ACCEPTED
14-14-00753
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/14/2015 1:55:20 PM
CHRISTOPHER PRINE
CLERK
NO. 14-14-00753-CV
FILED IN
COURT OF APPEALS 14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT OF TEXAS
4/14/2015 1:55:20 PM
HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
WOODROW W. MILLER, ASSIGNEE OF JUDGMENTS 2 CA$H, LLC,
Appellant,
V.
ROYAL ISD AND WALLER COUNTY,
Appellee.
BRIEF OF APPELLEE
________________________________________________________________________
Henry Steen, Jr.
Texas Bar No. 00783554
LAW OFFICES OF HENRY STEEN
3001 North Lamar Blvd., Suite 306
Austin, Texas 78705
(512) 476-4688
(512) 476-0352 fax
henry_steen@steenlaw.com
COUNSEL FOR APPELLEE
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ........................................................................................................... i
INDEX OF AUTHORITIES ...................................................................................................... iv
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... iii
STATEMENT OF THE CASE .................................................................................................. .iii
ISSUES PRESENTED.............................................................................................................. iv
STATEMENT OF FACTS ........................................................................................................ .1
A. The Property .................................................................................................. 1
B. Tax Assessment ............................................................................................. 1
C. Title ............................................................................................................... 2
D. Defendant’s Pretrial Pleadings ...................................................................... 4
E. Defendant’s Arguments at Trial .................................................................... 5
F. Defendant’s Arguments on Appeal ............................................................... 7
SUMMARY OF THE ARGUMENTS.......................................................................................... .8
ARGUMENT AND AUTHORITIES ........................................................................................... .8
I. Court granted Mr. Miller every opportunity to present J2C’s
case in spite of its reservations about his status ..................................... .9
II. Appellant has waived any arguments related to the taxing units’
evidence by failing to object at trial ......................................................... 10
III. Appellee lacks standing to complain about another’s tract. ................. 10
CONCLUSION ...................................................................................................................... 11
PRAYER ............................................................................................................................. 11
CERTIFICATE OF SERVICE .................................................................................................. 12
-i-
INDEX OF AUTHORITIES
CASES Page
Estate of CM v. SG; 937 S.W.2d 8 (Tex. App.—Houston 14th 1996) .............................. 10
Felt v. Harris County, 14-12-00327-CV (Tex. App.—Houston 14th 2013)........................ 9
In the Matter of the Estate of Elmer Bynam Williams ......................................................... 3
In Re R.I.V., 923 S.W.2d 573 (Tex. 1996, per curiam) ..................................................... 11
Kirkpatrick v. Kirkpatrick, 205 S.W.3d 690, 703 (Tex. App. – Ft. Worth 2006,
pet. denied) ........................................................................................................................ 11
Seiflein v. City of Houston, 01-09-00361-CV (Tex. App.—Houston 1st 2010) .................. 9
- ii -
STATEMENT REGARDING ORAL ARGUMENT
Appellee agrees that these issues in this case may be decided based on the briefs of
the parties.
STATEMENT OF THE CASE
Royal ISD and Waller County filed this lawsuit for the recovery of delinquent
taxes in the 155th District Court on December 20, 2012, against Doretha Byman Mason
(“Doretha”), Johnnie Mae Campbell (“Johnnie Mae”), Sawyer Lee Byman, Jr. (“Sawyer
Jr.”), and Judgments2Ca$h LLC (“J2C”). Citations were issued for Doretha, Johnnie
Mae and J2C. Return of citation showed that Doretha was deceased; Johnnie Mae and
J2C were personally served. J2C filed an original answer by and through its “registered
agent and assignee, pro se”, Woodrow W. Miller, who is not a lawyer. In that answer, he
asked that Holland Bynam (“Holland”) be added to the suit and serve as an heir of
Sawyer Lee Byman, Jr. Royal filed an amended petition adding Holland Bynam, Heir to
Sawyer Lee Byman, Jr., and he was personally served. Johnnie Mae and Holland
defaulted. Doretha and Sawyer Jr. were served by posting; the Court appointed an
attorney ad litem to represent their interests. J2C filed numerous answers and motions.
Waller-Harris Emergency Services District #200 intervened; Waller County filed a
motion for substitution of counsel. Trial before the Court was held on August 18, 2014.
J2C appeared by and through Mr. Miller, Johnnie Mae and Holland did not appear, and
Charles J. Karisch appeared as attorney ad litem for Doretha and Sawyer. Judgment was
entered on that date in favor of Plaintiffs and Intervenor. J2C appeals.
- iii -
ISSUES PRESENTED
ISSUE 1: Whether the trial court precluded Woodrow Miller from asserting
the rights of J2C? (Responsive to Appellant’s Issue One)
ISSUE 2: Whether J2C waived his arguments related to the evidence presented
by failing to object at trial? (Responsive to Appellant’s Issues Two,
Three, and Eight)
ISSUE 3: Whether J2C has standing to complain about another individual’s
tract? (Responsive to Appellant’s Issue Two)
ISSUE 4: Whether the trial court properly entered judgment for Royal ISD and
EMS? (Responsive to Issues Two through Eight)
- iv -
STATEMENT OF FACTS
A. THE PROPERTY
The judgment orders recovery of taxes and the foreclosure of the tax liens on the
following property [“The Property”]:
8.0 acres, more or less, Tract 26, John Kelley Survey, A-40, Waller County,
Texas, as described in Volume 72, Page 44, Deed Records of Waller
County, Texas, known as 8241/8243 Buller Road, Brookshire, Waller
County, Texas (R6819/R6820/R6821). (The “R” numbers are the “property
identification numbers or “PID’s” on the tax roll or the appraisal roll. They
are available online at tax.co.waller.tx.us/Appraisal/PublicAccess/
PropertySearch for the tax roll or Waller-cad.org for the appraisal roll.]
The Property lies just off Buller Road near its intersection with Mt. Zion Road in
the community known as Sunnyside outside of Brookshire, Waller County, Texas. It is
virtually landlocked; its access to Buller Road is a strip of land in the name of Camila
Jackson, PID R6830. (The taxes are delinquent on this tract for 1995-2014. The Camila
Jackson Estate conveyed it to Judgments2Ca$h LLC and Charles L. Campbell, et al. by
Instrument No. 1500512 dated 1/26/15, Deed Records of Waller County, Texas, available
online at countyresearch.com).
B. TAX ASSESSMENT
Taxes are assessed in three undivided interests as follows:
Judgments2Ca$h, LLC/R6819: “ABS A304000 A-40 John Kelley Tract 26
Acres 2.67 UDI in 8.00 AC 33.34%”. It is assessed as vacant and
unimproved with a total value of $26,700. Taxes are delinquent for 2003 –
2014 in the amount of $12,806.91 as of March 2015.
Susie Price Estate c/o Doretha Mason 8241 Buller Road, Brookshire, Texas
77423/R6820: “ABS A304000 A-40 John Kelley Tract 26 Acres 2.67
33.33% UDI in 8.00 AC”. It is shown to have an improvement valued at
$2,710 with the land at $26,700 for a total value of $29,410. Taxes are
-1-
delinquent for 2006 -2014 in the amount of $10,707.45 as of March 2015.
Johnnie Mae Campbell, 9919 Algiers, Houston, Texas 77041/R6821: “ABS
A304000 A-40 John Kelley Tract 26 33.33% UDI in 8.00 AC”. It is shown
with an improvement of $10,430 and the land at $26,700 for a total of
$37,130. Taxes are delinquent for 2006 -2014 in the amount of $8,205.24.
The entire tract is valued at $93,240. It is not clear why the improvements are
assigned to Susie and Johnnie Mae. There are deeds to Johnnie Mae and J2C; there is no
deed to the Susie Price Estate c/o Doretha Mason share. This will be discussed in more
detail below. All of this information is available online at the websites referred to in
Section I.
C. TITLE
The suit is against the heirs, beneficiaries and successors, of Susie Harris Price.
Thomas Palmer conveyed Susie a called 12 acres of land described in a deed dated June
2, 1937 and recorded June 5, 1937 at Volume 72, Page 44, Deed Records of Waller
County, Texas (“72/44 1937”). She conveyed a called four acres therefrom in 1940 to
Camila Jackson at 78/167 (this instrument is not part of the Clerk’s Record). There were
no further conveyances of record. Susie died in 1972 at age 90. Her daughter, Elmer
Byman Williams filed an Affidavit of Heirship in 1982 at 344/317. It recites that Susan
Harris Price married Sawyer Lee Byman, who died in 1914. There were five children:
Albena, deceased at age 11, Elmer Byman Williams, the affiant, of Brookshire, Tilmer,
deceased in infancy, Sawyer Lee Byman, Jr., 5602 Minden Street, Houston, Texas 77026,
and Doretha Byman Mason of Brookshire. The affiant recites that Susie later married
Will Price in 1920, but there were no children born to this marriage, which ended in
-2-
divorce in about 1931, according to Elmer’s affidavit. Susie left three heirs: Elmer,
Sawyer Lee Jr. and Doretha. Title to The Property vested in them at her demise. (Clerk’s
Record pages 66-69 & 91-94)
Elmer Byman Mason died testate in 2001 at age 95. Her will is of record in
Probate No. P07-009; In the Matter of the Estate of Elmer Bynam Williams, filed
February 2, 2007 in the Waller County Court at Law. It recites that her devisee is Doretha
Byman Mason (the will itself is not part of the Clerk’s Record). Her Executrix is Johnnie
Mae Campbell. Johnnie Mae, as Independent Executrix of the Estate of Elmer Bynum
(sic) Williams conveyed a share of The Property to herself in 2007 at 1045/163. The
property description is almost verbatim from the tax roll: “304000-026-000-103 Property
R6821 A 30400 A-40 John Kelly, Tract 26, Acres 2.67 33% UDI in 8.00 AC” (sic). This
is the tract assessed to Johnnie Mae under R6821. (Clerk’s Record pages 101-104)
Holland E. Bynam filed an Affidavit of Heirship in 1995 at 518/759 relating that
Sawyer L. Bynam II was married to Horald Williams and that they were divorced in
1937. They had two sons, Sawyer L. Bynam III, born 1933 and Holland Bynam, born
1935. Horald died in 1965, and Sawyer II died in 1994, leaving Sawyer III and Holland
as their heirs. But their names are Bynam not Byman. It is not totally clear that Sawyer
Lee Byman, Jr. and Sawyer L. Bynam II are the same person. J2C provided some proof
in the form of a Harris County Tax Record and a Social Security Death Record for
Sawyer L. Bynam II (the SSI Record is not part of the Clerk’s Record). Both are shown
to be at 5602 Minden Street, Houston, Texas 78026. He has not shown that there is no
Social Security Record for Sawyer Lee Byman, Jr. Even if they are the same person, the
-3-
Affidavit does not show that Sawyer L. Bynam II did not have any other heirs, nor does it
state that he is the same person as Sawyer Lee Byman, Jr. This left Sawyer L. Bynam
with two record heirs: Sawyer III and Holland, but it did not provide a firm basis for
dismissing Sawyer Lee Byman, Jr. There is a “Sheriff Deed Real Estate” (sic) in 2005 at
870/830 conveying the interest of Sawyer L. Bynam III to J2C for $500.79. This deed
also uses a tax roll description. This became the tract assessed to J2C under PID R6819.
It has two record owners – 1/6th for J2C and 1/6th for Holland. (Clerk’s Record pages 70-
72 & 95-97)
The third and final heir is Doretha Byman Mason, 8241 Buller Road, Brookshire,
Texas 77423. Citation was issued for her at that address, and she was reported deceased.
There is no record will or affidavit of heirship for her. None of the other defendants,
when contacted by mail, could provide anything regarding her heirs. Johnnie Mae
Campbell appears to be her daughter; she was listed as Elmer’s niece in Probate No. P07-
009. But there is no proof of this, and there is no proof that she was Doretha’s only heir.
Doretha was finally served by posting, and Charles Karisch served as her attorney ad
litem. (Clerk’s Record pages 26, 27, 29, 39, 41)
The state of the title to the Property is as follows: one-third in Johnnie Mae
Campbell, one-third in the heirs of Doretha Byman Mason, and one-third in J2C and
Holland Bynam – 1/6th each. (Reporter’s Record page 7)
D. DEFENDANT’S PRETRIAL PLEADINGS
J2C filed numerous documents and pleadings, including an Original Answer
(3/27/13), an Amended Answer, a Suggestion of Death and Motion Death and Motion to
-4-
Abate, an Amended Motion to Remove Attorney ad Litem (5/19/14), a Second Amended
Answer, a Cross-Claim for Partition with Discovery Requests, a Motion for Summary
Judgment and Counter-Claim/Cross-Claim for Partition (5/27/14). (Clerk’s Record pp.
10, 52, 57, 74, 109)
It is not possible to respond directly to all these pleadings, but they boil down to
two things. (1) Sawyer Lee Byman, Jr. and Sawyer L. Bynam II may well be the same
person. (2) J2C would like some time to acquire marketable title.
Some of J2C’s pleadings are contradictory. He wants an abatement, but he also
asks for a partition in kind, which would divide the Property into at least thirds. He also
asks for a summary judgment granting him all of the property. He seeks an abatement
while asking for final judgments that are themselves contradictory because he wants to
divide the property, but he also wants all of it.
The partition is brought under Section 33.46 of the Tax Code, which allows the
Court to partition the taxes of each owner. In this case, the taxes are already partitioned,
with shares of each owner exempt from the claims or liens against the interests of the
other owners. J2C could even have his one-sixth interest partitioned, if he so desired.
The Motion for Summary Judgment appears to be a Petition for Forced Sale under
Section 29.002 of the Property Code. This requires payment of the taxes in advance. He
did not present any argument on these matters at trial on August 18, 2014.
E. DEFENDANT’S ARGUMENTS AT TRIAL
There was a trial on the merits before the Court on August 18, 2014. Judgment
was entered for Plaintiffs and Intervenor, and execution on the Judgment was suspended
-5-
for one year. In the course of the hearing, Woodrow W. Miller made several arguments
on behalf of himself and J2C, which are in the Reporter’s Record.
First, he wanted to show that Holland Bynam was not an heir. Presumably, his
point was that the only heir to Sawyer L. Bynam II was Sawyer L. Bynam III, so J2C and
Mr. Miller would own an entire one-third interest. He also wanted to argue that Johnnie
Mae Campbell owned all of Doretha Byman Mason’s share. The Court allowed Mr.
Karisch, the Attorney Ad Litem, and Mr. Steen, Attorney for Royal to address the issues
of title. The Court indicated that entry of judgment with a year to sort out the title before
execution was quite reasonable. Defendant indicated that he was uncertain on the effect
of the judgment on his ability to market the Property. [Reporter’s Record pgs. 1-8]
At that point, the Court inquired as to whether or not Mr. Miller was an attorney.
Mr. Miller admitted that he was not an attorney. He asked the Court a question again
about the effect of the Judgment. The Court responded that he could not give him legal
advice and recommended that Mr. Miller get an attorney. [Reporter’s Record pgs. 8-10]
Mr. Miller then raised another argument about the size of the Property because the
deed referenced twelve acres and the tax statements were for eight acres, and this meant
that he had a “bad description”. (He had no trouble with this description when he
foreclosed on his judgment against Sawyer III to acquire a share of the Property interest
under his Sheriff’s Deed.) The Court responded that there was probably a conveyance in
the chain of title of the four acres, but that was not an issue in the case. (Reporter’s
Record pg. 10)
-6-
Mr. Miller’s final argument pertained to the assessment and the tax notices to
Susie Price Estate c/o Doretha/R6820 because she was a “dead person”. He wanted “a
reduction in the penalties and interest” (apparently on the assumption that he will own
Doretha’s interest in due course). (Reporter’s Record pg. 11)
J2C and Mr. Miller had not advanced any of these arguments in his pleadings. He
had not raised them as issues in the case and had not given Plaintiffs and Intervenor any
notice on them. The Court properly denied them. He did not object in any way to
Plaintiffs’ and Intervenor’s pleading and proof at trial. [Reporter’s Record pg. 12]
The Court took particular notice that Mr. Miller was a non-lawyer representing a
limited liability company, which the State Bar Act precludes. He also took notice that Mr.
Miller had filed an application for sanctions against opposing counsel in violation of the
State Bar rules. Mr. Miller responded that the motion for sanctions was for more time.
The Court granted judgment for Plaintiffs and Intervenor and denied the Applications for
Sanctions. The Judgment contained the standard clause denying all relief not expressly
granted therein. [Reporter’s Record pg. 11]
F. DEFENDANT’S ARGUMENTS ON APPEAL
On appeal, J2C makes arguments or complaints on the following issues: (1) The
sufficiency of the legal description (2) Plaintiffs’ and Intervenor’s pleading and proof (3)
the Susie Price assessment (4) the assignment of J2C’s claims and defenses to Woodrow
W. Miller. He had not raised any of these issues in his pre-trial pleadings or at trial.
-7-
SUMMARY OF THE ARGUMENTS
The bottom line is that J2C represented to the court that he wants the case put on
hold while he clears the title and makes a decent commercial return. (Reporters Record
Page 8). The law and public policy do not require the taxing units to wait on people to put
their affairs in order before collecting taxes, which after all, support services and
infrastructure essential for conducting those affairs. Sound business practice impels an
owner to pay the taxes because accumulating penalties and interest wastes the property.
He would also like a hefty discount on the tax bill. But after all the noise and bluster, this
is just a straightforward tax foreclosure case, albeit one on property with badly broken
title. Plaintiffs’ and Intervenor’s evidence was admitted without objection. There was not
even any discussion or complaint at trial about the evidence on J2C/R6819 and Johnnie
Mae/R6821. Most of the Defendants defaulted or were represented by the attorney ad
litem. (Clerk’s Record page 111)
ARGUMENT AND AUTHORITIES
Appellant complains about the sufficiency of the description of The Property, but
he presents no argument or authority on appeal for this issue. Appellee will respond
anyway. The Trial Court was correct, Susie Price did convey a called 4.0 acres in 1940 at
78/167, which would leave her with a called 8.0 acres, but the sufficiency of the
description, as the court noted, is not an issue in this case (Reporter’s Record Pages 10-
11). Appellant does not refer to the fact that he acquired his own interest under a deed
that used only the tax roll description for his undivided interest in the Property – the
aforesaid 870/830 in 2005.
-8-
Tax Code Section 25.03(a) provides that “property shall be described in the
appraisal records with sufficient certainty to identify it”. “If the description of a property
in the tax roll or delinquent tax roll is insufficient to identify the property, the records of
the appraisal office are admissible to identify the property”. Tax Code, Section 33.47(b).
Felt v. Harris County, 14-12-00327-CV (Tex. App.—Houston 14th 2013), Seiflein v. City
of Houston, 01-09-00361-CV (Tex. App.—Houston 1st 2010). The description on the tax
roll and in Plaintiffs’ and Intervenor’s pleading and proof does identify The Property with
sufficient certainty to locate it on the ground. The deeds at 72/44 and 78/167 provide a
basis for a survey and a metes and bounds description (though it will not be easy – typical
for Sunnyside).
I. Court granted Mr. Miller every opportunity to present J2C’s case in
spite of its reservations about his status.
Mr. Miller complains that the Court would not honor the assignment of J2C’s
claims and defenses to him. Actually, a review of the trial record in its entirety shows that
the Court gave Mr. Miller a chance to argue his case in spite of its reservations about his
status, but he did not present a defense to the pleading and proof, and the Court ruled
against him. Strangely, Mr. Miller makes the statement or admission on appeal that there
was no written assignment until September 17, 2014, almost a month after the trial. It is
questionable whether an assignment from J2C, where Mr. Miller is president and
registered agent, could ever be valid. It gives every appearance of being for the purpose
of avoiding the expense of counsel. Leaving that aside, it is clear that Mr. Miller was not
an assignee during the pendency of the case, when he was purporting to represent J2C.
-9-
(Clerk’s Record page 221)
II. Appellant has waived any arguments related to the taxing units’
evidence by failing to object at trial.
The bulk of Appellant’s Brief is directed at the taxing unit’s evidence. In his Issue
Number Two, he complains about the tax assessment for the Susie Price Estate. Royal
ISD did not sue an Estate. Plaintiffs and Intervenor followed the law by bringing suit
against the heirs and their beneficiaries and successors, as set out in a case like Estate of
CM v. SG; 937 S.W.2d 8 (Tex. App.—Houston 14th 1996), cited in Appellant’s Brief.
The Susie Price Estate is not named as a party; it is only shown as the assessee for one of
the tracts – R6820. Appellant has no authority, and there is none, to show that a tax
assessment against an estate is improper or void. In fact, at trial, he admitted that all of
the owners were named in the suit; his only argument was that there should be fewer
Defendants. (Reporter’s Record pages 5-6)
Plaintiffs’ and Intervenor’s evidence is in the form of “copies of the entries
showing the property and the amount of the tax and penalties imposed and interest
accrued” as required by Tax Code section 33.47(a). On his Issues Three-Six, J2C and Mr.
Miller complain about Plaintiff’s pleading and proof, which was admitted without
objection at trial. Hence, he has waived all arguments related to that evidence.
(Reporters’ Record Pages 6, 10, 12-13)
III. Appellee lacks standing to complain about another’s tract.
Further, J2C and Mr. Miller lack standing to complain about Doretha/R6820. He
does not own it, and they have no personal stake in the tax assessment or the taxes. The
- 10 -
tax liens on that tract cannot burden the tract that he owns. In Re R.I.V., 923 S.W.2d 573
(Tex. 1996, per curiam). Standing must exist at the time a plaintiff files suit; if the
plaintiff lacks standing at the time of filing, the case must be dismissed. Kirkpatrick v.
Kirkpatrick, 205 S.W.3d 690, 703 (Tex. App.—Ft. Worth 2006, pet. denied).
CONCLUSION
At the end of the day, this is an ordinary tax foreclosure suit. The suit was filed;
the Defendants were served; most defaulted, and one of them answered. The case was set
for trial. One of the Defendants appeared and addressed the Court, who listened to him
politely, then entered judgment as prayed for and proven. As Mr. Karisch observed at
trial, the point of Mr. Miller’s pleadings, and, according to Mr. Miller, even the motion
for sanctions, was to buy more time (Reporter’s Record page 11). To some extent he has
succeeded, but his time could have been better spent in curing title, a vital part of which
is paying the taxes, which continue to accrue. Appellant did not object to any pleading or
proof offered against his own undivided interest. He has no standing to assert any
defenses on the undivided interests of his cotenants. The Judgment of the 506th District
should stand and this appeal should be in all things denied.
PRAYER
WHEREFORE, premises, arguments and authority considered, Appellee Royal
ISD prays that this honorable affirm the Judgment of the Trial Court in all things in this
case.
- 11 -
Respectfully submitted,
LAW OFFICE OF HENRY GATES STEEN, JR., PC
By: /s/Henry Steen, Jr.
Henry Steen, Jr.
Texas Bar No. 1911020
3001 N. Lamar Blvd., Suite 306
Austin, Texas 78705
(512) 476-4688
(512) 476-0325 (fax)
Henry_steen@steenlaw.com
Counsel for Royal ISD
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
document has been sent via electronic, court-generated and/or email means on April 14,
2015, to the following:
Woodrow W. Miller
On behalf of Judgments 2 CA$H, LLC
12929 Main
Houston, Texas 77035
Wwmiller2012@gmail.com
R. Gregory East
Otilia Gonzales
Perdue, Brandon, Fielder, Collins & Mott, LLC
1235 N. Loop West, Suite 600
Houston, TX 77008
geast@pbfcm.com
ogonzales@pbfcm.com
/s/Henry Steen, Jr.
Henry Steen, Jr.
- 12 -