Opinion
01-20-00602-CV
08-30-2022
ADRIENE LEWIS SIBLEY, Appellant v. CITY OF FREEPORT, BRAZORIA COUNTY, BRAZOSPORT COLLEGE, BRAZOSPORT INDEPENDENT SCHOOL DISTRICT, PORT FREEPORT, SPECIAL ROAD AND BRIDGE DISTRICT AND VELASCO DRAINAGE DISTRICT, Appellees
On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 91447-T
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
Veronica Rivas-Molloy, Justice
Appellant Adriene Lewis Sibley brings a restricted appeal from a final judgment entered in favor of Appellees the City of Freeport, Brazoria County, Brazosport College, Brazosport Independent School District, Port Freeport, Special Road and Bridge District, and Velasco Drainage District in a suit for delinquent ad valorem taxes. Appellant argues she satisfies the jurisdictional requirements for a restricted appeal and that there are multiple errors on the face of the record.
We dismiss the appeal for want of jurisdiction.
Background
The underlying litigation involves claims for delinquent ad valorem taxes for property located at 1322 West Seventh Freeport, Texas ("Property"). According to Appellant Adriene Lewis Sibley ("Lewis Sibley"), she and Margie Lewis purchased the Property in June 1981 and filed a deed of record in the Brazoria County Property Records. Margie Lewis died in 2007. Lewis Sibley contends she is one of Margie Lewis' heirs as well as the current owner of the Property.
The original petition and final judgment refer to Appellant as "Adriene G. Lewis." Appellant identifies herself as "Adriene Lewis Sibley" in her notice of appeal and refers to herself as "Lewis Sibley" in her appellate briefs. We refer to Appellant as "Lewis Sibley" for purposes of this opinion.
On April 24, 2017, the City of Freeport, Brazoria County, Brazosport College, Brazosport Independent School District, Port Freeport, Special Road and Bridge District, and Velasco Drainage District (collectively, "Brazoria County" or "Appellees") sued Lewis Sibley, Margie Lewis, Donyll Dwayne Lewis, and Johnell Lewis for delinquent ad valorem taxes, penalties, and interest owed on the Property for tax years 2012, 2013 and 2016. During the pendency of the lawsuit, taxes on the Property for tax years 2017, 2018, and 2019 also became delinquent and were added to the lawsuit.
Beginning in May 2017, Brazoria County attempted to serve citation on Lewis Sibley multiple times and at five different physical addresses associated with her name. A process server made five attempts to serve Lewis Sibley personally at 16706 Man O War Lane, Friendswood, Texas 77546, which Lewis Sibley acknowledges on appeal is her correct address. The process server reports that the first time he attempted to serve Lewis Sibley at this address the "lady who came to the door said this not her. the[n] she closed the door on me. would not open the door [or] speak to me through[] the door." The last time he attempted to serve Lewis Sibley at this address the process server "spoke with the homeowner [and] she stated that the Lewis's don't live here." After multiple attempts to serve Lewis Sibley failed, Brazoria County served Lewis Sibley with citation by publication on November 20, 2018. See Tex. R. Civ. P. 117a.3 (allowing service of citation by publication or posting when "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…").
Brazoria County attempted to serve Lewis Sibley at the following addresses: (1) 16706 Man O War Lane, Friendswood, Texas in May 2017, (2) 16437 El Camino Real, Unit 307, Houston, Texas in December 2017, (3) 4808 Fairmont Parkway, Apt. 239, Pasadena, Texas in April 2018, (4) 3118 FM 528 Road, Webster, Texas in June 2018, and (5) 4808 Fairmont Parkway, Pasadena, Texas in September 2018.
Rule 117a applies to suits for collection of delinquent ad valorem taxes, like this case. See Tex. R. Civ. P. 117a ("In all suits for collection of delinquent ad valorem taxes, the rules of civil procedure governing issuance and service of citation shall control the issuance and service of citation therein, except as herein otherwise specially provided.").
On June 12, 2019, Brazoria County filed its Amended Motion For Appointment Of Attorney Ad Litem in which it asked the trial court to appoint an attorney ad litem to represent Lewis Sibley because her "identity and/or whereabouts, after reasonable and diligent search is still unknown. Such person(s) has been cited by posting…" See Tex. R. Civ. P. 244 (requiring trial court to appoint attorney ad litem to represent defendant served by publication when no answer has been filed or appearance entered within prescribed time). The trial court appointed Faye Gordon ("Gordon") to represent Lewis Sibley in the lawsuit six days later.
Brazoria County previously had requested that the trial court appoint an attorney ad litem for defendants Margie Lewis and Johnell Allen Lewis, both of whom had been served by publication. On January 25, 2019, the trial court granted Brazoria County's motion and appointed Faye Gordon as the attorney ad litem for Margie Lewis and Johnell Allen Lewis. Faye Gordon filed an answer on behalf of these defendants in May 2019. Another defendant, Dushay D. Lewis, filed a general denial on May 30, 2017, appearing pro se.
Brazoria County's Amended Motion For Appointment Of Attorney Ad Litem sought the appointment of an attorney ad litem for named defendants Margie Lewis, Donyll Dwayne Lewis, Johnell Lewis, and Sibley Lewis (identified in the motion as Adriene G. Lewis), as well as "all unknown heirs, successors or assigns, or other unknown owners, adverse claimants owning or claiming any legal or equitable interest in and to such property." On June 18, 2019, the trial court granted the order and appointed Faye Gordon to represent these defendants.
On January 13, 2020, Brazoria County served Gordon with a notice setting trial for February 21, 2020 at 10:00 a.m. The Certificate of Service on the Notice indicates that the notice was served on defendant Dushay D. Lewis, pro se, and separately on Gordon as "Attorney Ad Litem for Adriene G. Lewis, Donyll Dwayne Lewis, Johnell Allen Lewis and Margie Lewis."
Gordon prepared a "Diligence Report of Attorney Ad Litem" describing the actions she had undertaken to locate her clients, whom she referred to as "LEWIS, MARGIE, A/KA MARGARET BELL LEWIS, ET AL." In this context, "ET AL" is a shorthand way of referring to all other defendants Gordon had been appointed to represent in the lawsuit, including Lewis Sibley, without listing them individually. In her report, first filed with the trial court on February 6, 2020, Gordon averred she exercised reasonable diligence in attempting to locate her clients through a variety of means including, reviewing "the title, person search, and other file materials compiled by the attorneys for the Plaintiff taxing jurisdiction," searching "the public records in Brazoria," using online resources, and sending letters. She further averred that based on her efforts, she was "satisfied that the Defendants . . . cannot be located" and that "additional efforts to locate the Defendant(s) and/or any living heir or successors" would prove unsuccessful.
On February 21, 2020, the day of the trial setting, Gordon's due diligence report and a certified delinquent tax statement for the Property were filed with the trial court. Four days later, on February 25, 2020, the trial court signed a final judgment finding Brazoria County had "valid claims for delinquent taxes, penalties, interest, and costs allowed by law," granting Brazoria County a tax lien against the Property, and awarding fees to "Faye Gordon heretofore appointed to act as attorney for the Defendant(s) cited by publication or posting herein." The judgment states in relevant part that "[o]n the 21st day of February, 2020, this cause being called in its regular order, came" Brazoria County and the named defendants, including Lewis Sibley, and "[s]aid cause coming on for trial and no jury having been demanded, all parties announced ready. All matters of controversy, both of fact and of law, were submitted to the Court."
Brazoria County sued all of the defendants, including Lewis Sibley, In Rem only.
There was no record taken of the proceedings on February 21, 2020 and we therefore do not have a record of what transpired during the trial other than what is reflected on the signed judgment.
On February 25, 2020, the trial court also issued a Statement of Evidence describing the evidence upon which its judgment was based, including the certified delinquent tax statement for the Property submitted by Brazoria County. See Tex. R. Civ. P. 244 (stating in cases in which attorney is appointed to represent defendant who was served by publication, "a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof"). Gordon signed the judgment and the Statement of Evidence "approved as to form" on behalf of Lewis Sibley and the other defendants, except Dushay D. Lewis.
On August 24, 2020, Sibley filed a notice of restricted appeal challenging the trial court's February 25, 2020 judgment.
Previously, on August 3, 2020, Lewis Sibley filed a writ of mandamus and a corresponding motion for emergency relief to stay the trial court's February 25, 2020 judgment. We granted Lewis Sibley's motion for emergency relief staying enforcement of the judgment pending adjudication of Lewis Sibley's petition for writ of mandamus. On September 29, 2020, this Court denied Lewis Sibley's petition for a writ of mandamus. See In re Sibley, No. 01-20-00559-CV, 2020 WL 5778126 (Tex. App.-Houston [1st Dist.] Sept. 29, 2020, orig. proceeding).
Restricted Appeal
Rule 30 of the Texas Rules of Appellate Procedure ("Rule 30"), dealing with restrictive appeals, provides:
A party who did not participate-either in person or through counsel- in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).Tex. R. App. P. 30. "A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment." In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.-Fort Worth 2000, no pet.). "It is not available to give a party who suffers an adverse judgment at its own hands another opportunity to have the merits of the case reviewed." De La Rocha v. Lee, 354 S.W.3d 868, 872 (Tex. App.-El Paso 2011, no pet.).
To prevail on a restricted appeal under Rule 30, an appellant must show that (1) she filed the notice of restricted appeal within six months of the date of the judgment or order, (2) she was a party to the suit, (3) she did not participate in the hearing that led to the judgment complained of and did not timely file (i) a post-judgment motion, (ii) a request for findings of facts and conclusions of law, or (iii) a notice of appeal, and (4) error is apparent on the face of the record. See Tex. R. App. P. 30; Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). Although the first three requirements for a restricted appeal are jurisdictional, the fourth requirement- error on the face of the record-is not. Ex parte E.H., 602 S.W.3d at 497. An appellant who satisfies the first three requirements establishes the court's jurisdiction. But the inquiry does not end there. The appellant also must establish error from the face of the record to prevail in the restricted appeal. Id.
Jurisdictional Analysis
Lewis Sibley satisfies the first two jurisdictional requirements for bringing a restricted appeal under Rule 30 because she filed her notice of restricted appeal within six months of the date of the judgment and she was a party to the tax suit. See Tex. R. App. P. 30; Ex parte E.H., 602 S.W.3d at 495. To determine whether she meets the third jurisdictional element-the non-participation requirement-we consider whether Lewis Sibley took part in the decision-making event that resulted in the challenged judgment. It is the fact of non-participation, not the reason for it, that determines a person's right to pursue a restricted appeal. Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996). "The nature and extent of participation precluding a restricted appeal in any particular case is a matter of degree because trial courts decide cases in a myriad of procedural settings." Parsons v. Dallas Cnty., Texas, 182 S.W.3d 451, 453 (Tex. App.-Dallas 2006, no pet.). We must "liberally construe the non-participation requirement for restricted appeals in favor of the right to appeal." Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014). Lewis Sibley argues she satisfies the third jurisdictional requirement because she "did not personally participate in the decision-making event and the trial court did not validly appoint the attorney ad litem to represent Lewis Sibley in the proceeding or the attorney ad litem did not participate in the decision-making event on behalf of Lewis Sibley that resulted in the judgment." There is no dispute that Lewis Sibley did not personally participate in the decision-making event that resulted in the February 25, 2020 judgment she now challenges on appeal. The question before the Court is whether Lewis Sibley participated in the decision-making event through her appointed attorney ad litem, Gordon. See Tex. R. App. P. 30 (stating restricted appeal is available to "party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of . . .") (emphasis added).
Although Brazoria County does not explicitly argue Lewis Sibley fails to satisfy the non-participation requirement under Texas Rule of Appellate Procedure 30, we must still address this issue because it is a jurisdictional requirement. "[C]ourts always have jurisdiction to determine their own jurisdiction." Heckman v. Williamson Cnty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); see also Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (stating appellate court must determine question of its jurisdiction even if parties do not raise issue).
The trial court appointed Gordon to represent Lewis Sibley as her attorney ad litem after Brazoria County served Lewis Sibley with citation by publication. The order of appointment is dated June 18, 2019. Gordon received notice of the February 21, 2020 trial setting, and as Lewis Sibley states in her brief, "[Gordon's] due diligence report was submitted to the trial court on" that day. See Tex. Tax Code § 33.475(a) (requiring attorney ad litem in suit to collect delinquent taxes to submit "a report describing the actions taken by the attorney ad litem to locate and represent the interests of the defendant"). The trial court could not award Gordon her attorney's fees unless she filed the report. See Tex. Tax Code § 33.475(b) (stating court may not approve attorney ad litem's fees until attorney at litem submits report required by Tax Code Section 33.475(a)). The final judgment was issued four days later on February 25, 2020. On the same day, the trial court issued a Statement of Evidence. See Tex. R. Civ. P. 244 (stating in cases in which attorney is appointed to represent defendant who was served by publication, "a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof"). Gordon signed both the judgment and the Statement of Evidence on behalf of Lewis Sibley and her other clients.
Lewis Sibley argues nonetheless that the order appointing Gordon as her attorney ad litem is invalid and thus Gordon could not appear in the proceedings on her behalf. She contends that Brazoria County's Motion For Appointment of Attorney Ad Litem was incomplete because it did not state the grounds for requesting the appointment of an attorney ad litem for Lewis Sibley. See Tex. R. Civ. P. 21(a) ("Every pleading, plea, motion, or application to the court for an order . . . must state the grounds therefor. . ."). Brazoria County's Amended Motion For Appointment Of Attorney Ad Litem, however, requests that an attorney ad litem be appointed to represent Lewis Sibley on the ground Lewis Sibley's "identity and/or whereabouts, after reasonable and diligent search is still unknown. Such person(s) has been cited by posting . . ."
Furthermore, regardless of the sufficiency of Brazoria County's motion, the trial court had a statutory obligation to appoint an attorney ad litem to represent Lewis Sibley in the proceeding. Texas Rule of Civil Procedure 244 provides that "[w]here service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant . . . ." Tex.R.Civ.P. 244. Brazoria County served Lewis Sibley by publication and at the time Brazoria County filed its motion, Lewis Sibley had not filed an answer or appeared in the case. Thus, pursuant to Rule 244, the trial court properly granted Brazoria County's Amended Motion For Appointment of Attorney Ad Litem and appointed Gordon to represent Lewis Sibley. Lewis Sibley has not identified any infirmities with the order itself.
Lewis Sibley's remaining arguments that Gordon (1) did not file an answer for Lewis Sibley, (2) did not file a diligence report for Lewis Sibley, and (3) did not agree to the substance of the proposed final judgment and Statement of Evidence do not carry the day. Whether Gordon filed an answer on behalf of Lewis Sibley is an inquiry irrelevant to the key consideration at issue. The question is whether she participated in the proceeding that led to the judgment challenged on appeal. See Tex. R. Civ. P. 30. Merely filing an answer does not constitute participation for purposes of a restricted appeal. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Ex Parte Vega, 510 S.W.3d 544, 548 (Tex. App.-Corpus Christi 2016, no pet.) ("We conclude the Department [met the third requirement] because even though it filed an answer in response to [the] petition, it did not participate in the hearing on [the] petition that resulted in the expunction order.").
Lewis Sibley contends the proposed final judgment was an "agreed judgment" and she suggests that this indicates Gordon improperly assisted the taxing authority in its suit against Lewis Sibley.
Moreover, contrary to Lewis Sibley's assertion, the record reflects Gordon did file a diligence report on behalf of Lewis Sibley. Gordon filed a single diligence report for all of her clients, including Lewis Sibley, as evidenced by Gordon's statement in the report that "Now comes, Faye Gordon, appointed by this Court as Attorney Ad Litem to represent the interest of: Lewis Margie, a/k/a Margaret Bell Lewis, et al." Lewis Sibley's final argument that Gordon "did not participate in the decision-making event" on her behalf because Gordon only agreed to the form of the judgment and Statement of Evidence is also unavailing. See De La Rocha, 354 S.W.3d at 871 (holding appellants could not file restricted appeal because they participated in decision-making proceeding because, among other things, their attorney "signed the judgment indicating his agreement as to form"); see also Blankinship v. Blankinship, 572 S.W.2d 807, 808 (Tex. App.-Houston [14th Dist.] 1978, no writ) (holding appellant could not challenge final judgment in divorce proceeding because he indicated his approval of the decree by signing judgment prior to its entry by trial court and had thus "participated" in proceedings resulting in challenged judgment).
Brazoria County asserts in its brief that "[a]s is customary for Brazoria County District Court, the attorney ad litem [Gordon] reviewed and signed the judgment prior to the trial date, and did not attend the trial." Although Brazoria County's assertions are not reflected in the record, even taking these statements as true, Gordon's failure to attend the February 21, 2020 proceeding does not mean she did not participate in the decision-making proceeding because she had already signed the judgment and Statement of Evidence and filed her diligence report, all on behalf of Lewis Sibley and her other clients. Where a party participates in all necessary steps of the proceeding, his non-participation at a hearing does not negate the fact of his participation in the decision-making event. See Clopton v. Pak, 66 S.W.3d 513, 516 (Tex. App.-Fort Worth 2001, pet. denied) (holding appellants participated in decision-making events leading to dismissal because their attorney signed joint motion to sever and dismiss with prejudice and subsequent trial court orders granting agreed motion and dismissing appellants' claims against appellees). To the extent Sibley suggests Gordon engaged in misconduct by agreeing to the judgment, and thus aided Brazoria County and the other taxing authorities in their suit for delinquent taxes, such alleged impropriety on its own does not negate a party's participation through counsel for purposes of a restricted appeal. See generally id. at 517 (rejecting appellants' argument their former attorney engaged in "misconduct" by agreeing to order dismissing their claims against appellees and thus effectively prevented appellants from participating in decision-making events).
Based on the record, we conclude Lewis Sibley participated, through her attorney ad litem Gordon, in the decision-making event that resulted in the final judgment. Consequently, she cannot establish the jurisdictional requirements for bringing a restricted appeal under Texas Rule of Appellate Procedure 30.
Conclusion
We dismiss the appeal for want of jurisdiction.
Because we have determined Lewis Sibley did not satisfy the jurisdictional requirements for bringing a restricted appeal, we need not consider whether error is apparent on the face of the record or Brazoria County's argument this Court does not have jurisdiction to consider Sibley's restricted appeal because she failed to exhaust her administrative remedies under the Texas Tax Code. See Tex. R. App. P. 47.1.