Jefferson County, Texas v. Ha Penny Nguyen

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00505-CV
____________________
JEFFERSON COUNTY, TEXAS, Appellant
V.
HA PENNY NGUYEN, Appellee
________________________________________________________________________
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-177,132
________________________________________________________________________
MEMORANDUM OPINION
This appeal concerns an employment dispute between Appellant, Jefferson
County (the “County”), and Appellee, Ha Penny Nguyen (Nguyen), a former
County employee. The County appeals from a Judgment rendered in favor of
Nguyen, following a jury trial wherein the jury found that Nguyen was subjected to
adverse employment actions, retaliation for protected speech, and a violation of her
1
due process rights while she was employed by the County as a clerk in the offices
of the Justices of the Peace for Precinct 8 and Precinct 1. Nguyen alleged claims
under 42 U.S.C. § 1983 for adverse employment actions she contends were taken
in violation of her First Amendment rights to free speech and freedom of
association, and then also for a denial of due process. The County contends that
there is no evidence or insufficient evidence to support the jury’s findings related
to each of Nguyen’s claims, and the County contends the trial court erred in
awarding attorney’s fees and in calculating prejudgment interest. We affirm in part,
reverse and render in part, and remand in part.
UNDERLYING FACTS
From 1991 to 2011, Nguyen was employed with the County in different
county offices. Her claims in this suit pertain solely to her employment with the
Justices of the Peace for Precinct 8 and Precinct 1.
Employment at Precinct 8
Nguyen initially began working in the County tax office in 1991. She
transferred from the tax office to work in the office of the Justice of the Peace for
Precinct 8 in 2001, where she worked as a clerk for Justice of the Peace Thurman
Bartie (Bartie or Judge Bartie). In 2002, Nguyen and Dana Graham (Graham),
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another County employee who worked as an associate court administrator, were
interviewed by and subpoenaed to testify before the Commission on Judicial
Conduct concerning complaints made against Bartie. Bartie then resigned, and
former Justice of the Peace Barbara Dorman (Dorman or Judge Dorman) replaced
Bartie on an interim basis until a new Justice of the Peace for Precinct 8 could be
elected. Tom Gillam (Gillam or Judge Gillam) won the election over several
challengers. Gillam began his service as the Justice of the Peace in Precinct 8 in
April of 2004.
At trial, Rick Bienvenue (Bienvenue), one of the candidates who lost the
election to Gillam, testified that, prior to the election, he overheard Bartie tell an
assemblage of the candidates that “[Bartie] thought that the staff that’s in the J.P.
office really stabbed him in the back[,]”and that “[n]o matter what you should get
rid of these people.” Bienvenue testified that he was alarmed by what he heard,
thinking that if he won the election, he might not have anyone to work with him,
and he later spoke with Judge Dorman about his concerns. Graham testified that
Bienvenue came to the Precinct 8 office and informed them that “Judge Bartie was
on the sidewalk . . . stating that -- to some of the candidates, whoever won, that
Penny and Dana had to go.” Nguyen testified that after Bienvenue spoke to Judge
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Dorman, Nguyen was afraid that she might lose her job. Bartie denied making the
statement. Judge Gillam testified that he had not heard such a statement, nor did he
know that Bienvenue had met with members of the Precinct 8 staff regarding the
comments Bartie allegedly made. Bartie and Gillam both testified that they were
not friends or political allies.
Gillam stated that although he knew his employees were “at-will,” he told
his employees (including Nguyen and Graham) that he would not take action
against an employee except upon established good cause. Graham also testified
that Judge Gillam told the Precinct 8 employees that they need not worry and that
their jobs were safe.
According to Graham, on or about the second day after Gillam took office, a
copy of Graham’s testimony from Bartie’s Judicial Conduct Commission hearing
was delivered by mail to Gillam. A few weeks later, on or about June 1, 2004,
Gillam terminated Graham’s employment as chief clerk. Gillam then asked
Nguyen to apply to fill the position vacated by Graham, but Gillam hired
Antoinette Henry for the position in July 2004. After Graham was terminated by
Gillam, Nguyen started keeping a diary of events occurring in Judge Gillam’s
office.
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Judge Gillam testified that he observed what he regarded as certain problems
with Nguyen’s work in his office, and on or about August 26, 2004, he presented
Nguyen with a “Disciplinary Memo” outlining various performance deficiencies he
had noted. The deficiencies included challenging his decisions in open court,
releasing information in contravention to his instructions, making certain errors in
her work, and spending an excessive amount of time “in other offices on non job-
related issues[.]” The memo also stated that
[t]his memo is intended to serve as notice to you that your
continued employment with Justice Precinct 8 is in jeopardy based on
your continued inability/unwillingness to follow directions and meet
performance expectations. . . .
....
These kinds of errors, challenges to my authority and disrespect
will not be tolerated. . . . I believe that you have the ability to work in
the manner that I expect. Should any conduct of the type described in
this memo reoccur, it will lead to further disciplinary action, up to and
including termination of your employment with Justice Precinct 8.
Nguyen testified that she refused to sign the memo because she did not agree with
it.
According to the record, on or about September 3, 2004, Nguyen presented a
grievance to Cary Erickson (Erickson), Director of Human Resources for the
County. Her grievance stated:
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I am Vietnamese of origin, American by choice and a citizen by law. I
am a friend and former co-worker of Dana Graham. I testified against
Thurman Bartie. Tom Gillam got even and fired Dana Graham and
replace [sic] her with a black person, and now Gillam is harassing me.
He has given a warning letter/memo to me on August 27, 2004, which
is undeserved and hurts my career. I am denied breaktime. I have
asked Gillam and he refers me to Antoinette Henry. But I have been
training her on procedures and policies and she doesn’t know about
polices or law on breaktime.
On or about September 8, 2004, Nguyen met with Erickson to discuss the matter,
and she covertly recorded their conversation. 1 Nguyen told Erickson she thought
“the whole thing started when Bartie . . . got suspended[,]” and she also told him
she had heard a rumor that Bartie and Gillam had “made a deal . . . to get rid of”
Graham and Nguyen because they had testified against Bartie; however, she
declined to tell Erickson where she heard that rumor. Erickson testified that, prior
to Graham’s termination, Graham also told Erickson she thought her job was in
jeopardy because of her testimony against Bartie. On October 1, 2004, Gillam
wrote a warning letter to Nguyen, advising her that her performance “has to
improve.” Nguyen’s husband, who worked for County Commissioner Mark
Domingue (Domingue), told Domingue that his wife was worried about her job.
1
Nguyen testified that the tape recording was destroyed during Hurricane
Ike. But she made a transcript of the recording before it was destroyed, and a
transcript of the recording was entered into evidence at trial.
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Domingue testified that he worked with Human Resources “to try to save
[Nguyen’s] job and get her moved to a different department.” Erickson testified
that he wrote Nguyen a letter on October 19, 2004, regarding a job offer to work in
Mosquito Control. That same day, Nguyen gave Gillam a resignation letter, in
which she wrote:
Cary Erickson had stated that you are likely to fire me in the
near future because of the harassment which I have suffered as a result
of Judge Bartie. I resign to save my career and reputation. I
understand that my last official day is Friday, October 22, 2004.
Employment at Mosquito Control and Precinct 1
Nguyen started working for Mosquito Control on October 20, 2004, at a
reduced salary. Her starting salary at Mosquito Control was $3,617 less per year
than what she made while working at Precinct 8. Nguyen worked for Mosquito
Control for about two years, from October of 2004 until sometime in 2006, when
Graham told her there was a job opening to work for Justice of the Peace Vi
McGinnis (McGinnis or Judge McGinnis) in Precinct 1, where Graham was
already working. Nguyen interviewed and she was hired to work as a clerk in
Precinct 1.
Nguyen testified that she had a good experience working in Judge
McGinnis’s office from 2006 through 2009. However, near the end of 2009,
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Annette Reedy (Reedy), McGinnis’s chief clerk, noticed an envelope on Nguyen’s
credenza, which was pre-stamped, and it had Nguyen’s own address label placed
over the Court’s return address. The envelope was addressed to Nguyen’s brother
in Hawaii. Reedy made a copy of the envelope, but did nothing further at that time.
According to a statement from Reedy that was in Nguyen’s personnel file, Reedy
did not tell Judge McGinnis about the envelope because at that time Reedy felt
everyone in the office had turned against Reedy.
About one year later, Reedy told McGinnis about the envelope Reedy had
found on Nguyen’s credenza, and McGinnis instructed Reedy to go through
Nguyen’s desk to see if there were any other pre-stamped envelopes that were
being used by Nguyen for Nguyen’s personal use. When Reedy looked through
Nguyen’s desk, Reedy discovered a note from the nurse practitioner with the
Jefferson County Employee Health Department, and it appeared that Nguyen had
altered the note to create an excused absence slip for Nguyen’s son; Reedy also
found a fax transmittal sheet indicating Nguyen had faxed the excuse to her son’s
school in 2007. Nguyen testified that neither Erickson nor McGinnis ever
discussed with Nguyen what Reedy found, and Nguyen did not learn about
Reedy’s statement until a week before the trial.
8
At trial, Nguyen admitted that she used the office pre-stamped envelope
because she had run out of envelopes, and she testified that she was just going to
“use it until [she] was able to replace it.” Nguyen also admitted to having used the
nurse practitioner’s letterhead to falsify an excuse for her son, and she admitted
that she knew it was a felony to do so. Erickson testified that McGinnis raised
these issues concerning Nguyen with the County’s Human Resources office during
the last month or so before McGinnis’s term ended.
Nguyen testified that, in October 2010, she was suspended by McGinnis
without pay for three days due to a disagreement she had with a part-time co-
worker, who was also a “close friend” of Reedy. While suspended, Nguyen
received a call from Graham, and Nguyen went to Graham’s house. Nguyen
learned from Graham that McGinnis had instructed Graham not to talk to Nguyen
about what had happened at work. Nguyen also testified that, upon her return from
suspension, she admitted to McGinnis that she had lied when she was asked about
and denied going to Graham’s house. Nguyen and Graham were both suspended.
Judge McGinnis’s term ended in December 2010, and Nancy Beaulieu
(Beaulieu or Judge Beaulieu) was elected as the Justice of the Peace for Precinct 1.
Erickson testified that “Beaulieu chose her own staff” and Nguyen “was just not
9
rehired.” Neither Judge McGinnis nor Judge Beaulieu testified at trial. Nguyen’s
employment with the County ended in January 2011. Nguyen began working for
Orange County in March 2011.
Nguyen’s Lawsuit
Nguyen filed an Original Petition on June 7, 2006, naming the County,
Gillam, and Bartie as defendants. In her Original Petition Nguyen asserted a
retaliation claim under 42 U.S.C. § 1983 for what she described as retaliation for
the exercise of free speech for reporting violations of Bartie’s “repeated acts of
misconduct.” Nguyen also included what she described as a claim under “the
Texas constitution[,]” claiming that the defendants had acted to deprive her of her
protected property interest in her employment at Precinct 8. Nguyen’s Original
Petition described and complained about her employment with Precinct 8, but she
did not mention any other County job or Precinct 1. Nguyen’s Original Petition
also contained the following allegations:
52. Jefferson County has made objective representations to the
public and its employees that employees exercising protected and/or
legal rights will not be retaliated against for exercising those rights.
Yet, Jefferson County has retaliated and/or permitted the retaliation
against Ms. Nguyen for exercising those recognized rights.
53. The County should be estopped from denying its promised
protections to Nguyen.
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54. Further, the County’s representations constitute
constitutionally recognized and protected property and/or liberty
interests to Ms. Nguyen.
55. Nguyen has been deprived of those protected interests
without due course/process of law.
56. Nguyen has been subjected to unconstitutional and illegal
retaliation and deprivation of protected interests . . . .
Seven years later, on June 4, 2013, Nguyen’s case went to trial before a jury.
On the second day of the jury trial, counsel for the County advised the trial court
that late the previous evening, he received by fax a copy of a document styled as
Nguyen’s “First Amended Petition.” The County advised the court that it
“appear[ed] to add a cause of action based on the 14th Amendment [of the U.S.
Constitution] that was not pled in this case for the nine [sic] years this case has
been pending[.]” The County objected to the untimely amended petition, claimed
surprise, and argued that Nguyen had not obtained leave of court to file the
amended pleading. Nguyen responded that the Texas Rules permit trial
amendments, that she had already pleaded a claim for due process under the Texas
Constitution, and that the only difference between a due process claim under the
U.S. and Texas Constitution is the remedy available. According to the reporter’s
record, the trial judge allowed Nguyen to proceed with the amended pleading;
however, the First Amended Petition does not appear in the clerk’s record on
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appeal. Nevertheless, the record does reflect that the defendants then filed a First
Supplemental Answer, asserting that the claims in Nguyen’s First Amended
Petition were barred by the applicable statutes of limitations. On the fifth day of
trial, the parties entered into a stipulation regarding Gillam, and Nguyen dismissed
her claims against Gillam with prejudice. 2 The stipulation was read to the jury and
filed the same day, and provided as follows:
At all times material hereto Tom Gillam, serving as Justice of
the Peace Precinct 8 for Jefferson County is and has been respectively
the final authority and or “policymaker” for Jefferson County in the
matters of personnel decisions in the Justice of the Peace Precinct 8,
including the decisions to employ persons to serve in budgeted
positions, terminate the employment of persons employed by the
Justice of the Peace Precinct 8 office, promotion and demotion of
persons employed by the Justice of the Peace Precinct 8; specifically
as applied to Penny Nguyen.
[]Plaintiff dismisses with prejudice all claims against Tom
Gillam, individually.
After the parties rested, and prior to the charge being submitted to the jury,
the County made three objections to the proposed jury charge: (1) the County
argued that issues under the Fourteenth Amendment were not brought until the trial
2
The stipulation does not include a reference to defendant Bartie, and the
record includes no other pleading dismissing Bartie from the suit. However, no
issue regarding Bartie was submitted to the jury; no judgment was entered against
Bartie; and none of the parties raise an issue regarding Bartie’s liability, if any, on
appeal.
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began, the pleading asserting claims under the Fourteenth Amendment had not
been admitted into the record, and there were no pleadings to support submission
of those claims to the jury; (2) the County argued that the claims relating to
Nguyen’s employment with Precinct 1 were based on events that took place more
than two years earlier, were not raised until the First Amended Petition, and were
outside the applicable statute of limitations; and (3) the County argued that no
evidence supported the submission of mental anguish damages.3 The court
overruled the County’s objections.
The case was submitted to the jury with separate subparts for each issue
requiring the jury to answer separately for Precinct 8 and Precinct 1 pertaining to
the alleged adverse employment actions and First Amendment retaliation claim,
and the alleged due process claim. Instructions were given regarding the liability
issues and the damage issues. The instructions pertaining to the liability issues
were as follows:
INSTRUCTIONS
Penny Nguyen claims that the Defendant(s), while acting
“under color of state law,” intentionally deprived her of rights secured
to her under the Constitution of the United States of America[.]
3
The record does not include a proposed jury charge from either party.
13
Penny Nguyen claims that while the Defendant(s) were acting
under color of authority of state law and/or Jefferson County, Texas
intentionally violated Penny Nguyen’s Constitutional rights when they
allegedly took adverse employment actions against her. Penny
Nguyen claims that her exercise of her right to free speech under the
First Amendment to the Constitution of the United States, and her
rights to due process under the Fourteenth Amendment of the
Constitution of the United States have been infringed.
....
You are instructed as a matter of law that Penny Nguyen
exercised activities protected by the First Amendment to the
Constitution of the United States when;
1. She testified in 2002 against Thurman Bartie, before the
Judicial Commission pursuant to subpoena;
2. When she was represented by an attorney in matters of her
employment by Jefferson County;
3. When she associated with Dana Graham outside the
workplace.
Penny Nguyen must prove by a preponderance of the evidence
that the exercise(s) of protected activities were substantial or
motivating factors [of] any adverse employment actions taken against
her in order to prove she was deprived of rights secured to her by the
Constitution of the United States.
Further, Penny Nguyen must prove by a preponderance of the
evidence that but for her exercise of protected activities Defendant(s)
would not have taken adverse employment actions against Penny
Nguyen.
You are instructed that an “adverse employment action,” in
context of [a] public employee’s First Amendment retaliation action is
one that a reasonable employee would find to be materially adverse,
i.e., the employer’s actions must be harmful to the point that they
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could well dissuade a reasonable worker from making or supporting a
charge of discrimination under federal law. You are instructed as a
matter of law that constructive discharge constitutes an adverse
employment action.
Penny Nguyen claims that while employed with Judge Tom
Gillam she was subjected to adverse employment actions, including
constructive discharge from her employment in the Office of the
Peace Precinct 8, Jefferson County. An adverse employment action
includes constructive discharge. To prove her claim of constructive
discharge, Penny Nguyen must show that the Defendants[’] illegal
acts made or allowed working conditions to become so difficult that a
reasonable person in the [sic] Penny Nguyen’s position would feel
compelled to resign. Demotion or reassignment to a job with lower
pay or lower status may, depending on the aggravating nature of the
individual facts and circumstances, establish the claims of
constructive discharge. An employee does not need to prove an
employer subjectively intended to force the employee to resign.
A constitutionally “protected property interest” arises from state
law, or agreements between the parties, such as Judge Tom Gillam’s
specific agreement with his employees that he would not subject them
to disciplinary actions except upon established good cause.
Penny Nguyen possessed a protected property interest in her
employment by Jefferson County in that she had a reasonable basis to
believe that she would not be subjected to adverse employment
actions except for established good cause.
When a person possesses a Constitutionally protected “property
interest,” she cannot be deprived of that interest except upon due
process of law.
Due process requires fair notice of reasons for the proposed
deprivation and a meaningful hearing before a reasonably fair and
impartial officer. Due process in the workplace does not require a
15
trial, only fundamentally fair notice of the charges and [an]
opportunity to rebut those charges.
Due Process also requires that a governmental employer’s
investigation of the charges be reasonably accurate and complete.
The specific elements of due process include the following:
1. Reasonably advance notice of the charges including the basis
for the charge and evidence supporting the proposed deprivation.
2. A meaningful and fair hearing where the employee is able to
be represented, confront witnesses against her, and present evidence
in her own favor.
3. To a fair and un-partial decision maker.
The first question asked the jury to answer “yes” or “no” to the following:
“Do you find by a preponderance of the evidence that Penny Nguyen was
subjected to adverse employment actions while employed as a clerk in Judge Tom
Gillam’s Precinct 8 Office, in violation of rights secured to her by the Constitution
of the United States[?]” The second question asked the jury to answer “yes” or
“no” to the following: “Do you find by a preponderance of the evidence that Penny
Nguyen’s exercise of protected activity was a substantial or motivating factor for
the adverse employment actions to which she was subjected as a clerk in Judge
Tom Gillam’s Precinct 8 Office[?]” Question 2 was not conditioned upon an
affirmative response to Question 1. Questions 3 and 4 asked similarly-framed
questions regarding Precinct 1, and question 4 was not conditioned on an
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affirmative finding to question 3. Question 5 then asked the jury: “Do you find by
a preponderance of the evidence that Penny Nguyen was denied elements of due
process before she was subjected to employee discipline by Jefferson County in: A.
Precinct 8 . . . B. Precinct 1.” Question 6 asked the jury to assess damages; and it
had separate blanks for each precinct, including subparts for mental anguish in the
past; mental anguish in the future; loss of earnings in the past; loss of earnings in
the future; loss of retirement, health, medical and life insurance in the past; and
loss of retirement, health, medical and life insurance in the future.
The jury answered “yes” to Questions 1 through 5, finding liability against
the County as to both Precinct 8 and Precinct 1. The jury awarded damages to
Nguyen in the amount of $75,000 as to Precinct 8 and $75,000 as to Precinct 1 for
mental anguish in the past, but the jury awarded zero damages for mental anguish
in the future; the jury awarded damages to Nguyen in the amount of $75,000 as to
Precinct 8 and $75,000 as to Precinct 1 for past loss of earnings, but the jury
awarded zero damages for future loss of earnings; and the jury awarded damages to
Nguyen in the amount of $50,000 as to Precinct 8 and $50,000 as to Precinct 1 for
past loss of retirement, health, medical and life insurance benefits, but the jury
17
awarded zero damages for future loss of retirement, health, medical and life
insurance benefits. The unanimous jury verdict was then filed with the trial court.
On the same date the jury returned its verdict, Nguyen filed a Motion for
Leave to File Trial Amendment, which the court granted. Nguyen then filed her
Second Amended Petition, in which she asserted claims against Precinct 8 and
Precinct 1. In particular, regarding her claims against Precinct 1, she claimed that
she was terminated from Precinct 1 in retaliation for her exercise of protected
speech and she alleged that her “due process rights were violated when she was
terminated from . . . Precinct 1.”
On August 21, 2013, Nguyen filed a Motion for Entry of Final Judgment
Subject to Award of Attorney’s Fees and a Motion for Approval of Attorney’s
Fees. On August 23, 2013, the County filed a Motion for Judgment Non Obstante
Veredicto, wherein the County argued that there is no evidence to support the
jury’s answers finding liability against the County and awarding damages; all the
claims and damage findings concerning Precinct 1 are “barred by limitations”; and
jury question 5A “does not properly reflect the law that the Plaintiff was an at-will
employee[.]” The County did not address Nguyen’s motion for attorney’s fees in
its motion for JNOV.
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The Court entered a Final Judgment for Nguyen awarding a total of
$620,531.28, which included actual damages of $400,000 together with
prejudgment interest. The trial court’s judgment states that it calculated the
prejudgment interest at 5% from October 19, 2004 to the date of the judgment. The
judgment also awarded Nguyen “[r]easonable and necessary attorney’s fees in the
amount of $72,300.00[,]” post judgment interest, and court costs. The County
timely filed its notice of appeal.
SUMMARY OF ISSUES ON APPEAL
The County articulates fourteen issues on appeal and contends that: (1)
Nguyen’s causes of action and the submission in the jury charge as to the alleged
due process violations under the U.S. Constitution are barred by the two-year
statute of limitations as to both Precincts 1 and 8; (2) all of Nguyen’s causes of
action and the submission in the jury charge of any issues as to her employment in
Precinct 1 are barred by the two-year statute of limitations; (3) Nguyen’s causes of
action and the submission to the jury as to her employment in Precinct 1 are barred
by her being terminated from continuing into the term of a newly-elected official
on the basis of either or both good cause or her at-will employment, and there is no
evidence or insufficient evidence to support these causes of action; (4) Nguyen has
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no cause of action for constructive discharge as a basis for an “adverse
employment action” because her status was always that of an at-will employee, she
failed to obtain any fact finding that there was any constructive discharge, and she
was not actually discharged from Precinct 8, but only voluntarily transferred to a
different county department; (5) Nguyen’s claims for damages for retirement
benefits and the submission of jury question 6(d) are barred by her failure to prove
she was entitled to such benefits because she was ineligible for retirement, and that
there is no evidence or insufficient evidence to support any such damages; (6)
Nguyen is not entitled to mental anguish damages because she failed to prove any
physical injury or sufficient impact, and that there is no evidence or insufficient
evidence for such damages; (7) there is no evidence or insufficient evidence to
support the jury’s finding in jury question 6(c) concerning Nguyen’s alleged loss
of earnings; (8) Nguyen’s claims that pertain to an alleged violation of a property
or liberty interest are not viable because Nguyen was an “at-will” employee, and
there is insufficient evidence or no evidence to support the jury’s finding; (9)
Nguyen has failed to present any evidence or there is insufficient evidence of any
“policy” of Jefferson County that caused the alleged adverse employment actions,
Nguyen has waived her cause of action by failing to obtain a jury finding of a
20
policy, and the parties’ stipulation that Gillam is the policymaker for Jefferson
County in Precinct 8 does not identify the offending policy and does not apply to
the one-half of Nguyen’s damages that would be attributable to Precinct 1; (10)
money damages are not allowed for violations of the Texas Constitution; (11) there
is no evidence or insufficient evidence that Nguyen’s “at-will” status was ever
altered or enhanced; (12) there is no evidence or insufficient evidence to support
the jury’s affirmative response to each of the jury questions; (13) it was error for
the trial court to fail to grant some or all of Appellant’s Motion for JNOV; and (14)
there is no evidence and no fact finding in the record to support the judgment that
Jefferson County is liable for Nguyen’s attorney’s fees and that the trial court erred
in its calculation of prejudgment interest.
PRESERVATION OF ERROR
To preserve error for appeal, the movant must make a timely request to the
trial court stating the specific grounds for the ruling desired, if the grounds are not
obvious from the context, and the movant must obtain a ruling on the requested
relief. See Tex. R. App. P. 33.1. As a general rule, non-jurisdictional complaints
will be waived unless the party includes the complaints in a timely objection. See
Tex. R. Civ. P. 274; Wackenhut Corr. Corp. v. De La Rosa, 305 S.W.3d 594, 616
21
(Tex. App.—Corpus Christi 2009, no pet.), overruled on other grounds by Zorrilla
v. Aypco Constr. II, LLC, No. 14-0067, 2015 Tex. LEXIS 555, at ** 27-35 (Tex.
June 12, 2015).
A motion for new trial is a prerequisite to a civil complaint challenging the
factual sufficiency of the evidence supporting a jury finding. Tex. R. Civ. P.
324(b)(2). The motion for new trial must state the factual sufficiency complaints
with sufficient specificity to make the trial court aware of the complaints, unless
the specific grounds are otherwise apparent from the context. See, e.g., Halim v.
Ramchandani, 203 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.] 2006, no
pet.); see also Tex. R. App. P. 33.1(a)(1)(A). Challenges to the legal sufficiency of
the evidence are either “no evidence” challenges or “matter of law” challenges,
depending on which party bore the burden of proof at trial. Raw Hide Oil & Gas,
Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988,
writ denied). When a party challenges the legal sufficiency of the evidence to
support an adverse finding on which he did not have the burden of proof at trial,
the party must demonstrate that there is no evidence to support the adverse finding.
See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 318 S.W.3d 194, 215 (Tex.
2011). A no-evidence point of error is preserved for appellate review if the
22
appellant raised the issue through one of the following: (1) a motion for directed
verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an
objection to the submission of the question to the jury; (4) a motion to disregard
the jury’s answer to a vital fact question; or (5) a motion for new trial. See Cecil v.
Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).
In a legal sufficiency review, we must credit favorable evidence if
reasonable jurors could and disregard contrary evidence unless reasonable jurors
could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is
legally sufficient if it would enable fair-minded people to reach the verdict under
review. Id. “A legal sufficiency challenge will be sustained when the record
confirms either: (a) complete absence of a vital fact; (b) the court is barred by rules
of law or of evidence from giving weight to the only evidence offered to prove a
vital fact; (c) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact.”
Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (citing Keller, 168
S.W.3d at 819).
Objections to a jury charge should be made before the charge is read to the
jury. See Tex. R. Civ. P. 272; Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 873
23
(Tex. 1973) (as a general rule, the failure to object before the charge is read to the
jury waives the complaint on appeal). Where there are no objections to the jury
charge, we will measure the legal sufficiency of the evidence by the charge as
submitted. See Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 & n.30 (Tex.
2005) (citing to Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001),
City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000), and Osterberg v.
Peca, 12 S.W.3d 31, 55 (Tex. 2000)).
TITLE 42 U.S.C. § 1983
Section 1983 provides, in relevant part, that
[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law. . . .
42 U.S.C. § 1983. We apply federal substantive law and Texas state procedural law
when reviewing a claim brought under a federal statute. In re Global Sante Fe
Corp., 275 S.W.3d 477, 485 (Tex. 2008) (holding that when a state court hears a
claim brought under a federal statute, the state court follows state procedural law
and federal substantive law); Leo v. Trevino, 285 S.W.3d 470, 478 (Tex. App.—
Corpus Christi 2006, no pet.) (federal substantive law applied when the state court
24
reviews a claim brought under 42 U.S.C. § 1983). Section 1983 “is not a source of
substantive rights; instead it creates a cause of action against state actors for
enforcement of those rights.” Escobar v. Harris Cnty., 442 S.W.3d 621, 629 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (citing Graham v. Connor, 490 U.S. 386,
393-94 (1989), and City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.
1994)).4
Although a State is not a “person” under section 1983, local governing
bodies such as a county may be sued under the statute. See Howlett v. Rose, 496
U.S. 356, 375 (1990); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)
4
Sovereign immunity does not bar a section 1983 claim against a county.
Dallas Cnty. v. Gonzales, 183 S.W.3d 94, 109 (Tex. App.—Dallas 2006, pet.
denied) (“The County has no sovereign immunity from a section 1983 claim.”)
(citing Howlett v. Rose, 496 U.S. 356, 375 (1990)). Therefore, a party who brings a
section 1983 claim against a county need not establish a waiver of sovereign
immunity. Gonzales, 183 S.W.3d at 109. Nevertheless, qualified immunity may be
an affirmative defense to a section 1983 claim. Escobar v. Harris Cnty, 442
S.W.3d 621, 629 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In this matter, the
County and Defendant Tom Gillam each included a “Sovereign/Governmental
Immunity” and “Official and/or Qualified Immunity” defense in their Original
Answer. However, the County does not include any issue on appeal regarding
immunity and we find no subject matter jurisdictional issue exists in this matter.
We also note that all claims against Gillam were dismissed and Gillam is not a
party to this appeal. See Schultea v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995)
(qualified immunity may extend to governmental officials performing
discretionary functions “‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
25
(“Local governing bodies . . . therefore, can be sued directly under § 1983 . . . .”);
Crane v. Texas, 759 F.2d 412, 420-21 (5th Cir. 1985) (rejecting a claim that a
county was not a “person” for purposes of a claim under 42 U.S.C. § 1983).
However, a local government or county cannot be held liable under section 1983
solely on a theory of respondeat superior, merely because it employs a tortfeasor.
See Monell, 426 U.S. at 691; Cnty. of El Paso v. Dorado, 180 S.W.3d 854 (Tex.
App.—El Paso 2005, pet. denied). The plaintiff who files a section 1983 claim
against a county must allege that she has been deprived of a federally protected
right, or the county is not displaced of its sovereign immunity. Dallas Cnty. v.
Gonzales, 183 S.W.3d 94, 110 (Tex. App.—Dallas 2006, pet. denied).
Furthermore, the plaintiff must prove by a preponderance of the evidence that her
deprivation of the constitutionally protected right was the result of an official
policy or custom, “whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy[.]” See Monell, 436 U.S. at 694. A
party need not exhaust state judicial or administrative remedies as a prerequisite to
bringing an action under section 1983. See Patsy v. Bd. of Regents, 457 U.S. 496,
500 (1982).
26
Section 1983 provides a remedy for violations of federal constitutional and
federal statutory rights. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)
(Section 1983 is “a method for vindicating federal rights elsewhere conferred by
. . . the United States Constitution and federal statutes . . . .”); Carbonell v. La.
Dep’t of Health & Human Res., 772 F.2d 185, 188 (5th Cir. 1985) (Section 1983
provides “a remedy for the vindication of other federal statutory or constitutional
rights.”); Gonzales, 183 S.W.3d at 110 (to make a section 1983 claim, plaintiff
must plead a cause of action implicating deprivation of a federal right); City of
Fort Worth v. Robles, 51 S.W.3d 436, 433 (Tex. App.—Fort Worth 2001, pet.
denied) (“section 1983 . . . provides a remedy for federal rights established
elsewhere.”). For example, an employee might assert a section 1983 claim for
deprivation of one of the rights afforded in the Bill of Rights or as protected under
the substantive component of federal due process. However, an employee may not
use section 1983 to bring a claim for a violation of the Texas Constitution. See
Bookman v. Shubzda, 945 F. Supp. 999, 1001 n.3 (N.D. Tex. 1996).
An employee’s at-will status does not bar a claim under section 1983 for
First Amendment retaliation. See Cabrol v. Town of Youngsville, 106 F.3d 101,
108 (5th Cir. 1997) (“An at-will public employee may not be discharged for
27
exercising his First Amendment right to freedom of expression.”); Jett v. Dallas
Indep. Sch. Dist., 798 F.2d 748, 757-58 (5th Cir. 1986) (A public employee may
recover “for resulting injuries if he was reassigned in retaliation for protected
speech even though he does not have a protected property interest in his former
position.”) (citing Mt. Healthy Cnty. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)); cf. Perry v. Sindermann, 408 U.S. 593, 597-98 (1972) (state college
teacher’s lack of a contractual or tenure “right” to re-employment is immaterial to
his free speech claim). Nevertheless, the question of whether or not an employee
has a property right in continued employment is determined with reference to state
law. White v. S. Park Indep. Sch. Dist., 693 F.2d 1163, 1166 (5th Cir. 1982);
Thomas v. Bd. of Trs. of Galveston Indep. Sch. Dist., 515 F. Supp. 280, 285-87
(S.D. Tex. 1981).
“‘For well over a century, the general rule in this State, as in most American
jurisdictions, has been that absent a specific agreement to the contrary,
employment may be terminated by the employer or the employee at will, for good
cause, bad cause, or no cause at all.’” Sawyer v. E.I. du Pont de Nemours & Co.,
430 S.W.3d 396, 399 (Tex. 2014) (quoting Montgomery Cnty. Hosp. Dist. v.
Brown, 965 S.W.2d 501, 502 (Tex. 1998)). Therefore, an at-will employee does
28
not have a property right or interest in his or her continued employment. See
Greenway v. Roccaforte, No. 09-08-00529-CV, 2009 Tex. App. LEXIS 8290, at
**13-15 (Tex. App.—Beaumont Oct. 29, 2009, pet. denied) (mem. op.); Cote v.
Rivera, 894 S.W.2d 536, 541 (Tex. App.—Austin 1995, no writ). General
comments or statements that an employee will not be terminated except for “good
cause” do not override the at-will employment relationship, nor does it establish a
vested property interest in continued employment when there is no agreement on
what the terms encompass. See Brown, 965 S.W.2d at 502-03 (an employer’s
general assurances do not modify at-will employment absent “‘definite and
specific promises by the employer sufficient to substantively restrict the reasons
for termination.’”) (quoting Hayes v. Eateries, Inc., 905 P.2d 778, 783 (Okla.
1995)). However, at-will employment may be modified by specific agreement or
through civil service systems. See Cnty. of Dallas v. Wiland, 216 S.W.3d 344, 348
(Tex. 2007). The employee bears the burden to put forth evidence to overcome the
presumption that employment is at-will. See Dworschak v. Transocean Offshore
Deepwater Drilling, Inc., 352 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (“It is the employee’s burden to prove that the presumed at-will
relationship was altered.”); Dorado, 180 S.W.3d at 867 (stating that a plaintiff
29
bringing a claim under 42 U.S.C. § 1983 must prove deprivation of a constitutional
or federal right).
STATUTE OF LIMITATIONS
In its first issue on appeal, the County argues that Nguyen’s due process
claims, if any, are barred by the applicable two-year statute of limitation as to both
Precinct 8 and Precinct 1. In its second issue, the County argues that all of
Nguyen’s claims pertaining to Precinct 1 are barred by the applicable two-year
statute of limitations.
Nguyen argues that Nguyen’s allegations concerning Precinct 1 are “mere
pleading amendments” that do not implicate the statute of limitations, that
limitations is an affirmative defense requiring pleading and proof for which the
County had the burden of proof, and that the County failed to move for a judgment
on this issue.
The County first objected to Nguyen’s amended petition and the addition of
her claims being “time-barred” on the second day of the trial, when the County
alerted the trial court that it had received an amended petition adding a claim for
events that related to Precinct 1 and adding a federal due process allegation. The
County filed Defendants’ First Supplemental Answer wherein it asserted that
30
[t]he claims asserted by [Nguyen] for the first time in her First
Amended Petition are barred by the two-year statute of limitations as
a matter of law. The allegations concern events that occurred in
October of 2010 up to January of 2011, when she was terminated by
Hon. Nancy Beaulieu, Justice of the Peace, Precinct 1. These claims
were asserted for the first time on June 3, 2013, more than two years
after the alleged events.”
The County also objected to the jury charge on the basis of the statute of
limitations, and it asserted that a portion of Nguyen’s claims were barred by the
statute of limitations in the County’s post-trial motion for a JNOV.
A federal claim for a violation of civil rights is governed by the state statute
of limitations that is most analogous to the federal claim being raised. See Upton
Cnty. v. Brown, 960 S.W.2d 808, 815 (Tex. App.—El Paso 1997, no pet.). As a
general rule, “constitutional claims that arise in Texas under the Texas Constitution
and the United States Constitution, including section 1983 claims, are burdened by
Texas’s two-year tort statute of limitations.” Nickerson v. Tex. Dep’t of Crim.
Justice-Institutional Div., No. 09-10-00091-CV, 2011 Tex. App. LEXIS 5341, at
*4 (Tex. App.—Beaumont July 14, 2011, no pet.) (mem. op.) (citing Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2010)); see also Wallace v.
Kato, 549 U.S. 384, 387-88 (2007) (holding that the statute of limitations for a
section 1983 claim is governed by the personal injury tort statute of limitations of
31
the state in which the cause of action arose); Piotrowski v. City of Houston, 237
F.3d 567, 576 (5th Cir. 2001) (The statute of limitations for a section 1983 claim is
determined by the general statute of limitations for personal injury claims in the
forum state.); Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993) (The Texas two-
year statute of limitations applies to a claim under section 1983 for alleged denial
of “liberty and property without due process of law[.]”).
Unlike the selection of the applicable statute of limitations, which is
determined by reference to state law, the accrual of a section 1983 claim is a
question of federal law. Wallace, 549 U.S. at 388; Watts v. Graves, 720 F.2d 1416,
1423 (5th Cir. 1983); Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980);
Ogletree v. Glen Rose Indep. Sch. Dist., 314 S.W.3d 450, 454 (Tex. App.—Waco
2010, pet. denied). A cause of action accrues when “‘the plaintiff knows or has
reason to know of the injury which is the basis of the action.’” Brown v.
NationsBank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999) (citing Moore v.
McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994)).
Assertion of a limitations defense is an affirmative defense. See Tex. R. Civ.
P. 94. The party who asserts a limitations defense bears the burden to plead, prove,
and secure findings to support the defense. See Woods v. William M. Mercer, Inc.,
32
769 S.W.2d 515, 517 (Tex. 1988) (the party who asserts limitations as an
affirmative defense bears the burden of proof). This burden includes establishing
when the plaintiff’s cause of action accrued. See Prestige Ford Garland Ltd.
P’ship v. Morales, 336 S.W.3d 833, 836 (Tex. App.—Dallas 2011, no pet.).
When, as here, the jury was not asked to determine when the cause of action
accrued for purposes of supporting a limitations defense, the defense is waived
unless the evidence conclusively established the date of accrual. See Tex. R. Civ.
P. 279; Woods, 769 S.W.2d at 517; Prestige Ford, 336 S.W.3d at 836. An accrual
date is conclusively established if reasonable minds could not differ about the
conclusion to be drawn from the facts. See Holland v. Lovelace, 352 S.W.3d 777,
791 (Tex. App.—Dallas, 2011, pet. denied).
It is undisputed that Nguyen stopped working at Precinct 8 on October 19,
2004, and that she filed her Original Petition on June 7, 2006. Nguyen left Precinct
8 in 2004 and worked for Mosquito Control for about two years. Nguyen then
began working at Precinct 1 in 2006, where she remained until January of 2011,
when the new Justice of the Peace took office and then chose not to keep Nguyen
as part of the staff. In Nguyen’s Second Amended Original Petition she contends
that the County terminated her employment at Precinct 1 as part of an on-going
33
effort to retaliate against her for testifying against Bartie.
After examining the record before us, we conclude that the evidence at trial
conclusively established the accrual date for Nguyen’s claims, if any, as to Precinct
8 and as to Precinct 1. The accrual date for her claims for adverse employment
actions at Precinct 8 would have been no later than October 19, 2004, when
Nguyen left Precinct 8 to go to Mosquito Control. And, the accrual date for
Nguyen’s claims, if any, as to Precinct 1 would have been no later than January
2011, when she left the employment of Precinct 1. According to the record,
Nguyen did not raise any allegation or complaint about Precinct 1 until June 3,
2013, the first day of the trial, when she sent a copy of an amended petition to the
County by fax. That pleading is not in the record, and Nguyen admits in her brief it
must not have been filed. But the reporter’s record indicates the pleading was
discussed on the record, and the trial court overruled the County’s objections to
what the County described as a “late-filed” pleading, and the County’s First
Supplemental Answer specifically references the First Amended Petition. On June
13, 2013, the day of the jury’s verdict, Nguyen also obtained leave of court to file
and filed her Second Amended Original Petition. In the Second Amended Petition,
she included a claim arising from her termination from Precinct 8, and a claim
34
regarding her employment at Precinct 1. She also added language in her Second
Amended Petition describing a “due process” claim under the federal constitution
pertaining to Precinct 8.
In appropriate circumstances, the relation-back doctrine may be available to
prevent a newly added cause of action asserted in an amended pleading from being
time-barred. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (West 2015). The
relation-back doctrine states that:
[i]f a filed pleading relates to a cause of action, cross action,
counterclaim, or defense that is not subject to a plea of limitation
when the pleading is filed, a subsequent amendment or supplement to
the pleading that changes the facts or grounds of liability or defense is
not subject to a plea of limitation unless the amendment or
supplement is wholly based on a new, distinct, or different transaction
or occurrence.
Id.
We must examine Nguyen’s Original Petition and compare it to her Second
Amended Petition to determine if the newly added claims relate back. Nguyen’s
Original Petition was filed in June 2006; therein, Nguyen asserted that all of her
claims against the County and the other defendants pertained to her employment
with Precinct 8, which ended in October 2004, when she transferred from her
employment with Precinct 8 to another “sector of the county infrastructure[.]”
35
Nguyen further alleged that Precinct 8 engaged in racial discrimination against her
and retaliated against her for her protected speech when she testified about Judge
Bartie in 2002. Nguyen did not begin working in Precinct 1 until 2006, and her
employment with Precinct 1 then ended in January 2011.
We conclude that Nguyen’s claims relating to her employment with Precinct
1 as stated in her Second Amended Petition are “new, distinct, or different” claims
and are not saved by the relation-back doctrine. Nguyen did not file her claims
pertaining to Precinct 1 until well after the two-year statute of limitations expired.
Nguyen’s claims arising out of her employment with Precinct 1 are time-barred.
However, to the extent Nguyen’s Second Amended Petition alleges a section 1983
“due process” claim under the Federal Constitution arising from Nguyen’s
employment in Precinct 8, as compared to one arising under the Texas
Constitution, we find that such claims as to Precinct 8 arise from the same alleged
transactions and occurrences as the claim she asserted in her Original Petition, and
the relation-back doctrine would apply to prevent the statute of limitations from
barring her claims, if any, concerning Precinct 8.
We overrule issue one as it applies to Nguyen’s employment with Precinct
8; we sustain issue one as it applies to Nguyen’s employment with Precinct 1. We
36
also sustain issue two because Nguyen’s claims arising out of her employment
with Precinct 1 are time-barred by the two-year statute of limitations. The County’s
third issue pertains solely to Nguyen’s employment with Precinct 1. Because we
find Nguyen’s claims as to Precinct 1 are time-barred, we need not address her
third issue. See Tex. R. App. P. 47.1 (requiring the appellate court to issue written
opinions that are as brief as practicable but that address all issues necessary to a
final disposition of the case being appealed).
EMPLOYMENT AT WILL
Many of the County’s issues on appeal place significant emphasis on
Nguyen’s status as an “at-will” employee. The County contends that: Nguyen put
forth legally insufficient evidence to overcome the presumption of employment at-
will; Nguyen’s claim that the County violated her “property interest” in continued
employment is precluded by her status as an “at-will” employee; Nguyen has no
cause of action for constructive discharge as a basis for an “adverse employment
action” because her status was always that of an “at-will” employee, she failed to
obtain any fact finding that there was any constructive discharge, and she was not
actually discharged from Precinct 8, but only voluntarily transferred to a different
county department; and there is no evidence or insufficient evidence that Nguyen’s
37
“at-will” status was ever altered or enhanced. The County also argues that because
Nguyen was an “at-will” employee she had no viable property or liberty interest in
continued employment and that the jury’s affirmative finding to jury issue five was
not supported by the evidence.
In this case, the jury charge included the following instruction:
A constitutionally “protected property interest” arises from state
law, or agreements between the parties, such as Judge Tom Gillam’s
specific agreement with his employees that he would not subject them
to disciplinary actions except upon established good cause.
Penny Nguyen possessed a protected property interest in her
employment by Jefferson County in that she had a reasonable basis to
believe that she would not be subjected to adverse employment
actions except for established good cause.
Nguyen argues that she was “not required to present evidence to support her
property interest and the due process right that accompanies it because the County
consented to allow the jury to be instructed that she had just such a right.” As we
have previously noted, it is the court’s charge by which we measure the legal
sufficiency of the evidence when the opposing party fails to object to the charge,
even if the jury charge misstates the law. 5 See Osterberg, 12 S.W.3d at 55.
5
The trial court’s instruction misstates Texas law governing at-will
employees, because under Texas law:
38
Because the County failed to object to the instruction, it cannot complain for the
first time on appeal that the charge improperly instructed the jury that Nguyen had
a “protected property interest” in continued employment. See Tex. R. Civ. P. 272
(objections to a jury charge should be made before the charge is read to the jury);
Mo. Pac. R.R. Co., 501 S.W.2d at 873 (as a general rule, the failure to object
before the charge is read to the jury waives the complaint on appeal).
Nevertheless, even assuming that the County had preserved its arguments,
and further assuming that Nguyen was an “at-will” employee and that her status
was not altered, her “at-will” status would not control whether she had the right to
assert a claim under section 1983 for First Amendment retaliation. See Jett, 798
[A]bsent a specific agreement to the contrary, employment may
be terminated by the employer or the employee at will, for good
cause, bad cause, or no cause at all. . . . For [a binding] contract [of
employment] to exist, the employer must unequivocally indicate a
definite intent to be bound not to terminate the employee except under
clearly specified circumstances. General comments that an employee
will not be discharged as long as his work is satisfactory do not in
themselves manifest such an intent. Neither do statements that an
employee will be discharged only for “good reason” or “good cause”
when there is no agreement on what those terms encompass. Without
such agreement the employee cannot reasonably expect to limit the
employer’s right to terminate him.
Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998); see
also Sawyer v. E.I. du Pont de Nemours & Co., 430 S.W.3d 396, 399 (Tex. 2014).
39
F.2d at 757-58 ; Cabrol, 106 F.3d at 108; cf. Perry, 408 U.S. at 597-98. Therefore,
we will examine the challenges made by the County to the jury’s verdict and
findings pertaining to her First Amendment claims before we review her due
process claim.
OFFICIAL POLICY
The basic elements a plaintiff must prove to establish a retaliatory discharge
claim under 42 U.S.C. § 1983 include (1) the execution of a policy (2) by a
policymaker (3) that causes a constitutional injury. See Monell, 436 U.S. at 694.
An “official policy” for the purposes of section 1983 liability may be (1) a policy
statement, ordinance, regulation, or decision that is officially adopted and
promulgated by the municipality’s law-making officers or by an official to whom
the lawmakers have delegated policy-making authority; or (2) a persistent
widespread practice of county officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well-
settled as to constitute a custom that fairly represents municipal policy. See
Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Thomas v.
Galveston Cnty., 953 F. Supp. 163, 166 (S.D. Tex. 1997).
40
The fact that a particular official has discretion to exercise particular
functions does not automatically give rise to local government liability based on
the exercise of that discretion. See Pembaur v. City of Cincinnati, 475 U.S. 469,
481-82 (1986) (citing Okla. City v. Tuttle, 471 U.S. 808, 822-24 (1985)). The
official must also be responsible for establishing final governmental policy with
respect to the particular function or activity before a local government can be held
liable. Id. at 482-83. The official policy must be “the moving force of the
constitutional violation” in order to establish the liability of a governmental body
under section 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981) (quoting
Monell, 436 U.S. at 694). Under appropriate circumstances, a single decision by a
governmental entity’s policymaker may be sufficient to establish a section 1983
claim, even if that decision was not otherwise intended to apply to future
situations. See Pembaur, 475 U.S. at 480.
The County complains that Nguyen failed to present “any evidence or
sufficient evidence” of any County “policy” that caused her alleged injury and that
she waived her claim by failing to obtain a jury finding of any such “policy.” The
jury charge did not include any instructions or definitions pertaining to the
existence or execution of a “policy,” and the court did not submit a separate
41
question to the jury regarding the existence of a “policy.” Under Rule 279, when
the jury charge omits an element of a cause of action and the trial court makes no
written findings on that element, the omitted element “shall be deemed found by
the court in such a manner as to support the judgment.” See Tex. R. Civ. P. 279;
Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228-29 (Tex. 2011). The County did
not object to the charge on the basis that it omitted the “policy” element nor did the
trial court make findings as to “policy[.]”
At trial, the parties entered into a “Stipulation and Judicial Admission,”
which read, in relevant part:
At all times material hereto, Tom Gillam when serving as
Justice of the Peace Precinct 8 for Jefferson County is and has been
respectively the final authority and or “policymaker” for Jefferson
County in the matters of personnel decisions in the Justice of the
Peace Precinct 8, including the decisions to employ persons to serve
in budgeted positions, terminate the employment of persons employed
by the Justice of the Peace Precinct 8 office, promotion and demotion
of persons employed by the Justice of the Peace Precinct 8;
specifically as applied to Penny Nguyen.
The “Stipulation and Judicial Admission” was signed by attorneys for the County
and for Nguyen, was read in court in the presence of the jury, and it was entered
into the record. A judicial admission is a formal waiver of proof and may be made
by a stipulation of the parties. See Gevinson v. Manhattan Constr. Co., 449 S.W.2d
42
458, 466 (Tex. 1969). A judicial admission is conclusive upon the party making it
and bars the admitting party from disputing the matter admitted. Id.; Mendoza v.
Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). According
to the stipulation, Gillam was the “final authority and or ‘policymaker’ for
Jefferson County in the matters of personnel decisions in the Justice of the Peace
Precinct 8[.]”
Nguyen claims that Gillam made the decision to retaliate against her for
testifying against Bartie, associating with Graham, and hiring an attorney. The jury
was given the stipulation and also heard evidence of various personnel decisions
Gillam made while serving as Justice of the Peace for Precinct 8: he was the person
who decided to terminate Graham’s employment; he encouraged Nguyen to apply
for the position to replace Graham, but he then hired someone else; he issued
Nguyen a disciplinary memo; and he issued Nguyen a warning memo. Cary
Erickson testified that Judge Gillam made final decisions that were not appealable
regarding personnel in Precinct 8, and a letter written by the County’s attorney was
entered into evidence that read that Gillam, as an elected official, could act “pretty
autonomous when it comes to employment decisions.” The parties also stipulated
that Judge Gillam was the “final authority and or ‘policymaker’ for Jefferson
43
County in the matters of personnel decisions in the Justice of the Peace Precinct 8.”
Considering all of the evidence in a light most favorable to the verdict, and judging
the evidence based upon the charge that was submitted to the jury, we find that
there was more than a scintilla of evidence at trial that Judge Gillam was a
policymaker and that he made final personnel decisions for Precinct 8. We further
conclude that the evidence is legally sufficient to support a deemed finding that
Gillam’s conduct and his decisions regarding Nguyen constituted a “policy” by an
official with policy-making authority. 6 We overrule the County’s ninth issue.
CONSTRUCTIVE DISCHARGE
Next, the County contends that Nguyen failed to obtain a finding that she
was “constructively discharged.” The County also argues that Nguyen has shown
no evidence or legally insufficient evidence of “intolerable conditions” as required
by the Texas Supreme Court in Baylor University v. Coley, 221 S.W.3d 599, 603-
05 (Tex. 2007) (Constructive discharge of tenured employee requires that the
employer “makes conditions so intolerable that a reasonable person in the
6
Nguyen alleged in her Original Petition that she was retaliated against for
testifying against Bartie and further that she was retaliated against by Bartie in civil
conspiracy with Gillam and members of the County’s Human Resources
Department in that she was subjected to harassment and a hostile work
environment, which eventually forced her to take a lower paying position in
Jefferson County.
44
employee’s position would have felt compelled to resign.”). When an employee
submits a letter of resignation, she may still satisfy the adverse employment action
element by proving that she was constructively discharged. Brown v. Bunge Corp.,
207 F.3d 776, 782 (5th Cir. 2000) (citing Barrow v. New Orleans Steamship Ass’n,
10 F.3d 292, 297 (5th Cir. 1994)); Sharp v. City of Houston, 164 F.3d 923, 933-34
(5th Cir. 1999); see generally Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d
570, 580 (5th Cir. 2003) (noting that the definition of an “adverse employment
action” under section 1983 is broader than under Title VII); Breaux v. City of
Garland, 205 F.3d 150, 157 (5th Cir. 2000) (for purposes of a section 1983 claim,
adverse employment actions may include discharges, demotions, refusals to hire,
refusals to promote, discipline and reprimands, and transfers (if sufficiently
punitive)); see also Davis v. City of Grapevine, 188 S.W.3d 748, 766 (Tex. App.—
Fort Worth 2006, pet. denied) (as to the employee’s TCHRA claim, the employee
was able to prove an adverse employment action with proof of constructive
discharge).
Under Rule 277, “the court shall, whenever feasible, submit the cause upon
broad-form questions.” Tex. R. Civ. P. 277. Question 1 as submitted to the jury
asked whether Nguyen was subjected to adverse employment actions while
45
employed in Precinct 8, to which the jury answered “yes.” The issue was broadly
submitted and required no finding as to any specific adverse employment action.
The jury was specifically instructed
You are instructed that an “adverse employment action,” in
context of public employee’s First Amendment retaliation action is
one that a reasonable employee would find to be materially adverse,
i.e., the employer’s actions must be harmful to the point that they
could well dissuade a reasonable worker from making or supporting a
charge of discrimination under federal law. You are instructed as a
matter of law that constructive discharge constitutes an adverse
employment action.
Penny Nguyen claims that while employed with Judge Tom
Gillam she was subjected to adverse employment actions, including
constructive discharge from her employment in the Office of the
Peace Precinct 8, Jefferson County. An adverse employment action
includes constructive discharge. To prove her claim of constructive
discharge, Penny Nguyen must show that the Defendants[’] illegal
acts made or allowed working conditions to become so difficult that a
reasonable person in the [sic] Penny Nguyen’s position would feel
compelled to resign. Demotion or reassignment to a job with lower
pay or lower status may, depending on the aggravating nature of the
individual facts and circumstances, establish the claims of
constructive discharge. An employee does not need to prove an
employer subjectively intended to force the employee to resign.
The County did not object to this instruction or to jury questions 1 or 2.
The jury heard evidence from one witness who claimed Bartie told Gillam
and the other candidates that they should “get rid of” the employees who “stabbed
[Bartie] in the back.” Shortly after Gillam assumed his office, he received a
46
transcript of Graham’s testimony from the Bartie hearing before the State
Commission on Judicial Conduct. Gillam then terminated Graham, and Gillam
later issued Nguyen a disciplinary memo and a warning memo. Nguyen testified
that Gillam questioned her about everything, that Gillam was harassing her, gave
her a warning letter, and denied her break time. In her September 8th meeting with
Cary Erickson, it was noted that Nguyen felt she was being discriminated against
because she is not Black and because she testified against Bartie. Erickson told
Nguyen that Gillam had chosen not to participate in the grievance process. In
Nguyen’s resignation letter, she wrote “Cary Erickson had stated that you are
likely to fire me in the near future because of the harassment which I have suffered
as a result of Judge Bartie. I resign to save my career and reputation.” The jury also
heard evidence that Erickson assisted Gillam in writing the reprimands and letters
to Nguyen while he was, at the same time, talking to Nguyen about her concerns
and telling her “we’re here to help.” With respect to the jury’s finding in response
to jury question 1, we conclude that there is more than a scintilla of evidence to
support the jury’s “yes” finding in response to jury question 1 regarding an
“adverse employment action” as defined in the charge.
47
In its appellate brief, the County also argues that there was no evidence or
insufficient evidence of retaliation for Nguyen’s exercise of First Amendment
rights. Specifically, the County contends that Nguyen failed at trial “to show some
evidence that her employment experience was motivated by her exercise of free
speech rights[.]” Jury question 2 asked the jury to decide whether Nguyen’s
exercise of protected speech was a motivating factor for the adverse employment
actions in Precinct 8. Consequently, we must examine whether there is legally
sufficient evidence to support the answer of the jury to question 2.
With respect to a First Amendment retaliation claim, a party must prove that
(1) she suffered an adverse employment decision, (2) she was engaged in protected
activity, and (3) that the requisite causal relationship between the two exists. See
Jordan v. Ector Cnty., 516 F.3d 290, 295 (5th Cir. 2008).7 Whether speech or an
activity is protected is a question of law. See Connick v. Myers, 461 U.S. 138, 148
7
The Fifth Circuit has also articulated the elements for a First Amendment
retaliation claim pertaining to speech to include a four-part, rather than simply a
three-part, test. “[A] First Amendment retaliation claim in the employment context
has four elements: (1) the plaintiff suffered an adverse employment decision, (2)
the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest
in speaking outweighed the governmental defendant’s interest in promoting
efficiency, and (4) the protected speech motivated the defendant’s conduct.”
Kinney v. Weaver, 367 F.3d 337, 355 (5th Cir. 2004) (en banc) (incorporating the
balancing-of-interests test set forth in Pickering v. Board of Education, 391 U.S.
563, 568 (1968)).
48
n.7 (1983). Testimony regarding official misconduct may or may not be protected
speech for First Amendment purposes. See Branton v. City of Dallas, 272 F.3d
730, 740 (5th Cir. 2001).
In this case, the jury charge included the following instruction:
You are instructed as a matter of law that Penny Nguyen
exercised activities protected by the First Amendment to the
Constitution of the United States when;
1. She testified in 2002 against Thurman Bartie, before the
Judicial Commission pursuant to subpoena;
2. When she was represented by an attorney in matters of her
employment by Jefferson County;
3. When she associated with Dana Graham outside the
workplace.
The jury was asked to determine whether Nguyen suffered an adverse employment
action as a result of exercising her First Amendment right, and that “but for her
exercise of protected activities[,] Defendant(s) would not have taken adverse
employment actions against Penny Nguyen.” The jury answered “yes” as to
Precinct 8 and Precinct 1.
We need not decide whether or not Nguyen’s testimony at the Commission
on Judicial Conduct constituted protected speech under the First Amendment
because the County raised no objection at trial to the charge and it fails to raise this
49
issue on appeal. 8 The County has not challenged the instruction as provided in the
charge that Nguyen engaged in activities protected by the First Amendment when
she testified against Bartie or when she associated with her attorney or with
Graham. See Tex. R. App. P. 33.1(a), 38.1(i). We will not reverse on unassigned
error. See Prudential Ins. Co. v. J.R. Franclen, Inc., 710 S.W.2d 568, 569 (Tex.
1986) (citing Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex.
1983)). Rather, with respect to the County’s challenge regarding the legal
sufficiency of the evidence to support the jury’s finding regarding an adverse
employment action, we judge the sufficiency of the evidence against the trial
court’s charge. See Osterberg, 12 S.W.3d at 55; see also Romero v. KPH Consol.,
Inc., 166 S.W.3d 212, 221 & n.30 (Tex. 2005) (“The sufficiency of the evidence
must be measured by the jury charge when, as here, there has been no objection to
it.”).
The evidence presented at trial established that Nguyen testified at Bartie’s
hearing before the Commission on Judicial Conduct. A witness testified that he
8
Nguyen’s allegation regarding her association with her attorney and with
Graham outside of the workplace could not have been a motivating factor for the
county’s transfer of Nguyen to Mosquito Control because the evidence at trial
established such events occurred after Nguyen was transferred to Mosquito
Control.
50
heard Bartie tell Justice of the Peace candidates that “the staff that’s in the J.P.
office really stabbed [Bartie] in the back” and “[n]o matter what you should get rid
of these people.” According to Graham, Bartie attended Gillam’s swearing-in
ceremony, where Gillam made remarks about Bartie and the two men embraced.
Shortly after Gillam became Justice of the Peace for Precinct 8, a copy of
Graham’s testimony from the Commission on Judicial Conduct arrived in the mail,
and Gillam terminated Graham’s employment shortly after he received the
transcript. Within a few months, Gillam issued Nguyen a disciplinary memo and a
warning letter. Nguyen filed a grievance in September 2004 asserting that “I
testified against Thurman Bartie. Tom Gillam got even and fired Dana Graham and
replace[d] her with a black person, and now Gillam is harassing me.” On October
19, 2004, Nguyen tendered a resignation letter to Gillam that stated “Cary Erickson
had stated that you are likely to fire me in the near future because of the
harassment which I have suffered as a result of Judge Bartie. I resign to save my
career and reputation;” Gillam and Bartie denied that they were friends; Gillam
testified that he did not hear Bartie tell the candidates to “get rid of” certain
employees; and Gillam stated that it was not his intent to terminate Nguyen.
Erickson testified that Nguyen had told him she was “frightened that she was going
51
to be fired . . . because she had testified against Bartie[.]” Erickson also told
Nguyen that Gillam had chosen not to participate in the grievance process.
Erickson explained that because Judge Gillam did not participate in the grievance
process, there was nothing Erickson could do about Nguyen’s grievance.
The jury is the sole judge of the witnesses’ credibility, and it may choose to
believe one witness over another. See Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003). “Because it is the jury’s province to resolve
conflicting evidence, we must assume that jurors resolved all conflicts in
accordance with their verdict.” Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). Furthermore, we must consider the
evidence in the light most favorable to the finding under review and we indulge
every reasonable inference that would support the finding. City of Keller, 168
S.W.3d at 822.
In light of the charge that was given to the jury and considering the evidence
in a light most favorable to the findings of the jury, we conclude that more than a
scintilla of evidence supports the jury’s finding in response to jury question 2,
which pertains to Nguyen’s First Amendment retaliation claim under 42 U.S.C.
§ 1983. The jury reasonably could have rejected Bartie’s and Gillam’s testimony
52
and could have concluded that Nguyen’s protected speech or her association with
Graham were motivating factors for an adverse employment action at Precinct 8,
and “but for her exercise of protected activities[,] Defendant(s) would not have
taken adverse employment actions against Penny Nguyen.”
Ordinarily, when a judgment rests on multiple theories of recovery and one
theory is valid, an appellate court need not address other theories. See George
Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 851 n.7 (Tex. App.—Fort Worth
1994), rev’d on other grounds, 900 S.W.2d 337 (Tex. 1995); see also Jefferson
Cnty. v. Davis, No. 14-13-00663-CV, 2014 Tex. App. LEXIS 9640, at *22 (Tex.
App.—Houston [14th Dist.] Aug. 28, 2014, pet. filed) (mem. op.); ACCI
Forwarding, Inc. v. Gonzalez Warehouse P’ship, 341 S.W.3d 58, 68 (Tex. App.—
San Antonio 2011, no pet.); Checker Bag Co. v. Washington, 27 S.W.3d 625, 634
(Tex. App.—Waco 2000, pet. denied). Because we have determined that the
evidence is legally sufficient to support Nguyen’s section 1983 First Amendment
retaliation claim, we need not address the County’s arguments pertaining to jury
question 5 and Nguyen’s claim for alleged violations of due process, or the effect,
if any, of her “at-will” status on such claims. See Tex. R. App. P. 47.1. We
overrule appellate issues four, eight, and eleven.
53
TEXAS CONSTITUTIONAL CLAIMS
In its tenth issue, the County contends that Nguyen was not entitled to
recover any damages under the Texas Constitution. In her Original Petition and
Second Amended Original Petition, Nguyen asserted a cause of action for damages
for violations of her due process rights under the Texas Constitution. The County’s
tenth issue complains that “no private cause of action exists against a governmental
entity for money damages relating to the governmental entity’s alleged violations
of state constitutional rights.” In Appellee’s brief, “Nguyen agrees that monetary
damages are unavailable under the Texas Constitution[,]” but Nguyen contends she
asserted other grounds for monetary recovery.
A party may not bring a claim for money damages under the Texas
Constitution’s due process provision. See Smith v. City of League City, 338 S.W.3d
114, 127 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Univ. of Tex. Sys. v.
Courtney, 946 S.W.2d 464, 471 (Tex. App.—Fort Worth 1997, writ denied) (op.
on reh’g). A due process claim in which a party seeks money damages under the
Texas Constitution does not invoke the trial court’s jurisdiction. See Smith, 338
S.W.3d at 127; Courtney, 946 S.W.2d at 468-69.
54
We agree with the County that no money damages are recoverable for
claims asserted under the Texas Constitution. The trial court would have lacked
subject-matter jurisdiction over a claim for damages pursuant to an alleged
violation of the Texas Constitution or for an alleged “due process violation” under
state law. Nevertheless, the record reflects that the jury charge did not include any
definitions, instructions, questions, or other references regarding the Texas
Constitution, and neither the jury’s verdict nor the Final Judgment purport to grant
Nguyen relief or an award of damages for an alleged violation of her due process
rights, if any, under the Texas Constitution. Therefore, on the record before us we
conclude that the County’s tenth issue should be overruled because it presents no
basis for us to reverse the trial court’s judgment. See Tex. R. App. P. 44.1(a) (a
judgment may not be reversed on appeal unless the error probably caused the
rendition of an improper judgment or probably prevented the appellant from
properly presenting its case on appeal).
SUFFICIENCY OF THE EVIDENCE REGARDING DAMAGES
The County makes “no evidence” challenges in its fifth issue complaining
that there is no evidence to support any damages for lost benefits, in its sixth issue
complaining that there is no evidence to support the award of mental anguish
55
damages, in its seventh issue complaining that there is no evidence to support the
award of loss of earnings in the past, and in its fourteenth issue arguing there is no
evidence to support an award of attorney’s fees and that the trial court erred in
calculating prejudgment interest. 9
Compensatory damages are available to the prevailing party in an action
under 42 U.S.C. § 1983 where actual injury is established. See Carey v. Piphus,
435 U.S. 247, 254-55, 266 (1978); Henschen v. Houston, 959 F.2d 584, 588 (5th
Cir. 1992). The basic purpose of a damage award under section 1983 is to
compensate the individual for injuries that are caused by the deprivation of
constitutional rights. See Memphis Comty. Sch. Dist. v. Stachura, 477 U.S. 299,
307 (1986); Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979); City of Alamo
v. Casas, 960 S.W.2d 240, 253 (Tex. App.—Corpus Christi 1997, pet. denied).
Compensatory damages may include not only out-of-pocket loss and other
9
A party that preserves a legal sufficiency complaint about damages in the
trial court may also argue on appeal that an expert’s opinion regarding damages is
conclusory, and as a result the evidence that supports the jury’s damage award is
legally insufficient. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.
2009). The County does not argue on appeal that the opinions offered by plaintiff’s
expert, Jeff Davis, were conclusory, nor does the County challenge the
methodology or reliability of the expert’s opinion. Furthermore, although the
County objected at trial to Davis’s qualifications to testify concerning the damage
calculations and scope of Nguyen’s financial losses, the County has not renewed
the complaint on appeal.
56
monetary harms, but also such injuries as impairment of reputation, personal
humiliation, and mental anguish and suffering. See Stachura, 477 U.S. at 307.
Courts should be guided by the elements of damages allowable in comparable
common law tort actions. See Carey, 435 U.S. at 257-58. By statute, the prevailing
party in a claim under section 1983 may also be awarded attorney’s fees. See 42
U.S.C. § 1988(b).10
For a jury’s damage award to survive a legal sufficiency challenge, there
must be some evidence that a substantial loss occurred which affords a reasonable
basis for estimating the amount of that loss. See Carrow v. Bayliner Marine Corp.,
781 S.W.2d 691, 695 (Tex. App.—Austin 1989, no writ). However, the evidence
need not correspond to the precise amount found by the jury. See Pleasant v.
Bradford, 260 S.W.3d 546, 559 (Tex. App.—Austin 2008, pet. denied). When
determining damages, the jury has discretion to award damages within the range of
evidence presented at trial. Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.
2002). When the evidence at the trial supports a range of damages, “an award
within that range is an appropriate exercise of the jury’s discretion, and a
10
The relevant language in Section 1988(b) provides that “[i]n any action or
proceeding to enforce a provision of [42 U.S.C.] sections . . . 1981-1983, 1985,
[and] 1986 . . . the court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the costs[.]”
57
reviewing court is not permitted to speculate on how the jury actually arrived at its
award.” Drury Sw., Inc. v. Louie Ledeaux #1, Inc., 350 S.W.3d 287, 292 (Tex.
App.—San Antonio 2011, pet. denied).
1. Lost Earnings and Benefits
In the County’s fifth issue, it argues that there is no evidence or insufficient
evidence to support the damages for lost employment benefits in the past (jury
question 6(d)). The County argues that Nguyen “had no retirement benefits
because she was not eligible to retire[,]” and the submission of the jury question
6(d) is barred by Nguyen’s failure to prove “she was entitled” to those damages. In
its seventh issue, the County argues that there is no evidence to support an award
of damages for lost earnings as awarded by the jury in response to jury question
6(c)). The County did not object to jury questions 6(c) or 6(d) at trial.
The County argues that “Nguyen’s economic loss, if any, is limited to her
reduction in pay of $3,617 for one year (2005) and none thereafter,” because
Nguyen’s employment was “legitimately” not renewed by the new Judge in
Precinct 1, and further because Gillam had the right to legitimately terminate her
employment at any time because she was an “at will” employee. The County
argues that when Nguyen’s employment with Jefferson County ended, she was
58
thirty-nine years old, she had nineteen years of service, and she was not eligible to
retire. Nguyen argues that, at the time of trial, she was a “vested member” as
defined in the County’s retirement plan as a result of her nineteen years of service,
even if she was not then eligible for retirement. And as an individual meeting the
service requirement, Nguyen contends she had an interest in her retirement annuity
that would become fully payable upon reaching retirement age.
Upon proper foundation, an employee may recover lost benefits other than
lost wages, such as lost contributions to a retirement program or employer-paid
insurance. See Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1062 (8th Cir. 2002);
Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 620 (5th Cir. 1996) (age
discrimination claim wherein the court explained “[t]he present value of a
plaintiff’s interest in a pension plan is recoverable as an element of damages[.]”);
Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1111-14 (8th Cir. 1994)
(upholding that part of back pay award representing the amount the employer
would have contributed to the employee’s 401(k) plan but for the wrongful
termination). Courts may require evidence of the value of the benefits or the cost of
their replacement before including some of these benefits in the back pay award.
See Rhodes, 82 F.3d at 620.
59
Jeff Davis (Davis), a CPA in public practice, testified as an expert for
Nguyen. Davis offered testimony as to the value of Nguyen’s alleged lost earnings
and benefits. According to Davis, Nguyen’s salary decreased $3,617 between 2004
and 2005 as a result of moving to a lower-paying position. He testified that, by the
end of 2010, her cumulative lost compensation was $23,396, and that Nguyen’s
lower salary with Orange County in 2011 was $12,831 less than her salary with
Jefferson County. His worksheets were submitted into evidence, and they purport
to depict a cumulative lost compensation of $63,055 as of 2013. Davis’s testimony
and worksheets provided the jury with some evidence of past lost earnings.
Davis testified specifically relating to a loss of retirement benefits. Davis
explained to the jury that the retirement plans for both Jefferson and Orange
County are contributory, that an employee contributes seven percent of her salary
to the retirement plan, and that the County also contributes seven percent of the
employee’s salary during her period of employment. Davis provided a spreadsheet
with retirement estimates based on both a lower monthly salary and a higher
monthly salary. The retirement estimate based on the lower salary shows
“Employee Deposits” of $223,800 and “Employer Financed Credits” of $447,700.
The retirement estimate based on the higher salary shows “Employee Deposits” of
60
$308,300 and “Employer Financed Credits” of $616,700. Davis provided
testimony regarding the basis for his estimate of Nguyen’s “lost pension benefit.”
He estimated that Nguyen’s annual retirement benefit was reduced by $22,392 per
year. When combined with the other evidence presented at trial that established
that Nguyen left Precinct 8 in 2004, that she worked for a reduced salary at her
subsequent position, we conclude there was more than a scintilla of evidence at
trial to support a finding that Nguyen had lost retirement contributions toward her
retirement pension in the past.
However, jury question 6(d)(1) asked the jury to determine an amount for
“Loss of retirement, health, medical, and life insurance, and other similar fringe
benefits in the past” regarding Precinct 8. The charge does not define any of the
terms used in the jury question. Rather, there is a general instruction for “Damages
Accrued” and for “Calculation of Future Damages.” The “Damages Accrued”
instruction instructed the jury that “[i]f you find for Penny Nguyen she is entitled
to recover an amount that will fairly compensate her for damages she has suffered
to date.” Compensatory damages under section 1983 are intended to repair the
wrong that has been done, including compensation for losses already incurred as
well as compensation for the future consequences of the injury, subject to proof
61
thereof. See Carey, 435 U.S. at 258-59 (a plaintiff who establishes liability for
deprivation of constitutional rights in a claim under section 1983 is entitled to
recover compensatory damages for all injuries suffered as a result thereof); Dallas
v. Cox, 793 S.W.2d 701, 733-34 (Tex. App.—Dallas 1990, no writ). Therefore, in
the context of a section 1983 employment claim, compensatory damages address
both back pay and front pay, where “pay” represents both lost wages and lost
benefits, such as retirement benefits. See, e.g., Fifth Circuit Pattern Jury
Instructions (Civil) § 11.14.A.2 at 208 (2014) (“Back pay is more than salary. It
includes fringe benefits such as vacation, sick pay, insurance, and retirement
benefits.”).
Given the charge and the evidence presented, we conclude that there was
more than a scintilla of evidence from which a reasonable jury, in exercise of the
jury’s discretion, could have determined that Nguyen had lost past contributions to
her retirement account by taking a lower-paying job at Mosquito Control. The
jury’s award is considerably less than the lost pension benefit calculation by Davis,
but it is within the range of figures that Davis calculated. We overrule the County’s
fifth and seventh issues.
62
2. Mental Anguish Damages
The County also challenges the jury’s damage award for mental anguish
damages, stating there is no evidence or insufficient evidence 11 to support
Nguyen’s claim of damages for mental anguish and the submission of a jury
question as to those damages is barred by her failure to prove any physical injury
or sufficient impact on her mental or emotional state. The County asserted a
general objection in the charge conference to the submission of mental anguish as a
category of damages, arguing that there was no evidence to support the submission
of the issue to the jury. Nguyen argues that applicable federal case law supports an
award of mental anguish damages and that neither medical testimony nor
corroborating evidence is required to support a plaintiff’s mental anguish damages
under a section 1983 claim for constructive or retaliatory discharge.
An award of damages for mental anguish under section 1983 requires a
“‘specific discernable injury to the claimant’s emotional state’” supported by
evidence of the nature and extent of such harm. See Brady v. Fort Bend Cnty., 145
F.3d 691, 718 (5th Cir. 1998) (quoting Patterson v. P.H.P. Healthcare Corp., 90
11
To the extent the County is attempting to raise a factual sufficiency
challenge, this point has been waived. Tex. R. Civ. P. 324(b)(2); see Tex. R. App.
P. 33.1(a)(1)(A); Halim v. Ramchandani, 203 S.W.3d 482, 487 (Tex. App.—
Houston [14th Dist.] 2006, no pet.).
63
F.3d 927, 938-40 (5th Cir. 1996)). The Texas Supreme Court outlined the standard
of proof for mental anguish damages under state law in Parkway Company v.
Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In Parkway, the Court stated that to
survive a legal sufficiency challenge, the plaintiff must have presented “direct
evidence of the nature, duration and severity of their mental anguish, thus
establishing a substantial disruption in the [plaintiff’s] daily routine.” Id. at 444. If
there is no direct evidence, the Court will apply “traditional ‘no evidence’
standards to determine whether the record reveals any evidence of a ‘high degree
of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,
embarrassment, or anger’ to support any award of damages.” Id. (citation omitted).
Mere “hurt feelings, anger and frustration” are generally insufficient to support a
mental anguish award. See Brady, 145 F.3d at 718; Patterson, 80 F.3d at 940.
Because emotional distress is “‘fraught with vagueness and speculation, [and] is
easily susceptible to fictitious and trivial claims,’” courts must “‘scrupulously
analyze an award of compensatory damages for a claim of emotional distress
predicated exclusively on the plaintiff’s testimony.’” Brady, 145 F.3d at 719
(quoting Price v. City of Charlotte, 93 F.3d 1241, 1250-51 (4th Cir. 1996)).
64
In response to jury question 6(a)(1) the jury awarded Nguyen $75,000 for
mental anguish in the past. We evaluate the sufficiency of the evidence by the
charge as submitted. See Romero, 166 S.W.3d at 221 & n.30. In the charge,
“mental anguish” was defined as follows:
“Mental anguish” as [an] element of damages, implies a relatively
high degree of mental pain and distress[;] it is more than mere
disappointment, anger, resentment, or embarrassment, although it may
include all of those, and it includes mental sensations of pain resulting
from such painful emotions as grief, severe disappointment,
indignation, wounded pride, shame, despair, and/or public
humiliation.
In Brady, the Fifth Circuit reviewed whether the evidence supported
damages for mental anguish in a claim brought by several county employees under
section 1983. See Brady, 145 F.3d at 717-20. The plaintiffs’ testimony recounted
various manifestations of distress, including nervousness, sleeplessness, stress,
anxiety, marital problems. Id. at 719. The plaintiffs also testified to spending too
much time on the couch, being “highly upset,” not “accept[ing] it mentally,” and
experiencing “the worst thing that has ever happened to me[.]” Id. The court
concluded that the evidence was “vague and conclusory.” Id.
65
Similarly, in Vadie v. Mississippi State University, 218 F.3d 365, 376-78
(5th Cir. 2000), the evidence did not support the amount of mental anguish
damages awarded. Vadie’s testimony included:
[i]t destroyed me. It totally ruined me, and I bec[a]me sick,
totally ill, physically, mentally, and everything. I took many doctors,
[sic] many pills.
I did not know what to do, where to go, what to say. I did not
know whether it was nighttime or daytime, I could not sleep for
months at a time. Headache, nausea. Still I am under severe doctor
surveillance because of what they have done to me.
Id. at 377. Vadie’s testimony was sufficient to support a finding of actual injury,
but insufficient to support an award of $300,000 for mental anguish because
Vadie’s claims were only “broad assertions of emotional injury[,]” and therefore
the court reduced the award to $10,000. Id. at 378.
Nguyen testified that, while working for Judge Gillam in Precinct 8, she was
“always nervous,” she had headaches, her “stomach would turn[,]” and she felt
“[c]onstantly on edge.” Nguyen’s husband testified that, during her tenure in
Precinct 8, she would come home from work crying and “not feeling good[,]” and
she lost her appetite. However, Nguyen presented no direct evidence of the
duration and severity of her injuries nor did she provide evidence that the alleged
complaints caused a substantial disruption of her daily routine. While she testified
66
that she had a rash during her time with Precinct 8 and that she went to the County
Health Clinic for treatment of the rash, her medical records from the clinic showed
she had a rash prior to the alleged constructive discharge from Precinct 8, and the
notes attributed the rash to contact dermatitis, psoriasis, food, and simply “allergic
to so many things.” Moreover, the medical records established that she was treated
for a rash several months prior to her work for or with Gillam, and there was no
medical testimony linking the rash with any of the alleged adverse employment
actions.
As stated in the charge, “mental anguish” as an element of damage requires
“a relatively high degree of mental pain and distress[;] it is more than mere
disappointment, anger, resentment, or embarrassment[.]” Even when considering
the evidence in a light most favorable to the verdict, we conclude the evidence is
legally insufficient to sustain the award of damages for mental anguish in the past.
The testimony of Nguyen and her husband falls short of evincing any specific
discernable emotional injury and lacks evidence of the nature, duration, and extent
of harm and fails to establish a “high degree of mental pain and distress” and
causal connection to the alleged adverse employment actions as required. See
Brady, 145 F.3d at 718. Although the evidence of Nguyen’s reported distress
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offered at trial reflects “‘hurt feelings, anger and frustration [that] are part of
life[,]’” the testimony does not support a mental anguish award. See id. (quoting
Patterson, 90 F.3d at 938, 940). Therefore, we sustain the County’s sixth issue.
3. Attorney’s Fees
In its fourteenth issue, the County states: “There is no evidence or fact
finding in the record to support the court’s judgment that Jefferson County is liable
for Nguyen’s attorney’s fees.” In its discussion of the issue, the County argues that
the trial court erred when it entered a judgment awarding Nguyen attorney’s fees
because “Appellant has failed to find anywhere in the record that such attorney’s
fees were incurred, their amount, their existence or that they are reasonable in any
amount, particularly $72,300.00[.]” The County also argues that Nguyen is not
entitled to attorney’s fees because she should not have been allowed to present
additional evidence after the verdict, and further that the record does not include a
waiver by Jefferson County of its right to trial by jury on all issues, including
attorney’s fees.
Nguyen argues that she presented “uncontested evidence” of her attorney’s
fees by submitting a post-verdict motion for approval of her attorney’s fees that
was “supported by the affidavit testimony” of her attorney, the County failed to
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respond to the motion or to contest the attorney’s fee affidavit, and by failing to
object to the motion the County has waived its right to complain on appeal. Under
42 U.S.C. § 1988, a prevailing party under a section 1983 claim may receive
reasonable attorney’s fees as a part of costs awarded. See 42 U.S.C. § 1988(b);
Sanchez v. City of Austin, 774 F.3d 873, 878-79 (5th Cir. 2014) (in a case brought
under section 1983, noting that “Section 1988 provides for attorneys’ fees to
prevailing parties in civil-rights cases[.]”). The party seeking attorney’s fees bears
the burden to establish its entitlement to an award as well as to document the
appropriate hours expended and hourly rates. See Hensley v. Eckerhart, 461 U.S.
424, 429 (1983).
The determination of attorney’s fees under a section 1983 claim has been
described as a procedural matter and characterized as costs. See Hutto v. Finney,
437 U.S. 678, 693, 695 n.24 (1978) (characterizing an award of attorney’s fees
under a section 1983 claim as “costs” and not compensatory damages for a
constitutional injury); see also 42 U.S.C. § 1988(b) (characterizing attorney’s fees
as costs). Rules that allocate decision-making authority between the judge and jury
are “prototypical procedural rules[.]”Schriro v. Summerlin, 542 U.S. 348, 354-54
(2004) (citing Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426 (1996),
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Landgraf v. USI Film Prods., 511 U.S. 244, 280-81 (1994), and Dobbert v.
Florida, 432 U.S. 282, 293-94 (1977)). Consequently, we apply Texas state
procedural law to our review of the County’s issue regarding the award of
attorney’s fees. See Global Sante Fe Corp., 275 S.W.3d at 485.
Under Texas law, the determination of reasonable and necessary attorney’s
fees is a question for the jury when it is the trier of fact. See Stewart Title Guar.
Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991); Bill Miller Bar-B-Q Enters. Ltd. v.
Gonzales, No. 04-13-00704-CV, 2014 Tex. App. LEXIS 11796, at *7 (Tex.
App.—San Antonio Oct. 29, 2014, no. pet.) (mem. op.); EMC Mortg. Corp. v
Davis, 167 S.W.3d 406, 419 (Tex. App.—Austin 2005, pet. denied). We review a
decision by a trial court to grant attorney’s fees under an abuse of discretion
standard. See EMC Mortg., 167 S.W.3d at 419; see also Brady, 145 F.3d at 716. A
trial court abuses its discretion if it acts without reference to any guiding
principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
The party seeking to recover attorney’s fees carries the burden of proof
thereon. See Stewart Title Guar., 822 S.W.2d at 10. And as a general rule, when a
party seeks a recovery for attorney’s fees and he fails to submit the issue to the
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jury, the failure to submit the issue to the jury will result in a waiver of the issue.
See Tex. R. Civ. P. 279; Wilie v. Montgomery Ward & Co., 291 S.W.2d 432, 437-
38 (Tex. 1956); Univ. of Tex. v. Ables, 914 S.W.2d 712, 717 (Tex. App.—Austin
1996, no writ) (“The plaintiffs submitted no question to the jury concerning
attorney’s fees. Under the express provisions of Rule 279, they consequently
waived any right to recover the fees.”); Loom Treasures, Inc. v. Terry Minke
Adver. Design, Inc., 635 S.W.2d 940, 942 (Tex. App.—Fort Worth 1982, no writ)
(holding that plaintiff’s failure to submit attorney’s fees to the jury constitutes a
waiver of recovery).
Nguyen demanded a jury trial in her Original Petition, but she did not submit
the issue to the jury. Instead, she filed a post-verdict motion to have the trial court
decide and award her attorney’s fees. When one party requests a jury trial and pays
the jury fee, all other parties in the suit acquire the right to a jury trial and can rely
upon another party’s proper jury request. Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664, 666 (Tex. 1996). The County was entitled to a jury trial on the
issue of attorney’s fees, unless it waived its right to a jury trial on that issue or the
parties agreed to submit the issue to the judge. The record shows no evidence that
the parties agreed to try attorney’s fees to the court. Accordingly, we must
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determine whether the County waived its right to a jury trial on the issue of
attorney’s fees by failing to object or respond to the post-verdict motion for
attorney’s fees.
A defendant must object in the trial court to the submission of the issue of
attorney’s fees being submitted to the judge or risk waiver of the right to have the
jury decide the issue. See In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio
1996, no writ); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l
Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ) (A party can
waive its right to a jury trial under the Texas Constitution, even if it has perfected
its right, by failing to object at trial to the case being withdrawn from the jury.).
Courts have held that a party’s failure to timely object to the submission of
attorneys’ fees to the court waives its complaint on appeal, even when the right to a
jury trial has previously been perfected. See Burlington Ins. Co. v. Mex. Am. Unity
Council, Inc., 905 S.W.2d 359, 363 (Tex. App.—San Antonio 1995, no writ);
McInnes v. Fife, No. 14-00-00201-CV, 2001 Tex. App. LEXIS 4615, at *2 (Tex.
App.—Houston [14th Dist.] July 12, 2001, no pet.) (not designated for publication)
(appellant failed to preserve an argument on appeal where appellant did not object
at trial that attorney’s fees were not submitted to the jury). The County filed no
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response to Nguyen’s post-trial request to have the court decide her attorney’s fees.
We conclude that the County failed to preserve its argument for appellate review
regarding the denial of the right to have attorney’s fees decided by the jury. See
Tex. R. App. P. 33.1(a).
The County also argues that it was improper for the trial court to allow the
plaintiff to reopen the evidence on attorney’s fees pursuant to Texas Rule of Civil
Procedure 270 because “. . . in a jury case no evidence on a controversial matter
shall be received after the verdict of the jury.” Tex. R. Civ. P. 270.12 The County
also observes that Nguyen never filed a motion for leave to reopen the evidence.
Rule 270 provides that the trial court may consider new evidence at any time if
necessary to the due administration of justice, and by its express terms it does not
require a motion to reopen. See, e.g., In re J.A.W., 976 S.W.2d 260, 263-64 (Tex.
App.—San Antonio 1998, no pet.). Therefore, the absence of a motion to reopen
the evidence is not significant. On the other hand, the limitation set forth in Rule
270 that “in a jury case no evidence on a controversial matter shall be received
after the verdict of the jury[,]” is significant if the issue of attorney’s fees was a
12
“When it clearly appears to be necessary to the due administration of
justice, the court may permit additional evidence to be offered at any time;
provided that in a jury case no evidence on a controversial matter shall be received
after the verdict of the jury.” Tex. R. Civ. P. 270.
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“controversial matter.” The County has failed to provide any citation to the record
indicating that the issue of attorney’s fees was a controversial matter. The County
did not respond to Nguyen’s motion for attorney’s fees, it did not object to having
the trial court decide the attorney’s fees issue, and it did not file any objections or
controverting affidavits on the amount of attorney’s fees. Because the County
failed to file a response or object in the trial court or otherwise make the trial court
aware of its complaint, the County waived its challenge to the submission of the
issue of attorney’s fees to the court or to the trial court’s consideration of the
evidence. See Tex. R. App. P. 33.1(a) (to preserve error, a party must make a
complaint by a timely request, objection, or motion to the trial court, state the
grounds for its objection where not apparent from the context, and obtain a ruling
thereon); see generally, Holden v. Holden, 456 S.W.3d 642, 649-50 (Tex. App.—
Tyler 2015, no pet.) (in a bench trial, Rule 270 does not require a motion to reopen
for a trial court to consider additional evidence after both parties have rested;
however, a party waives its right to complain on appeal if it fails to object to the
trial court regarding its consideration of such additional evidence). We overrule the
County’s fourteenth appellate issue as to attorney’s fees.
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4. Prejudgment Interest
In its final appellate issue, the County also argues that the trial court erred in
calculating prejudgment interest and further that a “clerical error” was made in the
calculation of prejudgment interest. The County does not contest the interest rate
applied by the trial court.
The record in this matter does not reflect that the County ever brought the
“clerical error” it alleges to the attention of the trial court by means of a motion to
modify or reform the judgment or by other means. As a general matter, failure to
object to the trial court concerning an award of prejudgment interest waives the
issue on appeal. See Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987);
Henry v. Thompson, No. 01-01-01211-CV, 2003 Tex. App. LEXIS 2246, **14-15
(Tex. App.—Houston [1st Dist.] Mar. 13, 2003, no pet.) (mem. op.) (failure to
make trial court aware of error in prejudgment interest waives the complaint on
appeal).
Nevertheless, because our decision reforms the trial court’s damage award,
we remand to the trial court for a new calculation of prejudgment interest, and we
otherwise do not decide whether the trial court erred in calculating prejudgment
interest or whether a “clerical error” was made. See, e.g., Man Indus. (India) Ltd. v.
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Midcontinent Express Pipeline, LLC, 407 S.W.3d 342, 369 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied) (in part modifying and in part affirming award of
damages and remanding for calculation of prejudgment interest). We sustain in
part issue fourteen, and we remand to the trial court to recalculate the prejudgment
interest in a manner that is consistent with our opinion.
DUPLICATIVE APPELLATE ISSUES
In its twelfth issue, the County contends that there is no evidence or
insufficient evidence to support the jury’s affirmative response to each of the jury
questions; and, in its thirteenth issue, the County complains that that it was error
for the trial court to fail to grant some or all of Appellant’s Motion for JNOV.
Assuming a party has properly preserved error, its brief on appeal must
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” Tex. R. App. P. 38.1(i). Proper briefing
specifically identifies a question of law for appellate review, clearly articulates an
argument, supports statement of facts with references to the record, and refers to
applicable legal authority. See Bolling v. Farmers Branch Indep. Sch. Dist., 315
S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.). Failure to comply with
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briefing requirements results in waiver of the issue on appeal. See Bullock v. Am.
Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied).
In its appellate brief, the County’s argument pertaining to appellate issues
twelve and thirteen globally states “[a]s shown in the foregoing Argument and
Authorities[,]” the issues were “unsupported in the record” and the trial court erred
in not granting the County’s JNOV. The County then cites without any discussion
to Rowland v. City of Corpus Christi, 620 S.W.2d 930, 932-33 (Tex. Civ. App.—
Corpus Christi 1981, writ ref’d n.r.e.), and Tiller v. McLure, 121 S.W.3d 709, 713
(Tex. 2003). And the County concludes “[t]herefore, the Judgment below should
be reversed and rendered that Nguyen take nothing by her suit.”
Appellate issues twelve and thirteen are duplicative of the other appellate
issues, and the County has failed to state or identify any additional legal question
for review. See Tex. R. App. P. 38.1(i). We conclude that appellate issues twelve
and thirteen raise no additional legal argument that would be necessary to the final
disposition of the appeal. See Tex. R. App. P. 47.1. Therefore, we overrule the
County’s twelfth and thirteenth issues.
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CONCLUSION
We conclude that legally sufficient evidence supports the jury’s findings in
response to jury questions 1 and 2, pertaining to Nguyen’s First Amendment
retaliation claim under 42 U.S.C. § 1983 as to Precinct 8. We also overrule the
County’s challenges to the jury’s finding on jury question 6(c)(1) for loss of
earnings in the past and affirm the trial court’s judgment awarding Nguyen
$75,000 in damages for lost earnings in the past for Nguyen’s First Amendment
retaliation claim under 42 U.S.C. § 1983 pertaining to Nguyen’s employment in
Precinct 8. We overrule the County’s challenges to the jury’s finding on jury
question 6(d)(1) and affirm the trial court’s judgment awarding Nguyen $50,000
for Nguyen’s First Amendment retaliation claim under 42 U.S.C. § 1983 pertaining
to Nguyen’s employment in Precinct 8. We also affirm the trial court’s judgment
awarding Nguyen attorney’s fees. We reverse and render judgment that Nguyen is
not entitled to recover on any of her claims arising out of her employment in
Precinct 1. We also reverse the trial court’s judgment awarding Nguyen $75,000
for mental anguish damages in the past as relating to Precinct 8 and render
judgment that Nguyen is not entitled to recover any damages for mental anguish in
the past. Finally, having reversed and rendered that Nguyen is not entitled to a
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recovery on her claims as to Precinct 1, and having reversed and rendered that she
is not entitled to a recovery for mental anguish damages, we reverse and remand to
the trial court solely for a recalculation of prejudgment interest on damages
consistent with this opinion.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART;
REMANDED IN PART.
_________________________
LEANNE JOHNSON
Justice
Submitted on October 15, 2014
Opinion Delivered July 31, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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