THE ESTATE OF DOROTHY SPRINGER AND TERRENCE GORE, EXECUTOR FOR THE ESTATE OF DOROTHY SPRINGER, Appellants v. DALLAS COUNTY, PARKLAND HOSPITAL DISTRICT, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, DALLAS COUNTY SCHOOL EQUALIZATION FUND, THE CITY OF DESOTO, AND DESOTO INDEPENDENT SCHOOL DISTRICT, Appellees

REVERSE and REMAND; Opinion issued May 12, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00452-CV
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THE ESTATE OF DOROTHY SPRINGER AND TERRENCE GORE,
EXECUTOR FOR THE ESTATE OF DOROTHY SPRINGER, Appellants
 
V.
 
DALLAS COUNTY, PARKLAND HOSPITAL DISTRICT, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, DALLAS COUNTY SCHOOL
EQUALIZATION FUND, THE CITY OF DESOTO, AND
DESOTO INDEPENDENT SCHOOL DISTRICT, Appellees
 
.............................................................
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-31387-TC
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MEMORANDUM OPINION
 
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice Francis
 
        Terrence Gore, executor of the estate of Dorothy Springer, appeals the trial court's judgment in favor of various taxing entities. We reverse the trial court's judgment and remand for new trial.
        In October 2005, Dallas County, Parkland Hospital District, Dallas County Community College District, Dallas County School Equalization Fund, and the City of DeSoto filed suit to foreclose tax liens for unpaid and delinquent property taxes owed against the property located at 1500 Silver Creek Drive, DeSoto, Texas, purportedly owned by the estate of Dorothy Springer. On October 2, 2006, Gore filed an answer in which he asserted he was the executor of Springer's estate. When Gore did not subsequently appear at a hearing, the trial court granted judgment on April 30, 2007 in favor of the taxing entities. The trial court later granted Gore's unopposed motion for new trial. On January 7, 2008, the City of DeSoto was dismissed without prejudice. That same day, the trial court granted judgment in favor of the four remaining taxing entities.
        In July 2008, the four remaining tax entities filed a petition to vacate the January 2008 judgment under section 33.56(a)(1) of the tax code on the ground that the City of DeSoto and DeSoto Independent School District (DSISD) were necessary parties under section 33.44(a) of the tax code. After the trial court vacated the January 2008 judgment, the City of DeSoto and DSISD filed their original intervention. A hearing was set for February 19, 2009; again, Gore did not appear, and the trial court granted judgment in favor of appellees. Gore filed a motion for new trial but when he failed to appear at the hearing, the motion was denied. He then filed this appeal.
        In his first point of error, Gore contends the trial court abused its discretion in granting default judgment because he was not served. Gore argues lack of service violates his right to due process and renders the judgment void.
        If the record fails to affirmatively show strict compliance with the rules of civil procedure governing issuance, service, and return of citation, attempted service of process is invalid and of no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam); Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. App.-Dallas 2003, no pet.). When the attempted service of process is invalid, the trial court acquires no personal jurisdiction over the defendant, and the default judgment is void. Lytle v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.-Dallas 2008, no pet.); Westcliffe, Inc., 105 S.W.3d at 290. However, filing an answer constitutes a general appearance by a defendant, thereby dispensing with the need for the issuance and service of citation. Tex. R. Civ. P. 121; Phillips v. Dallas County Child Protective Srvs. Unit, 197 S.W.3d 862, 865 (Tex. App.-Dallas 2006, pet. denied) (citing Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999)). Because Gore filed an answer in this case on October 2, 2006, any complaint regarding lack of service or defective service is waived. See Phillips, 197 S.W.3d at 865. We overrule Gore's first point of error.
        In his second point of error, Gore argues the trial court's action vacating the January 2008 judgment violated his constitutional right to due process because he was not served a copy of the petition to vacate. Although Gore provides a brief citation to sections 33.42 and 33.44 of the property tax code to support his position, he provides no analysis of these sections nor does he address why these sections are applicable to the issues he raises. Any argument relying on these sections is waived. See Tex. R. App. P. 38.1(i). He also cites section 33.56 which provides that a copy of the petition to vacate must be served on each party to the delinquent suit. See Tex. Tax Code Ann. § 33.56(e) (Vernon 2008). While he argues he did not receive a copy of the petition to vacate, the record reflects the petition was served on Gore at two addresses. The first address was listed by Gore as his address in the answer he filed on behalf of the estate of Dorothy Springer; the second address was listed by Gore in his February 2008 motion to modify judgment. Thus, the record belies his argument that the addresses used were “wrong and/or non existent.” We overrule Gore's second point of error.
        In his third point, Gore claims the City of DeSoto and DSISD are not proper intervenors under sections 33.44 and 33.56. Again, Gore cites these sections of the property tax code without any analysis or explanation; therefore, this issue is waived. See Tex. R. App. P. 38.1(h), (i).
        Nevertheless, Gore appears to argue that, although DSISD was not previously a party to the suit, the school district could not subsequently intervene. Section 33.56 provides that, in a suit to collect a delinquent tax, if “a court renders a judgment for foreclosure of a tax lien on behalf of a taxing unit, any taxing unit that was a party to the judgment may file a petition to vacate the judgment” on the ground of “failure to join a person needed for just adjudication under the Texas Rules of Civil Procedure, including a taxing unit required to be joined under Section 33.44(a).” Tex. Tax Code Ann. § 33.56(a)(1) (Vernon 2008). Section 33.44(a) states a “taxing unit filing suit to foreclose a tax lien on real property shall join other taxing units that have claims for delinquent taxes against all or part of the same property.” Tex. Tax Code Ann. § 33.44(a) (Vernon 2008) (emphasis added). The record shows DSISD and the City of DeSoto had delinquent tax claims against the property located at 1500 Silver Creek Drive, DeSoto; therefore, both DSISD and the City of DeSoto were proper intervenors under section 33.44(a). To the extent Gore questions the trial court's January 7, 2008 order dismissing the City of DeSoto, Gore did not lodge an objection below. Therefore, he has waived this complaint. See Tex. R. App. P. 33.1(a).
        Finally, Gore argues he was not served with the petition to vacate or the City of DeSoto's and DSISD's intervention. We have previously addressed his argument concerning service of the petition to vacate; as noted earlier, the petition to vacate was served on Gore at two addresses, each used by Gore in a previous pleading or motion filed in the trial court. The record also shows the intervention was delivered to Gore at three addresses: the two addresses used when serving the petition to vacate and the address of the property at issue in this case, 1500 Silver Creek Drive, DeSoto. Because the record shows Gore used all three addresses at different times throughout these proceedings, we conclude Gore's complaints that the addresses were wrong or nonexistent lack merit. We overrule his third point of error.
        Under his fourth point, Gore claims the trial court lacked jurisdiction over the case. Initially, Gore contends this is because he was not served with notice of the lawsuit. We have previously addressed this issue and concluded Gore's filing an answer dispensed with the need for the issuance and service of citation. To the extent Gore claims the trial court lacked jurisdiction to grant the petition to vacate because its plenary power had expired, this issue is inadequately briefed. Gore cites no authority in support of his position, nor does he provide any analysis. Tex. R. App. P. 38.1(i). Furthermore, there is case law to the contrary. See Kaminetzky v. Houston Indep. Sch. Dist., 2003 WL 22019540, at *2 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (mem. op.) (section 33.56 places no time limit on seeking order vacating judgment); Barua v. County of Dallas, 100 S.W.3d 629, 635 (Tex. App.-Texarkana 2003, pet. denied) (same). We overrule Gore's fourth point.
        In his final point, Gore claims the evidence is legally insufficient to support the trial court's order. Gore argues the records introduced at trial failed to establish a prima facie case for liability because they failed to show the property was owned and the delinquent taxes owed by the estate of Dorothy Springer. We agree.
        A post-answer default judgment is rendered when a defendant files an answer but fails to appear at trial. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). In a no-answer default judgment, the defendant's failure to answer represents an admission of all facts properly set out in the plaintiff's petition. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). In contrast, a post-answer default is not an implied confession of any issues raised by the defendant's answer. See Dolgencorp, 288 S.W.3d at 930. Unlike a no-answer default, a post-answer default judgment requires the plaintiffs to offer evidence to prove the factual allegations of their petition just as in a contested trial. See id.
        The test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Armstrong v. Benavides, 180 S.W.3d 359, 362 (Tex. App.-Dallas 2005, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). In our review of the evidence, we “credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” City of Keller, 168 S.W.3d at 827. If there is more than a scintilla of evidence to support the verdict, we uphold the judgment. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Evidence is no more than a scintilla when it is “so weak as to do no more than create a mere surmise or suspicion of the fact's existence.” Armstrong, 180 S.W.3d at 362 (citing Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970)).
        In a suit to collect delinquent property 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) (Vernon 2008). When the taxing unit introduces the delinquent tax notices, it establishes a prima facie case as to every material fact necessary to establish its cause of action. Maximum Med. Improvement, Inc. v. County of Dallas, 272 S.W.3d 832, 835 (Tex. App.-Dallas 2008, no pet.); Pete Dominguez Enter., Inc. v. County of Dallas, 188 S.W.3d 385, 387 (Tex. App.-Dallas 2006, no pet.). A rebuttable presumption arises that the taxing entity has taken all actions necessary to obtain legal authority to levy the tax, including proper delivery of all required tax notices. Maximum Med., 272 S.W.3d at 835; Pete Dominguez Enter., 188 S.W.3d at 387. If, however, the identity of the entity named as the owner on the tax notice does not match the identity of the defendant sued for non-payment, no presumption arises as to the defendant's liability. Maximum Med., 272 S.W.3d at 835; Pete Dominguez Enter., 188 S.W.3d at 387.
        The only evidence offered at trial were the certified copies of delinquent tax statements showing the property location, the taxes owed, and the certified owner. In each document, the certified owner is listed as:
 
                KING JOHN M
 
                                920 TWIN CREEK DR
                                DESOTO TX 75115-5400
 
The taxing entities offered no evidence of who “John M. King” is or what relation he has to the estate of Dorothy Springer. Nor did they offer any evidence that the estate of Dorothy Springer owes the delinquent taxes. In short, the identity of the person listed as the owner in the evidence introduced at trial does not match the identity of the defendant. In light of this, no presumption of liability was triggered, and no prima facie case for liability was established. See Pete Dominguez Enter., 188 S.W.3d at 388. We conclude reasonable jurors would not credit the taxing entities' evidence as probative that the estate of Dorothy Springer owed the delinquent taxes to appellees. See id. We sustain Gore's final point of error.
        We reverse the trial court's judgment and remand this case for new trial. See Bennett v. McDaniel, 295 S.W.3d 644, 645 (Tex. 2009) (when evidence is legally insufficient to support post-
answer default judgment, proper disposition is to remand for new trial); Dolgencorp, 288 S.W.3d at 930 (same).
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
090452F.P05