Opinion
No. 13-02-599-CV.
August 25, 2003.
On appeal from the County Court at Law No. 3 of Nueces County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Castillo.
MEMORANDUM OPINION
Appellant, Guy Williams, d/b/a Freedom Bail Bonds ("Williams"), the surety on an appearance bond executed by Wilfredo L. Gonzalez as principal, challenges the trial court's summary judgment in favor of the State of Texas, appellee, in a bond forfeiture proceeding. In three issues, Williams asserts: (1) the State did not provide summary- judgment evidence of the performance bond; (2) the State did not respond or file controverting affidavits to Williams's sworn motion for new trial; and (3) the trial court erred in signing a final judgment that did not dispose of all parties, arguing that Gonzalez is a necessary party but was never properly served. We reverse and remand. I. RELEVANT FACTS
The State filed a judgment nisi asserting that Gonzalez failed to appear for arraignment in his misdemeanor criminal case. The judgment nisi alleged that the appearance bond was on file in the official court file of Gonzalez's criminal case. The judgment nisi recited that: (1) Gonzalez as principal and Williams as surety entered into an appearance bond payable to the State in the sum of $500.00 plus all fees and expenses; (2) the bail bond was conditioned that Gonzalez personally appear in the trial court until discharged by due course of law and answer for the misdemeanor offense of evading arrest; and (3) Gonzalez had failed to appear for arraignment as ordered by the trial court. After additional recitations requiring notice of the judgment nisi and service of citation on both Gonzalez and Williams "in the form provided for citations in civil cases," the judgment nisi ordered notice "to the surety that the bond has been forfeited and require[d] him to appear and show cause why the judgment of forfeiture should not be made final." The order added, "It is further ordered that this judgment will be made final unless good cause is shown why the defendant did not appear."
The literal meaning of "judgment nisi" is "judgment unless." Reyes v. State, 31 S.W.3d 343, 344 n. 1 (Tex.App.-Corpus Christi 2000, no pet.).
The underlying criminal case is cause number 99-4472-3, styled "State of Texas vs. Wilfredo L. Gonzalez." We do not resolve, by our recitation of the facts as they appear in the appellate record of this case, any factual disputes that may exist.
Williams filed a sworn denial that included the affirmative defense that the "Defendant-Principal is a necessary party to this lawsuit but has not been served with citation." Gonzalez did not answer or otherwise appear.
The State filed a traditional motion for summary judgment on the bond forfeiture. It attached certified copies of the appearance bond and the judgment nisi. In the motion, the State alleged that "[p]roper notice was given to the Defendant Principal in accordance with the Code of Criminal Procedure but Wilfredo L. Gonzalez, has failed to answer or appear." The motion for summary judgment was not sworn and did not attach any evidence with regard to service on Gonzalez or his failure to answer the judgment nisi. Williams filed a response to the motion for summary judgment, asserting, among other issues, that the State had not shown that Gonzalez, who as principal on the appearance bond was a necessary party to the suit, had been served with citation. Both parties filed written objections to the other's summary-judgment evidence. No written order on either side's objections appears in the record.
In its "Summary Judgment for Plaintiff," the trial court found that: (1) the appearance bond was a valid and binding undertaking; (2) the requirements of article 22.02 of the code of criminal procedure "have been substantially complied with"; and (3) the principal "failed to appear." See Tex. Code Crim. Proc. Ann. art. 22.02 (Vernon 1989) (providing for bond forfeiture proceedings). The summary judgment concluded that the State was entitled to judgment on the bond forfeiture and ordered recovery against Gonzalez as principal and Williams as surety, jointly and severally, in the amount of $150.00 plus $307.50 costs of court. See Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989) (requiring inclusion of both surety and principal in final judgment on bond forfeiture).
Williams filed written objections to the summary judgment, renewing his complaint that Gonzalez, who as principal was a necessary party to any judgment against Williams as surety, was not served as required by law. Because the State was not entitled to judgment against Gonzalez, Williams argued, it was not entitled to judgment against him as Gonzalez's surety. Williams also claimed that since there was no evidence Gonzalez was properly before the trial court, the summary judgment was not a final judgment. We first address Williams's finality argument.
II. JURISDICTION A. Finality
Our initial inquiry is always whether we have jurisdiction over an appeal. Williams v. State, No. 13-02-00598-CV, 2003 Tex. App. LEXIS 7062, at *5 (Corpus Christi August 21, 2003, no pet. h.) (" Williams I ") (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) and Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex.App.-Corpus Christi 2003, no pet.)). Jurisdiction of a court is never presumed. Williams I, 2003 Tex. App. LEXIS 7062, at *5. Our jurisdiction is established exclusively by constitutional and statutory enactments. Id. Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Id. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Id. If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Id. at *6. A judgment is not final unless it disposes of all pending parties and claims in the record. Id.
Except as otherwise provided in chapter 22 of the code of criminal procedure, bond forfeiture proceedings are governed by the same rules as other civil suits. Williams v. State, No. 13-02-00598-CV, 2003 Tex. App. LEXIS 7062, at *6 (Corpus Christi August 21, 2003, no pet. h.) (" Williams I ") (citing Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2003); Alvarez v. State, 861 S.W.2d 878, 881 (Tex.Crim.App. 1992) (per curiam) (op. on partial reh'g); and Williams v. State, 82 S.W.3d 788, 791 (Tex.App.-Corpus Christi 2002, no pet.)).
B. Finality Analysis
The judgment nisi and Williams's amended answer show that the only pending claim was the State's judgment nisi for the bond forfeiture. The only parties were the State, Williams, and Gonzalez. The State's summary judgment motion asserted its entitlement to judgment for the bond forfeiture. The summary judgment recites:
It is therefore ORDERED, ADJUDGED and DECREED that the Plaintiff, THE STATE OF TEXAS, do have and recover of and against the Defendants, WILFREDO L. GONZALEZ, principal, and Guy Williams dba Freedom Bail Bonds as Surety, jointly and severally. . . .
(Emphasis in original.) Therefore, we find that the record does not reveal any claims or parties not addressed by the summary judgment. Accordingly, we hold that the summary judgment is final and appealable. See Williams I, 2003 Tex. App. LEXIS 7062, at *10 (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001)).
We note, however, that a final judgment of bond forfeiture must be rendered against both the principal and the surety. Williams I, 2003 Tex. App. LEXIS 7062, at *10-11 (citing Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989)). The record does not reflect that Gonzalez answered the judgment nisi or otherwise appeared in the bond forfeiture action. Nor, as discussed in more detail below, does the State enjoy the benefits of any evidentiary presumption that it provided notice of the judgment nisi to Gonzalez. In the words of the supreme court, granting more relief than the State was entitled to means the summary judgment "is final — erroneous, but final." See id. (quoting Lehmann, 39 S.W.3d at 200).
III. SUMMARY JUDGMENT A. The Standard of Review
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Williams I, 2003 Tex. App. LEXIS 7062, at *11-12 (citing Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex.App.-Corpus Christi 2003, no pet.)). On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on traditional or no-evidence grounds. Williams I, 2003 Tex. App. LEXIS 7062, at *12 (citing Tex.R.Civ.P. 166a(i), (c) and Hoyt, 105 S.W.3d at 344). In a traditional summary-judgment proceeding in a bond forfeiture action, the State, as movant, bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Williams I, 2003 Tex. App. LEXIS 7062, at *12 (citing Tex.R.Civ.P. 166a(c) and Fisher v. State, 832 S.W.2d 641, 643 (Tex.App.-Corpus Christi 1992, writ ref'd)).
B. The Statutory Judgment Nisi Notice Requirements
In a bond forfeiture proceeding, notice to the principal of the judgment nisi is mandated by statute if the principal furnished an address on the bond. Williams I, 2003 Tex. App. LEXIS 7062, at *12 (citing Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989)). The notice must be mailed to the principal's address as shown on the bond. Williams I, 2003 Tex. App. LEXIS 7062, at *13. A rebuttable presumption attaches that the mailing mandated by article 22.05 occurred. Id. (citing Escobar v. State, 587 S.W.2d 714, 717 (Tex.Crim.App. [Panel Op.] 1979)). Consistent with the statutory requirement, the judgment nisi here ordered that "notice to the Defendant as principal, be deposited in the United States Mail directed to the said Defendant at the address shown on the bond." See Williams I, 2003 Tex. App. LEXIS 7062, at *13 (citing Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989)).
C. Summary-Judgment Burden Analysis
The State does not dispute that it was required to provide notice to Gonzalez at the address shown on the appearance bond. Rather, the State asserted in its motion for summary judgment that it had provided the required notice. On appeal, the State argues that Williams offered no proof to rebut the presumption that it mailed notice to Gonzalez.
Williams incorporated his verified answer into his response to the State's motion for summary judgment. In the answer, Williams verified "to the best of his information and belief" that "the Defendant-Principal is a necessary party to this lawsuit but has not been served with citation," among other assertions. The State objected to the verified answer as summary-judgment evidence, among other grounds, on the basis of Williams's lack of personal knowledge of the factual statements in the answer. It pointed to Williams's verification as being based on "information and belief," not personal knowledge. However, the State did not pursue its objection.
A trial court does not implicitly sustain, by granting the motion, a summary-judgment movant's objections where there is no ruling or order. Williams I, 2003 Tex. App. LEXIS 7062, at *14 (citing Jones v. Ray Ins. Agency, 59 S.W.3d 739, 752 (Tex.App.-Corpus Christi 2001), pet. denied, 92 S.W.3d 530 (Tex. 2002)). For there to be an implicit ruling on a party's objection to summary-judgment evidence, some indication must appear in the record or in the summary judgment itself, other than the mere granting of the summary judgment, that the trial court ruled on the objection. Id. at *14. The State bore the burden of obtaining a ruling on its objection. Id. at *15. The State did not do so. Nor is there any indication in the record or in the summary judgment itself that the trial court sustained the State's objection to the personal-knowledge basis of Williams's verification. See id.
Similarly, the State also objected that Williams could not transform his answer into summary-judgment evidence by incorporating it into his summary-judgment response. Again, the State did not obtain a ruling on its objection. Nor is there any indication in the record or in the summary judgment itself that the trial court sustained the State's objection to incorporation of Williams's verified answer into his summary-judgment response. See id. at *16.
In the absence of a ruling or written order on the State's objections or any other indication in the record or in the summary judgment itself that the trial court implicitly or explicitly sustained the State's objections, we find that Williams's verified answer as incorporated into his summary-judgment response is in evidence as part of the summary-judgment record. See id. It follows, therefore, in the absence of a ruling or written order or other indication that the trial court implicitly or explicitly sustained the State's objections to Williams's summary-judgment evidence, that Williams raised a fact issue about whether the State mailed notice of the judgment nisi to Gonzalez. If true, Williams's summary-judgment evidence rebuts the presumption of mailing. See id. at *16-*17.
Conversely, the unsworn allegation in the State's motion that it had provided the required notice to Gonzalez is not evidence. See id. at *18. Even if the State's unsworn assertion that it had provided notice to Gonzalez was proper summary-judgment evidence, the allegation only serves to controvert Williams's summary-judgment evidence that the State did not serve Gonzalez. On this record, we hold that an issue of material fact exists as to the State's compliance with article 22.05 in mailing notice to Gonzalez. See id. Accordingly, we hold that the State did not meet its burden of showing no genuine issue of material fact and entitlement to judgment against Gonzalez as a matter of law. See id. at *19.
Further, as noted above, a final judgment on a bond forfeiture must include both the surety and the principal. See id. Since the State is not entitled to summary judgment against Gonzalez, it also is not entitled to summary judgment against Williams. See id. We hold that the trial court erred in granting summary judgment to the State. See id. We sustain Williams's third issue. Because of our disposition of the third issue, we do not reach Williams's remaining issues. See Tex.R.App.P. 47.1.
IV. CONCLUSION
Having sustained Williams's third issue, we reverse the summary judgment and remand for further proceedings consistent with this opinion.