### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-12-00786- CV

Dennis C. Davis, App ellant

v. F ayett e County Appraisal District, Appellee

F ROM TH E DISTRI CT COURT O F F AY ETTE COUNTY , 155 TH JUDICI AL DISTRICT NO. 345 0, H ONO RAB LE JEF F R. STEINH AUSER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw the opinion and judgme nt dated J uly 18, 2014 , an d s u b stitut e the following opinion and judgme nt in their place . We deny appellant’ s motion for rehe aring

. Dennis C. Davis appea ls p ro se from a judgme nt in the Fa y ette County Appra isal District’s favor

. The trial court decr eed that Davis owed the District $1,431.74 in delinquent taxes, penalties, and interest on a roy alty interest in a particula r trac t of land and denied all other reque sted relief

. The District rele ased the judgme nt lien two months l ater . On appe al, Davis c halleng es t he sufficie ncy of the evidenc e supporting the judgme nt awa rding delinquent taxes to the District. The District’s rele ase of the judgme nt moots this issue on appea l. Davis also contends that the trial court

err ed by deny

ing his counter claims for libel, slander, defa mation, civil conspirac y , and violation of the Dec eptive T ra d e Practice s Act and his motion for sanctions. We will vacate the trial court’sjudgme nt in part and dismiss the portion of the judg ment awa rding delinquent taxes as moot. W e will aff irm the rest of the judgme nt beca use Davis prese nted no evidenc e in the trial court supporting his counterc laims or motion for sanctions.

BACK GR OUND The District sued Davis for failing to pay proper ty taxes owed to taxi ng units in
Fa y ette Count y o n Marc h 29, 2012. See Tex. Tax Code § 33.43 (establishing require ments for petition initiating suit to collect delinquent proper ty tax). Davis fi l ed a n u m b er of responsive pleading s, including an answe r, counter claims, and a motion for sanctions. Davis contende d that he did not owe the delinquent taxes and thus had been wrong fully sued; t h i s contention formed the basis for his counte rcla ims and motion for sanctions.

The District set the ca s e fo r t rial on October 31, 2012. The District serve d Davis with notice of the trial setting on September 14, 2012. The cler k’s rec ord contains neither a reque st from Davis (who was incar cer ate d at t h e t i m e) seeking a bench warrant to appea r for the t rial nor
any other pleading seeking to d el ay the trial. Davis did not appea r for trial, and conseque ntly , he
prese nted no testimony

or other e vidence in support of his claims. The judgme nt states that the trial court considere d the pleadings , evidence, and
arg uments prese nted. The District prese n t ed t h e affidavit of t he tax collector cer tify ing a copy of the delinquent tax roll statement ref lecting that Davis owed $1,431.74 to the various taxi ng units for his interest in the proper

ty trac t descr ibed on the statement. See id. § 33.47 (providing that cer tified copies of entries showing proper ty and amount of tax and penalt i es i m p o sed and interest acc rued constitute prima fac ie evidenc e that law rel ated to imposit ion of tax has been complied with and

2that amount of delinquent tax, penalties, and interest listed is corr ect) ; see also Tex. R. Civ. P. 241

(establishing that damag es shall b e as s essed by trial court on liquidated claim proved by written instrument when defa

ult judgme nt is rende red ag ainst defe ndant). The trial court rende red judgme nt in favor of t he Dist rict and order ed that “any relief p re v i o u s l y reque sted and not here in g rante d is expressly denied.” Davis filed a notice of appea l on November 27, 2012. The District filed a rele ase of the judg ment lien on J anuar y 9, 2013.

ANALYSIS Davis primarily challeng es t he trial court’s denial of hi s counter claims and mot ion for sanctions, both of which wer e based on his asser tion that the District and its attorney knowing ly fil ed a fr i v o lous pleading that was defamator y , slanderous, and fra

udulent. He also contends that the District continued to r ely on its a lleg edly fra udulent pleading

throug h trial, which we rea d as a challeng e to the suff

iciency of the e vidence supporting the awa rd of de linquent tax es. The District h as m oved to dismiss Davis’s appea l, asser ting that this Court lacks jurisdiction to hear it. The District contends that Da vis asks for a ffirma tive relief that can only

be
g rante d by a trial court, citing Tex as C onstitut ion article V, sec tion 8 for the proposition that only
state trial courts have the power of g en er al jurisdiction. The District further arg ues that Davis’s brief fails to cite au t h o ri t y t h at supports his appea l and fails to adequately brief the issues. See Tex. R. App. P. 38.1(i) (re quiring clea r and concise arg ument for contentions and appropr iate

c it a ti o n s to a u th o r it ie s a

n d r e c o r d )

. I

n a d d it io n , th e D is tr ic t a s s e r ts th a t it s f u ll r e le a s e o f th e ju d g me n t
ag ainst Davis mooted the appea l and we there fore should not decide the issues prese nted on appea l.
3See R a

p p v. Ma ndell & W

right, P.C. , 123 S.W .3d 431, 435-36 (Tex

. App.—Houston [14t h Dist.] 2003, pet. denied) (explaining that judgme nt cre ditor’s unconditional rele ase of judgme nt opera tes as total relinquishment of all of judg ment cre ditor’s rig hts in judgment).

As a preliminary matter, we addre ss the District ’s co n tention that the rele ase of judgme nt lien moots the appea l. A case become s moot if a controve rsy cea ses to exis t betwee n the parties at any stag e of the leg al proce eding s, including the appea l. In re Kellogg Brown & Root, Inc. , 166 S.W .3d 732, 737 (Tex. 2005) (orig

. proce eding ). I n this case , Davis’s briefing can be liberally construed as challeng ing the sufficie ncy of the evidenc e supporting the trial court’s judgme nt
t h at he owed $1,431.74 to the various taxi ng units. Howeve r, t he Dist rict’s unconditional rele ase of judgme nt opera ted as a total relinquishment of all i t s ri gh t s in the judgme nt and a complete d is c h a r g e o f th e d e b t c r e a

te d b y th e ju d g me n t. S

e e R a p p , 1 2 3 S. W. 3 d a

t 4 3 5

- 3 6

. Co n s e q

u e n tl y , to th e
extent that Davis challeng es the awa rd of delinquent taxes, that issue is now moot. See Lee v. Dyk es , 3 1 2 S

. W.3d 191, 194 (Tex. App.—Houston [14t h Dist.] 2010, no pet.) (holding that plaintiffappellee ’s re lease of j udg ment rela ted t o portion of damag es award mooted defe ndant-a ppellant’s issues challeng ing that portion of awa rd and aff irming judgme nt r elative to tha t por tion of awa

rd). Wit hout ref

ere nce to the merits of the i s s u e, we vacate the portion of the trial court’s judgme nt

awa rding deli n q u ent taxes to the District. See Coburn v. Moreland , 433 S.W .3d 809, 826 (Tex. App.—Austin 2014, no pet.) (c oncluding that appellate court should vacate trial court’s judgment in part when issue become s moot during a p p e a l) ; Th o m

p s o n v
. R ic a r

d o , 2 6 9 S. W. 3 d 1 0 0 , 1 0 5 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 2 0 0 8 , n o p e t. ) (vac ating portion of trial court’s sanctions order beca use appea l beca

me moot). This conclusion, howeve r, does not re quire dismissal of the appe al.

4A case is not rende red moot simply beca use some of the issues become moot during the appellate proce ss. In re Kellogg Brown & Root, Inc. , 166 S.W .3d at 737 (citing Allstate Ins. Co.

v. Hallman , 159 S.W .3d 640, 642-43 (Tex. 2005) (holding d ispute over attorney s’ fee s was live
controve rsy and thus case was not moot), and Camarena v. Texas Emp’t Comm’n , 754 S.W .2d 149, 151 (Tex. 198 8 ) (s am e) ). The primary focus of Davis’s brief is his contention that the trial court should not have denied his counter claims and his motion for sanctions, which wer e independe nt claims for aff

irmative relief

. See Tex. R. Civ. P. 47 (identify ing counter claims as claims for relief ); University of Tex. M

ed. Branch at Galv eston v. Estate of B lackmon ex rel. Shultz , 195 S.W .3d 98, 101 (Tex. 2006) (per cu ri am ) (e x plaining that claim for aff irmative relief must alleg e claim independe nt of plaintiff’s claim on which claimant coul d re cover compensa tion even if plaintiff abandons or cannot establish his own claim); cf. Tex. R. Civ. P. 162 (plaintiff’s rig ht to nonsuit case shall not prejudice adver se party ’s rig ht to be hear d on pending claim for aff irmative relief

). A live

co n t rover sy rema ins beca use if we ag ree d with Davis that the trial court err ed by deny ing hi s
counter claims and motion for sanctions, we would reve rse and rema nd the case to the trial court to

c o n s id e r th o s e is s u e s o r w e w o u ld r e v e r s e a n d r e n d e r th e ju d g me n t th e tr ia l c o u r t s h o u ld h a

v e r e n d e r e d

. See Allstate , 159 S.W .3d at 643. Theref o re , we d eny the District’s motion to dismiss the appea l. We next consider the adequa cy of Davis’s briefing

. We must re asonably and 1

After his briefing had been completed, Davis asked this Court to appoint appellate counsel 1 for him. Be ca u s e this Court is not empower ed to appoint counsel for litigants, we interpre t his reque st a s a motion to abate to allow him to seek appointment of c ounsel from the trial court. We note, howeve r, that Da v i s previously asked the trial court to appoint appellate counsel and the trial court did not do s o . W e fu rt h er n o te that the trial court has the power to appoint counsel in civil case s in very

limit ed cir cumstance s, none of whic h are prese nt in this case . See A ssignees of Best Buy v. Combs , 395 S.W .3d 847, 862-63 (Tex. App.—Austin 2013, pet. denied) (i d en t i fy i n g 5liberally construe the Texas Rules of Appellate Procedur e “ s o t h at the right to appellate revie w i s

not lost by waiver ”; we also “should rea ch the merits of an appea l w heneve r re asonably possible.” Perry v. Cohen , 272 S.W .3d 585, 587 (Tex. 2008). Davis provides sufficie nt arg ument and citation
to leg al authorities to acqua int the Court with the issues in the case and t o decide the case . See Tex. R. App. P. 38.9 (re quiring appellate courts to liberally construe briefing rules). Rather than providing citations to the rec ord, howeve r, Davis relies on documents attache d to his brief that

are not part of the appellate rec ord. See id. R. 34.1 (def ining appellate rec ord as cler k’s rec ord and
any repor ter’s rec ord nece ssary to appea l). Attaching documents as exhibi ts or appendic es to briefs does not constitute fo rm al i n clus ion in the appellate rec ord; thus, we cannot consider these documents. See, e.g. , Cantu v. Hor any , 195 S.W .3d 867, 870 (Tex. App.—Dallas 2006, no pet.); Adams v. Rey nolds Tile & Flooring, Inc. , 120 S.W .3d 417, 423 (Tex. A pp.—Houston [14t h Dist.] 2003, no pet.). We are limit ed to the appellate rec ord provided. Save Our Springs Alliance, Inc. v. City of Dripping Spr ings , 304 S.W .3d 871, 892 (Tex. App.—Austin 2010, pet. denied).

Wit h this limit ation in mind, we turn to the live issue on app ea l

. Da v i s asks us to rende r judgme nt in his favor on his counter claims and his motion for sanctions, asser ting that we
must re nder the judgme nt tha t the trial court should have rende red. A pro se litigant is he ld to the 2

same standards as licensed attorney s and must comply with applicable laws and rules of proce dure.

circ umstances in which trial courts are authorized to appoint counsel in civil case s). There fore , we deny Davis’s motion to abate. We note that this is relief that we have jurisdiction to consider g ranting , contra ry to the 2 District’s asser

tion in its motion to di smiss t hat Davis see ks relief that may only be g rante d by

the trial court. See Tex. R. App. P. 43.2(c) (appe llate court may reve rse trial court’s judgme nt in whole or in part a

nd rende r judg ment trial court should have rende red)

. 6Mansfield State Bank v. Cohn , 573 S.W .2d 181, 184-85 (Tex. 1978); Leonard v. Abbott , 171 S.W .3d

451, 461 (T ex . Ap p . —Austin 2005, pet. denied)

. Both at trial and on appea l, the pro se party
must proper ly prese nt his case . Strange v. C o n t i n ental Cas. Co. , 126 S.W .3d 676, 677-78 (Tex. App.—Dallas 2004, pet. denied)

. Nothing in the rec ord bef ore us indica tes that Davis eve r set his
counter claims or motion for sanctions for any hear ing separ ate from the trial on the merits set by the District, and Davis did not appea r at trial. See 155th ( Tex.) D ist. Ct. L oc. R. 203 (Austin, Waller,

3 and Fay ette C ounties) (“All settings are to be ini tiated by contac ting t h e court’s coordinator. The coordina tor will se t a ll matter s.”). A trial court may proper ly rende r a ta ke-nothing judgme nt on a
counter claim when a defe ndant fails to appea r at a trial on the merits and prese nt evidenc e on his claim. W alker v. Kleiman , 896 S.W .2d 413, 416 (Tex. App.—Houston [1st Dist

. ] 1 9 9 5, no writ) (citing Bradley Motors, Inc. v. Mack ey , 878 S.W .2d 140, 140 (Tex. 1994) (per curia m), as example of post-answe r defa

ult judgme nt case in which trial court al so g rante d take- nothing judgme nt on defe ndant’s counter claim). We c onclude that it was also proper for the trial court to rende r a takenothing judgme nt on Davis’s motion for sanctions when he failed to appea r at the trial on the merits and prese nt evidenc e on his claim. We overr ule Davis’s issue challeng ing the trial court’s denial of his counterc laims and his motion for sanctions.

Although not prese nted as an i s s u e i n his appellate brief, Davis asser ts in his notice of 3 appea l and in his response to the District’s motion to dismiss that he “wa s not allowed and actua lly denied from participa ting in the proce eding .” A prisoner has no absolute rig ht to be prese nt in a civil action, and a prisoner reque sting a bench war rant must make a showing that justifies the need for his prese nce. See I

n re Z.L.T

. , 124 S.W .3d 163, 165-66 (Tex

. 2003). Nothing in the appe llate re cord indicates that Davis reque sted a bench war rant and that the trial court failed to consider or act upon his requ es t

. Da v i s h as failed to prese rve err or on this issue (to the extent that he has raised it) beca use t he record does not ref lect that he made a timely reque st or m otion to appea r at trial. See Tex. R. App. P

. 33.1(a) (1). Fur ther m o re , we note t hat Davis corr esponded with the t rial court on November 1, 2012, inquiring about the status of his case “[ d ] u e to the inability of being able to attend my past

court da te of 10/31/12,” whic h shows that he had notice of the trial da te. 7CONCLUSION Be cause the District’s rele ase of judgme nt lien moots Davis’s challeng e to the awa rd of delinquent taxes, we vacate the porti on of t he trial court’s judgment awarding delinquent t axes without r efe renc e to the merits. We a ffirm the rema inder of the trial court’s judgme nt be cause the trial court pr operly

denied Da

vis’s counterc laims and motion for sanctions.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med in Part; Vac ated in Part on Motion for Rehe aring Filed: Nove mber 4, 2014

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