ACCEPTED
07-14-00014-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
3/26/2015 11:02:26 PM
Vivian Long, Clerk
Case No. 07-14-00014-CV
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
In The Court of Appeals
3/26/2015 11:02:26 PM
For The Seventh Court of Appeals District
VIVIAN LONG
Amarillo, Texas CLERK
REBECCA TERRELL
CHANDRASHEKHAR THANEDAR,
Plaintiffs-Appellants,
v.
PAMPA INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee
On Appeal From the 223rd District Court, Gray County, Texas
Trial Court Cause No. 35621
APPELLANTS’ BRIEF
Rebecca Terrell
Chandrashekhar Thanedar
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
rterrell152@gmail.com
Appellants
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Appellants: Rebecca Terrell and Chandrashekhar Thanedar
Counsel for Appellants: Trial and Appellate Counsel
Rebecca Terrell
Chandrashekhar Thanedar
Representing themselves
(956) 445-3107
Appellee: Pampa Independent School District
Counsel for Appellee: Trial and Appellate Counsel
W. Wade Arnold
State Bar No. 00783561
Andrea Slater Gulley
Underwood, Wilson, Berry, Stein & Johnson, P.C.
P. O. Box 9158
Amarillo, TX 79105-9158
(806) 379-0364 Telephone
(806) 349-9474 Fax
i
TABLE OF CONTENTS
Identity of Parties and Counsel……………………………………………….….....i
Table of Contents………………………………………………………………......ii
Index of Authorities………………………………………………………………..iv
Statement of the Case…………………………………………………………...…ix
Statement Regarding Oral Argument……………………………………………..xii
Issues Presented………………………………………………………………….xiii
Statement of Facts………………………………………………………………….1
Summary of the Argument………………………………………………………..15
Argument……………………………………………………………………….…18
1. Trial court’s failure to hold trial on 7 distinct causes of action violates
TOMA and appellants’ absolute Constitutional rights……………………..18
2. Plaintiffs are entitled to Summary Judgment on 7 distinct causes of
action and Declaratory Relief under §551.142(a)………………………..21
3. Plaintiffs are entitled to exclusion of evidence of SchoolCenter,
BoardBook, or are entitled to continuance…………………………………26
4. Plaintiffs are entitled to judgment in their favor or their motions for new
trial, to modify judgment, and for reconsideration should be granted……..30
5. PISD’s good faith claim is a fraud on the citizens and tax payers and
courts requiring sanctions…………………………………………………..45
6. Denial of plaintiffs’ evidence led to rendition of incorrect judgment……...46
7. Attorney fee award to PISD is invalid and is not reasonable. PISD
Forfeited and waived attorney fees when it refused to testify…………..…47
ii
8. Judge Lopez was disqualified from conducting trial…………………...…..55
9. Voidance and Special Damages…………………………………………....59
Conclusion…………………………………………………………………...........60
Prayer . . . . . . . . . . . . . . . . . . . ……………………………………………………61
Certificate of Compliance…………………………………………………............63
Certificate of Service………………………………………………………...........64
Appendix…………………………………………………………..………Attached
iii
INDEX OF AUTHORITIES
Cases:
Acker v. Texas Water Commission,
790 S.W.2d 299 (Tex. 1990)………………………………………..16-17, 23
Advantage Physical Therapy, Inc. v. Cruse,
165 S.W. 3d 21, 24 (Tex.App.--Houston [14th Dist.], 2005)……………...29
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997)………………………………………….54
Austin Transportation Study Policy
Advisory Committee v. Sierra Club,
843 S.W.2d 683 (Tex. App.--Austin 1992)………………………………...25
B E & K Construction v. NLRB,
536 U.S.516 (2002)…………………………………………………….20, 51
Besing v. Moffitt,
882 S.W.2d 79, 81-82 (Tex. App.-Amarillo,1994)………………………...15
Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S.731 (1983)………………………………………………………...51
Boothe v. Hausler,
766 S.W.2d 788, 789 (Tex. 1989)…………………………………..27-29, 31
Buckholts Indep. Sch. Dist. V. Glaser,
632 S.W.2d 146, 148 (Tex. 1982)………………………………………….55
City of Bells v. Greater Texoma Uti!. Auth.,
744 S.W.2d 636,640 (Tex. App.--Dallas 1987)……………………...…….59
City of Garland v. Dallas Morning News,
22 S.W.3d 351, 356 (Tex. 2000)……………………………………..……49
City of Laredo v. Monsanto,
414 S.W.3d 731 (Tex. 2013)…………………………………………….....54
iv
City of San Antonio v. Fourth Court of Appeals,
820 S.W. 2d 762,765 (Tex. 1991)………………………………………….17
Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001)…………………………………………..16
El Apple v. Olivas,
370 S.W.3d 757 (Tex. 2012)…………………………………………..49, 54
Elam v. State,
841 S.W.2d 937, 939 (Tex. App.--Austin 1992)…………………………..58
Ferris v. Texas Board Chiropractic Examiners,
808 S.W.2d 514, 519 (Tex. App.--Austin 1991)……………………....25, 59
Garza v. Alviar,
395 S.W.2d 821, 823 (Tex.1965)………………………………………….16
Haddix v. American Zurich Ins. Co.,
253 S.W.3d 339,345(Tex. App.--Eastland 2008)………………………….15
Hawkins v. Ehler,
100 S.W.3d 534, 539 (Tex. App.--Fort Worth 2003)…………………..16, 49
Horton v. Horton,
965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998)…………………………15
IKB Indus. v. Pro-Line Corp.,
938 S.W.2d 440, 442 (Tex. 1997)……………………………………….…15
Jackson v. Van Winkle,
660 S.W.2d 807, 809-10 (Tex. 1983)………………………………………38
Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983)…………..……………………………..35-37
Kirkpatrick v. Memorial Hosp.,
862 S.W.2d 762, 775 (Tex.App.--Dallas 1993)……………………………38
v
Lovely v. State,
894 S.W.2d 99,103 (Tex. App.--Beaumont 1995)…………………………58
Marin v. State,
851 S.W.2d 275, 279-280,
Tex. Court of Criminal Appeals, En Banc (1993)………………………….19
McClenan v. State,
661 S.W.2d 108, 109 (Tex. Crim. App. 1983)……………………………..58
McElwee v.McElwee,
911 S.W.2d 182, 185-87 (Tex. App.--Houston [1st Dist.] 1995)…………..55
Point Isabel ISD v. Hinojosa,
797 S.W.2d 176 (Tex.App-Corpus Christ 1990)……………..……………59
Randall's Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644 (Tex. 1995)………………………………...………..24
Smith County v. Thornton,
726 S.W.2d 2 (Tex. 1986) …………………………………………………17
Stafford v. State,
948 S.W.2d 921, 924 (Tex. App.--Texarkana 1997)………………...……..58
Tony Gullo Motors v. Chapa,
212 S.W.3d 299, 310-311 (Tex. 2006)………………………….………….48
Valdez v. Valdez,
930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996)…………..50
Vickery v. Commission for Lawyer Discipline,
5 S.W.3d 241, 255-56 (Tex. App.--Houston [14th Dist.])………………....15
Wells v. Hutchinson,
499 F.Supp. 174, 198 (E.D. Tex. 1980)……………………………………60
Constitutional Provisions, Statutes, and Rules:
Texas Civil Practice and Remedies Code (CPRC)
vi
38.001……………………………………………………………………………..50
38.004……………………………………………………………..………………50
Texas Educ. Code §21.103………………………………………………..………13
Texas Rules of Appellate Procedure (TRAP) Rules 33.1(d)…………………...…15
Texas Rules of Civil Procedure (TRCP) Rules
18(b)(a)………………………………………………………………………..…..55
166a………………………………...……………………………………………..19
166a(c)…………………………………………….………………………………24
193.5……………………………………………….……………….………….26-28
193.6……………………………………………………………………….26-29, 31
215(5)………………………………………………………………………….27-28
245……………………………………………………………………………….…9
296……………………………………………………………………………...…15
297……………………………………………………………………………...…15
301……………………………………………………………………………..….19
Texas Rules of Evidence
402…………………………………………………………………………..…32-33
602…………………………………………………………………………..…32-33
802……………………………………………………………………………..32-33
vii
Texas Open Meetings Act, Tex. Gov’t Code Ch. 551
551.041………………..……………………………….…….9-10, 14, 18, 21-22, 48
551.043…………………………………………………..9-10, 14, 18, 23, 43, 47-48
551.043(b)(1)……………………………………………….……….………….…17
551.043(b)(3)……………………………………………….……………….….…17
551.045(d)………………………………………………………9, 11, 14, 18, 22, 48
551.051………………………………………………………….9, 14, 18, 20-21, 48
551.056…………………………………………………………………….18, 45-46
551.056(b)….………………………..1-2, 4, 8, 13, 28, 32, 34-35, 39, 42-45, 50, 56
551.056(d)………………………………7, 14, 17, 19, 26, 29, 31, 33, 35, 40-45, 56
551.074…………………………………………………………………..……18, 48
551.074(b)……………………………………………….….9, 11, 14, 18, 22-23, 46
551.101……………………………………………………...9, 11, 14, 18, 22, 46-48
551.101(2)…………………………………………………………………………22
551.141…………………………………………………………………….17, 24-25
551.142………….……………………………………………………………..48-49
551.142(a)………….……………………………………………….9, 14, 18-20, 48
551.142(b)…………………………………………………………….12, 48, 50, 52
Texas Public Information Act Tex. Gov’t Code Ch. 552………………………….3
viii
STATEMENT OF THE CASE
Nature of the case: This lawsuit is brought pursuant to Texas Open
Meetings Act (TOMA), Texas Government Code, Chapter 551 and was filed on
5/29/2009. Rebecca Terrell and Chandrashekhar Thanedar (appellants, plaintiffs,
or Terrell) sued Pampa Independent School District (PISD) to void PISD’s actions
taken in violation of Sections 551.041, 551.043, 551.045, 551.051, 551.056(b) and
(d), 551.074, and 551.101 for 22 Meetings from August 13, 2008 to May 19, 2009
and to seek mandamus, declaratory relief, and permanent injunction under Sec.
551.142(a) among other relief against PISD. (Appendices 5 and 6).1, 2
Trial Court: 223rd District Court, Gray County, Texas, Hon. Abe Lopez,
assigned Judge. Previously presided by Judges Lee Waters and Phil Vanderpool.
Course of Proceedings: A summary judgment granted to PISD by Judge Lee
Waters on 5/14/2010 was reversed by this Court and the case was remanded to trial
court. Appendix19. Judge Waters retired during the pendency of the appeal.
1
Clerk’s record and reporter’s record for this the second appeal are denoted as “CR” and “RR”
respectively, followed by page number(s). Supplemental clerk and reporter records are identified
by the order in which they were filed.
Plaintiffs’ exhibits for final trial on 10/9/2013 are denoted as “PX” followed by the exhibit
number. The final trial transcript found in reporter’s record volume 2 filed on 3/24/14 is referred
to as “Trial Transcript” followed by page numbers.
Please note trial exhibit PX1 (original) was filed on 10/8/14 along with supplemental reporter’s
record. PX13 and PX15 were filed by the reporter on 10/9/14.
2
The clerk’s record on appeal from the First Appeal (007-10-00212-CV) is already on file with
the Court and is denoted by “CR” followed by notation First Appeal. Plaintiffs request that the
clerk’s record on file in First Appeal be considered in this appeal.
ix
The new presiding judge of the 223rd court Judge Phil Vanderpool recused
himself upon motion to recuse filed by appellants on September 26, 2012. Retired
Judge Abe Lopez was assigned to the case on October 15, 2012. A trial was
conducted in this case on October 9, 2013 on the issue of PISD’s violation of
TOMA §551.056(b) only with respect to 11 meetings from January 15, 2009 to
May 19, 2009, but not for 11 meetings from 8/2008 to 12/2008. Judge Lopez
refused to conduct a trial on all other causes of action arising out of PISD’s distinct
violations of TOMA sections 551.041, 551.043, 551.045, 551.051, 551.074, and
551.101 in this case. PISD’s counsel refused to testify or provide evidence of
attorney fees at the trial. The final judgment for PISD was signed by Judge Lopez
on October 25, 2013 and he awarded PISD $30,000 in attorney fees and costs by
reviewing the file. See Appendix20. Judge Lopez made Findings of Fact (FOF)
and Conclusions of Law (COL) upon request by appellants. Appendix21.
Appellants timely filed motion for new trial (Appendix1), motion to modify
judgment (Appendix2), motion for reconsideration(Appendix3), and request for
amended FOF and COL (Appendix4). Trial court took no action on them. On
September 26, 2014, Judge Lopez held a hearing on lost or destroyed trial exhibits
as ordered by the appeals court.
Proceedings in the Court of Appeals: Appellants filed their first appeal on
May 24, 2010 in the Seventh Court of Appeals, Amarillo. Trial court’s judgment
x
was reversed and remanded. Appendix19. A mandamus petition by appellants for
post remand discovery and hearing on motions was denied by this Court in
September 2013.
On January 17, 2014, appellants filed their second appeal in this case.
Appellants filed an amended notice of appeal in this case. Appendix18. On July
18, 2014, the Court abated the appeal and remanded the case to determine whether
certain trial exhibits were lost or destroyed and to determine the fault for the
destruction or loss. Trial court filed Findings of Fact and Conclusions of Law
stating the exhibits were lost or destroyed, by no fault of appellants. See 2nd
supplemental clerk’s record. Duplicates of lost or destroyed exhibits were filed
with the appeals court by visiting court reporter in October 2014.
Proceedings before 9th Administrative Judicial Region: Appellants filed a
motion to disqualify and recuse Judge Abe Lopez from sitting in the hearing
ordered by the court of appeals, which was denied by the 9th regional
administrative Judge Kelly Moore in September 2014.
xi
STATEMENT REGARDING ORAL ARGUMENT
This is the second appeal in this case in the last 6 years. This case has been
strung along for years of intentional inaction and obstruction. Appellants believe
oral argument would be of benefit to the Court at this stage to clarify these facts
and legal arguments.
An oral argument in the first appeal in this case was denied. An oral
argument then, would have made it abundantly clear to the Court that PISD neither
had the intention, evidence, nor argument concerning whether “printing” notices
changed the electronic properties of the PDF documents in question – a matter on
which this court remanded the case.
As our brief makes clear, this case involves several matters of first
impression in the history of TOMA jurisprudence e.g. document properties of
website internet notices concerning §551.056(b) and issues concerning
§551.056(d). Appellants’ pro se status should not be a hindrance.
xii
ISSUES PRESENTED
1. Trial court’s failure to hold trial on seven distinct causes of action violates
TOMA and appellants’ absolute constitutional rights.
2. TOMA requires Exact and Literal compliance with its provisions;
Further, good faith defense under §551.056(d) requires clear and convincing
standard.
3. Trial court erred in refusing to void PISD’s actions and meetings in violation
of TOMA. Terrell is entitled to voidance of her termination action done in
3/26/2009 meeting and entitled to mandamus ordering reinstatement of
Terrell to her previous position as a teacher and to back wages and benefits
4. All PISD actions taken in meetings held in violation of TOMA’s notice
provisions are voidable and plaintiffs are entitled to their voidance. Plaintiffs
are entitled to judgment in their favor on all causes of action.
5. Plaintiffs have proven their good faith under TOMA §551.142.
6. Trial court erred in ruling that front door is bulletin board within the
meaning of §551.051 under TOMA. PISD’s posting of board meeting
notices on the front door violates TOMA.
7. Trial court erred in refusing to void PISD’s actions for failure to comply for 9
months with internet posting requirement of §551.056(b).
8. Trial court erred in refusing to deny PISD’s claim of “Good Faith” exception
under §551.056(d) for 11 Meetings for five months in 2009. PISD’s good
faith claim is a fraud on citizens and courts requiring sanctions.
9. PISD’s meeting notices with incomplete description of Place violate notice
provisions of TOMA and such meetings and actions therein must be voided.
10. §551.045(d) requires a designated or authorized person to sign and post board
meeting notices; alternatively, this violation is a disputed material fact.
11. Trial court erroneously refused to void Terrell’s termination action in 3/26/09
Board meeting in violation of TOMA; whether or not Terrell had individual
notice and her attendance at the meeting are irrelevant.
xiii
12. The trial court erred in denying requested relief when undisputed evidence
shows PISD illegally closed the 3/26/2009 meeting to public and violated
§551.074(b) by deliberating Terrell’s employment contract outside of
meeting.
13. Trial court erred in denying plaintiffs’ second motion for summary judgment,
MSJ, and motions for new trial or grant continuance, to modify judgment, for
reconsideration, and denying request for amended and additional findings of
fact and conclusions of law. Further, trial court erred when it denied
hearing on the newly discovered evidence. Trial court erred when it denied
post-remand discovery and denied plaintiffs’ certain trial exhibits, such denial
causing rendition of incorrect judgment.
14. Terrell is the substantially prevailing party and should be awarded litigation
costs, fees, and special damages.
15. This Court should award Terrell special damages and impose sanctions on
PISD due to PISD’s systematic and conscious violations of TOMA and to
ensure voluntary and willing compliance with TOMA by government bodies.
16. Award of attorney fees of $30,000 to PISD is invalid and unreasonable,
further PISD forfeited and waived attorney fees.
17. Assigned trial judge Lopez was disqualified from conducting trial in this case.
18. Plaintiffs are interested persons under TOMA
19. Evidence concerning SchoolCenter, BoardBook, and Lee Carter must be
excluded, or continuance granted. Further, bare assertions, hearsay and
irrelevant evidence must be barred. Trial court erred in considering such
evidence.
20. PISD’s missing link issue is irrelevant because PISD untimely created
internet notices in May 2009; and copying or transferring the link onto new
website was not a technical problem and was not beyond the control of PISD
for 5 months
21. Plaintiffs are entitled to summary judgment on 7 distinct causes of action,
and declaratory relief under section 551.142(a).
xiv
TO THE HONORABLE SEVENTH COURT OF APPEALS:
This appeal raises important issues for this Court and Texas citizens. This
Court will decide whether Texas Open Meetings Act still is worth the exact and
literal compliance standard citizens and taxpayers of Texas demanded a long time
ago. Citizens will decide whether they should and can rely on TOMA and can take
its promise of sunshine law seriously and will courts even rule on the violations.
Will citizens be heard against government bodies and their lawyers? Texas Open
Meetings Act may yet prove to be a sunshine law.
I. STATEMENT OF FACTS
The following facts are admitted, undisputed, or supported by record.
Undisputed facts concerning untimely “created dates” of PISD’s website
internet notices for 22 Meetings
1. PISD did not contest at trial that the internet notices of 22 Board
meetings beginning August 13, 2008 to January 2009 (22 Meetings) were untimely
created in May 2009 and were posted on PISD’s internet website on May 19, 2009.
This Court acknowledged the untimely creation of TOMA notices in its opinion in
the First Appeal. Appendices 7, 19, 14; PX1.
2. PISD did not present timely created website internet notices for 22
Meetings with document properties that showed that the website internet notices
were created 72 hours before the start of each of the 22 Meetings in question as
required by §551.056(b).
1
3. PISD’s evidence of “missing link” to website notices is irrelevant
because PISD created website internet notices untimely after said meetings had
already taken place. Appendix7, PX1. Appendix19-Opinion Pgs.5-6.
4. Appellants reported violations of §551.056(b) to PISD on May 15, 2009.
PISD admitted plaintiffs’ report caused the problem to be corrected. Appendix11-
Interrogatory 7.
5. PISD represented to this Court that printing said notices “changed” the
created dates of notices. This caused this Court to remand the case. Appendix 19.
PISD did not produce evidence at trial that the untimely “created” dates of the PDF
notices of meetings in question were the dates when “PISD printed the notices for
delivery to plaintiffs.” Appendix19. Linder denied having any knowledge, stating
it was just speculation. Transcript pg.199. PISD did not present evidence at the
trial showing that printing internet notices for delivery to plaintiffs caused created
dates of notices to change. No internet notices were ever printed for delivery to
plaintiffs.
Undisputed facts about BoardBook:
6. BoardBook is not a computer program that can be owned. Yearly
subscription fee or renewal license fee must be paid every year for using its
subscription services. If renewal fees are not paid every year, use of BoardBook is
terminated. Appendix22. PISD did not purchase a BoardBook program in 2007 or
2
at any other time or made any license fee payment to BoardBook. PISD does not
have a purchase order for or contract with, or paid any consideration to BoardBook
for its service from 8/13/2008 to 5/19/2009. PISD did not supplement, amend
responses to written discovery concerning purchase orders and payments to
BoardBook. Appendices8-11. Further PISD refused and failed to provide
documents concerning payments to BoardBook to the Texas Attorney General
under a Texas Public Information Act, Gov’t Code Ch.552 Request by plaintiffs.
CR388 (First Appeal).
7. PISD did not have BoardBook service from 8/13/2008 to 5/19/2009.
PISD did not execute contract or pay license fees or renewal fees to BoardBook for
1/2009 to 5/19/2009. Appendix22. PISD admits documents evidencing payment to
BoardBook do not exist. Appendix11 (PISD’s Response to Request for
Production15). The draft subscription agreement with BoardBook for 2007 is not
signed by BoardBook. Appendix22. Further it is undisputed that PISD does not
claim good faith exception for any period in 2007 or 2008. BoardBook program
does not post notices of meetings on PISD’s website for public viewing.
Appendix10-Interrogatory18.
8. PISD is solely responsible for notices appearing or not appearing on
BoardBook or compliance with TOMA. Appendix22. Notices of meetings are
posted on BoardBook website in PDF (Adobe) format. BoardBook terminates
3
agreement in 30 days if money is not received when due. BoardBook does not
store or archive notices 30 days after termination. Appendix22.
9. Jameson was aware of the link to notices not being on the new website.
Appendix16. Jameson did not think link to BoardBook was necessary and needed
to go on the new website. In a maintenance update the link was dropped by
Jameson on 1/15/2009. Appendix11-Interrogatory5. On 5/19/2009, Jameson added
the link to notices when she found out that the link to notices was required.
Appendix16. PISD’s new website was up and running during 1/15/2009 to
5/19/2009. Appendix 16.
10. PISD’s internet notices did not appear on BoardBook’s website without
a link to them on PISD website. PISD’s notices were not available for public
viewing on Yahoo or Google search.
11. PISD did not timely post notices of meetings on its own website for 22
Meetings.
12. Linder did not post copies of internet notices of meetings on PISD’s
website. BoardBook did not and does not place or post meeting notices on PISD’s
website at any time. PISD admits that its internet notices were not posted on its or
BoardBook’s website for 11 meetings from 1/15/2009 to 5/19/2009 in violation of
§551.056(b). Appendix11-Interrogatories5,7.
4
13. PISD did not know or provide the exact dates when its old website was
discontinued and the new website went live and when the link to BoardBook was
discontinued. BoardBook is an agent of PISD (Appendix22).
14. Linder had no training, education, or expertise in technology or
software. PISD presented no exhibits, documentary evidence, or witnesses from
BoardBook or SchoolCenter at trial.
Undisputed facts about Third Party Contractor SchoolCenter:
15. SchoolCenter worked for PISD and is PISD’s agent. No person from
SchoolCenter testified concerning the claim that SchoolCenter failed to transfer
link, services assigned to and performed by SchoolCenter, and the dates of service.
PISD did not present a contract, proof of payment for service, vouchers, purchase
orders, consideration for contract, or any documentary evidence at trial concerning
SchoolCenter that defines the services it provided for PISD. SchoolCenter is a
webhosting service and not a webmaster for PISD.
16. PISD did not disclose the identity of SchoolCenter and its role in
response to written discovery from plaintiffs and further did not timely
supplement, amend, or correct its response to written discovery. SchoolCenter’s
identity and role was not disclosed until the trial in this case. In the First Appeal in
this case, PISD did not disclose to the 7th Court of Appeals the existence, identity,
and central role of SchoolCenter in this lawsuit.
5
17. SchoolCenter’s failure to transfer link did not force or require PISD to
create untimely internet notices in BoardBook weeks and months after the 22
meetings took place as noted by this Court. Appendix19. SchoolCenter had no
role in PISD’s creation of new untimely internet notices in the month of May 2009
for 22 meetings which were posted on 5/19/2009. See Appendices 7, 14; PX1.
18. PISD and Jameson dropped the hyperlink to internet notices on
BoardBook and did not ask SchoolCenter to establish it. Jameson admitted that the
link was not there on the old website at the time it was being converted to a new
website. Transcript pg.144. She did not think the link was necessary on the new
website. Appendix16. Transcript pg.144. SchoolCenter had direct access to PISD’s
old website and transferred links that were on the old website onto the new
website. Transcript pg.135. Jameson established the link to BoardBook on
5/19/2009. Appendix16. PISD untimely created notices for the 22 meetings in
May 2009. Appendix19; PX1. PISD did not have a purchase order, did not have a
contract with or make any payment to SchoolCenter for its service to build a new
format or transition hyperlinks to a new website. Hyperlinked notices did not exist
on old website, and SchoolCenter was not responsible for transferring the link to
BoardBook. SchoolCenter’s role was irrelevant to PISD’s good faith defense.
19. Jameson has no expertise in website operations. Transcript pages 132.
Lee Carter operated PISD’s website (Transcript page 116, 132) through January
6
2009 when he was PISD’s webmaster using Adobe Go Live software. Appendix 1.
PISD admitted that the internet notice of 1/15/2009 board meeting did not appear
on its or BoardBook’s website for public viewing. The link to website notices was
dropped from PISD’s website before 1/15/2009 board meeting. PISD claims good
faith defense for 11 meetings from 1/2009 to 5/19/2009. Appendix11-
Interrogatories 5, 7.
20. Linder did not communicate, direct, interact with, nor manage
SchoolCenter concerning link to notices. Linder did not know the identity of
SchoolCenter and did not have personal knowledge of its role in this lawsuit.
Transcript page 191.
21. It is undisputed that PISD did not verify that its internet notices actually
appeared for 72 hours before each of the 22 Meetings on its website directly or
through a link. Transcript 176-178. PISD further failed to verify whether or not
the link to internet notices was in fact transferred to its new website for 11
meetings for 5 months from 1/15/2009 to 5/19/2009. Transcript 176-178.
22. To put a link to notices on the website is not difficult. Transcript
pg.150. Failure to verify whether such link was removed and not reestablished is
not difficult and is not a technical problem. Transcript Page150. Further,
verification that the link to internet notices actually was transferred onto PISD’s
7
new website is not beyond the control of PISD for 5 months from 1/15/2009 to
5/19/2009. PISD does not meet requirements of §551.056(d).
23. PISD did not verify even once whether the internet notices of meetings
were actually appearing and visible to public for viewing on its website for 11
meetings in question from 1/15/2009 to May 19, 2009. Transcript pg.178. PISD’s
website was up and running properly during entirety of this time. No
communication occurred between Jameson and Linder concerning TOMA notices
of board meetings appearing on its website from January 2009 until after Thanedar
informed Linder on 5/15/2009 that internet notices did not appear on PISD’s
website. Appendix11-Interrogatory7; Appendix16.
24. PISD admits that internet website notices required under TOMA
§551.056(b) did not “appear” in the prescribed time of 72 hours on PISD’s website
for 11 meetings from 1/15/2009 to 5/19/2009. Appendices 8, 11 (Interrogatory7).
25. The internet notice that PISD posted on its website for 3/26/2009 board
meeting in which Terrell’s termination action took place was untimely created on
May 8, 2009 and untimely posted to PISD’s website on 5/19/2009. Appendix 14.
At trial, PISD did not present an internet website notice that was timely created 72
hours before the 3/26/2009 board meeting.
8
26. PISD presented no evidence at trial 1) when a “link” to internet notices
actually existed on its website and the date on which it was dropped, and that 2)
SchoolCenter was responsible for transferring said link to a new website.
27. PISD managed and maintained its website on and before 1/15/2009.
PISD managed its website 72 hours before the 1/15/2009 board meeting. The
internet notice for 1/15/2009 meeting did not appear on PISD’s website because
PISD and Jameson dropped the link in a maintenance update. Appendix11-
Interrogatory5,7. There was no link on the old PISD website for SchoolCenter to
transfer to the new website. SchoolCenter was not involved in dropping the link.
PISD’s new website went live in February 2009.
Facts regarding plaintiffs’ causes of action:
28. Terrell sued PISD on 5/29/2009 on eight distinct causes of action
arising out of PISD’s violations of TOMA and seeks to void her termination and
for reinstatement and back wages among other relief. Appendices5,6. PISD’s first
amended answer had no certificate of service and was not served on plaintiffs.
CR282-284.
29. Trial Judge Lopez did not try plaintiffs’ distinct claims under sections
551.041, 551.043, 551.051, 551.045(d), 551.74(b), 551.101, 551.142(a) (“7
Causes”). Further, Judge Lopez did not rule on said claims, nor ruled on
declaratory, mandamus, or injunctive relief, and did not make Findings of Fact and
9
Conclusions of Law on 7 Causes. Appendix21. Physical posting of notices for
3/26/2009 meeting and other 21 meetings was not the subject of trial. PISD did
not comply with any of Gov’t Code Chapter 551’s notice provisions for 22 board
meetings in question. PISD was not the substantially prevailing party under
TOMA.
30. Plaintiffs did not announce ready and requested continuance of the trial
date due to the death of Thanedar’s mother. Transcript pg.6. Trial court failed to
rule on admissibility of PX1, and denied PX13 (Audio Tapes-CDs), PX12, PX14,
PX19, PX21, and PX25. Trial court did not provide a reasonable notice or 45-day
notice (TRCP 245) for the trial in this case on remand from the appeals court.
Plaintiffs’ filings were not voluminous either in trial court or appeals court.
Further they were neither unreasonable nor improper. PISD did not respond to
plaintiffs’ filings and no attorney fees were incurred by PISD on them. Trial court
held no hearings on plaintiffs’ motions or filings.
Undisputed facts in plaintiffs’ claim under §551.051 (Bulletin Board)
31. PISD admits that it posted board meeting notices on the front door of its
administrative building for the time period in question from 8/13/2008 to
5/19/2009 (22 Meetings). Public citizens were required to stand outside the central
office building to read the public meeting notices. PISD does not dispute that there
was an unused glass enclosed bulletin board inside its administrative office
10
building in the lobby area during 22 Meetings and that PISD relocated a glass
enclosed bulletin board outside its administrative office building on 6/5/2009.
Appendix9 (Admissions 5,7,8).
Undisputed facts in plaintiffs’ claim under §551.041 (Place)
32. PISD admits that for both paper and internet notices it did not specify
or include the name of the city. Appendix9 (Admission15). PISD’s notices merely
state “Pampa High School” or “Pampa Junior High School” without the address.
See CR70-71, CR75, CR89-90, CR129-130, CR147-148, CR156, CR167-168,
CR170 (First Appeal). PISD service boundaries defined by Texas Education
Agency cover portions of Gray and Roberts Counties.
Undisputed facts in plaintiffs’ claim under §551.043 (72 Hours)
33. The physical notice for 3/26/2009 meeting was not posted for 72 hours
in a bulletin board inside the central administrative office. CR60-66(Second
Appeal).
The physical notice for 5/19/2009 meeting was not posted for 72 hours in a
bulletin board. CR60-66(Second Appeal). Linder confirmed to plaintiff Thanedar
that there was an error in posting this notice because the meeting date changed to
5/19/2009 and that Linder posted a corrected notice for a board meeting on 5/19/09
on the front door on 5/18/2009 because of the change. CR60-66(Second Appeal).
Undisputed facts in plaintiffs’ claim under §551.101 (closed meeting)
11
34. The presiding officer of the Board did not identify the section or
sections under TOMA that authorized closing of the 3/26/2009 board meeting to
public. See PX14; PX13 (Audio CDs); Appendix9(Admission14).
Undisputed facts in plaintiffs’ claim under §551.074(b) (deliberations)
35. The audio recording of the closed meeting on 3/26/2009 shows
discussion among Superintendent Haenisch and Board members on Terrell’s
termination. Terrell had specifically requested the action be deliberated in open
meeting per §551.074(b). PX13 (Audio CDs)(Tape 2 at Counter 43:45).
Undisputed facts in plaintiffs’ claim under §551.045(d) (designated person)
36. PISD’s Board did not designate or authorize Karen Linder to sign
meeting notices or post board meeting notices on the Board’s behalf. CR609,
CR832; CR821-823 (First Appeal). Appendix10 (Req. for Production 28). Linder
signed and posted board meeting notices without authorization from the Board of
Trustees. Board retained authority with respect to calling, signing, and posting
notices of board meetings. CR821-823; CR832; CR834-836(FirstAppeal).
Undisputed facts about attorney fees
37. PISD counsel refused and failed to testify at trial on PISD’s attorney
fees concerning the amount and its reasonableness. PISD made no valid
application for attorney fees under §551.142(b) at trial. Trial court asked PISD’s
attorney Mr. Arnold whether he wanted to testify and present evidence concerning
12
PISD’s request for attorney fees. PISD’s counsel refused to do so, instead asked
trial Judge Lopez to take notice of the file. Transcript page 238. PISD did not
present evidence concerning existence of PISD’s attorney fees, hours, hourly rate,
tasks performed and by whom, difficulty level, and reasonableness of court’s
award of attorney fees of $30,000.
Undisputed facts about Bad Faith
38. At trial, PISD presented no evidence of plaintiffs’ bad faith in bringing
the lawsuit. PISD’s actions did not have reasonable basis under TOMA. TOMA
requires reasonable attorney fees to be proven at trial, and does not permit judicial
notice of file. PISD did not present factual evidence of voluminous pleadings and
motions in district court or appellate court or time spent by PISD defending against
them or the suit. Appellants were meritorious and prevailed in the first appeal with
Seventh COA awarding costs to appellants. Appendix19. Judge Lopez does not
have power to grant appellate attorney fees.
Undisputed facts about Plaintiffs’ Good Faith
39. Plaintiffs presented evidence of their good faith at trial. PISD admits
that plaintiffs’ report to PISD of non-appearance of website notices was the sole
reason why PISD fixed its non-compliance with §551.056(b) for 11 meetings after
5 month long of non-compliance. Appendix11-Interrogatory7.
13
Plaintiffs’ employment, Standing, Back-Wages
40. Appellants are citizens and taxpayers of Texas for more than 15 years
(4 years in Pampa beginning 2008), and are interested persons under TOMA and
pay sales taxes and other taxes that fund PISD and other school districts in Texas.
PX15, PX21; Appendices5,6. TOMA does not require plaintiffs to reside within
PISD’s boundaries. PISD, a school district created by the State of Texas, is a
government body subject to TOMA. Terrell was a first year beginning teacher at
Pampa High School and taught U.S. History, World History, and World
Geography. Terrell’s probationary contract (PX6) does not automatically expire
by its own terms under the Education Code. The Education Code §21.103 requires
that a probationary contract must be terminated in 45 days before the last day of
instruction or the contract automatically renews. Terrell’s probationary contract
was terminated by PISD in a Board meeting on 3/26/2009. Terrell was not given
and did not have actual notice of termination of contract, nor was Terrell’s contract
placed on the notice/agenda of the 3/26/2009 meeting. The legal notice of
3/26/2009 board meeting required under TOMA was not in a bulletin board or on a
front door for 72 hours prior to said meeting. Terrell’s termination was not placed
on the agenda of the meeting.
14
41. Document properties of a PDF document show various aspects of the
electronic document viz. when it was created (created date), when it was last
modified (modified date). Plaintiff Thanedar testified as an expert witness at trial
in this case. Transcript pgs.75-86.
II. SUMMARY OF THE ARGUMENT
The trial on 10/9/2013 made mockery of Texas Open Meetings Act
(TOMA). Plaintiffs’ seven distinct causes of action under TOMA sections
551.041, 551.043, 551.051, 551.45(d), 551.74(b), 551.101 and 551.142(a) were not
tried or ruled on. Trial judge Abe Lopez blamed this Court for it. Plaintiffs’ are
absolutely entitled under law and Texas and U.S. Constitutions to declaratory
rulings, mandamus, and injunctive relief on the above claims. Judge Lopez was
disqualified to hold trial. PISD produced no legal evidence concerning its claim of
good faith under §551.056(d). Further forgetting to transfer or verifying transfer of
a link is not a technical problem and never beyond the control of PISD, a
government body, especially over 5 months. PISD lied to this Court about
“created dates” of internet notices and the “link.”
PISD is solely responsible for compliance with TOMA. Any outside
vendors are agents of PISD. PISD showed intentional ignorance concerning the
untimely internet notices posted after 5 months, got caught, and made things up.
PISD’s good faith claim is a fraud on Texas citizens and courts. Attorney fee
15
award to PISD is unlawful and unreasonable. Each cause of action by plaintiffs is
dispositive of the whole case requiring reversal of trial court’s judgment and
entitling plaintiffs judgment in her favor. This Court should reverse trial court’s
judgment and render judgment for plaintiffs and grant their prayer.
III. STANDARD OF REVIEW
A case is “tried” when a court holds an evidentiary hearing on a cause of
action upon conflicting evidence. Besing v. Moffitt, 882 S.W.2d 79,81-82 (Tex.
App.-Amarillo,1994, no writ); Haddix, infra at 345. In cases tried without a jury,
findings of fact delineate facts that support the judgment and the legal reasoning
underlying the judgment. In such cases, findings of fact and conclusions of law are
mandatory under TRCP Rule 296 and 297.
On appeal, findings of fact are reviewed for sufficiency of the evidence and
conclusions of law are reviewed de novo. Haddix v. American Zurich Ins. Co., 253
S.W.3d 339,345(Tex. App.—Eastland 2008, no pet.); IKB Indus. v. Pro-Line
Corp.,938 S.W.2d 440,442 (Tex. 1997).
A request for additional findings is similar to an objection. Vickery v.
Commission for Lawyer Discipline, 5 S.W.3d 241, 255-56 (Tex. App.—Houston
[14th Dist.], pet. denied). Thus a request for additional findings of fact has
significance unrelated to the trial court actually filing additional findings of fact. A
challenge to the sufficiency of the evidence in a bench trial can be raised for the
16
first time in appellant’s brief. There is no need to file a post-judgment motion
raising it. TEX. R. APP. 33.1(d).
A no evidence point is sustained if the record discloses the following: (1)
there is complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or evidence from giving weight to the only evidence offered to prove a vital
fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of
evidence; or (4) the evidence conclusively established the opposite of a vital fact.
See Hawkins v. Ehler, 100 S.W.3d 534, 539 (Tex. App.--Fort Worth 2003, no
pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998, no pet.).
An assertion that the evidence is "insufficient" to support a fact finding
means that the evidence supporting the finding is so weak or the evidence to the
contrary is so overwhelming that the answer should be set aside and a new trial
ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
When reviewing a factual sufficiency challenge, the appellate court
considers all the evidence and determines whether the evidence supporting a
finding is so weak as to be clearly wrong and unjust or whether the evidence is so
against the great weight and preponderance of the evidence to be clearly wrong and
manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Appellate court is required to consider all of the evidence in the case in making this
determination. Hawkins, Id.
17
Exact and Literal Compliance Required under TOMA:
TOMA’s provisions are mandatory. Acker, Infra; Smith County, Infra.
TOMA violations are not trivial or de minimis. The Texas Supreme Court has
required Exact and Literal Compliance by governmental bodies, especially, with
respect to the notice provisions of TOMA. Acker v. Texas Water Commission, 790
S.W.2d 299 (Tex. 1990) (“The explicit command of the statute is for openness at
every stage of the deliberations. Accordingly, we have demanded exact and
literal compliance with the terms of this statute.[citing] Smith County v.
Thornton, 726 S.W.2d 2, 3 (Tex. 1986)”); City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762 (Tex. 1991). Thus, “substantial compliance” is not valid
law in Texas. A governmental body’s actions taken in violation of TOMA are
voidable. §551.141. TOMA is not a scheme to provide due process to individuals.
It is not a legislative scheme for service of process; it has no due process
implications. Acker, Id.; City of San Antonio, Id.
Burden of Proof: Plain language of TOMA makes it clear that the burden
of proof of “good faith” under §551.056(d) is on the government body and that it
must be “continuous” for each meeting. §551.056(d); §551.043 (b)(1) and (b)(3).
IV. ARGUMENT
Appellants repeat preceding paragraphs as if set forth verbatim herein.
1. Trial court’s failure to hold trial on 7 distinct causes of action violates
TOMA and appellants’ absolute Constitutional rights
18
By a slight of hand, the trial court rigged this case and denied trial on
plaintiffs’ distinct causes of action under TOMA Sections 551.041, 551.043,
551.045, 551.051, 551.074, 551.101, and 551.142(a)(7 Causes).3 Appendices 5,6,
Transcript pages 11-12. Judge Lopez had an independent duty to try and rule on
said causes of action under TOMA and the Texas and U.S. Constitutions, but failed
to do so. Plaintiffs’ absolute constitutional rights of due process in this matter
cannot be denied or waived, and plaintiffs did not waive their constitutional rights.
Marin v. State, 851 S.W.2d 275, 279-280, Tex. Court of Criminal Appeals, En
Banc (1993).
3
PISD’s Board held a total of 22 meetings from 8/13/08 to 5/19/09. Violations of TOMA
provisions at Issue in this case:
§551.051: PISD violated §551.051 by failing to post notices of 22 Meetings in a
specifically designated place - Bulletin Board in its Central Administrative Office.
§551.056: PISD violated §551.056 by failing to concurrently post internet notices of 22
Meetings on its website for prescribed time and manner.
§551.043: PISD violated §551.043 by failing to post notices of 22 Meetings at a physical
location for prescribed time (72 hours) and manner.
§551.041: PISD violated §551.041 by failing to specify “place” in its notices of 22
Meetings.
§551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the
3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell’s termination
in closed meeting.
§551.045(d): PISD violated §551.045(d) because PISD’s notices of 22 Meetings were
signed on behalf of the Board and posted by a person (Linder) not so designated nor
authorized by Board of Trustees.
§551.142(a): Declaratory, injunctive, and mandamus relief on all plaintiffs’ claims.
19
Further, plaintiffs filed timely objections and motions and brought trial
court’s failure to try 7 Causes to its attention. Appendices1,2,3,4. Judge Lopez’s
general observations and comments are not rulings. Further, the trial court failed
to make findings of fact and conclusions of law regarding 7 Causes and did not
rule on plaintiffs’ request for amended or additional findings of Fact and
conclusions of law in this regard. Appendix4.
The trial court stated that the appeals court remanded the case to hold trial
only in the matter of §551.056(d). Transcript Pgs.11-12. This is plainly false and
an abdication of Judge Lopez’s independent duty to rule. The appeals court did not
rule on or limit the causes of action on which trial could be held. Appendix19.
Trial court was required to hold trial on all of them and specifically rule on them.
Texas Rules of Civil Procedure require that the trial court’s judgment shall
conform to pleadings. TRCP 301. TOMA §551.142(a) entitles plaintiffs to
declaratory ruling and relief on every one of plaintiffs’ 7 untried causes of action.
Plaintiffs objected and asked the Judge Lopez to grant new trial on 7 causes of
action. Appendices 1,2,3,4. Trial court was required under TRCP 166a to either
grant plaintiffs’ second summary judgment motion on said 7 Causes or try them
and rule on each one of them.
The Court’s failure and refusal to try the 7 Causes violates plaintiffs’
constitutional rights under Texas Constitution Article 1 Sections 3, 13, 19, and 27,
20
and the 14th Amendment to the U. S. Constitution and is clear misconduct on Judge
Lopez’s part.
In the words of Justice Sandra Day O’Connor “this right to petition is one of
the most precious of the liberties safeguarded by the Bill of Rights.” BE&K
Construction, Infra. Appellants’ are absolutely entitled to trial on every single one
of their 7 untried remaining causes of action under TOMA and have all of their
complaints redressed and ruled on. Plaintiffs request that this Court uphold this
right and vacate final judgment and grant new trial on all causes of action.
2. Plaintiffs are entitled to Summary Judgment on 7 distinct causes of action
and Declaratory Relief under §551.142(a)
Plaintiffs are entitled to declaratory, injunctive, mandamus relief under
TOMA whether or not any other relief is granted and whether or not PISD's actions
in violation of TOMA are voided.
A. Plaintiffs are entitled to declaration that PISD violated TOMA §551.051.
PISD admits that it posted TOMA notices on the front door for 22 Meetings
when there was an unused bulletin board inside the building. Statement of Fact
(SOF) 31. §551.051 mandates the location for notices. Here it is clear common
sense that “front door” is not “bulletin board” inside the building under §551.051.
This violation is particularly offensive and vile as it forces the “undesirable”
citizens to stand outside the entrance of the building in rain, snow, cold, hot
weather and in poor lighting conditions and humiliate themselves standing in the
21
way of the incoming and outgoing traffic. This is abuse of citizens. These notices
on the front door cannot be read from inside and certainly are neither safe, nor
convenient, thus do not meet the requirements of “convenient,” “accessible”
“inside the building” and “bulletin board” and under §551.051 under Exact and
Literal compliance standard. Forcing citizens to stand outside the building to read
notices is an unwelcome mat to poor citizens and minorities all around the “Carver
Center” to prevent them from entering the building. Only PISD would have the
gall in this day and age to engage in this insensitive divisive tactic against its own
taxpaying citizens. Why should or would taxpayers stand outside the building that
they paid for to read TOMA notices? What is next - notices on windows, plants,
and restroom doors? This Court should prevent this abomination of §551.051 and
declare that notices on front doors violate §551.051.
B. Plaintiffs are entitled to declaration that PISD violated §551.041 when
PISD failed to give notice of "place."
PISD admits the facts in SOF32. PISD failed to notify the reader of the
“place” under §551.041 for 22 meetings under the exact and literal compliance
standard. PISD forced citizens to guess about “place” with details missing from
notice e.g. street address, location, and other details. Thus plaintiffs are entitled to
the declaration that PISD violated §551.041.
C. Plaintiffs are entitled to declaration by the court that PISD violated
§551.045(d).
22
PISD admits that Board never authorized nor designated Karen Linder under
TOMA to sign notices of meetings on behalf of the Board. SOF36. The language
of §551.045(d) is clear that it applies to all notices not just emergency notices and
it requires an authorized or designated person to post notices of meetings.
§551.045(d). Thus plaintiffs are entitled to declaration that PISD violated
§551.045(d).
D. Plaintiffs are entitled to declaration that PISD violated TOMA §551.101 by
improperly closing its March 26, 2009 meeting and further violated 551.074(b)
It is not disputed that defendant's president, Mr. Charles Smith did not
identify the section or sections of TOMA that authorized closing the 3/26/09 board
meeting to the public under TOMA before closing the meeting. SOF34. PISD thus
did not comply with the §551.101(2). Therefore, plaintiffs are entitled to
declaration that PISD unlawfully closed meeting on March 26, 2009 in violation of
§551.101. Plaintiffs are entitled to all legal and equitable relief and that 3/26/09
closed meeting and actions taken in it be declared unlawful and contents of the
closed meeting be made public and allowed to be freely copied and distributed.
PISD deliberated on Terrell's contract termination in the closed meeting on 3/26/09
when Terrell had specifically requested the action be deliberated in open meeting
per §551.074(b). SOF35. Plaintiffs are entitled to the declaration that PISD
violated §551.074(b).
23
E. Plaintiffs are entitled to declaration by the court that PISD violated
§551.043 concerning the 3/26/09 and 5/19/09 Board Meetings
Plaintiffs’ rely on SOF33. It is undisputed that the notice of 3/26/09 Board
meeting was not seen posted in the bulletin board in PISD’s Central Office nor on
its front door at 5 P.M. and after 6 P.M. on 3/23/09 i.e. notice was posted less than
the prescribed 72 hours in violation of §551.043.4 PISD’s (Linder) vague claims
and surmise do not specifically dispute plaintiffs’ sworn assertions e.g. a revised
notice for 3/26/2009 meeting was taped to the front door of central office building
on 3/24/09, less than 72 hours before the start of the meeting.
Similarly, the notice for 5/19/09 meeting was posted for less than 72 hours
because the meeting date changed from 5/8/09 to 5/19/2009 causing the revised
notice to be reposted. Because PISD posted (paper) notices of 3/26/09 and 5/19/09
Board meetings for less than the prescribed 72 hours, PISD violated §551.043.
TOMA violations Are Distinct: The statutory language of TOMA is clear
that the above notice provisions are distinct, and failure to comply with any one of
the notice provisions renders the action(s) in violation of TOMA and thus voidable.
§551.141.
4
Whether or not Plaintiffs knew or attended the meeting (SOF40) is irrelevant. TOMA is not
scheme for process of service and has no due process implications. Acker, Id.
24
No developed record: Because there was no trial on 7 Causes, no trial
record exists, thus Plaintiffs rely on the facts and arguments in their Second No-
evidence and Traditional Summary Judgment motion herein. Appendix12.
A party moving for summary judgment must show that no genuine issue of
material fact exists and that the party is entitled to judgment as a matter of law.
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); TRCP
166a(c). Here. The facts are undisputed in the untried 7 Causes. Thus based on
the exact and literal compliance standard, plaintiffs are entitled to summary
judgment in their favor.
F. The sky is not falling if illegal actions are voided
PISD has repeatedly tried scare tactics by using the bogeyman of voidance.
All actions in violation of TOMA must be voided given PISD’s defiance,
conscious indifference, obstruction of discovery, and systematic longstanding
violations of TOMA’s notice requirements. PISD can ratify the voided actions in a
legally held board meeting under TOMA. So far PISD has refused to ratify its
actions as was properly done in ATSPAC v. Sierra Club, 843 S.W.2d 683 (Tex.
App.--Austin 1992), preferring instead to scare the courts.
G. Terrell is entitled to back wages and voidance of her illegal termination:
Terrell was not terminated in a legally convened meeting under TOMA, thus
the termination action is voidable. §551.141. Given PISD’s outrageous misconduct
25
and systematic violations of TOMA, and Terrell’s termination action should be
voided. Voidance of Terrell’s termination in 3/26/2009 meeting means Terrell
lawfully continues to be an employee and is owed back wages. Courts have upheld
voidance of action involving employment termination, reinstatement upon
voidance, and granting back wages and benefits. See Ferris v. Texas Board
Chiropractic Examiners, 808 S.W.2d 514, 519 (Tex.App—Austin 1991) (ordering
back wages and benefits of $26,000 until the time Ms. Ferris was terminated in a
legally convened meeting under TOMA). Like Ferris, Terrell continues to be
lawfully employed by defendant. Back wages and benefits are thus due Terrell,
currently at about $262,000 for 5 years until Terrell is terminated lawfully in a
subsequent legally held meeting under TOMA. Ferris, Id. Further Terrell’s illegal
termination cannot be ratified retroactively because Education Code requires a 45
day notice to Terrell before the last day of instruction (10 days for 2012-2013 and
after), failing which Terrell’s contract is automatically renewed and becomes, as
here, a continuing contract after 3 years. See Education Code§21.103.
3. Plaintiffs are entitled to exclusion of evidence on SchoolCenter,
BoardBook, or are entitled to continuance
Exclusion of Evidence: TRCP 193.5 mandates that a party must amend or
supplement the party’s response to written discovery when the part learns that its
response was incomplete or incorrect when made, or is no longer complete and
correct. TRCP 193.5(a). The party must amend, correct or supplement written
26
discovery concerning identification of persons with knowledge of relevant facts
and any other information sought by the written discovery reasonably promptly.
Less than 30 days before trial is not reasonably promptly. TRCP 193.5(b). A
party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not
timely disclosed, TRCP 193.6.
Evidence concerning SchoolCenter must be excluded: PISD concealed
the identity and the central role of the third party vendor, SchoolCenter, in PISD’s
§551.056(d) defense until the trial and disclosed the information during the trial on
10/9/2013. In its discovery responses PISD represented that only Jameson and
Linder had knowledge of the “link” problem and Jameson caused the link to be
severed in a maintenance update. Appendix11. In a flip flop, PISD identifies a
new culprit, SchoolCenter, and blames it for not transferring the link. PISD failed
to identify, provide information on SchoolCenter in the written discovery, and
further failed to amend, supplement, or correct written discovery concerning
SchoolCenter. Appendices 8,9,10,11. SOF16. Plaintiffs’ are entitled to exclude
any information concerning SchoolCenter from evidence under TRCP 193.6
because PISD failed to comply with TRCP 193.5. Boothe v. Hausler, 766 S.W.2d
788, 789 (Tex. 1989). Any information given by Jameson or other witnesses
27
concerning SchoolCenter must be excluded. Trial court erred in denying plaintiffs’
motions to exclude in this regard. Transcript pgs 214-220.
PISD lied to this Court throughout the First Appeal process in its briefs by
concealing the identity of SchoolCenter and its alleged central role in this case
causing obstruction of justice. Now after 6 years, there are more lies. All
information concerning SchoolCenter must be excluded from evidence as a
sanction on PISD for failure to comply with TRCP 193.5. Boothe v. Hausler, Id.
The sanction for failure to comply with this rule is exclusion of the evidence
affected by the violation. TRCP 215(5); TRCP 193.6; PISD failed to establish
before the trial court that good cause existed for allowing SchoolCenter related
evidence. Boothe v. Hausler, at 789.
At trial, PISD claimed to have purchased BoardBook program, paid license
fees and renewal fees to BoardBook for its service to post website notices since
2007. But during discovery process PISD refused and failed to provide full and
complete discovery and produce documents concerning payment of license fees
and renewal fees to BoardBook. PISD refused and failed to supplement answers to
written discovery in this regard. SOF6. All evidence concerning existence of
BoardBook service should have been excluded and struck from evidence at trial.
See TRCP 215(5).; TRCP 193.6; Boothe v. Hausler at 789. The Court erred when
it refused and failed to do so in response to motions from plaintiffs. CR111.
28
PISD concealed the above information from plaintiffs and the Attorney
General of Texas, obstructing justice. SOF6. Plaintiffs were severely compromised
in their ability to show that non-compliance with §551.056(b) was actually due to
the fact PISD did not have BoardBook service during 8/13/2008 to 5/2009 or that
PISD actually obtained it in May 2009 when and untimely created and posted prior
meeting notices to conceal violation of §551.056(b). Texas law is clear - without
proof of payment of consideration, PISD did not have a contract with BoardBook
or SchoolCenter. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W. 3d 21, 24
(Tex.App.--Houston [14th Dist.], 2005 no pet.) (without consideration, there is no
contract).
For violation of TRCP 193.5, information concerning existence of
BoardBook service in this case must be excluded from evidence. TRCP 193.6; See
Boothe v. Hausler at 789.
Similarly, because PISD concealed the identity of SchoolCenter until the
trial and SchoolCenter’s alleged failure in transporting “link” to PISD website
notices, plaintiffs were severely harmed and compromised in examining evidence
and questioning witnesses, and would have subpoenaed SchoolCenter at trial for
testimony had PISD timely supplemented and amended written discovery.
In both instances, the issues were dispositive and not cumulative because
they related to the controlling and central issue of PISD’s good faith under
29
§551.056(d) and why the link to website notices was missing for at least 5 months
in 2009. Boothe v. Hausler, at 789. The trial court should have excluded evidence
concerning SchoolCenter and BoardBook, alternatively should have granted
continuance of the trial as requested by plaintiffs to conduct further discovery.
TRCP 193.6(c). Transcript pgs,214-220.
4. Plaintiffs are entitled to judgment in their favor or their motions for new
trial, to modify judgment, and for reconsideration should be granted
A. PISD lied to this Court that printing changes “created dates” of
internet notices in the first appeal
PISD lied to this Court in the first appeal that “created date” means the date
the “particular notice was printed for delivery to appellants.” Appendix19. Based
on this misrepresentation, this Court remanded this case. It has been six long years
of lies from PISD. In the trial of this case, PISD admitted that the above
contention was not true, but “oops” it was only a speculation.
“I was just trying to give some reasons why that might have happened.”
Linder testimony, Transcript pg, 201.
Such misconduct mocks this Court, TOMA, and the discovery process.
Nothing PISD says after this can be credible in the slightest. PISD must be
sanctioned for this lie and judgment entered for plaintiffs.
B. PISD lied to this Court again about SchoolCenter and concealed
SchoolCenter’s identity and central role in the first appeal
30
PISD lied to this Court again when it concealed the identity and the role of
SchoolCenter, a vendor, from this Court in its brief in the First Appeal. In the brief
before this Court, PISD blamed Jameson. See PISD’s brief in the First Appeal (07-
10-00212-CV). Appendix11-Interrogatory5. But now PISD blames SchoolCenter
for losing the “link.” Even a soap opera cannot be this phony and ridiculous. Both
Jameson and SchoolCenter are agents of PISD. It has been six long years of lies
from PISD. PISD must be sanctioned for this concealment and lie from this Court
and judgment entered for plaintiffs.
C. SchoolCenter, BoardBook evidence must be excluded, PISD’s good faith
defense thus fails
Plaintiffs rely on and repeat Argument 3 as if fully set forth herein. As
explained above, evidence and information concerning SchoolCenter and
BoardBook must be excluded and barred from evidence because PISD failed to
timely amend, supplement, or correct written discovery concerning them. TRCP
193.6; Boothe, Id. At trial, PISD flip-flopped and blamed SchoolCenter for the
missing link to notices. However both SchoolCenter and BoardBook being
vendors employed by PISD are PISD’s agents. The only evidence presented for
PISD’s good faith claim related to SchoolCenter’s role. Because all evidence or
information concerning SchoolCenter must be excluded, PISD’s good faith claim
must be rejected. Similarly, any portion of good faith claim that relies on
BoardBook and Lee Carter must also fail because such information or evidence
31
must be excluded and is barred. TRCP 193.6, Boothe, Id. PISD’s good faith
defense under §551.056(d) fails.
D. Hearsay and Irrelevant evidence of Linder and Jameson must be barred
PISD has the burden to prove good faith under §551.056(d). Texas Rules of
Evidence (TRE) bars evidence that is irrelevant and is not personal knowledge of
the witness. TRE 402, 602, 802. Linder and Jameson’s testimony on good faith
defense under §551.056(d) was complete hearsay. PISD presented no documentary
evidence concerning SchoolCenter, BoardBook, called no expert witnesses in
support of its claim of good faith either on document properties e.g. “created dates”
of internet notices or the missing link issue. No one from SchoolCenter or
BoardBook testified in support of PISD’s good faith.
Linder made it clear that she has no personal knowledge regarding the claim
of missing link. Transcript pg.191. Further, her entire testimony about good faith
defense was nothing more than her general opinions and beliefs concerning her
work in BoardBook software which is irrelevant under TOMA because
§551.056(b) or any other section of TOMA does not require work in BoardBook.
TOMA requires concurrent internet notices to be posted on government body’s
website. §551.056(b). Linder admitted that she never clicked on the link on
PISD’s website to verify that internet notices appeared for public viewing
(Transcript pgs. 176-178) and does not know anything about created dates or
32
Adobe PDF, she does not even know the name of SchoolCenter. Thus Linder’s
entire testimony concerning her bare assertions about her “work” in BoardBook
must be struck and excluded from evidence as irrelevant, hearsay, and hearsay
within hearsay. TRE 402, 602, 802. Jameson’s testimony about what
SchoolCenter did or did not do concerning the link is classic hearsay. TRE 402,
602, 802. Transcript pgs.126-157; Appendix15. Her testimony was a sham and a
cover-up to shield her when she removed the link because she thought it was not
needed. Appendix16. She could not even recall the name of the person she
supposedly worked with on the new website project that supposed to have
transferred PISD’s “thousands” of links. Transcript pg.133. Jameson admitted she
has no knowledge or expertise in website operations. Transcript pg.129. Under
TRE, her testimony is full of bare assertions on what SchoolCenter did or did not
do, or failed to do is classic hearsay, lacks personal knowledge, thus must be struck
and excluded from evidence. Her testimony concerning what Lee Carter, the
webmaster, did or did not do must also be struck as hearsay and excluded. TRE
402, 602, 802.
At best, Linder and Jameson’s testimonies about BoardBook and
SchoolCenter’s role are bare assertions, too weak, no more than speculation,
surmise, hearsay and less than a scintilla of evidence, therefore are not legal
evidence concerning good faith. Kindred, infra at 63. Linder and Jameson’s bare
33
assertions often contradicting overwhelming evidence to the contrary5 are not legal
evidence. Kindred, infra at 63 and further they do not meet clear and convincing
standard this government entity, PISD, must meet to establish its good faith under
§551.056(d).
Evidence by Linder, Jameson, and Haenisch on good faith was bare
assertions, hearsay, incompetent, speculative, and immaterial as to whether PISD
exercised good faith concerning its non-compliance with §551.056(b). Thus the
evidence they presented was no more than scintilla, surmise, and speculation which
is not legal evidence.
When the evidence offered to prove a vital fact is so weak as to do no
more than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect, is no evidence
at all.
Kindred v. Con/Chem, Inc. 650 S.W.2d 61,63 (Tex. 1983).
Karen Linder’s testimony was a sham because she admitted that her sworn
answers to plaintiffs’ interrogatories were nothing but speculation and she did not
have knowledge about technical matters in question. PISD’s Linder falsely
represented to the appeals court that printing PDF notices changed the created
dates of website notices. Appendix19. PISD now states at trial that it was just
speculation on their part. SOF5. Karen Linder’s assertion that she “worked in
5
Jameson admits that she thought the link was not needed on the new website. Appendix16.
She removed the link in a maintenance update. Appendix11-Interrogatories 5,7.
34
BoardBook” on her computer was no more than bare opinion as PISD presented no
evidence that it actually had BoardBook service during the period in question i.e.
1/2009 to 5/18/2009 or at any time from 8/13/2008 to 5/19/2009.
Thus Linder’s and Jameson’s testimonies on good faith issue are no legal
evidence and must be disregarded as no material fact question was raised or
answered by their testimonies and because the Court was barred by rules of law or
evidence from giving weight to the only evidence they offered (hearsay, bare
opinion, and speculation) to prove a vital fact of good faith under TOMA.
Kindred, Id. PISD’s good faith claim must fail.
E. Plaintiffs were entitled to hearing on newly discovered evidence
Trial court erred in denying a hearing on newly discovered evidence and
motion for new trial. Plaintiffs demonstrate the existence of factors6 in Jackson and
Kirkpatrick for grant of new trial in this regard. Jackson v. Van Winkle, 660
S.W.2d 807, 809-10 (Tex. 1983); Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762,
775 (Tex.App.-Dallas 1993, writ denied). The weight and importance of the newly
discovered evidence here and its bearing with respect to evidence received at trial
6
The factors are: (i) the evidence came to light since the time of trial or so late in the trial that it
was impossible to present the evidence before the trial closed; (ii) it was not because of a lack of
due diligence that the information did not come sooner; (iii) the new evidence is not merely
cumulative to that already given and does not tend only to impeach the adversary's testimony;
and (iv) the evidence is so material that it would probably produce a different result if the court
granted a new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983).
35
is conclusive and is so material that it will probably produce a different result in
this case:
1. PISD did not have good faith because it removed the link from its
website itself before the creation of new website by SchoolCenter and
SchoolCenter had no role to play in the removal or reestablishing the link. SOF18.
2. PISD’s Jameson’s testimony at trial was misleading and false. The newly
discovered evidence would show that PISD was aware of the removal of link and
willfully violated §551.056(b).
The appendices 2 through 5 to motion for new trial (Appendix 1) are PISD’s
website archive pages and view source information of PISD’s website as of the
dates noted i.e. 1/26/2009 and 2/5/2009. View source pages identify the software
that generated PISD’s website pages viz. “Adobe GoLive” software for the OLD
website and “SchoolCenter” version 8.0 used for the NEW website.
The newly discovered evidence shows that
a. PISD concealed the fact that the link to internet notices did not exist on the
OLD website which was managed by PISD itself. The appendices 2 and 3 of
Motion for new trial (Appendix 1) show that PISD managed its website itself
through January 26, 2009. PISD has admitted that the TOMA internet notice did
not appear on its website for its January 15, 2009 meeting because the link was
removed. The missing link problem started with the January 15, 2009 meeting
36
notice when PISD managed the website. There was no link to be transferred to the
new website which went live after 1/26/2009.
b. PISD’s OLD website was managed by its webmaster Lee Carter at least
through January 26, 2009. Motion for new trial’s appendix 2 (bottom left corner)
and appendix 3 (page 2 of the appendix) clearly identify Lee Carter as PISD’s
webmaster and show that Lee Carter as an employee had PISD’s business email
address. PISD used Adobe GoLive software at least up to January 26, 2009 and
maintained its own website well after the time it admitted that January 15, 2009
meeting notice did not appear on its website because link was removed when PISD
managed its website itself. The newly discovered evidence shows that
SchoolCenter was not at “fault” as falsely alleged by PISD because as admitted by
PISD the link did not exist on its website on or before 1/15/2009 causing non-
appearance of the internet notice for 1/15/2009 board meeting. PISD removed the
link in 1/2009 because it thought it was not “necessary.” Appendix 16.
c. Thus it is obvious PISD’s Suzie Jameson fabricated a story and gave false
testimony (Appendix 1) blaming SchoolCenter when PISD itself removed the link
in January 2009 or before, on its own watch, before the new website was allegedly
created by SchoolCenter in February 2009 (Motion for New trial -appendices 4-5).
The problem of admitted non-compliance on January 15, 2009 existed before
SchoolCenter allegedly created the new website which was in February 2009.
37
d. PISD concealed Lee Carter’s (PISD’s Technology Director) role in
maintaining and generating PISD’s website during the time period it claims good
faith under §551.056(d). Lee Carter’s name was not disclosed during the
discovery process in violation of discovery rules as a person who had knowledge
or any role in this concerning this lawsuit. Appendices 8-11. Lee Carter’s name
appears as webmaster on PISD’s website on January 26, 2009 well after PISD
admitted that January 15, 2009 meeting notice did not appear on its website due to
alleged link problem. Motion for new trial-appendices 2-3.
PISD failed to timely disclose and supplement, amend, or correct its
responses to written discovery, concerning the identity and role of SchoolCenter
and Lee Carter until the trial, the above evidence could not be obtained before trial
and is not cumulative. SchoolCenter and Lee Carter’s roles are material in PISD’s
good faith defense in §551.056(d). .
Plaintiff Thanedar testified as expert in technology matters pertinent to this
lawsuit. The above evidence however is obvious to an average person. Plaintiffs
affirm that “Adobe GoLive” was a software product of Adobe Systems Inc. and is
an HTML editor used to maintain and manage websites by its customers. The
word “Generator” in appendix 3 of motion for new trial means what it says i.e.
PISD generated its website using Adobe GoLive.
38
Refusal to receive newly discovered evidence and refusal to grant new trial
would be manifest abuse of discretion and permanent loss of plaintiffs’ substantive
rights. A new trial is thus required under law on the good faith claim by PISD and
an evidentiary hearing was required by trial court to receive evidence in the above
matters which will affirm that PISD’s good faith claim was made in bad faith and
is a fraud. This Court should grant new trial in this case.
F. Missing link to notices is irrelevant because internet notices for 22
Meetings were untimely created in May 2009 for posting on website weeks
and months after meetings took place
The “missing link” to internet notices is a smokescreen and is not relevant.
The undisputed fact is that PISD untimely created internet notices in May 2009,
weeks and months after the 22 Meetings took place and then posted them untimely
on its website all at once on 5/19/2009. Created date of an Adobe PDF document
means what it says i.e. the date when the PDF document was created. Transcript
pgs.75-86. This is not disputed by PISD. PISD did not produce timely created
internet notices for 22 Meetings at trial, there is no evidence that they were timely
created. Whether or not the link was missing, PISD never timely created internet
notices for each of the 22 Meetings 72 hours before each meeting started. Because
PISD did not create timely internet notices and untimely posted them, PISD’s good
faith claim fails.
39
Because PISD did not care to check for each meeting notice whether its
notices actually appeared on its website or not, it does not show good faith under
§551.056(d) and its good faith claim must be rejected.
G. PISD did not care or attempt to check if the internet notices actually
appeared on its website for public viewing for each of the 22 Meetings in 72
hours before each meeting
TOMA requires that the internet notices must be concurrently posted on the
Government body’s website 72 hours before the start of a meeting. §551.056(b).
The evidence is undisputed that PISD did not attempt to or care to check that
internet notices were actually appearing on its website and were available for
public viewing for any of the 22 Meetings in question. Transcript pgs. 176-178.
An average person would exercise such care to comply with law. A government
body should be held to even higher standard. PISD fails even the lower average
person standard. Thus PISD did not make a good faith attempt under 551.056(d)7
to verify its compliance with §551.056(b). If PISD had done so, it would have
immediately known and found out that notices were not appearing on its website
and PISD would have presumably fixed its non-compliance with TOMA.
7
TOMA §551.056(d) provides that:
“The validity of a posted notice of a meeting or an agenda by a governmental body or economic
development corporation subject to this section that made a good faith attempt to comply with
the requirements of this section that is due to a technical problem beyond the control of the
governmental body or economic development corporation.”
40
The language of TOMA is plain and clear that compliance with TOMA must
be done in the prescribed 72 hours before a meetings starts and must be
continuous. §551.043. This requires that a government body must check for each
meeting that the internet notice actually appears on its website for public viewing.
PISD’s intentional ignorance defeated the purpose of TOMA’s prescribed 72 hour-
requirement. §551.043; §551.056(b).
PISD’s intentional ignorance and conscious indifference is not good faith
because it did not even once attempt or care to verify that notices actually appeared
on its website from 1/2009 to 5/19/2009 in compliance with §551.056(b). It must
be noted that for meeting notices from 1/2009 to 5/19/2009 for which PISD claims
good faith, there is no evidence that its website was not up and was not working
normally. Haenisch testified the new website had no disruptions. Transcript
pg.117. Thousands of other links were working perfectly. Transcript pg.135.
PISD showed intentional ignorance and cover-up to hide its violations of
§551.056(b).
If this Court does not reverse trial court’s judgment, every government body
intentionally or not, will “ignore” to exercise sufficient care to comply with TOMA
for months or years and still claim good faith and will be granted exception under
§551.056(d), making a laughing stock out of Texas Open Meetings Act.
41
H. “Oops we forgot,” mistake, negligence, or incompetence is not a technical
problem
There is no evidence or insufficient evidence that forgetting to transfer a link
to new website is a “technical”8 problem. §551.056(d). Here, PISD claims that
SchoolCenter made a mistake and did not transfer the link to notices to new
website. Transcript pg.149-150. Jameson testified that the problem was that of a
“missing link.” Transcript pg.149. Even if true, forgetting or making a mistake is
not a technical problem. There is no evidence that there was anything wrong with
the link itself. PISD presented no evidence that mistake is a technical problem. To
the contrary, Jameson herself testified that adding a link on the new website is not
difficult. Transcript pg.150. Jameson further testified the problem with the link
was just a “plain and simple oversight.” Jameson refused to even call the oversight
a “technical” problem even when prodded by plaintiffs. Transcript pg.150. Thus
oversight, negligence or “Oops we forgot” is not a technical problem under
TOMA.
I. “Oops we forgot” to transfer a link is not “beyond the control” of PISD
8
Collins English Dictionary – Complete and Unabridged, HarperCollins Publishers, 2003 defines
“technical” as 1) of, relating to, or specializing in industrial, practical, or mechanical arts and applied
sciences.
42
Even if forgetting to copy or transfer link is a technical problem, there is no
evidence or insufficient evidence that transferring a link to new website was
“beyond the control” of PISD for 5 long months from 1/2009 to 5/19/2009.
§551.056(d). Jameson testified that failure to transfer the link in question was a
“plain and simple oversight” and that it was not difficult. Transcript pgs.149-150.
Earthquake, snow, rain, hacking and virus attacks are beyond the control of a
government body while these events last. Forgetting to verify mandatory
compliance with TOMA for 5 months is most certainly not “beyond the control” of
a school district. To suggest otherwise is an insult and fraud on citizens and
taxpayers of Texas. There is conclusive overwhelming evidence that the link
problem in question would have been fixed had PISD checked its new website just
once in 5 months as to whether legally required internet notices were actually
appearing on its new website, but PISD did not do so. SOF21 and 23. All PISD
needed to do was to get off the chair and check that the link was transferred and
further check that the legal meeting notices were actually appearing on its website
for public viewing. PISD has admitted that it never showed interest and due care
to comply with §551.056(b). SOF21, 23, Transcript pg.146. PISD’s missing link
was neither a technical problem nor beyond its control. PISD’s good faith defense
fails.
43
Here, PISD decided it was not going to comply with TOMA 551.056(b), but
got caught. There is overwhelming evidence that PISD showed conscious
indifference at best, or bad faith and fraudulent misconduct concerning its legal
duty to comply with TOMA Sec. 551.056(b).
Jameson’s sham testimony
Jameson gave false testimony concerning SchoolCenter at trial to avoid
blame on herself. PISD had admitted that Jameson performed duties with respect
to “establishing BoardBook link” on PISD’s new website and not SchoolCenter.
Appendix 16. Jameson’s May 19, 2009 E mail to Linder (Appendix 16) clearly
states (Emphasis provided):
I apologize for not having that link on the site. I have added it
on the School Board page. There were lots of things that were
on the old site that I did not realize needed to go on the new
one.
It is abundantly clear from the above email that PISD and Jameson knew
about the “link” but did not think it was “needed” on the new website. In written
discovery PISD blamed Jameson for “severing” the link in a “maintenance
update.” Appendix11-Interrogatories 5, 7. Jameson’s new testimony at trial is
diametrically contradictory with PISD’s written discover. Both are not credible.
As a result, Jameson dropped the “link” to BoardBook on PISD’s new website in
January 2009. This can only be described as a mistake, error or negligence, or lack
of due care and diligence, or properly as willful disregard for compliance with
44
TOMA for 5 months. There was no “severance” of the link, no “maintenance
update” that “severed” the link, or “inadvertent” mistake here as Jameson clearly
knew about the link and PISD and Jameson decided it was not needed on the new
website and therefore Jameson did not establish it on the new website.
Appendix16. As a matter of law, negligence or lack of due care and diligence by a
person is not a “technical” problem as the word technical is commonly understood,
and certainly not “beyond the control” of PISD. All PISD had to do was to check
its own website to verify that Board meeting notices were “appearing” on its
website, as a reasonable person would have done. PISD failed to exercise this
reasonable care for 5 months and at least 11 Meetings. PISD fails reasonable care
standard, which is never beyond PISD’s control.
5. PISD’s good faith claim is a fraud on the citizens and tax payers and courts
requiring sanctions
PISD has obstructed discovery from the beginning concerning BoardBook
and SchoolCenter. PISD lied to the Texas Attorney General and to this Court and
simply refused to provide documents concerning BoardBook and SchoolCenter to
plaintiffs calling them “beyond the scope of TRCP.” SOF They knew they could
get away with it. SOF6.
The alleged problem of “link” was only fixed when plaintiff Thanedar
reported nonappearance of notices on 5/15/2009 to PISD in good faith. Appendix
11-Interrogatory 7. Without plaintiffs’ report in good faith, PISD could have
45
continued for several more months, or years, or even indefinitely without
complying with Sec. 551.056.
Post-remand discovery
Trial court erred in denying post-remand discovery on good faith. Post-
remand discovery was consistent with the opinion and mandate of this Court. This
is especially important for TOMA because post-remand discovery would have
discovered that PISD’s contention that printing changes “created dates” of PDF
documents was a fraud on this Court and citizens. Denying post-remand discovery
only shielded PISD and its obstruction of justice.
6. Denial of plaintiffs’ evidence led to rendition of incorrect judgment:
The Court failed to rule on admissibility of plaintiffs’ exhibit PX1 in the one day
trial excluding it from evidence. PX1 contains 22 board meeting website notices at
issue in this lawsuit and their electronic document properties on Compact Disc.
Plaintiffs rely on facts and argument in Argument 8 below regarding PX1. There
was no objection by defendant. This exhibit was admitted and authenticated by
Judge Waters before and was reviewed by this Court in the first appeal and the
untimely “created dates” were central in determining PISD’s good faith. The CD in
question is in the record and the record thereon has been reviewed on appeal by the
appeals court. The Court clearly abused its discretion when it refused to rule on
admissibility of PX1 and thereby ignored the electronic properties of internet
46
notices leading to incorrect judgment. As PX1 and its electronic properties are
central to violation of TOMA Sec. 551.056 and all other causes of action in
plaintiffs’ live pleadings. Denial of PX1 caused rendition of incorrect judgment as
the untimely created dates of internet notices would have shown that PISD created
the internet notices weeks after the 22 meetings took place and untimely posted
them on 5/19/2009. This would show that PISD’s missing link good faith defense
was a fraud because the internet notices were not even created concurrently and
timely. Trial court erred in not ruling on PX1. It should have been admitted.
Further, trial court erred in denying admission of PX13 which is audio tapes
of 3/26/2009 meeting that shows violation of 551.101, and 551.074(b) which are
causes of action in this lawsuit and directly relevant, resulting in court’s failing to
rule on the above claims. PX13 should have been admitted.
Trial court erred in denying admission of PX12(notices of meetings) which
concerned violation of 551.043, PX14 (excerpt of transcript 3/26/2009 meeting),
concerned violation of 551.101, PX19(back pay benefits) and PX25(salary
schedules) concerned claim of back pay and special damages, and PX21(sales tax
receipts) concerned the issue of standing), all central and relevant to TOMA issues.
Denial of this evidence resulted in rendition of incorrect judgment on these issues.
The above exhibits should have been admitted into evidence.
47
Trial court’s judgment should be reversed and judgment entered for
plaintiffs. Minimally, plaintiffs’ motions for new trial, to modify judgment, for
reconsideration, and the request for amended and additional FOF and COL should
be granted on all causes of action.
7. Attorney fee award to PISD is invalid and is not reasonable. PISD
forfeited and waived attorney fees when it refused to testify
The trial court committed clear error in granting $30,000 in attorney fees to
PISD by taking “judicial notice of the file” under TOMA. Appendices20, 21.
Texas law has not allowed recovery of attorney fees unless allowed by
statute or contract. “Absent a contract or statute, trial courts do not have inherent
authority to require a losing party to pay the prevailing party’s fees.” Tony Gullo
Motors v. Chapa, 212 S.W.3d 299, 310-311 (Tex. 2006). Nothing in TOMA or its
pertinent case authority authorizes or empowers any court to take judicial notice of
attorney fees and to award them without receiving evidence with respect to the
attorney fees and their reasonableness. TOMA §551.142.
Plaintiffs challenge both the imposition and award of the attorney fees to
PISD on the grounds that 1) PISD is not the substantially prevailing party, 2) the
award of attorney fees is neither legally valid, nor proper, unjust, nor justified in
this case, and 3) the attorney fee award is not reasonable, manifestly too large and
further, PISD forfeited and waived any attorney fees by refusing to testify.
48
PISD is not the substantially prevailing party: PISD is not the
substantially prevailing party under TOMA§551.142(b) and cannot be awarded
attorney fees. This is because trial court shockingly refused and failed to try 7
Causes out of eight independent and distinct causes of action or main issues under
TOMA sections 551.041, 551.043, 551.045(d), 551.051, 551.074, 551.101, and
551.142(a) and further failed to rule and make finding of fact or conclusions of law
with respect to each of the above 7 above causes of action. Appendices 20,21.9
Thus PISD did not prevail on 7 out 8 separate and distinct causes of action or main
issues and is not a substantially prevailing party. Hawkins v. Ehler, Infra at 544.
Award of attorney fees to PISD is invalid and unreasonable
Under TOMA only reasonable attorney fees can be granted if certain
conditions are met. §551.142(2). The reasonableness of attorneys' fees is question
of fact that must be proven at the trial. City of Garland v. Dallas Morning News, 22
S.W.3d 351, 367 (Tex. 2000). Thus PISD was required to testify concerning its
attorney fees.
PISD forfeited and waived attorney fees by refusing to testify and prove them
PISD refused and failed to testify on its attorney fees and refused and failed
to prove them at trial even after Judge Lopez prompted PISD’s counsel to do so.
9
Plaintiffs objected to this misconduct and brought this to trial court’s attention during trial and
in motions. Appendices1,2,3,4. With 7 out of 8 causes of action never taken to trial and never
decided, Judge Lopez’s judgment is not final judgment in spite of the words used in it. Because
this was a deliberate conduct on Judge Lopez’s part, no implied findings can be made or
presumed here. Appellants ask this Court to rule on all causes of action in this appeal.
49
Transcript Page 238. Thus there is no valid application for attorney fees here.
Further, it must be concluded that PISD forfeited and waived any claim to attorney
fees by refusing and failing to prove and testify on its attorney fees. Thus there is
no evidence or insufficient evidence in the record for the Court to award attorney
fees to PISD of any amount. Court’s award of $30,000 has no basis in law under
TOMA or evidence because there is no evidence or insufficient evidence of tasks
completed, hours worked, level of difficulty, identity of attorneys, reasonable
hourly rates of attorneys on the case and other necessary information on which
attorney fees must be based on. See El Apple v. Olivas, Infra.
No “Judicial Notice of file” for attorney fees under TOMA: The plain
and clear language of §551.142(b) does not permit trial judge to impose attorney
fees by taking “judicial notice.” It is clearly ascertainable that the award of
attorney fees in this case does not arise under Texas Civil Practice and Remedies
Code (CPRC) §38.001, thus this Court does not have power to take judicial notice
of attorney fees under CPRC§38.004. See Valdez v. Valdez, 930 S.W.2d 725, 732-
33 (Tex. App.--Houston [1st Dist.] 1996, no writ) (holding §38.004 only applies to
claims under §38.001).
Plaintiffs have proven their good faith in this case:
Attorney fees award here is legally improper because plaintiffs have
undisputedly proven their good faith at the trial as their report of the violation of
50
Sec. 551.056(b) was the only reason said violation was finally corrected by PISD
after 5 months of admitted10 non-compliance with TOMA from 1/2009 to
5/19/2009. Appendix11 (Interrogatory7). Further plaintiffs prevailed on first
appeal in this case, this Court reversing trial court’s judgment and remanding the
case which proves conclusively that this lawsuit was in fact brought in good faith.
See §551.142(b). PISD did not claim nor produced any evidence or insufficient
evidence of bad faith on appellants’ part at trial.
“Voluminous filings” is not bad faith and Plaintiffs cannot be penalized
by imposing attorney fees for them
As explained in this brief, There is no factual evidence or legal basis
whatsoever for Judge Lopez’s erroneous FOF20 and COL4. Appellants do not
show bad faith because of “voluminous” filings. Even assuming filings are
voluminous, appellants cannot be penalized for them as there is no evidence that
any filing was improper or unreasonable. Further, this argument is bogus and
irrational because there is no evidence whatsoever that PISD ever incurred attorney
fees due to filing responses, and Judge Lopez never held hearings and never ruled
on them. There is no cost or harm here to PISD.
Appellants have constitutional right to sue in court and file motions which is
an aspect of the First Amendment right to petition the Government for redress of
10
The document properties of PISD’s website notices prove that internet notices for 11 notices
from 8/2008 to 12/2008 were also created in May 2009 and posted for public viewing on
5/19/2009 after plaintiffs brought the non-compliance with 551.056(b) to PISD’s attention.
51
grievances. Justice Sandra Day O’Connor has noted “this right to petition is one
of the most precious of the liberties safeguarded by the Bill of Rights.” Justice
O’Connor further observed that the First Amendment petition clause says nothing
about success in petitioning. Thus there is absolutely nothing wrong in filing
motions and requesting relief that Judge Lopez rule on such motions. Thus
appellants cannot be penalized for filing motions, voluminous or not, in this
lawsuit to redress grievances. See BE&K Construction v. NLRB, 536 U.S.516
(2002); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.731 (1983). Thus,
“filings”, even if “voluminous,” are not “bad faith” under TOMA and plaintiffs
cannot be punished with attorney fees for them.
Further Judge Lopez sitting by assignment has no personal knowledge of all
of the proceedings in this case, being the third judge in this case after Judge Waters
and Judge Vanderpool.
PISD does not meet prerequisites for attorney fees: PISD never claimed
the element of bad faith on plaintiffs’ part which is a prerequisite for attorney fees
under TOMA §551.142(b), and further, notably, never presented any evidence at
the trial on the issue. PISD did not plead for attorney fees in its original answer-its
amended answer must be struck because it lacks a certificate of service and was
not served on plaintiffs. See CR285 which is not a certificate of service for the
amended answer but a duplicate of CR281(response to previous motion). Because
52
PISD failed to claim bad faith and failed to present evidence on it, failed to plead
for attorney fees, it waived attorney fees and the issue of bad faith, thus cannot
recover attorney fees under §551.142(b) in this case. Nothing under law or TOMA
jurisprudence gives trial court the authority or power to advocate for PISD which
failed to meet prerequisites to attorney fees. The award to PISD must be vacated
and denied.
Attorney fees for appellate filings must be vacated and denied: Judge
Lopez apparently granted attorney fees because plaintiffs made voluminous
appellate filings-though he failed to segregate the amount. Appendices20,21. The
trial court has no power whatsoever to impose attorney fees for any proceedings or
filings in the appellate courts, with or without evidence being received. In fact,
plaintiffs prevailed in the first appeal and this Court ordered that defendant pay
costs to Terrell for the appeal. Thus no attorney fees are due to PISD in the first
appeal. PISD made no argument nor presented any evidence concerning this issue
at trial and did not testify about its time and attorney fees incurred in this regard.
Thus there is no basis in law or fact for an award of attorney fees for plaintiffs’
filings in appeals court.
Has TOMA’s “Sunshine” gone away?
Further plaintiffs do not have the ability to pay any attorney fees, thus award
is not reasonable under TOMA’s lofty purpose of “sunshine law.” TOMA was
53
heralded as the “Sunshine Law” to protect Texas citizens after the shockingly
corrupt scandals of Sharpstown. The deliberate arbitrary award indicates that
Judge Lopez wielded TOMA as a sword to silence appellants and any future
citizens that dare to question a government body. This will have a chilling effect
on citizens and taxpayers who report violations of TOMA and seek redress.
Statutory attorney fees are not a “Bonanza”
Chief Justice Nathan Hecht has made it clear that an award of statutory
attorney fees, as here, is not a “Bonanza,” but its amount and reasonableness is a
question of fact and must be proven by a party at trial on factors such as reasonable
rate, contract, billing records, fees paid by client, tasks performed, and hours
worked. See El Apple v. Olivas, 370 S.W.3d 757 (Tex. 2012) citing the eight-
factor test in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997); City of Laredo v. Monsanto, 414 S.W.3d 731 (Tex. 2013). Here, the
arbitrary and capricious award of statutory attorney fees of $30,000 to PISD by
Judge Lopez without absolutely any substantiation as to the reasonableness is so
grossly in defiance of the overwhelming weight of law and the Texas Supreme
Court opinions that its only purpose was to intimidate pro se plaintiffs, obstruct,
and prevent these pro se citizens from appealing this case and airing PISD’s dirty
laundry.
54
Violation of constitutional right of due process: An attorney fees award
based on no evidence or insufficient evidence of existence and reasonableness of
attorney fees viz. identity of attorneys, hours worked, tasks performed, quality and
difficulty of work, hourly rate and other factors laid out by the Supreme Court in
El Apple violates plaintiffs’ constitutional rights of due process and equal
protection under Texas Constitution and 14th Amendment to the Unites States
Constitution. The award is arbitrary, capricious, manifestly too large and
unreasonable imposition of attorney fees that has no support in law.
The judgment and the award of attorney fees of $30,000 and costs should be
vacated and denied.
8. Judge Lopez was disqualified from conducting trial
Disqualification11 can be raised at any time and for the first time on appeal,
as here, and even in a motion for rehearing. See Buckholts Indep. Sch. Dist. V.
Glaser, 632 S.W.2d 146, 148 (Tex. 1982).
Judge Lopez was disqualified from sitting in this case and was disqualified
from conducting the final trial on 10/9/2013. The standard of review for the Court
in this matter is de novo. See McElwee v.McElwee, 911 S.W.2d 182, 185-87 (Tex.
App.--Houston [1st Dist.]1995, writ denied).
11
The original source for disqualification in Texas is the constitution. Article V, Section 11
enumerates the circumstances in which a judge is disqualified from sitting in a case. TEX.
CONST. art. V, § 11. The grounds have essentially been restated in TRCP 18(b)(a).
55
Judge Lopez conducted a meaningless trial on 10/9/2013 and rigged it in
favor of defendant:
Judge Lopez repeatedly failed to rule on trial exhibit PX1 during the trial
inspite of numerous requests by plaintiffs in the one day trial. Transcript pages34,
37, 44, 74, and 204. Defendant never made an objection to PX1. Judge Lopez’s
misconduct in failing to rule on PX1 has caused serious and permanent harm to
plaintiffs in this case. This was an exhibit which was reviewed by the 7th court of
appeals in the first appeal and formed the basis of the opinion and the reason for
remand in the first appeal by the court of appeals.12 Appendix19. Thus PX1 was a
critical exhibit at the trial and should have been admitted by trial court. Judge
Lopez’s failure to rule on admissibility of PX1 was deliberate and a gross disregard
of his judicial duty resulting in a deliberate damage done to plaintiffs’ case and
obstruction of appeal.
The outcome was that the trial was a charade and was infected with chaos
and confusion, and plaintiffs were prevented from properly and effectively
presenting their case at trial concerning the deliberate violations of electronic
website internet notices of PISD’s meeting notices and concerning untimeliness of
website notices of 22 Meetings under TOMA §551.056(b) and PISD’s lack of good
faith under TOMA Sec. 551.056(d).
12
This Court has confirmed that PISD indeed was untimely in creating and posting internet
notices in violation of TOMA §551.056(b) for 22 meetings in 2008-2009. These 22 electronic
notices and their electronic properties are contained in PX1. Appendix19.
56
PX1 was the cornerstone and basis of not only proving the untimeliness of
the website notices but proving that PISD’s claim of good faith defense was
fraudulent because the internet notices of 22 notices were created in May 2009 and
posted to website for public viewing on 5/19/2005 after plaintiffs informed PISD
of its non-compliance with §551.056(b). Judge Lopez’s refusal to even rule on
admissibility of trial exhibit PX1 was purposeful, calculated, and inexcusable
abdication of duty that derailed the entire case of plaintiffs. Further his refusal to
rule on PX1 damaged appellants’ case as they were prevented and unable to
present their case properly without the critical exhibit PX1 which was central to the
trial in showing that PISD did not have a good faith defense and that such defense
was fraudulent i.e. the create dates of the internet notices on PX1 showed that the
notices were created untimely in violation of TOMA weeks after the meetings in
question took place.
Failure to conduct trial or rule on 7 Causes: Plaintiffs rely on Argument
1 which is set forth verbatim herein. Judge Lopez deliberately improperly failed to
try plaintiffs’ 7 Causes of action under TOMA and abdicated his independent duty
to try and rule on 7 Causes. Such misconduct brings disrepute to justice system
and violated plaintiffs’ absolute due process constitutional rights. Neither the
district court nor the appeals court has the power to order that plaintiffs’ causes of
action cannot be tried.
57
What kind of judge returns evidence filed in the court?
Trial court conducted an evidentiary hearing ordered by this Court on lost or
destroyed exhibits on 9/26/2014 to determine fault in the matter. Plaintiffs
submitted documentary evidence to Judge Lopez in the hearing.13 However, Judge
Lopez ordered court reporter to return the evidence to plaintiffs after receiving it in
open court. The visiting court reporter mailed the evidence to plaintiffs.
Appendix17.
What kind of judge returns evidence presented in an evidentiary hearing
ordered by this Court? But Judge Lopez did. Such misconduct shows that Judge
Lopez lacks judicial temperament, carried animus and bias against plaintiffs, and
advocated for defendant, and was unfit to preside at the trial in this case. His
conduct and its severity were not known until after trial on 10/9/2013.
Bias that denies due process In McClenan v. State, 661 S.W.2d 108, 109
(Tex. Crim. App. 1983) the Court of Criminal Appeals held that in criminal cases
bias might be grounds for legal disqualification if that bias was “shown to be of
such a nature and to such an extent as to deny a defendant due process of law.”
Due process is recognized in civil as well as the criminal context. Following
McClenan ruling in 1983, various Texas appeals courts have recognized McClenan
13
Curiously, Judge Lopez took possession of all trial exhibits (Transcript page 56) and exhibits
PX1, PX32, PX19, PX20, and PX25 were lost or destroyed and had to be replaced through
another remand and hearing in this case.
58
and applied the “bias that denies due process” as bias that materially implicates
“personal interest,” therefore meeting constitutional grounds for disqualification
under Texas Constitution. See Elam v. State, 841 S.W.2d 937, 939 (Tex. App.--
Austin 1992, no pet.) (recognizing McClenan); Lovely v. State, 894 S.W.2d 99,103
(Tex. App. --Beaumont 1995, pet. ref’d) (same); Stafford v. State, 948 S.W.2d 921,
924 (Tex. App.--Texarkana 1997, pet. ref’d) (same).
Thus when a judge’s bias is of such nature and extent that it denies a party
due process of law, as here, the judge must be disqualified under Texas
constitutional grounds.
Here, Judge Lopez’s bias and conduct was unprecedented and shocking as
he deliberately set out to harm pro se plaintiffs and conduct a sham trial. Such
conduct lowers citizens’ regard and confidence in the integrity of judges and the
justice system. The due process violations outlined in this motion require Judge
Lopez’s disqualification from the trial on 10/9/2013.
Judge Lopez was not neutral, but was advocate for PISD and casting himself
in adversarial role against plaintiffs causing damage to plaintiffs’ case –depriving
them of causes of action and in ensuring their loss at trial. Judge Lopez was
disqualified from conducting trial in this case.
9. Voidance and Special damages:
59
PISD’s actions in 22 Meetings held in violation of TOMA should be voided.
Courts have repeatedly voided actions in violation of TOMA. Ferris v. Texas
Board of Chiropractic Examiners, Supra; City of Bells v. Greater Texoma Uti!.
Auth., 744 S.W.2d 636,640 (Tex. App.-Dallas 1987, no writ); Point Isabel ISD v.
Hinojosa, 797 S.W.2d 176 (Tex.App-Corpus Christ 1990, writ denied).
PISD’s willful defiance, misconduct, and a systematic pattern and practice of
TOMA violations require that special damages and sanctions be imposed on PISD.
Courts have imposed special damages, as requested here, for conscious
indifference and failure to comply with the Open Meetings Act, as in this case on
defendant’s part. See Wells v. Hutchinson, 499 F.Supp. 174, 198 (E.D. Tex. 1980).
Special damages in the amount to be determined by the Court should be granted to
plaintiffs. Plaintiffs will produce details of hours and money spent at Court’s
direction in this regard.
V. CONCLUSION
A famous U.S. President once asked his opponents “do you think we are
stupid?” Citizens ask the same question to PISD. Defendant expects these pro se
citizens will be long gone and forgotten. Defendant is mistaken. Appellants think
Texas citizens and tax payers will be interested in this case and will insist that their
government bodies function in exact and literal compliance with TOMA and that
their complaints will be heard.
60
This court should not let citizens stand outside a school building in
humiliation just to read meeting notices in rain, snow, heat, and in poor lighting.
This Court should enforce exact and literal compliance standard or declare it dead.
The sky will not fall if PISD ratifies its actions in violation of Open
Meetings Act inspite of what PISD claims. This Court should reverse trial court’s
judgment and enter judgment for plaintiffs on all causes of action.
VI. PRAYER
For the foregoing reasons, appellants Rebecca Terrell and Chandrashekhar
Thanedar respectfully request that the Court
REVERSE the trial court’s judgment in total, vacate the award of attorney
fees and costs to PISD and further deny attorney fees and costs to PISD; and
RENDER judgment for appellants; and GRANT declaratory and injunctive
relief on all claims of violation of TOMA whether or not any other relief is
granted; DECLARE the 22 Meetings and the actions taken in these meetings void;
and DECLARE the March 26, 2009 board meeting and the action taken in this
meeting non renewing and terminating Terrell’s employment contract void; and
ISSUE mandamus to reinstate Terrell as a teacher with full back pay and duties,
pay, benefits, and privileges appurtenant thereto and prohibit PISD from
preventing Terrell from resuming her duties as teacher at Pampa Independent
School District; and GRANT appellants’ second no-evidence and traditional
61
motion for summary judgment on all causes of action; and DECLARE the closed
meeting of March 26, 2009 and any actions taken in it void, and grant the relief of
making the certified agenda and/or tape recording of this closed meeting fully
available to public inspection and copying and make its contents public; and
ISSUE a permanent injunction against appellee PISD to prevent future violations
of TOMA; and IMPOSE appropriate sanctions on defendant PISD; and DECLARE
that appellants have substantially prevailed in the lawsuit; and AWARD appellants
costs of litigation, attorney fees, damages, special damages including opportunity
cost of appellants’ time and effort, in an amount to be determined by the Court;
and that Judge Lopez was disqualified from sitting in the case and from conducting
final trial on 10/9/2013.
Minimally, this Court should REVERSE the trial court’s judgment in total,
and REMAND for a new trial on all causes of action to a different judge, ORDER
discovery on remand on all causes of action with specific instructions to make
SchoolCenter, BoardBook, and any other vendors or persons involved in this
matter, PISD current or former employees, and related personnel to this lawsuit
available for deposition at PISD’s expense, and further discovery as deemed
necessary by plaintiffs at PISD’s expense, and vacate and deny the award of
attorney fees and costs in the amount of $30,000 to PISD granted by the district
court, and further DECLARE that appellants and indeed all Texas citizens are
62
interested persons in PISD and all public school districts under TOMA. In doing
so, appellants would further ask that the Court AWARD appellants the costs of this
appeal and costs incurred in the district court.
Appellants request the Court GRANT declaratory and injunctive relief in all
causes of action whether or not any other relief is granted. Appellants further pray
for all other and further relief to which they may justly be entitled to receive.
Respectfully submitted,
/s/ Rebecca Terrell
Rebecca Terrell
/s/ Chandrashekhar Thanedar
Chandrashekhar Thanedar
Appellants
Certificate of Compliance
I certify that the foregoing brief complies with Tex. R. App. P. 9.4 and the
word count of the brief is 14,699 words exclusive of the exempted portions in Tex.
R. App. P. 9.4 as counted by the MS Word program used to prepare the brief.
/s/ Rebecca Terrell
Rebecca Terrell
63
Certificate of Service
Pursuant to Tex. R. App. P. 9.5, I certify that a true and correct copy of the
foregoing Appellants’ Brief has been e-served via the Court’s EFSP upon the lead
counsel on March 26, 2015 as follows:
W. Wade Arnold
State Bar No. 00783561
Underwood Law Firm
P. O. Box 9158
Amarillo, TX 79105-9158
(806) 379-0364 Telephone
(806) 349-9474 Fax
Counsel for Appellee PISD
/s/ Rebecca Terrell
Rebecca Terrell
Chandrashekhar Thanedar
64
APPENDIX
1. Motion for New Trial
2. Motion for Modify Judgment
3. Motion for Reconsideration
4. Request for Additional or Amended FOF and COL
5. Plaintiffs’ Original Petition
6. Plaintiffs’ Second and First Supplemental Petitions
7. Created Dates of PISD’s Untimely Posted Internet Notices (PX2)
8. Defendant’s Answers to Plaintiffs’ Interrogatories (PX8)
9. Defendant’s Responses to Plaintiffs’ Requests for Admissions (PX9)
10. Defendant’s Answers to Plaintiffs’ Second Set of Interrogatories, Requests
for Admissions and Request for Production (PX10)
11. Defendant’s Supplemental Answers to Plaintiffs’ First Interrogatories,
Requests for Production, and Requests for Admission (PX11)
12. Plaintiffs’ Second No-Evidence and Traditional Motion for Summary
Judgment
13. Notices for 3/26/09 meeting - physical and internet notices (PX3, PX5)
14. Notice for 3/26/09 meeting-document properties of the internet notice (PX4)
15. Suzie Jameson testimony - excerpts
16. Suzie Jameson e-mail (PX32)
17. Letter returning evidence on Judge Lopez’s Order
18. Amended Notice of Appeal
19. 7th Court of Appeals Opinion in the First Appeal
20. Judge Lopez - 223rd Court Final Judgment
21. Judge Lopez - Findings of Fact and Conclusions of Law
22. BoardBook Draft Agreement (PX31)
23. Texas Open Meetings Act, Gov’t Code Ch. 551 - selected provisions
Appendix 1
Motion for New Trial
,. ___
332
CAUSE NO. 35621
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Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District
Combined Opinion