Robert Steven Childress v. Palo Pinto County

Affirmed and Memorandum Opinion filed September 30, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00783-CV
ROBERT STEVEN CHILDRESS, Appellant
V.
PALO PINTO COUNTY, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. T21347
MEMORANDUM OPINION
Pro se appellant Robert Steven Childress brings four issues on appeal
challenging the trial court’s judgment in favor of various taxing authorities (the
Taxing Authorities) for delinquent property taxes.1 We affirm.
1
The lawsuit was filed by Palo Pinto County, City of Mineral Wells, Graford
Independent School District, and Mineral Wells Independent School District against Diana
Childress Barbash, Henry Michael Childress, Robert Steven Childress, and Inheritance Funding
Company. Robert Steven Childress and Palo Pinto County are the only parties on appeal. By the
time of trial, the plaintiffs had amended their suit to exclude Graford Independent School District
The Taxing Authorities filed a foreclosure suit for delinquent property taxes
against the defendants, including Childress, as owners of or those claiming an
interest in the subject property. Childress was served with process and filed an
answer. A trial date was scheduled, and Childress filed a motion for continuance.
The trial was rescheduled, and Childress filed a second motion for continuance,
which the trial court denied. The trial court conducted a bench trial without any
defendants present, rendered an in rem judgment against the property, and ordered
foreclosure of the Taxing Authorities’ tax liens and the property sold to satisfy the
liens.2 The trial court did not render a personal judgment against any of the
defendants.
On appeal, Childress contends that (1) the trial court lacked subject matter
jurisdiction because the property was part of a probate estate at the time of trial and
the case had to be tried in probate court; (2) the trial court abused its discretion in
denying his motion for continuance and he was denied due process because he did
not have the opportunity to attend the trial; (3) the trial court erred in granting an in
rem judgment; and (4) he and two codefendants were not properly served with
process. We address subject matter jurisdiction first.
Subject Matter Jurisdiction. Childress argued for the first time in his reply
brief that the trial court lacked jurisdiction over the case because the subject
property is part of a probate estate and the probate court had exclusive jurisdiction
over the tax delinquency suit. An appellant generally may not raise a new issue in
his reply brief that was not discussed in his original brief. Yeske v. Piazza Del Arte,
as a plaintiff. We refer to the plaintiffs in the live petition as the “Taxing Authorities.” This case
was transferred to our court from the Eleventh Court of Appeals; therefore, we must decide the
case in accordance with its precedent if our decision would be otherwise inconsistent with its
precedent. Tex. R. App. P. 41.3.
2
An attorney for defendant Diana Childress Barbash appeared at trial.
2
Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
However, because subject matter jurisdiction is essential to the authority of a court
to decide a case, the absence of subject matter jurisdiction cannot be waived and
may be raised at any time. Moody v. Moody, 613 S.W.3d 707, 715 (Tex. App.—
Houston [14th Dist.] 2020, pet. filed); San Jacinto River Auth. v. Ogletree, 594
S.W.3d 833, 838 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
We review the existence of subject matter jurisdiction de novo. Ogletree,
594 S.W.3d at 838. The party seeking to establish a lack of subject matter
jurisdiction must show that the pleadings do not contain facts to affirmatively
demonstrate the trial court’s jurisdiction or challenge the existence of jurisdictional
facts with evidence that the trial court lacks subject matter jurisdiction. See Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
Here, the pleadings do not demonstrate and no evidence on this record
shows that the subject property was part of a pending probate proceeding when the
tax delinquency lawsuit was filed and when the case went to trial. An attorney
appeared at trial to represent one of the defendants, Diana Childress Barbash. The
attorney asked the trial court to render an in rem judgment against the subject
property because Barbash did not want the property. The attorney thought “it was
part of [the] parent’s estate of some sort.” But that is not evidence of a pending
probate proceeding. Accordingly, Childress failed to meet his burden
demonstrating that the trial court lacked subject matter jurisdiction. See id. We
overrule Childress’s issue challenging the trial court’s subject matter jurisdiction.
Motion for Continuance and Due Process Challenges. In his first issue,
Childress complains that the trial court denied his second motion for continuance
and contends that he was deprived of due process because he did not have an
opportunity to attend the trial. Childress preserved error on his challenge to the
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trial court’s denial of his motion for continuance because the trial court ruled on it.
See Clarke v. Hunters Glen Cmty. Ass’n, No. 14-03-00971-CV, 2004 WL
1313294, at *1 (Tex. App.—Houston [14th Dist.] June 15, 2004, no pet.) (mem.
op.) (“To preserve error on a trial court’s denial of a motion for continuance, the
movant must obtain a ruling from the trial court.”) (citing Tex. R. App. P.
33.1(a)(2)). But he did not raise his due process challenge below, so he has not
preserved that issue for appeal. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)
(citing Tex. R. App. P. 33.1); In re F.E.N., 542 S.W.3d 752, 768 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (“Due process violations must be raised in the
trial court for them to be preserved on appeal.”).
We review the trial court’s denial of a motion for continuance for an abuse
of discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.
2004); In re S.M.H., 523 S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017,
no pet.); In re D.R.T., No. 11-12-00059-CV, 2014 WL 887342, at *2 (Tex. App.—
Eastland Feb. 28, 2014, no pet.) (mem. op.). A trial court abuses its discretion only
if its ruling was arbitrary, unreasonable, or without reference to any guiding rules
or principles. In re S.M.H., 523 S.W.3d at 797. Motions for continuance are
governed by Rule 251 of the Texas Rules of Civil Procedure. That rule provides
that a motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, consent of the parties, or by operation of law. Tex. R.
Civ. P. 251.
As discussed, Childress filed two motions for continuance. The trial court
continued the trial one time but denied the second motion. Neither motion was
supported by an affidavit, and the record does not reveal an agreement by the
parties or an argument that a continuance should have been granted by operation of
law. Absent one of these grounds, we must presume that the trial court did not
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abuse its discretion by denying the requested continuance.3 In re S.M.H., 523
S.W.3d at 797 (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986), and
W.W. Webber, L.L.C. v. Harris Cty. Toll Road Auth., 324 S.W.3d 877, 880 (Tex.
App.–Houston [14th Dist.] 2010, no pet.)). We overrule Childress’s first issue.
In Rem Judgment. In a somewhat convoluted argument in issue two,
Childress contends that the trial court erred in granting in rem judgment against the
property instead of granting a personal judgment against codefendant Diane
Childress Barbash. According to Childress, Barbash was the executor of the
probate estate and was charged with taking care of estate property and paying
property taxes. As discussed above, no evidence on this record shows that the
subject property was part of a probate estate at the time the lawsuit was filed and
went to trial. Moreover, issues challenging Barbash’s purported failure to pay
property taxes as executor of any pending probate estate were not raised below and
are waived. See Tex. R. App. P. 33.1; see also Greene v. Farmers Ins. Exch., 446
S.W.3d 761, 764 n.4 (Tex. 2014) (noting appellate courts “do not consider issues
that were not raised in the courts below,” although parties can construct new
arguments in support of issues properly before the appellate court).
Tax liens attach upon the land rather than upon the person, and a foreclosure
suit is a proceeding “in rem” rather than “in personam.” Tierra Sol Joint Venture v.
City of El Paso, 311 S.W.3d 492, 499 (Tex. App.—El Paso 2009, no pet.); Phifer
v. Nacogdoches Cty. Cent. Appraisal Dist., 45 S.W.3d 159, 168 (Tex. App.—Tyler
2000, pet. denied). Thus, the trial court was required to render an in rem judgment
for foreclosure and did not err in failing to render a personal judgment against
3
Pro se litigants and appellants are held to the same standards as licensed attorneys and
must comply with applicable laws and procedures. Rogers v. City of Houston, No. 14-19-00196-
CV, 2021 WL 2325193, at *4 n.1 (Tex. App.—Houston [14th Dist.] June 8, 2021, no pet. h.);
Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 352 (Tex. App.—Eastland 2008, no pet.).
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Barbash.4 See Fenlon v. Harris Cty., 569 S.W.3d 783, 796 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (holding trial court erred in rendering personal judgment
for foreclosure based on delinquent taxes because foreclosure suits are in rem). We
overrule Childress’s second issue.
Service of Process. Childress contends in his third issue that defendants
Bianca Harrison and Henry Childress were not properly served. Childress lacks
standing to complain about improper service on his codefendants. See In re V.A.,
390 S.W.3d 414, 418 (Tex. App.—San Antonio 2012, pet. denied); In re H.B.N.S.,
No. 14-05-00410-CV, 2007 WL 2034913, at *3 (Tex. App.—Houston [14th Dist.]
July 17, 2007, pet. denied) (mem. op.); Sw. Const. Receivables, Ltd. v. Regions
Bank, 162 S.W.3d 859, 864 (Tex. App.—Texarkana 2005, pet. denied). He “may
not complain of errors which do not injuriously affect him or which merely affect
the rights of others.” In re V.A., 390 S.W.3d at 418 (quoting Jackson v. Fontaine’s
Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973)). Childress has not shown that his
interests were affected by any failure by the Taxing Authorities to properly serve
his codefendants. See id.Childress also asserts that he was not properly served, but he filed an
answer. Filing an answer constitutes a general appearance, thereby dispensing with
the need for the issuance and service of citation and waiving any complaints about
service. Tex. R. Civ. P. 121 (“An answer shall constitute an appearance of the
defendant so as to dispense with the necessity for the issuance or service of citation
4
We note that a personal judgment on a debt and foreclosure of the property securing that
debt are separate but cumulative remedies under Texas law—suit on the debt is an “in personam”
proceeding against the property owner; foreclosure is an “in rem” proceeding against the
property, subjecting the property to payment of the indebtedness secured by the lien. CVN
Group, Inc. v. Delgado, 95 S.W.3d 234, 248 (Tex. 2002) (Hankinson, J., dissenting). Here, the
trial court did not award money damages on the debt. The attorney for the Taxing Authorities
told the trial court that they would not seek personal liability against the defendants because the
defendants were heirs.
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upon him.”); see also In re A.L.H., 515 S.W.3d 60, 87 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied). According to Childress, the default judgment in this case
is invalid because of improper service. Because the trial court’s judgment was
rendered after Childress made an appearance in the case, he was entitled to set it
aside only if he could show he did not appear for trial because he did not receive
notice of the trial setting. Cf. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d
390, 390–91 (Tex. 1989). Here, Childress admits that he received notice of the trial
setting. Childress’s complaints regarding improper service are without merit. We
overrule his third issue.
We affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
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