Savage v. Ivey

658 S.W.3d 883

Colette SAVAGE and Kent Graham, Appellants,

v.G.W. IVEY, Appellee.

No. 08-22-00067-CV

Court of Appeals of Texas, El Paso.

December 16, 2022

ATTORNEY FOR APPELLANT: Colette Savage, 1116 Vista # 168, Boise, ID 83705.

ATTORNEY FOR APPELLEE: Joe Rivera, Naman, Howell, Smith & Lee, PLLC, PO Box 1470, Waco, TX 76703.

Before Rodriguez, C.J., Alley, and Palafox, JJ.

OPINION

Yvonne T. Rodriguez, Chief Justice Appellants, Colette Savage and Kent Graham, appearing pro se , appeal from a final judgment granting the plea to the jurisdiction of Appellee, G.W. Ivey.¹ We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Savage has been involved in numerous lawsuits in at least three other courts, beginning in 2014, most arising out of the same set of circumstances.² Initially, a conservatorship matter involving Savage and her brother, Mark, among others, was filed in California regarding the care of their mother and control of her estate. See Savage v. Savage , No. A150984, 2018 WL 4959441, (Cal. App. Oct. 15, 2018). Savage became indebted to Mark for defending the California probate proceedings, and she signed a promissory note secured by a deed of trust on six tracts of land in Hubbard, Hill County, Texas, as partial repayment. See Graham v. Savage , No. 1:21-CV-151-RP, 2022 WL 3368133, at *1 (W.D. Tex. Aug. 16, 2022).

Sometime after Savage signed the promissory note, Mark initiated foreclosure proceedings on the Hill County properties. Id. Savage, proceeding pro se , filed suit against Mark and his attorney in Hill County, seeking to stop the foreclosure. Id. ; see Savage v. McDonald and Savage , No. 52,939 (66th Dist. Ct., Hill Cnty., Tex., Dec. 28, 2015). The trial court granted summary judgment denying all of Savage's claims, and the appellate court affirmed. Savage v. Savage , No. 10-17-00139, 2018 WL 5290041, at *1 (Tex.App.—Waco Oct. 24, 2018, pet. denied).³

While the Hill County suit was on appeal, Savage filed a separate suit against Mark entitled "Bill of Review" challenging the trial court's rulings. Graham , 2022 WL 3368133, at *2 ; see Savage v. Savage , No. CV-219-18-DC (66th Dist. Ct., Hill County, Tex. Apr. 20, 2018). The trial court dismissed the case with prejudice as baseless, id. , and Savage's appeal was dismissed for want of prosecution. Savage v. Savage , No. 10-18-00230-CV, 2018 WL 5290167, at *1 (Tex.App.—Waco Oct. 24, 2018, pet. dism'd w.o.j.)(mem. op.).

Savage filed suit in federal court in California challenging the Texas and California state court rulings. See Savage v. Savage , No. 19-CV-07994-DMR, 2020 WL 2525079, (N.D. Cal. May 18, 2020), aff'd , 2021 WL 3758347, 857 Fed.Appx. 414, (9th Cir. Aug. 25, 2021). The California court concluded Savage's claims were a "forbidden de facto appeal of state court decisions" and dismissed the case for lack of subject matter jurisdiction. Id. The Ninth Circuit Court of Appeals affirmed. Savage v. Savage , 2021 WL 3758347, at *1, 857 Fed.Appx. 414 (9th Cir. Aug. 25, 2021).

On February 11, 2021, Savage and Graham filed suit in federal court, in Texas, challenging the Texas Court rulings on the note, deed of trust, and foreclosure. Graham , 2022 WL 3368133, at *2. In the federal case, Appellants included as defendants the Texas judges and justices who adjudicated the previous Texas cases. Id. Appellants claimed the judicial defendants "committed fraud, denied [their] access to the courts, violated their equal protection rights, fabricated evidence, illegally converted [their] property and money, and aided and abetted Mark in stealing their money and property." Id. The court dismissed the case for lack of subject matter jurisdiction. Id. The court further ordered Savage is enjoined from filing any future actions in the Western District of Texas challenging the note, the deed of trust, the foreclosure, or any Texas State Court rulings on those matters, without first receiving leave to do so from a federal district judge for that district. Id.

Within this same timeframe, on March 2, 2017, Savage filed suit in Texas federal court against a mortgage corporation and several other entities apparently arising out of the forfeiture of her home due to a mortgage default. Savage v. Reliance Mortgage Corp. , No. 6:17-CV-00053-RP-JCM, 2018 WL 4702535, at *1 (W.D. Tex. June 7, 2018). This suit was dismissed after Savage failed to timely file objections to the magistrate judge's proposed findings and recommendations and the district court found no clear error in them. Savage v. Reliance Mortgage Corp. , No. 6:17-CV-00052-RP, 2018 WL 4688785, (W.D. Tex. Aug. 27, 2018).

On February 2, 2018, Savage filed yet another separate suit in Texas federal court against the owner of a pawn shop in Hill County and an individual she alleged pawned jewelry stolen from her. See Savage v. Hill County Pawn , No. 6:18-CV-00043-ADA, 2018 WL 7377622, at *1 (W.D. Tex. Oct. 10, 2018). Although her jewelry was pawned for $343, she alleged its value was $100,000. Id. The court dismissed Savage's case after the pawn shop owner disputed the value of the jewelry and moved to dismiss for lack of subject matter jurisdiction. Id. at *2.

The facts underlying this case were not fully explained by Appellants in either the trial court or on appeal. Apparently, Savage avers she owned a house that she gave to Graham, but the house was wrongfully adjudicated to be the subject of a deed of trust and was ultimately awarded to her brother, Mark. Appellants complain that Graham was wrongfully evicted from this home in a forcible detainer action by a third party who claimed to have obtained ownership from Mark. This eviction was litigated in Justice Court Precinct 3 in Bell County, Texas, before Justice of the Peace G.W. Ivey (Judge Ivey). See Mehta v. Graham , No. 32-2020-S-002936-1 (Bell Cnty., Tex., Justice Ct. Pct. 3, Pl. 2, May 13, 2021). Appellants did not appeal the eviction. Instead, on May 24, 2021, Appellants filed this separate proceeding in the 169th District Court of Bell County, Texas. Appellants complained of the following during the eviction proceeding: denial of due process; fraudulent transfers of property; misprision of a felony for fraudulent transfer; suppression of right for grievances, prejudice and bias; and denial of rights under 42 U.S. Code § 1983.

Judge Ivey filed a plea to the jurisdiction, alleging judicial and sovereign immunity from suit, averring the case is an improper collateral attack, and stating Appellants have no valid federal claims.

The trial court granted the plea to the jurisdiction and dismissed the suit.⁴ This appeal followed.

II. STANDARD OF REVIEW

Appellate courts review a challenge to the trial court's subject matter jurisdiction de novo. Meyers v. JDC/Firethorne, Ltd. , 548 S.W.3d 477, 486 (Tex. 2018). If a plea to the jurisdiction challenges the pleadings, we must determine whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction. Id. We construe the pleadings liberally in the plaintiff's favor, considering the plaintiff's intent. Id. If the plaintiff's pleadings do not affirmatively demonstrate the trial court's jurisdiction, but the pleadings also do not affirmatively establish incurable jurisdictional defects, the plaintiff should be allowed to amend his pleadings. Id. Conversely, if the pleadings affirmatively negate jurisdiction, making amendment to invoke jurisdiction impossible, the plea to the jurisdiction may be granted without allowing an opportunity to amend, and the case may be dismissed. Id.

III. DISCUSSION

In thirteen issues on appeal, Appellants complain of Judge Ivey's actions during the eviction. They claim Judge Ivey lacked jurisdiction, deprived Graham of his due process rights in the eviction, caused Graham personal injury from distress over the eviction, refused to transfer court records from his court to the court in which this proceeding was initiated, did not appear at the hearing in the trial court, allowed the eviction to continue even though the sale of the property was based on a counterfeit promissory note and the constable's writ was illegal, and knowingly collected a falsified debt. Appellants also complain the trial court judge denied them due process, did not conduct a proper de novo review of the eviction, did not conduct a de novo review of the property theft transfer, only focused on Judge Ivey's immunity claim and not their claim that he acted without jurisdiction, improperly dismissed the case because Judge Ivey did not have jurisdiction, and ignored their "appeals" on the property fraud filed after the dismissal.

Judge Ivey responds that this suit is an improper collateral attack on the eviction judgment. Judge Ivey urges judicial immunity, official immunity, and governmental immunity shield him from Appellants’ actions against him. He argues Appellants’ federal claims are not a proper cause of action, and, at any rate, he has qualified immunity against them. Finally, Judge Ivey avers Savage has no standing to pursue the claims she has advanced.

We agree with Judge Ivey's contentions that Appellants’ attack on the justice court judgment is an improper collateral attack. We affirm the trial court's judgment.

Collateral Attack

Although Appellants present a lengthy procedural history of the dispute between Savage and her brother and complain of many of the judges Savage has previously encountered, they have apparently encountered G.W. Ivey only in his capacity as Justice of the Peace of Precinct 3, Place 2, in Bell County. By this suit, they complained of his ruling in the eviction, claimed the justice court lacked jurisdiction, and they named Judge Ivey as a defendant. On appeal, Appellants request Graham's property be returned to him.⁵

Although there was no prayer in the original petition, Appellants did request the trial court to "review the jurisdiction in small claims court and the conduct of this judge" in their pleading entitled "Immunity is Moot Based on Jurisdiction Fraud." Appellant...