Nabelek, Ivo v. C.O. Bradford and City of Houston

Affirmed; Opinion of July 3, 2002, Withdrawn; Corrected Opinion filed August 22, 2002

Affirmed; Opinion of July 3, 2002, Withdrawn; Corrected Opinion filed August 22, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00240-CV

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IVO NABELEK, Appellant

V.

C.O. BRADFORD and CITY OF HOUSTON, Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 1999-38380

C O R R E C T E D   O P I N I O N

This appeal arises from a dispute over the failure to return property seized, but not used, as evidence in a criminal prosecution.  Appellant, Ivo Nabelek (“Nabelek”), sued the City of Houston (the “City”), Houston Police Chief Clarence O. Bradford (“Bradford”), and various other parties claiming damages for personal injury, conversion, and violations of his constitutional rights. The trial court rendered summary judgment in favor of the City.  In numerous points of error, Nabelek contends the trial court erred in: (1) denying his motion for summary judgment; (2) granting summary judgment in favor of the City where genuine issues of material fact existed and its motion therefor was untimely filed; (3) denying his motion to compel response to discovery; (4) depriving him of sufficient and complete discovery; and (5) disposing of all claims where summary judgment was purportedly granted only for one defendant on limited claims.  We affirm.

Factual and Procedural Background

On February 17, 1993, Nabelek was arrested and charged with aggravated sexual assault of a child and possession of child pornography.  At that time, various items of his property were seized.  Nabelek later pled guilty, and, on April 12, 1994, a trial was held to determine punishment.  Some, but not all, of the items seized were used against Nabelek at that trial.  We are here concerned with some of those items that went unused.^[1]

It was not until January 10, 1997, that Nabelek inquired as to the whereabouts of his property.  On March 5, 1997, the Houston Police Department (AHPD@) erroneously informed Nabelek that it had possession only of a teddy bear, and that his camera (and, apparently, its accompanying accessories) had been “marked and sent to city inventory.”  Nabelek then filed suit against the City on June 4, 1998, for the return of these particular items.

The remainder of the unused items were destroyed by the City in 1998.  On July 26, 1999, Nabelek, representing himself, filed the instant suit against the City and Bradford,^[2] seeking recovery for personal injury, conversion and violations of his constitutional rights.  Thereafter, on September 10, 1999, Nabelek moved to consolidate this suit with that aforementioned, on the basis that “[b]oth cases arise out of one incident involving the same parties,” and that he had limited his original suit to the camera and teddy bear “only based on previous information received from the [City] and [the] Houston Police Department.”  No ruling was made on this motion.

On July 24, 2000, Nabelek moved for summary judgment on the issue of liability.  The City responded and itself moved for summary judgment on the basis of governmental immunity and the expiration of the statute of limitations. In a brief handwritten order, the trial court granted the City=s motion for summary judgment, without specifying the grounds therefor, denied Nabelek=s motion for summary judgment, and denied all other relief on January 16, 2001.  This appeal ensued.

Standard of Review

The standard we follow in reviewing a summary judgment is well-established. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985).  When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non-movant as true and we resolve any doubts in its favor.  Nixon, 690 S.W.2d at 548B49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984).  A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff=s causes of action or establishes all the elements of an affirmative defense.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  When the trial court grants one party=s motion for summary judgment and denies the other, we review both motions and if we find the trial court erred, we will reverse and render the judgment the trial court should have rendered.  Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Holmstrom, 26 S.W.3d at 530.

A Final Order

The summary judgment upon which the trial court inscribed its order was brought in the name of the City alone; Bradford, the sole remaining co-defendant, was not named therein.   Moreover, the trial court=s order did not expressly dispose of Nabelek=s claims against Bradford.  The order stated, in pertinent part:

Plaintiff=s motion for summary judgment is denied.  Defendants= motion for summary judgment is granted.  This is a final order.  All relief not granted is denied.

Nabelek now asserts that this judgment was not final for purposes of appeal, and remand is therefore required “for further proceedings to address the remaining claims and parties upon submission of new motions.”  We disagree.

The order expressly notes that it is “final” judgment, and it apostrophized “Defendants=.”  It can thus only be concluded that the trial court considered the arguments raised in the City=s motion for summary judgment to dispose also of all claims against Bradford. This conclusion is buttressed by reference to the record.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (“The record may help illumine whether an order is made final by its own language, so that an order that all parties appear to have treated as final may be final despite some vagueness in the order itself . . .”).  Nabelek sought recovery against Bradford only in his capacity as police chief, and only for the failure of HPD to return his property.  Consequently, the City=s summary judgment assertions of governmental immunity and expiration of the statute of limitations were, as the trial court undoubtedly recognized, equally applicable to Bradford.  Thus, we conclude the trial court=s order rendered a final and appealable judgment.

Limitations and the Disposition of Unclaimed Property

As aforementioned, on July 26, 1999, Nabelek filed the instant suit seeking recovery for personal injury, conversion, and violations of his constitutional rights.^[3]  The statute of limitations for all these claims is two years.  Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon Supp. 2002) (A[A] person must bring suit for . . . conversion of personal property, taking or detaining the personal property of another, [and] personal injury . . . not later than two years after the day the cause of action accrues@); Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (stating that, as there is no federal statute of limitations for civil rights actions brought pursuant to 42 U.S.C. ' 1983, courts construing that section A>borrow= the forum state=s general personal injury limitations period@). At issue is the date from which this period began to run.  Nabelek avers his claims accrued, at the earliest, with the destruction of the items in 1998; Bradford and the City contend the limitations period commenced on April 12, 1994, with the conclusion of the criminal trial, or on March 5, 1997, “the date on which . . . [HPD] exercised acts of dominion inconsistent with . . . Nabelek=s claims.”

The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds.  Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734B35 (Tex. 2001); S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988).  Generally a cause of action accrues when a wrongful act causes a legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.  S.V., 933 S.W.2d at 3 (Tex. 1996); see also Li v. Univ. of Texas Health Sci. Ctr. at Houston, 984 S.W.2d 647, 651 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).  For claims relating to the conversion of personal property where the original possession of the property was not wrongful, however, the cause of action does not accrue until the property has been demanded and such demand is refused, or until the party in possession has unequivocally exercised acts of dominion inconsistent with the claims of the owner.  Pierson v. GFH Fin. Services Corp., 829 S.W.2d 311, 314 (Tex. App.CAustin 1992, no writ).

The provision of the Texas Code of Criminal Procedure governing disposition of abandoned or unclaimed property provides, in pertinent part:

(a)       All unclaimed or abandoned personal property of every kind . . . seized by any peace officer in the State of Texas which is not held as evidence to be used in any pending case and has not been ordered destroyed or returned to the person entitled to possession of the same by a magistrate, which shall remain unclaimed for a period of 30 days shall be delivered for disposition to a person designated by the municipality or the purchasing agent of the county in which the property was seized.  If a peace officer of a municipality seizes the property, the peace officer shall deliver the property to a person designated by the municipality.  If any other peace officer seizes the property, the peace officer shall deliver the property to the purchasing agent of the county.  If the county has no purchasing agent, then such property shall be disposed of by the sheriff of the county.

(b) The county purchasing agent, the person designated by the municipality, or the sheriff of the county, as the case may be, shall mail a notice to the last known address of the owner of such property by certified mail.  Such notice shall describe the property being held, give the name and address of the officer holding such property, and shall state that if the owner does not claim such property within 90 days from the date of the notice such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of disposition, placed in the treasury of the municipality or county giving the notice.

Tex. Code Crim. Proc. Ann. art. 18.17 (Vernon Supp. 2002).  Thus, when Nabelek neglected to claim the items at issue within thirty days following his conviction on April 12, 1994, HPD was required to deliver them, within a reasonable time, to the proper party for disposition.  See Govant v. Houston Cmty. Coll. Sys., ___ S.W.3d ___, 2002 WL 58819, at *3 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (noting that where a statute does not provide a time within which a peace officer shall accomplish a task, a reasonable time must be allowed).

HPD, however, indisputably failed to comply with the requirements of article 18.17.  As a consequence, the department=s possession became wrongful following a reasonable time for delivery subsequent to May 12, 1994. Nabelek=s claims for personal injury and violations of his constitutional rights thus accrued as of that date, and expired two years= thereafter, in 1996. Nabelek, however, did not file suit until July 26, 1999.  Moreover, HPD acted inconsistently with Nabelek=s ownership of the items at issue when the department either initially failed to satisfy article 18.17, or, on March 5, 1997, informed Nabelek by letter that HPD could not return his property upon request.  The statute of limitations for conversion, therefore, expired some two years subsequent to March 1994 or March] 1997.  We need not determine which date is applicable, as suit was filed outside the limitations period in either case.  Accordingly, Nabelek=s claims are barred by limitations.

Finally, we note that the discovery rule does not apply.  The discovery rule is “a very limited exception to statutes of limitations,” available only when the nature of the plaintiff=s injury is both inherently undiscoverable and objectively verifiable. Computer Assocs. Int=l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).  When the discovery rule applies, it operates to delay accrual of the cause of action, and thus commencement of the running of the statute of limitations, until a time when the plaintiff knows, or by exercising reasonable diligence, should have known of the facts giving rise to the claim.  Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001).  “An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence.”  Id. 734B35 (citing S.V., 933 S.W.2d at 7).  The question of whether an injury is Ainherently undiscoverable@ is not whether the particular plaintiff was able to discover the injury at issue in the particular case within the statutory period, but rather is whether the injury is the type of injury that by its very nature falls into the category of being inherently undiscoverable.  Id. at 735.

Here, however, Nabelek=s injury was, with the exercise of reasonable diligence on his part, discoverable. The precise injury at issue was the failure of HPD to remit the unclaimed items of property at issue to the relevant official for disposition under article 18.17 within a reasonable time after the thirtieth day following Nabelek=s trial.  While it is perhaps probable that a reasonably diligent person whose property had been seized would not know of his injury as of that date, we cannot say that he would continue to remain unaware of that failure for a period of two years thereafter.  Nabelek undoubtedly knew both that the items at issue were not in his possession within that period, and that there were a limited number of entities which could have custody of them.  We cannot, therefore, say that any injury occurring through the failure of a peace officer to satisfy article 18.17 is inherently undiscoverable.  The discovery rule thus does not apply.

Because we conclude Nabelek=s claims are barred by limitations, we need not consider his remaining arguments. The judgment of the trial court is affirmed.

/s/        J. Harvey Hudson

Justice

Judgment rendered and Corrected Opinion filed August 22, 2002.

Panel consists of Justices Anderson, Hudson, and Edelman.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Unfortunately, the briefs presented to this Court are imprecise as to the particular items at issue.  Nonetheless, we determine that Nabelek seeks return of the following: 389 photographs; two address books; an international driver=s license; a money purse; a roll of 8mm film; a check book register; a book entitled AVirgins@; six videotapes; a magazine entitled AThe Naked Guy: A New Micro Culture@; an envelope containing photographic negatives; eight file folders; six 35mm slides; an attaché case; a teddy bear; and all other items not used at trial.  We note, however, that the record does not make mention of a second stuffed animal, and thus the teddy bear may be the subject of a separate suit filed June 4, 1998.

^[2]  Harris County District Clerk Charles Bacarisse and Judge Debbie Mantooth Stricklin were later  named as defendants, but were subsequently dismissed upon Nabelek=s motion.  In addition, Nabelek moved for leave, after the deadline to add new parties had expired, to file a Third Amended Petition naming as a defendant the police officer who originally seized his property.  Such leave was never granted, however, and the officer was never served.  In addition, Nabelek avers HPD was named as a defendant, but his Second Amended Petition omits their mention.  Accordingly, none of the foregoing are party to this appeal.

^[3]  Nabelek describes his causes of action against Bradford and the City as follows:

Defendants, pursuant to Texas Tort claims [sic] chapter 101.001 et seq. and 104, [Texas Civil Practice and Remedies Code]; Texas Theft Liability Act, Chapter 134, [Texas Civil Practice and Remedies Code]; and 42 USC ' 1983, are liable for personal injuries, damages, destruction and or deprivation of property and theft, violation of constitutional rights, and etc., sustained by Plaintiff.