Osterberg v. Peca
| Citation | 952 S.W.2d 121 |
| Decision Date | 08 August 1997 |
| Docket Number | No. 08-95-00223-CV,08-95-00223-CV |
| Parties | Robert OSTERBERG and Olga Osterberg, Appellants, v. Peter S. PECA, Jr., Appellee. |
| Court | Court of Appeals of Texas |
John Hoestenbach, Odessa, Larry Zinn, San Antonio, for appellants.
Michael R. Mickey Milligan, El Paso, for appellee.
Before BARAJAS, C.J., and LARSEN and CHEW, JJ.
This is an appeal from a suit brought under the Texas Election Code by Appellee Judge Peter S. Peca against Appellants Robert and Olga Osterberg. The trial court entered judgment on a jury verdict for Peca in the amount of $63,447.82 plus post-judgment interest. We affirm the judgment in part and reverse and render in part.
In 1991, Robert Osterberg was involved in litigation pending in Judge Peter Peca's court. The Osterbergs were dissatisfied with the way Peca treated them, and when Peca ran for reelection in 1994, they made campaign contributions totaling $34,200 to Albert Biel, Peca's opponent in the democratic primary. Robert Osterberg also created and paid for an advertisement to run on local television, the text of which was as follows:
CONSIDER THIS:
. Judge Peca was chosen by his peers
El Paso's outstanding jurist
. He graduated Summa Cum Laude
. He worked to reduce his docket for over 7 years
(next screen)
But, if you want ONE who understands:
. The Courthouse exists for the people, and not for judges, accidents of
politics, and lawyers.
. The spirit of the law, not just the letter, must be employed for
justice and the people.
. Efficiency at the expense of justice cannot be tolerated.
BRING THE COURTHOUSEBACK TO THE PEOPLE!
And remove HIM in four years if he fails the will of the people!
Ad paid for by Bob Osterberg [emphasis in original] The Osterbergs spent a total of $28,695 for the ad's production and air time during the primary campaign.
After winning the primary election on March 8, Peca filed the underlying suit against the Osterbergs for violations of the Texas Election Code. Peca sought civil damages from the Osterbergs under Section 253.131 of the Election Code, which provides a private cause of action to candidates against "[a] person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation" of Chapter 253 of the Code. TEX.ELECTION CODE ANN. § 253.131 (Vernon Supp.1997). Damages available under Section 253.131 include twice the amount of the unlawful expenditures or contributions and attorney's fees. TEX.ELECTION CODE ANN. § 253.131(d)(1) and (2)(Vernon Supp.1997). Peca alleged that the Osterbergs violated Chapter 253 by making direct campaign expenditures for the television ads in violation of Section 253.002, which makes direct campaign expenditures unlawful unless the person making the expenditure complies with Subchapter C to Chapter 253. TEX. ELECTION CODE ANN. § 253.002(b)(1)(Vernon Supp.1997). Subchapter C includes two parts, § 253.061 and § 253.062. Section 253.061 pertains to direct campaign expenditures under $100. TEX.ELECTION CODE ANN. § 253.061 (Vernon Supp.1997). Since it is undisputed that the Osterbergs' expenditures on the television ads were each over $100, § 253.061 does not apply. Section 253.062, which applies to expenditures over $100, therefore, is the relevant statute in this case. It reads, in pertinent part:
(a) Except as otherwise provided by law, an individual not acting in concert with another person may make one or more direct campaign expenditures in an election from his own property that exceed $100 on any one or more candidates or measures if:
(1) the individual complies with Chapter 254 as if the individual were a campaign treasurer of a political committee . ... TEX.ELECTION CODE ANN. § 253.062 (Vernon Supp.1997). [Emphasis added].
Peca charged that the Osterbergs ran afoul of Section 253.062 by acting in concert with other persons in making the expenditures for the ads, and by failing to report the expenditures as required by Chapter 254.
The jury agreed with Peca and found that both Robert and Olga Osterberg knowingly made direct campaign expenditures without complying with the reporting requirements in Chapter 254 as required by Section 253.062(a)(1), and that they acted in concert with one or more persons when they made the expenditures in violation of Section 253.062(a). Peca also alleged violations of Chapter 254 on other grounds, but the jury was unable to reach a verdict on those allegations. The trial court entered judgment against the Osterbergs jointly and severally in the amount of $57,390 (twice the amount of the Osterbergs' expenditures as found by the jury), plus pre- and post-judgment interest.
In twelve points of error, the Osterbergs challenge the constitutionality of the Election Code sections under which they were found liable to Peca, the legal and factual sufficiency of the evidence to support certain elements of Peca's cause of action, and the accuracy of several of the jury questions and instructions submitted by the trial court.
In their first four points of error, the Osterbergs contend that the Texas Election Code sections under which they were found liable violate the free speech and association clauses of the United States and Texas constitutions. We note at the outset that the Osterbergs waived their constitutional arguments. The constitutionality of a statute will be considered only when the question is properly raised and a decision becomes necessary and appropriate to the disposal of the case. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959); Allen v. Employers Cas. Co., 888 S.W.2d 219, 222 (Tex.App.--Amarillo 1994, no writ). Predicates for complaints on appeal must be preserved at the trial court level by motion, exception, objection, or some other vehicle. TEX.R.APP.P. 52(a); PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981). Mere allegations of unconstitutionality do not entitle a party to an adjudication of the validity of a statute. Allen, 888 S.W.2d at 222, citing Ex parte Southland Indep. Sch. Dist., 518 S.W.2d 921, 927 (Tex.App.--Amarillo 1974, writ ref'd n.r.e.).
In this case, the Osterbergs pleaded in their answer only that "[t]he allowance of damages sought by the Plaintiff in his Second Amended Original Petition would violate the freedom of speech and association clauses of the U.S. and Texas Constitutions." The only other reference to constitutional questions in this record prior to the submission of the case to the jury is the following statement in the Osterbergs' Motion for Directed Verdict:
[I]mposing the restrictions of the reporting and expenditure requirements of a specific political committee, along with the accompanying penalties, on your Defendants would be a violation of the free speech and association clauses of the United States and Texas Constitutions. These restrictions burden the exercise of political speech and are not narrowly enough focused to serve a compelling interest of the state.
The trial court gave the Osterbergs an opportunity to present argument in support of their Motion for Directed Verdict, but they declined arguing only that the "motion speaks for itself." 1 Although the Osterbergs expanded their constitutional arguments to include challenges to several relevant Election Code provisions on vagueness grounds in their Motion to Modify Judgment and Alternative Motion for New Trial, this post-verdict pleading was insufficient to preserve the constitutional issues for appellate review. See McCraw v. Vickers, 717 S.W.2d 738, 741 (Tex.App.--San Antonio 1986, no writ)(constitutional challenges to commissioner's court order raised for first time in motion for new trial did not preserve the issues for appeal).
Parties to a lawsuit are restricted on appeal to the issues and theories on which the case was tried in the trial court, and an appellate court, absent fundamental error, is not authorized to consider an issue or theory that was not before the trial court. McCraw, 717 S.W.2d at 741, citing Prudential Ins. Co. of America v. J.R. Franclen, Inc., 710 S.W.2d 568, 569 (Tex.1986); Gulf Consolidated International, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex.1983). Likewise, constitutional arguments not asserted in the trial court are waived on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993); Walker v. Employees Retirement Sys. of Texas, 753 S.W.2d 796, 798 (Tex.App.--Austin 1988, writ denied). Our role on review is to determine whether the trial court erred in rendering judgment based on the record before it. Great North Am. Stationers, Inc., v. Ball, 770 S.W.2d 631, 634 (Tex.App.--Dallas 1989, no writ); see also, Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 85 (Tex.App.--Dallas 1990), affirmed in part and reversed in part on other grounds, 801 S.W.2d 880 (Tex.1990). We find that the Osterbergs' two broadly stated allegations, unsupported by further argument or evidence, were insufficient to call the multiple specific constitutional challenges they raise on appeal to the attention of the trial court. 2 Accordingly, we overrule the Osterbergs' first four points of error.
In their ninth point, the Osterbergs maintain that the trial court committed reversible error by improperly instructing the jury on the definition of the term "knowingly." Section 253.131 of the Election Code, the section under which the Osterbergs were found liable, provides a civil cause of action to aggrieved candidates against a "person who knowingly makes or accepts a campaign contribution or makes a campaign expenditure in violation of this chapter...." TEX.ELECTION CODE ANN. § 253.131(a)(Vernon Supp.1997). [Emphasis added]. Thus, the language of the statute requires that a person have knowledge that his or her campaign contribution or expenditure violates the Election...
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Osterberg v. Peca
...liable for Election Code violations and awarded Peca $57,390 plus interest. The court of appeals affirmed in part and reversed in part. 952 S.W.2d 121. It held that Peca was required to prove the Osterbergs knew their expenditures violated the Election Code. Id. at 126. Applying that standa......
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In Re James Barr
...[14th Dist.] 1984, writ ref'd n.r.e.). Even constitutional arguments not asserted in the trial court are waived on appeal. Osterberg v. Peca, 952 S.W.2d 121, 124-26 (Tex.App.--El Paso 1997, no writ), citing Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); Walker v. Employees Retirement Sy......