlement, and
accordingly, filed a motion to recuse the judge. A judge was
appointed to hear the recusal motion, and the litigant filed a
blanket objection to any retired judge. The Supreme Court held that
this blanket objection was sufficient. Id at 501-02. However, such
appointment was made pursuant to the Government Code, id at
501; the Election Code does not contain any provisions for the
appointment of judges when a motion to recuse is filed.
The case of Flores v. Velasco, 68 S.W.3d 86 (Tex. App.–-Dallas
11Indeed, for two of the cases, although arising out of an election contest, the
litigation had ceased being about an election, but instead involved efforts to
enforce a settlement.
xxvi
2001, no pet.) continued this saga. In the litigation to enforce the
settlement, the visiting judge (who had been elected to the bench)
retired. Consequently, the administrative judge reassigned the same
visiting judge, pursuant to the Government Code. One of the
litigants objected. “The unique question presented by this case is
whether a judge's previous status as a sitting judge assigned to this
case precludes a section 74.053 objection.” Id at 88. Again,
because the lawsuit involved enforcement of a settlement, and the
appointment was made pursuant to the Government Code.
Finally, in Gonzalez v. Ables, 945 S.W.2d 253 (Tex. App.--San
Antonio 1997, no writ), two election contests were filed, and thus the
presiding administrative judge appointed two special judges. Again,
such appointment was made pursuant to the Government Code.
The litigants objected to these special judges, and accordingly, the
administrative judge appointed himself to preside over the contest.
Again, the litigants objected, but to no avail; the administrative
judge was merely exchanging benches, and thus the right to
disqualification did not apply. Id at 254.
[B] Mere Disagreement With Trial Court Insufficient for Reversal
xxvii
In her brief, Contestant failed to address the applicable
standard of review for the imposition of sanctions. Such an omission
constitutes a briefing deficiency which can mandate rebriefing or
even summary affirmance of the trial court's decision. See,
Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.--Waco 2009,
p.d.r. ref'd). Recognizing that such relief may be too harsh,
Contestee will attempt to correct this omission.
As this Court has noted, "A reviewing court cannot conclude
that a trial court abused its discretion if, in the same circumstances, it
would have ruled differently or if the trial court committed a mere
error in judgment." Engelman Irrigation Dist. v. Shields Bros., Inc., 960
S.W.2d 343, 354 (Tex. App.--Corpus Christi 1997), writ denied per
curiam, 989 S.W.2d 360 (Tex. 1998); accord, E.I. Du Pont de Nemours
and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Wal-Mart
Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex. App.--Corpus Christi
1999, writ denied); Home Owners Funding Corp. of America v.
Scheppler, 815 S.W.2d 884, 889 (Tex. App.--Corpus Christi 1991, no
writ). Rather, "A trial court abuses its discretion when it does not
follow guiding rules and principles and reaches an arbitrary and
xxviii
unreasonable decision." In re Frost Nat. Bank, 103 S.W.3d 647, 649
(Tex. App.--Corpus Christi 2003, mand. denied). As one reviewing
court explained:
The question is not whether the trial judge might
have exercised better judgment, or made a
mere error in judgment which are no doubt,
common in many courts. In order for the trial
court's actions to have been abusive, the order
must have been so unreasonable, so arbitrary,
or based upon so gross and prejudicial an error
of law as to have no basis in reason or in law.
Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653 (Tex.
App.--Beaumont 1990, no writ).
In determining whether an abuse of discretion occurred, the
reviewing court must view the evidence in the light most favorable
to the trial court's action, and indulge every legal presumption in
favor of the judgment or order. In re J.I.Z., 170 S.W.3d 881, 883 (Tex.
App.--Corpus Christi 2005, no pet.). If some evidence supports its
decision, then the trial court acted within its discretion. In re L.G.G.,
398 S.W.3d 852, 855 (Tex. App.--Corpus Christi 2012, no pet.); Reading
& Bates Const. Co. v. O'Donnell, 627 S.W.2d 239, 244 (Tex. App.--
Corpus Christi 1982, writ ref’d n.r.e.).
xxix
Furthermore, in reviewing such abuse of discretion complaints,
the appellate court must keep in mind the role of the trial judge. As
this Court has explained, "[T]he trial court is in the best position to
observe the demeanor and personalities of the witnesses and can
feel forces, powers, and influences that cannot be discerned by
merely reading the record." E.C., Jr. ex rel. Gonzales v. Graydon, 28
S.W.3d 825, 829 (Tex. App.--Corpus Christi 2000, no pet.). Based on
such forces, powers, and influences, the trial court determines the
credibility of the witnesses, assigns the weight to be given their
testimony, Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697,
701 (Tex. App.--Corpus Christi 2000, no pet.), and resolves and
reconciles conflicts therein, accepting or rejecting such portions
thereof as it sees fit. City of Port Isabel v. Shiba, 976 S.W.2d 856, 859
(Tex. App.--Corpus Christi 1998, writ denied). Thus, the trial court "is
free to reach its findings by believing or rejecting some or all of the
contradictory testimony when assessing the comparative truthfulness
of witnesses." Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--
Corpus Christi 1996, writ denied); see also, Roberts v. Burkett, 802
S.W.2d 42, 47 (Tex. App.--Corpus Christi 1990, no writ); Fonseca v.
xxx
County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ. App.--Corpus Christi
1975, writ ref'd n.r.e.). This Court cannot substitute its findings for the
trial court's concerning the credibility of the witnesses. Adams v. H &
H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex. App.--Corpus Christi
2000, no pet.).
[C] Contestant Failed to Present Evidence of Her Good Faith
"No litigant has the right to put a party to needless burden and
expense or to waste a court's time that would otherwise be spent on
the sacred task of adjudicating the valid disputes of Texas citizens."
Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.--Houston [1st Dist.] 1994,
writ denied). Accordingly, trial courts are authorized to sanction
litigants for groundless pleadings and motions, Tex. Civ. Prac. & Rem.
Code ch. 9; Tex. Civ. Prac. & Rem. Code ch. 10; Tex. R. Civ. P. 13,
and Contestee sought sanctions against Contestant pursuant to
such authorization. Cl.R. 93-98. The purpose of imposing sanctions
for filing groundless pleadings and motions is to deter similar conduct
in the future and to compensate the aggrieved party for costs
incurred in responding to the frivolous claims. Law Offices of Robert
D. Wilson v. Texas Univest-Frisco, Ltd., 291 S.W.3d 110, 113 (Tex. App.--
xxxi
Dallas 2009, no pet.).
Consequently, every litigant must make a reasonable inquiry,
both factually and legally, prior to filing any pleading or motion.
Sanctions are appropriate if the litigant does not possess a factual
basis for her allegations. See, e.g., Zeifman v. Nowlin, 322 S.W.3d 804,
809-10 (Tex. App.--Austin 2010, no pet.); Loeffler v. Lytle Independent
School Dist., 211 S.W.3d 331, 349 (Tex. App.--San Antonio 2006, pet.
denied). A litigant is also required to anticipate affirmative defenses
which might be pled. Booth v. Malkan, 858 S.W.2d 641, 643-44 (Tex.
App.--Fort Worth 1993, writ denied). A litigant cannot dodge
sanctions merely by claiming that she possessed a belief that her
allegations were true. K.J. v. USA Water Polo, Inc., 383 S.W.3d 593,
607 (Tex. App.--Houston [14th Dist.] 2012, pet denied); Keith v. Keith,
221 S.W.3d 156, 166-67 (Tex. App.--Houston [1st Dist.] 2006, no pet.).
And a litigant cannot file a lawsuit, and hope to uncover evidence
supporting her allegations later.12 See, Robson v. Gilbreath, 267
S.W.3d 401, 405-06 (Tex. App.--Austin 2008, pet. denied).
12Thus,the short window provided for filing an election contest addresses the
quantum of evidence required before filing the petition, and not whether a
contestant must possess evidence before filing such a petition.
xxxii
Moreover, “A trial court can impose sanctions for a party's or his
counsel's failure to inquire into the facts after he is on notice the facts
are not what he believes.” Monroe v. Grider, 884 S.W.2d 811, 817
(Tex. App.—Dallas 1994, writ denied). “The fact that a party refused
requests to dismiss a frivolous claim prior to the imposition of
sanctions is evidence which will support a trial court's determination
that sanctions are justified in a particular case.” Delgado v.
Methodist Hospital, 936 S.W.2d 479, 487-88 (Tex. App.--Houston [14th
Dist.] 1996, no writ).
Whether to impose sanctions lies in the discretion of the court,
and its decision will not be set aside unless an abuse of discretion is
show. King v. First Nat. Bank of Baird, 161 S.W.3d 661, 663 (Tex. App.–
Eastland 2005, no pet.). As previously mentioned, a trial court does
not abuse its discretion in awarding sanction merely because an
appellate court views the evidence differently than the trial court, or
would have reached a different conclusion had the applicable facts
been presented to it initially. Delgado v. Methodist Hospital, supra.
In the case at bar, Contestant admitted that she reviewed the
petition before it was filed. 5 C.R. 29. In it, she alleged that the
xxxiii
election process failed to count legal votes, and/or that election
officials engaged in other fraud or illegal conduct or made mistakes
that precluded an accurate count of the actual votes cast. Cl.R. 24.
Yet, Contestant herself did not possess a reasonable basis for such
factual allegations, and did not possess a factual basis at the time
she filed the contest. The trial court’s evidence came from
Contestant’s own lips:
Q. You have no evidence to support your allegations that
any election official prevented eligible voters from voting
in the County Court at Law 8 race today?
A. Today with me, no.
Q. Please identify the name of each election official you
are accusing that prevented eligible voters from voting at
the County Court at Law 8 election.
A. I don't have that information.
Q. Clearly -- you are not stating that you have any sort of
evidence by clear and convincing evidence that Yvonne
Ramon13 is the person that prevented eligible voters from
voting, are you?
A. No, sir.
Q. Or anyone in her department, right?
A. Specifically, no, sir.
Q. But generally?
A. No, sir.
. . . . .
13Ms. Ramon is Hidalgo County Elections Administrator. 5 C.R. 41.
xxxiv
Q. You have no clear or convincing evidence that there
were any irregularities in the election for the County Court
at Law 8 which would demonstrate that more than 700
votes were either illegal, uncounted or fraudulent?
A. Not at this time, no.
Q. Please identify each voting poll in which illegal votes
were counted which materially altered or affected the
outcome of the County Court at Law 8 election by more
than 700 votes.
A. I don't have that information now.
Q. You cannot identify any voters or election officials who
conduct materially -- who affected the result of the
outcome of the County Court at Law election by more
than 700 votes, true?
A. Not at this time.
. . . . .
Q. Okay. What training do you have or background do
you have in telling from numbers that there is fraud?
A. Because two plus two equals four, sir.
. . . . .
Q. Okay. Please identify the name of each election official
you are accusing engaged in fraud which materially altered
the outcome of the County Court at Law 8 election.
A. I have none at this time.
Q. Please identify the name of each election official that
you are accusing engaged in illegal conduct which
materially altered the outcome of the County Court at Law
8 election.
A. I'm not stating anyone specifically at this time.
Q. Because you don't know of anyone right now, correct?
A. Correct.
xxxv
Q. And you didn't know of anybody at the time that you
filed you're election contest, correct?
A. Correct.
Q. And the day before you filed it, you didn't know -- you
couldn't identify anyone at that time, either, correct?
A. Correct.
Q. Please identify the name of each election official you're
accusing made a mistake which materially altered the
outcome of the County Court at Law 8 election.
A. I don't have any names at this time.
Q. And you didn't have any the day before the petition
was filed, correct?
A. Correct.
Q. And you didn't have any at the time that you filed the
election contest with the Court, correct?
A. Correct.
. . . .
Q. . . . You have no evidence to support any
malfunction or illegal manipulation which materially
affected the outcome of the County Court at Law 8 race --
A Not at this time.
Q -- by more than 700 votes?
A Not at this time.
. . . .
Q Okay. What evidence do you have that there were
irregularities in the casting and counting of ballots in the
election that proves that true election results cannot be
ascertained?
A We don't have that at this time.
Q. And you don't know when we're going to have it, right?
xxxvi
A. That's correct.
Q. And it's speculation on your part of what the results are
going to be, correct?
A. It's speculation on everyone's part.
Q. Which polling location specifically?
A. I don't know exactly what polling location. I don't
remember.
Q. Which individuals specifically you spoke to?
A. To friends of our family.
Q. Okay. Who are they?
A. I don't remember the names, all of the names at this
time.
Q. Just give me some of the names that you used to form
the basis of the letter that you wrote the county judge
about -- complaining of numerous inconsistencies and
discrepancies?
A. I don't have those names at this time.
. . . . .
Q. What evidence do you have that there were
irregularities in the casting and counting of ballots in the
election that proves the contestant would be declared the
winner?
A. We don't have that information at this time.
Q. What evidence do you have that there were
irregularities in the casting and counting of ballots in the
election that proves a contestant would be declared the
winner?
A. We don't have that at this time.
Q. As you sit here today, you can't point to any polling
station or precinct that had any voting irregularities; is that
correct?
xxxvii
A. Not at this time, no.
. . . . .
Q. One more question. As we sit here today with the
evidence that you have before you that you've provided,
do you believe that we should have a new election?
A. I can't -- I can't draw a conclusion right now.
5 C.R. 25-34, passim (emphasis added). Given the complete lack of
evidentiary support for Contestant’s allegations, and Contestant's
failure to present contrary evidence (despite its patent availability), 5
C.R. 35,14 the trial court did not abuse its discretion in awarding
sanctions. See, Gutierrez v. Elizondo, 139 S.W.3d 768, 775 (Tex. App.--
Corpus Christi 2004, no pet.).
Contestant failed to present any evidence at the hearing of
her white heart. 5 C.R. 35. Subsequent to the hearing (and again on
appeal), Contestant cites to other evidence in her deposition,
evidence which she contents proves her white heart. Cl.R. 141-44.15
But the time for presenting such evidence to the trial court was at
the sanctions hearing. Consequently, Contestee believes such
evidence is not properly before this Court.
14Contrary to Contestant's implied assertion, Appellant's Brief, p. 18, Contestee
did not possess the burden to present evidence which contradicted his motion.
15Contestee did not play the entire videotape deposition. 5 C.R. 24.
xxxviii
In reviewing a trial court's decision, this Court is limited to the
evidence which the trial court considered,16 Goss v. State, 944
S.W.2d 748, 750 (Tex. App.--Corpus Christi 1997, no p.d.r.). Con-
sequently (and axiomatically), this Court is barred from considering
matters which appear outside the record, Sabine Offshore Service,
Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979); Harbor
Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 n. 1 (Tex. App.--Corpus
Christi 2001, no pet.), and it is improper for a litigant to rely on matters
outside the record in making her arguments to the court of appeals.
de Laurentis v. United Services Auto. Ass'n, 162 S.W.3d 714, 722 n. 6
(Tex. App.--Houston [14th Dist.] 2005, pet. denied). While portions of
Contestant's deposition was referred to in her post hearing brief, it
was never expressly presented as evidence at the hearing, and
nothing in the record indicates that the trial court affirmatively
considered it.17 Therefore, in determining whether the trial court
16"Appellate courts must base their decisions on the record as made and
brought forward, not on a record that should have been made or that could
have been made." In re Estate of Washington, 262 S.W.3d 903, 906 (Tex. App.--
Texarkana 2008, no pet.).
17As a general rule, sanctions should not be premised on the cold papers filed,
but only after viewing the witnesses and assessing their credibility. New York
Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex.
App.--Dallas 1993, no writ).
xxxix
abused its discretion, this Court cannot consider it. Tesoro v. Alvarez,
281 S.W.3d 654, 660 n. 3 (Tex. App.--Corpus Christi 2009, no pet.);
Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.--Corpus Christi 2003,
pet. denied).
But even if this Court considered such evidence, this Court
would find that the trial court did not abuse its discretion. Direct
evidence of a sanctioned person's subjective intent is not required;
mal intent may be shown by either direct or circumstantial evidence.
Scheel v. Alfaro, 406 S.W.3d 216, 227 (Tex. App.--San Antonio 2013,
pet. denied); Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 289
(Tex. App.--Dallas 2012, no pet.). Furthermore, a trial court weighs
the evidence, and determines which evidence is more credible.
Roberts v. Burkett, supra; Fonseca v. County of Hidalgo, supra.
To prevail in her election contest, Contestant was required to
change or eliminate 700 votes. Only one voting machine allegedly
contained improprieties, and the improper vote occurred in the
District Attorney’s race, and not in the County Court at Law No. 8
race. Cl.R. 19. This machine alone could not provide a reasonable
basis for her election contest. Robson v. Gilbreath, supra. While
xl
Contestant indicated that she had learned of other improprieties on
election day, she refused to identify who provided such information
or what such improprieties were. 5 C.R. 33. She also admitted that
her election contest was premised just on her suspicion. 5 C.R. 32.
The trial court could infer that because Contestant did not possess
evidence after discovery, she did not possess evidence when she
filed her contest.
Contestant's election petition does not specifically refer to the
District Attorney’s Office, and that it alone will prove irregularities. 5
C.R. 29. While admittedly a Hidalgo County grand jury was
investigating the voting machines, as the old adage goes, a
prosecutor could convince a grand jury to indict a ham sandwich.
United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005).
But more fundamentally, the Hidalgo County District Attorney’s
Office was not prosecuting this matter; Contestant herself was
required to present evidence that the voting machines functioned
improperly. Yet, she made absolutely no effort to obtain access to
the machines, or independently investigate such alleged
malfunctions and the effect on the ultimate tally. 3 C.R. 6, 9. When
xli
questioned by she did not attempt to investigate the machines, she
claimed that she did not think about it. 5 C.R. 31. After reviewing
such evidence, Contestee's attorney concluded that the election
contest was frivolous. 5 C.R. 44. Based on this evidence (which the
trial court found credible), the trial court did not abuse its discretion
in awarding sanctions. Beasley v. Peters, 870 S.W.2d 191, 196 (Tex.
App.--Amarillo 1994, no writ).
Contestant further argues that because this Court determined
that the trial court erred it granted pleas to the jurisdiction, then ipso
facto, her suit possesses merit, precluding sanctions. However, in
adjudicating a plea to the jurisdiction, the actual merits are
irrelevant; a plea to the jurisdiction decides whether a court can
even reach the merits. Mission Consol. Ind. Sch. Dist. v. Garcia, 372
S.W.3d 629, 635 (Tex. 2012). Ignoring the requirement that an
appellate court must affirm a judgment on any ground presented in
the record, Keaton v. Ybarra, 552 S.W.2d 612, 616 (Tex. Civ. App.--
Corpus Christi 1977, writ ref'd n.r.e.), this Court in its prior decision
completely ignored the lack of evidence to support Contestant’s
position. Cl.R. 17-27. "The sole issue before the Court of Appeals was
xlii
whether the allegations in Contestant’s petition were sufficient to
give the trial court jurisdiction to hear the case. The Court of Appeals
did not address the issue whether facts were pled to support the
petition." Cl.R. 171.18 Furthermore, sanctions were not imposed on
Contestant due to pleading insufficiencies, but because no
evidence supported her allegations, and she made no effort to
obtain such evidence. Cl.R. 170. Thus, this Court’s prior reversal does
not shield Contestant from sanctions. Metzger v. Sebek, 892 S.W.2d
20, 53 n. 31 (Tex. App.–Houston [1st Dist.] 1994, writ denied), cert.
denied, 516 U.S. 868, 116 S.Ct. 186, 133 L.Ed.2d 124 (1995)(pleadings
still considered frivolous even though litigant prevailed on motion for
summary judgment).
[D] Contestee Not Required to Present Time Figure for Each Activity
In order to determine the amount of sanctions, Contestee's trial
attorney testified concerning the nature of the work performed. 5
C.R. 37-44. He also produced activity sheets, which provided a list of
his activities. Based on the foregoing, he opined that Contestee had
incurred $60,000 in the defense of this matter. 5 C.R. 43. The trial
18Thus, the fact that election contests are statutorily authorized is completely
irrelevant to sanctions.
xliii
court found such testimony credible, and awarded this amount.19
Cl.R. 172. Naturally, Contestant does not find such testimony
credible, and consequently claims the trial court abused its
discretion. Naturally, Contestee's disagrees with such assessment of
the evidence. But on a more fundamental level, Contestee
disagrees with Contestant's premise, i.e. that he was required to
present evidence demonstrating the reasonable and necessary
nature of attorney's fees in this context.
{1} REASONABLE AND NECESSARY PROOF UNNECESSARY
When a litigant is seeking attorney's fees for breach of contract
or violations of the Texas Deceptive Trade Practices Act, he must
prove that the attorney's fees expenses sought are reasonable and
necessary. However, when attorneys' fees are sought as sanctions,
the movant is need not present evidence any evidence of either
necessity or reasonableness. Sellers v. Gomez, 281 S.W.3d 108, 116
19“The choice of sanctions is for the trial court to determine, and so long as the
sanctions are within the authority vested in the trial court they will not be
overturned unless they constitute a clear abuse of discretion.” Ogunboyejo v.
Prudential Property and Cas. Co., 844 S.W.2d 860, 863 (Tex. App.—Texarkana
1992, writ denied). Because the sanctions awarded compensated Contestee
for the amount of attorney's fees he incurred in defending the election contest,
the sanctions fulfilled one of its designed purposes, and thus was not excessive.
xliv
(Tex. App.--El Paso 2008, pet. denied); Miller v. Armogida, 877 S.W.2d
361, 365 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Indeed, in
this situation, the movant need not present any proof of attorney’s
fees at all. In re Braden, 960 S.W.2d 834, 836 (Tex. App.--El Paso 1997,
no pet.). "In cases in which the judgment is not one for earned
attorney's fees, but rather a judgment imposing attorney's fees as
sanctions, it is not invalid because a party fails to prove attorney's
fees." Scott Bader, Inc. v. Sandstone Products, Inc., 248 S.W.3d 802,
816 (Tex. App.--Houston [1st Dist.] 2008, no pet.). Accordingly, an
appellant who complains of "no evidence" or "insufficient evidence"
of necessity or reasonableness to support attorney's fees awarded
qua sanctions, has failed to present error. Cognata v. Down Hole
Injection, Inc., 375 S.W.3d 370, 381 (Tex. App.--Houston [14th Dist.]
2012, pet. denied); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc.,
345 S.W.3d 537, 576 (Tex. App.--San Antonio 2011, no pet.).
And so it is in the case at bar. Contestee was not awarded
attorney's fees for breach of contract or violation of the Texas
Deceptive Trade Practice Act; instead, as the trial court found, he
was awarded attorney's fees because Contestant engaged in
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sanctionable conduct. Cl.R. 168-72. Because attorney's fees were
imposed as a sanction, Contestant cannot complain of any lack of
evidence concerning reasonableness or necessity. Cognata v.
Down Hole Injection, Inc., supra; Prize Energy Resources, L.P. v. Cliff
Hoskins, Inc., supra.20
{2} SUFFICIENT EVIDENCE WAS PRESENTED OF ATTORNEY'S FEES
At the hearing on his motion for sanctions, Contestee
presented evidence concerning attorney's fees for the prosecution
of the underlying election contest. 5 C.R. 37-44. Assuming that
Contestee was required to prove the reasonableness and necessity
of such fees, he clearly satisfied this burden.
In determining a reasonable and necessary attorney's fees, a
trial court considers the following factors:
1. the time and labor required;
2. the novelty and difficulty of the questions
involved, and the skill required to perform
the legal service properly;
3. the likelihood that the acceptance of the
particular employment will preclude other
20This contention was expressly presented to the trial court, Cl.R. 164, yet
Contestant failed to address it in the brief presented to this Court. Appellant's
Brief, pp. 21-22.
xlvi
employment by the lawyer;
4. the fee customarily charged in the locality
for similar legal services;
5. the amount involved and the results
obtained;
6. the time limitations imposed by the client
or by the circumstances;
7. the nature and length of the professional
relationship with the client;
8. the experience, reputation, and ability of
the lawyer or lawyers performing the
services; and
9. whether the fee is fixed or contingent on
results obtained or uncertainty of
collection before the legal services have
been rendered.
Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818
(Tex. 1997). But these are just guidelines, not elements of proof. In re
Estate of Johnson, 340 S.W.3d 769, 789 (Tex. App.--San Antonio 2011,
pet. denied). No one factor is controls, and the applicant is not
required to present evidence on every factor. View Point Bank v.
Allied Property and Cas. Ins. Co., 439 S.W.3d 626, 636 (Tex. App.--
Dallas 2014, pet. filed); Acad. Corp. v. Interior Buildout & Turnkey
xlvii
Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.--Houston [14th Dist.] 2000,
no pet.). In addition to these factors, the trial court may consider the
entire record and the common knowledge of the lawyers and
judges. In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.--Dallas 2007,
no pet.).
"The amount and reasonableness of attorney's fees is a
question of fact. . . Testimony of a local attorney as to what would
be a reasonable fee for handling the case is some evidence to
support an award of attorney's fees." Gonzalez v. Nielson, 770 S.W.2d
99, 102-03 (Tex. App.--Corpus Christi 1989, writ denied). "Courts have
uniformly held that any award of attorney's fees, pursuant to statute
or under common law, is within the discretion of the trial court.
Absent a showing of an abuse of discretion, the award or failure to
award fees will not be disturbed on appeal." Amoco Production Co.
v. Smith, 946 S.W.2d 162, 165 (Tex. App.--El Paso 1997, no writ). A
reviewing court cannot find an abuse of discretion merely because
a litigant complains the award is too generous. Garrod Investments,
Inc. v. Schlegel, 139 S.W.3d 759, 768 (Tex. App.--Corpus Christi 2004,
no pet.).
xlviii
At the hearing on sanction, Contestee presented evidence in
support of an award. Contestee's trial attorney testified that he
specialized in litigation. 5 C.R. 36. He further explained that election
contests were complex matters which “have to be handled at
lightening speed”. 5 C.R. 36. In addition to client conferences,
Contestee's attorney took several depositions, including those of
Contestant, the witnesses who allegedly witnessed the election
machine malfunction, and the Hidalgo County Elections
Administrator. He also intervened in the lawsuit wherein the voting
machines had been impounded, obtaining a right to limited
participation in the their testing.21 This naturally required research re
forensic testing of voting machines. Numerous hearing were
attended, all of which required preparation. Furthermore, because
election contests are not filed every day, such activity was novel,
requiring research. 5 C.R. 38-42. As a result, Contestee's attorney
testified that $60,000 in attorney's fees was reasonable. 5 C.R. 43-44.
To support such activity, Contestee presented a detailed listing of his
21Contestant's contention that she could not obtain access to the voting
machines is completely devoid of merit; she did not even try. Her statements
that she did try is false.
xlix
activities. Contestee's Ex. 1. While Contestee's trial counsel was cross
examined, Contestant failed to present any contradictory testimony.
5 C.R. 49. Accordingly, the trial court did not abuse its discretion in
making the award.
{3} NOT REQUIRED TO ACCOUNT FOR EACH SECOND SPENT
Because he was not relying upon the loadstar method for
attorney’s fee calculation,22 what Contestee's attorney failed to do
was present testimony concerning how long each particular activity
took for him to complete. Seizing upon such failure, Contestant
asserts that no evidence supports the trial court's award. But such
position was not well taken.
As previously noted herein, the Arthur Andersen factors merely
constitute guidelines, not elements of proof. In re Estate of Johnson,
supra. "[A]lthough typically the nature and extent of the services
performed is expressed by the number of hours and the hourly rate,
there is no rigid requirement that these facts must be in evidence for
such a determination to be made." Hays & Martin, L.L.P. v. Ubinas-
22The lodestar method is determining attorney’s fees by multiplying a reasonable
number of hours worked by the prevailing hourly rate in the community for
similar work. Bates v. Randall County, 297 S.W.3d 828, 838 n. 10 (Tex. App.--
Amarillo 2009, pet. denied).
l
Brache, 192 S.W.3d 631, 636 (Tex. App.--Dallas 2006, pet. denied).
Thus, evidence is sufficient to support an award if a total amount is
stated, with an explanation of why such amount is reasonable and
necessary, but without a precise amount of hours. In re A.S.G., 345
S.W.3d 443, 451-52 (Tex. App.--San Antonio 2011, no pet.); In re A.B.P.,
291 S.W.3d 91, 98-99 (Tex. App.--Dallas 2009, no pet.); Burnside Air
Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898
(Tex. App.--Dallas 2003, no pet.). Thus, a litigant is not required to
present the court with a precise second by second account for
each activity. Delcor USA, Inc. v. Texas Indus. Specialties, Inc., 2011
WL 6224466 at 5 (Tex. App.--Houston [14th Dist.] 2011, no pet.); La
Ventana Ranch Owners' Ass'n, Inc. v. Davis, 363 S.W.3d 632, 651 (Tex.
App.--Austin 2011, pet. denied).
Contestant's authority does not mandate a contrary result. A
litigant can prove reasonable and necessary attorney's fees by
utilizing the loadstar method. Obviously, as Contestant's authorities23
hold, if a litigant is required or otherwise utilizes the loadstar method,
he is required to provide competent evidence of the time spent. But
23City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2013); El Apple I v.
Olivas, 370 S.W.3d 757, 763 (Tex. 2012).
li
Contestee herein did not utilize the loadstar method, but instead
provided a flat figure for reasonable attorney's fees. 5 C.R. 44. Thus,
such authority is inapplicable.
CONCLUSION AND PRAYER
Election contests strike at the legitimacy of a public office
holder. Such allegations create a cloud over the elected official;
even if he is legally cleared, some citizens will believe that where
there is smoke there is fire, and thus he improperly holds office. As
applied to the case at bar, while Contestee's rulings now possess the
force of law, due to Contestant's misconduct, such rulings may not
be accepted by all the citizens appearing before him. As the trial
court found, Cl.R. 168-72, such impugnation never should have
occurred.
WHEREFORE, PREMISES CONSIDERED, E. OMAR MALDONADO,
Contestee in the above styled and numbered cause, respectfully
prays that the judgment of the trial court be AFFIRMED, that all costs
be taxed against Contestant, and for all other and further relief,
either at law or in equity, to which Contestee shows himself entitled.
Respectfully submitted,
lii
Daniel M.L. Hernandez
State Bar No. 24034479
HERNANDEZ LAW FIRM, P.C.
308 E. Villa Maria Rd.
Bryan, Texas 77801
Telephone: 1.979.822.6100
Facsimile: 1.979.822.6001
George D. Durham III
Bar Card No.: 24082940
GSK LAW
517 West Nolana, #6
McAllen, Texas 78504
Tel: (956) 900-4187
Hitesh K. Chugani
State Bar No. 24066519
H.K.C. LAW
517 W. Nolana, #7
McAllen, Texas 78504
Tel: (956) 212-1601
Fax: (956) 524-5153
LIVESAY LAW OFFICE
BRAZOS SUITES NO. 9
517 W. Nolana Ave.
McAllen, Texas 78504
(956) 928-0149
BY: __KEITH C. LIVESAY_______
KEITH C. LIVESAY
State Bar No. 12437100
CERTIFICATE OF COMPLIANCE
I, KEITH C. LIVESAY, do hereby certify that the above and
liii
foregoing document was generated using Word 2007, utilizing 14
point font, and contains 8626 words.
__KEITH C. LIVESAY_______
KEITH C. LIVESAY
CERTIFICATE OF SERVICE
I, KEITH C. LIVESAY, do hereby certify that I have caused to be
delivered a true and correct copy of the above and foregoing
document to Appellant’s Counsel of Record, on this the 16th day of
February, 2015.
__KEITH C. LIVESAY_______
KEITH C. LIVESAY
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