Glenn Herbert Johnson v. Harris County

FILED
15-0600
9/15/2015 3:11:20 PM
tex-6935301
No. 15-0600 SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

In the

Supreme Court of Texas

Glenn Herbert Johnson,
Petitioner,
__________________________________________

On Petition for Review from the
1st Court of Appeals at Houston, Texas

__________________________________________

1st Amended PETITION FOR REVIEW

___________________________________________

From the 1st District Court of Appeals,
Cause No. 01-14-00383-CV, and
the 190th District Court for Harris County,
Cause No. 2013-08713,
Honorable Patricia J. Kerrigan.

Glenn Herbert Johnson
8926 Daffodil Street
Houston, Texas 77063
Email: Prairie_View_Grad@yahoo.com
Pro se

1st Amended Supreme Court Petition for Review Page 1
 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38 of Texas Rules of Appellate Procedure, the
following constitutes a list of all parties to the trial court's
final judgment and the names and addresses of all trial and
appellate counsel:

Petitioner Glenn Herbert Johnson, Pro Se

Respondents: Harris County, Harris County
Department of Education, Port
of Houston Authority of
Harris County, Harris County
Flood Control District,
Harris County Hospital
District, City of Houston,
Houston Independent School
District & Houston Community
College System.

Respondent's trial counsel: Emily K. Watkins TBN24052164
Linebarger Goggan Blair &
Sampson LLP
4828 Loop Central Drive,
Suite 600
Houston, Texas 77081
emily.watkins@lgbs.com

Anthony W. Nims TBN15031500
Linebarger Goggan Blair &
Sampson LLP
4828 Loop Central Drive,
Suite 600
Houston, Texas 77081
tony.nims@lgbs.com

1st Amended Supreme Court Petition for Review Page 2
Respondent's appellate counsel: Edward J.Nicholas TBN14991350
Linebarger Goggan Blair &
Sampson,LLP
4828 Loop Central Drive,
Suite 600
Houston, Texas 77081
nick.nicholas@lgbs.com

Respondent: Hashmet Wali

Respondent's trial counsel: Mohammed Ali Zakaria
TBN22243410
M. Ali Zakaria & Associates,
6161 Savoy Drive, Suite 1000
Houston, Texas 77081
ali@zakarialaw.com

Digant Jariwala, TBN24067685
M. Ali Zakaria & Associates,
6161 Savoy Drive, Suite 1000
digant@zakarialaw.com

Respondent's appellate counsel: Mohammed Ali Zakaria
TBN22243410
M. Ali Zakaria & Associates,
6161 Savoy Drive, Suite 1000
Houston, Texas 77081
ali@zakarialaw.com

Digant Jariwala,TBN24067685
M. Ali Zakaria & Associates,
6161 Savoy Drive, Suite 1000
digant@zakarialaw.com

1st Amended Supreme Court Petition for Review Page 3
 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2-3

INDEX OF AUTHORITIES 5

STATEMENT OF THE CASE 6-9

STATEMENT OF JURISDICTION 9

ISSUES PRESENTED 9

Issue 1: Failure to adhere to Section 33.56 (b)

Issue 2: The Court’s misreading of “Invited Error”

STATEMENT OF FACTS 10

SUMMARY OF THE ARGUMENTS 13

CONCLUSION AND PRAYER 16

CERTIFICATE OF SERVICE 17

1st Amended Supreme Court Petition for Review Page 4
 INDEX OF AUTHORITIES
RULES
Texas Rule of Civil Procedure 21(d)

STATUTES
Texas Property Tax Code, Section 33.56

CASES
Caldwell v. Barnes,
154 S.W. 3d 93 Tex. 2004, December 31, 2005 at 97-98.

1st Amended Supreme Court Petition for Review Page 5
 No. 15-0600
In the
Supreme Court of Texas

Glenn Herbert Johnson,
Petitioner,
__________________________________________

On Petition for Review from the
st
1 Court of Appeals at Houston, Texas

__________________________________________

1st Amended PETITION FOR REVIEW

___________________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS

STATEMENT OF THE CASE

Nature of the Case: Bill of Review, wherein
Petitioner, Glenn Herbert Johnson
sought to overturn a Tax
Foreclosure Sale on his homestead
located at 8926 Daffodil Street –
Houston, Texas.

Parties and Pleadings: In 2009, Harris County sued Glenn
Herbert Johnson, seeking recovery
of unpaid property taxes.

1st Amended Supreme Court Petition for Review Page 6
 On October 10,2011, the trial
court entered a default judgment
against Glenn Herbert Johnson, at
the time unaware that Lynda
Thompson, the process server
working as an agent of the law
firm, Linebarger Goggan Blair &
Sampson, LLP, which is the
independent contractor charged
with collecting delinquent ad
valorem taxes for Harris County,
had filed a fraudulent affidavit,
claiming that she had served Glenn
Herbert Johnson with process when,
in fact she had served a Glenn
Edward Johnson and that,
therefore, Harris County’s service
of process was defective and Glenn
Herbert Johnson did not have
notice of the suit.

On March 6, 2012,a Harris County
constable conducted a tax sale of
the property.

Hashmet Wali and Yousuf Zakaria
purchased the property for
$55,800. In 2013, Glenn Herbert
Johnson petitioned for a BILL OF
REVIEW, challenging the default
judgment on the basis that he was
never served with the tax suit.

Glenn Herbert Johnson requested
that the trial court: “vacate the
Default Judgment in Cause No.
2009-51784,” “reopen Cause No.
2009-51784 and grant a new trial,
with the parties in Cause No.
2009-51784, reverting to their
original status as Plaintiff and
Defendant,” and “set aside the
Constable/Sheriff’s sale of the
above specified property.”

1st Amended Supreme Court Petition for Review Page 7
Trial Court: The 190th Judicial District Court
of Harris County, Texas, before
the Honorable Patricia J.
Kerrigan.

Trial Court Disposition: Based on the proof of lack of
proper service with citation, on
November 15, 2013, the trial court
declared the default judgment VOID
AS A MATTER OF LAW. Harris County
and Hashmet Wali then jointly
moved to vacate the default
judgment and void the constable’s
sale and deed, pursuant to §33.56
and §34.07 of the Texas Tax Code.
Although Harris County and Hashmet
failed to follow the requirements
set forth in § 33.56 (b),the trial
court, nevertheless, ordered
Harris County to refund to Hashmet
Wali his purchase price proceeds
of $55,800, an amount that
included court costs and proceeds
in excess of the lien in the
amount of $7,124.15. The trial
courts final order reinstated the
tax court cause number,2009-51784,
and noted that “this Order finally
disposes of all parties and claims
and is appealable.”

Hashmet Wali then petitioned to
release the $7,124.15,held in the
court’s registry.

The trial court granted Hashmet
Wali’s petition and ordered the
District Clerk to release the
excess proceeds.

1st Amended Supreme Court Petition for Review Page 8
 Court of Appeals: 1st Court of Appeals, Houston,
Texas. Before Justice Evelyn
Keyes, Justice Michael C.
Massengale and Justice Jane Bland.
Justice Jane Bland delivered the
Opinion for the panel.

C of A disposition: Affirmed.

STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction of this case under Tex. Gov’t
Code § 22.001(a)6).

ISSUES PRESENTED

ISSUE ONE
Did Harris County meet its requirements, under Texas

Property Tax Code § 33.56, so as to require the return of

the entire purchase price to Hashmet Wali and did Harris

County meet its requirements, under Texas Rules of Civil

Procedure, Rule 21(d), so as to require the return of the

entire purchase price to Hashmet Wali.

ISSUE TWO
Did Glenn Herbert Johnson “invite an error” by requesting

that the Trial Court allow the parties to revert to their

original status as PLAINTIFF and DEFENDANT with the burden

on the original PLAINTIFF to prove his or her case?

1st Amended Supreme Court Petition for Review Page 9
 STATEMENT OF FACTS
In 2009, Harris County sued Glenn Herbert Johnson,

seeking recovery of unpaid property taxes. On October

10,2011, the trial court entered a default judgment against

Glenn Herbert Johnson, at the time unaware that Lynda

Thompson, the process server working as an agent of the law

firm, Linebarger Goggan Blair & Sampson, LLP, which is the

independent contractor charged with collecting delinquent

ad valorem taxes for Harris County, had filed a fraudulent

affidavit, claiming that she had served Glenn Herbert

Johnson with process when, in fact she had served a Glenn

Edward Johnson and that, therefore, Harris County’s service

of process was defective and Glenn Herbert Johnson did not

have notice of the suit. On March 6, 2012,a Harris County

constable conducted a tax sale of the property. Hashmet

Wali and Yousuf Zakaria purchased the property for $55,800.

In 2013, Glenn Herbert Johnson petitioned for a BILL OF

REVIEW, challenging the default judgment on the basis that

he was never served with the tax suit.

Glenn Herbert Johnson requested that the trial court:

“vacate the Default Judgment in Cause No. 2009-51784,”

“reopen Cause No. 2009-51784 and grant a new trial, with

the parties in Cause No. 2009-51784, reverting to their

1st Amended Supreme Court Petition for Review Page 10
original status as Plaintiff and Defendant,” and “set aside

the Constable/Sheriff’s sale of the above specified

property.”

Based on the proof of lack of proper service with

citation, on November 15, 2013, the trial court declared

the default judgment VOID AS A MATTER OF LAW. Harris

County and Hashmet Wali then jointly moved to vacate the

default judgment and void the constable’s sale and deed,

pursuant to §33.56 and §34.07 of the Texas Tax Code. The

Joint Motion file by Harris County and Hashmet Wali was

filed in the 190th District Court under Cause No. 2013-08713

and was timely served on Glenn Herbert Johnson. Harris

County and Hashmet Wali simultaneously filed a Joint

Motion, in the 190th District Court, under the correct Cause

No. 2009-51784, but failed notify Glenn Herbert Johnson of

that filing and did not serve Glenn Herbert Johnson with

that particular Joint Motion as specifically required by

§33.56 of the Texas Property Tax Code and Rule 21(d) of the

Texas Rules of Civil Procedure.

The trial court ordered Harris County to refund to

Hashmet Wali his purchase price proceeds of $55,800, an

amount that included court costs and proceeds in excess of

the lien in the amount of $7,124.15, even though it was

apparent on the face of the record that Harris County and

1st Amended Supreme Court Petition for Review Page 11
Hashmet failed to follow the requirements set forth in §

33.56 (b), which states that:

“The taxing unit must file the petition under the same

cause number as the delinquent tax suit and in the same

court.”, and that Harris County and Hashmet failed to

follow the requirements set forth in Rule 21 (d) of the

Texas Rules of Civil Procedure, which states that: “The

party or attorney of record, must certify to the Court

compliance with this rule in writing over signature on the

filed pleading, plea, motion or application.”,

The trial courts final order reinstated the tax court

cause number,2009-51784, and noted that “this Order finally

disposes of all parties and claims and is appealable.”

Hashmet Wali then petitioned to release the $7,124.15, held

in the court’s registry.

The trial court granted Hashmet Wali’s petition and

ordered the District Clerk to release the excess proceeds.

On May 12, 2014, Glenn Herbert Johnson filed an appeal

with the 1st Court of Appeals-Houston, contending that the

trial court abused its discretion in ordering Harris County

to refund to Hashmet Wali his purchase price proceeds of

$55,800, an amount that included court costs and proceeds

in excess of the lien in the amount of $7,124.15.

1st Amended Supreme Court Petition for Review Page 12
 On June 2, 2015, the 1st Court of Appeals issued a

Memorandum Opinion affirming the Judgment of the Trial

Court and holding that the Trial Court did not abuse its

discretion when it reinstated the tax lien and refunded the

purchase price of the encumbered property to Hashmet Wali.

On June 17, 2015, Glenn Herbert Johnson filed a Motion

for Rehearing with the 1st Court of Appeals.

On June 30, 2015, Justice Jane Bland, acting for the

Court, ordered that Glenn Herbert Johnson’s Motion for

Rehearing is DENIED.

SUMMARY OF ARGUMENT

The case presents two issues which require this Court

to conduct interpretation.

ISSUE ONE

First, Section 33.56 of the Tax Code provides that a

taxing unit that was a party to a judgment for foreclosure

of a tax lien “may file a petition to vacate the judgment

on one or more” grounds. The section also requires that a

taxing unit must file the petition under the same cause

number as the delinquent tax suit in the same court. Id.§

33.56(b).

1st Amended Supreme Court Petition for Review Page 13
The Trial Court, and the 1st Court of Appeals seem to

believe that filing a PETITION TO VACATE THE JUDGMENT under

a cause number different from the cause number of the

delinquent tax suit is an acceptable practice.

Rule 21(a) of the Texas Rules of Civil Procedure requires

all notices served upon counsel of record to have a

certificate of service accompanying the motion.

Rule 21(d) of the Texas Rules of Civil Procedure

Certificate of Service. The party or attorney

of record, must certify to the court compliance

with this rule in writing over signature on the filed

pleading, plea, motion, or application

Ideally, the certificate of service should specify by name

to whom the documents were sent, and how. In the 151stCivil

District Court, and some other courts now as well, all new

lawsuits must be electronically filed unless the plaintiff

is pro se. All parties are required to file documents

electronically. In that way, once the documents are e-

filed, they are automatically served on all other counsel

of record. A certificate of service is nevertheless still

required.

1st Amended Supreme Court Petition for Review Page 14
 Petitioner argues that a PETITION TO VACATE THE JUDGMENT

filed under the same cause number as the delinquent tax

suit, but not served on the Defendant in the delinquent tax

suit (in keeping of Rule 21(d) of the Texas Rules of Civil

Procedure), renders that filing DEFECTIVE and VOID AS A

MATTER OF LAW, based solely on a claim of non-service/lack

of service.

ISSUE TWO

The second issue which requires this Court to conduct

interpretation is the 1st Court of Appeals contention that

Petitioner INVITED AN ERROR by expressly requesting in his BILL

OF REVIEW that “conditioned upon an affirmative finding that the

plaintiff was not served, allow the parties to revert to their

original status as PLAINTIFF and DEFENDANT with the burden on

the original PLAINTIFF to prove his or her case.” Petitioner

would argue that the Hashmet was neither PLAINTIFF or DEFENDANT

in the Tax Lawsuit.

See: Caldwell v. Barnes 154 S.W. 3d 93 Tex. 2004, December 31,

2005, at 97-98.

Further, regarding the Appellate Court’s contention that
Glenn Herbert Johnson invited error, the Appellate Court
erroneously states that,
“Assuming that one would be available, given the defect in
the underlying judgment, Harris County did not pursue an
affirmative defense that Wali’s recovery of his purchase
price was barred by limitations. Accordingly, we hold that
Wali’s claim is not barred. See:Tex.R.Civ.P.94.”

1st Amended Supreme Court Petition for Review Page 15
Petitioner argues that it is apparent from the face of the

record that Harris County did, in fact set forth an affirmative

defense in Defendant’s 1st Amended Answer, filed on October 25,

2013, that Wali was barred by limitations.

See: Defendant’s 1st Amended Answer (attached)

WHEREFORE PREMISES CONSIDERED, Petitioner respectfully

requests this Court to grant review in this case and, upon

review, reverse the decision by the Trial Court and the 1st

Court of Appeals that Hashmet Wali should receive a refund

of purchase monies and find that the Joint Motion filed by

Respondents did not meet the requirement of Section

33.56(b) of the Texas Property Tax Code nor Rule 21(d) of

the Texas Rules of Civil Procedure, and therefore Hashmet

Wali did not qualify for a refund of purchase monies.

Further, that Glenn Herbert Johnson, having filed a timely

Motion for Excess Proceeds should receive the excess

proceeds.

Respectfully submitted,

Glenn Herbert Johnson,
Petitioner, Pro Se
8926 Daffodil Street
Houston, Texas 77063
Email: Prairie_View_Grad@yahoo.com

1st Amended Supreme Court Petition for Review Page 16
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the
1st Amended PETITION FOR REVIEW was, on this 15th day of
September 2015, forwarded to the persons listed below by
email transmission:
Edward James Nicholas of Linebarger Goggan Blair & Sampson,
LLP,
4828 Loop Central Drive, Suite 600
Houston, Texas 77081.
Email: Nick.Nicholas@lgbs.com
Counsel for: HARRIS COUNTY, ET AL
Emily King Watkins of LINEBARGER GOGGAN BLAIR & SAMPSON,
LLP,
4828 Loop Central Drive, Suite 600
Houston, Texas 77081.
Email: Emily.Watkins@lgbs.com
Counsel for: HARRIS COUNTY, ET AL
Anthony Wayne Nims of LINEBARGER GOGGAN BLAIR & SAMPSON,
LLP, 4828 Loop Central Drive, Suite 600
Houston, Texas 77081.
Email: Tony.Nims@lgbs.com
Counsel for: HARRIS COUNTY, ET AL
M. Ali Zakaria of M. ALI ZAKARIA & ASSOCIATES, PC,
6161 Savoy Drive, Suite 1000
Houston, Texas 77036
Email: Ali@Zakarialaw.com
Counsel for: HASHMET WALI

Certified by:

_________________________
Glenn Herbert Johnson

1st Amended Supreme Court Petition for Review Page 17