Ross Mandel and Lea Mandel v. Lewisville Independent School District, County of Denton, City of Plano, and Claussner Holdings, LLC , 2016 Tex. App. LEXIS 6983 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00222-CV
ROSS MANDEL AND LEA MANDEL APPELLANTS
V.
LEWISVILLE INDEPENDENT APPELLEES
SCHOOL DISTRICT, COUNTY OF
DENTON, CITY OF PLANO, AND
CLAUSSNER HOLDINGS, LLC
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2013-70534-431
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OPINION
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This is an appeal from a denial of a bill of review.1 In one issue that
contains several supporting arguments, appellants Ross Mandel and Lea Mandel
contend that the trial court’s November 2012 default judgment against them
violated their right to due process and that the trial court therefore erred by
1
See Tex. R. Civ. P. 329b(f).
granting the summary judgment motions filed in the bill of review proceeding by
appellees Lewisville Independent School District (Lewisville ISD), County of
Denton (Denton County), City of Plano (Plano), and Claussner Holdings, LLC
(Claussner). We affirm.
Background Facts
In a prior, restricted appeal that involved all of the same parties at issue
here (other than Claussner), we affirmed the trial court’s default judgment against
appellants for delinquent ad valorem taxes on their Plano residence.2 We set out
the chronology of events between the parties as follows:
On July 29, 2011, Lewisville ISD filed its original petition
against the Mandels . . . for payment of delinquent 2010 property
taxes on the Mandels’ home. Lea Mandel was served by personal
service of process on August 5, 2011. Ross Mandel was served by
personal service of process on August 16, 2011. The Mandels did
not answer. . . . While the case was pending, at some point in the
following months, [a lienholder] paid the delinquent 2010 taxes.
Lewisville ISD filed its first amended original petition on June
7, 2012, eliminating its cause of action for 2010 taxes and alleging
that the Mandels were delinquent on their 2011 taxes. Lewisville
ISD’s certificate of service appended to its amended petition stated
that it served the Mandels with a copy of the amended petition
pursuant to Texas Rule of Civil Procedure 21a.[3] The Mandels did
2
See Mandel v. Lewisville ISD, 445 S.W.3d 469, 485 (Tex. App.—Fort
Worth 2014, pet. denied).
3
The Mandels disputed in this bill of review proceeding whether service of
the amended petition under rule 21a was accomplished. See Tex. R. Civ. P. 21a
(stating that notices required to be served, other than the citation, may be served
in various ways, including in person, by mail, or by e-mail). Appellees contend, in
part, that Texas law did not require service of the amended petition under rule
21a.
2
not answer. . . . On November 2, 2012, [Plano] intervened. On
November 13, 2012, [Denton County] intervened. [Plano] and
[Denton County] each sought to recover delinquent 2011 property
taxes owed by the Mandels.
On November 15, 2012, the case was called to trial. The
Mandels did not appear. . . . On the same date, the trial court
signed a final default judgment against the Mandels . . . for the
amounts owed to Lewisville ISD, [Plano], and [Denton County] for
the delinquent 2011 taxes, including penalties and interest until paid.
The judgment also ordered foreclosure of the tax liens on the
property, issuance of an order of public sale of the property,
payment to the taxing entities of the amounts owed from the
proceeds, and issuance of a writ of possession to the purchaser of
the property at the sale.
On November 16, 2012, the Denton County District Clerk
mailed a notice of the judgment to each of the Mandels, as well as a
billing statement for the court costs. On January 4, 2013, the
Denton County District Clerk issued an order of sale for foreclosure
of the tax liens and for court costs recovered in the default judgment.
The Denton County Sheriff published notice of the sale and on
March 13, 2013, mailed a copy of the notice to the Mandels. The
property was sold at a sheriff’s sale on the Denton County
Courthouse steps to Claussner on April 2, 2013.[4]
In the restricted appeal, appellants argued that (1) the citation by which
Ross was served with Lewisville ISD’s original petition did not strictly comply with
certain rules of civil procedure, (2) Lewisville ISD was required to serve them with
a new citation when it filed its amended petition because the amended petition
asserted a new cause of action for a different tax year, (3) Plano and Denton
County were required to (and failed to) serve appellants with citation when they
intervened, and (4) they were denied due process because they did not receive
4
Mandel, 445 S.W.3d at 472–73.
3
adequate notice of the order of sale of the property.5 We rejected each of these
arguments.6
Before we issued our decision in the restricted appeal, appellants filed a
petition for bill of review in the trial court, contending that the November 2012
default judgment is void. They argued that rule of civil procedure 21a required
Lewisville ISD to serve its amended petition on them and that Lewisville ISD did
not do so. They raised the same contention with respect to the intervention
petitions filed by Plano and Denton County. Finally, they contended that the
resulting sheriff’s sale of the home was improper because the default judgment
was taken without proper service and was therefore allegedly void.
Appellees filed answers to the petition for bill of review. Appellants
amended the petition; they again contended that their right to due process had
been violated because they had not been served under rule 21a with Lewisville
ISD’s amended petition or the intervention petitions filed by Plano and Denton
County. They contended that the November 2012 judgment was obtained in
violation of their due process rights “because they were not served with the
pleadings upon which the default judgment was based.”
All parties sought summary judgment. Appellants argued that they were
not served with Lewisville ISD’s amended petition or the other taxing entities’
5
Id. at 474–85.
6
See id. at 485.
4
intervention petitions under rule 21a and that those petitions asserted a new
cause of action and sought more onerous relief than Lewisville ISD’s original
petition. Appellants contended, “Due process does not permit a default judgment
on a claim never served on the defendants. As such, this Court should . . . set
aside the default judgment.” Appellants attached a declaration to their motion in
which Ross stated that neither he nor Lea received Lewisville ISD’s amended
petition or the intervention petitions filed by Denton County and Plano. They also
contended that Lewisville ISD had admitted that it had not served the amended
petition upon appellants.7 They contended that when taxing entities are on notice
that service has not been received by a citizen, the entities have a due process
obligation to take “additional steps to provide citizens notice before taking their
property.” Finally, they argued that because they did not receive constitutionally
adequate notice of the taxing entities’ claims for the 2011 taxes, they were not
required to prove traditional bill-of-review elements, including that they had a
meritorious claim or defense.
Claussner argued that appellants’ claim seeking to void the sheriff’s sale of
the property, which was conducted in accordance with the trial court’s order of
sale, was legally unsupported even if they prevailed in setting aside the default
7
In a response to an interrogatory in discovery, Lewisville ISD stated that it
sent the amended petition to appellants by certified mail but that the certified mail
was returned as unclaimed. Lewisville ISD admitted that it knew that appellants
had not received the amended petition when Lewisville ISD sought the default
judgment against them.
5
judgment. Claussner contended that appellants’ only recourse, if any, was
“against the Taxing Authorities.” It argued, “Even if this Court were to set aside
the Default Judgment (which it cannot and should not), this Court may not set
aside the tax sale to Claussner.”
Lewisville ISD asserted, among other arguments, that appellants were not
entitled to a bill of review because they did not have a meritorious defense to the
delinquency of the 2011 taxes and because they were not legally entitled to
receive a copy of Lewisville ISD’s amended petition. With respect to the latter
argument, Lewisville ISD asserted that rule of civil procedure 117a8 negated any
need for service of the amended petition upon appellants under rule 21a.
Lewisville ISD contended, “Property owners have a legal duty to know whether or
not the taxes assessed on their property have been paid and this is especially
true when suit has been filed to collect delinquent taxes assessed on their
property. This necessarily includes taxes becoming delinquent after a lawsuit
has been filed.”
Denton County adopted Lewisville ISD’s summary judgment motion. The
county also contended that it was not required to serve appellants with its
intervention petition. The county argued that this court resolved that exact
argument against appellants in the restricted appeal; thus, the county asserted
that the doctrines of res judicata and law of the case precluded appellants’
8
See Tex. R. Civ. P. 117a.
6
petition for bill of review. Plano adopted Denton County’s and Lewisville ISD’s
summary judgment motions and contended that the procedures for service in a
tax suit created by rule 117a satisfied due process.
The trial court granted the summary judgment motions filed by appellees
and denied appellants’ motion. The court ordered that the “default judgment for
[Lewisville ISD], [Denton County], and [Plano] . . . entered on November 15, 2012
is hereby SUSTAINED/AFFIRMED.” Appellants brought this appeal.
Rule 117a and Due Process
In one issue that contains several supporting arguments, appellants
contend that the November 2012 default judgment violated due process and that
the trial court therefore erred by granting summary judgment for appellees and by
denying appellants’ petition for bill of review. In a summary judgment case, the
issue on appeal is whether the movant established that no genuine issue of
material fact existed and that the movant was entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see also Shackelford v.
Cartercopters, LLC, No. 02-10-00414-CV, 2011 WL 3835638, at *2 (Tex. App.—
Fort Worth Aug. 31, 2011, no pet.) (mem. op.) (“The review of a grant of
summary judgment on a petition for bill of review is the same standard of review
as for grants of summary judgment in other types of cases.”). We review a
summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,
862 (Tex. 2010). A defendant who conclusively negates at least one essential
7
element of a cause of action is entitled to summary judgment on that claim. Frost
Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, 562
U.S. 1180 (2011). When multiple parties move for summary judgment and the
trial court grants one motion while denying another, we review the parties’
summary judgment evidence and determine all questions presented. Little v.
Delta Steel, Inc., 409 S.W.3d 704, 709 (Tex. App.—Fort Worth 2013, no pet.).
A bill of review is an equitable proceeding brought by a party seeking to set
aside a prior judgment that is no longer subject to challenge by a motion for new
trial or appeal. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); see In re
Child, No. 02-15-00118-CV, 2016 WL 1403320, at *2 (Tex. App.—Fort Worth
Apr. 7, 2016, no pet. h.). It is brought as a separate suit from the case in which
the challenged judgment was rendered. Morris v. O’Neal, 464 S.W.3d 801, 805
(Tex. App.—Houston [14th Dist.] 2015, no pet.).
The fundamental policy that finality must be accorded to judgments makes
the grounds upon which a bill of review will be granted narrow. See King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004). Generally, to be entitled to relief, a bill of review petitioner must plead
and prove three elements: (1) the petitioner has a meritorious defense to the
underlying cause of action; (2) the petitioner was prevented from making that
defense by the fraud, accident, or wrongful act of the opposing party, or because
of official mistake; and (3) these actions were unmixed with any fault or
negligence on the part of the petitioner. Child, 2016 WL 1403320, at *2. When a
8
bill of review is premised on an alleged lack of service of process or notice, such
as where the petitioner is seeking to set aside a default judgment, the petitioner
is relieved of having to prove the first two elements. Morris, 464 S.W.3d at 805
n.1; see Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012);
Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.—Austin 2000, pet.
denied) (“[W]hen a defendant does not receive notice of a lawsuit, the defendant
is relieved of its burden to prove that fraud, accident, or wrongful act prevented it
from making its defense.”).
The connecting thread of appellants’ arguments is their contention that rule
21a required Lewisville ISD to serve its amended petition on them and required
Denton County and Plano to serve their intervention pleadings on them.
Appellants argue that because the amended petition and intervention pleadings
were not served, the default judgment violates their right to due process and is
void. Appellees argue, in part, that rule 117a negated any need for the service of
the amended petition or the intervention petitions under rule 21a and that rule
117a complies with due process.
Rule 21a states that every “notice required by [the rules of civil procedure],
and every pleading . . . required to be served under Rule 21,9 other than the
9
Rule 21 states in part,
Every pleading . . . must be filed with the clerk of the court in writing,
must state the grounds therefor, must set forth the relief or order
sought, and at the same time a true copy must be served on all other
parties, and must be noted on the docket.
9
citation to be served upon the filing of a cause of action[,] . . . may be served by
delivering a copy to the party to be served.” Tex. R. Civ. P. 21a(a) (emphasis
added). Notices and pleadings covered by rule 21a may be served
electronically, in person, by mail, or by e-mail, among other means. Id.; see also
In re E.A., 287 S.W.3d 1, 2 (Tex. 2009) (explaining that the service requirement
and methods contained in rule 21a generally apply to “all pleadings and court
papers except the original petition”). Generally, when a defendant has been
served with an original petition by citation, the rules of civil procedure require the
service of an amended petition, without citation, when the amended petition
seeks a more onerous judgment10 than prayed for in the original pleading. E.A.,
287 S.W.3d at 3–5; Mandel, 445 S.W.3d at 478 (stating that “service under rule
21a suffices to satisfy the requirement of service of an amended petition
asserting a new cause of action as well as one that seeks more onerous relief”);
Garduza v. Castillo, No. 05-13-00377-CV, 2014 WL 2921650, at *2 (Tex. App.—
Dallas June 25, 2014, no pet.) (mem. op.) (“The issuance and service of citation
is only required for an original petition. Thereafter neither issuance [nor] service
of citation is required for subsequently amended petitions, just service pursuant
Tex. R. Civ. P. 21(a).
10
The parties dispute whether Lewisville ISD’s amended petition requested
more onerous relief than its original petition. Appellants contend that the
amended petition sought more onerous relief because it added a new cause of
action for a different tax year (2011 instead of 2010) and alleged greater liability
than the original petition. For the reasons stated below, we need not resolve that
issue.
10
to rule 21a of each amended petition that requests more onerous relief.” (citation
omitted)). Failure to serve such an amended petition generally renders any
default judgment granted on the amended petition void. See Pride v. Williams,
No. 05-11-01189-CV, 2013 WL 3788627, at *2 (Tex. App.—Dallas July 17, 2013,
no pet.) (mem. op.); Olive Tree Apartments v. Trevino, No. 04-09-00740-CV,
2010 WL 1817797, at *2 (Tex. App.—San Antonio May 5, 2010, no pet.) (mem.
op.).
Rule 117a applies to suits for collection of delinquent ad valorem taxes,
like this case. See Tex. R. Civ. P. 117a (“In all suits for collection of delinquent
ad valorem taxes, the rules of civil procedure governing issuance and service of
citation shall control the issuance and service of citation therein, except as herein
otherwise specially provided.”). Rule 117a explicitly relates to “citation” in tax
suits but contains language that more generally applies to the notice of
pleadings, including pleadings filed after the original petition, required in such
suits. See id. The rule provides that a citation in a tax suit must state
that in addition to the taxes all interest, penalties, and costs allowed
by law up to and including the day of judgment are included in the
suit; and that all parties to the suit, including plaintiff, defendants,
and intervenors, shall take notice that claims for any taxes on said
property becoming delinquent subsequent to the filing of the suit and
up to the day of judgment, together with all interest, penalties, and
costs allowed by law thereon, may, upon requests therefor, be
recovered therein without further citation or notice to any parties
thereto. Such citation need not be accompanied by a copy of
plaintiff's petition and no such copy need be served. Such citation
shall also show the names of all taxing units which assess and
collect taxes on said property not made parties to such suit, and
shall contain, in substance, a recitation that each party to such suit
11
shall take notice of, and plead and answer to, all claims and
pleadings then on file or thereafter filed in said cause by all other
parties therein, or who may intervene therein and set up their
respective tax claims against said property. After citation or notice
has been given on behalf of any plaintiff or intervenor taxing unit, the
court shall have jurisdiction to hear and determine the tax claims of
all taxing units who are parties plaintiff, intervenor or defendant at
the time such process is issued and of all taxing units intervening
after such process is issued, not only for the taxes, interest,
penalties, and costs which may be due on said property at the time
the suit is filed, but those becoming delinquent thereon at any time
thereafter up to and including the day of judgment, without the
necessity of further citation or notice to any party to said suit; and
any taxing unit having a tax claim against said property may, by
answer or intervention, set up and have determined its tax claim
without the necessity of further citation or notice to any parties to
such suit.
Tex. R. Civ. P. 117a(4) (emphasis added). The rule also provides a form for
citation by personal service in tax suits, and the form includes the following
language:
All parties to this suit, including plaintiff, defendants, and
intervenors, shall take notice that claims not only for any taxes which
were delinquent on said property at the time this suit was filed but all
taxes becoming delinquent thereon at any time thereafter up to the
day of judgment, including all interest, penalties, and costs allowed
by law thereon, may, upon request therefor, be recovered herein
without further citation or notice to any parties herein, and all said
parties shall take notice of and plead and answer to all claims and
pleadings now on file and which may hereafter be filed in this cause
by all other parties hereto, and by all of those taxing units above
named, who may intervene herein and set up their respective tax
claims against said property.
Tex. R. Civ. P. 117a(6).
Lewisville ISD’s original petition, filed in July 2011, stated,
All the parties of this suit, including Plaintiff, Defendant(s) and
lntervenor(s), shall take notice that claims for any and all taxes
12
becoming delinquent on said property at any time subsequent to the
filing of this suit, up to the day of Judgment, may upon request
therefore be recovered herein without further Citation or Notice, and
that such claims for such delinquent taxes shall include all penalties,
interest[,] and costs allowed by law.
Similar language appeared on the citation that accompanied Lewisville
ISD’s original petition. In accordance with rule 117a(6), the citation stated,
All parties to this suit, including Plaintiff, Defendant(s), and
Intervenors, shall take notice that claims not only for any taxes which
were delinquent on said property at the time this suit was filed but all
taxes becoming delinquent thereon at any time thereafter up to the
day of judgment, including all interest, penalties, and costs allowed
by law thereon, may upon request therefor, be recovered herein
without further citation or notice to any parties herein, and all said
parties shall take notice of and plead and answer to all claims and
pleadings now on file and which may hereafter be filed in this cause
by all other parties hereto, and by all of those taxing units above
named, who may intervene herein and set up their respective tax
claims against said property.[11]
See id.
In resolving the restricted appeal, we relied on rule 117a to hold that
Denton County and Plano were not required to serve appellants with citation
when those entities filed their intervention petitions. See Mandel, 445 S.W.3d at
480–81; see also Stoker v. City of Fort Worth, No. 02-08-00103-CV, 2009 WL
2138951, at *3 (Tex. App.—Fort Worth July 16, 2009, no pet.) (mem. op.) (“In a
suit to collect delinquent taxes due on property, any taxing unit having a tax claim
11
At the 2012 hearing in which the trial court granted the default judgment,
in response to an argument made by the lienholder, the court stated, “[I]t would
seem to me that the parties were put on notice of the taxing [authorities’] intent to
seek payment of past due taxes as well as future taxes if they happen to become
due and owing prior to the time that a judgment’s entered . . . .”
13
against the property may intervene and have its tax claim determined without the
necessity of further citation or notice to any parties to the suit.”). We explained,
“In essence, rule 117a(4) means that taxing units named in a citation as having
claims for delinquent taxes on particular property, but not parties to the tax suit,
may later join the suit without further service of process or notice.” Mandel, 445
S.W.3d at 482 (emphasis added). We concluded that as applied in this manner,
rule 117a did not violate due process because the citation that appellants
received provided them with
sufficient notice that they were being sued by Lewisville ISD for
delinquent ad valorem taxes on real property located at a specific
address. By naming both the City and the County, which later
intervened, the citation served with Lewisville ISD’s original petition
gave the Mandels all the notice to which they were entitled and gave
them the opportunity to appear and defend the suit. Nothing in the
record before us intimates that they were misled or placed at a
disadvantage by the citation and pleadings.
Id. However, we did not directly answer the question presented here, which is
whether rule 21a, rather than rules relating to the service of citation, required
service of the amended pleading or the intervention petitions upon appellants or
whether, instead, rule 117a negated that requirement.12
12
Instead, we appeared to assume, without explicitly deciding, that rule 21a
applied and held that there was no error on the face of the record under rule 21a
because Lewisville ISD’s amended petition recited that it was served by certified
mail. Mandel, 445 S.W.3d at 479–80. In other words, we concluded that service
under rule 21a was adequate on the face of the record in the restricted appeal,
but we did not explicitly hold that service was necessary when considering the
effect of rule 117a. See id. Contrary to appellants’ argument on appeal, we
cannot conclude that service of Lewisville ISD’s amended petition was legally
14
We apply rules of civil procedure in accordance with their plain language.
Simulis, L.L.C. v. G.E. Capital Corp., 276 S.W.3d 109, 113 (Tex. App.—Houston
[1st Dist.] 2008, no pet.); Burrhus v. M&S Supply, Inc., 933 S.W.2d 635, 640
(Tex. App.—San Antonio 1996, writ denied) (“[R]ules that are specific and clear
are given their plain meaning unless a literal interpretation would produce an
absurd result or defeat the intent of the enacting body.”). The plain language of
rule 117a signifies that in a suit for delinquent taxes, once a citation complying
with the rule has been properly served, the party serving the citation along with
intervening parties who do not serve citation may obtain a judgment for all taxes
becoming delinquent before the rendition of the judgment “without further . . .
notice” to any defendant. Tex. R. Civ. P. 117a(4). In other words, the rule
contemplates that after a citation is served, the party serving the citation and
other parties may plead new claims and seek more onerous relief without further
notice. See id. The rule expressly provides that no copy of the plaintiff’s petition
need be served and explicitly places the burden on a defendant to “take notice
of, and plead and answer to, all claims and pleadings then on file or thereafter
filed in said cause by all . . . parties therein.” Id. (emphasis added). The rule
requires the citation to inform the defendant of this burden to respond to all
pleadings on file at the time of the citation’s service or filed in the future, and the
citations served on Ross and Lea in this case did so. Tex. R. Civ. P. 117a(6);
necessary simply because Lewisville ISD attempted to serve the amended
petition.
15
see also Tex. Tax Code Ann. § 33.45 (West 2015) (stating that a party in a suit
for tax delinquency must “take notice of and plead and answer to all claims and
pleadings filed by other parties that have been joined or have intervened, and
each citation must so state”).
Thus, the rules of civil procedure, which generally require the service of
notice and pleadings, and rule 117a, which expressly negates the requirement of
serving notice or pleadings in tax suits following the service of the citation,
conflict. See Tex. R. Civ. P. 21(a), 21a(a), 117a(4). We conclude that rule 117a,
which is the more specific rule, prevails in tax suits to the extent of the conflict.
See Tex. Gov’t Code Ann. § 311.026(b) (West 2013); In re Mem’l Hermann
Hosp. Sys., 464 S.W.3d 686, 716 (Tex. 2015) (orig. proceeding) (“[C]onflicts
between general and specific provisions favor the specific, and when the literal
terms of the two provisions cannot both be true, the terms of the specific
provision ordinarily will prevail.”).
For these reasons, under the prevailing language of rule 117a, we must
reject appellants’ principal contention, which is that rule 21a required Lewisville
ISD to serve its amended petition on appellants. We hold that no such service
was required under the unambiguous language of rule 117a.
Appellants also argue, however, that due process required service of the
amended petition even if rule 117a did not. They argue that rules of civil
procedure cannot foreclose federal and state constitutional attacks by parties
deprived of constitutionally adequate notice.
16
Due process generally requires service of an amended pleading seeking a
more onerous judgment. See E.A., 287 S.W.3d at 5–6. But the supreme court’s
decision in Mexia Independent School District v. City of Mexia leads us to
conclude that the notice provided by rule 117a is constitutionally adequate
without the necessity of service of amended or intervening pleadings. 134 Tex.
95, 133 S.W.2d 118 (1939). There, the supreme court examined the statute that
preceded rule 117a. Id. at 96, 133 S.W.2d at 119; see Mandel, 445 S.W.3d at
481 (comparing rule 117a with the former statute). The factual background of the
case involved an action by the City of Mexia against a debtor, A.N. Pigford, for
delinquent taxes. Mexia ISD, 134 Tex. at 98, 133 S.W.2d at 120. Mexia ISD
intervened and also sought a delinquency judgment against Pigford but did not
serve Pigford with citation. Id. According to the former statute (like rule 117a),
the citation from the city’s original petition notified Pigford that other taxing units
had been made parties and that Pigford should “take notice of, and plead and
answer to, all claims and pleadings now on file and hereafter filed.” Id. The city
contended that the former statute was unconstitutional, but the supreme court
disagreed, stating,
The Act in question undertakes to require all parties to take
notice of all subsequent pleadings filed in the suit and it is contended
by appellee that it is unconstitutional, because, if followed, it would
deprive Pigford of his property without due process of law, in that it
would permit an impleaded taxing unit to file a [cross-action] and
recover judgment against Pigford for foreclosure of its lien without
any citation to him thereon. The general rule is that the legislature in
its discretion may prescribe what notice shall be given to a
defendant in a suit, subject to the condition that the notice
17
prescribed must conform to the requirement of due process of law.
The requirement of due process of law is met if the notice prescribed
affords the party a fair opportunity to appear and defend his
interests. The statute in question applies only to a particular class of
suits—that is, suits brought by taxing units to foreclose tax liens on
property. The citation served on the defendant must disclose to him
the nature of the suit. He is charged with knowledge of the law and
therefore must know from the nature of the suit that there is a
possibility of cross-actions by others. In other words, he is notified
that an effort will be made to sell the particular piece of property for
taxes and that all other defendants in the suit, as well as taxing units
not parties thereto, who have an interest in the property have been
invited to present their claims and to participate in the sale.
Section 4 of the Act requires that the citation contain a recitation
calling his attention to the fact that he is [required] to take notice of
all pleadings then on file and such as may thereafter be filed by any
and all parties. It is a [well-recognized] rule that a defendant who
has once entered his appearance in a cause is charged with notice
of all amendments thereafter filed, including pleas of intervention
and cross-actions by other defendants. If a defendant, merely
because he has entered his appearance in an ordinary suit, can be
required to take notice of all subsequent pleadings, interventions
and cross-actions by the public generally, we see no reason why in a
particular class of suits a defendant, who has been served with
citation that specifically warned him of the necessity of taking notice
of subsequent pleadings, cannot be required to take notice of cross-
actions of a particular kind by a particular class of claimants. We
think the notice required by the statute affords all defendants a fair
opportunity to be heard and therefore it does not violate the due
process clause of our Constitution.
Id. at 100–02, 133 S.W.2d at 121–22 (emphasis added) (citations omitted).
More recently, an intermediate court of appeals held that a citation
complying with rule 117a comports with due process because such a citation
gives a defendant notice of the claim for a tax deficiency and a fair opportunity to
contest the claim. Conseco Fin. Servicing v. Klein ISD, 78 S.W.3d 666, 675–76
(Tex. App.—Houston [14th Dist.] 2002, no pet.); see Sgitcovich v. Sgitcovich, 150
18
Tex. 398, 404, 241 S.W.2d 142, 146 (1951) (“The requirement of due process of
law is met if the notice prescribed affords the party a fair opportunity to appear
and defend his interests.”), cert. denied, 342 U.S. 903 (1952).
We conclude that the citations served on appellants satisfied due process,
without the need of service of the amended or intervening pleadings, because
the citations notified appellants of the potential for future tax delinquencies
sought by Lewisville ISD, Denton County, or Plano; instructed them to remain
apprised of those potential claims; and gave them a fair opportunity to defend
against the claims. See Mexia ISD, 134 Tex. at 100–02, 133 S.W.2d at 121–22;
Conseco Fin. Servicing, 78 S.W.3d at 675–76. Although appellants contend that
they were not “fairly put on notice that a judgment might result for another tax
year without some kind of notice before the . . . default judgment,”13 the citations
provided them with this exact notice, informing them that the taxing units were
seeking taxes “delinquent on said property at the time this suit was filed [and] all
taxes becoming delinquent thereon at any time thereafter up to the day of
judgment . . . without further citation or notice.” And as explained above, the
citations received by appellants informed them that they were to take notice of all
13
Appellants rely, in part, on a letter they received informing them that the
2010 taxes had been paid. But that letter also informed appellants that the
lawsuit remained pending and would not be dismissed until “all school taxes,
court costs, and abstract fees [were] paid.” The letter stated, “Please be advised
that the District may take judgment for any unpaid school taxes, court costs[,]
and abstract fees that remain unpaid without further notice to you.”
19
current and future pleadings. Nonetheless, the record does not indicate that
appellants appeared in the lawsuit prior to the date of the default judgment.
In their argument concerning due process, appellants rely on the Supreme
Court’s decision in Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708 (2006).
There, the Court stated that before a state may take property and sell it for
unpaid taxes, due process requires the state to provide the owner notice and
opportunity for hearing appropriate to the nature of the case. Id. at 223, 126 S.
Ct. at 1712. The Court held that such due process had not been provided to the
owner because he first learned of the allegation of a tax delinquency on the
property after the property had been sold and because attempts to notify him by
certified mail had been returned as unclaimed. Id. at 223–24, 239, 126 S. Ct. at
1712–13, 1721. This case is distinguishable from Jones because here, before
the trial court’s judgment and before the sale of the property, appellants received
notice that suit had been filed for delinquent taxes and that recovery in the suit
could include any taxes that were delinquent on the day of the judgment. See
Mandel, 445 S.W.3d at 483 (distinguishing Jones on the ground that the sale “of
the Mandels’ home in this case was . . . with the protections afforded by service
of citation on the Mandels, providing notice and an opportunity to appear in court
for a meaningful hearing before the final judgment ordering sale of their home for
payment of the delinquent taxes”).
For all of these reasons, we hold that under rule 117a, appellants were not
entitled to service under rule 21a (or otherwise) of Lewisville ISD’s amended
20
petition or the other entities’ intervention pleadings, and we also hold that the
provisions within rule 117a do not violate due process facially or as applied.14
We conclude that the trial court did not err by granting summary judgment for
appellees15 and by denying appellants’ petition for bill of review. We overrule
appellants’ sole issue.
Conclusion
Having overruled appellants’ only issue, we affirm the trial court’s final
summary judgment denying appellants’ petition for bill of review.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DELIVERED: June 30, 2016
14
In light of these related holdings, we conclude that we need not address
other arguments, which concern issues such as whether setting aside the
judgment would require setting aside the sale of the property, whether appellants’
bill of review could be defeated by certain defenses raised by appellees, or
whether the trial court erred by excluding certain summary judgment evidence.
See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written
opinion that is as brief as practicable but that addresses every issue raised and
necessary to final disposition of the appeal.”); QuikTrip Corp. v. Goodwin, 449
S.W.3d 665, 677 n.19 (Tex. App.—Fort Worth 2014, pet. denied).
15
Appellants argued that Claussner had no standing to move for summary
judgment because “no claims were asserted against it.” We disagree because
appellants explicitly sued Claussner and asked the trial court to void the deed to
Claussner. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.
2005) (explaining that the “issue of standing focuses on whether a party has a
sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its
outcome”).
21