Mari Regalado v. Sergio Munoz Jr. ( 2014 )

NUMBER 13-14-00274-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARI REGALADO, Appellant,
v.
SERGIO MUNOZ JR., Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
This appeal addresses the contest of a primary election involving the race for
Texas State Representative for House District 36. See TEX. ELEC. CODE ANN. § 232.002
(West, Westlaw through 2013 3d C.S.) (“Any candidate in an election may contest the
election.”). By two issues, appellant-contestant Mari Regalado challenges the trial
court’s denial of her second motion for continuance and its grant of a no-evidence
summary judgment in favor of appellee-contestee Sergio Munoz Jr. We affirm.
I. BACKGROUND
Regalado and Munoz were candidates in the Texas State Representative for
House District 36 Democratic Primary Election on March 4, 2014. The canvass,
conducted on March 13, 2014, determined that of the 9,195 votes cast in this race, Munoz
received 7,040 votes, or 76.56 percent, and Regalado received 2,155 votes, or 23.44
percent. Munoz was declared the winner because he received more than 50 percent of
the votes.
A. Petition and Answer
Regalado timely filed a lawsuit contesting the results of this election. See id.
§ 232.008 (West, Westlaw through 2013 3d C.S.). In her petition, Regalado stated that
she was challenging the result of the Texas State Representative for House District 36
Democratic Primary Election. Regalado claimed that she would “prove by clear and
convincing evidence that a sufficient number of illegal votes were counted to affect the
outcome of the election . . . .”1
1 Regalado claimed that the illegal votes occurred because of the following:
that either through malfunction or illegal manipulation, [that persons] who voted for one
candidate had their votes re-cast for other candidates and that persons who voted for MARI
REGALADO had their votes counted for one of the other candidates; election machines
either malfunctioned or were illegally tampered with to affect the outcome of the election;
election officials or other persons officially involved in the administration of the election
witnessed that election machines appeared to either malfunction or were tampered with so
that the outcome of the election was affected; many complaints were brought to the
attention of the Hidalgo County Elections Administrator to raise doubts concerning the
accuracy of the election results and of the functioning of the election machines; the election
process failed to count legal votes, and/or engaged in other fraud or illegal conduct or made
mistakes that precluded an accurate count of the vote cast.
(Emphasis in original.).
2
Munoz filed an amended answer, generally denying Regalado’s allegations and
objecting to her exhibits. Munoz’s answer included a plea to the jurisdiction, which the
trial court denied.
B. Regalado’s Motions for Continuance
On April 21, 2014, Regalado filed a motion for continuance, seeking “the maximum
time allowed for continuance, so that the grand jury may investigate [impounded election
materials] thoroughly and accurately for the sake of the contestee, the contestant, and
the community.” See id. § 232.012(e)(1) (West, Westlaw through 2013 3d C.S.) (setting
out that “[t]he district judge may not grant a continuance in the trial except one time for a
period not exceeding 10 days for good cause supported by the affidavit of a party”).
Regalado attached her affidavit “as evidence of good cause in furtherance of this motion.”
See id.; TEX. R. CIV. P. 251 (“No application for a continuance shall be heard before the
defendant files her defense, nor shall any continuance be granted except for sufficient
cause supported by affidavit, or by consent of the parties, or by operation of law.”). The
trial court granted Regalado’s motion for continuance and ordered that the trial date be
continued for ten days, from April 25, 2014 to May 5, 2014. See TEX. ELEC. CODE ANN.
§ 232.012(e)(1).
In support of her allegations, Regalado attached the following exhibits to her petition: (1) voter
Benito Garza’s handwritten Hidalgo County Elections Department Incident Report, which outlined a voting
irregularity that Garza experienced while using Hidalgo County’s electronic voting machines in another
race; (2) an affidavit from Richard Alvarez, an executive assistant to the Hidalgo County Judge, regarding
the problem voter Garza experienced when he attempted to cast a vote in the race for Hidalgo County
District Attorney; and (3) three letters from Regalado and/or other candidates addressed to commissioners
and/or Hidalgo County Judge Ramon Garcia requesting, among other things, a “forensic expert” to “inspect
each voting machine to ensure that they [had] not malfunctioned or been subjected to fraud or tampering.”
3
At the May 5, 2014 hearing, Regalado presented her motion for a second
continuance.2 Following argument, during which Munoz objected to the continuance, the
trial court denied Regalado’s motion in open court. See id.; see also State Farm Ins. Co.
v. Pults, 850 S.W.2d 691, 693 (Tex. App.—Corpus Christi 1993, no writ) (“An order
pronounced in open court is considered ‘rendered’ when it is officially announced and is
valid from that time, making formal entry only a ministerial act.”).
C. Munoz’s Motion for No-Evidence and Traditional Summary Judgments
Munoz filed a motion for no-evidence and traditional summary judgments. In his
no-evidence motion, Munoz asserted, among other things, that Regalado “had sufficient
time for discovery” and that she provided “no evidence of irregularities in the contested
election and no evidence [that] the irregularities affected the outcome of the election.”3
2 It is undisputed that a copy of Regalado’s written motion for continuance was before the trial
court at the May 5, 2014 hearing, although it does not appear in the appellate record.
3 The focus of a trial court’s inquiry in an election contest is set out in section 221.003(a) of the
election code as follows:
(a) The tribunal hearing an election contest shall attempt to ascertain whether the
outcome of the contested election, as shown by the final canvass, is not true
because:
(1) illegal votes were counted; or
(2) an election officer or other person officially involved in the
administration of the election:
(A) prevented eligible voters from voting;
(B) failed to count legal votes; or
(C) engaged in other fraud or illegal conduct or made a
mistake.
TEX. ELEC. CODE ANN. § 221.003(a) (West, Westlaw through 2013 3d C.S.).
“To set aside the outcome of an election, the contestant must prove by clear and convincing
evidence that a violation of the election code occurred and such violation materially affected the outcome
4
(Emphasis in original.) In his traditional motion, Munoz argued that he had negated
these same essential elements.4 Although the trial court noted at the summary-judgment
hearing on May 5, 2014, that it had read the motion and the response, it is undisputed
that Regalado filed no written response to Munoz’s motion for no-evidence and traditional
summary judgments.
On May 9, 2014, the trial court granted Munoz’s no-evidence and traditional
motions for summary judgment. This accelerated appeal followed. See TEX. ELEC.
CODE ANN. § 232.014 (West, Westlaw through 2013 3d C.S.).
II. MOTION FOR CONTINUANCE
By her first issue, Regalado contends that the trial court erred by not granting a
continuance. On April 21, 2014, the trial court granted Regalado’s motion for
continuance and ordered the case reset for a trial on the merits and for its consideration
of any motions for summary judgment from April 25, 2014 to May 5, 2014. See id. §
232.012(e)(1). It was Regalado’s request for a second continuance that the trial court
denied. See id.
A. Applicable Law and Standard of Review
The character of the proceedings before us is an election contest. It is not an
of the election.” Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 97–98 (Tex. App.—Dallas 2010, pet. denied);
see Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777–78 (Tex. App.—Corpus Christi 2008, pet. dism’d
w.o.j.); see also Vazaldua v. Muñoz, No. 13-14-00275-CV, Vazaldua v. Munoz, No. 13-14-00275-CV, 2014
WL 2937014, at *6 (Tex. App.—Corpus Christi June 20, 2014, no pet.) (mem. op.). An election’s outcome
may be materially affected when a different and correct result would have been reached in the absence of
irregularities or if irregularities in the conduct of the election render it impossible to determine the majority
of the voters’ true will. Duncan-Hubert, 310 S.W.2d at 98; see Gonzalez, 251 S.W.3d at 778; see also
Vazaldua, No. 13-14-00275-CV, 2014 WL 2937014, at *6.
4
In support of his traditional motion, Munoz relied on the deposition testimony of Regalado and of
Yvonne Ramon, the Hidalgo County Elections Administrator.
5
ordinary case in law or in equity. See Wooley v. Sterrett, 387 S.W.2d 734, 737 (Tex. Civ.
App.—Dallas 1965, no writ); see also Vazaldua v. Muñoz, No. 13-14-00275-CV, 2014 WL
2937014, at *3 (Tex. App.—Corpus Christi June 20, 2014, no pet.) (mem. op.). And
“elections are politically time sensitive, and legislative remedies for contested elections
are to be strictly followed.” Rodriguez v. Cuellar, 143 S.W.3d 251, 260 (Tex. App.—San
Antonio 2004, pet. dism'd) (en banc); see Wooley, 387 S.W.2d at 737–38, 742. In other
words, “[t]he very nature of the proceedings is such that courts are called upon to speedily
and expeditiously dispose of the subject matter without regard to some of the usual rules
applicable in the ordinary civil action.” Wooley, 387 S.W.2d at 737–38 (citations
omitted).
The election code sets out accelerated procedures for election contests. See,
e.g., TEX. ELEC. CODE ANN. §§ 232.012, 232.014. Specific to continuances, the election
code provides that “[t]he district judge may not[5] grant a continuance in the trial [of the
contest] except: (1) one time for a period not exceeding 10 days for good cause
supported by the affidavit of a party; or (2) with the consent of the parties.” Id.
§ 232.012(e). The only instance where this restriction does not apply is a request for a
continuance for the purpose of bringing in a substitute contestee following the death of a
contestee. Id. § 232.012(g).
The trial court’s ruling on most motions for continuance is within its discretion.
State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Villegas v. Carter, 711
S.W.2d 624, 626 (Tex. 1986); see TEX. CIV. PRAC. & REM. CODE ANN. § 30.003(b) (West,
5 “May not” imposes a prohibition and is synonymous with “shall not.” TEX. GOV’T CODE ANN. §
311.016(5) (West, Westlaw through 2013 3d C.S.).
6
Westlaw through 2013 3d C.S.) (setting out when the trial court must grant a properly
requested motion for a legislative continuance); TEX. ELEC. CODE ANN. § 232.012(e)
(providing that the trial court may grant only one continuance for good cause or may grant
a continuance with the consent of the parties). A trial court abuses its discretion if it acts
in an arbitrary and unreasonable manner or without reference to guiding rules or
principles. McAleer v. McAleer, 394 S.W.3d 613, 617 (Tex. App.—Houston [1st Dist.]
2012, no pet.); see State v. Crank, 666 S.W.2d 91, 93 (Tex. 1984) (op. on reh’g). “The
appellate court may not substitute its judgment for that of the trial court in matters
committed to the trial court's discretion.” McAleer, 394 S.W.3d at 617.
B. Discussion
By her first issue, Regalado asserts that the trial court should have granted her
second motion for continuance because “the trial had already been agreed to on a
schedule outside the parameters of the statute.” We are not persuaded by this
argument. It is undisputed that the parties agreed to a trial schedule that did not comply
with section 232.012 and that the trial court retained jurisdiction when it set the trial
schedule pursuant to the parties’ agreement. See TEX. ELEC. CODE ANN. § 232.012(d);
Honts v. Shaw, 975 S.W.2d 816, 820 (Tex. App.—Austin 1998, no pet.) (concluding that
failure to comply with the schedule for a trial found in section 232.012 was not
jurisdictional); see also Vazaldua, No. 13-14-00275-CV, 2014 WL 2937014, at *4. Yet
the record shows that the parties did not agree to a second continuance. Instead, Munoz
objected to Regalado’s second motion for continuance. Unlike the agreed trial schedule,
there was no agreement to a second continuance outside the parameters of the statute;
7
therefore, there was no consent, such that the consent exception found in section
232.012(e)(2) would apply. See id. § 232.012(e)(2). And we cannot conclude, without
more, that an agreement to a non-compliant trial date translates into a broader reading of
the statute such that other restrictions, including the one-continuance restriction, do not
apply.
Regalado also argues that we should look to the purpose of the statute and not to
the statute’s plain reading to ensure that the purpose is served. Regalado describes the
purpose summarily as a “prompt trial schedule.” But we cannot conclude that the trial
court abused its discretion in denying relief on this basis. Instead, we conclude that the
trial court’s ruling served the purpose of the statute, which is “to speedily and expeditiously
dispose of the subject matter without regard to some of the usual rules applicable in the
ordinary civil action.” See Wooley, 387 S.W.2d at 737–38; see also TEX. R. CIV. P. 251,
252 (discussing the applicability of continuances in a civil proceeding); Vazaldua, No. 13-
14-00275-CV, slip op. at 9.
Finally, without citing authority, Regalado argues that the trial court “should have
waited until the Hidalgo County Grand Jury finished its investigation in order to harmonize
the outcomes between the Grand Jury investigation and the election contest.” See
Vazaldua, No. 13-14-00275-CV, 2014 WL 2937014, at *5. In support of this argument,
Regalado advises this Court that: (1) the Grand Jury has hired an expert to review the
electronic voting machines; (2) the District Court overseeing the investigation and audit
has issued an order releasing certain critical records to the expert doing the audit; and (3)
“[b]y including an end date by which the material must be returned, [Regalado] believ[ed]
8
that a final evaluation and report is imminent.” However, this information does not
appear in the appellate record. And we cannot conclude that the trial court abused its
discretion in denying the continuance on this basis.
We conclude that when the trial court denied Regalado’s second motion for
continuance, it acted with reference to section 232.012(e)(1) of the election code. See
TEX. ELEC. CODE ANN. § 232.012(e)(1); see also Vazaldua, No. 13-14-00275-CV, slip op.
at 10. In that regard, it did not act in an arbitrary and unreasonable manner or without
reference to guiding rules or principles such that it abused its discretion. See McAleer,
394 S.W.3d at 617; see also Vazaldua, No. 13-14-00275-CV, 2014 WL 2937014, at *5.
We overrule Regalado’s first issue.6
III. NO-EVIDENCE SUMMARY JUDGMENT
By her second issue, Regalado contends that the trial court erred in granting
Munoz’s no-evidence motion for summary judgment. 7 Regalado argues that she
6 Regalado also argues, in sum, that “[g]iven the diligence by [Regalado] to obtain the data [through
intervention into the impoundment proceeding], the relatively short time period of discovery, and the obvious
materiality of the evidence, it was clearly within the discretion and the interest of the trial court to grant a
motion to continue.” See D.R. Horton-Tex. Ltd. v. Savannah Props. Assoc., L.P., 416 S.W.3d 217, 223
(Tex. App.—Fort Worth 2013, no pet.) (setting out factors that courts review to determine whether to grant
or deny a motion for continuance); McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (identifying factors to examine when determining whether the non-movant in a summary
judgment proceeding had adequate time for discovery). Regalado also relies on Castillo v. Mizpah
Residential Care in support of her inadequate-time-for-discovery argument. No. 13-12-00719-CV; 2014
WL 2159255, at *9–10 (Tex. App.—Corpus Christi May 22, 2014, no pet. h.) (mem. op.). However,
Castillo, a traditional and a no-evidence summary judgment case, is distinguishable from the facts of this
case because it is not an election contest, see id. at *1, and we have already concluded that the trial court
did not abuse its discretion on the basis that section 232.012(e)(1) provides for only one continuance,
absent consent, in a primary election contest. See TEX. ELEC. CODE ANN. § 232.012(e). Thus, we need
not reach Regalado’s “factor” arguments, as they are not dispositive of this appeal. See TEX. R. APP. P.
47.1.
7 Regalado does not challenge the trial court’s order granting Munoz’s traditional motion for
summary judgment. And having concluded below that the trial court did not err in granting a no-evidence
summary judgment, we need not address whether Munoz satisfied the traditional summary judgment
burden under rule 166a(c). See TEX. R. APP. P. 47.1; see also TEX. R. CIV. P. 166a(c); E. Hill Marine, Inc.
9
“provided [Munoz] with information [in discovery] that went beyond a mere scintilla or
surmise . . . to prove up [her] allegations.” However, it is undisputed that Regalado filed
no response to Muñoz’s motion for no-evidence summary judgment.
If the movant files a proper no-evidence motion for summary judgment and the
non-movant fails to file a response and to produce more than a scintilla of evidence to
raise a genuine issue of material fact on the challenged element or elements, the trial
court must grant the motion. TEX. R. CIV. P. 166a(i) & cmt.; Lucio v. John G. and Marie
Stella Kenedy Mem’l Found., 298 S.W.3d 663, 672 (Tex. App.—Corpus Christi 2009, pet.
denied). Based on this record, we conclude that the trial court did not err in granting a
summary judgment in favor of Munoz because Munoz filed a proper no-evidence motion,
identifying essential elements for which Regalado had provided no evidence, and
Regalado filed no response. See TEX. R. CIV. P. 166a(i) & cmt.; Lucio, 298 S.W.3d at
672. We overrule Regalado’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court. No motion for rehearing will be
entertained. See TEX. ELEC. CODE ANN. § 232.014(e).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
17th day of July, 2014.
v. Pinker Boat Co., 229 S.W.3d 813, 816 (Tex. App.—Fort Worth 2007, pet. denied) (explaining that if the
movant has filed a proper no-evidence motion for summary judgment and the non-movant has failed to
produce more than a scintilla of evidence under the standards of rule 166a(i), there is no need to analyze
whether the movant's summary judgment proof satisfied the burden set forth for traditional summary
judgment under rule 166a(c)).
10