Al Benser D/B/A Apex Financial Corporation v. Dallas County ( 2023 )

Affirmed and Opinion Filed March 28, 2023.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00725-CV
AL BENSER D/B/A APEX FINANCIAL CORPORATION, Appellant
V.
DALLAS COUNTY, CITY OF DALLAS, DALLAS COUNTY
COMMUNITY COLLEGE DISTRICT, DALLAS COUNTY SCHOOL
EQUALIZATION FUND, DALLAS INDEPENDENT SCHOOL DISTRICT,
AND PARKLAND HOSPITAL DISTRICT, Appellees
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. TX-18-01518
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Partida-Kipness
This appeal stems from a suit to collect delinquent property taxes on property
located in Dallas County. Appellant Al Benser d/b/a Apex Financial Corporation
(Apex) appeals the June 9, 2021 judgment in favor of appellees Dallas County, City
of Dallas, Dallas County Community College District, Dallas County School
Equalization Fund, Dallas Independent School District, and Parkland Hospital
District (the Taxing Authorities). In three issues, Apex complains the trial court erred
by (1) awarding the Taxing Authorities penalties and interest on an award included
in a 2017 default judgment, (2) awarding damages on maintenance liens purportedly
barred by limitations, and (3) denying Apex’s counterclaim for damages from the
2011 demolition of a structure on the Property. Finding no error, we overrule each
of these issues and affirm the trial court’s judgment.
BACKGROUND
Apex owned real property located at 2827 Seaton Drive in Dallas County (the
Property). During Apex’s ownership, property taxes became delinquent, a vacant
structure on the Property fell into disrepair, and the Property became unkept in
violation of City of Dallas ordinances. As a result, liens were assessed on the
Property and the vacant structure was demolished. On appeal, Apex raises issues
concerning the demolition proceedings and two proceedings to collect delinquent
property taxes and foreclose on municipal health and safety liens1 assessed on the
Property.
I. The Demolition
In February 2011, the City of Dallas (the City) filed a petition and notice of
public hearing seeking orders requiring the property owner to repair, remove, or
demolish a vacant structure on the Property. The City alleged the structure should
be demolished because it violated “numerous minimum housing standards in
1
These liens were assessed pursuant to Chapter 342 of the Texas Health and Safety Code. TEX. HEALTH
& SAFETY CODE §§ 342.002, 342.006, 342.007. The liens at issue here include liens labeled as weed liens,
a paving assessment, a secured closure lien, and a demolition lien, which we refer to collectively as
“maintenance liens.”
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Chapter 27 of the Dallas City Code” and was “dilapidated, substandard, unfit for
human habitation, a hazard to the public health, safety and welfare, and constitutes
an urban nuisance.” In its petition, the City listed “Apex Financial Group” as the
owner of the Property with an address of PO Box 165598, Irving, Texas 75016. After
a public hearing, the municipal court ordered the owner to demolish the structure
within thirty days. When the owner failed to demolish the structure, the City sought
and obtained an order permitting it to demolish the structure on the Property. Apex
contends the demolition occurred without its knowledge.
II. The 2016 Proceeding
According to tax records, Apex owed delinquent property taxes on the
Property for tax years 1997, 1998, and 2000 through 2019. The Taxing Authorities
first sued to collect delinquent taxes on the Property in 2016. In the 2016 Proceeding,
the Taxing Authorities sued “Apex Financial Corp.” to recover delinquent property
taxes owed for tax years 1997, 1998, and 2000 through 2015, and to foreclose on
maintenance liens from work completed on the Property in 2005 and between 2012
and 2016. The maintenance liens reflected costs incurred by the City mowing the
Property and fees and expenses related to the 2011 demolition. The Taxing
Authorities obtained a default judgment against “Apex Financial Corp.” on February
9, 2017. Based on the Taxing Authorities’ certificate of last known address, the
district clerk mailed notice of the default judgment to the following:
Apex Financial Corp.
President Roy Williams
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30 Hilton Haven Rd.
Key West, Florida 33040
The Florida address was not Apex’s address, and Mr. Williams was not affiliated
with the Property. Considering this error, the Taxing Authorities obtained an “Order
for Nonsuit” of the 2016 Proceeding on May 5, 2020.
III. The Underlying Proceeding
Meanwhile, property taxes continued accruing, and the City filed additional
maintenance liens. On September 25, 2018, the Taxing Authorities initiated the
underlying suit to collect the delinquent taxes, interest, attorney’s fees, and costs
pursuant to section 33.41 of the Texas Tax Code. TEX. TAX CODE § 33.41 (suit to
collect delinquent tax). The Taxing Authorities also sought to foreclose on
maintenance liens from work completed on the Property in 1988, 1994, 2005, and
between 2012 and 2020, and fees and expenses related to the 2011 demolition. Apex
filed a counterclaim to recover the value of the demolished structure as damages for
the City’s 2011 demolition. Apex also argued any accrued interest and penalties after
2016 should be removed from any judgment in favor of the Taxing Authorities
because the 2016 Proceeding was wrongfully filed without notice to Apex.
The underlying case was tried to the bench on June 7, 2021. The trial court
awarded the Taxing Authorities $31,805.99 in delinquent property taxes, penalties,
interest, and fees owed for tax years 1998 and 2000 to 2019. The judgment also
ordered recovery on twelve of the maintenance liens. Apex filed a motion for new
trial, which the trial court denied by written order. This appeal followed.
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ANALYSIS
In three issues, Apex contends the trial court erred by (1) awarding the Taxing
Authorities penalties and interest on amounts awarded in the 2017 default judgment,
(2) awarding damages on maintenance liens purportedly barred by limitations, and
(3) denying Apex’s counterclaim for damages from the 2011 demolition. Finding no
error, we overrule Apex’s appellate issues and affirm the trial court’s judgment.
I. Penalties and interest after the 2016 Proceeding
In its first issue, Apex contends the trial court erred by denying Apex’s request
that no penalties or interest be charged to Apex after 2016. Apex maintains the
Taxing Authorities failed to give Apex notice of the 2016 Proceeding and 2017
default judgment. According to Apex, if Apex had known of the default judgment,
“it would likely have made arrangements to pay such judgment near that time” and,
therefore, penalties and interest would not have accrued on the amounts awarded in
the default judgment. At oral argument, Apex’s counsel conceded that Apex seeks
vacatur of the penalties and interest under principles of equity and in the interest of
justice and fairness. We conclude Apex is not entitled to the relief it requests.
The trial court’s decision to grant or to deny a request for equitable relief is
reviewed for an abuse of discretion. Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d
419, 428–29 (Tex. 2008); Tex. Youth Comm’n v. Koustoubardis, 378 S.W.3d 497,
502 (Tex. App.—Dallas 2012, no pet.); Mathews v. First Citizens Bank, 374 S.W.2d
794, 797 (Tex. App.—Dallas 1963, writ ref’d n.r.e.). When a party seeks equitable
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relief, it must offer and prove its willingness to do equity. Zonker v. Sullivan, 650
S.W.2d 189, 190 (Tex. App.—El Paso 1983, writ ref’d n.r.e.) (“to be entitled to
equitable relief, one must offer and prove his willingness to do equity.”) (internal
citations omitted); Harding Bros. Oil & Gas Co. v. Jim Ned Indep. Sch. Dist., 457
S.W.2d 102, 104–05 (Tex. App.—Eastland 1970, no writ) (rejecting taxpayers’
request for judgment enjoining school district from enforcing increased tax
assessments where taxpayers did not tender any taxes to school district); Luloc Oil
Co. v. Caldwell Cnty., 601 S.W.2d 789, 795 (Tex. App.—Beaumont 1980, writ ref’d
n.r.e.) (offering to do equity includes tendering “in dollars and cents the amount of
taxes owed under such tax payer’s theory of valuation.”) (quoting Harding Bros. Oil
& Gas, 457 S.W.2d at 104–105). Apex failed to do equity here. There is no evidence
that Apex tendered payment for any delinquent taxes owed, much less the taxes
owed and awarded in the 2017 default judgment for which it sought credits for
penalties and interest. The trial court did not abuse its discretion by denying Apex
equitable relief.
Moreover, the Taxing Authorities were statutorily authorized to vacate the
2017 default judgment and file the underlying lawsuit to recover the delinquent
taxes, penalties, and interest. See TEX. TAX CODE § 33.56(a)(2) (providing for
vacation of judgment for failure to join person needed for just adjudication); see also
Floyd v. Wharton Cnty., No. 13-15-00480-CV, 2017 WL 2180697, at *4 (Tex.
App.—Corpus Christi–Edinburg May 18, 2017, no pet.) (mem. op.) (motion to
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vacate judgment satisfied requirements of section 33.56). Under Section 33.56, when
the trial court vacates the judgment, the delinquent tax suit is revived and the taxes,
penalties, interest, and attorney’s fees and costs, and the liens securing them, are
reinstated. TEX. TAX CODE § 33.56(f)(3), (4). Section 33.56 places no time limits on
seeking an order vacating the judgment. Barua v. Cnty. of Dallas, 100 S.W.3d 629,
635 (Tex. App.—Texarkana 2003, pet. denied) (stating section 33.56 places no time
limits on seeking an order vacating a tax judgment). Apex failed to provide the trial
court or this Court any authority to support its contention that the 2016 Proceeding
and subsequent nonsuit entitled Apex to a credit of penalties and interest, and we
have found none. We overrule Apex’s first issue.
II. Foreclosure of Maintenance Liens
Next, Apex argues any maintenance liens “that fall outside the applicable
statute of limitations” should be removed from the judgment. The question of how a
statute of limitations applies is a matter of law, which we review de novo. Delhomme
v. Comm’n for Law. Discipline, 113 S.W.3d 616, 619 (Tex. App.—Dallas 2003, no
pet.). To prevail on a limitations defense, a defendant must conclusively establish
the elements of the defense, including when the plaintiff’s claim accrued. Microlaser
Therapy Corp. v. White, No. 05-17-00761-CV, 2018 WL 6845242, at *2 (Tex.
App.—Dallas Nov. 16, 2018, pet. denied) (mem. op.) (citing Diversicare Gen.
Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)). When a claim accrues is
also a question of law that we review de novo. See Willis v. Maverick, 760 S.W.2d
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642, 644 (Tex. 1988); see also Sowell v. Int’l Ints., LP, 416 S.W.3d 593, 598 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied).
Chapter 342 of the Texas Health and Safety Code permitted the City to
provide services to maintain the Property, including mowing the Property to rid it of
weeds, when Apex failed to comply with municipal ordinances. See TEX. HEALTH &
SAFETY CODE § 342.004 (“The governing body of a municipality may require the
owner of real property in the municipality to keep the property free from weeds,
brush, and a condition constituting a public nuisance as defined by Section
343.011(c)(1), (2), or (3).”); TEX. HEALTH & SAFETY CODE § 342.006(a) (if the
owner of the property does not comply with a municipal ordinance or requirement
under Chapter 342, the municipality may “(1) do the work or make the
improvements required; and (2) pay for the work done or improvements made and
charge the expenses to the owner of the property.”). The City was also permitted to
“assess expenses incurred under Section 342.006 against the real estate on which the
work is done or improvements made,” and foreclose a lien on property “in a
proceeding relating to the property brought under Subchapter E, Chapter 33, Tax
Code.” TEX. HEALTH & SAFETY CODE § 342.007(a),(h).
Chapter 342 provides no specific limitations period for foreclosure actions on
maintenance liens. In the trial court, Apex contended the residual four-year statute
of limitations applied to collection of the maintenance liens. TEX. CIV. PRAC. & REM.
CODE § 16.051 (“Every action for which there is no express limitations period,
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except an action for the recovery of real property, must be brought not later than four
years after the day the cause of action accrues.”). On appeal, Apex urges the Court
to apply either the residual limitations period or, alternatively, apply the limitations
period for the collection of taxes under section 33.05 of the tax code. See TEX. TAX
CODE § 33.05(a). The Taxing Authorities, in contrast, maintain the City is exempt
from a limitations defense as to the foreclosure on the maintenance liens. See TEX.
CIV. PRAC. & REM. CODE § 16.061(a) (an incorporated city’s right of action is not
barred by certain statutory limitations period, including four-year limitations period
to foreclose on a real property lien under section 16.035); see also TEX. CIV. PRAC.
& REM. CODE § 16.035(a) (a lienholder must foreclose on a real property lien not
later than four years after the day the cause of action accrues). We agree with the
Taxing Authorities.
As a preliminary matter, we conclude section 33.05 of the tax code is
inapplicable. Section 33.05 is found in Subchapter A of Chapter 33 of the tax code
and provides a “Limitation on Collection of Taxes”:
Personal property may not be seized and a suit may not be filed:(1) to
collect a tax on personal property that has been delinquent more than
four years; or (2) to collect a tax on real property that has been
delinquent more than 20 years.
TEX. TAX CODE § 33.05(a). The maintenance liens at issue, however, are not taxes
sought to be collected. Rather, municipal demolition liens and municipal weed and
sanitary liens are “specialized involuntary statutory liens [that] may affect Texas real
property.” Standards for liens and lis pendens, 3A TEX. PRAC., LAND TITLES AND
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TITLE EXAMINATION § 11.16 (3d ed.) (quoting TEX. PROP. CODE Title 2 Appendix,
Texas Title Examination Standards, Chapter 15, Standard 15.50). Further, the
foreclosure of such liens is governed by Subchapter E of Chapter 33, not Subchapter
A of that chapter. TEX. HEALTH & SAFETY CODE § 342.007(h) (a municipality’s
governing body “may foreclose a lien on property under this subchapter in a
proceeding relating to the property brought under Subchapter E, Chapter 33, Tax
Code.”). Subchapter E consists of section 33.91 through section 33.95 and addresses
the seizure of real property. TEX. TAX CODE § 33.91 et seq. The limitations periods
of section 33.05, thus, do not apply here.
We also conclude the residual statute of limitations does not apply here. Under
Subchapter E, a municipality may seize a person’s real property “for the payment of
delinquent ad valorem taxes, penalties, and interest the person owes on the property
and the amount secured by a municipal health or safety lien on the property.” TEX.
TAX CODE § 33.91(a). Section 33.91 applies “to a city or county seizure of real
property by tax warrant, which is an administrative process.” Target Corp. v. D&H
Props., LLC, 637 S.W.3d 816, 838 (Tex. App.—Houston [14th Dist.] 2021, pet.
denied) (citing TEX. TAX CODE §§ 33.91-.95 (“Subchapter E. Seizure of Real
Property”); 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.) (Section 33.91 “applies to a
municipality’s seizure of real property . . . .”). “A lienholder must foreclose on a real
property lien not later than four years after the day the cause of action accrues.” TEX.
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CIV. PRAC. & REM. CODE § 16.035(a). However, political subdivisions of the state,
such as the City, are not barred by the statute of limitations found in certain
provisions of the code, including section 16.035. TEX. CIV. PRAC. & REM. CODE §
16.061(a); State ex rel. Tex. Dep’t of Transp. v. Esquivel, 92 S.W.3d 17, 23 (Tex.
App.—El Paso 2002, no pet.) (“By Section 16.061, and its predecessors, the
legislature has exempted counties and other entities, unlike ordinary litigants, from
the limitations defense in appropriate cases.”). Accordingly, we conclude the City’s
foreclosure action on the maintenance liens was not subject to or barred by the four-
year statute of limitations. We overrule Apex’s second issue.
III. Apex’s Counterclaim
In its final issue, Apex contends the trial court erred by denying Apex’s
counterclaim for damages from the 2011 demolition. This issue presents a question
of law that we review de novo. TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68,
74 (Tex. 2016) (“The proper construction of a statute presents a question of law that
we review de novo.”); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999)
(per curiam) (questions of law reviewed de novo); Moore v. Wood, 809 S.W.2d 621,
623 (Tex. App.—Houston [1st Dist.] 1991, no writ) (how to apply the rules of civil
procedure to undisputed facts is a question of law reviewed de novo).
Section 214.001 of the local government code sets out the parameters under
which a municipality may order that a substandard building be vacated, secured,
repaired, removed, or demolished. TEX. LOC. GOV’T CODE § 214.001. For example,
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section 214.001(a) provides prerequisites a building must meet to be subject to the
statute, and section 214.001(b) sets out requirements that an ordinance must meet to
be subject to the statute. TEX. LOC. GOV’T CODE § 214.001(a)(1)–(3)2;
214.001(b)(1)–(3)3. The statute also provides notice and hearing requirements for
proceedings brought under the statute. TEX. LOC. GOV’T CODE § 214.001(c)–(r).
Apex’s counterclaim is based solely on its allegation that it did not receive
notice of the demolition. The evidence at trial, however, showed that the notice of
public hearing, the March 10, 2011 demolition order, the subsequent Notice of
Noncompliance, and the May 18, 2021 order authorizing the City to demolish the
Property were mailed via certified mail, return receipt requested to the address
provided by Apex to the Texas Secretary of State. The notices were also posted on
the Property and published in a newspaper of general circulation in the municipality
in which the building was located. The notices complied with the notice
requirements of section 214.001 of the local government code. TEX. LOC. GOV’T
2
“A municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair,
removal, or demolition of a building that is: (1) dilapidated, substandard, or unfit for human habitation and
a hazard to the public health, safety, and welfare; (2) regardless of its structural condition, unoccupied by
its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be
entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used
by children; or (3) boarded up, fenced, or otherwise secured in any manner if: (A) the building constitutes
a danger to the public even though secured from entry; or (B) the means used to secure the building are
inadequate to prevent unauthorized entry or use of the building in the manner described by Subdivision
(2).” TEX. LOC. GOV’T CODE § 214.001(a)(1)–(3).
3
“The ordinance must: (1) establish minimum standards for the continued use and occupancy of all
buildings regardless of the date of their construction; (2) provide for giving proper notice, subject to
Subsection (b-1), to the owner of a building; and (3) provide for a public hearing to determine whether a
building complies with the standards set out in the ordinance.” TEX. LOC. GOV’T CODE § 214.001(b)(1)–
(3).
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CODE § 214.001(c)–(g), (n), (o), (q). By mailing the notices to Apex in accordance
with section 214.001, “the notice is considered delivered” even if the postal service
returns the notice as “refused” or “unclaimed.” TEX. LOC. GOV’T CODE § 214.001(r).
Under this record, we conclude Apex failed to prove that it did not receive the
statutorily-required notice of the demolition proceedings or the demolition itself.
Moreover, Apex’s appeal of the demolition lien came too late. A party
aggrieved by a municipality’s order under section 214.001 “may file in district court
a verified petition setting forth that the decision is illegal, in whole or in part, and
specifying the grounds of the illegality.” TEX. LOC. GOV’T CODE § 214.0012(a). The
petition must be filed “within 30 calendar days after the respective dates a copy of
the final decision of the municipality is personally delivered to them, mailed to them
by first class mail with certified return receipt requested, or delivered to them by the
United States Postal Service using signature confirmation service,. . .” Id. If no
petition is filed within that time, the decision becomes final on expiration of the “30
calendar day period.” Id. The record shows all required notices were mailed to Apex
in 2011 in accordance with the statute. Further, Apex’s president, Al Benser,
conceded at trial that he was aware the demolition occurred by 2013 or 2014 and did
not appeal the demolition. Apex filed its counterclaim challenging the demolition in
2020, which is more than thirty days after either the date the notices were mailed to
Apex or the date Apex contends it acquired actual knowledge of the demolition.
Either way, the counterclaim was filed years after the decision became final. As a
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result, Apex’s challenge to the demolition was waived. We overrule Apex’s third
issue.
CONCLUSION
Apex has failed to show its entitlement to the relief requested on appeal.
Accordingly, we overrule Apex’s appellate issues and affirm the trial court’s
judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
210725F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AL BENSER D/B/A APEX On Appeal from the 116th Judicial
FINANCIAL CORPORATION, District Court, Dallas County, Texas
Appellant Trial Court Cause No. TX-18-01518.
Opinion delivered by Justice Partida-
No. 05-21-00725-CV V. Kipness. Justices Molberg and
Carlyle participating.
DALLAS COUNTY, CITY OF
DALLAS, DALLAS COUNTY
COMMUNITY COLLEGE
DISTRICT, DALLAS COUNTY
SCHOOL EQUALIZATION FUND,
DALLAS INDEPENDENT
SCHOOL DISTRICT, AND
PARKLAND HOSPITAL
DISTRICT, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees DALLAS COUNTY, CITY OF DALLAS,
DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, DALLAS COUNTY
SCHOOL EQUALIZATION FUND, DALLAS INDEPENDENT SCHOOL
DISTRICT, AND PARKLAND HOSPITAL DISTRICT recover their costs of this
appeal from appellant AL BENSER D/B/A APEX FINANCIAL CORPORATION.
Judgment entered this 28th day of March 2023.
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