author: JANE BLAND, Justice.

text:
    BILINSCO INC. and Linda Boyd, Appellants, v. HARRIS COUNTY APPRAISAL DISTRICT and Harris County Appraisal Review Board, Appellees.
    No. 01-09-00877-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 22, 2010.

      S. Scott Boyd, William C. Boyd, Patterson, Boyd & Lowery, P.C., Houston, TX, for Appellants.
    Cynthia L. Hooper, Sarah M. Morrow, Olson & Olson, Houston, TX, for Appel-lees.
    Panel consists of Chief Justice RADACK and Justices BLAND and SHARP.
   OPINION

JANE BLAND, Justice.

This is a property tax appraisal dispute. Bilinsco, Inc., and Linda Boyd (collectively, “Bilinsco”) sued the Harris County Appraisal District (“the district”) and the Harris County Appraisal Review Board (“the board”) to challenge the board’s valuation of Bilinsco’s property for 2008. Bil-insco served citation on the board, but did not serve the district until eleven months after filing its petition for review. The trial court granted summary judgment in favor of the district and the board based on Bilinsco’s failure to diligently serve the district, a necessary party to the suit. On appeal, Bilinsco contends that (1) a fact issue exists whether it had a reasonable excuse for failing to timely serve the district; and (2) the applicable limitations period should be equitably tolled. We hold that the trial court properly granted summary judgment and therefore affirm.

Background

Bilinsco challenged the district’s 2008 valuation of its property before the board. After the board upheld the district’s valuation, Bilinsco mailed copies of its notice of appeal and anticipated petition to the district and the board. Bilinsco filed suit against the district and the board within forty-five days of receiving notice of the board’s order. At the time of filing, Bilin-sco requested that the clerk issue citation and arranged to serve both defendants; however, only the board was served with citation. The board answered, responded to Bilinsco’s requests for disclosure, and served its own requests for disclosure, interrogatories, and requests for production.

Ten months after Bilinsco filed suit, the district and the board filed a plea to the jurisdiction, contending that the trial court never acquired jurisdiction over the petition because Bilinsco never served the district, a necessary party to the appeal. The trial court denied this plea nearly a month later, and Bilinsco requested that the clerk issue and serve citation on the district. The district answered and noted that it had not been timely served. Both defendants then moved for traditional summary judgment, contending that because Bilin-sco did not diligently serve the district, the trial court did not acquire jurisdiction over the case.

In response, Bilinseo contended that it had raised a valid excuse for its failure to timely serve the district: these parties had often been involved in litigation over valuation assessments, and in each case, the same attorneys represented both the district and the board and would file an answer on behalf of both defendants. In this case, Bilinseo assumed that, when the board answered, it answered on behalf of the district as well, and thus the district had generally appeared and waived service. As summary judgment evidence, William Boyd, co-owner of the property, president of Bilinseo, and attorney of record, described the usual procedure between the parties in valuation disputes. Boyd also averred that, in the board’s response to Bilinsco’s request for disclosure, the style of the case referred to both the district and the board as “Defendant.” The board identified no potential parties to the case, and the board’s attorney signed the disclosures as “Attorney for Defendant.” Bilinseo contended that, through this conduct, the district and the board misled it into believing that the district had been served and had appeared in the case. The trial court granted summary judgment.

Discussion

Standard of Review

We review de novo the trial court’s grant of a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and the party is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). To determine if the non-mov-ant raises a fact issue, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)).

Jurisdiction

On appeal, the district first contends that Bilinsco’s failure to diligently serve it with process “precluded the trial court’s jurisdiction” over the proceeding. We agree with the San Antonio and Austin Courts of Appeals that failure to serve the appraisal district within the statutory time period for filing a petition for review is not a jurisdictional bar to the appeal. See Brooks v. Burnet Cent. Appraisal Dist., 306 S.W.3d 419, 421-22 (Tex.App.-Austin 2010, no pet.); Bexar County Appraisal Dist. v. Walton Castroville SHRL Investors, III, LP, Nos. 04-05-00046-CV, 04-05-00047-CV, 2005 WL 1475388, at *2 (Tex.App.-San Antonio June 22, 2005, no pet.) (mem. op.); see also Tex. Educ. Agency v. Donna Indep. Sch. Dist., 221 S.W.3d 791, 796 (Tex.App.-Corpus Christi 2007, no pet.) (“[Section 21.307 of the Texas Education Code] does not state that service must be obtained within a specific time period. In fact, it does not mention service at all. In the absence of such direction from the legislature, this Court will not impose service of citation within a very short limitations period as a jurisdictional prerequisite to suit.”). We instead treat Bilinsco’s failure to timely serve the district as an affirmative defense that may be waived. See Proulx v. Wells, 235 S.W.3d 213, 216 (Tex.2007) (per curiam) (“[Ojnce a defendant has affirmatively pled the limitations defense and shown that service was effected after limitations expired, the burden shifts to the plaintiff to explain the delay.”).

Reasonable Excuse for Untimely Service

Bilinseo first contends that the trial court erred in granting summary judgment because it presented a reasonable excuse for its failure to timely serve the district — -the conduct of the district and the board’s attorneys misled Bilinsco into believing that the district had appeared in the case and waived service. For a district court to have jurisdiction over an appeal of an appraisal review board’s order determining protest, the plaintiff must file a petition for review against the county appraisal district within forty-five days of receiving notice of the order. See Tex. Tax Code Ann. § 42.21(a) (Vernon 2008); see also id. § 42.21(b) (“Any other petition for review under this chapter must be brought against the appraisal district.”). A timely filed suit does not interrupt the applicable statute of limitations unless the plaintiff “exercises due diligence in the issuance and service of citation.” Proulx, 235 S.W.3d at 215 (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990)); Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex.2009) (“[S]erviee outside the limitations period may still be valid if the plaintiff exercises diligence in procuring service on the defendant.”). If the plaintiff diligently effects service after limitations expires, the date of service relates back to the date of filing. Proulx, 235 S.W.3d at 215.

Once the defendant affirmatively pleads limitations and demonstrates that it was not served until after limitations expired, the summary judgment burden shifts to the plaintiff to explain the delay. Id. at 216. The plaintiff must present evidence demonstrating the efforts made to serve the defendant and explaining “every lapse in effort or period of delay.” Id. In determining diligence, the court assesses whether the plaintiff (1) acted as an ordinarily prudent person would act under the same or similar circumstances, and (2) was diligent up until service upon the defendant. Id.

The clerk of the court has the duty, upon request by the plaintiff, to issue and deliver the citation as directed. Tex.R. Civ. P. 99(a). A party “may ordinarily rely on the clerk to perform his duty within a reasonable time.” Boyattia v. Hinojosa, 18 S.W.3d 729, 733-34 (Tex.App.-Dallas 2000, pet. denied). When, however, a party learns, or by the exercise of diligence should have learned, that the clerk failed to issue citation, “it is incumbent upon the party to ensure that the job is done.” Id. at 734. In Boyattia, the plaintiff requested citation, however, after three months, the clerk still had not issued the citation. Id. Boyattia presented no evidence that she attempted to ensure delivery and she “wholly ignore[d] her duty to have the citation served on the defendant during a lengthy period of time the citation remain[ed] with the clerk.” Id. As a result, Boyattia lacked diligence in procuring service, and the trial court correctly granted summary judgment. Id. Thus, we examine the record for any effort Bilinsco made to check on service. There is none.

Bilinsco argues, however, that confusion about whether the district already had appeared excuses any delay. Our case is similar to one that the Fort Worth Court of Appeals resolved, in which the plaintiff sued two county entities, Tarrant County and the Tarrant County Sheriffs Department, represented by the same district attorney, but served only the sheriffs department. See Tarrant County v. Vandigriff, 71 S.W.3d 921, 923 (Tex.App.-Fort Worth 2002, pet. denied). The Fort Worth Court held that, despite the confusion that resulted from the two parties and their representation by a single counsel, Vandi-griff offered no reasonable excuse for the delay in service. Id. at 926. The court held that Vandigriff “should have discovered through the exercise of diligence that [Tarrant County] was not properly served.” Id. Importantly, a co-defendant who has appeared does not have a duty to “bring to [the plaintiffs] attention the fact that she had failed to procure service on [the other defendant].” Id.; see also Tex. Tax.Code Ann. § 42.21(d) (stating that property owner may serve appraisal district by serving chief appraiser or other officer or employee of district, while owner may serve appraisal review board by serving chairman of board).

Here, Bilinsco did not follow up on service upon the district until after the trial court denied the board’s plea to the jurisdiction in July 2009, almost eleven months after Bilinsco filed its petition. Bilinsco ultimately bore the obligation to ensure that citation is delivered to all defendants. See Vandigriff, 71 S.W.3d at 926; Boyattia, 18 S.W.3d at 734.

Bilinsco explains that it, the board, and the district have previously been involved in valuation disputes, and each time it appeals a board order, it forwards the notice of appeal and a copy of the petition to both defendants. The same law firm represents both the board and the district and the firm “always file[s] Answers for both Defendants, in every case.” Bilin-sco’s attorney further averred that:

In this case, I requested on behalf of Plaintiffs, Request for Disclosures to both Defendants. I received a Response assuming that it was [a] Response for both Defendants. Harris County Appraisal Review Board and Harris County Appraisal District are identified as ‘Defendant.’ The title to the document was ‘Defendant’s Responses.’ The Responses were signed by Olson & Olson as attorneys for ‘Defendant.’

The district points to the board’s answer and responses to Bilinsco’s disclosure requests, which indicate that only the board had appeared, and argues reliance on these documents is not reasonable, particularly since the response was on behalf of a single “defendant”: the style of the board’s response to Bilinsco’s Request for Disclosure states “Defendant,” instead of “Defendants.” The board began its response by stating:

Pursuant to Rule 194.2 of the Texas Rules of Civil Procedure, Defendant provides the following information in response to Plaintiffs Request for Disclosure:
(a) the correct names of the parties to the lawsuit;
RESPONSE: The style in PlaintifPs petition lists the Plaintiff as Bilinsco, Inc., and Linda Boyd. The correct name of the Defendant is Harris County Appraisal Review Board.

Furthermore, the board entitled its answer “Defendant’s Original Answer” and stated “Now Comes the Harris County Appraisal Review Board, Defendant in the above-numbered and entitled cause.” The board’s attorneys signed the answer as “Attorneys for Defendant” and also requested Rule 194 disclosures from Bilinsco in a separate document, signing that document as “Attorneys for Defendant Harris County Appraisal Review Board.”

Bilinsco sued on August 25, 2008 and served the board in late September. The board answered on October 22, but it did not respond to Bilinsco’s Request for Disclosure until April 9, 2009. Even if the board’s disclosure response could reasonably lead Bilinsco to believe that opposing counsel was responding on behalf of both defendants, and thus both defendants had appeared, Bilinsco did not receive these responses until more than five months after only the board answered and more than seven months after Bilinsco filed suit. Bilinsco offers no fact issue as to whether a reasonable excuse exists for its failure to serve the district during the seven months prior to receiving the board’s discovery responses. We therefore hold that the summary judgment record establishes Bil-insco’s lack of diligence in procuring service and the trial court correctly granted summary judgment. See Boyattia, 18 S.W.3d at 734; Vandigriff, 71 S.W.3d at 926.

Equitable Tolling

Finally, Bilinsco contends that the limitations period should be equitably tolled. Equitable tolling applies “where a claimant actively pursued his judicial remedies but filed a defective pleading during the statutory period, or where a complainant was induced or tricked by his adversary’s misconduct into allowing filing deadlines to pass.” Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex.App.-Dallas 2005, no pet.). Courts have also applied equitable tolling when the plaintiff sues the wrong defendant, does not name the proper defendant until after limitations expires, and a “special relationship” exists between the defendants, such that the added defendant “was aware of the facts, not misled, and not disadvantaged in preparing a defense.” Walls v. Travis County, 958 S.W.2d 944, 946 (Tex.App.-Austin 1998, pet. denied) (citing Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990)). In Walls, the plaintiff sued Travis County, but citation was served on the Travis County Sheriffs Office, instead of the county. Id. at 945. The assistant county attorney answered on behalf of the sheriff, but later signed a Rule 11 agreement and all discovery responses as “Attorney for Defendant Travis County” and began all discovery responses with “Comes Now Defendant Travis County.” Id. In this situation, the Austin Court of Appeals held that equitable tolling applied because Travis County’s actions showed that it was not misled, and it had notice of and a reasonable opportunity to defend the claim. Id. at 947-48.

In distinguishing Vandigriff from Walls, the Fort Worth Court of Appeals observed that: (1) Vandigriff did not sue the wrong defendant, but instead sued and requested citation on both the sheriffs office and the county; (2) the district attorney signed all discovery documents from the sheriffs office as “Attorney for Defendant TCSD” and made no mention of Tarrant County; and (3) the sheriffs office “indirectly notified” Vandigriff that it failed to properly serve Tarrant County in its original answer and response to Vandigriffs requests for disclosure, in which it alleged a defect of parties. Vandigriff, 71 S.W.3d at 927.

We follow Vandigriff, because the court’s reasoning applies here with equal force: Bilinsco did not sue the wrong defendant, but instead sued and requested sendee of citation on both the district and the board within section 42.21(a)’s forty-five-day window. Although only the district is a necessary party to petitions to review an order determining protest, the plaintiff may also sue the board “in addition to any other required party, if appropriate.” Tex. Tax Code Ann. § 42.21(b). Thus, Bilinsco sued two proper defendants within limitations, but only one of those defendants, the board, was timely served. Similar to Vandigriff, all Of the documents filed by the board in this case indicated that the board was the party filing the documents, and the documents did not indicate that they were filed on behalf of the district. See Vandigriff, 71 S.W.3d at 927. In this situation, in which Bilinsco sued two proper defendants within the limitations period, we decline to apply the equitable tolling exception to excuse Bilinsco’s failure to timely serve the district.

Conclusion

We hold that the summary judgment record establishes Bilinsco’s lack of diligence in serving the district. Further, because Bilinsco sued two proper defendants within the limitations period, we hold that equitable tolling does not apply. We therefore affirm the judgment of the trial court.

      . In 2009, the Texas Legislature amended section 42.21(a) of the Tax Code, which governs the time period for appealing an adverse Board order to the district court, to extend the time to file a petition for review from forty-five to sixty days. See Tex. Tax Code Ann. § 42.21(a) (Vernon Supp. 2009); Act of June 19, 2009, 81st Leg., R.S., ch. 905, § 1, 2009 Tex. Gen. Laws 2435, 2435. Because this appeal to the district court was pending before the Legislature amended section 42.21(a), we apply the previous version of the statute.


source: Caselaw Access Project

author: WILLIAM J. BOYCE, Justice.

license: Public Domain

text:
    In re TEXAS MUTUAL INSURANCE COMPANY, Relator.
    No. 14-10-00104-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 26, 2010.
    Rehearing Overruled Oct. 7, 2010.

      R. Scott Placek, Scott Arnold, Elizabeth Gene Myers, Kyle Mullins Jones, Round Rock, P.M. Schenkkan, Mary A. Keeney, Austin, for relator.
    Michael P. Doyle, Jeffrey L. Raizner, Patrick Mason Dennis, Houston, for real party in interest.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

Texas Mutual Insurance Company filed a petition for writ of mandamus in this court on February 5, 2010. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex.RApp. P. 52. Texas Mutual asks this court to compel the Honorable Robert E. May, presiding judge of the 149th District Court of Brazoria County, to set aside his January 11, 2010 order denying its plea to the jurisdiction based on a failure to exhaust administrative remedies before the Division of Workers’ Compensation (“DWC”). We conditionally grant the writ.

BACKGROUND

This case involves the interplay of two disputes in connection with a claim for workers’ compensation benefits. One dispute focuses on the extent of the injury attributable to a compensable claim; the other focuses on the necessity of medical treatment requested for the injury. See generally Zenith Ins. Co. v. Ayala, — S.W.3d- (Tex.2010) (per curiam) (explaining differences among disputes regarding compensability, extent of injury, and medical necessity).

Real party in interest Adrian Harding was involved in an accident on November 30, 2006, while driving a tractor trailer as an employee of AG Schultz, Sr. & Sons, Inc. Harding suffered injuries to his neck, lower back, and right elbow. Texas Mutual accepted Harding’s claim of a compensa-ble injury and began paying temporary income benefits to Harding. Texas Mutual also paid all submitted medical bills.

The dispute over the extent of Harding’s injury began in 2007. Harding underwent an MRI scan in January 2007, which revealed (1) degenerative disc disease at multiple cervical levels; and (2) small os-teophytes encroaching into the spinal canal causing spinal stenosis at C5-6 and C6-7. Donna Washington, the adjuster assigned to Harding’s claim, filed a dispute on January 26, 2007, challenging the extent of Harding’s injury. Texas Mutual contended that Harding’s injury from the November 30, 2006 accident was limited to a lumbar strain, cervical strain, left shoulder strain, and right elbow strain, and did not include degenerative conditions identified on the MRI. Texas Mutual continued to pay all medical and income benefits due to Harding during the pendency of the dispute.

On February 9, 2007, Harding’s surgeon, Dr. James Bonnen, noted in his file: “Apparently the patient’s workers compensation carrier is denying this is a compensa-ble injury.... This issue will have to be resolved before we can proceed with further treatment.” Dr. Bonnen signed a letter on April 4, 2007, stating his opinion that the November 2006 accident exacerbated Harding’s pre-existing degenerative conditions.

On May 23, 2007, Washington made notations in Texas Mutual’s electronic claims notes system reversing the decision to challenge the extent of Harding’s injury. Harding contends that Texas Mutual never informed him of Washington’s internal reversal regarding the extent of his injury. Texas Mutual continued to contest the extent of Harding’s injury through administrative channels.

Dr. J.M. Lyon, who was selected by the DWC, examined Harding on September 6, 2007, and opined that Harding’s injury from the November 6, 2006 accident extended to degenerative conditions in Harding’s spine. Texas Mutual then filed a “DWC Form-22” requesting a post-designated doctor examination of Harding by Dr. Martin Steiner. He examined Harding on October 9, 2007, and opined that the compensable injury extended to the diagnosis of lumbar strain, cervical strain, left shoulder strain, and right elbow contusion; Dr. Steiner also concluded that Harding’s cervical spondylosis was an ordinary disease of life that “was not enhanced, accelerated or worsened” by his work-related injury.

Harding requested a contested case hearing to resolve the dispute over the extent of his injury, which the DWC conducted on December 5, 2007. See Tex. Lab.Code Ann. §§ 410.151-.169 (Vernon 2006). The DWC issued its ruling on February 26, 2008. The DWC concluded that Dr. Lyon’s opinion was not contrary to the preponderance of the evidence. The DWC also concluded that Texas Mutual could not rely on Dr. Steiner’s report because the DWC had not approved the Form-22 before Dr. Steiner’s October 9, 2007 examination of Harding.

Accordingly, the DWC concluded that Harding’s injury from the November 2006 accident extended to and included cervical intervertebral disc displacement, cervical radiculitis, cervical spine stenosis and left trapezius myofascial pain syndrome. The DWC’s February 2008 order directed Texas Mutual “to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.” The order made no findings regarding the necessity of any proposed medical treatments.

The DWC’s February 2008 ruling concluded the dispute regarding the extent of Harding’s injury from the November 2006 accident. The dispute regarding necessity of requested medical treatment for that injury began two months later when Dr. Bonnen requested preauthorization on April 22, 2008, to perform an anterior cervical discectomy and fusion at levels C5-6 and C6-7.

It is undisputed that preauthorization is required for spinal surgery. Harding’s employer administered its workers’ compensation health care benefits through a certified workers’ compensation health care network. See Tex. Ins.Code Ann. §§ 1305.001-552 (Vernon 2009 & Supp. 2009); Tex. Lab.Code Ann. § 408.031 (Vernon 2006). In this context, preauthor-ization is accomplished through a “utilization review” process. See Tex. Ins.Code. Ann. § 4201.002(13) (Vernon 2009 & Supp. 2009). The network’s “utilization review agent” for Harding’s claim was Coventry Workers’ Comp Services, which retained Dr. William Abraham to review Dr. Bon-nen’s request to preauthorize a two-level fusion. See id. § 4201.002(14). Dr. Abraham denied the request on April 25, 2008, because he concluded that the proposed two-level fusion was not medically reasonable or necessary. Harding did not seek reconsideration of this denial. See Tex. Ins.Code. Ann. § 1305.354 (establishing procedures for reconsideration of adverse determination).

On July 11, 2008, Dr. Bonnen again requested preauthorization for a two-level fusion. Dr. Gregory Goldsmith, who was retained by Coventry Workers’ Comp Services, denied preauthorization on July 14, 2008, because he concluded that a two-level fusion was not medically necessary. Harding did not seek reconsideration of this denial. See id.

Harding’s attorney requested an independent review of the July 14, 2008 preau-thorization denial on July 18, 2008. Coventry responded that it was “unable to process this request” because “[t]here must first be an appeal or reconsideration before requesting an Independent Review Organization (IRO). A request for reconsideration must be submitted within 30 days of the initial denial, unless the condition is life threatening.” See Tex. Ins. Code Ann. § 1305.354(a)(2) (request for reconsideration must be made not later than 30th day after date of issuance of written notification of adverse determination).

Harding’s new surgeon, Dr. Stephen Esses, requested preauthorization on September 17, 2008, for a more limited procedure — a fusion at level C5-6 only. Coventry retained Dr. Robert Waltrip to review this request; on September 22, 2008, he issued a preauthorization for the one-level fusion. Dr. Esses performed the one-level fusion on October 3, 2008.

Harding sued Washington and Texas Mutual on October 14, 2008, alleging that they failed to investigate his claim properly and wrongfully denied and delayed payments for necessary medical care and other benefits. Harding bases his claims on an asserted delay in his receipt of surgery while the compensability dispute was pending from January 2007 until February 2008. Harding contends that “because he didn’t get any surgical treatment at all, now ... [he] can’t go back to driving, he’s going back to work but not doing that.” Harding disclaims any intent to predicate his claims on the separate medical necessity dispute that lasted from April 2008 until September 2008. Harding’s counsel told the trial court that he is “suing for the delay impact, the denial.... We’re not suing for nonpayment of any bill, period.” Harding sought consequential damages for harm to his economic welfare from wrongful denial and delay of benefits; he also sought damages for mental anguish and physical suffering resulting from wrongful denial of benefits, and from the “continued impact on the medical evaluation, treatment, and final prognosis [of his injuries].”

On December 1, 2009, Texas Mutual filed its amended plea to the jurisdiction contending that (1) the DWC had exclusive jurisdiction over Harding’s claims; and (2) the trial court lacked jurisdiction because Harding failed to exhaust his administrative remedies before the DWC. On January 11, 2010, the trial court signed an order denying Texas Mutual’s amended plea to the jurisdiction. Texas Mutual now seeks review of that order via petition for writ of mandamus.

STANDARD OP REVIEW

A writ of mandamus properly issues when the relator demonstrates that the trial court abused its discretion and there is no adequate remedy by appeal. In re Gulf Exploration, LLC, 289 S.W.3d 886, 842 (Tex.2009) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding). To prevent disruption of the orderly processes of government, mandamus review is available to remedy a trial court’s erroneous denial of a plea to the jurisdiction for failure to exhaust administrative remedies in a dispute arising from a workers’ compensation carrier’s asserted bad faith handling of a claim. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex.2009) (orig. proceeding) (per curiam).

The trial court has jurisdiction to award damages only to the extent that relief is not dependent upon the direct or indirect adjudication of a matter within the DWC’s exclusive jurisdiction. Cunningham Lindsey Claims Mgmt., Inc. v. Snyder, 291 S.W.3d 472, 477 (Tex.App-Houston [14th Dist.] 2009, pet. filed). The determination of whether an agency has subject matter jurisdiction is treated as a question of law and reviewed de novo. Suban of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.2002). If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust all administrative remedies before a trial court has subject matter jurisdiction. O’Neal v. Ector County Indep. Sch. Dist., 251 S.W.3d 50, 51 (Tex.2008) (per curiam).

A plea to the jurisdiction challenging exhaustion of administrative remedies under the workers’ compensation scheme can rest on the pleadings, or on evidence. Stinson v. Ins. Co. of the State of Pa., 286 S.W.3d 77, 83 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (op. on reh’g). “ ‘When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case.’ ” Id. (quoting Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 657 (Tex.App.-Dallas 2008, no pet.)). “The reviewing court ‘must look to the allegations in the pleadings, liberally construe them in the plaintiffs favor, and look to the pleader’s intent.’ ” Id. (quoting Kelly v. Am. Interstate Ins. Co., 14-07-00083-CV, 2008 WL 5085138, at *2 (Tex.App.Houston [14th Dist.] Nov. 25, 2008, pet. filed) (mem. op.)). “ ‘If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.’ ” Id. (quoting Kelly, 2008 WL 5085138, at *2).

Analysis

I. Failure to Exhaust Administrative Remedies

The Workers’ Compensation Act vests the DWC with exclusive jurisdiction to determine a claimant’s entitlement to medical benefits. In re Liberty Mutual Fire Ins. Co., 295 S.W.3d at 328. When an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. Subaru, 84 S.W.3d at 221. The exhaustion requirement ensures that the administrative agency has the opportunity to resolve disputed fact issues within its exclusive jurisdiction before a court must address those issues. Stinson, 286 S.W.3d at 83 (citing Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998) (per curiam)). The requirement to exhaust administrative remedies applies to disputes regarding compensability and extent of injury, and to medical necessity disputes. Snyder, 291 S.W.3d at 477.

Texas Mutual contends the trial court lacked jurisdiction because Harding did not (1) seek reconsideration of the April 2008 and July 2008 denials of preauthorization requests for a two-level fusion; or (2) challenge those denials before the DWC. Texas Mutual argues that absent a DWC determination with respect to the medical necessity of a two-level fusion, Harding’s administrative remedies have not been exhausted.

Harding responds that he does not predicate his claims on the denials of his two preauthorization requests for a two-level fusion. Instead, he argues that his claims are predicated solely on a delay in treatment attributable to an unwarranted challenge to the extent of his injury that lasted from January 2007 until February 2008. Harding argues there are no remedies left to exhaust with respect to medical necessity because Texas Mutual subsequently approved his request for a one-level fusion in September 2008.

The Texas Supreme Court has considered “whether a compensation claimant can prosecute a lawsuit against a carrier to recover benefits and damages resulting from a denial of benefits without a prior determination by the Texas Workers’ Compensation Commission that benefits are due her.” Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 802 (Tex.1996). The Fodge court held that a claimant cannot recover damages for the carrier’s breach of its duty of good faith in connection with payment of medical expenses if the claimant was not entitled to medical treatment. Id. at 804. The Texas Supreme Court explained:

The court could not adjudicate her damages claim without determining her entitlement to medical treatment, a matter ■within the Commission’s exclusive jurisdiction. Her claim for damages from denied medical treatment is made no more viable simply by restating it under the other legal theories she asserted— negligence, fraud, and statutory violations. To award damages equal to the cost of denied medical care is tantamount to ordering that the care be paid for and would, as we said in Saenz, circumvent the Commission’s exclusive authority to decide that issue. The same is true for Fodge’s other claims for damages based on a denial of benefits.

Id. (citing Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex.1996)).

Harding concedes that a claimant who has not obtained a DWC ruling entitling him to benefits must exhaust administrative remedies under Fodge before pursuing an action for benefits or bad faith damages. However, Harding asserts that there is no jurisdictional impediment to his lawsuit because (1) he exhausted his administrative remedies before the DWC in February 2008 with respect to the extent of his injury; and (2) there are no further administrative remedies to be exhausted with respect to the medical necessity of spinal surgery that was authorized in September 2008 and performed in October 2008.

The DWC’s February 2008 ruling on extent of injury did not automatically entitle Harding to a two-level or a one-level fusion. While the DWC determined in February 2008 that Harding’s injury extended to degenerative conditions in his spine, it did not decide whether a two-level fusion, a one-level fusion, or any other specific treatment was necessary to treat Harding’s injury. The DWC could make no such determination in February 2008 because preauthorization for surgery was not requested until April 2008. We disagree with any suggestion that the DWC’s February 2008 extent-of-injury determination also determined the medical necessity of spinal surgery.

Disputes regarding extent of injury and medical necessity involve separate procedures. Under DWC rules, “a ‘carrier shall approve or deny requests [for preau-thorization] based solely upon medical necessity of the health care required to treat the injury, regardless of: (1) unresolved issue of compensability, extent of or relatedness to the compensable injury; (2) the carrier’s liability for the injury; or (3) the fact that the employee has reached maximum medical improvement.’ ” Zenith Ins. Co., — S.W.3d at-(quoting 28 Tex. Admin. Code § 134.600(h)). Upon receipt of the bill for preauthorized treatment, the carrier may still argue that the condition treated is not related to the compensable injury. Id. (citing 28 Tex. Admin. Code § 134.600(d)). The DWC explains:

“Preauthorization decisions are to be made entirely based upon medical necessity of the treatment of the condition proposed to be treated. Issues associated with extent of injury, compensability of the injury, or liability for the claim are separate from the issue of whether a given treatment or service is medically necessary. That is why approval of a preauthorization request does not make a carrier liable for payment if the carrier successfully challenges the extent of injury/compensability/liability issue.”

Id. at-(quoting 25 Tex. Reg. at 2101). The carrier’s preauthorization does not preclude it from disputing extent of injury because a determination of medical necessity does not address extent of injury. Id. It follows that a determination regarding extent of injury does not address the medical necessity of a particular course of treatment for that injury. See id.

The exhaustion requirement applies to disputes regarding extent of injury and medical necessity. See Stinson, 286 S.W.3d at 84-85; Snyder, 291 S.W.3d at 477. Even when the claimant has exhausted his administrative remedies applicable to extent of injury, dismissal for lack of jurisdiction may be warranted if the claimant failed to exhaust his remedies with regard to medical necessity. Snyder, 291 S.W.3d at 477-78.

The analysis here does not depend upon whether the claim at issue is predicated on an alleged denial of benefits as in Fodge, 68 S.W.3d at 804, or on an alleged delay in receipt of benefits. Administrative remedies still must be exhausted. See Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 836 (Tex.App.-Austin 2007, no pet.) (claims based on alleged delays in payment or preauthorization of medical benefits are not exempt from exhaustion of administrative remedies); Malish v. Pac. Employers Ins. Co., 106 S.W.3d 744, 746-47 (Tex.App.-Fort Worth 2003, no pet.) (court lacked jurisdiction over claims based on carrier’s delay in reimbursing expenses or preauthorizing medical care other than care ordered by agency).

The circumstances here parallel Snyder, which holds that administrative remedies must be exhausted both as to (1) compens-ability and extent of injury; and (2) medical necessity. 291 S.W.3d at 477-78. “Although Snyder characterizes his injuries as the result of a wrongful compensability dispute for which he has exhausted his administrative remedies, his claims are dependent on the determination that he was entitled to preauthorization of the surgery in December 2002.” Id. at 478. The Snyder court reversed a judgment on appeal for the plaintiff and rendered a take-nothing judgment because the plaintiff did not exhaust administrative remedies by seeking reconsideration of the carrier’s initial adverse medical necessity decision regarding neck surgery in December 2002, even though he did exhaust administrative remedies as to a separate compensability and extent-of-injury dispute. Id. at 479.

This case is distinguishable from Stin-son, in which the court reversed a dismissal for lack of jurisdiction because a fact issue existed as to whether the claimant had requested preauthorization for physical therapy while the carrier was challenging extent of injury. 286 S.W.3d at 88-89. The Stinson court assumed but did not decide that a preauthorization request was required. Id. Assuming that preauthori-zation was required, and concluding that the evidence raised a fact question regarding the existence of a preauthorization request in light of the governing standard of review, the Stinson court held that dismissal was not warranted because the carrier had not followed the necessary administrative steps in responding to the request for preauthorization. Id. at 89. Unlike Stinson, there is no evidence of and no fact issue here regarding any preauthorization request during the period of alleged delay between January 2007 and February 2008.

Harding argues that he was not required to exhaust administrative remedies regarding medical necessity because Texas Mutual subsequently approved the one-level fusion. But Texas Mutual’s September 2008 approval of a one-level fusion does not address the medical necessity of a one-level fusion, a two-level fusion, or any other treatment for which preauthorization was required during the period of alleged delay while extent of injury was being disputed between January 2007 and February 2008. See Snyder, 291 S.W.3d at 479 (“The absence of a dispute regarding the second preauthorization request does not alter the fact that ... resolution of any question regarding the need for surgery in December 2002 rested exclusively with the TWCC.”). Harding cannot seek damages for an asserted delay in receipt of treatment between .January 2007 and February 2008 without a determination that he was entitled to such treatment at that time; that determination is lacking because the DWC has not determined that the allegedly delayed treatment was medically necessary between January 2007 and February 2008. See Fodge, 63 S.W.3d at 804; Snyder, 291 S.W.3d at 479.

In some circumstances involving parallel compensability and medical necessity disputes, entitlement to benefits can be shown by agreement between the carrier and the claimant. See Tex. Mut. Ins. Co. v. Ruttiger, 265 S.W.3d 651, 658 (Tex.App.-Houston [1st Dist.] 2008, pet. granted). Here, Harding cannot show delay of receipt of a one-level or a two-level fusion to which he was entitled between January 2007 and February 2008 because he did not request preauthorization for a one-level or a two-level fusion during that period. See Snyder, 291 S.W.3d at 484. Texas Mutual did not agree to a fusion at any level between January 2007 and February 2008. Texas Mutual’s subsequent approval of a one-level fusion in September 2008 did not establish that a one-level or a two-level fusion was medically necessary between January 2007 and February 2008. See Snyder, 291 S.W.3d at 479; see also Pickett, 239 S.W.3d at 831 (existence of benefit dispute agreement addressing causal connection between psychological disorders and compensable back injury did not obviate need to exhaust administrative remedies regarding necessity of specific medical treatments for psychological disorders).

Requiring exhaustion of administrative remedies allows the DWC to resolve disputed fact issues within its exclusive jurisdiction. See Essenburg, 988 S.W.2d at 189 (“[T]he Legislature in conferring jurisdiction upon an agency expresses its will to have the agency resolve disputed issues of fact and policy.... [T]he exhaustion requirement seeks to assure that the appropriate body adjudicates the dispute — the hallmark of a jurisdictional statute.”). Harding wants to ask the fact finder at trial to determine that spinal surgery was medically necessary between January 2007 and 2008. This is an agency determination. See Fodge, 63 S.W.3d at 804; Snyder, 291 S.W.3d at 479.

Nothing prevented Harding from seeking preauthorization for a one-level or a two-level fusion between January 2007 and February 2008. Preauthorization, compensability, and extent of injury are separate inquiries. See Zenith Ins. Co., — S.W.3d at-. Nothing relieved Harding of the obligation to establish the medical necessity of surgery between January 2007 and February 2008 as a prerequisite to claiming that a delay between January 2007 and February 2008 foreclosed his receipt of necessary surgery. See In re Liberty Mut. Fire Ins. Co., 295 S.W.3d at 329 (“Nickelson did not seek preauthorization when it was required .... A party does not exhaust administrative procedures by ignoring the applicable rules.”).

Harding’s entitlement to a one-level or a two-level fusion between January 2007 and February 2008 has not been determined by the DWC and has not been resolved by agreement. This issue remains unresolved. Therefore, the fact finder imper-missibly would be asked to make an initial determination as to whether surgery was required between January 2007 and February 2008; that determination lies within the DWC’s exclusive jurisdiction. See Fodge, 63 S.W.3d at 804; Snyder, 291 S.W.3d at 479. Because Harding did not exhaust his administrative remedies, the trial court abused its discretion when it denied Texas Mutual’s plea to the jurisdiction. See Liberty Mut. Fire Ins. Co., 295 S.W.3d at 329.

II. Impediment to Jurisdiction

We must determine whether Harding’s suit should be dismissed in its entirety as Texas Mutual asserts. If a claim is not within the court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed. Id. at 805. If the impediment to jurisdiction can be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured. Id. Here, the jurisdictional impediment cannot be removed. See Snyder, 291 S.W.3d at 484.

Conclusion

Because Harding failed to exhaust his administrative remedies before the DWC, the trial court abused its discretion by denying Texas Mutual’s plea to the jurisdiction. Accordingly, we conditionally grant Texas Mutual’s petition for writ of mandamus and direct the trial court to set aside its January 11, 2010 order, and enter an order granting the plea to the jurisdiction and dismissing the case. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . The Texas Department of Insurance, Division of Workers’ Compensation is responsible for administering and operating the workers' compensation system in this state. Tex. Lab. Code Ann. § 402.001 (Vernon 2006).

      . The following exchange took place at the hearing on the amended plea to the jurisdiction with regard to the reversal of the initial dispute of the extent of injury:
      MR. DOYLE: Said reverse the denial on their official records; but, apparently, her managers thereafter continued to deny.
      THE COURT: And then when was that?
      MR. DOYLE: That was that contested case hearing issue I'm talking about. In other words, the denial that she officially on her records reversed was the January '07 denial. They went ahead and still pressed it— they being the managers — until it was fully resolved by the commission against the carrier in February '08.
      THE COURT: When did that hit the light of day?
      MS. MYERS: The denial?
      MR. DOYLE: You mean the reversal?
      THE COURT: Yeah.
      MR. DOYLE: In discovery in this case.
      THE COURT: But when?
      MR. DOYLE: When did they give us — I think we had to do a Motion to Compel. THE COURT: So, it was not disclosed?
      MR. DOYLE: No. In other words, she documented on their records; but never revealed it. They went ahead and proceeded all the way through these administrative steps until they lost.

      . The employee or physician first must request reconsideration of the decision denying preauthorization. See Tex. Ins. Code Ann. § 1305.354 (providing procedures for reconsideration of adverse determination); § 4201.351 ("[A] a complaint filed concerning dissatisfaction or disagreement with an adverse determination constitutes an appeal of that adverse determination."). The reconsideration must be performed by a provider other than the provider who made the original adverse determination. Id. § 1305.354(a)(1). If the request for reconsideration is denied, then the employee or his physician may seek review of that denial by an independent review organization. Id. § 1305.355(a)(1). The request for independent review must be filed not later than the 45th day after the date of the denial of reconsideration. Id. § 1305.355(b).

      . Under a provision of the Texas Administration Code that was in effect until December 31, 2006, if the insurance carrier raised a compensability dispute, resolution of the request for review by an independent review organization would be abated until the resolution of the compensability dispute. Stinson, 286 S.W.3d at 86 (citing former 28 Tex. Admin. Code § 133.308(f)(7)). That provision is not applicable in this case. Similarly, Harding cannot rely upon Section 413.014(f) of the Labor Code to argue that no preauthorization request was required. Section 413.014(f) does not apply to Harding’s "in network" claim. See Tex. Ins.Code § 1305.351(c).


author: ADELE HEDGES, Chief Justice.

text:
    In re PURPORTED LIENS OR CLAIMS AGAINST SAMSHI HOMES, L.L.C.
    No. 14-09-01018-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 3, 2010.

      John C. Juravich, Houston, for appellant.
    Jesse De Leon, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

ADELE HEDGES, Chief Justice.

Samshi Homes, L.L.C. appeals from the trial court’s denial of its Motion for Judicial Review of Documentation or Instruments Purporting to Create a Lien or Claim, filed pursuant to section 51.903 of the Texas Government Code. In its motion, Samshi Homes contended that liens filed by Jesse De Leon against five of its properties were fraudulent. In two issues on appeal, Samshi Homes contends that the trial court erred in denying the motion. We affirm.

Background

On September 21, 2009, Jesse De Leon filed with the Harris County clerk’s office claims of liens against five properties in Harris County. In each instrument, De Leon stated that “in accordance with a contract with [Vinay] Kama,” De Leon “furnished labor and materials for improvements to the ... property” owned by Kama. De Leon further stated in the instruments that “$4633.00 ... remains unpaid and is due and owing under said contract. [De Leon] asserts a lien on said improvements and premises to secure the payment of the amount claimed.”

On October 16, 2009, Samshi Homes filed its motion, alleging that it, and not Kama, was the owner of the five properties on which De Leon had filed the lien claims. The motion further states that Kama never entered into any agreement with De Leon. The motion concludes that the instruments in question “are fraudulent as defined by Section 51.901(c)(2), Government Code, and that the documentation or instruments should therefore not be accorded lien status.” In an attached affidavit, Kama averred that he is the “managing member” of Samshi Homes and that the assertions in the motion are true and correct.

The trial court denied Samshi Homes’ motion without stating the grounds for the ruling. This appeal ensued.

Analysis

Section 51.903(a) of the Government Code authorizes a person or entity that owns real property, and has reason to believe that another has filed a document purporting to create a lien against that property, to file a motion with the district clerk alleging that the instrument in question is fraudulent, as defined by section 51.901(c), and therefore should not be accorded lien status. Tex. Gov’t Code §§ 51.901(c), 51.903(a). Section 51.903(c) authorizes a district judge with jurisdiction to rule on the motion. Id. § 51.903(c). In doing so, the judge may make his or her determination based on a review of the instrument itself, without the benefit of testimonial evidence. Id.

In its motion Samshi Homes alleged that De Leon’s lien instruments were fraudulent as defined by section 51.901(c)(2). That section provides that an instrument filed for recording in the property records is presumed to be fraudulent if:

the document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and:
(A) is not a document or instrument provided for by the constitution or laws of this state or of the United States;
(B) is not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person; or
(C) is not an equitable, constructive, or other hen imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States....

Id. § 51.901(c)(2). There is no indication in the record that the instruments in question here were created by consent or agreement as contemplated under subsection (B), or that they were imposed by a court as contemplated under subsection (C). The key issue here is whether the instruments are “provided by the constitution or laws of this state or of the United States” as contemplated by subsection (A).

Samshi Homes acknowledges that the instruments in question are attempts to create mechanic’s liens under section 53.054 of the Property Code. However, it argues that the instruments did not meet the requirements of that section because they did not provide (1) “the name and last known address of the owner or purported owner,” or (2) “a general statement of the kind of work done and materials furnished by the claimant.” Tex. Prop.Code § 53.054(a)(2), (3). Samshi Homes further insists that it proved (through Kama’s affidavit) that Kama never entered into an agreement with De Leon. It also argues that because De Leon did not allege an agreement with Samshi Homes, the actual owner of the properties, the claims of lien are fraudulent. Thus, Samshi Homes’ contentions fall into two categories: those challenging whether De Leon’s instruments fulfilled the requirements of section 53.054(a) (i.e., name and address of owner and general statement of work and materials), and those raising substantive eviden-tiary issues (ie., that Kama did not own the property and did not contract with De Leon).

All of Samshi Homes’ contentions, however, go beyond the scope of sections 51.901 and 51.903 of the Government Code. In a proceeding pursuant to those sections, a trial court is limited to determining whether a particular instrument, or instruments, is fraudulent as therein defined; it may not rule on the validity of the underlying lien itself or other claims between the parties. See Tex. Gov’t Code § 51.903(a), (g); Becker v. Tropic Isles Assoc., No. 13-08-00559-CV, 2010 WL 877569, at *3 (Tex. App.-Corpus Christi March 11, 2010, pet. filed) (mem. op.); In re Hart, No. 07-98-0292-CV, 1999 WL 225956, at *2 (Tex.App.-Amarillo April 15, 1999, no pet.) (not designated for publication).

As Samshi Homes acknowledges, the instruments De Leon filed are in the form of mechanic’s liens. Thus, the documents filed by De Leon are instruments “provided by the ... laws of this state” and are therefore not presumed to be fraudulent under section 51.901(c)(2)(A). Samshi Homes complaints based on section 53.054 are therefore beyond the scope of the current proceedings. Likewise, Samshi Homes’ substantive evidentiary claims— that it, rather than Kama, owned the subject properties and that Kama never entered into an agreement with De Leon— are also beyond the scope of the section 51.903 proceedings. See Becker, 2010 WL 877569, at *3 (holding that movant converted his Motion for Judicial Review into an action seeking a declaratory judgment by requesting rulings on the underlying rights of the parties).

Because Samshi Homes failed to demonstrate that the instruments filed by De Leon were fraudulent under section 51.901 of the Government Code, the trial court did not err in overruling Samshi Homes’ Motion for Judicial Review filed pursuant to section 51.903 of the code. Accordingly, we overrule Samshi Homes’ two issues.

We affirm the trial court’s order.

      . The instruments actually spell Kama’s first name as "Vinary,” but Samshi Homes asserts that the proper spelling is "Vinay.”

      . Based on the addresses and legal descriptions of the five properties in question, they appear to be adjacent parcels of land.

      . Subsection (e) of section 51.903 provides that the trial court should "enter an appropriate finding of fact and conclusion of law” regarding its determination, and subsection (g) sets out a "suggested form order” for this purpose. Tex. Gov’t Code § 51.903(e), (g). Although the trial court failed to enter a finding of fact or conclusion of law in the present case, Samshi Homes does not complain about such failure on appeal.

      . Although Samshi Homes argues that De Leon failed to provide the purported owner’s name and address and a general statement of the kind of work done and materials furnished, the instruments themselves show that De Leon attempted to comply with all of the requirements of Property Code section 53.054. Among other information in each instrument, De Leon: (1) averred that the respective property was owned by Kama; (2) gave Kama's home address (an address Kar-na acknowledges was correct); and (3) stated that “in accordance with a contract with [Kama, he (De Leon) ] furnished labor and materials for improvements to the ... property.” Whether such statements were sufficiently specific to meet the requirements of section 53.054 is beyond the scope of a Motion for Judicial Review filed under Government Code section 51.903.

      . In order to remove the liens as invalid or unenforceable for an alleged failure to meet the technical specifications of section 53.054, Samshi Homes should have filed suit and then a summary motion under section 53.160 of the Property Code. Tex. Prop.Code § 53.160(b)(2). It is further important to realize that in addition to differences in scope, there are significant procedural differences between Government Code section 51.903 and Property Code section 53.160, two remedial mechanisms for property owners. For example, a proceeding pursuant to section 51.903 does not require notice to the claimant who filed the lien, whereas a proceeding pursuant to section 53.160 does require notice. Compare Tex. Gov't Code § 53.160(c) (requiring notice) with Tex. Prop.Code § 51.903(c) (stating that review may be undertaken “without ... notice of any kind”). The two are not interchangeable.


author: LESLIE B. YATES, Justice. CHARLES W. SEYMORE, Justice,

text:
    The CITY OF HOUSTON, Appellant, v. The ESTATE OF Kenneth Samuel JONES, Deceased, Appellee.
    No. 14-09-00812-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 3, 2010.

      Jaqueline I. Leguizamon, Bertrand L. Pourteau, II, Houston, for appellant.
    Christy Lynn Martin, Nicholas N. Deutsch, Houston, for appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

In June 2000, Kenneth Samuel Jones, now deceased, brought tort claims in county civil court at law against appellant the City of Houston after his neighbor, working pursuant to a City-issued demolition permit, damaged his home, rendering it uninhabitable. In December 2002, after receiving notice that the case was set for dismissal, the parties filed an agreed motion for continuance. In the motion, the parties stated that they had “conducted negotiations which lead to an amicable resolution of this ease.” Although an actual settlement agreement is not in the record and the motion for continuance does not contain all the settlement details, the settlement involved an agreement to help include Jones in the City’s federally approved home repair program. The parties jointly requested a continuance because all the program’s resources were being used to help victims of Tropical Storm Allison and the parties did not know when program resources would be allocated to assist Jones. The home repair program was discontinued before Jones received any assistance. Jones then amended his petition to assert a claim for breach of the settlement agreement. Both sides moved for summary judgment, and the City also filed a plea to the jurisdiction, alleging it was immune from suit for breach of contract. The trial court denied the plea relative to enforcement of the settlement agreement. The City appealed, and the First Court of Appeals affirmed, holding that the “sue and be sued” language in the City’s charter waived immunity. See City of Houston v. Jones, No. 01-03-00831-CV, 2004 WL 1847965, at *3 (Tex.App.-Houston [1st Dist.] Aug. 19, 2004), rev’d, 197 S.W.3d 391 (Tex.2006). The Texas Supreme Court reversed, rejecting the claim of immunity waiver based on the City’s charter, and remanded with instructions for the trial court to determine if the City otherwise waived immunity, specifically under Local Government Code section 271.152 (Vernon 2005) (providing waiver of immunity from suit for claims against local governmental entities for certain types of contracts) or Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518, 522-23 (Tex.2002) (finding waiver of immunity in that case based on entering into a settlement agreement). See City of Houston v. Jones, 197 S.W.3d 391, 392 (Tex.2006).

On remand, the City filed another plea to the jurisdiction in August 2006. Jones opposed the plea and set his previously filed summary judgment motion for submission. On May 24, 2007, the trial court granted partial summary judgment on Jones’s contract claim, thus implicitly denying the City’s plea to the jurisdiction. See Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex.2006). The City did not file an interlocutory appeal from the denial of this 2006 plea. See Tex. Crv. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008) (authorizing interlocutory appeals from orders granting or denying plea to the jurisdiction of governmental units).

Jones died, and the case was then transferred to probate court. The City filed a motion for summary judgment and, in the alternative, plea to the jurisdiction, in August 2009. The trial court construed the 2009 plea as a motion to reconsider the May 24, 2007 ruling in which the trial court implicitly denied the City’s 2006 plea and denied the City’s motion. The City has now filed an interlocutory appeal of this order.

Jones filed a motion in this court to dismiss the City’s appeal, arguing that the 2009 plea to the jurisdiction is substantially identical to the 2006 plea and that we have no interlocutory jurisdiction over the denial of a motion to reconsider. We agree in part. In the 2006 plea, the City discussed the reasons it had not waived its immunity under rule 11 of the Texas Rules of Civil Procedure, by breaching a settlement agreement under Lawson, or under section 271.152. In the 2009 plea, the City again raised rule 11, Lawson, and section 271.152. Its arguments regarding rule 11 and Lawson were substantively identical, but the City urged a new ground arguing that section 271.152 does not apply because that the contract does not “stat[e] the essential terms of the agreement for providing goods and services to the local government entity.” Tex. Loc. Gov’t Code Ann. § 271.151(2) (Vernon 2005).

We do not have interlocutory jurisdiction to consider the issues raised in the 2006 plea that were re-urged in the 2009 plea. The portion of the 2009 plea repeating the issues in the 2006 plea was in effect a motion to reconsider those issues, and we do not have interlocutory jurisdiction over an order denying a motion to reconsider. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 2008); Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463, 464 (TexApp.-Houston [1st Dist.] 2004, no pet.); Denton County v. Huther, 43 S.W.3d 665, 666-67 (Tex.App.-Fort Worth 2001, no pet.); see also Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (holding we are to strictly construe statutes allowing interlocutory appeals). The City had an opportunity to bring an interlocutory appeal of the denial of its 2006 plea, but it chose not to, and it is too late to do so now. See Tex.R.App. P. 26.1(b); Dayco Prods., Inc. v. Ebrahim, 10 S.W.3d 80, 83 (Tex.App.-Tyler 1999, no pet.) (holding that a motion to reconsider does not extend the appellate deadline for perfecting an interlocutory appeal). Therefore, we do not have jurisdiction to consider those issues in this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014; State v. Ruiz Wholesale Co., 901 S.W.2d 772, 775 (Tex.App.-Austin 1995, no writ) (holding that “[a]n interlocutory order that is not timely appealed is not reviewable by this court” on appeal of a subsequent interlocutory order).

However, we do have jurisdiction to consider the new ground argued in the 2009 plea because it is a separate and distinct ground. Therefore, we grant the motion to dismiss in part as to the grounds raised in the 2006 plea and deny it as to the new ground under section 271.152 raised in the 2009 plea. See Tex. Dep’t of Crim. Justice v. Avellaneda, No. 11-05-00414-CV, 2006 WL 1172253, at *2-3 (Tex.App.-Eastland 2006, no pet.) (mem. op.) (dismissing for lack of jurisdiction only the portion of second interlocutory appeal that was identical to first interlocutory order that could have been appealed but was not); Montgomery County v. Fuqua, 22 S.W.3d 662, 668-69 (Tex.App.-Beaumont 2000, pet. denied) (finding no jurisdiction to consider portion of city’s interlocutory appeal concerning limitations); see also Kaplan v. Tiffany Dev. Corp., 69 S.W.3d 212, 217 (Tex.App.-Corpus Christi 2001, no pet.) (“When a party appeals from two interlocutory orders, only one of which is made appealable by statute, the proper course of action is to dismiss that portion which is non-appealable, and to rule on the portion from which an appeal may be taken.”).

In its sole issue on appeal, the City asserts that the trial court erred in denying its plea to the jurisdiction. Even though we have jurisdiction to consider the new ground under section 271.152 in the City’s 2009 plea, we reject it as a basis for reversing the trial court’s denial of the City’s plea to the jurisdiction. To prevail on its plea, the City must not have waived its immunity. We have jurisdiction to consider only one basis for whether the City has waived its immunity, but we do not have jurisdiction to consider the other grounds of immunity waiver argued in the 2006 plea. Therefore, even if the City is correct that it has not waived immunity under section 271.152, the City has not demonstrated on appeal that it is entitled to have its plea to the jurisdiction granted because the other bases of waiver, which are not properly before us, provide sufficient support for the trial court’s order. We overrule the City’s issue.

We dismiss for lack of jurisdiction all of the City’s appeal except for the portion regarding the new ground related to immunity waiver under section 271.251 (i.e., the “essential terms of the agreement for providing goods and services to the local government entity” argument). We overrule the City’s issue and affirm the trial court’s order denying the City’s plea to the jurisdiction.

SEYMORE, J., dissenting.

CHARLES W. SEYMORE, Justice,

dissenting.

The Texas Supreme Court reviewed a previous interlocutory appeal pertaining to the trial court’s jurisdiction in this case and concluded that the “sue and be sued” provisions of the City charter did not constitute waiver of immunity from the instant suit. See City of Houston v. Jones, 197 S.W.3d 391, 392 (Tex.2006). This was the City’s first interlocutory appeal from the denial of a plea to the trial court’s jurisdiction. The supreme court remanded with instructions for the trial court to give Jones an opportunity to plead and argue waiver of immunity under the authority of Texas A & M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex.2002), and recently enacted sections 271.152-154 of the Local Government Code. Id. Relative to jurisprudential concern for economy and expediency, subject-matter jurisdiction is the pressing issue.

Subsequent to the supreme court’s remand, the trial court signed an order granting partial summary judgment in favor of Jones on May 24, 2007. The City’s second plea to the trial court’s jurisdiction was pending when the trial court signed the partial summary-judgment order. Apparently, the City concedes that the effect of the order was a denial of its 2007 jurisdictional plea. However, the City contends the entirety of the plea to the trial court’s jurisdiction it filed in 2009 is subject to appellate review under section 51.014(a)(8) of the Civil Practices and Remedies Code, even if a portion is “construed as a motion to reconsider” its 2007 jurisdictional plea. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008). The majority disagrees and concludes that the City lost the opportunity to pursue an interlocutory appeal of immunity issues raised in its 2007 jurisdictional plea by failing to pursue appellate relief timely. See Tex.RApp. P. 26.01(b).

I am concerned that the majority’s interpretation and application of procedural rules conflicts with a long line of appellate authority that subject-matter jurisdiction may be raised at any time whether the case is pending in a trial court, this court, or the supreme court. See, e.g., Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004) (“Not only may an issue of subject matter jurisdiction ‘be raised for the first time on appeal by the parties or by the court’, a court is obliged to ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it.” (footnote omitted)), superseded by statute on other grounds, Tex. Gov’t Code Ann. § 311.034 (Vernon 2005); Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000) (expressing in an interlocutory appeal that “subject matter jurisdiction is essential to the authority of a court to decide a case, it cannot be waived and may be raised for the first time on appeal”); Tex. Assoc, of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties.”); Tex. Employment Comm’n v. Int’l Union of Elec., Radio and Mach. Workers, Local Union No. 782, AFL-CIO, 163 Tex. 135, 137, 352 S.W.2d 252, 253 (1962) (“Lack of jurisdiction in the district court would be fundamental error and a plea to such effect is subject to review although first presented on appeal.”); Wagner v. Warnasch, 156 Tex. 334, 339, 295 S.W.2d 890, 893 (1956) (“We fully recognize that the authority of the Court of Civil Appeals and of this court to take notice of unassigned errors is very much limited in its scope, but there can be no question of the authority of either of the courts to reverse a case for fundamental error, if that error is one of jurisdiction. Not to do so would be to permit the parties to confer jurisdiction on the court.”).

For the following reasons, I would hold that this court should not refuse to address jurisdictional questions based on technical defects. First, section 51.014(a) of the Civil Practice and Remedies Code provides for an interlocutory appeal from an order of a court that “denies a plea to the jurisdiction” by the City. However, there is no language in the statute proscribing appeals from denials of pleas if the same or similar relief was previously requested, denied, and no timely appeal ensued. Consequently, section 51.014(a) and Appellate Rule of Procedure 26.01(b) should not be interpreted or applied in derogation of the fundamental substantive rule of law that a court’s subject-matter jurisdiction may be questioned at any time, whether by a party or the court sua sponte.

Second, the Texas Supreme Court has held that “[i]f the trial court denies the governmental entity’s claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise, the Legislature has provided that an interlocutory appeal may be brought.” Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The majority correctly acknowledges that this court has jurisdiction over a portion of the trial court’s 2009 ruling. I submit that having acquired jurisdiction, this court should address all jurisdictional arguments. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-51 (Tex.2000); Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 95 (Tex.App.-Houston [14th Dist.] 2010, no pet. h.) (stating that “[a]n appellate court must consider challenges to the trial court’s subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court”).

Third, in Brenham Housing Authority v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.), this court concluded that under section 51.014(a)(8), an appellate court must con-fíne its review on interlocutory appeal to claims addressed in the plea previously considered by the trial court. See also Galveston Indep. Sch. Dist. v. Jaco, 278 S.W.3d 477, 479 n. 2 (Tex.App.-Houston [14th Dist.] 2009), rev’d on other grounds, 303 S.W.3d 699 (Tex.2010) (per curiam); State v. Clear Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *3 (Tex.App.-Houston [14th Dist.] July 31, 2008, no pet.) (mem. op.); Clear Lake City Water Auth. v. Friendswood Dev. Co., 256 S.W.3d 735, 747 n. 14 (Tex.App.-Houston [14th Dist.] 2008, pet. dism’d); Prairie View A & M Univ. v. Dickens, 243 S.W.3d 732, 736 (Tex.App.-Houston [14th Dist.] 2007, no pet.). However, in Olivares, this court concluded it was not bound by the above panel decisions because the Texas Supreme Court in Gibson concluded that an appellate court must consider challenges to subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court. 316 S.W.3d at 94-95 & n. 2. I would submit the postulate that the supreme court’s analysis in Gibson covers the factual scenario in this ease. Courts should not interpret or apply procedural rules to obstruct anyone, at any time, from interposing a fundamental legal question: does the court presently have subject-matter jurisdiction?

I acknowledge that the majority has limited its disposition of a party’s right to seek appellate review of jurisdictional issues to the unique facts of this case. However, with due consideration for the settled jurisprudence described above, I am hesitant to strictly apply any procedural rule in a manner that impairs or prohibits any party or court from asserting, at any time, that the court does not have subject-matter jurisdiction. Moreover, relative to interlocutory appeals authorized under section 51.014(a), judicial economy should be a strong consideration when the court is presented with persuasive argument and authority supporting the contention that the trial court does not have subject-matter jurisdiction.

Accordingly, I respectfully dissent.

      . We note that our decision expresses no opinion on the merits of the City’s arguments and has no impact on its ability to assert these arguments on direct appeal in the appropriate circumstances.

      . Because this case involves an interlocutory appeal from a trial court's ruling on the actual issues raised in the appeal, it is distinguishable from other cases holding that new jurisdictional arguments may be made for the first time on appeal of the denial of a plea to the jurisdiction. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000); Tex. Dep’t of Transp. v. Olivares, No. 14-09-00211-CV, 316 S.W.3d 89, 94-95 n. 2 (Tex.App.Houston [14th Dist.] 2010, no pet. h.).


author: LESLIE B. YATES, Justice.

text:
    Bettie J. ROBERTS a/k/a Bettie Berard and the Heirs of Annie Mary Johnson, Appellants, v. T.P. THREE ENTERPRISES, INC., Appellee.
    No. 14-09-00206-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 3, 2010.

      Matthew B. Edquist, Angleton, for appellants.
    Michael J. Darlow, Michael C. Whalen, Houston, for appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

LESLIE B. YATES, Justice.

In this trespass to try title action, appellants Bettie J. Roberts a/k/a Bettie Berard and the heirs of Annie Mary Johnson appeal the summary judgment granted in favor of appellee, T.P. Three Enterprises, Inc. We affirm.

I. Background

On May 23, 1995, Brazos River Harbor Navigation District, Angleton-Danbury Hospital District, Brazoria County, Special Road & Bridge, Angleton Independent School District, and Brazoria County Education District (collectively “the governmental entities”) filed a tax foreclosure suit against Ann Knowles Washington on a 4.810 acre tract in Brazoria County. On May 15, 2001, the trial court entered judgment in favor of the governmental entities. On January 24, 2004, the district court clerk issued an order of sale. On April 20, 2004, pursuant to a sheriffs deed, appellee purchased the 4.810 acres. On April 22, 2004, the sheriffs deed on the 4.810 acres was recorded in Brazoria County.

In July 2006, appellee sued Roberts seeking to evict her from the property. On August 4, 2006, appellants filed a trespass to try title action against the governmental entities and appellee alleging that appellants had acquired title to the property through adverse possession. On June 4, 2008, appellee filed a traditional motion for summary judgment. On December 5, 2008, without specifying the grounds, the trial court granted appellee’s motion. In the final judgment, the court ordered that fee simple title in the property be vested in appellee and granted appellee’s request for writ of possession of the property.

II. Standard of Review

We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). In reviewing a traditional summary judgment, we examine the entire record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex.2007). If the movant establishes that the action is barred by limitations, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

When a trial court’s order granting summary judgment does not specify the grounds upon which it was granted, we will affirm the judgment if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, an appellant must negate all grounds on appeal. See State Farm, Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex.1993).

III. Analysis

Appellants raise four issues on appeal. In general, appellants complain that the trial court erred in granting summary judgment in favor of appellee because (1) the limitations periods of Texas Tax Code section 33.54 did not bar them from bringing suit, (2) appellants had no notice of the tax suit, and (3) the final judgment imper-missibly broadened the scope and terms of the sheriffs deed. Because the issues are interrelated, we will address them together.

A. Appellants Do Not Address All Summary Judgment Grounds on Appeal

As a preliminary matter, we note that appellants claim that appellee’s sole basis for summary judgment was the limitations periods under Texas Tax Code section 33.54. To the contrary, appellee sought ’summary judgment based on two statutory grounds. First, it argued that appellants failed to bring suit within the limitations periods set forth under section 33.54(a) of the Texas Tax Code. Second, it asserted that appellants failed to deposit into the court’s registry an amount equal to the delinquent taxes, penalties, and interest specified in the judgment of foreclosure or to file an affidavit of inability to pay as required by section 34.08(a) of the Code. Of these two grounds, appellants attack only limitations. Because the trial court’s order did not specify the ground upon which it granted appellee’s motion, on this basis alone, the summary judgment must be affirmed. See S.S., 858 S.W.2d at 381 (noting where multiple grounds for summary judgment are asserted and order does not specify ground on which summary judgment was granted, appellant must negate all grounds on appeal).

B. Appellants Failed to Comply with Texas Tax Code Section 34.08(a)

However, even if appellants had challenged the second ground, appellee conclusively established that appellants failed to comply with the requirements of section 34.08(a). In support of its summary judgment motion, appellee attached a district clerk’s certificate showing that appellants had failed to make the requisite deposit into the court’s registry or file an affidavit of inability to pay as mandated by section 34.08(a). Appellants presented no evidence to the contrary. Having failed to comply with the statute, appellants were barred from commencing their action challenging the validity of the tax sale. See Session v. Woods, 206 S.W.3d 772, 779 (Tex.App.-Texarkana 2006, pet. denied) (concluding that appellant’s failure to comply with requirements of section 34.08(a) constituted alternative ground in support of granting appellee’s summary judgment motion); Jordan v. Bustamante, 158 5.W.3d 29, 43 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (stating that prior owners were barred from commencing action to challenge validity of tax sale to purchaser where owners had failed to timely deposit funds into court’s registry as required under section 34.08(a)).

C. Appellants’ Action Is Time-Barred Under Texas Tax Code Section 33.54

Furthermore, appellants’ limitations argument fails on its own merits. Statutes of limitations further the policy that one must diligently pursue one’s legal rights at the risk of losing them if they are not timely asserted. See City of Murphy v. City of Parker, 932 S.W.2d 479, 481-82 (Tex.1996). Section 33.54 requires that an action relating to property sold for taxes be commenced before the first anniversary of the recording of the tax deed or, if the property was homestead or land appraised or eligible to be appraised under Chapter 23, Subchapter C or D, before the second anniversary of the deed’s recording. See Tex. Tax Code Ann. § 33.54(a). Absent a challenge brought within the statute of limitations, the code allows a tax sale purchaser to “conclusively presume that the tax sale was valid” and transfers to the purchaser “full title to the property free and clear of the right, title, and interest of any person that arose before the tax sale.” Id. § 34.08(b). Here, the sheriffs deed selling the property to appellee was recorded on April 22, 2004. Appellants filed their trespass to try title action on August 4, 2006, more than two years after the sheriffs deed was recorded. Thus, appellants’ action was untimely under either the one or two-year deadline, and the only inquiry is whether the limitations exception in section 33.54(b) applies.

Section 33.54(b) provides that a person not served citation in a tax foreclosure suit may avoid application of the statutory limitations period by paying the property taxes in the years between the tax sale and the date suit is filed. See id. § 33.54(b). Appellants assert that they were neither named nor served in the tax suit but that they paid taxes on the property. Thus, they argue, subsection (b) precludes application of the limitation periods to them. In support of their position, appellants attached Roberts’s affidavit dated August 25, 2008 to their summary judgment response. In her affidavit, Roberts states “I have paid taxes and continue to pay taxes to Brazoria County, Texas under the attached tax notice.” However, there is no tax notice attached to Roberts’s 2008 affidavit or otherwise included in appellants’ summary judgment response. As such, appellants’ contention that subsection (b) bars application of the limitations periods to them is unsupported by the summary judgment record.

Although we are not required to look beyond the summary judgment record before us, we note that in their response to appellee’s first amended motion for partial summary judgment filed before the summary judgment at issue here, appellants included an affidavit by Roberts dated November 16, 2006, to which they attached a document describing Roberts’s property and its value. However, even if we were to consider this evidence in evaluating appellants’ claim that they paid taxes on the property, it is nonetheless unavailing for two reasons. First, although the document lists the taxing entities on the property, it does not show that any taxes were actually paid. Second, the legal description and the account number of the property reflected in the attached document are listed as follows:

A0125 A ROBINSON, TRACT 21-32B-32C, MH SERIAL # OC05935750A LABEL # TEX0476865, ACRES 2.000; Account Number 0125-0048-000 (emphasis added).

By contrast, the sheriffs deed describes the property as

4.810 ACRES OF LAND, CALLED LOT 31, OUT OF THE EAST 1/2 OF LOT 31 OUT OF THE B.T. MASTER-SON SUBDIVISION OF TRACT 21, OUT OF THE A. ROBINSON SURVEY, ABSTRACT 125 LOCATED IN BRAZORIA COUNTY, TEXAS AND BEING MORE PARTICULARLY DESCRIBED IN CLERK’S FILE NUMBER 96-010060 OF THE OFFICIAL RECORDS OF BRAZORIA COUNTY, TEXAS (ACCOUNT NUMBER 0125-0024-110) (emphasis added).

Thus, the property described in the document attached to Roberts’s 2006 affidavit and the property sold to appellee as reflected in the sheriffs deed are not the same. Appellants have not proffered any evidence showing that they paid taxes on the disputed property. As such, appellants have not shown themselves to be exempt from the limitations periods in challenging the tax sale.

Appellants also contend that they were denied due process because they were not made a party to, or given notice of, the tax suit. They further argue that because the tax suit, subsequent judgment, and sheriffs deed focused only on the interest held by Washington, the trial court erred when it granted fee simple title in the property to appellee because it broadened the deed beyond its scope and terms. We need not consider these arguments. Notwithstanding the potential merit of a property owner’s challenge to a tax sale, such arguments must be exercised within the limitations periods set forth in section 38.54. See W.L. Pickens Grandchildren’s Joint Venture v. DOH Oil Co., 281 S.W.3d 116, 122 (Tex.App.-El Paso 2008, pet. denied) (concluding that former mineral interest owner’s failure to timely argue that tax sale was invalid because it was not named as party precluded court from considering it); John K. Harrison Holdings, L.L.C. v. Strauss, 221 S.W.3d 785, 791 (Tex.App.-Beaumont 2007, pet. denied) (finding purported land owner’s challenge to tax sale was barred by owner’s failure to bring action within limitations period); Session, 206 S.W.3d at 779 (concluding that even if adverse claimant could have successfully proven adverse possession title, his failure to file action within limitations period barred his claim). Because they failed to do so, appellants’ claims come too late. Without a timely challenge, appellee acquired good title to the property through the sheriffs deed. See Tex. Tax Code Ann. § 34.08(b). Accordingly, the trial court did not err in granting appellee’s motion for summary judgment. Issues one through four are overruled.

IV. Conclusion

We affirm the judgment of the trial court.

      . The tax suit was styled Angleton Independent School District, v. Ann Knowles Washington, No. 95T5181, in the 239th District Court of Brazoria County, Texas.

      . On June 15, 2009, appellants moved to non-suit the governmental entities. The court granted the motion on June 19, 2009.

      .Appellee previously filed a no-evidence motion for partial summary judgment, which the trial court apparently denied on November 29, 2006.

      . § 33.54. Limitation on Actions Relating to Property Sold for Taxes
      (a) Except as provided by Subsection (b), an action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless the action is commenced:
      (1) before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of record; or
      (2) before the second anniversary of the date that the deed executed to the purchaser is filed of record, if on the date that the suit to collect the delinquent tax was filed the property was:
      (A) the residence homestead of the owner; or
      (B) land appraised or eligible to be appraised under Subchapter C or D, Chapter 23.
      (b) If a person other than the purchaser at the tax sale or the person’s successor in interest pays taxes on the property during the applicable limitations period and until the commencement of an action challenging the validity of the tax sale and that person was not served citation in the suit to foreclose the tax lien, that limitations period does not apply to that person.
      (c)When actions are barred by this section, the purchaser at the tax sale or the purchaser’s successor in interest has full title to the property, precluding all other claims.
      Tex. Tax Code Ann § 33.54 (Vernon 2008).

      . § 34.08. Challenge to Validity of Tax Sale
      (a) A person may not commence an action that challenges the validity of a tax sale under this chapter unless the person:
      (1) deposits into the registry of the court an amount equal to the amount of the delinquent taxes, penalties, and interest specified in the judgment of foreclosure obtained against the property plus all costs of the tax sale; or
      (2) files an affidavit of inability to pay under Rule 145, Texas Rule of Civil Procedure.
      Tex. Tax Code Ann. § 34.08(a) (Vernon 2008).

      . Although the record does not include a copy of plaintiffs' original petition, the civil docket sheet and civil case search form reflect that suit was filed on August 4, 2006. Further, in their brief, appellants state that they filed suit against appellee after appellee filed an eviction suit against them on July 19, 2006. Thus, by their own admission, they filed suit after July 19, 2006, which was more than two years after the sheriff's deed was recorded. Finally, we note that appellants did not dispute in either their summary judgment response or appellate brief that the limitations period had run. To the contrary, appellants state several times that appellee waited for the statute to run before filing an eviction suit against them, presumably to ensure that appellants would be time-barred from challenging the tax sale.

      . In fact, appellants equivocate on their claim that they paid taxes on the 4.810 acres. In their brief, appellants claim that, due to a mistake by the grantor, they took possession of the wrong property fifty years ago and that they "attempted" to pay taxes on the property at issue. These statements further support our conclusion that appellants did not prove that they paid taxes on the 4.810 acres. See, e.g., Miller v. Kenna, No. 06-08-00006-CV, 2008 WL 4425610, at *2 (Tex.App.-Texarkana Oct. 2, 2008, no pet.) (mem. op.) (noting county tax records indicated property upon which plaintiff claimed to have paid taxes was separate from tract made subject of tax sale challenge and thus did not support plaintiffs’ claim that they paid taxes on disputed property).