Opinion
NO. 12-12-00042-CV
08-30-2012
APPROXIMATELY TWENTY-EIGHT THOUSAND AND NINE HUNDRED FIFTY DOLLARS ($28,950.00 IN U.S. CURRENCY), APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Cassius Tillman appeals the trial court's judgment ordering the forfeiture of his currency in the amount of approximately $28,950.00. In two issues, Tillman contends that the trial court erred in (1) denying his motion for new trial and to withdraw deemed admissions and (2) granting summary judgment in favor of the State of Texas based on deemed admissions. We affirm.
BACKGROUND
The State seized approximately $28,950.00 in U.S. currency from Cassius Tillman. Thereafter, the State filed an Original Notice of Seizure and Intended Forfeiture and Request for Disclosure. Approximately one and one-half months after Tillman filed an answer to the suit, the State served him with a request for admissions. The State's request sought, in pertinent part, the following admissions from Tillman:
• Admit that you are the owner of a 2002 Lincoln vehicle bearing license plate TBT521 on May 9, 2011.Tillman failed to respond to the State's request for admissions within thirty days as required.Instead, he responded two days late.
• Admit that you were traveling westbound on interstate 20 on May 9, 2011.
• Admit that you smoked marijuana with Meyakie Kensean Burks in your vehicle on May 9, 2011.
• Admit that marijuana residue was located on the floorboard or on the center console of the 2002 Lincoln vehicle on May 9, 2011.
• Admit that the marijuana residue located on the floorboard could be seen from outside the vehicle.
• Admit that you were in possession of a prohibited weapon, namely brass knuckles, on May 9, 2011.
• Admit that you stated on May 9, 2011, that all currency made the subject of this suit is yours.
• Admit that the currency was in your possession when it was seized.
• Admit that you were transporting currency acquired from the delivery, distribution, or transportation of illegal narcotics.
• Admit that the box of currency made the subject of this suit was located in [sic] had cocaine in it within two months prior to May 9, 2011.
• Admit that the currency made the subject of this suit was acquired from the delivery, distribution, or transportation of cocaine.
• Admit that on May 9, 2011, you questioned law enforcement officers as to how a drug dog could detect cocaine.
See TEX. R. CIV. P. 198.2(a).
On September 28, 2011, the State filed a motion for summary judgment based on Tillman's deemed admissions. The next day, Tillman's attorney sent an email to the State's attorney requesting that the State withdraw its motion for summary judgment and provide her written confirmation that it was waiving the two day delay in Tillman's providing responses to its request for admissions. In her email, Tillman's attorney also related to the State's attorney that Stelly v. Papania, 927 S.W.2d 620 (Tex. 1996) permitted the withdrawal of deemed admissions based on a showing of "good cause."
On November 1, 2011, the trial court granted the State's motion for summary judgment. Thereafter, Tillman filed a Motion for New Trial and Motion to Withdraw Deemed Admissions. On December, 20, 2011, the trial court conducted a hearing on Tillman's motions and, on December 28, 2011, denied the motions. This appeal followed.
D EEMED A DMISSIONS
In his first issue, Tillman contends that the trial court abused its discretion in denying his Motion for New Trial and Motion to Withdraw Deemed Admissions. Standard of Review and Applicable Law
A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. Stelly, 927 S.W.2d at 622. An appellate court should set aside the trial court's ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion. Id. A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).
A party may serve on another party—no later than thirty days before the end of the discovery period—written requests that the other party admit the truth of any matter within the scope of discovery, including statements of opinion or a fact or of the application of the law to fact. See TEX. R. CIV. P. 198.1. When a party does not return answers to a request for admissions within thirty days, the matters in the request are deemed admitted against that party. Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998); see also TEX. R. CIV. P. 198.2(c) ("If a response is not timely served, the request is considered admitted without the necessity of a court order."). A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. TEX. R. CIV. P. 198.3. Withdrawal of deemed admissions is permitted upon a showing of good cause and a finding by the trial court that (1) the party relying upon the deemed admissions will not be unduly prejudiced and (2) presentation of the merits of the action will be served. See id.; Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Good cause is established by a showing that the nonresponding party's failure was the result of an accident or mistake, not intentional or the result of conscious indifference. See Wheeler, 157 S.W.3d at 442 (citing Stelly, 927 S.W.2d at 622).
Admissions of fact on file at the time of a summary judgment hearing are proper summary judgment proof and will support a motion for summary judgment. Acevedo v. Comm'n for Lawyer Discipline, 131 S.W.3d 99, 105 (Tex. App.-San Antonio 2004, pet. denied). A party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment based on deemed admissions waives its right to raise any arguments or issues postjudgment. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008). Issues not expressly presented to the trial court by written notice, answer, or other response shall not be considered on appeal as grounds for reversal. Id. Equitable principles that permit arguments to withdraw deemed admissions to be raised in a motion for new trial do not apply if the party against whom admissions were deemed is shown to have realized its mistake before judgment and has other avenues of relief available to it. See id. (citing Wheeler, 157 S.W.3d at 442). Analysis
The day after receiving the State's motion for summary judgment, Tillman's attorney acknowledged the gravity of her client's position as a result of his failure to timely respond to the State's request for admissions. Tillman's attorney's acknowledgement was evident in her request to the State's attorney that he withdraw the State's motion for summary judgment and provide her written confirmation that the State was waiving the two day delay in Tillman's providing responses to its requests for admissions. Tillman's attorney undoubtedly had notice of the summary judgment deadlines. And by noting the applicability of the Stelly case in her email to the State's attorney, it is apparent that she realized it was necessary that Tillman make a showing of good cause in order to have his deemed admissions withdrawn. Inexplicably, however, Tillman's attorney did not follow through with what the record indicates she knew needed to do be done, i.e., file a motion to withdraw Tillman's deemed admissions. Consequently, she never sought the avenue of relief provided by Stelly before the trial court entered summary judgment against Tillman. See Stelly, 927 S.W.2d at 622.
Nonetheless, Tillman contends that the trial court should have applied the equitable principles applied by the supreme court in Marino v. King, 355 S.W.3d 629 (Tex. 2011) and Wheeler. Both of these cases involved pro se defendants who had summary judgments entered against them based upon deemed admissions. See Marino, 355 S.W.3d at 630; Wheeler, 157 S.W.3d at 441. In each case, the pro se defendant was mistaken regarding summary judgment procedure. See Marino, 355 S.W.3d at 633; Wheeler, 157 S.W.3d at 442. As a result, the only action these pro se defendants took in opposition to summary judgment was to attend the summary judgment hearing. See Marino, 355 S.W.3d at 633; Wheeler, 157 S.W.3d at 442. In each case, the supreme court granted relief on the appellants' respective postjudgment motions to withdraw deemed admissions. See Marino, 355 S.W.3d at 633-34; Wheeler, 157 S.W.3d at 443.
When a rule turns on an actor's state of mind, application of the rule may require a different result when the actor is not a lawyer. See Wheeler, 157 S.W.3d at 444. Equitable principles allowing arguments concerning deemed admissions to be raised in a motion for new trial do not apply when the party realizes its mistake before judgment and has other avenues of relief available. Id. at 442.
Here, there is evidence of Tillman's attorney's state of mind. She acknowledged in her September 29 email to the State's attorney what Tillman's avenue of relief was. See Stelly, 927 S.W.2d at 622. Based on this acknowledgement, it is apparent that she knew time was of the essence if she desired to have Tillman's deemed admissions withdrawn before the State's motion for summary judgment was decided. In spite of her knowledge of what needed to be done, she took no action to establish good cause as to why Tillman's responses to the State's request for admissions were not timely filed. Because of this inaction, Tillman has waived his right to raise the issue in a postjudgment motion. See Unifund CCR Partners, 262 S.W.3d at 798. Accordingly, we hold that the trial court did not abuse its discretion in denying Tillman's Motion for New Trial and Motion to Withdraw Deemed Admissions. Tillman's first issue is overruled.
LEGAL SUFFICIENCY OF SUMMARY JUDGMENT
In his second issue, Tillman contends that the trial court erred in granting summary judgment in the State's favor. Standard of Review
We review the trial court's summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant must establish its right to summary judgment on the issues expressly presented to the trial court by conclusively proving all elements of the movant's cause of action or defense as a matter of law. Rhone-Poulenc, Inc. v. Steel, 990 S.W.2d 217, 223 (Tex. 1999). Because a motion for summary judgment must stand on its own merits, the nonmovant may argue on appeal that the movant's summary judgment proof is insufficient as a matter of law, even if the nonmovant filed no response to the motion. Haden v. David J. Sacks, PC, 332 S.W.3d 503, 511 (Tex. App.-Houston [1st Dist.] 2009, no pet.). Statements that are nothing more than legal conclusions are not sufficient to support a summary judgment as a matter of law because they reduce to a legal issue a matter that should be resolved by relying on facts. Id. at 512. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). We must affirm the summary judgment if any of the theories presented to the trial court are meritorious. Provident Life & Acc. Ins. Co., 128 S.W.3d at 216. Applicable Law
For the State to prevail on its forfeiture claim, it was required to prove that the money was contraband and, thus, was subject to forfeiture to the State. See $43,774.00 U.S. Currency and 1997 Model Pontiac Grand Prix, VIN #1G2WP12K7VF323349 v. State, 266 S.W.3d 178, 182 (Tex. App.-Texarkana 2008, pet. denied). Chapter 59 of the Texas Code of Criminal Procedure authorizes the state to pursue the forfeiture of funds that constitute proceeds from illegal drug trafficking. See TEX. CODE CRIM. PROC. ANN. art. 59.01-59.14 (West 2006 & Supp. 2011). Property, including currency, is subject to seizure and forfeiture if it is found to be contraband. TEX. CODE CRIM. PROC. ANN. art. 59.02(a). Contraband is property used or intended to be used in the commission of certain felonies or proceeds derived from those felonies. See $43,774.00 U.S. Currency and 1997 Model Pontiac Grand Prix, VIN #1G2WP12K7VF323349, 266 S.W.3d at 182. Contraband may also be money that is derived from or intended for use in manufacturing, delivering, selling, or possessing a controlled substance, and is, therefore, subject to forfeiture. See id. Cocaine is a controlled substance. See Tex. Health & Safety Code Ann. art. 481.102(3)(d) (West 2010).
In analyzing the evidence in a forfeiture case, we consider the following factors: (1) the proximity of the money to the drugs and to evidence of drug trafficking; (2) evidence the money was previously in contact with drugs, e.g., through a canine alert; (3) suspicious activity consistent with drug trafficking; (4) the amount of money at issue; and (5) the presence of expert testimony indicating there was probable cause to seize the property subject to forfeiture, e.g., that a substantial connection exists between the property to be forfeited and the criminal activity. $43,774.00 U.S. Currency and 1997 Model Pontiac Grand Prix, VIN #1G2WP12K7VF323349, 266 S.W.3d at 186. Analysis
In the case at hand, Tillman's deemed admissions established that $28,950.00 was in a box that previously had been in contact with cocaine. Further, Tillman admitted that he inquired of the officer regarding how a drug dog could detect cocaine. Tillman's admissions further established that Tillman engaged in suspicious activity consistent with drug trafficking, including his use of an illegal drug and his possession of a prohibited weapon. The amount of money being transported in a box may not have been a conclusive factor, but may still be considered. Id. Accordingly, we conclude that the summary judgment evidence, including Tillman's deemed admissions, establish the State's right to summary judgment. See TEX. R. CIV. P. 166(a)(c); Acevedo, 131 S.W.3d at 105. Therefore, we hold the trial court did not err in entering summary judgment for the State. Tillman's second issue is overruled.
DISPOSITION
Having overruled Tillman's first and second issues, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.