Laura Pressley, Appellant v. Gregorio “Greg” Casar, Appellee; David Rogers, Appellant v. Gregorio “Greg” Casar, Appellee
NO. 03-15-00368-CV; NO. 03-15-00505-CV
Texas Court of Appeals, Third District, at Austin
Honorable Daniel H. Mills, Judge Presiding
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-15-000374
In these related appeals, Laura Pressley and her former attorney, David Rogers, appeal the trial court‘s judgment in Pressley‘s election contest against Gregorio “Greg” Casar declaring Casar the winner in the December 16, 2014 runoff election for Austin City Council District 4 and awarding sanctions against Pressley and Rogers under
BACKGROUND
Pressley and Casar were among eight candidates for District 4 in the November 4, 2014 general election, the first under Austin‘s “10-1” council structure.1 Casar received the most votes, and Pressley finished second. A runoff election was held on December 16, 2014, in which Casar received 64.61% of the vote to Pressley‘s 35.39%, representing a difference of 1,291 votes. Pressley subsequently raised a number of questions concerning the election with Travis County Clerk Dana DeBeauvoir2 and ultimately filed a petition for recount with the Texas Secretary of State,3 requesting a manual recount. See
Of the 4,417 votes cast in the runoff election, 480 were cast by mail, and 3,937 were cast electronically.4 Travis County uses the Hart Intercivic eSlate System, an electronic voting system certified by the Secretary of State for use in elections and used by the County since approximately 2003. See
The Hart eSlate System is a paperless direct recording electronic machine (DRE), which is “a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically.” See
A voter using the eSlate makes his choices by pressing a button to mark boxes next to the name of his chosen candidate in each race. The final screen of the electronic ballot is a list of the races on the ballot with the name of the candidate chosen by the voter (or an indication that no candidate was chosen) for each race. See
Pressley then filed this election contest against Casar arguing that the eSlate‘s storage of CVRs does not comply with
APPLICABLE LAW AND STANDARD OF REVIEW
In an election contest, the scope of inquiry by the trial court is limited. The
a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because:
- illegal votes were counted; or
- an election officer or other person officially in the administration of the election:
- prevented eligible voters from voting;
- failed to count legal votes; or
- engaged in other fraud or illegal conduct or made a mistake.
b) In this title, “illegal vote” means a vote that is not legally countable.
c) This section does not limit a provision of this code or another statute expanding the scope of inquiry in an election contest.
We review a trial court‘s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A movant seeking a no-evidence summary judgment motion must assert that there is no evidence to support an essential element of the nonmovant‘s claim on which the nonmovant would have the burden at trial. See
Pressley‘s and Rogers’ issues also involve statutory construction, which is a question of law that we review de novo. See Railroad Comm‘n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Our primary concern is the express statutory language. See Galbraith Eng‘g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context, unless the plain meaning leads to absurd results, or unless technical terms are used. See
Pressley‘s and Rogers’ Issues
Pressley and Rogers assert two primary erroneous rulings by the trial court: its ruling on Casar‘s no-evidence motion for summary judgment and its sanction award.
Discovery from Travis County
In sub-issue one of Pressley‘s first issue and in sub-issue one of Rogers’ fifth issue, Pressley and Rogers argue that the trial court committed reversible error in holding that nonparty Travis County was not required to provide Pressley access to eSlate information designated as proprietary in Travis County‘s contracts with Hart. Pressley included in her original, first amended, and second amended petitions a request for production directed to nonparty Travis County. She omitted the request from her third amended petition and served a Notice of Request for Production on Travis County. Pressley did not obtain a court order or serve a subpoena on Travis County, as is required for obtaining discovery from a nonparty. See
Travis County produced numerous documents, including its contracts with Hart and a number of manuals, and attached a privilege log listing certain withheld proprietary information. Although it did not produce the eSlate manual, a Travis County representative later stated on the record that it had produced all of the manuals in its possession. Subsequently, Travis County filed a second motion for protective order and, on the same day, Pressley filed a motion to compel discovery. Pressley complained that Travis County had produced no evidence of claimed privileges and had withheld documents not claimed as privileged. Travis County argued that Pressley continued to seek discovery outside the scope of the trial court‘s prior discovery order. Central to the discovery dispute was production of the eSlate manual and Pressley‘s access to various pieces of eSlate equipment “to examine them to determine if they were functioning properly.” Pressley‘s motion to compel discovery was heard at the same hearing as Casar‘s motions for summary judgment. The trial court granted Casar‘s no-evidence motion for summary judgment after addressing, but not ruling on, Pressley‘s motion to compel discovery.
Although Pressley and Rogers complain on appeal of the trial court‘s third party discovery order, which allowed Travis
Pressley and Rogers do not contend that the trial court expressly ruled on the motion to compel discovery but argue that by granting summary judgment without “requiring the Clerk [DeBeauvoir] to get the manual and produce it before ruling on the Motion for Summary Judgment,” the trial court “in effect den[ied] the Motion to Compel.” However, “[t]he granting of the motion for summary judgment does not necessarily implicitly overrule motions or objections.” Wilson v. Thomason Funeral Home, Inc., No. 03-02-00774-CV, 2003 Tex. App. LEXIS 6358, at *11 (Tex. App.—Austin July 24, 2003, no pet.) (mem. op.). Thus, the trial court‘s ruling on Casar‘s no-evidence motion for summary judgment did not amount to an implicit denial of Pressley‘s motion to compel discovery.
Pressley and Rogers also argue that the trial court “cut off the opportunity and obligations on the Clerk [DeBeauvoir] and its own obligation, with respect to the Motion to Compel, by abruptly changing course and granting the No Evidence Motion for Summary Judgment . . . .” They argue that Pressley objected and pointed this error out to the court, citing to a question Pressley‘s counsel, Cohen, asked the court: “So are you refusing to order [Travis County] to turn over the eSlate manual?” However, Cohen‘s question to the court challenged the trial court‘s statements that it considered the request for the eSlate manual moot because Travis County had complied with the trial court‘s previous order to turn over manuals in its possession and the County could not produce things not in its possession. Thus, Cohen questioned the trial court‘s indication of how it intended to rule on one aspect of Pressley‘s multi-faceted motion to compel discovery; he did not request a ruling on the motion to compel or object to the trial court‘s failure to rule on the motion. To preserve a complaint for review, a party must timely present it to the trial court with the specific grounds and obtain a ruling or object to the trial court‘s refusal to rule.
Having failed to object to the entry of the third party discovery order, Pressley and Rogers have waived their complaint on appeal as to that order. See
Trial Court‘s Review of Summary Judgment Evidence
In sub-issue two of Pressley‘s first issue and in sub-issue 2 of Rogers’ fifth issue, Pressley and Rogers contend that the trial court committed reversible error by granting Casar‘s no-evidence motion for summary judgment without reviewing the evidence. We do not find this argument persuasive on the facts before us. Pressley and Rogers appear to base their argument on the trial court‘s statement that it did not read every page of the summary judgment evidence because “there were too many pages.” However, the record reflects that the trial court stated that it had read all of the pleadings, including those filed the morning of the hearing, and “tagged” them, and it specifically mentioned reading Pressley‘s expert report. Moreover, the trial court stated that it had read the evidence referred to by the parties in the pleadings. “[A] party submitting summary judgment evidence ‘must specifically identify the supporting proof on file that it seeks to have considered by the trial court.‘” Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (quoting Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.)). “A general reference to a voluminous record that does not direct the trial court and parties to evidence relied upon is insufficient.” Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). “In the absence of any guidance from the non-movant where the evidence can be found, the trial court is not required to sift through voluminous [evidence] in search of evidence to support the non-movant‘s argument that a fact issue exists.” Nguyen, 404 S.W.3d at 776 (quoting Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied)). Because the record reflects that the trial court reviewed the evidence cited by the parties, as well as the pleadings and certain specific evidence, we conclude that Pressley‘s and Rogers’ argument that the trial court committed error by granting summary judgment “without even reading the evidence” is without merit.8 Further, to the extent the trial court failed to read all of the evidence, any such error is harmless in light of our conclusion below that summary judgment was appropriate. See
Summary Judgment
In sub-issue three of Pressley‘s first issue and in sub-issue three of Rogers’ fifth
Ballot Images
Pressley and Rogers first argue that DeBeauvoir failed to maintain “ballot images” and print them for the election recount as required by the
In support of their argument, Pressley and Rogers rely on the “declaration” of Jeffrey Jacobson, Ph.D., Pressley‘s computer science expert witness, who stated that a CVR cannot be a ballot image because it is a data structure, which is a table or list of information, not an image file, which is a grid of pixels, and because a CVR is never large enough to hold an entire ballot image. Jacobson cited the Federal Election Commission‘s (FEC‘s) 1990 Performance and Testing Standard for Punch Card, Mark Sense, and Direct Recording Electronic Voting Systems and stated that “to the extent the FEC discuss[ed] what would later be known as ‘cast vote records,’ the FEC distinguishe[d] [CVRs] from ballot images.” Pressley and Rogers also rely on DeBeauvoir‘s testimony that the CVR is a stored image of the final summary screen a voter sees before he casts his vote, and not of each screen on which a voter marks the box by the name of his chosen candidate. In support of their argument that DeBeauvoir has failed to comply with the law, they cite evidence that the Hart Voting System is capable of formatting ballot images, i.e.,
We do not find these arguments persuasive. Initially, we observe that the CVR is an image of the screen that the voter sees when he presses the “CAST BALLOT” button. In that sense, the CVR is an image of the ballot a voter casts on the eSlate. Further, we disagree with Pressley and Rogers that we must apply the rule of “common usage” and conclude that a “ballot image” must be a picture or exact likeness of the screen on which the voter decides how to vote. Nor do we find the opinion of Pressley‘s expert that a CVR, as a data file, cannot be a ballot image to be determinative. Rather, we must apply the technical meaning the term has acquired as used by agencies in charge of election matters. See
As the chief election officer of the state, the Secretary of State is charged with obtaining and maintaining uniformity in the application, operation, and interpretation of the
Finally, Pressley and Rogers argue that any decision by the Secretary of State that allowed the true outcome of the election to be decided by something other than a numbered ballot would be unconstitutional and that “the evidence eSlate formats a ballot raises at least a fact issue as to whether the Secretary of State had authority under the
Irregularities
Pressley and Rogers also argue that a series of irregularities in the conduct of the election make the true outcome of the election impossible to determine. They first argue that there were numerous “Invalid/Corrupt” mobile ballot boxes (MBBs). The record reflects that an MBB is a mobile or removable device that is inserted into a judge’s controller booth (JBC) prior to voting and stores balloting in the JBC. The JBC is a device that stores the inventory of unvoted ballots, inventory of voted ballots, and access codes that are provided to voters for accessing the voting machines. At the end of voting, the MBB is removed, inserted into a reader, and used to tally votes at the central counting station. Pressley offered evidence that the Tally Audit Log, an audit report printed by Travis County, contained nine error messages reading “Invalid/Corrupt” upon insertion of the MBB into the JBC. Pressley and Rogers contend that these errors, in conjunction with other alleged irregularities, discussed below, make it impossible to say how many illegal votes were counted or how many legal votes were not counted. See
However, Pressley produced no evidence that the “Invalid/Corrupt” error messages resulted in any legal votes not being counted, resulted in any illegal votes being counted, or otherwise materially affected the outcome of the election. See
Pressley and Rogers also argue that eSlate “seals were broken[,] bringing the security and accuracy of the MBBs into question.” Pressley produced affidavits from poll workers stating that certain eSlates were improperly sealed with “red seals” and that the workers re-sealed them with new “green seals.” One worker reported that a seal had to be broken to disconnect the headphones, and another stated that he had to break and replace the seal to remove and replace a broken “wing” on the eSlate. Pressley produced no evidence that any seals were actually broken other than by election officials, who reported their actions, and who broke them only to replace red seals with green seals or to address hardware issues, much less any evidence that issues with the seals resulted in any legal votes not being counted or any illegal votes being counted or materially affected the outcome of the election. See
Pressley and Rogers next argue that the Tally Audit Log reflected that the computer that tallies the CVRs was left open on several occasions for extended periods of time. See
The next irregularities Pressley and Rogers assert is that DeBeauvoir instructed her employees not to print zero tapes and results or tally tapes on the day of the runoff election as required by the Secretary of State. Zero tapes are printed when the eSlate is set up at the polls to establish that there are zero votes in the machine next to each name or question on the ballot and again after the election to clear them for use in the next election. Results or tally tapes are printed when the polls close and show the votes next to each name or question. The Secretary of State in the past issued an election advisory instructing election officials to print, sign, and maintain at least one zero tape from each device and at least two copies of the results or tally tape from each device. Pressley produced a letter from the Secretary of State giving Travis County, which uses countywide vote centers—where any voter from any precinct can vote—and conducts joint elections with long ballots, a special dispensation concerning zero and results or tally tapes for the November general election. To avoid delays associated with printing at countywide vote centers, the Secretary of State instructed Travis County to begin printing zero tapes before election day, to print abbreviated zero tapes on election day, and to print abbreviated results or tally tapes called “access code reports” or “access codes” after the polls closed. Pressley also produced a JBC “Judge’s Envelope Cover” with the instruction, “DO NOT PRINT THE TALLY.” In support of her argument that DeBeauvoir instructed her employees not to print zero tapes, Pressley cited only to allegations in her own pleadings. DeBeauvoir testified that it was because of the Secretary of State’s letter instruction to print access codes in lieu of tally tapes that she directed her employees not to print tally tapes. She also testified that, in accordance with the Secretary of State’s instructions, Travis County began printing zero tapes prior to election day, printed abbreviated zero tapes at each polling place on election day, and printed access codes at each polling place after the polls closed.
Pressley and Rogers argue that the special dispensation from the Secretary of State applied only to the November general election and that by following abbreviated procedures in the runoff without dispensation to do so, Travis County ignored a critical election security protocol. Thus, they contend, there is no proof that the JBCs contained zero votes when voting began and no proof of the vote totals each candidate received. However, the letter instructing Travis County to use the abbreviated procedures for the November general election was written before the election and before it was known that a runoff election would be required. In the letter, the Secretary of State pointed out that when the abbreviated procedures are used, an election is adequately auditable through various audit and review steps and that ballot images remain on the voting machines for recounts, contests, and other post-election reviews until archived for the following election. Further, even were we to assume that Travis County lacked special dispensation to print abbreviated zero and results or tally tapes, Pressley produced no evidence that there were any votes on the JBCs before voting began, that any votes were not tallied, or that the use of the abbreviated procedures materially affected the outcome of the election. See
Pressley and Rogers next argue that Pressley’s statistical analysis of the runoff election results indicates that the results are not believable. They contend that the analysis shows “very unusual and unique mathematical patterns and anomalies” and reveals that the results are erroneous and that the outcome of the election cannot be determined. The alleged anomalies include: (1) the top nine precincts, comprising 80% of the voters, showed exactly the same results for the general and runoff elections (65% to 35%) despite that 600 fewer voters voted in the runoff election; (2) overall results showed exactly the same results for the general and runoff elections (65% to 35%) despite that 4,000 fewer voters voted in the runoff election; and (3) no other runoff race in the past 11 years has shown as tight a distribution between a general election and a runoff election as this race, with a standard deviation of .06%. In her Sixth Amended Contest, Pressley also alleged that there were discrepancies in early voting results, including 28 duplicate entries for ballots by mail that “appear to have been counted twice or three times,” early voting reports that were inconsistent with the canvassed results, which is “evidence of systemic errors occurring in the counting,” and a discrepancy between the number of voters and the number of votes cast, which is “indicative of several known and documented scenarios of errors and security breaches that can occur with the Hart Electronic Voting System.”
However, as shown by the express terms of her Sixth Amended Contest, Pressley alleged only that there “appear” to have been duplicate votes and that voting reports were “indicative” of errors and did not even allege, much less offer any evidence of, any actual duplication of votes or systemic errors. To the contrary, DeBeauvoir testified the post-election audit showed that “[e]verything balanced,” that is, “[t]he number of ballots voted matched the number of people who were voting, in that entire picture.” Likewise, Jacobson, Pressley’s expert, stated only that the “unusual mathematical patterns” were “suspicious” and “warrant[ed] further analysis and testing.” As with his testimony concerning the MBBs, Jacobson offered only speculation that something might be wrong. See Gharda, 464 S.W.3d at 350; Coastal Transp., 136 S.W.3d at 232. Even assuming that the facts Pressley alleged constitute “very unusual and unique mathematical patterns and anomalies,” Pressley asserted only a suspicion of actual irregularity and produced no evidence that there were errors in counting votes or breaches in security, or that the alleged anomalies materially affected the outcome of the election. See
The last irregularity Pressley and Rogers assert is that Travis County officials prevented Pressley’s poll watchers from viewing the entire process of printing the CVRs from the tally computer for the manual recount. Election Code section 33.056 generally describes poll watchers’ observing activity and provides, among other things, that a poll watcher is entitled to observe any activity conducted at the location where the poll watcher is serving and to sit or stand close enough to a member of a counting team to verify that the ballots are read correctly or to a member who is tallying the votes to verify that they are tallied correctly.
Section 33.056 provides that poll watchers may observe election activities but does not specifically apply to recounts. See
Assuming without deciding that Pressley and her recount watchers were entitled to view the retrieval, sorting, and copying of the CVR files, Pressley and Rogers have failed to explain how the inability of Pressley’s poll watchers to view such activity during the recount had any effect on the results of the recount or on the outcome of the runoff election, much less a material effect.12 See
post-election audit showed that the number of ballots cast matched the number of
Sanctions
In Pressley’s second issue and in Rogers’ first through fourth and sixth issues, Pressley and Rogers argue that the trial court abused its discretion in awarding sanctions against them. The trial court imposed sanctions against Pressley and Rogers for violations of Chapter 10 of the Texas Civil Practice and Remedies Code. See
(2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]
(3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .
We review the imposition of sanctions under Chapter 10 for an abuse of discretion. Nath v. Texas Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014) (citing Low, 221 S.W.3d. at 614). A sanctions award will not withstand appellate scrutiny if the trial court acted without reference to guiding rules and principles to such an extent that its ruling was arbitrary or unreasonable. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)). In determining whether the trial court abused its discretion, we must decide
Plenary Power of the Trial Court
In sub-issue one of Pressley’s second issue and in Rogers’ fourth issue, Pressley and Rogers argue that the trial court did not have plenary jurisdiction to enter the final judgment containing sanctions, rendering the sanctions award void. The trial court signed its original summary judgment order at a hearing held on May 26, 2015. At the request of counsel for Pressley, Cohen, the trial court added “Mother Hubbard” language, indicating that the order resolved all issues and was final and appealable. At the time of the order, Casar’s amended motion for sanctions was pending. On June 4, Casar filed a second amended motion for sanctions, and on June 12, he filed a third amended motion for sanctions. On June 24, at the conclusion of the hearing on the motion for sanctions, Casar offered and the trial court signed an amended summary judgment order, which expressly stated that it “amended and replaced” the prior May 26 order. The June 24 order omitted the “Mother Hubbard” finality language and stated that Casar’s motion for sanctions remained pending and that the court would consider and decide that motion in a separate order. The trial court stated that it signed the amended order to extend its plenary power until it could rule on the motion for sanctions. On July 23, the trial court signed an order granting Casar’s motion for sanctions and an amended final judgment, incorporating the terms of its sanctions order, including the findings of fact and conclusions of law contained therein, and its prior order granting Casar’s no-evidence motion for summary judgment.
Pressley and Rogers argue that the June 24 order did not amend the May 26 order because the June 24 order was not a final judgment and that only a motion seeking substantive change will extend the deadlines and the court’s plenary power under Rule 329b(g). See
The trial court had plenary power to vacate, modify, correct, or reform its summary judgment order within thirty days after signing the May 26 order. See
Pressley and Rogers also argue that because the “Mother Hubbard” language added to the original May 26 order was agreed to in open court and approved by the trial court, it constitutes a Rule 11 agreement. See
Sanctions against Rogers
We turn next to Rogers’ first and second issues, in which he argues that the trial court abused its discretion in awarding sanctions against him based on bad faith pleadings when, pursuant to Rule 8, Cohen, and not Rogers, was the attorney-in-charge when the fifth and sixth amended contests were filed. See
Casar contends that Rogers waived this issue by failing to challenge the sanctions in the trial court. See Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (concluding that attorney who fails to complain of sanction and ask trial court to reconsider waives complaint about sanction). Rogers concedes that he did not raise this argument below but argues that it is a jurisdictional argument that cannot be waived. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444–46 (Tex. 1993) (holding that as component of subject matter jurisdiction, standing may be raised for first time on appeal). He contends that the “real controversy” was between Casar and Cohen, not between Casar and Rogers, and that a judicial declaration about Rogers’ conduct would not resolve the controversy between Casar and Cohen. See id. at 446 (stating that general test for standing is that there be real controversy between parties that will actually be determined by judicial declaration sought).
Although we agree that standing may be raised for the first time on appeal, we conclude that Rogers’ attorney-in-charge argument has no merit. Rogers argues that under Rule 8, the attorney-in-charge is the attorney responsible for the suit to the party, responsible for the conduct of the lawsuit for that party, in control of the management of the cause, and the attorney to whom all communications shall be sent. He cites various actions Cohen took in pursuing the contest as attorney-in-charge. However, neither Rule 8 nor the cases Rogers relies on in support of this argument address sanctionable conduct under Chapter 10. See
Sections 10.001 and 10.004 authorize sanctions against an attorney who signs pleadings that lack any evidentiary or legal basis. See
See Yuen, 342 S.W.3d at 828 (holding that section 10.004 limits sanctions to signatory attorney and represented party even when another attorney’s name is on pleading). We overrule Rogers’ first and second issues.
Chapter 10 Standard/Appropriateness and Justness of Sanction
Having concluded that Rogers was subject to sanctions, we turn to whether the trial court abused its discretion in awarding the sanctions awarded against Pressley and Rogers, and in doing so we must determine whether the sanctions were appropriate and just. See Nath, 446 S.W.3d at 363.14 In the second and third sub-issues of Pressley’s second issue and in Rogers’ third and sixth issues, Pressley and Rogers argue that Casar did not meet his burden under Chapter 10 to show that there was no legal basis and no evidentiary support for Pressley’s claims so as to overcome the presumption that Pressley’s pleadings were filed in good faith. See id. at 361. Rogers also argues that although the trial court expressly found that Pressley acted in bad faith, it made no such finding as to Rogers. Pressley and Rogers further argue that the trial court failed to determine that there was a direct nexus between any improper conduct and the sanctions imposed, failed to tailor the sanctions to remedy any identified prejudice allegedly caused by the alleged conduct, failed to determine whether lesser sanctions were available to accomplish its goals, and misapplied the factors set out
in Low to determine the appropriateness and amount of sanctions. See id. at 361; Low, 221 S.W.3d at 621 & n.5; American Flood, 192 S.W.3d at 583.
“An assessment of sanctions will be reversed only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable.” Unifund, 299 S.W.3d at 97. “The trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision.” Id. Section 10.001 provides that the signer of each claim or allegation attests that it is based on the signatory’s best knowledge, information,
Reviewing the entire record, we conclude that the trial court did not abuse its discretion in awarding sanctions against Pressley and Rogers under Chapter 10 for repeatedly asserting claims that lacked evidentiary and legal support. The trial court based its sanctions award on allegations that Travis County’s actions caused widespread disenfranchisement, that zero and results tapes were not printed, that irregularities in the recount materially affected the outcome, and that Travis County election officials committed criminal violations.15 The trial court concluded that by failing to make reasonable inquiry into whether these allegations were warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law, Rogers
violated section 10.001(2) and that by failing to make reasonable inquiry into whether these claims had evidentiary support, Pressley and Rogers violated section 10.001(3). See
Through Pressley’s Fifth Amended Contest, she and Rogers alleged that there was widespread “illegal” voter disenfranchisement in the runoff election as a result of Travis County’s consolidation of voting locations for the runoff election.16 DeBeauvoir testified that it is typical for voter turnout to be lower in a runoff election than in a general election and that Travis County changes and consolidates polling locations for runoff elections primarily to save costs. She also testified that the polling locations for the runoff election were approved by the Austin City Council after notice and hearing, and a list of all polling locations was attached to the approved ordinance, posted, and published. DeBeauvoir further stated that District 4 had nine polling locations and that voters could also vote at any of the citywide voting locations.
Pressley and Rogers alleged that closing high-volume locations “prevented eligible voters from voting.” In particular, they alleged receiving reports that closure of the Highland Mall location caused “confusion” and “was a problem for voters.” They further alleged that “[a] conservative count of disenfranchised voters resulting from the improper/closure/moving/combining of precincts [in District 4] is 1,108.” At the sanctions hearing, Pressley testified that she reached that number by counting “people who vote always, always and they were not voting in the runoff.” Rogers testified that he had not talked to any voters who had been prevented from voting because of a change in polling locations and that he was “concerned about that issue.” At her deposition,
Pressley testified that she did not have a list of names of people who were prevented from voting, and she was unable to identify a single voter who was disenfranchised. She stated that she had spoken with people who claimed to have had difficulty in voting but was not able to obtain an affidavit from anyone who claimed to have been disenfranchised. She also testified as to her belief that any inconvenience for a voter caused by a change of voting location was disenfranchisement,
Pressley and Rogers also repeatedly alleged that Travis County election officials committed the “violation” of “not printing” zero and tally tapes for the runoff election and “disregarded” the printing of zero and tally tapes and that “no” zero and tally tapes were printed on election day. They also included in the Sixth Amended Contest the allegation that Travis County election officers disregarded procedure and instructed officials not to print zero and tally tapes on election day. In her deposition DeBeauvoir testified that, in accordance with the letter instruction from the Secretary of State, Travis County began printing zero tapes prior to election day and printed abbreviated zero tapes on election day at each polling place. She further testified that, in accordance with the Secretary of State‘s instruction, Travis County ran access codes, in lieu of lengthier results/tally tapes, and that for that reason she directed her employees not to print tally tapes. She also testified that both zero and access tapes were produced to Pressley in discovery, and the record reflects that Pressley and Rogers attached a zero tape as an exhibit to Pressley‘s contests. At the sanctions hearing, DeBeauvoir explained that large counties with long ballots that use countywide vote centers receive dispensation from the Secretary of State to print abbreviated tapes because it would take seven hours per machine to print the full tapes and that she obtained approval from the Secretary of State to print abbreviated tapes in the runoff election. She reiterated that Travis County had printed zero and tally tapes for the runoff election in full compliance with the law. On this record, the trial court did not abuse its discretion in determining that, although Pressley and Rogers disputed whether full, unabbreviated tapes were required for the runoff, there was no evidentiary support or legal basis for the repeated allegations that Travis County printed “no” zero or tally tapes and “disregarded” and “violated” lawful procedure. See
Pressley and Rogers also alleged through the Sixth Amended Contest that numerous procedural irregularities in the
Finally, the trial court based its sanction award on Pressley‘s and Rogers’ allegations of criminal conduct against Travis County officials for preventing Pressley‘s poll watchers from viewing the printing of the CVRs, preventing their access to tally tapes, not printing tally tapes, and preventing poll watchers’ access to view election activities. The allegation that the poll watchers were prevented from viewing the printing of the CVRs originated from the fact that DeBeauvoir had printed them the day before the recount. Pressley was not agreeable to that procedure, so the printed CVRs were discarded and they were printed again in the presence of Pressley and her poll watchers. Nonetheless, Pressley complained that her poll watchers were not allowed to view the retrieval, sorting, and copying of the CVRs. As discussed above, Pressley included this claim in her complaints to the Secretary of State prior to filing suit. The Secretary of State explained that section 213.016 provides that Pressley and her poll watchers were entitled to be present during the printing of the CVRs but does not provide for their presence during the retrieval, sorting, and copying of the CVRs and that by allowing her and her watchers to be present for the re-printing of the CVRs, Travis County had not violated section 213.016. See
Still, Pressley and Rogers persisted in making these assertions, culminating with an allegation in the Sixth Amended Contest that “Contestant‘s Official Poll Watchers were Denied Access on Election Night—Four Counts of Criminal Violations Committed by Travis County Elections Officer.” They alleged that these activities violated section 33.061 of the Election Code. See
Having determined that the trial court did not abuse its discretion in awarding sanctions, we turn to a determination of whether the sanctions awarded were appropriate and just. Applying the two-part test articulated by the Texas Supreme Court, we must first determine whether there is a direct relationship between the sanctionable conduct, the offender, and the sanction imposed. Nath, 446 S.W.3d at 363; American Flood, 192 S.W.3d at 583. “[T]he sanction must be visited upon the true offender,” and we are to determine “whether the offensive conduct is attributable to counsel only, to the party, or to both.” Nath, 446 S.W.3d at 363. Pressley and Rogers both argue that they are not the true offender. However, as we have already noted, the evidence shows that Pressley was personally and actively involved in preparing and prosecuting the contest by researching and providing facts to Rogers, reviewing voter data, preparing statistical analyses, proposing portions of draft pleadings, reviewing discovery requests and discovery documents, and attending depositions. She testified that she worked on the case at least ten hours a week and that she provided information to Rogers because she “was the person who experienced the things that [they] put in the petitions.” Rogers testified that she was the “most active, hands-on client [he‘d] ever had.”
As for Rogers, he signed the original and every amended contest pleading. He testified that he was an experienced election contest attorney, but that he had never seen a successful election contest overcome as large a vote margin as in this case. He also testified that he did not talk to any voters who were disenfranchised and was “concerned about that issue.” When asked the basis of a legally cognizable cause of action based on the alleged irregularities, Rogers answered only that he “felt that in order for there to be an election contest it was essential to allege mistakes or failure to follow the law.” Thus, having concluded that the trial court did not about its discretion in finding that Pressley‘s and Rogers’ conduct was sanctionable, we further conclude that there is a direct nexus between their repeated filing of allegations lacking evidentiary and legal support and the sanctions awarded against Pressley and Rogers and that the trial court therefore did not abuse its discretion in sanctioning them. See
We next consider whether the amounts of the sanctions were excessive. See Nath, 446 S.W.3d at 363. To be just, a sanction must not be excessive and must be no more severe than necessary to satisfy its legitimate purpose. Id. Legitimate purposes include securing compliance with the applicable rules, punishing violators, and deterring other litigants from similar misconduct. Id. (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003)). Courts must consider less stringent sanctions and consider whether they would serve to promote compliance. Id. Pressley
The Texas Supreme Court has set forth guiding rules and principles for assessing the amount of pleadings sanctions. See Low v. Henry, 221 S.W.3d 609, 620 n.5 (Tex. 2007). The list of nonexhaustive factors the Supreme Court enumerated is:
- the good faith or bad faith of the offender;
- the degree of willfulness, vindictiveness, negligence, or frivolousness involved in the offense;
- the knowledge, experience, and expertise of the offender;
- any prior history of sanctionable conduct on the part of the offender;
- the reasonableness and necessity of the out-of-pocket expenses incurred by the offended person as a result of the misconduct;
- the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by the offended person as a result of the misconduct;
- the relative culpability of client and counsel, and the impact on their privileged relationship of an inquiry into that area;
- the risk of chilling the specific type of litigation involved;
- the impact of the sanction on the offender, including the offender‘s ability to pay a monetary sanction;
- the impact of the sanction on the offended party, including the offended person‘s need for compensation;
- the relative magnitude of sanction necessary to achieve the goal or goals of the sanction;
- burdens on the court system attributable to the misconduct, including consumption of judicial time and incurrence of juror fees and other court costs;
- . . . .
- the degree to which the offended person‘s own behavior caused the expenses for which recovery is sought.
Id. (quoting American Bar Association, Standards and Guidelines for Practice Under Rule 11 of the Federal Rules of Civil Procedure, reprinted in 121 F.R.D. 101, 104 (1988) (omission in original)). The Low court also noted that the determination of the amount of a penalty to be assessed under Chapter 10 should “begin with an acknowledgment of the costs and fees incurred because of the sanctionable conduct.” Id. at 621; see
At the sanctions hearing, Casar presented evidence of the attorney‘s fees he incurred, segregated by issues, amounting to more than $193,000. He also presented evidence that he had incurred almost $8,000 in expenses. His attorney testified concerning his experience with election contests and opined that the fees, which were billed at a reduced rate, were reasonable, necessary, and customary in Travis County for the type of service offered. He also testified concerning the Low factors and their application to the facts as they related to Pressley and Rogers. Pressley testified concerning her education and assets. She stated that she has a Ph.D. in physical chemistry. Pressley also testified that she had raised approximately $30,000 to $40,000 for the cost of pursuing the
The trial court found that Pressley had sufficient assets and that both she and Rogers had sufficient income potential to pay monetary sanctions, finding that Rogers had waived more than $40,000 in fees from Pressley. It also considered the Low factors, finding nearly all of them applicable.17 It cited Pressley‘s bad faith in making false criminal allegations, the evidence showing the lack of factual and legal bases for challenging the election outcome, Rogers’ experience as an election contest attorney, the out-of-pocket expenses and fees incurred by Casar, the effect of the contest on Casar and the performance of his duties as a council member, Pressley‘s active involvement in the case, the lack of chilling effect on election contests because the purpose of the sanction is to encourage compliance with Chapter 10, Pressley‘s assets and income potential and Casar‘s relative lesser income, Pressley‘s concession that Casar did nothing wrong, and the need for the magnitude of the sanctions to be sufficient to deter similar contests against the hundreds of other elected officials in counties using the eSlate.
Pressley and Rogers argue that the trial court misapplied and disregarded the Low factors. We do not agree. We have reviewed the voluminous record, including the evidence presented at the sanctions hearing that Casar incurred more than $193,000 in attorney‘s fees, at a discounted rate. Based on the evidence and the trial court‘s considered analysis of the Low factors, we cannot conclude that sanctions in the amounts of $40,000 against Pressley and $50,000 against Rogers were excessive. See Werley v. Cannon, 344 S.W.3d 527, 534–35 (Tex. App.—El Paso 2011, no pet.) (concluding that sanction of $12,660 was not excessive where evidence showed party had incurred that amount in attorney‘s fees); Sellers v. Gomez, 281 S.W.3d 108, 116 (Tex. App.—El Paso 2008, pet. denied) (holding that award of $80,000 sanction was not excessive where evidence showed attorney‘s fees of $81,000 to $82,000); In re M.I.L., No. 02-08-00349-CV, 2009 Tex. App. LEXIS 4645, at *18 (Tex. App.—Fort Worth June 18, 2009, no pet.) (mem. op.), overruled in part on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (concluding that sanction of $38,000 was not excessive where evidence showed party had incurred $38,362 in attorney‘s fee and $2,071.23 in expenses); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 817 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (upholding sanction of $68,000 in attorney‘s fees where evidence showed discovery abuse justified that amount). Rogers also argues that any sanction against him is unjust because, although the trial court expressly found that Pressley had acted in bad faith, it made no such finding as to him. However, sanctions under Chapter 10 do not require a finding of bad faith. Rather, as to Rogers, the standard is whether he signed pleadings certifying that he had made a reasonable inquiry into the legal and factual bases for the allegation contained in the pleading, and good or bad faith is only one of the Low factors to be considered in determining the amount. See
While we recognize that the amounts of the sanctions are substantial, we conclude that they are not excessive on the facts before us. The record reflects that Pressley and Rogers continued to assert claims after extensive discovery had shown that the claims had no legal or factual bases. Rogers himself testified that he had not talked to any voters who had been prevented from voting because of a change in polling locations and that he was “concerned about that issue,” yet he continued to make allegations in the pleadings of voter disenfranchisement. In particular, the trial court noted its concern with their allegation of criminal conduct asserted late in the proceeding, in the Sixth Amended Contest, and the allegations of voter disenfranchisement based on having to drive 20 seconds farther to a polling place, asserted through the Fifth Amended Contest. Casar presented evidence that he incurred more than $193,000 in attorney‘s fees and almost $8,000 in expenses in defending the unsupported allegations. Considering that the sanctions were intended not only to reimburse Casar but also to punish Pressley and Rogers and to deter similar conduct in the future, see Nath, 446 S.W.3d at 363 (legitimate purposes of sanctions are to secure compliance with rules, punish violators, and deter similar misconduct), the trial court could have reasonably concluded that a lesser sanction would not have served to sufficiently promote compliance and deterrence, and there is some evidence to support the sanctions awards, see id. at 361, 363. On the record before us, we cannot conclude that the district court abused its discretion in ordering Pressley to pay Casar $40,000 in attorney‘s fees, in ordering Rogers to pay Casar $50,000 in attorney‘s fees, and in ordering them jointly and severally liable to pay $7,794.44 in expenses. See id. at 361 (citing Unifund, 299 S.W.3d at 97); American Flood, 192 S.W.3d at 583. We overrule sub-issues two and three of Pressley‘s second issue and Rogers’ third and sixth issues.
Attorney‘s Fees on Appeal
Finally, we turn to sub-issue four of Pressley‘s second issue and Rogers’ sixth issue, in which Pressley and Rogers argue that the trial court abused its discretion by imposing sanctions based on Casar‘s attorney‘s fees in the event of an unsuccessful appeal.18 They contend that Casar did not request such fees; that there was no evidence of what would be reasonable and necessary attorney‘s fees in the event of an appeal; that a great
We do not find these arguments persuasive. The matter before us is not a motion for damages for filing a frivolous appeal under the Texas Rules of Appellate Procedure but an appeal of the trial court‘s sanction award under Chapter 10. See
Here, the record supports the trial court‘s findings that the allegations on which the sanctions were based—that Travis County‘s actions caused widespread disenfranchisement, that zero and results tapes were not printed, that irregularities in the recount materially affected the outcome, and that Travis County election officials committed criminal violations—had no legal or factual basis. The trial court expressly stated that it was not sanctioning Pressley and Rogers on the basis of the “legal issue with the ballot . . . that [it] kn[e]w [they were] going to appeal,” i.e., the ballot image issue. Thus, the record establishes that the sanction of contingent appellate fees was directed at the appeal of only those issues for which the initial sanctions were imposed. Also, although it was not required, Casar‘s attorney testified that his fees were reasonable, necessary, and customary, and he segregated his fees by issue so that there was some evidence of reasonable and necessary fees on appeal and of the relative time required for each issue. Further, the trial court had evidence of the rates billed by Casar‘s attorney, and it derived the contingent appellate fee awards based on a review of cases involving appellate fee awards. On this record,
CONCLUSION
Having overruled Pressley‘s and Rogers’ issues, we affirm the trial court‘s judgment.
_____________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: December 23, 2016