Larry Wolf and Camila Wolf v. City of Mission on Behalf of the Mission Police Department

NUMBER 13-12-00737-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LARRY WOLF AND
CAMILA WOLF, Appellants,
v.
CITY OF MISSION ON
BEHALF OF THE MISSION
POLICE DEPARTMENT, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Memorandum Opinion by Justice Garza
This appeal arises from a proceeding in which three parcels of real property were
ordered forfeited to the Hidalgo County Criminal District Attorney and the Mission Police
Department. Appellants, Larry and Camila Wolf, did not initially participate in the
forfeiture proceeding but filed a plea in intervention and petition for declaratory relief
some four years after final judgment of forfeiture was rendered. The trial court granted
a plea to the jurisdiction filed by appellee, the City of Mission on behalf of its police
department (the “City”). We affirm.
I. BACKGROUND
On September 13, 2006, the Hidalgo County Criminal District Attorney filed a
“Notice of Seizure and Intended Forfeiture” alleging that seven parcels of real property
were seized pursuant to a lawful arrest and asking the trial court to order the properties
forfeited. The notice, which was accompanied by a police officer’s affidavit, explained
that the properties were seized after a search warrant was executed on a property in
Palmhurst, Texas. Upon entering the property, officers discovered over $1.5 million in
United States currency. According to the officer’s affidavit, Martina Casa Flores, who
resided at the Palmhurst residence, admitted that the currency was obtained from her
late husband’s illegal drug trafficking business. The affidavit stated that further
investigation showed that Flores owned several parcels of real property in Hidalgo
County “outright, with no mortgage against the properties.” Those properties were
seized based on investigators’ “knowledge and belief” that they were obtained with
proceeds derived from the trafficking of narcotics. See TEX. CODE CRIM. PROC. ANN.
arts. 59.01(2)(c), 59.02(a) (West Supp. 2011) (stating that proceeds gained from the
commission of certain felonies are contraband subject to seizure). On September 26,
2007, the trial court rendered an agreed judgment ordering four of the subject properties
forfeited and three returned to Flores.
The Wolfs filed a plea in intervention and petition for declaratory relief in the
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forfeiture proceeding on November 15, 2011, alleging that they held judgment liens on
the properties and asking for a declaration that the 2007 forfeiture judgment is void.
The Wolfs also alleged that the 2007 judgment is void because “forfeited property must
be awarded to a political subdivision authorized by law to employ Peace Officers.”1
In response, the City filed a plea to the jurisdiction contending that: (1) the trial
court lost its plenary power thirty days after rendering the forfeiture judgment, see TEX.
R. CIV. P. 329b(d); (2) the Wolfs lack standing, see First Alief Bank v. White, 682 S.W.2d
251, 252 (Tex. 1984) (“[A] plea in intervention comes too late if filed after judgment and
may not be considered unless and until the judgment has been set aside.”); and (3) the
City is entitled to governmental immunity. The Wolfs filed a response to the plea to the
jurisdiction and moved for summary judgment, claiming that they “have priority to the
properties in question” because they “abstracted their judgment prior to any form of
recordation by either the City of Mission or the Hidalgo County District Attorney.” The
trial court granted the plea to the jurisdiction2 and dismissed the Wolfs’ plea in
intervention, without specifying the grounds upon which the plea was granted. This
appeal followed.
II. STANDARD OF REVIEW
A plea questioning the trial court's subject-matter jurisdiction raises a question of
law that we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). We focus first on the pleadings to determine whether the facts
1
Attached to the Wolfs’ plea were documents establishing that: (1) the Wolfs sued Flores after a
2004 auto accident; (2) on December 28, 2007, the Wolfs obtained a permanent injunction enjoining
Flores from disposing of the real property at issue; and (3) on April 24, 2008, the Wolfs obtained a post-
answer default judgment against Flores in the amount of $750,000.
2
The trial court initially denied the plea to the jurisdiction by order dated June 21, 2012.
However, it subsequently granted the City’s motion for reconsideration, and it rendered judgment granting
the plea to the jurisdiction on October 29, 2012.
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pled affirmatively demonstrate that subject-matter jurisdiction exists. Id. A plea should
not be granted if a fact issue is presented as to the court’s jurisdiction, but if the
pleadings affirmatively demonstrate an incurable jurisdictional defect, then the plea to
the jurisdiction must be granted. Id. at 227–28. If the pleadings are insufficient to
establish jurisdiction but do not affirmatively demonstrate an incurable defect, the
plaintiff should be afforded the opportunity to replead. Id. at 226–27.
III. ANALYSIS
In their initial appellate brief, the Wolfs raise two issues which they characterize
as follows: (1) “Does the prior abstract of the judgment by the [Wolfs] constitute a lien
on the real property located in the county in which the abstract is recorded and
indexed”; and (2) under the Uniform Declaratory Judgments Act (“UDJA”), TEX. CIV.
PRAC. & REM. CODE ANN. ch. 37 (West 2008), “[i]t is not a collateral attack on a judgment
and limitations doesn’t accrue until a cause of action arises wherein a person seeks a
declaration or clarification of their status, legal relations, or rights.” After the City filed its
appellee’s brief, the Wolfs filed a reply brief listing three issues, including the following:
The trial court did not lose plenary power 30 days after the decision was
signed because any decision by the District Court as to what force it will
attribute to a decision rendered by a County Court or as to whether it will
allow [the Wolfs] to intervene in its proceedings involves the decision as to
how the District Court will enforce its judgment. A court retains continuing
jurisdiction over matters involving the enforcement of its judgments and
retains its plenary power.
The issues raised in the Wolfs’ initial brief fail to attack any of the three grounds
for relief alleged by the City in its plea to the jurisdiction—i.e., expiration of plenary
power, lack of standing, and governmental immunity. The issue newly raised in the
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Wolfs’ reply brief3 addresses the expiration of plenary power, but it does not address
lack of standing or governmental immunity. An appellant must attack all independent
grounds that fully support an adverse ruling; if he fails to do so, then we must affirm that
ruling. Fox v. Maguire, 224 S.W.3d 304, 307 (Tex. App.—El Paso 2005, pet. denied);
Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st
Dist.] 2002, no pet.); see Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex.
App.—San Antonio 1996, writ denied); see also SJW Prop. Commerce, Inc. v. Sw.
Pinnacle Props., 314 S.W.3d 166, 190 (Tex. App.—Corpus Christi 2010), vacated on
other grounds, 328 S.W.3d 121 (Tex. App.—Corpus Christi 2010, pet. denied). Even if
we were to agree with the Wolfs that the court retained plenary power, we would still be
compelled to affirm the trial court’s judgment because the Wolfs’ issue addresses only
one of the three grounds for relief set forth by the City in its plea to the jurisdiction. 4 See
Britton, 95 S.W.3d at 681 (noting that, “if an independent ground fully supports the
complained-of ruling or judgment, but the appellant assigns no error to that independent
ground, then (1) we must accept the validity of that unchallenged independent
3
A reply brief may not be used to raise new issues. Gamboa v. Gamboa, 383 S.W.3d 263, 274
(Tex. App.—San Antonio 2012, no pet.); In re Elamex, 367 S.W.3d 879, 890 n.8 (Tex. App.—El Paso
2012, orig. proceeding) (“An issue raised for the first time in a reply brief is waived and need not be
considered by an appeals court.”); U.S. Lawns, Inc. v. Castillo, 347 S.W.3d 844, 849 (Tex. App.—Corpus
Christi 2011, pet. denied) (noting that, “[b]y attacking the merits of the unchallenged ground in its reply
brief, [appellant] is attempting to circumvent the briefing rules”). However, the City raised the issue of
plenary power in its appellees’ brief. Accordingly, the Wolfs were entitled to address that issue in their
reply brief. See TEX. R. APP. P. 38.3 (“The appellant may file a reply brief addressing any matter in the
appellee’s brief.”).
4
The Wolfs argue in both of their appellate briefs that the underlying forfeiture judgment is void.
However, even if the judgment was void, that would not negate the City’s standing and immunity theories.
See Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985) (disapproving the court of appeals’ statement
that "if a judgment rendered by a trial court is void it may be set aside by that court at any time” and
holding instead that direct attacks on a void judgment must be brought by bill of review under Texas Rule
of Civil Procedure 329b(f), with the only exception being when the underlying judgment was rendered
without the court having jurisdiction); PNS Stores, Inc. v. Rivera, 335 S.W.3d 265, 280 (Tex. App.—San
Antonio 2010), rev’d on other grounds, 379 S.W.3d 267 (Tex. 2012).
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ground . . . and thus (2) any error in the grounds challenged on appeal is harmless
because the unchallenged independent ground fully supports the complained-of ruling
or judgment.”). Accordingly, we have no choice but to overrule the Wolfs’ issues on
appeal.
IV. CONCLUSION
The trial court’s judgment is affirmed.
________________________
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
29th day of August, 2013.
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