Reese v. Duncan

• Citation: 80 S.W.3d 650
• Decision Date: 10 June 2002
• Docket Number: No. 05-01-01846-CV.,05-01-01846-CV.
• Parties: Maxine Thornton REESE, Appellant, v. Larry DUNCAN, Appellee.
• Court: Court of Appeals of Texas

80 S.W.3d 650

Maxine Thornton REESE, Appellant, v. Larry DUNCAN, Appellee.

No. 05-01-01846-CV.

Court of Appeals of Texas, Dallas.

June 10, 2002.

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Donald W. Hicks, Sr., Law Offices of Donald W. Hicks, Sr., P.C., Dallas, for Appellant.

Charles Sartain, Looper, Reed, Mark & Mcgraw, P. Michael Jung, Strasburger & Price, L.L.P., Dallas, for Appellee.

Before Justices LAGARDE, FITZGERALD, and RICHTER.

OPINION

Opinion By Justice LAGARDE.

In this accelerated appeal in an election contest, Maxine Thornton Reese ("Thornton Reese"), the contestee, raises eight issues in her challenge to the trial court's November 20, 2001 final judgment. She contends the trial court abused its discretion by declaring void the May 5, 2001 election for the Dallas City Council, Place 4, and ordering a new election. For reasons that follow, we resolve all issues against Thornton Reese, affirm the trial court's judgment, and direct the Clerk of the Court to issue mandate instanter.

BACKGROUND

A general election for Member of Council, Place 4, of the City Council of Dallas, Texas, was held on May 5, 2001. The candidates were incumbent Thornton Reese and contestant Larry Duncan, the immediate past incumbent.¹

The official canvass of the election showed that of the 3,908 ballots cast, 1,928 votes were cast for Thornton Reese, 1,912 votes were cast for Duncan, and sixty-eight ballots were either overvotes or undervotes.² In other words, Thornton Reese won by sixteen votes.³

On June 4, 2001, Duncan filed an election contest in which he alleged various voting irregularities. Duncan asked the trial court to determine the true outcome of the election or, alternatively, if the true outcome could not be determined to declare the election void.

On October 26, 2001, Thornton Reese filed a dual no-evidence and traditional motion for summary judgment, which, after a hearing, the trial court denied. After Duncan rested his case in chief, Thornton Reese orally moved for a directed verdict, which the trial court also denied. At the conclusion of the trial, the court found there was insufficient evidence to ascertain the true outcome of the election. Consequently, the trial court declared the election void and ordered a new election. On December 14, 2001, the trial court entered findings of fact and conclusions of law in support of its verdict.⁴

EVIDENTIARY ISSUES

In her sixth issue, Thornton Reese contends the trial court abused its discretion in declaring the election void because it relied on improperly admitted evidence. We first address those evidentiary issues.

To preserve a complaint for appellate review, the record must show the complaint was presented to the trial court by a timely request, motion, or objection, stating the specific grounds with sufficient specificity, and was adversely ruled upon by the trial court. Tex.R.App. P. 33.1(a); see McIntyre v. Wilson, 50 S.W.3d 674, 688 (Tex.App.-Dallas 2001, pet. denied); Ortiz v. Ford Motor Credit Co., 859 S.W.2d 73, 77 (Tex.App.-Corpus Christi 1993, writ denied).

Thornton Reese complains of the testimony of two witnesses: Duncan and Linda James.

Duncan

Thornton Reese argues that because Duncan was not a statistical expert, the trial court erred when it relied on Duncan's statistical testimony in making its findings of fact and conclusions of law. Duncan counters that Thornton Reese did not preserve error regarding her complaint that he was not an expert.

The record shows that Thornton Reese generally objected to Duncan's testimony by stating, "He's not competent to testify as an expert." The trial court sustained Thornton Reese's objection and instructed Duncan that he could not testify as an expert about statistical data. Because Thornton Reese obtained a favorable, not adverse, ruling on her objection to Duncan testifying as an expert, she has not preserved error for appellate review.

Linda James

When James was called as a witness, Thornton Reese generally objected that James was not identified as a person with knowledge of relevant facts. Although the trial court did not expressly overrule Thornton Reese's objection, it implicitly did so by allowing James to testify about certain factual matters. The trial court sustained Thornton Reese's objections to James's expert opinion testimony or testimony about characteristics of the signatures that were not obvious to the trial court. The trial court repeatedly sua sponte admonished James about not providing expert opinion testimony and instructed her on the limitations on her testimony. The trial court overruled Thornton Reese's objections regarding James's testimony about the characteristics of the letters in the signatures that the trial court could also observe.

On appeal, Thornton Reese contends the trial court erred when it relied on Linda James's expert opinion testimony regarding the genuineness of the signatures.⁵ Thornton Reese further contends the trial court reversibly erred in allowing James to testify as an expert, although she was not qualified under the rules as an expert, her opinions were without foundation, and her testimony was of no ostensible value or assistance to the trial court. Duncan responds that although the trial court precluded James from presenting expert testimony, it properly allowed James to testify as a fact witness in which she pointed out different characteristics of the signatures.

Although Thornton Reese complained in the trial court about James testifying as a fact witness, on appeal she complains only about James's testimony as an expert witness, and makes no complaint about her being allowed to testify as a fact witness. Consequently, Thornton Reese has presented nothing for review on her complaint about James's testimony as a fact witness. Further, because Thornton Reese did not obtain an adverse ruling on her objection to James's testimony as an expert witness she has not preserved error for appellate review on that issue. We, therefore, resolve the sixth issue against Thornton Reese.

STANDARD OF REVIEW

In an appeal from a judgment in an election contest, the standard of review is whether the trial court abused its discretion. See Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex.App.-San Antonio 1998, pet. dism'd w.o.j.). In a nonjury case in which both findings of fact and a statement of facts have been filed, we must review the sufficiency of the evidence under the same standards used for jury tried cases. See Slusher Streater, 896 S.W.2d 239, 243 (Tex.App.-Houston [1st Dist.] 1995, no writ). When reviewing a no-evidence or legal insufficiency point of error, we consider only the evidence and inferences tending to support the dispositive findings and disregard all evidence and inferences to the contrary. See Slusher, 896 S.W.2d at 243; see also Casino Magic Corp. r. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet. denied). If there is more than a scintilla of evidence supporting the dispositive findings, we must uphold the findings. See Casino Magic, 43 S.W.3d at 19.

When reviewing factually insufficient points of error, we consider all the evidence, including evidence contrary to the finding. See Casino Magic, 43 S.W.3d at 19; Slusher, 896 S.W.2d at 243. We set aside the verdict only if the evidence is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Casino Magic, 43 S.W.3d at 19; Slusher, 896 S.W.2d at 243. In reviewing the trial court's conclusions of law, the standard of review is de novo. See >Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 293 (Tex.App.-Dallas 2001, no pet.)

ELECTION CONTEST

An election contestant has the burden of proving by clear and convincing evidence that voting irregularities materially affected the outcome of the election. See Tiller. 974 S.W.2d at 772. In reviewing factual findings based on a clear and convincing standard, the question is whether sufficient evidence was presented to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. See Casino Magic, 43 S.W.3d at 19.

In a multi-race election the contestant must first show that (1) illegal votes were counted or (2) an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct or mistake. See TEX. ELEC.CODE ANN. § 221.003 (Vernon 1986); Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.] 1985), writ dism'd w.o.j., 714 S.W.2d 313 (Tex. 1986) (per curiam); see also Tiller, 974 S.W.2d at 772. The contestant must next show the illegal votes were cast in the race being contested. Miller, 698 S.W.2d at 375; Medrano v. Gleinser, 769 S.W.2d 687, 688 (Tex.App.-Corpus Christi 1989, no writ). Finally, the contestant must show either a "different result would have been reached by counting or not counting certain specified votes or irregularities were such as to render it impossible to determine the will of the majority of the voters participating." Goodman v. Wise, 620 S.W.2d 857, 859 (Tex.Civ.App.-Corpus Christi 1981, writ ref'd n.r.e.).

After the contestant has proved that illegal votes were cast in the contested race, if the trial court can ascertain the true outcome, it must declare the outcome. TEX. ELEC.CODE ANN. § 221.012(a) (Vernon 1986); Tiller, 974 S.W.2d at 772; Medrano, 769 S.W.2d at 688. In order to determine the true outcome, the trial court may compel the voter to reveal for whom he or she voted. TEX. ELEC.CODE ANN. § 221.009(a) (Vernon Supp.2002); Medrano, 769 S.W.2d at 688. Then, the trial court shall subtract the vote from the official total for the candidate for whom the voter cast his or her vote. TEX. ELEC.CODE ANN. § 221.001(a) (Vernon 1986) Medrano, 769 S.W.2d at 688. However, if the number of illegal votes is equal to or exceeds the number of votes necessary to change the outcome the trial court may void the election...