david-j-felt-aka-david-joel-felt-v-harris-county-onbehalf-of-itself-and ( 2013 )

Affirmed and Memorandum Opinion filed April 23, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00327-CV
DAVID J. FELT, AKA DAVID JOEL FELT, Appellant
V.
HARRIS COUNTY, ON BEHALF OF ITSELF AND OTHER COUNTY-
WIDE TAXING AUTHORITIES, THE HARRIS COUNTY DEPARTMENT
OF EDUCATION, THE PORT OF HOUSTON AUTHORITY OF HARRIS
COUNTY, THE HARRIS COUNTY FLOOD CONTROL DISTRICT, THE
HARRIS COUNTY HOSPITAL DISTRICT, CITY OF HOUSTON,
HOUSTON INDEPENDENT SCHOOL DISTRICT, AND HOUSTON
COMMUNITY COLLEGE SYSTEM, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2010-21534
MEMORANDUM OPINION
In this suit to collect delinquent ad valorem taxes, defendant David J. Felt
appeared and testified at trial, but in the judgment against him, the trial court
erroneously indicated that he failed to appear. In his appeal, Felt argues that if the
trial court ruled based on the evidence, then the judgment must be reversed
because the evidence presented at trial is legally insufficient to support the
judgment against him in his personal capacity. He argues in the alternative that if
the trial court based the judgment on Felt’s failure to appear for trial, then the
judgment must be reversed because the record establishes that he did appear and
testify. We conclude that the evidence is legally sufficient to support the
judgment, and that Felt waived his alternative argument by failing to file a motion
for new trial. We accordingly affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Harris County, acting for itself and on behalf of several county-wide taxing
authorities,1 sued David J. Felt for payment of delinquent ad valorem taxes for tax
years 1987–2009, special assessments against the property, penalties, interest,
attorney’s fees, and abstract fees. The County prayed for foreclosure of its liens
against the property, and for a personal judgment against Felt. Felt filed a general
denial and asserted that he “was never in the chain of title individually.” In March
2011, the trial court rendered a default judgment against Felt for delinquent taxes
for the years 1990–2009, for the taxes then due for tax year 2010, and for the
special assessments. The judgment signed by the trial court had been submitted by
the County’s attorney, and in the proposed judgment, counsel wrote that Felt
“appeared/failed to appear in court.” In the signed judgment, the word “appeared”
is crossed out. Felt moved successfully for a new trial, and the case was tried
without a jury.
1
These were identified as the Harris County Department of Education, the Port of
Houston Authority of Harris County, the Harris County Flood Control District, the Harris
County Hospital District, the City of Houston, Houston Independent School District, and
Houston Community College System.
2
At trial, the County produced evidence documenting its claims. This
evidence included a certified delinquent-tax statement covering the years 1990–
2011 for real property identified as a .1487-acre parcel located at Lot 327, Block
13, MacGregor Terrace Section 1. On the tax statement, the owner is identified as
Equi-Share, Inc. The County also introduced a certified copy of a 1983 warranty
deed in which Equi-Share, Inc. conveyed the property—again identified as Lot
327, Block 13, MacGregor Terrace Section 1—to David J. Felt in exchange for his
promissory note for $12,260.00. The deed was signed by David J. Felt, President,
Equi-Share, Inc. His signature was notarized, and the deed was recorded in the
Harris County Clerk’s office more than a month after it was executed.
Felt, on the other hand, testified that he did not “intentionally” do anything
that would cause him to own the property, and that he never paid for it or
exchanged anything of value for it. He stated that he does not own the property,
does not know where it is located, does not know if it contains any improvements,
has never attempted to lease the property, and has done nothing to exercise any
control over it. He further testified that he was not familiar with the 1983 warranty
deed. After examining it, Felt admitted that signature on the deed looked like his
own, but stated that if he did sign the warranty deed, he did not do so intentionally.
The trial court took the case under advisement, and the County’s attorney
submitted another proposed judgment. Except for a change in the date, the typed
content on the first page of the judgment is identical to the first page of the default
judgment that had been set aside. Once again, counsel wrote that Felt
“appeared/failed to appear in court,” and once again the word “appeared” is
crossed out. Unlike the earlier judgment, the trial court made a substantive change
to the proposed judgment by crossing out the portion of the judgment in which Felt
would have been held liable for the principal, interest, and attorney’s fees
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associated with the special assessment. Felt appealed without filing any post-
judgment motions.
II. LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Felt challenges the legal sufficiency of the evidence. He
did not request any findings of fact, so we must imply that the trial court made all
findings necessary to support the judgment. Sixth RMA Partners, L.P. v. Sibley,
111 S.W.3d 46, 52 (Tex. 2003). When reviewing the legal sufficiency of the
evidence, we consider the evidence in the light most favorable to the findings and
indulge every reasonable inference that would support them. See City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if a
reasonable factfinder could and disregard contrary evidence unless a reasonable
factfinder could not. See id. If the evidence at trial would enable reasonable and
fair-minded people to find the facts at issue, then the evidence is legally sufficient.
Id.
Felt contends that there is no competent evidence that he owed the taxes and
no competent evidence of the amount of taxes owed. We disagree. In a suit to
collect delinquent taxes, the taxing authority can meet its initial burden to establish
the amount of the tax, penalties, and interest in the manner specified in section
33.47(a) of the Texas Tax Code:
In a suit to collect a delinquent tax, the taxing unit’s current tax roll
and delinquent tax roll or certified copies of the entries showing the
property and the amount of the tax and penalties imposed and interest
accrued constitute prima facie evidence that each person charged with
a duty relating to the imposition of the tax has complied with all
requirements of law and that the amount of tax alleged to be
delinquent against the property and the amount of penalties and
interest due on that tax as listed are the correct amounts.
TEX. TAX CODE ANN. § 33.47(a) (West 2008). The County produced such
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evidence here.
By introducing such records, the taxing authority establishes a prima facie
case as to every material fact necessary to establish its cause of action. Nat’l Med.
Fin. Services, Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 906 (Tex. App.—
Dallas 2004, no pet.) (citing Davis v. City of Austin, 632 S.W.2d 331, 333 (Tex.
1982)). A rebuttable presumption arises that the amounts in question are due,
delinquent, and unpaid. Id. (citing Flowers v. Lavaca Cnty. Appraisal Dist., 766
S.W.2d 825, 828 (Tex. App.—Corpus Christi 1989, writ denied)). Because the tax
roll also identifies the person against whom the taxes were assessed, the same
documents additionally establish that the defendant owned the property on January
1 of the year for which the tax was imposed. Id.
Felt points out that in the certified delinquent-tax statement introduced by
the County, the property’s owner is identified as Equi-Share, Inc. Quoting Pete
Dominguez Enterprises, Inc. v. County of Dallas, 188 S.W.3d 385, 387–88 (Tex.
App.—Dallas 2006, no pet.), Felt argues that “[i]f the identity of the entity named
as owner of the property on that tax roll does not match the identity of the
defendant sued for non-payment, then no presumption [of compliance with the
law] arises and no prima facie case is established by the taxing authority.” But
there is a difference between prima facie evidence of a material fact in the case and
prima facie evidence of every material fact.
We agree that the certified delinquent-tax statement did not give rise to a
presumption that Felt owned the property, but on the question of ownership, the
County did not rest its case solely on a presumption. The tax statement created a
presumption that Equi-Share, Inc. owned the property, but the County also
introduced and relied on a certified copy of a warranty deed conveying the
property to Felt in 1983, and on Felt’s notarized signature on the deed. This is
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competent, unrebutted evidence that Felt was the owner of the property for each of
the tax years at issue in this case. See Seiflein v. City of Houston, No. 01-09-
00361-CV, 2010 WL 376048, at *3 (Tex. App.—Houston [1st Dist.] Feb. 4, 2010,
no pet.) (mem. op.) (affirming judgment where tax statements failed to identify the
defendant as the property owner, but the taxing authorities introduced evidence of
ownership, including a certified copy of a deed showing that the property was
conveyed to the defendant). As for the amounts at issue, a certified delinquent-tax
statement is prima facie evidence of the amount of penalties, tax, and interest, and
on those matters, and the County relied solely on the presumption under section
33.47(a) that these amounts are due, delinquent, and unpaid. Felt offered no
evidence to rebut that presumption, which is not undermined by the
misidentification of the property’s owner. See TEX. TAX CODE ANN. § 25.02(b)
(West 2008) (“A mistake in the name or address of an owner does not affect the
validity of the appraisal records, of any appraisal or tax roll based on them, or of
the tax imposed.”).
Felt additionally argues that “reasonable jurors would not credit the Taxing
Authorities’ evidence as probative against Felt” because the taxing authorities did
not change the certified records to substitute his name and address for that of Equi-
Share, Inc. When a case is tried without a jury, the trial court is the sole judge of
the witnesses’ credibility and the weight to be given to their respective testimony.
Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.—Dallas 2005, no pet.). As a
factfinder, the trial court can reject the uncontroverted testimony of an interested
witness unless the testimony is readily controvertible, clear, positive, direct, and
there are no circumstances tending to discredit it. In re Doe 4, 19 S.W.3d 322, 325
(Tex. 2000). Here, a reasonable factfinder could have credited the evidence
produced by the County.
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We overrule Felt’s first issue.
III. POST-ANSWER DEFAULT JUDGMENT
In his second issue, Felt contends that the trial court erred in rendering a
default judgment against him. He reasons that the trial court indicated that it did
not consider the evidence presented at the trial, because in the portion of the
judgment indicating that Felt “appeared/failed to appear in court,” the word
“appeared” is crossed out.
If Felt were correct and this truly had been a default judgment, and the trial
court had not considered the evidence from the trial, then Felt would have been
required to file a motion for new trial to preserve this issue for appeal. See TEX. R.
CIV. P. 324(b)(1) (“A point in a motion for new trial is a prerequisite . . . [for a]
complaint on which evidence must be heard such as . . . failure to set aside a
judgment by default . . . .”). Here, because Felt failed to file a motion for new trial,
this argument has not been preserved for appeal.
IV. CONCLUSION
We conclude that the evidence is legally sufficient to support the judgment.
If, as Felt contends, this was a default judgment, then he failed to preserve a
challenge to the judgment by a timely motion for new trial. We accordingly
affirm.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
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