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holding that appellant failed to preserve for appellate review argument not raised in trial court
Summary of this case from Denton County v. BeynonOpinion
No. 05-05-01227-CV
Opinion Filed June 21, 2006.
On Appeal from the 191st District Court, Dallas County, Texas, Trial Court Cause No. 02-05408-J.
Before Justices MOSELEY, FITZGERALD, and FRANCIS.
OPINION
The City of Dallas, Texas appeals the denial of its plea to the jurisdiction in VSC, LLC's suit alleging the City took its property without just compensation and seeking declaratory judgment. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005). We affirm in part and reverse in part.
BACKGROUND
In 2002, VSC operated a licensed vehicle storage facility, which authorized it to receive and store vehicles towed without the consent of their owners. Tex. Occ. Code Ann. § 2303.001-.303 (Vernon 2004 Supp. 2005). VSC alleged that on June 14 and 27, 2002, officers of the Dallas Police Department intentionally seized 47 vehicles stored by VSC. The officers asserted the vehicles were either stolen, involved in other felony offenses, or had altered serial numbers. See Tex. Transp. Code Ann. § 501.158 (Vernon 1999); Tex. Code Crim. Proc. Ann. arts. 18.02(1), (9), (12), 18.16, 47.01 (Vernon Supp. 2005). Hearings were held on these vehicles under the provisions of chapter 47 of the code of criminal procedure. Besides the June 14 and 27, 2002 seizures, VSC alleged the Dallas police officers, with the approval, authorization, and direction of the City's policy makers, came onto VSC's property at various times and seized 326 vehicles. According to VSC, these vehicles had not been reported stolen and were not part of any criminal action or investigation when they were towed, when they arrived at VSC's storage facility, or when the police seized them. VSC alleged the City disposed of these vehicles without notifying VSC. VSC alleged that it had "a legitimate and recognized property interest" in the seized vehicles, which the City destroyed through the disposition of the vehicles without notice to VSC.
VSC sued the City in state court alleging several state and federal causes of action. The City removed the case to federal district court. At VSC's request, the federal court remanded three of the causes of action to the state court and abated the remaining federal claims until disposition of the state-court litigation. Two of the causes of action alleged the City's seizure and subsequent disposition of the vehicles without notice to VSC was a constitutional "taking" of VSC's property interest in the vehicles and violated VSC's right to just compensation under article I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The third cause of action sought a declaratory judgment (1) that VSC is entitled to towing and storage fees for vehicles lawfully towed and stored at VSC's licensed storage facility even if the vehicles are reported stolen; (2) that the City lacks authority to seize vehicles as stolen to which VSC is entitled to towing and storage fees that have been lawfully towed and stored at VSC's licensed storage facility; and (3) that VSC is entitled to notice and a hearing under chapter 47 of the code of criminal procedure even if the City is authorized to seize the vehicles from VSC's licensed storage facility that have been reported stolen.
The City filed a plea to the jurisdiction asserting the trial court lacked jurisdiction over these claims. The trial court denied the plea to the jurisdiction. The City now brings this interlocutory appeal. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8).
PLEA TO THE JURISDICTION
In its first issue, the City generally asserts the trial court erred in denying the plea to the jurisdiction. Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied. Id. at 227-28. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c), and the burden is on the government to meet the summary judgment standard of proof. Id. This standard "protect[s] the plaintiffs from having to `put on their case simply to establish jurisdiction.'" Id. (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).
CONSTITUTIONAL TAKING
In its second, third, and fourth issues, the City asserts the trial court erred in denying its plea to the jurisdiction to VSC's takings claim. The City does not have immunity from a valid takings claim under article I, section 17 of the Texas Constitution. Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex.App.-Dallas 2004, no pet.). If the plaintiff fails to allege a valid takings claim, then the City retains its immunity to suit. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001); Bell, 146 S.W.3d at 825. Whether particular facts constitute a taking is a question of law. Gen. Servs. Comm'n, 39 S.W.3d at 598; Bell, 146 S.W.3d at 825.
Article I, section 17 of the Texas Constitution provides, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. . . ." Tex. Const. art. I, § 17. A takings cause of action consists of three elements: (1) an intentional act by the government (2) resulting in a taking of the plaintiff's property (3) for public use. Gen. Servs. Comm'n, 39 S.W.3d at 598.
Authorized Governmental Action
In its second issue, the City asks if "a takings claim [can] be based on alleged unauthorized or unlawful governmental action." The City argues that a takings claim must be based on an authorized, lawful government action. The City then asserts VSC alleged that the police officers' seizures of the vehicles stored by VSC were unlawful and unauthorized. We have studied VSC's live pleading, and we have found no allegation in its article I, section 17 cause of action that the seizures were unauthorized or unlawful. The City also asserts VSC made the allegations of unauthorized, unlawful police seizures in a complaint pending in federal court. The City does not explain why VSC's allegations in federal court affect the Texas court's jurisdiction when those allegations were not made in the Texas lawsuit. We overrule the City's second issue.
Valid Exercise of Police Power
In its third issue, the City asks, "Is the seizure of vehicles reported stolen an exercise of a government's police power rather than a taking?" The City argues that the police had the power to seize stolen vehicles and vehicles with altered serial numbers and that the valid exercise of police power cannot be a taking. See Tex. Transp. Code Ann. § 501.158(a) (Vernon 1999) ("A peace officer may seize a vehicle or part of a vehicle without a warrant if the officer has probable cause to believe that the vehicle or part (1) is stolen; or (2) has had the serial number removed, altered, or obliterated."); Tex. Code Crim. Proc. Ann. art. 47.01 (Vernon Supp. 2005).
Before determining whether this argument establishes the trial court's lack of jurisdiction over the takings claim, we must first determine whether the City conclusively proved the jurisdictional fact that all the vehicles allegedly seized by the police are subject to the City's argument because they were reported stolen, had tampered serial numbers, or were otherwise subject to seizure by the police. If any of the vehicles are not subject to the argument, then the City failed to establish the trial court lacked jurisdiction over the takings claim.
The City relies on the affidavits of Michael Coker and J.D. Dukes as proof that all the vehicles were reported stolen. Coker and Dukes examined the Dallas Police Department's records for the 326 vehicles allegedly seized by the police. Their affidavits explain the City had records showing that almost all of the vehicles were either seized by the Dallas police in accordance with the statutes authorizing the police to take custody of stolen vehicles and vehicles with altered serial numbers, or the City's records showed the Dallas police did not take the vehicles into custody. However, Coker's affidavit states the City had no records for thirteen of the vehicles. Accordingly, the City has failed to establish as a matter of law that all the vehicles seized were subject to seizure under the law. We need not further address in this interlocutory appeal the issue of whether the City's alleged acts of seizing the vehicles and returning them to their record owners is an exercise of the City's governmental police powers and not a taking. We overrule the City's third issue.
VSC's Property Interest
In its fourth issue, the City asks, "Does VSC, as a non-consent vehicle storage facility, have a lien or vested property interest in vehicles towed without consent?" VSC argues it had possessory liens in the vehicles that were destroyed when the City seized the vehicles. The City argues VSC had no lien or other property interest in the vehicles.
VSC argues it has the "garageman's lien" under section 70.003(c) of the property code:
A garageman with whom a motor vehicle . . . is left for care has a lien on the motor vehicle . . . for the amount of the charges for the care, including reasonable charges for towing the motor vehicle . . . to the garageman's place of business.
Tex. Prop. Code Ann. § 70.003(c) (Vernon Supp. 2005). The City argues this lien does not apply to nonconsensual towing and storage, citing one Texas Supreme Court case and two federal cases. These cases, however, involved repairs and maintenance, not towing and storage, made without the consent of the owner. See Drake Ins. Co. v. King, 606 S.W.2d 812, 818 (Tex. 1980); see also Astraea Aviation Servs., Inc. v. Nations Air, Inc., 172 F.3d 390, 393-94 (5th Cir. 1999); Reimer v. Smith, 663 F.2d 1316, 1325 n. 7 (5th Cir. 1981). As to towing and storage charges, a driver in Texas impliedly agrees to allow his vehicle to be towed and stored when authorized by law. See Bray v. Curtis, 544 S.W.2d 816, 818-19 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). Property code section 70.003(c) authorizes a lien where the garageman came into possession of the vehicle lawfully. See id.; see also Elite Towing Co. v. LSI Fin. Group, 985 S.W.2d 635, 640 (Tex.App.-Austin 1999, no pet.). The City asserts any lien VSC may have does not apply to stolen vehicles or vehicles with altered serial numbers because police officers may seize those vehicles. See Tex. Transp. Code Ann. § 501.158 (Vernon 1999). However, we need not reach that issue in this appeal because there are thirteen vehicles whose status is unknown due to the City's lack of records concerning them.
The City next argues that a valid lien is dependent on a valid debt, and VSC could not have a valid debt for towing and storage because, as the City argues, "[a]ll of the vehicles were stolen." As discussed above, the City has no evidence of the status of thirteen of the vehicles; thus, it cannot prove as a matter of law that "[a]ll of the vehicles were stolen." Accordingly, the City's argument does not prove that VSC could not have a valid debt secured by a garageman's lien.
The City also argues that liens are not property that can be "taken" under article I, section 17 of the Texas Constitution. We reject this argument. Liens can be "taken" by the government. See County of Burleson v. Gen. Elec. Capital Corp., 831 S.W.2d 54, 60 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The City then argues that any lien VSC may have does not apply to police seizures of stolen property. However, the City did not prove that all of the vehicles allegedly seized were stolen.
The City also asserts that VSC's authority to store vehicles towed without the consent of their owners comes from its license in a regulated industry. The City then appears to argue that VSC's license to store vehicles is not a vested property right or interest. However, VSC's cause of action does not allege a taking of its license to store vehicles, so the City's argument is not relevant. We conclude the City has failed to establish as a matter of law that VSC had no property interest subject to being taken by the City. We overrule the City's fourth issue. Because the City has failed to show the trial court lacked jurisdiction over VSC's cause of action alleging a taking, we hold the trial court did not err in denying the City's plea to the jurisdiction concerning VSC's cause of action alleging a taking.
We do not hold that VSC, in fact, has a lien on any vehicles or that any liens it has were taken by the City. We hold only that the City failed to prove the trial court lacked jurisdiction over the takings claim.
Declaratory Judgment
In its first and fifth through seventh issues, the City asserts the trial court erred by denying its plea to the jurisdiction to VSC's declaratory judgment action. VSC alleged there were disputes between it and the City regarding situations where vehicles are lawfully towed and stored in a vehicle storage facility and are subsequently reported stolen. VSC sought three declarations: (1) that it "is entitled to towing and storage fees under state law for vehicles lawfully towed and stored even if the vehicles are at some point reported stolen"; (2) that the "City lacks authority to seize vehicles as stolen to which [VSC] is entitled to towing and storage fees and that have been lawfully recovered and stored by [VSC] and reported to [the] City"; and (3) that VSC "is an interested person with a possessory interest in the vehicles and is entitled to notice and a hearing pursuant to Chapter 47 of the Texas Code of Criminal Procedure even if [the] City is authorized to seize the vehicles reported stolen that have been recovered by [VSC] and reported to [the] City." VSC's license to operate a vehicle storage facility has been revoked. VSC also "request[ed] its rights be determined prospectively, not in order to establish liability for money damages against [the] City for past conduct."
In a letter to the parties, the trial court stated that VSC intends to return to operating as a vehicle storage facility if the case is resolved favorably to its position.
In its fifth issue, the City asserts the trial court lacked jurisdiction over the declaratory judgment action because immunity from suit bars declaratory judgment actions that seek to establish the basis for monetary damages. The cases the City cites for this proposition involved suits for declaratory judgment that would have established the basis for monetary damages in causes of action from which the government had immunity. IT-Davy, 74 S.W.3d at 855-56 (no jurisdiction over suit for breach of contract and declaratory judgment); State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994) (no jurisdiction over suit seeking injunction and declaratory judgment barring enforcement of anti-sodomy statute). None of the cases involved declaratory relief that could be used as the basis for a cause of action to which the government had waived immunity. The declaratory judgment statute does not expand the courts' jurisdiction; it is merely a procedural device for deciding cases already within a court's jurisdiction. IT-Davy, 74 S.W.3d at 855; Morales, 869 S.W.2d at 947. Because the City's immunity is waived for takings claims, the City has not established that immunity bars declaratory judgment claims used as a basis for recovery of damages in a takings claim. We overrule the City's fifth issue.
The City also asserts VSC's declaratory judgment suit cannot be brought because the claims to which it relates are fully matured. Declaratory judgment "is not available to settle disputes already pending before a court." US Bank v. Prestige Ford Garland Ltd. P'ship, 170 S.W.3d 272, 278 (Tex.App.-Dallas 2005, no pet.) (quoting BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990)). In US Bank, we held the trial court did not err in granting summary judgment against the plaintiff when the plaintiff's declaratory judgment action was first presented in an amended petition. Id. at 278-79. However, we did not hold the trial court lacked jurisdiction over the claim. Assuming, without deciding, that VSC's declaratory judgment actions lack merit because they concern a dispute already before the court, the lack of merit does not deprive the trial court of jurisdiction over them. See Sylvester v. Watkins, 538 S.W.2d 827, 831 (Tex.Civ.App.-Amarillo 1976, writ ref'd n.r.e.) ("the existence of another adequate remedy does not necessarily deprive the court of jurisdiction to grant declaratory relief").
In the sixth issue, the City asserts the trial court lacked jurisdiction to declare the requested relief because VSC is not licensed to operate a vehicle storage facility for nonconsensual tows, which renders its requested relief too speculative, hypothetical, and contingent to constitute a justiciable issue. A declaratory judgment is available only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interest and not merely a theoretical dispute." Id. A justiciable controversy need not be a fully ripened cause of action. Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex.App.-Austin 1998, no pet.). To confer jurisdiction, the fact situation must manifest the "ripening seeds of a controversy." See id. at 153-54. Ripening seeds of a controversy "appear where the claims of several parties are present and indicative of threatened litigation in the immediate future which seems unavoidable, even though the differences between the parties as to their legal rights have not reached the state of an actual controversy." Id. (quoting Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 761 (Tex.Civ.App.-Beaumont 1954, no writ)). "A declaratory judgment action does not vest a court with the power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication." Tex. Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied).
VSC's statement of the dispute between it and the City concerned vehicles stored in a licensed vehicle storage facility, but the requested declaratory relief was not limited to licensed vehicle storage facilities or to the storage of vehicles towed without consent. The requested declarations could apply equally to vehicles towed and stored with the consent of the vehicles' operators that are subsequently reported stolen. Despite the loss of its license to operate a facility for storing vehicles from non-consensual tows, VSC's allegations demonstrate the ripening seeds of a controversy and the existence of a justiciable issue, and the requested relief is not too speculative, hypothetical, or contingent to constitute a justiciable issue. We overrule the City's sixth issue.
A vehicle towed without consent that is not taken into police custody may be taken only to a licensed vehicle storage facility. See Tex. Occ. Code Ann. § 2303.003(a) (Vernon 2004); Tex. Transp. Code Ann. §§ 684.001(8), .012(a), .014(a) (Vernon Supp. 2005)
In the seventh issue, the City asserts the trial court lacked jurisdiction to declare the requested relief without the vehicles' owners being joined as parties. The Declaratory Judgment Act provides: "When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties." Tex. Civ. Prac. Rem. Code Ann. § 37.006(a) (Vernon 1997).
VSC's first requested declaration was that it "is entitled to towing and storage fees under state law for vehicles lawfully towed and stored even if the vehicles are at some point reported stolen." This request does not involve the rights or interests of VSC against the City; it involves the rights or interests of VSC against the rights or interests of the owners of vehicles stored in VSC's lots. Those owners are not parties to this suit. "A declaratory judgment requires a justiciable controversy as to the rights and status of parties actually before the court for adjudication. . . ." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004) (emphasis added). The trial court lacks jurisdiction to declare the rights of parties who are not before the court. Id. In this case, without any vehicle owner before the court, the trial court cannot make a declaration concerning the rights and interests of vehicle owners. Because VSC's first requested declaration necessarily requires a declaration of the rights and interests of vehicle owners, the trial court lacks jurisdiction over it. Id.
VSC, citing Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex. 1974), asserts the failure to join a necessary party is not jurisdictional. Cooper involved necessary parties under rule of civil procedure 39. Id. at 204; Tex. R. Civ. P. 39. That case, however, did not involve a declaratory judgment. The supreme court made clear in Brooks that in a suit for declaratory judgment, the trial court lacks jurisdiction to declare the rights of parties not before the court. See Brooks, 141 S.W.3d at 163-64. The declaration of the rights and interests of VSC to collect fees from vehicle owners necessarily involves a declaration of the rights and interests of the vehicle owners who were not before the court, namely, their obligation to pay fees to VSC. Because the vehicle owners were not before the trial court, the court lacked jurisdiction to make this declaration.
The second requested declaration, that the "City lacks authority to seize vehicles as stolen to which [VSC] is entitled to towing and storage fees and that have been lawfully recovered and stored by [VSC] and reported to [the] City," does not necessarily require a declaration of the rights and interests of the vehicle owners. This declaration assumes VSC is entitled to collect the fees from the vehicle owners, but it does not request the court to declare that it is entitled to collect the fees from the vehicle owners. The declaration concerns the rights and interests of VSC and the City's authority to seize vehicles from VSC; it does not concern the rights and interests of the absent vehicle owners. Accordingly, the trial court does not lack jurisdiction over this requested declaration due to the failure to join the vehicle owners.
The City also asserts that the trial court lacked jurisdiction over the second requested declaration because VSC did not join the Texas Attorney General as a party. The City argues that the requested declaration implicitly requests the trial court to declare unconstitutional Texas Transportation Code section 501.158, and section 37.006 of the Texas Civil Practice and Remedies Code requires service on the Attorney General of any suit for declaratory judgment alleging a statute is unconstitutional. See Tex. Civ. Prac. Rem. Code Ann. § 37.006(b) (Vernon 1997). The City did not include this argument in its plea to the jurisdiction before the trial court. Accordingly, it has failed to preserve this ground for appellate review. Tex.R.App.P. 33.1(a)(1).
The City also argues that the trial court lacks jurisdiction over the second requested declaration because the validity of the search and seizure was an issue specifically retained by the federal court and not remanded. The search and seizure issue retained by the federal court was a claim under 42 U.S.C. section 1983 that the City's June 2002 seizure of vehicles from VSC violated VSC's constitutional right to be free from unreasonable search and seizure. VSC's second requested declaration does not concern the June 2002 seizures, nor does it request a declaration that the City's actions violated VSC's constitutional rights. Accordingly, it is not part of the search and seizure cause of action retained by the federal court. Furthermore, the City cites no authority in support of its argument that retention of the claim by the federal court deprives the Texas court of jurisdiction over the claim. Accordingly, it has not properly briefed this argument. See Tex.R.App.P. 38.1(h) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex.App.-Dallas 2005, no pet.); Wolfe v. C.S.P.H. Inc., 24 S.W.3d 641, 646-47 (Tex.App.-Dallas 2000, no pet.).
The third requested declaration, that VSC "is an interested person with a possessory interest in the vehicles entitled to notice and a hearing pursuant to Chapter 47 of the Texas Code of Criminal Procedure even if [the] City is authorized to seize the vehicles reported stolen that have been recovered by [VSC] and reported to [the] City," does not concern the rights and interests of the vehicle owners. A trial court declaration that VSC is entitled to notice under Chapter 47 of the Texas Code of Criminal Procedure would not require an adjudication of the rights and interests of the vehicle owners. Accordingly, the trial court does not lack jurisdiction over this requested declaration due to the failure to join the vehicle owners.
We make no holding whether an interested person with a possessory interest in a vehicle is entitled to notice under chapter 47 of the code of criminal procedure.
The City asserts the trial court lacked jurisdiction to determine whether to render the third requested declaration because no chapter 47 hearing would be necessary. Assuming, without deciding, that the City is correct that no chapter 47 hearing would be necessary, then the City might be entitled to judgment in its favor. However, the fact the City may be entitled to judgment in its favor does not establish that the trial court lacks jurisdiction to resolve a dispute in a suit for declaratory judgment.
We make no holding in this appeal from the denial of a plea to the jurisdiction whether the City would be entitled to judgment in its favor if it proves no chapter 47 hearings were necessary.
We hold the trial court erred in denying the City's plea to the jurisdiction to VSC's first requested declaration, but the court did not err in denying the plea to the jurisdiction to VSC's second and third requested declarations. We sustain the City's seventh issue in part and overrule it in part.
Federal Takings Claim
In its eighth issue, the City asserts VSC's federal takings claims are not ripe because they cannot be ruled on until the state takings claims are denied. The Texas Supreme Court, however, has held that state and federal takings claims may be brought in the same action even though the federal takings claim cannot be ruled on until after the state takings claim is denied. Town of Flower Mound v. Stafford Estates, Ltd. P'ship, 135 S.W.3d 620, 646 (Tex. 2004). We overrule the City's eighth issue.
CONCLUSION
We sustain the City's first issue in part and overrule it in part. We hold the trial court erred in denying the City's plea to the jurisdiction to VSC's requested declaration that it is entitled to collect towing and storage fees from vehicle owners, and we order that claim dismissed for want of jurisdiction. In all other respects, we affirm the trial court's order.