Nancy Ann Scott v. Hamilton County, Hamilton ISD, City of Hamilton, Hamilton County and Hamilton Hospital District ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00411-CV
NANCY ANN SCOTT,
Appellant
v.
HAMILTON COUNTY, HAMILTON ISD,
CITY OF HAMILTON, HAMILTON COUNTY
AND HAMILTON HOSPITAL DISTRICT, ET AL,
Appellees
From the 220th District Court
Hamilton County, Texas
Trial Court No. TX02890
MEMORANDUM OPINION
In five issues, appellant, Nancy Ann Scott a/k/a Anne; surnamed scott,
complains about a judgment entered in favor of appellees, Hamilton County, the
Hamilton Independent School District, and the Hamilton Hospital District, in a suit for
the recovery of delinquent ad valorem taxes. We affirm.1
1 In light of our disposition, we dismiss all pending motions as moot.
I. BACKGROUND
On June 6, 2013, appellees filed suit against appellant for the recovery of
delinquent ad valorem taxes under section 33.41 of the Tax Code. See TEX. TAX CODE
ANN. § 33.41 (West 2008). Appellees alleged that appellant had not paid taxes for tax
years 2010, 2011, and 2012 on two tracts of land that appellant had inherited. According
to appellees’ original petition, the aggregated amount of taxes owed by appellant was
$11,191.79. In response to appellees’ original petition, appellant filed a pro se “Counter
Suit” on July 5, 2013.2
Thereafter, appellees filed an original answer, denying “each and every
allegation” contained in appellant’s “Counter Suit.” Appellees also filed a first
amended petition, which, among other things, recalculated the aggregated amount of
taxes owed by appellant to be $11,777.61. Appellant responded to appellees’ first
amended petition by filing a pro se “Counter Suit[,] Plaintiff’s Plea[,] and Original
Answer” the day before trial. Included in appellant’s filing was a general denial and
requests for a jury trial and the “appointment of stand-by assistance of counsel.”3
2 With regard to appellees’ original petition, appellant stated in her “Counter Suit” that “All
documents were received but not accepted.” Furthermore, in her testimony, appellant admitted that she
did receive service of appellees’ original petition.
3 Appellant also asserted the following:
Whereas the properties described in said suit are ministerial/congregational in nature,
and said Congregation is by faith, doctrine, belief[,] and practice unincorporated, that
being a form of modern idolatry which posits a dead thing as a “person” before the law,
and;
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On November 13, 2013, the trial court held a docket call at which appellant
announced, without any objection, that she was ready to proceed to trial. Later that
morning, the case was called to trial, and appellant once again failed to object to
proceeding. In any event, appellant requested a jury trial, which the trial court denied
as untimely.
At the conclusion of the evidence, the trial court entered a judgment in favor of
appellees for the amount of the delinquent ad valorem taxes. Appellant filed numerous
post-judgment motions in the trial court, including a request for findings of fact and
conclusions of law and an affidavit of indigence. In response to contests filed by the
court reporter and the Hamilton County District Clerk, the trial court conducted a
hearing on appellant’s affidavit of indigence and ultimately concluded that appellant
“is not indigent and the filed contests should be sustained.” Additionally, the trial
court entered findings of fact and conclusions of law in this matter. This appeal
followed.
II. APPELLANT’S COMPLAINTS ABOUT NOTICE AND SERVICE
In her first and fourth issues, appellant contends that appellees did not properly
serve her with copies of appellees’ original and first amended petitions or provide her
proper notice of the November 13, 2013 hearing. At trial, appellant admitted receiving
notice of appellees’ June 6, 2013 original petition. She also acknowledged that she
answered the lawsuit in July and that she was given notice of the hearing that occurred
Whereas the Plaintiff in Counter Suit is neither a tax-payer[,] nor resident or
registered voter of the state of Texas, but rather is a Sovereign of the Land and a member
in good standing of said Congregation . . . .
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on November 13, 2013.4 Furthermore, in her “Counter Suit,” appellant stated that, with
regard to appellees’ original petition, “[a]ll documents were received but not accepted.”
It is also noteworthy that appellant responded to each of appellees’ filings—a fact that
belies her argument about lack of notice. Other than unsupported assertions made in
her appellate brief, there is no evidence in the record demonstrating that appellant’s
first issue has any merit. Moreover, given the fact that appellant attended the
November 13, 2013 hearing and did not object to lack of notice at the time, any
complaint about service is waived. See TEX. R. APP. P. 33.1(a); see also Stallworth v.
Stallworth, 201 S.W.3d 338, 346 (Tex. App.—Dallas 2006, no pet.) (explaining that a party
waives any complaint of error resulting from a trial court’s failure to afford proper
notice under rule 245 by proceeding to trial and not objecting to lack of notice); Custom-
Crete, Inc. v. K-Bar Servs., 82 S.W.3d 655, 658 (Tex. App.—San Antonio 2002, no pet.)
(“Error resulting from a . . . failure to provide parties proper notice . . . is waived if a
4 In fact, the following exchange occurred at the November 13, 2013 hearing:
[Counsel for appellees]: Mrs. Scott, this lawsuit was filed in June of 2013. You
did receive a service of the lawsuit?
[Appellant]: Yes, I did.
Q: And you did, in fact, answer the suit in July; is that
correct?
A: Yes.
Q: Okay. So you were—and you were given notice,
obviously, of the hearing today because you are
appearing.
A: Well, yes, I—I—
Scott v. Hamilton County Page 4
party proceeds to trial and fails to object to the lack of notice.”). We therefore overrule
appellant’s first and fourth issues.
III. EXCLUSION OF WITNESS TESTIMONY
In her second issue, appellant argues that the trial court improperly excluded the
testimony of her husband, Hank, and her son, Sam, because neither would affirm an
oath under the penalty of perjury.
Determining whether to admit or exclude evidence lies within the trial court’s
sound discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.
2007). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable
manner or without reference to guiding rules or principles. See Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). When reviewing matters committed to the trial
court’s discretion, we may not substitute our own judgment for the trial court’s
judgment. Id. We must uphold the trial court’s evidentiary ruling if there is any
legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998); see Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256,
264 (Tex. 2012).
Evidence is relevant, and therefore admissible, if it has any tendency to “make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” TEX. R. EVID. 401, 402;
see Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 237-38 (Tex. 2011). To determine
relevancy, the trial court must look at the purpose for offering the evidence. Serv. Lloyds
Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex. App.—Dallas 1993, no writ). There must be
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some logical connection either directly or by inference between the fact offered and the
fact to be proved. Id.
Here, appellee filed suit against appellant under section 33.41 of the Tax Code,
which authorizes the initiation of suit to collect delinquent taxes. See TEX. TAX CODE
ANN. § 33.41(a). Additionally, as stated below, section 42.09(a) of the Tax Code limits
the grounds upon which a property owner may protest a property tax:
(a) Except as provided by Subsection (b) of this section, procedures
prescribed by this title for adjudication of the grounds of protest
authorized by this title are exclusive and a property owner may not raise
any of those grounds:
(1) in defense to a suit to enforce collection of delinquent taxes; or
(2) as a basis of a claim for relief in a suit by the property owner to
arrest or prevent the tax collection process or to obtain a refund of
taxes paid.
Id. § 42.09(a) (West 2008). Furthermore, section 42.09(b) of the Tax Code outlines the
only affirmative defenses available to a person against whom a suit to collect a
delinquent property tax is filed. Id. § 42.09(b). Specifically, section 42.09(b) provides the
following:
(b) A person against whom a suit to collect a delinquent property tax is
filed may plead as an affirmative defense:
(1) If the suit is to enforce personal liability for the tax, that the
defendant did not own the property on which the tax was
imposed on January 1 of the year for which the tax was
imposed; or
(2) If the suit is to foreclose a lien securing the payment of a tax on
real property, that the property was not located within the
boundaries of the taxing unit seeking to foreclose the lien on
January 1 of the year for which the tax was imposed.
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Id.
With respect to Hank, the record demonstrates that appellant sought to offer his
testimony to prove that the properties were used for educational and religious purposes
and, thus, were not subject to taxation. However, appellant’s contention that the
properties were used for educational and religious purposes does not fall within the
purview of section 42.09(b) of the Tax Code. See id. Accordingly, Hank’s testimony
about the usage of the properties is irrelevant and, therefore, inadmissible. See TEX. R.
EVID. 401, 402; TEX. TAX CODE ANN. § 42.09(b); see also City of Shenandoah v. Jimmy
Swaggart Evangelistic Ass’n, 785 S.W.2d 899, 903 (Tex. App.—Beaumont 1990, writ
denied) (“We hold that the trial court was without jurisdiction to permit appellee [tax
payer] to raise any defense or ground of protest [including the religious tax exemption]
contrary to those permitted in Sec. 42.09.”) (citing Appraisal Review Bd. v. Int’l Church of
the Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986) (per curiam); Bullock v. Amoco Prod.
Co., 608 S.W.2d 899, 901 (Tex. 1980)); Martin, 855 S.W.2d at 822. And because we must
uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling,
we cannot say that the trial court abused its discretion in excluding Hank’s testimony.
See Avinger Timber, LLC, 386 S.W.3d at 264; Malone, 972 S.W.2d at 43; see also McShane,
239 S.W.3d at 234; Wright, 79 S.W.3d at 52.
Apparently, appellant sought to proffer Sam’s testimony at the hearing on the
contests filed in response to appellant’s affidavit of indigence. However, we do not
have a transcript from this hearing. In any event, the docketing statement indicates that
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appellant testified, but Sam was not allowed to testify because he refused to testify
under penalty of perjury. But, without a transcript of the hearing to provide context,
we cannot say that the trial court abused its discretion in excluding Sam’s testimony at
the hearing on appellant’s indigence. See McShane, 239 S.W.3d at 234; see also Wright, 79
S.W.3d at 52. As such, we overrule appellant’s second issue.
IV. ASSISTANCE OF COUNSEL
In her third issue, appellant complains that the trial court’s denial of her request
for assistance of counsel at the November 13, 2013 hearing amounted to a due-process
violation. Appellant does not cite any relevant authority in support of this issue. See
TEX. R. APP. P. 38.1(i). Nevertheless, based on our review of the record, we conclude
that appellant’s complaint in this issue is without merit.
On appeal, appellant argues that the trial court improperly rejected her request
to allow Hank, her husband, to act as her “assistance of counsel.” “Texas law prohibits
unlicensed persons from practicing law without a license.” Drew v. Unauthorized
Practice of Law Comm’n, 970 S.W.2d 152, 153 (Tex. App.—Austin 1998, pet. denied)
(citing TEX. GOV’T CODE ANN. §§ 83.001-.006 (West 2013)). In describing the practice of
law, the Texas Supreme Court has explained:
[T]he practice of law embraces the preparation of pleadings and other
papers incident to actions of special proceedings and the management of
the actions and proceedings on behalf of clients before judges in courts as
well as services rendered out of court, including the giving of advice or
the rendering of any service requiring the use of legal skill or knowledge,
such as preparing a will, contract, or other instrument, the legal effect of
which under the facts and conclusions involved must be carefully
determined. This definition is not exclusive and does not deprive the
judicial branch of the power and authority both under this Act and the
Scott v. Hamilton County Page 8
adjudicated cases to determine whether other services and acts not
enumerated in this Act may constitute the practice of law.
Unauthorized Practice Comm. of the State Bar of Tex. v. Cortez, 692 S.W.2d 47, 49 (Tex.
1985).
In a case similar to the one at bar, the First Court of Appeals considered whether
a mother, who was not licensed to practice law, could represent her son in an original
proceeding. Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st Dist.]
1994, orig. proceeding) (per curiam). In concluding that she could not, the First Court of
Appeals noted:
Courts have the inherent power to inquire into the qualifications of those
persons practicing law therein. This power is essential to the fair
administration of justice and an orderly discharge of the judicial function.
With this in mind, we note that the relator is represented in this
mandamus proceeding by his mother, Elissa Magaha, whom the relator
has designated his authorized representative. She is not an attorney (and
does not hold herself out to be). . . .
In representing the relator, Elissa Magaha is engaged in the
practice of law as our legislature has defined that term. . . . Because she is
not a member of the state bar and does not fit within the categories of
persons for whom the supreme court may promulgate rules allowing a
limited practice of law, she is not authorized to represent the relator.
Id. (internal citations and quotations omitted).
Here, the record reveals that Hank is not named as a party to this matter, nor is
he a licensed attorney.5 Given this, we cannot say that the trial court erred in denying
5Contrary to Hank’s contention in the trial court that the properties are community property, it
was argued that appellant inherited the properties in question as her separate property. See TEX. FAM.
CODE ANN. § 3.001 (West 2006) (providing that a spouse’s separate property consists of property owned
or claimed by the spouse before marriage and property acquired during the marriage by gift, devise, or
descent); see also Hinton v. Burns, 433 S.W.3d 189, 197 (Tex. App.—Dallas 2014, no pet.).
Scott v. Hamilton County Page 9
Hank’s request to provide appellant “assistance of counsel.” See Cortez, 692 S.W.2d at
49; see also Drew, 970 S.W.2d at 153; Magaha, 886 S.W.2d at 448. As such, we overrule
appellant’s third issue.6
V. BILL FOR FEES AND A COPY OF THE TRIAL COURT’S FINDINGS OF FACT AND
CONCLUSIONS OF LAW
In her fifth issue, appellant asserts that the trial court abused its discretion in
denying her a bill for fees and a copy of the clerk’s record paid for on appeal and of the
trial court’s findings of fact and conclusions of law. However, in her reply brief,
appellant admits that she received a copy of the clerk’s record from this Court free of
charge, even though the trial court had previously determined that appellant is not
indigent. Furthermore, appellant’s complaint in this issue is undermined by the fact
that she attached numerous excerpts from the clerk’s record to her “Preliminary
Appellant’s Brief.” Among the attachments is the trial court’s findings of fact and
conclusions of law. Based on the foregoing, we conclude that appellant’s complaints
about the clerk’s record and the trial court’s findings of fact and conclusions of law lack
merit. And because appellant was provided a copy of the clerk’s record by this Court
6 Appellant also appears to challenge the trial court’s denial of her request for a jury trial, which
was made on the day of trial. However, as noted in its conclusions of law, the trial court denied
appellant’s jury request as untimely. Indeed, appellant first asserted her right to a jury trial in her
“Counter Suit[,] Plaintiff’s Plea[,] and Original Answer,” which was filed the day before the November
13, 2013 hearing. Pursuant to Texas Rule of Civil Procedure 216(a), appellant’s request was untimely. See
TEX. R. CIV. P. 216(a) (“No jury trial shall be had in any civil suit, unless a written request for a jury trial is
filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury
docket, but not less than thirty days in advance.”). Furthermore, in her brief, appellant has not cited any
relevant authority in support of her complaint about the trial court’s denial of her jury request. See TEX.
R. APP. P. 38.1(i). Accordingly, we conclude that this complaint lacks merit.
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free of charge, we fail to see appellant’s need for a bill for fees for the clerk’s record.
Accordingly, we overrule appellant’s fifth issue.
VI. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court. Absent a specific exemption, the Clerk of the Court must collect filing
fees at the time a document is presented for filing. Id. at R. 12.1(b); Appendix to Tex. R.
App. P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007); see TEX. R.
APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b), 51,208,
51.941(a) (West 2013). Under these circumstances, we suspend the rule and order the
Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of
the fees from the accounts receivable of the Court in no way eliminates or reduces the
fees owed.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 16, 2014
[CV06]
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