Opinion
NO. 05-12-01563-CVNO. 05-12-01566-CVNO. 05-12-01567-CV
04-10-2013
CONTINENTAL HERITAGE INSURANCE COMPANY, Appellant v. THE STATE OF TEXAS, Appellee
1. Appellant : Continental Heritage Insurance Company. 2. Trial and appellate counsel : Anne-Marie Gillespie, 5646 Milton, Suite 332, Dallas, Texas 75206; John D. Nation, 4925 Greenville Ave., Suite 200, Dallas, Texas 75206. 3. Appellee : The State of Texas. 4. Trial and appellate counsel : David Villafuerte, Assistant District Attorney, 411 Elm Street, 5th Floor, Dallas, Texas 75202. John D. Nation Counsel for Appellant
Oral Argument Reques
On Appeal from Nos. F11-42991-42992 and 72467-I, Criminal District
Court No. 2, Dallas County, Hon. Donald Adams, Presiding
BRIEF OF THE APPELLANT
Respectfully submitted,
John D. Nation
State Bar No. 14819700
4925 Greenville Avenue, Suite 200
Dallas, Texas 75206
214-800-5160
214-800-5161 (fax)
IDENTITY OF PARTIES AND COUNSEL
1. Appellant: Continental Heritage Insurance Company. 2. Trial and appellate counsel: Anne-Marie Gillespie, 5646 Milton, Suite 332, Dallas, Texas 75206; John D. Nation, 4925 Greenville Ave., Suite 200, Dallas, Texas 75206. 3. Appellee: The State of Texas. 4. Trial and appellate counsel: David Villafuerte, Assistant District Attorney, 411 Elm Street, 5th Floor, Dallas, Texas 75202. 5. Trial Judge: Hon. Lisa Bronchetti, Dallas County Magistrate.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .... 2 TABLE OF AUTHORITIES .... 4 STATEMENT OF THE CASE .... 5 STATEMENT REGARDING ORAL ARGUMENT .... 5 ISSUES PRESENTED .... 6 FACT STATEMENT .... 6 SUMMARY OF THE ARGUMENT .... 8 ARGUMENT .... 9 APPELLANT'S POINT OF ERROR .... 9
1. The trial court erred in holding that Appellant could not complain of the court cost assessment in a motion for new trial .... 9
A. Consideration of Appellant's Motion Generally: .... 9CONCLUSION AND PRAYER FOR RELIEF .... 13 CERTIFICATE OF COMPLIANCE .... 13 CERTIFICATE OF SERVICE .... 14 APPENDIX .... 15
B. Alleged Ban on Complaint Against Court Costs: .... 10
C. The Merits of the New Trial Motion: .... 12
TABLE OF AUTHORITIES
Cases
Burgess v. State, 313 S.W.3d 844 (Tex. App.—Fort Worth 2010, no pet.).. 6, 10,11 Old Republic Insurance v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) .... 10
Statutes
TEX. CODE CRIM. PROC. art. 22.10 .... 12 TEX. CODE CRIM. PROC. art. 22.10 .... 9 TEX. CODE CRIM. PROC. art. 22.13 (a) (5) .... 6 TEX. GOV'T CODE § 118.131 .... 11
Rules
Tex. R Civ. P. 320 .... 9, 10
Treatises
5 McDonald & Carlson, Texas Civil Practice (2d ed. 1999) at 311-312 .... 10
STATEMENT OF THE CASE
This is an appeal from bond forfeiture judgments in the following cases: No. F11-42291-I ,F11-42292-I and F11-72467-I, Jennifer Blake, principal, in the Criminal District Court No. 2 of Dallas County, Hon. Donald Adams, presiding.
In motions for new trial, Continental Heritage Insurance Company, the corporate surety, argued in each case that the court costs imposed, $278.00, were excessive. The matter was set down for hearing before Hon. Lisa Bronchetti, Dallas County Magistrate. After hearing arguments, Judge Bronchetti entered findings of fact and conclusions of law recommending that the motions be denied. (See, e.g., R.I 45-46, No. 05-12-01567-CV). The trial courts followed the recommendation and denied the motions for new trial. (R.I 50, No. 05-12-01567-CV). Appellant timely filed notice of appeal. (R.I 48-49, No. 05-12-01567).
STATEMENT REGARDING ORAL ARGUMENT
The issue presented in this case is one where little direct authority exists. Appellant therefore believes that oral argument will assist the panel in resolving the case.
ISSUES PRESENTED
Did the trial court correctly rule that Appellant's arguments concerning the propriety of court costs could not be reviewed as an impermissible collateral attack?
FACT STATEMENT
Appellant noted that it was not disputing that court costs apply in bond forfeiture cases, but it was disputing the amount of costs that were normally assessed against sureties in such cases. (R.II 5). According to the Code of Criminal Procedure, bond forfeitures were scire facias writs and the surety should be assessed the normal fee for a scire facias writ, not the usual and inflated costs assessment. (Id).
The State rejoined that since this motion for new trial did not attack the judgment itself, then it must be a collateral attack on the costs of court. (R.II 6). In any case where the surety is exonerated, it is nevertheless liable for interest plus costs of court under TEX. CODE CRIM. PROC. art. 22.13 (a) (5). According to the State, Burgess v. State, 313 S.W.3d 844 (Tex. App.— Fort Worth 2010, no pet.), stood for the proposition that a collateral attack on the reasonableness of court costs could not be asserted in a bond forfeiture proceeding. (R.II 7). Then the State reiterated that court costs are assessable in bond forfeiture cases. (R.II 8).
In rebuttal, Appellant argued that there must be some forum wherein a surety may attack the court costs. For example, if a surety was assessed an obviously wrong costs figure—say $20,000.00—would there really be no forum in which to correct the error? Appellant distinguished Burgess on the ground that it was not, as was Burgess, complaining of a specific fee assessed by the county commissioners. Were that the case, Appellant would have to file a specific lawsuit attacking the fee. But Burgess did not stand for the broad proposition that a surety could never complain about a costs assessment in a motion for new trial. (R.II 10-11). Because a surety would not know what costs would be assessed until judgment, the motion for new trial is the best forum for attacking the costs assessment. (R.II 11).
The Magistrate ruled for the State:
The Court feels this is not the proper place for this to be asserted. As to where the proper place would be, you'd have to research other alternatives. But based on what I'm reading, there's nothing suggesting anything other than paying the - paying the costs of court. And the costs of court having been designated under—and not having been—I mean there hasn't even been an argument as to the inappropriateness of the court's fees, although I don't even think we have to address that in this hearing cause I just don't think I can reach it in a Motion for New Trial.(R.II 13-14).
SUMMARY OF THE ARGUMENT
Neither the relevant articles of the Code of Criminal Procedure, nor the applicable case law, holds that a surety may not complain of the court costs assessment via a motion for new trial. The Burgess case does not so hold. That case states that if a surety wishes to attack a particular fee imposed by commissioners, that must be done in a separate suit. But Burgess is no authority for the State's argument that a surety is foreclosed from challenging the court costs assessment in a new trial motion. There being no other asserted authority for the court's inability to decide the issue, the court erred in refusing to consider the surety's argument.
ARGUMENT
APPELLANT'S POINT OF ERROR
1. The trial court erred in holding that Appellant could not complain of the court cost assessment in a motion for new trial.
The Magistrate held that Appellant could not complain of the court costs assessed in a new trial motion—Appellant could do nothing but pay the costs. (R.II 13-14). This holding, out of harmony with the purposes of Tex. R. Civ. P. 320 and unsupported by the case law, should be rejected.
Bond forfeiture cases, to the extent not otherwise governed by Chapter 22 of the Code of Criminal Procedure, "shall be governed by the same rules governing other civil suits." TEX. CODE CRIM. PROC. art. 22.10.
A. Consideration of Appellant's Motion Generally:
The State contended that because Appellant's motion for new trial did not request re-litigation of the issues, it was not a proper motion for new trial, but an impermissible collateral attack on the judgment. (R.II 6). To the extent the court may have relied on this argument, it will be addressed here.
New trials may be granted and the judgment set aside for good cause, on motion or on the court's own motion on such terms as the court may direct. New trials may be granted if the damages manifestly are too large or small. The court may grant a new trial on a separable manner in controversy. Tex. R. Civ. P. 320. A new trial may be filed even if only for the purpose of extending the appellate deadlines. Old Republic Insurance v. Scott, 846 S.W.2d 832, 833 (Tex. 1993).
Motions for new trial are not limited to those specifically enunciated within the applicable rules. The numbers and varieties of complaints to be made in motions for new trial are as endless as the possibilities of judicial error and the ingenuity of zealous counsel. Thus, an attempt to catalogue all the grounds that may be urged in support of a motion for new trial would be futile.5 McDonald & Carlson, Texas Civil Practice (2d ed. 1999) at 311-312. (footnote omitted).
Rule 320 is quite broad, good cause being the standard, and would appear to encompass a new trial motion directed to the assessment of court costs. Thus, simply because the motion did not request a re-litigation of the issues, and confined itself to a complaint against the court costs, it was still a proper motion for new trial.
B. Alleged Ban on Complaint Against Court Costs:
The State then argued that Appellant could not attack the imposition of a particular court cost via motion for new trial—the only proper remedy was to file a suit to challenge the legality of the fee. (R.II 6-7). For this proposition, the State cited Burgess v. State, 313 S.W.3d 844 (Tex. App.—Fort Worth 2010, no pet.). It appears that the trial court followed this argument in denying the motion for new trial.
Burgess is distinguishable and does not bar the type of motion for new trial presented here. In that case, the surety attacked the $68.00 fee assessed by the district clerk in bond forfeiture cases on a number of grounds. The court of appeals rejected the first argument, that the Denton County Commissioners had not authorized the cost. Burgess, 313 S.W.3d 850-851.
The surety's second and third issues argued that the fee was unlawful under TEX. GOV'T CODE § 118.131 because it was unreasonable and higher than necessary to recover the expense of the service. In response, the court of appeals held that to agree with the surety would require the court to invalidate the count commissioners' fee schedule, at least as it applied to that method of service and the court would have to do so in a suit that was not filed for the purpose of attacking the fee and in which neither the county nor the commissioners or the district clerk were parties. Burgess, 313 S.W.3d 852.
The court of appeals pointed to numerous cases holding that unless a commissioners' court order is wholly void, it may not be collaterally attacked. Burgess, 313 S.W.3d 852-853. The surety's contention was not that the fee was void; therefore the claim could not be raised in a bond forfeiture action but only in a separate suit. Id. at 853.
By contrast, Appellant was not challenging a particular fee set by the commissioners' court. He instead argued that a fee for civil scire facias writs should be imposed in this case. Such an argument does not require this Court to vitiate an order of the commissioners' court without that body or the county being a party to the action. Appellant's attack herein was direct, not collateral and should have been reviewed by the trial court.
C. The Merits of the New Trial Motion:
Although the merits of the motion are not implicated in this appeal, Appellant would nevertheless show that his arguments are meritorious and should prevail upon remand. A bond forfeiture action is essentially a scire facias writ. TEX. CODE CRIM. PROC. art. 22.10. It would seem difficult to argue that a scire facias writ should be less in a civil case and more in a bond forfeiture case. The State's response to the motion for new trial was directed more to reviewability and less to a justification of why a bond forfeiture scire facias writ should be more expensive.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, Appellant prays that the judgment below be reversed and remanded.
Respectfully submitted,
__________
John D. Nation
Counsel for Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. Pro. 9.4 (i) (3), I hereby certify that this brief contains 2,160 words, in 14-point, Times New Roman font.
____________
John D. Nation
CERTIFICATE OF SERVICE
This is to certify that I have mailed a true copy of this brief to Mr. David Villafuerte, Assistant District Attorney, Dallas County, 411 Elm Street, 5th Floor, Dallas, Texas 75202, by hand-delivery on this 8th day of April 2013.
____________
John D. Nation
APPENDIX
I. Order denying motion for new trial, No. F11-42991-I
The Clerk's Record for cause no. F11-42991-I contains the order denying the motion for new trial in cause no. F11-72467-I. Appellant will supplement with the order denying new trial in no. F11-42991.
II. Order denying motion for new trial, No. F11-42992-I
III. Order denying motion for new trial, No. F11-11044-K