ACCEPTED 06-16-00008-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 6/16/2016 11:18:17 AM DEBBIE AUTREY CLERK
NO. 06-16-00008-CV
IN THE SIXTH COURT OF APPEALS FILED IN 6th COURT OF APPEALS AT TEXARKANA, TEXAS TEXARKANA, TEXAS 6/16/2016 11:18:17 AM JOHN VERNON DEBBIE AUTREY HEARNSBERGER, Clerk APPELLANT,
VS.
PANOLA COUNTY, TEXAS; JACK ELLECT; DAVID JETER AND RONALD CLINTON, APPELLEES.
BRIEF OF APPELLEES PANOLA COUNTY, JACK ELLECT, DAVID JETER AND RONALD CLINTON
Respectfully Submitted,
/s/ Stephen R. Marsh STEPHEN R. MARSH Texas Bar No. 13019700 DAVID KLOSTERBOER & ASSOCIATES 1301 E. Collins Blvd., Suite 490 Richardson, Texas 75081 Telephone: (214) 570-6300 Facsimile: (214) 570-6262 Email: smarsh@travelers.com ATTORNEY FOR APPELLEES
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................... ii
STATEMENT OF THE CASE ................................................................................. 1
ISSUES PRESENTED
ISSUE NO. 1 RESTATED: The procedural irregularities in this case violate the Texas Rules of Civil Procedure and Constitutional due process because Appellant received only the notice required by the rules of the setting of the motion to dismiss and because the trial court heard the matter under the statute authorizing concurrent jurisdiction ......................................................................................................2
ISSUE NO. 2 RESTATED: There were no relevant procedural irregularities because no order of transfer was required for the Court to hear the matter. The complaints about notice and the timing of the transfer have nothing to do with the relevant procedural law about which Court can hear and enter orders in the case ............................................................................................................2
STATEMENT OF FACTS .......................................................................................3
SUMMARY OF THE ARGUMENT ....................................................................... 6
ARGUMENT ............................................................................................................8
PRAYER .................................................................................................................12
CERTIFICATE OF SERVICE ...............................................................................13
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3) ................................14
i INDEX OF AUTHORITIES
CASES
City of Corpus Christi, 51 S.W.3d at 262, 264 ......................................................... 9
Faddoul, Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213 (Tex. App. 2001) .................................................................................................... 12
In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000) ...................................8, 10, 11
In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex. 2005) .......................................... 8
Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) ................................................................................................1, 4, 5, 7, 9
Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 185 S.W.3d 555, 576 (Tex. App. 2006) ...................................................................................................... 9
Smith v. Brown, 51 S.W.3d 376, 380 (Tex. App. 2001) ........................................ 11
STATUTES AND PUBLICATIONS
48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.) ............................................................................................................... 10
Tex.R.App.P. 33.1 .............................................................. 1, 2, 3, 6, 7, 8, 10, 11, 12
Tex.R.App.P 45 ...............................................................................................3, 6, 11
Tex.R.App.P. 74(d) ...........................................................................1, 3, 6, 8, 11, 12
Texas Tort Claims Act ......................................................................................1, 3, 7
V.T.C.A., Government Code § 74.094 .................................................................5, 7
RULES
TX R PANOLA CTY DIST Rule 1.13 .............................................................5, 6, 7
ii BRIEF OF APPELLEES
STATEMENT OF THE CASE
After failing to serve timely notice of a claim under the Texas Tort Claims
Act, Appellant filed a suit subject to dismissal under Mission Consol. Independent
School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008). Appellant sued both the
individuals and the governmental entity in the same suit and both moved to
dismiss, setting the matter after Appellant had the thirty days set by statute to
voluntarily comply.
Appellant was given the notice required by law of the hearing.
The hearing on the motion to dismiss was heard by the County Court at Law
under concurrent jurisdiction as authorized by a statute that does not require that
the case be transferred. Appellant, with the advice of counsel, chose not to respond
to the motion or to appear at the hearing and to waive any error. Appellant then
chose not to comply with Tex.R.App.P. 33.1 or Tex.R.App.P. 74(d) in taking his
appeal. In the appeal the Appellant has not challenged the merits of the dismissal.
Rather, the Appellant complains of the timing of the transfer of the case
between courts (which was not relevant to the jurisdiction or the statute authorizing
the trial court to hear the matter with or without transfer) and that he was given
only the notice required by law instead of additional notice.
It is uncontested that the trial court entered appropriate relief on the merits.
BRIEF OF APPELLEES Page - 1 ISSUES PRESENTED
ISSUE NO. 1 RESTATED
The procedural irregularities in this case violate the Texas Rules of Civil Procedure and Constitutional due process because Appellant received only the notice required by the rules of the setting of the motion to dismiss and because the trial court heard the matter under the statute authorizing concurrent jurisdiction.
ISSUE NO. 1 REPLY POINT
There were no relevant procedural irregularities because no order of transfer was required for the Court to hear the matter. The complaints about notice and the timing of the transfer have nothing to do with the relevant procedural law about which Court can hear and enter orders in the case.
ISSUE NO. 2 RESTATED
The Court erred in hearing the Appellee’s motion even though there was no requirement under governing law that the matter be transferred from the 123rd Judicial District Court to the County Court at Law.
ISSUE NO. 2 REPLY POINT
The allegations of procedural irregularity are irrelevant because there is no showing of harm as the Appellant failed to address the underlying merits.
ISSUE NO. 3/ REPLY POINT
Intentionally not attending the hearing because of alleged procedural irregularities, and failing to raise the issues as required by Tex.R.App.P. 33.1 before taking an appeal, waives any alleged irregularities.
BRIEF OF APPELLEES Page - 2 ISSUE NO. 4 / CROSS POINT
Given the Appellant’s failure to comply with both Tex.R.App.P. 33.1 and Tex.R.App.P. 74(d) and that the Appellant was so clearly put on notice of the well-established law before the filing of Appellant’s Brief, Tex.R.App.P 45 should be applied to this case and the Appellant charged $5.00.00 which should be sufficient to prevent any future violations of the rules.
STATEMENT OF FACTS
Appellant was a deputy sheriff. Appellant embezzled funds. He also
defrauded a secured creditor. He was indicted for the embezzlement [ROA 14] by
the grand jury [ROA 19]. There were also other matters [e.g. see the Exhibit 4
referred to at ROA 14, ROA 15].
Appellant had not been given Miranda warnings. Evidence was suppressed
and the case dismissed [ROA 14]. The causes of action that he alleged occurred in
October of 2012.
Appellant then filed a federal suit alleging an enforceable interest in
employment as a deputy sheriff [cf ROA 19]. A motion for summary judgment
was filed and the Appellant non-suited his federal action before the Court ruled
[ROA 18ff]. Appellant never gave a timely Texas Tort Claims Act notice. [ROA
12-13].
After dismissing his federal cause of action, he filed suit under the Texas
Tort Claims Act against both the governmental entity and the individuals in the
same litigation in October 2015 [ROA 4].
BRIEF OF APPELLEES Page - 3 The Appellees filed a motion to dismiss which gave the Appellant thirty
days to voluntarily dismiss the individual parties. Appellant was put on notice that
if Appellant failed to properly dismiss the appropriate parties within thirty days,
then relief under Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d
653 (Tex. 2008) would be sought as to all parties under the Act. This was clearly
laid out [ROA 24].
Appellant’s merits below were [ROA 25]:
1. Embezzlement is not a crime.
2. He had a property right in his employment as a sheriff’s deputy.
3. He had a right to have the Appellees interfere with the independent
Texas Ranger investigation to keep him from being arrested on a
grand jury indictment.
Under the Act, the Appellant’s case in chief below was subject to mandatory
dismissal of the individual parties and to dismissal of the governmental entity due
to immunity. The Act gives thirty days for voluntarily dismiss after the appropriate
motion is filed [ROA 25-30]. Because of the thirty day period, the matter would
not be ripe for being set until that period of time passed.
Since the Appellant had thirty days to dismiss on his own initiative,
Appellees noted that they would give Appellant thirty days in order to make all
matters ripe in their pleading. When Appellant failed to take advantage of the
BRIEF OF APPELLEES Page - 4 statutory procedures, the matter was then set for hearing and the Plaintiff was
given notice of the hearing as follows [ROA 47]:
This is to give you notice that the Motion to Dismiss has been set for hearing at 10:00 a.m. on December 15, 2015 before the County Court at Law for Panola County. The Panola County Court at Law has unlimited jurisdiction (not all county courts at law do).
That letter does not suggest any transfer. There is nothing to suggest that the
hearing was set well in advance of the notice, though the only requirement of
notice is meeting the statutory time. The other conclusions appear to have been
raised because Appellant’s counsel fails to remember the Mission Consol.
Independent School Dist. v. Garcia factors explained to him earlier.
Under the local rules both the District Court and the County Court at Law
had authority to hear any matter pending in either Court without a transfer which is
why there was no indication of a transfer. The local rules are clear and state
[emphasis added][Note this is also at ROA 43]:
1. A case over which the District Court and the County Court at Law have concurrent jurisdiction may be transferred from one Court to the other by order of the judge of the Court in which the case is pending with the consent of the judge of the Court to which it is transferred.
2. Pursuant to V.T.C.A., Government Code Section 74.094, the District Judge or the County Court at Law Judge may hear and determine a matter pending in either Court regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. Either judge may sign a judgment or order in either court regardless of whether the case is transferred. The judgment, order or action is valid and binding
BRIEF OF APPELLEES Page - 5 as if the case were pending in the Court of the judge who acts on the matter.
TX R PANOLA CTY DIST Rule 1.13
The Appellant chose not to appear for the hearing [Appellant’s Brief 5] after
his attorney stated that he would be there [ROA 53].
Because of his willful choice not to appear, and because of the merits, his
claims were dismissed. Following dismissal, Appellant chose not to file any
Tex.R.App.P. 33.1 pleading [cf ROA 35].
In the Appeal, Appellant has chosen not to contest that the Texas Tort
Claims Act applies to this matter and is dispositive of his case. Appellant
challenges only the details of the irrelevant transfer of the case from District Court
to County Court-at-Law without addressing the issue of concurrent jurisdiction or
the underlying merits of the case. In addition, Appellant fails to comply with
Tex.R.App.P. 74(d).
Given the well-established law, the failure to comply with Tex.R.App.P.
74(d) and Tex.R.App.P. 33.1 means that Tex.R.App.P. 45 applies to this matter.
SUMMARY OF THE ARGUMENT
The key factor in the argument is that the matter below was not required to
be transferred between the Courts for either judge to hear the motion to dismiss
and enter a final judgment because of the local rules and the appropriate statute.
Citing, with emphasis added:
BRIEF OF APPELLEES Page - 6 Pursuant to V.T.C.A., Government Code Section 74.094, the District Judge or the County Court at Law Judge may hear and determine a matter pending in either Court regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. Either judge may sign a judgment or order in either court regardless of whether the case is transferred. The judgment, order or action is valid and binding as if the case were pending in the Court of the judge who acts on the matter.
An order of transfer was never required and the discussion about the transfer
is a red herring. Even if an order of transfer was required, Appellant’s intentional
non-appearance at the hearing waived any error. Appellant’s subsequent failure to
meet the burden of Tex.R.App.P. 33.1 means that had he not waived error by non-
attendance, he waived error by failure to comply with Tex.R.App.P. 33.1.
Failure to address the merits also waives error. Since the Texas Tort Claims
Act and the Texas Supreme Court’s decision in Mission Consol. Independent
School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) clearly dispose of the merits
there is nothing that Appellant could have addressed.
ISSUE NO. 1 RESTATED/REPLY POINT
There were no relevant procedural irregularities because no order of transfer was required for the Court to hear the matter. The complaints about the timing of the transfer have nothing to do with the relevant procedural law about which Court can hear and enter orders in the case with or without a transfer.
BRIEF OF APPELLEES Page - 7 ARGUMENT
The law that either Court was empowered to hear any matter without an
order of transfer was clearly set out in the Response to the Motion for Extension of
Time. Rather than respond to the clear language of the statute “Either judge may
sign a judgment or order in either court regardless of whether the case is
transferred” the Appellant instead complains about the timing of the irrelevant
order of transfer without complying with Tex.R.App.P. 74(d). That is probably
because the clear law on point disagrees completely with his argument. Viz.
The next question is whether Judge Lewis's termination of appellant's parental rights was void due to the fact that the case was not transferred to his court until after the termination decree was signed. Appellant failed to object on the basis that the case had not been transferred to County Court at Law No. Five and, therefore, has not preserved this issue for our review. Tex.R.App.P. 33.1. However even if appellant had objected on this basis we conclude that Judge Lewis had the authority to terminate appellant's parental rights even though the case had not been transferred to him. In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000).
See also other cases such as In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex.
2005), etc. The timing of the transfer is irrelevant and there were no procedural
irregularities.
BRIEF OF APPELLEES Page - 8 ISSUE NO. 2 RESTATED/REPLY POINT
The allegations of procedural irregularity are irrelevant because there is no showing of harm as the Appellant failed to address the underlying merits.
ARGUMENT
Under the Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d
653 (Tex. 2008) standards, the Appellant has no defense to the dismissal of the
individual parties and no defense to the immunity of the governmental entity.
Appellant can show no harm and can show nothing that the Court below should
have done differently on the merits.
This is fatal to the appeal, even if there were irregularities since the rule is
that a party must show that there are merits to their case. That is clear law.
Procedural irregularities do not warrant reversal absent a showing of harm. City of Corpus Christi, 51 S.W.3d at 262, 264 (Commission's “failure to follow procedural requirements of statutes or rules is not reversible error without a showing of harm”).
Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 185 S.W.3d 555, 576 (Tex. App. 2006).
Appellant cannot meet that burden because the well-established law is that if
a party sues individuals and a governmental entity in the same suit, on motion the
individuals must be dismissed within thirty days. Further, the law is clear that as to
all causes of action alleged, the governmental entity has immunity. There are no
underlying merits in Appellant’s favor.
BRIEF OF APPELLEES Page - 9 ISSUE NO. 3 / REPLY POINT
Intentionally not attending the hearing because of alleged procedural irregularities, and failing to raise the issues as required by Tex.R.App.P. 33.1 before taking an appeal, waives any alleged irregularities.
Appellant twice waived all error. As to Tex.R.App.P. 33.1. the Rule has
approximately 21,693 citing references showing in Westlaw. They are well
summarized as follows:
If, however, the complaint is that the judge acted in a case without statutory or procedural authority, the alleged error is not void, but voidable, and must therefore be raised by objection or complaint to be preserved for appellate review 48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)
Timing of an objection to a judge's lack of procedural compliance is critical to the success of the objection, in that a party may not raise that issue for the first time on appeal: 48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)
… procedural irregularities that must be raised at trial to preserve appellate relief include the absence of an order assigning a judge at the time of the trial
48B Tex. Prac., Tex. Lawyer & Jud. Ethics § 40:81 (2016 ed.)
The lead case for this point states as follows:
The next question is whether Judge Lewis's termination of appellant's parental rights was void due to the fact that the case was not transferred to his court until after the termination decree was signed. Appellant failed to object on the basis that the case had not been transferred to County Court at Law No. Five and, therefore, has
BRIEF OF APPELLEES Page - 10 not preserved this issue for our review. Tex.R.App.P. 33.1. However even if appellant had objected on this basis we conclude that Judge Lewis had the authority to terminate appellant's parental rights even though the case had not been transferred to him.
In re M.A.W., 31 S.W.3d 372, 374 (Tex. App. 2000)
A party must properly object in order to preserve the issue for an appeal.
Deciding not to attend the hearing and to wait until an appeal to raise any error is a
decision to waive all error.
Even if the Appellant had objected and then met the requirements of
Tex.R.App.P. 33.1, the objections would have been without merit. That explains
why the Appellant did not raise an objection in the Court below and why the
Appellant has failed to address the specific law and statute that apply in the appeal
but instead has focused on the provisions that do not apply and avoided any law
that discusses what the provisions mean.
ISSUE NO. 4 – CROSS ISSUE
Given the Appellant’s failure to comply with both Tex.R.App.P. 33.1 and Tex.R.App.P. 74(d) and that the Appellant was so clearly put on notice of the well-established law before the filing of Appellant’s Brief, Tex.R.App.P 45 should be applied to this case and the Appellant charged $5.00.00 which should be sufficient to prevent any future violations of the rules.
The Court is authorized to award a prevailing party “just damages” if the
Court determines that an “appeal is frivolous” Smith v. Brown, 51 S.W.3d 376, 380
BRIEF OF APPELLEES Page - 11 (Tex. App. 2001). Elements that go to an appeal being frivolous include “the
unexplained failure to file a motion for new trial when it is required” Faddoul,
Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 213 (Tex. App. 2001) (i.e. the
failure to comply with Tex.R.App.P. 33.1, above) and a brief that fails to raise
arguable points of error (failure to comply with Tex.R.App.P. 74(d)).
A sanction of $5.00.00 (five dollars) under the rules is appropriate and
sufficient.
NOTE
Appellant’s prayer addresses a temporary injunction that does not appear to
be relevant to this matter.
PRAYER
Appellees request the Court to affirm the judgment of the trial court. In the
alternative, the Court should render the matter in Appellees favor on the merits and
enter such other orders as are just and right.
BRIEF OF APPELLEES Page - 12 Respectfully Submitted, DAVID KLOSTERBOER & ASSOCIATES
/s/ Stephen R. Marsh STEPHEN R. MARSH Texas Bar No. 13019700 1301 E. Collins Blvd., Suite 490 Richardson, TX 75081 Direct Telephone: 214-570-6292 Telephone: 214-570-6300 Facsimile: 214-570-6262 Email: smarsh@travelers.com ATTORNEYS FOR APPELLEES
CERTIFICATE OF SERVICE
This is to certify that on the 16th day of June, 2016 a true and correct copy of the foregoing document was delivered in accordance with Rule 21a of the Texas rules of Civil Procedure via First Class U.S. Mail to the counsel of record listed or by electronic delivery for those counsel available through the e-filing system.
/s/ Stephen R. Marsh STEPHEN R. MARSH
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3)
This document complies with the typeface requirements of Tex.R.App.P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 4,500 words or fewer, which includes any parts exempted by Tex. R. App. P. 9.4(i)(1). Stephen R. Marsh STEPHEN R. MARSH
BRIEF OF APPELLEES Page - 13