Summary
holding that appellant waived the constitutional issue because it was not supported by substantive analysis coupled with citation to the record and applicable authority
Summary of this case from In re Marriage of WallisOpinion
No. 07-19-00275-CV
07-21-2020
APPROXIMATELY $198,006.00 UNITED STATES CURRENCY v. THE STATE OF TEXAS
On Appeal from the 100th District Court Carson County, Texas
Trial Court No. 11707 , Honorable Stuart Messer, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Christopher Callano, real party in interest, appeals the trial court's summary judgment granting the State's civil forfeiture action. By his appeal, Callano challenges the trial court's refusal to dismiss the State's forfeiture action, the denial of his motion to recuse the trial judge, and the constitutionality of the applicable venue provisions. We affirm the judgment of the trial court.
Background
In April of 2016, the State filed its notice of seizure and intended forfeiture of $198,006.00 seized from Callano as a result of a search following a traffic stop. See TEX. CODE CRIM. PROC. ANN. art. 59.04 (West 2018). Callano filed his answer and a motion to transfer venue in May. In December, the State sent Callano its requests for disclosure, admissions, production of documents, and interrogatories. Callano's response to discovery was due on January 13, 2017, but he did not respond.
On June 2, 2017, Callano filed a motion to dismiss for lack of prosecution. The State filed its motion for summary judgment a few days later and a hearing on the motion for summary judgment was set for July 13. Thereafter, Callano filed a motion to recuse the trial judge. After hearing, the regional presiding judge denied the recusal on September 13.
On June 8, the parties entered into a Rule 11 agreement postponing responses to the outstanding discovery until after a scheduled suppression hearing on the underlying criminal case that was also set for July 13. The Rule 11 agreement further provided, "if Mr. Callano is not successful on the motion and the parties are not successful in resolving the civil case by agreement by July 31[,] the parties will agree to rescheduling the currently set motion to dismiss and motion for summary judgment to dates that will allow the outstanding discovery to be completed."
On October 10, 2017, the trial court held a hearing on Callano's motion to dismiss and it was denied. Callano then filed a petition for writ of mandamus challenging the trial court's denial of his motion to dismiss. Callano and the State agreed to abate the case while the writ of mandamus was pending. The Texas Supreme Court denied review of Callano's petition on April 16, 2018.
In re Callano, No. 07-17-00435-CV, 2017 Tex. App. LEXIS 11753, at *1 (Tex. App.—Amarillo Dec. 18, 2017, orig. proceeding) (mem. op.).
The record reflects that the State's motion for summary judgment was set for hearing on January 8, 2018. However, the trial court signed an order of abatement on February 13, 2018, without considering the State's summary judgment motion.
On May 9, 2019, the State's motion for summary judgment was once again set for hearing, on July 2. Callano responded by filing a Texas Rule of Civil Procedure 166a motion, motion to enforce Rule 11, supplemental motion to dismiss for lack of prosecution, "motion to clarify/reconsider and Rule 190.5 motion," motion to strike, and "supplemental motion to clarify/reconsider and Rule 190.5 motion."
Further reference to the Texas Rules of Civil Procedure will be by reference to "Rule ___."
On July 2, 2019, the trial court held a hearing on Callano's pending motions and the State's motion for summary judgment. The trial court denied Callano's motions and granted the summary judgment.
Analysis
On appeal, Callano does not challenge the trial court's granting of the summary judgment. Rather, he contends the trial court abused its discretion in denying his motions to dismiss for want of prosecution and to recuse the trial judge. Callano also challenges the constitutionality of the venue statute.
Denial of Motions to Dismiss
In his first two issues, Callano contends that the trial court erred in denying his motion to dismiss in 2017 (issue one) and his supplemental motion to dismiss filed in 2019 (issue two). We review a trial court's denial of a motion to dismiss for want of prosecution under an abuse of discretion standard. In re Fifty-One Gambling Devices, 298 S.W.3d 768, 773 (Tex. App.—Amarillo 2009, pet. denied). An abuse of discretion exists when a court's decision is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A plaintiff has the duty to prosecute his suit to a conclusion with reasonable diligence. In re Conner, 458 S.W.3d 532, 534 (Tex. 2015) (orig. proceeding) (per curiam). Under Rule 165a(2), a case may be dismissed if it is "not disposed of within time standards promulgated by the Supreme Court." Rule 165a(2). Rule 6.1(a) of the Texas Rules of Judicial Administration provides a disposition standard for a non-family-law civil case of twelve months from appearance date for a nonjury case. TEX. R. JUD. ADMIN. 6.1(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. F. app. (West Supp. 2019). However, the rule recognizes that, in "especially complex cases or special circumstances[,] it may not be possible to adhere" to the time standards. TEX. R. JUD. ADMIN. 6.1(d).
In this case, Callano filed two motions to dismiss for failure to dispose of the case within the Supreme Court's time standards. Callano points to two distinct time frames in support of his contention that the trial court abused its discretion in denying the motions to dismiss: his first issue asserts that the trial court was mandated to dismiss his forfeiture proceeding when it did not proceed to trial within twelve months of the appearance date, while his second issue asserts that a second period exceeding twelve months occurred between the end of the abatement, on April 13, 2018, and the State's resetting of the hearing on its motion for summary judgment on, May 9, 2019.
On the parties' agreement, the case was abated pending a final determination of the mandamus proceeding. The Texas Supreme Court denied the petition for review of the mandamus on April 13, 2018.
The State filed suit on April 18, 2016, and Callano answered the suit on May 5, 2016. Under the rules of judicial administration, the disposition date for the State's case was May 5, 2017. In December 2016, the State propounded discovery which went unanswered by Callano. The State filed its motion for summary judgment on June 7, more than four months after Callano's discovery responses were due, and one month after the disposition date under rule of judicial administration 6.1. At the hearing on the motion to dismiss, Callano admitted that his failure to answer discovery was deliberate, but he argued the State had an obligation to compel his responses to the outstanding discovery within the twelve-month timeframe in rule of judicial administration 6.1. In response, the State asserted good cause existed because the four-month delay in filing a motion for summary judgment was not an unreasonable delay for a "Level 2" discovery case, and the date for discovery had not passed when Callano filed for dismissal. See Rule 190.3 (discovery period begins when suit is filed and continues until the earlier of 30 days before the date set for trial or nine months after the due date of the first response to written discovery).
Because the record demonstrates reasonable diligence by the State in engaging in discovery despite Callano's deliberate refusal to cooperate in discovery, we find no abuse of discretion in the trial court's denial of the initial motion to dismiss. We reject Callano's contention that the rules of judicial administration mandate a rigid deadline for disposition of cases. The Texas Supreme Court promulgates the rules of judicial administration under the legislature's grant of authority in section 74.024 of the Texas Government Code. See TEX. R. JUD. ADMIN. 1. Section 74.024 provides that "[t]he supreme court may consider the adoption of rules relating to: (1) nonbinding time standards for pleading, discovery, motions, and disposition; (2) nonbinding dismissal of inactive cases from dockets, if the dismissal is warranted . . . ." TEX. GOV'T CODE ANN. § 74.024(c)(1), (2). (West Supp. 2013). Thus, the rules of judicial administration, promulgated pursuant to Section 74.024 of the Texas Government Code, provide nonbinding time standards. Jones v. Morales, 318 S.W.3d 419, 427 (Tex. App.—Amarillo 2010, pet. denied) (application of rule of judicial administration 6 is discretionary and nonbinding and does not fix a bright line demarking the outward limit of a trial court's discretion to control its docket.). The trial court was therefore not bound by statute or rule to hear Callano's forfeiture case within twelve months of the appearance date. Property v. State, No. 06-11-00113-CV, 2012 Tex. App. LEXIS 4093, at *6 (Tex. App.—Texarkana May 22, 2012, no pet.) (mem. op.). We overrule issue one.
The record indicates that Callano pursued mandamus relief to the Texas Supreme Court after his initial motion to dismiss was denied. Callano requested and received an abatement of the case while he pursued mandamus relief. The record further shows that before the trial court signed an order of abatement, on February 13, 2018, the State obtained a setting for a hearing on the motion for summary judgment in January of 2018. After the State sought another setting of the motion for summary judgment on May 9, 2019, Callano filed numerous motions including a motion to modify the discovery period, a motion to enforce the Rule 11 agreement postponing discovery, and a supplemental motion to dismiss for want of prosecution. Allowing for resolution of the various procedural matters, including Callano's motion to recuse, constitutional challenge to the venue statute, and abatement, we find no unreasonable delay and no abuse of discretion in denying the supplemental motion to dismiss. Enexco, Inc. v. Staley, No. 05-15-01047-CV, 2017 Tex. App. LEXIS 109, at *7 (Tex. App.—Dallas Jan. 9, 2017, no pet.) (mem. op.) (special circumstances, such as a venue challenge and a plea in abatement, made it unlikely, if not impossible, for the case to be disposed of within the twelve-month time frame in the administrative rules); see TEX. R. JUD. ADMIN. 6.1(d). Moreover, the record demonstrates the State was reasonably diligent in its efforts to prosecute the case by engaging in discovery and pursuing its motion for summary judgment to conclusion. We overrule issue two.
Recusal Motion
In his third issue, Callano challenges the denial of his motion to recuse the trial judge on the basis that the trial judge's impartiality might reasonably be questioned. See Rule 18b(b)(1). We review the denial of a motion to recuse for an abuse of discretion. Rule 18a(j)(1)(A); Bruno v. State, 916 S.W.2d 4, 6 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd). In making this determination, we are to review the totality of the evidence presented at the recusal hearing to see if the record reveals sufficient evidence to support the conclusion that the trial judge was unbiased. Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 250 (Tex. App.—El Paso 2012, no pet.). It is Callano's burden, as appellant, to bring forward a record showing error that requires reversal. Because no reporter's record exists of the hearing held on Callano's motion to recuse, we must presume that any evidence presented to the trial court was sufficient to support the judgment. In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.—Amarillo 1999, no pet.) ("Without a reporter's record[,] we do not know what, if any, evidence was presented to the trial court.").
Given that there is no record of a hearing on Callano's motion to recuse and because the only basis for bias and impartiality are the accusations contained in his motion to recuse and appellate brief, we cannot say that he satisfied his burden of showing bias or impartiality. Accordingly, we cannot conclude that the regional presiding judge abused his discretion in denying the motion to recuse the trial judge. We overrule Callano's third issue.
In his motion to recuse, Callano argues that the budget of Carson County provides direct financial support to the district judge, his staff, and operations. Further, he alleges that the forfeited funds "will contribute substantially to the operating budget of Carson County and/or the State of Texas." According to Callano's brief, "the average citizen would see that a judge is able to feather his own operating nest to a higher and nicer degree by making the decisions that cause additional funds to go into the county fund which funds the Judge's own operation." But Callano's argument ignores the fact that the disposition of forfeited property "shall be administered by the attorney representing the state" and used for law enforcement purposes. See TEX. CODE CRIM. PROC. ANN. art. 59.06 (West 2018). In the context of disqualification, a judge's interest in the subject matter and result of the litigation must be one that is direct, real, and certain. Indirect, incidental, remote, possible, or speculative interests are not grounds for disqualification. Elliott v. Scott, 25 S.W.2d 150, 152 (Tex. 1930); Maxey v. Citizens Nat'l Bank of Lubbock, 489 S.W.2d 697, 702 (Tex. Civ. App.—Amarillo 1972), rev'd on other grounds, 507 S.W.2d 722, 726 (Tex. 1974) (a judge's disqualifying interest must be of a pecuniary nature, capable of an estimated value that the judge may gain or lose by the judgment rendered). Here, Callano's conclusory allegations and assertions of impartiality are insufficient to overcome the presumption of the trial judge's impartiality. See In the Interest of C.J.O., 325 S.W.3d 261, 267 (Tex. App.—Eastland 2010, pet. denied).
Venue Provisions
In his fourth issue, Callano challenges the constitutionality of the venue provisions as "archaic" and claim that they deny due process to out-of-state residents traveling on an interstate thoroughfare with no connections to the county or the state. Other than conclusory allegations, Callano's brief does not cite any authority on this issue or provide any substantive analysis of the issue. See TEX. R. APP. P. 38.1(i) (the brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and the record). We conclude that issue four is inadequately briefed and Callano has waived his constitutional attack upon the applicable venue provisions. Approx. $23,606.00 United States Currency v. State, No. 07-19-00297-CV, 2020 Tex. App. LEXIS 2602, at *8-10 (Tex. App.—Amarillo Mar. 27, 2020, no pet. h.) (mem. op.) (appellant's failure to cite legal authority or provide substantive analysis to support her issues constitutes inadequate briefing and waives the complaint).
Conclusion
Having overruled all four issues on appeal, we affirm the trial court's summary judgment.
Judy C. Parker
Justice