City of San Antonio v. Gilbert Longoria--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00063-CV

CITY OF SAN ANTONIO,

Appellant

v.

Gilbert LONGORIA,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-16266

Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 22, 2004

AFFIRMED

This is an appeal from a judgment in which the trial court affirmed a hearing examiner's decision dismissing appellee's indefinite suspension and awarded appellee attorney's fees. We affirm.

BACKGROUND

Appellee, Gilbert Longoria, is a fire fighter with the San Antonio Fire Department. On December 21, 2001, Longoria received a bi-weekly paycheck in the net amount of $7,184.64. This amount represented approximately six times his average bi-weekly net pay of $1,196.89. Longoria deposited $6,000 of the check into his savings account, and deposited the balance into his checking account. On June 21, 2002, Randy Corbin, Payroll Supervisor in the Finance Department for the appellant, City of San Antonio, notified Eleanor Bustamante, the fire department's Payroll Administrator, that Longoria had been overpaid. On June 22, 2002, Bustamante confirmed Corbin's finding. On June 24, 2002, Bustamante informed District Chief Noel Hardin, of the fire department, about the overpayment. On July 25, 2002, Longoria was asked to return the money, which he ultimately did. On January 10, 2003, Fire Chief Robert Ojeda indefinitely suspended Longoria.

Longoria appealed the suspension to an independent hearing examiner, and the dispute was heard on July 30, 2003. At the close of the City's case, Longoria moved to dismiss the Notice of Indefinite Suspension on the grounds that it violated the 180-day statute of limitations contained in section 143.052(h) of the Texas Local Government Code and in article 33 of the "Collective Bargaining Agreement between the City of San Antonio and Local 624 International Association of Fire Fighters" ("the CBA"). The hearing examiner granted the motion to dismiss, ordered Longoria's reinstatement, and awarded him back pay.

The City appealed the hearing examiner's decision to district court. The City alleged the hearing examiner's award was not supported by substantial evidence and was capricious, and that the hearing examiner exceeded his authority and/or jurisdiction. Longoria filed a motion for summary judgment in which he asserted the City could not establish that the hearing examiner exceeded his authority or jurisdiction when he issued the award. Longoria also asserted substantial evidence supported the hearing examiner's conclusion that the Notice of Indefinite Suspension was untimely. The trial court granted Longoria's motion, and awarded him attorney's fees in the amount of $11,760.00.

HEARING EXAMINER'S AWARD

In its first issue, the City asserts the trial court erred in granting Longoria's motion for summary judgment because the hearing examiner's ruling was outside his authority and jurisdiction, was capricious, and/or was not supported by substantial evidence. (1)

Standard of Review

The Texas Legislature has set forth a statutory framework governing the rights and responsibilities of municipal officers seeking to challenge disciplinary suspensions. Under this scheme, an officer may appeal his suspension either to the civil service commission or to an independent third-party hearing examiner. Tex. Local Gov't Code Ann. 143.057(a) (Vernon 1999). Longoria exercised his right to have his appeal heard by an independent hearing examiner. A hearing examiner has the same duties and powers as the commission. Id. 143.057(f). However, unlike the commission's decision, the decision of the hearing examiner is final and binding on all parties. Id. 143.057(c). A district court may hear an appeal of a hearing examiner's award only on the grounds that: (1) the hearing examiner was without jurisdiction; (2) the hearing examiner exceeded his jurisdiction; or (3) the order was procured by fraud, collusion, or other unlawful means. Id. 143.057(j).

The standard set forth in section 143.057(j) has been interpreted as an "abuse of authority" standard. See Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.--Tyler 1998, no pet.); see also Lindsey v. Fireman's & Policeman's Civil Serv. Comm'n of the City of Houston, 980 S.W.2d 233, 236 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). An abuse of authority occurs when a decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law. City of Carrollton Civil Serv. Comm'n v. Peters, 843 S.W.2d 186, 188 (Tex. App.--Dallas 1992, writ denied). Governmental review of a hearing examiner's actions is a means to prevent the examiner from exercising his power unchecked. City of Garland v. Byrd, 97 S.W.3d 601, 607 (Tex. App.--Dallas 2002, pet. denied). The abuse of authority review fulfills this purpose. Id.

Hearing Examiner's Jurisdiction and Authority

In its Notice of Indefinite Suspension Without Pay, the City alleged Longoria violated certain specific civil service commission rules and certain specific fire department rules and regulations. The City alleged that the following acts violated these rules and regulations:

On or about July 24, 2002, [Longoria] had in his possession money totaling approximately $8408.02 that belonged to the City of San Antonio and that had been, and which [Longoria] knew had been, mistakenly given to him in a paycheck. Despite knowing that the money belonged to the City of San Antonio, and did not belong to him, [Longoria] neither advised the city he had been mistakenly given the money nor returned the money to the city until he was approached by representatives of the San Antonio Fire Department.

Because the underlying facts are not in dispute, Longoria's burden, as summary judgment movant, was to establish as a matter of law that no genuine issue of material fact existed regarding the absence of the hearing examiner's jurisdiction to render an award. See Nuchia, 973 S.W.2d at 786; City of Carrollton v. Popescu, 806 S.W.2d 268, 271 (Tex. App.--Dallas 1991, no writ).

In its response to Longoria's motion for summary judgment, the City asserted the hearing examiner's analysis was flawed because he determined it was required to take disciplinary action within 180 days of "learning" of the infraction. On appeal, the City expands this argument by contending that it relied on the following "first part" of Local Government Code section 143.052(h) in its notice of indefinite suspension: "In the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer." See Tex. Loc. Gov't Code Ann. 143.052(h). According to the City, the hearing examiner ignored the City's notice of indefinite suspension and focused on the incorrect date, June 24, 2002, which is the date the City confirmed the discovery of the overpayment to Longoria. The City contends the correct date is July 24, 2002 because on that date Longoria had neither returned nor reported the overpayment. The City argues the examiner's decision "was not in accordance with" section 143.052(h) because the examiner erroneously relied on "another part" of section 143.052(h), which reads as follows: "If the act is allegedly related to criminal activity including the violation of a federal, state, or local law for which the fire fighter or police officer is subject to a criminal penalty, the department head may not complain of an act that is discovered earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer. The department head must allege that the act complained of is related to criminal activity." Id. (emphasis added).

The hearing examiner's award contradicts the City's argument. In his discussion and analysis, the examiner cited twice to and considered controlling the very language upon which the City relies, that "the department head may not complain of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer." Therefore, the City's argument that the hearing examiner relied on the incorrect "part" of section 143.052(h) is without merit.

The City next argued the hearing examiner exceeded his authority and/or jurisdiction "in deciding that the SAFD had not taken disciplinary action in a timely fashion when, in fact, it had." (2) The City's more specific contention is that the hearing examiner incorrectly phrased the issue as whether it could have alleged that an infraction occurred on June 24, 2002. Instead, the City asserts the true issue is whether an infraction did, in fact, occur on July 24, 2002. The City contends the infraction occurred on July 24, 2002 because Longoria still had the over-payment in his possession, and had not returned or reported it. According to the City, Longoria was "obligated to act, each and every day, by the ordinary rules of good behavior observed by law abiding citizens and to return the money pursuant to the SAFD Rules." The City asserts it may consider acts outside the six-month period to explain the infraction, and it maintains that it referred to the June 24th over-payment only as a means of explaining Longoria's wrongful possession of money belonging to the City.

Acts or events outside the six-month period may be used to explain or evaluate "the propriety and gravity" of acts within the six-month period. Plaster v. City of Houston, 721 S.W.2d 421, 423 (Tex. App.--Houston [1st Dist.] 1986, no writ) (involving appeal from commission decision). However, the City's argument goes to the correctness of the hearing examiner's ruling, and not to whether he lacked jurisdiction to rule or abused his authority such that he exceeded his jurisdiction in applying section 143.052(h) to the case before him. See Lindsey, 980 S.W.2d at 237.

Because no genuine issue of material fact remained that the hearing examiner lacked jurisdiction or exceeded his jurisdiction to render an award, the trial court properly granted Longoria's motion for summary judgment.

ATTORNEY'S FEES

In its second issue, the City asserts the trial court erred in granting Longoria attorney's fees because the award was not supported by credible evidence.

In support of his request for attorney's fees, Longoria submitted a compilation of fees and costs, attached to which were the affidavits of the two attorneys who represented Longoria at the request of the International Association of Fire Fighters Local 624 ("the Union"). The compilation states that under the CBA, "[a] reasonable attorney's fee . . . for the employee, shall not exceed that actual rate agreed and charged, not to exceed $100.00 per hour."

On appeal, the City contends that the affiants did not state they are licensed attorneys in good standing in the State of Texas; no evidence was presented regarding their reputation, experience, or abilities; a foundation for the affiants to testify on the reasonableness of their fees was not established; and there is no evidence the fees are reasonable in Bexar County, Texas or that two attorneys were necessary at an arbitration. None of these complaints were raised before the trial court. In fact, the City lodged no objection to Longoria's request for attorney's fees in the amount of $11,760.

To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion, or objection with sufficient specificity as to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. See Tex. R. App. P. 33.1(a); see also City of Port Isabel v. Shiba, 976 S.W.2d 856, 860-61 (Tex. App.--Corpus Christi 1998, pet. denied) (trial error regarding attorney's fees is not fundamental error and must be preserved by timely objection). Therefore, the City has waived this complaint on appeal.

CONCLUSION

We overrule the City's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

1. The City has not argued that the hearing examiner's award was procured by fraud, collusion, or other unlawful means.

2. The City also asserts the hearing examiner's application of the law is not supported by substantial evidence. The "substantial evidence" standard is applicable to a review of a decision by the commission. See Tex. Loc. Gov't Code Ann. 143.015(b) (appeal is by trial de novo); Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 955 (Tex. 1984) (interpreting "trial de novo" to mean review under the "substantial evidence rule"). This standard is not applicable to a review of a decision by a hearing examiner. See Tex. Loc. Gov't Code Ann. 143.057(j); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.--Tyler 1998, no pet.) (noting that standard applied to decision by hearing examiner differs from standard applied to decisions by commission).