TVMAX Holdings, Inc. and Broadband Ventures Six, L.L.C. v. Spring Independent School District

Opinion issued April 30, 2015

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-14-00304-CV

———————————

TVMAX HOLDINGS, INC. AND BROADBAND VENTURES SIX, L.L.C.,

Appellants

V.

SPRING INDEPENDENT SCHOOL DISTRICT, ALIEF INDEPENDENT

SCHOOL DISTRICT, CLEAR CREEK INDEPENDENT SCHOOL

DISTRICT, GALENA PARK INDEPENDENT SCHOOL DISTRICT,

HUMBLE INDEPENDENT SCHOOL DISTRICT, KLEIN INDEPENDENT

SCHOOL DISTRICT, SPRING BRANCH INDEPENDENT SCHOOL

DISTRICT, SPRING INDEPENDENT SCHOOL DISTRICT, TOMBALL

INDEPENDENT SCHOOL DISTRICT, HOUSTON INDEPENDENT

SCHOOL DISTRICT, CYPRESS-FAIRBANKS INDEPENDENT SCHOOL

DISTRICT, KATY INDEPENDENT SCHOOL DISTRICT, ALDINE

INDEPENDENT SCHOOL DISTRICT, PASADENA INDEPENDENT

SCHOOL DISTRICT, GOOSE CREEK CONSOLIDATED INDEPENDENT

SCHOOL DISTRICT/LEE COLLEGE DISTRICT, LONE STAR COLLEGE

SYSTEM DISTRICT, HOUSTON COMMUNITY COLLEGE SYSTEM,

SAN JACINTO COMMUNITY COLLEGE DISTRICT, CITY OF

TOMBALL, CITY OF PASADENA, CITY OF HOUSTON, CITY OF

WEBSTER, CITY OF SEABROOK, CITY OF HEDWIG VILLAGE, CITY

OF BAYTOWN, HARRIS COUNTY, HARRIS COUNTY DEPARTMENT

OF EDUCATION, HARRIS COUNTY FLOOD CONTROL DISTRICT,

PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS

COUNTY MUNICIPAL UTILITY DISTRICT #24, HARRIS COUNTY

MUNICIPAL UTILITY DISTRICT #120, HARRIS COUNTY MUNICIPAL

UTILITY DISTRICT #130, HARRIS COUNTY MUNICIPAL UTILITY

DISTRICT #168, HARRIS COUNTY MUNICIPAL UTILITY DISTRICT

#180, HARRIS COUNTY MUNICIPAL UTILITY DISTRICT #188, HARRIS

COUNTY MUNICIPAL UTILITY DISTRICT #189, HARRIS COUNTY

MUNICIPAL UTILITY DISTRICT #191, HARRIS COUNTY MUNICIPAL

UTILITY DISTRICT #205, HARRIS COUNTY MUNICIPAL UTILITY

DISTRICT #215, HARRIS COUNTY MUNICIPAL UTILITY DISTRICT

#230, HARRIS COUNTY MUNICIPAL UTILITY DISTRICT #321, HARRIS

COUNTY MUNICIPAL UTILITY DISTRICT #341, NORTHWEST

HARRIS COUNTY MUNICIPAL UTILITY DISTRICT #9, CHELFORD

ONE MUNICIPAL UTILITY DISTRICT, HEATHERLOCH MUNICIPAL

UTILITY DISTRICT, HORSEPEN BAYOU MUNICIPAL UTILITY

DISTRICT, MISSION BEND MUNICIPAL UTILITY DISTRICT, NORTH

GREEN MUNICIPAL UTILITY DISTRICT, WESTADOR MUNICIPAL

UTILITY DISTRICT, WESTON MUNICIPAL UTILITY DISTRICT,

MASON CREEK UTILITY DISTRICT, BISSONNET MUNICIPAL

UTILITY DISTRICT, CNP UTILITY DISTRICT, HARRIS COUNTY

WATER CONTROL & IMPROVEMENT DISTRICT #1, HARRIS

COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT #109,

HARRIS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT

#145, CLEAR LAKE CITY WATER AUTHORITY, MEMORIAL

VILLAGES WATER AUTHORITY, HARRIS COUNTY EMERGENCY

SERVICE DISTRICT #1, HARRIS COUNTY EMERGENCY SERVICE

DISTRICT #6, HARRIS COUNTY EMERGENCY SERVICE DISTRICT #9,

HARRIS COUNTY EMERGENCY SERVICE DISTRICT #11, HARRIS

COUNTY EMERGENCY SERVICE DISTRICT #12, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #13, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #16, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #17, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #20, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #24, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #25, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #28, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #29, HARRIS COUNTY

EMERGENCY SERVICE DISTRICT #47, HARRIS COUNTY

2

EMERGENCY SERVICE DISTRICT #48, AND HARRIS-FORT BEND

EMERGENCY SERVICE DISTRICT,

Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2011-53254

MEMORANDUM OPINION

Appellants TVMAX Holdings, Inc. and Broadband Ventures Six, L.L.C.,

appeal the trial court’s judgment for delinquent taxes rendered in favor of

numerous taxing units, appellees Spring Independent School District, Alief

Independent School District, Clear Creek Independent School District, Galena Park

Independent School District, Humble Independent School District, Klein

Independent School District, Spring Branch Independent School District, Spring

Independent School District, Tomball Independent School District, Houston

Independent School District, Cypress-Fairbanks Independent School District, Katy

Independent School District, Aldine Independent School District, Pasadena

Independent School District, Goose Creek Consolidated Independent School

District/Lee College District, Lone Star College System District, Houston

Community College System, San Jacinto Community College District, City of

Tomball, City of Pasadena, City of Houston, City of Webster, City of Seabrook,

City of Hedwig Village, City of Baytown, Harris County, Harris County

3

Department of Education, Harris County Flood Control District, Port of Houston

Authority of Harris County, Harris County Municipal Utility District #24, Harris

County Municipal Utility District #120, Harris County Municipal Utility District

#130, Harris County Municipal Utility District #168, Harris County Municipal

Utility District #180, Harris County Municipal Utility District #188, Harris County

Municipal Utility District #189, Harris County Municipal Utility District #191,

Harris County Municipal Utility District #205, Harris County Municipal Utility

District #215, Harris County Municipal Utility District #230, Harris County

Municipal Utility District #321, Harris County Municipal Utility District #341,

Northwest Harris County Municipal Utility District #9, Chelford One Municipal

Utility District, Heatherloch Municipal Utility District, Horsepen Bayou Municipal

Utility District, Mission Bend Municipal Utility District, North Green Municipal

Utility District, Westador Municipal Utility District, Weston Municipal Utility

District, Mason Creek Utility District, Bissonnet Municipal Utility District, CNP

Utility District, Harris County Water Control & Improvement District #1, Harris

County Water Control and Improvement District #109, Harris County Water

Control & Improvement District #145, Clear Lake City Water Authority, Memorial

Villages Water Authority, Harris County Emergency Service District #1, Harris

County Emergency Service District #6, Harris County Emergency Service District

#9, Harris County Emergency Service District #11, Harris County Emergency

4

Service District #12, Harris County Emergency Service District #13, Harris

County Emergency Service District #16, Harris County Emergency Service

District #17, Harris County Emergency Service District #20, Harris County

Emergency Service District #24, Harris County Emergency Service District #25,

Harris County Emergency Service District #28, Harris County Emergency Service

District #29, Harris County Emergency Service District #47, Harris County

Emergency Service District #48, and Harris–Fort Bend Emergency Service District

(collectively, the “Taxing Units”). In two issues, TVMAX contends that the trial

court erred by entering judgment against it while its motions to correct the

appraisal roll were pending with the Harris County Appraisal District (“HCAD”)

and by not apportioning damages between the two defendants. In three issues,

Broadband contends that the trial court erred in entering a default judgment against

it, failing to grant its motion for new trial, and by not apportioning damages

between the two defendants. We affirm.

Background

The Taxing Units sued TVMAX in September 2011 to collect delinquent

property taxes owed on multiple property accounts for tax year 2010. The suit was

later amended to include delinquent taxes for 2011 and 2012. In January 2013, the

Taxing Units added Broadband as a defendant, because Broadband acquired

5

TVMAX in 2012. Broadband’s registered agent was served with citation on

February 19, 2013, but Broadband did not appear or answer.

On February 26, 2013, TVMAX filed with HCAD Personal Property

Correction Requests/Motions pursuant to Texas Tax Code Section 25.25 for 2010,

2011, and 2012. See TEX. TAX CODE ANN. § 25.25 (West Supp. 2015). In the

motions, TVMAX stated that the accounts for which it was being taxed included

multiple appraisals of a property and property that did not exist. See TEX. TAX

CODE ANN. § 25.25(c) (taxpayer may file correction motion to correct multiple

appraisals of a property in a tax year and the inclusion of property that does not

exist in the form or at the location described in the appraisal roll).

Shortly thereafter, TVMAX moved to abate the delinquency proceeding in

the trial court pending the resolution of its Section 25.25 motions by HCAD. The

record does not reflect whether the trial court ruled on this motion. TVMAX

moved a second time to abate the delinquency proceeding in September 2013, and

the trial court denied the request. On November 12, 2013, TVMAX filed a petition

for writ of mandamus in this Court, challenging the trial court’s order denying its

motion to abate, but we denied the petition. In re TVMAX Holdings, Inc., No. 01-

13-00965-CV, 2013 WL 6097807, at *1 (Tex. App.—Houston [1st Dist.] Nov. 15,

2013, orig. proceeding) (mem. op.). On November 18, 2013, TVMAX moved for

a continuance of the November 19, 2013 trial setting, which was denied.

6

On November 19, the Harris County tax master, to whom the trial court had

referred the suit, recommended that a default judgment be granted against

Broadband because it had been properly served and had not answered or appeared.

See TEX. TAX CODE ANN. § 33.71 (West 2015) (permitting trial court to refer

delinquency proceedings to appointed tax master). The tax master also found the

defendants delinquent for all amounts due on the accounts for 2010, 2011, and

2012. Based on the tax master’s recommendations, the district court rendered

judgment that TVMAX and Broadband were liable to the Taxing Units for the

delinquent taxes, penalties, interest, and costs. TVMAX and Broadband moved for

a new trial, arguing among other things that Broadband had never been served and

therefore the default judgment should be revoked and a new trial granted.

Default Judgment Against Broadband

In its first issue, Broadband contends that the trial court erred by entering a

default judgment against it because it was never served.

A. Standard of Review and Applicable Law

We review a trial court’s grant of a default judgment for an abuse of

discretion. Cottonwood Valley Home Owners Ass’n v. Hudson, 75 S.W.3d 601,

603 (Tex. App.—Eastland 2002, no pet.). At any time after a defendant is required

to answer, a plaintiff may take a judgment by default against the defendant if the

defendant has not previously filed an answer and the citation with proof of service

7

has been on file with the clerk of the court for ten days. TEX. R. CIV. P. 107, 239.

A no-answer default judgment operates as an admission of the material facts

alleged in the plaintiff’s petition, except for unliquidated damages. See Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).

A judgment cannot be rendered against a defendant unless he has been

properly served, accepted or waived service of process, or made an appearance.

TEX. R. CIV. P. 124. On direct appeal, there is no presumption of proper service.

Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (citing Min v. Avila, 991 S.W.2d 495, 501 (Tex. App.—Houston [1st Dist.]

1999, no pet.). Instead, the record must affirmatively show strict compliance with

the rules of service of process. Id. (citing Uvalde Country Club v. Martin Linen

Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985) (holding failure to affirmatively

show strict compliance with rules of service renders attempted service of process

invalid and of no effect)). “In that event, the recitals in a process server’s return

creates a presumption that service was performed.” Id. (citing Huffeldt v.

Competition Drywall, Inc., 750 S.W.2d 272, 273 (Tex. App.—Houston [14th Dist.]

1988, no writ)); see also Min, 991 S.W.2d at 500–01 (holding return constitutes

prima facie evidence of successful service). The return must state:

(1) the cause number and case name;

(2) the court in which the case is filed;

8

(3) a description of what was served;

(4) the date and time the process was received for service;

(5) the person or entity served;

(6) the address served;

(7) the date of service or attempted service;

(8) the manner of delivery of service or attempted service;

(9) the name of the person who served or attempted to serve the process;

(10) if the person named in (9) is a process server certified under order of the

Supreme Court, his or her identification number and the expiration date

of his or her certification; and

(11) any other information required by rule or law.

TEX. R. CIV. P. 107(b).

B. Analysis

Broadband contends that the trial court erred in entering a default judgment

because the record “does not contain a return of service or any other proof that

Broadband was served” and therefore does not show strict compliance with the

rules of service of process.

The Taxing Units correctly respond that, contrary to Broadband’s

contention, the supplemental clerk’s record contains a Citation in Delinquent Tax

suit with a signed Officer’s Return. The signed return was filed with the clerk of

the court in April 2013, nine months before the trial court signed the default

9

judgment. See TEX. R. CIV. P. 107(h). The return and its attached documents state

the cause number, case name, and court in which the case is filed. See id.

107(b)(1), (2). The return states the date and time the process was received for

service and describes what was served—the citation in delinquent tax suit and a

copy of the petition. See id. 107(b)(3), (4). It states that Broadband was served by

delivery of the citation and petition to its registered agent and provides the service

address, the name of the agent, and the time and date of service. See id. 107(b)(5)–

(8). The return is signed by Deputy M. Mount of Travis County Constable

Precinct 5. See id. 107(b)(9).

After the supplemental record including the return was made a part of the

appellate record, Broadband did not argue that it is defective in any way. We

conclude that “the recitals in [the] return create[] a presumption that service was

performed.” Sozanski, 394 S.W.3d at 604. Accordingly, we hold that the trial

court did not abuse its discretion in granting the default judgment. See TEX. R.

CIV. P. 107, 239.

We overrule Broadband’s first issue.

Broadband’s Motion for New Trial

In its second issue, Broadband contends that the trial court erred by failing to

grant Broadband’s motion for new trial to set aside the default judgment because it

10

met the test set forth in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.

1939).

A. Standard of Review and Applicable Law

“The presumption of service [raised by a filed and signed return] can be

rebutted with evidence in a motion for new trial or in a bill of review.” Sozanski,

394 S.W.3d at 604. We review a trial court’s decision to overrule a motion to set

aside a default judgment and grant a new trial for abuse of discretion. Dolgencorp

of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam); Interconex,

Inc. v. Ugarov, 224 S.W.3d 523, 536 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). Generally, before a default judgment can be set aside and a new trial

granted, the defaulting party must satisfy the three elements of the Craddock test,

i.e., (1) the defaulting party’s failure to answer or to appear was not intentional, or

the result of conscious indifference, but was due to a mistake or an accident;

(2) the defaulting party has a meritorious defense or claim; and (3) the motion is

filed at a time when the granting of a new trial will not occasion delay or work

other injury to the prevailing party. In re R.R., 209 S.W.3d 112, 114–15 (Tex.

2006); Craddock, 133 S.W.2d at 126.

To successfully challenge a default judgment, the movant must allege, and

support with sworn proof, the three Craddock requirements. Ivy v. Carrell, 407

S.W.2d 212, 214 (Tex. 1966); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642,

11

644 (Tex. App.—Fort Worth 2003, no pet.); Pickell v. Guar. Nat’l Life Ins. Co.,

917 S.W.2d 439, 443 (Tex. App.—Houston [14th Dist.] 1996, no writ). Thus, to

prevail on a motion for new trial under Craddock, the movant must (1) allege facts

and attach affidavits to a verified motion to set aside the default judgment that

would meet the three Craddock requirements or (2) present evidence at the hearing

on his motion that met those requirements. See Pickell, 917 S.W.2d at 443 (citing

Ivy, 407 S.W.2d at 213).

B. Analysis

Broadband neither supported its motion for new trial with affidavits or other

proof, nor requested a hearing at which to present evidence in support of the

motion. See Pickell, 917 S.W.2d at 443 (citing Ivy, 407 S.W.2d at 213). To

successfully challenge the default judgment under Craddock, Broadband was

required to support the allegations in its motion with evidence. See Ivy, 407

S.W.2d at 214; Kelley, 103 S.W.3d at 644; Pickell, 917 S.W.2d at 443.

On appeal, Broadband submitted the affidavit of its Chief Executive Officer,

Christian Balun, in which Balun avers, among other things, that Broadband never

received any service of citation in the underlying case from is registered agent, did

not know it had been named as a defendant, would have answered if it knew it was

named as a defendant, and does not own any of the property identified by the

appellees in the underlying lawsuit. However, the deficiencies in the record cannot

12

be cured by an affidavit executed after the case reached this Court; the affidavit is

not part of the appellate record, and we may not consider it. Barrett v. Westover

Park Comm. Ass’n, No. 01-10-01112-CV, 2012 WL 682342, at *3 (Tex. App.—

Houston [1st Dist.] Mar. 1, 2012, no pet.) (“The deficiencies in the record cannot

be cured by Barrett’s submission of affidavits executed after the case reached this

Court. Those affidavits are not a part of the appellate record, and we may not

consider them.”) (citing Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d

277, 286 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Canton–Cater v. Baylor

Coll. of Med., 271 S.W.3d 928, 931 n.2 (Tex. App.—Houston [14th Dist.] 2008, no

pet.)). Because Broadband failed to adduce evidentiary support for its motion for

new trial, we hold that the trial court did not abuse its discretion in concluding that

Broadband had not satisfied Craddock and in denying the motion for new trial.

See, e.g., Pickell, 917 S.W.2d at 443 (defendant failed to meet the burden to have

default judgment set aside by not submitting sufficient evidence to support all three

Craddock prongs).

We overrule Broadband’s second issue.

TVMAX’s Section 25.25 Motions

In its first issue, TVMAX contends that the trial court erred by entering

judgment against it while its motions to correct the appraisal rolls pursuant to Tax

Code Section 25.25 were pending with HCAD. TVMAX contends that, after it

13

filed its Section 25.25 motions, the trial court should have abated the delinquency

proceeding pending HCAD’s resolution of the motions.

A. Standard of Review

Determining whether an agency has exclusive or primary jurisdiction

requires statutory construction. Subaru of Am., Inc. v. David McDavid Nissan,

Inc., 84 S.W.3d 212, 222 (Tex. 2002). Because it is a question of law, a court

reviews de novo whether an agency has exclusive or primary jurisdiction. Id. If an

agency has exclusive jurisdiction, the trial court does not have subject matter

jurisdiction. See Ellis v. Reliant Energy Retail Servs., L.L.C., 418 S.W.3d 235, 245

(Tex. App.—Houston [14th Dist.] 2013, no pet.).

In contrast, “the primary jurisdiction doctrine requires trial courts to allow

an administrative agency to initially decide an issue when: (1) an agency is

typically staffed with experts trained in handling the complex problems in the

agency’s purview; and (2) great benefit is derived from an agency’s uniformly

interpreting its laws, rules, and regulations, whereas courts and juries may reach

different results under similar fact situations.” Butnaru v. Ford Motor Co., 84

S.W.3d 198, 208 (Tex. 2002). “[W]hen the primary jurisdiction doctrine requires a

trial court to defer to an agency to make an initial determination, the court should

abate the lawsuit and suspend finally adjudicating the claim until the agency has an

opportunity to act on the matter.” Id. Where the primary jurisdiction doctrine does

14

not require a trial court to defer to any agency to make an initial determination,

abatement is left to the trial court’s discretion. See Ellis, 418 S.W.3d at 245.

Our purpose in construing a statute is to determine the legislature’s intent.

See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). When a statute

is clear and unambiguous, we need not resort to rules of construction or extrinsic

evidence to construe it. Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex.

1983). Instead, we may determine the intent of the Legislature from the plain and

ordinary meaning of the words used within the statute. See id.

B. Applicable Law

Section 25.25(c) of the Tax Code provides that “[t]he appraisal review

board, on motion of the chief appraiser or of a property owner, may direct by

written order changes in the appraisal roll for any of the five preceding years to

correct:

(1) clerical errors that affect a property owner’s liability for a tax imposed

in that tax year;

(2) multiple appraisals of a property in that tax year;

(3) the inclusion of property that does not exist in the form or at the

location described in the appraisal roll; or

(4) an error in which property is shown as owned by a person who did not

own the property on January 1 of that tax year.”

15

TEX. TAX CODE ANN. § 25.25(c). Unless a property owner files an oath of inability

to pay and is excused from prepayment, “a property owner who files a motion

under Section 25.25 must pay the amount of taxes due on the portion of the taxable

value of the property that is the subject of the motion that is not in dispute before

the delinquency date or the property owner forfeits the right to proceed to a final

determination of the motion.” Id. § 25.26(b) (West 2015).

C. Analysis

Although TVMAX raises arguments about both primary and exclusive

jurisdiction in its brief, it does not ultimately contend that the trial court lacked

subject matter jurisdiction to adjudicate TVMAX delinquent. Instead, TVMAX

contends only that the trial court should have abated its case until its administrative

proceedings concluded and that the trial court “erred in continuing to trial while

[its] Section 25.25 protests were outstanding.” TVMAX requests that we “remand

this case to the trial court pending the outcome of [its] Section 25.25 protests.”

The Taxing Units respond that the filing of a motion under Section 25.25

does not require the trial court to abate a delinquency proceeding, because the Tax

Code provides for a refund in the event that a Section 25.25 motion results in a

correction to the tax rolls. See TEX. TAX CODE ANN. § 26.15(f) (West 2015) (“If a

correction decreases the tax liability of a property owner after the owner has paid

the tax, the taxing unit shall refund to the property owner the difference between

16

the tax paid and the tax legally due . . . .”). The Taxing Units further contend that,

regardless, TVMAX was not entitled to determination of its Section 25.25 motions,

because TVMAX did not comply with Section 25.26’s prepayment requirement

and had thereby forfeited its right to such a determination. Thus, there was thus no

forthcoming determination of the Section 25.25 motions by HCAD to which the

trial court should defer.

TVMAX did not demonstrate in its motion to abate that it filed an oath of

inability to pay the portion of the taxable value of the properties that were not in

dispute, nor did it demonstrate in its motion to abate that it had prepaid the

undisputed amount. See id. Merely filing a Section 25.25 motion with HCAD

does not entitle the movant to final determination of the motion by HCAD unless

the movant also prepays the undisputed amount of taxes or is excused from

prepayment. See TEX. TAX CODE ANN. § 25.26(b). Moreover, the tax master

found that TVMAX was delinquent with respect to all taxable amounts due for

2010, 2011, and 2012, not just a portion of the taxable amounts. These findings

were before the trial court when it entered judgment.

Thus, we conclude that the trial court did not err in implicitly finding that

TVMAX forfeited its right to proceed to a final determination by HCAD of its

Section 25.25 motions by failing to comply with Section 25.26’s prepayment

requirement. See TEX. TAX CODE ANN. § 25.26(b) (“a property owner who files a

17

motion under Section 25.25 must pay the amount of taxes due on the portion of the

taxable value of the property that is the subject of the motion that is not in dispute

before the delinquency date or the property owner forfeits the right to proceed to a

final determination of the motion”); see also Roberson v. Robinson, 768 S.W.2d

280, 281 (Tex. 1989) (appellate court implies all necessary findings in support of

the judgment). Accordingly, there was no forthcoming agency action to which the

trial court should have deferred, and we therefore hold that the trial court did not

err in refusing to abate the case and in entering judgment. See Butnaru, 84 S.W.3d

at 208; Ellis, 418 S.W.3d at 245.

We overrule TVMAX’s first issue.

Apportionment of Damages

In TVMAX’s second issue and Broadband’s third issue, they contend that

the judgment runs afoul of Texas Rule of Civil Procedure 306 because it does not

apportion the damages between them. See TEX. R. CIV. P. 306 (“The entry of the

judgment shall contain the full names of the parties, as stated in the pleadings, for

and against whom the judgment is rendered.”).

A. Applicable Law

Section 32.07(a) of the Tax Code states that, “property taxes are the personal

obligation of the person who owns or acquires the property on January 1 of the

year for which the tax is imposed . . . .” TEX. TAX CODE ANN. § 32.07(a) (West

18

2015). “A person is not relieved of the obligation because he no longer owns the

property.” Id.

The Tax Code also provides that one who purchases an interest in a business

from a person who is liable for property taxes imposed on property used in the

operation of that business “shall withhold from the purchase price an amount

sufficient to pay all of the taxes imposed on the personal property of the business,

plus any penalties and interest incurred, until the seller provides the purchaser

with:

(1) a receipt issued by each appropriate collector showing that the taxes due

the applicable taxing unit, plus any penalties and interest, have been paid; or

(2) a tax certificate issued under Section 31.08 stating that no taxes,

penalties, or interest is due the applicable taxing unit.

TEX. TAX CODE ANN. § 31.081(b) (West 2015).

There are significant consequences to a purchaser who does not withhold an

amount sufficient to pay outstanding taxes until the seller provides proof that any

outstanding taxes have been paid: the purchaser becomes liable for the outstanding

taxes “to the applicable taxing units to the extent of the value of the purchase

price . . . .” Id. § 31.081(c) (West 2015); see Dan’s Big & Tall Shop, Inc. v. Cnty.

of Dallas, 160 S.W.3d 307, 310 (Tex. App.—Dallas 2005, pet. denied) (rejecting

argument that purchaser of business, who did not withhold required amount, was

only liable for pro-rated share of ad valorem taxes imposed for year during which

19

purchaser bought business and affirming trial court’s judgment assessing the total

amount of taxes for purchase year against purchaser). Additionally, the Tax Code

provides that the seller of the business interest is not relieved of tax liability merely

because it sells the property upon which the tax was assessed. Section 31.081(f)

provides that even though a purchaser may become liable for delinquent taxes by

failing to comply with Section 31.081(b), this “does not release a person who sells

a business or the inventory of a business from any personal liability imposed on the

person for the payment of taxes imposed on the personal property of the business

or for penalties or interest on those taxes.” Id. § 31.081(f).

B. Analysis

We hold that the trial court properly concluded that TVMAX and Broadband

are jointly and severally liable for the delinquent taxes. TVMAX owned the

properties on January 1, 2010, January 1, 2011, and January 1, 2012, and TVMAX

is therefore liable for the taxes imposed in those years. See TEX. TAX CODE ANN.

§ 32.07(a) (West 2015) (“property taxes are the personal obligation of the person

who owns or acquires the property on January 1 of the year for which the tax is

imposed . . . .”). The fact that TVMAX was acquired by Broadband during 2012

does not relieve TVMAX of its obligation to pay these taxes. See id. (“A person is

not relieved of the obligation [to pay property taxes on property owned or acquired

on January 1 of the year for which the tax is imposed] because he no longer owns

20

the property.”); see also id. § 31.081(f) (purchase of business property “does not

release a person who sells a business or the inventory of a business from any

personal liability imposed on the person for the payment of taxes imposed on the

personal property of the business or for penalties or interest on those taxes.”).

Accordingly, we hold that the trial court properly concluded that TVMAX was

liable for the full amount of the delinquent taxes for each of the years 2010, 2011,

and 2012. See id. §§ 31.081(f), 32.07(a).

The same is true for Broadband. When it acquired TVMAX in 2012, it

bought TVMAX’s assets subject to any unpaid taxes, penalties, and interest. See

TEX. TAX CODE ANN. § 31.081(c) (purchaser who does not ensure that outstanding

taxes have been paid becomes liable for outstanding taxes); see also Dan’s Big &

Tall Shop, Inc., 160 S.W.3d at 309–10 (purchaser was liable for outstanding

delinquent taxes on purchased property). Broadband was required to withhold

from the purchase price an amount sufficient to pay all of the taxes imposed, plus

any penalties and interest incurred, until it received evidence that they had been

paid or none was due. See TEX. TAX CODE ANN. § 31.081(b). Because the taxes

were not paid and continued to be due, Broadband became liable for the unpaid

taxes, penalties, and interest “to the applicable taxing units to the extent of the

value of the purchase price . . . .” Id. § 31.081(c). Thus, the trial court was not

required to pro-rate Broadband’s liability and hold it liable only for delinquent tax

21

corresponding to the portion of 2012 during which Broadband owned the

properties.1 See Dan’s Big & Tall Shop, Inc., 160 S.W.3d at 310 (rejecting

argument that purchaser of business, who did not withhold required amount, was

liable only for pro-rated share of ad valorem taxes imposed for year during which

purchaser bought business and affirming trial court’s judgment assessing total

amount of taxes due against purchaser). Accordingly, we hold that the trial court

properly concluded that Broadband was liable for the full amount of the delinquent

taxes. See TEX. TAX CODE ANN. § 31.081(b); see also Dan’s Big & Tall Shop,

Inc., 160 S.W.3d at 309–10.

Having concluded that TVMAX and Broadband are jointly and severally

liable for the full amount of the delinquent taxes for each of the tax years at issue,

we overrule TVMAX’s second issue and Broadband’s third issue.

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Higley, and Huddle.

1

Broadband does not assert that the tax liability imposed exceeds the purchase

price.

22