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.

OPINION

Appellants, Huntley Fort Gill, Robyn G. Attaway and Miriam G. Stirn, appeal the trial

court’s entry of summary judgment against them and in favor of Appellees, David Hill,

Individually and d/b/a DOH Oil Company, on Appellees’ affirmative defense of limitations.

Appellants’ 2019 lawsuit was a collateral attack on a tax lien foreclosure which occurred in 1999,

which Appellants allege occurred without adequate notice and in violation of their predecessors’

due process rights. Appellees moved for summary judgment based on the Tax Code’s one-year

statute of limitations, which the trial court granted.

We find the trial court did not err in granting summary judgment in favor of Appellees

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because Appellants failed to meet their burden to present evidence indicating a material issue of

fact on the applicability of the statute of limitations to their case. We affirm the judgment of the

trial court.

BACKGROUND

In 1999, Appellees purchased various mineral interests at auction after they had been

foreclosed upon by Pecos-Barstow-Toya ISD, Reeves County, and Reeves County Hospital

District. The sheriff’s deed conveying the mineral interests to DOH Oil Company was recorded in

the property records on April 8, 1999.

On February 13, 2019, Appellants filed a lawsuit collaterally attacking the validity of the

tax sale of the mineral interests to DOH Oil Company. In their petition, they alleged their

predecessors-in-title owned a portion of the mineral interests in question at the time of the tax sale

foreclosure, and the tax sale was undertaken without any service of process upon their

predecessors. As a result, according to Appellants’ petition, the judgment following the tax sale

was void for lack of due process. Their petition sought a declaratory judgment that the tax sale

judgment was void and sought to quiet title on the subject mineral interests.

In their answer, Appellees pleaded the affirmative defense of limitations, among others.

They later moved for summary judgment on limitations, invoking the one-year statute of

limitations prescribed by the Texas Tax Code for challenges to title of property sold in a tax sale.

See TEX.TAXCODE ANN. § 33.54(a)(1). Appellees argued Appellants’ deadline to challenge the

validity of the sale was one year after the deed of sale to DOH Oil Company was recorded in the

property records, or April 8, 2000, pursuant to Section 33.54. See id. Because Appellants’ lawsuit

was not filed until 2019, Appellees asserted Appellants’ claims were barred. Additionally,

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Appellees argued the Tax Code’s tolling provision—namely, for Appellants or their predecessors

to have paid taxes on the property from the time of the sale until the suit challenging the sale was

brought—was not triggered in this case because Appellants did not allege that they or their

predecessors paid taxes during that time. See TEX.TAXCODE ANN. § 33.54(b). Furthermore,

Appellees argued the statute of limitations applies to cases challenging the validity of a tax sale

even where due process has been denied to a property owner by improper or a complete lack of

service of process, based on Texas precedent. See, e.g., W.L. Pickens Grandchildren’s Joint

Venture v. DOH Oil Co., 281 S.W.3d 116, 121 (Tex.App.—El Paso 2008, pet. denied); Am.

Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 514-15 (Tex.App.—Ford Worth 2015, pet.

denied); John K Harrison Holdings, LLC v. Strauss, 221 S.W.3d 785, 791 (Tex.App.—Beaumont

2007, pet. denied); Session v. Woods, 206 S.W.3d 772, 778 (Tex.App.—Texarkana 2006, pet.

denied); Barrera v. Chererco, LLC, No. 04-16-00235-CV, 2017 WL 943436, at *2 (Tex.App.—

San Antonio 2017, no pet.)(not designated for publication).

In response, Appellants argued Texas intermediate courts applying the statute of limitations

to cases asserting constitutional challenges were incorrectly decided. Appellants claim Texas

Supreme Court and United States Supreme Court precedent mandates that for the requirements of

due process in a tax foreclosure to be met, a property owner was entitled to personal service of

process of the proceedings, and the preservation of due process trumped any limitations periods

prescribed by state statute. See, e.g., In re E.R., 385 S.W.3d 552, 566-67 (Tex. 2012)(declining to

apply statute of limitations under Texas Family Code for suit terminating parental rights when due

process was denied to mother through improper service); see also Schroeder v. New York, 371

U.S. 208, 211 (1962)(due process was not satisfied when notice of foreclosure was only by

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publication and posting, even though the challenge was filed outside of the limitations period);

Walker v. City of Hutchinson, 352 U.S. 112, 116 (1956)(notice by publication deprived landowner

of due process even though collateral attack was filed after deadline for appeal).

Appellees filed a reply in support of their motion for summary judgment, reiterating their

position that the statute of limitations applied to Appellants’ due process claims. Appellees also

argued that even if Appellants’ due process claims would prevent application of the statute,

Appellants had failed to carry their burden of producing any evidence tending to raise an issue of

material fact on the allegedly inadequate notice.

Following a hearing, the trial court granted Appellees’ motion for summary judgment.

Appellants filed a motion for new trial, reasserting the same argument alleged in their response

and newly claiming Appellees failed to meet their burden on summary judgment “demonstrat[ing]

that there was not even a scintilla of evidence that the due process rights of [Appellants’]

predecessor in interest were not violated.” The trial court denied Appellants’ motion for new trial.

This timely appeal followed.

DISCUSSION

Appellants present one issue on appeal: whether the trial court erred in granting Appellees’

motion for summary judgment on the affirmative defense of limitations when Appellants’ case

seeks to void a tax judgment based on the denial of constitutional due process for lack of valid

service. In response, Appellees argue that ample precedent, including precedent binding on this

Court, has upheld summary judgment against plaintiffs challenging the validity of a tax judgment

for lack of service and constitutional due process issues when the challenge is raised outside of the

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limitations period.1 Moreover, according to Appellees, summary judgment was proper because

Appellants failed to present evidence in support of their due process arguments at the summary

judgment phase, and thus failed to carry their burden to avoid having summary judgment entered

against them.

We first consider Appellees’ contention that summary judgment was proper because

Appellants failed to meet their burden of proof to defeat Appellees’ motion.

Standard of Review and Applicable Law

A grant of summary judgment is reviewed de novo. Murray v. Nabors Well Service, 622

S.W.3d 43, 50 (Tex.App.—El Paso 2020, no pet.)(citing Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013)). Summary judgment is appropriate when the movant shows that

there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

TEX.R.CIV.P. 166a. In deciding whether a genuine issue precludes summary judgment, we treat

all evidence favorable to the non-movant as true and indulge every reasonable inference and

resolve all doubts in the non-movant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002). When a defendant conclusively establishes all elements of an affirmative defense, the

defendant is entitled to summary judgment. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d

347, 355 (Tex. 1995); Holland v. Thompson, 338 S.W.3d 586, 593 (Tex.App.—El Paso 2010, pet.

denied).

To achieve summary judgment on the defense of limitations, “[t]he defendant must (1)

1
During the pendency of this appeal, the Texas Supreme Court decided Mitchell v. MAP Resources, Inc., No. 21-
0124, 2022 WL 1509745, *1 (Tex. May 13, 2022), which squarely addresses this issue. We acknowledge that neither
party had the benefit of Mitchell’s analysis in the trial court proceedings or briefing stages of this appeal. However,
as we discuss more fully below, Mitchell’s analysis is inapplicable to the facts of this case as a result of evidentiary
deficiencies at the summary judgment stage.

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conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies

and has been pled or otherwise raised[.]” Holland, 338 S.W.3d at 593 (citing KPMG Peat Marwick

v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999)). This well-

established tenet applies to cases where a tax judgment is being collaterally attacked. See W.L.

Pickens, 281 S.W.3d at 119. Upon such showing, the non-movant bears the burden to present

evidence raising an issue of material fact to avoid the statute of limitations. Rodriguez v. Cemex,

Inc., 579 S.W.3d 152, 160 (Tex.App.—El Paso 2019, no pet.). The non-moving party is not

required to marshal all its proof in response to a summary judgment motion but must present

evidence that raises a genuine issue of material fact on each of the challenged elements. Stierwalt

v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex.App.—El Paso 2016, no pet.). If a

plaintiff fails to raise a genuine issue of material fact as to the affirmative defense, the trial court

must grant the motion. See id.

Analysis

We first consider whether Appellees met their burden of proof as the movant. In their

motion, Appellees cite to Section 33.54 of the Texas Tax Code, which provides a limitations period

of one year from “the date that the deed executed to the purchaser at the tax sale is filed of record”

for challenges to title of property sold in a tax sale. See TEX.TAXCODE ANN. § 33.54(a). 2 As

summary judgment evidence, Appellees attached a copy of the Sheriff’s Tax Deed from the sale

of the mineral interests including those belonging to Appellants’ predecessor-in-interest. The date

2
As discussed further in our opinion, Section 33.54 includes an exception to the limitations period for persons who
were not served with citation in the suit to foreclose the tax lien when those persons paid taxes on the property during
the limitations period and until a suit challenging the tax sale is commenced. See id. § 33.54(b).

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of filing the deed in the property records establishes the accrual date of claims, which the record

affirmatively shows is April 6, 1999.

Accordingly, Appellees have conclusively proved the accrual date for Appellants’ claims.

It was not necessary for Appellees to negate the discovery rule, since it was neither pleaded by

Appellants nor is applicable to claims challenging a tax sale. See W.L. Pickens, 281 S.W.3d at 122

(precluding application of the discovery rule to cases challenging a tax sale). Appellees met their

initial burden proving their entitlement to summary judgment on limitations.

At this juncture in the summary judgment proceedings, the burden shifted to Appellants to

present evidence raising a material issue of fact as to the applicability of the statute of limitations

to their petition. See Rodriguez, 579 S.W.3d at 160; W.L. Pickens, 281 S.W.3d at 123. Evidence

which would preclude application of the statute of limitations is proof that Appellants and/or their

predecessors paid taxes on the property from the time of the sale in 1999 until their suit was

brought. See W.L. Pickens, 281 S.W.3d at 123; TEX.TAXCODE ANN. § 33.54(b). When a person

challenging a tax sale presents evidence it paid taxes between the time of the sale and the time the

challenge is brought, the limitations period on suits challenging the sale is inapplicable. See W.L.

Pickens, 281 S.W.3d at 123; TEX.TAXCODE ANN. § 33.54(b). However, no such evidence was

provided by Appellants, nor did Appellants make any contention they or their predecessors-in-

interest paid taxes during this period.

Additionally, Appellants could have presented evidence to support their due process

claims. Since this appeal was filed, the Texas Supreme Court issued its opinion in Mitchell v. MAP

Resources, Inc., No. 21-0124, 2022 WL 1509745, *1 (Tex. May 13, 2022). Mitchell also examined

whether due process rights were violated after heirs to a mineral interest learned their predecessor’s

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rights were foreclosed upon after she was served by publication, despite her address being

available in recorded warranty deeds and the county’s tax records. See id. The Texas Supreme

Court held that the publicly available property records offered as evidence in a summary judgment

proceeding should have been considered by the trial court in a collateral attack on a judgment for

due process concerns. Id. Further, because the records contained the predecessor-in-interest’s

address, serving her by posting violated her right to procedural due process. Id.

We realize Appellants did not have the benefit of Mitchell as precedent at the time of their

proceedings in the trial court. However, if they intended to rely on allegations of a due process

violation as a response to a motion for summary judgment, they were required to present evidence

of the alleged violation in response to Appellees’ motion. See Sec. State Bank & Tr. v. Bexar

County, 397 S.W.3d 715, 723 (Tex.App.—San Antonio 2012, pet. denied)(where bank was a

lienholder of record and entitled to notice of tax sale, but evidence on summary judgment showed

complete lack of notice, one-year statute of limitations did not bar challenge to sale brought by the

bank). 3 They did not. In fact, Appellants did not attach any evidence to their response to

Appellees’ motion for summary judgment. Rather, they relied on the arguments in their response

and the substance of their petition claiming the notice by posting to their predecessors-in-interest

was constitutionally infirm and deprived them of due process, which they assert precludes

application of the statute of limitations. Their failure to present any evidence of the alleged

3
See also Ocwen Loan Servicing, LLC v. Gonzalez Fin. Holdings, Inc., 77 F. Supp. 3d 584, 588 (S.D. Tex. 2015),
aff’d sub nom. Ocwen Loan Servicing, L.L.C. v. Moss, 628 Fed. Appx. 327, 328 (5th Cir. 2016)(declining to apply
one-year statute of limitations to a lienholder who did not receive notice of the tax sale)(“When the moving party has
met its [summary judgment] burden, the nonmoving party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and explain how
that evidence prevents summary judgment on the movant’s claim.”).

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violation is a key distinction between the facts of this case and Mitchell, where the successors-in-

interest attached as evidence in the summary judgment proceedings copies of public records which

had been readily available to the taxing authorities at the time of the foreclosure sale. See Mitchell,

2022 WL 1509745 at *3. Appellants argue that documents filed among the property records of

Reeves County would have demonstrated the lack of diligent inquiry into their whereabouts at the

time of the foreclosure sale. However, they failed to attach those documents, or any other evidence

in support of the alleged due process violations, and instead relied on the substance of their

arguments. But—and on this there can be no disagreement—arguments in pleadings are not

evidence, even when sworn to or verified. CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d

528, 540 (Tex. 2016); In re Elamex, S.A. de C.V., 367 S.W.3d 891, 898 (Tex.App.—El Paso 2012,

no pet.).

In their reply brief, Appellants argue for the first time on appeal that Appellees failed to

satisfy their summary judgment burden. Specifically, Appellants argue Appellees “clearly asserted

in their Petition that the Texas Tax Code’s statute of limitations does not apply to sales held in

violation of a property owner’s due process rights[,]” and therefore, Appellees were required to

negate this contention in their motion for summary judgment.4 Appellants claim that in order to

prove Appellees were entitled to summary judgment, Appellees needed to “proffer . . . evidence

to negate Appellants’ claimed due process violation, i.e. evidence that notice and service of process

was proper[.]” First, any issue not raised initially in an appellant’s primary brief is not preserved

for review. Fox v. City of El Paso¸ 292 S.W.3d 249, 251 (Tex.App.—El Paso 2009, pet.

4
It is unclear to this Court where in Appellants’ petition they plead the inapplicability of the Tax Code’s statute of
limitations to their case.

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denied)(citing TEX.R.APP.P. 38.3). Appellants attempt to couch this argument as responsive to

Appellees’ brief; however, the argument made by Appellees to which Appellants address this new

contention is the very same ground upon which Appellees sought summary judgment in the first

place. In fact, Appellants made a similar argument in their motion for new trial, indicating an

intention to pursue this position on appeal. However, they failed to raise it in their brief on the

merits, thereby waiving the issue on appeal. See TEX.R.APP.P. 38.1(i); Fox, 292 S.W.3d at 251.

Even if Appellants had properly preserved this issue, their position is a misstatement of the

summary judgment burden. Appellants argue that for Appellees to succeed on their limitations

defense at the summary judgment stage, they must marshal evidence “conclusively establishing”

that service upon Appellants’ predecessors was proper, thus foreclosing on Appellants’ due

process claims. In other words, Appellants interpret the law to mean that to succeed on an

affirmative defense through a summary judgment motion, the party must “conclusively” dispose

of the merits of its opponent’s claim. Appellants’ position is incorrect. An affirmative defense is a

reason offered by a defendant why the plaintiff is ineligible for recovery regardless of the merits

of his claim. See MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 137 (Tex. 2014).

We acknowledge the somewhat unique circumstances of this particular case, and Appellants’

assertion their predecessors-in-interests’ violation of due process—their substantive claim—

precludes application of Appellees’ statute of limitations affirmative defense. However, the

summary judgment standard is well-settled and the parties’ respective burdens at the summary

judgment stage are clear: the burden to present some evidence demonstrating an issue of material

fact on the applicability of the statute of limitations lay with Appellants as the non-movants. See

Stierwalt, 499 S.W.3d at 194. If they intended to rely solely on their due process claims to defeat

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the limitations assertion, as their petition and response indicate, it was their burden to present some

evidence of a due process violation. 5 Their failure to present any evidence of a due process

violation or any other reason why the limitations period should not apply after Appellees satisfied

their burden proving the limitations period should apply is insufficient to avoid imposing summary

judgment against them.

Appellants also raise for the first time in their reply brief that a summary judgment based

upon the plaintiff’s pleadings requires the court to assume all allegations and facts contained in

the plaintiff’s petition are true. This argument has also not been preserved for review. See

TEX.R.APP.P. 38.1(i); Fox, 292 S.W.3d at 251. Even if it was, however, Appellants misstate the

law. A defendant moving for summary judgment against a plaintiff for failing to state a cause of

action relies solely upon the contents of the plaintiff’s petition, and “all allegations, facts, and

inferences in the pleadings are taken as true and viewed in the light most favorable to the non-

movant.” Valles v. Texas Com’n on Jail Standards, 845 S.W.2d 284, 286 (Tex.App.—Austin 1992,

writ denied). However, Appellants misapprehend Appellees’ motion. Appellees did not assert

Appellants had failed to state a claim against them in their petition; rather, Appellees argued only

that (1) Appellants’ lawsuit was barred by limitations, and (2) Appellants had not alleged they or

their predecessors paid taxes on the property which would toll the limitations period. Accordingly,

even if this argument were preserved on appeal, it is without merit.

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We recognize, as the concurring opinion expounds on, there are circumstances where a defendant asserting a statute
of limitations affirmative defense has the burden to conclusively negate a plaintiff’s claim that the limitations period
has not expired. Those circumstances include, as we mentioned previously in this opinion, where the plaintiff has
pleaded the discovery rule. See Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021). Similarly, the burden lies with
a defendant to conclusively negate other tolling provisions when they have been pleaded by the plaintiff. Id. at 95.
However, when, as here, the plaintiff’s argument is not for the tolling of limitations, but rather its complete avoidance
for reasons of equity, the burden lies with the plaintiff to raise a fact issue to preclude summary judgment against it
on a limitations defense. Id. at 88.

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 We find the record shows Appellees satisfied their burden showing applicability of the Tax

Code’s statute of limitations to Appellants’ lawsuit. We likewise find Appellants failed to present

any evidence raising a genuine issue of material fact to avoid application of the statute of

limitations. Rodriguez, 579 S.W.3d at 160. Accordingly, we find it was proper for the trial court

to grant Appellees’ motion for summary judgment.

Appellants’ sole issue is overruled.

CONCLUSION

Having overruled Appellants’ sole issue, the judgment of the trial court is affirmed.

August 30, 2022
YVONNE T. RODRIGUEZ, Chief Justice

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

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