Keever v. Finlan

Decision Date18 February 1999
Docket NumberNo. 05-96-01411-CV,05-96-01411-CV
Citation988 S.W.2d 300
Parties134 Ed. Law Rep. 385 William KEEVER and Lawrence J. Friedman, Appellants, v. Richard FINLAN and Don Venable, Appellees.
CourtTexas Court of Appeals

P. Michael Jung, Strasburger & Price, L.L.P., Dallas, Alan B. Rich, Baron & Budd, Dallas, Robert S. Driegert, Friedman & Associates, P.C., Dallas, Lawrence J. Friedman, Friedman, Driegert & Hsueh, L.L.C., Dallas, for appellants.

Ronald D. Hinds, Dallas, for appellees.

Before Justices LAGARDE, OVARD, and ROACH.


JOHN R. ROACH, Justice.

We grant appellants' motions for rehearing. The Court's opinion of October 5, 1998 is withdrawn. The judgment of October 5, 1998 is vacated. The following is now the opinion of the Court.

Richard Finlan and Don Venable sued William Keever under the Texas Open Records Act (TORA) to compel the former Dallas school board trustee to file campaign finance reports. The trial court ultimately dismissed with prejudice Finlan and Venable's claims against Keever and dismissed Keever's claim for attorney's fees. After signing the judgment, the trial court assessed sanctions against Keever's attorney, Lawrence J. Friedman.

On appeal, Keever challenges the trial court's order dismissing with prejudice his claim for attorney's fees, and Friedman appeals the trial court's sanctions order against him. In a cross-appeal, Finlan challenges For the reasons set forth below, we reform the trial court's judgment to award Keever his court costs and affirm the judgment as reformed. Additionally, we affirm the trial court's sanctions order.

the trial court's order granting Keever's motion for summary judgment and denying his. 1


Venable and Finlan sent Keever a letter demanding that he "perform his ministerial duty" and file past-due campaign finance reports and amend "as necessary" the reports on file. They also requested in their letter, pursuant to the TORA, to "have access to inspect and copy any and all documents in your actual or constructive possession" maintained by Keever under section 254.001(a) of the Texas Election Code. Presumably, this request included Keever's supporting documents for his campaign finance reports that he maintained as an officeholder. At the time, Keever was a member of the Board of Trustees of the Dallas Independent School District (DISD).

When Keever allegedly failed to comply with the requests, Venable and Finlan sued and sought a writ of mandamus under the TORA to compel Keever to "immediately file corrected and/or past due finance reports." Both parties filed motions for summary judgment. The trial judge granted Keever's motion, dismissed with prejudice Finlan's claims, and set for trial Keever's claim for attorney's fees.

The attorney's fee hearing took place on April 10-11, 1996. After Keever presented his evidence, Finlan and Venable filed a motion for judgment on the basis that (i) the fees were paid by DISD and there was no evidence that Keever employed an attorney and (ii) Keever had no standing to recover attorney's fees for DISD. The trial judge granted Finlan's motion for judgment and ordered that Keever's claim for attorney's fees be dismissed with prejudice.

Subsequently, Finlan and Venable filed separate motions for sanctions alleging Keever's attorney, Friedman, filed a false affidavit on attorney's fees in connection with Keever's motion for summary judgment. The trial court held a hearing on the motion. On June 11, 1996, the trial judge signed an order in which he found that Friedman made false statements in an affidavit and ordered him to pay Finlan and Venable $18,000 as a sanction for his conduct. Friedman filed a motion to reconsider. Although the trial judge held a hearing on the motion, he did not sign an order on the motion.

Keever, Friedman, and Finlan appealed. We will address each complaint, beginning with the ruling on Keever's motion for summary judgment.


In four cross-points of error, Finlan challenges the trial court's decision to deny his motion for summary judgment and grant Keever's. In his first two cross-points, Finlan contends that he was entitled to summary judgment because (1) Keever did not file a verified answer prior to trial and (2) the requested records are "clearly public information." In his third and fourth cross-points, he complains the trial court erred in granting Keever's motion because the motion only attacked Finlan's suit by special exceptions and summary judgment is improper on such a basis.

The standard for reviewing a summary judgment is well-established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). To prevail on summary judgment, a plaintiff must conclusively establish all elements of his cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); TEX.R. CIV. P. 166a(c). On the other hand, the defendant, as movant, must either (1) disprove at least one element of the plaintiff's theories of recoveries or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A matter is conclusively established if When, as in this case, both parties file motions for summary judgment and one is granted and one is denied, we review all questions presented. Nationwide Property & Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 490 (Tex.App.--Dallas 1994, writ denied). The reviewing court should render such judgment as the trial court should have rendered. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). We review the summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.--Dallas 1996, writ denied).

ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

In his first cross-point of error, Finlan asserts that, in a mandamus proceeding, all factual allegations contained in the petition are accepted as true if no sworn denial is filed. Finlan contends that Keever did not have a verified answer on file at the time of the summary judgment order and he was therefore entitled to summary judgment based solely upon the allegations in his petition for mandamus. We cannot agree.

Assuming Finlan's statement of the law is correct, he did not raise this ground in his motion for summary judgment. Because he failed to raise this ground in his motion for summary judgment before the trial court, he cannot now challenge the trial court's denial of his summary judgment on this basis. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 n. 2 (Tex.1993) (motion for summary judgment must specifically state grounds upon which judgment is sought). We overrule the first cross-point of error.

In his second cross-point of error, Finlan contends he was entitled to summary judgment because the "records at issue are clearly public information." Specifically, in his motion for summary judgment, Finlan sought to inspect Keever's "canceled checks, receipts for payment, deposit slips of income, etc, [sic] for Keever's campaign activities." However, whether the records are public information is not an issue we need to decide. The dispositive inquiry is whether Finlan was entitled to a writ of mandamus against Keever under the TORA. We conclude he was not.

The TORA provides:

A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an attorney general's decision as provided by Subchapter G or refuses to supply public information or information that the attorney general has determined is public information.

TEX. GOV'T CODE ANN. § 552.321 (Vernon Supp.1999) (emphasis added).

The definition of "governmental body" includes "a school district board of trustees." TEX. GOV'T CODE ANN. § 552.003(1)(A)(v) (Vernon Supp.1999). Keever is not a "school district board of trustees"; he is one member of that body. Therefore, Keever is not a "governmental body" and not subject to the act. Accordingly, Finlan was not entitled to seek a mandamus against Keever to compel him to make information available for his inspection under the TORA.

Furthermore, contrary to Finlan's allegations, Keever is not the custodian of records for DISD. Under the TORA, the chief administrative officer for DISD is its officer for public information. See TEX. GOV'T CODE ANN. § 552.201(a) (Vernon Supp.1999). According to Keever's summary judgment evidence, DISD's chief administrative officer is its superintendent. Thus, DISD's superintendent had the duty to make public information available for public inspection and copying, subject to the penalties provided in the TORA. See TEX. GOV'T CODE ANN. § 552.203(1) (Vernon Supp.1999). Keever was not DISD's superintendent; therefore, he had no duty to produce the information for inspection or copying. 2 We overrule the second cross-point of error.

Finally, in his third and fourth cross-points of error, Finlan complains that the trial court improperly granted summary judgment in Keever's favor. Specifically, he contends that Keever's amended motion is based on "a series of special exceptions," such as (1) Keever is not a "governmental body," (2) Finlan has sued Keever in the wrong capacity, and (3) Finlan lacks standing to compel Keever to file his past due campaign reports. He argues Keever's claim that Finlan failed to state "a viable cause of action" was an improper basis for summary judgment because a defendant may not obtain summary judgment based on defects in pleadings.

Generally, it is improper to grant...

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