Cuellar v. Maldonado

Decision Date05 March 2015
Docket NumberNUMBER 13-14-00491-CV
PartiesMARLA CUELLAR, Appellant, v. OMAR MALDONADO, Appellee.
CourtTexas Court of Appeals

On appeal from the 206th District Court of Hidalgo County, Texas.


Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Chief Justice Valdez

Appellant, Marla Cuellar, appeals a $60,000 award of attorney's fees assessed against her and her attorney as sanctions in an election contest that she filed against appellee Omar Maldonado.1 See TEX. ELEC. CODE ANN. § 232.002 (West, Westlawthrough 2013 3d C.S.) ("Any candidate in an election may contest the election."). We reverse and render.


Cuellar was a candidate for judge of the County Court at Law Number 8 of Hidalgo County, Texas in the Democratic Primary Election. The challenged election was held on March 4, 2014, and the final canvass was held on March 14, 2014. During the voting in this election, a voter reported in a well-documented incident that his vote for one candidate in one of the races on the ballot repeatedly reflected as a vote for a different candidate on the voting machine he utilized.

On March 19, 2014, in response to the voting error report, the District Attorney of Hidalgo County impounded the voting machines and ballots used in the Democratic Primary Election in Hidalgo County to conduct an investigation and determine if criminal conduct occurred in connection with the election. See id. § 273.001(b) (West, Westlaw through 2013 3d C.S.) ("A district or county attorney having jurisdiction or the attorney general may conduct an investigation on the officer's own initiative to determine if criminal conduct occurred in connection with an election."). Subsequently, a grand jury authorized the use of investigation funds to retain a firm to perform a forensic audit of the voting machines utilized in the election.

On March 22, 2014, appellant filed an election contest against Omar Maldonado. In her original petition, Cuellar alleged, in relevant part, as follows:

5. This suit is brought for the purpose of contesting the Hidalgo County Court at Law No. 8, Democratic Primary Election. Said election was held on March 4, 2014, and the Canvass was conducted on March 14, 2014 at which time the official election results were determined to be as follows:
Votes Received
Julian Castaneda
Omar Maldonado
Marla Cuellar

Contestee Omar Maldonado was declared the winner because he received more than 50% of the votes.

6. Contestant will prove by clear and convincing evidence that a sufficient number of illegal votes were counted to affect the outcome of the election; that either through malfunction or illegal manipulation, who voted for one candidate had their votes re-cast for other candidates and that persons who voted for Marla Cuellar had their votes counted for one of the other candidates (Exh. A); election machines either malfunctioned or were illegally tampered with to affect the outcome of the election (Exhs. A & B); election officials or other persons officially involved in the administration of the election witnessed that election machines appeared to either malfunction or were tampered with so that the outcome of the election was affected (Exhs. B & C); many complaints were brought to the attention of the Hidalgo County Elections Administrator to raise doubts concerning the accuracy of the election results and of the functioning of the election machines Id.; the election process failed to count legal votes, and/or engaged in other fraud or illegal conduct or made mistakes that precluded an accurate count of the vote cast.

7. Contestant would also aver that there were irregularities in the casting and counting of ballots in this election to the extent that the true outcome would result in the Contestant being declared the winner or that the true election result cannot be ascertained, thereby requiring the voiding of the election and the need for a new election.

8. Contestant would also aver that the election machines used in the election be inspected by the appropriate expert or authority designated by the Court to determine if the election machines were either faulty or were tampered with so that the true outcome of the election was affected.

Exhibit A to the petition was an incident report completed by Benito Garza detailing that he attempted to vote for Rene Guerra in the district attorney's race; however, the voting machine he utilized repeatedly cast his vote in favor of Guerra's opponent. After seeking assistance from voting officials, Garza's vote was canceled, and he used a different machine to cast his vote.

Exhibit B to the petition consisted of an affidavit from Richard Alvarez, an executive assistant to the Hidalgo County Judge. He stated that the first day of early voting in the Democratic primary election commenced on February 18, 2014. Early that morning, he received a call informing him that a voting problem had occurred at early voting at Precinct 3. He immediately went to the polling site. Upon arrival, Alvarez was informed that voter Benito Garza had cast a vote in the race for Hidalgo County District Attorney for the incumbent Rene Guerra, but upon review of the ballot, he discovered that the voting machine recorded a vote for Guerra's opponent. Alvarez was told and he verified that an election judge at the polling site had witnessed the above described occurrence and that Garza had attempted numerous times to cast his vote for Guerra, but the voting machine continued to list his vote as having been cast for Guerra's opponent.

Alvarez stated that he recommended to the election judge at the polling place that the voting machine used by Garza be segregated and removed from service so that it could be examined and the cause for the malfunction be determined. Garza was allowed to vote on a separate machine, and the malfunctioning machine was taken out of commission. However, the election judge then informed the Hidalgo County elections division about the issue. The Elections Division sent an employee to examine andrecalibrate the voting machine. The voting machine was recalibrated and placed back in use.

Exhibit C to Cuellar's petition consisted of several letters sent to the Hidalgo County Judge requesting an investigation into the accuracy of the voting machines. One of the letters was signed by several individuals and stated that it "has been brought to our attention that numerous inconsistencies and discrepancies have appeared in our analysis of each candidate's races. We therefore ask that a forensic expert inspect each voting machine to ensure that they have not malfunctioned or been subjected to fraud or tampering." The letter explained that the "integrity of the voting process is what is at issue. We ask that you take appropriate action to ensure that this and future elections will be without question."

In response to the contest, Maldonado filed a plea to the jurisdiction, which was granted by the district court. Cuellar appealed that order, and we reversed and remanded. Cuellar v. Maldonado, Nos. 13-14-00228-CV & 13-14-00230-CV, 2014 WL 2158135, at *1 (Tex. App.—Corpus Christi May 16, 2014, no pet.) (mem. op.) (consolidated opinion).

Subsequently and during the course of the election contest, Cuellar attempted to obtain access to the voting machines by attempting to intervene in the proceedings initiated by the district attorney's office, which had resulted in the impoundment of the voting machines, and by seeking permission to allow her own expert to examine the machines. Her requests were denied. The trial of this cause was reset three times in order to obtain the results of the forensic examination of the voting machines.

The forensic report on the voting machines was not issued until August 5, 2014. The report found "no evidence to conclude that tampering had occurred" with any of thevoting machines. On August 13, 2014, the parties appeared for trial and, in view of the forensic report, Cuellar nonsuited her case. The parties proceeded to hear Maldonado's motion for sanctions against Cuellar pursuant to Texas Rule of Civil Procedure 13 and chapters 9 and 10 of the Texas Civil Practice and Remedies Code. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE ANN. §§ 9.012, 10.001 (West, Westlaw through 2013 3d C.S.).2 After an evidentiary hearing, the trial court awarded Maldonado $60,000 for sanctions and attorney's fees against Cuellar and her attorneys, jointly and severally, and further awarded costs of court and post-judgment interest.

This appeal ensued. Cuellar raises three issues: (1) the trial court lacked the authority to issue any orders in this case because she had filed a timely, mandatory objection to the assignment of the trial court; (2) the trial court erred in granting attorney's fees as sanctions because this cause was not frivolous; and (3) the trial court erred in awarding attorney's fees as sanctions because Maldonado failed to prove a reasonable fee award.3


The focus of a trial court's inquiry in an election contest is set out in section 221.003(a) of the election code as follows:

(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 true because:
(1) illegal votes were counted; or (2) an election officer or other person officially involved in the administration of the election:
(A) prevented eligible voters from voting;
(B) failed to count legal votes; or
(C) engaged in other fraud or illegal conduct or made a mistake.

TEX. ELEC. CODE ANN. § 221.003(a) (West, Westlaw through 2013 3d C.S.). "To set aside the outcome of an election, the contestant must prove by clear and convincing evidence that a violation of the election code occurred and such violation materially affected the outcome of the election." Duncan-Hubert v....

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