TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Ronald K. ACKERMAN, Appellee.
No. 10-99-302-CV.
Court of Appeals of Texas, Waco.
Oct. 4, 2000.
We reverse the judgment and remand this cause for further proceedings consistent with this opinion.
Chief Justice DAVIS dissenting.
REX D. DAVIS, Chief Justice, dissenting.
The majority concludes that the allegations of the original motion to modify cannot serve as a basis to affirm the judgment because the State failed to serve J.A.D. with a copy of the original motion. Because this conclusion does not address the question of whether J.A.D. was harmed by the court‘s error in acting on the untimely-filed second amended motion, I respectfully dissent.
Whenever we find error in the proceedings below, we must conduct a harm analysis, except when the error “defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis.” In re D.I.B., 988 S.W.2d 753, 759 (Tex.1999) (quoting Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)). According to
The original motion to modify alleges in part that J.A.D. violated the conditions of his probation by being expelled from school on November 6, 1998. The court found this allegation to be true. J.A.D. does not challenge the sufficiency of the evidence to support this finding. Accordingly, I would conclude that the court‘s error in proceeding on the untimely-filed motion did not result in “rendition of an improper judgment.” See Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976); Chreene v. State, 691 S.W.2d 748, 750 (Tex. App.-Texarkana 1985, pet. ref‘d). Thus, I would affirm the judgment.
John R. Jensen, Jensen & Jensen, Arlington, for appellee.
Before Chief Justice DAVIS, Justices VANCE and GRAY.
OPINION
BILL VANCE, Justice.
After a Justice of the Peace upheld the Texas Department of Public Safety‘s decision to suspend Ronald K. Ackerman‘s concealed handgun license, Ackerman appealed the ruling to the County Court at Law. His appeal was considered by the judge of the County Criminal Court who had also heard the criminal case underlying DPS‘s action. During the course of the
Background
In September 1996, Ackerman was issued a concealed handgun license (CHL) by DPS. In May of the next year, Ackerman was charged with the offense of failing to display his CHL to a peace officer when requested.
Ackerman‘s appeal was docketed in the County Court at Law No. 4. Before that court took any action on the case, however, the Dallas County District Attorney dismissed the charges underlying the suspension of Ackerman‘s license,5 and on June 1, 1998, DPS notified Ackerman that his license had been reinstated. A month after his license was reinstated, the County Court at Law No. 4 transferred the case to the Dallas County Criminal Court No. 2, indicating that the case was being transferred for “concurrent disposition” with the criminal charges against Ackerman that had been filed in that court. Eight
Jurisdictional issues
We first address those issues which would give DPS the greatest relief. Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999); see also
Is the controversy moot?
The existence of an actual controversy is a jurisdictional requirement for judicial action. FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994). Thus, if the controversy were moot, neither the trial court nor this court would have any jurisdiction over the issues involved in the proceeding. Id. DPS argues that the controversy was rendered moot by its decision to reinstate Ackerman‘s license after the criminal charges were dropped and that his claim for attorney‘s fees and costs cannot breathe life back into the action. We disagree.
As presented to the county court at law, this proceeding involved two controversies. First, DPS claimed that it was entitled to suspend Ackerman‘s license due to his pending criminal charges, a claim on which it carried the burden of proof in the de novo proceeding before the county court at law. See Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 289 (Tex. App.-Houston [1st Dist.] 1992, no writ) (“In appeals from justice court to county court, the judgment of the justice court is vacated and the plaintiff has the burden of proving his case again.“). Second, in what amounted to a counterclaim against DPS, Ackerman claimed that DPS‘s entire cause of action against him was frivolous, entitling him to recover attorney‘s fees, costs, and expenses under
When DPS abandoned the effort to suspend Ackerman‘s license, the first controversy was resolved. However, the second controversy remained, and the court had the authority to resolve the issues necessary to dispose of the claims of the parties.
Statutory jurisdiction
DPS also contends that the Dallas County Criminal Court No. 2 did not have statutory authority to consider this proceeding because the concealed handgun license statute explicitly provides that an appeal from the justice court is to a county court at law.
Exchange of Judges in Certain County Courts at Law and County Criminal Courts
In any county with a population of more than 300,000, the judge of a county criminal court and the judge of a county court at law may hold court for or with one another. The county criminal court has the necessary civil jurisdiction to hold court for the county court at law.
TEX.GOV‘T CODE ANN. § 25.0012 (Vernon 1988) .
We take judicial notice of the fact that the 1990 federal decennial census determined that Dallas County‘s population was over 1,800,000.
DPS‘s jurisdictional arguments are not well founded. Issue one is without merit.
Summary judgment issues
DPS directly attacks Ackerman‘s motion for summary judgment on two grounds. First, DPS argues that the motion is insufficient because it does not state as a ground that DPS‘s claims were frivolous, unreasonable or without foundation. Second, DPS argues that Ackerman‘s summary judgment evidence does not establish his entitlement to judgment as a matter of law. We address only the first argument.
Summary judgment standards
The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. Evidence which favors the movant will be considered only if it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). “A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone.” Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993)). A motion that presents no grounds for a summary
A plaintiff who moves for a summary judgment must show that he is entitled to prevail on each element of his cause of action. Brooks v. Sherry Lane Nat‘l Bank, 788 S.W.2d 874, 876 (Tex.App.-Dallas 1990, no writ). This burden is met if the summary-judgment evidence would be sufficient to support an instructed verdict at trial. Braden v. New Ulm State Bank, 618 S.W.2d 780, 782 (Tex. Civ. App.-Houston [1st Dist.] 1981, writ ref‘d n.r.e.).
Ackerman‘s motion for summary judgment
We conclude that Ackerman‘s motion for summary judgment is insufficient as a matter of law to support the judgment. McConnell, 858 S.W.2d at 342. The Frivolous Claims Act permits attorneys fees, costs, and expenses to be awarded when an agency has asserted a claim that is “frivolous, unreasonable, or without foundation.”
Based upon the stipulated facts, answers to request for admissions, and application of the concealed handgun carry law with changes effective September 1, 1997, the allegations in petitioner‘s original petition have been proven and there is no dispute regarding the facts or the applicable law. Accordingly, movant‘s motion should be granted and attorney fees, court reporter charges, and cost be assessed against respondent.
There are no grounds asserted in Ackerman‘s motion which would entitle him to 7 judgment. Thus, his motion is insufficient to sustain the judgment rendered by the trial court, and the judgment must be reversed. McConnell, 858 S.W.2d at 342.
Conclusion
Even though the County Criminal Court No. 2 had jurisdiction to consider the merits of Ackerman‘s claim, his motion for summary judgment was not sufficient to establish his right to judgment. Therefore, we find that DPS‘s second issue has merit. The judgment is reversed, and this cause is remanded to the trial court for further proceedings.
Justice GRAY dissenting.
TOM GRAY, Justice, dissenting.
The majority holds that Ronald K. Ackerman failed to state any ground in his motion for summary judgment which would entitle him to judgment. They conclude that “his motion is insufficient to sustain the judgment rendered by the trial court, and the judgment must be reversed.” What‘s a person gotta’ do to get a summary judgment these days?
In Ackerman‘s motion for summary judgment he states: “The only issue remaining in this case is the applicability of
Ackerman told the reader of his motion for summary judgment exactly the ground under which he was seeking summary judgment for fees, expenses and attorney‘s fees;
We should avoid imposing enzymatic language requirement to state a ground of recovery in a summary judgment motion. If the motion provides a reader reasonable notice of the ground upon which summary judgment is sought, that should be adequate. The ground of recovery is sufficiently stated in Ackerman‘s summary judgment motion.
For the reasons stated, I respectfully dissent from the majority‘s remand of this cause on the basis indicated. I concur in the remainder of the opinion.
BILL VANCE
Justice