Opinion
No. 06-16-00067-CV
05-03-2017
GREGORY T. MAYS AND NADINE R. KING-MAYS, Appellants v. DALLAS COUNTY, ET AL., Appellees
On Appeal from the 298th District Court Dallas County, Texas
Trial Court No. TX-14-41013 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
After Gregory T. Mays (Gregory) and Nadine R. King-Mays (Nadine) failed to pay the property taxes on their Dallas residence, the various taxing entities claiming those taxes—Dallas County, the City of Dallas, Dallas Independent School District, Dallas County School Equalization Fund, Dallas County Community College District, and Parkland Hospital District (collectively, the Taxing Entities)—filed suit in Dallas County for delinquent taxes, penalties, interest, attorney fees, and costs for tax years 2005 through 2013, inclusive, and for foreclosure of the tax lien on the subject property. For unknown reasons, the Taxing Entities identified Nadine as residing at the Dallas residence, but erroneously identified Gregory as a non-resident. The Taxing Entities later realized their mistake and filed an amended petition correcting their mistake and expanding their claims to include the 2014 and 2015 tax years. From a judgment in the amount of $90,481.50, plus penalty and interest, and an order of foreclosure of the tax lien, Nadine and Gregory appeal, complaining that Gregory was not properly joined as a party pursuant to Rule 39 of the Texas Rules of Civil Procedure and was not served with process. We affirm the trial court's judgment, because (1) Gregory was properly joined as a party defendant and (2) the trial court properly entered judgment against Gregory since he was served with process.
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
The record in this case shows that the original petition filed by the Taxing Entities named Nadine and Gregory as defendants and identified Nadine as residing at 824 North Marsalis Avenue, Dallas, Texas (the Dallas Residence), but identified Gregory as a non-resident residing in Virginia. Nadine was served and filed an answer. On February 17, 2016, the Taxing Entities filed their first amended petition stating that the amendment was to correctly identify defendants, again identifying Nadine as residing at the Dallas Residence, but identifying Gregory as residing at the Dallas Residence and requesting service on him. According to the docket sheet, citation on Gregory was issued that same day and returned unserved on March 21, 2016. On April 7, 2016, the Taxing Entities filed a motion for substitute service on Gregory pursuant to Rule 106(b) of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 106(b). On April 11, 2016, the trial court granted the motion and ordered that service be made on Gregory by either (1) delivering a copy of the citation and a copy of the first amended petition to any person over the age of sixteen at Gregory's usual place of abode or (2) by attaching the citation and a copy of the first amended petition to the door of Gregory's usual place of abode at the Dallas Residence. A return of service on Gregory was filed April 18, 2016, stating that Gregory was served April 18, 2016, by attaching the citation and a copy of the petition to the front door per the Rule 106 order.
On May 10, 2016, curiously, Gregory filed a document entitled "Special Appearance." In that document, Gregory admitted that he resides at the Dallas Residence and that he is a resident of Texas, he asserted that the Taxing Entities had not amended their pleading naming him as a defendant, and he claimed that he had not been served with citation. Gregory also asked the trial court to sustain his objection to the jurisdiction, to quash the citation issued by the Taxing Entities, and to order the Taxing Entities to replead and remove the defects in their pleading.
Although Gregory's pleading purports to be a special appearance, a special appearance is available only to a non-resident to challenge personal jurisdiction in a Texas court. Klingenschmitt v. Weinstein, 342 S.W.3d 131, 133 (Tex. App.—Dallas 2011, no pet.). In the pleading, Gregory admits that he is a Texas resident, so a special appearance is not available to him. But, Gregory also asks the court to quash the citation. Rule 71 requires the court "to look to the substance of a plea for relief to determine the nature of the pleading, not merely at . . . the title given to it." State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (citing TEX. R. CIV. P. 71). Therefore, we will construe Gregory's pleading as a motion to quash citation. See id.
On June 28, 2016, the trial court held a trial on the merits at which neither Nadine nor Gregory appeared, and, after receiving evidence from the Taxing Entities, orally granted judgment in favor of the Taxing Entities. About an hour after the hearing, Nadine appeared on behalf of Gregory and informed the trial court that she had filed a motion to quash citation on his behalf. After some discussion, the trial court continued the hearing until July 5, 2016.
At the July 5 hearing, Nadine appeared on behalf of Gregory and herself. After reviewing the evidence supporting the judgment in favor of the Taxing Entities, Nadine, for herself and Gregory, expressed no objection to the evidence, arguing only the issue of Gregory's motion to quash. Nadine argued for Gregory that there had been no motion filed to amend the Taxing Entities' petition to identify Gregory as the correct defendant. The trial court overruled Gregory's motion to quash; and, although Gregory and Nadine argued that the amount of the judgment was incorrect, they offered no evidence in support of their argument. The trial court then entered judgment in favor of the Taxing Entities.
(1) Gregory Was Properly Joined as a Party Defendant
Gregory and Nadine initially argue that Gregory's joinder as a party defendant was required under Rule 39 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 39 (mandating joinder of persons needed for just adjudication of the action). In support of their argument that Gregory was not properly joined as a party, they argue that no motion for joining Gregory under Rule 39 was filed, nor was there an order allowing his joinder. Gregory and Nadine cite no authority for their argument that a motion and order for joinder were required. In this case, the Taxing Entities amended their petition to correctly identify Gregory as a party defendant.
Rule 39 of the Texas Rules of Civil Procedure provides for the joinder of all persons who have an interest in the action so that any relief awarded will completely adjudicate the dispute and allows the trial court to order such joinder. TEX. R. CIV. P. 39; Brooks v. Northglen Ass'n, 141 S.W.3d 158 (Tex. 2004). However, neither Rule 39 nor the cases cited by Gregory and Nadine require a party to obtain leave of court to join such persons.
A trial court's ruling on an amended pleading is reviewed under an abuse of discretion standard. Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 622 (Tex. App.—Dallas 2010, no pet.) (citing Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980)). In addition, a trial court's ruling on issues of joinder of parties will not be disturbed except for an abuse of discretion. Williamson v. Tucker, 615 S.W.2d 881, 886-87 (Tex. Civ. App.—Dallas 1981, writ ref'd. n.r.e.). It is an abuse of discretion if the trial court acts arbitrarily or unreasonably, without reference to any guiding rules and principles. Halmos, 314 S.W.3d at 622 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). In our review, "we may not substitute our own judgment for that of the trial court." Id. (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)).
"The object of an [amended pleading] . . . is to add something to, or withdraw something from, that which has been previously pleaded so as to . . . correct that which has been incorrectly stated by the party making the amendment." TEX. R. CIV. P. 62. A party may amend its pleading without leave of court up to seven days before trial, or within such time as allowed under a pretrial order, if the amendment does not operate as a surprise to the opposing party. TEX. R. CIV. P. 63; Halmos, 314 S.W.3d at 622; Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex. App.—Dallas 2006, pet. denied). A trial court may not refuse to allow the amended pleading unless (1) the party opposing the amendment produces evidence of surprise or prejudice; or (2) the amendment adds a new cause of action, and the opposing party objects to the amendment. Halmos, 314 S.W.3d at 622 (Hakemy Bros., Ltd., 189 S.W.3d at 924).
Further, under Rule 37 of the Texas Rules of Civil Procedure, the "plaintiff may amend [its] petition to substitute new parties for those named so long as the addition by amendment does not unreasonably delay trial of the case or prejudice the defendant." Myers v. HCB Real Holdings, LLC, No. 05-13-00113-CV, 2015 WL 2265152, at *4 (Tex. App.—Dallas May 14, 2015, pet. denied) (mem. op.) (citing Int'l Shelters, Inc. v. Pinehurst Inv. Corp., 474 S.W.2d 497, 499 (Tex. App.—Corpus Christi 1971, writ dism'd)); see TEX. R. CIV. P. 37. Such amendment is permissible if the substitution of the new party does not prejudice the defendant. Id. at *4; Int'l Shelters, Inc., 474 S.W.2d at 499.
In this case, the Taxing Entities amended their petition correctly naming Gregory as a party defendant over four months before trial. Whether the amendment is viewed as merely correcting the residence address of Gregory, or it is viewed as substituting Gregory as a party defendant, the Taxing Entities could amend their pleadings and name Gregory as a party defendant without leave of court. See Halmos, 314 S.W.3d at 622; Myers, 2015 WL 2265152, at *4. At the hearing, Gregory and Nadine did not produce any evidence of surprise or prejudice resulting from the amended petition. Further, the record shows that Nadine had previously filed an answer and that Gregory was served with the amended petition over two months before trial. Therefore, the trial court could reasonably find that they did not suffer any surprise or prejudice by the amendment.
Based on this record, Gregory was properly joined as a party.
(2) The Trial Court Properly Entered Judgment Against Gregory Since He Was Served with Process
Gregory also argues that the trial court erred in entering judgment against him because there is no evidence that he was joined as a party and served with process. However, as set forth above, the record shows that on file at the time the trial court overruled the motion to quash were: (1) the trial court's order for substituted service of citation and the amended petition on Gregory by attaching the same to the door of the Dallas Residence, (2) a copy of the issued citation on Gregory at the Dallas Residence, and (3) the return of citation showing that service was accomplished on Gregory by attaching the citation and petition to the front door of the Dallas Residence. The return of citation is verified in compliance with Rule 107 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 107(e).
Thus, at the time judgment was entered against Gregory, the record showed that there had been strict compliance with the rules governing issuance, service, and return of process. See Rone Eng'g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 507 (Tex. App.—Dallas 2010, no pet.). Gregory offered no evidence challenging the propriety of the service. Based on this record, we find no error in the trial court overruling the motion to quash.
When his motion to quash was overruled, Gregory was required to immediately answer or suffer judgment by default. See W. Cottage Piano & Organ Co. v. Anderson, 79 S.W. 516, 517 (Tex. 1904). The overruling of his motion to quash does not afford Gregory additional time to answer. See id.; see also Butler v. Butler, 577 S.W.2d 501, 508 (Tex. Civ. App.—Texarkana 1978, no writ) (same rule after overruling of special appearance). Since Gregory's time to answer the lawsuit had expired before the trial court entered its judgment against him, the judgment was authorized because no answer had been filed. See Butler, 577 S.W.2d at 508.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: March 28, 2017
Date Decided: May 3, 2017