Pratap and Jaya DESAI, Appellants v. CHAMBERS COUNTY APPRAISAL DISTRICT, Appellee and Victor P. and Bonnie K. Ybarra, Appellants v. Chambers County Appraisal District, Appellee.
Nos. 14-11-00956-CV, 14-11-00957-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Aug. 7, 2012.
373 S.W.3d 295
None of these facts, however, suggest an intention or agreement by Balestri to enter into an attorney-client relationship with Kiger. Texas law is clear that one party‘s subjective beliefs are not evidence of an implied attorney-client relationship. See Valls, 314 S.W.3d at 634; Tanox, 105 S.W.3d at 254. Furthermore, even if Balestri previously represented Kiger, and we again note that Balestri attested he “never represented Kiger as his personal attorney,” Texas law provides that the attorney-client relationship terminates upon completion of the purpose of the employment, absent agreement to the contrary. Stephenson v. LeBoeuf, 16 S.W.3d 829, 836 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). There is no indication in this record of such an agreement. We also note that parties may not avoid summary judgment by relying on speculation or conjecture. See, e.g., Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 297 (Tex.App.-Beaumont 2010, pet. dism‘d); Smith v. Sw. Bell Tel. Co., 101 S.W.3d 698, 702 (Tex.App.-Fort Worth 2003, no pet.); Branson v. Spiros Partners Ltd., No. 04-07-00007-CV, 2007 WL 4547502, at *2 (Tex.App.-San Antonio, Dec. 28, 2007, no pet.) (mem. op., not designated for publication).
Kiger has not shown that Balestri ever agreed to serve as his personal attorney or that Balestri reasonably should have known Kiger was relying on him to provide legal services. Accordingly, since the summary judgment evidence fails to raise a fact issue regarding the existence of an attorney-client relationship between Kiger and Balestri, the trial court did not err by granting Balestri‘s traditional and no-evidence motions for summary judgment regarding Kiger‘s breach of fiduciary duty claim. We overrule Kiger‘s issues.
The trial court‘s judgment is affirmed.
Michael William Balcezak, Austin, TX, for Appellee.
Panel consists of Justices FROST, McCALLY, and BUSBY.
OPINION
KEM THOMPSON FROST, Justice.
In this appeal we consider the impact under the “mailbox rule” of mailing documents for filing to the district clerk at the physical address rather than a mailing address. This consolidated appeal arises from two separate suits filed by property owners in an appeal from the decisions of a county appraisal review board. The trial court granted the appraisal review board‘s respective pleas to the jurisdiction, finding that the property owners’ petitions were not timely filed because they were addressed to the physical address rather than the mailing address for the district clerk, and then returned by the postal service after the statutory deadline. We reverse and remand.
Factual And Procedural Background
Plaintiffs/appellants Victor P. and Bonnie K. Ybarra and plaintiffs/appellants Pratap and Jaya Desai (collectively, the “Property Owners“) respectively brought suits against defendant/appellee Chambers County Appraisal District1 seeking to ap
In both cases, the Appraisal District filed answers and pleas to the jurisdiction, alleging that the respective petitions were not timely filed. The Property Owners filed separate responses to the pleas to the jurisdiction and attached the following documents to each response:
- An “Order Determining Protest or Order of Dismissal” along with a “Notice of Final Order,” sent from the Appraisal District instructing the respective Property Owners how to appeal the Appraisal District‘s decision;
- A copy of a cover letter to the district clerk and a copy of the mailing envelope, both reflecting the date of the attempted mailing;
- A copy of the first page of the petition, bearing the e-filing date of August 24, 2011;
- A document, entitled “2011 Texas Attorney‘s/Paralegal‘s Secretary‘s Handbook” and associated with a website related to Chambers County government, reflecting, on the first page, the address of the “Courthouse, 404 Washington Street, Anahuac, TX 77514” and the address of District Clerk Patti L. Henry “Anahuac-P.O. Drawer NN, 77514.” The second page of the document reflects two addresses and two phone numbers for District Clerk Patti Henry, each one set out in separate untitled columns: the first address is “404 Washington Avenue, Anahuac, TX 77514“; and the second address is “P.O. Box NN Anahuac, TX 77514“; and
- An affidavit of counsel in which counsel states he sent the petitions by first-class United States mail on August 22, 2011, in an envelope with the correct postage affixed, addressed to the proper clerk and sent to the address of the clerk‘s office.
The trial court conducted a single hearing on both of the Appraisal District‘s pleas to the jurisdiction. It is undisputed that the statutory deadline for filing suit under the
The parties’ arguments turned on whether the petitions were “properly addressed” pursuant to Rule 5 of the Texas Rules of Civil Procedure, commonly referred to as the “mailbox rule,” when the Property Owners mailed the petitions to the physical address of the district clerk instead of a mailing address for the district clerk. The Property Owners referred to documents attached to their responses as evidence that the Property Owners mailed their petitions within the statutory limitations period. The Property Owners, through their counsel, mailed the petitions to the following address, as reflected on the outside envelopes:
Ms. Patti Henry, District Clerk, Chambers Cty.
Attn: Civil Filings
404 Washington Street
Anahuac, Texas 77514
The United States Postal Service returned the mailings to counsel‘s office on August 24, 2011. Each returned mailing reflected that the city, state, and zip code were marked through, and each returned mailing was stamped “Returned to Sender” with a handwritten “X” placed in a box beside the phrase “No Street Delivery,” as reflected below:
Counsel then filed the petitions electronically with the district clerk on August 24, 2011, and confirmed electronic filing.
The Appraisal District argued that the petitions were not “properly addressed” as contemplated by Rule 5, because the petitions should have been sent to the mailing address of the district clerk, a post office drawer, instead of the physical location of the district clerk at the courthouse. The Appraisal District referred to a document, which is not included in the record, apparently printed from the Chambers County website, identifying both a physical address (the address on Washington Street) and a different address (a P.O. Drawer) for the district clerk, apparently under the heading, “Mailing Address.” The Appraisal District also pointed to its copy of the Texas Legal Directory for Chambers County, purportedly reflecting a mailing address for the district clerk as a post-office box. This publication is not included in the appellate record either.
At the hearing, counsel for the Property Owners stated that a person in his office placed a call to the district clerk before mailing the documents to confirm that the district clerk‘s address is “404 Washington Street.” Counsel also stated that on the morning of the hearing, he walked to the physical address of the district clerk‘s office on 404 Washington Street, where the district clerk accepted for filing copies of the Property Owners’ responses to the pleas, which previously had been filed electronically.
The trial court took judicial notice that the United States Postal Service does not deliver mail to the district clerk at the physical address on Washington Street and that the district clerk‘s mailing address is a postal drawer in the post office that is directly across the street from the courthouse. The trial court noted that a person can walk to the physical address of the clerk‘s office on Washington Street to
Issues Presented
In two issues, the Property Owners assert that the trial court erred in granting the Appraisal District‘s pleas to the jurisdiction and dismissing the cases as untimely filed because
Analysis
As reflected in the record and giving rise to the Property Owners’ suits, the Appraisal District sent an “Order Determining Protest or Order of Dismissal” along with a “Notice of Final Order” to the respective Property Owners, who received both documents on June 23, 2011. These documents are substantially the same for both the Ybarras and the Desais. The Notice of Final Order informs the Property Owners of the right to appeal the appraisal board‘s determination of a protest pursuant to chapter 41 of the
To appeal such an order to [the] district court, a party must file a petition for review with the district court within 60 days after the party receives notice that a final order has been entered from which an appeal may be had or at any time after the hearing but before the 60-day deadline.
Additionally, the notice of final order reflects the following, in pertinent part:
For more information regarding appeal to district court, you should consult Texas Tax Code, Chapter 42 and the clerk of the court. If you need legal advice, you should consult an attorney.
Chapter 42 of the
A party who appeals as provided by this chapter must file a petition for review with the district court within 60 days after the party received notice that a final order has been entered from which an appeal may be had or at any time after the hearing but before the 60-day deadline. Failure to timely file a petition bars any appeal under this chapter.
At the hearings on the pleas to the jurisdiction, the Appraisal District referred to the petitions giving rise to the suits, reflecting the electronic filing date of August 24, 2011, two days beyond the statutory deadline. The Appraisal District argued that the petitions were not timely filed pursuant to section 42.21(a). According to the Appraisal District, the untimely-filed petitions were a jurisdictional bar to the suits, warranting dismissal.
The Property Owners relied on the “mailbox rule” to show that the mailed petitions were timely filed within the statutorily prescribed deadline set forth in section 42.21(a). The “mailbox rule“, established in Rule 5 of the Texas Rules of Civil Procedure, entitled, “Enlargement of Time,” provides in relevant part:
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day of filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United Stated Postal Service shall be prima facie evidence of the date of mailing.
The Desais claimed to have mailed their petition on August 19, 2011, and the Ybarras claimed to have mailed their petition on August 22, 2011; the Property Owners referred to the documents attached to their response for support that the petitions were timely filed. The Appraisal District contends on appeal that the documents attached to the Property Owners’ responses were not offered into evidence at the hearing and not properly authenticated; consequently, the Appraisal District argues, this court should not consider these documents in our appellate review. The issues raised in a dilatory plea, such as a plea to the jurisdiction, are often such that that they cannot be resolved without hearing evidence. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because the trial court cannot act without determining whether it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue, a procedure that is generally similar to summary-judgment proceedings. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at 555. The trial court was free to consider, just as this court may review, the evidence attached in response to the pleas to the jurisdiction, which do not implicate the merits of the Property Owners’ causes of action, for purposes of resolving the jurisdictional dispute. See Miranda, 133 S.W.3d at 227; Bland, 34 S.W.3d at 555.
The “Notice of Final Order” sent to the Property Owners instructs them to consult chapter 42 of the Texas Tax Code and the clerk of the court for “more information regarding appeal to district court.” Chapter 42 of the Texas Tax Code instructs “a party who appeals as provided by this chapter must file a petition for review with the district court.” But, chapter 42 does not reflect an address for the district clerk in any county. See
The undisputed evidence demonstrates that the petitions were addressed to the proper clerk and sent by first-class United States mail in a properly stamped envelope. See
The term “properly addressed” is not defined. The parties have not cited and research has not revealed any cases in which the Supreme Court of Texas or this court has considered what a “proper address” under Rule 5 entails. The Amarillo Court of Appeals has determined that the term “address,” in the context of Rule 5, means “mailing address,” relying in part on postal regulations to reach its conclusion. Judkins v. Davenport, 59 S.W.3d 689, 690 (Tex.App.-Amarillo 2000, no pet.). Under this rationale, an envelope reflecting the incorrect zip code that nevertheless reached the clerk for timely filing satisfies Rule 5 because the Domestic Mail Manual provides “additional guidance” that a zip code may be omitted “from pieces mailed by the general public at the single-piece rates for First-Class Mail and from pieces bearing a simplified address.” Id. at 690-91 (quoting 39 C.F.R. § 111.5 (2000)). Although the Domestic Mail Manual may prove instructive in considering whether an envelope has been properly addressed, it is by no means the sole determinant in whether a party has satisfied Rule 5. See White v. Dietrich Indus., Inc., 554 F.Supp.2d 684, 689 (E.D.Tex. 2006) (disapproving of Judkins on the basis that Rule 5 does not limit “properly addressed” mail to mail in conformity with the Domestic Mail Manual‘s requirements). Other Texas courts have interpreted “properly addressed” to mean “sufficiently specific as to be timely received at the proper place.” Moore v. State, 840 S.W.2d 439, 441 (Tex.Crim.App. 1992) (interpreting Rule 9.2 of the Texas Rules of Appellate Procedure, formerly Rule 4(b), which contains substantially the same language as Rule 5); see also White, 554 F.Supp.2d at 690. The case at hand is factually distinguishable from Judkins because the Property Owners provided the correct zip code and correct physical address of the district clerk‘s office, where the district clerk receives legal documents for filing.
The district clerk‘s office on 404 Washington Street is a proper place for the district clerk to receive the Property Owners’ petitions; the record reflects that at
The trial court‘s judgment is reversed and this case is remanded to the trial court for further proceedings in accordance with this opinion.