Victor Dewayne White v. Ector County Appraisal District

Opinion filed December 14, 2017
In The
Eleventh Court of Appeals
__________
No. 11-17-00059-CV
__________
VICTOR DEWAYNE WHITE, Appellant
V.
ECTOR COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the County Court at Law
Ector County, Texas
Trial Court Cause No. CC-10,128-T
MEMORANDUM OPINION
Ector County Appraisal District sued Victor Dewayne White for the recovery
of delinquent ad valorem taxes. The trial court found that White was delinquent in
the payment of property taxes in the amount of $1,634.31 and authorized Ector
County Appraisal District to foreclose on the property. On appeal, White requests
that this court grant his “Writ of Quo Warranto,” vacate the judgment, and vacate
what he describes as a “void” judgment. We affirm.
I. Background Facts and Procedural History
The Appraisal District alleged that White had failed to pay his property taxes
on certain real property in Ector County and filed suit. The Ector County Sherriff’s
Department completed service of the citation and petition on White, who was
incarcerated in the Ector County Detention Center. Although White never filed an
answer in the suit, he filed a motion to dismiss the case. The Appraisal District
amended its petition and moved the trial court to set a tax hearing; the Appraisal
District served the motion on all parties and counsel that had appeared. White
acknowledged in his appellate brief that he received notice of the tax hearing. The
trial court set the tax hearing for January 23, 2017. On that date, the Appraisal
District appeared with counsel and announced ready, while White, who was not
represented by counsel, did not appear. White also had not requested to appear by
other means.
After the Appraisal District adduced evidence of the delinquent taxes that
White owed for his property, as shown in certified copies of tax records, it moved
for the admission of that evidence, which the trial court admitted. White presented
no evidence in response to the Appraisal District’s evidence. At the conclusion of
the hearing, the trial court entered judgment in favor of the Appraisal District.
II. Issues Presented
White asserts multiple complaints in his “Writ of Quo Warranto,” which this
court accepted as his brief in this appeal. White also filed a reply brief in response
to the Appraisal District’s brief. Because of the multiplicity of complaints, we do
not recite them here but, instead, address them in our analysis below.
III. Standard of Review
In a bench trial, the trial court, as factfinder, is the sole judge of the credibility
of the witnesses. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—
Houston [1st Dist.] 1992, writ denied). When neither party requests findings of fact
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and conclusions of law following a nonjury trial, all fact findings necessary to
support the trial court’s judgment are implied. Shields Ltd. P’ship v. Bradberry, 526
S.W.3d 471, 480 (Tex. 2017) (citing Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d
46, 52 (Tex. 2003)). When, however, as in this cause, a reporter’s record is filed,
the trial court’s implied findings are not conclusive and may be challenged for legal
and factual sufficiency. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002). We conduct any review of sufficiency challenges to implied
findings under the same standards of review that govern sufficiency challenges to
jury findings or a trial court’s findings of fact. Jistel v. Tiffany Trail Owners Ass’n,
Inc., 215 S.W.3d 474, 479 (Tex. App.—Eastland 2006, no pet.) (citing Roberson v.
Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). In the absence of findings, we will
affirm the judgment of the trial court if it can be upheld on any available legal theory
that finds support in the evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d
277, 278 (Tex. 1987).
IV. Analysis
A. White has asserted complaints on appeal that either were not
preserved or have been waived.
White asserts many complaints that are unrelated to his appeal of a delinquent
tax case. White first argues that this court should grant his “Writ of Quo Warranto”
because of alleged bad acts by several county employees. White also complains of
alleged fraudulent acts by a now-deceased justice of the peace. Quo warranto
proceedings provide the exclusive means by which the public may protect itself from
unlawful occupancy of a public office. Norville v. Parnell, 118 S.W.3d 503, 505
(Tex. App.—Dallas 2003, pet. denied). However, White’s appeal arises out of a suit
over his failure to pay property taxes. None of his complaints in his brief about
alleged county employees’ actions and a deceased justice of the peace were before
the trial court, nor was his quo warranto claim before the trial court. A judgment
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must be based upon pleadings, and as the Texas Supreme Court has stated, “[A]
plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in
the absence of trial by consent . . . .” Stoner v. Thompson, 578 S.W.2d 679, 682–83
(Tex. 1979) (quoting Oil Field Haulers Ass’n v. R.R. Comm’n, 381 S.W.2d 183, 191
(Tex. 1964)). White’s unpleaded complaints were not tried by consent and are
irrelevant. Therefore, they are not before this court. See id. White next complains
that he has a deceptive trade practices claim and a complaint about an arrest, but
these claims also were unpleaded and not tried by consent, are irrelevant to this tax
suit, and are not before this court. See id.
White further complains of alleged fraudulent acts by the law firm that
represented the Appraisal District in the suit, complains of unreasonable seizures
under the Fourth Amendment of the United States Constitution, and claims that the
“fruit of the poisonous tree” doctrine applies in this case. To preserve a complaint
for appeal, the record must show that the complaint was made to the trial court by a
timely request, objection, or motion and that the trial court ruled on the request,
objection, or motion—either expressly or implicitly—or refused to rule and the party
objected to the court’s refusal. TEX. R. APP. P. 33.1(a).
A pro se litigant is required to properly present his case on appeal, just as he
is required to properly present his case to the trial court. Valadez v. Avitia, 238
S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (citing Martinez v. El Paso
Cty., 218 S.W.3d 841, 844 (Tex. App.—El Paso 2007, pet. struck)). In addition, the
complaint raised on appeal must be the same as the complaint presented to the trial
court. See Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex. App.—Corpus Christi
2004, pet. denied). Furthermore, a party may not enlarge a ground of error on appeal
to include an objection not asserted at trial. See Pfeffer v. S. Tex. Laborers’ Pension
Tr. Fund, 679 S.W.2d 691, 693 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d
n.r.e.).
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With respect to the complaints outlined above, White has not preserved them
for appeal because he did not object or otherwise bring them to the trial court’s
attention. TEX. R. APP. P. 33.1(a). In addition, White never raised a “facial
challenge” to the Fourth Amendment of the United States Constitution at trial. We
note that a facial challenge may not be raised for the first time on appeal. Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). As a result, that issue is not
before us. See TEX. R. APP. P. 33.1; see also Karenev, 281 S.W.3d at 434. However,
an “as applied” challenge may be brought during or after a trial on the merits. State
ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). But in this case,
White has not briefed an “as applied” challenge. TEX. R. APP. P. 38.1; see
Mathews v. State, 918 S.W.2d 666, 667 n.2 (Tex. App.—Beaumont 1996, pet. ref’d).
In addition, White’s briefing on all of these complaints lacks a table of contents,
index of authorities, statement regarding oral argument, issues presented, summary
of the argument, and arguments that reference relevant parts of the record as well as
relevant case law, as required by the Rules of Appellate Procedure. See TEX. R.
APP. P. 38.1. Pro se litigants are held to the same standards as licensed attorneys.
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). We also “know
of no authority obligating us to become advocates for a particular litigant through
performing their research and developing their argument for them.” Tello v. Bank
One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(quoting Jordan v. Jefferson Cty., 153 S.W.3d 670, 676 (Tex. App.—Amarillo 2004,
pet. denied)). Because White failed to adequately brief these issues, he has waived
them. See TEX. R. APP. P. 38.1, 38.9; see also Fredonia State Bank v. Gen. Am. Life
Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
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B. White’s complaints about service of the suit, service of pleadings,
and notice of the tax hearing are waived.
White asserts that he failed to receive service of process for the tax suit, failed
to receive the amended petition, and failed to receive notice of the tax hearing, which
he claims violated his due process rights under the Fourteenth Amendment to the
United States Constitution and Article I, section 19 of the Texas constitution. He
also claims that the trial court lacked subject-matter jurisdiction. He argues that the
violation of his due process rights requires us to reverse the judgment of the trial
court. We disagree.
“A party waives complaints regarding service of process if he makes a general
appearance. TEX. R. CIV. P. 120 (providing that entrance of general appearance has
same force and effect as if citation has been issued and served as provided by law).”
In re D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied).
“A party enters a general appearance when it (1) invokes the judgment of the court
on any question other than the court’s jurisdiction, (2) recognizes by its acts that an
action is properly pending, or (3) seeks affirmative action from the court.” Id.
(quoting Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (per
curiam)). When a party personally appears and requests the trial court to take
affirmative action on his behalf, the party has generally appeared and waives any
complaint as to service. Id. (citing Mays v. Perkins, 927 S.W.2d 222, 225 (Tex.
App.—Houston [1st Dist.] 1996, no writ)). In addition, the county court at law has
subject-matter jurisdiction in this suit because the amount in controversy was within
the jurisdictional limits of the court. See TEX. TAX CODE ANN. § 33.41(a) (West
2015); see also State v. Gen. Am. Life Ins. Co., 575 S.W.2d 602, 605 (Tex. Civ.
App.—Waco 1978, writ dism’d). Because White filed his motion to dismiss and
requested affirmative relief from the trial court, he entered a general appearance and
has waived any complaints about service of process. The Appraisal District also
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pleaded for an amount within the jurisdictional limits of the county court at law,
which had jurisdiction over the matter. See TEX. GOV’T CODE ANN. § 25.0003 (West
Supp. 2017).
In addition, in a suit for delinquent ad valorem taxes, under Rule 117a of the
Texas Rules of Civil Procedure, once a citation that complies with the rule has been
properly served, the party that served the citation along with any intervening parties
who do not serve citation may obtain a judgment for all taxes becoming delinquent
before the rendition of the judgment “without the necessity of further . . . notice” to
any defendant. TEX. R. CIV. P. 117a(4); see also Mandel v. Lewisville Indep.
Appellees Sch. Dist., 499 S.W.3d 65, 74 (Tex. App.—Fort Worth 2016, pet. denied).
Rule 117a 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. Mandel, 499 S.W.3d at 74. Rule 117a 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. (alteration in
original) (quoting TEX. R. CIV. P. 117a(4)). We note that the Appraisal District
certified that it had served the amended petition on White in accordance with
Rule 21a of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 21a. White never
complained at trial about a lack of service of the amended petition. See TEX. R.
APP. P. 33.1. In addition, although he also complained that he did not receive notice
of the tax hearing, he admitted on appeal that he received notice of the tax hearing.
White additionally complains that he could not appear because he was
incarcerated. Prisoners have a “reasonable right of access to the courts.” Bullock v.
Drake, No. 11-98-00231-CV, 1999 WL 33748040, at *1 (Tex. App.—Eastland
Dec. 8, 1999, no pet.) (not designated for publication) (quoting Hudson v. Palmer,
468 U.S. 517, 523 (1984)). A prison inmate’s right to access the courts does not
entail the right to appear personally. Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex.
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App.—Fort Worth 1989, writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex.
App.—Dallas 1987, no writ); see Ballard v. Spradley, 557 F.2d 476, 480–81 (5th
Cir. 1977). “A prisoner in Texas has a constitutional right of access to the courts,
but only a qualified right to appear personally at a civil proceeding.” Dodd v. Dodd,
17 S.W.3d 714, 717 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
An inmate seeking affirmative relief who cannot appear for trial because of
incarceration must move for a continuance. Brewer, 737 S.W.2d at 423 (citing
Hobbs v. Hobbs, 691 S.W.2d 75, 77 (Tex. App.—Dallas 1985, writ dism’d)). A
prisoner cannot simply ignore a trial setting with impunity. Id. (citing Essex Int’l
Ltd. v. Woods, 646 S.W.2d 322, 324 (Tex. Civ. App.—Dallas 1983, no writ)). We
also note that a court may allow an inmate to appear by telephone, affidavit, or other
effective means. Judd v. Corey-Steele, No. 11-14-00049-CV, 2015 WL 1779056, at
*3 (Tex. App.—Eastland Apr. 16, 2015, pet. denied) (mem. op.); In re Ramirez, 994
S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding). “[T]he term
‘hearing’ does not necessarily contemplate either a personal appearance before the
court or an oral presentation to the court.” Judd, 2015 WL 1779056, at *3 (alteration
in original) (quoting Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357,
359 (Tex. 1998)). Here, White never moved for a continuance and never requested
to appear in person or by some other means. See Judd, 2015 WL 1779056, at *3;
Brewer, 737 S.W.2d at 423. Because White failed to do those things, he has failed
to preserve the complaints for appeal. TEX. R. APP. P. 33.1. We overrule all of
White’s due process complaints.
C. White waived his complaint about an alleged Equal Protection
Clause violation under the Fourteenth Amendment of the United
States Constitution.
White claims that the trial court and the Appraisal District violated his rights
under the Equal Protection Clause of the Fourteenth Amendment of the United States
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Constitution. To assert an equal protection claim, White must establish that he was
treated differently than other similarly situated parties and that he was treated
differently without a reasonable basis. See Plyler v. Doe, 457 U.S. 202, 216 (1982);
Davis v. Tex. Dep’t of Criminal Justice, No. 11-13-00363-CV, 2015 WL 6681219,
at *3 (Tex. App.—Eastland Oct. 29, 2015, pet. denied).
White cites no relevant cases or applicable record cites to support his
argument. Because White failed to adequately brief these issues, he has waived
them. See TEX. R. APP. P. 38.1, 38.9; see also Fredonia State Bank, 881 S.W.2d at
284. Moreover, White’s claim, even if not waived, still fails because he has not
advanced any claim supported by evidence. White does not explain how the trial
court or the Appraisal District violated his equal protection rights other than to
challenge the judgment against him for unpaid taxes. The trial court heard several
delinquent tax cases that involved other parties as part of the same tax hearing, and
all received the same hearing and review by the trial court. Accordingly, we overrule
White’s equal protection complaint.
D. The Appraisal District adduced legally and factually sufficient
evidence of delinquent taxes, and White failed to rebut that prima
facie case with evidence.
In his brief, White challenges the evidence adduced at trial and claims that he
paid his taxes. We construe his complaint as a legal and factual sufficiency
challenge. In a legal sufficiency challenge, we review the evidence at trial to
determine whether it would enable reasonable and fair-minded people to reach the
verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
We must review the evidence in the light most favorable to the verdict, crediting any
favorable evidence if a reasonable factfinder could and disregarding any contrary
evidence unless a reasonable factfinder could not. Id. at 821–22, 827. We may
sustain a no-evidence or legal sufficiency challenge only when (1) the record
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discloses a complete absence of a vital fact, (2) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital fact, (3)
the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4)
the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing
Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
TEX. L. REV. 361, 362–63 (1960)). In contrast, in a factual sufficiency challenge,
we review the evidence to determine whether the evidence in support of a finding is
so weak as to be clearly wrong and unjust or whether the finding is so against the
great weight and preponderance of the evidence as to be clearly wrong and
manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
In this case, the Appraisal District asserted that White had not paid his
property taxes or the accrued interest and penalties, which totaled $1,634.31. The
Appraisal District sued him to collect those amounts. Section 33.47(a) of the Texas
Tax Code provides:
In a suit to collect a delinquent tax, the taxing unit’s current tax
roll and delinquent tax roll or certified copies of the entries showing the
property and the amount of the tax and penalties imposed and interest
accrued constitute prima facie evidence that each person charged with
a duty relating to the imposition of the tax has complied with all
requirements of law and that the amount of tax alleged to be delinquent
against the property and the amount of penalties and interest due on that
tax as listed are the correct amounts.
TAX CODE § 33.47(a). The Appraisal District offered, and the trial court admitted,
certified copies of tax records for White’s property that showed the amount of tax
owed for specific periods, including all interest accrued and penalties imposed.
These exhibits are prima facie evidence of the delinquent taxes, penalties, and
interest due on the properties. See Reinmiller v. Cty. of Dallas, 212 S.W.3d 835,
836–37 (Tex. App.—Eastland 2006, pet. denied) (citing Davis v. City of Austin, 632
S.W.2d 331, 333 (Tex. 1982); Phifer v. Nacogdoches Cty. Cent. Appraisal Dist., 45
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S.W.3d 159, 174 (Tex. App.—Tyler 2000, pet. denied)). After the taxing authority
establishes its prima facie case, under Section 33.47(a), the burden shifts to the
taxpayer to show, by competent evidence, that he has paid the full amount of taxes,
penalties, and interest or that there is some other defense that applies to his case.
TAX § 33.47(a); Reinmiller, 212 S.W.3d at 837 (citing Nat’l Med. Fin. Servs., Inc. v.
Irving Indep. Sch. Dist., 150 S.W.3d 901, 906 (Tex. App.—Dallas 2004, no pet.)).
Once the Appraisal District established its prima facie case, White was required to
come forward with evidence that would rebut the presumption. See Reinmiller, 212
S.W.3d at 837.
White did not appear in person at the tax hearing or make arrangements to
appear via telephone or through some other method to present evidence to rebut the
prima facie case. He did not file evidence with the county clerk and did not present
evidence at trial that would have challenged the prima facie case. In addition, the
documents that White did file with the county clerk are not evidence. See
Rodriquez v. Tex. Farmers Ins. Co., 903 S.W.2d 499, 505 (Tex. App.—Amarillo
1995, writ denied) (pleadings are not competent evidence and uncertified copies of
pleadings are not evidence). Again, pro se litigants are held to the same standard as
licensed attorneys. Mansfield State Bank, 573 S.W.2d at 184–85. White, who chose
to represent himself, bore the burden to come forward with evidence to challenge
the prima facie case adduced by the Appraisal District that he owed property taxes
along with interest and penalties, as outlined in the Appraisal District’s exhibits. See
Reinmiller, 212 S.W.3d at 836–37. Having considered White’s challenge to the
judgment of the trial court, we hold that the Appraisal District adduced legally and
factually sufficient evidence of delinquent taxes, interest, and penalties, which White
failed to rebut. As a result, the trial court did not abuse its discretion when it entered
judgment in favor of the Appraisal District. We overrule White’s sufficiency-of-
the-evidence complaints.
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V. This Court’s Ruling
We affirm the judgment of the trial court.
PER CURIAM
December 14, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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