glenn-herbert-johnson-v-harris-county-harris-county-education-department ( 2015 )

Opinion issued June 2, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00383-CV
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GLENN HERBERT JOHNSON, Appellant
V.
HARRIS COUNTY, HARRIS COUNTY EDUCATION DEPARTMENT,
HARRIS COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY
HOSPITAL DISTRICT, PORT OF HOUSTON AUTHORITY OF HARRIS
COUNTY, HOUSTON INDEPENDENT SCHOOL DISTRICT, HOUSTON
COMMUNITY COLLEGE SYSTEM, HARRIS COUNTY EDUCATION
DISTRICT, CITY OF HOUSTON, AND HASHMET WALI, Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2013-08713
MEMORANDUM OPINION
Glenn Herbert Johnson filed a bill of review to set aside a default judgment
taken against him in connection with a Harris County tax lien and sheriff’s sale of
his encumbered property. The trial court granted Johnson’s requested relief. It
vacated the default judgment, reopened the tax case, and set aside the constable’s
sale of Johnson’s property. The trial court also ordered the County to refund the
property’s purchase price to Hashmet Wali, who had purchased the land at the tax
sale. On appeal, Johnson contends that the trial court abused its discretion in
granting him his requested relief and in refunding Wali’s money to him. Finding
no error, we affirm.
Background
In 2009, Harris County sued Johnson, seeking recovery of unpaid property
taxes. In 2011, the trial court entered a default judgment against Johnson, at the
time unaware that the County’s service of process was defective and Johnson did
not have notice of the suit. A Harris County constable conducted a tax sale of the
property. Wali purchased the property for $55,800. In 2013, Johnson petitioned
for a bill of review, challenging the default judgment on the basis that he was never
served with the tax suit. Johnson requested that the trial court: “vacate the Default
Judgment in Cause No. 2009-51784,” “[r]eopen cause 2009-51784 and grant a new
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trial, with the parties reverting to their original status as Plaintiff and Defendant,”
and “set aside the Constable/Sheriff’s sale of the above specified property.”
Based on the proof of lack of proper service with citation, the trial court
declared the default judgment void as a matter of law. Harris County and Wali
then jointly moved to vacate it and void the constable’s sale and deed, pursuant to
sections 33.56 and 34.07 of the Texas Tax Code. The trial court ordered Harris
County to refund to Wali his purchase price proceeds of $55,800, an amount that
included court costs and proceeds in excess of the lien in the amount of $7,124.15.
The trial court’s final order reinstated the tax court cause number, 2009-51784, and
noted that “[t]his Order finally disposes of all parties and claims and is
appealable.” Wali then petitioned to release the $7,124.15 held in the court’s
registry. The trial court granted Wali’s petition and ordered the District Clerk to
release the excess proceeds.
Discussion
As we liberally construe his pro se brief, Johnson contends that the trial
court erred in granting his requested relief and in refunding the tax sale purchase
price to Wali. He claims a right to excess proceeds from the tax sale. In particular,
he contends that (1) the trial court did not have jurisdiction or plenary power to
enter orders after it declared that the default judgment was void; (2) Wali waived
his subrogation rights by filing a petition for excess proceeds within the statute of
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limitations pursuant to section 34.07; (3) Wali cannot recover the taxes, penalties,
interest, and attorney’s fees the taxing units received; (4) Harris County and Wali
did not meet the statutory requirements to vacate the default judgment and void the
sale; (5) Wali is barred by the statute of limitations from petitioning for the tax sale
proceeds; and (6) the Mother Hubbard clause in the court’s final order precluded
the later order to the district clerk directing it to distribute the excess proceeds.
Standard of Review
We regard this case as an appeal from a bench trial. When a trial court
issues no findings of fact, we imply that the trial court made all the necessary
findings to support its judgment. Douglas v. Petroleum Wholesale, Inc., 190
S.W.3d 97, 99 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Roberson v.
Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). An abuse of discretion occurs when
the trial court’s decision is arbitrary, unreasonable, and without reference to
guiding principles. Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011);
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
Analysis
At the outset, we consider Johnson’s contentions in light of the invited error
doctrine.
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I. Invited Error Doctrine
Under the invited error doctrine, a party cannot complain on appeal that the
trial court ordered a specific action that the party requested. Sentinel Integrity
Solutions, Inc. v. Mistras Grp., Inc., 414 S.W.3d 911, 919–20 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied) (holding that party waived complaints that
trial court erred in failing to determine enforceability of covenant not to compete
and that covenant was enforceable, as party complained at trial that covenant was
not enforceable); cf. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005)
(per curiam) (determining that invited error doctrine is inapplicable when party did
not request trial court ruling complained of on appeal).
In his first and amended petitions, Johnson requested that the court “vacate
the Default Judgment in Cause No. 2009-51784,” “[r]eopen cause 2009-51784 and
grant a new trial, with the parties reverting to their original status as Plaintiff and
Defendant,” and “set aside the Constable/Sheriff’s sale of the above specified
property.” We hold that Johnson’s appellate complaints about the trial court’s
orders to vacate the default judgment, reopen the tax case, and set aside the
constable’s sale are barred under the invited error doctrine. See Sentinel, 414
S.W.3d at 919–20.
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II. Return of Proceeds
In his remaining issues, Johnson contends (1) that the court erred in ordering
the return of the purchase price to Wali because it did not have jurisdiction and
acted after its plenary power expired. Johnson further contends that (2) a Mother
Hubbard clause in the order to reinstate the tax case precluded the return of the
proceeds; (3) Harris County did not meet its requirements under section 33.56; and
(4) Wali petitioned for a refund and excess proceeds after the statute of limitations
passed pursuant to section 34.07.
A. Applicable Law
Section 33.56 of the Tax Code provides that a taxing unit that was a party to
a judgment for foreclosure of a tax lien “may file a petition to vacate the judgment
on one or more of the following grounds . . . (2) failure to serve a person needed
for just adjudication under the Texas Rules of Civil Procedure.” TEX. TAX CODE
ANN. § 33.56(a). The section also requires that a taxing unit must file the petition
under the same cause number as the delinquent tax suit in the same court. Id.
§ 33.56(b). Additionally, the taxing unit may not file a petition if a tax sale of the
property has occurred unless one of several listed requirements is met, one of
which is the tax sale purchaser’s consent to the petition. Id. § 33.56(c). The
purchaser’s consent to a petition may be shown by the purchaser’s joinder in the
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taxing unit’s petition. Id. § 33.56(d). If the court grants the petition, “the court
shall enter an order providing that:
(1) the judgment, any tax sale based on that judgment, and any subsequent
resale are vacated;
(2) any applicable tax deed or applicable resale deed is canceled;
(3) the delinquent tax suit is revived; and
(4) . . . the taxes, penalties, interest, and attorney’s fees and costs, and the
liens that secure each of those items, are reinstated.”
Id. § 33.56(f).
Separately, section 34.07 provides that a buyer who purchased property at a
void tax sale “may elect to file an action against the taxing units to which proceeds
of the sale were distributed to recover an amount from each taxing unit equal to the
distribution of taxes, penalties, interest, and attorney’s fees the taxing unit
received.” Id. § 34.07(d). But a limitations period exists: “A suit filed against the
taxing units under Subsection (d) may not be maintained unless the action is
instituted before the first anniversary of the date of sale or resale.” Id. § 34.07(f).
B. Analysis
1. Trial court’s lack of plenary power to order purchase price
Johnson generally argues that because the court voided the default judgment,
no other judgment can result from it and the subsequent orders should also be
voided. In his view, the trial court’s plenary power expired 30 days after its order
voiding the default judgment. It is apparent from the face of the record that the
trial court’s order voiding the default judgment was not a final order. See Lehmann
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v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (“[W]hen there has not been a
conventional trial on the merits, an order or judgment is not final for purposes of
appeal unless it actually disposes of every pending claim and party or unless it
clearly and unequivocally states that it finally disposes of all claims and all
parties.”). The trial court thus had plenary power to address the parties’ remaining
claims. See id.
2. Preclusion of relief by Mother Hubbard Clause
Johnson next contends that the Mother Hubbard clause in the order to
reinstate the tax case precludes the court’s subsequent order to the district clerk to
reimburse Wali for the purchase price because it lacked plenary power to do so.
However, in its final order, the trial court ordered that “the purchaser’s purchase
money be refunded.” The earlier order includes the amounts held by the district
clerk that the trial court directed it to release in July 2014. We hold that the
Mother Hubbard clause does not preclude Wali’s relief, because the court’s order
to distribute the proceeds was in aid of execution of its judgment. See TEX. R. CIV.
P. 308 (“The court shall cause its judgments and decrees to be carried into
execution. . . .”).
3. Return of entire purchase price to Wali
We next consider whether the court abused its discretion in ordering the
return of the entire purchase price to Wali and reinstating Harris County’s claims
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against Johnson for unpaid property taxes. In this issue, Johnson argues that Harris
County did not meet its requirements under section 33.56 so as to require
disbursement. We disagree. Harris County and Wali filed a joint motion to vacate
the judgment and void the constable’s sale and deed, and Wali demonstrated
consent by signing the motion through his attorney. See TEX. TAX CODE ANN.
§ 33.56 (c), (d); Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986)
(explaining that attorney’s actions within scope of employment are regarded as
client’s acts). At the time of the motion, the trial court already had voided the
default judgment for failure to properly serve a party. See TEX. TAX CODE ANN.
§ 33.56 (a). The parties filed the motion under both case numbers, including in the
related 2009 tax case. See id. § 33.56 (b). Accordingly, we hold that the court did
not abuse its discretion when it reinstated Harris County’s claim against Johnson
for unpaid taxes, penalties, interest, and attorney’s fees, and the accompanying tax
liens on the property. See id. § 33.56 (f); Samlowski, 332 S.W.3d at 410.
Moreover, Johnson expressly requested that the parties return to their “original”
status before suit was filed. Thus, any error was invited. See Sentinel, 414 S.W.3d
at 919–20.
4. Statute of limitations
Finally, Johnson contends that Wali’s claim to a refund is barred by the
statute of limitations. Limitations, however, is an affirmative defense. See TEX. R.
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CIV. P. 94 (“[A] party shall set forth affirmatively . . . statute of limitations . . . and
any other matter constituting an avoidance or affirmative defense.”). Harris
County and Wali jointly moved to reinstate the tax lien under section 33.56 and
requested that “the sale proceeds be refunded to Defendant Wali.” Assuming that
one would be available given the defect in the underlying judgment, Harris County
did not pursue an affirmative defense that Wali’s recovery of his purchase price
was barred by limitations. Accordingly, we hold that Wali’s claim is not barred.
See TEX. R. CIV. P. 94.
Conclusion
Because none of Johnson’s claimed errors has merit, we hold that the court
did not abuse its discretion when the court reinstated the tax lien and refunded the
purchase price of the encumbered property. See Samlowski, 332 S.W.3d at 410.
We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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