Samuel T. Russell v. Linebarger, Goggan, Blair & Sampson, LLP

Affirmed and Opinion Filed April 24, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00224-CV

SAMUEL T. RUSSELL, Appellant
V.
LINEBARGER, GOGGAN, BLAIR & SAMPSON, LLP, ET AL., Appellees

On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-10621

MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Smith
Opinion by Justice Partida-Kipness
Pro se appellant Samuel T. Russell filed suit against the law firm Linebarger,

Goggan, Blair & Sampson, LLP (LGBS), complaining about the firm’s alleged

failure to properly apply payments toward Russell’s delinquent property taxes. In

subsequent petitions, Russell added as defendants over twenty Texas counties (the

Texas Counties) and the City of Philadelphia, Pennsylvania (together, the

Governmental Appellees). In response, LGBS and the Governmental Appellees

(together, Appellees) filed pleas to the jurisdiction. The trial court granted the pleas

and dismissed the suit. Russell now appeals.
We construe Russell’s brief to assert five issues: (1) the trial court erred in

granting the pleas to the jurisdiction; (2) the trial court abused its discretion in

denying Russell’s motion for default judgment; (3) the trial court improperly

transferred the case; (4) the trial court’s errors deprived Russell of his property and

due process; and (5) the trial court erred by denying Russell the right to a jury trial.

Finding no merit in Russell’s arguments, we affirm the trial court’s judgment.

BACKGROUND
In 2017, Dallas County and several other taxing units filed suit against

Russell. The suit arose from delinquent ad valorem taxes on a property Russell

owned located at 3717 Spence Street, Dallas, Dallas County, Texas. By contract,

LGBS acted as the legal counsel for Dallas County and the other plaintiffs in their

tax suit against Russell. After a trial, on October 23, 2018, the 160th Judicial District

Court of Dallas County entered a judgment against Russell and in favor of the taxing

units. The judgment awarded $20,284.62 in taxes, penalties, interest and fees,

foreclosure of the tax liens, recoveries for liens imposed by the City of Dallas, and

related court costs. Russell appealed that judgment to this Court. On October 31,

2019, this Court affirmed the trial court’s judgment, which became final after Russell

filed no further appeal.

Two years later, Russell filed this suit against LGBS in the 116th Judicial

District Court of Dallas County. Russell generally asserted LGBS had not properly

applied tax payments Russell made against the 2018 judgment. Russell asserted

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claims for breach of contract and breach of fiduciary duty, among others. In

numerous amended petitions, Russell added the Texas Counties and the City of

Philadelphia as defendants.1 Russell’s petitions alleged no specific acts by these

Governmental Appellees or any connection to the prior tax suit or his Dallas County

property.

The Governmental Appellees and LGBS answered the suit and each filed

pleas to the jurisdiction. In their pleas, Appellees asserted the trial court lacked

subject-matter jurisdiction because Russell failed to present a justiciable controversy

and Appellees were entitled to governmental immunity. Russell filed several

responses to the pleas but did not offer any evidence in support. On June 9, 2022,

the trial court signed an order granting the Governmental Appellees’ plea to the

jurisdiction and dismissing the case against them without prejudice. On February 10,

2023, the trial court signed an order granting LGBS’s plea to the jurisdiction and

dismissed the case in its entirety. This appeal followed.

STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court’s jurisdiction to hear the

case. Abbott v. Mexican Am. Legis. Caucus, 647 S.W.3d 681, 689 (Tex. 2022). We

review a trial court’s order granting or denying a plea to the jurisdiction de novo.

1
The Texas Counties listed in Russell’s live petition at the time of the plea to the jurisdiction
included Aransas, Atascosa, Bexar, Brooks, Cameron, Coleman, Delta, Ector, Galveston, Grayson,
Harrison, Henderson, Hidalgo, Johnson, Kaufman, Kinney, Liberty, Madison, Matagorda, Maverick,
Morris, Nueces, Rockwall, San Saba, Smith, Tarrant, Wilson, and Wood Counties.
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Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010). We consider

the pleadings, factual assertions, and all relevant evidence in the record. City of

Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018).

Pleadings are construed liberally in favor of the plaintiff to determine whether the

facts alleged affirmatively demonstrate the court’s jurisdiction to hear the matter. Id.

The trier of fact resolves the jurisdictional issue if evidence in the record raises a fact

issue; however, the trial court rules as a matter of law if the evidence is undisputed

or fails to raise a fact question. Id. The burden is on the plaintiff to affirmatively

demonstrate the trial court’s jurisdiction. Heckman v. Williamson Cnty., 369 S.W.3d

137, 150 (Tex. 2012).

ANALYSIS
Before addressing Russell’s arguments, we must address the proper scope of

the appeal. Russell submits five “Issues Presented” in his brief. However, Russell

often deviates from his “Issues Presented,” attempts to address the merits of his

claims, and presents unclear and disorganized arguments.

Pro se litigants like Russell are held to the same standards as licensed

attorneys and must comply with the applicable procedural rules and substantive law.

See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978); Strange v.

Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied). On

appeal, as at trial, the pro se appellant must properly present its case. Strange, 126

S.W.3d at 677. The rules of appellate procedure require appellant’s brief to contain

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“a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record.” TEX. R. APP. P. 38.1(h). An issue on appeal

unsupported by argument or citation to any legal authority presents nothing for the

court to review. Strange, 126 S.W.3d at 678. An appellate court has no duty to

perform an independent review of the record and applicable law to determine

whether the error complained of occurred. Id.

Although Russell’s issues are inadequately briefed and largely could be

overruled as such, we will consider his issues to the extent we can determine their

nature. See Castleberry v. New Hampshire Ins. Co., 367 S.W.3d 505, 507 (Tex.

App.—Texarkana 2012, no pet.). We construe Russell’s appeal to assert five issues:

(1) the trial court erred in granting the pleas to the jurisdiction; (2) the trial court

abused its discretion in denying Russell’s motion for default judgment; (3) the trial

court improperly transferred the case; (4) the trial court’s errors deprived Russell of

his property and due process; and (5) the trial court erred by denying Russell the

right to a jury trial. We address each issue in turn.

I. Trial Court Properly Granted the Plea to the Jurisdiction
We first address whether the trial court erred in granting Appellees’ pleas to

the jurisdiction. In their jurisdictional plea, the Governmental Appellees asserted

Russell failed to establish any justiciable controversy and any claims against the

Texas Counties are barred by governmental immunity. In its jurisdictional plea,

LGBS asserted Russell’s claims are barred by governmental immunity.

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Instead of addressing the grounds for the pleas to the jurisdiction asserted at

the trial court, Russell argues the merits of his claim. He contends Appellees violated

a purported agreement2 regarding Russell’s payment of delinquent property taxes.

Russell has failed to provide us with argument, analysis, or authorities that make his

appellate complaints viable. Russell does not provide any substantive argument as

to why Appellees were not entitled to dismissal on the grounds raised in their pleas

to the jurisdiction.

A. Appellees were entitled to dismissal
Even if Russell had adequately briefed the issue, Appellees were entitled to

dismissal because Russell’s suit failed to present a justiciable controversy, and

Appellees were entitled to governmental immunity.

1) No justiciable controversy
Subject-matter jurisdiction requires a live controversy between the parties,

and the case must be justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245

(Tex. 1994). For a controversy to be justiciable, there must be a real controversy

between the parties that will be actually resolved by the judicial relief sought. Id.

Russell’s suit alleges improper application of payments toward his delinquent

Dallas County property taxes. However, “[i]t has always been the primary and

fundamental rule that no sovereignty or taxing district could exercise the power of

2
Russell’s repeated references to an “agreement” or “contract” appear to relate to the 2018 tax
judgment.
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taxation, except as to property actually or constructively within its jurisdiction. This

rule applies to counties and municipalities, as well as states.” Great S. Life Ins. Co.

v. City of Austin, 112 Tex. 1, 243 S.W. 778, 780 (1922) (emphasis added); Avery v.

Guadalupe Cnty. Appraisal Dist., No. 04-16-00572-CV, 2017 WL 1337640, at *7

(Tex. App.—San Antonio Apr. 12, 2017, pet. denied) (mem. op.) (same); see also

TEX. TAX CODE § 21.01 (“Real property is taxable by a taxing unit if located in the

unit….”) (emphasis added); id. § 6.23(a) (“The county assessor-collector shall assess

and collect taxes on property in the county for the county.”) (emphasis added).

Here, the real property underlying the 2018 tax suit against Russell is located

at 3717 Spence Street, within the City of Dallas and Dallas County. Dallas County

and the other taxing units within Dallas County secured the 2018 judgment against

Russell for delinquent property taxes on this property. In his numerous petitions,

Russell alleged no facts showing how the Governmental Appellees (comprising the

twenty-eight Texas Counties and the City of Philadelphia, Pennsylvania) have any

power to assess or collect taxes on Russell’s Dallas County property or apply

delinquent tax payments related thereto. In response to the Governmental Appellees’

plea to the jurisdiction, Russell provided no evidence or argument as to why his

claims against these entities had any relation to his property or his lawsuit.

There is no factual or legal basis to support Russell’s claims against the

Governmental Appellees. Those entities have no power to tax Russell’s real property

or apply tax payments thereto. See Great S. Life Ins., 243 S.W. at 780. The relief

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sought against the Governmental Appellees, even if granted by the trial court, could

not resolve any purported dispute between the litigants. See Gomez, 891 S.W.2d at

245–46 (claims against State Bar of Texas, seeking to compel free legal services,

lacked justiciability from the outset because the state bar lacked power to implement

a mandatory pro bono program for Texas lawyers). Therefore, Russell’s suit against

the Governmental Appellees presents no justiciable controversy, depriving the trial

court of subject-matter jurisdiction. See id. Furthermore, we conclude Russell could

not amend his complaint to possibly create a justiciable controversy between himself

and the Governmental Appellees regarding the delinquent taxes on Russell’s Dallas

County property. Accordingly, the trial court did not err in granting the

Governmental Appellees’ plea to the jurisdiction.

2) Governmental immunity
Governmental immunity also bars Russell’s claims against the Texas Counties

and LGBS.

Political subdivisions of the state—such as counties, cities, and school

districts—are entitled to governmental immunity. Rosenberg Dev. Corp. v. Imperial

Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019); Reata Constr. Corp. v. City

of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity encompasses

immunity from suit and immunity from liability. Reata Constr., 197 S.W.3d at 374.

Immunity from suit deprives a trial court of subject-matter jurisdiction. Id.

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Suits against taxing entities for actions taken in the course of assessing and

collecting taxes are barred by governmental immunity. Ross v. Linebarger, Goggan,

Blair & Sampson, L.L.P., 333 S.W.3d 736, 745 (Tex. App.—Houston [1st Dist.]

2010, no pet.) (citing TEX. CIV. PRAC. & REM. CODE § 101.055 (providing for no

waiver of immunity under Texas Tort Claims Act for any claim arising in connection

with assessment or collection of taxes by governmental unit)); see also TEX. CIV.

PRAC. & REM. CODE § 101.001(3)(B) (“governmental unit” includes counties).

Furthermore, an agent performing the governmental function of collecting

taxes on behalf of a taxing unit is entitled to governmental immunity. Ross, 333

S.W.3d at 745-47 (law firm engaged by city, county, and school district, as taxing

entities, for collecting delinquent property taxes was immune from suit as a

governmental agent for its actions taken while collecting the taxes); see Vo v.

Linebarger, Goggan, Blair & Sampson, LLP, No. 05-21-00308-CV, 2022 WL

2235982, at *3 (Tex. App.—Dallas June 22, 2022, no pet.) (mem. op.) (law firm

acting as agent for Harris County was entitled to governmental immunity on claims

arising from county’s attempt to collect unpaid tolls); see also TEX. TAX CODE §

6.30(c) (taxing units may contract with any competent attorney to represent the unit

to enforce the collection of delinquent taxes).

Here, Russell failed to allege any specific or relevant acts by the Texas

Counties related to his causes of action. Instead, all of his causes of actions stem

from general accusations the defendants failed to properly apply Russell’s payments

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toward the 2018 tax judgment. Similarly, all of Russell’s allegations against LGBS

are related to the collection of delinquent property taxes. There are no allegations of

any acts untethered to the governmental function of assessing and collecting taxes.

There are no allegations giving rise to any LGBS act outside its functions as an agent

for Dallas County in the collection of delinquent property taxes.

Furthermore, in support of its plea to the jurisdiction, LGBS provided the

affidavit of Edward Lopez, an equity partner in LGBS’s Dallas office. Lopez

explained in detail that Dallas County contracted with LGBS to provide legal

services for the county to enforce collection of delinquent ad valorem taxes. Lopez

further averred that, at all times relevant to Russell’s property tax issues, LGBS was

acting as the legal agent of Dallas County. Russell provided no argument or evidence

in response to the pleas to the jurisdiction to support any exception to, or waiver of,

immunity. Russell’s suit against the Texas Counties and LGBS is barred by

governmental immunity. TEX. CIV. PRAC. & REM. CODE § 101.055; Ross, 333

S.W.3d at 745-47.3

B. Conclusion regarding pleas to the jurisdiction
The trial court did not err in granting the Governmental Appellees’ or LGBS’s

pleas to the jurisdiction. Even if Russell had properly briefed the issue, he did not

3
We need not decide whether the City of Philadelphia enjoys governmental immunity in a Texas
court. As discussed above, Russell has presented no justiciable controversy against that city, depriving the
trial court of subject-matter jurisdiction.
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present a justiciable controversy, and the Texas Counties and LGBS are entitled to

governmental immunity. We overrule Russell’s first issue.

II. Default Judgment
In his second issue, Russell contends he was entitled to a default judgment

based on LGBS’s failure to timely answer the suit. We disagree.

A plaintiff may seek a default judgment if the time has passed for the

defendant to answer, the defendant has not answered, and the citation with the

officer’s return has been on file with the clerk for ten days. TEX. R. CIV. P. 107, 239.

The law requires proof of service before a plaintiff may take judgment by default.

Unifund CCR Partners v. Jaeger, No. 05-07-01444-CV, 2009 WL 638212, at *1

(Tex. App.—Dallas Mar. 13, 2009, no pet.) (mem. op.) (citing TEX. R. CIV. P. 107).

The record must show the trial court has jurisdiction of the subject matter and the

parties, and that the case is ripe for judgment. Id. (citing Finlay v. Jones, 435 S.W.2d

136, 138 (Tex. 1968)). Jurisdiction over a defendant must be established by an

affirmative showing of service of citation independent of recitals in the default

judgment. Id. Unless a defendant has voluntarily appeared before judgment, strict

compliance with the rules relating to proper service must appear affirmatively in the

record. Id. (citing McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965) and Uvalde

Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (failure

to show strict compliance with rules relating to proper service renders any attempted

service invalid and requires setting aside a default judgment)). We review the denial

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of a motion for default judgment for abuse of discretion. Resurgence Fin., LLC v.

Taylor, 295 S.W.3d 429, 432 (Tex. App.—Dallas 2009, pet. denied).

The record reflects Russell filed his original petition, styled Samuel T. Russell

v. Linebarger, Goggan, Blair & Sampson, LLP on August 12, 2021. LGBS filed

“Defendants Original Answer” on September 7, 2021, using the same case style.

However, the body of the answer purports to answer the suit on behalf of Dallas

County and “other political subdivisions whose ad valorem property taxes are

collected by the Dallas County Tax Assessor-Collector….” On February 15, 2022,

LGBS filed “Defendants First Amended Original Answer, Plea to the Jurisdiction,

and Motion to Dismiss” on behalf of itself and four Texas counties. Russell states

he was entitled to a default judgment because LGBS did not file an answer until

more than 140 days after being “properly served.” Russell also seems to argue LGBS

originally answered the suit on behalf of Dallas County, not LGBS, and it was

improper for the trial court to accept that answer as LGBS’s answer.

We need not decide whether “Defendant’s Original Answer” constituted an

answer on behalf of LGBS because Russell has not shown his entitlement to a default

judgment. First, it is not clear whether Russell moved for a default judgment on the

grounds he now asserts on appeal. The record includes three motions for default

judgment by Russell. However, none of these motions assert Russell was entitled to

a no-answer default judgment against LGBS. To preserve a complaint for appellate

review, a party must make the complaint to the trial court by a timely request,

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objection, or motion. TEX. R. APP. P. 33.1(a)(1). Preservation also requires: (1) an

express ruling by the trial court, (2) an implicit ruling by the trial court, or (3) a

refusal to rule by the trial court, coupled with an objection to that refusal by the

complaining party. TEX. R. APP. P. 33.1(a)(2). Without an affirmative showing

Russell presented a motion for a no-answer default judgment against LGBS, Russell

has preserved nothing for appeal.

Second, even if Russell moved for a no-answer default judgment against

LGBS, Russell has not demonstrated entitlement to such. While the record reflects

Russell filed suit on August 12, 2021, naming LGBS as a defendant, the record does

not demonstrate when LGBS was served and whether Russell served LGBS in strict

compliance with the rules of procedure. Russell attached no supporting

documentation or evidence to his motions for default judgment. There is no return

of service in the record or any other evidence indicating strict compliance with

service requirements or the rules for default judgments.

Russell has not shown he was entitled to a default judgment. Accordingly,

Russell has not shown the trial court abused its discretion in failing to render such a

judgment. See Jaeger, 2009 WL 638212, at *2. We overrule Russell’s second issue.

III. Court Transfer
In his third issue, Russell appears to argue the trial court improperly

transferred the case to another court without notice. Russell contends the trial court

(the 116th District Court of Dallas County) transferred his case to the 160th District

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Court of Dallas County, in violation of Dallas County Local Rule 1.06.4 However,

nothing in the record supports Russell’s arguments.

The burden is on the appellant to present a sufficient record to show error

requiring reversal. In re B.J.W., No. 05-17-00253-CV, 2018 WL 3322882, at *2

(Tex. App.—Dallas July 6, 2018, no pet.) (mem. op.) (citing Christiansen v.

Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)).

Here, nothing in the record demonstrates the trial court transferred the case to

the 160th District Court. There is no order of transfer or any reference to transfer in

the trial court docket included in the clerk’s records. There is nothing in the record

to show error. See id. In the appendix to his brief, Russell attached a copy of a

February 22, 2023 “Notice of Sheriff’s Sale.” Documents attached as appendices to

an appellate brief are not part of the appellate record and cannot be considered. See

Sung Sik Choi v. Juggernaut Transportation, Inc., No. 05-16-01386-CV, 2017 WL

2729907, at *2 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.).

Nonetheless, the notice of sale in Russell’s appendix has no bearing on this

appeal. The notice is related to the 2018 judgment against Russell for his delinquent

taxes, combined with a separate 2005 tax judgment related to the same property. The

2018 judgment was affirmed by this Court in October 2019 and became final. The

4
“Whenever any pending case is so related to another case previously filed in or disposed of by
another Court of Dallas County having subject matter jurisdiction that a transfer of the later case to such
other Court would facilitate orderly and efficient disposition of the litigation, the Judge of the Court in
which the earlier case is or was pending may, upon notice to affected parties and Courts, transfer the later
case to such Court.” DALLAS CNTY. CIV. CT. LOC. R. 1.06.
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2018 judgment and subsequent order of sale issued from the 160th District Court in

a proceeding wholly separate from Russell’s present suit against LGBS and the

Governmental Appellees. There is nothing to support Russell’s assertions the present

case was transferred from the trial court to the 160th District Court. We overrule

issue three.

IV. Deprivation of Property/Due Process
In his fourth issue, Russell asserts he was deprived of his property and due

process, generally citing the U.S. and Texas Constitutions. See U.S. CONST. amend.

V (prohibiting deprivation of property without due process); TEX. CONST. art. 1, §

19 (same). Russell seems to argue the failure of Appellees to apply his tax payments,

and the failure of the trial court to correct the alleged error, resulted in the sheriff’s

sale of his property.

Russell again attempts to argue the merits of his suit rather than the bases for

the trial court’s grant of the pleas to the jurisdiction. We have already discussed why

the trial court properly granted the pleas to the jurisdiction. Furthermore, we have

also explained the execution sale of Russell’s property was related to a separate

judgment from the prior tax suit. That judgment is final, and we have no jurisdiction

over it in this suit.

Russell also seems to argue the deprivation resulted from the improper

transfer of his case. However, as we have discussed, the record does not reflect any

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such transfer or that such alleged transfer denied Russell due process. We overrule

Russell’s fourth issue.

V. Jury Trial
In his fifth issue, Russell contends the trial court erred by dismissing the case

and thereby depriving Russell of the right to a jury trial. Again, we disagree with

Russell.

In their pleas to the jurisdiction, LGBS and the Governmental Appellees

asserted the trial court lacked subject-matter jurisdiction. Whether a court has

subject-matter jurisdiction is a question of law. Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a pleader has alleged facts

affirmatively demonstrating a trial court’s subject-matter jurisdiction is a question

of law reviewed de novo. Id. Likewise, whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Id.

If the evidence creates a fact question regarding the jurisdictional issue, then the trial

court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by

the fact-finder. Id. However, if the relevant evidence is undisputed or fails to raise a

fact question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law. Id.

As discussed, Russell failed to plead any facts affirmatively demonstrating the

trial court’s subject-matter jurisdiction over the case. And, Russell produced no

evidence in response to the pleas to the jurisdiction to create a fact issue regarding

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the jurisdictional question. Accordingly, the trial court was required to rule on the

pleas to the jurisdiction as a matter of law. Id. Russell was not entitled to a jury trial.

We overrule Russell’s fifth issue.

CONCLUSION
The trial court did not err in granting Appellees’ pleas to the jurisdiction.

Russell presented no justiciable controversy to support subject-matter jurisdiction

respecting the Governmental Appellees, and Russell’s claims against LGBS and the

Governmental Appellees are barred by governmental immunity. And, the trial court

did not abuse its discretion in denying Russell’s motion for default judgment.

Furthermore, the record does not support any allegation the trial court transferred

Russell’s case in violation of local rules, or that Russell suffered a deprivation of

property or due process. Finally, Russell was not entitled to a jury trial. The trial

court correctly ruled on the pleas to the jurisdiction as a matter of law where Russell

failed to plead facts or bring forth evidence supporting the trial court’s jurisdiction.

Accordingly, we affirm the trial court’s judgment.

/Robbie Partida-Kipness/
230224f.p05 ROBBIE PARTIDA-KIPNESS
JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

SAMUEL T. RUSSELL, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-23-00224-CV V. Trial Court Cause No. DC-21-10621.
Opinion delivered by Justice Partida-
LINEBARGER, GOGGAN, BLAIR Kipness. Justices Nowell and Smith
& SAMPSON, LLP, ET AL., participating.
Appellees

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

It is ORDERED that appellees LINEBARGER, GOGGAN, BLAIR &
SAMPSON, LLP, ET AL. recover their costs of this appeal from appellant
SAMUEL T. RUSSELL.

Judgment entered this 24th day of April, 2024.

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