Opinion
NUMBER 13-16-00226-CV
01-26-2017
JIM KAELIN, Appellant, v. ROSE CRAGO, Appellee.
On appeal from the 117th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Valdez
By two issues appellant Jim Kaelin appeals the trial court's denial of his plea to the jurisdiction in favor of appellee Rose Crago and contends there is no evidence to support the amount of damages awarded by the trial court. We affirm.
I. BACKGROUND
In 2007, Crago obtained a judgment against David Crago ("David") in the amount of $120,000 plus interest and costs. Crago then requested that the trial court clerk issue a writ of execution on certain Nueces County
real property owned by David. The writ of execution was issued by the clerk on January 5, 2012 and was delivered to Kaelin on January 23, 2012. Crago alleged in her original petition, filed on January 31, 2014, that the subject property was accessible to Kaelin, was not exempt, and was subject to execution, but that Kaelin nevertheless refused to seize the property, and that the judgment remains unsatisfied. Crago alleged that Kaelin was liable, in his official capacity as sheriff, for damages under the civil practice and remedies code and local government code.[] See TEX. CIV. PRAC. & REM. CODE ANN. § 34.065(a) (West, Westlaw through 2015 R.S.); TEX. LOC. GOV'T CODE ANN. § 85.021(a), (d) (West, Westlaw through 2015 R.S.).Crago v. Kaelin, No. 13-15-00055-CV, 2015 WL 5895194, at *1 (Tex. App.—Corpus Christi Oct. 8, 2015, no pet.) (mem. op.) (reversing the trial court's granting of summary judgment in favor of Kaelin and remanding to the trial court for further proceedings).
"Rule 637 imposes a duty on the sheriff to 'proceed without delay to levy . . . upon the property of the defendant found within his county not exempt from execution . . . .' Section 34.065 of the Texas Civil Practice and Remedies Code provides sanctions if the sheriff fails or refuses to execute upon the debtor's non-exempt property." Abercia v. Kingvision Pay-Per-View, Ltd., 217 S.W.3d 688, 694 (Tex. App.—El Paso 2007, pet. denied) (internal citations omitted). Moreover, a judgment creditor may sue the sheriff for non-execution if the judgment creditor pleads a prima facie case that "(1) an execution based on a valid judgment issued and delivered to the sheriff; (2) property of the debtor subject to the execution in the county where the sheriff had the writ; (3) failure of the sheriff to seize the non-exempt property; and (4) an unsatisfied judgment." Id. The burden then shifts to the sheriff to disprove an element of the plaintiff's case or to prove one of several defenses of mitigation. Id.
On March 2, 2016, Kaelin filed his plea to the jurisdiction arguing that presentation of a claim to the commissioners court, as required under section 89.004 of the Texas Local Government Code, is jurisdictional and that because Crago failed to present her claim to the commissioners court, the trial court lacked jurisdiction over Crago's claim against him. See TEX. LOCAL GOV'T CODE ANN. § 89.004(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."). Citing, among other things, case law from our Court, Crago argued that section 89.004(a)'s presentation requirement is not jurisdictional and can be waived. The trial court denied Kaelin's motion to dismiss, awarded Crago damages, and this appeal followed.
Crago filed her claim pursuant to section 34.065 of the Texas Civil Practice and Remedies Code alleging that Nueces County Sheriff Kaelin failed to execute on a judgment debtor's non-exempt property. See TEX. CIV. PRAC. & REM. CODE ANN. § 34.065 (West, Westlaw through 2015 R.S.). Section 34.065 provides sanctions against a sheriff who fails to execute upon the debtor's non-exempt property. Id. The sheriff and his sureties "are liable to the party entitled to receive the money collected on execution only for actual damages suffered." Id. "To establish liability under the statute, a plaintiff in execution must show a valid judgment issued and delivered to the officer, the debtor had some property 'subject to execution' (i.e. ownership of non-exempt assets), the officer failed to seize non-exempt property, and the judgment remains unpaid." Dallas County Constable Precinct 5 Michael D. Dupree v. KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 610 (Tex. App.—Dallas 2007, no pet.).
II. NOTICE
By his first issue, Kaelin contends that, pursuant to section 89.004(a) of the Local Government Code, the trial court lacked subject-matter jurisdiction in this case because Crago failed to present her claim to the commissioners court for consideration prior to filing her suit. See TEX. LOCAL GOV'T CODE ANN. § 89.004. Crago responds that this Court has already determined that 89.004 is not jurisdictional. See Cameron County. v. Tompkins, 422 S.W.3d 789, 800 (Tex. App.—Corpus Christi 2013, pet. denied); Forge v. Nueces County, 350 S.W.3d 740, 745 (Tex. App.—Corpus Christi 2011, no pet.).
A. Standard of Review
The purpose of a plea to the jurisdiction is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A challenge to the trial court's subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. The purpose of a dilatory plea is not to force the plaintiffs to preview their case on the merits but to establish a reason why the merits of the plaintiffs' claims should never be reached. This does not mean that evidence cannot be offered on a dilatory plea; on the contrary, the issues raised by a dilatory plea are often such that they cannot be resolved without hearing evidence. And because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with the case. But the proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction. Whether a determination of subject-matter jurisdiction can be made in a preliminary hearing or should await a fuller development of the merits of the case must be left largely to the trial court's sound exercise of discretion.Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (internal citations omitted).
B. Discussion
Kaelin argues that the trial court lacked jurisdiction because 89.004 is jurisdictional under section 311.034 of the Texas Government Code, which became effective in 2005, stating that "[s]tatutory prerequisites to suit, including provisions of notice, are jurisdictional requirements in all suits against a governmental entity." See TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2015 R.S.). We disagree.
In Cameron County v. Tompkins, this Court after assuming, without deciding, that section 89.004's presentment requirement applied concluded that "it is not a jurisdictional bar" to a suit against county officials. See 422 S.W.3d at 800. We cited Forge v. Nueces County, wherein this Court held that a lawsuit against county officials was not barred under section 89.004 because it is not jurisdictional. See 350 S.W.3d at 745. In Forge, the county official defendants alleged, as Kaelin does now, that section 311.034 of the government code overruled prior Texas Supreme Court precedent holding that section 89.004's presentment requirement was not jurisdictional and merely established a condition precedent to suit. Id. After lengthy analysis of section 311.034 and its Legislative history, we disagreed with the analysis of our sister court that held that section 89.004 is jurisdictional. Id. at 743. We stated that "section 89.004 has no bearing on a county's immunity from suit" and that "the ultimate result of a plaintiff's non-compliance with section 89.004(a) is not a determination that his case lies outside a waiver of immunity and is therefore subject to dismissal for want of jurisdiction. The ultimate result of a plaintiff's non-compliance with the presentment requirement is a temporary abatement period during which the commissioner's court investigates the claim and decides whether to attempt to adjust the claim without litigation." Id. at 745. We concluded by stating the following: "the rationale behind the 2005 amendment to section 311.034—the conservation of state or government resources by allowing early dismissal of suits where immunity has not been waived—does not apply to the presentment requirement, and we conclude that section 89.004(a) remains merely a mandatory, but not jurisdictional, condition precedent to suit against a county." Id. Accordingly, we reject Kaelin's argument that section 89.004's presentment requirement is jurisdictional pursuant to section 311.034. See id. We overrule Kaelin's first issue.
III. DAMAGES
By his second issue, Kaelin contends that the trial court erred in assessing damages in favor of Crago because there is no evidence of actual damages. Specifically, Kaelin argues that Crago failed to show what the property would have sold for at the sheriff's auction.
"A legal sufficiency challenge may only be sustained when (1) the record discloses a complete absence of evidence 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 a vital fact." Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort Worth 2007, no pet.) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). In a sufficiency review, we must view the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The final test for sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 822.
A judgment creditor seeking relief under Texas Civil Practice and Remedies Code section 34.065 has the burden to prove, among other things, "the amount of actual damages suffered." TEX. CIV. PRAC. & REM. CODE ANN. § 34.065(b)(7) (West, Westlaw through 2015 R.S.). Actual damages "is the amount of money the property would have sold for at a constable or sheriff's auction minus any costs of sale, commissions, and additional expenses of execution." Id. § 34.065(e).
The trial court awarded Crago damages in the amount of $145,904.23, pre and post judgment interest, and court costs in the amount of $946.70. The trial court issued the following findings of fact in support of its judgment:
1. On January 19, 2012 [Crago] requested the clerk of the court issue a Writ of Execution based on a final judgment . . . in the amount of $145,904.23
. . . .
2. The clerk issued the Writ of Execution . . . and [Crago's] attorney . . . directed [Kaelin] to levy on [property owned by the judgment debtor.]
3. [The property] had a fair market value at the time of $178,000.00.
. . . .
8. [Kaelin] failed and refused to seize this property and returned the Writ of Execution nulla bona[.]
Crago presented evidence of the property's fair market value through the testimony of Cheri Sperling, a licensed Texas realtor. Sperling testified that her practice is focused primarily on Padre Island properties in Corpus Christi, which is where the property at issue is located. Sperling stated she conducted a comparative market analysis to determine the value of the property at issue. She opined that the property would have sold for $178,000 in 2012. Sperling prepared a report detailing her analysis and conclusions which was admitted into evidence without objection. In her report, Sperling reviewed comparable properties—nearby townhomes—sold between 2011 and 2013. Kaelin offered no controverting evidence and did not object to Sperling's qualifications or methodology.
"Fair market value" is defined as "the price property would bring if it were offered for a sale by a willing but not obligated seller and purchased by a willing but not obligated buyer." Taiwan Shrimp Farm Village Ass'n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 71 (Tex. App.—Corpus Christi 1996, writ denied). The comparable sales approach has long been favored by courts in determining market value. City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). Thus, there is more than a mere scintilla of evidence supporting the finding of damages. Viewing the evidence in the light most favorable to the judgment crediting any favorable evidence if a reasonable fact-finder could and disregarding any contrary evidence unless a reasonable fact-finder could not, we conclude that the evidence is sufficient to support the trial court's finding of actual damages. See Taiwan Shrimp Farm Village Ass'n, 915 S.W.2d at 71; City of Keller, 168 S.W.3d at 821-22, 827. We overrule Kaelin's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 26th day of January, 2017.