Opinion
No. 05-05-00875-CV
Opinion Filed April 12, 2006.
On Appeal from the 44th District Court, Dallas County, Texas, Trial Court Cause No. 03-04225-B.
Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
MEMORANDUM OPINION
Aaron Herman brought suit for damages and declaratory relief against the City of Dallas under 42 U.S.C. § 1983. He claimed that the City's policy of towing vehicles parked on public streets for more than twenty-four hours pursuant to § 28-84 of the Dallas City Code "allows and encourages the illegal seizure of property," in violation of the Fourth, Fifth, and Fifteenth Amendments to the U.S. Constitution.
Herman, a pro se litigant, appeals a summary judgment granted in favor of the City of Dallas. In four issues, Herman asserts error in the granting of the summary judgment because he claims his suit is not barred by the applicable two-year statute of limitations.
For the reasons set out below, we conclude that the trial court did not err by granting the City's motion for summary judgment. The trial court's judgment is affirmed. See Tex.R.App.P. 43.2(a). Because the issues in this appeal are settled and the facts are well known to the parties, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On approximately August 10, 2000, Herman noticed that a vehicle which he kept parked on the public street in front of his home had been tagged with an orange sticker. The sticker warned that the vehicle would be impounded if not removed within 24 hours. Herman removed the sticker, but did not move the vehicle. On August 15, 2000, the vehicle was impounded by the City of Dallas. Herman was issued a citation noting that the impoundment was pursuant to § 28-84 of the Dallas City Code. Subsequently, Herman paid a fee to retrieve his vehicle.
On November 13, 2000, Herman submitted a written claim to the City regarding the impoundment. The City responded on April 6, 2001, denying Herman's claim. Herman filed suit against the City in U.S. District Court on December 27, 2002, asserting claims under the United States Constitution pursuant to 42 U.S.C. § 1983, Texas Constitutional claims, and common law claims.
On May 7, 2003, the U.S. District Court dismissed Herman's action without prejudice, noting Herman's failure to comply with an earlier court order. Herman filed a virtually identical action in the 44th Judicial District Court in Dallas County on May 9, 2003. Following the City's failure to answer or make an appearance, Herman's motion for a default judgment was granted on September 29, 2004. On October 28, 2004, the City filed a motion for a new trial, which was granted on December 10, 2004. On March 18, 2005, the trial court granted summary judgment in favor of the City. In its motion for summary judgment, the City contended that all of Herman's causes of action were barred by the applicable two-year statute of limitations. See Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon 2002). The City argued that Herman's cause of action accrued on August 15, 2000, when his vehicle was impounded, and therefore both Herman's initial action in federal court and his subsequent state court action were filed after the limitations period had expired.
Herman responded, contending that his cause of action was subject to a "delayed accrual" theory he asserts is applicable to § 1983 claims. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995). Under this theory, Herman argued, the statute of limitations begins to run only when the plaintiff "fully understands in his own mind . . . exactly who is responsible or how by policy his legal rights have been invaded." In his response to the City's motion for summary judgment, Herman asserted that because he had yet, even at the time of the response, to reach such an understanding, "the statute of limitations has not even begun to start running." Herman further contended that the filing of his second suit was timely under § 16.064(a) of the Texas Civil Practice and Remedies Code, which tolls the running of the statute of limitations. See Tex. Civ. Prac. Rem. Code Ann. § 16.064(a) (Vernon 1997).
Herman raises the following specific issues on appeal: (1) the trial court erred by granting summary judgment in favor of the City; (2) the trial court erred by not entering findings of fact and conclusions of law as requested by Herman: and (3) the trial court erred by granting the City a new trial. We decide against Herman on all three issues. The trial court's summary judgment is affirmed.
II. STANDARD OF REVIEW
We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Willrich, 28 S.W.3d at 23-24. When a trial court's order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
III. STATUTE OF LIMITATIONS
In his first issue on appeal, Herman asserts error in the granting of summary judgment because he claims his suit is not barred by the applicable two-year statute of limitations. Herman's argument on appeal regarding accrual of his cause of action addresses only the accrual of his § 1983 claims. Accordingly, we need not address accrual of Herman's other claims to which no error is asserted.
a. Applicable Law
A defendant moving for summary judgment on the affirmative defense of limitations has the burden to (1) conclusively prove when the cause of action accrued; and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If a movant establishes that the statute of limitations bars an action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.
There is no federal statute of limitations for actions under 42 U.S.C. § 1983, so the relevant state limitation period is applied to those actions. White v. Cole, 880 S.W.2d 292, 294 (Tex.App.-Beaumont 1994, writ denied). However, federal law governs when a § 1983 cause of action accrues. Burrell v. Newsome, 883 F.2d 416 (5th Cir. 1989). In Texas, the applicable limitation period for a § 1983 action is the two-year period for personal injury actions as provided in § 16.003 of the Texas Civil Practice and Remedies Code. Jackson v. Jackson, 950 F.2d 263, 265 (5th Cir. 1992). See Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon 2002). Generally, a cause of action under § 1983 accrues when the plaintiff knows or has reason to know "that he has been hurt and who has inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122 (1979). However, the Second Circuit has stated that "[s]ince an actionable claim under § 1983 against a county or municipality depends on a harm stemming from the municipality's `policy or custom,' see Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), a cause of action against the municipality does not necessarily accrue upon the occurrence of a harmful act, but only later when it is clear, or should be clear, that the harmful act is the consequence of a county `policy or custom.'" Pinaud, 52 F.3d at 1157.
b. Application of Law to Facts
The City argued that Herman's cause of action accrued on August 15, 2000, the date Herman's vehicle was towed, because Herman was aware on that day of all the facts that he claimed provided him a cause of action against the City. The City also noted that Herman stated in his counter-affidavit that at the time he filed a written claim with the City on November 13, 2000, he suspected that the impoundment of his vehicle may have violated his constitutional rights. The City argued that this statement was further evidence that Herman's cause of action had accrued at least by that time. The City contended that because Herman did not file suit within two years of the date that his cause of action accrued, even if calculated from November, 13, 2000, his claims were barred by the statute of limitations.
Herman responded that under Pinaud, his statements in his affidavits as to his "very limited understanding" of how his "legal rights had been invaded" raised a fact issue as to when his cause of action accrued. He contended that the City's motion for summary judgment should therefore be denied.
In Pinaud, the plaintiff complained that a wrongful conspiracy by county prosecutors over a five-year period had violated his constitutional rights. Pinaud, 52 F.3d at 1143. The Second Circuit decided against the plaintiff on the issue of delayed accrual, stating that even if it accepted the plaintiff's assertion that he did not know about, and should not have known about, any county policy or custom at the time the acts at issue occurred, he clearly knew about the policy or custom complained of before the statute of limitations expired. Id. at 1157. That court found such knowledge was evidenced by a submission of the plaintiff's counsel four months before the expiration of the limitations period, detailing all of the acts that the plaintiff claimed provided evidence of the county's policy or custom to produce the alleged harms. Id.
In this case, Herman did not offer any additional direct or indirect evidence occurring after August 15, 2000, of any "policy or custom" of the City to produce the harms of which he complains. Thus, all of the acts that Herman claimed provided evidence of the City's policy or custom to produce the harm alleged by Herman had occurred by that time. Even were we to apply the so-called "delayed accrual" theory, it is clear that Herman had knowledge of the City's alleged policy by November 13, 2000, and Herman's cause of action accrued no later than that date. Neither Herman's initial action in federal court, nor this later filed state court action was filed within two years of November 13, 2000. Herman's assertions do not raise a fact issue in avoidance of the statute of limitations.
In light of our conclusion that the statute of limitations expired before Herman's federal action was filed, we need not address Herman's argument regarding the applicability of a statutory tolling provision. See Campbell v. Sonford Chem., 486 S.W.2d 932, 933 (Tex. 1972) (limitations period that has already expired cannot be tolled). Herman's first issue is decided against him.
Although resolution of the statute of limitations issue is dispositive of this case, we address the remaining two issues below.
IV. REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his second issue, Herman contends that the trial court erred by not entering findings of fact and conclusions of law as requested by him with regard to the trial court's granting of summary judgment in favor of the City. We decide this issue against Herman.
Applicable Law and Analysis
According to Rules 296 and 297 of the Texas Rules of Civil Procedure, in any case tried in the district court or county court without a jury, the court is required to file its findings of fact and conclusions of law within twenty days after a timely request is filed. See Tex. R. Civ. P. 296, 297. If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file a notice of past due findings of fact and conclusions of law. Tex. R. Civ. P. 297. The failure to file a past due notice waives the right to complain about the trial court's failure to file findings of fact and conclusions of law. See Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App-Houston [14th Dist.] 2000, no pet.).
In a summary judgment proceeding, however, findings of fact and conclusions of law have no place. See IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). If summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response. Linwood, 885 S.W.2d at 103. Accordingly, a trial court should not make, and an appellate court cannot consider, findings of fact in connection with a summary judgment. See IKB, 938 S.W.2d at 441. Because the trial court was not required to prepare findings of fact or conclusions of law with respect to summary judgment, we decide adversely to Herman on this point.
V. NEW TRIAL
In his third issue, Herman argues that the trial court erred by granting the City a new trial because the City did not show that its failure to appear was unintentional.
a. Standard of Review
An appellate court reviews a trial court's ruling on a motion for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987); Lowe v. Townview Watersong, L.L.C., 155 S.W.3d 445, 447 (Tex.App.-Dallas 2004, no pet.). Under this standard, we may not overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Lowe, 155 S.W.3d at 447.
b. Applicable Law
A trial court abuses its discretion by not granting a new trial in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident, provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).
The defaulting defendant has the burden of proving that all three elements of this test are met before a trial court is required to grant a motion for new trial. See Scenic Mountain Med. Center v. Castillo, 162 S.W.3d 587, 590 (Tex.App.-El Paso 2005, no pet.). In the absence of controverting evidence that a movant's failure to appear was due to its intentional act or conscious indifference, the movant's affidavits should, for the purpose of establishing this element, be taken as true. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984).
c. Application of Law to Facts
Herman's suit was filed in the court below on May 9, 2003, and citation was issued and served upon the City on October 23, 2003. The case was dismissed for want of prosecution on October 28, 2003, then reinstated on January 6, 2004, at Herman's request, by an order requiring Herman to "serve by certified mail a copy of this order on the Defendants." The case was dismissed for a second time for want of prosecution on March 31, 2004, and again reinstated, at Herman's request, on June 4, 2004. When the City did not file an answer, Herman filed a motion for default judgment. The default judgment was granted on September 29, 2004.
On October 28, 2004, the City filed a motion for a new trial in which it argued that its failure to answer was not intentional or the result of conscious indifference, but rather was based on the City's lack of knowledge that the case had been reinstated. The City asserted that Herman did not provide the City with notice of either of the reinstatements as required under Tex. R. Civ. P. 165a.3.
Herman argued in response that the City's failure to answer was "quite deliberate" because "[t]hey have no cases to support their basic contention that a non-final dismissal such as Plaintiff received negates `the need . . . to file an answer' because it is quite erroneous and in the last analysis such a dismissal negates nothing itself." Herman further contended that he "by no means had any obligation or duty to inform anyone who intentionally refused to appear of anything."
After hearing, the City's motion for a new trial was granted. Herman argues vaguely on appeal that the trial court erred in granting the City's motion for a new trial because the City "did not make their burden of proof" and show that the failure to answer was unintentional. See Craddock, 133 S.W.2d at 126. Herman argues no further and did not brief this issue on appeal. The Texas Rules of Appellate Procedure require an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.). On appeal, as at trial, any pro se appellant must properly present his case. Green, 152 S.W.3d at 841.
Herman's failure to brief this issue on appeal or to cite any specific support for his argument is insufficient to show an abuse of discretion by the trial court. Accordingly, we decide against Herman on this point.
VI. CONCLUSION
We conclude that the trial court did not err (1) by granting summary judgment in favor of the City; (2) by not setting forth findings of fact and conclusions of law as requested by Herman with regard to the granting of final summary judgment in favor of the City; or (3) by granting the City a new trial. We decide adversely to Herman on all three issues raised. The trial court's judgment is affirmed. See Tex.R.App.P. 43.2(a).