Huntley Fort Gill, Robyn G. Attaway and Miriam G. Stirn v. David Hill, Individually and D/B/A DOH Oil Company

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

HUNTLEY FORT GILL, ROBYN G.
ATTAWAY and MIRIAM G. STIRN, § No. 08-20-00081-CV

Appellants, § Appeal from the

v. § 143rd District Court

DAVID HILL, Individually and d/b/a § of Reeves County, Texas
DOH OIL COMPANY,
§ (TC# 19-02-22804-CVR)
Appellees.

DISSENTING OPINION

As evident by the differing views of my two colleagues—who otherwise agree on the

outcome of the case—the critical inquiry of this summary judgment dispute necessarily requires

that we determine on which party the burden of proof rested, and whether that burden was met.

Chief Justice Rodriguez determines that Appellees met their initial summary judgment burden

such that a burden of proof shifted to Appellants to present evidence raising a fact issue precluding

the applicability of Appellees’ statute of limitations defense. She determines that evidence

satisfying that burden, which Appellants failed to produce, would include proof that taxes were

paid on their property from the time of the tax sale in 1999 to the date of the filing of their suit.

While Justice Alley agrees that the initial burden shifted to Appellants, he writes separately to

further explain that he would categorize Appellants’ due process claim as one that “more resembles

a confession and avoidance claim.” He nonetheless agrees such equitable defense to the running
of limitations required Appellants to present evidence raising a fact issue to avoid summary

judgment.

Regardless of the differences reflected by these separate writings, the plurality opinion

concludes that based on the evidence attached to Appellees’ motion for summary judgment, they

met their initial burden of proof to conclusively establish the running of the one-year statute of

limitations against Appellants’ due process claim. See TEX. TAX CODE ANN. § 33.54. As proof of

such defense, Appellees relied on the sheriff’s deed from which title of the property at issue had

been conveyed to Appellees following a tax sale. That deed reflected a recording date of April

1999. The majority concludes the deed conclusively established that Appellants’ suit was brought

nearly nineteen years after the running of the applicable statute of limitations. The majority further

concludes the burden shifted to Appellants to produce evidence raising a fact issue on their due

process claim, which they failed to do.

Based on the nature of Appellants’ claim and the well-established standards of a traditional

motion for summary judgment, I disagree that Appellees met their initial burden of proof, such

that a burden ever shifted to Appellants to create a fact issue.

I.

To start, Appellants identified their claim as “a collateral attack on a void 1999 tax suit

judgment.” The petition contends that the tax judgment was entered without personal jurisdiction

over James W. Gill and Gale T. Goss (James and Gale), now deceased, who were Appellants’

predecessors-in-title to a mineral interest in land located in Reeves County. Appellants’ claim

alleged “[t]he [tax] [j]udgment was void as to James and Gale because there was a complete failure

of service of citation on them and they were thereby denied due process guaranteed to them under

the Fourteenth Amendment to the United States Constitution and Article I, Sections 13 and 19 of

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the Constitution of the State of Texas.” Moreover, Appellants asserted that, because the judgment

was void, “the resulting tax sale and [s]heriffs’ [t]ax [d]eed to [DOH Oil Company] were also void

as to the [p]roperty.” Finally, Appellants alleged that even though the sheriff’s deed correctly

identified the interests formerly owned by James, “it did not correctly identify the interest

purportedly owned by Gale.” Based on all these allegations, Appellants sought a judgment

declaring the tax judgment void and of no effect as to James, Gale, and the property; and further

declaring that the sheriff’s deed could not and did not convey any interest that was not included in

the tax suit petition and foreclosed upon by the judgment.

As the majority opinion describes, the Supreme Court of Texas recently addressed a similar

due process claim brought against the same 1999 tax judgment at issue here. See Mitchell v. MAP

Resources, Inc., No. 21-0124, 2022 WL 1509745, at *1 (Tex. May 13, 2022). In Mitchell, the heirs

of Elizabeth Mitchell sued the current owners of disputed mineral interests, alleging the tax

foreclosure judgment rendered against Elizabeth was void as to her because she had not been

properly served, thus violating her federal and state constitutional rights. Id. Elizabeth was a named

defendant— “[among the] almost 500 other defendants”—whose mineral interests were foreclosed

upon by taxing authorities. Id. Mitchell considered whether section 33.54 of the Tax Code applied

to the heirs’ due process claim. Id. at *9.

Regarding the nature of such claim, Mitchell explained, “[t]he Due Process Clause of the

[Fourteenth Amendment to the] United States Constitution prevents the government from

depriving a person of his or her property, without due process of law.” Id. at *5 (citing U.S. CONST.

AMEND. XIV, § 1 and TEX. CONST. art. I, § 19). Thus, constitutional protections “require that

deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for

hearing appropriate to the nature of the case.” Id. (citing Mullane v. Cent. Hanover Bank & Tr.

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Co., 339 U.S. 306, 313 (1950)). Notice must be “reasonably calculated, under the circumstances,

to apprise interested parties of the pendency of the action and afford them the opportunity to

present their objections.” Id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)).

Regarding claims of this nature, Mitchell builds on the guidance earlier provided by the

Supreme Court of Texas in PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012).

Addressing procedural aspects of such due process claims, PNS Stores held that “a judgment may

also be challenged through a collateral attack when a failure to establish personal jurisdiction

violates due process.” Id. (citing Peralta, 485 U.S. at 84). The Supreme Court observed that “a

judgment entered without notice or service is constitutionally infirm, and some form of attack must

be available when defects in personal jurisdiction violate due process.” Id. at 272–73. PNS Stores

further described that a failure to give notice violates “the most rudimentary demands of due

process of law.” Id. at 273. A litigant may attack a void judgment directly or collaterally. Id. at

271. Although a direct attack must be brought within a definite time, a collateral attack may be

brought at any time. Id. at 272 (citing In re E.R., 385 S.W.3d 552, 566 (Tex.2012)). When attacked

collaterally, a judgment alleged as void is presumed valid, but the presumption disappears when

the record affirmatively reveals a jurisdictional defect. Id. at 273. Here, Appellants brought such a

collateral attack outside the one-year limitations period provided by the Tax Code, alleging the tax

judgment and resulting sheriff’s deed were void and without effect.

When reviewing such a due process claim, Mitchell also discussed the applicability of

counterarguments and defenses raised by the property owners’ own motion for summary judgment.

Similar to the defense asserted in the case at hand, the property owners named as defendants in the

Mitchell heirs’ suit alleged that even if the foreclosure judgment violated due process, the

judgment could not be declared void given it was barred by the running of the Tax Code’s one-

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year statute of limitations. Mitchell, 2022 WL 1509745, at *9. But Mitchell rejected this argument.

The Supreme Court noted that no temporal limits may be placed on a challenge to a void judgment

when such a claim is filed by a party who did not receive the type of notice to which the party was

entitled to receive under the circumstances. Id. at *10. Rather, “state statutory requirements must

give way to constitutional protections.” Id. (citing E.R., 385 S.W.3d at 566)(providing that Texas

rules “must yield to contrary precedent from the U.S. Supreme Court”). Mitchell concluded that

when such a claim is properly brought, the requirements of section 33.54 of the Tax Code are

“irrelevant” as the suit operates independent of the state statutory provision. Id.

Appellees’ Traditional Motion for Summary Judgment

Yet Mitchell offers only limited guidance here because its procedural posture significantly

differs. As stated earlier, the parties in Mitchell filed cross-motions for summary judgment and

those motions included a hybrid motion for summary judgment filed by defendant, MAP

Resources. Id. at *3. As a result, both sides of the lawsuit attached evidence to their motions, and

both affirmatively argued that each were entitled to judgment as a matter of law.

Here, only Appellees filed a motion for summary judgment, not Appellants. Relying on

section 33.54 of the Tax Code and the recording date of the attached sheriff’s deed, Appellees

argued first that “the time for challenging the tax [sale] passed nineteen years ago.” Second, they

urged that Appellants did not allege that they or their predecessors had paid taxes in the interim.

Based on the form and substance of the motion, Appellees filed a traditional motion for summary

judgment, not a no-evidence or hybrid motion. Compare TEX. R. CIV. P. 166a(c)(traditional

motion), with TEX. R. CIV. P. 166a(i)(no-evidence motion); see also Merriman v. XTO Energy,

Inc., 407 S.W.3d 244, 248 (Tex. 2013)(discussing the combination of a traditional motion with a

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no-evidence motion results in a hybrid motion). Nowhere in the motion did Appellees assert that

no evidence supported one or more essential elements of Appellants’ due process claim.

The standard for reviewing motions filed under Rule 166a(c) of the Texas Rules of Civil

Procedure “is whether the successful movant at the trial level carried its burden of showing that

there is no genuine issue of material fact and that judgment should be granted as a matter of

law.” KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.

1999); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985)). Under that

standard, we must take as true all evidence favorable to the non-movant and must make all

reasonable inferences in the non-movant’s favor as well. See KPMG Peat Marwick, 988 S.W.2d

at 748; Nixon, 690 S.W.2d at 548–49.

In Draughon v. Jones, the Supreme Court of Texas instructed that “[a] court must grant a

‘traditional’ motion for summary judgment ‘forthwith if [the summary judgment evidence]

show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law on the issues expressly set out.’” Draughon v. Johnson, 631 S.W.3d

81, 87 (Tex. 2021)(alteration in original)(quoting TEX. R. CIV. P. 166a(c)). Describing the

movant’s burden of proof under our traditional rule, Draughon stated, “courts never shift the

burden of proof to the non-movant unless and until the movant has established his entitlement to

a summary judgment by conclusively proving all essential elements of his cause of action or

defense as a matter of law.” Id. at 87–88. Of further note, Draughon clarified that the traditional

motion has been interpreted such that “the presumptions and burden of proof for an ordinary or

conventional trial are immaterial to the burden that a movant for summary judgment must bear.”

Draughon, 631 S.W.3d at 87 (citing Missouri-Kansas-Texas R.R. v. City of Dallas, 623 S.W.2d

296, 298 (Tex. 1981); Chavez v. Kan. City So. Ry. Co., 520 S.W.3d 898, 899 (Tex. 2017)(per

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curiam)). “The non-movant’s failure to answer or respond cannot supply by default the summary

judgment proof necessary to establish the movant’s right.” Draughon, 631 S.W.3d at 88.

Applicable to this case, Appellants carry the burden at trial to rebut the presumption of

validity that applies to the tax judgment and sheriff’s deed, which they collaterally attack by their

pending suit. See PNS Stores, 379 S.W.3d at 273. And based on that presumption, they must

affirmatively demonstrate that the trial court lacked personal jurisdiction over James and Gale,

their predecessors-in-interest. Yet, as relevant to the standards applicable to this summary

judgment proceeding, that burden operates in reverse order in this instance. See Draughon, 631

S.W.3d at 81; Chavez v. Kan. City So. Ry. Co., 520 S.W.3d at 899 (Tex. 2017).

Because Appellees carry the initial burden to conclusively establish their entitlement to the

Tax Code’s limitations defense, that burden necessarily includes a requirement to show that such

defense would apply to Appellants’ claim. To do so, Appellees carry the burden to show that no

due process violation occurred with regard to the collaterally attacked tax judgment and sheriff’s

deed. Said differently, to rely on the deed to establish the running of limitations, Appellees carried

the burden of establishing not only the date of the deed’s recording but also its validity. That is,

not merely that the judgment and deed were presumed valid, but that they were in fact valid and

of legal force and effect. When such burden of proof is met, the statute of limitations defense

would be applicable to Appellants’ claim.

In sum, the sheriff’s deed did not enjoy a presumption of validity in this proceeding, as it

does enjoy at trial, such that Appellees could rely on it alone to shift the burden of proof to

Appellants to prove otherwise. As Draughon aptly stated, “[i]f a defendant prefers to place the

burden on the plaintiff to raise a fact issue regarding any aspects of limitations on which the

plaintiff would have the burden at trial, it is free to file a no-evidence motion for summary

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judgment as to those matters.” Id. at 85. Here, Appellees chose not to file a no-evidence or hybrid

motion, and Appellants themselves had neither sought a summary judgment on their claim.

Choosing to travel solely on a traditional motion for summary judgment, Appellees carried the full

burden to establish the date of the sheriff’s deed and its validity.

Conclusion

Because I would conclude that Appellees failed to conclusively establish their affirmative

defense of limitations as a matter of law, I respectfully dissent.

August 30, 2022
GINA M. PALAFOX, Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

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