CASE NO CV

Transcription

1 CASE NO CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JIM KAELIN, Appellant, v. ROSE CRAGO, Appellee. APPELLEE ROSE CRAGO S BRIEF Bradford M. Condit, Attorney for Appellee Rose Crago State Bar No Federal I.D. No North Tancahua Corpus Christi, Texas Voice: Fax:

2 II. TABLE OF CONTENTS II. Table of Contents i III. Index of Authorities ii IV. Statement of Oral Argument iii V. Statement of Facts VI. Summary of the Argument VII. Argument and Authorities for Issue One The Trial Court did not err in denying Appellant s motion to dismiss for lack of jurisdiction. VIII. Argument and Authorities for Issue Two There was sufficient evidence establishing the value of the property for the court to determine damages. Standard of Review IX. Prayer for Relief X. Certificate of Compliance XI. Certificate of Service

3 III. INDEX OF AUTHORITIES Case Law Authorities Abercia v. Kingvision Pay-Per-View, Ltd, 217 S.W.3d 688, 694 (Paso 2007) Bay, Inc. v. Ramos, 139 S.W.3d 322, 329 (Tex. App.--San Antonio 2004, pet.denied Cameron County v. Tompkins, 422 S.W.3d 789 (Tex.App. -- Corpus Christi 2013) Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983) Forge v. Nueces County, 350 S.W.3d 740 (Tex.App. -- Corpus Christi 2011) GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, (Tex.App.-- Houston [14th Dist.] 2001, pet. denied Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.--Corpus Christi 1990, writ denied) Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) Prairie View A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012) Roccaforte v. Jefferson County, 341 S.W.3d 919, 54 Tex.Sup.Ct.J. 900 (Tex. 2011) Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002) Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, (Tex. 2004) Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994) ii.

4 Statutes and Rules Tex.Local Gov t Code Sec , 8, 9, 10 Tex.Civ.Prac. & Rem. Code Sec , 6, 7, 8, 9, 10 Tex.Local Gov t Code sec Tex.Local Gov t Code sec (a) Tex.Gov.Code sec Tex.Local Gov t Code, sec , 6, 7, 8, 10 Tex.Gov t.code sec (3) , 9 Tex.Gov t.code sec (4) , 9 Tex.Gov t Code Sec (1) , 10 Tex.Gov t Code Sec (5) , 10 Tex.Gov t Code Sec (7) , 10 IV. STATEMENT OF ORAL ARGUMENT Oral argument is not requested. iii.

5 V. STATEMENT OF FACTS Appellant s statement is not contested except for the following additional facts. A few weeks after trial 1 Appellant challenged the court s jurisdiction and raised for the first time after two years of litigation 2 lack of jurisdiction. 3 This case has already been reversed and remanded by this court. 4 The Nueces County Commissioner s Court considered and took no action regarding Rose s claim six times over a two-year period of time 5. 1 st time: March 19, Consulted with county attorney about Rose s claim; 2 nd time: August 20, Consulted with county attorney about Rose s claim; 3 rd time: December 3, Consulted with county attorney about Rose s claim; 4 th time: February 24, Consulted with county attorney about Rose s claim; 5 th time: March 9, Consulted with county attorney about Rose s claim; 6 th time: March 23, Consulted with county attorney about Rose s claim. 1 1 Non-jury bench trial February 26, Suit was filed on January 31, 2014 (CR 5). 3 Kaelin s Mtn to Dismiss for Lack of Jurisdiction was filed on March 2, (CR 38) 4 See, CV. Opinion dated October 8, RR Exhibit Vol. 5; Ex. 1, 2, & 3, pp

6 Appellant s uncontested and unchallenged evidence from her realtor expert was that in 2012 the property had a value of $178, VI. SUMMARY OF THE ARGUMENT The presentment statute, Local Gov t Code sec , because is only applies to governmental entities, which Appellant is not, and is not jurisdictional because the two liability statutes do not have pre-suit notice requirements. There was sufficient evidence to support the court s determination of damages based on the unchallenged fair market value opinion of an expert relator. VII. ARGUMENT AND AUTHORITIES FOR ISSUE ONE Issue: The trial court did not err in denying Appellant s motion to dismiss for lack of jurisdiction. Question: Is Local Gov t Code sec jurisdictional or merely a presentment statute? Answer: Firstly, this section does not apply to Appellant s causes of action. Secondly, this is merely a presentment statute which if not timely raised and asserted is waived -- it is not jurisdictional. Local Gov t Code, sec provides that: The Statute Sec PRESENTATION OF CLAIM. (a) Except as provided by Subsection (c), a person may not file suit on a claim against a county or an elected or appointed county official in the official's capacity as an appointed or elected official unless the person has presented the claim to the 2 6 RR. Vol. Ex. 5, pp

7 commissioner s court and the commissioners court neglects or refuses to pay all or part of the claim before the 60th day after the date of the presentation of the claim. (b) If the plaintiff in a suit against a county does not recover more than the commissioners court offered to pay on presentation of the claim, the plaintiff shall pay the costs of the suit. (c) A person may file a suit for injunctive relief against a county. After the court's ruling on the application for temporary injunctive relief, any portion of the suit that seeks monetary damages shall be abated until the claim is presented to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim by the 60th day after the date of the presentation of the claim. Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, Renumbered from Sec by Acts 1999, 76th Leg., ch. 62, Sec (b), eff. Sept. 1, Amended by Acts 2003, 78th Leg., ch. 1203, Sec. 1, eff. Sept. 1, st case law authority (13 th Court of Appeals): Case Law Authority The Texas Supreme Court has held that section 's presentment requirement is mandatory but not jurisdictional. See Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998); see also Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex.2002); Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 249 (Tex.2002). It "merely establishes a condition precedent to suit." Pelzel & Assocs., 77 S.W.3d at 249 (citing Farmers State Bank of New Boston v. Bowie County, 127 Tex. 641, 95 S.W.2d 1304, 1306 (1936)). "The remedy for a party's failure to present its claim to the Commissioner's Court prior to filing its lawsuit [is] not dismissal of the lawsuit but abatement." C. Green Scaping, 301 S.W.3d at 877 (citing Trammel's Lubbock Bail Bonds, 80 S.W.3d at 584). [emphasis added] Forge v. Nueces County, 350 S.W.3d 740 (Tex.App. -- Corpus Christi 2011) 3

8 2 nd case law authority (13 th Court of Appeals): C. Local Government Code Section By their second sub-issue, the County and County Officials argue the Tompkinses' alleged failure to comply with the pre-suit notice requirements of Texas Local Government Code section is a jurisdictional bar to their claims in this lawsuit. In pertinent part, the current version of section provides as follows: (a) Except as provided by Subsection (c), a person may not file suit on a claim against a county or an elected or appointed county official in the official's capacity as an appointed or elected official unless the person has presented the claim to the commissioners court and the commissioners court neglects or refuses to pay all or part of the claim before the 60th day after the date of the presentation of the claim..... (c) A person may file a suit for injunctive relief against a county. After the court's ruling on the application for temporary injunctive relief, any portion of the suit that seeks monetary damages shall be abated until the claim is presented to the commissioner s court and the commissioners court neglects or refuses to pay all or part of the claim by the 60th day after the date of the presentation of the claim. Tex. Local Gov't. Code Ann (a), (c) (West 2008). Section is a presentment statute that promotes settlement by allowing a county commissioners court an opportunity to investigate a claim and adjust it without litigation. See Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1998) (discussing presentment statute). The presentment statute and its predecessors " date back well over one hundred years." Id. at 188. The County and County Officials have not briefed whether the current version of section is applicable to this lawsuit. See Tex. R. App Instead, they assume it applies. However, the enabling legislation for the statute states, "This Act applies only to a claim arising under a contract executed on or after September 1, A claim that arises under a contract executed before September 1, 2003, is governed by the law as it existed on the date the contract is executed, and the former law is continued in effect for that purpose." [13] See 4

9 Section 4(b) of Acts 2003, 78th Leg., ch The claims at issue in this litigation arise under deeds executed in 1952 and 1958, respectively. Assuming without deciding that section or its predecessor statute applies to the Tompkinses' inverse-condemnation claim, we hold it is not a jurisdictional bar to the Tompkinses' inverse-condemnation claim, see Forge v. Nueces County, 350 S.W.3d 740, 745 (Tex. App.--Corpus Christi 2011, no pet.), and that the County waived its right to demand compliance with the presentment statute because it waited until after the purposes of the presentment statute--to promote settlement and avoid litigation--were defeated to invoke the statute, see Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 374 (Tex. App.--Corpus Christi 1999, no pet.). Rather than invoking the presentment statute at the time of filing their answer or shortly thereafter, the County and County Officials litigated this case on the merits for well over a year before arguing the Tompkinses failed to present the inverse-condemnation claim to the commissioners court for payment prior to filing suit. See id. The County filed motions for summary judgment, filed multiple pleadings, and participated in numerous hearings on the merits before raising this argument. [emphasis supplied] Cameron County v. Tompkins, 422 S.W.3d 789 (Tex.App. -- Corpus Christi 2013) 3 rd case law authority (Texas Supreme Court): See Loutzenhiser, 140 S.W.3d at 359 ("The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived." ). We find no basis upon which to conclude that the Legislature intended section to be jurisdictional. Roccaforte v. Jefferson County, 341 S.W.3d 919, 54 Tex.Sup.Ct.J. 900 (Tex. 2011) Application of Law 1 st Premise The first observation is that liability against Appellant was based on Local Gov t Code, Sec and Tex.Civ.Prac. & Rem. Code Sec which, in summary, provide that if a 5

10 sheriff fails in his duty to levy on property of a debtor or makes a false return damages can be assessed against him individually. 7 No county can be held liable under these statutes; however, Local Gov t Code sec provides that at a commissioner court s discretion a county,... may pay any judgment taken against an officer under sec Notably, sec grants a commissioner s court authority to pay a judgment only not a claim under sec The statute only refers to a judgment. It would be silly to read sec (a) as applying to a claim under sec when it is impossible for a county to pay under the authority of sec unless there is judgment against a sheriff. Additionally, Appellant s position is that a creditor must first present a claim to a commissioner s court even though liability is not and cannot be imposed on a county a county has no legal liability for Local Gov t Code. Sec or Tex.Civ.Prac. & Rem. Code Sec violations. Legislative acts can be presumed to not require futile actions that have no meaningful purpose. 2 nd Premise Appellant cites Tex.Gov.Code sec as authority that the presentment of claim statute, Local Gov t Code, sec , is jurisdictional. This statute states: Sec WAIVER OF SOVEREIGN IMMUNITY. In order to preserve the legislature's interest in managing state fiscal matters through the 6 7 Appellant is the beneficiary of a Public Official s performance bond. (RR. Vol. 5; Ex. 2, pp ) 8 Sec PAYMENT OF DAMAGES. A county, at the discretion of the commissioner s court, may pay any judgment taken against an officer under Section 7.001, , , , , , or or under Section , Local Government Code, provided that this section does not apply if the officer is finally convicted under Section or 39.03, Penal Code. Added by Acts 2007, 80th Leg., R.S., Ch. 421 (S.B. 1269),

11 appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language. In a statute, the use of "person," as defined by Section to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity. Added by Acts 2001, 77th Leg., ch. 1158, Sec. 8, eff. June 15, Amended by: Acts 2005, 79th Leg., Ch (H.B. 2988), Sec. 1, eff. September 1, The specific language of the statute only applies,... in all suits against a governmental entity. Appellant Jim Kaelin is not a governmental entity. Also, the first sentence of the statute states its purpose and in no way could the individual liability of Appellant have any relationship to preserving,... the legislature s interest in managing state fiscal matters through the appropriations process... Tex.Gov t.code sec (3) &(4), Intention In Enactment Of Statutes, states: In enacting a statute, it is presumed that:... (3) a just and reasonable result is intended; (4) a result feasible of execution is intended... To apply the presentment of claim statute, Local Gov t Code, sec to a Local Gov t Code, Sec or a Tex.Civ.Prac. & Rem. Code Sec judgment would not meet these provisions objectives. follows: Also, Tex.Gov t Code Sec (1), (5) & (7), Statute Construction Aids, provides as In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: 7

12 (1) object sought to be attained... (5) consequences of a particular construction... (7) title (caption), preamble, and emergency provision. Local Gov t Code, sec Appellant seeks to have this court declare is jurisdictional plainly states its purpose in its title/caption, PRESENTATION OF CLAIM. It is worth noting what the three statutes 9 do not say no statute says, unless a claim is presented to a sheriff the courts do not have jurisdiction under either Local Gov t Code, Sec or Tex.Civ.Prac. & Rem. Code Sec Lastly, Abercia v. Kingvision Pay-Per-View, Ltd, 217 S.W.3d 688, 694 (Paso 2007) is a case where a sheriff was held liable for failing to levy on the property of a debtor. The court held: Issue One, Appellants argue the trial court lacked jurisdiction over the action because Kingvision failed to give notice of its suit against a county official in his official capacity as mandated by Tex.Loc.Gov't Code Ann (Vernon Supp. 2006). Appellants assert that since notice to governmental entities and officials sued in their official capacities is a jurisdictional requisite under Tex.Gov't Code Ann , the trial court lacked subject matter jurisdiction over the proceeding and this Court must vacate the court's judgment and dismiss the action. We reject Appellants' argument for two reasons. First, Section is not applicable because this action was a statutory proceeding brought pursuant to Tex.Civ.Prac.& Rem.Code Ann and , not a "suit" against a governmental entity. See Tex.Civ.Prac. & Rem.Code Ann ; see also Hickey, 797 S.W.2d at 107 n Those three statutes being: Local Gov t Code sec , CPRC sec and Gov t Code sec

13 3 rd Premise, Cases Cited By Appellant Appellant quotes Prairie View A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012) as authority to support its position that pre-suit notice to governmental entities is jurisdictional. 10 Again, Appellant Jim Kaelin is not a governmental entity. Additionally, the statute at issue in Prairie View involved the comprehensive pre-suit administrative process of the Texas Commission on Human Rights Act (TCHRA). This act obligates a claimant to file a complaint with the Texas Workforce Commission civil rights division (TWC) or the Equal Employment Opportunity Commission (EEOC) not later than the 180th day after the date an allegedly unlawful employment practice occurs. There is no such statutory provision in the relevant statutes, Local Gov t Code sec or CPRC sec ; therefore, Prairie View simply does not apply. On page 17 of Appellant s brief he states that the sec Presentment Statute s intent is, intended to advised the commissioner s court of [a] claim and afford it an opportunity to investigate and adjust it without litigation. As was previously stated, a commissioner s court has no liability under either Local Gov t Code sec or CPRC sec , and it has no authority to pay any claim based on those statutes unless and until a judgment is entered against a sheriff. Tex.Gov t.code sec (3) & (4), Intention In Enactment Of Statutes, states: In enacting a statute, it is presumed that:... (3) a just and reasonable result is intended; 9 10 Appellant s brief pg. 13.

14 (4) a result feasible of execution is intended... To apply the presentment of claim statute, Local Gov t Code, sec to a Local Gov t Code, Sec or a Tex.Civ.Prac. & Rem. Code Sec judgment would not meet these provisions objectives. Also, Tex.Gov t Code Sec (1), (5) & (7), Statute Construction Aids, provides: In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: (1) object sought to be attained... (5) consequences of a particular construction These two provisions of the law would have to be ignored to have it Appellant s way. VIII. ARGUMENT AND AUTHORITIES FOR ISSUE TWO Issue: There was sufficient evidence establishing the value of the property for the court to determine damages. It is unclear what Appellant s position is. It may be that Appellant wants CPRC to be re-written to require evidence from a creditor of an actual buyer who would have purchased the property at an auction in 2012 an impossibility. No case has ever required such evidence. When a party attacks the factual sufficiency of the evidence as to an issue on which it did not have the burden of proof, the party must demonstrate that the evidence is insufficient; that is, that the evidence supporting the finding is so weak that the finding is clearly wrong and manifestly unjust. Bay, Inc. v. Ramos, 139 S.W.3d 322, 329 (Tex. App.--San Antonio 2004, pet. 10

15 denied); Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.--Corpus Christi 1990, writ denied). Standard of Review Findings of fact in a bench trial have the same force and dignity as a jury's verdict upon questions and are reviewed for legal and factual sufficiency of the evidence by the same standards. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In an appellate review the evidence is considered in a light that tends to support the court s finding and disregard all evidence and inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002). A no-evidence challenge is sustained only when: (1) the record discloses the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The evidence is no more than a scintilla "[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence..." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla exists when the evidence "rises to a level that would enable reasonable and fairminded people to differ in their conclusions." Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). When reviewing the factual sufficiency of the evidence supporting an adverse finding 11

16 upon which the party did not have the burden of proof, the appellant must show that the evidence is insufficient to support the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). An appellate court may not substitute its judgment for that of the trier of fact nor pass upon the credibility of the witnesses. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); see also GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, (Tex.App.-- Houston [14th Dist.] 2001, pet. denied)(trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony). After considering and weighing all the evidence, the appellate court will only set aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Ellis, 971 S.W.2d at ; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). When appealing the factual sufficiency of the evidence supporting an adverse finding on which the party had the burden of proof, the appellant must show that the adverse finding is against great weight and preponderance of the evidence. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, (Tex. 2004); Francis, 46 S.W.3d at 242. Review of Evidence Appellant s uncontested and unchallenged evidence from her realtor expert was that in 2012 the property had a value of $178, It was reasonable and fair-minded for the court to conclude that a buyer would have purchased the property at a sheriff s sale for $178, RR. Vol. Ex. 5, pp

17 In Hickey this court affirmed liability of a sheriff based solely on the fair market value of the property that that debtor absconded with after lying about filing bankruptcy. After an exhaustive review of case law no case was found in support of Appellant s theory and all relevant cases were decided on evidence of fair market values. Appellee prays the court: IX. PRAYER FOR RELIEF 1. Affirm the trial court's judgment in whole; alternatively 2. Affirm the trial court's judgment in part; alternatively 3. Remand for a new trial, and 4. Award her costs of court. Law Office of Bradford M. Condit 401 N. Tancahua Corpus Christi, Texas Voice: (361) Fax: (361) By: /s/ Bradford M. Condit State Bar No

18 X. CERTIFICATE OF COMPLIANCE Pursuant to Tex.R.App.P. 9.4(i)(3) the number of words in Appellee's computer generated brief totals 3,486 (14 pages) which is the word count of the computer program used to prepare the document. /s/ Bradford M. Condit XI. CERTIFICATE OF SERVICE By affixing my signature below, I certify that a true copy of the foregoing document was delivered to the following attorneys in accordance with the Texas Rules of Civil Procedure, e-filing, on October 19, 2016: Ms. Jenny Boyd Attorney for Appellee Nueces County Sheriff Jim Kaelin 901 Leopard, Room 207 Corpus Christi, Texas Voice: 361/ Fax: 361/ jenny.boyd@nuecesco.com /s/ Bradford M. Condit 14