Affirmed; Opinion Filed July 3, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00433-CV

               ASYMBLIX LLC D/B/A IPHOTONIX, Appellant
                                V.
    RICHARDSON INDEPENDENT SCHOOL DISTRICT, CITY OF RICHARDSON,
                    AND DALLAS COUNTY, Appellees

                      On Appeal from the 193rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. TX-12-40481

                             MEMORANDUM OPINION
                           Before Justices Lang, Myers, and Stoddart
                                    Opinion by Justice Lang
         Appellee Richardson Independent School District (“RISD”) filed this lawsuit against

appellant Asymblix LLC d/b/a IPhotonix (“Asymblix”) to collect delinquent ad valorem taxes

allegedly owed by Asymblix on business personal property. Further, the City of Richardson and

Dallas County (the “intervenors”) intervened to collect taxes they contended Asymblix owed to

them on the same property. Following a bench trial, the trial court (1) rendered judgment in favor

of RISD and the intervenors (collectively, “appellees”) and (2) denied Asymblix’s motion for new

trial.

         On appeal, Asymblix asserts in two issues (1) the evidence is legally and factually

insufficient to support the trial court’s judgment and (2) the trial court abused its discretion by
denying Asymblix’s motion for new trial. We decide against Asymblix on its two issues. The trial

court’s judgment is affirmed.

                                   I. FACTUAL AND PROCEDURAL CONTEXT

           In June 2009, TXP Corporation a/k/a/ Texas Prototypes, Inc. (“TXP Corporation”)

commenced a Chapter 11 bankruptcy proceeding in federal bankruptcy court. See generally 11

U.S.C. §§ 1101–1146. At the time of that bankruptcy filing, appellees were owed ad valorem taxes

accrued against certain business personal property of TXP Corporation (the “property”) for the

years 2008 and 2009. The bankruptcy court signed a March 23, 2010 “final order” (the “Sale

Order”) in which it authorized the sale of the property to an entity that subsequently became

Asymblix.1 The sale closed on approximately March 30, 2010. Several weeks later, upon motion


   1
       In the Sale Order, the bankruptcy court stated in part,
           THE COURT HEREBY FINDS AND DETERMINES THAT:
           ....
                 S. A reasonable opportunity to object or be heard with respect to the Sale Motion and the relief requested therein has
           been afforded to all interested persons and entities, including without limitation: . . . (v) the taxing authorities for the City of
           Richardson and Dallas County (collectively, the “Taxing Authorities”); [and] (vi) the taxing authority for Richardson
           Independent School District (“RISD”) . . . .
                 T. This Order resolves the objection asserted by the Taxing Authorities.
           ....
                 V. The transfer of the Assets to the Purchaser will be a legal, valid, and effective transfer of the Assets and will vest
           the Purchaser with all right, title and interest to the Assets free and clear of any “claim”, “lien”, or “security interest” as those
           terms are defined in the Bankruptcy Code (collectively the “Interests”), except for ad valorem property tax liens held by
           RISD (to the extent such liens attach to the Assets) or as otherwise set forth in this Order.
                 W. The Debtor may sell the Assets free and clear of Interests in accordance with section 363(f) of the Bankruptcy Code
           because, in each case, one or more of the standards set forth in section 363(f)(1)–(5) of the Bankruptcy Code has been
           satisfied. Those holders of Interests who did not object to the Sale or who have withdrawn their objection to the Sale Motion
           based on agreements herein are deemed to have consented pursuant to section 363(f)(2) of the Bankruptcy Code. Those
           holders of Interests, who did object fall within one or more of the other subsections of section 363(f)(1) or (3)–(5) of the
           Bankruptcy Code and are adequately protected.
           ....
                 Y. The Purchaser would not have entered into the Sale Documents and would not consummate the transactions
           contemplated thereby, thus adversely affecting the Debtor, its estate, and creditors, if the Court did not enter an order
           determining that the sale of the Assets to Purchaser was free and clear of all Interests (except Interests held by RISD, to the
           extent such Interests attach to the Assets).
           ....
           NOW THEREFORE, THE COURT HEREBY ORDERS, ADJUDGES, AND DECREES AS FOLLOWS:
           ....
                 8. Upon the Closing, the Purchaser shall pay the amounts assessed by the Taxing Authorities for the Debtor’s 2008 and
           2009 ad valorem business personal property taxes with interest at the state statutory rate of 1% per month pursuant to sections
           506(b) and 511 of the Bankruptcy Code. The Purchaser and the Taxing Authorities will cooperate to determine the values
           and allocations of 2010 ad valorem business personal property taxes which the Purchaser shall pay at a date to be agreed
           upon between the Purchaser and the Taxing Authorities. Any and all valid liens, claims and encumbrances asserted by the
           Taxing Authorities with respect to the Assets not paid at Closing shall remain on the Assets with the same priority, validity
           and extent as existed at the time of the Sale, as permitted under applicable law.
           ....
                 13. This Order shall be binding in all respects upon . . . all successors and assigns of the Purchaser . . . .
                 14. Pursuant to sections 105(a) and 363(f) of the Bankruptcy Code, the Assets shall be assigned and transferred to the
           Purchaser or its designee and upon the Closing shall be free and clear of all Interests of any kind or nature whatsoever . . .


                                                                          –2–
by TXP Corporation, the bankruptcy court signed an order dismissing the Chapter 11 bankruptcy

proceeding.

        On August 8, 2012, RISD filed this lawsuit against Asymblix. In its petition, RISD sought

delinquent ad valorem taxes on the property for 2008, 2009, and 2010, plus penalties, interest,

attorney’s fees, and costs. The petition stated in part “[s]aid Defendant(s) currently own(s) or

claims(s) an interest in the property hereinafter described and/or owned the hereinafter described

property on the first day of January of each of the years for which taxes are due and owing.”

Additionally, the petition stated in part (1) RISD was seeking “personal liability” and “foreclosure

of the tax lien” on the property against “the party or parties who owned the property, described

above, on January 1 of the years indicated,” and (2) “[a]s to all other Defendants, Plaintiffs’ action

is a proceeding in rem only, whereby Plaintiff(s) seek(s) to foreclose the tax lien(s) on each

separately described property listed in satisfaction of the taxes, penalties, interest and all costs due

or to become due.” The intervenors’ petition was filed in October 2012 and was substantially

similar to that of RISD.

        Asymblix filed a general denial answer and asserted several affirmative defenses, including

(1) the “claims and/or liens” of RISD and the intervenors “were discharged in bankruptcy” and

(2) “Defendant was not formed and not in existence until 2010 and would not be liable for taxes



        except as otherwise set forth in this Order (including Interests held by RISD to the extent such interests are affixed to Assets),
        effective upon receipt of good, complete and sufficient funds or consideration by Debtor for such Assets.
              15. Except as otherwise provided in this Order, all persons and entities, including, but not limited to, all . . .
        governmental, tax, and regulatory authorities, . . . holding Interests of any kind or nature whatsoever against or in the Debtor
        or the Assets (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or non-contingent, senior
        or subordinated), existing prior to Closing arising under or out of, in connection with, or in any way relating to, the Debtor,
        the Assets, or the Sale, are forever barred, estopped, and permanently enjoined from asserting against the Purchaser, its
        successors or assigns, its property, or the Assets, such persons’ or entities’ Interests.
        ....
              17. The transfer of the Assets to the Purchaser pursuant to this Order constitutes a legal, valid, and effective transfer of
        the Assets and shall vest in the Purchaser or its designee with all right, title, and interest of the Debtor in and to the Assets,
        free and clear of all Interests of any kind or nature whatsoever, except as provided for herein.
        ....
              36. This Court retains jurisdiction to enforce and implement the terms and provisions of this Order [and] . . . any waivers
        and consents thereunder, . . . including, but not limited to, retaining jurisdiction to . . . (c) resolve any disputes arising under
        or related to any sale documents, except as otherwise provided therein, and (d) interpret, implement, and enforce the
        provisions of this Order.


                                                                      –3–
before it existed.” Further, Asymblix filed in the bankruptcy court a “Motion to Re-Open

Bankruptcy Proceeding for Limited Purpose of Determining Tax Claims.” In that motion,

Asymblix asserted it was the “successor in interest” to the debtor in the bankruptcy proceeding

described above and sought “the intervention of the Bankruptcy Court to determine if and to what

extent any tax liens survived the sale of the Debtor’s assets under the Sale Order.” The bankruptcy

court signed a July 30, 2013 order in which it denied that motion “for the reasons stated in the

Letter Ruling entered in this case on July 22, 2013” (the “letter ruling”).2

           Trial in this case commenced August 8, 2013. RISD presented several documents that were

admitted into evidence without objection, including (1) the letter ruling and (2) a “Certification of

Tax Records,” which included an RISD “Tax Statement” respecting the property that bore the

heading “TEXAS PROTOTYPES, 1299 COMMERCE DR., RICHARDSON, TX 75081-2406”

and showed an itemization of the amount of taxes and “P and I” due to RISD for each of the three

years in question and a total amount due of $215,264.40. Further, documents introduced by the

intervenors and admitted into evidence without objection included (1) the Sale Order and (2) a

certified tax record of Dallas County that stated “Certified Owner: ASYMBLIX LLC” and showed




   2
       In the letter ruling, the bankruptcy court stated in part,
           By the Motion, Asymblix asks me to conclude that Asymblix holds the assets of the debtor (“TXP”) free of the claims for
           pre-petition taxes of Richardson Independent School District, Dallas County and the City of Richardson (collectively, the
           “Taxing Authorities”). Asymblix bases its argument on [the Sale Order]. . . .
                        The [Sale Order] provides in Paragraph 8 that liens of the Taxing Authorities will remain attached to the assets
           sold, and that the liens will attach to the proceeds of sale . . . .
           ....
                        Asymblix’s argument appears to be based on its view that the Taxing Authorities’ liens were inferior in priority
           to [the Purchaser’s] lien. . . . However, under the operation of the Texas Property Tax Code, the Taxing Authorities’ liens
           are first priority liens senior to that of YA. See Tex. Prop. Tax Code §§ 32.01, 32.05. Because the Taxing Authorities’ liens
           were senior to that of [the Purchaser], [the Purchaser’s] credit bid would not wipe out the Taxing Authorities’ liens, which,
           pursuant to the paragraphs of the [Sale Order], remain attached to the assets now owned by Asymblix.
                        Even if the sale did indeed eliminate the liens of the Taxing Authorities, those liens then attached to the proceeds
           of sale pursuant to the provisions of the [Sale Order]. Because [the Purchaser] acquired the assets by credit bid, all “proceeds”
           of the sale were received by [the Purchaser]. However, because the Taxing Authorities’ liens were senior to those of [the
           Purchaser], [the Purchaser] received those proceeds encumbered by the Taxing Authorities’ liens.
                        Having concluded that the Taxing Authorities’ liens survived, I now turn to the question of whether I should
           determine the amount of taxes owing. I conclude that I should not.
                        Even assuming the bankruptcy court has the jurisdiction and competence to determine the taxes . . . , I would
           abstain from doing so. Not only are the state courts better situated to make such a determination, but the Case has been
           closed, the Taxing Authorities and Asymblix are remote from the Case, and proceedings have already commenced in state
           court. Given the circumstances, abstention would be appropriate.
                                                                        –4–
itemized taxes, “Penalty Interest,” and fees respecting the property for each of the three years in

question and a total amount of $215,400.27 due to the intervenors.

       Asymblix presented testimony of its chief financial officer respecting the bankruptcy

proceeding described above, including testimony that TXP Corporation owned the property

“between 2008 and 2010.” Additionally, over appellees’ objections as to relevance, several

additional documents filed in the bankruptcy proceeding were admitted into evidence, including,

among other things, a 2009 “proof of claim” of RISD showing a total amount due of $83,865.58.

       During closing, counsel for RISD argued in part,

       I would also direct the Court to the provision in the Tax Code that provide [sic] that
       a certified copy of the entries on the delinquent tax roll constitutes a prima facie
       case with regards to the taxes, penalties and interest that are due. There has been no
       specific controverting testimony as to the amount of the taxes, the amount of the
       penalties, and the amount of the interest as calculated under statutory law.

       The trial court signed a final judgment dated February 20, 2015. Therein, the trial court

(1) awarded $215,264.40 to RISD and $215,400.27 to the intervenors; (2) stated that “the statutory

and constitutional tax lien for each tax year exists upon [the property] securing the payment of said

respective amounts”; and (3) granted RISD “all writs of execution and other process necessary to

enforce this judgment.”

       Asymblix filed a motion for new trial in which it argued “even if the [trial court] found

Asymblix, LLC had some liability on the ad valorem taxes, there is insufficient evidence to show

the accurate amount of any damages.” Specifically, according to Asymblix, (1) “no distinctions

were made to show tax treatment during the automatic stay of the bankruptcy proceeding”;

(2) Asymblix “cannot be held liable for any assessed penalties, fees and costs that may have been

added while the entity was subject to bankruptcy protection”; and (3) “it is exceptionally

unreasonable for the ad valorem taxes to be based on an inflated market value . . . that could not

be protested during the bankruptcy proceeding.”

                                                –5–
        RISD filed a response to Asymblix’s motion for new trial in which it stated in part that the

“valuation issues” described by Asymblix cannot be asserted in this lawsuit. Further, RISD argued

(1) “Tex. Tax Code § 33.47 states that the introduction of the current and delinquent tax rolls or

copies of the entries showing the property and the amount of the tax imposed constitute prima

facie evidence of a taxpayer’s liability and the burden shifts to the taxpayer to rebut this

presumption”; (2) “once a certified copy of the entries on the delinquent tax roll is admitted, a

prima facie case as to all amounts due is considered proved and statutory penalties must be

included in the judgment”; (3) “RISD proved up a prima facie case of delinquent taxes, penalties,

interest, and costs due and owing to RISD by Defendant, Asymblix LLC D/B/A IPhotonix as

successor in interest to Texas Prototypes”; and (4) “Defendant has failed to rebut the presumption

that the outstanding taxes (plus all penalties and interest that may ultimately accrue) are owed to

Plaintiff.”

        After a hearing, the trial court denied Asymblix’s motion for new trial. This appeal timely

followed.

                           II. SUFFICIENCY OF THE EVIDENCE

                                      A. Standard of Review

        A party challenging the legal sufficiency of the evidence to support an adverse finding on

which it did not have the burden of proof at trial must demonstrate that there is no evidence to

support the adverse finding. Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011,

no pet.). When reviewing for legal sufficiency, the evidence is considered in the light most

favorable to the nonmovant, crediting evidence a reasonable fact-finder could credit and

disregarding contrary evidence and inferences unless a reasonable fact-finder could not. Merriman

v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We will uphold the finding if more than a

scintilla of competent evidence supports it. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386,

                                                –6–
388 (Tex. 2005); Exel Transp. Servs., Inc. v. Aim High Logistics Servs., LLC, 323 S.W.3d 224,

232 (Tex. App.—Dallas 2010, pet. denied); see also City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005) (“The final test for legal sufficiency must always be whether the evidence at trial

would enable reasonable and fair-minded people to reach the verdict under review.”).

       When an appellant challenges the factual sufficiency of the evidence to support an adverse

finding on which it did not have the burden of proof, the appellant must demonstrate there is

insufficient evidence to support the adverse finding. See, e.g., Weaver & Tidwell, L.L.P. v.

Guarantee Co. of N. Am. USA, 427 S.W.3d 559, 564 (Tex. App.—Dallas 2014, pet. denied). In

reviewing a finding for factual sufficiency, we consider and weigh all of the evidence in support

of and contrary to the finding and will set aside the finding only if it is so against the overwhelming

weight of the evidence that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986).

                                         B. Applicable Law

       A property tax, or “ad valorem” tax, is a tax on property at a certain rate based on the

property’s value. See Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., No. 16-0626,

2018 WL 1974485, at *8 (Tex. Apr. 27, 2018). “[T]he Property Tax Code provides that on January

1, the day that property ownership gives rise to property tax liability, a tax lien in favor of each

applicable taxing unit automatically attaches to all taxable property ‘to secure the payment of all

taxes, penalties, and interest ultimately imposed for the year on the property.’” Id. (citing TEX.

TAX CODE ANN. § 32.01(a) (West 2015)). If property taxes become delinquent, a taxing unit may

file suit to foreclose the lien securing payment of the taxes, to enforce personal liability for the

taxes, or both. See TAX CODE § 33.41. A petition initiating a suit to collect a delinquent property

tax is sufficient if it alleges that “the person sued owned the property on January 1 of the year for

which the tax was imposed if the suit seeks to enforce personal liability” or “the person sued owns

                                                 –7–
the property when the suit is filed if the suit seeks to foreclose a tax lien.” Id. § 33.43(a)(7)–(8).

       Pursuant to tax code section 42.09(b), “[a] person against whom a suit to collect a

delinquent property tax is filed may plead as an affirmative defense: (1) if the suit is to enforce

personal liability for the tax, that the defendant did not own the property on which the tax was

imposed on January 1 of the year for which the tax was imposed; or (2) if the suit is to foreclose a

lien securing the payment of a tax on real property, that the property was not located within the

boundaries of the taxing unit.” Id. § 42.09(b). Additionally, section 33.47(a) of the tax code states,

       In a suit to collect a delinquent tax, the taxing unit’s current tax roll and delinquent
       tax roll or certified copies of the entries showing the property and the amount of
       the tax and penalties imposed and interest accrued constitute prima facie evidence
       that each person charged with a duty relating to the imposition of the tax has
       complied with all requirements of law and that the amount of tax alleged to be
       delinquent against the property and the amount of penalties and interest due on that
       tax as listed are the correct amounts.

Id. § 33.47(a). “Taxing statutes are construed strictly against the taxing authority and liberally for

the taxpayer.” Morris v. Houston Indep. Sch. Dist., 388 S.W.3d 310, 313 (Tex. 2012); accord

Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist., 52 S.W.3d 495, 497 (Tex. App.—

Dallas 2001, pet. denied).

                                  C. Application of Law to Facts

       In its first issue, Asymblix contends the trial court’s judgment “should be overturned on

factual and legal sufficiency grounds.” Specifically, Asymblix asserts in part (1) appellees cannot

rely on the section 33.47(a) presumption because Asymblix “challenged [appellees’] failure to

identify the correct property owner and the failure to provide substantiation and underlying support

for the alleged taxes owed”; (2) Asymblix has no liability for the amounts in question because it

“purchased the assets of the prior owner out of bankruptcy and clear of all liens, debts, and

encumbrances”; and (3) “[o]nce the tax statements were challenged, no evidence was presented to

show how the penalties, interest and fees were determined or how they accrued.”

                                                 –8–
       RISD responds in part (1) Asymblix “acquired the property subject to ad valorem tax liens”

as shown by the Sale Order and letter ruling; (2) “RISD asserted and presented evidence that

Asymblix, LLC, successor in interest to Texas Prototypes, owed delinquent ad valorem taxes for

business personal property for years 2008, 2009, and 2010”; (3) such evidence included “a certified

delinquent tax record of the taxes, penalties and interest owed pursuant to Tex. Tax Code

§ 33.47(a)”; and (4) Asymblix “failed to identify evidence so overwhelmingly to rebut RISD’s

prima facie evidence of delinquent ad valorem taxes owed and the [trial] court’s judgment is

supported by sufficient evidence.”

       We begin by addressing the applicability of the section 33.47(a) presumption. See TAX

CODE § 33.47(a). When a taxing authority in a delinquency suit introduces the tax records

described in section 33.47(a) into evidence, “it establishes a prima facie case as to every material

fact necessary to establish its cause of action.” Maximum Med. Improvement, Inc. v. Cty. of Dallas,

272 S.W.3d 832, 835 (Tex. App.—Dallas 2008, no pet.). At that point, “a rebuttable presumption

arises in the taxing authority’s favor.” Pete Dominguez Enters., Inc. v. Cty. of Dallas, 188 S.W.3d

385, 387 (Tex. App.—Dallas 2006, no pet.). “Once a prima facie case is established, the burden

shifts to the taxpayer to introduce competent evidence that he has paid the full amount of taxes,

penalties, and interest, or that there is some other defense that applies to his case.” Maximum Med.,

272 S.W.3d at 835; see also Estates of Elkins v. Cty. of Dallas, 146 S.W.3d 826, 829 (Tex. App.—

Dallas 2004, no pet.) (“Unless the taxpayer establishes independent reasons why the taxing

authority should not recover, the taxing authority is entitled to judgment.”). “The presumption

created by section 33.47 disappears if and when the taxpayer meets its burden of producing

competent evidence to justify a finding against the presumed fact.” Aldine Indep. Sch. Dist. v. Ogg,

122 S.W.3d 257, 264 (Tex. App.—Houston [1st Dist.] 2003, no pet.); accord Estates of Elkins,




                                                –9–
146 S.W.3d at 830 (“The presumption places upon the party against whom it operates the burden

of producing evidence sufficient to justify a finding of non-existence of the presumed fact . . . .”).

       Asymblix contends (1) “[w]hen, as here, the taxing unit names some other person or entity

as owing the delinquent taxes and Asymblix, LLC objects, the presumption is inapplicable,”;

(2) even if appellees established a prima facie case and the burden shifted, Asymblix “offered

evidence to rebut that presumption of accuracy or liability”; and (3) “penalties, fees and costs were

improperly made part of the calculations during the bankruptcy’s automatic stay.” Appellees

respond in part (1) they do not dispute that Asymblix was not the owner of the property on

January 1 of any of the three tax years in question; (2) “[o]wnership in relevant years is irrelevant”

because “liability was transferred by Court Order”; and (3) “[n]o evidence whatsoever was

presented to dispute the evidence admitted by the [trial] court.”

       As to Asymblix’s assertion that the section 33.47(a) presumption is inapplicable because

the identity of the entity on the certified tax statement produced by RISD, i.e., “Texas Prototypes,”

did not match the identity of the defendant, that same argument was considered and rejected in

Felt v. Harris Cty., No. 14-12-00327-CV, 2013 WL 1738604 (Tex. App.—Houston [14th Dist.]

Apr. 23, 2013, no pet.) (mem. op.). In Felt, Harris County sued David J. Felt for delinquent ad

valorem taxes for tax years 1987–2009. Id. at *1. At trial, the county produced (1) a certified

delinquent tax statement on which the property owner was identified as Equi-Share, Inc., and (2)

a certified copy of a 1983 warranty deed in which Equi-Share, Inc. conveyed the property to Felt.

Id. The trial court ruled in favor of the county and Felt appealed. On appeal, the parties disputed

whether the section 33.47(a) presumption applied. Felt argued “[i]f the identity of the entity named

as owner of the property on that tax roll does not match the identity of the defendant sued for non-

payment, then no presumption [of compliance with the law] arises and no prima facie case is

established by the taxing authority.” Id. at *3. However, the court of appeals stated “there is a

                                                –10–
difference between prima facie evidence of a material fact in the case and prima facie evidence of

every material fact.” Id. (emphasis original). Then, the court of appeals reasoned as follows:

       We agree that the certified delinquent-tax statement did not give rise to a
       presumption that Felt owned the property, but on the question of ownership, the
       County did not rest its case solely on a presumption. The tax statement created a
       presumption that Equi-Share, Inc. owned the property, but the County also
       introduced and relied on a certified copy of a warranty deed conveying the property
       to Felt in 1983, and on Felt’s notarized signature on the deed. . . . As for the amounts
       at issue, a certified delinquent-tax statement is prima facie evidence of the amount
       of penalties, tax, and interest, and on those matters, the County relied solely on the
       presumption under section 33.47(a) that these amounts are due, delinquent, and
       unpaid. Felt offered no evidence to rebut that presumption, which is not undermined
       by the misidentification of the property’s owner.

Id.

       In the case before us, Asymblix does not cite or address Felt, but rather cites two cases

from this Court. See Maximum Med., 272 S.W.3d at 832; Pete Dominguez, 188 S.W.3d at 385.

However, unlike Felt and the case before us, neither of the cases cited by Asymblix (1) involved

evidence of liability other than a certified tax statement naming an entity that was not the defendant

or (2) addressed whether the section 33.47(a) presumption arose as to the amounts due even if such

presumption was inapplicable as to liability. See Maximum Med., 272 S.W.3d at 835 (“If, however,

the identity of the entity named as the owner does not match the identity of the defendant sued for

non-payment, no presumption arises as to the defendant’s liability.”); Pete Dominguez, 188

S.W.3d at 388 (“In the absence of evidence showing the defendant, PDE, owned the property taxed

in this case, no presumption of liability was triggered, and no prima facie case for liability was

established.”). Therefore, those cases do not provide guidance as to the facts before us. Rather, the

record before us shows that, as in Felt, appellees provided evidence of liability other than RISD’s

certified tax statement, i.e., the Sale Order and letter ruling. Further, as to the “accuracy” of the

amounts owed, Asymblix cites no evidence, and we have found none, showing the purported dates

of the stay described by Asymblix or how much, if any, of the amounts due correspond to the time

                                                –11–
period during which such stay was allegedly in effect. On this record, we conclude that even

assuming without deciding that the section 33.47(a) presumption was inapplicable as to liability,

the presumption arose and was not rebutted as to the amounts due. See Felt, 2013 WL 1738604, at

*3; see also Ogg, 122 S.W.3d at 264 (“The presumption created by section 33.47 disappears if and

when the taxpayer meets its burden of producing competent evidence to justify a finding against

the presumed fact.”); Gillum v. Harris Cty., No. 01-08-00551-CV, 2009 WL 3400960, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 22, 2009, no pet.) (mem. op.) (concluding section 33.47(a)

presumption was not rebutted where appellant offered no evidence to support her contentions

challenging presumption).

           Next, we address Asymblix’s arguments respecting the legal and factual sufficiency of the

evidence respecting liability. To the extent Asymblix relies on its assertion of an affirmative

defense pursuant to tax code section 42.09(b)(1), that section provides “[a] person against whom

a suit to collect a delinquent property tax is filed may plead as an affirmative defense: (1) if the

suit is to enforce personal liability for the tax, that the defendant did not own the property on which

the tax was imposed on January 1 of the year for which the tax was imposed.” See TAX CODE

§ 42.09(b)(1). However, the petitions described above do not show appellees sought to enforce

personal liability against Asymblix for the taxes in question. Therefore, section 42.09(b)(1) is

inapplicable.3 See Hydrogeo, LLC v. Quitman Indep. Sch. Dist., 483 S.W.3d 51, 60–61 (Tex.

App.—Texarkana 2016, no pet.); United Indep. Sch. Dist. v. U.S. Trailer Relocators, LLC, No. 04-

17-00281-CV, 2018 WL 2943821, at *4 (Tex. App.—San Antonio June 13, 2018, no pet. h.).




      3
        Also, Asymblix asserts in part that pursuant to tax code section 33.43(a)(7), “[a] petition initiating a suit to collect a delinquent property tax
is only deemed sufficient if it alleges that . . . the person sued owned the property on January 1 of the year for which the tax was imposed if the suit
seeks to enforce personal liability.” See TAX CODE § 33.43(a)(7). However, to the extent Asymblix contends the petitions in this case were thus not
“sufficient,” we disagree. As described above, section 33.43(a)(8) provides that a petition initiating a suit to collect a delinquent property tax is
sufficient if it alleges that “the person sued owns the property when the suit is filed if the suit seeks to foreclose a tax lien.” Id. § 33.43(a)(8). The
record shows the petitions in this case met that requirement.

                                                                         –12–
        Additionally, Asymblix contends it purchased the property “clear of all liens, debts, and

encumbrances” and “[i]t is clear that [appellees’] interests were totally excluded from the Sale

Order.” In support of that argument, Asymblix cites various provisions of the Sale Order and the

federal bankruptcy code. RISD responds in part (1) its claim against Asymblix “is based on the

liability transferred to Asymblix LLC under an order of the Bankruptcy Court, which was not

appealed and was in fact reinforced by a second order also not appealed,” and (2) “[t]hat transfer

of liability to Asymblix, LLC is the result of a Final Order of a Federal Court and not subject to

collateral attack.”

        “A collateral attack is an attempt to avoid the effect of a judgment ‘in a proceeding not

instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain

some specific relief which the judgment currently stands as a bar against.’” Dallas Cty. Tax

Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.—Dallas 2010, no pet.) (quoting Browning

v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)). “Only a void judgment may be collaterally

attacked.” Browning, 165 S.W.3d at 346. “A judgment is void only when it is apparent that the

court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the

subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.” Id.

        In the case before us, Asymblix does not contend, and the record does not show, that the

Sale Order or letter ruling were “void.” See id. Therefore, any collateral attack is improper. Id. As

described above, the bankruptcy court’s letter ruling “concluded that the Taxing Authorities’ liens

survived” the sale of the property. Specifically, the bankruptcy court stated in part (1) “[b]ecause

the Taxing Authorities’ liens were senior to that of [the Purchaser], [the Purchaser’s] credit bid

would not wipe out the Taxing Authorities’ liens, which, pursuant to the paragraphs of the [Sale

Order], remain attached to the assets now owned by Asymblix,” and (2) “[e]ven if the sale did

indeed eliminate the liens of the Taxing Authorities, those liens then attached to the proceeds of

                                                –13–
sale pursuant to the provisions of the [Sale Order]” and “because the Taxing Authorities’ liens

were senior to those of [the Purchaser], [the Purchaser] received those proceeds encumbered by

the Taxing Authorities’ liens.” The record shows Asymblix’s argument on appeal that it purchased

the property clear of all liens, debts, and encumbrances “necessarily calls into question certain

legal implications” of the Sale Order, which implications were addressed by the bankruptcy court

in the letter ruling. See Andolina, 303 S.W.3d at 931; see also Browning, 165 S.W.3d at 346–47.

Therefore, we conclude that argument constitutes an impermissible collateral attack. See Andolina,

303 S.W.3d at 931; Browning, 165 S.W.3d at 347. Accordingly, rather than allowing such an

attack, we give finality to the bankruptcy court’s ruling described above that the tax liens in

question encumbered the property after the sale. See Browning, 165 S.W.3d at 345 (“policy of

finality” underlying impermissibility of collateral attacks “is especially important in a Chapter 11

bankruptcy”). On this record, we conclude the evidence is legally and factually sufficient to

support Asymblix’s liability for the amounts in question. See Haggar Clothing Co., 164 S.W.3d

at 388; Cain, 709 S.W.2d at 176.

        We decide against Asymblix on its first issue.

                         III. DENIAL OF MOTION FOR NEW TRIAL

                             A. Standard of Review and Applicable Law

        We review a trial court’s denial of a motion for new trial under an abuse of discretion

standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A trial court abuses

its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or if it clearly fails to correctly analyze or apply the law. See, e.g., Celestine

v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex. 2010).




                                                  –14–
       A trial court may grant a new trial for good cause on the motion of a party or on the court’s

own motion. TEX. R. CIV. P. 320. “New trials may be granted when the damages are manifestly

too small or too large.” Id.

                                            B. Analysis

       In its second issue, Asymblix contends the trial court’s denial of its motion for new trial

constituted an abuse of discretion. Specifically, Asymblix asserts (1) it “rebutted the taxing

authorities’ presumption of prima facie evidence of taxes due”; (2) “[t]here is insufficient evidence

to show the validity of the interest, penalties and fees assessed”; (3) “[d]amages were manifestly

too high”; and (4) “there was conflicting evidence on market value creating a fact issue.”

       The first and second of those assertions were specifically addressed in the above analysis

pertaining to Asymblix’s first issue. Further, in its appellate argument respecting its assertion that

the damages awarded were “manifestly too high,” Asymblix cites Texas Rule of Appellate

Procedure 33.1(d), see TEX. R. APP. P. 33.1(d) (“Sufficiency of Evidence Complaints in Nonjury

Cases”), and challenges the evidentiary support for those damages. That challenge was likewise

addressed in our analysis above. Based on our conclusions above, we conclude the trial court did

not abuse its discretion by denying Asymblix’s motion for new trial on any of those three grounds.

See Celestine, 321 S.W.3d at 235. Additionally, as to “conflicting evidence on market value,” a

defendant “may not challenge the property’s appraised value in a suit to collect delinquent taxes.”

Barnett v. Cty. of Dallas, 175 S.W.3d 919, 923 (Tex. App.—Dallas 2005, no pet.) (citing TAX

CODE § 42.09); accord City of Bellaire v. Sewell, 426 S.W.3d 116, 121–22 & n.3 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).

       We decide against Asymblix on its second issue.




                                                –15–
                                    IV. CONCLUSION

      We decide against Asymblix on its two issues. The trial court’s judgment is affirmed.



                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE



180433F.P05




                                            –16–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 ASYMBLIX, LLC D/B/A IPHOTONIX,                       On Appeal from the 193rd Judicial District
 Appellant                                            Court, Dallas County, Texas
                                                      Trial Court Cause No. TX-12-40481.
 No. 05-18-00433-CV          V.                       Opinion delivered by Justice Lang. Justices
                                                      Myers and Stoddart participating.
 RICHARDSON INDEPENDENT
 SCHOOL DISTRICT, CITY OF
 RICHARDSON, AND DALLAS
 COUNTY, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees RICHARDSON INDEPENDENT SCHOOL DISTRICT,
CITY OF RICHARDSON, AND DALLAS COUNTY recover their costs of this appeal from
appellant ASYMBLIX, LLC D/B/A IPHOTONIX.


Judgment entered this 3rd day of July, 2018.




                                               –17–
