State ex rel. Durden v. Shahan

648 S.W.3d 339

The STATE of Texas EX REL. Todd A. DURDEN, in His Official Capacity as County Attorney, Appellant

v.James T. "Tully" SHAHAN, in His Official Capacity as County Judge; Mark Frerich, in His Official Capacity as County Commissioner; Joe Montalvo, in His Official Capacity as County Commissioner; Dennis Dodson, in His Official Capacity as County Commissioner; Tim Ward, in His Official Capacity as County Commissioner; Kinney County Commissioners Court; Kinney County; and Rick Alvarado, in His Official Capacity as District and County Clerk of Kinney County, Texas, Appellees

Nos. 04-19-00714-CV

04-19-00715-CV

04-19-00716-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: May 12, 2021

APPELLANT ATTORNEY: Todd A. Durden, County Attorney, P.O. Box 365, Brackettville, TX 78832.

APPELLEE ATTORNEY: Robert T. Bass, Joshua Humphreys, Allison, Bass & Magee, LLP, 402 West 12th Street, Austin, TX 78701.

Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

Opinion by: Patricia O. Alvarez, Justice

Todd Durden, acting in his official capacity as Kinney County Attorney, filed three civil suits against Kinney County officials on behalf of the State of Texas. The suits claimed, inter alia, that when Kinney County officials reduced his salary, they violated provisions of the Open Meetings Act, the Local Government Code, and Durden's due process rights. The trial court concluded Durden had no legal authority to bring the civil suits on behalf of the State of Texas, dismissed the claims, and assessed sanctions and costs against Durden individually. Durden filed notices of appeal for the State but none in his individual capacity. Because Durden failed to perfect his appeals in his individual capacity and he had no capacity to initiate or maintain the suits on behalf of the State, we affirm the trial court's judgments.

BACKGROUND

Before we present the applicable law and analysis, we briefly recite the history of the underlying causes that is relevant to the disposition of these appeals.

A. Consolidated Trial Court Causes

These appeals involve three causes that were heard together by the trial court, but separate notices of appeal were filed for each cause. The trial court causes and appeals align as follows:

Trial Court Cause	Appeal Number
4845	04-19-00714-CV
4863	04-19-00715-CV
4866	04-19-00716-CV

B. Parties

In each cause, the notice of appeal was filed by Todd Durden, in his official capacity as (then) Kinney County Attorney, asserting that he was acting on behalf of the State of Texas. Appellees are the Kinney County Judge, the Kinney County Commissioners, the Kinney County Commissioners Court, Kinney County, and the District and County Clerk of Kinney County, Texas.

C. Cause 4845 (Appeal 714)

In cause number 4845, Durden's third Amended Petition stated he was acting as Kinney County Attorney on behalf of the State of Texas and "seeking civil remedies available for the enforcement of the laws of the State of Texas." He sought an injunction "to stop, prevent, or reverse a violation or threatened violation of the Open Meetings Act" by the Kinney County Commissioners Court. He asked the trial court to declare void "the resolutions, orders and other actions taken by the Kinney County Commissioners Court in violation of [section 551.141 of] the Open Meetings Act." He also sought an award of court costs and attorney's fees.

The appellees moved to dismiss the suit and moved for summary judgment. They also argued that Durden had no standing or authority in the suit to act on behalf of Kinney County or to represent the State of Texas. The trial court granted both motions and assessed court costs and attorney's fees against Durden individually.

D. Cause 4863 (Appeal 715)

In cause number 4863, Durden's first amended petition for writ of mandamus identifies the relator as "The State of Texas ex rel. Todd A. Durden, in his official capacity as County Attorney of Kinney County, Texas." The petition asks for a writ to order the Kinney County District Clerk or the Kinney County Treasurer to refund the $1,041.71 Durden deposited with the Kinney County District Clerk as security for trial costs.

The respondents moved to dismiss under Rule 91a and moved for final summary judgment. The trial court granted both motions, dismissed the petition, and assessed court costs and attorney's fees against Durden individually.

E. Cause 4866 (Appeal 716)

In cause number 4866, Durden's petition for writ of mandamus identifies the relator as "The State of Texas ex rel. Todd A. Durden, in his official capacity as County Attorney of Kinney County, Texas." The petition alleges Durden's salary was reduced in violation of the Open Meetings Act, the Local Government Code, Durden's due process rights, and the due course of law. The respondents argued Durden had no authority to bring the suit on behalf of the State or in his capacity as Kinney County Attorney, lacked standing to sue under the Open Meetings Act or the Local Government Code, and otherwise failed to prove the essential elements of his claims.

The respondents moved to dismiss and moved for summary judgment.

The trial court granted both motions, dismissed the petition, and assessed court costs and attorney's fees against Durden individually.

F. Appeals

In each cause, Durden filed notices of appeal on behalf of the State of Texas. In his consolidated brief, Durden presents three issues. First, the trial court erred by granting Appellees' motion for summary judgment because he has standing and authority to sue on behalf of the State of Texas. Second, the trial court erred by assessing sanctions, costs, and attorney's fees against him personally. Third, the trial court erred by denying his motions for summary judgment.

STANDARD OF REVIEW

A trial court may render summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues [presented]." TEX. R. CIV. P. 166a(c) ; accord Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017) ; Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215–16 (Tex. 2003). We review a trial court's summary judgment de novo. Lightning Oil , 520 S.W.3d at 45 ; Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013).

"[W]e take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." ConocoPhillips Co. v. Koopmann , 547 S.W.3d 858, 865 (Tex. 2018) ; accord Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).

"When both parties move for summary judgment and the trial court grants one motion and denies the other, we review all the summary judgment evidence, determine all issues presented, and render the judgment the trial court should have." Merriman , 407 S.W.3d at 248 ; accord Valence Operating , 164 S.W.3d at 661.

DURDEN AS APPELLANT , INDIVIDUALLY

In his consolidated brief, Durden argues the trial court improperly assessed sanctions, costs, and attorney's fees against him personally, but we must first determine whether we may reach Durden's complaints.

A. Additional Background

1. Trial Arguments, Judgments

In the underlying suits, Appellees repeatedly challenged Durden's standing to bring suits on behalf of the State of Texas or Kinney County.

The trial court agreed with Appellees, and it determined Durden lacked the authority to initiate the underlying suits on behalf of the State or Kinney County.² In causes 4845 and 4866, the trial court assessed sanctions under Rule 13; in cause 4863, the trial court assessed costs and attorney's fees under Rule 91a.7. In each judgment, the trial court noted that "an attorney with the experience of Mr. Durden would have known, after reasonable inquiry of the facts and law, that the pleadings he signed and filed of record in this proceeding were legally groundless," and in causes 4845 and 4866, the trial court added "and were brought in bad faith, or were brought for purposes of harassment."

2. Notices of Appeal

Nevertheless, each notice of appeal begins with "The State of Texas appeals the [respective challenged order]." Each notice of appeal is signed "Todd A. Durden, County Attorney, Kinney County, Texas, Attorney for the State [o ]f Texas. " None of the notices states it is a joint notice for the State and Durden as an appellant in his individual capacity, and Durden did not file separate notices of appeal in his individual capacity.

3. Docketing Statements

Each docketing statement identifies only one appellant: "The State of Texas ex rel. Durden in his Official Capacity as County Attorney." The sole appellant is identified as an organization, not a person, and each statement identifies Todd A. Durden as lead attorney, not an appellant.

4. Post-Notice Motions

After the notices of appeal were filed, on December 10, 2019, Durden filed the "State's First Amended Motion to Stay" in all three appeals complaining of certain trial court orders. The consolidated motion begins with "COMES NOW Appellant THE STATE OF TEXAS, represented by the County Attorney of Kinney County, Texas, and makes this State's First Amended Motion for Stay. " The motion confirms a single appellant: "Appellant is the State of Texas."

B. Applicable Law

"The filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order appealed from." TEX. R. APP. P. 25.1(b) ; Phillips v. Bramlett , 407 S.W.3d 229, 235 (Tex. 2013). But "[a] party who seeks to alter the trial court's judgment ... must file a notice of appeal." TEX. R. APP. P. 25.1(c) ; accord Brooks v. Northglen Ass'n , 141 S.W.3d 158, 171 (Tex. 2004). Otherwise, "[t]he appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause." TEX. R. APP. P. 25.1(c) ; accord Boucher v. Thacker , 609 S.W.3d 206, 219 (Tex. App.—Texarkana 2020, no...