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

Opinion issued July 8, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

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.

[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).