Opinion
NO. 14-16-00524-CV
06-01-2017
RONALD SCOTT CATT, Appellant v. CHRISTOPHER DELOZIER AND CLIFFORD J. VACEK, Appellees
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 16-DCV-229074
MEMORANDUM OPINION
Ronald Scott Catt pleaded guilty to an aggravated robbery and was sentenced in December 2013. In January 2016, he sued the appellees—the judge and prosecutor from the robbery case. Liberally construing his petition, Catt alleges that after his property was seized pursuant to a search warrant, the appellees forfeited his property under the civil forfeiture chapter without providing the required notice and an opportunity to be heard. Thus, Catt alleges that the appellees violated his right to due process under the United States Constitution. Catt seeks an injunction for the release of all seized property.
Catt filed a motion for recusal, and the regional presiding judge denied the motion without a hearing. The appellees filed a motion to dismiss under Chapter 14 of the Texas Civil Practice and Remedies Code, while Catt filed a motion for summary judgment based on deemed admissions. The trial court granted the Chapter 14 motion without a hearing and signed a final judgment dismissing the suit with prejudice. On appeal, Catt challenges the presiding judge's denial of the recusal motion, the trial court's granting of the Chapter 14 motion, and the court's failure to rule on the motion for summary judgment.
Catt presents the following issues:
1) Trial court erred in applying the law when it ignored the law. 2) Trial court erred in weighing evidence. Facts have been established conclusively and there are no fact issues. 3) Trial court abused its discretion when: refusing to hold hearing and rule on properly filed motions, objections and requests; dismissing suit with prejudice, and without hearing under Chapter 14 of the Civ. Prac. & Rem. Code; denying motion to recuse judge without hearing; and denying Appellant his right to a jury trial.Catt presents argument on these issues together in a single argument section. His issues appear multifarious because they embrace more than one specific ground of error, but we will consider the issues in the interest of justice to the extent we can determine with reasonable certainty the alleged errors. See Garden Ridge, L.P. v. Clear Lake Center, L.P., 504 S.W.3d 428, 444 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
We affirm.
I. MOTION TO RECUSE
Catt contends that the trial court abused its discretion by refusing to hold a hearing before ruling on a motion to recuse. He contends that he was entitled to a hearing to develop a record in support of his motion. Appellees contend that the presiding judge correctly denied the motion without a hearing because Catt did not identify specific facts supporting the request to recuse, and because the motion was not verified. Catt responds that he filed several documents to supplement the original motion, and these documents were "dispositive of Appellee's [sic] claim of insufficient facts and verification."
A. Standard of Review and Legal Principles
We review an order denying a motion to recuse only for an abuse of discretion. Tex. R. Civ. P. 18a(j)(1)(A). Rule 18a provides that a motion to recuse:
(1) must be verified;
(2) must assert one or more of the grounds listed in Rule 18b;
(3) must not be based solely on the judge's rulings in the case; and
(4) must state with detail and particularity facts that:
Tex. R. Civ. P. 18a(a). A presiding judge may deny the motion to recuse without an oral hearing if the motion does not comply with Rule 18a. See Tex. R. Civ. P. 18a(g)(3)(A).(A) are within the affiant's personal knowledge, except that facts may be stated on information and belief if the basis for that belief is specifically stated;
(B) would be admissible in evidence; and
(C) if proven, would be sufficient to justify recusal or disqualification.
As relevant here, Rule 18b includes the following grounds for recusal (1) the judge's impartiality might reasonably be questioned; (2) the judge has a personal bias or prejudice concerning the subject matter or a party; and (3) the judge has personal knowledge of disputed evidentiary facts concerning the proceedings. See Tex. R. Civ. P. 18b.
B. The Motion and Order
Catt filed an unverified recusal motion on the same day as his petition. Without identifying Judge Elliott by name, he alleged the following grounds for recusal:
1) Judge has a vested interest in a negitive [sic] outcome of the Declaratory Judgment and Injunctive order therefore, impartiality is in question. 2) Judge has previously disregarded Plaintiffs [sic] challenges of a jurisdictional defect and; Judges [sic] current staff (potential witnesses) may be held over from Defendant #2 staff, thus having personal bias and prejudice concerning this subject-matter. 3) Judge has access and personal knowledge of disputed evidentiary facts concerning the proceedings.Judge Elliott declined to recuse himself and instead referred the case to the regional presiding judge. See Tex. R. Civ. P. 18a(f) (requiring the respondent judge to either recuse or refer the motion to the regional presiding judge).
On February 24, 2016, without holding a hearing, the presiding judge signed an order denying the motion. The presiding judge wrote:
The Court has reviewed the motion and determined that whereas the motion states possible grounds for recusal, it does not meet the Rule's requirements that a recusal motion must state "with detail and particularity facts that [] are within the affiant's personal knowledge or on information and belief" . . . and "would be admissible in evidence; and [] if proven would be sufficient to justify recusal or disqualification." See Tex. R. Civ. P. 18a(a)(4)(A-C).(alterations and omission in original).
Also the motion is not verified as required by Rule 18a(a)(1) Tex. R. Civ. P.
On the same day, Catt filed a document titled "Plaintiff Objection - Second Response," which included an unsworn declaration. Responding to the appellees' contentions that Catt had not verified his recusal motion and alleged facts in support of the motion, Catt alleged as follows:
Catt purportedly "executed" the document on February 22. The envelope is postmarked February 24. The document is file-stamped February 25.
Judge Ruiz was the Associate Judge of both the 268th and 400th District Courts. The appearance of Plaintiff, on January 10, 2014, is the conflicting connection to both courts. Judge of 268th District Court has; 1) Vested interest of negative outcome in protecting jurisdiction of sister court, 400th District Court; 2) Personal bias or prejudice concerning this subject-matter. A ruling in favor of Defendants protects Ft. Bend County collegues [sic] and sister court. 3) Access and personal knowledge of disputed evidentiary facts concerning the court records, transcripts and personal conversations with Defendants and Judge Ruiz, concerning prior and ongoing proceedings.Catt attached an "affidavit," which included an unsworn declaration, wherein he alleged as follows:
On January 3, 2014, I appeared before Associate Judge Ruiz. I informed Judge Ruiz of the failure of the attorney representing the state (DeLozier) to file notice 59.04 T.C.C.P [sic] Judge Ruiz stated he would conduct a fact finding investigation [sic] On January 10, 2014, I again appeared before Judge Ruiz for results of the investigation. Judge Ruiz then informed me the state has in fact failed to file the notice of seizure and intended forfeiture, art. 59.04 T.C.C.P. these [sic] appearances are part of and may be verified from the record.
C. No Abuse of Discretion
For purposes of this appeal, we will assume for argument's sake that Catt's subsequently filed documents should be considered in connection with his motion to recuse, and that the motion was adequately verified by an unsworn declaration. Regardless, we hold that the presiding judge did not abuse its discretion by finding that Catt's motion did not comply with Rule 18a, and therefore, the court did not err by denying Catt's motion without a hearing.
Within the motion or supporting documents, Catt has not stated with detail and particularity facts that are within Catt's personal knowledge or based on information or belief, which if proven, would be sufficient to justify recusal. See Tex. R. Civ. P. 18a(a)(4)(A), (C).
First, Catt alleged that Judge Elliott was not impartial because the judge had a "vested interest" in a negative outcome of this case, but Catt identified no facts in support of this conclusory allegation. Second, Catt alleged that Judge Elliott had a personal bias or prejudice concerning the subject matter because the judge had previously "disregarded" Catt's jurisdictional challenge and because the judge's staff "may be held over from Defendant #2 staff." Catt has not identified with detail and particularity any facts related to the disregarding of a jurisdictional challenge, and his assertion, even if proven, would not be sufficient to justify recusal based on bias or prejudice. See Fox v. Alberto, 455 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ("[I]f a party seeks recusal of a judge based on the judge's alleged bias, prejudice, or partiality and if that party does not show that the alleged bias, prejudice, or partiality arose from events occurring outside of judicial proceedings, then the judge may not be recused unless the judge has displayed a deep-seated favoritism or antagonism that would make fair judgment impossible."). Nor has Catt alleged with particularity how or why Judge Elliott had "personal knowledge of disputed evidentiary facts"; Catt's allegation is merely a recitation of the ground for recusal under Rule 18b. See Tex. R. Civ. P. 18b(b)(3).
Accordingly, the presiding judge did not abuse its discretion by denying Catt's motion without a hearing. See Tex. R. Civ. P. 18a(g)(3)(A).
II. CHAPTER 14 DISMISSAL
Catt contends that the trial court erred by dismissing his suit under Chapter 14 without holding a hearing. One of the reasons the appellees argued for dismissal was that the suit was frivolous because a two-year statute of limitations had run on Catt's due process claim. We focus on this argument because it is dispositive.
A. Standard of Review and Legal Principles
A court may dismiss an inmate's claim brought under Chapter 14 if the court finds the claim to be frivolous or malicious. Retzlaff v. Tex. Dep't of Crim. Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also Tex. Civ. Prac. & Rem. Code § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the trial court may consider whether (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code § 14.003(b). Although review of a dismissal under Chapter 14 is "generally controlled by the abuse-of-discretion standard," Conway v. Castro, 321 S.W.3d 558, 561 (Tex. App.—Houston [14th Dist.] 2010, no pet.), we review de novo whether a claim is legally cognizable. Nabelek v. Dist. Att'y of Harris Cty., 290 S.W.3d 222, 228 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
An inmate bringing a claim within the scope of Chapter 14 has no right to a mandatory hearing. Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied). But when a trial court dismisses a claim without conducting a fact hearing, the dismissal can be affirmed only if the claim has no arguable basis in law. Retzlaff, 94 S.W.3d at 653. If the statute of limitations bars an inmate's claim, dismissal under Chapter 14 is proper. See Barnes v. Polk Cty. Sheriff Dep't, No. 09-10-00221-CV, 2011 WL 915546, at *3 (Tex. App.—Beaumont Mar. 17, 2011, pet. denied) (mem. op.) (affirming Chapter 14 dismissal, reasoning that the inmate's suit had no realistic chance of success because the claims were barred by statute of limitations); Nabelek, 290 S.W.3d at 228-29 (affirming Chapter 14 dismissal, reasoning that the inmate's suit had no arguable basis in law because the claim was barred by statute of limitations).
B. Two-Year Statute of Limitations Bars Catt's Claim Against Appellees
Initially, Catt contends that no statute of limitations applies to his due process claim because the 400th District Court, presided over by Judge Vacek, lacked subject matter jurisdiction over a forfeiture proceeding. Catt contends that the court lacked jurisdiction because the failure to strictly comply with the forfeiture statute deprives the trial court of jurisdiction, citing an Amarillo Court of Appeals decision. The Texas Supreme Court, however, reversed that decision. See Silver Chevrolet Pickup v. State, 99 S.W.3d 874 (Tex. App.—Amarillo 2003), rev'd, 140 S.W.3d 691 (Tex. 2004) (per curiam). The supreme court held that the State's failure to comply with the forfeiture statute's procedural requirement did not require dismissal for lack of jurisdiction. See 140 S.W.3d at 693.
When a plaintiff alleges a deprivation of property without due process in violation of the United States Constitution, as here, the applicable statute of limitations is determined by state law, but the accrual of the claim is a federal question. See Arquette v. Hancock, 656 S.W.2d 627, 629 (Tex. App.—San Antonio 1983, writ ref'd n.r.e.). State law provides that the statute of limitations for a claim concerning the deprivation of property is two years. See Li v. Univ. of Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 651 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)); Arquette, 656 S.W.2d at 629.
Under federal law, a claim accrues when the plaintiff knows that he or she has been hurt and knows who has inflicted the injury. See Bailey v. United States, 508 F.3d 736, 740 (5th Cir. 2007). Thus, a plaintiff's due process claim regarding forfeiture accrues when he or she discovers or has reason to discover that the property has been forfeited without sufficient notice. See Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 654 (2d Cir. 1998); see also Kripp v. Luton, 466 F.3d 1171, 1176-77 (10th Cir. 2006); United States v. Wright, 361 F.3d 288, 290 (5th Cir. 2004) (per curiam). The date of accrual is "the point at which the government's retention of the property can no longer be justified." United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004).
The Seventh Circuit has held that the limitations period for the return of seized property runs "from the conclusion of the criminal proceedings or civil forfeiture proceedings, or, if no such proceedings are instituted, from the expiration of the statute of limitations for filing the criminal or civil forfeiture case." Id. at 709; see also Bailey, 508 F.3d at 740 (holding that if no forfeiture proceedings are conducted, the action accrues at the end of the limitations period during which the government is permitted to bring a forfeiture action, at which time the claimant had reason to know that the property was being held without due process). But see United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1213 (10th Cir. 2001) ("After the criminal proceedings conclude, however, the government has no right to retain the property, absent the commencement of forfeiture proceedings, and its continued retention of the property from that point forward could legitimately be viewed as a deprivation of the defendant's due process rights.").
The Texas civil forfeiture statute, which Catt contends the appellees violated, provides that if a peace officer seizes property under Chapter 59 of the Code of Criminal Procedure, "the attorney representing the state shall commence proceedings under this section not later than the 30th day after the date of the seizure." Tex. Code Crim. Proc. art. 59.04(a). Several courts of appeals have referred to this period as the statute of limitations for commencing a Chapter 59 forfeiture proceeding. See $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 746 (Tex. App.—Texarkana 2008, no pet.); Three Thousand Six Hundred Thirty Nine, Dollars ($3,639.00) in U.S. Currency v. State, 133 S.W.3d 698, 701 (Tex. App.—Corpus Christi 2003, no pet.); $6453.00 v. State, 63 S.W.3d 533, 536 (Tex. App.—Waco 2001, no pet.).
Here, Catt alleged in his "affidavit of ownership" accompanying his petition that Fort Bend County peace officers seized his property on November 9, 2012. Thus, the State had until December 10, 2012, to commence forfeiture proceedings. Further, the appellees attached to their motion to dismiss a copy of the 400th District Court's judgment for Catt's aggravated robbery, showing that Catt was sentenced pursuant to a guilty plea on December 5, 2013.
Catt brought this suit on January 8, 2016. Regardless of whether Catt's due process claim accrued upon the expiration of the limitations period for the forfeiture claim, December 10, 2012, or on the date he was sentenced, December 5, 2013, Catt's claim was filed after the expiration of the two-year statute of limitations. Because the statute of limitations bars Catt's claim against the appellees, the trial court did not abuse its discretion by dismissing Catt's suit as frivolous under Chapter 14. See Barnes, 2011 WL 915546, at *3; Nabelek, 290 S.W.3d at 228-29.
The petition is file-stamped January 8, 2016. Catt allegedly "executed" the petition on January 4, and the record does not contain a mailing date.
III. MOTION FOR SUMMARY JUDGMENT
Construing Catt's brief liberally, it appears that he complains about the trial court's failure to rule on his motion for summary judgment. In the final judgment, the trial court dismissed with prejudice Catt's suit under Chapter 14 because it was frivolous, and the court denied all relief not granted therein. By dismissing Catt's suit as frivolous, the trial court implicitly denied Catt's motion for summary judgment on his claim. See Mendoza v. Livingston, No. 09-12-00594-CV, 2014 WL 670119, at *4 (Tex. App.—Beaumont Feb. 20, 2014, no pet.) (mem. op.) (motion for appointment of counsel); Addicks v. Rupert, No. 12-09-00288-CV, 2011 WL 1642862, at *4 (Tex. App.—Tyler Apr. 29, 2011, no pet.) (mem. op.) (motions for discovery plan and change of venue); Conely v. Tex. Bd. of Crim. Justice, No. 03-08-00293-CV, 2010 WL 1632972, at *2 (Tex. App.—Austin Apr. 22, 2010, no pet.) (mem. op.) (motions to compel discovery, for appointment of counsel, and for a bench warrant and application for writ of habeas corpus ad testifcandum).
To the extent Catt contends that the appellees made admissions by failing to respond to his request for admissions, we disagree because discovery was suspended upon the filing of the appellees' motion to dismiss, and the response was not due. See Roy v. Shannon, No. 02-13-00238-CV, 2014 WL 4105271, at *5 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op.) (holding that the trial court did not abuse its discretion by failing to rule on a motion for default judgment because the filing of a motion to dismiss under Chapter 14 automatically suspends discovery).
The trial court did not err by dismissing Catt's suit without an explicit ruling on the motion for summary judgment.
IV. CONCLUSION
Having overruled Catt's issues, we affirm the trial court's judgment.
/s/ Ken Wise
Justice Panel consists of Justices Boyce, Busby, and Wise.