Mcduffee v. Miller

• Decision Date: 28 October 2010
• Docket Number: No. 09–10–00293–CV.,09–10–00293–CV.
• Citation: 327 S.W.3d 808
• Parties: Richard McDUFFEE, Peter Goeddertz, Bill Berntsen, Adrian Heath, James Jenkins, Thomas Curry, Benjamin Allison and Robert Allison, Appellants,v.Gene MILLER, Bill Neill and Winton Davenport, Appellees.
• Court: Texas Court of Appeals

327 S.W.3d 808

Richard McDUFFEE, Peter Goeddertz, Bill Berntsen, Adrian Heath, James Jenkins, Thomas Curry, Benjamin Allison and Robert Allison, Appellants,

v.Gene MILLER, Bill Neill and Winton Davenport, Appellees.

No. 09–10–00293–CV.

Court of Appeals of Texas, Beaumont.

Submitted Sept. 22, 2010.Decided Oct. 28, 2010.

Eric Yollick, C. Travis Owens, Yollick Law Firm, P.C., The Woodlands, TX, for appellants.

James H. Stilwell, Martin, Stilwell & Jones, LLP, The Woodlands, for appellees.Before McKEITHEN, C.J., KREGER and HORTON, JJ.

OPINION

HOLLIS HORTON, Justice.

This election contest presents an appeal by eight of the ten voters whose ballots were disallowed in the May 8, 2010, election for directors of The Woodlands Road Utility District No. 1 (“RUD”). The appellants contend that prior to the election, the voters casting the ten disallowed votes moved from their prior residences within Montgomery County to 9333 Six Pines Drive, a Marriott Residence Inn, and established residence there. Following the trial of the election contest, the trial court found that ten of the votes were “ not valid.” We conclude that the trial court was presented with a fact issue concerning whether the voters casting the ten disallowed votes had established residence in the RUD, and that clear and convincing evidence supports the trial court's ruling that they had not done so. Accordingly, we affirm the judgment.

Background

The RUD is composed almost exclusively of commercial properties in The Woodlands. The unofficial results of the May 8, 2010, RUD election showed that Gene Miller, Bill Neill, and Winton Davenport—the three incumbent directors on the ballot—had been defeated in a vote of ten to two by candidates Richard McDuffee, Peter Goeddertz, and Bill Berntsen. Miller, Neill, and Davenport filed an election contest and sued the RUD to enjoin it from counting ten “illegitimate” votes. Their petition asserts that the votes were “illegitimate” because ten voters casting votes for McDuffee, Goeddertz, and Berntsen were not residents of the RUD. The incumbents' suit challenges the votes cast by McDuffee, Goeddertz, Berntsen, Adrian Heath, James Jenkins, Thomas Curry, Benjamin Allison, Robert Allison, Sybil Doyle, and Roberta Cook.

As of April 2010, each of the challenged voters had executed a voter registration form giving an address of 9333 Six Pines Drive as the location of their respective residences. The appellants' brief indicates that this is the location of The Residence Inn, a residential hotel.

Shortly after the incumbents filed suit, the ten voters whose votes were challenged intervened. The intervenors requested the trial court to enjoin the incumbent directors from interfering with the RUD's canvass and from interfering with the certification of the election. On the first day of the trial, which commenced on June 7, 2010, the parties agreed to try the case as an election contest.

Following the trial, the trial court determined that the votes cast by McDuffee, Goeddertz, Berntsen, Heath, Jenkins, Curry, Benjamin Allison, Robert Allison, Doyle, and Cook were, “by clear and convincing evidence, not valid.” The trial court further found that the votes cast by Kate Laukien and Dirk Laukien were, “by clear and convincing evidence[,] valid.” Then, the trial court ordered the RUD to canvass the two valid ballots and to certify the election of Miller, Neill, and Davenport as RUD's newly elected directors. Subsequently, eight of the ten intervenors, McDuffee, Goeddertz, Berntsen, Heath, Jenkins, Curry, Benjamin Allison, and Robert Allison, perfected an appeal.¹

In eight issues, the appellants advance three theories to overturn the trial court's judgment. Issues one through seven argue that the trial court erred by finding the challenged votes “ not valid.” The appellants advance two arguments that assert the trial court did not have subject matter jurisdiction over the parties' dispute. In issue one, the appellants argue that the trial court had no jurisdiction over the dispute because the voter registrar has exclusive authority concerning the registration of voters. In issue eight, the appellants argue that the trial court lacked subject matter jurisdiction over the dispute. We address the appellants' two jurisdictional arguments first.

Jurisdiction

Pleadings

A trial court is required to have subject matter jurisdiction to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Because district courts have a broad grant of jurisdiction to resolve disputes, a constitutional presumption exists that “district courts are authorized to resolve disputes.” In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004); see also Tex. Const. art. V, § 8. The question of whether a trial court has subject matter jurisdiction is a question of law, and the issue is reviewed de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

By statute, district courts have exclusive original jurisdiction over election contests. Tex. Elec.Code Ann. § 221.002(a) (West 2010). In determining whether a party's pleading has invoked a trial court's jurisdiction, we broadly construe the pleadings in the plaintiff's favor. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). From the incumbents' pleadings, it is clear that their dispute centers on whether the voters casting challenged votes had cast legal votes in the election of RUD's directors. It further appears that the challenged voters joined issue on the question of whether they were residents of the RUD, as they allege in their amended intervention that they met the residency requirements of the Election Code. Further, no party claimed surprise when, on the morning of trial, both parties agreed to try the case as an election contest. See Tex.R. Civ. P. 67.

In issue eight, the appellants argue that the incumbents' written pleadings are insufficient to invoke an election code contest. The incumbents' written pleadings assert a claim that ten “illegitimate” votes had been cast for Berntsen, Goeddertz, and McDuffee. The incumbents then sought to prevent these “illegitimate” votes from being counted. When broadly construed, the incumbents pleadings placed in issue the question of which votes should be counted. Relying on Rules 66 ² and 67 ³ of the Texas Rules of Civil Procedure, the appellants argue that the incumbents were required to file amended written pleadings to conform their written pleading to their oral trial amendment invoking Chapters 231 and 232 of the Election Code. We disagree that the incumbents' written pleadings are insufficient to invoke the trial court's subject matter jurisdiction over an election dispute. See Tex. Elec.Code Ann. § 221.002(a); County of Cameron, 80 S.W.3d at 555.

Because we have determined that the incumbents' written pleadings were sufficient to invoke the trial court's jurisdiction over the dispute, we need not rely on the incumbents' oral trial amendment to resolve issue eight. Moreover, even if we were to find the incumbents' pleadings deficient, we observe that Rule 67 provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Tex.R. Civ. P. 67. Here, both parties consented on the morning of the first day of trial to the trial of the case as an election contest, and the trial court then allowed both parties to make oral trial amendments to their pleadings, which their respective attorneys dictated into the record. None of the parties objected to this procedure. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex.2000) (defendant waived its claim of error by failing to object to plaintiff's failure to file amended pleadings to conform his pleadings to his request for trial amendment that the trial court had granted during trial); Gulf & Basco Co. v. Buchanan, 707 S.W.2d 655, 657 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.); Whitley v. Whitley, 566 S.W.2d 660, 662 (Tex.Civ.App.-Beaumont 1978, no writ).

In summary, the trial court had subject matter jurisdiction over the dispute. As a result, the trial court had the power required to resolve the parties' dispute. Issue eight is overruled.

Registrar's Jurisdiction

In issue one, the appellants argue that the trial court lacked subject matter jurisdiction over the dispute because the incumbents did not first challenge the registrations of the voters casting the challenged votes in a hearing before the registrar. See Tex. Elec.Code Ann. § 16.091 (West 2010). Resolving this issue requires that we examine the role the Legislature intended the trial court to play in resolving an election contest.

Under the Election Code, the scope of the trial court's inquiry into an election contest includes “whether the outcome of the contested election, as shown by the final canvass, is not the true outcome because ... illegal votes were counted[.]” Tex. Elec.Code Ann. § 221.003 (West 2010). An “illegal vote” is defined as “a vote that is not legally countable.” Id. Clearly, the Legislature contemplated the use of election contest proceedings to resolve disputes concerning whether votes were countable. To address appellants' argument that the incumbents' failure to pursue a hearing with the registrar deprived the trial court of its jurisdiction over the dispute, we must determine if the “ ‘Constitution or other law’ conveys exclusive, appellate, or original jurisdiction on another court or administrative agency.” In re Entergy, 142 S.W.3d at 322. Section 16.091 of the Election Code states that “[e]xcept as otherwise provided by this subchapter, a registered voter may challenge the registration of another voter of the same county at a hearing before the registrar.” Tex. Elec.Code Ann. § 16.091. The subchapter provides “[t]he hearing procedure does not apply to an allegation of a ground based on residence.” Tex. Elec.Code Ann. §...