 Send this document to a colleague | Close This Window |
| NUMBER 13-01-410-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ROSE TRISTAN, INDIVIDUALLY AND D/B/A ROSE CLEANING SERVICES AND OLGA CRISTAN , Appellants, v. C.A. WALKER, INC. AND ANY UNKNOWN INDIVIDUALS , Appellee. On appeal from the County Court at Law No. 2 of Nueces County, Texas. MEMORANDUM OPINION Before Justices Yañez, Castillo, and Dorsey (1) Opinion by Justice Castillo Appellant/cross-appellee Rose Tristan ("Tristan"), the sole proprietor of Rose Cleaning Services, sued appellee/cross-appellant C.A. Walker, Inc. ("Walker"), a general contractor, claiming breach of contract or quantum meruit and fraud. Tristan and appellant/cross-appellee Olga Cristan ("Cristan"), Tristan's sister and an employee of Rose Cleaning Services, also sued Walker for defamation. The jury found in favor of Tristan on her breach-of-contract and fraud claims and against Tristan and Cristan on their defamation claims. The trial court signed a judgment that reflected the jury's findings and awarded $20,411.25 to Tristan for breach of contract, $15,263.00 for fraud, pre-judgment interest on both awards, post-judgment interest on the total judgment, and, pursuant to section 38.001 of the civil practice and remedies code, (2)$5,220.00 in attorney fees plus a conditional attorney-fee award on appeal. Walker appeals the adverse judgment. Tristan and Cristan appeal the take-nothing judgment on their defamation claims. We affirm in part and reverse and render in part. I. WALKER'S ISSUES ON APPEAL In three issues, Walker challenges the trial court's: (1) denial of Walker's motion for election of remedies; (2) denial of Walker's motion for judgment notwithstanding the verdict; and (3) award of attorney fees. A. Double Recovery In its first issue, Walker asserts that the trial court should have granted its motion for election of remedies, arguing that the damages the jury found on Tristan's fraud claim were the same damages the jury found on her breach-of-contract claim, which was the value of her uncompensated services, resulting in a double recovery. (3) Tristan counters that the damages found by the jury for Walker's fraud were distinct and separate from the damages the jury found for Walker's breach of contract, which is not a double recovery. 1. The Trial Court Record The record shows that Tristan separately pleaded breach of contract, quantum meruit, fraud, and, along with Cristan, defamation. The trial court submitted each theory to the jury in separate liability and damages questions. The jury instructions in the breach-of-contract and fraud questions defined different measures of damages for the two claims: As to breach of contract: The difference between the amount paid by C.A. Walker, Inc. to Rose Cleaning Service for performing the work and the amount C.A. Walker had agreed to pay Rose Cleaning Service for such work, less the cost, if any, to C.A. Walker for completing the work or remedying any defect. (Do not deduct cost of completion attributable to C.A. Walker) (4) As to fraud: The reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service; The reasonable value of the business Rose Cleaning Service to Rose Tristan. (5) Walker did not object to the different measure-of-damages instructions in the questions submitted to the jury on Tristan's breach-of-contract and fraud theories of recovery. Nor did it move for an instructed verdict as to those questions. With the court's measure-of-damages instructions before it, the jury found different damages for each of the two theories of liability. The judgment separately awarded the damages found by the jury and separately calculated the pre-judgment interest awarded on each. By contrast, in addition to breach-of-contract and fraud damages, the jury also found $20,411.25 in damages for Tristan's quantum-meruit claim, which Tristan had pleaded alternatively to the breach-of-contract claim. However, the judgment did not award Tristan damages on the alternative quantum-meruit claim. 2. Analysis A double recovery does not occur unless the plaintiff obtains more than one recovery for the same injury. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998) (per curiam) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991)). Judgment awarding Tristan damages on both her breach-of-contract claim and her fraud claim is proper because: (1) Tristan pleaded separate theories of liability; (2) the two theories of liability arose from separate injuries; and (3) each theory of liability resulted in a separate finding of damages. See Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987) (discussing factors). We find this case analogous to Medical Air Services Association v. Kebert, 26 S.W.3d 663, 667-68 (Tex. App.-Corpus Christi 2000, pet. denied). In Keber, a sales representative sued for sales commissions resulting from sales of an insurance product. We allowed recovery of both contract and fraud damages, noting that no double recovery resulted because the fraud damages constituted losses of additional commissions beyond the loss of renewal commissions awarded by the jury for breach of contract. Id. As noted above, the breach-of-contract damages instruction here defined a different measure of damages (the value of uncompensated services) than that defined by the fraud measure-of-damages instruction. The fraud damages instruction included, in addition to the value of Tristan's business to her, only the reasonable and necessary costs of any uncompensated services, not their value. We overrule Walker's first issue. See id. B. Legal Sufficiency of Damages for Fraud Walker does not challenge on appeal the legal sufficiency of the evidence to support the jury's fraud damages finding on the basis of "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service." Rather, Walker asserts, in its second issue, that the evidence is legally insufficient to show that Tristan's "business would have any value or lost any profits in the future." Walker argues that evidence that Tristan's business would have any future value or lost profits is too speculative to support the jury's fraud damages finding. Tristan counters that the evidence is legally sufficient to establish the value of the loss of her business. We first determine if Walker preserved its legal-sufficiency complaint. 1. Preservation of Error Except for fundamental error, to preserve any complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam). In particular, to preserve a legal-sufficiency challenge, a party must have specifically raised its complaint in: (1) a motion for instructed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). The requirements of motions for new trial are governed by the Texas Rules of Civil Procedure. Rule 321 requires a party to designate each point it relies on in a motion for new trial in such a way that the trial court can identify and understand the complaint. See Tex. R. Civ. P. 321. The purpose of a motion for new trial is to provide an opportunity for the trial court, by granting a new trial, to cure any errors. D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.-Dallas 1993, no writ). In addition, rule 322 provides that the court shall not consider points in a motion for new trial couched only in general terms. See Tex. R. Civ. P. 322. Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to understand what the movant alleges was error. Id. Finally, an issue raised on appeal must correspond to a motion made to the trial court. In re T.R.S., 931 S.W.2d 756, 758 (Tex. App.-Waco 1996, no writ); D/FW Commercial Roofing, 854 S.W.2d at 189. A motion for new trial that states one legal theory cannot be used to support a different legal theory on appeal. D/FW Commercial Roofing, 854 S.W.2d at 189. 2. The Trial Court Record As discussed above, the jury charge provided a two-fold instruction of the measure of damages on Tristan's fraud claim: The reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service; The reasonable value of the business Rose Cleaning Service to Rose Tristan. Walker did not object to the instruction, and the record reflects that Walker did not move for an instructed verdict on the fraud damages question. Walker's post-trial motion asked for judgment notwithstanding the verdict "as to any amount awarded by the jury for the Plaintiff's loss of her business," arguing "[t]here was legally insufficient evidence to support any such finding." Similarly, Walker argued in its motion for judgment notwithstanding the verdict that "no economist or any other person provided evidence as to [Tristan] suffering any economic loss due to her business failing. All the record contains is rank speculation." Finally, Walker's legal-sufficiency point in its motion for new trial argued that "there is no evidence to support the jury's answer to . . . the question of damages for the loss of Plaintiff's business." 3. The Issue on Appeal On appeal, however, Walker presents the following issue: The trial court erred in denying Appellant's Motion for Judgment Notwithstanding the Verdict because the evidence is legally insufficient to support the jury's verdict since there was no credible evidence beyond mere speculation that the plaintiff's business would have any value or lost any profits in the future. In support of its legal-sufficiency issue, the only authority cited by Walker in its brief focuses on the speculative nature of future losses as a measure of breach-of-contract damages. City of Dallas v. Villages of Forest Hills, L.P., Phase I, 931 S.W.2d 601, 606-07 (Tex. App.-Dallas 1996, no writ). The appellate court in Villages of Forest Hills agreed with the court below that "damages relating to future stages of the project" and other elements of damage contingent on the occurrence of future events "were too speculative to be recoverable." Id. Similarly, relying on the argument that Tristan presented "no evidence of out-of-pocket loss separate from the unpaid cleaning services which were already compensated for by the jury under their breach of contract finding," Walker's reply brief on appeal argues that Tristan's testimony established no "certainty whatsoever in any loss of profits from future jobs." 4. Analysis Walker did not present to the trial court any complaint that the evidence of lost future value of the business or lost profits in the future is legally insufficient to support the jury's fraud damages finding. Nor does Walker provide to this Court any issue on appeal or authorities or citations to the record that raise the legal-sufficiency complaint it presented to the trial court. We find that Walker did not present to the trial court the same legal-sufficiency complaint it presents on appeal. To the extent Walker's argument on appeal can be construed as addressing the same legal-sufficiency point it raised in its motion for new trial, we note that Walker did nothing more than summarily repeat the issue in its brief, without citation to legal authority or substantive analysis. Thus, we find that Walker inadequately briefed the issue and failed to preserve it on appeal. See Tex. R. App. P. 38.1(h); see also Morales v. Morales, 98 S.W.3d 343, 346 (Tex. App.-Corpus Christi 2003, no pet. h.) (finding that inadequately briefed argument does not preserve issue for review). Moreover, even if Walker had presented to the trial court the same legal-sufficiency complaint it now raises, the measure-of-damages instruction in the fraud question submitted to the jury did not include the value the "business would have" or any lost "profits in the future" in the definition. Rather, the instruction included "[t]he reasonable value of the business Rose Cleaning Service to Rose Tristan" without reference to future value or lost profits. Walker did not object to either of the two measures of damages defined by the fraud damages instruction. Nor does it argue on appeal that the instruction did not define the proper measure of damages. We find that Walker waived in the trial court its legal-sufficiency issue on appeal that "there was no credible evidence beyond mere speculation that the plaintiff's business would have any value or lost any profits in the future." Finally, the fraud damages instruction provided the jury a second basis from which to determine its finding, a measure of damages independent of the value of the business: "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service." Walker did not challenge the jury's fraud damages finding on the basis of that instruction by moving for instructed verdict on that basis or by objecting to submission of the instruction, moving for judgment notwithstanding the verdict, moving to disregard the jury's answer, or moving for new trial on that basis. See Cecil, 804 S.W.2d at 510-11 (Tex. 1991); U.S.A. Precision Machining, 95 S.W.3d at 411. Walker does not present an issue on appeal attacking the legal sufficiency of the evidence to support the jury's fraud damages finding on the basis of that instruction. To the extent Walker discusses the sufficiency of evidence of Tristan's out-of-pocket costs to support the jury's fraud damages finding, it neither cites authority nor argues why evidence of "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service" is legally insufficient to support the jury's fraud damages finding. We find that Walker failed to preserve the issue on appeal. See Tex. R. App. P. 38.1(h); see also Morales, 98 S.W.3d at 346. The jury's fraud damages verdict finds support on the basis of the unchallenged "costs of any uncompensated cleaning services" measure of damages instruction, without regard to the value of the business. Accordingly, we overrule Walker's second issue. C. Attorney Fees In its third issue, Walker asserts that the trial court abused its discretion in awarding attorney fees to Tristan, arguing that: (1) Tristan presented no evidence of the fees she incurred and therefore waived the claim; (2) the jury charge contained no question regarding the claim; and (3) judicial notice by the court of evidence to support the attorney-fee claim was improper. Tristan counters that the parties agreed during presentation of Walker's motion in limine to submit the attorney-fee issue to the court rather than to the jury. She argues that the award of attorney fees was within the trial court's discretion pursuant to its authority to take judicial notice of relevant factors in accordance with section 38.004 of the civil practice and remedies code. (6) We review for abuse of discretion a trial court's award of statutory attorney fees. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990); Llanes v. Davila, No. 13-02-129-CV, 2003 Tex. App. LEXIS 392, at *13 (Corpus Christi Jan. 16, 2003, pet. filed). The parties do not dispute that Tristan presented no evidence in support of her claim for attorney fees. We have reviewed the portion of the record to which Tristan directs us. By motion in limine and argument in support of the motion, Walker's counsel informed the trial court that: (1) Tristan had not disclosed in discovery the amount of the total attorney fees claimed, the hourly rate or contingency basis of the fees, or over what period of time the fees were incurred; and (2) Tristan had not designated an expert witness on attorney fees. The trial judge asked Tristan's counsel if the attorney-fee claim was based on an hourly rate or on a contingent basis. Counsel responded that the claim was based on the civil practice and remedies code. At the end of the discussion, the only agreement reached on the record was that Tristan's counsel would approach the bench before raising the attorney-fee issue in the presence of the jury. The judgment recites that the trial court took judicial notice of factors determinative of the reasonableness and necessity of Tristan's attorney fees pursuant to section 38.004. Section 38.004, however, provides that the court, in a jury case, "may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence" only if "the amount of attorney's fees is submitted to the court by agreement." Tex. Civ. Prac. & Rem. Code Ann. § 38.004 (Vernon 1997). No such agreement appears in the record. See Tex. R. Civ. P. 11. Accordingly, we hold that the trial court, in the absence of an agreement in the record to submit the attorney-fee issue to the court instead of to the jury, abused its discretion in awarding attorney fees. We sustain Walker's third issue. II. TRISTAN AND CRISTAN'S ISSUE ON APPEAL The jury found that a statement alleged by Tristan and Cristan to be defamatory was made by a Walker employee and that it was false. However, the jury also found that the statement was neither published nor slanderous, nor did it proximately cause damage to either Tristan or Cristan. In a single issue on appeal, Tristan and Cristan assert that the trial court erred in overruling their motion for new trial, arguing that the jury's adverse answers to subparts of the defamation questions are against the great weight and preponderance of the evidence and manifestly unjust. We construe Tristan and Cristan's complaint as a factual-sufficiency challenge of the jury's adverse findings to questions on which they bore the burden of proof at trial. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App.-Amarillo 1988, writ denied) (noting that party attacking for factual insufficiency adverse finding on question on which it bore burden of proof at trial must show that finding is against "great weight and preponderance of the evidence"); see also Ritchey v. Crawford, 734 S.W.2d 85, 86-87 n.1 (Tex. App.-Houston [1st Dist.] 1987, no writ) (quoting Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 366 (1960)). In reply to Tristan and Cristan's issue on appeal, Walker, as appellee, responds in its fourth issue that the jury's verdict on the defamation claims is more than supported by the evidence. 1. The Trial Court Record Rule 324 requires factual-sufficiency challenges to be raised in a motion for new trial. Tex. R. Civ. P. 324(b); U.S.A. Precision, 95 S.W.3d at 411. In their motion for new trial, Tristan and Cristan urged the trial court to grant a new trial "because the jury's answers to the questions as to the alleged defamation and related damages are against the great weight and preponderance of the evidence and manifestly unjust." The motion for new trial was overruled by operation of law. We find that Tristan and Cristan satisfied the prerequisites of a factual-sufficiency appeal of the jury's defamation liability findings by a timely filed motion for new trial raising their complaint that the jury's defamation liability and damages findings are against the great weight of the evidence. See Tex. R. Civ. P. 324(b)(3), 329b; see also Tex. R. App. P. 33.1. (7) 2. The Issue on Appeal On appeal, Tristan and Cristan's sole issue presents only that "the jury's answers to certain subparts of questions number 10 and 14, respectively, in the Charge of the Court were against the great weight and preponderance of the evidence and manifestly unjust." However, in two damages issues submitted separately from the defamation liability issues (questions number 13 and 17, respectively), the jury found zero damages for defamation for past injury to Tristan and Cristan's reputations and for their mental anguish, humiliation, and embarrassment. The damages question submitted in conjunction with Tristan's defamation claim was not conditioned on a liability finding. Cristan's defamation damages question was conditional. Nonetheless, the jury answered the defamation damages questions as to both Tristan and Cristan, responding "0" as to each element of damages for each. Tristan and Cristan do not challenge the jury's findings of zero damages for defamation, either by their issue on appeal or in their argument. 3. Analysis When a jury's finding of no damages is undisputed, any error in the jury's liability finding is harmless. Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.-San Antonio 1996, writ denied); Mitchell v. Chaparral Chrysler-Plymouth Sales, Inc., 572 S.W.2d 359, 360 (Tex. Civ. App.-Fort Worth 1978, writ ref'd n.r.e.). The jury's findings of no damages for defamation fully support the take-nothing judgment on Tristan and Cristan's defamation claims. San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 66 (Tex. App.-San Antonio 1993, no writ). Thus, even if the jury had found liability for defamation, the jury's no-damages findings compelled a take-nothing judgment on the defamation claims unless, for example, Tristan and Cristan also successfully challenged on appeal the no-damages findings as against the weight of the evidence. See id. Moreover, because of the deference we give jury findings, we may not set aside no-damages findings for factual insufficiency without detailing the evidence and saying why the findings are against the weight of the evidence. Id. This we cannot do, for in the absence of fundamental error, we may not sustain a challenge that was not preserved in this Court. Id. (citing Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (per curiam)). A jury's no-damages finding does not present fundamental error. See id. Even if we were to sustain Tristan and Cristan's defamation liability issue, the unchallenged no-damages findings on their defamation claims would require us to affirm. See id. We note that Tristan did not object to the non-conditional submission of her defamation damages question, nor did she raise the non-conditional submission as a point in her motion for new trial or as an issue on appeal. Similarly, Cristan did not complain in her motion for new trial or raise on appeal that she need not challenge the jury's no-damages finding because the jury should not have reached the conditional defamation damages question in the first place. Thus, on this record, we conclude that neither the non-conditional submission of Tristan's defamation damages question nor the conditional submission of Cristan's alters our analysis. See Canales v. Nat'l Union Fire Ins. Co., 763 S.W.2d 20, 22 (Tex. App.-Corpus Christi 1988, writ denied) ("The damage issues were not conditioned on the answer to the liability issues. Thus, if all the appellants' requested issues had been submitted and answered in their favor, they would still recover zero damages."). Since Tristan and Cristan did not raise an issue on appeal complaining of the jury's defamation no-damages findings, we do not consider their challenges to the defamation liability findings. See Chaparral Chrysler-Plymouth, 572 S.W.2d at 360. We hold that Tristan and Cristan, by not challenging the jury's defamation no-damages findings on appeal, waived the sole issue they present to this Court that the jury's defamation liability findings are against the great weight and preponderance of the evidence and are manifestly unjust. See id. III. CONCLUSION We leave the jury's findings undisturbed. Having overruled Walker's first and second issues, we affirm the portion of the trial court's judgment awarding Tristan damages on her breach-of-contract and fraud claims. Having sustained Walker's third issue, we reverse the portion of the trial court's judgment awarding attorney fees to Tristan, render judgment against her on that claim, and modify the judgment of the trial court to reflect that Tristan take nothing by her claim for attorney fees. Having held that Tristan and Cristan waived their sole issue on appeal, we affirm the portion of the trial court's judgment that Tristan and Cristan take nothing on their defamation claims. ERRLINDA CASTILLO Justice this 27th day of May, 2003. 1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998). 2. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1997). 3. We interpret Walker's issue as trying to assert the "one-satisfaction rule," which prohibits a plaintiff from obtaining more than one recovery for the same injury, rather than "election of remedies." See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). The one-satisfaction rule differs from the election-of-remedies doctrine. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980) (citing suit seeking both damages for breach of contract and for recision as example requiring election of remedies). A litigant is entitled to sue and seek damages on alternative theories and may maintain multiple parallel or inconsistent claims. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998) (per curiam); JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 774 (Tex. App.-San Antonio 2002, no pet.). However, when moving for judgment at the end of the legal proceeding, the litigant is not entitled to recover on each theory and must decide on which theory it ultimately relies. Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Fast Trucking, 94 S.W.3d at 774. The election-of-remedies doctrine bars relief only when (1) one has made an informed choice (2) between two or more remedies, rights, or states of facts (3) that are so inconsistent as to (4) constitute manifest injustice. Birchfield, 747 S.W.2d at 367; Fast Trucking, 94 S.W.3d at 774. A typical example of the context in which the election-of-remedies doctrine is applied is when an injured worker seeks coverage under both workers compensation and group insurance. See, e.g., Allstate Ins. Co. v. Perez, 783 S.W.2d 779, 781 (Tex. App.-Corpus Christi 1990, no writ). Like the one-satisfaction rule, the purpose of the election-of-remedies doctrine is to prevent double recovery for a single wrong. See Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 131 (Tex. App.-San Antonio 1987), writ denied, 758 S.W.2d 753 (Tex. 1988) (per curiam). Unlike the one-satisfaction rule, however, the election-of-remedies doctrine is an affirmative defense that a defendant must specifically plead. France v. Am. Indem. Co., 648 S.W.2d 283, 285 (Tex. 1983). Compare Fast Trucking, 94 S.W.3d at 774 n.11 (no waiver if not pleaded) with Perez, 783 S.W.2d at 782 (waiver if not pleaded). Although Walker pleaded other affirmative defenses to Tristan and Cristan's claims, it did not plead election of remedies. 4. Question Number 5 read in its entirety: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Rose Tristan d/b/a Rose Cleaning Service for its damages, if any, that resulted from C.A. Walker, Inc.'s failure to comply with such agreement? Consider the following elements of damages, if any, and none other. The difference between the amount paid by C.A. Walker, Inc. to Rose Cleaning Service for performing the work and the amount C.A. Walker had agreed to pay Rose Cleaning Service for such work, less the cost, if any, to C.A. Walker for completing the work or remedying any defect. (Do not deduct cost of completion attributable to C.A. Walker). in reasonable probability will be sustained in the future Answer: 0 5. Question Number 6 read in its entirety: The reasonable value of the business Rose Cleaning Service to Rose Tristan. 6. Tex. Civ. Prac. & Rem. Code Ann. § 38.004 (Vernon 1997). 7. We note that Tristan and Cristan did not in their motion for new trial discuss the evidence they claimed greatly outweighs and preponderates against the jury's defamation findings, nor did they cite any case law or argue any evidence or authority in support of the point they raised. Because we dispose of Tristan and Cristan's issue on other grounds, we do not decide whether their general factual-insufficiency point in the motion for new trial, unsupported by reference to either the evidence or the law, satisfied the specificity requirements of rules 321 and 322. Tex. R. Civ. P. 321, 322; see D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.-Dallas 1993, no writ) (finding that general factual-insufficiency point in motion for new trial did not inform trial court of complaint regarding double recovery raised on appeal). | |
Wednesday, July 30, 2008
the same damages the jury found on her breach-of-contract claim, which was the value of her uncompensated services, resulting in a double recovery. (3
Monday, March 03, 2008
From Emotions to Advocacy: The Parents' Journey
Juvenile Justice
Delinquency l Juvenile Justice and Education l Resources
Articles | Safe Schools | Publications
Print this page
Did you know that...
* Seventy percent of children in the juvenile justice system have educational disabilities -- the vast majority have an Emotional Disturbance (ED) and/or Specific Learning Disabilities?
* Children with ED fail more courses, earn lower grade point averages, miss more days of school, and are retained more often than other students with disabilities?
* Children with ED have the lowest graduation rates of all children with disabilitiess, nationally, only 35% graduate from high school (compared to 76% for all students)?
* Children with ED are three times more likely to be arrested before leaving school, when compared to all other students?
* For children with ED who drop out of school, 73 percent are arrested within five years?
* Children with ED are twice as likely to live in a correctional facility, halfway house, drug treatment center, or "on the street" after leaving school, when compared to students with other disabilitie?.
* Children with ED are twice as likely to become teenage mothers as students with other disabilities? [Source: Stopping the Schoolhouse to Jailhouse Pipeline]
Juvenile Justice involvement in kids within the special education system is a hot topic. When the federal special education law was passed in 1975, Congress found that most children with disabilities were not receiving an appropriate education - and that millions of children were excluded from school altogether.
Today, schools continue to suspend and expel students with disabilities for behaviors that are a direct result of their disabilities. These children often become delinquent, feel worthless, are viewed as "failures," stop trying, and/or end up in the juvenile justice system as a result of their treatment by those who are charged with educating them.
If you are advocating for a child with these issues or you see these issues appear, the articles and resources collected on this page will help. If you are charged with educating such a child, take a moment to this about that child's problems. You can make a difference in the child's education and ultimate success in life.
Juvenile Justice and Education
Strategies When Schools Have Children Arrested for School-Related Behavior Problems - Pete Wright shares strategies he used when schools had kids arrested for behavaiors related to their disabilities; juvenile courts as allies.
Juvenile Justice: Special Education Issues, Part I by Robert E Shepherd, Jr., Criminal Justice Magazine (V. 17, No 4), published by the American Bar Association (Winter 2003).
Legal issues presented by children who are behavioral risks in the school system and who then become involved in the juvenile justice system; tools for providing effective representation to young people with educational disabilities who face delinquency charges.
Juvenile Justice, Special Education Issues, Part II by Robert E. Shepherd, Jr., Criminal Justice Magazine (V. 18, No. 1), published by the American Bar Association (Spring 2003).
A disproportionate number of youth in the juvenile justice system suffer from mental health disorders and other disabilities covered by special education law. Effective representation of youth includes being knowledgeable about the characteristics of these youth, and how to intelligently present their problems to the court and its personnel.
Juvenile Justice and Special Ed Law Clinic Publications
This page includes articles by Prof. Joe Tulman from the American Bar Association's Children's Rights Litigation Committee. These articles include: Applying Disability Rights to Equalize Treatment for People with Disabilities in the Delinquency and Criminal Systems; Disability and Delinquency: How Failures to Identify, Accommodate, and Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation in the Delinquency System; Special Education Advocacy Under the Individuals with Disabilities Education Act (IDEA) For Children in the Juvenile Delinquency System; and The Role of the Probation Officer in Intake: Stories from Before, During, and After the Delinquency Initial Hearing.
Reading Problems and Delinquency by Peter Wright describes the link between undiagnosed, unremediated learning disabilities, reading problems, and delinquency. This article includes research about the learning disabilities / juvenile delinquency link, proposes to improve the training of juvenile court staff, and encourages early identification and early intervention to prevent problems related to the failure to teach children to read (1974).
Special Education and the Juvenile Justice System Juvenile Justice Bulletin from The Education Resources Information Center (ERIC).
This bulletin summarizes provisions of federal law as they pertain to special education and juvenile justice. It discusses provisions of the Individuals with Disabilities Education Act 1997 including: the definition of disability; free appropriate public education; identification, referral, and evaluation; the individualized education program (IEP); special education and related services, due process protections, and the "stay put" rule (that a student should usually stay in his/her current educational placement pending any court proceedings).
Stopping the Schoolhouse to Jailhouse Pipeline is an ongoing effort to stop the flow of children from schools to jails. In August 2005, the Southern Poverty Law Center, along with attorneys from the Southern Disability Law Center and the Juvenile Justice Project of Louisiana, obtained a class-wide settlement agreement affecting all special education students in Jefferson Parish. The agreement requires major systemic changes including:
* improvements in the education provided to those with emotional disturbances,
* reform of the parish's overly harsh disciplinary procedures,
* counseling for emotionally disturbed children,
* the provision of job training and other services to help high school students transition into jobs upon graduation.
Sources of more information:
* Jefferson Parish Special Education Case
* Settlement Agreement (PDF)
* Jefferson Parish Corrective Action Plan (PDF)
* Publication: Stopping the Schoolhouse to Jailhouse Pipeline by Jim Comstock-Galagan, Esq. and Rhonda Brownstein, Esq.
When Schools Criminalize Disability/Education Law Strategies for Legal Advocates
This booklet from the Center of Law and Education explores legal theories and strategies for challenging inappropriate school-initiated delinquency petitions and crime reports, and addressing their aftermath. This collection discusses approaches that, while well-grounded in law, may not have been tested in the courts. In particular, they focus on using education advocacy based on IDEA, Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act to hold local schools accountable when they criminalize the behavior for which they are legally obligated to provide appropriate educational services; obtain better outcomes for clients in the juvenile courts; enforce schools’ obligation to address behavioral issues as educational ones; and reduce the risk of future school-initiated delinquency petitions or crime reports.
GAO Report on Special Education: Clearer Guidance Would Enhance Implementation of Federal Disciplinary Provisions (PDF)
In the 2000-01 school year, more than 91,000 special education students were removed from their educational settings for disciplinary reasons. The GAO (General Accounting Office) was asked to determine where disciplined special education students are placed, the extent to which local school districts continue educational services for those students, and how the U.S. Department of Education provides support and oversight for special education disciplinary placements.
To Top
Delinquency
Juvenile Defender Delinquency Notebook (PDF)
The National Juvnile Defender Center has revised and updated this manual for its 2nd edition, which is intended as an advocacy and training guide for juvenile defenders. Thirteen chapters cover everything from the initiation of the attorney-client relationship to appeals and related proceedings. Over 500 downloadable pages in which case you should stock up on ink cartridges and invest in several reams of paper. Available as a free PDF document.
Resources on Delinquency and Juvenile Justice from FAPE.org
Children of the Code Interview: Dr. Peter E. Leone on Juvenile Injustice, Reading Difficulties, Special Education and Juvenile Delinquency
Dr. Leone is a Professor of Special Education who specializes in Behavior Disorders at the University of Maryland. He is the Director of The National Center on Education, Disability, and Juvenile Justice which is a collaborative project involving partners from the University of Maryland, Arizona State University, the American Institutes for Research in Washington, DC, and the PACER parent advocacy center in Minneapolis.
To Top
Related Articles
Frequently Asked Questions: Juvenile Justice
This article answers questions such as Who are young people with disabilities in the juvenile justice system? and Why are so many young people with disabilities involved in juvenile corrections?
From Emotions to Advocacy: The Parents' Journey
Undetected, unremediated learning disabilities are causally connected to many other serious life problems—from juvenile delinquency and substance abuse to severe marital problems, domestic violence, and chronic unemployment. Typically, learning disabled adults develop negative views of themselves as lazy or stupid—or worse. Most of these adults—numbering in the millions—have developed a strong, pervasive sense of having failed.
To Top
Resources
The National Center on Education, Disability and Juvenile Justice
Educational disability does not cause delinquency, but learning and behavioral disorders place youth at greater risk for involvement with the juvenile courts and for incarceration. School failure, poorly developed social skills, and inadequate school and community supports are associated with the over-representation of youth with disabilities at all stages of the juvenile justice system.
Office of Juvenile Justice and Delinquency Prevention State Contacts
Includes a detailed search and clickable U.S. map to find contact information for the state representatives and organizations that administer many OJJDP programs.
Office of Juvenile Justice and Delinquency Prevention
This program seeks to reduce the involvement of elementary and middle school students in delinquent behavior, violence, and gangs through its classroom curriculum, taught by law enforcement officers.
Forum for Youth Investment
This organization’s goal is to create strategic alliances among the full range of organizations that invest in youth, and to forge strong connections with organizations that invest in young children, families and communities. This Web site contains many resources including contact information for consultants, publications, working papers, articles, news and updates, an FYI newsletter, as well as specific attention to juvenile justice. The Forum is an initiative of the International Youth Foundation.
Juvenile Justice Evaluation Center Online
The Juvenile Justice Evaluation Center (JJEC) Online is a tool designed to assist juvenile justice practitioners, policymakers, and state agency administrators with the assessment and evaluation of programs and initiatives. The Web site is divided into four sections: JJEC Information, State Information, Juvenile Justice Program Areas, and Evaluation Resources. These sections provide professionals in the field with readily accessible evaluation assistance.
National Center for Mental Health and Juvenile Justice
The National Center for Mental Health and Juvenile Justice provides various types of assistance to program administrators, policy makers, families, government officials, researchers, and service providers on a wide variety of issues. Center staff provide access to resources and specialized information, or help with a defined problem. This site includes on-line assistance, training, resources, projects, and more.
National Criminal Justice Reference Service (NCJRS) Abstracts Database
This database includes summaries of juvenile justice publications, including Federal, State, and local government reports, books, research reports, and journal articles.
OJJDP National Training and Technical Assistance Center
The National Training and Technical Assistance Center (NTTAC) supports the delivery of high quality training and technical assistance to the juvenile justice field. This site contains a wealth of information including a Roadmap for finding training and technical assistance as well as a Toolbox for providing effective training and technical assistance that includes curricula.
PACER Center Juvenile Justice Program
This site provides a wealth of resources on the relationship between juvenile justice and youth with disabilities. Included within this site are publications and links to other important resources.
For the latest on juvenile justice issues, subscribe to any of the following e-mail lists:
JUVJUST:OJJDP's JUVJUST listserv provides information weekly on juvenile justice and other youth service-related publications, funding opportunities, and events.
OJJDP News @ a Glance: The bimonthly electronic newsletter OJJDP News @ a Glance highlights OJJDP activities, publications, funding opportunities, and upcoming events.
JUSTINFO: The National Criminal Justice Reference Service's biweekly electronic newsletter JUSTINFO offers information about publications, events, funding and training opportunities, and Web-based resources available from its federal sponsors, including the Office of Justice Programs, the National Institute of Corrections, the Office of Community Oriented Policing Services, and the Office of National Drug Control Policy. Subscribe or browse past issues.
To Top
Safe Schools
Early Warning, Timely Response - A Guide to Safe Schools
Central to this guide are the key insights that keeping children safe is a community-wide effort and that effective schools create environments where children and young people truly feel connected. This is why our common goal must be to reconnect with every child and particularly with those young people who are isolated and troubled.
The Nuts and Bolts of Implementing School Safety Programs
This free publication, from the Vera Institute of Justice, helps teachers, principals, and school administrators identify effective and appropriate school safety programs. The manual identifies programs from around the country and describes the resources needed to implement each program.
School Policies and Legal Issues Supporting Safe Schools (PDF)
This free guide, from the Northwest Regional Educational Laboratory, addresses the development and implementation of school policies that support safe schools. Section 1 provides an overview of guiding principles to keep in mind when developing policies at the district level to prevent violence. Section 2 addresses specific policy and legal components that relate to such topics as discipline and due process, threats of violence, suspension and expulsion, zero tolerance, and dress codes. Checklists are included to ensure that schools attend to due process when developing policies for suspensions or expulsions, search and seizure, or general liability issues.
To Top
Publications
Acquiring and Utilizing Resources To Enhance and Sustain a Safe Learning Environment (PDF)
This free guide, from the Northwest Regional Educational Laboratory, Provides practical information on a spectrum of resources that concerned individuals and organizations can use in the quest to create safe schools. It draws on published research and also includes interviews with experts working on school safety issues at the state and local levels. Major topics covered include: What are resources? What role do resources play in safe school planning? Identifying and accessing resources and Appendix of online and print resources.
Youth Violence: A Report of the Surgeon General
This report -- the first Surgeon General's report on youth violence -- is a product of extensive collaboration. It reviews a massive body of research on where, when, and how much youth violence occurs, what causes it, and which of today's many preventive strategies are genuinely effective.
To Top
Last revised: 06/11/07
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!
Delinquency l Juvenile Justice and Education l Resources
Articles | Safe Schools | Publications
Print this page
Did you know that...
* Seventy percent of children in the juvenile justice system have educational disabilities -- the vast majority have an Emotional Disturbance (ED) and/or Specific Learning Disabilities?
* Children with ED fail more courses, earn lower grade point averages, miss more days of school, and are retained more often than other students with disabilities?
* Children with ED have the lowest graduation rates of all children with disabilitiess, nationally, only 35% graduate from high school (compared to 76% for all students)?
* Children with ED are three times more likely to be arrested before leaving school, when compared to all other students?
* For children with ED who drop out of school, 73 percent are arrested within five years?
* Children with ED are twice as likely to live in a correctional facility, halfway house, drug treatment center, or "on the street" after leaving school, when compared to students with other disabilitie?.
* Children with ED are twice as likely to become teenage mothers as students with other disabilities? [Source: Stopping the Schoolhouse to Jailhouse Pipeline]
Juvenile Justice involvement in kids within the special education system is a hot topic. When the federal special education law was passed in 1975, Congress found that most children with disabilities were not receiving an appropriate education - and that millions of children were excluded from school altogether.
Today, schools continue to suspend and expel students with disabilities for behaviors that are a direct result of their disabilities. These children often become delinquent, feel worthless, are viewed as "failures," stop trying, and/or end up in the juvenile justice system as a result of their treatment by those who are charged with educating them.
If you are advocating for a child with these issues or you see these issues appear, the articles and resources collected on this page will help. If you are charged with educating such a child, take a moment to this about that child's problems. You can make a difference in the child's education and ultimate success in life.
Juvenile Justice and Education
Strategies When Schools Have Children Arrested for School-Related Behavior Problems - Pete Wright shares strategies he used when schools had kids arrested for behavaiors related to their disabilities; juvenile courts as allies.
Juvenile Justice: Special Education Issues, Part I by Robert E Shepherd, Jr., Criminal Justice Magazine (V. 17, No 4), published by the American Bar Association (Winter 2003).
Legal issues presented by children who are behavioral risks in the school system and who then become involved in the juvenile justice system; tools for providing effective representation to young people with educational disabilities who face delinquency charges.
Juvenile Justice, Special Education Issues, Part II by Robert E. Shepherd, Jr., Criminal Justice Magazine (V. 18, No. 1), published by the American Bar Association (Spring 2003).
A disproportionate number of youth in the juvenile justice system suffer from mental health disorders and other disabilities covered by special education law. Effective representation of youth includes being knowledgeable about the characteristics of these youth, and how to intelligently present their problems to the court and its personnel.
Juvenile Justice and Special Ed Law Clinic Publications
This page includes articles by Prof. Joe Tulman from the American Bar Association's Children's Rights Litigation Committee. These articles include: Applying Disability Rights to Equalize Treatment for People with Disabilities in the Delinquency and Criminal Systems; Disability and Delinquency: How Failures to Identify, Accommodate, and Serve Youth with Education-Related Disabilities Leads to Their Disproportionate Representation in the Delinquency System; Special Education Advocacy Under the Individuals with Disabilities Education Act (IDEA) For Children in the Juvenile Delinquency System; and The Role of the Probation Officer in Intake: Stories from Before, During, and After the Delinquency Initial Hearing.
Reading Problems and Delinquency by Peter Wright describes the link between undiagnosed, unremediated learning disabilities, reading problems, and delinquency. This article includes research about the learning disabilities / juvenile delinquency link, proposes to improve the training of juvenile court staff, and encourages early identification and early intervention to prevent problems related to the failure to teach children to read (1974).
Special Education and the Juvenile Justice System Juvenile Justice Bulletin from The Education Resources Information Center (ERIC).
This bulletin summarizes provisions of federal law as they pertain to special education and juvenile justice. It discusses provisions of the Individuals with Disabilities Education Act 1997 including: the definition of disability; free appropriate public education; identification, referral, and evaluation; the individualized education program (IEP); special education and related services, due process protections, and the "stay put" rule (that a student should usually stay in his/her current educational placement pending any court proceedings).
Stopping the Schoolhouse to Jailhouse Pipeline is an ongoing effort to stop the flow of children from schools to jails. In August 2005, the Southern Poverty Law Center, along with attorneys from the Southern Disability Law Center and the Juvenile Justice Project of Louisiana, obtained a class-wide settlement agreement affecting all special education students in Jefferson Parish. The agreement requires major systemic changes including:
* improvements in the education provided to those with emotional disturbances,
* reform of the parish's overly harsh disciplinary procedures,
* counseling for emotionally disturbed children,
* the provision of job training and other services to help high school students transition into jobs upon graduation.
Sources of more information:
* Jefferson Parish Special Education Case
* Settlement Agreement (PDF)
* Jefferson Parish Corrective Action Plan (PDF)
* Publication: Stopping the Schoolhouse to Jailhouse Pipeline by Jim Comstock-Galagan, Esq. and Rhonda Brownstein, Esq.
When Schools Criminalize Disability/Education Law Strategies for Legal Advocates
This booklet from the Center of Law and Education explores legal theories and strategies for challenging inappropriate school-initiated delinquency petitions and crime reports, and addressing their aftermath. This collection discusses approaches that, while well-grounded in law, may not have been tested in the courts. In particular, they focus on using education advocacy based on IDEA, Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act to hold local schools accountable when they criminalize the behavior for which they are legally obligated to provide appropriate educational services; obtain better outcomes for clients in the juvenile courts; enforce schools’ obligation to address behavioral issues as educational ones; and reduce the risk of future school-initiated delinquency petitions or crime reports.
GAO Report on Special Education: Clearer Guidance Would Enhance Implementation of Federal Disciplinary Provisions (PDF)
In the 2000-01 school year, more than 91,000 special education students were removed from their educational settings for disciplinary reasons. The GAO (General Accounting Office) was asked to determine where disciplined special education students are placed, the extent to which local school districts continue educational services for those students, and how the U.S. Department of Education provides support and oversight for special education disciplinary placements.
To Top
Delinquency
Juvenile Defender Delinquency Notebook (PDF)
The National Juvnile Defender Center has revised and updated this manual for its 2nd edition, which is intended as an advocacy and training guide for juvenile defenders. Thirteen chapters cover everything from the initiation of the attorney-client relationship to appeals and related proceedings. Over 500 downloadable pages in which case you should stock up on ink cartridges and invest in several reams of paper. Available as a free PDF document.
Resources on Delinquency and Juvenile Justice from FAPE.org
Children of the Code Interview: Dr. Peter E. Leone on Juvenile Injustice, Reading Difficulties, Special Education and Juvenile Delinquency
Dr. Leone is a Professor of Special Education who specializes in Behavior Disorders at the University of Maryland. He is the Director of The National Center on Education, Disability, and Juvenile Justice which is a collaborative project involving partners from the University of Maryland, Arizona State University, the American Institutes for Research in Washington, DC, and the PACER parent advocacy center in Minneapolis.
To Top
Related Articles
Frequently Asked Questions: Juvenile Justice
This article answers questions such as Who are young people with disabilities in the juvenile justice system? and Why are so many young people with disabilities involved in juvenile corrections?
From Emotions to Advocacy: The Parents' Journey
Undetected, unremediated learning disabilities are causally connected to many other serious life problems—from juvenile delinquency and substance abuse to severe marital problems, domestic violence, and chronic unemployment. Typically, learning disabled adults develop negative views of themselves as lazy or stupid—or worse. Most of these adults—numbering in the millions—have developed a strong, pervasive sense of having failed.
To Top
Resources
The National Center on Education, Disability and Juvenile Justice
Educational disability does not cause delinquency, but learning and behavioral disorders place youth at greater risk for involvement with the juvenile courts and for incarceration. School failure, poorly developed social skills, and inadequate school and community supports are associated with the over-representation of youth with disabilities at all stages of the juvenile justice system.
Office of Juvenile Justice and Delinquency Prevention State Contacts
Includes a detailed search and clickable U.S. map to find contact information for the state representatives and organizations that administer many OJJDP programs.
Office of Juvenile Justice and Delinquency Prevention
This program seeks to reduce the involvement of elementary and middle school students in delinquent behavior, violence, and gangs through its classroom curriculum, taught by law enforcement officers.
Forum for Youth Investment
This organization’s goal is to create strategic alliances among the full range of organizations that invest in youth, and to forge strong connections with organizations that invest in young children, families and communities. This Web site contains many resources including contact information for consultants, publications, working papers, articles, news and updates, an FYI newsletter, as well as specific attention to juvenile justice. The Forum is an initiative of the International Youth Foundation.
Juvenile Justice Evaluation Center Online
The Juvenile Justice Evaluation Center (JJEC) Online is a tool designed to assist juvenile justice practitioners, policymakers, and state agency administrators with the assessment and evaluation of programs and initiatives. The Web site is divided into four sections: JJEC Information, State Information, Juvenile Justice Program Areas, and Evaluation Resources. These sections provide professionals in the field with readily accessible evaluation assistance.
National Center for Mental Health and Juvenile Justice
The National Center for Mental Health and Juvenile Justice provides various types of assistance to program administrators, policy makers, families, government officials, researchers, and service providers on a wide variety of issues. Center staff provide access to resources and specialized information, or help with a defined problem. This site includes on-line assistance, training, resources, projects, and more.
National Criminal Justice Reference Service (NCJRS) Abstracts Database
This database includes summaries of juvenile justice publications, including Federal, State, and local government reports, books, research reports, and journal articles.
OJJDP National Training and Technical Assistance Center
The National Training and Technical Assistance Center (NTTAC) supports the delivery of high quality training and technical assistance to the juvenile justice field. This site contains a wealth of information including a Roadmap for finding training and technical assistance as well as a Toolbox for providing effective training and technical assistance that includes curricula.
PACER Center Juvenile Justice Program
This site provides a wealth of resources on the relationship between juvenile justice and youth with disabilities. Included within this site are publications and links to other important resources.
For the latest on juvenile justice issues, subscribe to any of the following e-mail lists:
JUVJUST:OJJDP's JUVJUST listserv provides information weekly on juvenile justice and other youth service-related publications, funding opportunities, and events.
OJJDP News @ a Glance: The bimonthly electronic newsletter OJJDP News @ a Glance highlights OJJDP activities, publications, funding opportunities, and upcoming events.
JUSTINFO: The National Criminal Justice Reference Service's biweekly electronic newsletter JUSTINFO offers information about publications, events, funding and training opportunities, and Web-based resources available from its federal sponsors, including the Office of Justice Programs, the National Institute of Corrections, the Office of Community Oriented Policing Services, and the Office of National Drug Control Policy. Subscribe or browse past issues.
To Top
Safe Schools
Early Warning, Timely Response - A Guide to Safe Schools
Central to this guide are the key insights that keeping children safe is a community-wide effort and that effective schools create environments where children and young people truly feel connected. This is why our common goal must be to reconnect with every child and particularly with those young people who are isolated and troubled.
The Nuts and Bolts of Implementing School Safety Programs
This free publication, from the Vera Institute of Justice, helps teachers, principals, and school administrators identify effective and appropriate school safety programs. The manual identifies programs from around the country and describes the resources needed to implement each program.
School Policies and Legal Issues Supporting Safe Schools (PDF)
This free guide, from the Northwest Regional Educational Laboratory, addresses the development and implementation of school policies that support safe schools. Section 1 provides an overview of guiding principles to keep in mind when developing policies at the district level to prevent violence. Section 2 addresses specific policy and legal components that relate to such topics as discipline and due process, threats of violence, suspension and expulsion, zero tolerance, and dress codes. Checklists are included to ensure that schools attend to due process when developing policies for suspensions or expulsions, search and seizure, or general liability issues.
To Top
Publications
Acquiring and Utilizing Resources To Enhance and Sustain a Safe Learning Environment (PDF)
This free guide, from the Northwest Regional Educational Laboratory, Provides practical information on a spectrum of resources that concerned individuals and organizations can use in the quest to create safe schools. It draws on published research and also includes interviews with experts working on school safety issues at the state and local levels. Major topics covered include: What are resources? What role do resources play in safe school planning? Identifying and accessing resources and Appendix of online and print resources.
Youth Violence: A Report of the Surgeon General
This report -- the first Surgeon General's report on youth violence -- is a product of extensive collaboration. It reviews a massive body of research on where, when, and how much youth violence occurs, what causes it, and which of today's many preventive strategies are genuinely effective.
To Top
Last revised: 06/11/07
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!
Saturday, February 09, 2008
School District, seeking to recover under breach of implied contract and quantum meruit
Send this document to a colleague Close This Window
IN THE SUPREME COURT OF TEXAS
════════════
No. 05-0959
════════════
Lamesa Independent School District, Petitioner,
v.
David Booe d/b/a Booe Roofing Company, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eleventh District of Texas
════════════════════════════════════════════════════
PER CURIAM
David Booe d/b/a Booe Roofing Co. sued Lamesa Independent School District, seeking to recover under breach of implied contract and quantum meruit theories. The trial court denied the District’s plea to the jurisdiction based on governmental immunity from suit, issuing four conclusions of law in support of the denial. The court of appeals affirmed, __S.W.3d__, basing its decision entirely on the trial court’s first conclusion—that the District’s immunity is waived by section 11.151(a) of the Education Code, which provides that “[t]he trustees of an independent school district constitute a body corporate and in the name of the district may . . . sue and be sued.” Tex. Educ. Code § 11.151(a).
The court of appeals’ holding on section 11.151(a) conflicts with our decisions in Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), and Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006), issued after the court of appeals’ opinion in this case. As we held in Satterfield, section 11.151(a) is not a clear and unambiguous waiver of immunity. Satterfield, 197 S.W.3d at 391.
The court of appeals also noted that, while this case was pending on appeal, the Legislature enacted subsections 271.151-.160 of the Local Government Code, which retroactively waive sovereign immunity for certain claims against local government entities, including public school districts. Tex. Loc. Gov’t Code §§ 271.151–271.160. Booe does not argue that the District’s immunity is waived by the newly enacted sections, and we express no opinion on that subject.
Accordingly, we grant the District’s petition for review, and without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and remand the case to that court to consider the District’s remaining issues. Tex. R. App. P. 60.2(d); Anderson v. Gilbert, 897 S.W.2d 783, 785 (Tex. 1995).
OPINION DELIVERED: September 28, 2007
IN THE SUPREME COURT OF TEXAS
════════════
No. 05-0959
════════════
Lamesa Independent School District, Petitioner,
v.
David Booe d/b/a Booe Roofing Company, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eleventh District of Texas
════════════════════════════════════════════════════
PER CURIAM
David Booe d/b/a Booe Roofing Co. sued Lamesa Independent School District, seeking to recover under breach of implied contract and quantum meruit theories. The trial court denied the District’s plea to the jurisdiction based on governmental immunity from suit, issuing four conclusions of law in support of the denial. The court of appeals affirmed, __S.W.3d__, basing its decision entirely on the trial court’s first conclusion—that the District’s immunity is waived by section 11.151(a) of the Education Code, which provides that “[t]he trustees of an independent school district constitute a body corporate and in the name of the district may . . . sue and be sued.” Tex. Educ. Code § 11.151(a).
The court of appeals’ holding on section 11.151(a) conflicts with our decisions in Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006), and Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006), issued after the court of appeals’ opinion in this case. As we held in Satterfield, section 11.151(a) is not a clear and unambiguous waiver of immunity. Satterfield, 197 S.W.3d at 391.
The court of appeals also noted that, while this case was pending on appeal, the Legislature enacted subsections 271.151-.160 of the Local Government Code, which retroactively waive sovereign immunity for certain claims against local government entities, including public school districts. Tex. Loc. Gov’t Code §§ 271.151–271.160. Booe does not argue that the District’s immunity is waived by the newly enacted sections, and we express no opinion on that subject.
Accordingly, we grant the District’s petition for review, and without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and remand the case to that court to consider the District’s remaining issues. Tex. R. App. P. 60.2(d); Anderson v. Gilbert, 897 S.W.2d 783, 785 (Tex. 1995).
OPINION DELIVERED: September 28, 2007
Friday, June 08, 2007
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?
First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.
"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."
And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."
WATT about all of the other cases?
How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.
How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?
Monday, June 04, 2007
Watt does TLR Et Al think @ them Apples?
San Anton lawyer could challenge Cornyn
Watts assails senator for allegiance to Bush, Iraq commitment.
AMERICAN-STATESMAN STAFF
Sunday, May 06, 2007
Fueling Democratic hope that Republican U.S. Sen. John Cornyn's political appeal will soon crumple, San Antonio lawyer Mikal Watts has been testing a challenge to Cornyn, whom he assails for a "blind allegiance" to President Bush and the Iraq war.
Watts, a Corpus Christi native and plaintiffs' lawyer who made his name in legal circles suing Firestone, Chrysler and other big companies, could decide by June whether to declare his 2008 candidacy for the seat that Cornyn, a former Texas attorney general, won in 2002.
Lauren Victoria Burke
ASSOCIATED PRESS
John Cornyn Republican senator says he disagrees with Bush on some issues.
Alicia Mireles
ASSOCIATED PRESS
Mikal Watts Big-time donor, lawyer known for fighting giant companies.
Watts, 39, ranks among a handful of Democrats who might leap in. They include former state Comptroller John Sharp, U.S. Rep. Nick Lampson of Houston and state Rep. Rick Noriega of Houston, who has said he is flattered by such speculation.
"I am incredibly worried about this war," Watts said last week. "I have no faith that John Cornyn is going to take one step to bring our men and women home."
Cornyn, 55, opposes the Democratic push for deadlines for U.S. troops to return from Iraq.
He insisted that he's not in lock step with the president.
"George Bush is a friend of mine, and he's got the toughest job on the planet," Cornyn said. "I've agreed with him when I think he's right. And I've disagreed with him when I think he's wrong."
Cornyn named as differences his support for expanded access to government records; for the regulation of tobacco as a drug (he co-sponsored legislation on the issue with U.S. Sen. Edward Kennedy, D-Mass.) and for comprehensive immigration reform: "I worry that the administration is so eager to have a solution that they're not going to insist on an enforceable border protection in place or workplace verification" of employees' immigration statuses.
Democratic activists rate Cornyn as a surprisingly little-known incumbent. A poll of 800 voters conducted April 11-15 for the Democratic Senate Campaign Committee suggests that 33 percent did not recognize his name. The poll found that 47 percent of voters favored Cornyn for re-election, against an unnamed Democrat at 38 percent.
Despite recent Texas election results, Democrats envision Republican Texas recoiling from Cornyn just as voters in some states rejected Republicans last year, resulting in Democratic majorities in Congress — in great part a reaction to tough going in Iraq.
Matt Angle, who steers the Lone Star Project, a political committee supportive of Texas Democrats, rates Cornyn as a "stand-and-salute, me-too" senator who can be taken.
History suggests that it's rare for an incumbent senator to lose. The last incumbent senator from Texas to fall was Democrat Bob Krueger in 1993; he'd been appointed to fill an opening. Previously, Democrat Ralph Yarborough lost to a well-funded challenger from the conservative wing of the then-dominant Democrats, Lloyd Bentsen. That happened in 1970.
Norm Ornstein, a congressional expert with the Washington-based American Enterprise Institute, likened the Democrats' chances in Texas to a snowball's in hell.
"Talk about a steeply uphill battle," he said.
Angle conceded that Cornyn, who totes more than $3 million in campaign cash and a 12-election winning streak dating to his roots as a Bexar County judge, remains the favorite. But "the favorite doesn't always win," he said.
Because of Texas' size, a candidate could need at least $15 million to be competitive.
Watts, whose law firm has won verdicts and negotiated settlements exceeding $1 billion since its founding in 1997, said that if he runs, he won't bankroll the campaign, but he'll have resources to "finish the deal."
He's proved a big donor, giving more than $2 million personally or through his law firm to state candidates or groups since 2002, according to an online search of filings at the Texas Ethics Commission. He has given more than $114,000 to candidates for federal office since 2004, according to Political Money Line.
Last month, Watts hosted a fundraiser at his home that yielded $1.1 million for the Democratic Senate Campaign Committee.
The event led Austin activist Glen Maxey to enthuse over Watts. Maxey wrote on the Burnt Orange Report, a Democratic blog, that Cornyn is "going down."
Watts is married and has three children. He clerked for Tom Phillips, chief justice of the Texas Supreme Court, after law school and then joined a Corpus Christi firm. He left the firm, he said, after presenting his boss with a note he'd scrawled his first day on the job, vowing to have his own firm by age 30.
Early on, the Watts Law Firm had a reputation for battling large corporations, according to Law.com, including a 1998 automotive defect case in which the jury awarded $80 million — at the time the largest such verdict in state history.
The firm, which has offices in Houston, San Antonio, McAllen and Brownsville, specializes in catastrophic personal injury, products liability, aviation and toxic torts, according to the site.
Watts, who moved to San Antonio last year and enrolled his children in a local school, said he hasn't scribbled a vow to reach the Senate by a certain age.
"I'm not quite so Clinton-esque," he said, referring to the former Democratic president.
wgselby@statesman.com; 445-3644
Additional material by staff writer Tara Copp.
Subscribe to:
Posts (Atom)
