639 N.E.2d 144 (1993)
265 Ill.App.3d 991
203 Ill.Dec. 105
Jack W. SCHULER, Plaintiff-Appellant,
v.
ABBOTT LABORATORIES, Defendant-Appellee.
No. 1-92-3431.
Appellate Court of Illinois, First District, Fourth Division.
October 14, 1993.
*146 George F. Galland, Jr. of Davis, Miner, Barnhill & Galland, P.C., Chicago, for plaintiff-appellant.
Kenneth J. Jurek, Howard J. Roin, Bennett W. Lasko and Ellen M. Bublick of Mayer, Brown & Platt, Chicago, for defendant-appellee.
Presiding Justice CAHILL delivered the opinion of the court:
Jack W. Schuler sued his former employer, Abbott Laboratories, alleging tortious interference with his economic advantage. He claimed Abbott unfairly invoked a non-competition agreement when two of Abbott's competitors sought to hire Schuler, and that Abbott advised a third non-competing company not to hire Schuler. Abbott moved to dismiss. The trial court granted the motion, holding Schuler failed to properly plead the elements of tortious interference with economic advantage for each allegation. We affirm.
Abbott employed Schuler from 1972 to 1989. Schuler spent his last two years with Abbott as president and chief operating officer. Schuler and Abbott's then board chairman and chief executive officer (CEO) differed on critical issues facing the company. In July of 1989, the CEO demanded Schuler's resignation.
Abbott and Schuler began to negotiate a termination agreement. Abbott proposed an agreement which paid Schuler substantial termination benefits and in return prevented him from working for any competitor worldwide for six years. Schuler testified the parties orally agreed that the only method of enforcing a violation of the non-competition clause would be forfeiture by Schuler of benefits yet to be paid by Abbott. The written agreement, however, contained a clause which allowed Abbott to seek an injunction prohibiting Schuler from working for a competitor. Schuler also testified that after the agreement was signed, Abbott orally agreed not to seek an injunction to prevent Schuler from working for a competitor, but that terms of his release from the non-competition clause would be negotiated as circumstances arose.
In 1990, a competitor of Abbott, "Company A", contacted Schuler about employment in their medical diagnostics business. Schuler began to negotiate with Company A and told Abbott of the opportunity. Company A told Schuler they would not hire him if to do so would risk a lawsuit by Abbott. Abbott, in turn, told Schuler they would enforce their right under the agreement to seek an injunction. Schuler told Company A of Abbott's position, and Company A refused to hire him.
Again in 1990, "Company B", a European pharmaceutical firm, contacted Schuler proposing that he temporarily manage their diagnostics division and search for partners to begin a new diagnostics company. Again, Abbott told Schuler they would seek an injunction to enforce the non-competition agreement. When made aware of Abbott's position, Company B broke off negotiations with Schuler.
Also in 1990, a third company, "Company C", which did not compete with Abbott, contacted Schuler to explore the possibility of Schuler becoming its CEO. At the time, Abbott had the right to designate a member on Company C's board of directors. In 1988, Abbott designated Duane L. Burnham, then chief financial officer for Abbott, to fill the board seat. In 1990, Burnham still held the board seat at Company C but had become the CEO of Abbott.
Company C was prepared to offer Schuler a generous stock offering if he became CEO, and Schuler was prepared to accept the position. When Burnham heard of Company C's negotiations with Schuler, he reacted angrily at a Board meeting and criticized Company C for considering Schuler. According to the complaint, he raised "aggressive opposition" to Company C's plan to hire Schuler. Company *147 C then broke off negotiations with Schuler.
In December of 1990, Schuler sought a declaratory judgment in the circuit court of Cook County to invalidate the agreement. The suit alleged the agreement was overly broad in geographic scope and duration, and that Schuler lacked any knowledge that would qualify as a protectable interest of Abbott. After defending the suit for ten months, Abbott agreed not to enforce the non-competition agreement by injunction or by a suit against a third party seeking to hire Schuler. A judgment order to that effect was entered on October 28, 1991.
On January 16, 1992, Schuler filed a three count complaint against Abbott. Each count alleged tortious interference with a prospective economic advantage. Count I addressed the lost opportunity at Company A, count II the lost opportunity at Company B, and count III the lost opportunity at Company C. Abbott moved to dismiss the complaint under both sections 2-615 and 2-619 of the Illinois Code of Civil Procedure. Ill.Rev.Stat.1991, ch. 110, pars. 2-615, 2-619, now codified as 735 ILCS 5/2-615, 2-619 (West 1992).
The trial court dismissed each count under section 2-615. The court ruled that counts I and II failed to properly plead each element of tortious interference with economic advantage because Schuler did not allege any activity of Abbott's directed at a third party. In count III, the court ruled that Schuler failed to plead sufficient facts to overcome the presumption that Burnham acted in the interests of Company C when he advised them not to hire Schuler. The court allowed leave to replead count III only. Schuler chose to stand on count III as pled, and a final judgment order was entered on all three counts. Schuler then appealed.
In considering a 2-615 motion, all well-pled facts in a complaint are taken as true with all inferences drawn in favor of the nonmovant. (Geick v. Kay (1992), 236 Ill. App.3d 868, 177 Ill.Dec. 340, 603 N.E.2d 121.) A complaint fails to state a cause of action if it does not contain allegations of each fact that must be proved to sustain a judgment for the plaintiff. (Madonna v. Giacobbe (1989), 190 Ill.App.3d 859, 138 Ill.Dec. 90, 546 N.E.2d 1145.) The complaint may not rest on factual conclusions not supported by allegations of specific facts. J. Eck & Sons v. Donnelley (1991), 213 Ill.App.3d 510, 157 Ill. Dec. 626, 572 N.E.2d 1090.
The tort of interference with prospective economic advantage has four elements: (1) plaintiff must have a reasonable expectancy of a valid business relationship; (2) defendant must know about it; (3) defendant must intentionally interfere with the expectancy, and so prevent it from ripening into a valid business relationship; and (4) intentional interference must injure the plaintiff. Fellhauer v. City of Geneva (1991), 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870.
Plaintiff states a cause of action only if he alleges a business expectancy with a specific third party. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App.3d 400, 2 Ill.Dec. 234, 357 N.E.2d 211; Du Page Aviation v. Du Page Airport Authority (1992), 229 Ill.App.3d 793,171 Ill.Dec. 814, 594 N.E.2d 1334.) Here, the requirement is met because Schuler alleged business opportunities with three identifiable companies. Plaintiff must also allege action by the interfering party directed towards the party with whom the plaintiff expects to do business. (Galinski v. Kessler (1985), 134 Ill. App.3d 602, 89 Ill.Dec. 433, 480 N.E.2d 1176; Westland v. Sero of New Haven, Inc. (N.D. Ill. 1985), 601 F. Supp. 163.) Defendant argues this requirement necessarily implies that the interfering party must make contact with the third party. While it is true that "action directed at a third party" will often include contact with the third party, we can find no requirement of contact in the law and do not create one now.
In counts I and II, the interference alleged by Schuler was Abbott's claim that they would seek enforcement of the noncompetition agreement if Schuler began working for Company A or Company B. Abbott never spoke to or communicated directly with Company A or Company B. Abbott merely told Schuler that they would seek to enforce in court the agreement which Schuler himself signed in the presence of his *148 attorney. Although enforcing the agreement was likely to effect others beside Schuler, Abbott conducted no activity with anyone but Schuler and expressed a desire only to prevent Schuler from violating the letter of his agreement. Under these facts, we find Abbott did not take action directed at a third party.
Schuler claims Abbott in effect took action directed at Company A and Company B because Abbott knew that enforcement was likely to dissuade the companies from hiring Schuler. Courts have rejected this argument, instead requiring that the interfering action be directed in the first instance at the third party. Galinski v. Kessler (1985), 134 Ill.App.3d 602, 89 Ill.Dec. 433, 480 N.E.2d 1176; State National Bank v. Academia, Inc. (Tex.App.1990), 802 S.W.2d 282 (interpreting Illinois law).
Count III, addressed to the actions of Abbott's executive as a board member of Company C, is governed by a different principle. Where the defendant acts under a privilege or with justification, it is plaintiff's burden to plead malice or lack of justification to satisfy the elements of tortious interference with economic advantage. (Fellhauer, 142 Ill.2d at 512-13, 154 Ill.Dec. 649, 568 N.E.2d 870; HPI Health Care v. Mt. Vernon Hospital (1989), 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672; Madonna v. Giacobbe (1989), 190 Ill.App.3d 859, 138 Ill.Dec. 90, 546 N.E.2d 1145; Venturini v. Affatato (1980), 84 Ill.App.3d 547, 40 Ill.Dec. 1, 405 N.E.2d 1093.) The actions of corporate officers and directors who use their best business judgment and discretion on behalf of their corporations are clothed with a privilege. Swager v. Couri (1979), 77 Ill.2d 173, 32 Ill.Dec. 540, 395 N.E.2d 921; HPI Health Care, 131 Ill.2d at 157, 137 Ill.Dec. 19, 545 N.E.2d 672.
In count III, Schuler alleged that the CEO of Abbott, a board member of Company C, interfered with Schuler's opportunity at Company C by opposing his employment at a board meeting. In an attempt to overcome the privilege afforded corporate directors, Schuler pled: "Burnham reacted angrily to the news of these negotiations [with Schuler], severely criticized the Chairman and his colleagues for undertaking them, and raised aggressive opposition to Company C's proceeding further with the plan to hire plaintiff." Schuler also pled, on information and belief, that Burnham's opposition was not based on a good faith judgment that it was in the interests of Company C, but rather part of Abbott's plan to keep Schuler from working anywhere in the health care industry. The trial judge found that Schuler insufficiently pled malice and offered Schuler the opportunity to replead. Schuler declined and took this appeal.
We agree with the trial court. Schuler's pleading only reveals that Burnham was opposed to Company C hiring Schuler, and that Burnham was angry when he informed the board of his position. One way to plead malice is to allege facts that support the conclusion that the director's actions were unrelated or antagonistic to the interest that gave rise to the privilege. (HPI Health Care, 131 Ill.2d at 158-59, 137 Ill.Dec. 19, 545 N.E.2d 672; Madonna v. Giacobbe (1989), 190 Ill.App.3d 859, 138 Ill.Dec. 90, 546 N.E.2d 1145; Phillip I. Mappa Interests, Ltd. v. Kendle (1990), 196 Ill.App.3d 703, 143 Ill.Dec. 936, 554 N.E.2d 1008.) Schuler attempted to do so, but only on information and belief and without allegations of specific facts from which we could conclude that Burnham was not acting in Company C's best interest when he advised them not to hire Schuler. Bare allegations of malice, without factual support, do not overcome a privilege. Phillip I. Mappa, 196 Ill.App.3d at 708-10, 143 Ill.Dec. 936, 554 N.E.2d 1008.
Affirmed.
JOHNSON and HOFFMAN, JJ., concur.


                                                                                Opinions of the United
2007 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

8-17-2007

Nguyen v. Huntingdon SCI Supt
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5208

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Recommended Citation
"Nguyen v. Huntingdon SCI Supt" (2007). 2007 Decisions. Paper 577.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/577

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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     No. 05-5208

                                PHU VAN NGUYEN,
                                    Appellant
                                      vs.

              SUPERINTENDENT GRACE OF SCI HUNTINGDON;
       THE DISTRICT ATTORNEY OF THE COUNTY OF BERKS COUNTY;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                            ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. Civ. No. 05-cv-01241)
                   District Judge: Honorable Edmund V. Ludwig

                                    ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                  July 10, 2007
                Before: SLOVITER, WEIS and ROTH, Circuit Judges.

                                (Filed: August 17, 2007)
                                    ______________

                                      OPINION

WEIS, Circuit Judge.

             The issue in this case is whether defense counsel in a Pennsylvania burglary

prosecution provided ineffective assistance to appellant Phu Van Nguyen by not carrying

                                           1
out a more aggressive cross-examination of a crucial identification witness, Ms. Kieu

Lam.

              Nguyen and a few accomplices invaded the Lam residence and robbed Ms.

Lam of jewelry. A few weeks later, Ms. Lam saw a television news program depicting

Nguyen and another man because they were wanted on suspicion of murder in a

neighboring county. She notified the police that the other man pictured had participated

in the robbery of her home. She did not identify Nguyen at that time. One year later,

however, she again contacted the police and advised them that she believed that the

second man in the television report was also one of those who had burglarized her home.

She subsequently identified Nguyen from a photo line-up provided by police.

              At the burglary trial, Ms. Lam identified Nguyen as one of the culprits. On

cross-examination, defense counsel asked Ms. Lam if she had seen a picture of Nguyen a

few weeks after the burglary and had failed to recognize him at that time. When the trial

judge attempted to clarify the question for Ms. Lam, defense counsel advised the trial

judge at sidebar that further inquiry might reveal that Ms. Lam saw the picture of Nguyen

on the news program about the murder. Counsel stated his fear that pursuing Ms. Lam’s

failure to disclose that she had initially failed to identify the defendant on the television

program would open the door to the prosecution to explore the details of the program to

the detriment of the defendant. The trial judge indicated that the prosecution might be

allowed to examine Ms. Lam about the television episode if further inquiry along those

                                               2
lines took place.

              Defense counsel then returned to the examination and asked Ms. Lam if

more than a year had elapsed between the burglary and her statement to the police about

the defendant’s identity. She conceded that it had. She did not testify about the television

news program. No further questions were directed to Ms. Lam.

              On direct appeal to the Superior Court of Pennsylvania, Nguyen, with a

new lawyer, raised the issue of ineffective assistance at trial. The Superior Court

approved the sentence but remanded for a hearing on the ineffective assistance issue.

              After a hearing in the Common Pleas Court, the trial judge concluded that

the defendant had failed to show that counsel was ineffective. The Superior Court

reviewed that ruling in detail and stated, “we do not attempt to second guess such

judgment calls by trial counsel. . . . [In this case,] we cannot say that counsel’s actions

were without a reasonable basis.”

              We agree with the Superior Court that ineffectiveness of trial counsel is not

determined by hindsight. When the lawyer is confronted with the choice between an

aggressive cross-examination that could reveal damaging information about their client

and a succinct one that establishes critical information without the danger of introducing

other criminal conduct, the courts should defer to counsel’s decision. See Strickland v.

Washingotn, 466 U.S. 668, 689 (1984) (noting that “[j]udicial scrutiny of counsel’s

performance must be highly deferential” and that “a court must indulge a strong

                                               3
presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance”). The trial judge here, who was intimately familiar with the circumstances,

concluded that counsel had a reasonable basis for his actions.

              Trial technique manuals are replete with instances where that “one last

question” on cross-examination resulted in adverse results. We cannot fault the trial

lawyer in this case for declining further questioning that might well have opened the door

for the prosecution to explore the issue in detail.

              We agree with the District Court that habeas corpus relief is not appropriate

here.

              Accordingly, the judgment of the District Court will be affirmed.

                                               4


205 P.3d 890 (2009)
227 Or. App. 289
STATE
v.
DUNN.
Court of Appeals of Oregon.
March 25, 2009.
Affirmed without opinion.


17 Cal.App.2d 127 (1936)
MONTGOMERY WARD & CO. (a Corporation), Appellant,
v.
W. O. WELCH, Tax Collector, etc., et al., Respondents.
Civ. No. 1910.
California Court of Appeals. Fourth Appellate District.
October 16, 1936.
 Tanner, Odell & Taft and S.W. Odell for Appellant.
 Everett W. Mattoon, County Counsel, and Gordon Boller, Deputy County Counsel, for Respondents.
 Barnard, P. J.
 This is an action for declaratory relief, the plaintiff praying that a tax levied in the sum of $4,351.26 be canceled as having been arbitrarily made, that the true amount of the tax which should have been levied on the property in question should be fixed by the court at $1173.46 "or such other sum as may be the true and correct assessment for said year", and that upon payment into court of the amount so found the tax be adjudged to have been satisfied.
 The complaint alleges that on the first Monday in March, 1931, the plaintiff had taxable property in a certain warehouse in Los Angeles of the full cash value of $41,612.15; that in accordance with the provisions of section 3629 of the Political Code the plaintiff, on June 29, 1931, furnished to the assessor a statement of its unsecured personal property for the year 1931; that the assessor did not personally view or appraise the personal property in question but notwithstanding the filing of the said statement arbitrarily assessed the said property at a valuation of $154,300 and arbitrarily levied a tax thereon of $4,351.26; that on July 15, 1931, the assessor mailed a notice of assessment to the plaintiff at its office in Chicago; that the plaintiff did not receive said notice until after the board of supervisors sitting as a board of equalization had adjourned; that plaintiff had no opportunity to make a protest to the board of *129 equalization and to seek a modification of the assessment; that the plaintiff offered to pay to the tax collector the sum of $1173.46 and has ever since been ready and willing to pay this amount; and that on February 17, 1932, the plaintiff filed a petition with the board of supervisors asking said board to correct said assessment and to authorize the payment of $1173.46 in full for said taxes, which petition was denied.
 An answer and cross-complaint was filed by the defendants. Among other things, it was alleged that the plaintiff vacated this warehouse on or about April 30, 1931, and removed the taxable property in question to other locations in various cities and towns in the same county; that the full cash value of the property on the first Monday in March, 1931, was $154,300; that the assessor duly assessed said property to the plaintiff at the value of $154,300 and levied taxes thereon in the sum of $4,351.26; that no real property was or is assessed to or owned by the defendant as security for the payment of said taxes; that the true and lawful amount of the tax and the amount which was actually levied is $4,351.26; that the plaintiff made no application to the board of equalization for a reduction in the valuation placed upon the property by the assessor; and that the plaintiff did not take any steps provided by law for the purpose of securing a reduction in the assessment. In answering the cross-complaint the plaintiff alleged that it had removed the property from the warehouse before April 1, 1931, that there was no property in the warehouse at the time the assessment was actually made, that the assessor did not, either in person or by deputy, enter the warehouse on the first Monday in March, 1931, or between that date and April 1, 1931, when all of the property had been removed, and that the assessor had arbitrarily assumed that the warehouse contained approximately the same quantity of goods that had been therein on the first Monday of March, 1930.
 [1] Each party filed a motion for judgment on the pleadings, the plaintiff's motion being denied and the defendants' motion granted. The plaintiff has appealed from the order denying its motion for judgment on the pleadings and also from the judgment entered after granting the defendants' motion. The order denying the plaintiff's *130 motion for judgment on the pleadings is not appealable and that appeal should be dismissed. (Code Civ. Proc., sec. 963; Holton v. Noble, 83 Cal. 7 [23 P. 58].)
 [2] It is appellant's contention that the assessor did not view the property, that he had no information concerning it except the statement furnished him by the appellant, that the assessment was arbitrarily made, and that, under the circumstances, the statement of the amount and value of the goods furnished by the appellant must be taken as conclusive. In its answer to the cross-complaint the appellant admits that it removed the property before April 1, 1931, and within the time in which the assessor could legally view and assess the same. We have been pointed to no statute requiring the assessor to view property before he can assess it nor to any case holding to this effect. Ordinarily an assessment is not invalidated by the fact that the assessor did not actually inspect the property if, from other sources, he had sufficient knowledge or evidence of its existence and value. (See 61 Cor. Jur. 629, and cases there cited.) It is to be presumed that a public official does his duty. No facts are pleaded by the appellant to show that the assessor did not have sufficient information to make the assessment in this instance, and it is not even pleaded that the property in the warehouse was not the same or approximately the same as that found there when the assessment for the previous year was made.
 The complaint alleged that the full cash value of the property in question was $41,612.15, whereas it was assessed at $154,300, and the appellant relies on such cases as Birch v. County of Orange, 186 Cal. 736 [200 P. 647], in which it has been held that a grossly inequitable and palpably excessive overvaluation of property for taxation may be held constructively fraudulent. It is admitted that no application for a reduction in the assessment was made to the board of supervisors sitting as a board of equalization. If this was necessary the allegation that the appellant did not receive the notice of assessment in time to enable it to make a protest before the board of equalization is not sufficient to excuse the failure to make such an application. [3] No personal service of such a notice is required by the statute and it is the taxpayer's duty to keep himself informed as to his assessments. The main question *131 here presented is whether such an action as this may be maintained where the question of overvaluation of the property has not been first presented before the board of equalization.
 [4] With respect to the remedy available to a taxpayer there is an obvious distinction between a mere overvaluation of property in an assessment and a double, erroneous or illegal assessment. (Brenner v. Los Angeles, 160 Cal. 72 [116 P. 397]; Associated Oil Co. v. County of Orange, 4 Cal.App.2d 5 [40 PaCal.2d 887].) In the case of an erroneous or illegal assessment the board of supervisors may refund the amount paid under protest or cancel the entire assessment under the provisions of section 3804 or section 3804a of the Political Code. Those sections are available, where the property is assessed "more than once, or erroneously or illegally", in the absence of any previous application to or showing before the board of equalization (Rittersbacher v. Board of Supervisors, 220 Cal. 535 [32 PaCal.2d 135]), but they are available only where the assessment is absolutely void. (Graciosa Oil Co. v. Santa Barbara, 155 Cal. 140 [99 P. 483, 20 L.R.A. (N. S.) 211].) On the other hand, in cases of mere overvaluation of property, relief is to be obtained by making timely objection before the board of supervisors sitting as a board of equalization. (Associated Oil Co. v. County of Orange, supra; Southern Calif. Hdwe. etc. Co. v. Los Angeles County, 49 Cal.App. 712 [194 P. 62]; Globe G. & M. Co. v. Los Angeles County, 62 Cal.App. 297 [216 P. 631].)
 The appellant relies on such cases as Birch v. County of Orange, supra, where the overvaluation of certain property was held to have been so inequitable as to constitute a constructive fraud and to invalidate the assessment. However, in that case all of the material facts had been presented before the board of equalization, which had refused relief. In Wores v. Imperial Irr. Dist., 193 Cal. 609 [227 P. 181], in discussing the powers of the board of equalization and the power of the courts in reviewing the decisions of that board, the court said:
 "In the case of La Grange etc. Co. v. Carter, 142 Cal. 560, 565 [76 P. 241], this court declared the general rule applicable to the powers and duties of boards of equalization *132 to be that, 'A board of equalization of a county possesses great powers under our Constitution and statutes as to raising or lowering assessments. It seems, in the absence of fraud or malicious abuse of its powers, to be the sole judge of questions of fact and of the values of property. Such powers should be used with caution, after investigation, and with the sole purpose of doing equal and exact justice to each and every taxpayer, whether rich or poor, corporation or private citizen. To it the taxpayer can go for relief when assessed for more than his property is worth. To it the taxpayer may go when through fraud, favoritism, or ignorance of values some taxpayer is about to escape his just burden of taxation. We must presume in all cases that as a public official body it has performed its duty.'"
 "In the case of Los Angeles Gas & Electric Co. v. County of Los Angeles, 162 Cal. 164 [121 P. 384, 9 A.L.R. 1277], this court approved the foregoing rule and amplified it by the statement that 'It is not disputed that the conclusion of assessing officers as to the value of property for purposes of taxation, when honestly arrived at and when not made in pursuance of some fixed rule or general system the result of which is necessarily discriminatory and inequitable, is conclusive on the courts, however erroneous the conclusion of those officers may be. The law necessarily leaves the determination of the question of fact of value to certain officers, and when it appoints tribunals for that purpose, as in this state primarily the assessor, and, for purpose of review, the board of supervisors acting as a county board of equalization, the conclusion of those tribunals on such a question of fact constitutes a judgment that is not collaterally assailable in the courts. This is the universal rule, and it has been so held in this state. (San Jose Gas Co. v. January, 57 Cal. 614; Henne v. Los Angeles County, 129 Cal. 297 [61 P. 1081]; see, also, Gray on Limitations of Taxing Power, sec. 1460, 31 C.C.A. 537.)' The court in that case, however, proceeded to say: 'But it is likewise universally held that a taxpayer may so assail an assessment in the courts where it was "fraudulently and corruptly made with the intention of discriminating against him, and for the purpose of causing him to pay more than his share of the public *133 taxes", and where it has that effect, or where there is something equivalent to fraud in the making of the assessment, producing such effect.' In the case of Southern Pac. Co. v. San Diego County, 183 Cal. 543 [191 P. 931], this court approved both the general rule and the exception to it as enunciated in the case last above cited, but held that where it was shown to a board of equalization by evidence, without substantial contradiction or conflict, that certain property was assessed at nearly twice its real value, while other property similarly situated was assessed in pursuance of a 'systematic, wilful, and intentional scheme to so do, at not to exceed twenty-five per cent of its real value', and that the board of equalization, with full knowledge of the existence of these facts, refused to take any other action than to deny the injured taxpayer's application for relief, such a situation would present a case showing 'something equivalent to fraud' which would entitle the taxpayer to relief in the courts, regardless of the denial of his application by the board of equalization; and this entirely regardless of the motives of the members of the board. In the still more recent case of Birch v. Orange County, 186 Cal. 736 [200 P. 647], this court gave application to the same doctrine both in its general rule and in the exception holding that 'a grossly inequitable and palpably excessive overvaluation of property for taxation may be held constructively fraudulent,' and cited a long line of cases in support of this conclusion. In both of the cases last above cited, and in all of the authorities upon which the aforesaid conclusion rests, it was made to affirmatively appear that there was no basis in reason or in the facts educed before the board of equalization in each case or before the court for any differentiation between the property subjected to the alleged unjust assessment and other properties of the same class similarly situated for purposes of taxation, and that no reasonable justification could be found or offered for the inequality of the assessment."
 [5] The case before us is purely that of a claimed overvaluation of the property and is not one of a double, erroneous or illegal assessment which is entirely void. Assuming that the assessment of property at nearly four times its actual value may be so inequitable as to constitute a constructive fraud it does not follow that such an assessment *134 may be attacked at any time and in any place. It is essential to the performance of governmental functions that an orderly system of assessment and collection of taxes shall be maintained, and that the amounts of the assessments be fixed with certainty in a prescribed manner and at a definite time. Our system provides a method of reviewing the values fixed by the assessor and a tribunal to pass upon any claims of overvaluation. If that tribunal fails to properly discharge its duty the courts may intervene, but a different situation is presented where a taxpayer fails to avail himself of the machinery provided and fails to make timely application to and make proof of his contentions before the board of equalization. Under the statutes and the authorities above referred to we conclude that an application for relief to the board of equalization is a necessary prerequisite to the maintenance of such an action as this, and that the complaint filed by the appellant failed to state a cause of action.
 The purported appeal from the order denying the appellant's motion for judgment on the pleadings is dismissed, and the judgment is affirmed.
 Marks, J., and Jennings, J., concurred.


Dismiss and Opinion Filed February 13, 2014

                                           Court of Appeals
                                                           S      In The

                                    Fifth District of Texas at Dallas
                                                       No. 05-14-00166-CR
                                                       No. 05-14-00167-CR
                                                       No. 05-14-00168-CR

                                          SENRICK WILKERSON, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                           On Appeal from the Criminal District Court No. 3
                                        Dallas County, Texas
                     Trial Court Cause Nos. F08-60213-J, F10-01183-J, F10-01184-J

                                          MEMORANDUM OPINION
                                      Before Justices Bridges, O’Neill, and Brown
                                              Opinion by Justice Bridges
          Senrick Wilkerson was convicted of compelling prostitution, sexual assault of a child,

and sexual performance of a child. Sentence in each was as set at eight years’ imprisonment and

was imposed in open court on December 17, 2010. Appellant’s convictions were affirmed on

direct appeal. Wilkerson v. State, Nos. 05-11-00060/00061/00062-CR (Tex. App.––Dallas July

16, 2012, pet. ref’d).1 The Court now has before it appellant’s February 10, 2014 “request to

take leave of court and proceed with an out of time appeal.”

     1
       In trial court nos. F10-01183-J and F10-01184-J, appellant currently has pending appeals from the trial court’s order denying his motion
for post-conviction DNA testing. Those appeals are docketed as cause nos. 05-14-00007-CR and 05-14-00008-CR. Nothing in this opinion
impacts those appeals.
       “Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. To invoke the Court’s jurisdiction an appellant must file his notice of appeal within the

time period provided by the rules of appellate procedure. See id.; see also Slaton v. State, 981

S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).

       Appellant’s February 10, 2014 notice of appeal is untimely as to his December 17, 2010

sentencing date and this Court has no authority to grant appellant an out-of-time appeal. See

generally TEX. R. APP. P. 26.2(a) (time for filing notice of appeal); Slaton, 981 S.W.2d at 210;

Olivo, 918 S.W.2d at 523.

       We dismiss the appeals for want of jurisdiction.

                                                       /David L. Bridges/
                                                       DAVID L. BRIDGES
                                                       JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140166F.U05

                                                 –2–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SENRICK WILKERSON, Appellant                       On Appeal from the Criminal District Court
                                                   No. 3, Dallas County, Texas
No. 05-14-00166-CR        V.                       Trial Court Cause No. F08-60213-J.
                                                   Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee                       Justices O’Neill and Brown participating.

        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.

Judgment entered February 13, 2014

                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE

                                             –3–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SENRICK WILKERSON, Appellant                       On Appeal from the Criminal District Court
                                                   No. 3, Dallas County, Texas
No. 05-14-00167-CR        V.                       Trial Court Cause No. F10-01183-J.
                                                   Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee                       Justices O’Neill and Brown participating.

        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.

Judgment entered February 13, 2014

                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE

                                             –4–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

SENRICK WILKERSON, Appellant                       On Appeal from the Criminal District Court
                                                   No. 3, Dallas County, Texas
No. 05-14-00168-CR        V.                       Trial Court Cause No. F10-01184-J.
                                                   Opinion delivered by Justice Bridges,
THE STATE OF TEXAS, Appellee                       Justices O’Neill and Brown participating.

        Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.

Judgment entered February 13, 2014

                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE

                                             –5–