Dov Avni Kaminetzky A/K/A Dov Avni v. Houston Independent School District, Harris County Education District, City of Houston and Harris County ( 2003 )

Affirmed and Memorandum Opinion filed August 28, 2003

Affirmed and Memorandum Opinion filed August 28, 2003.

In The

Fourteenth Court of Appeals

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NO.  14-02-00584-CV

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DOV AVNI KAMINETZKY A/K/A DOV AVNI, Appellant

V.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

HARRIS COUNTY EDUCATION DISTRICT, CITY OF HOUSTON AND HARRIS COUNTY, Appellees

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On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 92-52027

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M E M O R A N D U M   O P I N I O N

            In this restricted appeal, Dov Avni Kaminetzky a/k/a Dov Avni contends that the trial court erred when it vacated a tax lien and foreclosure judgment against his property, reinstated the underlying lawsuit, and then dismissed the underlying lawsuit without prejudice, therefore permitting appellees to refile the suit.  We affirm.

Factual and Procedure Background

            In 1992, the Houston Independent School District (“HISD”), joined by Harris County and the State of Texas, brought suit against appellant to collect unpaid property taxes.  Appellant was served with citation at 150 Forest Drive, Jericho, New York and filed a general denial through counsel. However, appellant failed to appear for trial, and accordingly, judgment was entered against him in 1994 for back taxes, penalties, interest, costs, attorneys fees, and foreclosure of the tax lien on the subject property.

            Seven years later, in September of 2001, HISD and the other taxing entities filed a petition under Section 33.56 of the Texas Tax Code to vacate the 1994 judgment due to deficiencies in the property description.  After a hearing in October of 2001, the tax master recommended that the judgment be vacated and the lawsuit dismissed.  Thereupon, on November 5, 2001, the trial court entered an order vacating the 1994 judgment, reinstating the underlying tax deficiency lawsuit, and, at the request of appellees, dismissing the reinstated lawsuit without prejudice.  On May 6, 2002, appellant filed a notice of restricted appeal from the November 5, 2001 order.  In three points of error, appellant complains the trial court failed to comply with Texas Rule of Civil Procedure 165a^[1] by not providing him with notice of its intent to dismiss the reinstated lawsuit for want of prosecution or holding a hearing before the dismissal.  Appellant also challenges the trial court’s failure to find abandonment under Texas Rule of Civil Procedure 165.

Restricted Appeal

            Appellant has filed a restricted appeal.  A restricted appeal (1) must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of and who did not file a timely post-judgment motion; and (4) the error must be apparent from the face of the record. Tex. R.  

class=Section3>

App. P. 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (per curiam). Review by restricted appeal entitles the appellant to the same scope of appeal as an ordinary appeal,  except the error must appear on the face of the record. Tex. R.  App. P. 30; Quaestor Invs., 997 S.W.2d at 227–28.  For purposes of a restricted appeal, the record consists of all documents on file with the trial court at the time of judgment.  See Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).  Here, we are called upon to decide whether appellant has shown error apparent on the face of the record.

Vacating and Dismissal of the Lawsuit

            In his first and second issues, appellant contends the record shows the trial court erred in not giving him notice of its intent to dismiss the lawsuit for want of prosecution and in failing to hold a hearing prior to dismissal as required by Texas Rules of Civil Procedure 165a.  These arguments are without merit because Rule 165a was not involved in the trial court’s November 5, 2001 order.  Instead, the taxing entities sought to avail themselves of Section 33.56 of the Tax Code, which provides a specific statutory procedure for vacating delinquent tax and foreclosure judgments and reinstating the underlying tax deficiency suit. Section 33.56 places no time limits on seeking an order vacating the judgment.  Barua v. County of Dallas, 100 S.W.3d 629, 635 (Tex. App.—Texarkana 2003, pet. denied).  Rule 165a, on the other hand, provides a procedure for a trial court to dismiss a lawsuit for want of prosecution, which was not the basis of the trial court’s order.

            Under Texas Rule of Civil Procedure 162, a party may dismiss its lawsuit prior to trial, without prejudice to any affirmative relief sought by an adverse party.  Here, the judgment was vacated and the tax deficiency suit reinstated under Section 33.56(f).  Tex. Tax Code § 33.56(f).  It is undisputed that appellant had no claims for affirmative relief on file prior to entry of the 1994 judgment.  Upon reinstatement of the tax deficiency lawsuit, appellees had the right to dismiss their lawsuit pursuant to Rule 162.  The trial court did not err in failing to follow the dismissal procedures of Rule 165a, as appellees’ lawsuit was not dismissed for want of prosecution. Tex. R. Civ. P. 165a.

Notice

            Appellant contends he had no notice of the petition and hearing to reinstate, vacate, and dismiss the tax deficiency lawsuit against him.  However, his argument relies on facts outside the record and does not constitute error apparent on the face of the record. Section 33.56(e) of the Tax Code requires that the petition to vacate be served on each party to the underlying tax suit pursuant to Rule 21a of the Texas Rules of Civil Procedure.  Under Rule 21a, notice may be served on a party at his last known address.  The certificates of service on the petition and notice of hearing show that on September 21, 2001, appellant was served with the petition and notice pursuant to Rule 21a at 150 Forest Drive, Jericho, New York, the address at which appellant was originally served with the citation in 1992.  No other last known address for appellant is shown by the record as of November 5, 2001.  In an effort to show lack of notice, appellant attached to his brief a copy of a warranty deed dated July 12, 1990, reflecting his mailing address as 7106 Corta Calle in Houston, Texas. In a restricted appeal, the “face of the record” consists of papers on file with the trial court at the time it rendered judgment.  Gen. Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 944 (Tex. 1991).  Accordingly, an appellate court may not consider evidence in a restricted appeal unless it was before the trial court when judgment was rendered.  The warranty deed does not appear in the record and cannot be considered on appeal.  Even so, the document in and of itself would not establish lack of notice under Rule 21a.  Appellant was served with the 1992 tax deficiency lawsuit at the

150 Forest Drive

address, which stands as his last known address in the record as of the November 2001 order.  Appellant has not shown any error apparent on the face of the record, and therefore his first and second issues are overruled.

Abandonment

            In his third and final issue, appellant alleges error by the trial court in failing to find abandonment under Texas Rule of Civil Procedure 165. Nothing in the record reveals any request by appellant for such a finding, and appellant cites no authority obligating the trial court to do so sua sponte.  Although appellant suggests this Court on appeal may find appellees abandoned their claim to back taxes for tax years 1987–1993 as a matter of law, appellant cites no supporting authority for such argument. We find no error, and overrule the third issue.

Conclusion

            For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed August 28, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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            ^[1]  Although appellant cites “Rule 166a,” it is clear from the context of his argument he is referring to Rule 165a, Texas Rules of Civil Procedure, regarding dismissal for want of prosecution.