C. Dale Langston and Sue Langston v. CIty of Houston, Harris County, Pasadena Independent School District and San Jacinto Community College

• Court: Court of Appeals of Texas
• Decided: August 6, 2009
• Docket: 14-08-00063-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 6, 2009

Affirmed and Memorandum Opinion filed August 6, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00063-CV

C. DALE LANGSTON AND SUE LANGSTON, Appellants

V.

CITY OF HOUSTON, HARRIS COUNTY, PASADENA INDEPENDENT SCHOOL DISTRICT, AND SAN JACINTO COMMUNITY COLLEGE, Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2006-76672

M E M O R A N D U M   O P I N I O N

This appeal arises out of a bill-of-review case brought by two taxpayers who had an adverse judgment rendered against them in delinquent-property-tax litigation.  The trial court granted the taxing authorities= summary judgment motion  and dismissed the taxpayers= bill-of-review action.  Under the circumstances of this case, the requirement that the taxpayers be free from fault or negligence is negated as a matter of law by their failure to pursue a direct appeal of the judgment in question.  The taxpayers failed to preserve error as to their argument regarding an alleged constitutional violation.  Accordingly, we affirm the trial court=s summary judgment. 

                        I.  Factual and Procedural Background

In a prior suit in the trial court below, appellees/defendants City of Houston, Harris County, Pasadena Independent School District, and San Jacinto Community College (hereinafter collectively the ATaxing Authorities@) sought to collect delinquent property taxes on real property owned by appellants/plaintiffs C. Dale Langston and Sue Langston (hereinafter collectively the ALangstons@).  In September 2001, the Langstons were served with process in the suit.  The Langstons did not retain legal counsel and instead represented themselves.  According to Mr. Langston=s affidavit, after receiving notice of the trial setting in this suit, the Langstons contacted one of the opposing counsel to let them know that Mr. Langston was currently in a hospital in the Phillippines.  The unnamed attorney allegedly told the Langstons that they Adid not need to attend the hearing because they would only be reviewing tax accounts and nothing would be final.@  The Langstons did not appear at the trial before the tax master on April 30, 2002, and based on the master=s recommendation, the trial court signed a judgment on June 13, 2002 against the Langstons and in favor of the Taxing Authorities (the AJudgment@).  The Langstons then retained counsel and timely filed a motion for new trial, which was overruled by operation of law.  The Langstons did not pursue an appeal from the Judgment

About three and a half years later, on December 4, 2006, the Langstons filed this action in the trial court seeking to set aside the Judgment by means of an equitable bill of review.  The Taxing Authorities filed traditional motions for summary judgment asserting various grounds.  The trial court granted summary judgment in favor of the Taxing Authorities on the ground that the Langstons= failure to pursue a direct appeal from the Judgment precluded them as a matter of law from obtaining relief in the bill-of-review action.  The Langstons now challenge the trial court=s traditional summary judgment in favor of the Taxing Authorities.

                                                    II.  Analysis

In a traditional motion for summary judgment, if the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). 

A.      Does the taxpayers= failure to pursue a direct appeal from the judgment preclude the setting aside of the judgment through an equitable bill of review?

Under their first issue, the Langstons argue that the summary-judgment evidence raises a genuine issue of material fact as to each of the essential elements that the Langstons needed to prove to obtain relief under an equitable bill of review.  The Langstons were served with process in the property-tax collection suit.  They had notice of the trial setting.  They were aware of the trial court=s rendition of the Judgment.  The Langstons timely filed a motion for new trial; however, they did not pursue a direct appeal of the Judgment.  Though the Langstons allege that an opposing attorney made a fraudulent representation that prevented them from attending the trial in the tax-collection suit, the Langstons do not allege that they were prevented from pursuing a direct appeal from the Judgment by any fraud, accident, or wrongful act of the Taxing Authorities.  Under these circumstances, the requirement that the Langstons be free from fault or negligence is negated as a matter of law, and the trial court properly granted summary judgment in favor of the Taxing Authorities.  See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (affirming summary judgment in favor of bill-of-review-action defendants under these circumstances); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 295B96 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (same).  Accordingly, we overrule the Langstons= first issue.

B.      Did the Supreme Court of Texas in Gold v. Gold change the law so that parties eligible for bill-of-review relief are not required to file a restricted appeal?

Under their second issue, the Langstons point out that, to be eligible for bill-of-review relief, they were not required to file a restricted appeal.  At oral argument, the Langstons argued that the Supreme Court of Texas, in Gold v. Gold, changed the law so that parties in the position of the Langstons no longer need to pursue a direct appeal.  See Gold v. Gold, 145 S.W.3d 212, 213B14 (Tex. 2004) (per curiam).  We disagree.  The Gold court expressly reaffirmed a line of cases providing that relief by a bill of review is available Aonly if a party has exercised due diligence in pursuing all adequate legal remedies . . . [and not] [i]f legal remedies were available but ignored.@  Id. at 214 (quoting Wembley Inv. Co. v. Herrerra, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam)).  However, the Gold court concluded that this line of cases does not apply to the failure to file a restricted appeal.  See id. at 213B14.  Because the Langstons filed a timely motion for new trial, they were unable to pursue a restricted appeal.  See Tex. R. App. P. 30.  Although the Langstons did not have to file a restricted appeal to be eligible for an equitable bill of review, the Gold court did not change the requirement that parties in the Langstons= situation have to pursue a direct appeal to be eligible for an equitable bill of review.  See Gold, 145 S.W.3d at 213B14.  Accordingly, we overrule the Langstons= second issue.

C.      Did the taxpayers preserve error as to their constitutional argument?

Under their third issue, the Langstons argue that the Taxing Authorities= purported double taxation of the Langstons= real property violates article 8, section 1 of the Texas Constitution.  See Tex. Const. art. VIII, ' 1.  The Langstons also argue that equity demands that a remedy be made to enforce their constitutional right to be free from double taxation.  Though the Langstons argue otherwise in their reply brief, the record reflects that they did not voice these complaints in the trial court.  While they mentioned the alleged double taxation, they did not mention the Texas Constitution or any alleged constitutional violation, nor did they argue that equity must provide a remedy.  Therefore, they failed to preserve error as to the third issue.  See Tex. R. App. P. 33.1(a); see, e.g., In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve issue for appellate review, including constitutional error, party must present to trial court timely request, motion, or objection, state specific grounds therefor, and obtain ruling).

In their reply brief, the Langstons assert that, if this court concludes error was not preserved, then this court should review the issue under the doctrine of fundamental error.  The Supreme Court of Texas, however, has concluded that, in the context of civil appeals, fundamental error is a narrow doctrine.  See In re B.L.D., 113 S.W.3d 340, 350B52 (Tex. 2003).  The alleged constitutional violation that the Langstons assert in their third issue does not fall within the narrow scope of the fundamental error doctrine recognized by the Supreme Court of Texas.  See id.  Therefore, fundamental error does not apply to the Langstons= constitutional complaint.  See id.   Because the Langstons failed to preserve error, we overrule their third issue.

Having overruled all of the Langstons= issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Boyce.