5/22/2014 11:00:00 AM,
Jeff D. Gorman
(CN) - A Texas football coach must face negligence and assault claims from the college mascot he allegedly punched at a tailgate party, an appeals court ruled.
Sam Houston State University student Alexias Bell said she portrayed the Bearkats' inflatable mascot named Airkat in 2008.
She said Thomas Inman was driving her on a four-wheeler to a tailgate party on Aug. 28 before a game against the Tigers of East Central University, Oklahoma.
When Inman allegedly ran into Tigers head coach Kurt Nichols, Nichols punched Bell and knocked her off the vehicle.
Bell sued Inman for negligence and Nichols for assault and battery, negligence and intentional infliction of emotional distress.
Days before the start of an October 2012 jury trial in Walker County District Court, Bell's attorney withdrew from the case and Bell represented herself for a time.
Bell filed objections to the use of a visiting judge for a hearing that was supposed to occur on Dec. 28, 2012, and did not attend court that day.
Attorneys for the other parties were there, however, and the visiting judge cited Bell's objections in calling off the hearing.
"We'll get you reset and come back and have this hearing before the court," the visiting judge said.
The defendants then asked to dismiss the case based on Bell's absence, which was set for a hearing on March 26, 2013.
Bell's new attorney responded to the motion to dismiss on March 20, but the trial court granted the motion to dismiss at the March 26 hearing.
The Waco-based 10th District Texas Court of Appeals reversed the dismissal on April 24.
"It is undisputed that the Dec. 28 hearing did not take place because of Bell's objection to the visiting judge; at the March 26 hearing, the trial court even acknowledged that the Dec. 28 hearing was 'reset to today,'" Judge Rex Davis wrote for the court. "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 Tigers lost that Aug. 28, 2008, game, 58-14, and Nichols was fired after the season with a three-year record of 7-25. He is now the offensive line and strength coach for the Blinn College Buccaneers.