Carrera v. Yepez

Decision Date28 October 1999
Docket NumberNo. 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
CourtTexas 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

ANN CRAWFORD McCLURE, Justice.

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.

FACTUAL SUMMARY2

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:

Q:When Mr. Rizo's election was called inappropriate, whatever term was used, why wasn't Mrs. Jelsovar's election deemed invalid?

A:Mr. Carrera had no problems with Armida Jelsovar; he had a problem with Mr. Rizo within the resident council.

Q:Why was there a problem?

A:Because he was very close to [Yepez].

Q:Who was very close to --

A:Mr. Rizo. They were friends.

Q:And what was your understanding of why they knocked Mr. Rizo's election out?

A:Maria Luisa Hernandez, the supervisor there at Housing, and Mr. Carrera had informed me before the elections took place, that Mr. Rizo would be running for a position on the resident council, and they asked me to look through the files and not to have him elected. They just said they didn't want him on the council, so we tried to find something so he would not be on the council, so we came up with too many ballots.

Q:Who issued the ballots?

A:They were issued as they signed in, as they came in, they were issued slips of paper.

Q:It wasn't, you know, people raising their hands, anything like that?

A:No, it was a written ballot.

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, "[h]e was jumping around. He was elated. He kept saying, 'We finally got her. We are finally going to be able to get her out.7 We'll get her out on a three-day.'"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.

Q:And did you in fact do that?

A:Yes, I did.

Q:Why did you do it?

A:Because I knew my job was on the line if I didn't do it.

Q:And when you did the report on Mrs. Yepez, were you told what it was going to be used for?

A:No, I was not.

Q:You didn't know if that report was going to be used to evict Mrs. Yepez?

A:Well, when I saw Mr. Carrera so elated over what had happened to Mrs. [Yepez], I knew what it was going to be used for.

. . .

Q:Ms. Chin, what happened to your job?

A:Well, after I learned about the eviction, I started thinking twice about what I was being asked to do. I felt very guilty because I didn't feel that I should be used in such a way because I didn't feel that Mrs. [Yepez] should be evicted from her apartment for doing something that really was nothing.

. . .

Q:Did Mr. Carrera tell you anything about that?

A:He said to me one time, when I was in his office, to keep my mouth shut. He said that if I wanted to be a permanent employee to keep my mouth shut. He said if I kept my mouth shut that he would make me permanent. I said to him, 'Let me get this straight. If I keep my mouth shut, I'll be made permanent?' He said, 'Yes, but if you repeat it to anybody, I'll deny it.'

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.

Q:Mr. Gutierrez, do you give 30-day notices for a serious incident?

A:Some cases.

Q:And in some cases you don't?

A:That's right.

Q:Have you at any point in time given a 30-day notice involving incidents where shotguns were used, where people had been murdered, anything of that nature?

A:We have.

Q:And yet in this case you are alleging that Mrs. Yepez -- the allegations are that Mrs. Yepez grabbed somebody's arm and you gave her a three-day notice, is that correct?

A:That's correct.

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...

To continue reading

Request your trial
15 cases
  • Scott v. Godwin
    • United States
    • Texas Court of Appeals
    • August 31, 2004
    ...in the context of discretionary authority, the burden shifts to the plaintiff to rebut this defense. See Carrera v. Yepez, 6 S.W.3d 654, 661 (Tex.App.-El Paso 1999, pet. dism'd w.o.j.); see also Haynes v. City of Beaumont, 35 S.W.3d 166, 176 (Tex.App.-Texarkana 2000, no When a defendant has......
  • Haynes v. City of Beaumont
    • United States
    • Texas Court of Appeals
    • December 8, 2000
    ...under 42 U.S.C.A. § 1983. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.—Beaumont 1999, no pet.); Carrera v. Yepez, 6 S.W.3d 654, 661 (Tex. App.—El Paso 1999, pet. dism'd w.o.j.); Lewis v. Guerrero, 978 S.W.2d 689, 693 (Tex. App.—Corpus Christi 1998, no pet.); Bexar County v. Giroux-Daniel, ......
  • Ramirez v. GEICO
    • United States
    • Texas Court of Appeals
    • April 16, 2018
    ...that requires the moving party to come forward with evidence to support the elements of its claim or defense); see also Carrera v. Yepez , 6 S.W.3d 654, 660–61 (Tex. App.—El Paso 1999, pet. dism'd w.o.j) (defendant moving for summary judgment based on an affirmative defense must come forwar......
  • Bollfrass v. City of Phx.
    • United States
    • U.S. District Court — District of Arizona
    • September 16, 2022
    ...threatened evil posed by the occupation by members of subversive organizations of units in federally aided housing projects.” Id. at 615. In Carrera, the Texas Supreme Court declined to find that a housing authority supervisor and director were entitled to qualified immunity in an action by......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT