Tonya Allen DDS, P.A. v. Smith County Appraisal District

Opinion

ACCEPTED 12-15-00029-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/2/2015 4:49:31 PM CATHY LUSK CLERK

NO 12-15-00029-CV

IN THE TWELFTH COURT OF APPEALS FILED IN 12th COURT OF APPEALS TYLER, TEXAS at Tyler, Texas 7/2/2015 4:49:31 PM CATHY S. LUSK ____________________ Clerk

TONYA ALLEN DDS, P.A.,

Appellant RECEIVED IN 12th COURT OF APPEALS V. TYLER, TEXAS 7/2/2015 4:49:31 PM SMITH COUNTY APPRAISAL DISTRICT, CATHY S. LUSK Clerk

Appellee

____________________

Appealed from the 114th Judicial District Court of Smith County, Texas ________________________________________________________________________

APPELLANT’S POINTS OF ERROR AND BRIEF IN SUPPORT THEREOF ________________________________________________________________________

The Eaton Law Firm, PLLC Michael W. Eaton Texas Bar No. 06383800 1701 W. Northwest Highway Suite 100 Grapevine, Texas 76051 Tel. (817) 431-1111 Fax (817) 431-1180

ATTORNEYS FOR APPELLANT TONYA ALLEN DDS, P.A. TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ……………………………………. 3

INDEX OF AUTHORITIES…………………………………………………… 4

STATEMENT OF THE CASE…………………………………………………... 6

ISSUES PRESENTED…………………………………………………………... 7

STATEMENT OF FACTS……………………………………………………… 8

SUMMARY OF THE ARGUMENT…………………………………………... 9

ARGUMENT…………………………………………………………………… 9

Issue 1: The trial court erred in finding that appellant filed to exercise reasonable diligence in obtaining service of citation upon appellee, or in the alternative, the trial court erred in failing to find that a fact question existed as to the exercise of reasonable diligence by appellant in effecting service upon appellee. ..……....................................................................…. … 9

PRAYER………………………………………………………………………. 14

CERTIFICATE OF SERVICE………………………………………………... 15

APPENDIX…………………………………………………………………… 16

2 NO 12-15-00029-CV

IN THE THIRTEENTH COURT OF APPEALS

at Tyler, Texas

____________________

TONYA ALLEN DDS, P.A.,

Appellant

V.

SMITH COUNTY APPRAISAL DISTRICT,

Appellee

_________________________________________________________________ IDENTITY OF PARTIES AND COUNSEL _________________________________________________________________

Pursuant to Tex. R. App. P. 53.2(a), Comunidad Appellant, LLC certifies that the

following is a complete list of the names of the parties and the names and address of their

counsel:

Party Counsel Appellant, Plaintiff Tonya Allen DDS, Michael W. Eaton, SBN 06383800 P.A. The Eaton Law Firm, PLLC 1701 W. Northwest Highway, Suite 100 Grapevine, Texas 76051 Telephone: 817/431-1111 Facsimile: 817/431-1180

Appellee, Smith County Ms. Sandra Griffin Defendant Appraisal District Perdue, Brandon Fielder, Collins & Mott LLP 3301 Northland Drive, Suite 505 Austin, Texas 78731 Phone: (512) 302-0190 Fax : (512) 323-6963

3 INDEX OF AUTHORITIES

CASES

Bilinsco Inc. v. Harris County Appraisal Dist., 321 S.W.3d 648 (Tex.App. - Houston [1st Dist.] 2010, pet. denied);

Butler v. Ross, 836 S.W.2d 833 (Tex.App. -Houston [l81 Dist.] 1992, no writ)

Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990)

Hamilton v. Goodson, 578 S.W.2d 448 (Tex.Civ.App.- Houston [14th Dist.] 1978, no writ)

Hansler v. Mainka, 807 S.W.2d 3, (Tex.App.-Corpus Christi 1991, no writ)

Li v. University of Texas Health Science Ctr., 984 S.W.2d 647 (Tex.App.-Houston [14th Dist.] 1998, pet. denied)

Webster v. Thomas, 5 S.W.3d 287 (Tex.App.-Houston [14th Dist.] 1999, no pet.)

RULES

Texas Rule of Civil Procedure 166a Texas Rule of Evidence 201(b) Texas Rule of Evidence 201(d) Texas Rule of Evidence 201(f)

CONSTITUTION

Texas Constitution Article VIII

STATUTES

Texas Tax Code Sec. 42.21(a)

4 NO. 14-10-00167-CV

COMUNIDAD APPELLANT, LLC

Appellant

V.

CITY OF NASSAU BAY

Appellee

APPELLANT’S BRIEF _________________________________________________________________

Tonya Allen DDS, P.A., Appellant herein, submits its brief. Appellant will be

referred to as Appellant/Allen. Appellee, Smith County Appraisal District, will be

referred to as Appellee/CAD.

5 STATEMENT OF THE CASE

Nature of the Case: This case is the result of Allen’s appeal of the valuation of

certain real property and improvements it owns in Smith County. Following an

administrative hearing before the Smith County Appraisal Review Board (“ARB”), Allen

filed the cause being appealed in the 114th Judicial District Court of Smith County. The

suit was timely filed within the sixty (60) days required by statute, but service of process

was delayed, as explained in detail herein. The CAD filed a Motion for Summary

Judgment, asking the Court to grant judgment to the CAD because even though the suit

was timely filed, service was effected more than sixty (60) days after the ARB final

order was entered.

6 ISSUES PRESENTED FOR REVIEW

ISSUE 1: THE TRIAL COURT ERRED IN FINDING THAT APPELLANT FILED TO EXERCISE REASONABLE DILIGENCE IN OBTAINING SERVICE OF CITATION UPON APPELLEE, OR IN THE ALTERNATIVE, THE TRIAL COURT ERRED IN FAILING TO FIND THAT A FACT QUESTION EXISTED AS TO THE EXERCISE OF REASONABLE DILIGENCE BY APPELLANT IN EFFECTING SERVICE UPON APPELLEE.

7 STATEMENT OF FACTS

Appellant/Plaintiff Tonya Allen DDS, P.A. owns certain real property and

improvements in Smith County, (the “Property”). CAD assessed a value on the Property

which Allen disagreed with, and the entity exercised its legal right to protest such

valuation by filing a protest with the CAD. The protest was heard by he Smith County

Appraisal Review Board “ARB”), and after such hearing, the ARB issued a Notice of

Final Order which left the value at an amount appellant believed to be unreasonably high.

Allen then initiated this de novo challenge suit to appeal the valuation of the property.

After suit was filed, and Cad filed an answer, the CAD filed a motion for summary

judgment. After hearing the motion, the CAD’s motion was granted. This appeal

ensued.

8 SUMMARY OF THE ARGUMENT

Appellant’s first argument is that the Trial Court erred in granting Appellee’s

motion for summary judgment, finding that no genuine issue of material fact existed with

respect to the diligence vel non of Allen in obtaining service of process on CAD. The

Smith County ARB issued its Final Order on March 12, 2014, and it was received by

Allen on March 14, 2014. The petition commencing the de novo appeal was filed with

the Smith County District Clerk on April 28, 2014, well before the sixty (60) day limit

for filing established by Texas Tax Code Sec. 42.21(a) , and the delay in service as due to

a legitimate error in electronic filing, which, when discovered, was promptly rectified.

ISSUE 1: THE TRIAL COURT ERRED IN FINDING THAT APPELLANT FILED TO EXERISE REASONABLE DILIGENCE IN OBTAINING SERVICE OF CITATION UPON APPELLEE, OR IN THE ATERNATIVE, THE TRIAL COURT ERRED IN FAILING TO FIND THAT A FACT QUESTION EXISTED AS TO THE EXERCISE OF REASONABLE DILIGENCE BY APPELLANT IN EFFECTING SERVICE UPON APPELLEE.

Argument & Authorities

Rule 166a of the Texas Rules of Civil Procedure governs summary

judgments. TEX. R. CIV. P. l66a(c). Summary judgment is appropriate when no

genuine issues as to any material fact exist. TEX. R. CIV. P. 166a; see also Ross v.

Tex. One P'ship, 796 S.W.2d 206, 209 (Tex. App.- Dallas 1990, writ denied per

curium, 806 S.W.2d 222 (Tex. 1991). Summary judgment is not intended to deprive a

party of its right to a full hearing on the merits of an issue of fact; rather it is an

essential mechanism which allows trial courts to eliminate untenable claims and

defenses. Id. at 209. A movant is entitled to summary judgment once he establishes

that no genuine issue of material fact exists and that he is entitled to judgment as a

matter of law. See TEX. R. CN . P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559,

9 562 (Tex. 1990). Accordingly, pursuant to Rule 166a of the Texas Rules of Civil

Procedure and evidence presented herein, the CAD is entitled to summary judgment

as a matter of law.

If a plaintiff files suit timely but does not serve the defendant until after the

statutory period expires, the date of service relates back to the date of filing if the

plaintiff exercises diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260

(Tex. 1990); Bilinsco Inc. v. Harris County Appraisal Dist., 321 S.W.3d 648, 652

(Tex.App. - Houston [1st Dist.] 2010, pet. denied); Li v. University of Texas Health

Science Ctr., 984 S.W.2d 647 (Tex.App.-Houston [14th Dist.] 1998, pet. denied);

Hamilton v. Goodson, 578 S.W.2d 448 (Tex.Civ.App.- Houston [14th Dist.] 1978, no

writ). Consequently, if the delay in effecting service can be reasonably explained, and

diligence found to have been exercised, the late service is not the date of determination of

compliance with Tax Code Sec. 42.21(a), but the actual date of filing of the cause of

action.

Although the Rules of Civil Procedure do not specifically identify what amount of

time constitutes lack of diligence in obtaining service, several of cases have dealt with

that issue. In the cases cited, the time length in question was found either to represent an

absence of diligence as a matter of law, or facts which the Court found failed to establish

due diligence. Webster v. Thomas, 5 S.W.3d 287, 291 (Tex.App.-Houston [14th Dist.]

1999, no pet.); Butler v. Ross, 836 S.W.2d 833, 835-36 (Tex.App. -Houston [l81 Dist.]

1992, no writ); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.-Corpus Christi 1991, no

writ)(5 month delay in requesting service was not diligent).

10 Some of the language in Webster v. Thomas, supra, is especially helpful to

consider in this matter:

The Court noted, “The existence of diligence is normally a question of fact, but if no excuse is offered for a delay in the service of the citation, "or if the lapse of time and the plaintiff's acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law." Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-- Dallas 1987, no writ). Webster v. Thomas, supra, at 289

Moreover, while the foregoing language is helpful in determining that diligence

or lack thereof is a fact question for the trier of fact to determine, the other facts of

Webster are clearly distinguishable from the facts of the case at bar. In Webster, the case

was not filed until the last day of a two year limitations period, the citation was not

issued for ninety (90) days afterward, and was sent to the wrong precinct for service, and

when returned unserved, sat for an extended period before being sent to the correct

precinct for service. Ultimately service occurred five months and five days (158 days)

after filing, and after multiple instances of express disregard for pursuit of timely service.

In the instant case, the Response to Defendant’s Motion for Summary Judgment

indicates that the delay in service was due to confusion in electronic filing, and that the

way the lack of service was discovered was by a regular diligence “calendar tickler”

practice of confirming service. Once it was learned that that citation was not issued or

served, the citation was immediately issued and served within three (3) days. There was

a good faith belief on the part of Appellant’s counsel that when the electronic filing was

done, it included all necessary information and fees for service of the Appellee.

Again, the other cases which have addressed the issue of when diligence is

negated as a matter of law have involved circumstances different and legally

11 distinguishable form the instant case. In Butler v. Ross, supra, again a two year statute of

limitations was involved, and the case was filed only five days before the statute ran out,

on December 9, 1987. After an unserved citation was returned to the counsel for

plaintiff, it took over five more months before a motion for substituted service was filed,

and even then, service was only effected on August 15, 1988, over eight months after the

suit was filed. See Butler, supra, at 834-835.

A fact is the proper subject of judicial notice if it is capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.

Tex.R.Evid. 201(b)(2). Further, judicial notice is mandatory if requested by a party and

the Court is supplied with the necessary information. Tex.R.Evid. 201(d). Lastly, judicial

notice may be taken at any stage of the proceeding. Tex.R.Evid. 201(f). Allen requested

the Trial Court take judicial notice of its file; Allen had supplied such authorities and

documents to the Trial Court; that the facts contained in the authorities and documents

were capable of accurate and ready determination by resort to the authorities and

documents; and that the accuracy of the authorities and documents could not reasonably

be questioned. Therefore, in accordance with Tex.R.Evid. 201(d) and (f), the Trial Court

was required to take judicial notice of the authorities and documents in the file of which

Allen requested judicial notice. The Trial Court should have taken judicial notice of the

following documents in Allen’s case:

All of the pleadings of this case in the Trial Court, including the affidavits, and

other evidence offered in opposition to CAD’s Motion for Summary Judgment. Such

documents included evidence that the authorized representative of Allen had made an

effort to effect service but had mistakenly not completed the correct online function to

12 request issuance of citation. Further, such response included multiple articles and

comments about problems caused by the relatively new electronic filing mandate for all

Courts.

CONCLUSION

Rule 166a of the Texas Rules of Civil Procedure governs the propriety of summary judgment. 1 Summary judgment is authorized where the summary judgment

record establishes that there are no genuine issues of material fact and that the movant is

entitled to judgment as a matter of law. Tex. R. Civ. Proc. 166a; see Ross v. Texas One

Partnership, 796 S.W.2d 206, 209 (Tex. App. - Dallas 1990), writ denied per curiam

opinion, 806 S.W.2d 222 (Tex. 1991). Summary Judgment is not intended to deprive a

party of his right to a full hearing on the merits of an issue of fact. Ross, 796 S.W.2d at

209. However, it is an essential mechanism to allow trial courts to eliminate untenable

defenses. Id. The Trial Court, due to the errors it committed as shown above, improperly

granted summary judgment to Appellee because Appellant used reasonable diligence in

obtaining service on the CAD in this cause. In the alternative, the Trial Court erred in

failing to find that the question of whether reasonable diligence had been used was a

question of fact. Accordingly, Appellant appeals to this Court to reverse the Trial

Court’s grant of summary judgment to Appellee, and remand the case to the Trial Court

for further proceedings consistent with the Court’s opinion.

1 Rule 166a states that judgment shall be rendered if the evidence before the Court shows that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion . . . .” Tex. R. Civ. P. 166a(c).

13 PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant requests that the Court

sustain its issues or points of error, reverse the Trial Court with respect to the summary

judgment granted to the CAD, and remand this case to the Trial Court for further

proceedings and for a trial on the merits of the case.

Respectfully submitted,

THE EATON LAW FIRM, PLLC

By:___________________________________ MICHAEL W. EATON SBN 06383800 1701 W. Northwest Highway Suite 100 Grapevine, Texas 76051 Telephone: (817) 431-1111 Telecopier: (817) 431-1180

ATTORNEYS FOR APPELLANT TONYA ALLEN DDS P.A.

14 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this document was served on counsel for Appellee, Ms. Sandra Griffin, Perdue Brandon Fielder Collins & Mott, 425 3301 Northland Drive, Suite 505, Austin, Texas 78731 via fax (512) 323-6963 on the ______ 2ND day of July, 2015, in accordance with the Texas Rules of Appellate Procedure.

__________________________________ MICHAEL W. EATON

15 NO 12-15-00029-CV

TONYA ALLEN DDS, P.A.,

Appellant

V.

SMITH COUNTY APPRAISAL DISTRICT,

Appellee

_________________________________________________________________ APPELLANT’S APPENDIX _________________________________________________________________

LIST OF DOCUMENTS

1. Final Summary Judgment dated January 14, 2015……………….…………Tab 1

2. Texas Tax Code §42.21(a)...…………………………………………………Tab 2

16 TAB 1

17 TAB 2 (1)AAin defense to a suit to enforce collection of

delinquent taxes; or

(2)AAas a basis of a claim for relief in a suit by the

property owner to arrest or prevent the tax collection process or to

obtain a refund of taxes paid.

(b)AAA person against whom a suit to collect a delinquent

property tax is filed may plead as an affirmative defense:

(1)AAif the suit is to enforce personal liability for

the tax, that the defendant did not own the property on which the

tax was imposed on January 1 of the year for which the tax was

imposed; or

(2)AAif the suit is to foreclose a lien securing the

payment of a tax on real property, that the property was not located

within the boundaries of the taxing unit seeking to foreclose the

lien on January 1 of the year for which the tax was imposed.

(c)AAFor purposes of this section, "suit" includes a

counterclaim, cross-claim, or other claim filed in the course of a

lawsuit.

Acts 1979, 66th Leg., p. 2311, ch. 841, Sec. 1, eff. Jan. 1, 1982.

Amended by Acts 1987, 70th Leg., ch. 53, Sec. 1, eff. May 6, 1987.

SUBCHAPTER B. REVIEW BY DISTRICT COURT

Sec.A42.21.AAPETITION FOR REVIEW. (a) A party who appeals

as provided by this chapter must file a petition for review with the

district court within 60 days after the party received notice that a

final order has been entered from which an appeal may be had or at

any time after the hearing but before the 60-day deadline.AAFailure

to timely file a petition bars any appeal under this chapter.

(b)AAA petition for review brought under Section 42.02 must

be brought against the owner of the property involved in the

appeal.AAA petition for review brought under Section 42.031 must be

brought against the appraisal district and against the owner of the may not be brought against the appraisal review board.AAAn

appraisal district may hire an attorney that represents the

district to represent the appraisal review board established for

the district to file an answer and obtain a dismissal of a suit

filed against the appraisal review board in violation of this

subsection.

(c)AAIf an appeal under this chapter is pending when the

appraisal review board issues an order in a subsequent year under a

protest by the same property owner and that protest relates to the

same property that is involved in the pending appeal, the property

owner may appeal the subsequent appraisal review board order by

amending the original petition for the pending appeal to include

the grounds for appealing the subsequent order. The amended

petition must be filed with the court in the period provided by

Subsection (a) for filing a petition for review of the subsequent

order. A property owner may appeal the subsequent appraisal review

board order under this subsection or may appeal the order

independently of the pending appeal as otherwise provided by this

section, but may not do both. A property owner may change the

election of remedies provided by this subsection at any time before

the end of the period provided by Subsection (a) for filing a

petition for review.

(d)AAAn appraisal district is served by service on the chief

appraiser at any time or by service on any other officer or employee

of the appraisal district present at the appraisal office at a time

when the appraisal office is open for business with the public. An

appraisal review board is served by service on the chairman of the

appraisal review board. Citation of a party is issued and served in

the manner provided by law for civil suits generally.

(e)AAA petition that is timely filed under Subsection (a) or

amended under Subsection (c) may be subsequently amended to:

(1)AAcorrect or change the name of a party; or

(2)AAnot later than the 120th day before the date of person and are of a similar type or are part of the same economic

unit and would typically sell as a single property.AAIf a petition

is filed by multiple plaintiffs or includes multiple properties

that are not of a similar type, are not part of the same economic

unit, or are part of the same economic unit but would not typically

sell as a single property, the court may on motion and a showing of

good cause sever the plaintiffs or the properties.

(g)AAA petition filed by an owner or lessee of property may be

amended to include additional properties in the same county that

are owned or leased by the same person, are of a similar type as the

property originally involved in the appeal or are part of the same

economic unit as the property originally involved in the appeal and

would typically sell as a single property, and are the subject of an

appraisal review board order issued in the same year as the order

that is the subject of the original appeal.AAThe amendment must be

filed within the period during which a petition for review of the

appraisal review board order pertaining to the additional

properties would be required to be filed under Subsection (a).

(h)AAThe court has jurisdiction over an appeal under this

chapter brought on behalf of a property owner or lessee and the

owner or lessee is considered to have exhausted the owner ’s or

lessee ’s administrative remedies regardless of whether the

petition correctly identifies the plaintiff as the owner or lessee

of the property or correctly describes the property so long as the

property was the subject of an appraisal review board order, the

petition was filed within the period required by Subsection (a),

and the petition provides sufficient information to identify the

property that is the subject of the petition.AAWhether the

plaintiff is the proper party to bring the petition or whether the

property needs to be further identified or described must be

addressed by means of a special exception and correction of the

petition by amendment as authorized by Subsection (e) and may not be

the subject of a plea to the jurisdiction or a claim that the Acts 1979, 66th Leg., p. 2311, ch. 841, Sec. 1, eff. Jan. 1, 1982.

Amended by Acts 1983, 68th Leg., p. 5344, ch. 981, Sec. 1, eff. Aug.

29, 1983; Acts 1985, 69th Leg., ch. 760, Sec. 1, eff. Aug. 26, 1985;

Acts 1989, 71st Leg., ch. 796, Sec. 44, eff. June 15, 1989; Acts

1991, 72nd Leg., 2nd C.S., ch. 6, Sec. 54, eff. Sept. 1, 1991; Acts

1999, 76th Leg., ch. 1113, Sec. 1, eff. June 18, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 905 (H.B. 986), Sec. 1, eff.

June 19, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 771 (H.B. 1887), Sec. 15, eff.

September 1, 2011.

Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 19.006,

eff. September 1, 2013.

Acts 2013, 83rd Leg., R.S., Ch. 1259 (H.B. 585), Sec. 25, eff.

June 14, 2013.

Text of section as amended by Acts 1993, 73rd Leg., ch. 667, Sec. 1

Sec.A42.22.AAVENUE. Venue is in the county in which the

appraisal review board that issued the order appealed is located,

except as provided by Section 42.221. Venue is in Travis County if

the order appealed was issued by the comptroller.

Acts 1979, 66th Leg., p. 2311, ch. 841, Sec. 1, eff. Jan. 1, 1982.

Amended by Acts 1981, 67th Leg., 1st C.S., p. 174, ch. 13, Sec. 151,

eff. Jan. 1, 1982; Acts 1991, 72nd Leg., 2nd C.S., ch. 6, Sec. 55,

eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 667, Sec. 1, eff.

Sept. 1, 1993.

Text of section as amended by Acts 1993, 73rd Leg., ch. 1033, Sec. 1

Sec.A42.22.AAVENUE. (a) Except as provided by Subsections

(b) and (c), and by Section 42.221, venue is in the county in which

the appraisal review board that issued the order appealed is

located.

(b)AAVenue of an action brought under Section 42.01(1) is in