       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                            NO. 03-01-00312-CV




                                  Dr. Rudoulf Michael Metz, Appellant

                                                        v.

  Lake LBJ Municipal Utility District; Llano Independent School District; County Education
             District #15; Linebarger Heard Goggan Blair Graham Pena &
            Sampson; Llano County; Lake Lyndon B. Johnson Improvement
                Corporation; and Horseshoe Bay Applehead Assessment
                                Association, Inc., Appellees




          FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
             NO. 12,160, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING




                 Appellant, Rudoulf Michael Metz, appeals the district court=s dismissal of this bill of review

proceeding. The district court dismissed the bill of review without prejudice after concluding that Clara E.

ABetsy@ Johnson failed to show authority to represent appellant as his attorney in the proceeding. See Tex.

R. Civ. P. 12. Appellant raises four issues contending that the district court erred in failing to take the

proper steps to terminate Johnson=s appointment as appellant=s attorney ad litem; abused its discretion in

failing to grant a continuance regarding a hearing challenging the affidavit of inability to pay for the appellate

record; abused its discretion in granting the appellees= contest to the affidavit of inability to pay; and erred in

failing to conclude that the appellees did not comply with the rules of civil procedure relating to service of
process in the underlying property tax delinquency proceeding. We will affirm the district court=s order

dismissing the bill of review proceeding without prejudice.


                                                Background

                 Underlying this bill of review proceeding was the property tax delinquency suit commenced

by appellees in April 1995 against appellant in the same Llano County district court. In March 1996, the

appellees, unable to determine an address for appellant, served him with process by publication. See Tex.

R. Civ. P. 108. The district court also appointed an ad litem to act on appellant=s behalf. See Tex. R. Civ.

P. 244. In October 1996, due to the joinder of a party to the proceeding with whom the appointed ad

litem had a conflict of interest, the district court appointed Johnson to serve as appellant=s ad litem

attorney. Some time after her appointment and before the district court rendered a final judgment, Johnson

moved her law practice from Llano County, Texas, to the State of Washington and communicated that fact

by letter to the district court. The appellees then requested that the court appoint a new ad litem for

appellant. In August 1998, the district court appointed Tim Cowart to serve as appellant=s attorney ad

litem. In November 1998, following a trial on the merits at which Cowart represented appellant=s interests,

the district court rendered a final judgment in favor of the appellees. Pursuant to the judgment, in April

1999, the property was sold by the Sheriff of Llano County.

                 In November 1999, Johnson moved back to the area and filed a petition for a bill of review

representing that she was doing so on appellant=s behalf. In the petition, she referred to herself as

appellant=s attorney ad litem. The petition sought to set aside the November 1998 judgment in favor of the

appellees as well as set aside the April 1999 sheriff=s sale of the property on the basis that appellant was not

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properly served with process. Additionally, the petition requested attorney ad litem fees for Johnson in

excess of $5900.

                  Appellees answered and generally denied the allegations in the petition. Further, appellees,

by sworn motion, challenged Johnson=s authority to represent appellant in the bill of review proceeding.1

See id. A hearing was set for 9:00 a.m. on March 9, 2001. On March 7, 2001, Johnson filed a response

titled AObjection & Reply To Motion To Show Authority.@ The response, however, did not address any

issues raised in appellees= motion to show authority; rather, it reiterated the contentions in the bill of review

petition that appellant was served improperly in the underlying property tax delinquency proceeding. The

only portions of the response related to appellees= motion to show authority were the statements that

Johnson was simply Anot available@ for a March 9 hearing and that it was a Aburden to appear in this matter

twice given the distance [she had to drive]@ and the fact that she was having car trouble.


        1
            Texas Rule of Civil Procedure 12 provides in relevant part:

            A party in a suit or proceeding pending in a court of this state may, by sworn written
            motion stating that he believes the suit or proceeding is being prosecuted or defended
            without authority, cause the attorney to be cited to appear before the court and show
            his authority to act.

Tex. R. Civ. P. 12.




                                                       3
                On March 9 the court held a hearing on appellees= motion to show authority. The only

attendees at the hearing were the attorneys for the appellees; Johnson did not appear nor did anyone on her

behalf. The record reflects that on March 9 at 10:06 a.m., Johnson submitted to the district court by fax a

first motion for continuance of the March 9 hearing. The court, however, at 9:20 a.m. had already

commenced the hearing.

                The reporter=s record from the hearing on the motion to show authority reflects the

following:


        The Court:                Isn=t there an order in the file removing her as attorney?

        The Clerk:                Not B B is it in that file?

        [Appellees= attorney]: No. What happened was there was in the originally filed
                               delinquent tax suit, it=s originally Mary Moursund was appointed
                               attorney ad litem. Then when we amended the suit to add
                               Horseshoe Bay Maintenance Fund, Inc., we had to remove
                               Mary. Then Betsy was appointed to serve as attorney ad litem.


                                  Then it was set for trial about four times, and she asked it to be
                                  passed every time. Then by the time we were ready to set it
                                  again, she had removed herself from the State of Texas to the
                                  State of Washington.

                                  She sent you a letter saying she intended to remove herself from
                                  all of the cases, so we=ve (sic) filed a motion to appoint B B
                                  another motion to appoint an attorney ad litem, court appoint
                                  Tim Cowart. We had our judgment with Tim representing the
                                  defendant.

                                  Then she filed this separate cause of action as a bill of review,
                                  and we don=t think under any circumstances she would have
                                  authority to file that either as an ad litem, or as a B B an attorney

                                                     4
                                    for the plaintiff, because it=s clear from the pleadings that she
                                    hasn=t contacted the plaintiff. She was still searching for him,
                                    and plaintiff was totally unaware of all of this because of the cite
                                    by posting. So I don=t think she has any authority to represent
                                    the B B

        .....

        The Court:                  The Court takes judicial notice of the facts just recited by
                                    [Appellees= attorney] and further of the fact that the Court has
                                    advised Ms. Johnson specifically because she was still
                                    submitting invoices to the court for work and the court
                                    appointments, that she was no longer an attorney under any
                                    court appointments in this district.

                                    Prior to the filing of this plaintiff=s original petition for bill of
                                    review, it is clear on the record for the original case . . . which
                                    was 10,693, in Llano County, that she was no longer the
                                    attorney of record in that case. Therefore, she could not
                                    possibly, under any theory whatsoever, have the authority at this
                                    point to file an original petition for bill of review.

                                    The Court further takes notice of her pleadings in this Cause
                                    Number 12,160, that she is still looking for Dr. Rudolf Michael
                                    Metz; further, that her pleadings are clearly purported to be in
                                    the capacity as attorney ad litem and guardian, as she says for
                                    Dr. Rudolf Michael Metz. Therefore, she could not possibly be
                                    representing him in any individual capacity of representation, and
                                    therefore cannot have authority in that manner.


                 At the conclusion of the hearing, the district court rendered a final order which concluded

that Johnson was without authority to file the bill of review on behalf of appellant and that no counsel

appeared on behalf of appellant. Further, the court ordered Johnson barred from continuing to represent

appellant and ordered the pleadings struck and the bill of review proceeding dismissed without prejudice.

The district court never reached the merits of the petition for bill of review.

                                                       5
                 Johnson, on behalf of appellant, filed an unsupported motion for new trial contending that

the district court erred in concluding that Johnson had no authority to bring the bill of review because there

had been no formal hearing with notice to Johnson that her appointment as attorney ad litem for appellant

was terminated, that the district court erred in failing to grant a continuance of the hearing on the motion to

show authority, and that service of process by publication in the underlying tax delinquency proceeding was

improper. The motion was overruled by operation of law.

                 Notice of appeal was timely filed. Johnson submitted and signed the notice of appeal

representing that AThe party filing this notice is the Plaintiff, Dr. Rudoulf Michael Metz, by Clara E. ABetsy@

Johnson, Attorney ad Litem and guardian appointed by the Trial Court.@ Accompanying the notice of

appeal was an affidavit of inability to pay the costs of appeal that reflected Johnson=s, not appellant=s,

financial status and contended that Johnson was unable to pay the costs of appeal. The appellees challenged

the affidavit, and following a hearing, the district court sustained the appellees= challenge to the affidavit of

inability to pay. The appellate records were prepared, the fees were paid, and the appeal has proceeded.


                                                 Discussion

                 On appeal, four issues are presented for review: (1) whether the district court erred in

failing to take the proper steps to terminate Johnson=s appointment as appellant=s attorney ad litem; (2)

whether the district court abused its discretion in failing to grant a continuance regarding a hearing

challenging the affidavit of inability to pay for the appellate record; (3) whether the district court abused its

discretion in granting the appellees= contest to the affidavit of inability to pay; and (4) whether the district




                                                       6
court erred in failing to conclude that the appellees did not comply with the rules of civil procedure relating

to service of process in the underlying property tax delinquency proceeding.

Johnson=s status as appellant=s attorney ad litem

                 Rule 12 of the Texas Rules of Civil Procedure requires a party who believes that a suit is

being prosecuted or defended without authority by an attorney to move before the parties have announced

ready for trial that such attorney not be permitted to appear in the cause. See Tex. R. Civ. P. 12; City of

San Antonio v. Aguilar, 670 S.W.2d 681, 684 (Tex. Civ. App.CSan Antonio 1984, writ dism=d). At the

hearing on the motion, the burden is upon the challenged attorney to show sufficient authority to prosecute

or defend the suit on behalf of the other party. Id. The district court=s finding that an attorney lacks

authority to file or maintain a suit is a conclusion of law. State v. Evangelical Lutheran Good Samaritan

Society, 981 S.W.2d 509, 511 (Tex. App.CAustin 1998, no pet.) (citing Gulf Reg=l Educ. Television v.

University of Houston, 746 S.W.2d 803, 806 (Tex. App.CHouston [14th Dist.] 1988, writ denied)). As

a conclusion of law, we review de novo the district court=s finding. Evangelical Lutheran, 981 S.W.2d at

511.

                 Appellant fails to directly challenge the district court=s basis for dismissal of the

proceedingsCthat Johnson was without authority to represent appellant in these bill of review proceedings.

However, in construing appellant=s issues broadly, we note that the second issue contends that the district

court failed to take the proper steps to remove Johnson as appellant=s prior attorney ad litem. As Johnson

did not appear at the hearing on the motion to show authority, this issue was raised for the first time in an

unsupported motion for new trial.


                                                      7
                 A motion for new trial that is overruled by operation of law preserves for appellate review a

complaint properly made in the motion, unless taking evidence was necessary to properly present the

complaint to the trial court. See Tex. R. App. P. 33.1. The contention that the district court erred in failing

to properly terminate Johnson=s ad litem appointment required some substantiation or evidence before the

district court. As there was no support for this assertion, it was not properly preserved for our review. See

Tex. R. App. P. 33.1(b). In the event, however, the assertion in the motion for new trial is properly before

us, we note that there are no statutory provisions or procedural rules outlining steps a court must take in

removing an ad litem from an appointment. See Coleson v. Bethan, 931 S.W.2d 706, 712 (Tex.

App.CFort Worth 1996, no writ). The Coleson court noted, however, that a motion pursuant to Texas

Rule of Civil Procedure 12 would be appropriate where Aperhaps the attorney ad litem=s duties had been

fulfilled but the attorney ad litem continued to act and failed to seek his or her discharge, as would be the

normal scenario.@ Id.

                 Although the record before us does not contain any documents from the underlying property

tax delinquency proceeding, as noted above, during the hearing on appellees= motion to show authority, the

district judge took judicial notice of several facts that occurred during the underlying tax delinquency

proceedings in which he was the presiding judge. The court took judicial notice that during the pendency of

the property tax delinquency proceeding Johnson sent the court a letter stating that she intended to remove

herself from all pending cases because she was moving out of the state. Further the court took judicial

notice that, at that time and in response to Johnson=s letter, appellees moved to appoint a replacement

attorney ad litem for appellant. The district court granted the appellees= motion, and appointed Tim


                                                      8
Cowart as the attorney ad litem to represent appellant. The court also took judicial notice that Cowart

represented appellant=s interests through the 1998 judgment. We note also that Johnson, in the statement of

facts portion of her brief, acknowledged that the district court had appointed Cowart as appellant=s ad

litem and that Cowart represented appellant through judgment.

                Johnson failed to appear at the hearing on the appellees= motion challenging her authority to

represent appellant, and, despite the fact that it was Johnson=s burden to show authority to represent

appellant in the proceeding, she failed to produce any evidence that would support such authority. Further,

the district court took judicial notice that during the underlying property tax delinquency proceeding, it had

appointed Cowart as appellant=s attorney ad litem replacing Johnson as appellant=s ad litem. Appellant=s

second issue is overruled.


Contest to inability to pay for appellate record

                In his third issue, appellant contends the district court abused its discretion in denying the

motion to continue the hearing on the contest to the affidavit of inability to pay for the appellate record

because he received insufficient notice of the date of the hearing. Further, in his fourth issue appellant

contends that the district court abused its discretion in Adenying the motion under TRCP 145 as to the

sufficiency of the evidence contesting such motion.@

                We first review the notice of appeal which was filed timely. It states, AThe party filing this

notice is the Plaintiff, Dr. Rudoulf Michael Metz, by Clara E. ABetsy@ Johnson, Attorney ad Litem and

guardian appointed by the Trial Court.@ Accompanying the notice of appeal was an affidavit of inability to


                                                       9
pay for the appellate record. This affidavit, however, was Johnson=s affidavit, not appellant=s affidavit. The

affidavit stated,




        My name is Clara E. Betsy Johnson. I am self employed as an attorney and am single. I
        reside at 113 East 20th, San Angelo, Texas. At this time my amount of self employment
        income is 600 dollars per month. At present I have the following monthly bills . . . . I am
        unable to pay court costs. I verify that the statements made in this affidavit are true and
        correct.


        Johnson signed the affidavit.

                         Johnson is not a party to this appeal. Further, an affidavit of inability to pay

        filed by Johnson explaining her inability to pay has no bearing on appellant=s ability to pay.

        Because Johnson is not an appellant, error, if any, by the district court related to the

        affidavit of inability to pay filed by Johnson did not probably cause the rendition of an

        improper judgment. See Tex. R. App. P. 44.1(a). Appellant=s third and fourth issues are

        overruled.


        Service of process in the prior property tax delinquency proceeding

                         Finally, appellant contends in his first issue that the district court erred in

        failing to rule that the appellees failed to comply with civil procedure rules regarding service

        of process in the underlying property tax delinquency proceeding. In this instance, the

        district court dismissed the bill of review proceeding without prejudice because the court

        concluded that Johnson was without authority to represent appellant. The district court

                                                      10
        never reached the substantive issue of whether the appellees complied with the rules of civil

        procedure in serving appellant with process in the underlying property tax delinquency

        proceeding. There is nothing preserved for our review. See Tex. R. App. P. 33.1(a).

        Appellant=s first issue is overruled.

                                                Conclusion

                         Having addressed all of appellant=s issues, we affirm the district court=s

        dismissal of the bill of review proceeding without prejudice.2




                                                          ________________________________

        _____________

                                                          Mack Kidd, Justice

        Before Justices Kidd, Patterson and Puryear

        Affirmed


        2
           We note that appellant submitted to this Court two motions to remand. The first motion to
remand was Afiled@ March 27, 2002, despite the fact that the filing fee had not been paid and the motion did
not contain a certificate of conference. This Court=s clerk=s office sent counsel notice of these defects,
however, the defects have not been cured. We dismiss this motion. See Tex. R. App. P. 10.1(a)(5).
Appellant also submitted an amended motion to remand on April 8, 2002. Again, a filing fee was not
submitted with the motion nor did the motion contain a certificate of conference. This Court=s clerk=s office
sent counsel notice of these defects and in the notice informed counsel that the motion was marked
Areceived@ and was not filed. As the defects in the amended motion have not been corrected, this Court
declines to file or address this motion.


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Filed: November 7, 2002

Do Not Publish




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