ACCEPTED 13-15-00218-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 6/24/2015 4:54:59 PM CECILE FOY GSANGER CLERK
NO. 13-15-00218-CV
IN THE THIRTEENTH COURT OF APPEALS DISTRICT OFINTEXAS- FILED 13th COURT OF APPEALS CORPUS CHRISTI-EDINBURG CORPUS CHRISTI/EDINBURG, TEXAS 6/24/2015 4:54:59 PM CECILE FOY GSANGER Clerk CITY OF PORT ISABEL, TEXAS, MARIA DE JESUS GARZA, GUILLERMO TORRES AND JOE E. VEGA
Appellants
VS.
JUAN JOSE “JJ” ZAMORA, SR. AND MARTIN C. CANTU Appellees
On Appeal from the 444th Judicial District Court of Cameron County, Texas Cause No. 2015-DCL-02342
APPELLANT GUILLERMO TORRES’, INDIVIDUALLY, BRIEF
Frank E. Pérez State Bar No. 15776540 Frank E. Pérez & Associates, P.C. 300 Mexico Boulevard Brownsville, Texas 78520 Telephone: (956) 504-5403 Facsimile: (956) 504-5991 E-mail: fperez@feperezandassociates.com
ATTORNEY FOR APPELLANT GUILLERMO TORRES, INDIVIDUALLY
ORAL ARGUMENT REQUESTED ______________________________________________________________
A. INDENTITY OF PARTIES AND COUNSEL __________________________________________________________________
Pursuant to Tex. R. App.P.38.1(a), Guillermo Torres, Individually,
Appellant herein, certifies that the following is a complete list of all parties and the
names and addresses of all counsel.
Appellant
City of Port Isabel, Texas
Appellant’s Counsel
Robert L. Collins State Bar No. 04618100 Audrey Guthrie State Bar No. 24083116 Robert L. Collins & Associates P.O. Box 7726 Houston, Texas 77270-7726 Telephone: (713) 467-8884 Facsimile: (713) 467-8883 E-mail: houstonlaw1@aol.com E-mail: theaudlawyer@icloud.com
Maria De Jesus Garza
Michael R. Cowen State Bar No. 00795306 The Cowen Law Group 62 E. Price Road Brownsville, Texas 78521 ii Telephone: (956) 541-4981 Facsimile: (956) 504-3674 E-mail: michael@cowenlaw.com
Joe E. Vega
Michael R. Cowen State Bar No. 00795306 The Cowen Law Group 62 E. Price Road Brownsville, Texas 78521 Telephone: (956) 541-4981 Facsimile: (956) 504-3674 E-mail: michael@cowenlaw.com
Guillermo Torres, Individually
Frank E. Pérez State Bar No. 15776540 Frank E. Perez & Associates, P.C. 300 Mexico Boulevard Brownsville, Texas 78520 Telephone: (956) 504-5403 Facsimile: (956) 504-5991 E-mail: fperez@feperezandassociates.com
Appellee
Juan Jose “JJ” Zamora, Sr.
iii Appellee’s Counsel
Mr. Gilberto Hinojosa State Bar No. 0970110 Law Office of Gilberto Hinojosa & Associates, PC 622 East St. Charles Street Brownsville, TX 78520 Telephone: (956) 544-4218 Facsimile: (956) 544-1335 E-mail: ghinojosa@ghinojosalaw.net
Martin C. Cantu
Appellee’s Counsel
Mr. Gilberto Hinojosa State Bar No. 0970110 Law Office of Gilberto Hinojosa & Associates, PC 622 East St. Charles Street Brownsville, TX 78520 Telephone: (956) 544-4218 Facsimile: (956) 544-1335 E-mail: ghinojosa@ghinojosalaw.net
iv B. TABLE OF CONTENTS
A. Identity of Parties and Counsel…..……………………………... Page ii
B. Table of Contents…………………………………………….... Page v
C. Index of Authorities……………….……………………………. Page vii
D. Statement of the Case…………………………………………… Page viii
E. Request for Oral Argument……………………………………... Page ix
F. Issues Presented: Page x
Issue Number One- Trial Court Action after May 12, 2015 is Page x Void
Issue Number Two-The Denial of the Plea to the Page x Jurisdiction is Erroneous
G. Statement of Facts……………………………………………….. Page 1
H. Summary of the Argument……………………………………… Page 3
Issue Number One-Trial Court Action after May 12, 2015 is Page 3 Void
Issue Number Two-The Denial of the Plea to the Jurisdiction is Page 3 Erroneous
I. Argument ……………………………………………………….. Page 4
Issue Number One-Trial Court Action after May 12, 2015 is Void Page 4
Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous Page 4
J. Prayer…………………………………………………………..... Page 7
K. Certificate of Compliance………………………………………. Page 8 v L. Certificate of Service……………………………………………. Page 9
M. Appendix………………………………………………………… Page 10 Order Denying City of Port Isabel’s Plea to the Jurisdiction signed on April 24, 2015……………………………………….. Tab A Tex. Civ. Prac. & Rem. Code §51.014………………………….. Tab B Plaintiffs’ Notice of Nonsuit without Prejudice filed on May 15, Tab C 2015………………………………………………………………
Plaintiffs’ Withdrawal of Plaintiffs’ Notice of Nonsuit without Prejudice and Request for Reinstatement filed on May 18, Tab D 2015…………………………………………………………….
Order Reinstating Plaintiffs’ Suit signed on May 18, 2015……. Tab E Defendants’ Motion to Reconsider Plaintiffs’ Motion to Reinstate and to Deny Reinstatement filed on May 19, Tab F 2015…………………………………………………………….
Defendants’ Amended Motion to Reconsider Plaintiffs’ Motion to Reinstate and to Deny Reinstatement filed on June 1, Tab G 2015…………………………………………………………….
Plaintiffs’ Notice of Nonsuit without Prejudice of Guillermo Tab H Torres filed on June 10, 2015……………………………………
Order of Dismissal without Prejudice of Guillermo Torres Tab I signed on June 15, 2015………………………………………….
vi C. INDEX OF AUTHORITIES
CASES PAGE
Ballantyne v Champion Builders, Inc., 144 S.W. 3d 417 (Tex. 2004) ......................................................................6
Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000). ........................................................................4
In re Marriage of J.B. 326 S.W.3d 654, 662 (Tex.App.-Dallas 2010, pet. argued 11-5-13) ..........4
Kassen v. Hatley, 887 S.W. 2d 4 (Tex. 1994) ..........................................................................7
Telthorster v. Tennell, 92 S.W.3d 457 (Tex. 2002) .........................................................................6
Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) ................................................................5
Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) .............................................................4, 5
Texas Department of Transportation v. Jones, 8 S.W.3d 636 (Tex. 1999) ..........................................................................4
Texas Natural Resource & Conservation Comm'n v. White 46 S.W.3d. 864, 868 (Tex.2001) .................................................................6
STATUTES
Tex. Civ. Prac. & Rem. Code §51.014 ......................................................... 2, 3, 4
vii D. STATEMENT OF THE CASE
This case is a suit for permanent injunction and declaratory relief after a vote
by the City Commission of the City of Port Isabel, Texas to vacate two City
Commission seats (those of J. J. Zamora and Martin Cantu) pursuant to the City
Charter section 2.02 and 2.03.
viii E. REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 38.1(e) of the Texas Rules of Appellate Procedure,
Appellant Guillermo Torres requests that the Court grant oral argument for the
following reasons:
a. Oral argument would give the Court a more complete understanding
of the facts presented in this appeal; and
b. Oral argument would significantly aid the Court in deciding this case.
ix F. ISSUES PRESENTED
Issue Number One-Trial Court Action after May 12, 2015 is Void
Any action taken by Zamora and Cantu in the trial court after May 12, 2015,
and all orders entered by the trial court after May 12, 2015 (the date City of Port
Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega filed their
interlocutory appeal and their Notice of Stay) is void, and Zamora and Cantu’s
claims against Guillermo Torres are pending and ripe for this Court to consider and
decide.
Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous
The trial court’s determination that City of Port Isabel, Texas, Maria De
Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction should
be denied is erroneous because Zamora and Cantu’s mere references to statutes
that purport to waive governmental immunity or establish a state’s consent to be
sued are insufficient to confer jurisdiction on the trial court; and Zamora and Cantu
failed to introduce evidence to establish a waiver of sovereign immunity sufficient
to overcome a plea to the jurisdiction.
x G. STATEMENT OF FACTS
Zamora and Cantu filed their Original Petition on April 15, 2015. (CR
001:2)
City of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe
E. Vega filed their Plea to the Jurisdiction and Original Answer on April 20, 2015.
(CR: 001:23)
Zamora and Cantu filed their Third Amended Petition on April 23, 2015.
(CR 001:90)
The trial court held a hearing on City of Port Isabel, Texas, Maria De Jesus
Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction and on Zamora
and Cantu’s Motion for Temporary Injunction on April 24, 2015. (RR: 1:1)
On April 24, 2015 the trial court denied City of Port Isabel, Texas, Maria De
Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction and
granted Zamora and Cantu’s Motion for Temporary Injunction. (RR: 1:121)
On April 24, 2015 the trial court signed and entered its Order Denying City
of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega’s
Plea to the Jurisdiction. (CR: 001:101) (App. Tab A)
City of Port Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe
E. Vega appealed the trial court’s order denying their plea to the jurisdiction on
May 12, 2015. (CR 001:102)
-1- On May 12, 2015 the City of Port Isabel, Texas, Maria De Jesus Garza,
Guillermo Torres, and Joe E. Vega notified the trial court and the parties that all
matters in the trial court were stayed by virtue of the appeals, as provided in
§51.014 of the Texas Civil Practices and Remedies Code. (CR 001:110) (App. Tab
B)
On May 15, 2015 Zamora and Cantu filed their nonsuit of City of Port
Isabel, Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega. (App.
Tab C)
On May 18, 2015 Zamora and Cantu filed their Withdrawal of their nonsuit
and motion to reinstate. (App. Tab D)
The trial court granted this motion on that same date. (App. Tab E)
On May 19, 2015 and June 1, 2015 City of Port Isabel, Texas, Maria De
Jesus Garza, Guillermo Torres, and Joe E. Vega filed their Motion to Reconsider
and Amended Motion to Reconsider, again advising the trial court and the parties
that all matters in the trial court were stayed by virtue of the appeals, as provided
in §51.014, CPRC. (App. Tabs F and G)
On June 10, 2015 Zamora and Cantu filed their notice of nonsuit as to
Guillermo Torres. (App. Tab H)
On June 15, 2015 the trial court granted this nonsuit. (App. Tab I)
-2- H. SUMMARY OF THE ARGUMENT
Issue Number One-Trial Court Action after May 12, 2015 is Void
In the trial court, Zamora and Cantu attempted to nonsuit all claims against
Guillermo Torres twice. Zamora and Cantu withdrew their nonsuit after the first
time and asked for a reinstatement, which the trial court granted without a hearing.
Zamora and Cantu nonsuited their claims against Guillermo Torres again, which
the trial court granted without hearing. Each attempted and purported nonsuit was
filed after Guillermo Torres had filed his Notice of Appeal, after filing his Notice
of Stay pursuant to Section 51.014, C.P.R.C., and during the effective period of
the automatic stay. The nonsuits were, therefore, void.
Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous
Zamora and Cantu failed to plead or prove any facts sufficient to establish a
waiver of sovereign immunity, or the City of Port Isabel’s consent to be sued.
Zamora and Cantu’s live pleading in the trial court, their Third Amended Petition,
contains mere vague references to statutes and rules that do not suffice to confer
jurisdiction on the trial court. Further, Zamora and Cantu failed to introduce facts,
evidence, involving their particular case sufficient to allow the trial court to
determine whether immunity was waived or consent given.
-3- I. ARGUMENT
Issue Number One-Trial Court Action after May 12, 2015 is Void
Section 51.014(b), C.P.R.C., provides that an interlocutory appeal under
subsection (a)(8) stays the commencement of a trial in the trial court and all other
proceedings in the trial court pending resolution of the appeal. Therefore, any
action taken by Zamora and Cantu in the trial court after May 12, 2015, and all
orders entered by the trial court after May 12, 2015 (the date City of Port Isabel,
Texas, Maria De Jesus Garza, Guillermo Torres, and Joe E. Vega filed their
interlocutory appeal and their Notice of Stay) are void. See In re Marriage of J.B.,
326 S.W.3d 654, 662 (Tex.App.-Dallas 2010, pet. argued 11-5-13) ("An order
signed during a stay is a 'legal nullity.'").
Each of the following cases involve a stay under §51.014, C.P.R.C., and its
nullifying effect of actions taken in violation of that stay.
Zamora and Cantu’s claims against Guillermo Torres are pending.
Issue Number Two-The Denial of the Plea to the Jurisdiction is Erroneous
The trial court’s determination that City of Port Isabel, Texas, Maria De
Jesus Garza, Guillermo Torres, and Joe E. Vega’s Plea to the Jurisdiction should
be denied is erroneous under the Texas Supreme Court’s holdings in Texas
Department of Transportation v. Jones, 8 S.W.3d 636 (Tex. 1999) (per curium);
Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000); and Texas
-4- Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). In
those cases the Supreme Court has made clear that mere references to statutes that
purport to waive governmental immunity or establish a state’s consent to be sued
are insufficient to confer jurisdiction on the trial court. Zamora and Cantu’s Third
Amended Petition does not contain a paragraph alleging any particular
jurisdictional facts or law. (CR 001:90-100) Throughout Zamora and Cantu’s
pleadings, including their latest live pleadings (Plaintiffs’ Third Amended
Petition), Zamora and Cantu merely reference statutes they claim waive
governmental immunity or cite statutes they claim establish this state’s consent to
be sued. (CR 001:94; 95, consent, case law; 95, C.P.R.C.; 96, City Charter)
However, Zamora and Cantu bear the greater burden of establishing, with
evidence, a waiver of sovereign immunity sufficient to overcome a plea to the
jurisdiction. In Miller, the Supreme Court stated that, after reviewing the terms of
the applicable statute purportedly conferring jurisdiction, the court must then,
“consider the particular facts of the case before us to determine whether it comes
within that scope.” Miller, 51 S.W.3d at 587. The Miller court went on to state
that a "court deciding a plea to the jurisdiction is not required to look solely to the
pleadings but may consider evidence and must do so when necessary to resolve the
jurisdictional issues raised." Therefore, to decide whether Jeannie Miller has
"affirmatively demonstrate[d] the court's jurisdiction to hear the cause," Texas
-5- Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993), "we
consider the facts alleged by the plaintiff, and to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties." Texas Natural
Resource & Conservation Commission v. White, 46 S.W.3d. 864, 868 (Tex.2001).
Zamora and Cantu introduced no evidence sufficient to allow the trial court to
determine whether Zamora and Cantu had established subject matter jurisdiction.
Appellant Torres respectfully submits that, contrary to Zamora and Cantu’s
bare assertions of statutes that purportedly confer jurisdiction, their pleadings
unequivocally establish, factually, that Torres acted in his official capacity only,
and therefore, Zamora and Cantu’s allegations actually negate the subject matter
jurisdiction. (CR 001:93) Torres submits that Plaintiffs’ Third Amended Petition
does not allege “individual” action by Torres. Indeed, during the hearing on April
24, 2015, Cantu affirmatively stated that at the same meeting of which Zamora and
Cantu now complain, he voted to oust Torres, but was acting in good faith as per
the City Charter. (RR 1:97, 104)
Official Immunity
Zamora and Cantu allege that Torres acted as a Commissioner of the City of
Port Isabel. (RR 1:93) As such he was a government official. See Telthorster v.
Tennell, 92 S.W.3d 457 (Tex. 2002). Further, allegations establish that Torres’
acts were only discretionary and governmental. (RR 1:93) See Ballantyne v
-6- Champion Builders, Inc., 144 S.W. 3d 417 (Tex. 2004); and Kassen v. Hatley, 887
S.W. 2d 4 (Tex. 1994). Zamora and Cantu never alleged nor provided evidence
that Torres acted in any capacity other than as a Commissioner of the City of Port
Isabel.
Zamora and Cantu, therefore, failed to satisfy their burden of establishing
that the trial court had subject matter jurisdiction over Torres in his individual
capacity; and the trial court’s denial of Torres’ plea to the jurisdiction was
erroneous.
Adoption of Brief Filed by Robert Collins
Appellant Guillermo Torres adopts by reference the arguments made in the
brief filed by Robert Collins as attorney for Appellant City of Port Isabel.
J. PRAYER
Appellant Guillermo Torres asks that this Court reverse the trial court’s
denial of his Plea to the Jurisdiction, dismiss Zamora and Cantu’s claims against
him, find that Appellant is protected by the doctrines of official immunity, and for
such other and further relief to which Appellant Guillermo Torres may show
himself justly entitled.
Respectfully submitted, FRANK E. PÉREZ & ASSOCIATES, P.C.
By: /s/ Frank E. Pérez Frank E. Pérez
-7- State Bar No. 15776540 300 Mexico Boulevard Brownsville, Texas 78520 Telephone: (956) 504-5403 Facsimile: (956) 504-5991 ATTORNEY FOR APPELLANT GUILLERMO TORRES, INDIVIDUALLY
K. CERTIFICATE OF COMPLIANCE
I hereby certify that Appellant Guillermo Torres’, Individually, Brief
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), because it contains 1,512 words, excluding any parts
exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Frank E. Pérez Frank E. Pérez & Associates, P.C.
-8- L. CERTIFICATE OF SERVICE
I hereby certify that on this the 24th day of June 2015, a true and correct
copy of the foregoing instrument has been served upon counsel of record by the
following method:
VIA E-SERVICE Mr. Gilbert Hinojosa Law Office of Gilberto Hinojosa & Associates, PC 622 East St. Charles Street Brownsville, TX 78520 Attorney for Appellees Juan Jose “JJ” Zamora and Martin C. Cantu
VIA E-SERVICE Mr. Robert L. Collins Robert L. Collins & Associates P.O. Box 7726 Houston, Texas 77270-7726 Attorney for Appellants City of Port Isabel, Texas
VIA E-SERVICE Mr. Michael R. Cowen The Cowen Law Group 62 E. Price Road Brownsville, TX 78521 Attorney for Appellants Joe E. Vega and Maria de Jesus Garza
-9- M. APPENDIX
Order Denying City of Port Isabel’s Plea to the Jurisdiction signed on April 24, 2015…………………………………………………... Tab A Tex. Civ. Prac. & Rem. Code §51.014…………………………….. Tab B Plaintiffs’ Notice of Nonsuit without Prejudice filed on May 15, 2015……………………………………………………………………. Tab C Plaintiffs’ Withdrawal of Plaintiffs’ Notice of Nonsuit without Prejudice and Request for Reinstatement filed on May 18, 2015 ………………………………………………………………………… Tab D Order Reinstating Plaintiffs’ Suit signed on May 18, 2015………………………………………………………………….. Tab E Defendants’ Motion to Reconsider Plaintiffs’ Motion to Reinstate and to Deny Reinstatement filed on May 19, 2015…………………….. Tab F Defendants’ Amended Motion to Reconsider Plaintiffs’ Motion to Reinstate and to Deny Reinstatement filed on June 1, 2015………………………………………………………………….. Tab G Plaintiffs’ Notice of Nonsuit without Prejudice of Guillermo Torres filed on June 10, 2015………………………………………………… Tab H Order of Dismissal without Prejudice of Guillermo Torres signed on June 15, 2015…………………………………………………………. Tab I
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