     Case: 18-40433      Document: 00514936400         Page: 1    Date Filed: 04/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 18-40433
                                                                                FILED
                                                                            April 30, 2019
                                                                           Lyle W. Cayce
CHARLIE BROWN HERITAGE FOUNDATION,                                              Clerk

              Plaintiff - Appellant

v.

COLUMBIA BRAZORIA INDEPENDENT SCHOOL DISTRICT; COLUMBIA
BRAZORIA INDEPENDENT BOARD OF TRUSTEES; CITY OF WEST
COLUMBIA; DEBBIE SUTHERLAND,

              Defendants - Appellees




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 3:15-CV-346


Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.
PER CURIAM:*
       This lawsuit arises from a dispute over ownership of school facilities and
property located in southeast Texas. On one side is the non-profit corporation
which owns the property and on the other is the school district which donated
the property to the corporation but then—some years later—sought to reclaim
it. The corporation sued the school district and others, alleging discrimination.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-40433
But because of errors by the corporation’s attorney (who also serves as the
corporation’s president), the district court granted summary judgment to the
defendants. We now affirm.
                                        I.
      In 2007, the Columbia-Brazoria Independent School District gifted
property and facilities formerly known as the Charlie Brown School to the
Charlie Brown Heritage Foundation, a 501(c)(3) non-profit corporation.
According to the parties, Charlie Brown was a former slave who became a
millionaire and donated land to the School District for the purpose of starting
a school. As required by Texas law, the deed conveying the property included
a reversionary clause which provided that if the Foundation did not use the
property solely for non-profit, public purposes aimed at furthering the
historical significance of the school, ownership would revert to the School
District.
      In 2015, Debbie Sutherland, the City Manager of West Columbia (where
the Charlie Brown School is located), sent a letter to the School District’s
superintendent informing him that the property had fallen into a state of
disrepair. The letter further stated that the IRS had revoked the Foundation’s
non-profit status. Several months later, the School District sent a letter to the
Foundation stating that because the Foundation had failed to maintain the
property and had lost its tax-exempt status, title to the property had reverted
to the School District. The School District filed suit in Texas state court for
trespass to try title, seeking a declaratory judgment to that effect.
      In response, the Foundation brought its own lawsuit in federal court,
accusing the School District of federal Equal Protection and Due Process
violations, defamation, committing a taking without compensation, and
breaking state law. In the course of several amendments to the Foundation’s


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                                 No. 18-40433
complaint, the City of West Columbia and Sutherland were added as
defendants.
      At some point after the federal suit was filed, for reasons undisclosed in
the record, the School District voluntarily dismissed the state court suit with
prejudice. It is worth noting that the IRS had retroactively reinstated the
Foundation’s 501(c)(3) status in the interim. Regardless of the reason for
dismissing the suit, however, the School District’s current position is that
ownership of the property and the Charlie Brown School remains—and has
always remained—with the Foundation. Notwithstanding the School District’s
change of heart, the federal litigation has continued apace.
      The Foundation’s attorney in federal court was Veronica Davis. In
addition to serving as counsel for the organization, Davis is also its president.
In her initial disclosures, she self-designated as a material fact witness with
“information regarding the organization and all matters relevant to these
proceedings.” Davis was the sole representative of the Foundation when the
School District donated the property in 2007. Hers is the only name appearing
for the Foundation on the deed. Davis actually included herself as a party to
the lawsuit, though the district court ultimately dismissed her for lack of
standing.
      Based on her dual role as both counsel and witness, the district court
expressed concern during a docket call as to whether Davis’s representation of
the Foundation posed a potential conflict of interest for her. In particular,
Judge Hanks worried that her representation might run afoul of Rule 3.08 of
the Texas Disciplinary Rules of Professional Conduct. That rule, with certain
exceptions, forbids an attorney from acting as an advocate in a matter if she
believes she may be a necessary witness. See TEX. DISC. R. PROF. CONDUCT §
3.08(a). In response to those concerns, Davis voluntarily withdrew as counsel


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                                 No. 18-40433
of record and another attorney, William Jones, subsequently filed a notice of
appearance on behalf of the Foundation.
      Nevertheless, and despite a second admonition from the court at a
subsequent hearing, Davis continued to sign and file pleadings on behalf of the
Foundation. Although Judge Hanks noted the inexplicable nature of Davis’s
continued filings, he continued to accept and consider them. Or at least, he did
not reject them out of hand simply because they were filed by Davis. Instead,
the district court ultimately declined to consider certain pleadings filed by
Davis for a different reason: they were late.
      In response to motions for summary judgment filed by the defendants,
Judge Hanks ordered the Foundation to file a response by June 27, 2017.
Shortly before midnight on that date, Davis filed a response on the
Foundation’s behalf. The response contained no exhibits. Although she later
claimed that the document was only a draft and that it had been filed in error,
Davis notified neither the court nor opposing counsel of her mistake. The
defendants filed replies to the Foundation’s response on July 5. Then, fifteen
days later—more than three weeks after the initial response was filed—Davis
filed a “corrected” response to the motions. The new response was 60 pages
long, which the district court explained exceeded by 35 pages the length
permitted by the court’s local rules. The response also added almost 150 pages
of previously unseen exhibits and new arguments.
      Unsurprisingly, the court did not look kindly on Davis’s behavior. See
Charlie Brown Heritage Found. v. Columbia Brazoria Indep. Sch. Dist., 2018
WL 2059203, at *4 (S.D. Tex. May 3, 2018) (“In the past, in the interest of
justice, the Court has been extremely lenient with Davis’s untimely and
‘incomplete’ filings. Today, that leniency comes to an end.”). It struck from the
record the Foundation’s late response, as well as an even-later-filed surreply.


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                                  No. 18-40433
That meant that the only response to the summary-judgment motions on
record was the Foundation’s initial, exhibit-less response. Absent a genuine
dispute of material fact, the court ruled against the Foundation on all federal
claims. The court declined to exercise supplemental jurisdiction over the
remaining state-law claims, dismissing them without prejudice.
                                       II.
      Inexplicably, Veronica Davis continues to represent the Foundation in
this litigation. As with the pleadings presented to the district court, the
appellate brief filed by petitioner in this court was signed by Davis. Also like
the pleadings filed before the district court, the brief “can only be described as
nebulous, meandering, and conclusory.” Id. at *3. The Foundation appears to
take issue with almost every decision rendered by the district court.
      We do not agree with the Foundation. Although Davis devotes some time
to arguing that her representation of the Foundation does not violate Rule 3.08,
that line of argument is irrelevant. The district court did not bar Davis from
representing the Foundation; she voluntarily withdrew. In any event, Judge
Hanks never refused to consider a pleading filed by the Foundation solely
because it was filed by Davis. He instead struck the pleadings because he found
that Davis willfully abused the judicial process. Id. at *4.
      The district court’s decision to strike a pleading from the record is
reviewed for abuse of discretion. See Cambridge Toxicology Grp., Inc. v.
Exnicios, 495 F.3d 169, 178 (5th Cir. 2007); Grabowski v. Carver, 38 F.3d 5693
(5th Cir. 1994). There was no abuse of discretion here. As the district court’s
explanation of the situation demonstrates, Davis had repeatedly filed such
“placeholder” filings without consequence. See Charlie Brown Heritage Found.,
2018 WL 2059203, at *4, *2 n.11. The court’s action was entirely appropriate.




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                                    No. 18-40433
      Without any evidence to support the Foundation’s claim of a genuine fact
dispute, the district court was correct to grant summary judgment to the
defendants. As for the previously dismissed claims—the takings and due
process claims—the court was also correct that because there was no taking of
property, those claims must fail.
      AFFIRMED.




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