2008 Mercedes-Benz CLS550 v. State

Court of Appeals of Texas,

Tyler.

2008 MERCEDES–BENZ CLS550 (Respondent: Latrice Whitaker, Robert Whitaker), Appellants

v.

The STATE of Texas, Appellee.

No. 12–12–00285–CV.

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March 31, 2014.

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Rehearing Overruled May 29, 2014.

Appeal from the 114th Judicial District Court, Smith County, Texas.

Attorneys & Firms

Clement B. Pink, for Latrice Whitaker.

Dallas W. Tharpe, Michael J. West, for The State of Texas.

Panel consisted of HOYLE, J.

MEMORANDUM OPINION

SAM GRIFFITH, Justice.

*1 Lattice and Robert Whitaker appeal the trial court’s default judgment forfeiting their interest in a 2008 Mercedes–Benz CLS550 motor vehicle. They raise three issues on appeal. We affirm.

BACKGROUND

On May 9, 2012, the State filed a notice of seizure and intended forfeiture of a 2008 Mercedes–Benz CLS550 motor vehicle pursuant to Chapter 59 of the Texas Code of Criminal Procedure. The State alleged that the vehicle was contraband as defined by article 59.01.

The Whitakers did not respond to the State’s notice, and the trial court signed a default judgment in favor of the State on July 9, 2012. On August 6, 2012, the trial court signed a judgment nunc pro tunc to correct the named agency entitled to the forfeited vehicle. The Whitakers filed timely motions for new trial, which were ultimately denied. This appeal followed.

MOTION FOR NEW TRIAL AFTER DEFAULT JUDGMENT

In three separate issues, the Whitakers argue that the trial court erred in granting the State’s motion for default judgment because Latrice is “an innocent owner,” the vehicle “[i]s not contraband,” forfeiture of the vehicle “violates the Excessive Fines Clause of the Eighth Amendment,” and Robert was not convicted of a felony. The State contends that the trial court did not abuse its discretion by denying the Whitakers’ motions for new trial.

Applicable Law

Generally, a motion for new trial is not required before an appeal can be taken. See Barrett v. Westover Park Cmty. Ass’n, Inc., No. 01–10–01112–CV, 2012 WL 682342, at *2 (Tex.App.-Houston [1st Dist.] Mar. 1, 2012, no pet.) (mem.op.).

The rules governing motions for new trial do not explicitly require the filing of affidavits or verifications with the motion. See Ivy, 407 S.W.2d at 214.

*2 We review a trial court’s ruling on a motion for new trial for an abuse of discretion. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.1939)).

Discussion

On August 8, 2012, Latrice filed her original motion for new trial and Robert filed his amended motion for new trial. The motions alleged facts relating to the three elements of the Craddock test and contained verifications signed by their two attorneys that stated the following:

I am the attorney of record for the Respondent ... in the above and entitled cause; I have read the foregoing Respondent’s ... Motion for New Trial and state that every statement contained therein is true and correct to the best of my knowledge and belief.

The motions contained no other attachments or affidavits. The State objected to the attorneys’ verifications during the hearing on the Whitakers’ motions for new trial, contending that they were not based on personal knowledge.¹ Trial counsel argued that “the only thing that must be proven in the motion for new trial or an affidavit is concerned is the defense” because it was undisputed that there was “no service” on the Whitakers. Trial counsel did not call any witnesses during the hearing, and relied solely on their verifications to support the motions for new trial. The trial court struck the attorneys’ verifications for lack of personal knowledge, and the Whitakers do not challenge that ruling on appeal.

The Whitakers assert in their motions for new trial that they have a meritorious defense to the forfeiture action, but their assertions are not supported by any evidence. See TEX.R.APP. P. 47.1.

DISPOSITION

Having overruled the Whitakers’ three issues on appeal, we affirm the judgment of the trial court.