Opinion
No. 05-07-01630-CV
Opinion issued August 21, 2009.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-06-03763-F.
Before Justices BRIDGES, FITZGERALD, and LANG.
Opinion By Justice BRIDGES.
MEMORANDUM OPINION
The trial judge granted the special exceptions and motion for summary judgment of appellee Dallas County. In three issues, appellants Charles Monroe d/b/a Delta Bail Bonds, Milene Cooper d/b/a Ace Bail Bonds, Accredited Surety Casualty Company Inc. d/b/a Lucky Bail Bonds, George Palmer d/b/a Lucky Bail Bonds, Texas Bonding Co., and American Bar Bonds complain the trial judge improperly rendered final judgment without fully adjudicating their due process claims, and erred in granting appellee's special exceptions and motion for summary judgment. We affirm the trial court's judgment in part, reverse in part, and remand the cause for further proceedings. Because all issues are well-settled, we issue this memorandum opinion. Tex. R. App. P. 47.4.
Background
Appellants are licensed bondsmen. They filed suit against Dallas County complaining of violations of due process and "tortious interference with business," alleging Dallas County violated several statutes regarding the forfeiture and collection of surety bonds. Dallas County's original answer included a plea to the jurisdiction based on governmental immunity and lack of required notice, as well as affirmative defenses on the same grounds. Dallas County filed a second plea to the jurisdiction and motion to dismiss for lack of required notice.
Dallas County later filed more extensive special exceptions to appellants' petition. The trial judge granted the special exceptions, ordering appellants to replead by April 26, 2007, "or else refuse to replead and stand on their pleadings . . . and the court will strike each defective pleading." The order's original title was "Order on Defendant Dallas County's Plea to the Jurisdiction, Motion to Abate, and Special Exception," but the references in the caption and in the body of the order to the plea to the jurisdiction and the motion to abate were crossed out. There is no other order in the record regarding the plea to the jurisdiction or the motion to abate.
After the trial judge granted the special exceptions, Dallas County filed a motion to dismiss, alleging governmental immunity and lack of required statutory notice. Appellants responded to this motion, offering an affidavit that the required notice had been given, and arguing that "sovereign immunity does not prevent the assertion of a claim alleging that the state deprived the plaintiff of property without due process of law." The record does not contain any ruling on this motion by the trial judge. Dallas County then filed a no-evidence motion for summary judgment, to which appellants responded. As in their response to the motion to dismiss, appellants alleged that "the forcing of bail bond companies to pay fees not authorized by law is . . . a violation of due process."
Appellants filed an amended petition, but not until June 5, 2007, after the trial court's deadline for repleading had expired. The amended petition again asserted claims for violations of due process, but deleted the claim for tortious interference. Dallas County then filed a second motion for summary judgment, and a motion to strike plaintiffs' amended petition as untimely. The motion for summary judgment was premised on the ground that "where plaintiff cannot allege and prove a valid takings case, governmental immunity applies." Appellants did not file a response to the second motion. The trial judge granted the second motion for summary judgment. Neither the order on summary judgment nor the final judgment contain any reference to the motion to dismiss, the motion to strike the amended petition, or the plea to the jurisdiction.
Standards of Review
We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. at 751. "A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Id. at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc., 118 S.W.3d at 751, Tex. R. Civ. P. 166a(i). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., 953 S.W.2d at 711.
A no-evidence motion for summary judgment "must state the elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of a plaintiff's claims, the burden shifts to the plaintiff to present enough evidence to raise a genuine issue of material fact on the challenged elements. Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). If the plaintiff does not raise a genuine issue of material fact, the trial judge must grant the motion. Martin v. Estates of Russell Creek Homeowners Ass'n, Inc., 251 S.W.3d 899, 902 (Tex. App.-Dallas 2008, no pet.). If the trial court's order does not specify the grounds on which the summary judgment was granted, "we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
A party may not properly move for no-evidence summary judgment based on an affirmative defense that it has the burden to prove at trial. See Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex. App.-Dallas 2005, no pet.). Instead, the party must prove each element of its affirmative defense as a matter of law. Id.
A trial court's ruling on special exceptions is reversed only if there has been an abuse of discretion. Id. The purpose of special exceptions is to furnish a party with a medium by which to force clarification of an adverse party's pleadings when they are not clear or sufficiently specific. Id. A trial court abuses its discretion if its action is arbitrary, unreasonable, and without reference to any guiding rules or principles. Id. The mere fact that a trial judge may decide a matter within its discretionary authority in a manner different from an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.
Discussion Plaintiffs' Claims
In their petition, plaintiffs/appellants pleaded they were licensed bondsmen who currently had surety bonds posted in Dallas County. They alleged Dallas County violated several provisions of the Texas Code of Criminal Procedure relating to "the forfeiture of surety bonds and the collection thereof from the surety bondsmen." Appellants alleged Dallas County violated articles 22.02, 22.021, 22.04, 22.10, and 22.12 of the Code of Criminal Procedure by the following actions:
(1) the citation and cause of action have been issued by the District Clerk of Dallas County, not an attorney for the State of Texas, or the presiding Magistrate; (2) the citation fails to recite the amount of the bond; (3) the citation does not provide the name of the surety on the citation; (4) the citation does not provide for a copy of the judgment of forfeiture, the forfeited bond, nor any sureties; (5) the judgments do not list as a party the surety on the bond, nor does the citation seek any judgment from the sureties; and (6) the action is not brought upon either the scire facias or civil docket.
Appellants also pleaded that appellee had improperly attempted to amend judgments to include appellants as sureties after the judgments had become final, and improperly continued to prosecute the defaulted bonds against appellants, seeking to "obtain monies without a proper judgment." Appellants alleged Dallas County has "stated that their license under the bail bond act will be suspended" if plaintiffs failed to pay the judgments.
For their causes of action, appellants alleged Dallas County's actions deprived them of due process and were "`wholly through fraud, caprice, or by a purely arbitrary decision, and without reason.'" They alleged, "it is a violation of the due process clause of the Unites States Constitution for . . . Dallas County to seek and obtain monies without a proper judgment." Appellants also alleged Dallas County engaged in "improper judgment collection," and sought to deprive appellants of their ability to conduct business. Appellants pleaded that Dallas County's actions were "a deprivation of life, liberty or property, and a violation of due process." Appellants sought "return of their funds paid, reasonable attorney's fees, and a permanent injunction being issued specifically prohibiting such actions."
Dallas County's original answer included an affirmative defense and plea to the jurisdiction alleging governmental immunity, and a special exception denying a private right of action existed for damages under the Texas Constitution.
Motion for Summary Judgment
In its motion for summary judgment, Dallas County presented case law regarding the elements of constitutional claims asserted against governmental entities for taking of property for public use without compensation. Dallas County asserted appellants' due process claims were actually claims for a taking of their property in violation of the Texas and United States Constitutions. See Tex. Const. art. 1, § 17 (no person's property shall be taken or applied to public use without adequate compensation being made); U.S. Const. amend. V ("[N]or shall private property be taken for public use, without just compensation"). The motion then alleged four grounds for summary judgment, two directed to appellants' claims under the Texas Constitution, and two directed to appellants' claims under the United States Constitution. As to both Constitutions, Dallas County alleged "Plaintiffs cannot, by any admissible evidence, demonstrate that there is any evidence to support any claims of a taking of their property." Under the United States Constitution, Dallas County alleged:
Plaintiffs cannot provide any evidence to show: 1) Dallas County's actions resulted in a physical taking of Plaintiffs' property, i.e., that Dallas County either physically appropriated or invaded Plaintiffs' property; 2) that Dallas County's actions resulted in a regulatory taking of Plaintiffs' property, i.e., that Dallas county enacted regulations or policies and procedures that denied Plaintiffs of all economically viable uses of their property, unreasonably interfered with Plaintiffs' right to use and enjoy their property, or rendered Plaintiffs' property useless; 3) that Plaintiffs' property was taken by Dallas County for public use; and 4) that Plaintiffs' property was taken without just compensation.
Under the Texas Constitution, Dallas County alleged grounds identical to the first three grounds quoted above, and added:
Plaintiffs cannot provide any evidence to show: 1) Dallas County intentionally performed certain acts it knew were causing a specific harm to Plaintiffs; 2) that Dallas County knew a specific harm to Plaintiffs was substantially certain to result because of Dallas County's actions; . . . 6) Plaintiffs' property was taken without their consent; and 7) that Plaintiffs did not receive adequate compensation.
Dallas County also cited authority regarding the elements of appellants' causes of action for unconstitutional takings. The motion for summary judgment contended that "where plaintiff cannot allege and prove a valid takings case, governmental immunity applies." The trial judge granted the motion for summary judgment without specifying any grounds.
Appellants' Issues
Appellants urge reversal of the trial court's judgment for three reasons. First, they contend the trial court improperly rendered final judgment without fully adjudicating their due process claims. Second, they contend Dallas County did not meet its burden of proof in its motion for summary judgment. Third, they argue the trial judge erred in granting Dallas County's special exceptions.
We address appellants' first and second issues together, because both issues challenge the sufficiency of appellee's motion for summary judgment. In their first issue, appellants contend Dallas County's no-evidence motion for summary judgment was deficient as a matter of law, citing Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3-4 (Tex. App.-San Antonio 2000, pet. denied). Although appellants did not file a response to Dallas County's second no-evidence summary judgment motion, they may challenge the legal sufficiency of the motion for the first time on appeal. See Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex. Civ. App.-Dallas 2002, no pet.). Appellants further contend their summary judgment response was sufficient to raise a genuine issue of material fact on every element of their cause of action. In their second issue, they argue appellee failed to establish any of the grounds on which a no-evidence motion may be granted, citing Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In Callaghan Ranch, the defendant's no-evidence motion for summary judgment was deficient because it failed to state the elements of the plaintiff's causes of action as to which there was no evidence. See Callaghan Ranch, 53 S.W.3d at 3-4. The first motion for summary judgment filed here did include only a general statement that "Dallas County is entitled to summary judgment because Plaintiffs cannot, by the record on file with the Court, or other admissible evidence, demonstrate that there is any evidence to support their claim," similar to the motion held insufficient in Callaghan Ranch. Dallas County filed a second motion for summary judgment, however. This second motion challenged specific elements of appellants' claim for an unconstitutional taking, but did not challenge specific elements of appellants' due process claim.
In their petition, appellants allege Dallas County has sought to prosecute allegedly defaulted surety bonds without following the statutory requirements to obtain a proper judgment, and further allege Dallas County's actions in enforcing the judgments are "wholly through fraud." They conclude "[i]t is a violation of the due process clause of the United States Constitution" for Defendant Dallas County "to seek and obtain monies" without "complying with the statutory requirements necessary to obtain a proper judgment." This claim for violation of due process is not addressed in Dallas County's motion for summary judgment. Dallas County's motion alleges appellants' claim is actually for a taking of property under the Texas and United States Constitutions, arguing "in open court at a hearing in June 2007, and in response to Dallas County's Plea to the Jurisdiction, counsel for Plaintiffs stated that Plaintiffs' claims are for a taking of their property, and argued that Dallas County has no governmental immunity for the same." There is no reporter's record of the June 2007 hearing included in the record on appeal. The record does include a response by appellants to Dallas County's motion to dismiss, but rather than alleging a taking, appellants argue "sovereign immunity does not prevent the assertion of a claim alleging that the state deprived the plaintiff of property without due process of law." Dallas County's motion for summary judgment addresses whether a taking has occurred in violation of the Texas and United States Constitutions, alleging there is no evidence of any exception to its governmental immunity precluding judgment as a matter of law.
In their summary judgment response (and also in their response to the motion to dismiss), appellants cited Bowles v. Reed, 913 S.W.2d 652, 657 (Tex. App.-Waco 1995, writ denied), Camacho v. Samaniego, 954 S.W.2d 811, 821-22 (Tex. App.-El Paso 1997, pet. denied), and Vannerson v. Klevenhagen, 908 S.W.2d 37, 41-42 (Tex. App.-Houston [1st Dist.] 1995, writ denied), for the proposition that "the forcing of bail bond companies to pay fees not authorized by law is . . . a violation of due process." Appellants do not cite these cases on appeal, however, or make any argument premised on them.
A no-evidence motion for summary judgment "must state the elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). In Dallas County v. Gonzales, 183 S.W.3d 94, 111 (Tex. App.-Dallas 2006, pet. denied), we discussed the analysis of due process claims:
In analyzing a claim of deprivation of procedural due process, we apply a two-part test: we must determine (1) whether the plaintiff had a liberty or property interest entitled to procedural due process; and (2) if so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). In a substantive due process analysis, we determine (1) whether the plaintiff had a protected property interest and (2) if the government deprived him of that interest capriciously and arbitrarily. City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.-Amarillo 1996, writ denied); see Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (substantive due process bars arbitrary, wrongful government actions); Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240, 249 (5th Cir. 2000) (substantive due process protects against deprivation of constitutionally protected interests through government's arbitrary abuse of power).
See also Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (court's review of "due course" claim under state constitution follows interpretation of federal due process claims under U.S. Const. amend. XIV, § 1; court makes two-part analysis: whether plaintiff has liberty or property interest entitled to procedural due process protection, and if so, what process is due). Dallas County's motion for summary judgment addressed none of these factors, arguing instead that appellants were asserting a different claim. Under appellants' first two issues, we do not evaluate the adequacy of their pleading or the legal sufficiency of their claims; we conclude only that summary judgment was not properly granted on a claim not addressed in Dallas County's motion. See Tex. R. Civ. P. 166a(i). Dallas County's motion was legally insufficient to support summary judgment on appellants' claim for violation of due process.
Construing the summary judgment order together with the motion, the trial judge granted summary judgment on a claim for a governmental taking. Appellants do not challenge this ruling, and we agree appellants failed to raise a genuine issue of material fact on this claim. Dallas County's motion for summary judgment set out the elements of the claim and contended there was no evidence to support one or more elements of the claim. See Tex. R. Civ. P. 166a(i). Thus, it was appellants' burden to come forward with evidence to raise a fact issue to preclude summary judgment. Id. (court must grant no-evidence motion unless respondent produces summary judgment evidence raising genuine issue of material fact). Appellants argue they offered evidence sufficient to raise an issue of fact on each element of their claims. Even assuming appellants' response to the original motion for summary judgment should be considered, we disagree. Appellants' evidence consists of the affidavit of Mark Monroe, the custodian of records for Delta Bail Bonds. The affidavit avers the documents attached to it are business records of Delta Bail Bonds. Following the affidavit in the record are approximately 500 pages of documents. These documents consist of "original answers of defendant surety" apparently filed in various cases in Dallas County, writs of citations, and judgments nisi for district court bond. Also included are untitled and unidentified tables, printouts, and handwritten lists, and a "Bond-Bondsmans Audit Report." Monroe's affidavit, the only testimony offered in appellants' summary judgment response, does not provide any explanation of these documents, does not testify regarding any fees or judgments actually paid by appellants, and does not describe how the documents raise a genuine issue of material fact on appellants' claims. In their summary judgment response, appellants argue the documents "show, on their face, the very defects of which Plaintiffs and Intervenors complain," but offer no explanation of how this is so. Thus, appellants failed to raise a genuine issue of material fact on the elements of a claim for a taking without adequate compensation, and summary judgment was proper on that claim. See Tex. R. Civ. P. 166a(i). We sustain appellants' first two issues in part and overrule them in part.
Special Exceptions
In their third issue, appellants allege the trial judge erred in sustaining appellee's special exceptions. The trial judge's order initially granting the special exceptions ordered appellants to "replead and adequately cure defects by April 26, 2007 or else refuse to replead and stand on their pleadings in response to the Defendant Dallas County's Special Exception and the court will strike each defective pleading." As we have noted, "[i]f special exceptions are sustained, the pleader may amend to meet the exception or decline to amend and test on appeal the validity of the trial court's rulings." Bader v. Cox, 701 S.W.2d 677, 686 (Tex. App.-Dallas 1985, writ ref'd n.r.e.). Initially, appellants did neither. They did replead, but not by the deadline set by the trial judge. The untimely amended pleading attempted to add more specific allegations regarding the harm appellants had suffered, and omitted the cause of action for tortious interference with business relations. Dallas County did not file special exceptions or any other motion relating to the adequacy of the allegations in the amended pleading. Instead, Dallas County filed a motion to strike the amended pleading as untimely under the trial judge's order.
There is no indication in the record that the trial judge took any further action relating to the adequacy of appellants' pleadings, or that Dallas County ever challenged the sufficiency of the amended pleadings in the trial court. The trial judge did not strike the pleadings he originally found to be defective, rule on the motion to strike, evaluate the amended pleadings, or dismiss the case based on the special exceptions. Instead, he granted the motion for summary judgment, dismissing the case on that basis. No issue is presented for our review under Bader. See id., 701 S.W.2d at 686; see also Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.-Dallas 1993, writ dism'd w.o.j.) (in reviewing dismissal of claim based on special exceptions, we review both trial judge's ruling on special exceptions and dismissal of claim). In light of our ruling on appellants' first two issues which are dispositive of this appeal, we need not address appellants' third issue.
We overrule in part and sustain in part appellants' first and second issues. We remand the cause to the trial court for further proceedings.