Dorothy Jo Lastor v. City of Hearne ( 1991 )

Lastor v. City of Hearne

NO. 10-90-032-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          DOROTHY JO LASTOR,

                                                                                            Appellant

          v.

          CITY OF HEARNE, ET AL,

                                                                                            Appellees

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From 82nd Judicial District Court

Robertson County, Texas

Trial Court # 88-12-13, 572-CV

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O P I N I O N

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          The so-called "Texas Whistle Blower Act" prohibits a local government from terminating an employee for reporting "a violation of law to an appropriate law enforcement authority if the employee report is made in good faith." Tex. Rev. Civ. Stat. Ann. art. 6252-16a(2) (Vernon Supp. 1991) (emphasis added). The question is whether a city violates the Act by terminating an employee for reporting an incident which is not a violation of law but which the employee in good faith believes to be a violation of law. We hold that the legislature intended to protect an employee from termination if the report was based on a good-faith belief that the incident was a violation of law.

          A jury found that the City of Hearne maliciously terminated Dorothy Lastor as its city manager for reporting "a violation of law" in "good faith," and awarded her actual damages, punitive damages, and attorney's fees. Notwithstanding the verdict, the court entered a take-nothing judgment in the City's favor after concluding that Lastor was not protected by the Act because the reported incident was not, in fact, a violation of law. The judgment will be reversed and a judgment rendered in Lastor's favor.

          Ordinarily, an unambiguous statute must be construed and enforced as written. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). The City argues for a literal interpretation of the explicit requirement that the reported incident be, in fact, a violation of law. See Tex. Rev. Civ. Stat. Ann. art. 6252-16a(2) (Vernon Supp. 1991). Under the City's view, Lastor was not protected by the Act because the evidence conclusively established that the incident she reported in good faith was not a violation of law.

          Departing from the strict letter of a statutory provision is necessary, however, when its literal enforcement would thwart the legislative purpose reflected by the statute as a whole. Crimmins v. Lowry, 691 S.W. 582, 584 (Tex. 1985). Unrestrained by the literal wording of its provisions, the Act as a whole clearly evidences an all-encompassing legislative intent to encourage government employees to "blow the whistle" on governmental wrongdoing by protecting from retaliation those who act in good faith. That the legislature would, on one hand, encourage employees to make good-faith reports of wrongdoing and, at the same time, jeopardize their livelihood if they happen to be wrong is incomprehensible. What could be more destructive of the legislature's purposes than to require that the employee be right on the pain of losing his job? Conscientious government employees could find scant encouragement in such an interpretation of legislative intent. An interpretation more in harmony with legislative purposes is to extend the Act's protection to employees who in good faith believe they are reporting a violation of law, regardless of whether their belief is correct.

          Our interpretation of legislative intent is buttressed by the rule that requires a statute to be interpreted, if possible, to give effect to its every word and phrase. See Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). The "good faith" requirement would be superfluous and meaningless under the City's literal interpretation of "violation of law." Logically, if an actual violation of law is reported, then even an admittedly venal intent in reporting it would not forfeit the Act's protection. The good-faith requirement can be given effect only if it protects the employee from retribution for reporting an incident that turns out not to be a violation of law. Thus, the legislature would not have included the good-faith requirement if it had intended the violation-of-law requirement to be literally interpreted.

          Consequently, "violation of law" will not be given a literal interpretation. Thus, the court erred when it concluded as a matter of law that Lastor was not protected by the Act because the incident reported was not an actual violation of law. She was entitled to a judgment based on the finding that she reported a violation of law in good faith. The first two points are sustained. Points three through five are not reached because under our interpretation we need not decide whether the incident reported was an actual violation of law. Finally, points six and seven are sustained because the court erred when it disregarded findings supported by the evidence which entitled Lastor to a judgment. See Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex. 1983).

          The take-nothing judgment in favor of the City is reversed and a judgment rendered against the City in favor of Lastor for $178,772 actual damages, $25,000 punitive damages, court costs, interest when and at the rate permitted by law, and the following attorney's fees: $50,000 through the conclusion of the trial; an additional $15,000 through final action on a motion for a rehearing of this opinion, if denied; an additional $10,000 if the City applies for a writ of error to the Texas Supreme Court; and an additional $10,000 if a writ of error is granted.

 

                                                                                 BOB L. THOMAS

                                                                                  Chief Justice

Before Chief Justice Thomas,

          Chief Justice McDonald (Retired)

          and Justice James (Retired)

Reversed and rendered

Opinion delivered and filed March 28, 1991

Publish

he testimony was not qualified in any manner as to his character of being a sweet, good person, a person who this witness could not “believe for even a minute that he would hurt” the baby.

          But the best way to understand what went on at trial and why there was no error is to review the entire record of this witness’ testimony.

HAZEL EVANS,

Having been first duly sworn, testified as follows:

 

                             THE COURT:  Have a seat, ma’am.

 

DIRECT EXAMINATION

 

BY MR. HUNT:

 

          Q.      Ms. Evans, I’m going to ask you to state your name please, for us?

          A.      Hazel Marie Evans.

          Q.      Okay.  Ms. Evans, I’m going to ask you to do something that’s a little bit difficult for folks, and that is, I’m sitting over here but it’s these 12 good folks here that have to hear what you’ve got to say.  So what I’d ask you to do is talk to them.  You can listen to me but talk to them.  Would you do that for me?

          A.      Yes, sir.

          Q.      Okay.  Tell us a little bit about yourself.  Tell us where you live and maybe where you work.

          A.      Well, my name is Hazel Evans. I’m a, uh – I started doing my CNA classes at Willing Springs Nursing Home, and I live at 920 Cleveland in east of south Waco.

          Q.      You said “CNA classes,” what’s that?

          A.      Certified nurse’s aid.

          Q.      Okay.  All right.  Great. Could you tell us how you know Rickey Harrison?

          A.      Well, I know Rickey through my son, Dedrick Evans.  They was good friends.  He was a sweet person.  He’s [sic] was a good person.  He used to stay the nights at my house.  He done watched my kids and I didn’t have a problem with him.

          Q.      Rickey stayed nights at your house?

          A.      Yes.

          Q.      Okay.  And he’d watch your kids?

          A.      Uh-huh.  He’s watched my kids before, played with them, everything.

          Q.      Okay.  And how old were your kids when Rickey was doing that?

          A.      Ooh, my babies was, like, seven and eight.

          Q.      Okay.  Rickey ever beat up on your little babies?

          A.      No, I never had that problem.

          Q.      Okay.  Did you ever see Rickey as he interacted with his own baby, Baby Rickey?

          A.      Well, I have seen him with his son.  He done brought him to my house, let me see him.  He done took him to my mom’s, let him [sic] see him, and it wasn’t a problem.

          Q.      Did he act like he liked the kid?

          A.      Yes, he loved his baby.

          Q.      Did he ever – did he ever hurt him?

          A.      No, he had not.

          Q.      Do you believe for even a minute that he would hurt him?

          A.      No.

          Q.      Okay.  Do you know Jalisa, Jalisa who is the aunt of Baby Rickey?

          A.      Yes, I do.

          Q.      Okay.  Can you describe for the members of the jury how you know Jalisa?

          A.      I used to live right next door to them at 1104 Calumet.

          Q.      Okay.  And what did you see Jalisa do?  Was she a little peaceful little girl who played with dollies or something?

          A.      No, sir.

          Q.      Describe for the members of the jury what you saw Jalisa do.

          A.      Well, it was numerous times her and my daughter got into it.  Her and my daughter had a fight.  She chased my baby with a butcher knife.

          Q.      Who chased your baby with a butcher knife?

          A.      Jalisa.  She chased my daughter, Shaquera with a butcher knife and – and plenty of times they done fought.  She was – you know, she was a child but she also was started stuff in the neighborhood.  Always fighting.  Her and my daughter stayed into it.

          Q.      How old was your daughter when that happened?

                             MR. PARKER:  Judge, we’re going to object at this time.  All of this stuff is irrelevant.

                             THE COURT:  And I sustain the objection.

                             Instruct the jury they’ll disregard the last statement of the witness for any purpose.

          Q.      (BY MR. HUNT)     How often did you observe Jalisa?  How – how – how often did you see her and know her?

          A.      Well, I stayed over there at Stella Maxi for a year and a half.

          Q.      Okay.  And Jalisa would have been how old during that time period?

          A.      Huh.  I do not know.  But I know my daughter – my daughter is 13 now, so my baby was, like, 10.

          Q.      Okay.  So how about – about how long ago was that that we’re talking about?  It was about three years ago, going on three years.

          Q.      All right.  Okay.

                             MR. HUNT:  We’ll pass the witness, Your Honor.

                             MR. PARKER:  Can we approach the bench, Your Honor.

                             THE COURT:  All right.

                             (whereupon, the Court, counsel and defendant were present in chambers)

                             THE COURT:  All right.  Now, we’re on the record outside the jury.

                             MR. PARKER:  Judge, before we ask the questions in front of the jury, we wanted to inform the Court and the defense that we believe that the defense has now opened the door to, um, questioning this witness concerning, um, her statement – her statements, the defendant was a sweet and good person.  And we would like – we believe that she’s testifying as a character witness for him, and we would therefore like to ask her if, uh, if she was aware that he had been arrested and put on probation for an assault back in 2001.  Uh, if she was aware that he had been arrested and placed on probation for assault on a public servant in 2002.  If she was aware that he had been, uh, given a citation for disrupting class in March of 2002.  Uh, just ask her if – if any of that information would change her opinion as to whether or not he was, in fact, a sweet and a good person.

                             MR. HUNT:  If I could respond to that, Your Honor.  I believe that she said around her children he was a sweet and good person.  She did not say his character in the – in the community is that of a sweet and loving person.  She described his character around her children.

                             THE COURT:  Okay.

                             MS. WALKER:  I didn’t hear her qualify it, but I just heard her say he’s a sweet and good person but it wasn’t pursuant to any question, I would admit that.

                             THE COURT:  Let – let’s go back and look at the testimony.  How hard would that be to find?

                             THE REPORTER: Okay.

                             THE COURT:  In other words, do we need to recess them until in the morning?

                             THE REPORTER:  Um, I can quick try and do a search.

                             Okay.

ANSWER:  “Well, I know Rickey through my son, Dedrick Evans.  They was good friends.  He was a sweet person.  He’s [sic] was a good person.  He used to stay the nights at my house.  He done watched my kids and I didn’t have a problem with him.

                             MR. PARKER:  Judge, it’s our contention that there was no qualification on the answer.  She says, he’s a sweet person, good person.

                             MR. HUNT:  The question I think had to do with the children, Your Honor.

                             THE COURT: Overrule the objection.  Let’s go ahead.

                             (whereupon, the following proceedings took place in the courtroom.  The Court, counsel, and defendant and jury present.)

                             THE COURT:  Go ahead.

 

CROSS-EXAMINATION

 

BY MR. PARKER:

 

Q.      Ms. Evans, you had earlier – earlier stated during your testimony for Mr. Hunt, you said that – that, uh, Rickey Lynn Harrison, Sr., is that the guy that’s seated to the right of Mr. Hunt?

A.      Uh-huh.  Yes, sir.

Q.      That he was a sweet and good person; is that correct?

A.      Yes, he was.

Q.      Okay.  And Ms. Evans, were you aware that in July of 2001, that Rickey Lynn Harrison was arrested for assault and subsequently went to juvenile for that?

A.      Yes, I was aware.

Q.      Okay.  Ms. Evans, were you aware that in – on June the 10^th of 2002, that he was adjudicated for assault on a public servant in a –

A.      No.

Q.      -- in a case here in McLennan County for an incident at Waco High School?

A.      No.

Q.      Were you aware that he had been given citations, uh, for disrupting class back in 2002?

A.      No.

Q.      Knowing all this information, Ms. Evans, do you still think he’s a sweet and good person?

A.      Yes, I do.  It’s been because he’s been at my house plenty of times.  He have never done anything that would disrespected me, never disrespected my house nor my kids.

Q.      Okay.

                   MR. PARKER:  Pass the witness, Your Honor.

                   MR. HUNT:  We have no other questions of this witness.

                   THE COURT:  You may step down.  You’re excused, ma’am.

 

RR IV, pg. 194-201.

          When the purpose of calling a witness, in context, is to provide that witness’s opinion as to the character of the defendant to commit the act – Do you believe for even a minute that he would hurt him? – the witness must be subject to cross-examination on the basis for the opinion.  The discerning reader will note that there were two objectives for using Evans as the final defense witness; to build up Harrison and to point the finger at someone else, both to be accomplished by Evans’s opinion of the persons to commit the act.

          The facts of this case are unlike other cases in which a vague reference about a person by a witness testifying on some other topic was attempted to be used to open the door to character evidence.  The trial court was very careful to make sure the testimony was not qualified as to Evans’s opinion of Harrison’s character as it related to interaction with her children.  The State approached the bench when the witness was passed.  The trial was suspended while counsel and the court reviewed the recorded testimony in chambers.  Defense counsel argued that Evans described Harrison’s character around her children.  When the testimony was read back in chambers, it was clear that the testimony was not limited in any manner.  And it must also be remembered that counsel had asked a subsequent question which called for Evans’s opinion of Harrison’s character:  “Do you believe for even one minute that he [Harrison] would hurt him [the baby]?”  RR IV, pg. 196, lines 5-6.

          The only case relied upon by the defense, Ward v. State, 591 S.W.2d 810 (Tex. Crim. App. 1978), and all the cases relied upon by the majority, Rutledge v. State, 749 S.W.2d 50 (Tex. Crim. App. 1988); Stephens v. State, 660 S.W.2d 85 (Tex. Crim. App. 1983); Nixon v. State, 653 S.W.2d 443 (Tex. Crim. App. 1983); Smith v. State, 763 S.W.2d 836 (Tex. App.—Dallas 1988, pet. ref’d); Powell v. State, 663 S.W.2d 465 (Tex. App.—Houston [1st Dist.] 1983, no pet.), hearken back to a time when there was a distinction between the admissibility of reputation-of-character evidence and opinion-of-character evidence.  Thus, for example, in Rutledge, testing the basis of the witness’s opinion testimony was not an issue because the testimony had not put the defendant’s reputation into dispute.  Thus, these cases do not stand for the proposition for which they are cited because the issue in these cases was whether the reputation regarding the defendant’s character, as distinguished from the witness’s opinion of the defendant’s character, was put into issue.  In this case, the State argued that the testimony was opinion testimony regarding Harrison’s character.  The trial court agreed.  I agree with the trial court.  Even if I did not agree with the trial court, I could not find that his decision was outside the bounds of reasonable disagreement. 

          Because Evans’s testimony put her opinion of Harrison’s character in evidence, the State was authorized to probe the reliability of that opinion, so that the jury could give it the proper weight, by inquiry into Evans’s knowledge of specific instances of conduct.  Tex. R. Evid. 405(a).  Defense counsel did not object to the non-responsiveness of the answer to his question, did not request an opportunity to clarify Evans’s testimony, did not request a limiting instruction on the use of the State’s evidence, and did not object to its unlimited use in argument by the State.  Finding no error in what the trial court did, I would affirm the judgment.

 

                                                          TOM GRAY

                                                          Chief Justice

 

Dissenting opinion delivered and filed October 19, 2005

 

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[1] Because the majority is withdrawing their prior opinion and judgment, my dissenting opinion thereto, dated July 20, 2005, is withdrawn.  While I would like to spend more time fine tuning this dissenting opinion, the 30 day requirement of Rule 50 must be complied with.  Tex. R. App. P. 50.