Carol Soloman v. State of Texas and Pete Yoho ( 2014 )

Vacate and Dismiss; and Opinion Filed January 30, 2014
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-12-01636-CV
CAROL SOLOMON, Appellant
V.
STATE OF TEXAS EX REL. PETE YOHO, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 76,070
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice Francis
Carol Solomon appeals the trial court’s judgment ordering her removed from office as a
City of Tawakoni council member. Because we conclude the cause is moot, we vacate the
judgment and dismiss the cause.
City of Tawakoni Mayor Pete Yoho filed a petition to remove Solomon from office for
official misconduct.1 See TEX. LOC. GOV’T CODE ANN. § 21.026 (West 2008). The petition
alleged city workers removed a tree stump and set a drainage culvert on Solomon’s property
without Solomon paying for the work or obtaining a permit. Solomon, who was elected in 2010,
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Two other plaintiff’s named in the original petition nonsuited their claims.
denied the allegations, filed a counterclaim for defamation and malicious prosecution, and sought
sanctions for the filing of a frivolous pleading.
Although the original petition and each subsequent amended petition asserted that time
was of the essence, the removal case did not go to trial until October 2012, two years after the
lawsuit was filed and less than two months before Solomon’s term expired. (Solomon’s
counterclaims were to be tried later.) The Hunt County district attorney prosecuted the case. See
TEX. LOC. GOV’T CODE ANN. § 21.029(d) (West 2008). After hearing the evidence, a jury found
Solomon “accepted or agreed to accept” a benefit from “a person she knew to be subject to
regulation, inspection or investigation” by her or the West Tawakoni City Council and that this
conduct constituted official misconduct. That same day, the trial court signed an interlocutory
judgment ordering her removed from office and then finding it was in the “public interest” to
suspend her from office pending appeal. Solomon’s term of office expired on December 1,
2012. In the meantime, she was re-elected as councilwoman in November 2012. An order
nonsuiting the last of Solomon’s counterclaims was signed in April 2013, making the trial
court’s interlocutory judgment final.
We are prohibited from deciding moot controversies. Nat’l Collegiate Athletic Ass’n v.
Jones, 1 S.W.3d 83, 86 (Tex. 1999). A justiciable controversy between the parties must exist at
every stage of the legal proceedings, including the appeal, or the case is moot. See Williams v.
Lara, 52 S.W.3d 171, 184 (Tex. 2001).
Here, the parties agree the cause of action sought to remove Solomon from her term of
office which expired on December 1, 2012. See Reeves v. State ex rel. Mason, 267 S.W. 666,
668 (Tex. 1924) (explaining that each term of office “legally becomes an entity, separate and
distinct from all other terms of office.”) At that time, only an interlocutory judgment was in
place. Before the judgment became final and appealable, Solomon’s term expired, rendering the
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cause moot. See Griffith v. State ex rel. Ainsworth, 226 S.W. 423, 423 (Tex. Civ. App.—El Paso
1920, no writ) (concluding quo warranto action was moot on expiration of term of office and
must be dismissed); see also City of Alamo v. Montes, 934 S.W.2d 85, 85 (Tex. 1996)
(dismissing case as moot when employee resigned, leaving no controversy between parties, in
suit challenging termination).
We therefore vacate the trial court’s judgment and dismiss the case as moot.
/Molly Francis/
121636F.P05 MOLLY FRANCIS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CAROL SOLOMON, Appellant On Appeal from the 196th Judicial District
Court, Hunt County, Texas
No. 05-12-01636-CV V. Trial Court Cause No. 76,070.
Opinion delivered by Justice Francis;
STATE OF TEXAS EX REL. PETE YOHO, Justices FitzGerald and Myers participating.
Appellee
In accordance with this Court’s opinion of this date, we VACATE the trial court’s
judgment and DISMISS the cause.
It is ORDERED that each party shall bear its own costs of this appeal. After all of
appellant Carol Solomon’s costs have been paid, the clerk of the district court is directed to
release the balance, if any, of the cash deposit to Carol Solomon.
Judgment entered this 30th day of January, 2014.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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