Katin Corp. v. Bea Loesch, No. 03-05-00412-CV (Tex.App.- Austin, Aug. 10, 2007)(Opinion by Justice Puryear)(default judgment affirmed)(Before Justices Puryear, Pemberton and Smith)
Appeal from 261st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN400773, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE DAVID PURYEAR
Katin Corp. has filed a motion for rehearing. We withdraw our opinion and judgment dated August 24, 2006, and substitute this opinion. We deny Katin's motion for rehearing.
Bea Loesch sued Katin Corp. for negligence in a premises liability claim. Katin did not answer, and a default judgment was entered awarding Loesch $100,000 in damages. Katin filed a motion for new trial, which the trial court denied. Katin appeals, contending that the court abused its discretion in denying Katin's motion for new trial. We affirm the default judgment.
FACTS
Loesch brought a premises liability claim against Katin for personal injuries arising from her employment at a restaurant allegedly owned by Katin. She claimed that while in the course and scope of her employment, she injured her knee, requiring knee surgery. She also claimed that, other than her initial appointment, Katin did not pay for her medical treatment and terminated her employment because she could no longer work as a waitress. Loesch alleged that the wrongful acts and omissions of Katin and its agents caused her to suffer lost wages, impaired earning capacity, and past and future physical pain and suffering, mental anguish, reasonable and necessary medical expenses, physical impairment, and physical disfigurement. She sought actual damages, interest, costs of court, and mental anguish damages.
Loesch attempted to serve citation on Katin's registered agent, Martin P. Adler, three times in three different ways. First, on March 23, 2004, Loesch attempted service by certified mail; on April 17, 2004, this certified mail was returned and marked "REFUSED," and the process server stated in his sworn affidavit that he believed Katin was attempting to evade service.
Next, on April 23, 2004, Loesch attempted to effect personal service, using a different process server. In his affidavit, the second process server stated that he left a business card after being told Adler was not in. When Adler failed to respond, the process server attempted service again on May 21, 2004, when he was told that Adler was in but "would not come out to accept the process that [he] was trying to deliver." He averred that he believed Adler was avoiding service of process.
Finally, on September 15, Loesch served Katin through the Texas Secretary of State pursuant to article 2.11 of the Texas Business Corporation Act. See Tex. Bus. Corp. Act Ann. art. 2.11, § B (West Supp. 2006). Under article 2.11, if a corporation's registered agent cannot be found with reasonable diligence, then an individual attempting service on the corporation may serve citation with the Secretary of State. Id. Upon receipt of service, the Secretary of State forwards a copy of the citation by registered mail, addressed to the corporation at its registered office, to be returned within thirty days. Id. To show that a court may properly exercise jurisdiction over a defendant who has been served through the Secretary of State, plaintiff may produce a certificate issued by the Secretary stating that copies of the citation and petition were forwarded to the defendant. See Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973). In accordance with his statutory duty, the Secretary of State issued a certificate stating that a copy of the citation and petition were forwarded to Adler on September 20, 2004. The certificate states that on September 28, 2004, the process was returned to the Secretary of State "bearing the notation Refused."
After Katin failed to answer, a default judgment was entered against it. Twenty-eight days later, Katin filed a motion for new trial asserting that its failure to answer was the result of accident and mistake, attaching Adler's affidavit, which disavowed knowledge of refusal of service:
It is not my custom, practice, or intent to avoid service of process on behalf of the corporations for which I am the registered agent. It was not my intention to avoid service of process in the above entitled and numbered cause. . . .
I did not receive [the second process server's] business card. . . . Had I received [his] business card I would have contacted him as I have done on many occasions in the past to arrange to receive the citation.
While I have no personnel [sic] knowledge as to who may have made [the statement that I would not accept service], I can state without reservation that I did not direct or authorize anyone to tell [the process server] that I would not come out to accept service of process. I was not told on May 21, 2004 that [the process server] was at my office attempting service of process. But, it is possible that I was either in a meeting or on the telephone and had instructed my staff not to disturb or interrupt me.
My office . . . is located in a building which I share with an IHOP franchisee restaurant. In the past, we have had problems with certified mail being accepted and signed for by restaurant employees and then misplaced or mishandled and not being passed on to the proper recipient.
As a result, it has become necessary to instruct the restaurant cashiers and wait staff not to accept certified mail on behalf of Katin Corp. When we receive notice that there is certified mail for Katin Corp. or the other corporations for which I am the registered agent, I go to our Post Office to sign for and retrieve our certified mail. I did not consciously disregard or intentionally refuse receipt of certified mail from a process server of the Texas Secretary of State. If I had received notice that there was certified mail for Katin Corp. at the time service was being attempted by certified mail in this case, I would have sent someone to retrieve the mail from the Post Office. . . .
The trial court denied Katin's motion for new trial, and Katin filed its notice of appeal.
DISCUSSION
On appeal, Katin argues that the trial court erred in denying its motion for new trial and that the default judgment order should be reversed, citing to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Katin asserts that any refusal of service was not intentional or the result of conscious indifference. Katin asserts that it had no actual knowledge of the lawsuit before the entry of the default judgment, and, therefore, that its failure to answer was not intentional or the result of conscious indifference. See id. at 126. Katin further claims that it has a meritorious defense because it neither employed Loesch nor owned or controlled the premises where she was injured. See id. Finally, Katin asserts that, because it offered to reimburse Loesch's costs of obtaining a default judgment, she would suffer no delay or prejudice by the court's granting the motion for new trial. See id. Accordingly, Katin asserts, it has satisfied the elements of the Craddock test and is entitled to a new trial.
We review a trial court's decision on a motion for new trial for an abuse of discretion. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The test for an abuse of discretion is not whether we believe the facts present an appropriate case for the trial court's decision, but rather whether the trial court's ruling was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). Trial courts do not have "unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle." Craddock, 133 S.W.2d at 126. The defaulting party must prove that its failure to appear was not negligent, intentional, or the result of conscious indifference. Ataya v. State, No. 14-05-01264-CV, 2007 Tex. App. LEXIS 895, at *10 (Tex. App.--Houston [14th Dist.] Feb. 8, 2007, pet. denied) (mem. op.); see Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993); Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972). "Conscious indifference means failing to take some action which would seem indicated to a person of reasonable sensibilities under similar circumstances." State v. Sledge, 982 S.W.2d 911, 914 (Tex. App.--Houston [14th Dist.] 1998, no pet.); see Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 248 (Tex. App.--Corpus Christi 2004, no pet.).
After two unsuccessful attempts to serve citation, Loesch served Katin with citation pursuant to the Business Corporation Act. (1) See Tex. Bus. Corp. Act Ann. art. 2.11. Under the Act, if a corporation's registered agent cannot "with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served." Id. art. 2.11, § B. Once process is served on the Secretary of State, he is statutorily required to immediately forward the documents by registered mail to the corporation at its registered office. Id. "When substituted service on a statutory agent is allowed, the designee is not an agent for serving but for receiving process on the defendant's behalf." Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (emphasis added).
A certificate from the Secretary of State "conclusively establishes that process was served," that there has been proper citation and service. Id. Katin does not attack the Secretary's certificate or argue that the Secretary failed in his statutory duties regarding the handling of Loesch's petition upon receipt, (2) see Tex. Bus. Corp. Act Ann. art. 2.11, §§ B, C, nor does Katin argue that Loesch did not use reasonable diligence before turning to substituted service through the Secretary of State. See Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 34-35 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
Thus, although it never received the petition, Katin was served with citation. See Tex. Bus. Corp. Act Ann. art. 2.11, § B; Campus Invs., 144 S.W.3d at 466, BLS Limousine Serv., Inc. v. Buslease, Inc., 680 S.W.2d 543, 546 (Tex. App.--Dallas 1984, writ n.r.e.) ("[a]lthough the citations were returned to the Secretary bearing the notation 'refused,' appellants were served in accordance with the requirements" of article 2.11's predecessor).
Therefore, the default judgment will stand unless Katin can show that its failure to answer was unintentional and not the result of conscious indifference, but due to mistake or accident; set out a meritorious defense; and show that setting aside the default would not cause delay or otherwise injure Loesch. See Craddock, 133 S.W.2d at 126; see also Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574-75 (Tex. 2006) (applying Craddock where registered agent received citation but failed to forward it to party).
Katin asserts that it did not own the restaurant at which Loesch worked, thereby describing a meritorious defense, and it has offered to pay Loesch's expenses, thus setting aside the judgment arguably would not harm Loesch other than delaying her possible recovery. See Craddock, 133 S.W.2d at 126. Thus, the only question is whether Katin showed that its failure to answer was not intentional or the result of conscious indifference, but rather due to mistake or accident. See id. Katin asserts that because Loesch did not request an evidentiary hearing, Adler's affidavit must be taken as true and negates any conscious indifference or intentional evasion of service.
If a plaintiff does not controvert the defendant's affidavit in support of its motion for new trial, the trial court should accept all as true the affidavit's factual assertions regarding the elements of the Craddock test. See Director, St. Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994); see also Strackbein, 671 S.W.2d at 38 ("Where factual allegations in a movant's affidavit are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.").
Further, even if the plaintiff controverts the defendant's affidavit, the trial court should accept as true the defendant's factual assertions about its meritorious defense. Evans, 889 S.W.2d at 270; Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). (3) However, the court is not bound to accept the defendant's controverted assertions related to accident or mistake and may decide the issue based on the evidence in the record before the court. See Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003) ("If the factual assertions in the claimant's testimony are not controverted by the opposing party, the claimant satisfies his or her burden if the testimony sets forth facts that, if true, negate intentional or consciously indifferent conduct by the claimant. In determining if the claimant's factual assertions are controverted, we look to all the evidence in the record." (citations omitted)); see also Evans, 889 S.W.2d at 269 ("If the factual assertions in the defendant's affidavit are not controverted by the plaintiff, the defendant satisfies his burden if his affidavit sets forth facts that, if true, negate intentional or consciously indifferent conduct by the defendant. In determining if the defendant's factual assertions are controverted, the court looks to all the evidence in the record." (citations omitted)); Ataya, 2007 Tex. App. LEXIS 895, at *11-13 (defendants argued that trial court erred in basing fact finding on affidavits, without hearing testimony; court held that because hearing was held and parties had opportunity to present testimony, court did not abuse its discretion by basing its ruling on affidavit evidence before it).
To support its contention that Adler's affidavit must be taken as true, Katin cites to Smith v. Holmes, 53 S.W.3d 815 (Tex. App.--Austin 2001, no pet.), and Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574 (Tex. App.--Dallas 1989, no writ). Having carefully reviewed this line of cases, we believe they are consistent with our affirmance of the trial court's judgment.
In considering whether the defendant's motion for new trial set up a meritorious defense, the Averitt court stated that "[o]n a motion for new trial, the trial court is bound to accept as true the affidavits of the movant, unless the opponent requests an evidentiary hearing." 773 S.W.2d at 576. The court noted that, with regard to the defendant's assertion of facts showing an excuse for his failure to appear, the "uncontroverted allegation" showed that the defendant negated intentionally or consciously indifferent conduct. Id. In Smith, this Court cited Averitt for the proposition that the trial court must accept a movant's affidavits as true unless the opponent requests an evidentiary hearing. 53 S.W.3d at 818. We held that although the plaintiffs showed that notice of the trial setting was delivered to the prison where Smith was incarcerated, they "did not introduce any other evidence to show that" notice was delivered, and Smith's uncontroverted affidavit established that he never actually received the notice. Id.
To support its holding that the trial court must accept a movant's affidavit as true unless the opponent requests an evidentiary hearing, the Averitt court cited Healy v. Wick Building Systems, Inc., 560 S.W.2d 713 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.), and Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.). 773 S.W.2d at 576. In Healy, the court considered competing affidavits on the issue of conscious indifference. 560 S.W.2d at 721 (op. on reh'g). The Healy court stated that although a trial court may not consider contrary evidence in determining whether the defendant set up a meritorious defense, a trial court may determine disputed fact issues with respect to conscious indifference if it hears evidence. Id. Because the defendants' allegations of accident or mistake were disputed by the plaintiff's affidavit but no evidentiary hearing was requested or held, the court held that "under these circumstances, . . . a court cannot make findings of fact solely from the record on file without hearing evidence and . . . is bound to accept as true the affidavits of the movant unless his opponent requests an evidentiary hearing," citing Pardee as support. Id.
Pardee, however, is not so broad in its statement of the law. Instead, the Pardee court stated:
We recognize that the trial court filed numerous findings of fact in this case, and that these findings have been relied upon to support, among other arguments, Pardee's contention regarding Dallas Heating's conscious indifference. However, we cannot consider these findings because the recitals in Dallas Heating's affidavit were not controverted by Pardee. No fact issue was drawn regarding the allegations and in the absence of disputed facts, findings of fact are unauthorized. In such a case, the conscious indifference question must be determined in the same manner as the issue of meritorious defense, and it is sufficient that the motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct. 561 S.W.2d at 19-20 (citations omitted); see also Cragin v. Henderson County Oil Dev. Co., 280 S.W. 554, 555-56 (Tex. 1926) (allegations of meritorious defense taken as true, but allegations of excuse for failure to appear may be controverted and determined by trial court).
Further, the supreme court has held that a trial court may determine controverted fact issues based on all the evidence contained in the record. See Walker, 111 S.W.3d at 64; Evans, 889 S.W.2d at 269. Thus, controverted assertions related to a defendant's excuse for its default need not be taken as true, even if the plaintiff does not request an evidentiary hearing. Only when factual allegations of excuse are not controverted by the plaintiff may a trial court determine the issue "in the same manner as the issue of meritorious defense." Pardee, 561 S.W.2d at 20.
Katin filed its motion for new trial, along with Adler's affidavit. Loesch filed a response, including affidavits and other evidence, asserting that Katin had evaded service by refusing the certified mail and refusing to speak to the process server when he called on Adler. The trial court then held a hearing at which attorneys for both parties presented arguments based on the affidavits but neither party called any witnesses.
We hold that Loesch's failure to explicitly request an evidentiary hearing did not require the trial court to take as true Katin's controverted statements of fact regarding accident or mistake. See Ataya, 2007 Tex. App. LEXIS 895, at *12. The trial court was entitled to consider Loesch's evidence related to Katin's factual allegations of mistake or accident, as well as any conflicting inferences that arose from Adler's affidavit. See Averitt, 773 S.W.2d at 576-77 (Kinkeade, J., dissenting) ("Even when an affidavit is taken as true, the affidavit may permit conflicting inferences.").
Adler averred that Katin had in the past had trouble receiving mail due to confusion at the nearby restaurant, going so far as to instruct employees "not to accept certified mail" for Katin. Despite that history, Katin continued to use that office for its registered agent, who has a statutory duty to accept service of process, and Adler did not describe a reliable process that was put into place to ensure that he would receive notice of delivery attempts. He averred that he had no knowledge of any refusal, but admitted that he might have told his staff not to disturb him and did not aver that he investigated and learned that no one in his office refused any mail or said that he "would not come out to accept the process." In other words, beyond stating that he did not personally tell anyone to "refuse" service and that he did not know of the attempts to serve Katin, Adler did not explain why certified mail addressed to Katin was twice returned as "Refused" or why one process server was told that Adler would not accept service.
Adler, as Katin's agent for service, was responsible for what happened in his office, for what process servers were told, and for ensuring that notice of certified mail would make its way to him.
Conscious indifference is the failure to act in a way that a reasonable person would act under similar circumstances. Sledge, 982 S.W.2d at 914. A registered agent is required to "accept service of process and otherwise perform the functions of a registered agent" during normal business hours. Tex. Bus. Corp. Act Ann. art. 2.09(A)(2) (West Supp. 2006).
Despite Adler's disavowal of any knowledge of refusal, the Secretary of State's certificate and an affidavit by one of the first two process servers stated that certified mail to Katin was returned "refused," the other process server averred that Adler seemed to be "avoiding" service, and Adler acknowledged having difficulty receiving certified mail in the past. The Secretary of State's certificate is "prima facie evidence of the facts recited therein," G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 818 (Tex. App.--Houston [1st Dist.] 1996, no writ), and thus is prima facie evidence that the United States Postal Service returned the certified mail with a "refused" notation. This is supported by the process server's affidavit stating that his attempt at service through certified mail was returned "refused." Katin has not cited and we have not found any cases where a default judgment was set aside after service has been refused, as opposed to "unclaimed" or returned for lack of a forwarding address.
"Conflicting inferences" may be drawn from Adler's affidavit, and the trial court's interpretation of the affidavit in view of Loesch's evidence is not contrary to the only permissible view of the evidence. See In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports decision, but it does abuse its discretion if its decision is "contrary to the only permissible view of the evidence"). We cannot hold that the trial court's resolution of the evidentiary conflicts or denial of Katin's motion for new trial was an abuse of discretion. We overrule Katin's sole issue on appeal.
CONCLUSION
Having overruled Katin's sole issue on appeal, we affirm the trial court's judgment.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton and B. A. Smith*
Affirmed on Motion for Rehearing
Filed: August 10, 2007
Friday, August 10, 2007
Thursday, August 9, 2007
Interlocutory appeal of frivolous-suit sanctions dismissed
Order imposing sanctions for filing claim without proper factual basis not appealable in the absence of a final judgment. Austin appeals court finds it lacks jurisdiction and dismisses the attempted appeal.
T. Christopher Robson v. Garrett Gilbreath and David Gilbreath, No. 03-06-00364-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Waldrop)(sanctions appeal, DWOJ)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002474, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
In this interlocutory appeal, T. Christopher Robson challenges the trial court's order sanctioning him $10,000 for failure to conduct a reasonable inquiry prior to filing a claim against David Gilbreath. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 353 (Tex. 1998).
A sanctions order is not among the trial court rulings that is subject to interlocutory appeal. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006). Accordingly, we have no jurisdiction and dismiss this appeal.
In response to an inquiry from this Court's clerk regarding the lack of finality and appealability of this order, Robson filed a motion to abate this appeal. He asserted that the case had been settled except for the sanctions, that the settlement required approval by a probate court, and that a final judgment would be presented to the district court for signature "immediately" after the settlement was approved as expected at a hearing set for July 10, 2007. Robson's notice of appeal challenging the sanctions order could then be treated as a premature filing that became effective and deemed filed the day of, but after, the final judgment. See Tex. R. App. P. 27.1(a). More than four weeks have passed without additional communication from the parties or the trial court. We have not been informed whether the settlement was approved and have not been provided with a supplemental clerk's record containing an order or judgment that would make Robson's premature notice effective and bestow jurisdiction upon this Court. We lack jurisdiction over this appeal.
We deny the motion to abate and dismiss this appeal.
T. Christopher Robson v. Garrett Gilbreath and David Gilbreath, No. 03-06-00364-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Waldrop)(sanctions appeal, DWOJ)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-04-002474, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE WALDROP
In this interlocutory appeal, T. Christopher Robson challenges the trial court's order sanctioning him $10,000 for failure to conduct a reasonable inquiry prior to filing a claim against David Gilbreath. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute expressly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 353 (Tex. 1998).
A sanctions order is not among the trial court rulings that is subject to interlocutory appeal. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006). Accordingly, we have no jurisdiction and dismiss this appeal.
In response to an inquiry from this Court's clerk regarding the lack of finality and appealability of this order, Robson filed a motion to abate this appeal. He asserted that the case had been settled except for the sanctions, that the settlement required approval by a probate court, and that a final judgment would be presented to the district court for signature "immediately" after the settlement was approved as expected at a hearing set for July 10, 2007. Robson's notice of appeal challenging the sanctions order could then be treated as a premature filing that became effective and deemed filed the day of, but after, the final judgment. See Tex. R. App. P. 27.1(a). More than four weeks have passed without additional communication from the parties or the trial court. We have not been informed whether the settlement was approved and have not been provided with a supplemental clerk's record containing an order or judgment that would make Robson's premature notice effective and bestow jurisdiction upon this Court. We lack jurisdiction over this appeal.
We deny the motion to abate and dismiss this appeal.
Consumer's time-barred DTPA suit dismissed as frivolous
Court of Appeals affirms dismissal of suit in which plaintiff alleged that a sandwich she bought from Jack in the Box made her sick; holds that negligence and DTPA claims were barred by two-year statute of limitations, and that trial court's dismissal of her claims as lacking an arguable basis in law was proper.
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Juvenile's 10-year committment for sex offense affirmed
In the Matter of C.E. No. 03-05-00495-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Chief Justice Law)(juvenile delinquency)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 22nd District Court of Comal County
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. 2562B, HONORABLE GARY L. STEEL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court found that appellant C.E. engaged in delinquent conduct by committing the offense of aggravated sexual assault of a child and committed C.E. to the Texas Youth Commission for ten years. See Tex. Fam. Code Ann. § 54.03 (West Supp. 2006); Tex. Penal Code Ann. § 22.021 (West Supp. 2006).
In his sole issue, C.E. asserts that the court violated his Fifth Amendment privilege against self-incrimination at the disposition hearing by admitting the testimony of his therapist concerning C.E.'s disclosure of two prior sexual assaults on children. We conclude that any error in the trial court's admission of the testimony was harmless because there was no objection to the inclusion of C.E.'s disclosure in the predisposition report that the court reviewed. See Tex. Fam. Code Ann. § 54.04(b) (West Supp. 2006). Accordingly, we affirm the trial court's judgment.
BACKGROUND
C.E. was detained in a juvenile-detention center after the trial court entered an order finding probable cause to believe that C.E. had engaged in delinquent conduct, that C.E. might be a danger to himself or threaten the safety of the public if released, and that C.E. resided in the same home with the victim. The court entered subsequent detention orders holding C.E. until the juvenile probation department verified that the victim was removed from the home. C.E. was later released on house arrest with electronic monitoring.
At the adjudication hearing, C.E. pleaded true to the State's petition, which alleged that he had engaged in delinquent conduct on or about September 20, 2004, by committing the offense of aggravated sexual assault on a child younger than 14 years of age. See Tex. Penal Code Ann. § 22.021. The State's petition had previously been approved by a grand jury. See Tex. Fam. Code Ann. § 53.045 (West 2002). C.E. waived reading of the allegations in the State's petition, stipulated to the State's evidence, and waived trial by jury. Based on C.E.'s plea and the evidence, the court found that C.E. had engaged in the delinquent conduct alleged in the State's petition and proceeded to conduct the disposition phase of the hearing.
During the disposition phase, the State called C.E.'s therapist, John Morris, who stated that he began counseling C.E. on December 20, 2004, after C.E. was released from the detention center. The record is unclear about who initiated these counseling sessions. Morris testified that he thought that C.E. "would be at a high risk to reoffend." When the prosecutor asked why Morris believed that, Morris began by responding, "The number of victims--"
Anticipating the therapist's testimony, defense counsel interrupted and requested to take Morris on voir dire examination "[t]o determine whether or not the statements that were made by [C.E.] were--are admissible." After questioning Morris briefly, counsel objected to the admission of "any statements" from C.E., arguing that Morris saw C.E. through the juvenile probation department, "and it was somewhat a condition--[C.E.] had to be ordered to." Counsel further argued that Morris was an arm of the State and that any statements by C.E. were made during a custodial interrogation that should have been preceded by a "Miranda warning." See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although he objected to C.E.'s statements "coming in," defense counsel stated twice that he did not object to Morris's opinion. The trial court overruled the objection but allowed a running objection on Morris's comments regarding his discussions with C.E.
When Morris continued with his testimony, he recalled C.E. stating that "he was there originally for committing a sexual offense against . . . a four-year-old boy" whom C.E. claimed to have assaulted two times. Morris then testified that on January 19, 2005, C.E. disclosed his sexual assaults of two additional victims: a four-year-old girl in Tennessee and a six-year-old boy in Texas. Morris opined that C.E. had a high risk to reoffend based on the number of his victims, his pattern of misbehavior, his violation of electronic monitoring, and the "cognitive distortions" that he used to justify his behavior. He stated that C.E. required long-term sex-offender treatment in a supervised, structured setting.
C.E.'s probation officer, Alissa Payne, also testified during the disposition hearing. She stated that C.E.'s supervision within the home was "very poor and inadequate, considering that the offense took place in the home with dad in the next room." Payne also noted that C.E.'s father had not visited C.E. in the "last couple of months in detention."
The court also heard testimony from C.E.'s father, who stated that C.E. had been living with him for nine months. Previously, C.E. had been living with his mother, whom he had lived with since he was five years old. C.E.'s father agreed to make every effort to prevent C.E. from violating conditions of probation that the court might order.
In addition to the witnesses' testimony, the record reflects that the court considered the juvenile probation department's predisposition investigation report, which states, "[C.E.] has since disclosed victimizing two other children, a six-year-old boy cousin and a 4-year-old girl."
Defense counsel did not object to this statement.
After hearing the testimony and considering the predisposition investigation report, the trial court ordered C.E. confined for 10 years in the Texas Youth Commission and the Texas Department of Criminal Justice, Institutional Division, and ordered him to register as a sex offender for life. This appeal followed.
DISCUSSION
In his sole issue, C.E. contends that the trial court violated his Fifth Amendment privilege against self-incrimination by admitting Morris's testimony concerning C.E.'s disclosure of two prior sexual assaults on children. C.E. asserts that he was not given a Miranda warning before the counseling session. See id. The State asserts that C.E. was not in a custodial-interrogation situation and that Morris was not acting as an agent of the State when C.E. made his disclosure. Alternatively, the State argues that the admission of C.E.'s statements was harmless because the defense waived any objection to Morris's consideration of those statements in rendering his opinion about C.E.'s risk to reoffend.
In reviewing claims of Miranda violations, we grant almost total deference to the trial court's determination of the historical facts that the record supports--especially when the court's factual findings are based on an evaluation of the witnesses' credibility and demeanor--and review de novo the trial court's rulings on application-of-law-to-fact questions that are not based on credibility and demeanor. Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); In re L.M., 993 S.W.2d 276, 286 (Tex. App.--Austin 1999, pet. denied).
The Fifth Amendment provides, "No person shall . . . be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. This privilege against self-incrimination applies to adults and juveniles. In re Gault, 387 U.S. 1, 55 (1967); In re V.P., 55 S.W.3d 25, 31 (Tex. App.--Austin 2001, pet. denied). Further, the privilege is applicable at both the sentencing and guilt-or-innocence phases of a criminal proceeding. See Mitchell v. United States, 526 U.S. 314, 328-29 (1999) (applying Fifth Amendment privilege to sentencing phase of adult criminal proceeding); In re J.S.S., 20 S.W.3d 837, 844 (Tex. App.--El Paso 2000, pet. denied) (holding that Fifth Amendment privilege applies from conclusion of adjudication hearing through conclusion of disposition hearing in juvenile-delinquency proceeding).
The privilege against self-incrimination is implicated if the prosecution is allowed to use statements stemming from the defendant's custodial interrogation without applying procedural safeguards effective to secure the privilege. See Miranda, 385 U.S. at 444. In the absence of other fully effective safeguards, a defendant's statements during custodial interrogation may only be used if, prior to interrogation, the defendant is given a Miranda warning--advising the defendant of the right to remain silent, that any statement made can be used against the defendant, and that the defendant has the right to counsel. Id.
A Miranda warning is only necessary when the defendant is subject to custodial interrogation. Id. Statements made by the defendant in this setting are inadmissible at trial unless proper Miranda warnings were given. Id. "Custodial interrogation" refers to questioning that is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id.
Questioning "initiated by law enforcement officers" may include questioning by a court-ordered psychiatrist. See Estelle v. Smith, 451 U.S. 454, 467 (1981). A criminal defendant who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if the defendant's statements may be used against the defendant at a criminal proceeding. Id. at 468. Unless they are preceded by a Miranda warning, the statements to the psychiatrist will be inadmissible when offered against the defendant to prove the defendant's future dangerousness. See id.
But Fifth Amendment concerns are not necessarily presented by all types of interviews and examinations that might be ordered or relied on to inform a sentencing determination. Id. at 469 n.13. For instance, if the defendant initiates or requests a psychiatric evaluation or presents psychiatric evidence, then the prosecution may use statements from that same evaluation for rebuttal. Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987). A psychiatric evaluation that is not court-ordered but is initiated by the defendant does not constitute custodial interrogation and need not be preceded by Miranda warnings. See id.
Thus, the threshold question in this case is whether C.E. was ordered by the court or otherwise compelled to attend psychiatric counseling with Morris. If C.E. was not so ordered or compelled, then he was not subject to custodial interrogation or entitled to Miranda warnings, and his incriminating statements to Morris cannot receive Fifth Amendment protection.
Nothing in this record clearly proves that C.E. was under court order or was otherwise compelled to attend psychiatric counseling with Morris. The order releasing C.E. from juvenile detention to house arrest does not contain any condition requiring C.E. to attend counseling nor is there any order initiating C.E.'s counseling. During his objection to the admission of C.E.'s statements, defense counsel stated that counseling was "somewhat a condition--[C.E.] had to be ordered to." There is a docket sheet entry on October 7, 2004, stating, "Counseling to be set-up immediately." A detention order signed on February 15, 2005, states "the child and/or family was previously referred to . . . counseling or psychological services" with "Dr. McNeil--Psychological Evaluation" and "New Braunfels Counseling Center--John Morris, RSOTP." The source of that referral is unspecified. Additionally, while Morris testified that he had seen C.E. "essentially through the juvenile probation department," C.E. acknowledges in his brief that the purpose of the regular meetings was for his treatment, "rather than for a law enforcement interrogation." The evidence in this record could suggest that C.E. was ordered to seek counseling by the probation department or--just as likely--that C.E. was encouraged to seek counseling and the probation department connected C.E. with Morris at C.E.'s request.
We need not decide this question, however, because we determine beyond a reasonable doubt that, even if the counseling were compelled and if the admission of the therapist's testimony about C.E.'s disclosure should not have been admitted, any such error was harmless and did not contribute to C.E.'s conviction or punishment. See Tex. R. App. P. 44.2(a).
C.E.'s disclosure of his previous sexual assaults on two other children was included in the juvenile probation department's predisposition investigation report. Section 54.04 of the family code authorizes the court to consider "written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses" at the disposition hearing. See Tex. Fam. Code Ann. § 54.04(b); see also In re J.A.W., 976 S.W.2d 260, 264 (Tex. App.--San Antonio 1998, no pet.) (concluding that court could consider detention center reports that neither party offered into evidence during disposition hearing); In re A.F., 895 S.W.2d 481, 486 (Tex. App.--Austin 1995, no writ) (holding that court could consider social history report during disposition hearing).
In reaching its disposition, the court was entitled to consider the juvenile probation department's predisposition report, independent of Morris's testimony about what C.E. disclosed during his therapy session. Accordingly, any error in the court's ruling concerning the admissibility of Morris's testimony about C.E.'s previous sexual assaults was harmless. See McNac v. State, 215 S.W.3d 420, 424-25 (Tex. Crim. App. 2007) (citing Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (holding that improper admission of evidence is not reversible error if same facts are shown by other evidence that is unchallenged)); see also Tex. Fam. Code Ann. § 54.04(b). Because we have determined that any error in the admission of Morris's testimony about C.E.'s disclosure of two prior sexual assaults on children was harmless, we overrule C.E.'s sole issue.
CONCLUSION
Having overruled C.E.'s sole issue on appeal, we affirm the trial court's judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
Appeal from 22nd District Court of Comal County
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. 2562B, HONORABLE GARY L. STEEL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court found that appellant C.E. engaged in delinquent conduct by committing the offense of aggravated sexual assault of a child and committed C.E. to the Texas Youth Commission for ten years. See Tex. Fam. Code Ann. § 54.03 (West Supp. 2006); Tex. Penal Code Ann. § 22.021 (West Supp. 2006).
In his sole issue, C.E. asserts that the court violated his Fifth Amendment privilege against self-incrimination at the disposition hearing by admitting the testimony of his therapist concerning C.E.'s disclosure of two prior sexual assaults on children. We conclude that any error in the trial court's admission of the testimony was harmless because there was no objection to the inclusion of C.E.'s disclosure in the predisposition report that the court reviewed. See Tex. Fam. Code Ann. § 54.04(b) (West Supp. 2006). Accordingly, we affirm the trial court's judgment.
BACKGROUND
C.E. was detained in a juvenile-detention center after the trial court entered an order finding probable cause to believe that C.E. had engaged in delinquent conduct, that C.E. might be a danger to himself or threaten the safety of the public if released, and that C.E. resided in the same home with the victim. The court entered subsequent detention orders holding C.E. until the juvenile probation department verified that the victim was removed from the home. C.E. was later released on house arrest with electronic monitoring.
At the adjudication hearing, C.E. pleaded true to the State's petition, which alleged that he had engaged in delinquent conduct on or about September 20, 2004, by committing the offense of aggravated sexual assault on a child younger than 14 years of age. See Tex. Penal Code Ann. § 22.021. The State's petition had previously been approved by a grand jury. See Tex. Fam. Code Ann. § 53.045 (West 2002). C.E. waived reading of the allegations in the State's petition, stipulated to the State's evidence, and waived trial by jury. Based on C.E.'s plea and the evidence, the court found that C.E. had engaged in the delinquent conduct alleged in the State's petition and proceeded to conduct the disposition phase of the hearing.
During the disposition phase, the State called C.E.'s therapist, John Morris, who stated that he began counseling C.E. on December 20, 2004, after C.E. was released from the detention center. The record is unclear about who initiated these counseling sessions. Morris testified that he thought that C.E. "would be at a high risk to reoffend." When the prosecutor asked why Morris believed that, Morris began by responding, "The number of victims--"
Anticipating the therapist's testimony, defense counsel interrupted and requested to take Morris on voir dire examination "[t]o determine whether or not the statements that were made by [C.E.] were--are admissible." After questioning Morris briefly, counsel objected to the admission of "any statements" from C.E., arguing that Morris saw C.E. through the juvenile probation department, "and it was somewhat a condition--[C.E.] had to be ordered to." Counsel further argued that Morris was an arm of the State and that any statements by C.E. were made during a custodial interrogation that should have been preceded by a "Miranda warning." See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although he objected to C.E.'s statements "coming in," defense counsel stated twice that he did not object to Morris's opinion. The trial court overruled the objection but allowed a running objection on Morris's comments regarding his discussions with C.E.
When Morris continued with his testimony, he recalled C.E. stating that "he was there originally for committing a sexual offense against . . . a four-year-old boy" whom C.E. claimed to have assaulted two times. Morris then testified that on January 19, 2005, C.E. disclosed his sexual assaults of two additional victims: a four-year-old girl in Tennessee and a six-year-old boy in Texas. Morris opined that C.E. had a high risk to reoffend based on the number of his victims, his pattern of misbehavior, his violation of electronic monitoring, and the "cognitive distortions" that he used to justify his behavior. He stated that C.E. required long-term sex-offender treatment in a supervised, structured setting.
C.E.'s probation officer, Alissa Payne, also testified during the disposition hearing. She stated that C.E.'s supervision within the home was "very poor and inadequate, considering that the offense took place in the home with dad in the next room." Payne also noted that C.E.'s father had not visited C.E. in the "last couple of months in detention."
The court also heard testimony from C.E.'s father, who stated that C.E. had been living with him for nine months. Previously, C.E. had been living with his mother, whom he had lived with since he was five years old. C.E.'s father agreed to make every effort to prevent C.E. from violating conditions of probation that the court might order.
In addition to the witnesses' testimony, the record reflects that the court considered the juvenile probation department's predisposition investigation report, which states, "[C.E.] has since disclosed victimizing two other children, a six-year-old boy cousin and a 4-year-old girl."
Defense counsel did not object to this statement.
After hearing the testimony and considering the predisposition investigation report, the trial court ordered C.E. confined for 10 years in the Texas Youth Commission and the Texas Department of Criminal Justice, Institutional Division, and ordered him to register as a sex offender for life. This appeal followed.
DISCUSSION
In his sole issue, C.E. contends that the trial court violated his Fifth Amendment privilege against self-incrimination by admitting Morris's testimony concerning C.E.'s disclosure of two prior sexual assaults on children. C.E. asserts that he was not given a Miranda warning before the counseling session. See id. The State asserts that C.E. was not in a custodial-interrogation situation and that Morris was not acting as an agent of the State when C.E. made his disclosure. Alternatively, the State argues that the admission of C.E.'s statements was harmless because the defense waived any objection to Morris's consideration of those statements in rendering his opinion about C.E.'s risk to reoffend.
In reviewing claims of Miranda violations, we grant almost total deference to the trial court's determination of the historical facts that the record supports--especially when the court's factual findings are based on an evaluation of the witnesses' credibility and demeanor--and review de novo the trial court's rulings on application-of-law-to-fact questions that are not based on credibility and demeanor. Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); In re L.M., 993 S.W.2d 276, 286 (Tex. App.--Austin 1999, pet. denied).
The Fifth Amendment provides, "No person shall . . . be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. This privilege against self-incrimination applies to adults and juveniles. In re Gault, 387 U.S. 1, 55 (1967); In re V.P., 55 S.W.3d 25, 31 (Tex. App.--Austin 2001, pet. denied). Further, the privilege is applicable at both the sentencing and guilt-or-innocence phases of a criminal proceeding. See Mitchell v. United States, 526 U.S. 314, 328-29 (1999) (applying Fifth Amendment privilege to sentencing phase of adult criminal proceeding); In re J.S.S., 20 S.W.3d 837, 844 (Tex. App.--El Paso 2000, pet. denied) (holding that Fifth Amendment privilege applies from conclusion of adjudication hearing through conclusion of disposition hearing in juvenile-delinquency proceeding).
The privilege against self-incrimination is implicated if the prosecution is allowed to use statements stemming from the defendant's custodial interrogation without applying procedural safeguards effective to secure the privilege. See Miranda, 385 U.S. at 444. In the absence of other fully effective safeguards, a defendant's statements during custodial interrogation may only be used if, prior to interrogation, the defendant is given a Miranda warning--advising the defendant of the right to remain silent, that any statement made can be used against the defendant, and that the defendant has the right to counsel. Id.
A Miranda warning is only necessary when the defendant is subject to custodial interrogation. Id. Statements made by the defendant in this setting are inadmissible at trial unless proper Miranda warnings were given. Id. "Custodial interrogation" refers to questioning that is initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id.
Questioning "initiated by law enforcement officers" may include questioning by a court-ordered psychiatrist. See Estelle v. Smith, 451 U.S. 454, 467 (1981). A criminal defendant who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if the defendant's statements may be used against the defendant at a criminal proceeding. Id. at 468. Unless they are preceded by a Miranda warning, the statements to the psychiatrist will be inadmissible when offered against the defendant to prove the defendant's future dangerousness. See id.
But Fifth Amendment concerns are not necessarily presented by all types of interviews and examinations that might be ordered or relied on to inform a sentencing determination. Id. at 469 n.13. For instance, if the defendant initiates or requests a psychiatric evaluation or presents psychiatric evidence, then the prosecution may use statements from that same evaluation for rebuttal. Buchanan v. Kentucky, 483 U.S. 402, 422-23 (1987). A psychiatric evaluation that is not court-ordered but is initiated by the defendant does not constitute custodial interrogation and need not be preceded by Miranda warnings. See id.
Thus, the threshold question in this case is whether C.E. was ordered by the court or otherwise compelled to attend psychiatric counseling with Morris. If C.E. was not so ordered or compelled, then he was not subject to custodial interrogation or entitled to Miranda warnings, and his incriminating statements to Morris cannot receive Fifth Amendment protection.
Nothing in this record clearly proves that C.E. was under court order or was otherwise compelled to attend psychiatric counseling with Morris. The order releasing C.E. from juvenile detention to house arrest does not contain any condition requiring C.E. to attend counseling nor is there any order initiating C.E.'s counseling. During his objection to the admission of C.E.'s statements, defense counsel stated that counseling was "somewhat a condition--[C.E.] had to be ordered to." There is a docket sheet entry on October 7, 2004, stating, "Counseling to be set-up immediately." A detention order signed on February 15, 2005, states "the child and/or family was previously referred to . . . counseling or psychological services" with "Dr. McNeil--Psychological Evaluation" and "New Braunfels Counseling Center--John Morris, RSOTP." The source of that referral is unspecified. Additionally, while Morris testified that he had seen C.E. "essentially through the juvenile probation department," C.E. acknowledges in his brief that the purpose of the regular meetings was for his treatment, "rather than for a law enforcement interrogation." The evidence in this record could suggest that C.E. was ordered to seek counseling by the probation department or--just as likely--that C.E. was encouraged to seek counseling and the probation department connected C.E. with Morris at C.E.'s request.
We need not decide this question, however, because we determine beyond a reasonable doubt that, even if the counseling were compelled and if the admission of the therapist's testimony about C.E.'s disclosure should not have been admitted, any such error was harmless and did not contribute to C.E.'s conviction or punishment. See Tex. R. App. P. 44.2(a).
C.E.'s disclosure of his previous sexual assaults on two other children was included in the juvenile probation department's predisposition investigation report. Section 54.04 of the family code authorizes the court to consider "written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses" at the disposition hearing. See Tex. Fam. Code Ann. § 54.04(b); see also In re J.A.W., 976 S.W.2d 260, 264 (Tex. App.--San Antonio 1998, no pet.) (concluding that court could consider detention center reports that neither party offered into evidence during disposition hearing); In re A.F., 895 S.W.2d 481, 486 (Tex. App.--Austin 1995, no writ) (holding that court could consider social history report during disposition hearing).
In reaching its disposition, the court was entitled to consider the juvenile probation department's predisposition report, independent of Morris's testimony about what C.E. disclosed during his therapy session. Accordingly, any error in the court's ruling concerning the admissibility of Morris's testimony about C.E.'s previous sexual assaults was harmless. See McNac v. State, 215 S.W.3d 420, 424-25 (Tex. Crim. App. 2007) (citing Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (holding that improper admission of evidence is not reversible error if same facts are shown by other evidence that is unchallenged)); see also Tex. Fam. Code Ann. § 54.04(b). Because we have determined that any error in the admission of Morris's testimony about C.E.'s disclosure of two prior sexual assaults on children was harmless, we overrule C.E.'s sole issue.
CONCLUSION
Having overruled C.E.'s sole issue on appeal, we affirm the trial court's judgment.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
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