Benser v. Dall. Cnty.
| Decision Date | 28 March 2023 |
| Docket Number | 05-21-00725-CV |
| Parties | AL BENSER D/B/A APEX FINANCIAL CORPORATION, Appellant v. DALLAS COUNTY, CITY OF DALLAS, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, DALLAS COUNTY SCHOOL EQUALIZATION FUND, DALLAS INDEPENDENT SCHOOL DISTRICT, AND PARKLAND HOSPITAL DISTRICT, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 116th Judicial District Court Dallas County Texas Trial Court Cause No. TX-18-01518
Before Molberg, Partida-Kipness, and Carlyle, Justices.
This appeal stems from a suit to collect delinquent property taxes on property located in Dallas County. Appellant Al Benser d/b/a Apex Financial Corporation (Apex) appeals the June 9 2021 judgment in favor of appellees Dallas County, City of Dallas, Dallas County Community College District, Dallas County School Equalization Fund, Dallas Independent School District, and Parkland Hospital District (the Taxing Authorities). In three issues, Apex complains the trial court erred by (1) awarding the Taxing Authorities penalties and interest on an award included in a 2017 default judgment, (2) awarding damages on maintenance liens purportedly barred by limitations, and (3) denying Apex's counterclaim for damages from the 2011 demolition of a structure on the Property. Finding no error we overrule each of these issues and affirm the trial court's judgment.
Apex owned real property located at 2827 Seaton Drive in Dallas County (the Property). During Apex's ownership, property taxes became delinquent, a vacant structure on the Property fell into disrepair, and the Property became unkept in violation of City of Dallas ordinances. As a result, liens were assessed on the Property and the vacant structure was demolished. On appeal, Apex raises issues concerning the demolition proceedings and two proceedings to collect delinquent property taxes and foreclose on municipal health and safety liens[1] assessed on the Property.
In February 2011, the City of Dallas (the City) filed a petition and notice of public hearing seeking orders requiring the property owner to repair, remove, or demolish a vacant structure on the Property. The City alleged the structure should be demolished because it violated "numerous minimum housing standards in Chapter 27 of the Dallas City Code" and was "dilapidated, substandard, unfit for human habitation, a hazard to the public health, safety and welfare, and constitutes an urban nuisance." In its petition, the City listed "Apex Financial Group" as the owner of the Property with an address of PO Box 165598, Irving, Texas 75016. After a public hearing, the municipal court ordered the owner to demolish the structure within thirty days. When the owner failed to demolish the structure, the City sought and obtained an order permitting it to demolish the structure on the Property. Apex contends the demolition occurred without its knowledge.
According to tax records, Apex owed delinquent property taxes on the Property for tax years 1997, 1998, and 2000 through 2019. The Taxing Authorities first sued to collect delinquent taxes on the Property in 2016. In the 2016 Proceeding, the Taxing Authorities sued "Apex Financial Corp." to recover delinquent property taxes owed for tax years 1997, 1998, and 2000 through 2015, and to foreclose on maintenance liens from work completed on the Property in 2005 and between 2012 and 2016. The maintenance liens reflected costs incurred by the City mowing the Property and fees and expenses related to the 2011 demolition. The Taxing Authorities obtained a default judgment against "Apex Financial Corp." on February 9, 2017. Based on the Taxing Authorities' certificate of last known address, the district clerk mailed notice of the default judgment to the following:
The Florida address was not Apex's address, and Mr. Williams was not affiliated with the Property. Considering this error, the Taxing Authorities obtained an "Order for Nonsuit" of the 2016 Proceeding on May 5, 2020.
Meanwhile, property taxes continued accruing, and the City filed additional maintenance liens. On September 25, 2018, the Taxing Authorities initiated the underlying suit to collect the delinquent taxes, interest, attorney's fees, and costs pursuant to section 33.41 of the Texas Tax Code. Tex. Tax Code § 33.41 (). The Taxing Authorities also sought to foreclose on maintenance liens from work completed on the Property in 1988, 1994, 2005, and between 2012 and 2020, and fees and expenses related to the 2011 demolition. Apex filed a counterclaim to recover the value of the demolished structure as damages for the City's 2011 demolition. Apex also argued any accrued interest and penalties after 2016 should be removed from any judgment in favor of the Taxing Authorities because the 2016 Proceeding was wrongfully filed without notice to Apex.
The underlying case was tried to the bench on June 7, 2021. The trial court awarded the Taxing Authorities $31,805.99 in delinquent property taxes, penalties, interest, and fees owed for tax years 1998 and 2000 to 2019. The judgment also ordered recovery on twelve of the maintenance liens. Apex filed a motion for new trial, which the trial court denied by written order. This appeal followed.
In three issues, Apex contends the trial court erred by (1) awarding the Taxing Authorities penalties and interest on amounts awarded in the 2017 default judgment, (2)awarding damages on maintenance liens purportedly barred by limitations, and (3) denying Apex's counterclaim for damages from the 2011 demolition. Finding no error, we overrule Apex's appellate issues and affirm the trial court's judgment.
In its first issue, Apex contends the trial court erred by denying Apex's request that no penalties or interest be charged to Apex after 2016. Apex maintains the Taxing Authorities failed to give Apex notice of the 2016 Proceeding and 2017 default judgment. According to Apex, if Apex had known of the default judgment, "it would likely have made arrangements to pay such judgment near that time" and, therefore, penalties and interest would not have accrued on the amounts awarded in the default judgment. At oral argument, Apex's counsel conceded that Apex seeks vacatur of the penalties and interest under principles of equity and in the interest of justice and fairness. We conclude Apex is not entitled to the relief it requests.
The trial court's decision to grant or to deny a request for equitable relief is reviewed for an abuse of discretion. Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 (Tex. 2008); Tex. Youth Comm'n v. Koustoubardis, 378 S.W.3d 497, 502 (Tex. App.-Dallas 2012, no pet.); Mathews v. First Citizens Bank, 374 S.W.2d 794, 797 (Tex. App.-Dallas 1963, writ ref'd n.r.e.). When a party seeks equitable relief, it must offer and prove its willingness to do equity. Zonker v. Sullivan, 650 S.W.2d 189, 190 (Tex. App.-El Paso 1983, writ ref'd n.r.e.) () (internal citations omitted); Harding Bros. Oil & Gas Co. v. Jim Ned Indep. Sch. Dist., 457 S.W.2d 102, 104-05 (Tex. App.-Eastland 1970, no writ) ( taxpayers' request for judgment enjoining school district from enforcing increased tax assessments where taxpayers did not tender any taxes to school district); Luloc Oil Co. v. Caldwell Cnty., 601 S.W.2d 789, 795 (Tex. App.-Beaumont 1980, writ ref'd n.r.e.) () (quoting Harding Bros. Oil & Gas, 457 S.W.2d at 104-105). Apex failed to do equity here. There is no evidence that Apex tendered payment for any delinquent taxes owed, much less the taxes owed and awarded in the 2017 default judgment for which it sought credits for penalties and interest. The trial court did not abuse its discretion by denying Apex equitable relief.
Moreover, the Taxing Authorities were statutorily authorized to vacate the 2017 default judgment and file the underlying lawsuit to recover the delinquent taxes, penalties, and interest. See TEX. TAX CODE § 33.56(a)(2) (); see also Floyd v. Wharton Cnty., No. 13-15-00480-CV, 2017 WL 2180697, at *4 (Tex. App.-Corpus Christi-Edinburg May 18, 2017, no pet.) (mem. op.) (motion to vacate judgment satisfied requirements of section 33.56). Under Section 33.56, when the trial court vacates the judgment, the delinquent tax suit is revived and the taxes, penalties, interest, and attorney's fees and costs, and the liens securing them, are reinstated. TEX. TAX CODE § 33.56(f)(3), (4). Section 33.56 places no time limits on seeking an order vacating the judgment. Barua v. Cnty. of Dallas, 100 S.W.3d 629, 635 (Tex. App.-Texarkana 2003, pet. denied) (). Apex failed to provide the trial court or this Court any authority to support its contention that the 2016 Proceeding and subsequent nonsuit entitled Apex to a credit of penalties and interest, and we have found none. We overrule Apex's first issue.
Next Apex argues any maintenance liens "that fall outside the applicable statute of limitations" should be removed from the judgment. The question of how a statute of limitations applies is a matter of law, which we...
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