Duncan-Hubert v. Mitchell, No. 05-09-00018-CV (Tex. App. 3/18/2010)

Decision Date18 March 2010
Docket NumberNo. 05-09-00018-CV.,05-09-00018-CV.
PartiesCHERI DUNCAN-HUBERT, Appellant, v. MAYOR STEVE MITCHELL, Appellee.
CourtCourt of Appeals of Texas

On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-14663.

REVERSE and REMAND.

Before Justices O'NEILL, LANG, and MYERS.

OPINION

Opinion By Justice LANG.

This case involves an election contest pertaining to a special election on proposed amendments to a city charter. Appellant Cheri Duncan-Hubert appeals the trial court's order granting appellee Mayor Steve Mitchell's motion for no-evidence summary judgment. Duncan-Hubert asserts two issues on appeal: (1) "[t]he trial court erred in granting summary judgment in favor of [Mitchell]" and (2) "[t]he trial court erred in granting summary judgment in favor of [Mitchell] because a genuine issue of material fact exists with regard to whether the election irregularities in this case were such as to render it impossible to determine the will of a majority of voters."1

For the reasons below, we decide in favor of Duncan-Hubert on her two issues. We reverse the trial court's judgment and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 27, 2007, the city council of the City of Richardson passed an ordinance requiring a special election on three proposed city charter amendments to be held on the uniform election date of November 6, 2007. All three of the propositions passed in the election.

On December 14, 2007, Duncan-Hubert, a Richardson resident, filed this lawsuit against Mitchell in his capacity as mayor of Richardson. In her May 5, 2008 first amended petition, Duncan-Hubert contended Mitchell (1) held the election at issue without first obtaining a petition signed by the requisite number of qualified voters; (2) did not publish notice of the election in a newspaper of general circulation in each of two successive weeks as required by the Texas Local Government Code; (3) endorsed and supported a "political advertisement/mailing" purporting to be from "Richardson Citizens for Charter Change" when, in actuality, the true source of the mailing was the Richardson Chamber of Commerce; (4) may have used public funds to fund all or part of the mailing from "Richardson Citizens for Charter Change"; and (5) published misleading statements to the voters of Richardson about the proposed charter amendments. Duncan-Hubert asserted a single cause of action in which she alleged in relevant part (1) the outcome of the November 6, 2007 election is not the true outcome because Mitchell "engaged in fraud, illegal conduct or made a mistake" and (2) "the election would have had a different result had the fraud, illegal conduct and/or mistakes [of Mitchell] not occurred" or, alternatively, "such fraud, illegal conduct and/or mistakes renders it impossible to determine the will of a majority of Richardson voters."

Mitchell filed original and amended answers in which he, in relevant part, generally denied Duncan-Hubert's claims and specially excepted to Duncan-Hubert's first amended petition for "failure to state a cause of action for an election contest and failure to state a claim upon which relief can be granted." Mitchell stated in his July 25, 2008 amended answer

[Duncan-Hubert] has failed to allege the essential elements of such cause of action and to plead facts in support of these elements. In order to maintain an election contest based on fraud or illegal conduct, a contestant must allege and prove that a different result would have been reached or irregularities in the conduct of an election were such as to render it impossible to determine the will of the majority of the voters participating. [Duncan-Hubert's] amended petition alleges that different results would have been reached had the alleged fraud not taken place or irregularities in the conduct of the election were such as to render it impossible to determine the will of the majority of the voters participating. [Duncan-Hubert], however, does not plead facts to support how or why such is true.

(citations omitted).

On August 7, 2008, Mitchell filed a "No-Evidence Motion for Summary Judgment" pursuant to rule 166a(i) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(i). As the sole basis for that motion, Mitchell contended Duncan-Hubert "has no evidence that different results would have been reached or that irregularities in conduct of an election were such as to render it impossible to determine the will of the majority of the voters participating." Mitchell asserted that because Duncan-Hubert had "no evidence whatsoever to support this required element of her cause of action," he was entitled to summary judgment against Duncan-Hubert as a matter of law.

Duncan-Hubert filed a response to Mitchell's motion for no-evidence summary judgment on September 22, 2008. In her response, Duncan-Hubert stated she was relying on summary judgment evidence consisting of affidavits, and the exhibits attached thereto, of herself, attorney Billy McGill, and experts Daniel Powers and Nathan Morgan. Duncan-Hubert asserted in relevant part that (1) Powers is an assistant professor of sociology at the University of Texas at Austin and has authored several books and peer-reviewed articles relating to applied statistics and research methods and (2) Morgan served as a election judge in the election at issue and has educational training in the fields of market research, statistics, and behavioral science. According to Duncan-Hubert, both Powers and Morgan opined that "from a statistical analysis standpoint, it would be impossible to predict or determine with any reasonable degree of accuracy, even with voter polling data, whether the outcome of the election would have been different had the irregularities complained about [in this case] not occurred." Duncan-Hubert contended the opinions expressed by Powers and Morgan "are more than sufficient to raise a fact issue with regard to whether the election irregularities in this case were such as to render it impossible to determine the will of a majority of the Richardson voters."

On September 25, 2008, Mitchell filed objections to Duncan-Hubert's summary judgment evidence and a motion to strike the affidavits of Powers and Morgan. Mitchell asserted in relevant part that Powers (1) was not timely designated by Duncan-Hubert as an expert witness, (2) did not offer a reliable opinion, (3) did not disclose the facts or data underlying his opinion, and (4) is not qualified as an expert. With respect to Morgan, Mitchell asserted objections substantially similar to those described above and, in addition, contended Morgan's affidavit (1) "includes information not based on personal knowledge and that is conclusory," (2) contains legal and/or factual conclusions not supported by facts, and (3) "contains hearsay and information not based on personal knowledge."

After a September 29, 2008 hearing,2 the trial court granted Mitchell's motion for no-evidence summary judgment in an order dated October 7, 2008. Duncan-Hubert filed a timely motion for new trial on November 11, 2008. The record is silent as to the disposition of that motion. This appeal timely followed.

II. NO-EVIDENCE SUMMARY JUDGMENT
A. Standard of Review

We review a trial court's decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard of review that is applied when reviewing a directed verdict. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882 (Tex. App.-Dallas 2006, no pet.). Under that standard, we must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. RTLC AG Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824, 833 (Tex. App.-Dallas 2006, no pet.). We review all of the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered and disregard all contrary evidence and inferences. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); RTLC AG Prods., Inc., 195 S.W.3d at 829. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. See RTLC AG Prods., Inc., 195 S.W.3d at 829. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 822); Merrell Dow Pharms., Inc., 953 S.W.2d at 711; RTLC AG Prods., Inc., 195 S.W.3d at 829.

B. Applicable Law

A court trying an election contest shall attempt to ascertain whether the outcome shown by the final canvass was not the true outcome because illegal votes were counted or because an election official or other person officially involved in the administration of the election (1) prevented eligible voters from voting, (2) failed to count legal votes, or (3) engaged in other fraud or illegal conduct or made a mistake. Tex. Elec. Code Ann. § 221.003(a) (Vernon 2010). 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. McCurry v. Lewis, 259 S.W.3d 369, 372-73 (Tex. App.-Amarillo 2008, no pet.). The outcome of an election is "materially affected" when a different and correct result would have been reached in the absence of irregularities or "irregularities in the conduct of the election render it...

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