Fender v. Moss

• Decision Date: 26 June 1985
• Docket Number: No. 05-84-00932-CV,05-84-00932-CV
• Citation: 696 S.W.2d 410
• Parties: H.R. FENDER, Appellant, v. Rita MOSS, Appellee.
• Court: Texas Court of Appeals

Page 410

696 S.W.2d 410

H.R. FENDER, Appellant, v. Rita MOSS, Appellee.

No. 05-84-00932-CV.

Court of Appeals of Texas Dallas.

June 26, 1985.

Rehearing Denied Sept. 4, 1985.

C. Sidney McClain, Dallas, for appellant.

John Wright, Grand Prairie, for appellee.

Before AKIN, GUILLOT and HOWELL, JJ.

AKIN, Justice.

Appellee, Rita Moss, sought by bill of review to have set aside and held to be null and void: the judgment in a delinquent ad valorem tax suit; the order of sale in the tax suit under which the property in question was sold to appellant, H.R. Fender; and the sheriff's deed to Fender. Additionally, Moss sought to have title quieted into her name and to have all clouds removed from her title. Following a jury trial, ¹ the trial court rendered judgment for Moss.

Fender appeals, contending that the trial court erred in rendering judgment for Moss because there was no evidence that Moss was not guilty of a lack of diligence in preventing the execution of the order of sale in the tax suit and in redeeming the property in question. We agree and hold that as a matter of law Moss failed to prove she was not guilty of a lack of diligence. By cross-point Moss contends that the trial court's judgment should be affirmed because the judgment in the tax suit was void in that the defendant therein was not properly served with process. We disagree with this contention. Consequently, we hold that Moss' collateral attack on the tax suit judgment must fail because the face of the judgment recites proper service and this recital is conclusive as to issues of jurisdiction of the person. Accordingly, we reverse the judgment of the trial court and render judgment for Fender.

The following chronology details events relevant to the instant action:

September 11, 1967--Deed from J.T. Simpson and Pansy McCoy to Rush Properties, Inc. of the real property in this cause.

September 5, 1975--Deed from Kenneth Paul Martin and Charles Fannin Rushing, Co-independent Executors of Charles Fannin Rushing to J.T. Simpson and Pansy McCoy.

September 10, 1975--State files Cause No. 75-9084-C to recover delinquent taxes suing Rush Properties, Inc. as defendant.

December 30, 1975--Deed from J.T. Simpson and Pansy McCoy to Monte Julius.

August 26, 1976--Judgment by Default against Rush Properties, Inc. in the tax suit.

March 31, 1978--Deed from Monte Julius to Moss.

November 8, 1978--Sheriff's sale to Fender.

November 21, 1980--Moss first learns of tax suit when writ of possession served on Moss and Moss evicted.

November 27, 1980--Moss files her Bill of Review.

We note that the March 31, 1978, conveyance from Julius to Moss contained this language: "Grantee shall assume the responsibility for payment of delinquent taxes, taxes for the current year and any debts or outstanding liens which are not set out herein."

Fender contends on appeal that there was no evidence supporting the jury's finding that Moss was not guilty of a lack of diligence in preventing the execution of the order of sale and in redeeming the property in question. Essential in a bill of review proceeding is the allegation and proof by the plaintiff that he has not been guilty of a lack of diligence in failing to avail himself of any means to set the judgment aside. American Spiritualist Association of Dallas v. City of Dallas, 366 S.W.2d 97 (Tex.Civ.App.--Dallas 1963, no writ). See also Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). Our review of the record reveals no evidence that Moss was not guilty of a lack of diligence. Rather, the evidence conclusively establishes that, despite the language in her deed from Julius putting Moss on notice that she was liable for any delinquent taxes, Moss failed to even make inquiry as to what taxes, if any, were due on the property. We hold, therefore, that as a matter of law Moss failed to prove that she was not guilty of a lack of diligence in preventing the execution of the order of sale and in redeeming the property.

We cannot agree with the dissent that Moss' testimony that her business experience was limited and that her grantor represented that there were no past due taxes created a disputed fact issue. The recitations in Moss' conveyance from her grantor put her on notice as to her liability for any delinquent taxes; the evidence adduced at trial conclusively showed that Moss failed to even inquire into this matter. Under these facts there can be no disputed fact issue as to Moss' lack of diligence. To hold as the dissent and the appellee would have us would do violence to the well-established concept of constructive notice in the area of real estate conveyances, a concept upon which much of our real estate law is predicated. The dissent would, in effect, permit a purchaser to simply ignore deed recitals concerning delinquent taxes in the hope that he can later persuade a sympathetic jury that he was subjectively "diligent" to a degree commensurate with his own personal business experience. Such a situation would be untenable.

Moss contends by cross-point that the judgment in the tax suit was void. She bases this contention on the fact that the return of citation shows that Rush Properties, Inc., the defendant in the tax suit, was served by serving "Kenneth J. Martin, Administrator." Moss correctly argues that TEX.BUS.CORP.ACT ANN. art. 2.11 (Vernon 1980) provides that service on a corporation may be obtained by serving the president, vice presidents, or registered agent of the corporation. No provision is made whereby service on a corporation may be obtained by serving an "administrator." Additionally, Moss notes that the return was not signed. Despite these apparent defects of service of process upon Rush Properties, Inc., we are constrained to overrule Moss' cross-point.

A bill of review, when properly brought, is a direct attack on a judgment. Dunklin v. Land, 297 S.W.2d 360 (Tex.Civ.App.--Eastland 1956, no writ). But because we have held that Moss failed to prove an essential element of a bill of review--namely, that she was not lacking in diligence--the attack on the judgment becomes a collateral rather than a direct attack. Dunklin, 297 S.W.2d at 362. In a direct attack on a default judgment, no presumptions are indulged in support of the judgment's validity. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965). In a collateral attack, however, the rule is that a clear and definite recital in the judgment on jurisdictional matters is conclusive of the issues of jurisdiction, imports absolute verity, and no evidence of any kind, not even the remainder of the record, will be considered in contradiction thereof, even if such evidence would show that jurisdiction was not, in fact, acquired. Treadway v. Eastburn, 57 Tex. 209 (1881); Fuhrer v. Rinyu, 647 S.W.2d 315 (Tex.App.--Corpus Christi 1982, no writ). The judgment in the tax suit clearly recites that Rush Properties, Inc., was properly served. This recital is conclusive. Accordingly, we overrule Moss' cross-point.

The judgment of the trial court is reversed and judgment is rendered for Fender.

HOWELL, J., dissents.

HOWELL, Justice, dissenting.

I dissent. What can be more firmly established than the rule that negligence is a fact issue subject to the constitutional right of trial by jury? A jury by its verdict has found that Private Purchaser Moss was not guilty of a lack of diligence (not negligent) in failing to redeem within the statutory two year period. Most certainly, there was considerable evidence from which the jury, in its wisdom, could have found to the contrary, but that does not by any means establish "as a matter of law," as the majority has declared, that she failed to prove herself not guilty of lack of diligence.

At the most, this court could only declare the evidence insufficient and remand for a new trial, because there was some evidence to support Private Purchaser's claim. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). She testified that her grantor...