Carrera v. Yepez
Decision Date | 28 October 1999 |
Docket Number | No. 08-98-00186-CV,08-98-00186-CV |
Parties | (Tex.App.-El Paso 1999) EDMUND CARRERA and PAT MICHAEL, Appellants, v. LUISA RODRIGUEZ YEPEZ <A HREF="#fr1-1" name="fn1-1">1 , CARMEN TALAMANTES, ANTONIO R. CARRILLO, and DORA CALDERA, Appellees |
Court | Texas Court of Appeals |
Appeal from 383rd District Court of El Paso County, Texas (TC# 89-13638) [Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
O P I N I O N
Edmund Carrera and Pat Michael (collectively Appellants) appeal the denial of summary judgment on the basis of qualified immunity. By two points of error, Appellants challenge the ruling of the trial court. Finding no error, we affirm.
Appellees are residents of the Kennedy Brothers Complex, a public housing project in El Paso, Texas. Yepez, Carrillo, and Caldera were officers of the Kennedy Brothers Residents' Council (the Council), a tenants' organization. Appellant Carrera was the Executive Director of the El Paso Housing Authority (EPHA); Appellant Michael was an eligibility officer and supervisor with EPHA. The Residents' Council and EPHA were parties to an agreement by which EPHA funded the Council and in consideration of such funds, the Council agreed that the monies would be expended to promote better community relations, serviceability, efficiency, economy, and stability in the housing complex.
On December 5, 1989, the Council officers were notified by EPHA that it had terminated its recognition of the Kennedy Residents' Council because of their alleged failure to cooperate with certain program initiatives proposed by EPHA.3 Appellees were given no prior notice and the termination was effective immediately. This notice, signed by Carrera, also announced that new elections for the Council would be conducted on December 7. At the December 7 meeting, Carrera refused to allow residents to vote for the officers who had been terminated on December 5.4 Another meeting to elect officers was subsequently held December 9. Laura Chin, an EPHA resident program counselor, conducted the election. Chin subsequently alleged that at that meeting, Yepez assaulted her by grabbing her by the arms.
On December 11, Yepez was served with a three-day notice to vacate her apartment alleging that she had violated her lease agreement by assaulting Chin two days before. Yepez was advised that if she did not vacate her apartment, legal proceedings would be initiated against her. She was further advised that she would not be permitted to utilize the EPHA informal and formal grievance procedures5 because of the seriousness of the alleged violation. On December 22, EPHA filed a forcible entry and detainer (FED) action against Yepez and Talamantes.6
At the trial de novo of the FED proceedings, Laura Chin testified that she was instructed to "do anything possible to get [Yepez] off the resident council, whether by finding a discrepancy within the resident manual or getting her to comply with signing certain forms for grants which was not obligatory." Chin took such a form to Yepez who refused to sign it until her attorney reviewed the document. It was her failure to sign the form that triggered the termination of the Kennedy Brothers Residents' Council.
Chin also testified concerning the December 7 and December 9 elections. Attendance sign-in sheets were maintained in order to establish that a quorum was present and voting. The elections on December 7 were conducted by written ballot, which was not required. Carrera and other EPHA employees were present, which Chin characterized as unusual. Armida Jelsovar was elected as president; Fernando Rizo was elected as vice-president. Chin testified that there were approximately thirty residents in attendance and she was not aware that any additional residents had arrived between the elections of Jelsovar and Rizo. Nevertheless, the decision was made to invalidate the election of Rizo. Chin testified:
After Rizo's election was invalidated, an election for the positions of vice-president, treasurer, secretary, and sergeant-at-arms was scheduled for two days later, which brings us to the election of December 9. Prior to the meeting, Carrera told Chin that if the election got out of hand, she was to call security and have Yepez "thrown out." Yepez, Rizo, and Rizo's wife arrived early while Chin was setting up for the meeting. Once a quorum was present, Yepez stood and announced that the meeting was illegal and against regulations because it was being held on a Saturday. Rizo stood and crossed his name and his wife's name off the attendance sign-in list. When another resident came forward to cross out her name, Chin began to gather her papers to leave. Yepez then attempted to cross her own name off the list and a scuffle ensued with Yepez and Chin grabbing at one another. According to Chin, "that's what [sic] all hell broke loose." Chin was instructed by Helen Perez, a supervisor, to call the police and make a report of the incident. It would not have occurred to her to file a police report had she not been instructed to do so by a supervisor. She described the incident as "just an accident, you know, when she happened to grab me and I happened to grab her, and it wasn't life threatening."
The following Monday, Chin returned to work. As she walked into Carrera's office, 7 " 8 Carrera and Michael told Chin "to put in the statement that I had been bruised in the confrontation with [Yepez], that I had been bruised in the arm, and to say that I was traumatized by the whole thing." Chin complied.
. . .
. . .
Chin was transferred to a different position, reprimanded, suspended, and ultimately terminated.
Mario Gutierrez testified that as a Housing Eligibility Coordinator, it was his function to take complaints, investigate, and determine what action to take. He decided to proceed with eviction proceedings against Yepez and to issue the three-day notice, bypassing the grievance procedures. He made this decision based on the fact that Yepez had assaulted an employee in public in front of a number of people.9 He first learned of the incident on the following Monday and identified a statement which Chin had written at the direction of Pat Michael on that Monday morning. Chin gave him a list of people who had witnessed the altercation and he "spoke to them for an hour or two, several people." Customarily, he investigated a complaint "on average, anywhere from a week to two weeks." In this instance, however, he signed the three-day notice on the very same day he received the complaint and personally delivered it to Yepez at 3:20 p.m. that afternoon.
Gutierrez also compared and contrasted the types of situations in which a thirty-day notice was given.
The record reveals that thirty-day notices were provided when a tenant's son was charged with murder; when a tenant's son allegedly sexually assaulted a minor; and when a tenant committed aggravated assault by stabbing the complainant. Three-day...
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