Marla Cuellar v. Omar Maldonado

• Court: Court of Appeals of Texas
• Decided: February 17, 2015
• Docket: 13-14-00491-CV
• Status: Published

Opinion

ACCEPTED 13-14-00491-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/15/2015 7:31:37 AM DORIAN RAMIREZ CLERK

CAUSE NO. 13-14-491-CV In The RECEIVED IN 13th COURT OF APPEALS Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS 2/15/2015 7:31:37 AM For the DORIAN E. RAMIREZ Thirteenth Appellate District Clerk

Corpus Christi/Edinburg, Texas

MARLA CUELLAR FILED IN THE 13TH COURT OF APPEALS APPELLANT CORPUS CHRISTI

V. 02/17/15 DORIAN E. RAMIREZ, CLERK BY CCoronado OMAR MALDONADO APPELLEE RECEIVED BRIEF OF APPELLEE RECEIVED

2/17/15

13th COURT OF APPEALS

E. OMAR MALDONADO 2/17/15

Daniel M.L. Hernandez KEITH C. LIVESAY HERNANDEZ LAW FIRM, P.C. LIVESAY LAW OFFICE 308 E. Villa Maria Rd. BRAZOS SUITES NO. 9 Bryan, Texas 77801 517 W. Nolana Ave. Telephone: 1.979.822.6100 McAllen, Texas 78504 Facsimile: 1.979.822.6001 (956) 928-0149

Hitesh K. Chugani George D. Durham III H.K.C. LAW GSK LAW 517 West Nolana #7 517 West Nolana, #6 McAllen, Texas 78501 McAllen, Texas 78504 Tel: (956) 212-1601 Tel: (956) 900-4187 Fax: (956) 524-5153

February 16, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES iii

STATEMENT OF NATURE OF CASE 2

ISSUES PRESENTED 2

STATEMENT OF FACTS 4

SUMMARY OF ARGUMENT 10

ARGUMENT 11

[A] Presiding Judge Properly Ignored Objection to Appointed Judge 11

[B] Mere Disagreement With Trial Court Insufficient for Reversal 17

[C] Contestant Failed to Present Evidence of Her Good Faith 21

[D] Contestee Not Required to Present Time Figure for Each Activity 33

CONCLUSION AND PRAYER 42

CERTIFICATE OF COMPLIANCE 43

CERTIFICATE OF SERVICE 44

ii TABLE OF AUTHORITIES

CASES

Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.--Houston [14th Dist.] 2000, no pet.) 38

Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex. App.--Corpus Christi 2000, no pet.) 20

Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653 (Tex. App.--Beaumont 1990, no writ) 18

Amoco Production Co. v. Smith, 946 S.W.2d 162, 165 (Tex. App.--El Paso 1997, no writ) 38

Amadi v. City of Houston, 369 S.W.3d 254, 256 (Tex. App.— Houston [14th Dist.] 2011, pet. denied) 14

Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) 37

Bates v. Randall County, 297 S.W.3d 828, 838 n. 10 (Tex. App.--Amarillo 2009, pet. denied) 40

Beasley v. Peters, 870 S.W.2d 191, 196 (Tex. App.—Amarillo 1994, no writ) 32

Booth v. Malkan, 858 S.W.2d 641, 643-44 (Tex. App.--Fort Worth 1993, writ denied) 22

Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.--Houston [1st Dist.] 1994, writ denied) 21

Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex. App.--Dallas 2003, no pet.) 41

iii Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--Corpus Christi 1996, writ denied) 20

City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2013) 41

City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex. App.— Corpus Christi 1998, writ denied) 20

City of San Antonio ex rel. City Public Service Board v. Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin 2009, pet. dism’d) 12

Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 381 (Tex. App.--Houston [14th Dist.] 2012, pet. denied) 35

Cuellar v. Maldonado, 2014 WL 2158135 (Tex. App.—Corpus Christi 2014, no pet.) 4

de Laurentis v. United Services Auto. Ass'n, 162 S.W.3d 714, 722 n. 6 (Tex. App.--Houston [14th Dist.] 2005, pet. denied) 29

Delcor USA, Inc. v. Texas Indus. Specialties, Inc., 2011 WL 6224466 at 5 (Tex. App.--Houston [14th Dist.] 2011, no pet.) 41

Delgado v. Methodist Hospital, 936 S.W.2d 479, 487-88 (Tex. App.--Houston [14th Dist.] 1996, no writ) 23

E.C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex. App.--Corpus Christi 2000, no pet.) 19

E.I. Du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) 18

El Apple I v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012) 41

Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 354 (Tex. App.--Corpus Christi 1997), writ denied per

iv curiam, 989 S.W.2d 360 (Tex. 1998) 18

Flores v. Banner, 932 S.W.2d 500 (Tex. 1996) 15

Flores v. Velasco, 68 S.W.3d 86 (Tex. App.–-Dallas 2001, no pet.) 16

Fonseca v. County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.) 20

Garcia-Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.—Dallas 2004, no pet.) 13

Garrod Investments, Inc. v. Schlegel, 139 S.W.3d 759, 768 (Tex. App.--Corpus Christi 2004, no pet.) 38

Garza v. Dare, 475 S.W.2d 340, 342 (Tex. Civ. App.—Corpus Christi 1971, no writ) 5

Gonzalez v. Ables, 945 S.W.2d 253 (Tex. App.--San Antonio 1997, no writ) 16

Gonzalez v. Nielson, 770 S.W.2d 99, 102-03 (Tex. App.—Corpus Christi 1989, writ denied) 38

Goss v. State, 944 S.W.2d 748, 750 (Tex. App.--Corpus Christi 1997, no p.d.r.) 29

Griego v. State, 853 S.W.2d 664, 666 (Tex. App.--Houston [1st Dist.] 1993, no p.d.r.) 14

Gutierrez v. Elizondo, 139 S.W.3d 768, 775 (Tex. App.—Corpus Christi 2004, no pet.) 28

Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 n. 1 (Tex. App.--Corpus Christi 2001, no pet.) 29

Hays & Martin, L.L.P. v. Ubinas-Brache, 192 S.W.3d 631, 636 (Tex.

v App.--Dallas 2006, pet. denied) 40

Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus Christi 2000, no pet.) 19

Home Owners Funding Corp. of America v. Scheppler, 815 S.W.2d 884, 889 (Tex. App.--Corpus Christi 1991, no writ) 18

In re A.S.G., 345 S.W.3d 443, 451(Tex. App.--San Antonio 2011, no pet.) 40

In re Braden, 960 S.W.2d 834, 836 (Tex. App.--El Paso 1997, no pet.) 35

In re Estate of Johnson, 340 S.W.3d 769, 789 (Tex. App.—San Antonio 2011, pet. denied) 37

In re Estate of Washington, 262 S.W.3d 903, 906 (Tex. App.— Texarkana 2008, no pet.) 29

In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.—Corpus Christi 2003, mand. denied) 18

In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.--Corpus Christi 2005, no pet.) 19

In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.--Dallas 2007, no pet.) 38

Keaton v. Ybarra, 552 S.W.2d 612, 616 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.) 32

Keith v. Keith, 221 S.W.3d 156, 166-67 (Tex. App.--Houston [1st Dist.] 2006, no pet.) 22

King v. First Nat. Bank of Baird, 161 S.W.3d 661, 663 (Tex.

vi App.–Eastland 2005, no pet.) 23

K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 607 (Tex. App.— Houston [14th Dist.] 2012, pet denied) 22

La Ventana Ranch Owners' Ass'n, Inc. v. Davis, 363 S.W.3d 632, 651 (Tex. App.--Austin 2011, pet. denied) 41

Law Offices of Robert D. Wilson v. Texas Univest-Frisco, Ltd., 291 S.W.3d 110, 113 (Tex. App.--Dallas 2009, no pet.) 22

Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.--Corpus Christi 2003, pet. denied) 30

Loeffler v. Lytle Independent School Dist., 211 S.W.3d 331, 349 (Tex. App.--San Antonio 2006, pet. denied) 22

Metzger v. Sebek, 892 S.W.2d 20, 53 n. 31 (Tex. App.–Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868, 116 S.Ct. 186, 133 L.Ed.2d 124 (1995) 33

Miller v. Armogida, 877 S.W.2d 361, 365 (Tex. App.--Houston [1st Dist.] 1994, writ denied) 35

Mission Consol. Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) 32

Monroe v. Grider, 884 S.W.2d 811, 817 (Tex. App.—Dallas 1994, writ denied) 23

Moore v. Edna Hospital Dist., 449 S.W.2d 508, 520 (Tex. Civ. App.--Corpus Christi 1969, no writ) 5

New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.--Dallas 1993, no writ) 29

Ogunboyejo v. Prudential Property and Cas. Co., 844 S.W.2d

vii 860, 863 (Tex. App.—Texarkana 1992, writ denied) 34

O'Carolan v. Hopper, 414 S.W.3d 288, 299 (Tex. App.--Austin 2013, no pet.) 14

Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 289 (Tex. App.— Dallas 2012, no pet.) 30

Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963) 12

Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 576 (Tex. App.--San Antonio 2011, no pet.) 35

Reading & Bates Const. Co. v. O'Donnell, 627 S.W.2d 239, 244 (Tex. App.--Corpus Christi 1982, writ ref’d n.r.e.) 19

Regalado v. Munoz, 2014 WL 3542056 (Tex. App.--Corpus Christi 2014, no pet.) 5

Robson v. Gilbreath, 267 S.W.3d 401, 405-06 (Tex. App.—Austin 2008, pet. denied) 22

Sabine Offshore Service, Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) 29

Scheel v. Alfaro, 406 S.W.3d 216, 227 (Tex. App.--San Antonio 2013, pet. denied) 30

Scott Bader, Inc. v. Sandstone Products, Inc., 248 S.W.3d 802, 816 (Tex. App.--Houston [1st Dist.] 2008, no pet.) 35

Sellers v. Gomez, 281 S.W.3d 108, 116 (Tex. App.--El Paso 2008, pet. denied) 34

Springer v. Johnson, 280 S.W.3d 322, 329 (Tex. App.--Amarillo 2008, no pet.). 14

viii Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) 12

Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.—Waco 2009, p.d.r. ref'd) 17

Tesoro v. Alvarez, 281 S.W.3d 654, 660 n. 3 (Tex. App.—Corpus Christi 2009, no pet.) 30

Tita v. State, 267 S.W.3d 33, 38 n. 7 (Tex. Cr. App. 2008) 13

United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005) 31

Vazaldua v. Munoz, 2014 WL 2937014 (Tex. App.--Corpus Christi 2014, no pet.) 5

View Point Bank v. Allied Property and Cas. Ins. Co., 439 S.W.3d 626, 636 (Tex. App.--Dallas 2014, pet. filed) 37

Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex. App.-- Corpus Christi 1999, writ denied) 18

Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1150 (1939) 14

Zeifman v. Nowlin, 322 S.W.3d 804, 809-10 (Tex. App.—Austin 2010, no pet.) 22

STATUTES

Tex. Elec. Code §231.004 11

Tex. Elec. Code §232.010 15

Tex. Gov't Code §74.056(a) 13

Tex. Gov't Code §74.053 11

ix WAIVER OF ORAL ARGUMENT

Exactly like the table of authorities, "[O]ral arguments are as

useless." Wice, An Invitation to Persuade? We Decline, 15 TEX. LAW. 32

(1999). It adds little to the ultimate result of a contested case.

Aldisert, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT 294 (NITA

rev. ed. 1996). This Court has already reached this conclusion and

has denied oral argument. Appellee wholeheartedly agrees with

this Court's assessment.

x CAUSE NO. 13-14-491-CV In The Court of Appeals For the Thirteenth Appellate District Corpus Christi/Edinburg, Texas

MARLA CUELLAR APPELLANT V.

E. OMAR MALDONADO APPELLEE

BRIEF OF APPELLEE E. OMAR MALDONADO TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES E. OMAR MALDONADO, Appellee in the above

styled and numbered cause, and files this his BRIEF OF APPELLEE,

demonstrating that the regional presiding judge properly denied

Appellant’s objection to reassignment of the retired trial judge who

was already familiar with the matter, and that sanctions are clearly

appropriate when the losing candidate repeatedly admits she does

not possess evidence to support her allegations.

xi STATMENT OF NATURE OF CASE

The loser of a judicial primary race files an election contest,

parroting the allegations contained in the Election Code for

obtaining new election. But such petition ignored one problem:

such allegations were premised on a wing and a prayer, instead of

actual evidence of an improper tally. The election winner was

required to expend $60,000 attempting to vindicate the results and

clean the stain on the election and his judicial position. The trial

court, the 206th District Court of Hidalgo County, Texas, Hon. J.

Manuel Banales, visiting judge presiding, finds such election contest

completely without merit, and accordingly sanctions the losing

candidate and her attorneys for the cost of the defense. And from

such sanctions, the losing candidate appeals.

ISSUES PRESENTED

Does the Election Code provide a party to an election contest

an absolute right to object to the appointed judge?

Do specific statutes control over general statutes?

Would permitting a party to an election contest an absolute

xii right to object to the appointed judge run contrary to the Legis-

lature's express policy of expedited resolution of election contests?

Must a litigant possess evidence of an improper vote tally

before she files an election contest?

Does a litigant engage in sanctionable conduct when she files

an election contest without any evidence to support her allegations

that the election tally does not represent the true intention of the

voters?

Must testimony in a deposition be actually presented to the trial

court, before it can be considered as substantive evidence, either at

trial or on appeal?

In adjudicating an appeal, can this Court consider evidence

which was never expressly presented to the trial court?

Does the adage that a prosecutor could convince a grand jury

to indict a ham sandwich ring true in the Rio Grande Valley?

Are the underlying merits of a claim adjudicated in a plea to

the jurisdiction?

Is a sanction excessive when the amount awarded constitutes

the costs for defending frivolous litigation?

xiii Must the attorney's fees awarded as sanction be premised on

evidence of their reasonableness and necessity?

Must a litigant seeking to recover attorney's fee prove how

each second of time was spent?

STATEMENT OF FACTS

The case at bar presents the sequel to Cause No. 13-14-228-CV,

Cuellar v. Maldonado, 2014 WL 2158135 (Tex. App.--Corpus Christi

2014, no pet.), Cl.R. 17-27. This Court in the prior appeal completely

ignored the entire lack of evidence to support the claims of an

improper election result (which thus rendered the initial dismissal for

lack of jurisdiction harmless). Now this Court must address such

complete lack of evidence, but in the context of sanctions

awarded.

Marla Cuellar, Appellant herein, and E. Omar Maldonado,

Appellee herein, were both vying to be the democratic party

candidate for the County Court at Law No. 8 of Hidalgo County.

After a hard fought campaign, the voters decided: the majority of

Democrats wanted Appellee to be their next County Court at Law

No. 8 judge. Mr. Maldonado received 51.82% of the vote, thereby xiv avoiding a run off. 5 C.R. 23.

Numerous candidates could not believe the election results.

given the disparities of the final tally and their polling data. But the

only piece of concrete evidence impugning the result was the

malfunctioning of a single voting machine in the District Attorney's

race. Nevertheless, numerous election contests, objecting to the

Democratic Party primary were subsequently filed.1 As part of this

group, Appellant (hereinafter referred to as “Contestant”) filed an

election contest in her race. Because of her allegations failed to

sufficiently invoke the jurisdiction of the trial court in the context of an

election contest, Garza v. Dare, 475 S.W.2d 340, 342 (Tex. Civ. App.--

Corpus Christi 1971, no writ); Moore v. Edna Hospital Dist., 449 S.W.2d

508, 520 (Tex. Civ. App.--Corpus Christi 1969, no writ), Appellee

(hereinafter referred to as "Contestee") filed a plea to the jurisdiction.

While the trial court granted the plea, this Court reversed. Cl.R. 17-

27.2

1See, e.g., Regalado v. Munoz, 2014 WL 3542056 (Tex. App.--Corpus Christi 2014, no pet.); Vazaldua v. Munoz, 2014 WL 2937014 (Tex. App.--Corpus Christi 2014, no pet.); Cuellar v. Maldonado, supra. 2This Court's opinion completely failed to cite (much less discuss) the legal

authorities which supported the trial court's decision. xv Pursuant to the election code, an out of county visiting judge

must be appointed to adjudicate an election contest. Tex. Elec.

Code §231.004. Pursuant to this statutory requirement, after remand,

the presiding administrative judge reappointed a retired judge to this

matter, Hon. J. Manuel Banales, the same judge who had previously

granted the plea to the jurisdiction. Cl.R. 45. In an effort to further

delay the proceedings, Contestant objected to Judge Banales,

demanding the appointment of another visiting judge. Cl.R. 46-48.

The presiding administrative judge, sua sponte,3 denied Contestant’s

request, based upon his interpretation of the applicable statutes.

Cl.R. 49-50.

Judge Banales subsequently set Contestant’s election contest

for trial. Because no evidence supported Contestant's allegations,

Contestee filed a motion for sanctions, seeking relief under Tex. Civ.

Prac. & Rem. Code ch. 9, Tex. Civ. Prac. & Rem. Code ch. 10, and

Tex. R. Civ. P. 13. Cl.R.93-98.4 To insure that Contestant appeared at

3Contestee did not enter this fray; his main interest was obtaining an expedited resolution of Contestant's claims, whether it be before Judge Banales or before another visiting judge. 4Contestant failed to assert special exceptions to the motion, or otherwise

complain of the motion's insufficiency. xvi trial, she was served with a trial subpoena. Cl.R. 57, 60-61.5

Ignoring the subpoena, Contestant failed to appear at the

scheduled trial, and was instead vacationing in Alaska.6 3 C.R. 12; 4

C.R. 17; Cl.R. 52. Because her counsel informed her of the trial date,

3 C.R. 13, either Contestant did not care about her election contest,

or she was attempting to further delay the proceedings. Contestee

objected. Cl.R. 83-92. But such misconduct succeeded: Judge

Banales reset the trial of her election contest. 3 C.R. 33; 4 C.R. 16.7

The new trial date approached, and finally Contestant realized

that she could not prevail on her claims. Consequently, she non

suited her contest. 5 C.R. 5. Contestee demanded that her claims

be dismissed with prejudice, which the trial court granted. Cl.R. 136.

Accordingly, Contestee proceeded with his motion for sanctions. 5

C.R. 7.

To support such motion, Contestee presented damning

testimony from Contestant's own lips: she was asked what evidence

5Contestant was not happy about this. Cl.R. 92. 6Given the pennies public servants are paid, and the impecunious legal market, the closest Contestee and his attorneys will ever get to Alaska is by watching the Travel Channel. 7Contestee also filed a motion for contempt for such a blatant abuse of the

process. Cl.R. 130-33. xvii supported various allegations contained in her petition, and she

repeatedly responded, "I don't have any". 5 C.R. 25-34. The

impropriety of such conduct was confirmed by Contestee's attorney,

who also testified that, based on the evidence developed, the

contest was frivolous, 5 C.R. 44, and that $60,000 was expended in

defending Contestee against Contestant's spurious allegations. 5

C.R. 43-44. Contestant's response at the hearing: dead silence; she

completely failed to present any evidence to contradict her

repeated admissions of "no evidence" made during her deposition.8

5 C.R. 35.

After considering such evidence, Judge Banales made the

following findings:

The Court finds that Contestant alleged in her petition that based on irregularities‒tampering with electronic voting and equipment and the resulting misdirecting of votes‒ that were reported in the race for District Attorney in the same primary election as hers, the final tabulation in her race for Judge of County Court at Law No. 8 may have been affected by the same irregularities. It was necessary, she alleged, that the voting machines be examined to determine whether any tampering had occurred or any votes misdirected in her race. She appears to be saying that, because of the alleged irregularity that 8Asexplain in more detail, infra, Contestee does not believe the other portions of Contestant's deposition testimony, which allegedly justified her conduct, were properly before the trial court. xviii occurred in another race, it must have occurred in her race as well. The Court finds that this pleading is groundless and frivolous without any allegation of facts to support it and that it was made in bad faith.

The Court further finds that, during her deposition testimony presented as evidence, Contestant admitted that she had no evidence to support her allegations, that she had no facts to support a charge of tampering of the voting machines, that no voter had complained of any irregularity in her race similar to what was reported in the District Attorney’s race, that she had no evidence that any of votes had been diverted to Contestee, and that she had no evidence of election fraud committed by anyone. The Court also finds that Contestant had no evidence that Contestee may have tampered with the election machines or the vote or the outcome of the election. Even so, she filed her election contest without knowledge of any facts to support it. The [Court] finds that this pleading is groundless and frivolous without any allegation of facts to support it and was made in bad faith.

A sanction may be imposed against a party, her counsel or both. Counsel has a duty to make a good faith preliminary inquiry to determine whether facts exist to support a claim by a potential plaintiff and to plead sufficient facts to show that the claim has merit. Mere speculation or surmise is not enough. A careful reading of the petition shows that counsel did not plead facts to show that Contestant is entitled to relief. It is proper in this case to impose sanctions against both Contestant and her counsel.

Cl.R. 170 (emphasis added).9 As a result, both Contestant and her

attorneys were sanctioned $60,000, jointly and severally. Cl.R. 172.

Naturally disliking this result, Contestant appealed this judgment.

9Suchfindings clearly satisfy Tex. R. Civ. P. 13's requirement of specificity, and Contestant fails to complain of lack of specificity herein. xix Cl.R. 173-74.

SUMMARY OF ARGUMENT

Generally, a litigant possesses the right to object to an

appointed judge. However, such right is limited to appointments

made pursuant to the Government Code. In the case at bar, Judge

Banales' appointment was made pursuant to the Election Code. No

right exists to automatic disqualification exists under the Election

Code.

Every litigant (including candidates who file election contests)

are required to investigate their claims prior to filing their petition. In

the case at bar, the trial court heard uncontradicted evidence that

Contestant did not possess any evidence to support the allegations

contained in her contest, and did not possess any evidence on the

day the contest was filed. As a result, the trial court was well within

its discretion in sanctioning Contestant.

The amount of sanctions awarded lies within the discretion of

the trial court, and thus the abused litigant is not required to prove

either the reasonableness or necessity of his attorney's fees.

Accordingly, whether Contestee provided time figures for each xx second spent in defense of this lawsuit is completely irrelevant, and

does not impugn the trial court's award. Furthermore, a sanction

cannot be considered excessive when it constitutes the costs of

defense.

ARGUMENT

[A] Presiding Judge Properly Ignored Objection to Appointed Judge

The Election Code provides as follows:

(a) The judge of a judicial district that includes any territory covered by a contested election that is less than statewide is disqualified to preside in the contest.

(b) If a contest is filed in which a judge is disqualified under Subsection (a), the district clerk shall promptly call the filing to the attention of the judge. The judge shall promptly request the presiding judge of the admini- strative judicial region to assign a special judge to preside in the contest.

Tex. Elec. Code §231.004. However, the Government provides as

follows:

(a) When a judge is assigned to a trial court under this chapter:

(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. . . . xxi (c) An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. . . .

(d) An assigned judge or justice who was defeated in the last primary or general election for which the judge or justice was a candidate for the judicial office held by the judge or justice may not sit in a case if either party objects to the judge or justice.

Tex. Gov't Code §74.053 (emphasis added). Based on the wording

of such statutes, the presiding judge refused to disqualify Judge

Banales based on Contestant's objection; his appointment was

pursuant to the Election Code (which does not provide for

objections to assignments) and not the Government Code (which

does). Cl.R. 49-50. In light of the subsequent sanctions, Contestant

naturally complains of the presiding judge's action. However, the

presiding judge herein correctly applied the applicable statutes.

“[I]t is settled that every word in a statute is presumed to have

been used for a purpose; and a cardinal rule of statutory

construction is that each sentence, clause and word is to be given

xxii effect if reasonable and possible.” Perkins v. State, 367 S.W.2d 140,

146 (Tex. 1963). Thus, statutes must be enforced as written, City of

San Antonio ex rel. City Public Service Board v. Bastrop Cent.

Appraisal Dist., 275 S.W.3d 919, 923 (Tex. App.--Austin 2009, pet.

dism’d), despite any imperfections contained therein. Stockton v.

Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).

A litigant’s right to an automatic objection applies to visiting

judges appointed pursuant to the Government Code; the statute

providing such rights expressly states that it exists for judges

appointed under "this subchapter". Tex. Gov’t Code §74.053. The

Government Code's provisions of "This subchapter" authorizes the

presiding judge to appoint judges " to hold special or regular terms of

court in any county of the administrative region to try cases and

dispose of accumulated business." Tex. Gov't Code §74.056(a). But

given the nature of Contestant's allegations, Judge Banales'

appointment was pursuant to (and limited by) the Election Code,10

and not the Government Code. Cl.R. 49-50; Tex. Elec. Code

10Contestant's claim that Judge Banales' appointment was the functional equivalent to an appointment under Chapter 74 of the Government Code, Appellant's Brief, p. 11, is false. The Election Code specifically limits whom may be appointed to preside over an election contest. xxiii §231.004. Thus, pursuant to the plain terms of the statute, Contestant

did not possess the statutory right to object to Judge Banales.

Such construction is consistent with other maxims of statutory

construction. "A fundamental rule of statutory construction is that a

more specific statute controls over a more general one." Garcia-

Udall v. Udall, 141 S.W.3d 323, 331 (Tex. App.--Dallas 2004, no pet.);

accord, Tita v. State, 267 S.W.3d 33, 38 n. 7 (Tex. Cr. App. 2008). Thus,

when the law makes a general provision, apparently for all classes,

and a special provision for a particular class, the general must yield

to the special, insofar as the particular class is concerned. Springer

v. Johnson, 280 S.W.3d 322, 329 (Tex. App.--Amarillo 2008, no pet.).

In the case at bar, the Government Code provides the general

provision, to be applied in most cases. Tex. Gov’t Code §74.053.

However, the Election Code provides a specific provision for

mandatory recusal, and restricting the class of persons who may be

appointed as visiting judge. Tex. Elec. Code §231.004. Such

provisions are limited to a particular class of lawsuits, i.e. election

contests. Thus, the Election Code (and its lack of a provision for

objection) controls. Springer v. Johnson, supra.

xxiv Finally, Contestee would point out that “A statute should not be

construed in a spirit of detachment as if it were a protoplasm floating

around in space.” Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138,

1150 (1939). Thus, in construing statutes, courts should consider the

consequences of a particular interpretation. O'Carolan v. Hopper,

414 S.W.3d 288, 299 (Tex. App.--Austin 2013, no pet.); Amadi v. City of

Houston, 369 S.W.3d 254, 256 (Tex. App.--Houston [14th Dist.] 2011,

pet. denied). This remains true, even if the statute is unambiguous.

Springer v. Johnson, supra; Griego v. State, 853 S.W.2d 664, 666 (Tex.

App.--Houston [1st Dist.] 1993, no p.d.r.).

The Legislature has mandated that election contests proceed

on the "rocket docket", with an answer filed within five days, Tex.

Elec. Code §232.010, trial within ten (10) days, Tex. Elec. Code

§232.012(d), and only one continuance permitted. Tex. Elec. Code

§232.012(e). Permitting objections to assigned judges can only

interfere with the Legislature's mandate of expedited resolution of

election contests. Theoretically, if the presiding administrative judge

kept appointing retired judges (who may be the only ones willing to

accept such politically radioactive appointments), trial on the merits

xxv could be postponed indefinitely. But even if retired judges were not

appointed, permitting objections inevitably delay the proceedings,

allowing the parties a week to file an objection, and then forcing the

administrative judge to find and appoint another judge. Such delay

is directly contrary to the Legislature's intent.

The cases relied upon by Contestant do not address the

interplay between Tex. Elec. Code Tex. Elec. Code §231.004 and Tex.

Gov’t Code §74.053.11 For example, in Flores v. Banner, 932 S.W.2d

500 (Tex. 1996), one of the litigants repudiated the settlement, and

accordingly, filed a motion to recuse the judge. A judge was

appointed to hear the recusal motion, and the litigant filed a

blanket objection to any retired judge. The Supreme Court held that

this blanket objection was sufficient. Id at 501-02. However, such

appointment was made pursuant to the Government Code, id at

501; the Election Code does not contain any provisions for the

appointment of judges when a motion to recuse is filed.

The case of Flores v. Velasco, 68 S.W.3d 86 (Tex. App.–-Dallas

11Indeed, for two of the cases, although arising out of an election contest, the litigation had ceased being about an election, but instead involved efforts to enforce a settlement. xxvi 2001, no pet.) continued this saga. In the litigation to enforce the

settlement, the visiting judge (who had been elected to the bench)

retired. Consequently, the administrative judge reassigned the same

visiting judge, pursuant to the Government Code. One of the

litigants objected. “The unique question presented by this case is

whether a judge's previous status as a sitting judge assigned to this

case precludes a section 74.053 objection.” Id at 88. Again,

because the lawsuit involved enforcement of a settlement, and the

appointment was made pursuant to the Government Code.

Finally, in Gonzalez v. Ables, 945 S.W.2d 253 (Tex. App.--San

Antonio 1997, no writ), two election contests were filed, and thus the

presiding administrative judge appointed two special judges. Again,

such appointment was made pursuant to the Government Code.

The litigants objected to these special judges, and accordingly, the

administrative judge appointed himself to preside over the contest.

Again, the litigants objected, but to no avail; the administrative

judge was merely exchanging benches, and thus the right to

disqualification did not apply. Id at 254.

[B] Mere Disagreement With Trial Court Insufficient for Reversal

xxvii In her brief, Contestant failed to address the applicable

standard of review for the imposition of sanctions. Such an omission

constitutes a briefing deficiency which can mandate rebriefing or

even summary affirmance of the trial court's decision. See,

Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.--Waco 2009,

p.d.r. ref'd). Recognizing that such relief may be too harsh,

Contestee will attempt to correct this omission.

As this Court has noted, "A reviewing court cannot conclude

that a trial court abused its discretion if, in the same circumstances, it

would have ruled differently or if the trial court committed a mere

error in judgment." Engelman Irrigation Dist. v. Shields Bros., Inc., 960

S.W.2d 343, 354 (Tex. App.--Corpus Christi 1997), writ denied per

curiam, 989 S.W.2d 360 (Tex. 1998); accord, E.I. Du Pont de Nemours

and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Wal-Mart

Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex. App.--Corpus Christi

1999, writ denied); Home Owners Funding Corp. of America v.

Scheppler, 815 S.W.2d 884, 889 (Tex. App.--Corpus Christi 1991, no

writ). Rather, "A trial court abuses its discretion when it does not

follow guiding rules and principles and reaches an arbitrary and

xxviii unreasonable decision." In re Frost Nat. Bank, 103 S.W.3d 647, 649

(Tex. App.--Corpus Christi 2003, mand. denied). As one reviewing

court explained:

The question is not whether the trial judge might have exercised better judgment, or made a mere error in judgment which are no doubt, common in many courts. In order for the trial court's actions to have been abusive, the order must have been so unreasonable, so arbitrary, or based upon so gross and prejudicial an error of law as to have no basis in reason or in law.

Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653 (Tex.

App.--Beaumont 1990, no writ).

In determining whether an abuse of discretion occurred, the

reviewing court must view the evidence in the light most favorable

to the trial court's action, and indulge every legal presumption in

favor of the judgment or order. In re J.I.Z., 170 S.W.3d 881, 883 (Tex.

App.--Corpus Christi 2005, no pet.). If some evidence supports its

decision, then the trial court acted within its discretion. In re L.G.G.,

398 S.W.3d 852, 855 (Tex. App.--Corpus Christi 2012, no pet.); Reading

& Bates Const. Co. v. O'Donnell, 627 S.W.2d 239, 244 (Tex. App.--

Corpus Christi 1982, writ ref’d n.r.e.).

xxix Furthermore, in reviewing such abuse of discretion complaints,

the appellate court must keep in mind the role of the trial judge. As

this Court has explained, "[T]he trial court is in the best position to

observe the demeanor and personalities of the witnesses and can

feel forces, powers, and influences that cannot be discerned by

merely reading the record." E.C., Jr. ex rel. Gonzales v. Graydon, 28

S.W.3d 825, 829 (Tex. App.--Corpus Christi 2000, no pet.). Based on

such forces, powers, and influences, the trial court determines the

credibility of the witnesses, assigns the weight to be given their

testimony, Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697,

701 (Tex. App.--Corpus Christi 2000, no pet.), and resolves and

reconciles conflicts therein, accepting or rejecting such portions

thereof as it sees fit. City of Port Isabel v. Shiba, 976 S.W.2d 856, 859

(Tex. App.--Corpus Christi 1998, writ denied). Thus, the trial court "is

free to reach its findings by believing or rejecting some or all of the

contradictory testimony when assessing the comparative truthfulness

of witnesses." Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--

Corpus Christi 1996, writ denied); see also, Roberts v. Burkett, 802

S.W.2d 42, 47 (Tex. App.--Corpus Christi 1990, no writ); Fonseca v.

xxx County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ. App.--Corpus Christi

1975, writ ref'd n.r.e.). This Court cannot substitute its findings for the

trial court's concerning the credibility of the witnesses. Adams v. H &

H Meat Products, Inc., 41 S.W.3d 762, 769 (Tex. App.--Corpus Christi

2000, no pet.).

[C] Contestant Failed to Present Evidence of Her Good Faith

"No litigant has the right to put a party to needless burden and

expense or to waste a court's time that would otherwise be spent on

the sacred task of adjudicating the valid disputes of Texas citizens."

Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.--Houston [1st Dist.] 1994,

writ denied). Accordingly, trial courts are authorized to sanction

litigants for groundless pleadings and motions, Tex. Civ. Prac. & Rem.

Code ch. 9; Tex. Civ. Prac. & Rem. Code ch. 10; Tex. R. Civ. P. 13,

and Contestee sought sanctions against Contestant pursuant to

such authorization. Cl.R. 93-98. The purpose of imposing sanctions

for filing groundless pleadings and motions is to deter similar conduct

in the future and to compensate the aggrieved party for costs

incurred in responding to the frivolous claims. Law Offices of Robert

D. Wilson v. Texas Univest-Frisco, Ltd., 291 S.W.3d 110, 113 (Tex. App.--

xxxi Dallas 2009, no pet.).

Consequently, every litigant must make a reasonable inquiry,

both factually and legally, prior to filing any pleading or motion.

Sanctions are appropriate if the litigant does not possess a factual

basis for her allegations. See, e.g., Zeifman v. Nowlin, 322 S.W.3d 804,

809-10 (Tex. App.--Austin 2010, no pet.); Loeffler v. Lytle Independent

School Dist., 211 S.W.3d 331, 349 (Tex. App.--San Antonio 2006, pet.

denied). A litigant is also required to anticipate affirmative defenses

which might be pled. Booth v. Malkan, 858 S.W.2d 641, 643-44 (Tex.

App.--Fort Worth 1993, writ denied). A litigant cannot dodge

sanctions merely by claiming that she possessed a belief that her

allegations were true. K.J. v. USA Water Polo, Inc., 383 S.W.3d 593,

607 (Tex. App.--Houston [14th Dist.] 2012, pet denied); Keith v. Keith,

221 S.W.3d 156, 166-67 (Tex. App.--Houston [1st Dist.] 2006, no pet.).

And a litigant cannot file a lawsuit, and hope to uncover evidence

supporting her allegations later.12 See, Robson v. Gilbreath, 267

S.W.3d 401, 405-06 (Tex. App.--Austin 2008, pet. denied).

12Thus,the short window provided for filing an election contest addresses the quantum of evidence required before filing the petition, and not whether a contestant must possess evidence before filing such a petition. xxxii Moreover, “A trial court can impose sanctions for a party's or his

counsel's failure to inquire into the facts after he is on notice the facts

are not what he believes.” Monroe v. Grider, 884 S.W.2d 811, 817

(Tex. App.—Dallas 1994, writ denied). “The fact that a party refused

requests to dismiss a frivolous claim prior to the imposition of

sanctions is evidence which will support a trial court's determination

that sanctions are justified in a particular case.” Delgado v.

Methodist Hospital, 936 S.W.2d 479, 487-88 (Tex. App.--Houston [14th

Dist.] 1996, no writ).

Whether to impose sanctions lies in the discretion of the court,

and its decision will not be set aside unless an abuse of discretion is

show. King v. First Nat. Bank of Baird, 161 S.W.3d 661, 663 (Tex. App.–

Eastland 2005, no pet.). As previously mentioned, a trial court does

not abuse its discretion in awarding sanction merely because an

appellate court views the evidence differently than the trial court, or

would have reached a different conclusion had the applicable facts

been presented to it initially. Delgado v. Methodist Hospital, supra.

In the case at bar, Contestant admitted that she reviewed the

petition before it was filed. 5 C.R. 29. In it, she alleged that the

xxxiii election process failed to count legal votes, and/or that election

officials engaged in other fraud or illegal conduct or made mistakes

that precluded an accurate count of the actual votes cast. Cl.R. 24.

Yet, Contestant herself did not possess a reasonable basis for such

factual allegations, and did not possess a factual basis at the time

she filed the contest. The trial court’s evidence came from

Contestant’s own lips:

Q. You have no evidence to support your allegations that any election official prevented eligible voters from voting in the County Court at Law 8 race today? A. Today with me, no.

Q. Please identify the name of each election official you are accusing that prevented eligible voters from voting at the County Court at Law 8 election. A. I don't have that information.

Q. Clearly -- you are not stating that you have any sort of evidence by clear and convincing evidence that Yvonne Ramon13 is the person that prevented eligible voters from voting, are you? A. No, sir.

Q. Or anyone in her department, right? A. Specifically, no, sir.

Q. But generally? A. No, sir.

. . . . .

13Ms. Ramon is Hidalgo County Elections Administrator. 5 C.R. 41. xxxiv Q. You have no clear or convincing evidence that there were any irregularities in the election for the County Court at Law 8 which would demonstrate that more than 700 votes were either illegal, uncounted or fraudulent? A. Not at this time, no.

Q. Please identify each voting poll in which illegal votes were counted which materially altered or affected the outcome of the County Court at Law 8 election by more than 700 votes. A. I don't have that information now.

Q. You cannot identify any voters or election officials who conduct materially -- who affected the result of the outcome of the County Court at Law election by more than 700 votes, true? A. Not at this time.

Q. Okay. What training do you have or background do you have in telling from numbers that there is fraud? A. Because two plus two equals four, sir.

Q. Okay. Please identify the name of each election official you are accusing engaged in fraud which materially altered the outcome of the County Court at Law 8 election. A. I have none at this time.

Q. Please identify the name of each election official that you are accusing engaged in illegal conduct which materially altered the outcome of the County Court at Law 8 election. A. I'm not stating anyone specifically at this time.

Q. Because you don't know of anyone right now, correct? A. Correct.

xxxv Q. And you didn't know of anybody at the time that you filed you're election contest, correct? A. Correct.

Q. And the day before you filed it, you didn't know -- you couldn't identify anyone at that time, either, correct? A. Correct.

Q. Please identify the name of each election official you're accusing made a mistake which materially altered the outcome of the County Court at Law 8 election. A. I don't have any names at this time.

Q. And you didn't have any the day before the petition was filed, correct? A. Correct.

Q. And you didn't have any at the time that you filed the election contest with the Court, correct? A. Correct.

. . . .

Q. . . . You have no evidence to support any malfunction or illegal manipulation which materially affected the outcome of the County Court at Law 8 race -- A Not at this time. Q -- by more than 700 votes? A Not at this time.

Q Okay. What evidence do you have that there were irregularities in the casting and counting of ballots in the election that proves that true election results cannot be ascertained? A We don't have that at this time.

Q. And you don't know when we're going to have it, right?

xxxvi A. That's correct.

Q. And it's speculation on your part of what the results are going to be, correct? A. It's speculation on everyone's part.

Q. Which polling location specifically? A. I don't know exactly what polling location. I don't remember.

Q. Which individuals specifically you spoke to? A. To friends of our family.

Q. Okay. Who are they? A. I don't remember the names, all of the names at this time.

Q. Just give me some of the names that you used to form the basis of the letter that you wrote the county judge about -- complaining of numerous inconsistencies and discrepancies? A. I don't have those names at this time.

Q. What evidence do you have that there were irregularities in the casting and counting of ballots in the election that proves the contestant would be declared the winner? A. We don't have that information at this time.

Q. What evidence do you have that there were irregularities in the casting and counting of ballots in the election that proves a contestant would be declared the winner? A. We don't have that at this time.

Q. As you sit here today, you can't point to any polling station or precinct that had any voting irregularities; is that correct?

xxxvii A. Not at this time, no.

Q. One more question. As we sit here today with the evidence that you have before you that you've provided, do you believe that we should have a new election? A. I can't -- I can't draw a conclusion right now.

5 C.R. 25-34, passim (emphasis added). Given the complete lack of

evidentiary support for Contestant’s allegations, and Contestant's

failure to present contrary evidence (despite its patent availability), 5

C.R. 35,14 the trial court did not abuse its discretion in awarding

sanctions. See, Gutierrez v. Elizondo, 139 S.W.3d 768, 775 (Tex. App.--

Corpus Christi 2004, no pet.).

Contestant failed to present any evidence at the hearing of

her white heart. 5 C.R. 35. Subsequent to the hearing (and again on

appeal), Contestant cites to other evidence in her deposition,

evidence which she contents proves her white heart. Cl.R. 141-44.15

But the time for presenting such evidence to the trial court was at

the sanctions hearing. Consequently, Contestee believes such

evidence is not properly before this Court.

14Contrary to Contestant's implied assertion, Appellant's Brief, p. 18, Contestee did not possess the burden to present evidence which contradicted his motion. 15Contestee did not play the entire videotape deposition. 5 C.R. 24.

xxxviii In reviewing a trial court's decision, this Court is limited to the

evidence which the trial court considered,16 Goss v. State, 944

S.W.2d 748, 750 (Tex. App.--Corpus Christi 1997, no p.d.r.). Con-

sequently (and axiomatically), this Court is barred from considering

matters which appear outside the record, Sabine Offshore Service,

Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979); Harbor

Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 n. 1 (Tex. App.--Corpus

Christi 2001, no pet.), and it is improper for a litigant to rely on matters

outside the record in making her arguments to the court of appeals.

de Laurentis v. United Services Auto. Ass'n, 162 S.W.3d 714, 722 n. 6

(Tex. App.--Houston [14th Dist.] 2005, pet. denied). While portions of

Contestant's deposition was referred to in her post hearing brief, it

was never expressly presented as evidence at the hearing, and

nothing in the record indicates that the trial court affirmatively

considered it.17 Therefore, in determining whether the trial court

16"Appellate courts must base their decisions on the record as made and brought forward, not on a record that should have been made or that could have been made." In re Estate of Washington, 262 S.W.3d 903, 906 (Tex. App.-- Texarkana 2008, no pet.). 17As a general rule, sanctions should not be premised on the cold papers filed,

but only after viewing the witnesses and assessing their credibility. New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.--Dallas 1993, no writ). xxxix abused its discretion, this Court cannot consider it. Tesoro v. Alvarez,

281 S.W.3d 654, 660 n. 3 (Tex. App.--Corpus Christi 2009, no pet.);

Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.--Corpus Christi 2003,

pet. denied).

But even if this Court considered such evidence, this Court

would find that the trial court did not abuse its discretion. Direct

evidence of a sanctioned person's subjective intent is not required;

mal intent may be shown by either direct or circumstantial evidence.

Scheel v. Alfaro, 406 S.W.3d 216, 227 (Tex. App.--San Antonio 2013,

pet. denied); Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 289

(Tex. App.--Dallas 2012, no pet.). Furthermore, a trial court weighs

the evidence, and determines which evidence is more credible.

Roberts v. Burkett, supra; Fonseca v. County of Hidalgo, supra.

To prevail in her election contest, Contestant was required to

change or eliminate 700 votes. Only one voting machine allegedly

contained improprieties, and the improper vote occurred in the

District Attorney’s race, and not in the County Court at Law No. 8

race. Cl.R. 19. This machine alone could not provide a reasonable

basis for her election contest. Robson v. Gilbreath, supra. While

xl Contestant indicated that she had learned of other improprieties on

election day, she refused to identify who provided such information

or what such improprieties were. 5 C.R. 33. She also admitted that

her election contest was premised just on her suspicion. 5 C.R. 32.

The trial court could infer that because Contestant did not possess

evidence after discovery, she did not possess evidence when she

filed her contest.

Contestant's election petition does not specifically refer to the

District Attorney’s Office, and that it alone will prove irregularities. 5

C.R. 29. While admittedly a Hidalgo County grand jury was

investigating the voting machines, as the old adage goes, a

prosecutor could convince a grand jury to indict a ham sandwich.

United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005).

But more fundamentally, the Hidalgo County District Attorney’s

Office was not prosecuting this matter; Contestant herself was

required to present evidence that the voting machines functioned

improperly. Yet, she made absolutely no effort to obtain access to

the machines, or independently investigate such alleged

malfunctions and the effect on the ultimate tally. 3 C.R. 6, 9. When

xli questioned by she did not attempt to investigate the machines, she

claimed that she did not think about it. 5 C.R. 31. After reviewing

such evidence, Contestee's attorney concluded that the election

contest was frivolous. 5 C.R. 44. Based on this evidence (which the

trial court found credible), the trial court did not abuse its discretion

in awarding sanctions. Beasley v. Peters, 870 S.W.2d 191, 196 (Tex.

App.--Amarillo 1994, no writ).

Contestant further argues that because this Court determined

that the trial court erred it granted pleas to the jurisdiction, then ipso

facto, her suit possesses merit, precluding sanctions. However, in

adjudicating a plea to the jurisdiction, the actual merits are

irrelevant; a plea to the jurisdiction decides whether a court can

even reach the merits. Mission Consol. Ind. Sch. Dist. v. Garcia, 372

S.W.3d 629, 635 (Tex. 2012). Ignoring the requirement that an

appellate court must affirm a judgment on any ground presented in

the record, Keaton v. Ybarra, 552 S.W.2d 612, 616 (Tex. Civ. App.--

Corpus Christi 1977, writ ref'd n.r.e.), this Court in its prior decision

completely ignored the lack of evidence to support Contestant’s

position. Cl.R. 17-27. "The sole issue before the Court of Appeals was

xlii whether the allegations in Contestant’s petition were sufficient to

give the trial court jurisdiction to hear the case. The Court of Appeals

did not address the issue whether facts were pled to support the

petition." Cl.R. 171.18 Furthermore, sanctions were not imposed on

Contestant due to pleading insufficiencies, but because no

evidence supported her allegations, and she made no effort to

obtain such evidence. Cl.R. 170. Thus, this Court’s prior reversal does

not shield Contestant from sanctions. Metzger v. Sebek, 892 S.W.2d

20, 53 n. 31 (Tex. App.–Houston [1st Dist.] 1994, writ denied), cert.

denied, 516 U.S. 868, 116 S.Ct. 186, 133 L.Ed.2d 124 (1995)(pleadings

still considered frivolous even though litigant prevailed on motion for

summary judgment).

[D] Contestee Not Required to Present Time Figure for Each Activity

In order to determine the amount of sanctions, Contestee's trial

attorney testified concerning the nature of the work performed. 5

C.R. 37-44. He also produced activity sheets, which provided a list of

his activities. Based on the foregoing, he opined that Contestee had

incurred $60,000 in the defense of this matter. 5 C.R. 43. The trial

18Thus, the fact that election contests are statutorily authorized is completely irrelevant to sanctions. xliii court found such testimony credible, and awarded this amount.19

Cl.R. 172. Naturally, Contestant does not find such testimony

credible, and consequently claims the trial court abused its

discretion. Naturally, Contestee's disagrees with such assessment of

the evidence. But on a more fundamental level, Contestee

disagrees with Contestant's premise, i.e. that he was required to

present evidence demonstrating the reasonable and necessary

nature of attorney's fees in this context.

{1} REASONABLE AND NECESSARY PROOF UNNECESSARY

When a litigant is seeking attorney's fees for breach of contract

or violations of the Texas Deceptive Trade Practices Act, he must

prove that the attorney's fees expenses sought are reasonable and

necessary. However, when attorneys' fees are sought as sanctions,

the movant is need not present evidence any evidence of either

necessity or reasonableness. Sellers v. Gomez, 281 S.W.3d 108, 116

19“The choice of sanctions is for the trial court to determine, and so long as the sanctions are within the authority vested in the trial court they will not be overturned unless they constitute a clear abuse of discretion.” Ogunboyejo v. Prudential Property and Cas. Co., 844 S.W.2d 860, 863 (Tex. App.—Texarkana 1992, writ denied). Because the sanctions awarded compensated Contestee for the amount of attorney's fees he incurred in defending the election contest, the sanctions fulfilled one of its designed purposes, and thus was not excessive. xliv (Tex. App.--El Paso 2008, pet. denied); Miller v. Armogida, 877 S.W.2d

361, 365 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Indeed, in

this situation, the movant need not present any proof of attorney’s

fees at all. In re Braden, 960 S.W.2d 834, 836 (Tex. App.--El Paso 1997,

no pet.). "In cases in which the judgment is not one for earned

attorney's fees, but rather a judgment imposing attorney's fees as

sanctions, it is not invalid because a party fails to prove attorney's

fees." Scott Bader, Inc. v. Sandstone Products, Inc., 248 S.W.3d 802,

816 (Tex. App.--Houston [1st Dist.] 2008, no pet.). Accordingly, an

appellant who complains of "no evidence" or "insufficient evidence"

of necessity or reasonableness to support attorney's fees awarded

qua sanctions, has failed to present error. Cognata v. Down Hole

Injection, Inc., 375 S.W.3d 370, 381 (Tex. App.--Houston [14th Dist.]

2012, pet. denied); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc.,

345 S.W.3d 537, 576 (Tex. App.--San Antonio 2011, no pet.).

And so it is in the case at bar. Contestee was not awarded

attorney's fees for breach of contract or violation of the Texas

Deceptive Trade Practice Act; instead, as the trial court found, he

was awarded attorney's fees because Contestant engaged in

xlv sanctionable conduct. Cl.R. 168-72. Because attorney's fees were

imposed as a sanction, Contestant cannot complain of any lack of

evidence concerning reasonableness or necessity. Cognata v.

Down Hole Injection, Inc., supra; Prize Energy Resources, L.P. v. Cliff

Hoskins, Inc., supra.20

{2} SUFFICIENT EVIDENCE WAS PRESENTED OF ATTORNEY'S FEES

At the hearing on his motion for sanctions, Contestee

presented evidence concerning attorney's fees for the prosecution

of the underlying election contest. 5 C.R. 37-44. Assuming that

Contestee was required to prove the reasonableness and necessity

of such fees, he clearly satisfied this burden.

In determining a reasonable and necessary attorney's fees, a

trial court considers the following factors:

1. the time and labor required;

2. the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

3. the likelihood that the acceptance of the particular employment will preclude other

20This contention was expressly presented to the trial court, Cl.R. 164, yet Contestant failed to address it in the brief presented to this Court. Appellant's Brief, pp. 21-22. xlvi employment by the lawyer;

4. the fee customarily charged in the locality for similar legal services;

5. the amount involved and the results obtained;

6. the time limitations imposed by the client or by the circumstances;

7. the nature and length of the professional relationship with the client;

8. the experience, reputation, and ability of the lawyer or lawyers performing the services; and

9. whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818

(Tex. 1997). But these are just guidelines, not elements of proof. In re

Estate of Johnson, 340 S.W.3d 769, 789 (Tex. App.--San Antonio 2011,

pet. denied). No one factor is controls, and the applicant is not

required to present evidence on every factor. View Point Bank v.

Allied Property and Cas. Ins. Co., 439 S.W.3d 626, 636 (Tex. App.--

Dallas 2014, pet. filed); Acad. Corp. v. Interior Buildout & Turnkey

xlvii Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.--Houston [14th Dist.] 2000,

no pet.). In addition to these factors, the trial court may consider the

entire record and the common knowledge of the lawyers and

judges. In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.--Dallas 2007,

no pet.).

"The amount and reasonableness of attorney's fees is a

question of fact. . . Testimony of a local attorney as to what would

be a reasonable fee for handling the case is some evidence to

support an award of attorney's fees." Gonzalez v. Nielson, 770 S.W.2d

99, 102-03 (Tex. App.--Corpus Christi 1989, writ denied). "Courts have

uniformly held that any award of attorney's fees, pursuant to statute

or under common law, is within the discretion of the trial court.

Absent a showing of an abuse of discretion, the award or failure to

award fees will not be disturbed on appeal." Amoco Production Co.

v. Smith, 946 S.W.2d 162, 165 (Tex. App.--El Paso 1997, no writ). A

reviewing court cannot find an abuse of discretion merely because

a litigant complains the award is too generous. Garrod Investments,

Inc. v. Schlegel, 139 S.W.3d 759, 768 (Tex. App.--Corpus Christi 2004,

xlviii At the hearing on sanction, Contestee presented evidence in

support of an award. Contestee's trial attorney testified that he

specialized in litigation. 5 C.R. 36. He further explained that election

contests were complex matters which “have to be handled at

lightening speed”. 5 C.R. 36. In addition to client conferences,

Contestee's attorney took several depositions, including those of

Contestant, the witnesses who allegedly witnessed the election

machine malfunction, and the Hidalgo County Elections

Administrator. He also intervened in the lawsuit wherein the voting

machines had been impounded, obtaining a right to limited

participation in the their testing.21 This naturally required research re

forensic testing of voting machines. Numerous hearing were

attended, all of which required preparation. Furthermore, because

election contests are not filed every day, such activity was novel,

requiring research. 5 C.R. 38-42. As a result, Contestee's attorney

testified that $60,000 in attorney's fees was reasonable. 5 C.R. 43-44.

To support such activity, Contestee presented a detailed listing of his

21Contestant's contention that she could not obtain access to the voting machines is completely devoid of merit; she did not even try. Her statements that she did try is false. xlix activities. Contestee's Ex. 1. While Contestee's trial counsel was cross

examined, Contestant failed to present any contradictory testimony.

5 C.R. 49. Accordingly, the trial court did not abuse its discretion in

making the award.

{3} NOT REQUIRED TO ACCOUNT FOR EACH SECOND SPENT

Because he was not relying upon the loadstar method for

attorney’s fee calculation,22 what Contestee's attorney failed to do

was present testimony concerning how long each particular activity

took for him to complete. Seizing upon such failure, Contestant

asserts that no evidence supports the trial court's award. But such

position was not well taken.

As previously noted herein, the Arthur Andersen factors merely

constitute guidelines, not elements of proof. In re Estate of Johnson,

supra. "[A]lthough typically the nature and extent of the services

performed is expressed by the number of hours and the hourly rate,

there is no rigid requirement that these facts must be in evidence for

such a determination to be made." Hays & Martin, L.L.P. v. Ubinas-

22The lodestar method is determining attorney’s fees by multiplying a reasonable number of hours worked by the prevailing hourly rate in the community for similar work. Bates v. Randall County, 297 S.W.3d 828, 838 n. 10 (Tex. App.-- Amarillo 2009, pet. denied). l Brache, 192 S.W.3d 631, 636 (Tex. App.--Dallas 2006, pet. denied).

Thus, evidence is sufficient to support an award if a total amount is

stated, with an explanation of why such amount is reasonable and

necessary, but without a precise amount of hours. In re A.S.G., 345

S.W.3d 443, 451-52 (Tex. App.--San Antonio 2011, no pet.); In re A.B.P.,

291 S.W.3d 91, 98-99 (Tex. App.--Dallas 2009, no pet.); Burnside Air

Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898

(Tex. App.--Dallas 2003, no pet.). Thus, a litigant is not required to

present the court with a precise second by second account for

each activity. Delcor USA, Inc. v. Texas Indus. Specialties, Inc., 2011

WL 6224466 at 5 (Tex. App.--Houston [14th Dist.] 2011, no pet.); La

Ventana Ranch Owners' Ass'n, Inc. v. Davis, 363 S.W.3d 632, 651 (Tex.

App.--Austin 2011, pet. denied).

Contestant's authority does not mandate a contrary result. A

litigant can prove reasonable and necessary attorney's fees by

utilizing the loadstar method. Obviously, as Contestant's authorities23

hold, if a litigant is required or otherwise utilizes the loadstar method,

he is required to provide competent evidence of the time spent. But

23City of Laredo v. Montano, 414 S.W.3d 731, 736-37 (Tex. 2013); El Apple I v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). li Contestee herein did not utilize the loadstar method, but instead

provided a flat figure for reasonable attorney's fees. 5 C.R. 44. Thus,

such authority is inapplicable.

CONCLUSION AND PRAYER

Election contests strike at the legitimacy of a public office

holder. Such allegations create a cloud over the elected official;

even if he is legally cleared, some citizens will believe that where

there is smoke there is fire, and thus he improperly holds office. As

applied to the case at bar, while Contestee's rulings now possess the

force of law, due to Contestant's misconduct, such rulings may not

be accepted by all the citizens appearing before him. As the trial

court found, Cl.R. 168-72, such impugnation never should have

occurred.

WHEREFORE, PREMISES CONSIDERED, E. OMAR MALDONADO,

Contestee in the above styled and numbered cause, respectfully

prays that the judgment of the trial court be AFFIRMED, that all costs

be taxed against Contestant, and for all other and further relief,

either at law or in equity, to which Contestee shows himself entitled.

Respectfully submitted, lii Daniel M.L. Hernandez State Bar No. 24034479 HERNANDEZ LAW FIRM, P.C. 308 E. Villa Maria Rd. Bryan, Texas 77801 Telephone: 1.979.822.6100 Facsimile: 1.979.822.6001

George D. Durham III Bar Card No.: 24082940 GSK LAW 517 West Nolana, #6 McAllen, Texas 78504 Tel: (956) 900-4187

Hitesh K. Chugani State Bar No. 24066519 H.K.C. LAW 517 W. Nolana, #7 McAllen, Texas 78504 Tel: (956) 212-1601 Fax: (956) 524-5153

LIVESAY LAW OFFICE BRAZOS SUITES NO. 9 517 W. Nolana Ave. McAllen, Texas 78504 (956) 928-0149

BY: __KEITH C. LIVESAY_______ KEITH C. LIVESAY State Bar No. 12437100

CERTIFICATE OF COMPLIANCE

I, KEITH C. LIVESAY, do hereby certify that the above and

liii foregoing document was generated using Word 2007, utilizing 14

point font, and contains 8626 words.

__KEITH C. LIVESAY_______ KEITH C. LIVESAY

CERTIFICATE OF SERVICE

I, KEITH C. LIVESAY, do hereby certify that I have caused to be

delivered a true and correct copy of the above and foregoing

document to Appellant’s Counsel of Record, on this the 16th day of

February, 2015.

liv