NO CV IN THE FIFTH COURT OF APPEALS FOR THE STATE OF TEXAS

Transcription

1 NO CV IN THE FIFTH COURT OF APPEALS FOR THE STATE OF TEXAS CASE NO. TX On Appeal from the 68 th Judicial District Court, Dallas County, Texas THE ESTATE OF DOROTHY SPRINGER AND TERRENCE GORE APPELLANTS, V. DALLAS COUNTY, ET. AL. APPELLEES, APPELLANTS AMENDED APPEAL BRIEF Terrence M. Gore 1500 Silver Creek Dr. DeSoto, TX For Appellants

2 IDENTITIES OF PARTIES AND COUNSEL APPELLANTS PARTIES The Estate of Dorothy Springer Terrence Gore Appellants/Defendants COUNSEL Pro Se Terrence M. Gore 1500 Silver Creek Dr. DeSoto, TX APPELLEES County of Dallas Dallas County Community College District Parkland Hospital District Dallas County School Equalization Fund City of DeSoto DeSoto Independent School District Appellees/Plaintiffs Sheila Fuqua Carter Linebarger, Goggan Blair & Sampson, LLP 2323 Bryan St, Ste Dallas, TX (469) (469) Fax: OTHER PARTY TO JUDGMENT John Montley King Defendant Pro Se John Montley King 920 Twin Creek Drive DeSoto, TX 75115

3 TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT OF JURISDICTION iii STATEMENT OF THE CASE iv STATEMENT OF POINTS OF ERROR vi POINT 1. Trial court erred, and abuse of discretion in granting judgment against appellants is Unconstitutional Deprivation Of Due Process and violation of Appellants rights. POINT 2. Trial court erred in Ex-Parte granting Plaintiffs Petition To Vacate Judgment (and reopen case), order dated August 19, POINT 3. Appellees/Plaintiffs, City of DeSoto and DeSoto not interveners or joiners under Tex. Property Code and/or POINT 4. Trial court erred as it was without jurisdiction as it plenary powers expired; Appellants were never served nor did they waive service. POINT 5. Trial court erred in granting judgment on February 19, 2009, as no evidence and/or insufficient evidence in support of judgment against Appellants/Defendants appears in the record. STATEMENT OF FACTS 1 SUMMARY OF THE ARGUMENTS 4 ARGUMENTS 6 PRAYERS 17 APPENDIX

4 TABLE OF AUTHORITIES STATUTES AND REGULATIONS TEX. CONSTITUTION 6 TEX. PROPERTY TAX CODE viii, 3, 4, 6, 15 TEX. PROPERTY TAX CODE 33.42(C) 10, 12 TEX. PROPERTY TAX CODE TEX. PROPERTY TAX CODE vi, vii, 2, 4, 7, 11 TEX. PROPERTY TAX CODE 33.44(B) 12 TEX. PROPERTY TAX CODE 33.44(C) 10, 12 TEX. PROPERTY TAX CODE vi,vii,3,5,7,8, 10,11,12,13 TEX. PROPERTY TAX CODE 33.56(A)(1) 10 TEX. PROPERTY TAX CODE 33.56(E) vi, 10, 14 TEX. R. CIV. P, RULE 21A vi, 2, 4, 6, 13 TEX. R. CIV. P, RULE 99 vi, 2, 4, 6 TEX. R. CIV. P, RULE 103 vi, 2, 4, 6 TEX. R. CIV. P, RULE 117A vi, 2, 4, 6 TEX. R. CIV. P, RULE U.S. CONSTITUTION 6 AUTHORITIES (TEXAS CASE LAW) Aldine Indep. School Dist. v. Ogg, S.W.3d 257, 264 (Tex.App.-Houston[1st Dist] 2003, no pet.) (citing Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex.1982)). Carter v. MacFadyen, 9 93 S.W.3d 307, (Tex. App.-Houston [14th Dist.] 2002, pet. denied) APPELLANT S AMENDED APPEALS BRIEF Page i

5 Cotton v. Cotton, vi, vii, 8, S.W.3d 506, 511 (Tex. App.-Waco 2001, no pet.). Davis v. City of Austin, S.W.2d 331, 333 (Tex.1982 Flowers v. Lavaca County Appraisal Dist., S.W.2d 825, 828 (Tex.App.-Corpus Christi 1989, writ denied Hollister v. Palmer ISD, S.W.2d 956 (Tex. App.-Waco 1998) Kao Holdings, L.P. v. Young 8 (No ) (per curiam), McKanna v. Edgar, S.W.2d 927, 929 (Tex. 1965). Maximum Med. Improvement, Inc. v. County of Dallas, S.W.3d 832 Tex. App. Dallas,(2008) Pete Dominguez Enter., Inc. v. County of Dallas, S.W.3d 385, 387 (Tex.App.-Dallas 2006, no pet.). Phifer v. Nacogdoches County Cent. Appraisal Dist., S.W.3d 159, 174 (Tex.App.-Tyler 2000, pet. denied) Primate Const., Inc. v. Silver, S.W.2d 151, 152 (Tex. 1994); Strawder v. Thomas, S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ) Uvalde Country Club v. Martin Linen Supply Co., S.W.2d 884, 885 (Tex. 195). Webster v. Thomas, 9, 14 5 S.W.3d 291 (Tex. App.-Houston [14th Dist.] 1999, no pet.) Werner v. Colwell, vi, 7, S.W.2d 866, 869 (Tex. 1995) Wright Bros. Energy, Inc. v. Krough, S.W.3d 271, 273 (Tex. App.-Houston [1st Dist.] 2001, no writ). APPELLANT S AMENDED APPEALS BRIEF Page ii

6 STATEMENT OF JURISDICTION The Fifth Court of Appeals for the State of Texas, Dallas, Texas has jurisdiction over this appeal in accordance to the Texas Rules of Appellate Procedure, Rule 25, 26, & 30. Appellants, The Estate of Dorothy Springer and Terrence Gore had amended his notice of appeal and/or filed new notice of appeal to properly indicate this appeal is a restricted appeal. The notice of restricted appeal was filed within 6 months of the judgment of February 19, 2009, thus is timely filed and in accordance to the guidelines, procedures and/or requirements for such an appeal. Appellants, the Estate of Dorothy Springer and Terrence Gore, although not personally or procedurally a party to the delinquent tax lawsuit, were rendered judgment upon. This Court has personal jurisdiction over appellants. APPELLANT S AMENDED APPEALS BRIEF Page iii

7 STATEMENT OF THE CASE (1) Nature of the Case: Appellees, Dallas County Et. Al. brought forth delinquent property tax lawsuit against the Estate of Dorothy Springer (Terrence Gore, purported Executor; and John King, purported Executor), John King (individually), World Savings & Loan, and Methodist Hospital of Dallas in 68 th Judicial District Court, Dallas County on or about October 27, 2005.[CR. 93] Default judgment dated April 20, 2007 was taken against the Estate of Dorothy Springer (Terrence M. Gore, Executor), John King (individually), and Terrence M. Gore (individual).[cr ] The Estate of Dorothy Springer (decedent) was voluntarily dismissed from the suit by Appellees [CR. 13]; and Terrence Gore was never named or party individually as a defendant in the suit nor was service made upon him. Upon motion to modify judgment and a separate motion for new trial, the trial court agreed that appellants should not have been rendered judgment upon; and subsequently set aside that judgment.[2 RR. PP. 4-5] Appellees were granted judgment on January 7, 2008 [CR ,96]; City of DeSoto voluntarily dismissed itself from its own delinquent tax suit.[cr. 40, 96] Appellees/Plaintiffs, City of DeSoto and DeSoto were granted a vacating order of January 7, 2008 judgment, reopening of case and joined the case as intervenors.[cr. 59,97] The trial court entered judgment against appellants on February 19, 2009[CR ,97]; there were neither service of citation, nor service of defaulted judgment of February 19, Upon discovering the defaulted judgment, appellants motioned for new trial in order to extend time to file appeal; motion was denied.[cr. 90,97] This appeal follows. (2) Trial Court Judge, Martin Hoffman Presiding Judge, Kent Sims APPELLANT S AMENDED APPEALS BRIEF Page iv

8 (3) 68 th Judicial District Court, Dallas County, TX. (4) Trial court disposition: On or about April 30, 2007 Appellees motion to dismiss from suit was granted, Vol./Book 506T, Page 403, 1 page [CR. 13]; A non-jury default judgment and order thereof rendered upon on April 30, 2007 was taken against the Estate of Dorothy Springer (Terrence M. Gore, executor), Vol./ Book 506T, Page 404, 4 pages [CR ]; On or about June 1, 2007 motion for new trial, and to modify judgment was filed on behalf of the Estate of Dorothy Springer [CR. 25]; On or about June 25, 2007 motion for new trial was grant; and the motion to modify judgment was not ruled upon; judgment was vacated [2 RR. PG.7; CR 78-82,84]; On or about January 7, 2008 default judgment was taken against Appellants Terrence M. Gore in favor of the Appellees Vol./Book 523T, Page 263, 3 pages [CR ,96]; Appellee/Plaintiff, City of DeSoto was voluntarily dismissed from its own delinquent property tax suit Vol./Book 523T, Page 262, 1 page [CR. 40,96]; On or about August 19, 2008 Appellees/Plaintiffs Petition To Vacate Judgment and Reopen Case pursuant to Tex. Property Code was granted ex-parte Vol./Book 538T, Page 293, 1 page [CR. 59,97]; On or about February 19, 2009 Appellees motion to vacate judgment was denied, Vol./Book 551T, Page 169, 1 page [CR. 71,97]; On or about February 19, 2009 judgment was rendered against Appellants; John M. King named property owner was dismissed from suit Vol./Book 551T, Page 170, 4 pages [CR ,97]; On or about April 15, 2009 Appellees motion for new trial was denied, Vol./Book 555T, Page 324 [CR. 90,97] APPELLANT S AMENDED APPEALS BRIEF Page v

9 STATEMENT OF POINTS OF ERROR POINT 1. Trial court erred, and abuse of discretion in granting judgment and issuing other orders against Appellants is Unconstitutional Deprivation Of Due Process and violation of Appellants rights. a. Rendering judgment against Appellants/Defendants without service is voided, pursuant to Tex. R. Civ. P. 124; Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); and Tex. Property Tax Code b. Appellants/Defendants not served citation and/or copy of Plaintiffs Second Amended Petition as required by Tex. R. Civ. P, Rules 21a, 99, 103 & 117a. Appellees/Plaintiffs did not request service of citation, and Appellants did not waive service. Trial court lacked personal jurisdiction of Appellants/ Defendants. Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.-Waco 2001, no pet.) c. Appellees/Plaintiffs, as taxing units, failed to exercise proper diligence to provide notice of February 19, 2009 delinquent tax judgment to Appellants. d. Ordered granting partial dismissal of City of DeSoto from delinquent tax suit was improper and invalid pursuant to Tex. Property Tax Code POINT 2. Trial court erred in Ex-Parte granting Plaintiffs Petition To Vacate Judgment (and reopen case), order dated August 19, a. Appellees/Plaintiffs did not serve petition/motion or conference Appellants/Defendants in accordance and required by law, Tex. Property Code 33.56, Tex. R. Civ. P, Rule 21a. Appellees City of DeSoto and DeSoto Independent School District did not adhere explicitly and completely with Tex. Property Tax Code 33.56(e) b. Appellees/Plaintiffs failed to exercise due diligences in serving and/or conferencing Appellants/Defendants. c. Appellees/Plaintiffs without grounds to vacate judgment under Tex. Property Code APPELLANT S AMENDED APPEALS BRIEF Page vi

10 d. Appellants/Defendants were denied due process to be heard on Appellees petition to vacate, and reopen. e. Trial court improperly granted Appellees petition without hearing and notice of hearing to other affected parties. f. Appellees City of DeSoto and DeSoto Independent School District are improper parties and did not meet criteria in accordance and strictest nature of Tex. Property Tax Code POINT 3. Appellees/Plaintiffs, City of DeSoto and DeSoto ISD not interveners or joiners under Tex. Property Code and/or a. Appellees/Plaintiffs were parties in the original petition, citation, and/or prior judgments vacated or alive. b. Appellees City of DeSoto and DeSoto Independent School District are improper parties and did not meet criteria in accordance and strictest nature of Tex. Property Tax Code POINT 4. Trial court erred as it was without jurisdiction as it plenary powers expired; Appellants were never served nor did they waive service. a. Trial court plenary power are extended pursuant to Tex. Property Tax Code b. Trial court lack personal jurisdiction over Appellants as they were not served nor waived service. For any court to obtain in personam jurisdiction over a person, the person must be given notice of the suit. Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.-Waco 2001, no pet.). POINT 5. Trial court erred in granting judgment on February 19, 2009 as no evidence and/or insufficient evidence in support of judgment against Appellants/Defendants appears in the record. a. Evidence in trial court records does not support or is insufficient to support judgment against Appellant. APPELLANT S AMENDED APPEALS BRIEF Page vii

11 b. Evidence in trial court records does not support or is insufficient to support judgment in favor of DeSoto ISD against Appellant. c. No tax notices of delinquency or taxes due delivered to Appellants for the years sought in suit as required under Tex. Property Tax Code APPELLANT S AMENDED APPEALS BRIEF Page viii

12 STATEMENT OF FACTS 1. Terrence Gore is an individual, was appointed executor for the Estate of Dorothy Springer through Probate Court No.1, Dallas County, TX case no P. 2. John M. King, recorded a deed from the Estate of Dorothy Springer with the Dallas County Clerk s office on March 30, 2006 instrument # Any and/or all tax statements have been or were sent to John M. King, 920 Twin Creek Dr., DeSoto, TX [3 RR. PX#1, PX#2; CR 78-82, 84] 3. The Estate of Dorothy Springer was voluntarily dismissed from delinquent tax legal action, cause no. TX in the state district court, Dallas County, TX on April 30, 2007.[CR. 13] 4. Appellants were not served notice/citation in which Feb. 19, 2009 defaulted judgment was taken; Appellees did not request service. [CR. 34] 5. There was no issuance of citation to Appellant(s) by the district clerk for the county of Dallas as such service of citation was not requested by Appellees. [CR. 34] 6. Appellees, City of DeSoto voluntarily dismissed itself from its own delinquent tax suit on January 7, 2008, day judgment rendered in favor of Appellees against John M. King. [CR. 40] APPELLANTS AMENDED APPEAL BRIEF Page 1 of 17

13 7. Appellees did not serve notice of Petition To Vacate Judgment and Reopen Case pursuant to Tex. Property Code Appellees certificate of service upon Appellants were wrong or non-existent addresses. [CR. Page 58] Appellants address of record was at time of certificate of service 1500 Silver Creek Dr., DeSoto, TX [CR page 51] 8. Trial court granted Ex-Parte, Appellees Petition To Vacate Judgment (August 19, 2008) and Reopen Case pursuant to Tex. Property Code [CR. 6, 55] 9. Appellees did not serve citation and/or notices as required under TRCP Rules 21a, 99, 103, 117a, Tex. Property Code and/or Appellees did not request service of citation, but relied upon waiver of service. [CR. 33, 34-37] 10. Appellees certified address of Appellants as: Terrance Gore, 920 Town Creek Dr., DeSoto, TX 75115; and Terrance Gore, 2400 State Highway 121 #2204, Euless, TX Such addresses are either non-existent or incorrect. [CR (missing page 5 of Judgment )] see ANT EXH. 11. Appellees did not request service or obtain waiver of service for citation to Appellant(s) in their Plaintiffs Second Amended Petition of December 14, 2007 to Amend To Add Defendants. [CR. 34] APPELLANTS AMENDED APPEAL BRIEF Page 2 of 17

14 12. Appellants were not present during hearing of February 19, 2009 in which final judgment was rendered. [3 RR. PG. 2] 13. City of DeSoto and DeSoto ISD, commonly and collectively makeup the DeSoto Tax Office, were parties to the delinquent tax in which this appeal is taken and prior to the January 7, 2008 judgment and/or becoming intervenors.[cr, 16-17] 14. Appellees has not delivered notices to Appellants for current and/or delinquent property taxes sought in their suit under Tex. Property Code [3 RR. PX#1, PX#2; CR 78-82, 84] APPELLANTS AMENDED APPEAL BRIEF Page 3 of 17

15 SUMMARY OF THE ARGUMENTS Appellants will show the trial court was without jurisdiction in the matter appealed before this Court; the trial court abused its discretion in deprivation of appellants constitutional right to due process; and the February 19, 2009 judgment or any prior judgments taken against Appellants is/are not valid and thus voided and not enforceable. The trial court did not exercise proper oversight of Appellees actions in this matter such as lack of service to appellants, delivery of required notices, ex-parte granting of motions, and deprivation of appellants constitutional rights to due process. Appellees failed to provide service to Appellants in more than eight (8) instances in which service was required under TRCP Rules 21a, 99, 103, 117a, Tex. Property Code and The lack of such services and strict proof of thereof was not enforced by the trial court to the extent that said trial court issued an ex-parte order that adversely affected Appellants. Further, Appellees have not delivered delinquent tax notice as required under Tex. Property Code Appellees, especially City of DeSoto and DeSoto ISD were parties in the suit prior to trial court granting their petition/motion to vacate their own judgment, reopen case APPELLANTS AMENDED APPEAL BRIEF Page 4 of 17

16 [CR. 14, 16] under Tex. Property Code thereof; thus was groundless and the trial court abused its discretion as it was without jurisdiction and granted such petition/motion ex-parte. The February 19, 2009 judgment, as well as prior judgments, and the August 19, 2008 order to vacate and reopen are riddled with judiciary and procedural errors as perpetrated by Appellees haphazard and hastily attempt to secure judgment. This restricted appeal follows final judgment. APPELLANTS AMENDED APPEAL BRIEF Page 5 of 17

17 APPELLANTS ARGUMENTS POINT 1. Trial court erred, and abuse of discretion in granting judgment and issuing other orders against Appellants is Unconstitutional Deprivation Of Due Process and violation of Appellants rights. Appellants contend that the trial court abused its discretion when it rendered default judgment against Appellants. It is a well-established rule of law across every courtroom in the state of Texas as well as every part of the Union, that judgment cannot be rendered against a party or defendant in civil matter were the party has not been service with a proper notice of legal action. In the state of Texas said notice of legal action is a citation issued by a duly authorized person under state law. Further, U.S and Texas Constitutions forbid the deprivation of property without due process of law, or if private property be taken for public use, without just compensation. In 68 th State District Court, the duly authorized person is the district clerk for the county of Dallas, TX. Appellees had a legal obligation to rendered service upon Appellants, which never happened. Appellants were not served citation and/or copy of (Appellees ) Plaintiffs Second Amended Petition as required by Tex. R. Civ. P, Rules 21a, 99, 103 & 117a.[CR ] Appellees did not request service of citation, and Appellants did not waive service.[cr. 34] Appellees did not request service nor was service attempted; no citation was ever issued to Appellants that lead to the February 19, 2009 judgment. These facts are well APPELLANTS AMENDED APPEAL BRIEF Page 6 of 17

18 established on the face of the trial court s records. On or about June 25, 2007 hearing, the trial court ask appellant Gore if he was entering an appearance since service was not made; Gore specifically stated he would rather be served first.. [2 RR. 7] The trial judge reflected in the record the Estate of Dorothy Springer was dismissed from the legal proceedings on April 30, 2007, but judgment was still rendered and should not have been done.[2 RR. 5] The act of judgment without service was repeated in the February 19, 2009 judgment in which this appeal is taken. Appellees, governmental taxing units, failed to exercise proper diligence to provide notice of February 19, 2009 delinquent tax judgment to Appellants; which strict compliance with service is an essential provision of Tex. Property Tax Code 33.43, 33.44, & When the taxing units failed to show strict compliance with the rules regarding the return of service for a delinquent tax lawsuit, the defaulted judgment entered should be void. App.-Waco 1998). Hollister v. Palmer ISD, 958 S.W.2d 956 (Tex. Rendering of such judgment against Appellants without service is invalid and should be voided by this Court, pursuant to Tex. R. Civ. P. 124 and Tex. Property Tax Code The general rule is that judgment shall not be rendered against one who was neither named nor served as a party defendant. Tex. R. Civ. P. 124; Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995). For any court to obtain in personam jurisdiction over a person, the person must be APPELLANTS AMENDED APPEAL BRIEF Page 7 of 17

19 given notice of the suit. Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.-Waco 2001, no pet.). Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ). "Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void." When a default judgment is attacked by restricted appeal, we do not indulge any presumptions in favor of valid issuance, service, and return of citation. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). Failure to show strict compliance with the rules relating to proper service renders any attempted service invalid and requires us to set aside the default judgment. Uvalde Country Club, 690 S.W.2d at 885. In Kao Holdings, L.P. v. Young (No ) (per curiam), a restricted appeal, the Court reversed a default judgment granted against an individual who was not named as party to the suit, modified the judgment, and affirmed as modified. Appellees did not exercise diligence in ascertaining Appellants address. Appellees went as far as to certify to the trial court that Appellants addresses were: 920 Town Creek Dr., DeSoto, TX 75115; and 2400 State Highway 121 #2204, Euless, TX [CR (missing page 5 of Judgment )] see ANT EXH Such addresses are either nonexistent or incorrect. Failure of the Appellees to use common sources of information, including its own records or court records to ascertain the defendant's address, established lack APPELLANTS AMENDED APPEAL BRIEF Page 8 of 17

20 of diligence as a matter of law according to ruling in Webster v. Thomas, 5 S.W.3d 287, 289 (Tex. App.-Houston [14th Dist.] 1999, no pet.) at 291 (finding no diligence as a matter of law when plaintiff made efforts at service, but they were careless and not persistent). A Texas Court of Appeals found in Carter v. MacFadyen, 93 S.W.3d 307, (Tex. App.-Houston [14th Dist.] 2002, pet. denied) a flurry of ineffective activity does not constitute due diligence if easily available and more effective alternatives are ignored. Failure of taxing unit to exercise proper diligence to provide notice of default delinquent tax judgment to the taxpayer is an unconstitutional deprivation of due process and should results in judgment being set aside. POINT 2. Trial court erred in Ex-Parte granting Plaintiffs Petition To Vacate Judgment (and reopen case), order dated August 19, 2008 The trial court granting ex-parte order dated August 19, 2008 of Appellees petition to vacate judgment and reopen case was a deprivation of Appellants constitutional rights to due process. Much of this argument has been state in Point 1 and is an almost identical argument. Without recite the deprivation of right to due process argument, Appellees will rely, not on its entirety, arguments in Point 1. Appellees were not entitled to order on their petition/motion as they did not need relief from conditions as specifically stated in Tex. Property Tax Code APPELLANTS AMENDED APPEAL BRIEF Page 9 of 17

21 The City of DeSoto and DeSoto ISD were already parties to the delinquent suit.[cr. 14, 16 2] Tex. Property Tax Code 33.56(a)(1). Appellant, the Estate of Dorothy Springer was an original defendant in the suit and thus did not fail under the criteria of 33.56(a)(1) as they were voluntarily dismissed earlier on [CR. 13] along with two other defendants Methodist Hospital and World Saving & Loan Association. The recorded/registered taxpayer and deed holder was John M. King for whom Appellees dismissed without any motion on record before the trial court [3 RR; CR. 72 3]. Finally, there was no service of Appellees petition to vacate judgment and reopen case or copy of its proposed order upon Appellant requires strict compliance under Tex. Property Tax Code 33.56(e); again Appellees attempted service to a wrong and/or non existent address. [CR. 58]. No hearing was held by the trial court on the matter. City of DeSoto and DeSoto ISD used the provisions of Tex. Property Tax Code to vacate the January 7, 2008 judgment to circumvent not filing its claim and/or including their claims in that judgment, which as a matter of law taxes omitted from judgment in a delinquent tax suit may not be collected upon at a later time and said January 7, 2008 judgment extinguished the City of DeSoto and DeSoto ISD s delinquent tax claims and lien under Tex. Property Tax Code 33.42(c) and 33.44(c).[CR ] APPELLANTS AMENDED APPEAL BRIEF Page 10 of 17

22 POINT 3. Appellees/Plaintiffs, City of DeSoto and DeSoto ISD not interveners or joiners under Tex. Property Code and/or Ordered granting partial dismissal of City of DeSoto from delinquent tax suit was improper and invalid pursuant to Tex. Property Tax Code and City of DeSoto as a matter of law in delinquent tax suits cannot divest itself from such a suit in which it is a party unless delinquent taxes owed are paid. Further, attempts of Appellees in a delinquent tax suit deprives any taxpayer the right to adjudicate all delinquent taxes, and contributes to frivolous and/or prolong litigation and associated cost. DeSoto Independent School District was never dismissed or otherwise not a party to the suit. DeSoto ISD necessitating to be an intervenor was improper, unnecessary and not permissible under Tex. Property Tax Code DeSoto ISD delinquent taxes were included in the April 30, 2007 judgment.[cr, 16-17] City of DeSoto and DeSoto ISD are also joint taxing entities (DeSoto Joint Tax Office), which is significant as they also share a common tax assessor.[3 RR. PX.#2] Appellees original citation specifically stated that there were no taxing units which assesses and collect taxes on said property not made party to the delinquent tax suit issued on or about June 30, DeSoto ISD had filed a separate action on June 8, 2005 in cause no. TX ; but subsequently dismissed their action and joined the latter APPELLANTS AMENDED APPEAL BRIEF Page 11 of 17

23 action. Tex. Property Tax Code 33.44(b) specifically provides for joining of taxing units. DeSoto ISD was automatically a party once the DeSoto Joint Tax Office was served with citation or otherwise the officer in charge of assessing and collecting taxes for the DeSoto Joint Tax office became subject to the jurisdiction of the trial court. Appellants contends that DeSoto ISD was already a party not subject to provisions of Tex. Property Tax Code Likewise, the order granting Appellees petition to vacate judgment, reopen case; and consequently joining of City of DeSoto and DeSoto ISD as intervenors should be voided for failure to strictly service compliance and party s intervenor criteria of Tex. Property Tax Code It is bewildering and without any judicial reasoning that the trial court signed an order dismissing the City of DeSoto from its own delinquent tax suit on the very day it rendered default judgment in favor of Appellees.[CR. 40] The January 7, 2008 judgment as authored by Appellees deliberately omitted the claims of the extinguished and made uncollectable their tax claims under 33.44(c). [CR.41-43] Tex. Property Tax Code 33.42(c) and Tex. Property Tax Code 33.56, is not intended to aid taxing units in adjudicating their delinquent tax claims after final judgment when the taxing unit was a party in suit. APPELLANTS AMENDED APPEAL BRIEF Page 12 of 17

24 POINT 4. Trial court erred as it was without jurisdiction as it plenary powers expired; Appellants were never served nor did they waive service. The trial court did not have personal jurisdiction over Appellants. Appellants was never sued or served a citation or notice of lawsuit, and/or were voluntarily dismissed by Appellees. The District Clerk for the county of Dallas did not issue a citation for delinquent tax suit upon Appellees, nor has there been a return of service of any issued citation. The trial court record will show the non-issuance of citation for Appellants, there was no service or attempt of service, and further no return of service, and Appellees did not request service of citation from the District Clerk upon Appellants; thus, trial court was effectively without personal jurisdiction over Appellants. The trial court did not impose its jurisdiction over Appellants as it recognized that Appellants were voluntarily dismissed by Appellees. Appellants specifically stated it wanted to be served and did not waive service. [2 RR. PG. 7] Trial Court was further without jurisdiction as it erred in granting Appellees Plaintiffs Petition To Vacate Judgment (and reopen case), under Tex. Property Tax Code Without the authority to extend it plenary power under 33.56, the trial court could not established jurisdiction as its plenary had expired. Appellees failed to serve a copy of the petition must be served in a manner authorized by Rule 21a, Texas Rules of APPELLANTS AMENDED APPEAL BRIEF Page 13 of 17

25 Civil Procedure, on each party to the delinquent tax suit; which is the strict compliance with service requirements of Tex Property Tax Code 33.56(e). The trial court record shows that Appellees certificate of service upon Appellants were in fact wrong or non-existent addresses.[cr. 58] The record will also show that Appellants address of record was 1500 Silver Creek Dr., DeSoto, TX [CR. 51] Jurisdiction over a defendant must be established in the record by an affirmative showing of service of citation independent of recitals in the default judgment. Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex. App.-Houston [1st Dist.] 2001, no writ). In addition, strict compliance must be affirmatively shown in the record unless the defendant voluntarily appears before judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). Trial court lack personal jurisdiction over Appellants as they were not served nor waived service. For any court to obtain in personam jurisdiction over a person, the person must be given notice of the suit. Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.-Waco 2001, no pet.) POINT 5. Trial court erred in granting judgment on February 19, 2009 as no evidence and/or insufficient evidence in support of judgment against Appellants/Defendants appears in the record. DeSoto ISD was not entitled its judgment as the evidence according to the trial court records does not support or is insufficient to support judgment against Appellant. The tax record for DeSoto ISD as offered into evidence is not supported as to its authenticity as being true and correct by an authorized taxing unit officer or agent. [3 RR. PX.#2, PP.1, 2; APPELLANTS AMENDED APPEAL BRIEF Page 14 of 17

26 CR. 83, 84] The only affidavit on record are for Dallas County, Callas County Community College Dist., Parkland Hospital Dist., Dallas County School Equalization Fund, and the City of DeSoto as certifying the amount owed to the taxing unit as true and correct. [CR. 77, 83] No such affidavit appears in the record for DeSoto ISD nor is such offered as testimony before the trial court. All of the tax record offered into evidence shows the property owner and/or taxpayer to be John M. King, 920 Twin Creek Dr., DeSoto, TX [3 RR. PX#1, PX#2; CR 78-82, 84] Mr. King had on file recorded with the Dallas County Clerk and as record with the Dallas County Appraisal District his ownership and responsibility for said taxes. Appellees did not deliver unto Appellants notice of delinquent property taxes or taxes due as required under Tex. Property Tax Code Appellees in not entitled to judgment since they have failed to exercise due diligence in delivering notice of delinquent property taxes and no such notices are evident in the trial court records. The proof of delivery of delinquent taz notices is factually material and necessary for Appellees to establish their cause of action. Aldine Indep. School Dist. v. Ogg, 122 S.W.3d 257, 264 (Tex.App.-Houston[1st Dist] 2003, no pet.) (citing Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex.1982)). Appellees have to take all actions necessary to obtain legal authority to levy the tax, including APPELLANTS AMENDED APPEAL BRIEF Page 15 of 17

27 proper delivery of all required tax notices. Id. (citing Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 828 (Tex.App.- Corpus Christi 1989, writ denied); without doing so Appellees cannot maintain their establishment of prima facie case creates presumption that it has taken all actions necessary to obtain legal authority to levy tax. Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 174 (Tex.App.-Tyler 2000, pet. denied). When taxing authority introduced certified copies of delinquent tax record, it established its prima facie case as to every material fact necessary to establish its cause of action, including taxpayer's receipt of delinquent tax notices)). If, however, the identity of the entity named as the owner does not match the identity of the defendant sued for non-payment, no presumption arises as to the defendant's liability. Pete Dominguez Enter., Inc. v. County of Dallas, 188 S.W.3d 385, 387 (Tex.App.-Dallas 2006, no pet.). The trial court records clearly shows that delinquency tax notices were in fact delivered to John M. King, 920 Twin Creek Drive, DeSoto, TX 75115, and not Appellants. [3 RR. PX#1, PX#2; CR 78-82, 84] Appellees has offered no proof to establish their prima facie cause of action against Appellants. This Court has recently held that it is the necessity of a taxing unit to have establish as a material fact, delivered notices of delinquency taxes upon the party who is being sued in order to establish cause of action; and without such judgment rendered against a defendant is a APPELLANTS AMENDED APPEAL BRIEF Page 16 of 17

28 reversible error in which the taxing unit takes nothing by way of its claim. Maximum Med. Improvement, Inc. v. County of Dallas, 272 S.W.3d 832 Tex. App. Dallas,(2008). Texas Supreme Court has established that a plaintiff must meet the burden of proof to be granted a judgment, Werner, 909 S.W.2d at 869. Appellees have failed to show and have not meet the burden of proof that Appellants were responsible for delinquent property taxes by offer no or insufficient evidence of such. Appellees should take nothing by way of their claims and suit. PRAYERS Appellants pray that the Court will render fair and equitable justice as denied by the trial court and will reverse the judgment of said court. Appellants prays that Appellees takes nothing by way of their delinquent tax suit against Appellants; and Appellants will be given all relief rightfully and fairly entitled to including cost of court and release of any property tax levies against Appellants. Respectfully submitted, Terrence M. Gore 1500 Silver Creek Dr. DeSoto, TX APPELLANTS AMENDED APPEAL BRIEF Page 17 of 17

29 APPENDIX Index (A) the trial court s judgment or other appealable order from which relief is sought; Attached Judgment February 19, 2009 Order August 19, 2008 Order January 7, 2008 (B) the text of any rule, regulation, ordinance, statute, constitutional provision, or, other law (excluding case law) on which the argument is based, and the text of any contract or other document that is central to the argument. U.S. CONSTITUTION, AMENDMENT V TEX. CONSTITUTION, ARTICLE 1, SEC. 17 & 19 TEX. PROPERTY TAX CODE 33 TEX. RULES OF CIV. P. 21a TEX. RULES OF CIV. P. 99 TEX. RULES OF CIV. P. 103 TEX. RULES OF CIV. P. 117a TEX. RULES OF CIV. P. 124 Text Of Authorities, Contract Or Other Document That Is Central To The Argument (C) Page 5 of February 19, 2009 Judgment (certificate of service) Attached (D) Warranty Deed instrument # , 03/30/2006 Attached APPELLANTS AMENDED APPEAL BRIEF, APPENDIX

30 APPENDIX ATTACHMENTS behind this page

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45 TEX. RULES OF CIV. P. 21 FILING and SERVING PLEADINGS and MOTIONS Every pleading, plea, motion or application to the court for an order, whether in the form of a motion, plea or other form of request, unless presented during a hearing or trial, shall be Filed with the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order sought, and at the same time a true copy shall be served on all other parties, and shall be noted on the docket. An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court. If there is more than one other party represented by different attorneys, one copy of such pleading shall be delivered or mailed to each attorney in charge. The party or attorney of record, shall certify to the court compliance with this rule in writing over signature on the filed pleading, plea, motion or application. RULE 99. ISSUANCE AND FORM OF CITATION a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition. Upon request, separate or additional citations shall be issued by the clerk. b. Form. The citation shall (1) be styled "The State of Texas," (2) be signed by the clerk under seal of court, (3) contain name APPELLANTS AMENDED APPEAL BRIEF, APPENDIX

46 and location of the court, (4) show date of filing of the petition, (5) show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of plaintiff, (10) contain the time within which these rules require the defendant to file a written answer with the clerk who issued citation, (11) contain address of the clerk, and (12) shall notify the defendant that in case of failure of defendant to file and answer, judgment by default may be rendered for the relief demanded in the petition. The citation shall direct the defendant to file a written answer to the plaintiff's petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service thereof. The requirement of subsections 10 and 12 of this section shall be in the form set forth in section c of this rule. c. Notice. The citation shall include the following notice to the defendant: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you." d. Copies. The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies. APPELLANTS AMENDED APPEAL BRIEF, APPENDIX

47 RULE 103. WHO MAY SERVE Process - including citation and other notices, writs, orders, and other papers issued by the court - may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property, or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order. RULE 117. RETURN OF CITATION BY PUBLICATION The return of the officer executing such citation shall be indorsed or attached to the same, and show how and when the citation was executed, specifying the dates of such publication, be signed by him officially and shall be accompanied by a printed copy of such publication. RULE 117a. CITATION IN SUITS FOR DELINQUENT AD VALOREM TAXES In all suits for collection of delinquent ad valorem taxes, the rules of civil procedure governing issuance and service of citation shall control the issuance and service of citation therein, except as herein otherwise specially provided. APPELLANTS AMENDED APPEAL BRIEF, APPENDIX

48 1. Personal Service: Owner and Residence Known, Within State. 2. Personal Service: Owner and Residence Known, Out of State. 3. Service by Publication: Nonresident, Absent From State, Transient, Name Unknown, Residence Unknown, Owner Unknown, Heirs Unknown, Corporate Officers, Trustees, Receivers or Stockholders Unknown, Any Other Unknown Persons Owing or Claiming or Having an Interest. 4. Citation in Tax Suits: General Provisions. 5. Form of Citation by Publication or Posting. TEX. RULES OF CIV. P. 124 NO JUDGMENT WITHOUT SERVICE In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules. APPELLANTS AMENDED APPEAL BRIEF, APPENDIX

49

50

51

52

53

54

55

56

57

58

59

60

61 B-6

62

63 C

64 D