Matt Gilbert v. Houston Independent School District

Opinion issued September 24, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00159-CV

____________

JAMES M. GILBERT A/K/A MATT GILBERT, Appellant

V.

HOUSTON INDEPENDENT SCHOOL DISTRICT, CITY OF HOUSTON,

HARRIS COUNTY, AND HOUSTON COMMUNITY COLLEGE SYSTEM,

Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2001-65202

MEMORANDUM OPINION

James M. (Matt) Gilbert, a pro se litigant, appeals the trial court’s judgment

imposing a tax lien against his house and granting permission for the taxing

authorities to sell the property to satisfy the tax delinquency.

Matt brings eight issues. In five issues, Matt complains about procedural

issues relating to his sister’s disclaimer of interest in the property. Matt also

complains that he did not receive notice of the trial date, that the taxing authorities’

trial attorney commented negatively to him, and that the valuation process was unfair

as to his property.

We affirm.

Background

Appellee Houston Independent School District filed this lawsuit to recover

delinquent property taxes dating from 1987. Other taxing authorities, including

appellees Harris County, the City of Houston, and the Houston Community College

System, later joined the suit as additional plaintiffs.

The property subject to the tax liability at issue is an improved lot in Harris

County that had been owned by John E. Gilbert and Mary V. Gilbert. Both John and

Mary

died intestate. The taxing authorities filed this in rem suit in 2001, and the

court appointed an attorney ad litem to identify John and Mary’s heirs. Five heirs

were identified, including Matt and his sister Mary Gilbert McAdams. The heirs were

joined as defendants and served with process. Only Matt, who had lived since 1985

in a house on the property at issue, claimed an interest in the property.

During the time Matt lived in the house, property taxes went unpaid for

significant periods of time. At the time of trial, delinquent taxes were owed:

• to the Houston Independent School District for tax years 1990 through

2004;

• to Harris County for tax years 1988 through 2004;

• to the City of Houston for tax years 1987 through 2004; and

• to the Houston Community College System for tax years 1987 through

2004.

Although Matt filed a written answer and appeared in court, he did not appear for the

trial on January 24, 2006. A notice of trial setting for that date includes Matt on the

certificate of service, but the U.S. Postal Service returned the service copy to the

taxing authorities’ counsel, marked “unclaimed.”

After a bench trial to a tax master, the trial court rendered judgment in favor

of the taxing authorities, permitting them to sell the house to satisfy their tax liens and

charging Matt with interest, fees, and court costs. Matt appeals.

Pro Se Representation

Matt represented himself in the trial court, and he also appears before this

Court pro se. Although we liberally construe pro se pleadings and briefs, we

nonetheless require pro se litigants to comply with applicable laws and rules of

procedure. See Wheeler v. Green , 157 S.W.3d 439, 444 (Tex. 2005) (“pro se litigants

are not exempt from the rules of procedure”); Mansfield State Bank v. Cohn , 573

S.W.2d 181 , 184–85 (Tex. 1978). “Having two sets of rules—a strict set for attorneys

and a lenient set for pro se parties—might encourage litigants to discard their

valuable right to the advice and assistance of counsel.” Wheeler , 157 S.W.3d at 444 .

“Litigants who represent themselves must comply with the applicable procedural

rules, or else they would be given an unfair advantage over litigants represented by

counsel.” Mansfield State Bank , 573 S.W.2d at 185 ; see also Stein v. Lewisville

Indep. Sch. Dist. , 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort Worth 1972, writ ref’d

n.r.e.) (holding that pro se defendants in tax foreclosure are bound by rules of

procedure). Construing his briefing liberally, the issues Matt presents lack

substantive merit.

Competency of Mary Gilbert McAdams

In five issues, Matt argues that his sister Mary McAdams is legally incompetent

and that she was not properly represented by the attorney ad litem, who was

appointed to identify the then-unknown heirs of John and Mary Gilbert .

The issues

lack merit because Matt lacks standing to assert these issues for his own benefit, and

he lacks the legal capacity to assert these issues on behalf of his sister.

Standing

Generally, only parties of record have standing to appeal. See Cont’l Cas. Co.

v. Huizar , 740 S.W.2d 429, 430 (Tex. 1987). Standing requires that the parties have

a real controversy which can actually be determined by the relief sought. Tex. Ass’n

of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). In other words, a

person has standing to appeal when he is personally aggrieved by the alleged wrong.

Nootsie, Ltd. v. Williamson County Appraisal Dist. , 925 S.W.2d 659, 661 (Tex.

1996). As a party to the judgment, Matt has standing to appeal. However, Matt is not

personally aggrieved by the alleged wrong identified in his first five issues on appeal,

i.e., that Mary did not understand the proceedings. Therefore, we hold that Matt lacks

standing to complain on his own behalf of alleged violations of Mary’s procedural

rights. See Goffney v. Houston Indep. Sch. Dist. , No. 01-08-00063-CV, 2009 WL

2343250 , *3–4 (Tex. App.—Houston [1st Dist.] July 30, 2009, no pet.) (mem. op.)

(holding that appellant lacked standing on appeal to challenge alleged procedural due

process violations against third party) .

Representation of Another

Moreover, Matt is not authorized to contest the judgment directly on behalf of

his adult sister. In his brief, Matt states:

One of the defendants, and heir to the estate, my sister, Mary E. Gilbert

is mentally retarded and under the definition of non sui juris lacks the

requisite legal capacity to act on her own behalf, and therefore may be

unable to understand the meaning and consequences of this lawsuit. It

is my primary basis for this appeal.

Texas Rule of Civil Procedure 44 sets forth a procedure for certain litigants,

including “persons non compos mentis, ” to sue and be represented by a “next friend.”

Tex. R. Civ. P . 44. The proper method for appointment of a next friend to another

adult is to follow the same procedure for the appointment of a guardian ad litem, as

set forth in Texas Rule of Civil Procedure 173. Tex. R. Civ. P. 173 ; Intracare Hosp.

N. v. Campbell , 222 S.W.3d 790, 798 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Nothing in the record shows that Mary was adjudicated incompetent or that Matt was

her next friend or her guardian.

Also, Matt is not an attorney. Rule of Civil Procedure 44 does not vitiate

§ 81.102 of the Texas Government Code and allow unlicensed persons to practice law

through appointment as next friend. Jimison v. Mann , 957 S.W.2d 860, 861 (Tex.

App.—Amarillo 1997, no writ). Rather, persons must be members of the State Bar

to practice law in Texas on behalf of others. Tex. Gov’t Code Ann. § 81.102(a)

(Vernon 2005); e.g. , Magaha v. Holmes , 886 S.W.2d 447, 448 (Tex. App.—Houston

[1st Dist.] 1994, no pet.) (holding that plaintiff’s mother could not act as his attorney

because she was not licensed to practice law). Although the supreme court may

promulgate rules allowing others to practice law in Texas, that power is limited to the

practice by (1) attorneys licensed in foreign jurisdictions, (2) bona fide law students,

and (3) unlicensed graduate students who attend or attended a law school approved

by the supreme court. Tex. Gov’t Code Ann. § 81.102(b) (Vernon 2005).

Accordingly, Matt is not entitled to act pro se to represent his sister’s interests.

Limited Role of Attorney Ad Litem

To the extent that Matt complains, in his fifth issue, that the attorney ad litem

failed to properly represent Matt’s interests along with the interests of the other heirs

of John E. and Mary V. Gilbert, he has offered no argument that he was harmed, and

in any case, the record reveals that the limited scope of the attorney ad litem’s charge

was solely to identify the heirs of John E. and Mary V. Gilbert, and not to represent

those heirs in the tax foreclosure proceeding.

We overrule Matt’s first five issues.

Lack of Notice

In his sixth issue, Matt contends that the trial court erred by not serving him

with notice of the trial setting.

The law presumes a trial court hears a case only after proper notice to the

parties. Osborn v. Osborn , 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.]

1997, pet. denied). “A recitation of due notice of the trial setting in the judgment

constitutes some, but not conclusive evidence that proper notice was given.” Id. This

presumption can be rebutted by evidence in the record. Id.

Matt concedes that this was not an initial trial setting, as he notes in his brief

that he had previously appeared in court and that the trial had been reset. Rule of

Civil Procedure 245 requires that a trial court must give 45 days notice of a first trial

setting, but may reset the trial to a later date on any reasonable notice. See id . The

judgment recites that Matt was served with notice of the January 24, 2006 trial, and

the notice of trial setting with a certificate of service including Matt appears in the

record.

Accordingly, we overrule Matt ’s sixth issue.

Mental Duress

In his seventh issue, Matt complains about a comment made by opposing

counsel. Matt contends that at an oral hearing, an attorney for the taxing authorities

told him that his “situation was hopeless,” that “nothing could be done to prevent the

property from being foreclosed on and going to public auction,” and that Matt “was

going to lose the family home” and he “might as well ‘hang it up.’” Matt contends

that he became distraught with an “immediate pervading sense of hopelessness,” and

that he “broke down and openly wept right there in the courtroom.”

Matt sought no relief in the trial court, and he seeks no specific relief from this

Court with respect to this issue. We thus cannot provide any relief in this regard on

his appeal from the judgment of the trial court. We overrule this issue.

Property Valuation

In his eighth and final issue, Matt complains that he was unable to challenge

the property’s valuation because his parents died intestate and he is not the record

owner of the property. He argues, “Because the property may be taxed at an unfair

rate, it renders the amount of the judgment invalid.” We interpret this as a challenge

to the valuation of the property.

This is an appeal from judgment in a lawsuit to recover delinquent taxes. Matt

is statutorily barred from challenging the valuation of the house in this case, and we

lack jurisdiction to consider such a claim. Chapter 41 of the Tax Code establishes

procedures for a taxpayer to protest an appraisal board’s valuation of his real

property. Tex. Tax. Code Ann. § § 41.41–.47 (Vernon 2008). Because this remedy

is exclusive, improper or “unfair” valuation of property is not a defense to a suit for

delinquent taxes. Id . § 42.09(a)(1) (“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 . . . in defense to a suit to enforce collection of delinquent taxes . . . .”); see

Starflight 50, L.L.C. v. Harris County Appraisal Dist. , 287 S.W.3d 741, 745 (Tex.

App.—Houston [1st Dist.] 2009, no pet.) (“In the Property Tax Code , the exhaustion

of remedies provisions, found in section 42.09, are mandatory and jurisdictional. ”).

We overrule this issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale .