Thompson v. Landry

• Decision Date: 29 December 2022
• Docket Number: 01-21-00294-CV
• Citation: Thompson v. Landry, 01-21-00294-CV (Tex. App. Dec 29, 2022)
• Parties: CINDY THOMPSON, INDIVIDUALLY AND AS HEIR OF CHARLES THOMPSON, CHARLES THOMPSON, AND CC &T INVESTMENTS, LLC, Appellants v. MAE LANDRY, Appellee
• Court: Texas Court of Appeals

CINDY THOMPSON, INDIVIDUALLY AND AS HEIR OF CHARLES THOMPSON, CHARLES THOMPSON, AND CC &T INVESTMENTS, LLC, Appellants v. MAE LANDRY, Appellee

No. 01-21-00294-CV

Court of Appeals of Texas, First District

December 29, 2022

On Appeal from the 344th District Court Chambers County, Texas Trial Court Case No. 18DCV0421

Panel consists of Chief Justice Radack and Justices Hightower and Landau.

MEMORANDUM OPINION

Sarah Beth Landau Justice.

This appeal arises from a collateral attack on a 2005 default judgment foreclosing tax liens on real property in Chambers County, Texas. The taxing authorities that sued to collect delinquent ad valorem taxes on the property obtained the default judgment after serving all but one of the 12 named defendants with citation by posting on the courthouse door. Cindy Thompson purchased the property at a tax sale in 2007. More than ten years later, Mae Landry, an heir of one of the defendants cited by posting, sued Cindy, her late husband Charles, and their company CC &T Investments, LLC (collectively, "Thompson") to declare the default judgment void, alleging that citation by posting violated her constitutional right to procedural due process, and to quiet title to the property. After considering the parties' cross-motions for summary judgment, the trial court ruled in Landry's favor and granted her all the relief she requested.

In four issues on appeal, Thompson contends the trial court erred because:

(1) Landry did not establish a due process violation;

(2) Landry's collateral attack on the default judgment is time-barred by the Tax Code's statute of limitations;

(3) The summary judgment effectively grants relief to nonparties; and

(4) Thompson's counterclaim and affirmative defenses precluded a final judgment in Landry's favor.

Because we conclude that the summary judgment record does not conclusively establish a due process violation but raises a material fact question, we affirm in part, reverse in part and remand for further proceedings.

I. Background

The subject property consists of almost 12 acres of land in Chambers County described as:

ALL THAT CERTAIN TRACT OR PARCEL OF LAND CONTAINING 12.0 ACRES, MORE OR LESS, LOCATED IN THE WILLIAM HODGE SURVEY ABSTRACT 13, IN CHAMBERS COUNTY, TEXAS; BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS IN THE DEED FROM MADELINE LITTLE TO FOREST FORD, ET AL DATED MAY 1967 AND RECORDED VOLUM 292, PAGE 223 IN THE DEED RECORDS OF CHAMBERS COUNTY, TEXAS; SAVE AND EXCEPT, HOWEVER ALL THAT CERTAIN TRACT OR PARCEL OF LAND 0.1378 ACRE, MORE OR LESS, DESCRIBED BY METES AND BOUNDS IN THE DEED FROM FOREST FORD, ET AL TO ALBIRTIO FORD THOMPKINS DATED SEPTEMBER 18, 1964 AND RECORDED IN VOLUME 257, PAGE 432 OF THE DEED RECORDS OF CHAMBERS COUNTY, TEXAS; LEAVING HEREIN A TOTAL OF 11.8622 ACRES, MORE OR LESS.

Landry claims her family has owned the property generationally for more than 100 years, that she was born on the property in 1950, and that she has lived there for most of her life, including at the times relevant here, at one of six family homes located on the property.

The tax suit, the default judgment, and the subsequent sale of the property

In February 2004, taxing authorities in Chambers County named 12 defendants in a delinquent tax suit, alleging that ad valorem taxes on the property had not been paid since 1988.^[1] The named tax suit defendants were:

• Jasper Ford;

• George Ford; • The unknown heirs of Hazel Ford, a/k/a Hazel Ford Hopkins, deceased;

• The unknown heirs of Oscar Hopkins, deceased;

• Amy Ford, a/k/a Amy Ford Franks;

• Albertio Ford, a/k/a Albirtio Ford Thompkins;

• Eldrie Thompkins;

• Dave Ford;

• Sarah Ford Lewis;

• The unknown heirs of Forest Ford, deceased;

• The unknown heirs of Horace Ford, deceased; and

• Milton Ford.

One of the named defendants-Sarah Ford Lewis-was Landry's maternal grandmother. According to Landry, both Sarah and Landry's mother (Sarah's daughter) died before the taxing authorities filed the delinquent tax suit, leaving Landry to inherit Sarah's undivided interest in the property through the laws of intestate succession.

On July 23, 2004, the taxing authorities' attorney filed an affidavit in the delinquent tax suit seeking approval under Texas Rule of Civil Procedure 117a to serve all but one of the named defendants, Milton Ford, with citation by posting.^[2]Milton was excluded from the citation-by-posting list because his mailing address (a post office box) was known to the taxing authorities. But counsel averred that the taxing authorities did not know, and "after diligent inquiry" could not ascertain, the whereabouts of the other defendants and "unknown owners" claiming or appearing of record to claim an interest in the property. In addition, counsel stated that, for any defendants for whom a rendition^[3] was filed in the previous five years, counsel "caused citation to be issued for personal service on such [d]efendant(s) at the address shown on said rendition and . . . attempted to secure service thereof," but "said [d]efendant(s)" were not located.

The trial court authorized citation by posting and, on the taxing authorities' motion, appointed an ad litem attorney to represent the defendants who were cited by posting but did not appear or answer. The attorney ad litem filed an answer on behalf of one of the named defendants, Jasper Ford, and no other.

The record contains no citation for personal service or return of attempted service on any tax suit defendant listed in counsel's affidavit.^[4] Regarding citation by posting, the officer's return states that he received the citation on July 27, 2004, and posted it at the Chambers County courthouse door three days later, on July 30. The return does not state how long the citation was posted.

The tax suit proceeded to a bench trial in May 2005. After the trial, the trial court signed a Statement of Evidence-approved by the ad litem attorney-reciting that it had evaluated the taxing authorities' diligence in attempting to "ascertain the residence or whereabouts of the defendant(s) cited by posting." According to the statement, the taxing authorities' witness testified to searching the county's public records and, where such records showed the address of any defendant, "citation was issued for personal service on such [d]efendant(s) at such address in attempt to secure service thereof, but was unserved, except to the extent recited in the judgment [as to Milton]." In addition, the witness 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 [the] defendant(s)."

The court concluded that a diligent inquiry had been made and signed a default judgment foreclosing the tax authorities' liens on the property. The property was then sold to Thompson at a constable's sale in February 2007 for $2,932.73.^[5] The constable's resale deed was recorded the next month.

The land lease and eventual notice to vacate the property

One and half years after Thompson bought the property at the tax sale, Landry's husband Frank entered a Short Form Lease that designated both himself and Landry as tenants and Thompson's company CC &T Investments as the landlord. The lease stated that the property was "to be occupied only for the purposes of: Land Lease where existing Personal Property sets." (Emphasis in original.) Landry did not sign the lease, only Frank did.

Although initially for a term of only one year, the lease apparently was extended until Thompson asked Landry to vacate the property by no later than January 30, 2015.

Landry moves in the tax suit to set aside the default judgment

In July 2016, after she was asked to leave the property, Landry filed a motion under the delinquent-tax-suit cause number to vacate the default judgment on the ground that she had an interest in the property and citation by posting violated her right to procedural due process. Landry argued that the taxing authorities had not made a diligent inquiry to locate the named defendants or any others with an interest in the property, including "any heirs or other claimants," like her, who were living on the property. Had the taxing authorities conducted a diligent inquiry, Landry contended, they would have discovered that she and her family were "in open possession of [the] property and that [it] was her homestead." She also asserted that the county tax records showed she designated the manufactured home where she lived on the property as her homestead before the tax suit was filed. Thompson intervened and moved to dismiss, arguing that the trial court lacked authority to alter the default judgment because its plenary power had long since expired and Landry's motion to vacate did not confer jurisdiction.

The trial court conducted an evidentiary hearing during which several witnesses testified, including (1) the appraisal district's chief appraiser, (2) the county tax assessor, (3) a district clerk, (4) the ad litem attorney appointed in the tax suit, (5) Landry's daughter, and (6) Landry herself. Multiple witnesses testified that six structures sit on the property, including Landry's more than 50-year-old, manufactured home that is affixed to the property at 234 ½ Ford Lane. The ad litem attorney testified that he had relied on the attorney representing the taxing authorities to use due diligence before his appointment to locate the named parties and that the taxing authorities or their counsel should have gone out to the property and examined relevant records. At no time after his appointment, however, did the ad litem attorney visit the property to ascertain whether any defendant or other interested party could be located there.

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