                                                                                       ACCEPTED
                                                                                   06-18-00016-CV
                                                                         SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                                 6/4/2018 12:00 AM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK

                              06-18-00016-CV

                    IN THE COURT OF APPEALS          FILED IN
                                               6th COURT OF APPEALS
                 FOR THE SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
                                                          6/4/2018 9:54:00 AM
                                                              DEBBIE AUTREY
                                                                  Clerk
  KILGORE INDEPENDENT SCHOOL DISTRICT; REGGIE HENSON,
   TREY HATTAWAY, SCOTT MONTGOMERY, KARL RILEY, JOHN
  SLAGLE, DERECK BORDERS, AND JIMMY KINSEY, in their official
capacities as members of the Board of Trustees of Kilgore Independent School
 District; AND CARA COOKE, in her Official Capacity as Superintendent of
                   Kilgore Independent School District;

                                         Appellants and Cross-Appellees,

                                    V.

          DARLENE AXBERG, JOHN CLAUDE AXBERG AND
                     SHEILA ANDERSON,

                                         Appellees and Cross-Appellants.


                     BRIEF OF CROSS-APPELLEES


                                         Dennis J. Eichelbaum
                                         Texas Bar No. 06491700
                                         dje@edlaw.com
                                         Lead Counsel
                                         Andrea L. Mooney
                                         Scott W. Thomas
                                         Eichelbaum Wardell
                                         Hansen Powell & Mehl, P.C.
                                         5801 Tennyson Parkway, Suite 360
                                         Plano, Texas 75024
                                         (972) 377-7900
ORAL ARGUMENT REQUESTED                  (972) 377-7277 (facsimile)
                                06-18-00016-CV

                     IN THE COURT OF APPEALS
                  FOR THE SIXTH DISTRICT OF TEXAS


  KILGORE INDEPENDENT SCHOOL DISTRICT; REGGIE HENSON,
   TREY HATTAWAY, SCOTT MONTGOMERY, KARL RILEY, JOHN
  SLAGLE, DERECK BORDERS, AND JIMMY KINSEY, in their official
capacities as members of the Board of Trustees of Kilgore Independent School
 District; AND CARA COOKE, in her Official Capacity as Superintendent of
                   Kilgore Independent School District;

                                                Appellants and Cross Appellees,

                                          V.

           DARLENE AXBERG, JOHN CLAUDE AXBERG AND
                      SHEILA ANDERSON,

                                                Cross Appellants and Appellees.

              IDENTITIES OF PARTIES AND COUNSEL
   _____________________________________________________________

PARTIES                                     COUNSEL
Cross-Appellees:                            Dennis J. Eichelbaum
Reggie Henson                               Texas Bar No. 06491700
Trey Hattaway                               dje@edlaw.com
Scott Montgomery                            Andrea L. Mooney
Karl Riley                                  Texas Bar No. 24065449
John Slagle                                 alm@edlaw.com
Dereck Borders                              Scott W. Thomas
Jimmy Kinsey                                Texas Bar No. 24075624
In their Official Capacities as members     swt@edlaw.com
of the Board of Trustees of Kilgore         Eichelbaum Wardell
Independent School District, and            Hansen Powell & Mehl, P.C.
Cara Cooke, in her Official Capacity        5801 Tennyson Parkway, Suite 360
as Superintendent of Kilgore                Plano, Texas 75024


                                          -i-
Independent School District                    (972) 377-7900
                                               (972) 377-7277 (facsimile)

Cross-Appellants 1:                             Counsel
Darlene Axberg, John Claude Axberg,            John B. Scott
and Sheila Anderson                            Texas Bar No. 17901500
                                               Timothy M. Hoch
                                               Texas Bar No. 09744950
                                               Daniel R. Smith
                                               Texas Bar No. 24013525
                                               Jonathan Mitchell
                                               Texas Bar No. 24075463
                                               Forrest Smith
                                               Texas Bar No. 18705000




1
    The Intervenor State of Texas did not file a cross appeal.

                                           - ii -
                                             TABLE OF CONTENTS
                                                                                                                   Page

IDENTITIES OF PARTIES AND COUNSEL .........................................................................i

INDEX OF AUTHORITIES..............................................................................................iv

STATEMENT OF THE CASE ...........................................................................................v

REQUEST FOR ORAL ARGUMENT ................................................................................. v

STATEMENT REGARDING ORAL ARGUMENT ..............................................................vi

ISSUE PRESENTED.......................................................................................................vi

STATEMENT OF FACTS.................................................................................................1

SUMMARY OF THE ARGUMENT ....................................................................................3

ARGUMENT .................................................................................................................4

PRAYER FOR RELIEF ....................................................................................................6

CERTIFICATE OF SERVICE ............................................................................................7

CERTIFICATE OF COMPLIANCE ....................................................................................8




                                                          - iii -
                            TABLE OF AUTHORITIES

A.C. Collins Ford, Inc. v. Ford Motor Co.,
 807 S.W.2d 755 (Tex. App.—El Paso 1990, writ denied) ………………… 5

Elder v. Bro, 809 S.W.2d 799,
 (Tex. App.—Houston [14th Dist.] 1991, writ denied) ……………………. 5

Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602 (Tex. 2012) ………........... 4

Fredonia State Bank v. Gen. Am. Life Ins. Co.,
881 S.W.2d 279 (Tex. 1994) ………………………………………………… 5

Henry S. Miller Mgt. Corp. v. Houston State Assoc.,
792 S.W.2d 128 (Tex. App.—Houston [1st Dist.] 1990, writ denied) ……… 5

Kilgore Indep. Sch. Dist. v. Axberg,
535 S.W.3d 21 (Tex. App.—Texarkana 2017, no pet.) ………………. 1, 2, 4

King v. Graham Holding Co., 762 S.W.2d 296 (Tex. App. 1988)…………… 5


Texas Rule of Appellate Procedure 39 ………………………………………. v




                                      - iv -
                             STATEMENT OF THE CASE

Nature of the case:        Darlene Axberg, John Claude Axberg, and Sheila
                           Anderson (“Cross-Appellants”) sued Appellants Kilgore
                           Independent School District (“KISD”), Reggie Henson,
                           Trey Hattaway, Scott Montgomery, Karl Riley, John
                           Slagle, Dereck Borders, Jimmy Kinsey, and Cara Cooke
                           over a Local Option Homestead Exemption (“LOHE” or
                           “OHE”).

Course of proceedings:     Appellants KISD, Reggie Henson, Trey Hattaway, Scott
                           Montgomery, Karl Riley, John Slagle, Dereck Borders,
                           Jimmy Kinsey, and Cara Cooke filed a motion to dismiss
                           and plea to the jurisdiction based upon statutory, official,
                           and governmental immunity. The trial court denied the
                           motion and plea, and on interlocutory appeal this Court
                           dismissed all but KISD and remanded the case.

Trial court disposition:   The trial court thereafter dismissed the individual KISD
                           Defendants, then separately granted summary judgment
                           in favor of Cross-Appellants, finding the statute
                           retroactive, and granting relief against all Appellants.

                           REQUEST FOR ORAL ARGUMENT

      It is unclear why Appellants have requested oral argument when they claim

to only seek to preserve error. Nonetheless, should Appellants be granted oral

argument, only then do Cross-Appellees Reggie Henson, Trey Hattaway, Scott

Montgomery, Karl Riley, John Slagle, Dereck Borders, Jimmy Kinsey, and Cara

Cooke, pursuant to Texas Rule of Appellate Procedure 39, request oral argument in

this appeal.




                                         -v-
                   STATEMENT REGARDING ORAL ARGUMENT

      Oral argument with respect to Cross-Appellants’ interest in preserving error

should be unnecessary. Cross-Appellants have the right to preserve error, and have

properly and professionally not asked this Court to review its own previous

judgment. Oral argument is not necessary, but Cross-Appellees wish to participate

if the Court grants oral argument on the Cross-Appellants’ petition.

                           ISSUE PRESENTED FOR REVIEW

Cross-Appellants’ Issue:        Are the individual defendants acting ultra vires by
                                collecting property taxes in violation of state law?




                                        - vi -
                            STATEMENT OF FACTS

1.    Cross-Appellees fully incorporate herein the statement of facts contained in

Appellants’ Brief filed with this Court on May 1, 2018.

2.    On April 28, 2017, the trial court issued its Order Denying KISD

Defendants’ Motion to Dismiss and Plea to the Jurisdiction. Before the trial court

ruled on Appellees’ motion for summary judgment, Appellants filed an

interlocutory appeal, staying the case. C.R. at 1106.

3.    On October 12, 2017, this Court issued an interlocutory opinion on

Defendants’ plea to the jurisdiction, rendering a judgment of dismissal as to the

ultra vires claims against each of the individual KISD Trustees and Cara Cooke

(the only claim against the individual KISD Defendants), leaving only Appellant

KISD as a Defendant on remand. C.R. at 1117; Kilgore Indep. Sch. Dist. v. Axberg,

535 S.W.3d 21, 35 (Tex. App.—Texarkana 2017, no pet.).

4.    On January 30, 2018, per this Court’s opinion, the trial court signed an

Order Dismissing Defendants Reggie Hensen, Trey Hattaway, Scott Montgomery,

Karl Riley, John Slagle, Dereck Borders, and Jimmy Kinsey, in their official

capacities as Members of the Board of Trustees of Kilgore Independent School

District, and Cara Cooke, in her official capacity as Superintendent of the Kilgore

Independent School District. C.R. at 1223.

5.    The trial court also signed a final judgment on January 30, 2018, granting


                                         -1-
Plaintiffs and Intervenor’s Joint Motion for Summary Judgment and Final

Judgment. C.R. at 1221.

6.    On February 14, 2018, Appellees moved to modify the trial court’s final

judgment. C.R. at 1274. Appellant KISD filed KISD’s Response and Opposition to

Plaintiffs and Intervenor’s Joint Motion to Modify Judgment, pointing out that

Appellee Plaintiffs and Intervenor’s “proposed order included language for

Defendants, even though the Court of Appeals has dismissed everyone but KISD

from every aspect of this case.” C.R. at 1281, 1283; Axberg, 535 S.W.3d at 35.

7.    The trial court signed an Amended Final Judgment on February 21, 2018.

This Judgment included a finding that all Appellant Defendants violated the law,

even though the trial court and this Court had already dismissed all Appellant

Defendants except Appellant Kilgore Independent School District. C.R. at 1293.

8.    Appellants filed their notice of appeal on March 19, 2018. C.R. 1334.

9.    On May 21, 2018, Cross-Appellants John Axberg, Darlene Axberg, and

Sheila Anderson filed Cross-Appellants’ Brief, presenting only one issue for

appeal: “Are the individual defendants acting ultra vires by collecting property

taxes in violation of state laws?” Cross-Appellants’ Br. at vii.




                                         -2-
                           SUMMARY OF THE ARGUMENT

      Cross-Appellants’ Brief claims they filed a “cross-appeal solely to preserve

the plaintiffs’ ability to litigate the ultra vires issue in the event this case proceeds

to the Supreme Court.” Cross-Appellants’ Br. at 1. Cross-Appellants ask this Court

to “adhere to stare decisis and affirm the trial court’s judgment against [Cross-

Appellants] on the claims brought against the individual defendants.” Id.




                                          -3-
                                     ARGUMENT


Cross-Appellants’ Restatement of Argument

Cross-Appellants’ entire argument reads as follows:

      The Court has already ruled against us on the ultra vires claims
      brought against the individual defendants. See Kilgore Indep. Sch.
      Dist. v. Axberg, 535 S.W.3d 21, 29–32 (Tex. App.—Texarkana 2017,
      no pet.). We respect the Court’s decision and are not seeking to re-
      litigate the matter in this Court. We have taken a cross-appeal solely
      to preserve the plaintiffs’ ability to litigate the ultra vires issue in the
      event this case proceeds to the Supreme Court of Texas. This Court,
      however, should adhere to stare decisis and affirm the trial court’s
      judgment against us on the claims brought against the individual
      defendants.

      By acknowledging the force of stare decisis, we are not conceding the
      correctness of this Court’s previous ruling on the ultra vires issue, nor
      are we forfeiting or foreclosing our ability to litigate this issue in the
      state supreme court.
Cross-Appellants’ Br. at 1.

Cross-Appellants’ Issue:          Are the individual defendants acting ultra vires
                                  by collecting property taxes in violation of state
                                  law?
      “When a party fails to preserve error in the trial court or waives an argument

on appeal, an appellate court may not consider the unpreserved or waived issue.”

Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (emphasis

added). By appealing and asking the Court to follow stare decisis, and making no

argument before this Court, Cross-Appellants have now failed to preserve error

before this or any other Court.


                                          -4-
      This Court has the option of dismissing the appeal for failure to raise any

issues or permitting Cross-Appellants the right to re-brief:

      Allowing our intermediate courts some discretion in ordering
      rebriefing is necessary to balance the twin objectives of a liberal and
      just construction of procedural rules and the prompt and efficient
      resolution of appeals. See A.C. Collins Ford, Inc. v. Ford Motor Co.,
      807 S.W.2d 755, 760 (Tex. App.—El Paso 1990, writ denied) (on
      motion for rehearing) (complaining that Inpetco does not help a busy
      court in the disposition of its case load); King, 762 S.W.2d at 299
      (construing Davis as holding that courts must have some discretion in
      this area, and characterizing as “intolerable” a situation where an
      appellate court is forced to send back deficient briefs for rebriefing,
      even after argument); see also Elder v. Bro, 809 S.W.2d 799, 802
      (Tex. App.—Houston [14th Dist.] 1991, writ denied) (quoting King);
      Henry S. Miller Management Corp. v. Houston State Assoc., 792
      S.W.2d 128, 135 (Tex. App.—Houston [1st Dist.] 1990, writ denied)
      (same).

      Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 285 (Tex.

1994). Permitting Cross-Appellants to re-brief what is essentially a redundant issue

on appeal (seeking to find both the district and the trustees wrong for having, in

their opinion not followed the law), as Cross-Appellants can only recover once,

seems petty and inefficient, but so does the fact that they have chosen to appeal.

      Cross-Appellees agree wholeheartedly with Cross-Appellants that this Court

should not reconsider or reverse itself. This Court’s previous decision is the law of

the case and there have been no grounds to reverse the trial court’s decision, nor

was a motion for new trial or rehearing filed by the Cross-Appellants. Cross-




                                         -5-
Appellants also elected not to appeal this Court’s previous interlocutory ruling to

the Texas Supreme Court in a timely manner.

      Cross-Appellants provided no substantive argument to support their one and

only appealed issue herein. For the reasons set forth above, Cross-Appellants

appeal should be denied and dismissed, and the trial court’s judgment should be

affirmed per curiam.

                                     PRAYER

      As our opposing counsel worded it, “The judgment of the trial court should

be affirmed.” We respectfully concur.

                                        Respectfully submitted,




                                        By: /s/ Dennis J. Eichelbaum
                                        Dennis J. Eichelbaum
                                        Texas Bar No. 06491700
                                        dje@edlaw.com

                                        Andrea L. Mooney
                                        Texas Bar No. 24065449
                                        alm@edlaw.com

                                        Scott W. Thomas
                                        Texas Bar No. 24075624
                                        swt@edlaw.com




                                         -6-
Eichelbaum Wardell
Hansen Powell & Mehl, P.C.
5801 Tennyson Parkway, Suite 360
Plano, Texas 75024
(972) 377-7900
(972) 377-7277 (facsimile)
Attorneys for Cross-Appellees




 -7-
                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document have been served by court-generated electronic mail and/or
facsimile and/or certified mail on June 2, 2018, to the following:

John B. Scott                              Daniel R. Smith
SCOTT PLLC                                 POPP HUTCHESON PLLC
508 West 14th Street                       1301 S. Mopac, Suite 430
Austin, Texas 78701                        Austin, Texas 78746
(512) 690-6976 – Telephone                 (512) 473-2661 – Telephone
john.scott@scottpllc.net                   (512) 479-8013 - Facsimile
                                           daniel.smith@property-tax.com

Jonathan Mitchell                          Timothy M. Hoch
Scott PLLC                                 HOCH LAW FIRM
508 West 14th Street                       5616 Malvey Ave.
Austin, Texas 78701                        Fort Worth, Texas 76107-5121
(512) 690-6976 (phone)                     (800) 828-5160 - Telephone
jfmitche@stanford.edu                      tim@hochlawfirm.com

Forrest Smith
FRIEDMAN & FIEGER, LLP
5301 Spring Valley Rd., Suite 200
Dallas, Texas 75254
(972) 788-1400 - Telephone
fsmith@fflawoffice.com


                             /s/ Dennis Eichelbaum
                              Dennis J. Eichelbaum




                                     -8-
                     CERTIFICATE OF COMPLIANCE

1.    This brief complies with the type-volume limitation of TRCP 9.4(i)(2)(B)
because this brief contains 2,164 words, including the parts of the brief exempted
by TRAP 9.4(i)(1).

2.     This brief complies with the typeface requirements of TRAP 9.4(e) because
this brief has been prepared in a proportionally spaced typeface using Microsoft
Word 2010 in 14-point Times Roman font.



                                             /s/ Dennis Eichelbaum
                                             Dennis J. Eichelbaum




                                       -9-
