Mitchell v. Map Res., Inc.

• Citation: 615 S.W.3d 212
• Decision Date: 29 September 2020
• Docket Number: No. 08-17-00155-CV,08-17-00155-CV
• Parties: 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.
• Court: Court of Appeals of Texas

615 S.W.3d 212

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.

No. 08-17-00155-CV

Court of Appeals of Texas, El Paso.

September 29, 2020

OPINION

GINA M. PALAFOX, Justice 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.¹ 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...."

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, 1983,² 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.

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.³ 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.

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...