DONALD OLSEN v. DANIEL COOPER

• Decision Date: 20 July 2000
• Citation: 24 S.W.3d 608
• Parties: <!--24 S.W.3d 608 (Tex.App.-Houston 2000) DONALD H. OLSEN, Jr., Appellant V. DANIEL COOPER, Appellee NO. 01-00-00517-CV In The Court of Appeals For The First District of Texas Opinion issued
• Court: Texas Court of Appeals

Page 608

24 S.W.3d 608 (Tex.App.-Houston [1st Dist.] 2000)

DONALD H. OLSEN, Jr., Appellant

V.

DANIEL COOPER, Appellee

NO. 01-00-00517-CV

In The Court of Appeals For The First District of Texas

Opinion issued July 20, 2000

Rehearing Overruled August 22, 2000

On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 00CV0410

Panel consists of Justices Mirabal, Wilson, and Duggan.^*

O P I N I O N

MARGARET GARNER MIRABAL, Justice

In this accelerated appeal of an election contest suit, appellant challenges the trial court's ruling setting aside the outcome of a primary runoff and ordering a new election. We reverse.

Case Background

The parties vie for the position of Constable for Precinct Eight of Galveston County. Daniel Cooper is the incumbent; Donald H. Olsen, Jr. is the challenger.

Cooper and Olsen competed against two other candidates in the Republican primary election, held March 14, 2000. Because no candidate received a majority of the votes, a runoff primary election was necessary for the two candidates having the highest number of votes - Cooper (1396 votes) and Olsen (598 votes). Tex. Elec. Code Ann. § 172.004 (Vernon 1986). The winner of the primary runoff would effectively win the entire election because there is no Democratic party contender.

The outcome of the runoff election is at issue here. The primary runoff consisted of five days of early voting, held from April 3 through April 7, 2000, and one full day of voting on April 11, 2000. Olsen won the runoff election by a count of 673 to 598 (a margin of 75 votes).

On April 24, 2000, Cooper filed suit seeking to set aside the outcome of the election, alleging it was not the true outcome because "an election officer or other person officially involved in the administration of the election prevented eligible voters from voting, failed to count legal votes, or made a mistake." Specifically, Cooper asserts two mistakes at the Friendswood polling place caused the election to go awry: (1) a ballot error and (2) allegedly locked doors. The parties do not dispute that a ballot error occurred and was corrected. They do, however, dispute whether doors were locked.

Following a brief bench trial, held May 1, 2000, the trial court set aside the election and ordered a new runoff election. Olsen filed a motion for new trial, asserting he had inadequate notice of the trial and complaining about insufficiency of the evidence. Following an extensive hearing on May 12, the trial court denied Olsen's motion for new trial.

Olsen now raises seven issues, seeking to reverse the trial court's judgment and confirm the outcome of the April 11 primary runoff. Olsen challenges Cooper's authority to pursue this election contest by virtue of Cooper's bankruptcy, the legal sufficiency of the evidence, the denial of his motion for new trial, and the adequacy of the notice to Olsen of the May 1 trial.

Burden of Proof and Standard of Review

To set aside the outcome of the election, Cooper bore the burden of proving (1) violations of the Election Code occurred and (2) that they materially affected the outcome of the election. Honts v. Shaw, 975 S.W.2d 816, 822 (Tex. App.-Austin 1998, no pet.); Slusher v. Streater, 896 S.W.2d 239, 241 (Tex. App.-Houston [1st Dist.] 1995, no writ). The outcome of an election is "materially affected" when a different and correct result would have been reached in the absence of the irregularities. See Slusher, 896 S.W.2d at 241; Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.); Green v. Reyes, 836 S.W.2d 203, 208-11 (Tex. App.-Houston [14th Dist.] 1992, no writ).

The contestant's burden is a heavy one and the declared results of an election will be upheld in all cases except where there is clear and convincing evidence of an erroneous result. Reyes v. City of Laredo, 794 S.W.2d 846, 848 (Tex. App.-San Antonio 1990, no writ). The clear and convincing standard requires more proof than the preponderance of the evidence standard in ordinary civil cases, but less than the reasonable doubt standard in criminal cases. In the Interest of K.C.M., 4 S.W.3d 392, 395 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). This standard is the degree of proof that will produce in the mind of the trier of fact a "firm belief or conviction" as to the truth of the allegations sought to be proved. Id. This Court reviews the record in an election contest to see whether the trial court abused its discretion. Honts, 975 S.W.2d at 822; Slusher, 896 S.W.2d at 241.

Sufficiency of the Trial Evidence

In issue three, Olsen challenges the legal sufficiency of the evidence presented at the May 1 trial, arguing there is no evidence that the election irregularities "materially affected the outcome of the election," i.e., that at least 75 votes were affected by the irregularities. Olsen thus asserts the trial court abused its discretion by setting aside the election outcome.

In reviewing the legal sufficiency of the evidence in a non-jury case without findings of fact, but with a reporter's record, as here, we apply the same standard of review to the implied findings as we would apply to a jury's findings. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex. 1992); Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.-Houston [1st Dist.] 1992, no writ). Accordingly we sustain a legal sufficiency challenge only if, considering the evidence and reasonable inferences in the light most favorable to the findings, there is not more than a scintilla of evidence supporting it. Minnesota Mining & Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex. 1997); Bond v. Kagan-Edelman Enters., 985 S.W.2d 253, 256 (Tex. App.-Houston [1st Dist.] 1999, pet. denied).

During the very brief trial, Cooper testified himself, plus he called eight witnesses; Olsen did not testify and he did not call any witnesses, nor did he cross-examine any of Cooper's witnesses.¹

Cooper testified first. He explained there were two polling places for the election, the Friendswood City Hall and a county annex in League City. The election mishaps occurred only at the Friendswood location. The ballot problem involved the omission of both Cooper's and Olsen's names from the printed ballot. Cooper learned about this problem on Tuesday, April 4, the second day of early voting. Later that same day, the election officials manually corrected the display ballot posted on the main glass doors to city hall with a post-it note containing both names.

With regard to the alleged locked door problem, Cooper testified, "We discovered that historically, from 7:00 [to] 8:00 o'clock in the morning and from 5:00 to 7:00 o'clock at night during the early voting hours, that the front door was manually locked; and the back door was electronically locked the majority of the time."² Cooper "felt" that "many voters" had been prevented from voting because they could not get into the building. He said, "[P]eople started coming to me to apologize or feeling sorry for me - well, we're so sorry you lost. I couldn't get in to vote. I tried." Cooper did not state the number of people who told him this. He did state that he found out about the problem with the back door when he was at the Friendswood polling place about 6:15 p.m. on the second day of early voting, Tuesday, April 4. At that time, he saw Barbara Clary with her husband, and "She mentioned at that point, they had to walk from the back door to the front door. The back door was locked." The Clarys then proceeded to enter through the front door so they could "handle this" with the election officials.

Cooper also stated that he did not "feel" the election outcome represented the will of the people because he had outpolled Olsen "four to one" in Friendswood during the March primary election, and the early voter turnout in the runoff election in Friendswood was much lower than normally occurred during elections, "about 25 percent of the norm." He said that historically Friendswood was his strongest voting area, "That's where I get about 85 percent of the votes."

Two other witnesses testified about the incomplete ballot. William Cooper (no relation to the candidate) testified about discovering the ballot error. He and his wife, Alice, were early voting at city hall on the second day of early voting, Tuesday, April 4 between 11:00 and 11:30 a.m. As he scanned his ballot, William Cooper noticed that neither Cooper's nor Olsen's names were on...