all he's the court jenny smith on behalf of the appellate held against all stars that there are three issues before this court on appeal today but i'd like to focus on the issue of whether the district court erred when it ordered reinstatement despite a binding jury of  verdict from pe in this case this court should reverse the decision of the district court and render judgment on the jury's verdict on the jury's unanimous binding per day because the parties concerned can i separate out for the moment stark county and mr retaliation case into the us constitution and so i'm trying to understand if we were to reverse that you've asked us to reverse that summary judgment what would happen would you have to go back for a trial against them or are they banned by the jury verdict by the virtue of having been then participated in it and sort of seem to embrace this whole case by move move in for reinstatement in and sort of remaining a party do you understand my question it's a little weird here yes your honor and as you pointed out stark county actually did move for reinstatement here and seemingly in doing so seemed to move for judgment against itself if this court were to reverse a summary judgment there is no need for an additional jury finding during the charge conference in this case the district court when discussing with the with council what the jury questions would be there was a discussion about whether or not there were two were municipal liability is a question of law they can be reviewed to know by this court and it essentially would because can because mr canalis was found liable under the jury's verdict in this case the mere question whether that liability can be attributed to stark county and again after having moved to reinstate the county seems to acknowledge that liability which is odd because the summary judgment ruling was different  found by that jury verdict i miss a little bit like it said normally if you have two defendants one of them give summary judgment they go home the trial goes on against the other guy whatever the verdict is they're they're not bound by it because they weren't even there here we have them still in the case for th answer they are bound because the record reflects that the charge conference the question came out do we need two questions or one and one question was sufficient to ask the district court acknowledge is the actor for the county and therefore that that jury verdict be binding on both of them and part of the reason for this also is reflected in the jury questions in the jury instructions that were submitted by both parties in this case where both parties submitted questions about whether or not and i'm speaking generally here whether or not the defendants were responsible for this conduct and then the ultimate question obviously went to which you mr canalis in the final jury charge but both parties understood that it was a question of liability as to the defendant's ok i have a question then about the summary judgment that the argument i mean the question before is you know if we were to agree with you on the summary judgment i don't see how we could agree with you on the summary judgment because there was no evidence or argument from your client regarding municipal liability at the time  judgment we can't look at the trial testimony to determine whether there was any evidence that he was the policy cannot force the final authority over the fire and we have to look at the summary judgment evidence and i don't believe you make the argument that he was the final decision maker before the trial judge and even if you did make the argument i don't believe you put forth any summary judgment evidence on the point maybe i'm wrong and i'd love to if you could point me to that argument and  been deposed and actually was not deposed but was questioned a trial therefore the evidence on the final policymaker didn't come out until that time right so again that summary judgment there was no evidence from which the judge could rule differently there garza filed a motion for reconsideration on the issue once the evidence became available at trial in this case and moreover the district court as reflected in the record of pages six thirty eight to six thirty nine its record occurs after excerpts seven when the court denied the motion for reconsideration the court makes a note that it essentially consider whether or not mr canal's was in fact the final policy maker in this case and so the issue is preserved that way by one filing the it's not wrong if you don't have any evidence in the record to support your position you said it's a question of law do you have a legal argument that the county attorney is always the final policymaker on matters of his office that you because you're saying it's a question of law then you would have needed evidence i'm trying to understand that argument yes your honor engraver scorpion county this court can look to its own precedent in that case that dealt with sheriffs and deputies and whether or not they i you know the actions of not rehiring deputies could be attributable to the sheriff and in that case the court looked at him bar and said well the argument presented before this court was well the county commissioner said employment policy because the county commissioner said and got a policy you know this year it was not a final decision maker but this court then looked at texas law and texas law says serve at the pleasure of the shar similarly although the county commissioners signed off on employment policy for star county it's important here because texas law in texas government code section forty five point zero zero two allows county attorneys to appoint their assistants therefore just like in brady persist in county where this court determined that the sheriff was responsible and the final policy maker with respect to filling available employment positions in the sheriff's department here under texas law the county attorney is likewise the one who is responsible is it your position you didn't need evidence because under texas law the county attorney is the final decision maker on the question presented that's correct but you didn't argue that at the time of summ judgment that is correct it was not argue that summary judgment but it was argued on the motion so you're saying that the error the trial court was in not granting the motion for reconsideration it's a little different standard that we judge it by but nonetheless you can make that argument is that the argument you're making that you prefer are you making the argument that the district court erred in denying your motion for reconsideration yes your honor that you've been all that that was not that no your honor but we did brief the question of whether or not summary judgment was proper in this case and it was not proper in this case ok but this is really hard to follow because it seems to me you're saying we didn't make the is make any sense to me can you help me clarify this canal and kind of want to get to a bottom line but these are important procedural points at the time of the motion for summary judgment the evidence had not been developed yet about whether  that motion for reconsideration should have been granted because it is still our position that the summary judgment was wrong as a matter of law in this court can take a look at that to know and the argument then was preserved by moving for the motion for reconsideration and i understand we you think that the advisory determination was wrong do you want to talk about that yes your honor under this court's precedent in an opinion by a judge really in whiting judge the district court may with the parties consent try any issue by a jury of his verdict has the same effect as if the jury trial had been as a matter of right and their poor two very important points in time at the district court in this case first when the jury was impaneled the record is silence that there was any intent by anyone to have an advisory verdict in this case and as this court has recognized and valley grain products parties are entitled to know if they are trying their case to the bench or to the jury prior to the jury being empaneled i have requested what if the record is its title and but i case in that case in the middle of trial the parties all kind of said oh maybe this is advisory maybe it's not there was some confusion and admitted confusion and in fact gloria the pla that case actually said it you know it in moving to seek present pay after a jury trial said this verdict might have been advisory and told the district court that did that this issue was going to be submitted to the jury and no objection well what about the fact that the district court that made multiple statements that it was advisory throughout the process and also described this advisory in the motion for injury of judgment so it's not the parties that are perhaps confused perhaps respectfully perhaps it's the district court that's confused at some point and no one says you honor this is not advisory that does that still does the rule still apply if it's the district court the one that's making the statements about it being advisory i do see i'm short on time answer your question and briefly can let me the here i appreciate bringing up the conversation from the district court because prior to the jury being impaneled the district court never said hey guys this is going to be an advisory jury verdict there was never indian in never any indication of that moreover the defendant stark county here did not ever you know they requested a jury trial as well and you know there was never any limitation or request that the equitable issues not be submitted to the jury in this case then in the charge conference and i believe this is by judge all right you're talking about a record eleven thirty one two hundred thirty two there is a discussion about the election of remedies decide that i guess after the jury verdict i guess you could make that election at that election around is different from advisory jury that's point did he ever say use the term advisory jury or advisory jury verdict or whatever before the verdict as i pick between negligence and breach of contract not it's an advisory in other selection remedies is one of these causes of action is the one you pick in this case it's one of these remedies is the one you pick and that's and me meaning is garza's election rather than being an advisory jury that's correct so that was your understanding of what he meant by shoulder pick that that's correct ok ok everybody gets two more minutes i have a question about assuming you're correct that it wasn't advisory and it was binding that the other side makes an argument that the order is excessive  i'm curious as to whether you believe that they can make that argument and whether that is preserved i do not believe they can make that argument at this point your honor stark county has never challenge the amount of the front pay word specifically starr county if the district court level didn't move to remit unsuccessfully the award of backpay but hung their hat on reinstatement instead verses reducing the amount of back pay and because this is a binding jury verdict the the standard of review because there was no j m o well after the jury returned its verdict is a plain error standard but even if this court looked at another legal sufficien reinstatement is not feasible isn't she working there now yes your i mean she's been working there years so it's not just feasible she's done it right respectfully it's flaky because as soon as this is all over they're going to fire again really rather than infeasible it respectfully your honor it is in feasible and yes it i feasible and two of those factors are one animosity and second whether or not the positions are comparable here this position is not comparable miss garza prior to her legal term a nation was a c p s attorney she was in fact stark county for back to a lack of a better word made up the position and once it didn't like the jury verdict it made up a position so the miss garza could come in and do criminal matters and that the reason for that was because the s position had already been filled it had already been taken so now she still representing people i mean doing the same type of caseload you know we have that cases as detectives get if they're not detecting any more than that then they then their job is changed and i'm wondering is it has the job changed such that we can't say to say the job has changed because her focus was primarily family law she was hand handling protective orders issues with family and kids and now it's switched over to criminal law exclusively and not only is the job different but upon illegal are upon reinstatement here a luxury in statement because not singled out for this and she's the only person in that office the nine percent office who has to report to an intermediary finally animosity is a huge factor here extra if she were to prevail on that on your claim the one point four million that's just a judgment as it stands right now we don't touch sorry judgment against mr canalis personally that's correct is he entitled to any kind of indemnity from the county that you know i i'm not aware verdict anyway so that's why i'm asking and if you don't know that's gone you can finish on animosity as far as the animosity a trial stark county called staff called other attorneys in stark county mosque here and not only not only was there testimony about alleged incompetency stark county went to the local newspaper in this came out to trial and discussed alleged incompetence as well right judgment is against stark county if the judgment was written so it's against the defendants plural nevertheless there is a footnote in the judgment that takes stark county and mr canal's  his individual capacity or sorry in his official capacity outside of the purview race leave the judgment for the monetary damages but leaves in stark county for purposes of reinstatement are there any further questions i know  the whole issue about starr county is that he stark county remained in the lawsuit for the equitable claim which would be front pay or reinstatement under the texas constitution so then aren't they found by this jury verdict because it goes to the same issue yes ok so you're not disputing that if we if we were to find the one point four million was properly assessed than it's assessed against probably one of the biggest issues in this case and the advisory versus non advisory jury can you tell us it was the word advisory used that word prior to the verdict in a prior to the verdict i don't believe so ok and the only thing that creates any ambiguity if you will about the advisory or not in by nature is this election or remedies point in how we construe them correct  because throughout the throughout the trial there was a ample understanding of you know the the court and the parties that there was this texas constitutional claim out there our joint pretrial orders show that both miss garza and the county was trying this essentially on a nine hundred eighty three compensatory damages issue and then we also had the texas constitutional claim when we submitted our jury instructions in jury questions we submitted them as if they were for compensatory damages with a loss of earning capacity not lost future wages it was a loss of earning capacity which is what she had in her complaint and so when the judge brought she will lose in the future and so that was the first time we ever really talked about from day when the judge said election and remedies but he i don't think there was any question in anybody's mind there that he was talking about the equitable issue that you know they would have to decide later the equitable issue and there's plenty of notable issues would be between reinstatement and the money no between whether the jury verdicts advisory i mean that's reelection of remedies is i could elect to recover under question one or under question two and i get to figure out after i see the verdict which one gives me more money and then i  that isn't the same thing as an advisory jury we talk about election remedies in cases where the entire jury is binding and everyone knows it so i don't see how that puts anyone on notice of an advisory jury well it was because there was only going to be one question and it was as if the two the two well did you argue wait a minute whoa we need a question about earning capacity because that's the one about mr can also individually i'm only in here for this equitable thing so that's my question but you know make sure we have  money not the county or mr grimes but the question is that you know we would be arguing one point four million as an amount if we have a verdict or if we have a judgment we didn't get to that point and we didn't appeal that point because the fifth circuit precedent for reinstatement is so strong there scase after case after case that submit that reinstatement is re preferred over it with there is a kind of a weird case in terms of normally reinstatement to i don't know a b c company that has five hundred employees i've got a judgment against c company but you know mr x is my boss is no big deal but here she's gone a judgment against her boss and to the point that he feels the need to put an intermediary between him and her so he don't have to talk to or and you don you know from that from that end i guess case i don't want to say the hold in there but from that case on reinstatement just seems to be that is the preferred remedy this is not infeasible he did not put in a intermediary in order to so that he would have to talk with her she was the one that presented the problems and in fact if you looked  at the the hearing be had on reinstatement we were trying to find out what would make it work what we can tell you how you would make it work i mean what did she want at the county  there are numerous cases that hold that the court can retain for itself the advisory part and submit damages to a and the fifth circuit has said the court can withhold for itself but the court didn't do that here unless you look at the post verdict carmen's to say well that's where i'm trying to tell  justice hands that yes they did we understood that the constitutional claim was the election of remedies between in other words it was between one thousand nine hundred eighty three and the constitutional claim were the to remedy but there was no question answered on which you contend is the compensatory damage question was not asked so the only question that was asked is front pay so they're clearly entitled to a jury question on you know compensatory damages and so why would that not asked and why did you not object to the failure to ask well is the back pay that that can be district court to say look we should reinstate audio but if you're not going to reinstate this one point four million is ridiculous yes we did that and i believe in our brief we say that the twenty two years is you know which three into that i'm asking the district court that the damages were accepted well what's the base legal places for you to get any relief on that your honor if you look at what the district court said when he was talking he said that i probably wouldn't give twenty two years if i had to look at the amount of damages and it was our position that he's already set it why do i have to argue a point that he is already basically admitt had to decide what from pay was ok i mean i think i risked respectfully i think you all are doing your best of both sides really could take a good hard look at air preservation for future cases and what that involves and what that means because i think fairly significant neither side of you has argued that particularly well to be honest may not affect the outcome but when you want to preserve your you don't wait around for the judge to make random comments to say your honor this one point four million is excessive going to be and advisory jury after the judge said election of remedies we've got to figure out what we do after they come back and i'm going to submit it ok anyway but the case sort of rises or falls on how we construe that conversation  again we'd be right back here again i think that's you know mr canalis even said on the stand during the hearing reinstatement it has humble to have he learned his lesson to do things a little slower because of it and that's because of the nature of the firing that she went and said she was going to run for school board two days later she gets fired well i'm going to announce like a jury parrot all these people say this woman was incompetent and yet so disbelieved mr canalis that they gave her the entire rest of her life's wages at this at the county well that's a pretty big exclamation point on what happened here yes and that's what the judge was trying to tell miss garza during the hearing for reinstatement that you know you you're hung up on this this thing about they called her incompetent at the trial but nobody believed the witnesses nobody believed mr prentice when he said she was incompetent so why are you hung up on the issue that they called you incompetent because that is the only problem she presented to the district court to say that it was not feasible to reinstate her has it been has the district court try to figure out the timing of this district court hasn't considered whether the c p s job is the same as the no that criminal job now and part of the reason that they gave her the criminal job is she had been in district attorney for ten years and she did criminal law for even while she was assistant county attorney is it is it in the record whether you job i believe in the hearing for reinstatement judge crane asked most of the questions he was very concerned about the comparability about the feasibility about the animosity which there was none prior to trial the whole issue came up at trial the issue of of going to the newspaper the newspaper went to miss garza they probably saw the lawsuit they went to  so yeah they go to the other side and you want to make a comment he did so you know there had been no problem in the workplace all this came about because of the lawsuit garcia's testimony was she would have had a problem if the trial had happened that's not the standard the standard is is there animosity in the workplace now if we find that the jury verdict should have for her if she left the position whether because of the ruling by us or just you know some other reason if she left the position she's in right now do you agree that was a positions were created for her that was  to replace her she left with i don't know the answer to that because that that position now handles all criminal trials which is what she did before when she was a district assistant district attorney and so you know the the the number of hours the number of cases mr brennan just tried to make it comparable to what she had  before and there's just during the six months of the provisional reinstatement where the judge made it clear you know if you have any problems you come back to me you let me know and there was absolutely no retort no complaint of anything until we get to appeal when we get to appeal then that's when this whole infeasibility issue came up except they did object to the motion f reinstatement you know because you're asking to reinstate versus get in and ward one point four million if we had not reinstated we would have appealed that that judgment  but since there was free and statement there was no need to because that's what we had moved forward but the fifth circuit precedent is pretty clear that reinstatement is preferred reinstatement is a preferential remedy by far over from pay and as to whether or not she would get the one point four we would submit that the one point four just does not lethal in keeping with fifth circuit precedent no court in the fifth circuit has ever or warded from pay over i believe ten years is the longest but they've looked at it and two years three years four years five years what  on the stand or you're representing a defendant for murder he stab somebody twenty times ok and this crime but it's not legal if the guy was already dead so i mean there is a there is s i would say that there is just no no one no precedent for awarding her that number of years when what you're supposed to look at is her  job the amount of time she spent at different jobs the amount of time she probably would have spent at this job was it likely that she would have been there for twenty two years she's running right now for you know a position she would only stay there as long as this county attorney is in his position if he were maybe maybe not true but has plenty of employees have county attorney and district attorney's offices who remain through numerous a term district and county attorney's office true but the smaller the county the less likely that is when there's a link well that's part of the problem with your feasibility of reinstate small county where a body in there brother parents showed up and said she was incompetent to help out mr canalis and then the jury didn't believe it and they may have looked at that and thought this woman in going to be terribly employed will in this county after all these people have sided with mr canalis so we need to give her basically her life's wages here and i don't know that that's necessarily as a matter of law or wrong analysis top agree you know it smacked of politics because of the way that determination was handled and the people that came into trial would be for the people that had to do or th called the county to the county court last good because we did like question i'm looking at you read brief here and i have been able to find where you have argued that it was plainly error award one point four million dollars in where you've gone through and we have published case law that says if you don't go through the four plane error factors there's no that we're not going to find problem for satisfied if you haven't even bothered to go through the factors where have you gone through in the of the plane ever factors or even told us that plane error is the applicable standard we did not market that ok thank you thank you just a few brief points on rebuttal to kind of logistical record things and the record on appeal beach ten eighty six that's where judge milian his testimony is located regarding and maybe perhaps he didn't use the exact word incompetent but acquainted earning capacity to lost wages and in fact i want to clarify the court there during their submitted jury instructions were in fact limited to lost earning capacity and back pay not expressly from pay nevertheless the question of from pay ended up before the jury without but the argument before this court today is that that a body of law is not applicable here when front page was submitted by consent to the jury and instead the applicable law is gloria vs valley grain products and judge release opinion in winning v jackson state university ok so you're you have to organise on the reinstatement you have a binding jury verdict in your view that's the end of the matter if you're wrong on that then you have the infeasibility ari that's correct your honor but the infeasibility argument don't we judge the district court's findings they're on clearly erroneous because aren't they largely factual they did yes you would you would you would review their findings for clearly erroneous the decision the decision to award reinstatement generally in lieu of from payson is reviewed for an abuse of discretion so those are the two standards applicable to that are and the final point i wanted to discuss was the excessiveness discharge the county was alleging that the jury award was excessive but judgment was not entered on what's the right procedure for them to employ in the district court in our court in the district court as your honor pointed out they could have argued in the alternative in their motion for reinstatement and challenge maybe or include it in their motion for a minute or a request for in the alternative please remit the front pay warden that wasn't done here and then in the response of briefing before this court there was no argument as to clean air so those are some avenues that could have been had at the district court and before this court that were not done and finally the it because excessiveness cannot be challenge here and this was a binding verdict under rule thirty nine c the jury the jury award can't be challenged on  excessiveness now based on her concession that stark county is also liable i mean should the judgment be reformed to reflect that and if we end up saying that the one point i guess your city i guess if we go your way entirely we send it back to enter judgment on one point four million against both stark county and canals that would be if we don't go your way to matter on that i guess that's the point because you're not arguing back case different piece you not arguing that that's correct and back pay is not issue before this court that was not appeal