Albert Earl Coleman and Maraan J. Coleman v. Snook Independent School District

• Court: Court of Appeals of Texas
• Decided: June 10, 2004
• Docket: 14-03-00006-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 10, 2004

Affirmed and Memorandum Opinion filed June 10, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00006-CV

ALBERT EARL COLEMAN AND MARAAN J. COLEMAN, Appellants

V.

SNOOK INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 21^st District Court

Burleson County, Texas

Trial Court Cause No. 8534

M E M O R A N D U M   O P I N I O N

Albert Earl Coleman and Maraan J. Coleman (AColemans@) appeal from a judgment rendered against them in an ad valorem property tax suit.  Snook Independent School District (ASnook@) originally brought suit against them for delinquent taxes, penalties and interest owed, and foreclosure of its tax lien.  After a bench trial, the trial court entered a judgment in favor of Snook that included taxes, penalties, interest, and attorney fees.  The Colemans assert three points of error on appeal: (1) the trial court committed gross error in granting a judgment in favor of Snook; (2) the trial court abused its discretion in denying the Colemans= motion for summary judgment; and (3) the trial court erred in not entering an order requiring Snook to waive penalty and interest on the delinquent taxes.  We affirm.

This case concerns roughly 10.95 acres out of the J. Kincaid Survey, Abstract 33, in Burleson County.  Snook=s original petition alleged the Colemans were delinquent for taxes on a 16-acre tract of land.  However, after a partition and a conveyance, the tract had been reduced to 10.95 acres.  The Colemans continue to use this discrepancy as a basis for their complaints.  It is clear from the record, however, that this discrepancy is no longer an issue.  Snook does not challenge the fact that the Colemans only own 10.95 acres.  The Burleson County Appraisal District=s records were corrected prior to trial.  Morever, the trial court=s judgment ordered the Colemans to pay the taxes owed on 10.95 acres. 

The present action was preceded by two default judgments that were vacated after the Colemans complained they had not received adequate service of process.   In addition to their motion for summary judgment, which is the subject of their second point of error, the Colemans filed a counter petition asserting a cause of action for damages.  They allege that Snook=s claims should be barred by res judicata in light of the two vacated default judgments.  Specifically, they allege that Snook=s claims are Awithout merit, and designed to purposely harass, annoy, and cause [the Colemans] undue hardship and expense.@  The Colemans pleaded in their counter petition that they had suffered actual damages of $10,000.

In their first point of error the Colemans contend the trial court erred in granting a judgment in favor of Snook.  Snook asks us to overrule the Colemans= point of error because of inadequate briefing.  See Tex. R. App. P. 38.1(h) (requiring briefs to Acontain a clear and concise argument for the contentions made@).  In its brief, Snook points out that is unable to identify the legal basis for the Colemans= first point of error.  As a result, Snook presents multiple arguments in an attempt to address appellant=s nebulous point of error.  We, too, are unable to identify the legal basis for the Colemans= argument on appeal.  Accordingly, we overrule the first point of error.    

The Colemans argue in their second point of error that the trial court abused its discretion in denying their motion for summary judgment.  Absent a statutory exception, an appellate court may not review an order that is not final.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  An order denying a motion for summary judgment is interlocutory and not appealable.  Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980) (citation omitted).  Accordingly, we overrule the Colemans= second point of error. 

In their third point of error, the Colemans argue the trial court erred by not waiving the penalties and interest due on the outstanding taxes.  The Colemans contend they asked Snook to waive the penalties and interest.  They claim that Snook refused, arguing that it had no authority to do so.  The Colemans direct us to section 33.011(a) of the Tax Code and assert that Snook was incorrect in its belief.  Tex. Tax Code Ann. ' 33.011(a) (Vernon Supp. 2004)  Thus, the Colemans ask this court to issue an order waiving penalties and interest.  

Notwithstanding several amendments, section 33.011 clearly requires payment of the entire amount due before penalties and interest may be waived.  Tex. Tax Code Ann. ' 33.011(a) (Vernon Supp. 2004); see also Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 295 (Tex. App.CDallas 2001, no pet.).^[1]  From the record, it is clear that the Colemans never tendered the amount due.  The discussion of  waiver of penalties and interest occurred during the redirect examination of Mrs. Coleman.  Although not entirely clear from the record, it appears that the request for waiver of penalties and interest was raised as part of the claim for damages asserted in the Colemans= counter petition. 

Q: (By [the Colemans= attorney]) Mr. [sic] Coleman, in case the Judge decides to award the Plaintiff some money, are you requesting that any penalty or interest that may have accrued be waived in bringing this action?  Are you making that request?

A: Well, yes, if he finds grounds for awarding in favor of them, but I don=t have that same picture in mind based on the documents that I have because he laid this aside two or three times; but, yes, if so, without penalty and interest. 

We find nothing in section 33.011 that would require Snook to waive the penalty and interests assessed under the record presented here.  Accordingly, the Colemans= final point of error is overruled. 

The judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 10, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  The statute has undergone amendments during the most recent legislative sessions.  E.g., Act approved May 27, 2003, 78th Leg., R.S., ch. 151, ' 2, 2003 Tex. Gen. Laws 226.  However, we need not discuss any amendment as our decision depends only on the payment prerequisite.  The statute currently reads:

(a) The governing body of a taxing unit:

(1) shall waive penalties and may provide for the waiver of interest on a delinquent tax if an act or omission of an officer, employee, or agent of the taxing unit . . . caused or resulted in the taxpayer=s failure to pay the tax before delinquency and if the tax is paid not later than the 21st day after the date the taxpayer knows or should know of the delinquency.

Tex. Tax Code Ann. ' 33.011(a) (Vernon Supp. 2004).