WACO (April 25, 2014) The 10th Court of Appeals in Waco has revived a lawsuit filed by former Sam Houston State University mascot Alexias Bell, who alleges that an opposing team’s head football coach punched her in the face in 2008 while she was wearing her inflatable “Airkat” costume before a game.
The suit names former East Central Oklahoma Head Coach Kurt Nichols and former student Thomas Inman, who the suit says was driving a four-wheeler on which Bell was riding to a pregame event on August 28, 2008 in Huntsville.
The suit alleges that Inman ran into Nichols, who then punched Bell, causing her to fall off of the four-wheeler.
East Central lost the game 58-14.
Nichols was told two months later he wouldn’t be back for a fourth season after leading the team to a 7-25 record in three seasons.
In 2010 Bell sued Inman for negligence and Nichols for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.
The trial court dismissed the suit, however, after the attorneys representing the two defendants convinced the judge that Bell failed to comply with an instruction about a hearing date.
In her appeal, however, Bell successfully argued that she was not properly notified of the dismissal hearing and, therefore, was not given an opportunity to argue on the dismissal.
In its order the 10th Court said denying the plaintiff her right to argue on the dismissal was reversible error.
The suit was originally scheduled for jury trial on Oct. 1, 2012, but a week before the trial was to start, Bell’s attorney filed a motion to withdraw, the 10th Court ruling says.
Bell sought a continuance, which was granted and the trial was reset for Dec. 28, 2012, although no order to that effect appeared in the case record, the appeals court said.
Then, on Dec. 27, 2012, after learning a visiting judge would conduct the hearing, Bell filed an objection and, according to an attorney she later retained, a court clerk told her she didn’t have to appear and should notify defense attorneys, the appeals court said.
Bell’s attorney said she did that by 5 p.m. that day, leaving phone messages, but defense attorneys claimed the calls weren’t made, the ruling said.
Whatever the case, “It is undisputed that a hearing did not take place on December 28,” the ruling said.
The defense attorneys filed a joint motion seeking dismissal of the suit because Bell failed to appear at the hearing on Dec. 28, 2012, and a hearing on the motion was set for March 26, 2013.
Bell, in the meantime, retained a new attorney who filed a document on March 20 that included a response to the motion to dismiss and a request for referral to mediation, but on March 26 the court dismissed the suit.
The appeals court, however, ruled the court failed to state the grounds for dismissing the lawsuit.
“We conclude that the trial court abused its discretion by granting the motion to dismiss, which was based solely on Bell’s failure to appear at a hearing that did not take place,” the ruling said.
“We reverse the trial court's dismissal order and remand this case for further proceedings consistent with this opinion," the court's decision said.