Ross Mandel and Lea Mandel v. Lewisville Independent School District, County of Denton, City of Plano, and Claussner Holdings, LLC

499 S.W.3d 65, 2016 Tex. App. LEXIS 6983, 2016 WL 3569257
Court of Appeals of Texas·Decided June 30, 2016·No. NO. 02-15-00222-CV·Published·Cited by 10 cases

Opinion

OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

This is an appeal from a denial of a bill of review. 1 In one issue that contains several supporting arguments, appellants Ross Mandel and Lea Mandel contend that the trial court’s November 2012 default judgment against them violated their right to due process and that the trial court therefore erred -by granting the summary judgment motions filed in the bill of review proceeding by appellees Lewisville Independent School District (Lewisville ISD), County of Denton (Denton County), City of Plano (Plano), and Claussner Holdings, LLC (Claussner). We affirm.

*68 Background Facts

In a prior, restricted appeal that involved all of the same parties at issue here (other than Claussner), we affirmed the trial court’s default judgment against appellants for delinquent ad valorem taxes on their Plano residence. 2 We set out the chronology, of events between the parties as follows:

On July 29, 2011, Lewisville ISD filed its original petition against the Mandéis ... for payment of delinquent 2010 property taxes on the Mandéis’ home. Lea Mandel was served by personal service of process on August 5, 2011. Ross Mandel was served by personal service of process on August 16, 2011. The Mandéis did not answer.... While the case was pending, at some point in the following months, [a lienholder] paid the delinquent 2010 taxes.
Lewisville ISD filed its first amended original petition on June 7, 2012, eliminating its cause of action for 2010 taxes and alleging that the Mandéis were delinquent on their 2011 taxes. Lewisville ISD’s certificate of service appended to its amended petition stated that it served the Mandéis with a copy of the amended petition pursuant to Texas Rule of Civil Procedure 21a.[ 3 ] The Mandéis did not answer..'.. On November 2, 2012, [Plano] intervened. On November 13, 2012, [Denton County] intervened. [Plano] and [Denton County] each sought to recover delinquent 2011 property' taxes owed, by the Mandéis.
On November 15, 2012, the case was called to trial. The Mandéis did not appear.... On the same date, the trial court signed a final default judgment against the Mandéis ... for the amounts owed to Lewisville ISD, [Plano], and [Denton County] for the delinquent 2011 taxes, including penalties and interest until paid. The judgment also ordered foreclosure of the tax liens on the property, issuance of an order of public sale of the property, payment to the taxing entities of the amounts owed from the proceeds, and issuance of a writ of possession to the purchaser of the property at the sale.
On November 16, 2012, the Denton County District Clerk mailed a notice of the judgment to each of the Mandéis, as well as a billing statement for the court costs. On January 4, 2013, the Denton County District Clerk issued an order of sale for foreclosure of the tax liens and for court costs recovered in the default judgment. The Denton County Sheriff published notice of the sale and on March 13, 2013, mailed a copy of the notice to the Mandéis. The property was sold at a sheriffs sale on the Den-ton County Courthouse steps to Clauss-ner on April 2, 2013.[ 4 ]

In the restricted appeal, appellants argued that (1) the citation by which Ross was served with Lewisville ISD’s original petition did not strictly comply with certain rules of civil procedure, (2) Lewisville ISD was required to serve them with a new citation when it filed its amended petition because the amended petition as *69 serted a new cause of action for a different tax year, (3) Plano and Denton County were required to (and failed to) serve appellants with citation when they intervened, and (4) they were denied due process because they did not receive adequate notice of the order of sale of the property. 5 We rejected each of these arguments. 6

Before we issued our decision in the restricted appeal, appellants filed a petition for bill of review in the trial court, contending that the November 2012 default judgment is void. They argued that rule of civil procedure 21a required Lewis-ville ISD to serve its amended petition on them and that Lewisville ISD did not do so. They raised the same contention with respect to the intervention petitions filed by Plano and Denton County. Finally, they contended that the resulting sheriffs sale of the home was improper because the default judgment .was taken without proper service and was therefore allegedly void.

Appellees filed answers to the petition for bill of review. Appellants amended the petition; they again contended that their right to due process had been violated because they had not been served under rule 21a with Lewisville ISD’s amended petition or the intervention petitions filed by Plano and Denton County. They contended that the November 2012 judgment was obtained in violation of their due process rights “because they were not served with the pleadings upon which the default judgment was based.”

All parties sought summary judgment. Appellants argued that they were not served with Lewisville ISD’s amended petition or the other taxing entities’ intervention petitions under rule 21a and that those petitions asserted a new cause of action and sought more onerous relief than Lewisville ISD’s original petition. Appellants contended, “Due process does not permit a default judgment on a claim never served on the defendants. As such, this Court should ... set aside the default judgment.” Appellants attached a declaration to their motion in which Boss stated that neither he nor Lea received Lewisville ISD’s amended petition or the intervention petitions filed by Denton County and Plano. They also contended that Lewisville ISD had admitted that it had not served the amended petition upon appellants. 7 They contended that when taxing entities are on notice that service has not been received by a citizen, the entities have a due process obligation to take “additional steps to provide citizens notice before taking their property.” Finally, they argued that because they did not receive constitutionally adequate notice of the taxing entities’ claims for the 2011 taxes, they were not required to prove traditional. bill-of-review elements, including that they had a meritorious claim or defense.

Claussner argued that appellants’ claim seeking to void the sheriffs sale of the property, which was conducted in accordance with the trial court’s order of sale, was legally unsupported even if they prevailed in setting aside the default judgment. Claussner contended that appellants’ only recourse, if any, was “against the Taxing Authorities.” It argued, “Even if this Court were to set aside the Default Judgment (which it cannot and should not), *70 this Court may not set aside the tax sale to Claussner.”

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Ross Mandel and Lea Mandel v. Lewisville Independent School District, County of Denton, City of Plano, and Claussner Holdings, LLC, 499 S.W.3d 65, 2016 Tex. App. LEXIS 6983, 2016 WL 3569257 (Tex. Ct. App. 2016).

499 S.W.3d 65 (Ross Mandel and Lea Mandel v. Lewisville Independent School District, County of Denton, City of Plano, and Claussner Holdings, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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