Scott Mark Lair v. Robert L. Horn

NUMBER 13-00-759-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI SCOTT MARK LAIR, Appellant, v. ROBERT L. HORN, ET AL., Appellees. On appeal from the 36th District Court of Bee County, Texas. MEMORANDUM OPINION Before Justices Dorsey, Yañez, and Rodriguez Opinion by Justice Yañez Appellant, Scott Mark Lair, a federal prisoner proceeding pro se, appeals an order granting summary judgment in favor of three officers employed by the Bee County Sheriff=s Department, Robert L. Horn, Ronnie Olivarez, Dan Caddell, and A[unnamed] others.@ Appellant sued appellees, alleging breach of a bailment contract arising out of the officers= seizure of his property, including certain firearms and ammunition. The property was seized in connection with appellant=s arrest for domestic family violence and subsequent conviction for federal firearms violations. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1. In his first issue, appellant contends: (1) the officers lacked authority under the state constitution to remove the property from his home; and (2) the State failed to provide him adequate notice of forfeiture proceedings. In his second issue, appellant contends the trial court erred in granting summary judgment prior to the completion of discovery. We affirm. Standard of Review In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. M. D. Anderson v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). This burden may be satisfied by conclusively establishing all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); City of Pharr v. Ruiz, 944 S.W.2d 709, 712 (Tex. App.BCorpus Christi 1997, no writ). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Willrich, 28 S.W.3d at 23-24; Nixon, 690 S.W.2d at 548-49; Noriega v. Mireles, 925 S.W.2d 261, 266 (Tex. App.BCorpus Christi 1996, writ denied). When the defendant is the movant and submits summary judgment evidence disproving at least one essential element of each of the plaintiff's causes of action, then summary judgment should be granted. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.BCorpus Christi 1995, writ denied). Appellees argue, in their motion for summary judgment and on appeal, that they are entitled to summary judgment on the following grounds: (1) they are entitled to official immunity because in removing the property in question, they acted within the scope of their authority as law officers and in good faith performance of their discretionary duties; and (2) appellant failed to establish any of the elements of a bailment cause of action. Appellees= summary judgment evidence includes the business records affidavit of Robert Horn, the Bee County Sheriff, and records from his office, including, inter alia, the incident report of appellant=s arrest, a federal search warrant to search appellant=s home, documents concerning the transfer of appellant=s property between the sheriff=s office and federal agents of the United States Bureau of Alcohol, Tobacco and Firearms (BATF), and documents relating to appellant=s subsequent conviction and incarceration for federal firearms violations. Bailment In his first amended petition, appellant asserts that the officers= seizure of his property Acreated a bailment relationship@ and that the officers owed him Aa contractual duty to properly safekeep his property until it was returned to him or otherwise lawfully disposed of.@ Under common law, a bailment exists where: (1) the delivery of personal property by one person to another is made in trust for a specific purpose; (2) acceptance of delivery is made; (3) an express or implied contract that the trust will be carried out; and (4) an understanding exists under the terms of the contract that the property will be returned to the transferor or dealt with as the transferor directs. Int=l Freight Forwarding, Inc. v. Am. Flange, 993 S.W.2d 262, 267 (Tex. App.BSan Antonio 1999, no pet.) (citing Soto v. Sea-Road Intern, Inc., 942 S.W.2d 67, 72 (Tex. App.BCorpus Christi 1997, writ denied)). A bailment contract may arise by implication if there is an implied bailor-bailee relationship. See Soto, 942 S.W.2d at 72. The failure to return bailment property at the end of the bailment period constitutes, in law, a conversion of the bailment entitling the bailor to recover its value. Id. Appellees contend they are entitled to summary judgment on grounds that appellant failed to establish any of the essential elements of a bailment. In support, appellees cite Lopez v. City of Dallas, 696 F. Supp. 240, 246 (N. D. Tex. 1988). In Lopez, a plaintiff convicted of the sale of prohibited weapons argued that the seizure of weapons and explosives from his premises created an implied bailment relationship with law enforcement personnel. Id. at 245. The Lopez court disagreed, finding that: Plaintiff=s assertion of implied bailment must fail because no contract was formed between Plaintiff and the law enforcement officers. There was no offer by Plaintiff of the property taken with the understanding that it would be returned. The Court concludes that summary judgment in favor of Defendants on this issue is proper since the necessary elements for implied bailment do not exist. Id. at 246 (citations omitted). We agree with the reasoning of the Lopez court. Here, as in Lopez, appellant did not offer his property, but rather, it was seized by appellees in the course of performing their duties as law enforcement officers.[1] We conclude that no contract, express or implied, existed between appellant and appellees, and accordingly, no implied bailment existed. See id. We hold that because appellant failed to establish an essential element of his bailment claim, the trial court properly granted summary judgment. We overrule appellant=s second issue. In his first issue, appellant: (1) raises a Astate constitutional claim@ that appellees lacked authority to remove his property; and (2) contends the State failed to provide him with constitutionally adequate notice of forfeiture. A party waives the right to raise even constitutional issues on appeal if that claim is not presented to the trial court. In re A.D.E., 880 S.W.2d 241, 247 (Tex. App.BCorpus Christi 1994, no writ); see also Tex. R. App. P. 33.1. The record reflects that appellant failed to assert these arguments to the trial court. The issues are not raised in appellant=s pleadings.[2] The failure to raise an issue in the trial court waives the issue on appeal. See Tex. R. App. P. 33.1. Accordingly, we hold appellant failed to preserve these issues for review. We overrule appellant=s first issue. The judgment of the trial court is AFFIRMED. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 25th day of April, 2002. [1]Many of the seized items were later turned over to agents of the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms (BATF), for use in prosecuting appellant for federal firearms violations. See 18 U.S.C.S. '' 922(g)(1), 924(e)(1) (2002) (prohibiting possession of a firearm by a felon and providing for punishment). [2]In his response to appellees= motion for summary judgment, in a section entitled AObjection to Defendants [sic] Official Immunity Defense,@ appellant argues that the officers lacked the Aofficial capacity@ to remove his property because the property was removed without a search warrant. The summary judgment evidence includes appellees= affidavit with an attached incident report of appellant=s arrest. The incident report notes that numerous firearms were seized from appellant=s home after the officers obtained consent from appellant=s wife to search the residence. The following day, federal BATF agents executed a federal search warrant on the residence and additional firearms were seized. Thus, even if appellant had preserved his claim, we find that it is without merit.