Cooper v. Circle Ten Council Boy Scouts

• Decision Date: 16 May 2008
• Docket Number: No. 05-05-01568-CV.,05-05-01568-CV.
• Citation: 254 S.W.3d 689
• Parties: Jay Sandon COOPER, Appellant v. CIRCLE TEN COUNCIL BOY SCOUTS OF AMERICA, Appellee.
• Court: Texas Court of Appeals

254 S.W.3d 689

Jay Sandon COOPER, Appellant v. CIRCLE TEN COUNCIL BOY SCOUTS OF AMERICA, Appellee.

No. 05-05-01568-CV.

Court of Appeals of Texas, Dallas.

May 16, 2008.

Jay Sandon Cooper, Plano, for Appellant.

Jerry L. Ewing, Gregory R. Ave, Walters, Balido & Crain, L.L.P., Dallas, for Appellee.

Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.

OPINION

Opinion by Justice LANG-MIERS.

This is an appeal from the trial court's order granting summary judgment in favor of Circle Ten Council Boy Scouts of America and awarding it attorney's fees as the prevailing party in a declaratory judgment action. The sole issue below was whether Circle Ten Council is a governmental body for purposes of the Texas Public Information Act (TPIA). See TEX. GOV'T CODE ANN. §§ 552.001-.353 (Vernon 2004 & Supp.2007). The trial court concluded it was not. We affirm the trial court's summary judgment and the award of attorney's fees.

FACTUAL AND PROCEDURAL BACKGROUND

Jay Sandon Cooper sent Gene Stone, Scout Executive and Chief Executive Officer of Circle Ten Council, a letter pursuant to the TPIA requesting disclosure of information relating to the operation of the Dallas Police Department's Explorer program. Stone replied that Circle Ten Council is a private organization and not subject to the TPIA's disclosure requirements. Cooper then filed this lawsuit pro se seeking a declaration that Circle Ten Council is a governmental body subject to the TPIA and required to disclose the information. Circle Ten Council moved for summary judgment on the ground that it is not a governmental body as a matter of law and for attorney's fees as sanctions under chapter 10 of the civil practice and remedies code for filing a frivolous lawsuit. See id. § 552.003 (defining "governmental body"); TEX. CIV. PRAC. & REM.CODE ANN. §§ 10.001-.006 (Vernon 2002) (authorizing sanctions when court determines person signed frivolous pleading in violation of section 10.001). Circle Ten Council attached Stone's affidavit as summary judgment evidence.

In his response to the motion, Cooper objected to Stone's affidavit. He also attached as evidence three Texas Attorney General opinions concerning whether three unrelated entities are governmental bodies for purposes of the TPIA; various newspaper articles about the Boy Scouts, Circle Ten Council, and the DPD Explorer program; a memorandum relating to the City of Dallas's investigation of the DPD Explorer program; and various DPD records. Cooper also attached his own affidavit in which he stated he did not have adequate time to conduct discovery prior to the summary judgment hearing. Circle Ten Council filed written objections to Cooper's evidence.

On referral from the district court, an associate judge heard argument on the motion for summary judgment, granted it, and awarded Circle Ten Council $8,130.04 in attorney's fees as the prevailing party in a declaratory judgment action. See TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (Vernon 1997). Neither party obtained rulings on their objections to the other's summary judgment evidence. Cooper appealed the associate judge's decision to the district court. While that appeal was pending, he filed a motion for leave to amend his original petition to conform to issues tried without objection and to join the State of Texas as a party. He also styled the motion as seeking, alternatively, leave to amend his response to the motion for summary judgment. The trial court denied the motion for leave.¹ The district court heard Cooper's appeal and granted the same relief to Circle Ten Council that the associate judge had granted.

In this pro se appeal, Cooper argues that the trial court (1) abused its discretion by denying his motion for leave to amend; (2) erred by granting summary judgment in favor of Circle Ten Council without affording him adequate time for discovery; (3) abused its discretion by granting summary judgment before discovery was completed as required by the pretrial scheduling order; (4) erred by granting summary judgment because genuine issues of material fact exist; (5) erred by granting summary judgment because Circle Ten Council's summary judgment evidence is not competent or admissible; and (6) abused its discretion by awarding attorney's fees to Circle Ten Council.

We begin by noting that, although we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex.App.-San Antonio 1999, pet. denied).

THE TEXAS PUBLIC INFORMATION ACT

The TPIA provides the procedure by which the public may access "complete information about the affairs of government and the official acts of public officials and employees." TEX. GOV'T CODE ANN. § 552.001 (Vernon 2004). Information is public information and subject to disclosure under the TPIA if it is collected, assembled, or maintained by a governmental body under a law or ordinance or in connection with the transaction of official business. See id. § 552.002 (Vernon 2004). If a person requests public information from a governmental body and the governmental body fails to disclose the information, the requestor may enforce the statutory right of access by suing for a writ of mandamus to compel disclosure. Id. § 552.321 (Vernon 2004). The TPIA defines "governmental body" as

(i) a board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members;

(ii) a county commissioners court in the state;

(iii) a municipal governing body in the state;

(iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(v) a school district board of trustees;

(vi) a county board of school trustees;

(vii) a county board of education;

(viii) the governing board of a special district;

(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code;

(x) a local workforce development board created under Section 2308.253;

(xi) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by the state to serve a geographic area of the state; and

(xii) the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds[.]

Id. § 552.003(1)(A)(i)-(xii) (Vernon 2004). "Public funds" means funds of the state or of a governmental subdivision of the state. Id. § 552.003(5) (Vernon 2004).

Cooper's petition does not allege which of these definitions he contends applies to Circle Ten Council. Circle Ten Council contends that the only definition that could apply is (xii): "the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds."

MOTION FOR LEAVE TO AMEND

In his first issue, Cooper argues that the trial court erred by denying his motion for leave to amend his petition, or alternatively, to supplement his summary judgment response, to conform to issues he contends were tried without objection before the associate judge. When matters are tried without objection, a party may move for leave to amend its pleadings to conform to the evidence or to raise those issues. TEX.R. CIV. P. 67. Unpleaded issues may be tried by consent in summary judgment proceedings if no one objects. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991).

In his original petition, Cooper sought a declaration that Circle Ten Council is a governmental body subject to the TPIA. In his motion for leave, he also sought a declaration interpreting section 552.301 of the government code to require that when an entity receives a request for information but claims it is not a governmental body, it must seek an opinion from the attorney general regarding whether the entity is a governmental body within ten days of receiving the request for information. See TEX. GOV'T CODE ANN. § 552.301 (Vernon Supp.2007). He also sought leave to add the state as a party. He contends that the trial court had no discretion to refuse the amendment because Circle Ten Council did not present evidence of surprise or prejudice. See TEX.R. CIV. P. 63, 66. We cannot agree.

"Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unplead issue." Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.-San Antonio 2001, no pet.) (citing Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex. App.-Houston [1st Dist.] 1993, writ denied)). In determining whether an issue was tried by consent, we must "examine the record not for evidence of the issue, but rather for evidence of trial of the issue." Id.; see Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.).

In this case, the record does not support Cooper's contention that this issue was tried by consent because the appellate record does not contain the transcript of the hearing on the motion for summary judgment. See Mastin, 70 S.W.3d at 154. As a result, we have no basis for determining whether the trial court abused its discretion by denying his motion for leave to amend.

Additionally, Cooper asked for leave to join the state as a party, but he does not address this issue on appeal....