Nakia Brown v. Office of the Attorney General, Crime Victim Services Division ( 2010 )

Opinion issued July 8, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00008-CV

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Nakia Brown, Appellant

V.

Office of the Attorney General, Crime Victim Services Division, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Case No. 0872790

MEMORANDUM OPINION

          Appellant, Nakia Brown, filed suit in the trial court seeking judicial review of the attorney general’s denial of her claim for compensation under the Crime Victims’ Compensation Act (the CVCA).  Appellee, the Office of the Attorney General, Crime Victim Services Division (attorney general), filed a motion for summary judgment, which the trial court granted.  In seven issues, Brown argues that the trial court erred in granting the attorney general’s motion for summary judgment because (1) the attorney general failed to offer proof that, as a matter of law, appellant was not a crime victim pursuant to the Act; (2) the attorney general failed to offer proof that, as a matter of law, appellant was not a victim of criminally injurious conduct pursuant to the Act; (3) it is not a requirement of the Act that the third party be charged, indicted, or convicted of any crime; (4) the trial court considered the attorney general’s affidavit of Frederick A. Edwards, a prosecutor associated with the case, as summary judgment evidence; (5) the attorney general failed to offer proof that, as a matter of law, Brown bore a share of the responsibility for the act or omission giving rise to the claim; and (6) the attorney general failed to offer proof that, as a matter of law, Brown was engaging in an activity that at the time of the criminally injurious conduct was prohibited by law or a rule made under law.  Additionally, in her eighth issue, Brown requests that, in the event that this Court remands the cause for a trial on the merits, we hold that the proportionate responsibility section of the Texas Civil Practice and Remedies Code chapter 33 does not apply to the “affirmative defenses” under the Act and the trial court should use a pure comparative fault standard.

          We affirm.

Background

On February 15, 2008, Brown, a student at Prairie View A&M University, was returning to her apartment from her on-campus job when she noticed a car parked near the apartment where Mark Williams sometimes stayed.  Brown, who was involved in a dating relationship with Williams, suspected that the car belonged to Tristen Nottage, who was also involved in a dating relationship with Williams.  Brown knocked on the door of the apartment and eventually on Williams’s bedroom door.  Williams denied that the car belonged to Nottage and told Brown to leave.  Brown then attempted to contact Nottage on her cell phone to determine if the car belonged to Nottage.  After Brown placed the phone call to Nottage, Williams came out from the apartment and again told Brown to leave.

Brown went to her own apartment in the same complex to retrieve the gifts Williams had given her for Valentine’s Day and then returned to place them on Nottage’s car.  In the intervening time, Williams and Nottage had both emerged from the apartment where Williams sometimes stayed, and Nottage got into her car to leave. Before Nottage was able to leave the parking lot, Brown initiated a physical altercation by hitting or punching Nottage.  Nottage returned the blows, and the fight was broken up by witnesses.  Nottage then returned to her car, and Brown remained in the apartment parking lot.  As Nottage exited the parking lot, she struck Brown and another witness with her car.[1]

Brown was hospitalized as a result of her injuries and claims that she incurred medical expenses in excess of $100,000.  Brown also reported the incident to police, who arrested Nottage in Houston and charged her with aggravated assault with a deadly weapon.[2]  However, after considering Nottage’s case, a Waller County grand jury no-billed the charges against her.  As a result, Nottage was never tried or convicted of any crime related to the February 15 incident.

Brown filed an application for compensation under the CVCA seeking reimbursement for medical and other expenses.  The attorney general denied her claim, and she appealed the decision for review by the attorney general.  The attorney general’s final decision found that Brown’s “application for compensation was denied by the reviewer based upon a finding that the victim’s behavior contributed to the incident.”  It also found that

the appeal reviewer denied the claim based on the conclusion that according to the available information, no criminal charges were filed. Specifically, [Brown] acted in a manner that directly caused the personal injury giving rise to the CVC claim [and] the credible evidence provided to CVC indicates that [Brown] acted in a manner that directly caused the personal injury giving rise to the CVC claim.  Specifically, the evidence indicates that [Brown] was the primary aggressor and that Ms. Brown was attempting to keep the alleged suspect from leaving when she was injured.

The final decision concluded, “Based on the available evidence, the attorney general is not satisfied by a preponderance of the evidence that the requirements of Chapter 56 of the Texas Code of Criminal Procedure has been met.  Therefore, the application for compensation is denied.” Brown subsequently filed suit in the trial court seeking de novo review of her CVCA claim.

On October 30, 2009, the attorney general filed a motion for summary judgment arguing that Brown is not entitled to compensation under the Act, as proven by the uncontested facts that Brown “intentionally initiated a physical confrontation with Nottage” on the date of her injury, that Brown sustained her injuries during this physical confrontation, that Nottage “has never been indicted or convicted of any crime as a result of this incident,” as the grand jury returned a no-bill verdict against Nottage resulting in a dismissal of the criminal case against her, and that Brown “admits that if she had not initiated the confrontation with Nottage she would have never suffered her alleged injuries.”  Specifically, the attorney general argues that Brown is not a “crime victim” as defined in the Act and, alternatively, that the evidence conclusively established that Brown participated in the events that led to her injury, and thus, the attorney general was entitled to summary judgment.

Brown responded, arguing that she was a crime victim “without regard to whether Ms. Nottage was subsequently charged or convicted of any crime,” that she was not engaging in conduct prohibited by law because, at the time she was struck by Nottage’s car, she was merely standing in the parking lot with some friends, and that she did not directly act in a manner that caused her injury because after the physical confrontation she had withdrawn “to a place of safety” before Nottage struck her with the car. 

          On December 8, 2009, the trial court signed its order granting the attorney general’s motion for summary judgment. The trial court’s order specifically stated,

The Court agrees that the admissible summary judgment evidence does eliminate all genuine issues of material fact and, therefore, GRANTS the motion.  However, the Court specifically disagrees with one legal proposition advanced by Defendant.  The Court specifically finds that the fact that the alleged offender was not successfully prosecuted, standing alone, does not eliminate all genuine issue[s] of material fact as a matter of law.

This appeal followed.

Right to Recovery Under the Act

In her first seven issues, Brown argues that the trial court erred in granting the attorney general’s motion for summary judgment.

A.      Review of Summary Judgment

We review the trial court’s grant of summary judgment de novo.  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  If the movant conclusively negates an element of each of the plaintiff’s causes of action, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment.  See Knott, 128 S.W.3d at 222–23.  In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant.  Id. at 215.  A traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is properly granted only when the movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215–16.  When a motion for summary judgment raises multiple grounds, we may affirm if any one of the theories advanced in the motion in meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

B.      Crime Victims’ Compensation Act

Additionally, our analysis of Brown’s claims on appeal requires us to construe the CVCA.  “Statutory construction is a legal question, which is reviewed de novo to ascertain and give effect to the Legislature’s intent.”  HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009).  When reviewing a statute, we first look at the “‘plain and common meaning of the statute’s words.’”  HCBeck, Ltd., 284 S.W.3d at 352 (quoting Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). The Act provides that when a claimant or victim files a petition for judicial review of the attorney general’s final decision of a claim, the district court “shall determine the issue by trial de novo.  The burden of proof is on the party who filed the notice of dissatisfaction.”  Tex. Code Crim. Proc. Ann. art. 56.48(c) (Vernon 2006).

The CVCA begins by stating, “It is the legislature’s intent that the compensation of innocent victims of violent crime encourage greater public cooperation in the successful apprehension and prosecution of criminals.”  Tex. Code Crim. Proc. Ann. art. 56.311 (Vernon 2006).  To that end, the CVCA provides that “[t]he attorney general shall award compensation for pecuniary loss arising from criminally injurious conduct if the attorney general is satisfied by a preponderance of the evidence that the requirements of this subchapter are met” and that “the attorney general, shall establish whether, as a direct result of criminally injurious conduct, a claimant or victim suffered personal injury or death that resulted in a pecuniary loss for which the claimant or victim is not compensated from a collateral source.”  Tex. Code Crim. Proc. Ann. art. 56.34(a), (b) (Vernon 2006).

The CVCA defines “victim” as a resident of this state who “suffers personal injury or death as a result of criminally injurious conduct.”  Tex. Code Crim. Proc. Ann. art. 56.32(a)(11)(A) (Vernon Supp. 2009).  “Criminally injurious conduct” is defined as

conduct that

(A) occurs or is attempted;

(B) poses a substantial threat of personal injury or death;

(C) is punishable by fine, imprisonment, or death, or would be punishable by fine, imprisonment, or death if the person engaging in the conduct possessed capacity to commit the conduct; and

(D) does not arise out of the ownership, maintenance, or use of a motor vehicle, aircraft, or water vehicle, unless the conduct is intended to cause personal injury or death or the conduct is in violation of . . . one or more of the following section of the Penal Code, [including Section 22.02 (aggravated assault)].

Tex. Code Crim. Proc. Ann. art. 56.32(a)(4). 

Regarding the conditions for approving or denying a claim for compensation, the CVCA states that

(a) The attorney general shall approve an application for compensation under this subchapter if the attorney general finds by a preponderance of the evidence that grounds for compensation under this subchapter exist.

(b) The attorney general shall deny an application for compensation under this subchapter if:

. . .

(3) the claimant or victim knowingly and willingly participated in the criminally injurious conduct[.]

Tex. Code Crim. Proc. Ann. art. 56.41(a), (b) (Vernon 2006).

The CVCA also provides,

The attorney general may deny or reduce an award otherwise payable:

(1) if the claimant or victim has not substantially cooperated with an appropriate law enforcement agency;

(2) if the claimant or victim bears a share of the responsibility for the act or omission giving rise to the claim because of the claimant’s or victim’s behavior;

(3) to the extent that pecuniary loss is recouped from a collateral source; or

(4) if the claimant or victim was engaging in an activity that at the time of the criminally injurious conduct was prohibited by law or a rule made under law.

Tex. Code Crim. Proc. Ann. art. 56.45 (Vernon 2006).

In the rules adopted by the attorney general to apply to the administration of the CVCA, the attorney general “may consider the victim’s or claimant’s behavior as a factor in the cause of the personal injury.  If the [attorney general] determines that the victim intentionally or knowingly acted in a manner that directly caused the injury, the award for compensation may be denied.”  1 Tex. Admin. Code § 61.302 (West 2010) (Office of Attorney General, Denying an Award); see also Indus. Accident Bd. v. Martinez, 836 S.W.2d 330, 334 (Tex. App.—Houston [14th Dist.] 1992, no writ) (interpreting earlier version of article 56.45(2) “to mean if the victim’s criminal culpability . . . places him in a situation resulting in his injury or death, he may be denied coverage”).

C.      Denial of Compensation under Article 56.45

          The attorney general’s summary judgment motion alleged that the attorney general was entitled as a matter of law to deny Brown’s claim for compensation under article 56.45 on the grounds that she was engaged in activity that at the time of the allegedly criminally injurious conduct was prohibited by law and that she bore a share of the responsibility for the act giving rise to her claim.  See Tex. Code Crim. Proc. Ann. art. 56.45(2), (4).  In her sixth and seventh issues, Brown argues that the attorney general failed to prove either of those grounds as a matter of law because, although she admits to initiating the physical altercation by striking Nottage, the “fight had ended and [Brown] and her cousin were standing in the parking lot.”  She states that the facts surrounding the incident “do not prove that, as a matter of law, [Brown] was the cause of the incident.”

          The uncontested evidence conclusively proved that Brown initiated the physical confrontation that ended with her injury, thus establishing as a matter of law that Brown bore “a share of the responsibility for the act” giving rise to her claim for compensation.  See id. art. 56.45(2).  Furthermore, Brown clearly engaged in conduct that was prohibited by law because she assaulted Nottage when Nottage first attempted to get in her car and leave the apartment complex.  See id. art. 56.45(4); Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009) (providing that person commits offense of assault if he “intentionally or knowingly causes physical contact with another person when the person knows or should reasonably know that the other person will regard the contact as offensive or provocative”); see also Martinez, 836 S.W. at 334 (recognizing that claim for compensation can be denied if victim’s behavior or criminal culpability placed him in situation resulting in his injury or if his behavior provoked or contributed to criminal activity that resulted so as to cause him to bear share of responsibility for criminal act).

The CVCA plainly states that the attorney general may deny compensation if the victim “bears a share of the responsibility for the act or omission giving rise to the claim because of the claimant’s or victim’s behavior” or if the victim “was engaging in an activity that at the time of the criminally injurious conduct was prohibited by law.”  Tex. Code Crim. Proc. Ann. art. 56.45(2), (4).  The undisputed facts support a finding under either provision. Thus, the attorney general established as a matter of law that Brown was not entitled to compensation under the CVCA. See Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215–16.

We overrule Brown’s sixth and seventh issues.

Because our resolution of Brown’s sixth and seventh issues supports one of the theories advanced in the attorney general’s motion for summary judgment granted by the trial court, we do not address appellant’s remaining issues.  See Joe, 145 S.W.3d at 157 (holding that when motion for summary judgment raises multiple grounds, we may affirm if any theory advanced in motion is meritorious).

Conclusion

We affirm the trial court’s order granting the attorney general’s motion for summary judgment.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

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[1]           The record contained differing accounts of events after Nottage returned to her car.  Brown asserts that she was merely standing in the parking lot with her cousins and friends when Nottage drove directly at her, that she made eye contact with Nottage after initially being struck by Nottage’s vehicle, and that Nottage nevertheless accelerated and ran over Brown’s leg with both her front and back tires. Nottage and Williams both gave statements that once Nottage returned to her vehicle, Brown and her friends surrounded Nottage’s vehicle and continued to pound on her car and yell obscenities. Nottage gave a statement to police that she was not aware that she had hit anyone with her car.  She stated that she felt a slight bump, but attributed it to the continued pounding on her car.  Brown contests the admissibility of some of this evidence, and, because this case was decided on summary judgment, for purposes of deciding the case, we consider only the relevant undisputed facts as recited in the body of the opinion.

[2]           See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009).