Affirmed and Memorandum Opinion filed September 11, 2018.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-17-00692-CV

                   JAMES ANTHONY DAVIS, Appellant
                                      V.
   ANGLETON INDEPENDENT SCHOOL DISTRICT, ANGLETON
DRAINAGE DISTRICT, ANGLETON-DANBURY HOSPITAL DISTRICT,
BRAZORIA COUNTY, CITY OF ANGLETON, PORT FREEPORT, AND
       SPECIAL ROAD AND BRIDGE DISTRICT, Appellees

                   On Appeal from the 239th District Court
                          Brazoria County, Texas
                       Trial Court Cause No. 84732-T

                 MEMORANDUM OPINION
      This appeal arises from a dispute regarding payment of property taxes. In
five issues, appellant James Anthony Davis challenges the trial court’s May 22,
2017 final judgment awarding outstanding property taxes to appellees Angleton
Independent School District, Angleton Drainage District, Angleton-Danbury
Hospital District, Brazoria County, City of Angleton, Port Freeport, and Special
Road and Bridge District (collectively referred to as the “Taxing Entity
Appellees”). For the reasons below, we affirm the trial court’s May 22, 2017 final
judgment.

                                       BACKGROUND

       Multiple Brazoria County taxing entities brought two suits to collect
outstanding property taxes owed on two tracts of land in Brazoria County: a tract
located in West Columbia (the “West Columbia tract”) and a tract located in
Angleton (the “Angleton tract”). The first suit was filed against Veronica L. Davis
and the second suit was filed against her son, James.1 This appeal arises from the
final judgment signed in the second suit.

       The taxing entities filed the first suit in September 2011 and sought to
collect from Veronica the 2009 and 2010 property taxes owed on the West
Columbia tract, along with the 2007, 2009, and 2010 property taxes owed on the
Angleton tract.2

       Veronica filed a motion to dismiss in July 2013, asserting that she paid the
property taxes owed on both tracts. Veronica’s motion stated that, despite her
payment, the taxing entities “advised [Veronica] that [they] could keep the suit
going until the 2012 taxes were paid, as allowed by statute.” Veronica asserted in
her motion that “she [wa]s no longer the owner of that property and is no longer
obligated for taxes for the year 2012.”

       1
        Because Veronica and James share the same last name, we refer to them by their first
names to avoid confusion. Veronica represents James as his attorney in the second suit.
       2
          The taxing entities named in the first suit’s original petition are Angleton Drainage
District; Angleton Independent School District; Angleton-Danbury Hospital District; Brazoria
County; Brazoria County Emergency Services District #1; Brazoria County Emergency Services
District #2; City of Angleton; City of West Columbia; Columbia-Brazoria Independent School
District; Port Freeport; Special Road and Bridge District; and West Brazoria County Drainage
District #11.

                                              2
       The taxing entities filed a first amended petition in August 2014 seeking
payment from Veronica only with respect to the 2013 property taxes owed on the
West Columbia tract.3 Veronica filed a combined answer and motion to dismiss
asserting that she paid all taxes owed on the West Columbia tract. The taxing
entities filed a motion in November 2014 seeking to dismiss their suit because “all
taxes, penalt[ies] and interest have been paid.”

       The trial court signed a final judgment in the first suit on November 18,
2014. The final judgment states that Veronica paid “all taxes due and owing in this
case” and “the costs ordered by the Court.” The trial court signed a separate
“Order of Dismissal” on the same day granting the taxing entities’ motion to
dismiss.

       The Taxing Entity Appellees filed the second suit in January 2016 and
sought to collect from James the 2012-2014 property taxes owed on the Angleton
tract. In their first amended petition, the Taxing Entity Appellees added a claim
for the Angleton tract’s 2015 property taxes. The Taxing Entity Appellees filed a
second amended petition that adjusted the amount of their requested recovery.

       James answered the Taxing Entity Appellees’ second amended petition and
asserted that “there are no delinquent taxes due for the years 2012 and 2013”
because those taxes were paid in connection with the first suit filed against
Veronica. James also asserted special exceptions that challenged the Taxing Entity
Appellees’ pleadings with respect to (1) fees; (2) causes of action; (3) court costs;
and (4) the identity of the plaintiffs.


       3
         The taxing entities named in the first suit’s first amended petition are Brazoria County;
Brazoria County Emergency Services District #1; Brazoria County Emergency Services District
#2; City of West Columbia; Columbia-Brazoria Independent School District; Port Freeport;
Special Road and Bridge District; and West Brazoria County Drainage District #11.

                                                3
       The second suit was set for trial in May 2017.4 The trial court signed a final
judgment on May 22, 2017, ordering James to pay the Taxing Entity Appellees
$892.85 for “delinquent taxes, penalties, interest, and costs” owed with respect to
the Angleton tract for 2012. The May 22, 2017 final judgment also orders James
to pay the Taxing Entity Appellees $200 “for ascertaining the name, identity, and
location of necessary parties and description of the property.”

       The trial court signed findings of fact and conclusions of law on July 14,
2017. James timely appealed.

                                          ANALYSIS

       James asserts five issues on appeal:

       1.     The first suit’s November 18, 2014 final judgment adjudicates the
              issue of the 2012 property taxes owed on the Angleton tract. The
              second suit’s May 22, 2017 final judgment, which awards the Taxing
              Entity Appellees “delinquent taxes, penalties, interest, and costs”
              owed on the Angleton tract for 2012, “is contradictory to and violative
              of” the first suit’s final judgment.
       2.     Res judicata precludes the second suit’s award of the 2012 property
              taxes owed on the Angleton tract because this issue was adjudicated in
              the first suit.
       3.     The May 22, 2017 final judgment lacks specificity and proper parties.
       4.     The attorney’s fees, penalties, and costs taxed against James in the
              May 22, 2017 final judgment are “duplicative, unreasonable or
              unsupported by statute.”
       5.     The evidence is insufficient to establish nonpayment of taxes.

We address these issues below. We overrule all five issues and affirm the trial
court’s May 22, 2017 final judgment.


       4
          Although the suit proceeded to trial, this appellate court did not receive a reporter’s
record for these proceedings. This court received an “Information Sheet by Court Reporters”
stating that there is no reporter’s record in this action.

                                               4
I.     Preclusive Effect of the November 18, 2014 Final Judgment

       James asserts that the November 18, 2014 final judgment signed in
 connection with the first suit prevents the Taxing Entity Appellees from recovering
 in the second suit for the 2012 property taxes owed on the Angleton tract. James
 argues that the Angleton tract’s 2012 property taxes were “adjudicated and found
 to have been paid” in the November 18, 2014 final judgment.

       The Taxing Entity Appellees contend that the November 18, 2014 final
 judgment did not adjudicate the 2012 property taxes owed on the Angleton tract.
 They point to the taxing entities’ first amended petition filed in the first suit, which
 omitted the entities’ claims with respect to the Angleton tract.

       An amended petition supplants any earlier petition. Tex. R. Civ. P. 65;
 Whole Foods Market Sw., L.P. v. Tijerina, 979 S.W.2d 768, 778 (Tex. App.—
 Houston [14th Dist.] 1998, pet. denied). “[C]auses of action not contained in
 amended pleadings are effectively dismissed at the time the amended pleading is
 filed.” FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255
 S.W.3d 619, 633 (Tex. 2008); see also Randolph v. Walker, 29 S.W.3d 271, 274-
 75 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The dismissal does not
 require a hearing and “[e]ntry of an order granting the nonsuit is ministerial.”
 FKM P’ship, Ltd., 255 S.W.3d at 632.

       Here, the taxing entities’ original petition filed in the first suit sought to
 recover outstanding property taxes for both the Angleton and West Columbia
 tracts. The taxing entities filed a first amended petition in August 2014 asserting
 tax claims only with respect to the West Columbia tract. The first amended
 petition did not include any claims seeking taxes for the Angleton tract. The first
 amended petition effectively dismissed the taxing entities’ claims with respect to
 the Angleton tract. See id.; Randolph, 29 S.W.3d at 274-75.
                                            5
      The first suit’s November 18, 2014 final judgment states that “[Veronica]
has paid all taxes due and owing in this cause.” The taxing entities’ first amended
petition was the live pleading at the time the November 18, 2014 final judgment
was signed and delineates the claims adjudicated by the judgment. See Tex. R.
Civ. P. 301 (“[t]he judgment of the trial court shall conform to the pleadings”); see
also Moran v. Williamson, 498 S.W.3d 85, 93 (Tex. App.—Houston [1st Dist.]
2016, pet. denied); Wilson v. McCracken, 713 S.W.2d 394, 395 (Tex. App.—
Houston [14th Dist.] 1986, no writ). The first amended petition did not include
any claims seeking property taxes with respect to the Angleton tract. Contrary to
James’s argument, the 2012 property taxes owed on the Angleton tract were not
adjudicated by the first suit’s November 18, 2014 final judgment.

      James also asserts that he was not record title holder of the Angleton tract on
January 1, 2012, and therefore “is not responsible for delinquent taxes for 2012.”
To support this claim, James references evidence and testimony heard in the first
suit and the deed records of Brazoria County. James did not provide citations for
this evidence or otherwise indicate that it was included in the appellate record.
Because this evidence is not a part of the record in this subsequent appeal, we do
not consider James’s argument that he is not the record title holder of the Angleton
tract. See Ramex Constr. Co. v. Tamcon Servs. Inc., 29 S.W.3d 135, 138 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).

      James contends that Veronica and the taxing entities entered into a Rule 11
agreement in the first suit for the payment of the 2012 property taxes at issue in
this second suit. James asserts that the Rule 11 agreement shows that Veronica
“accept[ed] responsibility for the [2012] taxes” owed on the Angleton tract.

      We disagree with James’s contention regarding the Rule 11 agreement. The
Rule 11 agreement was filed in the first suit on May 23, 2012, and states that

                                         6
  Veronica agreed to a 12-month payment plan with Brazoria County. With respect
  to the Angleton tract, the agreement states only that Veronica “will pay at a
  minimum 10% down.” The Rule 11 agreement does not indicate that Veronica
  “accept[ed] responsibility for the [2012] taxes” owed on the Angleton tract.

        We overrule James’s first issue.

II.     Res Judicata

        James’s res judicata argument, like those advanced in his first issue, asserts
  that liability for the Angleton tract’s 2012 property taxes was adjudicated in the
  first suit. James also argues that, to the extent his tax liability was not litigated in
  the first suit, he “should have been joined in the suit as a necessary party, pursuant
  to Texas Rule[] of Civil Procedure 39 . . . .”

        Res judicata bars a second action by parties and their privies on matters
  litigated in a prior suit and claims that, “through the exercise of diligence, could
  have been litigated in a prior suit.” Hallco Tex., Inc. v. McMullen Cty., 221
  S.W.3d 50, 58 (Tex. 2006); see also Johnson v. Oxy USA, Inc., 533 S.W.3d 395,
  401 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). The party asserting res
  judicata must prove (1) a prior final determination on the merits by a court of
  competent jurisdiction; (2) identity of the parties or those in privity with them; and
  (3) a second action based on the same claims that were or could have been raised
  in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.
  2010); see also Johnson, 533 S.W.3d at 401.

        Our analysis focuses on the third element, which is dispositive of James’s
  res judicata argument. James does not show that liability for the 2012 property
  taxed owed on the Angleton tract are claims “that were or could have been raised
  in the first action.” See Travelers Ins. Co., 315 S.W.3d at 862.


                                             7
      As discussed above, we disagree with James’s contention that the first suit
adjudicated the issue of the 2012 property taxes owed on the Angleton tract. When
the November 18, 2014 final judgment was signed, the taxing entities were not
asserting any claims seeking taxes owed on the Angleton tract — the taxing
entities’ first amended petition dismissed the claims arising from the Angleton
tract. See FKM P’ship, Ltd., 255 S.W.3d at 633; Randolph, 29 S.W.3d at 274-75.
The first suit did not adjudicate liability for the 2012 property taxes owed on the
Angleton tract and does not provide a basis to invoke res judicata. See Travelers
Ins. Co., 315 S.W.3d at 862; Johnson, 533 S.W.3d at 401.

      James also appears to address the “could have been raised” prong on appeal
insofar as he asserts that he “should have been joined in the [first] suit as a
necessary party, pursuant to Texas Rule[] of Civil Procedure 39 . . . .”        See
Travelers Ins. Co., 315 S.W.3d at 862.

      When it was filed in September 2011, the first suit sought to recover from
Veronica property taxes owed on both the West Columbia and Angleton tracts.
After Veronica stated in her motion to dismiss that “she [wa]s no longer the owner
of that property,” the taxing entities filed their first amended petition seeking to
recover only with respect to taxes owed on the West Columbia property. James
has not cited any case law or other authority to support his claim that he was a
necessary party to a suit involving a different piece of property owned by a
different person. We reject James’s argument that he was a “necessary party” to
the first suit and conclude that res judicata does not bar adjudication of the
Angleton tract’s 2012 property taxes in the second suit.

      We overrule James’s second issue.




                                          8
III.      Errors in the May 22, 2017 Final Judgment

          James contends that the second suit’s May 22, 2017 final judgment is in
   error because (1) the amount of damages it awards are not certain; (2) the trial
   court abused its discretion in failing to grant James’s special exceptions; and
   (3) Brazoria County was not named in the Taxing Entity Appellees’ second
   amended petition.

          James quotes in his appellate brief the following excerpt from the May 22,
   2017 final judgment and asserts that he is “unable to ascertain the amount of
   penalties, interest, court costs, and attorney’s fees” assessed:

          IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
          [the Taxing Entity Appellees], do have and recover from [James], as
          indicated above, the total sum of money due for taxes, penalties,
          interest, and attorney fees with penalty and interest continuing to
          accrue at the statutory rate from the date of judgment until paid or
          sold, plus all costs of court, for which let execution issue . . . .

   (emphasis added). This portion of the final judgment orders that the Taxing Entity
   Appellees are to recover from James the sums “indicated above.” Preceding this
   paragraph, the final judgment sets out the following itemization of amounts owed
   by James to the Taxing Entity Appellees:

          IT IS ORDERED, ADJUDGED, AND DECREED that the taxing
          entities which are parties to this suit have valid claims for delinquent
          taxes, penalties, interest, and costs allowed by law, which claims are
          secured by tax liens against the property hereinafter described and in
          the amounts indicated, to wit:
                                  *            *            *
       Taxing Unit                            Tract     Tax Years      Total
       Brazoria County                        TRACT 1   2012           $116.92
       Port Freeport                          TRACT 1   2012           $14.14
       Special Road and Bridge District       TRACT 1   2012           $16.48
       Angleton Independent School District   TRACT 1   2012           $399.50
       City of Angleton                       TRACT 1   2012           $198.64

                                                9
   Angleton-Danbury Hospital District   TRACT 1     2012           $98.71
   Angleton Drainage District           TRACT 1     2012           $48.46


      IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
      [the Taxing Entity Appellees] recover $200.00 for ascertaining the
      name, identity, and location of necessary parties and description of
      property.

A final judgment must be “definite and certain” such that “the clerk can ascertain
the amount to place in the writ of execution.” In re Blankenhagen, 513 S.W.3d 97,
100 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding [mand. denied]).
The May 22, 2017 final judgment is “definite and certain” — it quantifies the
amounts awarded for a total of $892.85 and, with reference to the “statutory rates”
for penalties and interest, provides the mechanism for calculating any additional
amounts owed.

      James contends that the trial court abused its discretion when it “failed to
address [his] special exceptions.” James’s special exceptions were included in his
answer and challenged the court costs, attorney’s fees, and interest included in the
Taxing Entity Appellees’ pleadings.          The record does not reflect that James
requested a hearing or obtained a ruling from the trial court with respect to these
special exceptions.

      Special exceptions are used to challenge a defective pleading. See Tex. R.
Civ. P. 91. Failure to obtain a timely hearing and a ruling on special exceptions
waives the exceptions and does not preserve them for appeal.           McAllister v.
Samuels, 857 S.W.2d 768, 773 (Tex. App.—Houston [14th Dist.] 1993, no writ)
(appellants asserted that the trial court erred by “entering a final judgment without
ruling on, or even considering,” their special exceptions; appellants waived error
on this point because the record did not show that appellants obtained a hearing
and a ruling on their special exceptions).

                                             10
            The appellate record does not show that James requested a hearing on his
      special exceptions, or that a hearing was held or a ruling obtained. James did not
      preserve this issue for appeal. See id.

            James asserts that the trial court erred when it granted relief to Brazoria
      County in the May 22, 2017 final judgment because “Brazoria County is not a
      named Plaintiff.” Contrary to James’s claim, Brazoria County was listed as a
      plaintiff in the Taxing Entity Appellees’ second amended petition, the live
      pleading at the time the final judgment was signed.

            We overrule James’s third issue.

IV.         Fees and Costs Included in the May 22, 2017 Final Judgment
            James’s fourth challenge addresses the May 22, 2017 final judgment’s
      inclusion of collection costs, attorney’s fees, sheriff’s department service fees, and
      research fees.

            James asserts that “an alleged delinquent tax payer shall not pay collection
      costs, as well, as attorney’s fees” because “seeking both collections costs and
      attorney fees are violative of the statute and prohibited by law.” James cites to
      Texas Tax Code sections 33.07 and 33.48 to support his argument. See Tex. Tax
      Code Ann. §§ 33.07, 33.48 (Vernon 2015).

            The Taxing Entity Appellees respond that they “did not seek, and the [May
      22, 2017] Judgment does not award, [the Taxing Entity Appellees’] attorney’s fees
      under Tax Code § 33.48.”

            The section of the May 22, 2017 final judgment that itemizes the Taxing
      Entity Appellees’ recovery does not mention attorney’s fees.5 James did not cite to


            5
               The section of the May 22, 2017 final judgment that itemizes the Taxing Entity
      Appellees’ recovery states “IT IS ORDERED, ADJUDGED, AND DECREED that the taxing
                                                11
any part of the appellate record that indicates he is liable for both collection costs
and attorney’s fees. We overrule James’s argument challenging the award of
attorney’s fees.

       James also challenges the sheriff’s department’s service fees and asserts that
the fees are “unreasonable” and that “the Sheriff did not testify as to any efforts
regarding service.” But James does not cite to any part of the appellate record that
indicates he is required to pay these fees or in what amount. Neither the May 22,
2017 final judgment nor the trial court’s bill of costs assesses these costs against
James. Unable to ascertain whether and in what amount the sheriff’s department’s
service fees were assessed, we cannot evaluate James’s arguments on this point.

       James asserts that the $200 research fee included in the second suit’s May
22, 2017 final judgment is “in all things unreasonable.”

       Texas Tax Code section 33.48(a)(4) provides that, in a suit to collect a
delinquent tax, a taxing unit may recover “reasonable expenses that are incurred by
the taxing unit in determining the name, identity, and location of necessary parties
and in procuring necessary legal descriptions of the property on which a delinquent
tax is due.” Tex. Tax Code Ann. § 33.48. We previously have upheld a $250
research fee assessed in an action to collect unpaid property taxes. See Rogers v.
Fort Bend Indep. Sch. Dist., No. 14-10-00968-CV, 2011 WL 2685742, at *1-2
(Tex. App.—Houston [14th Dist.] July 12, 2011, no pet.) (mem. op.).

       James does not cite any case law or other authority to support his challenge
to the reasonableness of the $200 research fee included in the May 22, 2017 final
judgment.      We overrule James’s fourth issue challenging the fees and costs
included in May 22, 2017 final judgment.

entities which are parties to this suit have valid claims for delinquent taxes, penalties, interest,
and costs allowed by law . . . .” (emphasis added).

                                                12
V.     Sufficiency of the Evidence

       Challenging the evidence presented at trial, James asserts that the Taxing
 Entity Appellees “failed to put on sufficient evidence that taxes were due and
 owing.”   James argues that he “submitted evidence that judgment had been
 rendered showing all taxes had been paid . . . along with payment records . . . and a
 fax to Appellee’s [sic] counsel showing proof of payment.”

       James supports his argument with reference to several documents listed as
 “exhibits” in the clerk’s record. We did not receive, and James does not cite to, a
 reporter’s record transcribing the proceedings held in the trial court. The court
 reporter’s information sheet states that a reporter’s record was not made in this
 proceeding.

       “When an appellant challenges the sufficiency of the evidence supporting
 the trial court’s judgment against him, he cannot prevail without first meeting his
 burden of presenting a sufficient record on appeal because it is presumed that the
 omitted portions of the record support the trial court’s judgment.” Cisneros v.
 Cisneros, No. 14-14-00616-CV, 2015 WL 1143125, at *3 (Tex. App.—Houston
 [14th Dist.] Mar. 12, 2015, no pet.) (mem. op.); see also Schafer v. Conner, 813
 S.W.2d 154, 155 (Tex. 1991) (per curiam); Pub., Inc. v. Cty. of Galveston, 264
 S.W.3d 338, 341-42 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

       James did not meet his burden of presenting a sufficient record on appeal.
 Without a reporter’s record showing the evidence and arguments heard by the trial
 court as well as the parties’ objections and the trial court’s rulings thereon, we
 cannot evaluate James’s evidentiary sufficiency challenges.       See Schafer, 813
 S.W.2d at 155; Pub., Inc., 264 S.W.3d at 341-42; see also Cisneros, 2015 WL
 1143125, at *3.


                                          13
        Moreover, the arguments advanced in James’s fifth issue appear to reassert
the contentions discussed above.       Referencing the November 18, 2014 final
judgment and “Order of Dismissal” signed in the first suit, James asserts that he
“submitted evidence that judgment had been rendered showing all taxes had been
paid . . . .”

        We rejected this argument in our analysis of James’s first and second issues
on appeal. The filings in the first suit and the November 18, 2014 final judgment
do not show that the 2012 property taxes owed on the Angleton tract were
adjudicated in the first suit as necessary to limit the Taxing Entity Appellees’
recovery in the second suit.

        We overrule James’s fifth issue.

                                    CONCLUSION

        We overrule James’s issues on appeal and affirm the trial court’s May 22,
2017 final judgment.




                                           /s/    William J. Boyce
                                                  Justice


Panel consists of Justices Boyce, Donovan, and Wise.




                                             14
