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The STATE of Texas, Appellant v. FORTY-FIVE THOUSAND AND EIGHT HUNDRED TEN DOLLARS AND TEN CENTS ($45,810.10) IN UNITED STATES CURRENCY, Appellee
The State of Texas appeals an order granting summary judgment in this civil forfeiture proceeding. We affirm the trial court's order.
On March 5, 2019, police arrested Luis Alberto Gonzalez at a home located at 2801 Burke Drive in Laredo and seized $45,810.10 in currency as part of a narcotics investigation. Gonzalez posted bond and was released from custody on March 6, 2019. On his bond application, he listed his address as 2120 Ash Street in Laredo. On March 11, 2019, attorney Silverio Martinez notified the Webb County District Attorney's Office that he represented Gonzalez in connection with the March 5, 2019 arrest.
On March 20, 2019, the State filed the civil forfeiture lawsuit at issue in this appeal. On March 22, 2019, it attempted to serve notice of that lawsuit on Gonzalez by mailing a citation and petition to 1001 San Rio Boulevard, Laredo, a federal detention facility. There is no evidence Gonzalez was detained there or in any other federal facility. The same day, the State also mailed a citation and petition to 2810 Burke Drive, Laredo instead of to 2801 Burke Drive, Laredo, the location where Gonzalez was arrested. Both of these citations were returned unexecuted by April 26, 2019.
On May 16, 2019, an investigator with the Webb County District Attorney's Office performed a CLEAR search of Gonzalez's residence history. The search results listed 2120 Ash Street and 2801 Burke Drive as Gonzalez's most recent residences. On May 20, 2019, a Webb County assistant district attorney asked an investigator if Gonzalez was “still in federal custody.” On May 24, 2019, another investigator with the Webb County District Attorney's Office spoke to Gonzalez on the phone. Gonzalez told the investigator “that his current address was 2801 Burke Drive in Laredo,” but “stated that he was not coming back from San Antonio anytime soon” and asked the investigator to “serve him through his attorney.”
On June 3, 2019, the State appeared for the first trial on the merits setting in this case. Gonzalez did not appear either in person or through his attorney, and the trial court noted that he “hasn't been served.” The attorney for the State asserted, “[A]s far as I'm aware, Mr. Gonzalez is represented by Mr. [Silverio] Martinez's office.” The State then requested a new trial setting.
On July 22, 2019, the State tried for the first time to serve Gonzalez by mail at 2120 Ash Street, the address listed on his bond application and the most recent entry on the CLEAR search report. On July 25, 2019, a State investigator visited 2120 Ash Street and spoke to Gonzalez's sister-in-law, who stated Gonzalez had never lived at that address and had moved to San Antonio. That same day, the State both filed a motion for substitute service and delivered a copy of the petition to Gonzalez's attorney, Martinez, for the first time. Martinez filed an answer on Gonzalez's behalf on July 31, 2019. The answer alleged that “[a]lthough the seizure of this property occurred on March 5, 2019, [Gonzalez] was just served with process on July 25, 2019.”
On July 31, 2019, the parties appeared for the second trial on the merits setting. During that hearing, Gonzalez argued the forfeiture lawsuit was barred by limitations because the State did not serve him with notice of the lawsuit within thirty days of the seizure and did not exercise reasonable diligence to serve him after limitations expired. The trial court agreed and signed an order dismissing the forfeiture lawsuit and finding that “the State of Texas failed to demonstrate that it exercised due diligence in attempting service of process within the required limitations period of Chapter 59 of the Texas Code of Criminal Procedure [and] offered no justification for the lack of timely service of process.” The State then filed a motion for new trial noting that Gonzalez's live answer did not specifically plead limitations. The trial court granted the motion for new trial, and reinstated the case. Gonzalez then amended his answer to plead limitations, and later amended his petition to specifically allege he was the owner of the seized currency.
Gonzalez filed a traditional motion for summary judgment on his limitations defense. In support of his motion, Gonzalez presented, inter alia, Martinez's affidavit stating that “a person who claimed to be an investigator with the Webb & Zapata County District Attorney's Office” called him shortly after he filed his March 11, 2019 notice of representation and asked if he would accept service of process on Gonzalez's behalf. Martinez stated, “The person did not specify what he planned to serve me with but I nevertheless agreed to accept service of process for my client.” Martinez also stated that he “was never served with anything from the Webb & Zapata County District Attorney's Office” as a result of that phone call and that he “became aware of the forfeiture action” when he received a copy of the petition on July 25.
The State filed a motion to strike both Gonzalez's motion for summary judgment and Martinez's supporting affidavit, arguing the affidavit was “perjurious” because it purportedly conflicted with representations Martinez made in phone calls with the Webb County District Attorney's Office. The trial court denied that motion. The State also responded to Gonzalez's motion for summary judgment, arguing Gonzalez did not show lack of diligence as a matter of law and its own evidence raised a genuine issue of material fact on diligence. Finally, the State argued Gonzalez was equitably estopped from asserting a limitations defense because he gave a false address, evaded service, and fraudulently concealed his whereabouts as part of a scheme to “deceptively raise limitations.”
On September 16, 2019, the trial court granted Gonzalez's motion for summary judgment. The trial court ordered the State “by and through its attorneys of record ․ to return all property seized in this case” by delivering a cashier's check to Martinez in the amount of the seized funds by September 16, 2019. The trial court also ordered that “[f]ailure to comply with this Order shall result in a finding of contempt directly against the party/parties in violation of this order.” The State filed its notice of appeal the same day, but it did not file any post-judgment motions challenging the order in the trial court.
The State raises eleven issues challenging various rulings of the trial court. It groups those issues into four categories: (1) Gonzalez's standing to challenge the forfeiture proceeding; (2) the trial court's ruling on the State's motion to strike Gonzalez's motion for summary judgment; (3) the trial court's ruling on Gonzalez's motion for summary judgment; and (4) complaints about the form of the trial court's summary judgment order. Gonzalez did not file an appellee's brief.
Standard of Review and Applicable Law
In its first issue, the State argues Gonzalez lacks standing to challenge the forfeiture lawsuit because he did not present evidence that he is an owner of or an interest holder in the seized funds. “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “We review questions of standing de novo.” Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020).
The State's forfeiture petition identified Gonzalez as a “possible possessor[ ] and owner[ ]” of the seized currency. Additionally, because the currency was in Gonzalez's possession when the police seized it, the State was required to make him a party to the forfeiture action and serve him with the petition. Tex. Code Crim. Proc. Ann. art. 59.04(j) (“A person who was in possession of the property at the time it was seized shall be made a party to the proceeding.”); Tex. R. Civ. P. 21 (“Every pleading, plea, motion, or application to the court for an order ․ must be served on all other parties[.]”). The State did not identify any other potential owners of or interest holders in the property, and it did not attempt to serve notice of the forfeiture lawsuit on anyone other than Gonzalez. Tex. Code Crim. Proc. Ann. art. 59.04(b) (requiring notice of forfeiture proceeding to be served on “the owner of the property” and “any interest holder in the property”). Nor did it attempt to follow the notification procedures that are required when “no person was in possession of the property at the time it was seized” or “the owner of the property is unknown.” Id. art. 59.04(k). Finally, Gonzalez's live answer alleges he owns the seized funds.
The State has not shown that Gonzalez lacks a justiciable interest in the outcome of this case under these facts. See Austin Nursing Ctr., 171 S.W.3d at 848. To the contrary, the State relies on authority whose facts are readily distinguishable from this case. See Valero v. State, 664 S.W.2d 728, 729 (Tex. App.—Beaumont 1983, writ ref'd n.r.e.) (rejecting challenge to forfeiture judgment because, inter alia, “the State did not allege that appellants, or any one of them, were owners of the premises or any personal property located thereon, and appellants did not file any pleadings containing a claim of ownership or a claim of any interest therein”). The State's cited authority holds only that a litigant must show an ownership or other protected interest in the seized property to obtain a reversal of a forfeiture judgment. See $27,920.00 in U.S. Currency v. State, 37 S.W.3d 533, 535 (Tex. App.—Texarkana 2001, pet. denied); $17,329.00 v. State, 880 S.W.2d 788, 789 (Tex. App.—Houston [1st Dist.] 1993, no writ). Here, however, there is no forfeiture judgment to reverse. Instead, Gonzalez argued—and the trial court agreed—that the State did not timely serve him and therefore lacked authority to proceed with a forfeiture proceeding at all. See Tex. Code Crim. Proc. Ann. art. 59.04(l) (forfeiture proceeding cannot proceed to hearing “unless the judge who is to conduct the hearing is satisfied that [article 59's requirements] have been complied with”). Gonzalez alleged he was the owner of the seized currency. The State has not cited any authority holding that Gonzalez was required to present evidence that he is an owner or interest holder in the seized funds to complain about service. Nor has it presented any support for its implication that the trial court was required to hear evidence on ownership of the seized funds in order to dispose of the forfeiture action on the procedural grounds at issue here.
We overrule the State's first issue.
Motion to Strike
Denial of Request for Sanctions
In its second issue, the State contends the trial court abused its discretion by refusing to strike Gonzalez's motion for summary judgment as a sanction for an allegedly “perjurious” affidavit offered in support of that motion. We review a trial court's sanctions ruling for abuse of discretion. Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 573 (Tex. 2018). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding principles. Guerra v. L&F Distribs., LLC, 521 S.W.3d 878, 889 (Tex. App.—San Antonio 2017, no pet.).
The State argues it conclusively showed that Martinez's affidavit in support of the motion for summary judgment was false, so the trial court was required to impose sanctions under either Chapter 10 of the Texas Civil Practice and Remedies Code or the court's inherent power. According to the State, if a movant “[meets] its burden” to show sanctionable behavior, then as a matter of law, the trial court must grant the requested sanctions. We reject this argument.
Chapter 10 specifies that “[a] court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.” Tex. Civ. Prac. & Rem. Code Ann. § 10.004(a) (emphasis added). The word “may” indicates the Legislature did not intend to make the trial court's sanctioning power under Chapter 10 mandatory. Tex. Gov't Code Ann. 311.016(1).
A trial court's decision to exercise its inherent power is similarly discretionary. See In re Killian, No. 04-01-00598-CV, 2002 WL 873256, at *3 (Tex. App.—San Antonio May 8, 2002, no pet.) (noting a trial court “may call upon [its] inherent power to sanction a party if it finds that to do so will aid in the exercise of [the] court's jurisdiction, in the administration of justice, and in the preservation of its independence and integrity”). The State does not cite any authority, nor do we find any, in which a trial court was found to have abused its discretion by denying a motion for sanctions. See Tex. R. App. P. 38.1(i). Even assuming the evidence supports a finding that Martinez's affidavit was sanctionable, the State failed to show the trial court had no discretion to refuse to assess sanctions. See Malouf v. Elana Spitzberg Tr., No. 05-15-00824-CV, 2016 WL 4158890, at *3–4 (Tex. App.—Dallas Aug. 5, 2016, no pet.) (mem. op.) (refusing to hold trial court abused its discretion by denying sanctions because “even if [appellant] could show the trial court was required to make all the necessary findings in its favor,” appellant “cite[d] no authority that sanctions are mandatory”).
The State also contends the trial court abused its discretion by refusing to require Martinez to testify about the purportedly false allegations in his affidavit and about alleged “similar misconduct” in previous cases. To obtain a reversal on this basis, the State must show that ruling affected its substantial rights. Tex. R. Evid. 103(a); Singh v. Payan, No. 04-17-00111-CV, 2018 WL 4096402, at *2 (Tex. App.—San Antonio Aug. 29, 2018, no pet.) (mem. op.). While the State correctly notes that “Chapter 10 requires an evidentiary hearing to be held before sanctions may be imposed thereunder,” we have held that Chapter 10 does not require an evidentiary hearing before a trial court denies a request for sanctions. See Skinner v. Levine, No. 04-03-00354-CV, 2005 WL 541341, at *3 (Tex. App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.); see also Egan v. Egan, 8 S.W.3d 1, 3 (Tex. App.—San Antonio 1999, pet. denied). Because the trial court was not required to hear any evidence before denying the motion for sanctions, the State cannot show the trial court's refusal to require Martinez to testify affected its substantial rights. Tex. R. Evid. 103(a); Skinner, 2005 WL 541341, at *3.
For these reasons, the trial court did not abuse its discretion by denying the State's motion to strike either Gonzalez's motion for summary judgment or Martinez's affidavit in support of that motion. We overrule the State's second issue.
Denial of Offer of Proof
In its third issue, the State argues the trial court abused its discretion by refusing to allow the State to make an offer of proof about what Martinez's testimony would have shown. An offer of proof is required to preserve error arising out of a ruling excluding evidence. Tex. R. Evid. 103(a)(2). Because we have already held that the trial court was not required to consider Martinez's testimony, we conclude it did not behave arbitrarily or unreasonably by denying the State's request to make an offer of proof on that issue.1 We overrule the State's third issue.
Attorney Argument as Evidence
In its fourth issue, the State argues the trial court abused its discretion “by considering the unsworn oral representations of Martinez as evidence at the summary-judgment hearing.” However, the State did not object to any representations of fact Martinez made during the summary judgment hearing. See Tex. R. App. P. 33.1. While the State now contends it was not required to contemporaneously object because Martinez did not testify under oath, its cited authority does not support that assertion. See Kennedy Con., Inc. v. Forman, 316 S.W.3d 129, 134 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that improper, but unobjected to, presentation of oral evidence did not transform summary judgment hearing into bench trial). Moreover, the State's argument is contrary to the Texas Supreme Court's holding that while an attorney's statements normally “must be under oath to be considered evidence ․ the opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). We therefore hold the State waived appellate review of this issue by failing to object in the trial court, and we overrule the State's fourth issue. Tex. R. App. P. 33.1; Banda, 955 S.W.2d at 272.
Late-Filed Summary Judgment Evidence
In its fifth issue, the State contends the trial court abused its discretion by considering a bondsman's affidavit that was attached to Gonzalez's reply in support of his motion for summary judgment. Because Gonzalez filed his reply less than twenty-one days before the hearing, the State contends the bondsman's affidavit constitutes untimely summary judgment evidence that Gonzalez filed without obtaining leave of court.
“[I]f the record contains nothing indicating the trial court considered a late-filed response, we must presume the trial court did not consider it and we must do likewise.” Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998, pet. dism'd). Here, the trial court's order recites that it considered both Gonzalez's reply and the State's subsequently filed sur-reply. This recital indicates the trial court granted Gonzalez leave to file the untimely summary judgment evidence. See Villarreal v. Chesapeake Operating, LLC, No. 04-16-00107-CV, 2016 WL 5112218, at *2 (Tex. App.—San Antonio Sept. 21, 2016, no pet.) (mem. op.).
The State also argues that even if the bondsman's affidavit was properly before the trial court, it is not relevant evidence and the trial court abused its discretion by considering it. “Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action.” Tex. R. Evid. 401. The bondsman's affidavit states, inter alia, that the terms of Gonzalez's bond allowed him to leave Laredo; Gonzalez was “on a ‘report-by-phone’ basis” with the bondsman; Gonzalez “ha[d] not ‘jumped’ bail or absconded in any way, shape or form”; and the bondsman had, “at all times since the execution of the bail bond, been capable of contacting” Gonzalez. The State argues these factual assertions “ha[ve] no relevance to the State's diligence in attempting to serve” Gonzalez because they do not show that the bondsman knew Gonzalez's correct address. However, the State's response to Gonzalez's motion for summary judgment was not limited to its claims of diligence. It also argued Gonzalez could not prevail on his limitations defense because he intentionally concealed his whereabouts and evaded service in this lawsuit by moving from Laredo to San Antonio. Because the bondsman's affidavit tends to show that Gonzalez did not behave improperly by leaving Laredo and the bondsman knew how to contact him at all pertinent times, we cannot say the trial court abused its discretion by concluding that evidence was relevant to the arguments the State raised in its summary judgment response. Tex. R. Evid. 401; see JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015) (noting “Rule 401 broadly defines relevant evidence”).
We overrule the State's fifth issue.
Summary Judgment Evidence
In its sixth issue, the State argues Gonzalez's summary judgment evidence did not establish that the State lacked diligence as a matter of law. In its seventh issue, it contends that its own evidence raised a genuine issue of material fact as to its diligence. We will consider these issues together.
Standard of Review
Gonzalez filed a traditional motion for summary judgment on his limitations defense. Tex. R. Civ. P. 166a(c). To prevail on that motion, Gonzalez was required to show he was entitled to judgment as a matter of law on that defense. Id.; KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). If Gonzalez satisfied that burden, the State was then required to present evidence that raised a genuine issue of material fact to preclude summary judgment. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). We must view the evidence in the light most favorable to the State and indulge every reasonable inference and resolve all doubts in its favor. Limestone Prods. Distrib. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).
Article 59 of the Texas Code of Criminal Procedure requires a forfeiture proceeding to “commence ․ not later than the 30th day after the date of the seizure” and to be served on required parties “in the same manner as provided for the service of process by citation in civil cases.” Tex. Code Crim. Proc. Ann. art. 59.04(a), (b). A forfeiture proceeding cannot proceed to hearing “unless the judge who is to conduct the hearing is satisfied that [article 59's requirements] have been complied with.” Id. art. 59.04(l).
“[A] timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation.” Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If a defendant affirmatively pleads limitations and shows that service was effected after limitations, then “the burden shifts to the plaintiff to explain the delay.” Id. at 216. The plaintiff's duty to exercise diligence in service “is a continuous one, extending until service is perfected.” $24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 744 (Tex. App.—Texarkana 2008, no pet.).
While reasonable diligence is ordinarily a fact question, lack of diligence can be established as a matter of law if no excuse for the lack of timely service is offered or if the “lapse of time coupled with the plaintiff's acts negate diligence.” One 1991 Chevrolet Blazer v. State, 905 S.W.2d 443, 445 (Tex. App.—Amarillo 1995, no writ).2 If “one or more lapses between service efforts are unexplained or patently unreasonable,” then the plaintiff lacks diligence as a matter of law. Proulx, 235 S.W.3d at 216. The two factors to be examined in determining due diligence are: (1) whether the State acted as an ordinarily prudent person would have under the same circumstances and (2) whether the State acted diligently until the time Gonzalez was served. Id.; $24,156.00 in U.S. Currency, 247 S.W.3d at 744–45.
Gonzalez's motion for summary judgment established that the seizure occurred on March 5, 2019. As a result, the State was required to both file the forfeiture lawsuit and serve Gonzalez with process by April 4, 2019. Tex. Code Crim. Proc. art. 59.04(a), (b); $24,156.00 in U.S. Currency, 247 S.W.3d at 746 (“The State has a limitations period of thirty days after seizure in which to” both file and serve the forfeiture lawsuit). The State did not perfect service in this case until Gonzalez filed his answer on July 31, 2019. See Tex. R. Civ. P. 121 (“An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.”). These undisputed facts were sufficient to shift the burden to the State to explain the delay. See Proulx, 235 S.W.3d at 216; One 1991 Chevrolet Blazer, 905 S.W.2d at 446.
Taking the State's summary judgment evidence as true, as our standard of review requires, the following events occurred after the March 5, 2019 seizure:
• On March 6, 2019, Gonzalez posted bond and was released from Webb County's custody. On his bond application, he listed 2120 Ash Street, Laredo as his address.
• On March 20, 2019, the State filed this forfeiture proceeding.
• On April 2, 2019, the State attempted to mail notice of this lawsuit to Gonzalez at: (1) 1001 San Rio Boulevard, an address that has no apparent connection to him; and (2) 2810 Burke Drive, an address the State concedes was incorrect.
• By April 26, 2019, the State knew that both of those initial service attempts had failed.
• The State took no steps to locate or serve Gonzalez between April 26 and May 16.
• On May 16, 2019, a Webb County investigator performed a CLEAR search of Gonzalez's residence history. The State did not attempt to serve Gonzalez at any of the addresses listed in the search results in May, June, or the first three weeks of July.
• On May 20, 2019, a Webb County assistant district attorney asked an internal investigator whether Gonzalez was “still in federal custody.” The State has not presented any evidence that Gonzalez was detained in a federal facility at any time relevant to this case.
• On May 24, 2019, a Webb County investigator spoke to Gonzalez on the phone. Gonzalez told the investigator that 2801 Burke Drive—the site of the seizure—was his “current address.” He also stated that “he was not coming back from San Antonio anytime soon” and the State should “serve him through his attorney.”
• On June 3, 2019, the State appeared at the first trial setting in this case, where it confirmed that it knew Gonzalez had not been served and was represented by Martinez.
• On July 22, 2019—139 days after the seizure—the State attempted for the first time to serve Gonzalez by mail at 2120 Ash Street, the address listed on his bond application and the first address listed in the results of the CLEAR search.
• On July 25, 2019, the State: (1) moved for substitute service on Gonzalez for the first time; (2) delivered a copy of the forfeiture petition to Gonzalez's attorney, Martinez, for the first time; and (3) visited both 2801 Burke Drive and 2120 Ash Street for the first time. At 2120 Ash Street, the State's investigator spoke to Gonzalez's sister-in-law, who stated Gonzalez had never lived at that address and had moved to San Antonio.
• On July 31, 2019, Martinez filed an answer on Gonzalez's behalf, which relieved the State of the obligation to pursue further service attempts. See Tex. R. Civ. P. 121.
This evidence shows at least two “lapses between service efforts”—April 26 to May 16 and May 24 to July 22. See Proulx, 235 S.W.3d at 216. While the State does not directly address these specific lapses, it offers several explanations for the total delay that it contends preclude summary judgment. We will address each explanation separately.
The State first contends Gonzalez provided a false address on his bond application. When viewed in the light most favorable to the State, the summary judgment evidence shows the address on Gonzalez's bond application is the home of his sister-in-law, who told a State investigator Gonzalez had never lived at that home. Even assuming arguendo that this evidence raises a fact question about whether Gonzalez provided a false address, the State did not attempt to serve him at that address until 139 days after the seizure. Because the State has offered no explanation for this delay, Gonzalez providing this purportedly false address constitutes less than a scintilla of evidence to support the State's claim that it acted diligently until service was perfected. See $24,156.00 in U.S. Currency, 247 S.W.3d at 744–45.
Failure to Waive Service Under Rule 119
The State's second explanation for the delay is that even though Gonzalez told the State to serve him through his attorney, he and his attorney “fail[ed] to waive service” in writing under Texas Rule of Civil Procedure 119. The State implies this shows Gonzalez and his attorney were acting in bad faith and, as a result, it had no choice but to keep searching for Gonzalez.
Although it is true that neither Gonzalez nor his attorney waived service in writing under Rule 119, it is undisputed that Gonzalez verbally instructed the State to serve him through his attorney on May 24. The State did not attempt to do so, either in accordance with Gonzalez's instructions or through court-ordered substitute service, until July 25—142 days after the seizure and 62 days after its investigator spoke to Gonzalez. Moreover, six days after the State served the forfeiture petition on his attorney, Gonzalez voluntarily waived any complaints about service by filing his answer. See Tex. R. Civ. P. 121. The State's assumption that he had improper motives for failing to waive service is less than a scintilla of evidence that it acted diligently until the time he was served. See $24,156.00 in U.S. Currency, 247 S.W.3d at 744–45; see also Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (“[S]ome suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.”) (internal quotation marks omitted).
Evasion of Service
The State next contends Gonzalez “was evading service of process” because: (1) he provided his sister-in-law's address on his bond application; (2) “the CLEAR search shows him constantly moving before and after the seizure”; and (3) “he did not live at the situs of seizure.” Because the State contends Gonzalez was intentionally evading service of process, it argues the Supreme Court's analysis in Proulx requires us to reverse the trial court's conclusion that the State lacked diligence as a matter of law. See Proulx, 235 S.W.3d at 217 (holding movant “failed to conclusively establish lack of diligence” because nonmovant presented some evidence that the movant “was moving from relative to relative and doing his best to avoid service from the courts and creditors.”).
This case is factually distinguishable from Proulx. As explained above, even assuming arguendo that the address on the bond application was false, the State's unexplained delay in attempting to serve Gonzalez at that address negates its claims of diligence. See $24,156.00 in U.S. Currency, 247 S.W.3d at 744–45. Moreover, the evidence shows that when Gonzalez was required to provide an address at which he could be contacted, he offered the address of a family member who knew his correct city of residence. Finally, the record shows that when Gonzalez listed his sister-in-law's address on his bond application, this lawsuit had not been filed yet. As a result, the evidence that Gonzalez provided his sister-in-law's address on his bond application, standing alone, creates no more than a surmise or suspicion that he did so in order to intentionally evade service in this lawsuit. See Disc. Tire Co. of Tex., Inc. v. Cabanas, 553 S.W.3d 566, 569 (Tex. App.—San Antonio 2018, pet. denied).
Similarly, the CLEAR report of Gonzalez's residence history does not support the State's assertion that Gonzalez tried to evade service. See id. As a threshold matter, the simple execution of the CLEAR search is not sufficient to raise a fact issue on diligence. See Ashley v. Hawkins, 293 S.W.3d 175, 180–81 (Tex. 2009) (evidence that plaintiff “spent approximately twenty hours searching for” defendant did not create fact issue on diligence). Additionally, all but one of the addresses listed in that report pre-date the March 5, 2019 seizure, and the State itself describes most of the listed addresses as “ancient.” Gonzalez's pre-seizure changes in residence are no evidence that he was “constantly moving” at any time relevant to this case. See City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (“[E]vidence that might be ‘some evidence’ when considered in isolation is nevertheless rendered ‘no evidence’ when contrary evidence shows it to be incompetent.”). Without more, the State's inference that those pre-seizure moves show Gonzalez intended to evade service is “premised on mere suspicion.” Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015). As a result, the CLEAR report is no evidence that Gonzalez was intentionally evading service in this case. See id. at 634–35.
Finally, the State's assertion that Gonzalez did not live at “the situs of seizure” is no evidence he was trying to evade service. The only evidence showing Gonzalez ever claimed to reside at the site of the seizure is the May 24 conversation with a State investigator, when Gonzalez identified that location as his “current address.” During that same conversation, however, he also told the investigator that he “was not coming back from San Antonio anytime soon” and that the State should therefore serve his attorney. This evidence, even when viewed in the light most favorable to the State, creates no more than a surmise or suspicion that Gonzalez was trying to evade service. See id. Furthermore, while the State unsuccessfully tried to serve Gonzalez at 2810 Burke Drive early in this case, it did not attempt to serve him at the correct address for the site of the seizure—2801 Burke Drive—until July 25, 2019.3 As a result, even assuming arguendo that Gonzalez's May 24 representation that he lived at 2801 Burke Drive constituted an effort to evade service, the State's delay in attempting service at that address negates its claims of diligence. See $24,156.00 in U.S. Currency, 247 S.W.3d at 744–45. Finally, “[i]f [the State] was unable to locate [Gonzalez], or if [it] thought [he] was evading service, other methods of service were available.” Ashley, 293 S.W.3d at 181.
Because the State presented less than a scintilla of evidence that Gonzalez's actions hampered its service attempts, we conclude the result in Proulx does not control the disposition of this case. See Proulx, 235 S.W.3d at 216–17.
The State also contends Gonzalez is equitably estopped from complaining of the delay in service because he intentionally concealed his whereabouts. To support that contention, the State had to produce more than a scintilla of evidence that Gonzalez: (1) made a false representation or concealed a material fact; (2) made the false representation or concealed the material fact with actual or constructive knowledge of the truth; (3) with the intention that the State should act on the false representation or concealment; and (4) the State relied on Gonzalez's false representation or concealment to its detriment. City of Fredericksburg v. Bopp, 126 S.W.3d 218, 221 (Tex. App.—San Antonio 2003, no pet.). For the reasons explained above, the State's evidence of the “false” address, the failure to waive service under Rule 119, and the CLEAR report do not raise a fact question about whether the State relied on any false representations to its detriment. See id.; see also Suarez, 465 S.W.3d at 634–35. Moreover, the State's brief emphasizes that Gonzalez told an investigator he had moved to San Antonio and was not coming back to Laredo, and the State's summary judgment evidence shows Gonzalez told the State's investigator to serve him through his attorney. Nevertheless, the State did not attempt to seek substitute service or to serve Gonzalez's attorney until two months after Gonzalez made those statements. Cf. K-7 Enters., L.P. v. Jeswood Oil Co., No. 02-03-00312-CV, 2005 WL 182947, at *6 (Tex. App.—Fort Worth Jan. 27, 2005, no pet.) (mem. op.) (holding claim of equitable estoppel did not preclude summary judgment where nonmovant “possessed knowledge of facts” that rendered reliance on movant's purported deception unreasonable). We conclude these facts do not rise to a level that would enable reasonable and fair-minded people to find the State detrimentally relied on a false representation or concealment of fact by Gonzalez. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). We therefore hold the State did not raise a genuine issue of material fact to support its claim of equitable estoppel. See id.; K-7 Enters., 2005 WL 182947, at *6.
Finally, the State contends that its use of substitute service was reasonably diligent. However, the State did not raise this argument in its summary judgment response, its first amended summary judgment response, or its sur-reply in support of its summary judgment responses. We may not reverse a summary judgment on a ground not raised below. See Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In re Blankenship, 392 S.W.3d 249, 255 (Tex. App.—San Antonio 2012, no pet.).
The summary judgment evidence, when viewed in the light most favorable to the State, reveals unexplained lapses in the State's service attempts that show it lacked diligence as a matter of law. We therefore overrule the State's sixth and seventh issues.
Code of Criminal Procedure Article 59.08
In its eighth issue, the State argues the summary judgment order is void because it violates article 59.08 of the Texas Code of Criminal Procedure. Article 59.08 provides:
(a) If money that is contraband is seized, the attorney representing the state may deposit the money in an interest-bearing bank account in the jurisdiction of the attorney representing the state until a final judgment is rendered concerning the contraband.
(b) If a final judgment is rendered concerning contraband, money that has been placed in an interest-bearing bank account under Subsection (a) of this article shall be distributed in the same manner as proceeds are distributed under Article 59.06 of this code, with any interest being distributed in the same manner and used for the same purpose as the principal.
Tex. Code Crim. Proc. Ann. art. 59.08. The State contends the trial court's order violates this “mandatory” statute because it orders the State to return the seized funds to Gonzalez before the expiration of appellate deadlines or the issuance of a final mandate. Because the State did not raise this argument in the trial court, we may not consider it unless the State successfully shows the trial court had “no jurisdiction to enter the judgment.” Tex. R. App. P. 33.1; see Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
In construing any statute, our primary goal is to determine and effectuate the Legislature's intent. Shinogle v. Whitlock, 596 S.W.3d 772, 776 (Tex. 2020). Additionally, “[w]e resist classifying a provision as jurisdictional absent clear legislative intent to that effect.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014). Nothing in the first provision of article 59.08 acts as a mandatory, jurisdictional directive to trial courts. Instead, that language grants prosecutors in civil forfeiture cases permission to deposit seized funds in interest-bearing accounts. Tex. Code Crim. Proc. art. 59.08(a); see also Tex. Gov't Code § 311.016(1). While the second provision of article 59.08 provides that a trial court “shall” distribute funds upon the rendition of a final judgment, nothing in its plain language prohibits a trial court from ordering the distribution of funds under other circumstances. Tex. Code Crim. Proc. art. 59.08(b). We conclude the State's interpretation of article 59.08 is not supported by that statute's plain language. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“When construing a statute, we begin with its language.”).
Nevertheless, the State argues, “The statute is logically construed such that only a ‘final judgment’ terminates the State's power to hold the seized currency in the bank account” because “[i]f the seized res can be discharged without a final judgment, this would prevent appellate review.” We note, however, that the State's notice of appeal automatically suspended enforcement of the trial court's order. See Tex. R. App. P. 25.1(h) (notice of appeal does not suspend enforcement of judgment unless “the appellant is entitled to supersede the judgment without security by filing a notice of appeal”); Tex. Civ. Prac. & Rem. Code Ann. § 6.001 (governmental entity may not be required to file a bond for an appeal in a civil suit); In re State Bd. for Educator Certification, 452 S.W.3d 802, 804–07 (Tex. 2014) (‘[T]he State's notice of appeal automatically suspends enforcement of a judgment” except under circumstances not applicable here) (emphasis in original). As a result, the facts of this case do not support a conclusion that the terms of the trial court's order prevented the State from obtaining appellate review.
Because the State has not shown the trial court's order is void, it waived its challenge under article 59.08 by failing to raise it in the trial court. Tex. R. App. P. 33.1. We overrule the State's eighth issue.
Premature Execution of Judgment
In its ninth issue, the State contends the summary judgment order is voidable because it violates Rules 627 and 628 of the Texas Rules of Civil Procedure, which govern the time periods applicable to the execution of judgments. Tex. R. Civ. P. 627, 628. Assuming without deciding that the trial court's summary judgment order constitutes an “execution of judgment,” the State's cited authority holds that a prematurely issued execution of judgment “must be respected until it is vacated in a direct proceeding instituted in the court which ordered it to be issued․ Attack of the execution of this particular enforcement order before [an appellate] Court rather than the issuing district court, therefore, is inappropriate.” Winkle v. Winkle, 951 S.W.2d 80, 90 (Tex. App.—Corpus Christi–Edinburg 1997, writ denied) (emphasis added).4
Here, the State concedes it did not challenge the purportedly prematurely executed judgment in the trial court. It appears to argue that it was not required to do so because “[t]he short time period in the judgment in this case put a gun to the State's attorneys' heads, forcing the State to immediately file a notice of appeal.” As noted above, however, the State's notice of appeal automatically suspended execution of the trial court's order. See Tex. R. App. P. 25.1(h); Tex. Civ. Prac. & Rem. Code § 6.001; In re State Bd. for Educator Certification, 452 S.W.3d at 804–07. As a result, the record does not support the State's assertion that “[t]he short time period in the judgment” excuses its failure to challenge the purportedly prematurely executed judgment in the trial court. See Tex. R. App. P. 33.1; Winkle, 951 S.W.2d at 90. We overrule the State's ninth issue. See Winkle, 951 S.W.2d at 90.
Unauthorized Money Judgment and Contempt Order
In its tenth issue, the State characterizes the trial court's order as a money judgment that violates its sovereign immunity. In support of that proposition, it cites a case in which a party to a forfeiture proceeding filed a counterclaim “seeking damages from the State for unauthorized, bad-faith seizure of the currency.” State v. Seventeen Thousand Two Hundred Seventy Dollars in U.S. Currency, No. 01-99-00213-CV, 2000 WL 124689, at *1 (Tex. App.—Houston [1st Dist.] Feb. 3, 2000, pet. denied) (mem. op.). In that case, the State filed a motion for summary judgment on the defendant's counterclaim, arguing it was immune to the defendant's claim for civil damages. Id. at *1–2. The trial court denied the State's motion for summary judgment, but the court of appeals reversed and rendered judgment that the defendant take nothing on his damages claim. Id. at *5.
Based on that holding, the State argues the trial court here “had absolutely no jurisdiction whatsoever to enter vindictive in personam money damage judgments against the State or its attorneys.” To the extent the State argues the trial court lacked jurisdiction to order it to return the seized funds, we reject that contention. Unlike the defendant in Seventeen Thousand Two Hundred Seventy Dollars in U.S. Currency, Gonzalez never made a claim for—and the trial court did not award—civil damages. See id. at *1–2. Instead, Gonzalez argued the State did not follow the procedures required to initiate a forfeiture proceeding against him and, as a result, now holds funds it cannot prove it is entitled to keep. See Tex. Code Crim. Proc. art. 59.04(l). The State cites no authority showing it is immune from an order directing it to return property that was not seized in accordance with Chapter 59's requirements. See id.; see also Tex. R. App. P. 38.1(i).
To the extent the State argues the portion of the trial court's order referring to potential future contempt findings constitutes an improper money judgment, we also reject that argument. The order recites that “[f]ailure to comply with this Order shall result in a finding of contempt directly against the party/parties in violation of this order.” While the trial court's order specifies that it applies to three named prosecutors, it does not find the State or any of the named prosecutors in contempt, nor does it impose a contempt penalty. As a result, that portion of the summary judgment order is neither a contempt order nor a “money damage judgment.” See Stripling v. Williams, No. A14-89-00331-CV, 1990 WL 28920, at *2 (Tex. App.—Houston [14th Dist.] Mar. 15, 1990, no writ) (holding order that requires compliance but imposes no penalty is not a contempt order). Because the State has not identified any improper money judgment entered against it, it has not shown the trial court's order is void on sovereign immunity grounds. We overrule the State's tenth issue.
In its eleventh issue, the State argues the “contempt order” improperly entered a judgment against the named prosecutors. As explained above, however, the order at issue in this appeal is neither a money judgment nor a contempt order. Moreover, even if the trial court had signed an enforceable contempt order, we “do not have jurisdiction to review contempt proceedings on direct appeal.” In re T.L.K., 90 S.W.3d 833, 841 (Tex. App.—San Antonio 2002, no pet.); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas 2007, no pet.) (“Contempt orders involving confinement may be reviewed by writ of habeas corpus; contempt orders that do not involve confinement may be reviewed only through mandamus.”). We overrule the State's eleventh issue.
We affirm the trial court's summary judgment order.
1. We note that while the trial court verbally denied the State's request to make an offer of proof, the appellate record contains a document entitled “Plaintiff's Offer of Proof as to Testimony of Silverio Martinez.”
2. The State argues One 1991 Chevrolet Blazer is “irrelevant” because in that case, “the State did nothing to locate an out-of-state defendant.” While the State's proffered rationales for the lack of timely service differ in these two cases, the length of the delay was similar. See One 1991 Chevrolet Blazer, 905 S.W.2d at 446 (holding a 140-day lapse in service “was fatal to the State's case”). We therefore disagree with the State's assertion that our sister court's analysis is irrelevant.
3. In its brief, the State contends it received phone calls from a person who “claimed ownership of the 2801 Burke house,” and it asserts this claim of ownership “was consistent with the bond application and CLEAR search, which both indicated that 2801 Burke did not belong to [Gonzalez].” However, the summary judgment evidence shows the State never spoke to the caller and did not receive his voicemails claiming ownership of the Burke Drive home until after Gonzalez filed his answer.
4. The State cites In re Fitzgerald, 429 S.W.3d 886, 896 (Tex. App.—Tyler 2014, orig. proceeding) for the proposition that “[v]oidable judgments can be directly attacked by appeal, and are automatically reversible once so challenged.” In re Fitzgerald—which was an original proceeding, not a direct appeal—did not hold that voidable orders are “automatically reversible” on direct appeal. See generally In re Fitzgerald, 429 S.W.3d at 889–97.
Opinion by: Beth Watkins, Justice
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Docket No: No. 04-19-00636-CV
Decided: July 29, 2020
Court: Court of Appeals of Texas, San Antonio.
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