Opinion
01-20-00426-CV
05-26-2022
JOE ALFRED IZEN, JR. AND AFTON JANE IZEN, Appellants v. PASADENA INDEPENDENT SCHOOL DISTRICT AND HARRIS COUNTY, Appellees
On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2010-51329
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
Amparo Guerra, Justice
Appellants Joe Alfred Izen, Jr. ("Joe") and Afton Jane Izen ("Afton") appeal from a judgment nunc pro tunc entered by the trial court on February 21, 2020, which purported to correct a clerical error in a February 2014 judgment for delinquent ad valorem property taxes. In three issues on appeal, appellants argue: (1) the judgment nunc pro tunc is void because it corrected a judicial error, not a clerical error; (2) the judgment nunc pro tunc is void because the motion for entry of judgment nunc pro tunc was not properly served on appellants; and (3) Joe's motion for new trial set out meritorious defenses.
Appellants' first and second issues on appeal both relate to whether the trial court corrected a judicial or clerical error and, therefore, we consider these together as one issue.
We dismiss Afton's appeal because it was not timely filed, but we reverse and vacate the judgment nunc pro tunc as void because all interested parties were not provided the required notice under Texas Rule of Civil Procedure 316.
Background
In the underlying suit for delinquent ad valorem property taxes, the trial court entered a judgment on February 3, 2014 (the "February 2014 judgment"), against Joe, Afton, and several other defendants, and in favor of several taxing authorities, including appellee Pasadena Independent School District ("Pasadena ISD"). The trial court appointed Kristopher K. Ahn as attorney ad litem for Joe after attempts to locate and personally serve him with notice of the lawsuit were unsuccessful, and Joe was served by posting.
The other defendants included Joe A. Izen a/k/a Joe Alfred Izen, Sr. ("Joe Sr."), Brenda Everly, David W. Goldston, and Macy's Retail Holdings Inc. f/k/a Federated Retail Holdings Inc. d/b/a Marshall Fields.
The judgment was also entered in favor of Harris County, which sued to collect on its own behalf and on behalf of the following 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, and the City of Pasadena. These entities are not involved in this appeal.
See Tex. R. Civ. P. 244 (service by publication); Tex.R.Civ.P. 117a (citation in suits for delinquent ad valorem taxes); Tex. Tax Code § 33.475(a) (attorney ad litem). Ahn was also appointed as attorney ad litem for Joe Sr.
The February 2014 judgment was entered against Joe and Afton "in rem only," and the taxing authorities were not granted any personal judgment or monetary relief against them. The February 2014 judgment awarded the following amounts to the various taxing authorities:
delinquent
Penalty T ax Years
33.48 Atty Haw Tax
Research Interest
Fee*
Fee
Total
HARRIS COUNTY
2009-2012
$2,35231
$1,553.63
$.09
5.00
53, 905.94
CITY OF PASADENA
2004-2012
52, 858.07
52, 222.17
$00
5.00
$5,080.24
SJCD
200.4 -2004; 2009-2012
$676.32
$456.44
$.00
5.00
$1,132.76
PASADENA LSD
2003-2006;
56, 692.02
$3,66419.67
$1,575.80
5.00
$11,881.22
The February 2014 judgment also contained the following language with respect to Ahn's representation of Joe:
The Court finds that Kristopher K. Ahn, appointed to act as attorney ad hiem for Defendants cited by posting, filed a due diligence affidavit, exhibited reasonable due diligence, and satisfactorily fulfilled the ad htem's duties It is therefore ORDERED that the attorney ad litem is hereby awarded the sum of s Gopo $1,000 as attorney's fees, such sum to be taxed as court costs herein, and said ad litem is hereby discharged from further representation on behalf of Defendants.
Several years later, in 2019, Pasadena ISD moved for a judgment nunc pro tunc (1) alleging that the February 2014 judgment awarded the correct amount of tax, penalty, and interest for all of the tax years but failed to properly identify all of the applicable tax years, and (2) requesting that the trial court correct this clerical error in a judgment nunc pro tunc. Specifically, Pasadena ISD argued that the total amount it was awarded-$11,881.22-was correct, but it should have been for the tax years 2003-2006 and 2008-2012, rather than only "2003-2006."
Pasadena ISD filed its first motion for judgment nunc pro tunc on August 5, 2019. CR251. The tax master recommended that the judgment nunc pro tunc be denied, stating: "Specifically, the Final Judgment enters the Master[']s Report of evidence received. Thus, there is no clerical error apparent on the face of the record." Pasadena ISD filed an amended motion for judgment nunc pro tunc on January 23, 2020, asking that the Tax Master reconsider its decision. In its amended motion for judgment nunc pro tunc, Pasadena ISD stated that the February 2014 judgment should be amended to "correct the tax years due to [Pasadena ISD] in the judgment which were provided for in the evidence, but not included in the Final Judgment or the Master's Report due to clerical error." (Emphasis added.)
In its certificate of service attached to its amended motion for judgment nunc pro tunc, Pasadena ISD stated that the motion was served in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure, and listed service via fax and electronic service on Ahn and service via regular mail on Afton at "6433 Ross St."
On February 21, 2020, the trial court entered the judgment nunc pro tunc at issue in this appeal. In it, the trial court stated that the February 2014 judgment did not "correspond to the Judgment as rendered because of the following error: the tax years for account 111-027-000-0002 for Pasadena ISD is shown as 2003-2006 when it should be 2003-2006; 2008-2012, which is shown in the certified tax statement of [Pasadena ISD]." Accordingly, the trial court granted the motion for judgment nunc pro tunc and ordered that the "tax years for account 111-027-000-0002 for Pasadena ISD should be listed as 2003-2006; 2008-2012."
Joe moved for a new trial on March 23, 2020, arguing that he did not receive notice of Pasadena ISD's motion for judgment nunc pro tunc and claiming that he had already paid the amount of judgment in full. Joe filed his notice of appeal on May 20, 2020. Afton filed a separate motion for new trial on May 11, 2020; however, she did not request or obtain an extension of the post-judgment deadlines. In her motion for new trial, Afton asserted that she did not receive notice of Pasadena ISD's motion or the judgment nunc pro tunc until May 5, 2020. She did not file her notice of appeal until July 9, 2020.
Pasadena ISD acknowledged it received payment for some of the tax years but contended this was a partial payment and the amount awarded under the judgment was not paid in full.
See Tex. R. Civ. P. 306a.5 ("motion, notice and hearing" procedure for extending post-judgment deadlines due to lack of notice); Tex.R.App.P. 4.2 (no notice of trial court's judgment in civil cases).
Dismissal of Afton's Appeal
Afton's appeal from the trial court's February 21, 2020 judgment nunc pro tunc was filed on July 9, 2020. As explained in our February 1, 2022 memorandum order, although Afton filed a motion for new trial on May 11, 2020, she did not timely request or obtain an extension of time to file post-judgment motions and, thus, her July 9 notice of appeal was untimely and we are without jurisdiction to hear her appeal. Tex.R.App.P. 4.2, 26.1(a); Tex.R.Civ.P. 306a. We noted, however, that Afton's notice of appeal was filed within the time for perfecting a restricted appeal but did not comply with the requirements for a notice of restricted appeal. Tex.R.App.P. 25.1(d)(7), 26.1, 30. Accordingly, we ordered Afton to file, no later than February 15, 2022, an amended notice of appeal that complied with the requirements of Rule 25.1(d)(7). We also ordered Afton to file supplemental briefing demonstrating that she could meet the requirements for sustaining a restricted appeal. See Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). Although we cautioned Afton that failure to comply would result in dismissal of her appeal for lack of jurisdiction, Afton did not file an amended notice of appeal or the supplemental briefing we requested. See Tex. R. App. P. 42.3(a), (c). As a result, we dismiss Afton's appeal. See id. 42.3(a), (c); see also Harrison v. Luckey, No. 05-21-00425-CV, 2021 WL 3891594, at *1 (Tex. App.-Dallas Aug. 31, 2021, no pet.) (mem. op.) (dismissing appeal after appellant failed to respond to court's instruction to file amended notice of appeal complying with requirements for restricted appeal).
The Judgment Nunc Pro Tunc Is Void
Turning to Joe's arguments on appeal, Joe asserts that the judgment nunc pro tunc is void because neither he nor Afton received notice of the motion for judgment nunc pro tunc or entry of the judgment. With respect to Joe, Pasadena ISD contends that it properly served Joe in accordance with Rules 21a and 316 of the Texas Rules of Civil Procedure because his attorney of record, Ahn, was served through the electronic service provider. With respect to Afton, Pasadena ISD admits that it did not properly serve the motion on Afton because it sent the motion to 6433 Ross St. instead of 6433 Roos St., which was the correct address for service for Afton. But Pasadena ISD contends we need not address the issue of service on Afton because her appeal was untimely.
As noted above, the judgment nunc pro tunc was signed on February 21, 2020, over six years after the February 2014 judgment was signed. Rule 316 of the Texas Rules of Civil Procedure gives a trial court the authority to correct clerical mistakes in a judgment even after the expiration of the trial court's plenary power, if notice is provided to all parties interested in the judgment. Tex.R.Civ.P. 316. Rule 316 specifically provides:
Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a, and thereafter the execution shall conform to the judgment as amended.Id. (emphasis added). "The failure to give all interested parties notice of an application to correct a judgment nunc pro tunc after the expiration of the trial court's plenary jurisdiction renders any correction a nullity." W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304, 307 (Tex. App.-Austin 1987, writ ref'd n.r.e.); see also Holland v. Holland, 357 S.W.3d 192, 200 (Tex. App.-Dallas 2012, no pet.) (same); $8,500.00 v. State, 774 S.W.2d 788, 791 (Tex. App.-Houston [14th Dist.] 1989, no writ) (same).
Pasadena ISD asserts that it properly served Joe because electronic service was completed on Joe's attorney of record, Ahn. While it is true that Ahn was appointed as Joe's attorney ad litem in the underlying suit for delinquent taxes, the trial court's February 2014 judgment explicitly terminated Ahn's representation of Joe by stating: "It is therefore ORDERED that . . . such attorney ad litem is hereby discharged from further representation on behalf of [Joe]." A lawyer's representation of a client ends when the lawyer is discharged, with or without good cause. See Tex. Disciplinary R. Prof'l Conduct 1.15(a); Blake v. Nickerson, No. 06-07-00071-CV, 2007 WL 4270735, at *3 (Tex. App.-Texarkana Dec. 7, 2007, no pet.) (mem. op.) (concluding trial court relieved appellee as appellant's attorney after appellant's trial and conviction in 1978, thus terminating appellee's representation of appellant, and from that point, appellee was "off the case" and "had no duty to represent [appellant's] interest after the severance of their relationship in 1978"). And "[n]otice acquired by an attorney after the termination of the attorney-client relationship will not be imputed to the former client." Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 58 n.6 (Tex. App.-Houston [1st Dist.] 2000, pet. denied) (citing Cannon v. ICO Tubular Servs., Inc., 905 S.W.2d 380, 387 (Tex. App.-Houston [1st Dist.] 1995, no writ), abrogated on other grounds by Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308 (Tex. 2000)); cf. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) ("Notice to [appellant's] former attorney was no longer notice to [appellant] after her attorney withdrew."). Because the trial court terminated Ahn's representation of Joe in 2014, any service of notice of the motion for judgment nunc pro tunc on Ahn would not be imputed to Joe, as a former client.
Moreover, Pasadena ISD admits in its briefing that its motion for judgment nunc pro tunc "does not comply with the service requirements of [Rule] 21a" because it was sent to the wrong address for Afton. As noted above, Rule 316 of the Texas Rules of Civil Procedure requires notice, in compliance with Rule 21a, to be given to all parties interested in the judgment, otherwise any correction to the judgment is a nullity. See Tex. R. Civ. P. 316 ("Clerical mistakes in the record of any judgment may be corrected . . . after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a[.]"); Holland, 357 S.W.3d at 199-200 (holding trial court erred in issuing nunc pro tunc order without notice to parties as required by Texas Rule of Civil Procedure 316); $8,500, 774 S.W.2d at 791 (holding lack of notice to appellants of application to correct judgment nunc pro tunc nullified judgment); W. Tex. State Bank, 723 S.W.2d at 307 (holding proper notice was not given to appellant to satisfy procedural requirements of Texas Rule of Civil Procedure 316 and, therefore, correction in judgment nunc pro tunc was nullity); see also Conmark Equip., Inc. v. Harris, 595 S.W.2d 145, 146 (Tex. App.-Tyler 1980, no writ) (holding trial court's attempt to correct original venue order by subsequent nunc pro tunc judgment was ineffective and "a nullity" where parties agreed proper notice was not accorded all parties as required by Texas Rule of Civil Procedure 316). Therefore, we hold that the February 21, 2020 judgment nunc pro tunc, which was entered without the proper notice to all interested parties as required by Rule 316, was ineffective and is a nullity. This "[l]ack of notice therefore nullifies th[e] [February 21, 2020] judgment, and a discussion as to the type of error sought to be corrected is immaterial." See $8,500.00, 774 S.W.2d at 791.
We sustain Joe's second issue, and do not reach the remaining issues raised by Joe on appeal. See Tex. R. App. P. 47.1.
That we dismiss Afton's separate appeal does not prohibit us from reaching the issue of whether all parties were provided proper notice as required by Rule 316. The case law is clear that any correction rendered without the proper notice to all interested parties is a nullity. See W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304, 307 (Tex. App.-Austin 1987, writ ref'd n.r.e.); Holland v. Holland, 357 S.W.3d 192, 200 (Tex. App.-Dallas 2012, no pet.); $8,500.00 v. State, 774 S.W.2d 788, 791 (Tex. App.-Houston [14th Dist.] 1989, no writ); Conmark Equip., Inc. v. Harris, 595 S.W.2d 145, 146 (Tex. App.-Tyler 1980, no writ). We find this particularly relevant in this context, as the February 2014 judgment imposed no personal liability on either Joe or Afton, but rather was entered "in rem only," and, thus, is limited to the property itself. See Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Water Irrigation Dist. No. 1, 627 S.W.3d 529, 536 (Tex. App.-Corpus Christi-Edinburg 2021, pet. filed) ("[A]n in rem judgment is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner."); Childress v. Palo Pinto Cnty., No. 14-19-00783-CV, 2021 WL 4472562, at *3 (Tex. App.-Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op.) ("Tax liens attach upon the land rather than upon the person, and a foreclosure suit is a proceeding 'in rem' rather than 'in personam.'" (citing Tierra Sol Joint Venture v. City of El Paso, 311 S.W.3d 492, 499 (Tex. App.-El Paso 2009, no pet.)).
Conclusion
We conclude that the trial court erred in entering the February 21, 2020 judgment nunc pro tunc because notice was not provided to all parties interested in the judgment, and accordingly, reverse and vacate the trial court's entry of that judgment.