Wednesday, August 14, 2019


CESAR DE LEON'S INTERLOCUTORY APPEAL AS OF THIS MORNING NOT ON PORTAL FOR COURT OF APPEALS, AND DISTRICT COURT HAS YET TO UPLOAD IT

SECOND UPDATE:

The District Clerk finally posted the notice of appeal.  The issue is, is Cesar being sued in his official capacity or individually for acts outside his authority as a commissioner?  The pleadings say the latter.  Pleadings are broadly read to serve the claims of the Plaintiff, not the defendant.

Cesar is arguing the pleadings should be construed to favor he was acting in his official capacity.  GMS made a very cogent argument as to why the lawsuit against Cesar is separate from the city.

Judges play this game and claim because they are judges they cannot be sued for acts outside their authority.  The courts have been clear.  They can be sued for acts outside their authority.

Whether or not Cesar acted within his authority is a fact question.  As plead it cannot be resolved as a matter of law.  So yes, in his appeal he plead a basis for interlocutory appeal - E § 51.014(a)(5), but because the lawsuit alleges he acted outside his legal authority as a commission it does not apply, well unless after discovery it shows he was acting as a commissioner.  No evidence was presented at the hearing, so there is no evidence for the court of appeals to consider.  All they can do is look at the four corners of the pleadings and decide is a claim for acts outside of his official capacity were alleged.  Cesar's lawyer should have put on evidence that at all times he was acting within his official capacity.  He  did not and now there is nothing for the court of appeals to consider.

This should be a fast appeal.  I am certain Baker and Botts will shut this down as a fact question for now, unless GMS and the City see this as an opportunity to settle the case.  I do not see it unless Republic pulls its bid.  
UPDATE

As of this morning, the notice of appeal has not been posted for viewing.  This is the new con job by Eric Garza, District Clerk.  This is sad.  The Court of Appeals yesterday finally gave the interlocutory appeal a case number and order Cesar de Leon to pay the filing fee, since it had not been paid.  A tight scheduling order has been set.  We shall see if anyone moves for dismissal and sanctions or lets it sit to see if they can use the time to mediate this out.

The defective original order denying the Motion to Dismiss has not been corrected.  

ORIGINAL POST

Is it possible Cesar's lawyer has realized he is facing major sanctions and has pulled the interlocutory appeal.

No comments: