Thursday, February 18, 2016

State Due Process and Due Course of Law Gives Rights in Addition to the Rights in the Tax Code

Originally published by Bob Mabry.

Charles Kirkwood v. Jefferson County and W. Properties, LLC, No. 09-15-00296-CV, 2016 WL 536852  Feb. 11, 2016 (Tex. App.– Beaumont) (no pet. h.) (mem. op.) (not designated for publication).
Justice Charles Kreger wrote this opinion for a panel including Chief Justice Steve McKeithen and the hardly ever sleeping daughter of the Diamond State Justice Leanne Johnson.
In June 2010 Jefferson County wins a judgment for unpaid property taxes against Sara Gleason. There’s no appellate record as to whether or not the County abstracted the judgment. In August, Gleason sells her property to Charles Kirkwood, who accepts responsibility for the all the delinquent taxes.
W. Properties, LLC buys the property at the March 2013 tax sale. August 2013  W. gave Kirkwood notice to vacate the premises. Kirkwood then filed for bill of a review complaining that he didn’t get notice of the sale. April 2014, the trial court pours Kirkwood out. January 2015 Kirkwood moves for new trial– trial court grants one. County moves to dismiss for lack of standing and jurisdiction– trial grants both. Kirkwood appeals the dismissal. The Ninth reverses and remands.
The County said it gave all necessary notice– paper to Gleason, on the courthouse door, on the County’s website, and the occupant of the property. It also said it didn’t need to give anybody any stinking notice. That might be true, if all the issues in this case were controlled by the tax code. Kirkwood argues, that he has additional state constitutional rights. Kirkwood says the County knew he owned the property, and took payments from Kirkwood against Gleason’s judgment.
A judgment that hurts a party’s property interest in which the party doesn’t get get notice. should be set aside.
The appellate record lacked evidence that Kirkwood was given nor got notice of the sale, nor does it show that the lack of notice was Kirkwood’s fault. An attorney’s arguments nor the pleadings or motions of a party– none of them are evidence. Kirkwood had standing.
The county claimed he County’s motion to dismiss for lack of jurisdiction. In its motion, the County claimed sovereign immunity, but, a party may sue the state for equitable relief arising out of the state’s violation of constitutional rights. Kirkwood had jurisdiction.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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