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Huntley Fort GILL, Robyn G. Attaway and Miriam G. Stirn, Appellants, v. David HILL, Individually and d/b/a Doh Oil Company, Appellees.
Appellants, Huntley Fort Gill, Robyn G. Attaway and Miriam G. Stirn, appeal the trial court's entry of summary judgment against them and in favor of Appellees, David Hill, Individually and d/b/a DOH Oil Company, on Appellees’ affirmative defense of limitations. Appellants’ 2019 lawsuit was a collateral attack on a tax lien foreclosure which occurred in 1999, which Appellants allege occurred without adequate notice and in violation of their predecessors’ due process rights. Appellees moved for summary judgment based on the Tax Code's one-year statute of limitations, which the trial court granted.
We find the trial court did not err in granting summary judgment in favor of Appellees because Appellants failed to meet their burden to present evidence indicating a material issue of fact on the applicability of the statute of limitations to their case. We affirm the judgment of the trial court.
In 1999, Appellees purchased various mineral interests at auction after they had been foreclosed upon by Pecos-Barstow-Toya ISD, Reeves County, and Reeves County Hospital District. The sheriff's deed conveying the mineral interests to DOH Oil Company was recorded in the property records on April 8, 1999.
On February 13, 2019, Appellants filed a lawsuit collaterally attacking the validity of the tax sale of the mineral interests to DOH Oil Company. In their petition, they alleged their predecessors-in-title owned a portion of the mineral interests in question at the time of the tax sale foreclosure, and the tax sale was undertaken without any service of process upon their predecessors. As a result, according to Appellants’ petition, the judgment following the tax sale was void for lack of due process. Their petition sought a declaratory judgment that the tax sale judgment was void and sought to quiet title on the subject mineral interests.
In their answer, Appellees pleaded the affirmative defense of limitations, among others. They later moved for summary judgment on limitations, invoking the one-year statute of limitations prescribed by the Texas Tax Code for challenges to title of property sold in a tax sale. See Tex.TaxCode Ann. § 33.54(a)(1). Appellees argued Appellants’ deadline to challenge the validity of the sale was one year after the deed of sale to DOH Oil Company was recorded in the property records, or April 8, 2000, pursuant to Section 33.54. See id. Because Appellants’ lawsuit was not filed until 2019, Appellees asserted Appellants’ claims were barred. Additionally, Appellees argued the Tax Code's tolling provision—namely, for Appellants or their predecessors to have paid taxes on the property from the time of the sale until the suit challenging the sale was brought—was not triggered in this case because Appellants did not allege that they or their predecessors paid taxes during that time. See Tex.TaxCode Ann. § 33.54(b). Furthermore, Appellees argued the statute of limitations applies to cases challenging the validity of a tax sale even where due process has been denied to a property owner by improper or a complete lack of service of process, based on Texas precedent. See, e.g., W.L. Pickens Grandchildren's Joint Venture v. DOH Oil Co., 281 S.W.3d 116, 121 (Tex.App.—El Paso 2008, pet. denied); Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 514-15 (Tex.App.—Ford Worth 2015, pet. denied); John K Harrison Holdings, LLC v. Strauss, 221 S.W.3d 785, 791 (Tex.App.—Beaumont 2007, pet. denied); Session v. Woods, 206 S.W.3d 772, 778 (Tex.App.—Texarkana 2006, pet. denied); Barrera v. Chererco, LLC, No. 04-16-00235-CV, 2017 WL 943436, at *2 (Tex.App.—San Antonio 2017, no pet.)(not designated for publication).
In response, Appellants argued Texas intermediate courts applying the statute of limitations to cases asserting constitutional challenges were incorrectly decided. Appellants claim Texas Supreme Court and United States Supreme Court precedent mandates that for the requirements of due process in a tax foreclosure to be met, a property owner was entitled to personal service of process of the proceedings, and the preservation of due process trumped any limitations periods prescribed by state statute. See, e.g., In re E.R., 385 S.W.3d 552, 566-67 (Tex. 2012)(declining to apply statute of limitations under Texas Family Code for suit terminating parental rights when due process was denied to mother through improper service); see also Schroeder v. New York, 371 U.S. 208, 211, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962)(due process was not satisfied when notice of foreclosure was only by publication and posting, even though the challenge was filed outside of the limitations period); Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956)(notice by publication deprived landowner of due process even though collateral attack was filed after deadline for appeal).
Appellees filed a reply in support of their motion for summary judgment, reiterating their position that the statute of limitations applied to Appellants’ due process claims. Appellees also argued that even if Appellants’ due process claims would prevent application of the statute, Appellants had failed to carry their burden of producing any evidence tending to raise an issue of material fact on the allegedly inadequate notice.
Following a hearing, the trial court granted Appellees’ motion for summary judgment. Appellants filed a motion for new trial, reasserting the same argument alleged in their response and newly claiming Appellees failed to meet their burden on summary judgment “demonstrat[ing] that there was not even a scintilla of evidence that the due process rights of [Appellants’] predecessor in interest were not violated.” The trial court denied Appellants’ motion for new trial.
This timely appeal followed.
Appellants present one issue on appeal: whether the trial court erred in granting Appellees’ motion for summary judgment on the affirmative defense of limitations when Appellants’ case seeks to void a tax judgment based on the denial of constitutional due process for lack of valid service. In response, Appellees argue that ample precedent, including precedent binding on this Court, has upheld summary judgment against plaintiffs challenging the validity of a tax judgment for lack of service and constitutional due process issues when the challenge is raised outside of the limitations period.1 Moreover, according to Appellees, summary judgment was proper because Appellants failed to present evidence in support of their due process arguments at the summary judgment phase, and thus failed to carry their burden to avoid having summary judgment entered against them.
We first consider Appellees’ contention that summary judgment was proper because Appellants failed to meet their burden of proof to defeat Appellees’ motion.
Standard of Review and Applicable Law
A grant of summary judgment is reviewed de novo. Murray v. Nabors Well Service, 622 S.W.3d 43, 50 (Tex.App.—El Paso 2020, no pet.)(citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). Summary judgment is appropriate when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a. In deciding whether a genuine issue precludes summary judgment, we treat all evidence favorable to the non-movant as true and indulge every reasonable inference and resolve all doubts in the non-movant's favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When a defendant conclusively establishes all elements of an affirmative defense, the defendant is entitled to summary judgment. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995); Holland v. Thompson, 338 S.W.3d 586, 593 (Tex.App.—El Paso 2010, pet. denied).
To achieve summary judgment on the defense of limitations, “[t]he defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pled or otherwise raised[.]” Holland, 338 S.W.3d at 593 (citing KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999)). This well-established tenet applies to cases where a tax judgment is being collaterally attacked. See W.L. Pickens, 281 S.W.3d at 119. Upon such showing, the non-movant bears the burden to present evidence raising an issue of material fact to avoid the statute of limitations. Rodriguez v. Cemex, Inc., 579 S.W.3d 152, 160 (Tex.App.—El Paso 2019, no pet.). The non-moving party is not required to marshal all its proof in response to a summary judgment motion but must present evidence that raises a genuine issue of material fact on each of the challenged elements. Stierwalt v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex.App.—El Paso 2016, no pet.). If a plaintiff fails to raise a genuine issue of material fact as to the affirmative defense, the trial court must grant the motion. See id.
We first consider whether Appellees met their burden of proof as the movant. In their motion, Appellees cite to Section 33.54 of the Texas Tax Code, which provides a limitations period of one year from “the date that the deed executed to the purchaser at the tax sale is filed of record” for challenges to title of property sold in a tax sale. See Tex.TaxCode Ann. § 33.54(a).2 As summary judgment evidence, Appellees attached a copy of the Sheriff's Tax Deed from the sale of the mineral interests including those belonging to Appellants’ predecessor-in-interest. The date of filing the deed in the property records establishes the accrual date of claims, which the record affirmatively shows is April 6, 1999.
Accordingly, Appellees have conclusively proved the accrual date for Appellants’ claims. It was not necessary for Appellees to negate the discovery rule, since it was neither pleaded by Appellants nor is applicable to claims challenging a tax sale. See W.L. Pickens, 281 S.W.3d at 122 (precluding application of the discovery rule to cases challenging a tax sale). Appellees met their initial burden proving their entitlement to summary judgment on limitations.
At this juncture in the summary judgment proceedings, the burden shifted to Appellants to present evidence raising a material issue of fact as to the applicability of the statute of limitations to their petition. See Rodriguez, 579 S.W.3d at 160; W.L. Pickens, 281 S.W.3d at 123. Evidence which would preclude application of the statute of limitations is proof that Appellants and/or their predecessors paid taxes on the property from the time of the sale in 1999 until their suit was brought. See W.L. Pickens, 281 S.W.3d at 123; Tex.TaxCode Ann. § 33.54(b). When a person challenging a tax sale presents evidence it paid taxes between the time of the sale and the time the challenge is brought, the limitations period on suits challenging the sale is inapplicable. See W.L. Pickens, 281 S.W.3d at 123; Tex.TaxCode Ann. § 33.54(b). However, no such evidence was provided by Appellants, nor did Appellants make any contention they or their predecessors-in-interest paid taxes during this period.
Additionally, Appellants could have presented evidence to support their due process claims. Since this appeal was filed, the Texas Supreme Court issued its opinion in Mitchell v. MAP Resources, Inc., 649 S.W.3d 180, 183–84 (Tex. 2022). Mitchell also examined whether due process rights were violated after heirs to a mineral interest learned their predecessor's rights were foreclosed upon after she was served by publication, despite her address being available in recorded warranty deeds and the county's tax records. See id. The Texas Supreme Court held that the publicly available property records offered as evidence in a summary judgment proceeding should have been considered by the trial court in a collateral attack on a judgment for due process concerns. Id. Further, because the records contained the predecessor-in-interest's address, serving her by posting violated her right to procedural due process. Id.
We realize Appellants did not have the benefit of Mitchell as precedent at the time of their proceedings in the trial court. However, if they intended to rely on allegations of a due process violation as a response to a motion for summary judgment, they were required to present evidence of the alleged violation in response to Appellees’ motion. See Sec. State Bank & Tr. v. Bexar County, 397 S.W.3d 715, 723 (Tex.App.—San Antonio 2012, pet. denied)(where bank was a lienholder of record and entitled to notice of tax sale, but evidence on summary judgment showed complete lack of notice, one-year statute of limitations did not bar challenge to sale brought by the bank).3 They did not. In fact, Appellants did not attach any evidence to their response to Appellees’ motion for summary judgment. Rather, they relied on the arguments in their response and the substance of their petition claiming the notice by posting to their predecessors-in-interest was constitutionally infirm and deprived them of due process, which they assert precludes application of the statute of limitations. Their failure to present any evidence of the alleged violation is a key distinction between the facts of this case and Mitchell, where the successors-in-interest attached as evidence in the summary judgment proceedings copies of public records which had been readily available to the taxing authorities at the time of the foreclosure sale. See Mitchell, 649 S.E.3d at 186–87. Appellants argue that documents filed among the property records of Reeves County would have demonstrated the lack of diligent inquiry into their whereabouts at the time of the foreclosure sale. However, they failed to attach those documents, or any other evidence in support of the alleged due process violations, and instead relied on the substance of their arguments. But—and on this there can be no disagreement—arguments in pleadings are not evidence, even when sworn to or verified. CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 540 (Tex. 2016); In re Elamex, S.A. de C.V., 367 S.W.3d 891, 898 (Tex.App.—El Paso 2012, no pet.).
In their reply brief, Appellants argue for the first time on appeal that Appellees failed to satisfy their summary judgment burden. Specifically, Appellants argue Appellees “clearly asserted in their Petition that the Texas Tax Code's statute of limitations does not apply to sales held in violation of a property owner's due process rights[,]” and therefore, Appellees were required to negate this contention in their motion for summary judgment.4 Appellants claim that in order to prove Appellees were entitled to summary judgment, Appellees needed to “proffer ․ evidence to negate Appellants’ claimed due process violation, i.e. evidence that notice and service of process was proper[.]” First, any issue not raised initially in an appellant's primary brief is not preserved for review. Fox v. City of El Paso¸ 292 S.W.3d 249, 251 (Tex.App.—El Paso 2009, pet. denied)(citing Tex.R.App.P. 38.3). Appellants attempt to couch this argument as responsive to Appellees’ brief; however, the argument made by Appellees to which Appellants address this new contention is the very same ground upon which Appellees sought summary judgment in the first place. In fact, Appellants made a similar argument in their motion for new trial, indicating an intention to pursue this position on appeal. However, they failed to raise it in their brief on the merits, thereby waiving the issue on appeal. See Tex.R.App.P. 38.1(i); Fox, 292 S.W.3d at 251.
Even if Appellants had properly preserved this issue, their position is a misstatement of the summary judgment burden. Appellants argue that for Appellees to succeed on their limitations defense at the summary judgment stage, they must marshal evidence “conclusively establishing” that service upon Appellants’ predecessors was proper, thus foreclosing on Appellants’ due process claims. In other words, Appellants interpret the law to mean that to succeed on an affirmative defense through a summary judgment motion, the party must “conclusively” dispose of the merits of its opponent's claim. Appellants’ position is incorrect. An affirmative defense is a reason offered by a defendant why the plaintiff is ineligible for recovery regardless of the merits of his claim. See MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 137 (Tex. 2014). We acknowledge the somewhat unique circumstances of this particular case, and Appellants’ assertion their predecessors-in-interests’ violation of due process—their substantive claim—precludes application of Appellees’ statute of limitations affirmative defense. However, the summary judgment standard is well-settled and the parties’ respective burdens at the summary judgment stage are clear: the burden to present some evidence demonstrating an issue of material fact on the applicability of the statute of limitations lay with Appellants as the non-movants. See Stierwalt, 499 S.W.3d at 194. If they intended to rely solely on their due process claims to defeat the limitations assertion, as their petition and response indicate, it was their burden to present some evidence of a due process violation.5 Their failure to present any evidence of a due process violation or any other reason why the limitations period should not apply after Appellees satisfied their burden proving the limitations period should apply is insufficient to avoid imposing summary judgment against them.
Appellants also raise for the first time in their reply brief that a summary judgment based upon the plaintiff's pleadings requires the court to assume all allegations and facts contained in the plaintiff's petition are true. This argument has also not been preserved for review. See Tex.R.App.P. 38.1(i); Fox, 292 S.W.3d at 251. Even if it was, however, Appellants misstate the law. A defendant moving for summary judgment against a plaintiff for failing to state a cause of action relies solely upon the contents of the plaintiff's petition, and “all allegations, facts, and inferences in the pleadings are taken as true and viewed in the light most favorable to the non-movant.” Valles v. Texas Com'n on Jail Standards, 845 S.W.2d 284, 286 (Tex.App.—Austin 1992, writ denied). However, Appellants misapprehend Appellees’ motion. Appellees did not assert Appellants had failed to state a claim against them in their petition; rather, Appellees argued only that (1) Appellants’ lawsuit was barred by limitations, and (2) Appellants had not alleged they or their predecessors paid taxes on the property which would toll the limitations period. Accordingly, even if this argument were preserved on appeal, it is without merit.
We find the record shows Appellees satisfied their burden showing applicability of the Tax Code's statute of limitations to Appellants’ lawsuit. We likewise find Appellants failed to present any evidence raising a genuine issue of material fact to avoid application of the statute of limitations. Rodriguez, 579 S.W.3d at 160. Accordingly, we find it was proper for the trial court to grant Appellees’ motion for summary judgment.
Appellants’ sole issue is overruled.
Having overruled Appellants’ sole issue, the judgment of the trial court is affirmed.
I concur in the Court's judgment. I write separately to further explain why the Appellants here carried the burden to submit some evidence of their claimed due process violation once the Appellees met their initial summary judgment burden for establishing the statute of limitations defense.
When a plaintiff files suit outside of the statute of limitations but alleges a reason for doing so, must the defendant disprove that asserted reason when pursuing a traditional motion for summary judgment on limitations? Or must the plaintiff submit some evidence to support the reason avoiding limitations in its response? Well, it depends. The Texas Supreme Court's latest writing on the question, Draughon v. Johnson, answered the question when the plaintiff claimed that his mental incapacity excused an untimely suit to set aside a deed. 631 S.W.3d 81, 85 (Tex. 2021). Section 16.001 of the Texas Civil Practice and Remedies Code tolls the limitations period “[i]f a person entitled to bring a personal action is under a legal disability”—defined as being under 18 years old or “of unsound mind.” Tex.Civ.Prac.& Rem.Code Ann. § 16.001(a), (b). If the plaintiff has pleaded the tolling provision, Draughon holds that a party advancing a statute of limitations defense through a traditional motion for summary judgment must conclusively negate that tolling provision's applicability. Draughon, 631 S.W.3d at 95. Stated otherwise, because the plaintiff alleged that he was of unsound mind, the defendant needed to affirmatively negate that contention to prevail on a traditional summary judgment motion based on limitations. The plaintiff carried no burden to prove his mental incapacity in response to the summary judgment motion.
And the Draughon court noted other situations that are similarly treated, such as when a party pleads the discovery rule. Id. at 89-90; Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018) (“In cases in which the plaintiff pleads the discovery rule, the defendant moving for summary judgment on limitations bears the additional burden of negating the rule.”). The same is true for other tolling provisions. Draughon, 631 S.W.3d at 92. (“In sum, a plaintiff's assertion that the statute of limitations was tolled falls within the category of issues affecting the running of limitations on which the moving defendant bears the burden. To obtain traditional summary judgment on the ground that the limitations period expired before the plaintiff brought suit, the defendant must conclusively negate any tolling doctrines asserted.”).
Conversely, the plaintiff carries the burden to present some evidence in its summary judgment response to support certain doctrines that avoid a statute of limitations defense. “[I]f the defendant carries that burden and conclusively establishes its [limitations] defense, the plaintiff can avoid summary judgment by raising a genuine issue of material fact on any equitable defense that its suit should not be barred even though the limitations period has run—such as fraudulent concealment, estoppel, or diligent service.” Draughon, 631 S.W.3d at 88-89, citing Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (estoppel); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990) (lack of due diligence in service of process); Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974) (fraudulent concealment). The court describes these cases as falling into a second category called reasons to “avoid” limitations that are “independent of the defendant's conclusive showing that the limitations period expired.” Draughon, 631 S.W.3d at 93-94.
In summary, the court reconciled these situations by writing the “defendant has the burden regarding any issues raised that affect the running of limitations, while the plaintiff has the burden to raise a fact issue of equitable defenses that defeat limitations even though it has run.” Draughon, 631 S.W.3d at 88.
So where does the Appellants’ lack-of-service-due-process claim fall? It is not like a tolling provision. The Tax Code has a statutory tolling provision, but that would have required Appellants to be paying the taxes, and so long as they did, their deed claim would have not accrued. See Tex.Tax Code Ann. § 33.54(b). Appellants did not plead section 33.54(b) tolling in their petition. Instead, they allege that the 1999 tax suit judgment was void based on the lack of service on the record owners of the property. And that claim is unlike a tolling provision because under their theory of the case, the statute of limitations is not simply interrupted—it never applies. Traditional tolling may come to an end—that is, the plaintiff reaches the age of majority, or achieves a sound mind. Tex.Civ.Prac.& Rem.Code Ann. § 16.001(a), (b). If a party was not served before a judgment was rendered, that fault can never be undone.
Nor is Appellants’ limitations-avoidance claim like the discovery rule, which delays accrual until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury. Schlumberger, 544 S.W.3d at 834. Appellants do not allege the discovery rule nor does their argument turn on when some person learned of the tax sale. Rather, it more resembles a confession and avoidance claim, as it admits that limitations have run, but they avoid its consequences due to lack of service. It is also a claim in equity, as it asks a court to overturn a judgment outside the confines of the tax statute and divest the Appellees of property that was purchased some nineteen years earlier in a facially proper tax sale.1 And Draughon placed “equitable defenses that defeat limitations” into the category of defenses which require a plaintiff to present some evidence in response to the summary judgment. 631 S.W.3d at 88-89. Appellants’ due process claim most neatly fits into that category. And as the majority notes, Appellants did not present any evidence to demonstrate their due process violation.2 So while the due-process-lack-of-service claim could negate the statute of limitations, the procedural posture of the summary judgment record precludes our consideration of that argument.
With this additional explanation, I join the majority opinion.
As evident by the differing views of my two colleagues—who otherwise agree on the outcome of the case—the critical inquiry of this summary judgment dispute necessarily requires that we determine on which party the burden of proof rested, and whether that burden was met. Chief Justice Rodriguez determines that Appellees met their initial summary judgment burden such that a burden of proof shifted to Appellants to present evidence raising a fact issue precluding the applicability of Appellees’ statute of limitations defense. She determines that evidence satisfying that burden, which Appellants failed to produce, would include proof that taxes were paid on their property from the time of the tax sale in 1999 to the date of the filing of their suit. While Justice Alley agrees that the initial burden shifted to Appellants, he writes separately to further explain that he would categorize Appellants’ due process claim as one that “more resembles a confession and avoidance claim.” He nonetheless agrees such equitable defense to the running of limitations required Appellants to present evidence raising a fact issue to avoid summary judgment.
Regardless of the differences reflected by these separate writings, the plurality opinion concludes that based on the evidence attached to Appellees’ motion for summary judgment, they met their initial burden of proof to conclusively establish the running of the one-year statute of limitations against Appellants’ due process claim. See Tex. Tax Code Ann. § 33.54. As proof of such defense, Appellees relied on the sheriff's deed from which title of the property at issue had been conveyed to Appellees following a tax sale. That deed reflected a recording date of April 1999. The majority concludes the deed conclusively established that Appellants’ suit was brought nearly nineteen years after the running of the applicable statute of limitations. The majority further concludes the burden shifted to Appellants to produce evidence raising a fact issue on their due process claim, which they failed to do.
Based on the nature of Appellants’ claim and the well-established standards of a traditional motion for summary judgment, I disagree that Appellees met their initial burden of proof, such that a burden ever shifted to Appellants to create a fact issue.
To start, Appellants identified their claim as “a collateral attack on a void 1999 tax suit judgment.” The petition contends that the tax judgment was entered without personal jurisdiction over James W. Gill and Gale T. Goss (James and Gale), now deceased, who were Appellants’ predecessors-in-title to a mineral interest in land located in Reeves County. Appellants’ claim alleged “[t]he [tax] [j]udgment was void as to James and Gale because there was a complete failure of service of citation on them and they were thereby denied due process guaranteed to them under the Fourteenth Amendment to the United States Constitution and Article I, Sections 13 and 19 of the Constitution of the State of Texas.” Moreover, Appellants asserted that, because the judgment was void, “the resulting tax sale and [s]heriffs’ [t]ax [d]eed to [DOH Oil Company] were also void as to the [p]roperty.” Finally, Appellants alleged that even though the sheriff's deed correctly identified the interests formerly owned by James, “it did not correctly identify the interest purportedly owned by Gale.” Based on all these allegations, Appellants sought a judgment declaring the tax judgment void and of no effect as to James, Gale, and the property; and further declaring that the sheriff's deed could not and did not convey any interest that was not included in the tax suit petition and foreclosed upon by the judgment.
As the majority opinion describes, the Supreme Court of Texas recently addressed a similar due process claim brought against the same 1999 tax judgment at issue here. See Mitchell v. MAP Resources, Inc., 649 S.W.3d 180, 183–84 (Tex. 2022). In Mitchell, the heirs of Elizabeth Mitchell sued the current owners of disputed mineral interests, alleging the tax foreclosure judgment rendered against Elizabeth was void as to her because she had not been properly served, thus violating her federal and state constitutional rights. Id. Elizabeth was a named defendant—“[among the] almost 500 other defendants”—whose mineral interests were foreclosed upon by taxing authorities. Id. Mitchell considered whether section 33.54 of the Tax Code applied to the heirs’ due process claim. Id. at 193–94.
Regarding the nature of such claim, Mitchell explained, “[t]he Due Process Clause of the [Fourteenth Amendment to the] United States Constitution prevents the government from depriving a person of his or her property, without due process of law.” Id. at 188 (citing U.S. Const. amend. XIV, § 1 and Tex. Const. art. I, § 19). Thus, constitutional protections “require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id. (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Notice must be “reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).
Regarding claims of this nature, Mitchell builds on the guidance earlier provided by the Supreme Court of Texas in PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012). Addressing procedural aspects of such due process claims, PNS Stores held that “a judgment may also be challenged through a collateral attack when a failure to establish personal jurisdiction violates due process.” Id. (citing Peralta, 485 U.S. at 84, 108 S.Ct. 896). The Supreme Court observed that “a judgment entered without notice or service is constitutionally infirm, and some form of attack must be available when defects in personal jurisdiction violate due process.” Id. at 272–73. PNS Stores further described that a failure to give notice violates “the most rudimentary demands of due process of law.” Id. at 273. A litigant may attack a void judgment directly or collaterally. Id. at 271. Although a direct attack must be brought within a definite time, a collateral attack may be brought at any time. Id. at 272 (citing In re E.R., 385 S.W.3d 552, 566 (Tex. 2012)). When attacked collaterally, a judgment alleged as void is presumed valid, but the presumption disappears when the record affirmatively reveals a jurisdictional defect. Id. at 273. Here, Appellants brought such a collateral attack outside the one-year limitations period provided by the Tax Code, alleging the tax judgment and resulting sheriff's deed were void and without effect.
When reviewing such a due process claim, Mitchell also discussed the applicability of counterarguments and defenses raised by the property owners’ own motion for summary judgment. Similar to the defense asserted in the case at hand, the property owners named as defendants in the Mitchell heirs’ suit alleged that even if the foreclosure judgment violated due process, the judgment could not be declared void given it was barred by the running of the Tax Code's one-year statute of limitations. Mitchell, 649 S.W.3d at 193–94. But Mitchell rejected this argument. The Supreme Court noted that no temporal limits may be placed on a challenge to a void judgment when such a claim is filed by a party who did not receive the type of notice to which the party was entitled to receive under the circumstances. Id. at 194–95. Rather, “state statutory requirements must give way to constitutional protections.” Id. (citing E.R., 385 S.W.3d at 566)(providing that Texas rules “must yield to contrary precedent from the U.S. Supreme Court”). Mitchell concluded that when such a claim is properly brought, the requirements of section 33.54 of the Tax Code are “irrelevant” as the suit operates independent of the state statutory provision. Id.
Appellees’ Traditional Motion for Summary Judgment
Yet Mitchell offers only limited guidance here because its procedural posture significantly differs. As stated earlier, the parties in Mitchell filed cross-motions for summary judgment and those motions included a hybrid motion for summary judgment filed by defendant, MAP Resources. Id. at 186–87. As a result, both sides of the lawsuit attached evidence to their motions, and both affirmatively argued that each were entitled to judgment as a matter of law.
Here, only Appellees filed a motion for summary judgment, not Appellants. Relying on section 33.54 of the Tax Code and the recording date of the attached sheriff's deed, Appellees argued first that “the time for challenging the tax [sale] passed nineteen years ago.” Second, they urged that Appellants did not allege that they or their predecessors had paid taxes in the interim. Based on the form and substance of the motion, Appellees filed a traditional motion for summary judgment, not a no-evidence or hybrid motion. Compare Tex. R. Civ. P. 166a(c)(traditional motion), with Tex. R. Civ. P. 166a(i)(no-evidence motion); see also Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)(discussing the combination of a traditional motion with a no-evidence motion results in a hybrid motion). Nowhere in the motion did Appellees assert that no evidence supported one or more essential elements of Appellants’ due process claim.
The standard for reviewing motions filed under Rule 166a(c) of the Texas Rules of Civil Procedure “is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.” KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985)). Under that standard, we must take as true all evidence favorable to the non-movant and must make all reasonable inferences in the non-movant's favor as well. See KPMG Peat Marwick, 988 S.W.2d at 748; Nixon, 690 S.W.2d at 548–49.
In Draughon v. Jones, the Supreme Court of Texas instructed that “[a] court must grant a ‘traditional’ motion for summary judgment ‘forthwith if [the summary judgment evidence] show[s] 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.’ ” Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021)(alteration in original)(quoting Tex. R. Civ. P. 166a(c)). Describing the movant's burden of proof under our traditional rule, Draughon stated, “courts never shift the burden of proof to the non-movant unless and until the movant has established his entitlement to a summary judgment by conclusively proving all essential elements of his cause of action or defense as a matter of law.” Id. at 87–88. Of further note, Draughon clarified that the traditional motion has been interpreted such that “the presumptions and burden of proof for an ordinary or conventional trial are immaterial to the burden that a movant for summary judgment must bear.” Draughon, 631 S.W.3d at 87 (citing Missouri-Kansas-Texas R.R. v. City of Dallas, 623 S.W.2d 296, 298 (Tex. 1981); Chavez v. Kan. City So. Ry. Co., 520 S.W.3d 898, 899 (Tex. 2017)(per curiam)). “The non-movant's failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant's right.” Draughon, 631 S.W.3d at 88.
Applicable to this case, Appellants carry the burden at trial to rebut the presumption of validity that applies to the tax judgment and sheriff's deed, which they collaterally attack by their pending suit. See PNS Stores, 379 S.W.3d at 273. And based on that presumption, they must affirmatively demonstrate that the trial court lacked personal jurisdiction over James and Gale, their predecessors-in-interest. Yet, as relevant to the standards applicable to this summary judgment proceeding, that burden operates in reverse order in this instance. See Draughon, 631 S.W.3d at 81; Chavez v. Kan. City So. Ry. Co., 520 S.W.3d at 899 (Tex. 2017).
Because Appellees carry the initial burden to conclusively establish their entitlement to the Tax Code's limitations defense, that burden necessarily includes a requirement to show that such defense would apply to Appellants’ claim. To do so, Appellees carry the burden to show that no due process violation occurred with regard to the collaterally attacked tax judgment and sheriff's deed. Said differently, to rely on the deed to establish the running of limitations, Appellees carried the burden of establishing not only the date of the deed's recording but also its validity. That is, not merely that the judgment and deed were presumed valid, but that they were in fact valid and of legal force and effect. When such burden of proof is met, the statute of limitations defense would be applicable to Appellants’ claim.
In sum, the sheriff's deed did not enjoy a presumption of validity in this proceeding, as it does enjoy at trial, such that Appellees could rely on it alone to shift the burden of proof to Appellants to prove otherwise. As Draughon aptly stated, “[i]f a defendant prefers to place the burden on the plaintiff to raise a fact issue regarding any aspects of limitations on which the plaintiff would have the burden at trial, it is free to file a no-evidence motion for summary judgment as to those matters.” Id. at 85. Here, Appellees chose not to file a no-evidence or hybrid motion, and Appellants themselves had neither sought a summary judgment on their claim. Choosing to travel solely on a traditional motion for summary judgment, Appellees carried the full burden to establish the date of the sheriff's deed and its validity.
Because I would conclude that Appellees failed to conclusively establish their affirmative defense of limitations as a matter of law, I respectfully dissent.
1. During the pendency of this appeal, the Texas Supreme Court decided Mitchell v. MAP Resources, Inc., 649 S.W.3d 180, 183–84 (Tex. 2022), which squarely addresses this issue. We acknowledge that neither party had the benefit of Mitchell’s analysis in the trial court proceedings or briefing stages of this appeal. However, as we discuss more fully below, Mitchell’s analysis is inapplicable to the facts of this case as a result of evidentiary deficiencies at the summary judgment stage.
2. As discussed further in our opinion, Section 33.54 includes an exception to the limitations period for persons who were not served with citation in the suit to foreclose the tax lien when those persons paid taxes on the property during the limitations period and until a suit challenging the tax sale is commenced. See id. § 33.54(b).
3. See also Ocwen Loan Servicing, LLC v. Gonzalez Fin. Holdings, Inc., 77 F. Supp. 3d 584, 588 (S.D. Tex. 2015), aff'd sub nom. Ocwen Loan Servicing, L.L.C. v. Moss, 628 Fed. Appx. 327, 328 (5th Cir. 2016)(declining to apply one-year statute of limitations to a lienholder who did not receive notice of the tax sale)(“When the moving party has met its [summary judgment] burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and explain how that evidence prevents summary judgment on the movant's claim.”).
4. It is unclear to this Court where in Appellants’ petition they plead the inapplicability of the Tax Code's statute of limitations to their case.
5. We recognize, as the concurring opinion expounds on, there are circumstances where a defendant asserting a statute of limitations affirmative defense has the burden to conclusively negate a plaintiff's claim that the limitations period has not expired. Those circumstances include, as we mentioned previously in this opinion, where the plaintiff has pleaded the discovery rule. See Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021). Similarly, the burden lies with a defendant to conclusively negate other tolling provisions when they have been pleaded by the plaintiff. Id. at 95. However, when, as here, the plaintiff's argument is not for the tolling of limitations, but rather its complete avoidance for reasons of equity, the burden lies with the plaintiff to raise a fact issue to preclude summary judgment against it on a limitations defense. Id. at 88.
1. We describe a bill of review as an “equitable proceeding” that allows a court to set aside a judgment that is no longer subject to regular appeal. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). How much more so is a collateral attack on a judgment brought even after the time for filing an equitable bill of review.
2. I recognize, of course, that at the time the summary judgment was heard, Appellants would have faced the argument that the kind of extrinsic evidence at issue here—public deed records—would have been inadmissible in a collateral attack. See York v. State, 373 S.W.3d 32, 41 (Tex. 2012). The Texas Supreme Court modified that rule in an appeal arising from the very same tax sale judgment that gives rise to this case. Mitchell v. MAP Resources, Inc., 649 S.W.3d 180, 183–84 (Tex. 2022). I concede that the result here is harsh: the Appellants were not prescient enough to foresee the outcome of the Mitchell case and include their own deed records in their summary judgment response. But we cannot merely assume what those deed records may have shown, and further assume they would have provided the original taxing entities with a viable address for service of process.
YVONNE T. RODRIGUEZ, Chief Justice
Alley, J., Concurring Palafox, J., Dissenting
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Docket No: No. 08-20-00081-CV
Decided: August 30, 2022
Court: Court of Appeals of Texas, El Paso.
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