Last year the Texas Supreme Court decided Mitchell v. MAP Resources, holding that a mineral owner whose interest was sold at a tax foreclosure could collaterally attack the judgment and introduce extrinsic evidence that he had not been properly served with notice of the suit and therefore was deprived of due process under the 14th Amendment of the US Constitution. Gill v. Hill is another such case. The El Paso Court of Appeals ruled against the plaintiff, with one judge dissenting. The Texas Supreme Court agreed to hear the case, where it is now pending.
The tax foreclosure in Gill v. Hill took place in 1999. Suit seeking to set aside the foreclosure was filed in 2019. The El Paso Court of Appeals distinguished the case from Mitchell v. MAP Resources. In both cases the taxpayer was served by posting on the courthouse door. In Mitchell, both sides moved for summary judgment, and the party seeking to set aside the foreclosure introduced extrinsic evidence that she could easily have been personally served because her name and address were in courthouse deed records and appraisal district records. In Gill v. Hill, the defendant moved for summary judgment on the ground that the suit was barred by limitations. The plaintiff alleged that he could have been personally served but did not move for summary judgment or introduce any extrinsic evidence.
The Court of Appeals held it was plaintiff’s burden to raise a fact issue on whether adequate notice of suit was given by introducing extrinsic evidence. The dissent would hold that the defendant had the burden on summary judgment to show that proper notice of the suit was given.
The Court’s opinion recognized that, at the time of the trial court’s judgment, case law provided that extrinsic evidence could not be introduced to collaterally attack a foreclosure judgment, and that the Supreme Court’s Mitchell opinion, carving out an exception to that rule for due process claims, had not yet been issued at that time.
We realize Appellants did not have the benefit of Mitchell as precedent at the time of their proceedings in the trial court. However, if they intended to rely on allegations of a due process violation as a response to a motion for summary judgment, they were required to present evidence of the alleged violation in response to Appellees’ motion…. They did not.
We will find out soon whether the Supreme Court will give the taxpayer in Hill v. Gill another chance.