Langston v. City of Houston et al. (Tex.App.- Houston [14th Dist.] Aug. 6, 2009) (Frost)   
(
bill of review denied, taxpayer suit, failure to avail oneself of available remedies, i.e. pursue direct appeal,
precludes bill-of-review relief)(
fundamental error claim based on constitutional arguments rejected)
(
City of Houston litigation)
AFFIRMED: Opinion by
Justice Frost  
Before Justices Frost, Seymore and Boyce   
14-08-00063-CV   C. Dale Langston and Sue Langston v. City of Houston, Harris County, Pasadena
Independent School District and San Jacinto Community College   
Appeal from 55th District Court of Harris County

M E M O R A N D U M   O P I N I O N [LINKS ADDED]

This appeal arises out of a bill-of-review case brought by two taxpayers who had an adverse
judgment rendered against them in
delinquent-property-tax litigation.  The trial court granted the
taxing authorities' summary judgment motion  and dismissed the taxpayers' bill-of-review action.  
Under the circumstances of this case, the requirement that the taxpayers be free from fault or
negligence is negated as a matter of law by their
failure to pursue a direct appeal of the judgment
in question.  The taxpayers failed to preserve error as to their argument regarding an alleged
constitutional violation.  Accordingly, we affirm the trial court's summary judgment.
                 
I.  Factual and Procedural Background

In a prior suit in the trial court below, appellees/defendants City of Houston, Harris County,
Pasadena Independent School District, and San Jacinto Community College (hereinafter
collectively the “Taxing Authorities") sought to collect delinquent property taxes on real property
owned by appellants/plaintiffs C. Dale Langston and Sue Langston (hereinafter collectively the
“Langstons").  In September 2001, the Langstons were served with process in the suit.  The
Langstons did not retain legal counsel and instead represented themselves.  According to Mr.
Langston's affidavit, after receiving notice of the trial setting in this suit, the Langstons contacted
one of the opposing counsel to let them know that Mr. Langston was currently in a hospital in the
Phillippines.  The unnamed attorney allegedly told the Langstons that they “did not need to attend
the hearing because they would only be reviewing tax accounts and nothing would be final."  The
Langstons did not appear at the trial before the tax master on April 30, 2002, and based on the
master's recommendation, the trial court signed a judgment on June 13, 2002 against the
Langstons and in favor of the Taxing Authorities (the “Judgment").  The Langstons then retained
counsel and timely filed a motion for new trial, which was overruled by operation of law.  The
Langstons did not pursue an appeal from the Judgment

About three and a half years later, on December 4, 2006, the Langstons filed this action in the trial
court seeking to set aside the Judgment by means of an
equitable bill of review.  The Taxing
Authorities filed traditional motions for summary judgment asserting various grounds.  The trial
court granted summary judgment in favor of the Taxing Authorities on the ground that the
Langstons' failure to pursue a direct appeal from the Judgment precluded them as a matter of law
from obtaining relief in the bill-of-review action.  The Langstons now challenge the trial court's
traditional summary judgment in favor of the Taxing Authorities.
                                             
II.  Analysis

In a traditional motion for summary judgment, if the movant's motion and summary-judgment
evidence facially establish its right to judgment as a matter of law, the burden shifts to the
nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a
trial court's summary judgment, we consider all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.  
Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and
fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

A.      Does the taxpayers' failure to pursue a direct appeal from the judgment preclude the
setting aside of the judgment through an equitable bill of review?

Under their first issue, the Langstons argue that the summary-judgment evidence raises a genuine
issue of material fact as to each of the essential elements that the Langstons needed to prove to
obtain relief under an equitable bill of review.  The Langstons were served with process in the
property-tax collection suit.  They had notice of the trial setting.  They were aware of the trial court's
rendition of the Judgment.  The Langstons timely filed a motion for new trial; however, they did not
pursue a direct appeal of the Judgment.  Though the Langstons allege that an opposing attorney
made a fraudulent representation that prevented them from attending the trial in the tax-collection
suit, the Langstons do not allege that they were prevented from pursuing a direct appeal from the
Judgment by any fraud, accident, or wrongful act of the Taxing Authorities.  Under these
circumstances, the requirement that the Langstons be free from fault or negligence is negated as a
matter of law, and the trial court properly granted summary judgment in favor of the Taxing
Authorities.  See French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967) (affirming summary judgment
in favor of bill-of-review-action defendants under these circumstances); Nguyen v. Intertex, Inc., 93
S.W.3d 288, 295-96 (Tex. App.- Houston [14th Dist.] 2002, no pet.) (same).  Accordingly, we
overrule the Langstons' first issue.

B.      Did the Supreme Court of Texas in Gold v. Gold change the law so that parties
eligible for bill-of-review relief are not required to file a restricted appeal?

Under their second issue, the Langstons point out that, to be eligible for bill-of-review relief, they
were not required to file a restricted appeal.  At oral argument, the Langstons argued that the
Supreme Court of Texas, in Gold v. Gold, changed the law so that parties in the position of the
Langstons no longer need to pursue a direct appeal.  See Gold v. Gold, 145 S.W.3d 212, 213-14
(Tex. 2004) (per curiam).  We disagree.  The Gold court expressly reaffirmed a line of cases
providing that relief by a bill of review is available “only if a party has exercised due diligence in
pursuing all adequate legal remedies . . . [and not] [i]f legal remedies were available but ignored."  
Id. at 214 (quoting Wembley Inv. Co. v. Herrerra, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam)).  
However, the Gold court concluded that this line of cases does not apply to the failure to file a
restricted appeal.  See id. at 213-14.  Because the Langstons filed a timely motion for new trial,
they were unable to pursue a restricted appeal.  See Tex. R. App. P. 30.  Although the Langstons
did not have to file a restricted appeal to be eligible for an equitable bill of review, the Gold court
did not change the requirement that parties in the Langstons' situation have to pursue a direct
appeal to be eligible for an equitable bill of review.  See Gold, 145 S.W.3d at 213-14.  
Accordingly, we overrule the Langstons' second issue.

C.      Did the taxpayers preserve error as to their constitutional argument?

Under their third issue, the Langstons argue that the Taxing Authorities' purported double taxation
of the Langstons' real property violates article 8, section 1 of the Texas Constitution.  See Tex.
Const. art. VIII,  1.  The Langstons also argue that equity demands that a remedy be made to
enforce their constitutional right to be free from double taxation.  Though the Langstons argue
otherwise in their reply brief, the record reflects that they did not voice these complaints in the trial
court.  While they mentioned the alleged double taxation, they did not mention the Texas
Constitution or any alleged constitutional violation, nor did they argue that equity must provide a
remedy.  Therefore, they failed to preserve error as to the third issue.  See Tex. R. App. P. 33.1(a);
see, e.g., In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that, to preserve issue for
appellate review, including constitutional error, party must present to trial court timely request,
motion, or objection, state specific grounds therefor, and obtain ruling).

In their reply brief, the Langstons assert that, if this court concludes error was not preserved, then
this court should review the issue under the doctrine of fundamental error.  The Supreme Court of
Texas, however, has concluded that, in the context of civil appeals, fundamental error is a narrow
doctrine.  See In re B.L.D., 113 S.W.3d 340, 350-52 (Tex. 2003).  The alleged constitutional
violation that the Langstons assert in their third issue does not fall within the narrow scope of the
fundamental error doctrine recognized by the Supreme Court of Texas.  See id.  Therefore,
fundamental error does not apply to the Langstons' constitutional complaint.  See id.   Because the
Langstons failed to preserve error, we overrule their third issue.

Having overruled all of the Langstons' issues, we affirm the trial court's judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Seymore, and Boyce.