Opinion
No. 08-17-00155-CV
09-29-2020
Stephen L. MITCHELL, Janie Mitchell Belew, Lisa Mitchell Seigmann, and Linda Mitchell Stapleton, Appellants, v. MAP RESOURCES, INC., Pecos Bend Royalties, LLP, PBR Properties Joint Venture, and Tommy Vascocu, Appellees.
OPINION
This appeal arises from a collateral attack on a 1999 judgment (Tax Judgment) rendered in a tax deficiency suit (Tax Suit). Appellants Stephen L. Mitchell, Janie Mitchell Belew, Lisa Mitchell Seigmann, and Linda Mitchell Stapleton (collectively, the Mitchells) are the heirs of decedent Elizabeth S. Mitchell, who owned certain mineral interests in Reeves County, Texas, who, together with many other property owners, was named as a defendant in the subject Tax Suit. Appellees Map Resources, Inc., Pecos Bend Royalties, LLP, PBR Properties Joint Venture, and Tommy Vascocu (collectively, Map) acquired the mineral interests which were previously owned by Elizabeth Mitchell as a result of a later tax sale conducted pursuant to the Tax Judgment.
In 2015, the Mitchells filed suit seeking declarations that the Tax Judgment is void as to Elizabeth S. Mitchell and as to her properties, and further, that the deeds issued to Map after the subsequent tax sale are void and of no effect. After cross-motions for summary judgment, the trial court entered judgment (1) denying the Mitchells' motion for summary judgment, (2) granting Map's motion for summary judgment, and (3) ordering a take-nothing judgment on the Mitchells' claims for declaratory judgment. We affirm.
I. BACKGROUND
In 1998, the Pecos-Barstow-Toyah Independent School District, Reeves County, and Reeves County Hospital District (collectively, Taxing Authorities) filed suit to foreclose on tax liens levied against a multitude of defendants who were individually listed on a spreadsheet identified as Exhibit A which was attached and incorporated by reference to the petition. The petition described the defendants, property and amounts owed, as follows:
Defendant(s) are those listed below if living, and if any or all of the below named Defendant(s) be dead, the unknown heirs of each or all of the said below named persons who may be dead; and the unknown heirs of the unknown heirs of said below named persons; and the unknown owner or owners of the following described real property; and the executors, administrators, guardians, legal representatives, legatees, devisees of the below named persons, and who own or claim some interest in the following described real property and any and all other persons, including adverse claimants, owning or having any legal or equitable interest in or lien upon the property located in Reeves County, Texas, on which property there are delinquent taxes, penalties and interest, assessed against the property and justly due, owing, and unpaid to Plaintiff in the amount shown opposite each property separately assessed for all delinquent years, between 1978 and 1998 inclusive, if paid in July, 1998:
DEFENDANT(S), PROPERTY AND AMOUNTS OWED
See Attached EXHIBIT "A"
Elizabeth A. Mitchell was listed among the named defendants. Several months after filing the suit, the attorney for the Taxing Authorities filed an affidavit that tracked the requirements for obtaining court approval for citation by posting. See TEX. R. CIV. P. 117a. Counsel averred, in relevant part, that each defendant shown on Exhibit A "are either nonresident(s) of the State of Texas, absent from the state or are transient." Additionally, counsel averred that "[t]he names or residences of the owner or owners of the land or lots involved in said suit ... are unknown and cannot be ascertained after diligent inquiry...."
The Mitchells note in their briefing that Elizabeth Mitchell's middle initial is "S," not "A." They do not, however, advance any issue on appeal asserting error because of this misnomer of her name.
Based on these averments, counsel requested that citation by posting be permitted on three categories of defendants: (1) those who were nonresidents of Texas, absent from the state, or transient; (2) those whose names or residences were unknown and could not be ascertained after diligent inquiry; and (3) those for whom service was unsuccessfully attempted at the address of the record owner as reflected on a rendition filed with the appraisal district office within the previous five years. A citation by posting giving notice to all defendants who were again listed on Exhibit A was then issued and the officer's return contained thereon reflected that the defendants were served in this manner. The trial court thereafter appointed an attorney ad litem to represent all defendants served by means of citation by posting who had not appeared or answered. See TEX. R. CIV. P. 244. The attorney ad litem subsequently filed a motion to withdraw and the trial court appointed a substitute attorney ad litem on February 11, 1999.
On February 19, 1999, after a non-jury trial, the Tax Suit court signed a "Statement of Evidence"—to which the attorney ad litem agreed—which included the following statement:
[T]he Court then proceeded to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant(s) cited by posting. Plaintiffs['] witness, being sworn, testified to a search of the public records of the County and where such records showed the address of any Defendant(s), citation was issued for personal service on such Defendant(s) at such address in an attempt to secure service thereof, but was unserved, except to the extent recited in the judgment in this cause. The witness further testified that an inquiry was made of the person(s) in possession of the land and those persons in the community who might reasonably be expected to know the whereabouts of such defendant(s)[.]
The court concluded that diligent inquiry had been made and recited in the Tax Judgment that the defendants "were duly served as required by law by means of citation by posting." The Tax Judgment also awarded foreclosure of the Taxing Authorities' liens on the subject properties, and further ordered the properties be sold as under execution.
Thereafter, Appellees Pecos Bend Royalties, LLP, PBR Properties Joint Venture, and Tommy Vascocu purchased Elizabeth Mitchell's mineral interests at a tax sale and later conveyed a portion of those interests to Map Resources, Inc.
In June 2015, or sixteen years after the Tax Judgment was signed, the Mitchells filed suit as heirs of Elizabeth Mitchell, who had died in 2009. The Mitchells alleged that the 1999 Tax Judgment was void as to Elizabeth Mitchell because "there was a complete failure of service of citation on her and she was thereby denied due process guaranteed her under the Fourteenth Amendment to the United States Constitution and under Article I, Sections 13 and 19 of the Texas Constitution." They specifically alleged that the attorney for the Taxing Authorities gave false testimony about Elizabeth Mitchell's address being unknown because eight warranty deeds, dated from November 14, 1983 through December 13, 1983, had remained of public record at the time of the tax suit, and thus these deeds were easily discoverable by search of those public records and showed not only that she owned the subject property but additionally included her post office address. Thus, they concluded, the attorney must not have made a diligent search of the public records or he would have discovered this address and personally served Elizabeth Mitchell. The Mitchells sought declarations that the Tax Judgment was void as to Elizabeth Mitchell and her property, and further declaration that subsequent deeds reflecting ownership by Map were also void and of no effect as to the property. In answer to the Mitchells' petition, Map raised the affirmative defenses of limitations, failure to comply with statutory conditions precedent, waiver, and laches.
More specifically, three of the warranty deeds were dated November 14, 1983, one was dated November 16, 1983, three were dated November 21, 1983, and one was dated December 13, 1983.
The Mitchells moved for summary judgment on the ground that the Tax Judgment was entered without personal jurisdiction as to the person or property of Elizabeth Mitchell, now deceased and the predecessor in title of the subject property. In turn, Map countered with its own motion for summary judgment on the grounds of limitations, failure to comply with statutory conditions precedent, and improper or ineffective collateral attack. Map raised these same matters in its response to the Mitchells' summary judgment motion, as well as the affirmative defense of laches. In response to Map's motion, the Mitchells argued that statutory limitations and procedures do not apply if a party has been denied due process. They also argued that it is proper to look beyond the face of the Tax Judgment to determine whether the court had jurisdiction, and that the 1983 warranty deeds are not extrinsic evidence because the attorney for the Taxing Authorities referenced "public records" in his testimony.
The substance of this third ground was that the record conclusively established that the Tax Suit court did have personal jurisdiction over Elizabeth Mitchell.
After the summary judgment hearing, but before the court ruled on the summary judgment motions, Map filed an amended answer containing special exceptions and two new affirmative defenses. The Mitchells objected to the new pleading on the ground that it was not timely filed, and that Map did not seek leave of court to file it. Map thereafter filed a motion seeking leave to file the amended pleading, but the record does not contain a ruling on that motion.
Several months later, the trial court signed its judgment denying the Mitchells' summary judgment motion, granting Map's summary judgment motion, and ordering a take-nothing judgment on the Mitchells' claims for declaratory judgment. This appeal followed.
II. DISCUSSION
The fundamental issue in this appeal is whether the Mitchells established, as a matter of law, that the Tax Suit court lacked personal jurisdiction over Elizabeth Mitchell. The Mitchells argue here that the court lacked such jurisdiction because Elizabeth Mitchell's address was known or readily ascertainable, but no attempt was made to personally serve her with process. They contend that, in these circumstances, citation by posting violated her due process rights and was therefore ineffective to confer personal jurisdiction over her in the Tax Suit.
The Mitchells also contend on appeal that the trial court erred by granting Map's motion for summary judgment because (1) statutes of limitations and conditions precedent contained in the Texas Tax Code do not apply in the absence of personal jurisdiction, (2) the Mitchells' lawsuit is not an improper collateral attack on the Tax Judgment, and (3) Map's affirmative defenses and special exceptions cannot support granting summary judgment because they were filed late and without leave of court.
A. Standard of Review
Summary judgments are reviewed de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) ; Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). A party moving for traditional summary judgment has the burden to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Mann , 289 S.W.3d at 848 ; TEX. R. CIV. P. 166a(c). "[A] defendant who conclusively negates at least one essential element of a cause of action or conclusively establishes all the elements of an affirmative defense is entitled to summary judgment." KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015).
"When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented." Mann , 289 S.W.3d at 848. And where, as in this case, "the trial court's order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious." Knott , 128 S.W.3d at 216.
B. Due Process and Collateral Attack
The Mitchells moved for summary judgment on the ground that the Tax Suit court lacked personal jurisdiction over Elizabeth Mitchell given that citation by posting had failed to afford her due process as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. More particularly, the Mitchells asserted that because Elizabeth's address was readily ascertainable from publicly recorded warranty deeds, her right to due process required personal service on her at the P.O. Box address that appeared in those public records.
As instructed by the United States Supreme Court, the Due Process Clause of the Fourteenth Amendment requires that "deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ; see also Shaw v. Phillips Crane & Rigging of San Antonio, Inc. , 636 S.W.2d 186, 187 (Tex. 1982) (recognizing that due process requires that a property owner must be given notice and an opportunity to be heard before being divested of their interest in property). The Texas Supreme Court fairly recently observed that " Mullane remains the seminal case involving notice by publication, and it explains how to evaluate the adequacy of notice." In re E.R. , 385 S.W.3d 552, 558 (Tex. 2012).
Mullane noted that, in any proceeding to be accorded finality, an elementary and fundamental requirement of due process requires notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the suit and to afford them an opportunity to present their objections. Mullane , 339 U.S. at 314, 70 S.Ct. 652. "[W]hen notice is a person's due, process which is a mere gesture is not due process." Id. at 315, 70 S.Ct. 652. Thus, Mullane observed that personal service is the classic form of notice—which is always adequate in any type of proceeding. Id. at 313, 70 S.Ct. 652. Yet, the Court also noted that personal service is not always necessary. Id. at 313-14, 70 S.Ct. 652 ("[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified."). For missing or unknown persons, Mullane acknowledged that service by an indirect method—even if likely futile—raises no due process concerns. Id. at 317, 70 S.Ct. 652.
In the context of a suit for delinquent ad valorem taxes, the manner of notice is further governed by Rule 117a of the Texas Rules of Civil Procedure. That rule provides that, where the defendant is a Texas resident whose name and residence are known, citation shall be by personal service, unless the defendant is subject to service by publication under subsection three. TEX. R. CIV. P. 117a(1). Subsection three authorizes service by publication where:
the name or the residence of any owner of any interest in any property upon which a tax lien is sought to be foreclosed, is unknown to the attorney requesting the issuance of process or filing the suit for the taxing unit, and such attorney shall make affidavit that ... the name or residence of such owner is unknown and cannot be ascertained after diligent inquiry....
The Mitchells do not contend that Rule 117a does not adequately protect a party's due process right to notice. They contend only that the rule was not properly followed in this case.
Additionally, if the attorney requesting the issuance of process files an affidavit showing that publication of the citation cannot be had for "the lowest published word or line rate of that newspaper for classified advertising," Rule 117a(3) further provides that "service of the citation may be made by posting a copy at the courthouse door of the county in which the suit is pending...." Id. As relevant to these requirements, the record here demonstrates that the attorney for the Taxing Authorities filed such an affidavit meeting the posting requirements of Rule 117a(3).
Nonetheless, the Mitchells argue on appeal that, under Rule 117a, the Taxing Authorities were required to give Elizabeth Mitchell notice of the Tax Suit not by publication or by posting but by personal service based on the assertion that her address was known or readily ascertainable from the available public records. The Mitchells specifically rely on eight warranty deeds filed of record in 1983 that each identified the grantee of the subject property as: "Elizabeth S. Mitchell, P.O. Box 428, Van Horn, Texas 79855." Countering, Map complains that the Mitchells' attack against the Tax Judgment is based on extrinsic evidence outside the record that is prohibited from consideration by a reviewing court. Thus, in this collateral attack on the Tax Judgment, the threshold question is whether these warranty deeds may properly be considered as evidence on the question of whether the Tax Court had acquired personal jurisdiction of Elizabeth Mitchell.
Generally, a collateral attack on a final judgment is disallowed because the public policy of the law requires that we give finality to the judgments of the courts. Browning v. Prostok , 165 S.W.3d 336, 345 (Tex. 2005). But a collateral attack on a judgment is permitted "when a failure to establish personal jurisdiction violates due process." PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 273 (Tex. 2012). For it is well recognized that a judgment entered without notice or service is deemed constitutionally infirm. Id. at 272-73 (citing Peralta v. Heights Medical Center, Inc. , 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) ). When attacked collaterally, a judgment is presumed valid; but that presumption disappears when the record affirmatively reveals a jurisdictional defect. Id. at 273 (citing Stewart v. USA Custom Paint & Body Shop, Inc. , 870 S.W.2d 18, 20 (Tex. 1994) and Alfonso v. Skadden , 251 S.W.3d 52, 55 (Tex. 2008) ). However, to rise to the level of a defect violating due process, there must be a complete failure or lack of service, not merely a technical defect in service. Id. at 274. A reviewing court may look beyond the face of the judgment to determine whether the record of the underlying suit affirmatively demonstrates a lack of jurisdiction. Id. However, based on public policy reasons, it is long recognized that "a judgment rendered by a court without jurisdiction cannot be collaterally attacked with extrinsic evidence...." York v. State , 373 S.W.3d 32, 41 (Tex. 2012). In short, a court may consider the entire record of the prior proceeding, but it remains confined thereto and may not consider evidence outside that record. See PNS Stores , 379 S.W.3d at 273 (a court may look beyond the face of the judgment to the record of the underlying suit); York , 373 S.W.3d at 41 (a court may not consider extrinsic evidence).
C. Analysis
The Mitchells argue here that the prohibition against using extrinsic evidence to collaterally attack a judgment does not apply to evidence of a party's address which is contained in a public record. None of the cases on which they rely, however, contain any mention of the prohibition against extrinsic evidence or otherwise rest on a premise showing the court determined it was permitted to consider such public record evidence. See Schroeder v. City of New York , 371 U.S. 208, 212-13, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962) (holding that newspaper publications and posted notices which were authorized by New York statute did not measure up to the quality of notice required by the Due Process Clause); Sec. State Bank & Tr. v. Bexar Cty. , 397 S.W.3d 715, 721 (Tex. App.—San Antonio 2012, pet. denied) (record of tax suit affirmatively established a complete failure to notify or join a record lienholder bank as a party to the delinquency proceeding); Ocwen Loan Servicing, LLC v. Gonzalez Fin. Holdings, Inc. , 77 F. Supp. 3d 584, 595 (S.D. Tex. 2015), aff'd sub nom. Ocwen Loan Servicing, L.L.C. v. Moss , 628 Fed. Appx. 327 (5th Cir. 2016) (unpublished) (lienholder bank not given notice reasonably calculated to apprise it of the pending tax sale). Because the cases cited do not themselves address this rule of prohibition, we find these authorities offer little assistance or persuasive force.
Unlike the cases on which the Mitchells rely, however, the Texas Supreme Court explicitly discussed in York the prohibition against using extrinsic evidence in a collateral attack of a judgment, and cited an example squarely on all fours with the present case:
Therefore it is well settled that, where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any
service whatever upon him. Logically, the judgment is, in fact, void, but on grounds of public policy the courts, in order to protect the property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore, for all practical purposes, in such collateral attack, the judgment is held valid.
York , 373 S.W.3d at 41 (quoting Crawford v. McDonald , 88 Tex. 626, 33 S.W. 325, 328 (1895) ) (emphasis added). Although a judgment void on its face is subject to collateral attack, York reiterated that a judgment rendered by a court without jurisdiction cannot be collaterally attacked with extrinsic evidence for reasons of public policy. Id.
Although York further recognized there are limited exceptions to the no-extrinsic evidence rule, none of the exceptions listed are applicable here and the Mitchells have not argued otherwise. See York , 373 S.W.3d at 41 (discussing certain classes of cases over which the law raises no presumptions in their support such that facts bringing any case within one of such classes may be established by evidence dehors the record either in direct or collateral attack).
Here, the 1983 warranty deeds themselves were not before the court in the Tax Suit and are, therefore, "evidence dehors the record," or extrinsic evidence, as is more commonly described. See id. Pursuant to York , we are not permitted to consider these warranty deeds as evidence to collaterally attack the Tax Judgment. See id. Yet, we further acknowledge that York contains language indicating some uncertainty concerning the future of the "no-extrinsic-evidence rule." See id. at 42 (describing the continued viability of the rule as being "arguable"). Nonetheless, York did not reconsider the rule due to the procedural posture of the case, nor has it disturbed it in the eight years since.
We note, however, that the Mitchells do not argue against York's holding. Instead, the Mitchells argue here that the recorded deeds on which they rely are not extrinsic evidence because the Taxing Authorities referred to public records in their Tax Suit pleadings and their attorney testified that he had made a search of such public records. Thus, pursuant to Section 13.002 of the Texas Property Code, the Mitchells argue that the Taxing Authorities' reference to having made a records search amounted to an admission of having notice of the existence of the 1983 deeds and their contents. See TEX. PROP. CODE ANN. § 13.002(1) ("An instrument that is properly recorded in the proper county is notice to all persons of the existence of the instrument...."); see also, Cosgrove v. Cade , 468 S.W.3d 32, 38 (Tex. 2015) ("public records can constitute constructive notice and therefore create an irrebuttable presumption of actual notice"). We return then, to the question of whether the Mitchells conclusively established that the Tax Suit court lacked personal jurisdiction over Elizabeth Mitchell.
The Tax Judgment is regular on its face and recites that the defendants, who include Elizabeth Mitchell, were duly served as required by law. In the absence of proof in the Tax Suit record establishing a jurisdictional defect, the judgment is presumed to be valid. PNS Stores , 379 S.W.3d at 273. Again, the basis of the Mitchells' jurisdictional argument is that the Taxing Authorities were required to personally serve Elizabeth Mitchell because the 1983 warranty deeds state a P.O. Box address for her and, consequently, her address was either known to or readily ascertainable by them. But even giving due weight to the irrebuttable presumption of notice of these instruments, there is no showing that the address appearing within these instruments remained a valid address for Elizabeth Mitchell's residence over fifteen years later when the Tax Suit was filed. In the absence of some evidence that Elizabeth Mitchell still possessed this P.O. Box address at or near the time of suit, we find that the 1983 warranty deeds do not conclusively establish that her residence in 1998 was either known or readily ascertainable.
Without evidence establishing her continued use of that address, it would be sheer speculation for us to infer from the 1983 warranty deeds alone that Elizabeth Mitchell still possessed the P.O. Box address in 1998. Speculation is not evidence. See Univ. of Texas at El Paso v. Muro , 341 S.W.3d 1, 5 (Tex. App.—El Paso 2009, no pet.) ("When circumstantial evidence is so slight that the choice between opposing plausible inferences amounts to nothing more than speculation, it is legally no evidence at all.").
We also reject the Mitchells' contention that the summary judgment record conclusively establishes that no attempt was made to personally serve Elizabeth Mitchell. The basis of this contention is that the Tax Suit record does not contain any citations for personal service or returns of citation. But this absence of such record does not affirmatively establish a jurisdictional defect amounting to a violation of due process. See PNS Stores , 379 S.W.3d at 273. To establish such a defect requires proof of a complete failure or lack of service, not merely a technical defect. Id. The absence in the record of citations or returns of citation establishes only that those documents are not in the record—or, a technical defect. For our purposes, it does not affirmatively, conclusively, or even necessarily establish that those documents never existed or that personal service was never attempted, such that we may otherwise conclude that the Mitchells met their evidentiary burden.
On the other hand, we note that the Tax Suit record contains affirmative evidence that personal service was attempted on those defendants for whom the public records revealed an address. As recited in the Statement of Evidence, the Taxing Authorities' attorney testified that he made a search of public records and, where those records revealed an address for a defendant, citation was issued for personal service on those defendants at the stated address, but remained unserved. The Mitchells insist that the Taxing Authorities must have discovered Elizabeth Mitchell's P.O. Box address in the public record. The attorney's testimony, as noted above, established that citation was issued for personal service to her at that address, service was attempted, but was not successful.
Given that the trial court's Statement of Evidence is based on the testimony of the Taxing Authorities' attorney rather than his affidavit, we need not address the Mitchells' assertion that the affidavit is conclusory.
This, however, did not end the Taxing Authorities' efforts to locate defendants, including Elizabeth Mitchell, to effect personal service. The Taxing Authorities' attorney testified that he also tried to ascertain addresses by making inquiry of persons in possession of the land and persons in the community who might reasonably be expected to know the whereabouts of a defendant. The Mitchells do not address this additional attempt to ascertain Elizabeth Mitchell's address. But the additional attempt, together with the attempt to serve process at the P.O. Box address, supports the court's conclusion in the Tax Suit that the Taxing Authorities made diligent inquiry before resorting to citation by posting, as permitted by Rule 117a. See TEX. R. CIV. P. 117a(3). In short, the summary judgment evidence does not conclusively prove that citation on Elizabeth Mitchell by posting violated either Rule 117a or Elizabeth Mitchell's due process rights. As a result, the evidence does not conclusively prove that the Tax Suit court lacked personal jurisdiction over her. We thus conclude that the Mitchells failed to establish their entitlement, as a matter of law, to declarations that the Tax Judgment and subsequent deeds are void. Regardless of whether we consider the 1983 warranty deeds themselves within our scope of review, we hold that the trial court did not err by denying the Mitchells' motion for summary judgment.
We note that the Mitchells did not provide this Court with a transcript of the testimony on which the Statement of Evidence is based. Because of that omission, we must presume that the testimony supports the trial court's conclusion of diligent inquiry and the recitation in the Tax Judgment that defendants were "duly served as required by law." See Freeman v. Formosa Mgmt., L.L.C. , No. 01-15-00907-CV, 2016 WL 6803234, at *4 (Tex. App.—Houston [1st Dist.] Nov. 17, 2016, pet. denied) (presuming court's recitals are correct in absence of complete record from collaterally attacked proceeding).
Issue One is overruled.
D. Map's Motion for Summary judgment
A defendant is entitled to summary judgment if it conclusively negates at least one essential element of the plaintiff's cause of action. Bradshaw , 457 S.W.3d at 79. An essential element of the Mitchells' declaratory judgment cause of action is that the Taxing Authorities were required to personally serve, or attempt to serve, Elizabeth Mitchell at a P.O. Box address appearing in the public record. Map challenged this element in its summary judgment motion by demonstrating that the Mitchells' cause of action impermissibly depended on extrinsic evidence and that the record of the Tax Suit establishes that the Taxing Authorities did attempt to personally serve Elizabeth Mitchell at the P.O. Box address.
In their third issue on appeal, the Mitchells challenge the granting of Map's summary judgment motion by again arguing that citation by posting violated Elizabeth Mitchell's due process right to notice because the Taxing Authorities were required to personally serve her, or at least attempt to serve her, at the P.O. Box address contained in the 1983 warranty deeds. For all the reasons discussed above, the summary judgment record establishes that citation by posting did not violate Elizabeth Mitchell's due process rights and was sufficient to confer personal jurisdiction over her in the Tax Suit court. Accordingly, the trial court did not err by granting Map's motion for summary judgment.
Issue Three is overruled.
E. Remaining Issues
Because the trial court's judgment may be upheld on the ground that the evidence conclusively negates the Mitchells' assertion of lack of personal jurisdiction, we need not address whether summary judgment was proper based on any of Map's affirmative defenses. See Knott , 128 S.W.3d at 216 (where order does not specify ground, summary judgment may be affirmed on any meritorious theory). We also need not address the Mitchells' complaints concerning Map's late-filed amended pleading as that pleading has no bearing on our analysis.
III. CONCLUSION
The Tax Judgment is regular on its face and recites that the defendants "were duly served as required by law by means of citation by posting[.]" Nothing in the record of the Tax Suit establishes a jurisdictional defect to overcome the presumption of validity to which the judgment is entitled. See PNS Stores , 379 S.W.3d at 273. Rather, the evidence establishes that, before resorting to citation by posting, the Taxing Authorities exercised diligence by trying to personally serve those defendants for whom an address appeared in the public records. Under the Mitchells' own theory of the case—that the Taxing Authorities were aware of Elizabeth Mitchell's P.O. Box address because it appeared in the public record—this evidence establishes that personal service on Elizabeth Mitchell was attempted, without success, and then followed with citation by posting. The record thus conclusively negates the lynchpin of the Mitchells' claim—that citation by posting violated Elizabeth Mitchell's due process right to notice of the Tax Suit.
The judgment of the trial court is affirmed.
Alley, C.J., concurring
Rodriguez, J., dissenting
CONCURRING OPINION
JEFF ALLEY, Chief Justice
I join the Court's judgment, but not for all the reasons stated in the majority opinion. I also write separately to express dissatisfaction with the bar to considering extrinsic evidence in a collateral attack to a judgment when there is a failure of service. The rule should be reexamined, or at least open to an additional exception: When a judgment is based on an express representation that a party performed a diligent review of public records to support an alternative form of service, those public records should be considered in a collateral attack to the judgment.
I. BACKGROUND
Not to put too fine a point on it, but to anyone who values property rights and due process, the facts of this case are troubling.
In July 1998, the Pecos-Barstow-Toyah Independent School District, Reeves County, and the Reeves County Hospital District (the Taxing Entities) in one cause number, filed suit against some 673 persons and entities for delinquent property taxes incurred between 1978 and 1998. The Original Petition does not individually name the defendants, other than to incorporate an attached fifty-two page list of named mineral interests that in some instances also includes the corresponding lease operators, property descriptions, and named property owners. The spread sheet is arranged alphabetically—by first name—and appears to be a combination of two lists such that the "A's" start all over again part way through the document. So, if one was looking to see if "John Smith" had been sued, you would look under the "J's" (and not the "S's") in one of two places on the document. There is no explanation of that fact on the exhibit—you would have to figure it out on your own. From the exhibit, it is apparent that the properties are all mineral interests. The exhibit lists over 1,200 properties, and includes 673 property owners, 152 of which are simply listed as "unknown."
Appellant states that the original spreadsheet is 28 pages long. In our record, however, it runs from pages 7 to 61 of the first volume of the Clerk's Record. Appellant also states the list has about 250 persons. By my count, however, there are 521 distinctly named persons or entities and 152 properties with "unknown" owners.
The record does not reflect to whom the $52,495.28 was paid.
In December 1998, the attorney for the Taxing Entities filed a pleading attesting that each of the property owners on the list were either (1) non-residents of the State, (2) absent from the State, (3) transients, or (4) unknown and their identity could not be ascertained after diligent inquiry. The affidavit provides no specific information as to any specific property or defendant, nor does it state any specific fact supporting the conclusions the affiant reached. The pleading further states that if a rendition was filed in the previous five years with the appraisal district office that shows the address for any record owners, the Taxing Entities "caused citation to issue for personal service on such Defendant(s) at the address shown on said rendition list and has attempted to secure service thereof, but has not been able to do so." The trial court's file, however, contains no citations for personal service that was issued for any of the 673 defendants. The purpose of the affidavit was to obtain service through posting notice of the suit on the courthouse door under Rule 117a. Thereafter, a two page notice to "DEFENDANTS" was posted by a sheriff at the Reeves County courthouse. The fifty-two-page list of properties and owners was attached to that notice.
The trial court appointed an attorney-ad-litem to protect the interests of the defendants. The first attorney appointed served two months before seeking to withdraw based on a conflict of interest. Other than to file the motion to withdraw, the docket sheet does not reflect the attorney-ad-litem did anything else. A second attorney-ad-litem was appointed eight days before the "trial" of the case. The trial proceedings are reflected only by a "Statement of Evidence" signed by the trial judge. As to the issue of service of process, that statement reflects:
The case was set for trial on the same day as six other suits filed by the same Taxing Entities.
Texas Rule of Civil Procedure 117a states, in part: "Where any defendant in a tax suit is a nonresident of the State, or is absent from the State, or is a transient person, or the name or the residence of any owner of any interest in any property upon which a tax lien is sought to be foreclosed, is unknown to the attorney requesting the issuance of process or filing the suit for the taxing unit, and such attorney shall make affidavit that such defendant is a nonresident of the State, or is absent from the State, or is a transient person, or that the name or residence of such owner is unknown and cannot be ascertained after diligent inquiry , each such person in every such class above mentioned, together with any and all other persons, including adverse claimants, owning or claiming or having any legal or equitable interest in or lien upon such property, may be cited by publication. " (Emphasis added).
The Buyers claim that the Mitchell children failed to bring forth a complete record, suggesting that there is a transcription of the actual proceedings of the "trial" in this case. They point to nothing in the record that shows a court reporter in fact took a transcription of the proceeding. The Government Code requires that "[o]n request" an official court reporter shall attend all sessions of court and "take full shorthand notes of oral testimony offered before the court[.]" Tex. Gov't Code Ann. § 52.046(a)(1), (2). Nothing in the court file reflects that a court reporter was requested to take a record of this proceeding. And even if so, the court reporter is only required to "preserve the notes for future reference for three years from the date on which they were taken[.]" Id. at § 52.046(a)(4). It is not clear to me that the Mitchell children have failed to bring forth any part of the record that either existed or was available to them.
Further Rule 117a provides that "[a]n affidavit which complies with the foregoing requirements therefor shall be sufficient basis for the citation above mentioned in connection with it but shall be held to be made upon the criminal responsibility of affiant. " (Emphasis added).
Plaintiffs [sic] witness, being sworn, testified to a search of the public records of the County and where such records showed the address of any Defendant(s), citation was issued for personal service on such Defendant(s) at such address in an attempt to secure service thereof, but was unserved, except to the extent recited in the judgment in this cause. The witness further testified that an inquiry was made of the person(s) in possession of the land and those persons in the community who might reasonably be expected to know the whereabouts of such defendant(s). And the Court being of the opinion that diligent inquiry had been made.
The identity of the witness is unstated, and despite testifying that he or she searched the public record, made inquiry into the community, and then issued citation for personal service on anyone for whom an address was found, not a single citation for personal service for any of the 673 defendants can be found in the file. Had a citation for personal service actually been issued, the district clerk would be required to keep it with the file under TEX.R.CIV.P. 99. Nor does the docket sheet reflect the issuance of any citation for personal service. Of all the defendants identified on the attachment to the petition, the docket sheet shows that only two appeared through counsel. The "Statement of Evidence" also mentions that any personally served defendant would be identified in the judgment, but the judgment identifies no such person.
The trial court's three-page judgment also does not name any particular defendant, but grants judgment against the persons or entities identified on an attached fifty-eight page list of persons or entities (which is different from the attachment to the original petition). The judgment was for no less than 5 percent of the total taxes due at the time of judgment, along with a $150 abstract fee per defendant. The list identifies the tax liability of each person and entity. On that list, Elizabeth Mitchell had a listed tax liability of $940.20.
At the sheriff's sale, all the mineral interests were sold for a total of $119.389.45, of which $43,693.47 was remitted to the taxing authorities, $52,495.28 was paid in abstract fees, and $2,440.96 was paid in court costs and sheriff's fees. The remaining total sum of $20,759.74 was returned as excess over the judgment amount.
Sixteen years later Elizabeth Mitchell's children filed this suit to set aside the Sheriff's sale. The Mitchell children named Map Resources, Inc., Pecos Bend Royalties, LLP, PBR Properties Joint Venture, and Tommy Vascocu as defendants because they were the buyers at the sheriff's sale (or their successors in interest). I collectively shorthand them as the Buyers. The suit alleged that Ms. Mitchell died in 2009 and devised her property to her four children. They attached to their suit, and later proved up with certified copies, eight warranty deeds that been on file in the Reeves County deed records since 1983 that showed her ownership of the property that was subject to the Taxing Entities' earlier lawsuit. The deeds stated her address as a P.O. Box in Van Horn, Texas. The gist of the Mitchell children's argument is that Elizabeth Mitchell's ownership and address was of public record and the Taxing Entities failed to make any attempt to personally serve her with the lawsuit. Instead, the Taxing Entities selected a method of service designed not to provide notice of the lawsuit, or at least one that was invalid under TEX.R.CIV.P. 117a. As such, they claim the judgment in the tax suit was void as to Mitchell and the sheriff's sale must be set aside.
After the Buyers answered, both sides filed competing motions for summary judgment. The trial court granted the Buyers' motion. Through several issues, the Mitchell children complain on appeal that the trial court erred in granting the Buyers' motion for summary judgment, and in denying their motion for summary judgment.
II. If the Deeds are Considered, the Mitchell Children Assert a Viable Due Process Claim
The Due Process Clause prevents the government from depriving a person of his or her "property, without due process of law[.]" U.S. Const., Amend. XIV, § 1. Before a court may exercise its power to deprive someone of property, it must provide for "notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Trust 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." Peralta v. Heights Medical Center, Inc. , 485 U.S. 80, 84, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988), quoting Mullane , 339 U.S. at 314, 70 S.Ct. 652 ; see also Cunningham v. Parkdale Bank , 660 S.W.2d 810, 813 (Tex. 1983) ("procedural due process requires notice that is reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.") (internal quotes omitted); Hamm v. Robinson , 314 S.W.3d 204, 209 (Tex. App.--El Paso 2010, no pet.) ("As an elementary and fundamental requirement, our system of justice comprehends due process to include notice and an opportunity to be heard by interested parties to the action.").
Two United States Supreme Court cases highlight the principle. The issue in Mullane v. Central Hanover Bank & Trust was whether notice to beneficiaries of a trust, accomplished by publication in a local newspaper in strict compliance with an applicable banking law, was sufficient to support a judicial settlement of the trust under the Due Process Clause of the United States Constitution. 339 U.S. at 309–10, 70 S.Ct. 652. At the outset, the Court noted that "Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding." Id. at 313, 70 S.Ct. 652. Yet the Court acknowledged that personal service might not always be possible, nor constitutionally required. Id. at 314, 70 S.Ct. 652. Nonetheless, "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. In Mullane , the Court acknowledged that notice by publication was not a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Id. at 315, 70 S.Ct. 652. "Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed." Id. Ultimately, the Court upheld the notice by publication for those beneficiaries whose interests or addresses were unknown to the trustee. Id. at 318, 70 S.Ct. 652. But as to known beneficiaries, with a known address, notice by publication "stands on a different footing." Id. Those beneficiaries deserved at least a mailing to their address apprising them of the trust settlement. Id.
As the Court stated:
This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.
339 U.S. at 317, 70 S.Ct. 652.
Thirty-three years later, the Court expanded on Mulane in Mennonite Board of Missions v. Adams , 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). Similar to our case, in Mennonite a landowner failed to pay property taxes and the county began proceedings to sell the property. Id. at 794, 103 S.Ct. 2706. State law only required that notice be posted at the local courthouse and published for three consecutive weeks in a newspaper. Id. at 793, 103 S.Ct. 2706. The county complied with that procedure and auctioned off the property. Id. The mortgage holder for the landowner did not learn of the tax sale until after a two-year redemption period expired. Id. at 794, 103 S.Ct. 2706. The mortgage holder challenged the tax sale aside, arguing that publication of notice of the tax sale was constitutionally inadequate. Id. at 795, 103 S.Ct. 2706.
The Court agreed, writing that "unless [the interested party] is not reasonably identifiable, constructive notice [by publication] alone does not satisfy the mandate of Mullane. " Id. at 798, 103 S.Ct. 2706. The identity of the landowner and mortgage holder was known, and the Court assumed an address could have been ascertained by reasonably diligent efforts. Id. at 798 n.4, 103 S.Ct. 2706. "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ... if its name and address are reasonably ascertainable." Id. at 800, 103 S.Ct. 2706 ; see also Schroeder v. New York , 371 U.S. 208, 211, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962) (landowner whose name and address were on the deed records and tax rolls was entitled to more than service by publication because notice by publication "did not measure up to the quality of notice" demanded by the Due Process Clause); Walker v. City of Hutchinson , 352 U.S. 112, 116, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956) (publication of notice of condemnation deprived landowner of due process in condemnation proceeding, where landowner's "name was known to the city and was on the official records" and there was "no compelling or even persuasive reasons why such direct notice cannot be given").
And in the context of protected parental rights, our own Supreme Court held that serving the parent in a newspaper advertisement is not constitutionally acceptable "when the State knew the mother's identity, was in regular contact with her, and had at least one in-person meeting with her after it sued to terminate the legal rights to her children." In re E.R. , 385 S.W.3d 552, 554–55 (Tex. 2012). Service by publication in that instance was a "poor, hopeless, and unjustifiable" alternative, that violated due process. Id. "We have said that ‘[i]f personal service can be effected by the exercise of reasonable diligence, substituted service is not to be resorted to.’ " Id. at 564, quoting Sgitcovich v. Sgitcovich , 150 Tex. 398, 241 S.W.2d 142, 147 (1951).
Our rules of procedure to some measure codify these principles. Rule 106 provides that "[u]nless the citation or an order of the court otherwise directs, the citation shall be served ... by (1) delivering to the defendant, in person ... or (2) mailing to the defendant by registered or certified mail [the citation and petition]." TEX.R.CIV.P. 106(a). Additional requirements are necessary if a litigant seeks to use an alternative form of service. See TEX.R.CIV.P. 106(b) (motion and affidavit required to leave petition with someone else at the address); TEX.R.CIV.P. 109 (stating requirements for citation by publication); TEX.R.CIV.P. 109A (stating requirements for substitute service). And relevant to a suit for delinquent ad valorum taxes, Rule 117a specifies this hierarchy for service of process:
(1) A Texas resident not subject to citation by publication for the reason noted below, is entitled to personal service. TEX.R.CIV.P. 117a(1).
(2) If the defendant is (a) nonresident of the State, (b) absent from the State, (c) is a transient person, or (d) the name or the residence of any owner is unknown, the taxing unit's attorney can make affidavit to that effect, based on diligent inquiry, and serve the suit by publication. TEX.R.CIV.P. 117a(3).
(3) If the taxing unit cannot obtain publication at the lowest published word or line rate of that newspaper for classified advertising, then service
of the citation may be made by posting a copy at the courthouse door of the county in which the suit is pending. TEX.R.CIV.P. 117a(3).
If we consider the eight deeds as part of our record, the Mitchell children presented evidence that shows the Taxing Entities did not comply with Rule 117a. Elizabeth Mitchell was not personally served; the only evidence for service is through the posting on the courthouse door. The predicate for that type of service required the Taxing Entities to make a "diligent inquiry" into Elizabeth Mitchell's address. And while the Taxing Entities' attorney "testified to a search of the public records of the County" looking for addresses, that search somehow overlooked Elizabeth Mitchell's address that was contained in the eight recorded warranty deeds. As the Mitchell children note, "An instrument that is properly recorded in the proper county is ... notice to all persons of the existence of the instrument[.]" TEX. PROP. CODE ANN. § 13.002 (emphasis added).
The Buyers suggest that while the deeds might be public records, we have no assurance they were the public records the Taxing Entities reviewed prior to seeking alternative service. I find that argument unpersuasive. There are indeed a wide range of public records—driver's license numbers, library cards, voter's registrations, etc. And while it is true the conclusory affidavit and summary of testimony do not state what public record the Taxing Entities reviewed, it is hard to imagine how a search for the owner of real property would not include the county deed records where record ownership of property is kept.
Respectfully, I disagree with my colleague's conclusion that the Mitchell children have no evidence that the Post Office Box number listed on the deeds was in fact Ms. Mitchell's mailing address at the time the Taxing Entities filed their suit. The deeds were filed in 1983 and the tax judgment was signed in 1999. But the point is that had the Taxing Entities actually checked the public record, as their lawyer and witness swore, they would have seen the address. And had they done what they swore they did—attempt service—there would have been at least an issued citation, and likely some record of the failure of that attempted service, in the court's file. And were that the case, there might be some valid basis for the alternate form of service used. But because no record of the issuance of any citation exists where the rules would require it to exist, the Mitchell children have raised a fair inference the Taxing Entities representation about checking public records was false, or at least inadequately performed.
Of course, not all defects in service of process rise to the level of a due process violation. PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 273 (Tex. 2012). The court in Rivera , for instance, outlines several technical defects in a citation that was actually delivered to the defendant which did not implicate a due process violation. Id. But that situation is not the case here where there is no citation for personal service to examine for technical defects. The failure here rises to the level of a due process violation because it questions the due diligence that the Taxing Entities were required by rule and due process to exercise. "A diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality." In re E.R. , 385 S.W.3d at 565. When litigants neglect to pursue "obvious inquiries" that would allow for personal service, this Court has invalidated judgments based on alternate means of service. See Curley v. Curley , 511 S.W.3d 131, 135 (Tex. App.--El Paso 2014, no pet.) (failure to obtain defendant's address through relatives, and internet search, invalidated service by publication); Robb v. Horizon Communities Improvement Ass'n, Inc. , 417 S.W.3d 585, 591 (Tex. App.--El Paso 2013, no pet.) (default judgment reversed when plaintiff relied on service by publication despite having P.O. Box address for defendant). The State cannot pick an inferior method of service when a better one is possible. See In re E.R. , 385 S.W.3d at 561 ("One thing is clear: service by publication should be a last resort, not an expedient replacement for personal service.").
The deeds also undermine another defense raised by the Buyers: the presumption of validity in every judgment. "Recitations in a judgment create a presumption of regularity and truthfulness, absent an affirmative showing to the contrary." In re Borunda , 528 S.W.3d 149, 151 n.1 (Tex. App.--El Paso 2017, orig. proceeding). "But that presumption disappears when the record establishes a jurisdictional defect." Rivera , 379 S.W.3d at 273. The general observation that of 673 defendants not a single one had an identifiable address raises the eyebrow, but the eight deeds show that as to Elizabeth Mitchell, the Taxing Entities failed to do what they claimed they did. Thus, the recitation in the judgment that the Taxing Entities exercised due diligence in identifying her address rings hollow, and the presumption of regularity vanishes.
III. But Existing Precedent Precludes Considering Extrinsic Evidence
The Buyers remind us, however, that Texas courts have long held (and recently reiterated) that extrinsic evidence cannot be used to collaterally attack a judgment. See In the Interest of D.S. , 602 S.W.3d 504, 510 n.11 (Tex. 2020) ("Subject to limited exceptions, this Court has held that courts are prohibited from considering extrinsic evidence in a collateral attack on a final judgment.") citing Templeton v. Ferguson , 89 Tex. 47, 33 S.W. 329, 332-33 (1895) and Crawford v. McDonald , 88 Tex. 626, 33 S.W. 325, 328 (1895).
The Texas Supreme Court discussed the "no-extrinsic-evidence" rule in York v. State , 373 S.W.3d 32, 41–42 (Tex. 2012). Chief Justice Hecht set out the rationale for the rule by quoting from the 1895 Crawford opinion:
Therefore it is well settled that, where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not, in a contest over the title to the property, be allowed to show by evidence dehors the record that the judgment was rendered without any service whatever upon him. Logically, the judgment is, in fact, void, but on grounds of public policy the courts, in order to protect the property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the record for the purpose of showing the invalidity of the judgment; and therefore, for all practical purposes, in such collateral attack, the judgment is held valid.
33 S.W. at 328. The same year Crawford was decided, the court outlined a series of exceptions to the rule:
"[T]here are classes of cases over which a court has not, under the very law of its creation, any possible power; e.g. an administration upon the estate of a living person, administration upon the estate of a deceased soldier when prohibited by statute, an administration in bankruptcy upon the estate of a person deceased before the institution of the proceedings, a suit for divorce in a foreign country in which neither of the parties is domiciled, or a suit to recover against a nonresident, upon service by publication, a purely personal judgment. In such cases the entire proceedings are coram non judice. The law raises no presumptions in their support, and the facts bringing any particular case within one of such classes may be established by evidence dehors the record, either in a direct or collateral attack, for the purpose of destroying
the apparent binding force of such proceedings.
Templeton , 33 S.W. at 332. None of these enumerated exceptions are claimed to apply here.
Chief Justice Hecht added in York , however, that "Whether distinctions in these cases are or should be material is, we acknowledge, arguable, as is the no-extrinsic-evidence rule itself. York , 373 S.W.3d at 41–42 (emphasis supplied). The York court then quoted a comment from the Restatement (Second) of Judgments that explains:
The modern rule is that a judgment may be impeached by evidence that contradicts the record in the action. Concern for protecting judgments from contrived attacks is considered adequately served by requiring that an attack based on extrinsic evidence be brought in an appropriate forum and that it be sustained by more than ordinarily persuasive evidence.
Restatement (Second) of Judgments § 77 cmt. a (1982).
The specific issue in York was whether the court could consider evidence of a bankruptcy filing that triggered the automatic stay, and thus divested a Texas state court of jurisdiction to issue the judgment that it did. The York court found no need to reexamine the collateral evidence rule, nor create a new exception, because it held the evidence of the bankruptcy filing fell under an existing exception. York , 373 S.W.3d at 42 ("But we have not been asked to reconsider the rule here, nor need we attempt to define exceptions with greater certainty. This case fits comfortably under Templeton' s exclusion from the rule of ‘cases over which a court has not, under the very law of its creation, any possible power[.]’ ").
The Mitchell children approach the "no-extrinsic-evidence" rule in two ways. First, they cite to cases where extrinsic evidence was considered. But one of the cases they cite is a direct attack on a judgment, and not a collateral attack. Sec. State Bank & Tr. v. Bexar County , 397 S.W.3d 715, 718 (Tex. App.--San Antonio 2012, pet denied) (direct attack on judgment filed in 2010 attacking 2009 final judgment). We draw a distinction between direct and collateral attacks because a presumption of correctness attaches to the later, but not the former. Rivera , 379 S.W.3d at 273 ; Robb , 417 S.W.3d at 590. Another case they cite is a suit to quiet title following a non-judicial foreclosure. 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 (5th Cir. 2016) (unpublished). The third case they rely on does not address the issue of what evidence might be considered in deciding if the method of service violates due process, but rather whether there was such a violation. Schroeder v. City of New York , 371 U.S. 208, 211, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962).
Second, the Mitchell children in effect ask us to consider the deed records as an exception to the no-extrinsic-evidence rule. They contend that because the Taxing Entities explicitly referenced a review of "public records" as a part of their due diligence to justify alternative service, those public records are part of the underlying record of the case that might be considered. The argument would in effect treat the public records as materials "incorporated by reference," a concept which courts are well acquainted with, but in other contexts. See In re D. Wilson Const. Co. , 196 S.W.3d 774, 781 (Tex. 2006) (in the context of arbitration agreements, stating "Innumerable contracts are consummated every day in Texas that incorporate other documents by reference."); B-R Dredging Co. v. Rodriguez , 564 S.W.2d 693, 696 (Tex. 1978) (in question of statutory construction, recognizing the right to incorporate by reference in one statute the provisions of another statute or law). Considering the deed records as incorporated by reference would parallel a Texas policy that when a party relies on a document, the document itself should be open to inquiry. Cf. TEX.R.CIV.P. 166a(f) ("Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."). And the extrinsic material that the Mitchell children put forth here is not some self-serving affidavit, but rather consists of certified copies of public deed records. Cf. Restatement (Second) of Judgments § 77 cmt. b (1982) (noting that one concern for extrinsic evidence is the risk of fraudulent affidavits, but the modern rule accommodates this by requiring clear and convincing evidence).
As much as this argument has to offer it, I am reluctant for an intermediate court to create an exception to a 125-year old doctrine based on the few paragraphs of briefing on this issue garnered in the briefing presently before the Court. Generally, it is not the place of an intermediate court of appeals to create new exceptions or create major doctrinal changes. See Vitro Packaging de Mexico, S.A. de C.V. v. Dubiel , No. 05-17-00258-CV, 2017 WL 6349708, at *3 (Tex. App.--Dallas Dec. 13, 2017, pet. denied) (mem. op.) (noting that the role of an intermediate court of appeals is not to create exception to method service necessary to comply with The Hague Convention); Durham v. Children's Med. Ctr. of Dallas , 488 S.W.3d 485, 495 (Tex. App.--Dallas 2016, pet. denied) (declining to create new tolling doctrine for wrongful-death claims involving the death of a minor); Martin v. Clinical Pathology Labs., Inc. , 343 S.W.3d 885, 892 (Tex. App.--Dallas 2011, pet. denied) (judicial exceptions to employment-at-will doctrine must be created by the supreme court); Burroughs v. APS Intern., Ltd. , 93 S.W.3d 155, 161 (Tex. App.--Houston [14th Dist.] 2002 pet. denied) ("It is not for an intermediate appellate court to create new causes of action."); Landmark Chevrolet Corp. v. Universal Underwriters Ins. Co. , 121 S.W.3d 886, 890–91 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (declining at court of appeals level to create exception to "eight corners rule"). This same rationale was recently expressed by the Dallas Court of Appeals in our same context. See In Interest of D.S. , 555 S.W.3d 301, 316–17 (Tex. App.--Dallas 2018) ("We also question the need to continue to apply the no-extrinsic-evidence rule. However, we are not a policy-making court, and the supreme court has not expressly overruled its precedent limiting the circumstances under which extrinsic evidence may be presented in a collateral attack."), rev'd sub nom. Interest of D.S. , 602 S.W.3d 504 (Tex. 2020).
Accordingly, because the law presently precludes our consideration of the deed records because they are "extrinsic evidence" I concur in the judgment. Without the deed records, the Mitchell children cannot make out a viable due process challenge.
DISSENTING OPINION
YVONNE T. RODRIGUEZ, Justice
Respectfully. I dissent. The issue, for me, in this case is: How do we balance a real property owner's right to due process against public policy interests in protecting subsequent bona fide buyers of real property when notice is constitutionally deficient?
Here, more than two hundred and fifty defendants en masse were sued for delinquent taxes owing from 1978 through 1998. Elizabeth Mitchell, one of the listed defendants, allegedly owed delinquent taxes in the amount of $2,666.68. At the time of the judgment in February 1999, Mitchell's penalties and interests were $1,245.50. The taxing entities alleged they:
[I]ncurred certain expenses in the amount of $150.00 per defendant, in procuring data and information as to the name, identity, and location of necessary parties and in procuring necessary legal descriptions of the property, which expenses are reasonable abstractor's fees, which Plaintiff prays for judgment as costs of Court.
The taxing entities' counsel in his affidavit for citation by posting filed December 17, 1998 at 11 a.m. averred:
[I]f living, and any and all other persons, including adverse claimants, owning or having or claiming any legal or equitable interest in or lien upon the land described in the last pleadings filed herein, Defendants in the above entitled and numbered cause, for the reason that:
ONE: Defendant(s) shown above are either nonresident(s) of the State of Texas, absent from the state or are transient.
TWO: The names or residences of the owner or owners of the land or lots involved in said suit and any and all other persons, including adverse claimants, owning or having or claiming any legal or equitable interest in or lien upon said land, are unknown and cannot be ascertained after diligent inquiry, except as stated in Paragraphs ONE and THREE of this Affidavit. As to the corporation(s), if any, listed above, which are the record owners of said land, the location of the place of business of such corporation(s) or the name or place of residence of any officer of such corporation(s) upon whom personal service may be had, are unknown and cannot be ascertained after diligent inquiry.
THREE: Where a rendition was filed in the previous five (5) years with the appraisal district office shows the address of any record owner, affiant has caused citation to issue for personal service on such Defendant(s) at the address shown on said rendition list and has attempted to secure service thereof, but has not been able to do so.
FOUR: Service of citation by posting a copy thereof at the courthouse door is proper because publication of the citation as provided for in Rule 117a, Texas Rules of Civil Procedure may not be had within the conditions or maximum rates set forth therein for publishing the citation.
The court's tax file case does not contain any request for personal citation, issuance of citation or unserved returns for personal citation on any of the two hundred plus defendants.
The motion to appoint an attorney ad-litem was filed concurrently with the affidavit for citation by posting on December 17 at 11 a.m. The order appointing the attorney ad-litem was signed by the trial court and filed on December 17 at 4:30 p.m. The citation by posting was issued by the District Clerk on December 17, 1998 and filed December 18, 1998 at 3:30 p.m.
The officer's return indicates the citation was received on the 17th of December at 10 a.m. The officer attested a copy of the citation was posted on the Reeves County Courthouse door on December 18 at 9:50 am, however the return was signed by the officer and notarized on December 17. No order for service by posting is found in the record before us.
The trial court's statement of evidence recited the following:
[T]he Court then proceeded to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant(s) cited by posting. Plaintiffs witness, being sworn, testified to a search of the public records of the County and where such records showed the address of any Defendant(s), citation was issued for personal service on such Defendant(s) at such address in an attempt to secure service thereof, but was unserved, except to the extent recited in the judgment in this cause. The witness further testified that an inquiry was made of the person(s) in possession of the land and those persons in the community who might reasonably be expected to know the whereabouts of such Defendant(s). And the Court being of the opinion that diligent inquiry has been made.
A reporter's record of the default hearing was not included in our record.
The trial court entered a default judgment. The judgment stated defendant(s) "were duly served as required by law by means of citation by posting[.]" The judgment reflected the total amount due from Elizabeth Mitchell was $2,452.12. Further, the trial court granted the taxing entities a judgment that included "abstractor's fees incurred in securing data and information as to the name, identity, and location of necessary parties and legal description" of the properties "in the amount of $150.00 per defendant[.]" According to the sheriff's return, abstract fees totaling $52,495.28 were paid.1 The attorney ad-litem was awarded fees of $500 for representing over two hundred and fifty defendants. The defendants' properties were sold for a total of $119,389.45.
Here, the trial court's file contains: (1) taxing entities' attorney swearing to the facts supporting citation by posting; (2) abstract fees of $52,495.28 paid to unnamed individual(s) from the $119,389.45 proceeds to ascertain name, identity, and location of the defendants; and (3) unknown witness(s) testifying to the diligent search of the public records. Further, "[p]laintiffs witness" averred personal citation was issued for those defendants whose addresses could be ascertained but was returned unserved. Ostensibly no addresses were found because not one of the over two hundred and fifty defendants were personally served and no unserved citations were contained in the clerk's record.
Now, some sixteen years after the default judgment and tax sale, Appellants, the heirs of Elizabeth Mitchell, come forward with warranty deeds of the subject properties of the tax suit, which were filed in the deed records by the Reeves County Clerk. These 1983 warranty deeds which contain her correct name and a mailing address were executed and filed sixteen years prior to the default judgment. Appellants assert, because the search for the correct owner and address was not diligent or even conducted, the trial court lacked personal jurisdiction. Appellants point to the warranty deeds which were public record as evidence the tax entities' assertions and the trial court findings were incorrect. Unfortunately for Appellants, Elizabeth Mitchell's warranty deeds of the properties subject of the tax foreclosure lawsuit are not included in the filings or record of the original tax foreclosure lawsuit.
A collateral attack may only be maintained against a void judgment. Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985). A void judgment is one in which the trial court "had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court." Id. (citing Austin Indep. Sch. Dist. v. Sierra Club , 495 S.W.2d 878, 881 (Tex. 1973) ). Collateral attacks on final judgments are generally barred because the law favors the policy of giving finality to judgments. Browning v. Prostok , 165 S.W.3d 336, 345 (Tex. 2005).
Service by publication is ineffective if a diligent search for a defendant is not conducted. Anderson v. Collum , 514 S.W.2d 230, 231 (Tex. 1974). The Texas Supreme Court has declared that "[i]f personal service can be effected by the exercise of reasonable diligence, substituted service is not to be resorted to." Sgitcovich v. Sgitcovich , 150 Tex. 398, 241 S.W.2d 142, 147 (1951). The Court, citing to the Illinois Supreme Court, explained under Illinois law that "relying on a computerized database search of a parent's name while ignoring, or otherwise not investigating, other potentially useful information does not constitute a diligent inquiry[.]" In re E.R., 385 S.W.3d 552, 564 (Tex. 2012) (citing In re Dar. C. , 354 Ill.Dec. 304, 957 N.E.2d 898, 912, (Ill. 2011) (holding that service by publication was defective, thus depriving trial court of jurisdiction and rendering its judgment void)). The Court explained a "diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality." Id. at 565.
In PNS , the Texas Supreme Court noted that after Peralta , the law has distinguished those cases that allege technical defects in service versus cases which may constitute "a complete failure or lack of service[.]" PNS Stores, Inc., v. Rivera , 379 S.W.3d 267, 274 (Tex. 2012). The PNS Court opined the lack of service violates due process but failure to strictly comply with statutory service provisions does not render a judgment void. Id. Further, the PNS Court concluded "a judgment is void if the defects in service are so substantial that the defendant was not afforded due process." Id. at 275. The Court concluded the technical defects in service alleged in PNS may have rendered the judgment voidable but not void, so therefore the judgment was not subject to a collateral attack. Id. at 275.
In Luby v Wood , the Austin Court of Appeals sustained a collateral attack on a default judgment because the record affirmatively showed that the motion for substituted service did not warrant substitute service. Luby v. Wood , No. 03-12-00179-CV, 2014 WL 1365736, at *1-3 (Tex. App.—Austin Apr. 2, 2014, no pet.). Eighteen years after Wood secured a default judgment in 1993 against Luby, Wood filed a writ of scire facias to revive the dormant default judgment. Id. , at *1. The trial granted the order instituting the prior judgment. Id. Luby appealed arguing he was never served in the underlying suit. Id. , at *2. The original lawsuit recited Luby's physical address but the record showed that personal service was not attempted. Id. The record did not contain any explanation that service at the address was not attempted. Id. Wood attempted to serve Luby by certified mail, one time, to a post office box that allegedly was used by Luby. Id. After that single solitary attempt, Wood moved for substituted service. Id. In his motion, Wood "claimed that it was ‘impractical to secure personal service of process’ because ‘a physical address for defendant is unknown.’ " Id. The affidavit accompanying the motion averred the process server attempted on one occasion to serve Luby at the post office box by certified mail, restricted delivery but it was returned unclaimed. Id. The process server also attempted to locate Luby's physical address. Id. The trial court authorized substituted service by first class mail, no receipt required to the post office box. Id. The return of service indicates the process server mailed the citation, petition and the order for substituted service to the post office box by first class mail. Id.
The Austin Court found after reviewing the record, "that it overcomes the presumption in favor of the default judgment and ‘exposes such personal jurisdictional deficiencies as to violate due process.’ " Id. (citing PNS Stores , 379 S.W.3d at 273 ). In Luby , the Court found the lack of service on the actual physical address listed in the petition coupled with a sole attempt of service at the post office box was insufficient to support the order for substituted service. Id. , at *3. The Court was particularly troubled that the process server "swore that the post office box was ‘in current use,’ the server's affidavit does not clarify whether that meant that Luby was regularly checking his mail there or simply that rental period for the box had not yet expired." Id.
This case like Luby suffers from a substituted service process that does little more than pay lip service to the constitutional protections of Due Process. The officer's return recites it was received on December 17 at 10 a.m., a full hour before the affidavit for citation by posting was filed and ostensibly before the citation was issued by the clerk. Our time-travelling officer then avers on December 17 that he posted the citation on the courthouse door on the 18th at 9:50 a.m., a future event, which was duly notarized on the 17th as well. Given the serious deficiencies of the officer's return, which to my mind, amounts to a complete lack of service, renders service by posting, in this case, constitutionally inadequate.
Second, if substituted service is ineffective for a lack of diligent service rendering a judgment void, then logically it must be subject to attack by extrinsic evidence. Rote, mechanical recitations that a diligent search was conducted under the prescribed language of Rule 117a does not satisfy the constitutional demands of due process.2 See Anderson , 514 S.W.2d at 231 ; Sgitcovich , 241 S.W.2d at 147 ; In re E.R. , 385 S.W.3d at 564. The Mitchells' extrinsic evidence creates very serious doubts a diligent search was conducted.3
Texas Rule of Civil Procedure in 106(b) states:
[T]he court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
While Rule 117a does not explicitly abrogate 106(b), it states:
If the publication of the citation cannot be had for this fee, chargeable as costs and payable upon sale of the property, as provided by law, and this fact is supported by the affidavit of the attorney for the plaintiff or the attorney requesting the issuance of the process, then service of the citation may be made by posting a copy at the courthouse door of the county in which the suit is pending, the citation to be posted at least twenty-eight days prior to the return day fixed in the citation. Proof of the posting of the citation shall be made by affidavit of the attorney for the plaintiff, or of the person posting it. When citation is served as here provided it shall be sufficient, and no other form of citation or notice to the named defendants therein shall be necessary. (Emphasis added).
It is troubling to note that no Order for Substituted Service was issued by the trial court to indicate the amount of time that the citation was to be posted on the Reeves Courthouse door. The citation return does not indicate how long it was posted, whether it was it one hour, one day, one week or one month. Rule 117a allows for substituted service but my reading of it cannot absolve the trial court of the ultimate responsibility of ensuring defendants are accorded Due Process by demanding evidence in the record to support a diligent search and providing the parameters of notice that is reasonably effective under the particular set of facts for each defendant.
Even if the officer's return had been completed properly and authentically, the dictated language of the affidavit pursuant to Rule 117a, without more in the record raises grave constitutional questions of whether Due Process has been afforded to Elizabeth Mitchell. The mere recitation in the record and in the judgment that a diligent search has been conducted, should not and cannot obviate the guarantee of Due Process under the United States Constitution. Given the record is completely devoid of any evidence supporting the court's judgment a diligent search was conducted; the lack of whether the trial court authorized substitute service; and the absence of any indication regarding the length of time citation was actually posted, I would find the judgment void for a complete failure of service. Therefore, the Mitchells' collateral attack on the judgment is proper and the extrinsic evidence can be considered by the trial court and this Court. Unlike Luby , the record before us reflects no attempt of service was ever attempted on Elizabeth Mitchell's post office box.
Further, I would find that the Texas Tax Code one-year statute of limitations and its conditions precedent statute (the "Tax Code Statutes") does not bar a collateral attack based on constitutional infirm notice. See TEX. TAX CODE ANN. §§ 33.54, 34.08. In re E.R. and Mullane make clear that Due Process and constitutionally inadequate notice will always trump a state's statute of limitations. In re E.R. , 385 S.W.3d at 561 ; Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
Last, Map's assertion of waiver and the affirmative defense of laches is not supported by any evidence in the record. The difficulty in those defenses is overcoming the complete lack of service on Elizabeth Mitchell. The late-filed bona-fide affirmative defense, trespass to try title defense and Map's special exceptions are not properly before the trial court and cannot be considered for the basis of the summary judgment order. Therefore, I would reverse the summary judgment order, set aside the default judgment for a complete lack of service and remand the case back to the trial court.