Huntley Fort Gill, Robyn G. Attaway, and Miriam G. Stirn v. David Hill, Individually and D/B/A Doh Oil Company

Supreme Court of Texas
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No. 22-0913
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Huntley Fort Gill, Robyn G. Attaway, and Miriam G. Stirn,
Petitioners,

v.

David Hill, Individually and d/b/a DOH Oil Company,
Respondent

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On Petition for Review from the
Court of Appeals for the Eighth District of Texas
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Argued January 9, 2024

JUSTICE HUDDLE delivered the opinion of the Court.

The successors in interest of various mineral-rights holders sued
in 2019 for a declaration that a 1999 judgment foreclosing on their
predecessors’ property for delinquent taxes is void. They contend there
was constitutionally inadequate notice of the foreclosure suit, so, their
argument goes, the foreclosure judgment and the tax sale that followed
both are void, and they should be adjudged the mineral interests’
rightful owners.
The current owners sought traditional summary judgment based
on the Tax Code’s command that an action relating to the title to
property against the purchaser of the property at a tax sale may not be
commenced later than one year after the date that the deed executed to
the purchaser at the tax sale is filed of record. See TEX. TAX CODE
§ 33.54(a)(1). We must decide whether summary judgment based on this
statute of limitations was proper despite the nonmovant’s assertion that
the underlying judgment and tax sale, the recording of which ordinarily
would trigger the running of the one-year limitations period, are
themselves void for lack of constitutionally required due process.
We hold that under Draughon v. Johnson, the nonmovant seeking
to avoid the limitations bar by raising a due-process challenge bears the
burden to adduce evidence raising a genuine issue of material fact about
whether the underlying judgment is actually void for lack of due process.
Because the nonmovant here adduced no such evidence, the trial court
correctly granted summary judgment based on Section 33.54(a)(1).
But that is not the end of this story. The law governing this case
has undergone meaningful refinement since the summary-judgment
proceedings took place. Since that time, this Court decided two cases
crucial to our analysis: Draughon, which addressed the burden of proof
when summary judgment is sought based on a statute of limitations;
and Mitchell v. MAP Resources, Inc., which clarified the types of
evidence that can be used in a collateral attack such as this. Given these
recent and substantial developments in the relevant law, we remand
this case to the trial court for further proceedings in the interest of
justice.

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I. Background
In 1998, Pecos-Barstow-Toyah Independent School District,
Reeves County, and Reeves County Hospital District sued over 250
defendants who owned property in Reeves County. The attorney for
these taxing entities filed a citation-by-posting affidavit claiming that
the names and residences of the owners of the properties were unknown
and could not be ascertained after diligent inquiry. The property owners
were all represented by the same attorney ad litem, who was appointed
just eight days before trial. After a bench trial, the trial court rendered
judgment in February 1999, authorizing the properties’ foreclosure.
James W. Gill and Gale T. Goss (collectively, Gill) owned mineral
interests that were subject to the foreclosure judgment.
The following month, David Hill d/b/a DOH Oil Company
purchased at auction the foreclosed mineral interests previously owned
by Gill. The conveyance was by a sheriff’s tax deed dated April 6, 1999.
The sheriff’s deed was filed the same day and recorded on April 8.
Twenty years later, in 2019, Gill’s successors in interest, whom
we will call the Gill Parties, sued to have the foreclosure judgment
declared void for lack of due process and to quiet title to the mineral
interests in their names. They allege that the 1999 judgment was void
due to “a complete failure of service of citation” on the defendants in the
foreclosure suit.
Hill moved for summary judgment, arguing that the one-year
statute of limitations in the Texas Tax Code for challenges to property
sold in a tax sale barred the suit. See TEX. TAX CODE § 33.54(a)(1) (“[A]n
action relating to the title to property may not be maintained against

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the purchaser of the property at a tax sale unless the action is
commenced . . . before the first anniversary of the date that the deed
executed to the purchaser at the tax sale is filed of record . . . .”). In
support, Hill attached a copy of the sheriff’s deed showing that it was
recorded on April 8, 1999. The Gill Parties responded that the Tax
Code’s statute of limitations did not apply because the defendants in the
foreclosure suit were not properly served and, thus, the foreclosure
judgment, tax sale, and resulting deed are void. However, the Gill
Parties did not present any evidence to support these arguments. The
trial court granted Hill’s motion for summary judgment. The Gill
Parties appealed.
A divided court of appeals affirmed. The majority held that the
sheriff’s deed conclusively established the accrual date for limitations,
so the burden shifted to the Gill Parties to adduce evidence raising a
genuine issue of material fact as to whether there was a due-process
violation that could render the statute of limitations inoperable. 658
S.W.3d 618, 624 (Tex. App.—El Paso 2022). Because the Gill Parties
relied only on their arguments and presented no evidence of a
due-process violation, the majority concluded, Hill was entitled to
summary judgment. Id. at 626–27. The dissenting justice would have
held that it was Hill’s burden, as the movant, to conclusively prove that
no due-process violation occurred and that the statute of limitations
applied. Id. at 632 (Palafox, J., dissenting). The Gill Parties petitioned
for review, which we granted.

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II. Applicable Law
A. Due Process
The Fourteenth Amendment to the United States Constitution
protects the citizens of Texas by preventing the State from depriving
“any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1. Article I, Section 19 of the Texas Constitution
similarly protects a citizen from being deprived of “life, liberty, [or]
property . . . except by the due course of the law of the land.” TEX.
CONST. art. I, § 19 (emphasis added). As in Mitchell v. MAP Resources,
Inc., a case involving similar issues, the parties in this case have “not
identified any differences in text or application that are relevant to the
issues raised here, so we treat the requirements of both Constitutions
as identical for purposes of this opinion.” 649 S.W.3d 180, 188 n.7 (Tex.
2022).
To afford due process, “the government [must] provide the owner
[of property to be taken] ‘notice and opportunity for hearing appropriate
to the nature of the case.’” Jones v. Flowers, 547 U.S. 220, 223 (2006)
(quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313
(1950)). The adequacy of this notice is not judged by whether actual
notice was provided but by whether the government appropriately
attempted to provide actual notice. See Dusenbery v. United States, 534
U.S. 161, 170 (2002) (explaining that “the Due Process Clause does not
require . . . heroic efforts by the Government” to assure the notice’s
delivery); Mullane, 339 U.S. at 315 (“The means employed [in pursuing
notice] must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it.”). Of course, actual notice is

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preferable, but if a property owner cannot be “reasonably identif[ied],”
constructive notice can satisfy due process. Mitchell, 649 S.W.3d at 190
(citation omitted); see also In re E.R., 385 S.W.3d 552, 559 (Tex. 2012)
(“For missing or unknown persons, service by . . . ‘indirect and even . . .
probably futile’ means did not raise due process concerns.” (quoting
Mullane, 339 U.S. at 317)).
B. Summary Judgment on Limitations
“The standard for reviewing a summary judgment under Texas
Rule of Civil Procedure 166a(c) is whether the successful movant at the
trial level carried its burden of showing that there is no genuine issue of
material fact and that judgment should be granted as a matter of law.”
KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999). “A defendant moving for summary judgment on
the affirmative defense of limitations has the burden to conclusively
establish that defense.” Id. Furthermore, to succeed on limitations at
the summary-judgment stage, the movant “must also conclusively
negate application of the discovery rule and any tolling doctrines
pleaded as an exception to limitations.” Draughon v. Johnson, 631
S.W.3d 81, 85 (Tex. 2021) (quoting Erikson v. Renda, 590 S.W.3d 557,
563 (Tex. 2019)).
However, a summary-judgment movant does not have the burden
of proof to negate every potential challenge to a limitations defense.
While this case was on appeal, we addressed the placement of the
burdens of proof in such cases in Draughon and established the following
rule: “The defendant has the burden regarding any issues raised that
affect the running of limitations, while the plaintiff has the burden to

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raise a fact issue on equitable defenses that defeat limitations even
though it has run.” Id. at 88.
Draughon establishes that the movant seeking traditional
summary judgment has the burden of proof on issues that affect whether
limitations has in fact run. So if the nonmovant challenges the date on
which the limitations period began or argues that limitations did not
expire before suit was filed (due to tolling or some other doctrine), a
movant must conclusively disprove the nonmovant’s allegations to carry
its summary-judgment burden. However, if the nonmovant instead
asserts that the statute of limitations cannot operate to bar the suit even
if the limitations period has expired, then the nonmovant bears the
burden to raise a fact issue in support of that assertion. Id. at 89; see
also 658 S.W.3d at 627 (Alley, J., concurring) (“[T]he plaintiff carries the
burden to present some evidence in its summary judgment response to
support certain doctrines that avoid a statute of limitations defense.”).
The parties here did not have the benefit of Draughon at the time of the
summary-judgment proceedings.
Nor did they have the benefit of our decision in Mitchell, a case
arising from the same 1999 foreclosure suit for delinquent taxes that
resulted in the judgment at issue here. As here, the former property
owner’s successors in that case asserted that the foreclosure judgment
was void for lack of due process, and the current owners argued in a
summary-judgment motion that the suit was barred by limitations. 649
S.W.3d at 183–84. Unlike here, however, the successors also sought
summary judgment and presented evidence—“warranty deeds on file in
the public records at the time of the foreclosure suit”—showing an

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address at which the former property owner, their predecessor in
interest, could have been reached and notified of the foreclosure suit. Id.
at 186. Mitchell held that these public deeds and tax records were not
“extrinsic evidence” and thus should have been considered by the trial
court in determining whether service on the former property owner by
publication satisfied due process. Id. at 190–91. And Mitchell rejected
the argument that the statute of limitations would bar the suit even if
notice was constitutionally inadequate, concluding that “state statutory
requirements must give way to constitutional protections.” Id. at 194.
We concluded that notice by posting was inadequate for a property
owner whose address was filed in the public property records, and,
accordingly, we reversed the trial court’s grant of summary judgment
based on the Tax Code’s statute of limitations. Id. at 197.
III. Analysis
The Gill Parties argue that a statute-of-limitations defense
cannot bar their attack on the 1999 foreclosure judgment because that
judgment was obtained without affording their predecessors, the
defendants in that suit, constitutionally required due process in the form
of notice of the suit. They argue that Hill, as the summary-judgment
movant, bore the burden to conclusively negate their assertion that the
1999 judgment and resulting deed are void by proving notice of the suit
satisfied due process. In the alternative, the Gill Parties argue that we
should take judicial notice of the facts in Mitchell and hold, without
regard to the record in this case, that there is a fact issue here regarding
whether their predecessors were afforded constitutionally adequate
notice of the 1999 foreclosure suit. Hill contests all these assertions and

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also contends that the Gill Parties waived their burden-of-proof
argument by failing to assert it below. We begin with the waiver
argument and address each other issue in turn.
A. There was no waiver.
Throughout this suit, the Gill Parties have challenged Hill’s
entitlement to summary judgment on limitations and argued that the
1999 judgment and resulting tax sale did not satisfy due-process
requirements. But Hill contends that the Gill Parties waived their
argument about which party bore the burden of proof regarding these
due-process complaints in the context of a traditional motion for
summary judgment by not timely raising it in their briefs in the court of
appeals. Requiring parties to first raise issues in the lower courts
preserves judicial resources and promotes fairness among litigants. See
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). But briefs do not have to
perfectly articulate every point of law to preserve arguments that are
fairly subsumed in the issue addressed. Indeed, one of this Court’s
common refrains is that briefing waiver is generally disfavored. See Los
Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 780 (Tex.
2021); see also Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)
(“Appellate briefs are to be construed reasonably, yet liberally, so that
the right to appellate review is not lost by waiver. Simply stated,
appellate courts should reach the merits of an appeal whenever
reasonably possible.” (citations omitted)).
The Gill Parties’ argument that it was Hill’s summary-judgment
burden to conclusively establish the validity of the 1999 judgment and
resulting tax sale is fairly subsumed in their issues asserting that the

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judgment and sale were void and that Hill failed to establish that he was
entitled to summary judgment. Construing the Gill Parties’ briefing
“reasonably, yet liberally,” Perry, 272 S.W.3d at 587, we hold that there
was no waiver. We therefore consider whether Hill bore the burden, in
a traditional summary-judgment posture, to establish that posted notice
of the 1999 foreclosure suit was constitutionally adequate and thus
establish that Section 33.54(a) bars the suit.
B. Hill carried his summary-judgment burden.
The Gill Parties’ suit undoubtedly is an “action relating to the
title to property . . . against the purchaser of the property at a tax sale.”
TEX. TAX CODE § 33.54(a). Under Section 33.54(a), the suit is barred
unless it was commenced within one year of “the date that the deed
executed to the purchaser at the tax sale [was] filed of record.” Id.
§ 33.54(a)(1). Hill, in moving for summary judgment, bore the burden
to conclusively establish his defense. See KPMG Peat Marwick, 988
S.W.2d at 748. Hill adduced the sheriff’s deed as evidence establishing
that it was filed on April 6, 1999, and recorded on April 8. Thus, Hill
carried his burden to conclusively establish that the Tax Code’s one-year
limitations period expired in April 2000—some nineteen years before
the Gill Parties brought this suit.
The crux of the parties’ dispute is whether Hill had to prove
anything more to obtain summary judgment. Hill claims he did not. But
the Gill Parties contend Hill also bore the burden to negate their claim
that the 1999 foreclosure judgment is void because it was obtained based
on constitutionally inadequate notice. Put differently, the Gill Parties
contend Hill had to prove that the foreclosure judgment that gave rise

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to the tax sale by which Hill obtained the mineral interests comports
with constitutional due-process requirements. We agree with Hill—
under the framework set out in Draughon, the burden of proof was on
the nonmovant to raise a fact issue on whether the foreclosure judgment
was void.
Draughon was a quiet-title action in which the plaintiff argued
that a warranty deed was invalid due to his mental incapacity at the
time of signing. 631 S.W.3d at 85–86. However, the defendant moved
for summary judgment under the general four-year statute of
limitations. Id. at 86. The plaintiff argued that the defendant had the
burden at the summary-judgment stage to disprove his assertion that
the running of limitations was tolled while under a legal disability of
“unsound mind.” Id. at 94; see TEX. CIV. PRAC. & REM. CODE
§ 16.001(a)(2), (b). The Court held that the defendant, as the
summary-judgment movant on limitations, had the burden to disprove
unsound-mind tolling. Draughon, 631 S.W.3d at 97. But we noted that
the burden of proof on a defense against limitations is not always on the
movant.
Instead, we explained that there are two types of defenses against
limitations with differing burdens of proof. Affirmative defenses like
unsound-mind tolling that argue that certain days within the
limitations period should not be counted place the burden of proof on the
movant. Id. at 88. But affirmative defenses that concede the limitations
period expired yet argue limitations should not bar the suit place the
burden of proof on the nonmovant. See id. at 89. Ultimately, the

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distinction Draughon draws is between defenses that avoid the statute
of limitations entirely and those that toll certain days.
In this case, the Gill Parties argue that, although many years
have passed since the 1999 deed was recorded, the suit should not be
time-barred because the underlying foreclosure judgment was procured
in violation of due-process requirements and is thus void and incapable
of triggering the Section 33.54(a) limitations clock. This more closely
resembles the second Draughon category in that it is an argument for
avoiding the statute of limitations altogether rather than an argument
that certain days within the limitations period should not count. See
Draughon, 631 S.W.3d at 88–89. The Gill Parties raise a defense that,
if established, would “defeat limitations even though it has run.” Id. at
88. Under Draughon, it was their burden to present evidence raising a
fact issue whether the foreclosure judgment was, in fact, void. They
failed to meet that burden because they adduced no evidence that notice
of the 1999 suit was constitutionally inadequate so as to render the
judgment void.
The Gill Parties argue we should nevertheless hold that a fact
issue exists. They urge the Court to do so by taking judicial notice of the
facts in Mitchell. They insist that our conclusion that notice was
constitutionally inadequate for one of the property-owner defendants in
Mitchell allows us to conclude it was so for others. But whether due
process was afforded to a particular defendant is an individualized
inquiry, and the facts that made notice by posting insufficient for the
petitioners’ predecessors in Mitchell do not necessarily make notice by
posting improper for Gill.

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The inquiry undergirding the adequacy of due process is
individualized to the circumstances of the person to whom notice is
directed. See Tulsa Pro. Collection Servs., Inc. v. Pope, 485 U.S. 478, 484
(1988) (“[A]s Mullane itself made clear, whether a particular method of
notice is reasonable depends on the particular circumstances.”). The
Gill Parties suggest that the facts in Mitchell show a lack of diligence by
the taxing entities and that this supports a finding that notice was
inadequate for all defendants. But the appropriate level of diligence
needed to satisfy due process is an individualized inquiry. If the
evidence shows that Gill was nowhere to be found after a diligent
inquiry, then alternative service by posting may have sufficed. See
Mullane, 339 U.S. at 318 (distinguishing the appropriate notice for those
“whose interests or addresses” are unknown); Walker v. City of
Hutchinson, 352 U.S. 112, 116 (1956) (“[I]n some cases it might not be
reasonably possible to give personal notice, for example where people
are missing or unknown.”); see also Mitchell, 649 S.W.3d at 189–90
(discussing what distinguishes the adequacy of notice by posting versus
notice by service). Unlike the petitioners in Mitchell, the Gill Parties
adduced no individualized proof regarding the ease or difficulty with
which Gill could have been located and served.
In any event, taking judicial notice of the facts in Mitchell would
be inappropriate. An appellate court may take judicial notice of a
relevant fact that is either generally known within the trial court’s
territorial jurisdiction or can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned. Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); see TEX.

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R. EVID. 201(b). The question of whether a particular type of notice
comports with due-process requirements is neither generally known nor
the kind of fact that is capable of being judicially noticed. We hold that
the trial court correctly granted summary judgment.
Having concluded that the trial court’s summary judgment was
proper, we would typically reinstate the trial court’s judgment. But the
events surrounding this case have not been typical. Indeed, the law
governing this case has developed in two meaningful respects since the
summary-judgment proceedings. Both Draughon and Mitchell were
decided after the trial court granted summary judgment. Both cases
clarified relevant questions: (1) which side bears the burden to
demonstrate a due-process violation that renders a statute of limitations
inoperable? and (2) what evidence is admissible to prove such a
violation?
The Texas Rules of Appellate Procedure permit a remand when
justice requires, see TEX. R. APP. P. 60.2(f), 60.3, which we have employed
based on intervening developments in the controlling law. See, e.g.,
Rogers v. Bagley, 623 S.W.3d 343, 358 (Tex. 2021) (remanding to the
trial court “[b]ecause our decision today substantially clarifies [a] novel
issue”); Carowest Land, Ltd. v. City of New Braunfels, 615 S.W.3d 156,
159 (Tex. 2020) (similar); Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex. 1993)
(similar). Because of Draughon’s and Mitchell’s meaningful import for
this case, we conclude that a remand in the interest of justice is
appropriate.

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IV. Conclusion
Hill satisfied his summary-judgment burden to conclusively show
that the one-year statute of limitations expired before this suit was filed.
The Gill Parties bore the burden to raise a genuine issue of material fact
as to whether the 1999 judgment was void because it was obtained
without constitutionally adequate notice, in violation of Gill’s
due-process rights. The Gill Parties adduced no such evidence;
accordingly, the trial court correctly granted summary judgment on
Hill’s limitations defense.
Nevertheless, because the summary-judgment proceedings took
place without either side having the benefit of our decisions in Draughon
or Mitchell, both of which substantially clarified the applicable law and
likely would have affected the parties’ motion practice, we vacate the
lower courts’ judgments and remand the case to the trial court for
further proceedings. See TEX. R. APP. P. 60.2(f).

Rebeca A. Huddle
Justice

OPINION DELIVERED: April 26, 2024

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