Opinion
No. 14–09–00617–CV.
2012-05-16
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee for New Century Home Loan Trust 2006–2, Appellant, v. STOCKDICK LAND COMPANY, Appellee.
Larry E. Meyer, Houston, for Appellant. Randall C. Owens, Stephen N. Riner, Jessica A. Zavadill, Houston, for Appellee.
Larry E. Meyer, Houston, for Appellant. Randall C. Owens, Stephen N. Riner, Jessica A. Zavadill, Houston, for Appellee.
Panel on Rehearing consists of Chief Justice HEDGES and Justices FROST and SEYMORE.
OPINION ON REHEARING
CHARLES W. SEYMORE, Justice.
We grant appellee's motion for rehearing, withdraw our opinion issued on February 3, 2011, and issue this majority opinion on rehearing.
Following a tax sale of residential property, appellant Deutsche Bank National Trust Company, as Indenture Trustee for New Century Home Loan Trust 2006–2 (the “Bank”), brought a declaratory-judgment action against appellee, the tax-sale purchaser Stockdick Land Company (“Stockdick”), seeking revival of an extinguished lien and contending (1) the former owners redeemed the property or, in the alternative, (2) pursuant to the doctrines of estoppel-by-deed and estoppel generally, the purchaser is precluded from denying the property was redeemed. The Bank and Stockdick filed competing motions for summary judgment. The trial court denied the Bank's motion and granted summary judgment in favor of Stockdick. For reasons outlined below, we affirm the trial court's judgment.
I. Factual and Procedural Background
The property in question is located on Yoakum Boulevard in Houston, Texas. Gordon Wittenberg and his wife Susan Wittenberg constructed a residence on the property in 2003. However, title to the property was held by Tribus, Inc., a corporation owned by the Wittenbergs. Tribus did not pay all of the property tax due for the years 2004 and 2005. During 2005, taxing authorities filed a collection suit against Tribus and mortgagee, Frost National Bank. On behalf of Tribus, Gordon Wittenberg acknowledged that the taxes were past due and stated that Tribus planned to pay under an installment plan.
On May 25, 2006, Tribus conveyed title to Susan Wittenberg.
Contemporaneously, the Wittenbergs refinanced the existing mortgage which had been held by Frost National Bank. The new indebtedness was secured by a promissory note in the principal amount of $650,000 in favor of New Century Mortgage Corporation, secured by a deed-of-trust lien filed for record on June 9, 2006. New Century later assigned this indebtedness and lien to the Bank. Subsequent to closure of the refinancing transaction, most of the taxes assessed for 2004 and 2005 were paid. However, either Tribus or the Wittenbergs owed $4,600 to Houston Independent School District, which had been assessed for 2005. The taxing authorities sought to recover the unpaid taxes by filing a tax suit in the 80th District Court (the “tax court”).
We refer to the Wittenbergs as owners because they are both named on the conveyance documents.
During February 2007, the tax court rendered a final judgment for taxes plus penalties and interest totaling $6,847.63 and ordered foreclosure and sale. The tax court determined that the market value of the property was $659,100.
Other than taxing authorities, the only parties to this judgment were Tribus and Frost National Bank. The tax sale occurred on June 5, 2007. Stockdick purchased the property for $370,000. Following receipt of the amount tendered by Stockdick, past due taxes for the years 2005 and 2006 were paid. After all taxes and fees were deducted, net proceeds from the tax sale were $335,767.52. During the first week of December 2007, Stockdick entered into a redemption agreement with the Wittenbergs. The Wittenbergs agreed to remit $462,500, consisting of $370,000 (price paid by Stockdick) in cash and a promissory note for $92,500 (amount of statutory redemption premium). The usual real estate conveyance documents were executed, including a quitclaim deed to the Wittenbergs, a promissory note, vendor's lien, and deed of trust. The quitclaim deed and the deed of trust were filed in Harris County on December 10, 2007.
The tax court was required to include market value in its judgment. SeeTex. Tax Code Ann. 33.50(a) (West 2008).
The Wittenbergs were required to pay all principal and interest on the promissory note by July 31, 2008. They paid $370,000 but wholly defaulted on the promissory note. Stockdick proceeded with non-judicial foreclosure and sale of the property. On October 15, 2008 (approximately three weeks before Stockdick's foreclosure and sale), the Bank filed the declaratory-judgment action which is the subject of this appeal in the 215th District Court (the “trial court”). The Bank pleaded that the Wittenbergs fulfilled statutory requisites to redeem the property. The Bank also pleaded that its lien was reinstated as a valid and subsisting mortgage and is senior and superior to Stockdick's deed-of-trust lien. Stockdick filed an answer. Subsequently, the Bank filed a traditional motion for summary judgment. Stockdick also filed a traditional motion for summary judgment, asserting the following grounds:
(1) The Wittenbergs did not redeem the property because they failed to remit $92,500 in premium required under section 34.21 of the Tax Code.
SeeTex. Tax Code Ann. § 34.21 (West Supp. 2011).
(2) Stockdick maintained its superior title by reserving a vendor's lien to secure payment of the promissory note.
(3) The Bank waived its claim that the Wittenbergs redeemed the property.
(4) The Bank may not prosecute claims under the Declaratory Judgments Act; rather, this action should be filed as a trespass-to-try-title.
In its response to Stockdick's motion, and with specific reference to Stockdick's contention that execution and delivery of the deed did not result in redemption, the Bank argued, inter alia, that fact issues on its affirmative defenses of estoppel-by-deed and estoppel generally preclude summary judgment.
The trial court granted Stockdick's motion, denied the Bank's motion, and rendered a take-nothing judgment against the Bank.
The Bank filed a first supplemental petition in which it pleaded the affirmative defenses of estoppel-by-deed and estoppel generally.
Following disposition of both motions for summary judgment, the trial court granted the Bank's motion to supplement its pleadings. The Bank filed a second supplement to its original petition and included the following allegations, in relevant part:
• The Bank has superior right to $335,767.52, constituting the excess proceeds after a tax sale of the property to Stockdick. Also, equity demands return of the excess proceeds to the Bank.
• The Texas Tax Code sets forth the statutory priorities for payment of excess proceeds, and the Bank is a qualified lien holder and former owner as prescribed by the statute.
• The Bank is entitled to a hearing on its petition to recover excess proceeds under the following theories of recovery: money had and received; restitution; unjust enrichment; constructive trust; and conversion.
The trial court severed these new claims, and all matters pertaining to allocation of proceeds from the tax sale are now pending in the tax court.
We confine our analysis and disposition in this case to whether the Bank's lien was revived through redemption under relevant provisions in the Tax Code or through the equitable doctrine of quasi-estoppel.
II. Issues
In its original brief, the Bank raises three principal issues: (1) the trial court erred by denying the Bank's motion for summary judgment because the Wittenbergs redeemed the property and the Bank's mortgage lien was reinstated; (2) the trial court erred by granting Stockdick's motion for summary judgment because redemption occurred after the tax sale and the Bank's mortgage lien was reinstated; and (3) there are material fact issues pertaining to whether the property was redeemed.
In its original brief, the Bank raised several sub-issues which are rendered moot by our disposition of the Bank's first two issues. On appeal, the Bank contends there are fact issues pertaining to its affirmative defense of quasi-estoppel. However, as explained below, the Bank did not sufficiently present or argue the affirmative defense of quasi-estoppel in its response to Stockdick's motionfor summary judgment. The Bank argued, inter alia, that Stockdick's execution of a quitclaim deed to the Wittenbergs and retention of sums paid to redeem the property implicate the equitable doctrines of estoppel-by-deed and estoppel generally. On appeal, the Bank does not emphasize its estoppel-by-deed
argument, and we conclude it is not applicable because the rights and duties of parties involved in delinquent tax foreclosure and redemption are uniquely controlled by relevant provisions of the Tax Code.
The defense of estoppel-by-deed is similar to the doctrine of after-acquired-title and precludes a grantor from asserting an interest in previously conveyed property. See, e.g., Duhig v. Peavy–Moore Lumber Co., 135 Tex. 503, 507–08, 144 S.W.2d 878, 880–81 (1940); Masgas v. Anderson, 310 S.W.3d 567, 571 (Tex.App.-Eastland 2010, pet. denied).
We address quasi-estoppel because our dissenting colleague heavily relies on this equitable doctrine to support her conclusion that the trial court's summary judgment in favor of Stockdick should be reversed.
A purchaser at tax sale does not possess legal title to convey upon redemption; if the owner redeems the property, it is restored to status quo ante. See UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 606–07 (Tex.App.-Corpus Christi 2005, pet. denied).
III. Standard of Review
Relative to a traditional motion for summary judgment, if the movant's evidence conclusively establishes the right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact which would defeat summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In our de novo review of a trial court's summary judgment, we consider all evidence in the light most favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
We review both the trial court's grant of Stockdick's motion for summary judgment and denial of the Bank's motion because both parties sought final summary judgment. See CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998) (per curiam). Procedurally, we first consider the merits of Stockdick's motion. See Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16, 20 (Tex.App.-Tyler 2003, no pet.). In reviewing the trial court's rulings on cross-motions, we must consider all summary-judgment evidence, determine all issues presented, and render the judgment that the trial court should have rendered. FM Props. Operating Co., 22 S.W.3d at 872. When both parties move for summary judgment, each party has the burden and neither will prevail solely because the other party failed to discharge its burden. INAC Corp. v. Underwriters at Lloyd's, 56 S.W.3d 242, 247 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
IV. Analysis
This is a case of first impression which implicitly presents the following issue:Whether execution of a promissory note as consideration for redemption fulfills the requirements of section 34.21 of the Texas Tax Code.
Our review of provisions in the Tax Code that govern foreclosure and sale of property for failure to pay taxes and procedures for redemption after a tax sale reveals the State's strong public policy of compelling timely payment of property taxes. Mortgages and liens are extinguished when a taxing authority forecloses for non-payment and sells the property. However, the purchaser at a tax sale must provide opportunity for the owner to redeem the property. Holders of mortgages and liens face the prospect that their interests will not be revived if the property is not redeemed. Statutory owners (including lien holders) may redeem property sold at tax sale to a purchaser other than a taxing entity by timely reimbursing all amounts paid by the purchaser plus a premium amounting to twenty-five percent, or in some cases, fifty percent, of the purchase price. SeeTex. Tax Code Ann. § 34.21(a) (West Supp. 2011)
; see also UMLIC VP, 176 S.W.3d at 607–08 (holding entity which had deed of trust on land sold at tax sale had right to redeem property).
See footnote 10 for explanation regarding citation to version of section 34.21 available in the 2011 statutory supplement.
A. Promissory note insufficient as consideration for redemption under section 34.21
Disposition of the core issue in this case turns on whether the Wittenbergs fulfilled the “paying” requirement in section 34.21(a).
Tex. Tax Code Ann. § 34.21(a). Therefore, we begin our analysis by focusing on the plain meaning of applicable statutory language:
There is no dispute that the Wittenbergs failed to remit the amount due under the promissory note, and redemption is not accomplished if an owner fails to remit the amount prescribed under the statute. However, the non-payment of premium issue is subsumed by our conclusion regarding the validity of a promissory note as consideration for redemption.
(a) The owner of real property sold at a tax sale to a purchaser other than a taxing unit that was used as the residence homestead of the owner ... may redeem the property on or before the second anniversary of the date on which the purchaser's deed is filed for record by paying the purchaser the amount the purchaser bid for the property ... plus a redemption premium of 25 percent of the aggregate total if the property is redeemed during the first year of the redemption period....
...
(f) The owner of real property sold at a tax sale may redeem the real property by paying the required amount as prescribed by this section to the assessor-collector for the county in which the property was sold, if the owner of the real property makes an affidavit stating:
(1) that the period in which the owner's right of redemption must be exercised has not expired; and
(2) ... that the owner and the purchaser cannot agree on the amount of redemption money due, or that the purchaser refuses to give the owner a quitclaim deed to the property.
(f–1) An assessor-collector who receives an affidavit and payment under Subsection (f) shall accept that the assertions set out in the affidavit are true and correct. The assessor-collector receiving the payment shall give the owner a signed receipt witnessed by two persons. The receipt, when recorded, is notice to all persons that the property described has been redeemed. The assessor-collector shall on demand pay the money received by the assessor-collector to the purchaser.
The redemption period for the Wittenbergs expired on March 20, 2010, the second anniversary of the date on which the purchaser's deed was filed for record. The versions of subsections (f) and (f–1) quoted here apply to redemptions that take place on or after September 1, 2009. See Act of May 21, 2009, 81st Leg., R.S., ch. 374, §§ 2, 3, 2009 Tex. Gen. Laws 913, 914. Relative to redemptions that occurred between June 5, 2007 and August 31, 2009, there was no subsection (f-1), and the text of subsection (f) was different; however, the differences in these two versions are not material to statutory construction responsive to the issue in this case. Accordingly, the current version is cited.
In its original brief, the Bank contends the Wittenbergs fulfilled all statutory requirements to redeem the property.
The Bank also contends substantial compliance with the statute is sufficient, but the parties have not cited, and our research has not revealed, any binding authority directly addressing this question. Accordingly, we presume for the sake of argument that the Wittenbergs were required to substantially comply with section 34.21.
Conversely, in its response to Stockdick's motion for summary judgment, the Bank argued there is no statutory authority for Stockdick to retain a vendor's lien and suggested section 34.21(f) specifies that the tax-sale purchaser must grant a quitclaim deed without reservations.
Stockdick contends the property was not redeemed because the Wittenbergs did not pay statutorily prescribed redemption premium. The Legislature did not define the terms “paying” or “pay.” Moreover, the parties have not cited, and we have not identified, any Texas authority addressing the textual meaning of the words “paying” or “pay” or whether execution of a promissory note in favor of the purchaser constitutes “paying” within the meaning of this statute. Accordingly, disposition of this appeal necessarily involves interpretation of the word “paying” in section 34.21(a).
In construing a statute, our objective is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we ascertain that intent from the language in the statute and should not look to extraneous matters to glean the Legislature's intent. Id. If the language is unambiguous, we adopt the interpretation supported by the plain meaning of the words. See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain language chosen by the Legislature. See id. (quoting RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985)).
The right of redemption under section 34.21(a) is also expressed in article 8, section 13 of the Texas Constitution. SeeTex. Const. art. 8, § 13. The relevant language is substantially similar; however, the Bank has not adverted to a constitutional right of redemption.
Consequently, we construe provisions based on ordinary meaning of the words. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n. 19 (Tex.2006). The infinitive “to pay” has various meanings in ordinary usage, including both to give money to another and to give to another what is due. See Webster's Third New Int'l Dictionary 1659 (1993 ed.) (stating various definitions for “to pay,” including “to ... discharge an obligation to: make due return to” and “to make any agreed disposal or transfer of (money)”).
Our construction of the word “paying” in subsection (a) of section 34.21 is informed by language in subsections (f) and (f–1). Under the latter subsections, if the owner and purchaser do not agree on the redemption amount or if the purchaser refuses to give the owner a quitclaim deed, the owner may redeem the property by “paying” the redemption amount to the assessor-collector for the county in which the property was sold. SeeTex. Tax Code Ann. § 34.21(f), (f–1). Significantly, in subsection (f), the Legislature refers to the redemption amount to be paid under subsection (a) as “the amount of redemption money due.” Id. § 34.21(f) (emphasis added). In addition, after the owner has paid the assessor-collector, the assessor-collector shall give the owner a signed receipt and “shall on demand pay the money received by the assessor-collector to the purchaser.” Id. § 34.21(f–1) (emphasis added). If the owner could “pay” the assessor-collector by signing a promissory note then the assessor-collector would not receive any money.
We acknowledge the rule that “statutes which give the right to redeem are to be regarded favorably and construed with liberality.” Buckholts v. Alsup, 56 S.W.2d 301, 305 (Tex.Civ.App.-Texarkana 1932, writ ref'd). Following this admonition, we construe section 34.21(a) liberally. However, we may not engage in liberal construction as a license to contradict the plain meaning of the statute. See State v. PR Investments, 180 S.W.3d 654, 665 (Tex.App.-Houston [14th Dist.] 2005) (en banc), aff'd, 251 S.W.3d 472 (Tex.2008).
To support its argument that the redemption amount need not be paid in cash, the Bank relies on Jensen v. Covington, 234 S.W.3d 198, 206–07 (Tex.App.-Waco 2007, pet. denied). But the court in Jensen did not address the plain meaning of the term “paying” in section 34.21 or whether a promissory note in favor of the purchaser constitutes “paying.” Instead, the Jensen court concluded that tender of the redemption amount was sufficient for compliance with section 34.21. See id. The court decided whether the tender in that case was sufficient—not whether payment pursuant to promissory note effected a redemption. See id. The Jensen case is not on point.
Stockdick bore the burden of overcoming the presumption that redemption was effective. See Gonzalez v. Razi, 338 S.W.3d 167, 171 (Tex.App.-Houston [1st Dist.] 2011, pet. filed). The undisputed summary-judgment evidence militates the legal conclusion that the Wittenbergs failed to redeem the property. The Wittenbergs wholly defaulted on the promissory note and failed to fulfill their statutory obligation to remit all sums required to redeem the property. Under our interpretation and application of the Tax Code to undisputed facts, Stockdick has fulfilled its burden. Accordingly, we hold a promissory note does not constitute “redemption money” or satisfy the requirement of “paying” sums required to be paid under section 34.21(a) of the Tax Code. The Bank's first two issues are overruled.
B. The Bank failed to raise quasi-estoppel
In its third issue, the Bank contends there are fact issues precluding the trial court's grant of summary judgment in favor of Stockdick. As previously explained, all sub-issues pertaining to whether the property was redeemed by the Wittenbergs are rendered moot by our disposition of the Bank's first two issues. We address the Bank's quasi-estoppel
arguments in order to respond to our dissenting colleague's concerns,
The law recognizes at least two independent doctrines of estoppel: equitable estoppel and quasi-estoppel. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.-Corpus Christi 1994, writ denied). Similar to equitable estoppel, quasi-estoppel requires mutuality of parties; the doctrine may not be asserted by or against a “stranger” to the transaction that gave rise to the estoppel. See Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870, 882 (2004); see also Swilley v. McCain, 374 S.W.2d 871, 875–76 (Tex.1964). The Bank argues that it had no knowledge regarding the Wittenbergs' attempt to redeem the property and further denies any suggestion that it had an opportunity to redeem the property before it filed this action for declaratory relief. Accordingly, the Bank admits it was a stranger to the tax sale, the Wittenbergs' attempt to redeem the property, and foreclosure proceedings. Consequently, even if the Bank had properly presented and argued quasi-estoppel before the trial court, we question whether it applies to the undisputed facts in this case. Our dissenting colleague cites no Texas authority supporting the proposition that purported inconsistent conduct by party A (Stockdick) toward party B (the Wittenbergs) will support the equitable remedy of quasi-estoppel advanced by party C (the Bank) when party C is admittedly a stranger to the transaction between parties A and B.
and with due consideration for the maxim that equity intervenes when the law provides no remedy. LaSalle Bank Nat. Ass'n v. White, 246 S.W.3d 616, 619 (Tex.2007) (equitable remedies apply only when there is no remedy at law).
Our dissenting colleague holds fast to the conclusion that the summary-judgment evidence raises an issue regarding whether Stockdick, through language in the quitclaim deed, “took the position in the Deed that the Wittenbergs had redeemed the Property in December 2007.” The dissent labors to identify a fact issue supporting quasi-estoppel relative to the Bank's lien by construing language in one of several conveyance documents executed between Stockdick and the Wittenbergs. After supplying dictionary definitions and case authority construing the words “pursuant to,” our colleague opines that the deed is ambiguous regarding whether Stockdick and the Wittenbergs intended a present redemption, without payment of all sums due under the contemporaneously signed promissory note or without payment of all sums required to be paid under the Tax Code. Under this construction of language in the quitclaim deed, there is no impediment for our colleague to reverse the trial court's judgment with the conclusion that there is a fact issue on whether Stockdick and the Wittenbergs intended a present redemption without payment of the amount due on the promissory note. Of course, this legal conclusion would contravene the panel's unanimous conclusion that the Wittenbergs did not redeem the property because they failed to comply with relevant provisions of the Tax Code. Ostensibly, our colleague construes the language to determine the intent of both parties to the conveyance documents. However, our colleague's analysis ends with the conclusion that “the Deed is reasonably susceptible to more than one interpretation and thus is ambiguous as to whether Stockdick took the position that the Deed effected a redemption that occurred in December 2007.” (emphasis added). The dissent fails to recognize the incongruity of finding a fact issue on whether Stockdick “took the position” that the Wittenbergs redeemed the property without paying the required redemption premium. Apparently, the dissent finds no analytical impediment in juxtaposing legal construction of conveyance documents to determine the intent of the two parties to that transaction with the separate question regarding whether Stockdick's conduct requires invocation of the equitable doctrine of quasi-estoppel. In search of a fact issue which contravenes the trial court's summary judgment, the dissent engages in mere sophistry by suggesting Stockdick would ever “take the position” that redemption occurred without payment of redemption premium. This entire dispute was germinated because of Stockdick's insistence that it is entitled to receive redemption premium before relinquishing its statutory tax title.
The Bank failed to present argument and evidence sufficient for this court to consider its affirmative defense of quasi-estoppel.
After Stockdick filed a motion for summary judgment, the Bank supplemented its petition to include the counter-affirmative defenses of estoppel-by-deed and estoppel generally. In its response to Stockdick's motion for summary judgment, the Bank did not specifically mention the word “quasi-estoppel.” The Bank's estoppel defense was stated as follows:
The dissent also suggests “a genuine fact issue exists as to whether it would be unconscionable to allow Stockdick to maintain that no redemption occurred....” However, the Bank did not mention the word “unconscionable” in Section III of its response to Stockdick's motion for summary judgment which was entitled “Estoppel by Deed; Estoppel Generally.” In Section IV, entitled “Stockdick Should Not Be Allowed a Windfall Above and Beyond the Redemption Premium,” the Bank used the word “unconscionable” without any argument in support of the affirmative defense of quasi-estoppel. The word quasi-estoppel was not mentioned in the Bank's motion for summary judgment or in its responses to Stockdick's motion. Moreover, even if the Bank had sufficiently raised quasi-estoppel when this case was pending in the trial court, Stockdick's conduct was not unconscionable as a matter of law. Under express provisions of the Tax Code, Stockdick was entitled to defend its tax title after the Wittenbergs defaulted on the promissory note. First, under the Tax Code, the Bank's lien was extinguished on the day Stockdick purchased the property at the tax sale. SeeTex. Tax Code Ann. § 33.95 (West 2008). Second, if Stockdick fulfills all statutory predicates and follows all procedures responsive to an owner's right of redemption, subject to the right of redemption, it is the legislative intent and public policy of this State that Stockdick should receive title to the property free and clear of all liens. Id. §§ 34.01(n) (West 2008), 34.21(a), (e), (f), (j). Third, as a tax-sale purchaser, Stockdick is entitled to full reimbursement of the amount it paid at the tax sale plus twenty-five percent redemption premium. See id. § 34.21(a). Fourth, the Wittenbergs defaulted on their promise to pay redemption premium; therefore, Stockdick was contractually entitled to retain $370,000 and foreclose. Fifth, there is no summary-judgment evidence that Stockdick refused or obstructed the Bank from exercise of its right (under the Tax Code) to protect its lien. Sixth, the purchaser at a tax sale is statutorily authorized to defend its tax title, subject to the right of redemption, until expiration of the two-year period from the date of the tax sale. See id. It is axiomatic that one does not engage in unconscionable conduct by lawfully defending and protecting statutory rights. Accordingly, relative to Stockdick's potential benefits and obligations under the Tax Code, it was not inconsistent or unconscionable for Stockdick to accept the statutory benefits acquired at the tax sale then defend its tax title against the Bank's claim that the property was redeemed. See id. §§ 33.95, 34.21. Relative to its relationship with the Wittenbergs, under the terms of conveyance documents, Stockdick did not engage in inconsistent or unconscionable conduct by demanding reimbursement of $370,000 and payment of $92,000 as redemption premium. Relative to the Bank, it is undisputed that Stockdick did not take any action or engage in any conduct (other than purchasing the property at a tax sale) that impaired the Bank from protecting its lien priority by redeeming the property. Relative to the Bank's interest in excess proceeds from the tax sale, we agree that Stockdick is acting inconsistently by contending the property was not redeemed while retaining possession of the amount tendered as partial payment for redemption. However, as indicated above, we do not agree that Stockdick's conduct as purchaser at a tax sale, and as a participant in the Wittenbergs' attempt to redeem the property, was unconscionable. Under the above tax code provisions, it is the public policy of Texas for a purchaser at a tax sale to retain title if the property is not timely and properly redeemed. Finally, our dissenting colleague should not be concerned about the dispute regarding lien priorities or allocation of excess proceeds from the tax sale. All of those issues were severed from this case.
Defendant Stockdick has now taken title to the property, including an equity position of $169,721, in full satisfaction of its rights against the prior owners under the accord and satisfaction agreement. The doctrine of estoppel by deed bars any attempt by Stockdick to deny its Quitclaim Deed (redemption deed) to the prior owners. Gutierrez v. Rodriguez [,] supra, 30 S.W.3d at 561 (A party cannot accept the benefits of a deed and then attack it)[.]
The doctrine of estoppel, generally, applies to Stockdick's attempt to take the benefits of its accord and satisfaction agreement (including title to the property and a $169,721 equity position), and then deny the redemption and its own Quitclaim Deed. See Carle v. Carle, supra, 234 S.W.2d at 1004 (A party cannot accept the benefits of a judgment and then attack it)[.]
When a nonmovant asserts a counter-affirmative defense, it must present argument and summary-judgment evidence to raise a fact issue for each element of this defense. See Hofstetter v. Loya Ins. Co., No. 01–10–00104–CV, 2011 WL 1631938, at *2 (Tex.App.-Houston [1st Dist.] Apr. 28, 2011, pet. denied) (mem. op.); Rabe v. Dillard's Inc., 214 S.W.3d 767, 768 (Tex.App.-Dallas 2007, no pet.).
Here, the Bank did not present or argue all of the elements of the quasi-estoppel affirmative defense in its response to Stockdick's motion. Consequently, it failed to raise any fact issues whatsoever on this defense. Thus, unlike our dissenting colleague, we conclude that the Bank failed to sufficiently present and argue quasi-estoppel in the trial court, and we may not consider arguments raised for the first time on appeal. SeeTex.R. Civ. P. 166a(c) (movant must “state the specific grounds therefor”); Kelly v. Brown, 260 S.W.3d 212, 216 (Tex.App.-Dallas 2008, pet. denied) (explaining that to preserve grounds for summary judgment, a party must raise them in the summary-judgment proceeding).
Our dissenting colleague mistakenly relies on several cases for the proposition that pleading estoppel generally is sufficient to raise the affirmative defense of quasi-estoppel in a summary-judgment proceeding. See 14–09–00617–CV (Frost, J., dissenting), at n. 9. Our colleague refers to Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 155–56 & n. 1 (Tex.2004), suggesting that the “Bank's discussion of estoppel was sufficient to raise the affirmative defense of quasi-estoppel.” However, the court was referring to sufficiency of pleadings and concluded that “these allegations raise the defense of equitable estoppel.” Id. The cases cited by the dissent may support the proposition that mere mention of the word “estoppel” in pleadings is sufficient to raise quasi-estoppel in the context of jury or bench trials. We decline to extend this rule in the context of summary-judgment proceedings. The dissent also relies on Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex.2009). However, the Supreme Court in Timpte reminds the reader that a trial court cannot grant a motion for summary judgment on grounds not presented in the motion. Id. at 310–11 (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.2002)); see alsoTex.R. Civ. P. 166a(c) (providing that issues not raised in a “written motion, answer or other response shall not be considered on appeal as grounds for reversal.” (emphasis added)). In contrast with the Bank's insufficient pleading and presentment of quasi-estoppel as an affirmative defense in this case, the Court in Timpte concluded that the motion “unambiguously set out the elements of Gish's design defect claim.” Timpte, 286 S.W.3d at 311.
The Bank's third issue is overruled.
Relative to our dissenting colleague's concerns, we note that summary judgment may not be affirmed on a ground not presented to the trial court. State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex.2010). “[T]o allow new grounds for a summary judgment to be urged on appeal ... without the trial court having the opportunity to consider and rule on such grounds[ ] would be contrary to the provision of Tex.R. Civ. P. 166–A(c) authorizing summary judgment ‘on the issues as expressly set out in the motion, or in an answer or any other response.’ ” Bickers v. State, 646 S.W.2d 668, 670 (Tex.App.-Dallas 1983, no writ). The Bank failed to expressly present its affirmative defense by stating each ground on which its motion was based. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (plurality opinion). The motion must “stand or fall on the grounds expressly presented.” Id.
In responding to Stockdick's motion for summary judgment, the nonmovant—here, the Bank—was required to provide summary-judgment evidence to raise a fact issue for each element of the counter-affirmative defense. See Hofstetter, 2011 WL 1631938, at *2;Rabe, 214 S.W.3d at 768;see also Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996) (“An affirmative defense does not seek to defend by merely denying the plaintiff's claims, but rather seeks to establish ‘an independent reason why the plaintiff should not recover.’ ” (citation omitted)). Specifically, to support its claim, the Bank was required to plead and establish a fact issue regarding both elements of quasi-estoppel: conduct that is inconsistent and unconscionable. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000); Rodriguez v. Villarreal, 314 S.W.3d 636, 643 (Tex.App.-Houston [14th Dist.] 2010 no pet.); see also Vessels v. Anschutz Corp., 823 S.W.2d 762, 765–66 (Tex.App.-Texarkana 1992, writ denied). Consequently, the trial court did not consider argument or evidence sufficient to rule on the merits of the Bank's quasi-estoppel defense.
Because we conclude the trial court properly granted summary judgment against the Bank and in favor of Stockdick, we need not consider whether the relief sought by the Bank is available under the Declaratory Judgments Act.
V. Conclusion
For all the reasons described above, we affirm the trial court's grant of summary judgment in favor of Stockdick and denial of the Bank's motion for summary judgment. FROST, J., dissenting.
KEM THOMPSON FROST, Justice, dissenting on rehearing.
A residential real property lien was extinguished by a sale of the property to satisfy a property-tax lien. After the tax sale, the former owners sought to redeem the property under section 34.21 of the Texas Tax Code, which governs redemption of real property sold at a tax sale. The holder of the extinguished lien brought a declaratory-judgment suit against the tax-sale purchaser, arguing that the former owners had redeemed the property and, in the alternative, that the purchaser was precluded under the doctrine of quasi-estoppel from denying that the former owners had redeemed the property. The prerequisites of Texas Tax Code section 34.21 were not satisfied, but the trial court erred in granting the purchaser's summary-judgment motion because of fact issues regarding quasi-estoppel. In concluding that the trial court properly granted summary judgment, the majority contradicts binding precedent regarding (1) what a nonmovant must do to raise an affirmative defense in response to a traditional summary-judgment motion and (2) the meaning of certain language in the quitclaim deed executed by the tax-sale purchaser. Rather than affirm, this court should reverse and remand.
Factual and Procedural Background
The residential real property in question is located on Yoakum Boulevard in Houston, Texas (the “Property”). Gordon Wittenberg and his wife Susan Wittenberg constructed a residence on the Property in 2003, when title to the Property was held by Tribus, Inc. Tribus did not pay all of the property tax due on the Property for 2004, and in 2005 the taxing authorities filed a collection suit against Tribus and Frost National Bank, the holder of the mortgage, seeking to collect the taxes and foreclose the tax lien. On behalf of Tribus, Gordon Wittenberg acknowledged that the taxes were past due and stated that Tribus planned to pay the delinquent taxes under a payment plan.
On May 25, 2006, Tribus conveyed to Susan Wittenberg title to the Property. At the same time, the Wittenbergs
refinancedthe existing mortgage indebtedness on the Property, which had been held by Frost National Bank. The new indebtedness took the form of a promissory note in the principal amount of $650,000 payable to New Century Mortgage Corporation, secured by a deed-of-trust lien filed for record on June 9, 2006 (the “Bank's Lien”). New Century later assigned this indebtedness and lien to plaintiff/appellant Deutsche Bank National Trust Company, as Indenture Trustee for New Century Home Loan Trust 2006–2 (the “Bank”). Shortly after the closing of the refinancing transaction, most of the property taxes on the Property for 2004 and 2005 were paid. Despite these payments, approximately $4,600 in taxes due to the Houston Independent School District for 2005 were not paid. Based on these unpaid taxes, the trial court in the tax suit (the “Tax Court”) rendered a final judgment in February 2007, for these taxes plus penalties and interest, for a total amount of $6,847.63. The Tax Court also ordered foreclosure of the tax lien on the Property and sale of the Property, which the Tax Court determined had a market value of $659,100 on the date of trial in January 2007.
Though Tribus conveyed title to the Property to Susan Wittenberg only, for various reasons, perhaps including community-property issues, both Wittenbergs are included as parties to various documents. Therefore, the Wittenbergs are referred to in this opinion as if both were owners of the Property, even though Gordon Wittenberg was not a record owner.
Other than the taxing authorities, the only parties to this judgment were Tribus and Frost National Bank.
A trial court rendering judgment in a suit for foreclosure of a tax lien on property is required to make such a finding in its judgment. SeeTex. Tax Code Ann. § 33.50 (West 2012).
The tax sale occurred on June 5, 2007, and appellee/defendant Stockdick Land Company (“Stockdick”) purchased the Property at this sale for $370,000 in cash. Out of these proceeds from the tax sale, the 2005 taxes that were the basis of the judgment were paid, and the 2006 property taxes on the Property also were paid. After these payments, $335,767.52 of the proceeds from the tax sale remained (the “Remaining Proceeds”). The Tax Court ordered these proceeds disbursed to Tribus.
In December 2007, Stockdick signed a deed (the “Deed”) stating as follows:
[Stockdick] ... for and in consideration of $462,500 consisting of cash in the amount of $370,000 and one promissory note in the principal sum of $92,500 payable to the order of [Stockdick], bearing interest at the rate therein provided, said note ... being secured by vendor's lien and superior title retained herein in favor of [Stockdick], and being also secured by Deed of Trust of even date from Grantee to Wade A. Riner, Trustee, the receipt and sufficiency of which is hereby acknowledged and confessed, does hereby sell, transfer, and deliver unto Gordon Wittenberg and wife, Susan Wittenberg whose address is [address of the Property] (hereinafter referred to as “Grantee”), all of Grantor's right, title, and interest in [the Property]. This deed is made without warranty, express or implied, and is executed pursuant to redemption of the Property by Grantee from that certain tax sale conducted on or about June 5, 2007 under Cause No. 2005–74535 styled, Harris County, et al. v. Tribus, Inc., et al., 80th Judicial District Court, Harris County, Texas.
(emphasis added). The Deed and the deed of trust mentioned therein were filed for record on December 10, 2007. The promissory note mentioned in the Deed was executed by the Wittenbergs in the original principal amount of $92,500, with an interest rate of ten percent per year (the “Note”). The Note and deed of trust were signed two days before the Deed was signed. On July 31, 2008, all principal and interest ($98,582.19) was due under the Note. The Wittenbergs did not pay the amounts due under the Note.
David Petroni of Carrington Mortgage Services, LLC sent a letter to Stockdick on September 23, 2008, stating his understanding that Stockdick had purchased the Property at a tax sale in June 2007 and had obtained a deed for the Property. Petroni stated that Carrington had an active loan on the Property and desired to regain possession of the Property. Petroni requested that Stockdick provide a redemption quote. Stockdick informed Petroni that the payoff amount was $113,777.54, based upon the past-due amount owing under the Note. Neither Carrington nor the Bank made any payment to Stockdick.
Less than a month later, on October 15, 2008, the Bank filed this declaratory-judgment suit in the trial court below. Stockdick proceeded with a non-judicial foreclosure sale of the Property on November 4, 2008. Stockdick purchased the Property at this sale for $50,000, and the trustee's deed reflecting this sale was filed for record on November 11, 2008.
In its declaratory-judgment suit, the Bank alleged that the Wittenbergs exercised their statutory right to redeem the Property and that this redemption resulted in the Deed. According to the Bank, as a result of this redemption, the Bank's Lien was reinstated as a valid and subsisting mortgage against the Property, and this lien was senior and superior to Stockdick's deed-of-trust lien (“Stockdick's Lien”). The Bank asserted that Stockdick is estopped from denying that the Deed effected a redemption of the Property. The Bank sought declaratory relief regarding the relative lien priorities of the Bank's Lien and Stockdick's Lien. Among other things, the Bank sought declarations that (1) the Wittenbergs redeemed the Property after the tax sale, thus reinstating the Bank's Lien as a valid lien on the Property, (2) the Bank's Lien is senior and superior to Stockdick's Lien, and (3) any foreclosure of Stockdick's Lien has no effect on the validity, seniority, or priority of the Bank's Lien. The Bank also requested reasonable and necessary attorney's fees under section 37.009 of the Texas Civil Practice and Remedies Code.
The Bank filed a traditional motion for summary judgment on all of its claims for declaratory relief. Stockdick filed a traditional motion for summary judgment, asserting the following grounds:
(1) The Wittenbergs did not redeem the Property because they did not comply or substantially comply with the requirement that they pay Stockdick $92,500 in cash, which was the twenty-five percent premium required by section 34.21 of the Tax Code.
Unless otherwise expressly stated, all statutory references in this opinion are to the Texas Tax Code.
(2) Stockdick maintained its superior title to the Property by reserving a vendor's lien to secure payment of the Note.
(3) The Bank waived its contention that the Wittenbergs redeemed the Property.
(4) The Bank may not assert its claims under the Declaratory Judgments Act; rather, this action is really a trespass-to-try-title action.
The trial court granted Stockdick's motion, denied the Bank's motion, and rendered judgment that the Bank take nothing.
While the trial court still had plenary power over this case, the court granted the Bank leave to supplement its petition to add new claims based in part upon the following allegations:
• The constable sold the Property to Stockdick at the tax sale for $370,000. After satisfying the judgment and costs relating to the sale, the constable returned the excess proceeds to the district clerk. New Century received no notice of the existence of these proceeds.
• Attorney Stephen Riner filed a motion on behalf of Tribus, asserting that the Remaining Proceeds belonged to Tribus as the former owner of the Property. In this motion Tribus asked the Tax Court to order the district clerk to disburse the Remaining Proceeds to Tribus. This motion was served upon Frost National Bank but not upon New Century. Riner later served as Stockdick's attorney of record in the case under review.
• On September 17, 2007, the Tax Court granted Tribus's motion and ordered the district clerk to disburse the Remaining Proceeds to Riner as attorney for Tribus.
• The Remaining Proceeds were transferred to Stockdick and used by the Wittenbergs as part of the consideration for the Deed.
• At the time of the proceedings in the Tax Court regarding disbursement of the Remaining Proceeds, New Century was a lienholder. Therefore, under the Texas Tax Code, New Century had a higher priority of right than Tribus to the Remaining Proceeds.
• New Century received no notice of the proceedings that led to the disbursement of the Remaining Proceeds.
The Bank sought recovery of the Remaining Proceeds from Stockdick. The Bank alleged Stockdick wrongfully had obtained the Remaining Proceeds from the Tax Court's registry. The Bank also sought (1) a declaration that it held a superior right to the Remaining Proceeds, (2) a money judgment against Stockdick based upon claims for money had and received, unjust enrichment, and conversion, and (3) a constructive trust. The Bank alleged that these claims had become ripe only after the trial court granted Stockdick's summary-judgment motion and denied the Bank's motion. The Bank expressly stated that, by asserting the claims in its supplemental petition, it was not waiving any of its prior claims in the case under review. Stockdick asserted that the Bank's claims regarding the Remaining Proceeds constituted an improper collateral attack on the Tax Court's final September 17, 2007 order under section 34.04, from which no appeal was taken.
The Bank asserts that, though New Century was aware of the tax suit against Tribus and Frost National Bank, New Century was operating under the premise that the unpaid taxes had been paid in full so that the tax suit would be dismissed. New Century was not a party in the tax suit, though New Century could have intervened in that suit.
Under section 34.04, entitled “Claims for Excess Proceeds,” within two years of the tax sale, a person may file a petition in the court that ordered the tax sale, setting forth a claim to the excess proceeds. SeeTex. Tax Code Ann. § 34.04(a) (West 2012). According to this statute, the petitioner is required to serve the petition only on the parties in the underlying tax suit. See id. § 34.04(b). The trial court shall order that the proceeds be paid according to the priorities set forth in section 34.04(c) to each party that establishes its claim to the proceeds. See id. § 34.04(c). This order is appealable. See id. § 34.04(e).
Acting upon Stockdick's motion, the trial court later severed the claims in the Bank's supplemental petition into a separatecase and transferred that case to the Tax Court, thus creating a final and appealable judgment in the case under review. On appeal, the Bank asserts various arguments under issues in which it assigns error regarding the trial court's grant of Stockdick's summary-judgment motion and denial of the Bank's summary-judgment motion.
Analysis
The Bank is not estopped from bringing this appeal.
Stockdick asserts that the Bank “should be estopped from bringing this appeal” because the Bank is pursuing a claim to the Remaining Proceeds. Stockdick cites no authority for this proposition. The Bank pleaded its claims regarding the Remaining Proceeds as alternative claims that it asserted in the event that the Bank's other claims failed. Parties are allowed to plead inconsistent claims in the alternative. SeeTex.R. Civ. P. 48 (stating that “[a] party may set forth two or more statements of a claim or defense alternatively or hypothetically ... [a] party may also state as many separate claims or defenses as he has regardless of consistency”); Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851–52 (Tex.1980) (stating that parties may plead inconsistent claims in the alternative); Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of Tex., Inc., 283 S.W.3d 53, 59–60 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (noting that a party may assert inconsistent claims in a single suit but that a party who successfully pursues a claim in one suit under certain circumstances may be barred from asserting an inconsistent claim in a second suit). The Bank made it clear that its claims regarding the Remaining Proceeds were asserted subject to and without waiving its declaratory-judgment claims. Under these circumstances, the Bank is not estopped from bringing this appeal based upon its claims regarding the Remaining Proceeds.
Under Tax Code section 34.21(a), an owner may not provide a promissory note to the purchaser to satisfy the requirement of “paying” the redemption premium.
The Bank asserts that the Wittenbergs redeemed the Property under section 34.21(a) in December 2007. SeeTex. Tax Code Ann. § 34.21(a) (West 2012). Stockdick asserts that there was no redemption because the Wittenbergs provided a promissory note for the redemption premium, which Stockdick asserts does not constitute “paying” the redemption premium, as required by section 34.21(a). See id. To resolve this question, the court must interpret the word “paying” as used in section 34.21(a).
.Section 34.21(a) gives a right of redemption also provided in article 8, section 13 of the Texas Constitution. SeeTex. Const. art. 8, § 13. The relevant language is substantially similar and, on appeal, the Bank has not referred to the constitutional right of redemption.
In construing a statute, this court's objective is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, the court must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, this court should adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). This court must yield to the plain sense of the words the Legislature chose, rather than engage in forced or strained construction. See id.
In pertinent part, Tax Code section 34.21, entitled “Right of Redemption,” provides as follows:
(a) The owner of real property sold at a tax sale to a purchaser other than a taxing unit that was used as the residence homestead of the owner ... may redeem the property on or before the second anniversary of the date on which the purchaser's deed is filed for record by paying the purchaser the amount the purchaser bid for the property ... plus a redemption premium of 25 percent of the aggregate total if the property is redeemed during the first year of the redemption period ...
...
(f) The owner of real property sold at a tax sale may redeem the real property by paying the required amount as prescribed by this section to the assessor-collector for the county in which the property was sold, if the owner of the real property makes an affidavit stating:
(1) that the period in which the owner's right of redemption must be exercised has not expired; and
(2) ... that the owner and the purchaser cannot agree on the amount of redemption money due, or that the purchaser refuses to give the owner a quitclaim deed to the property.
(f–1) An assessor-collector who receives an affidavit and payment under Subsection (f) shall accept that the assertions set out in the affidavit are true and correct. The assessor-collector receiving the payment shall give the owner a signed receipt witnessed by two persons. The receipt, when recorded, is notice to all persons that the property described has been redeemed. The assessor-collector shall on demand pay the money received by the assessor-collector to the purchaser.
Tex. Tax Code Ann. § 34.21 (West 2012) (emphasis added). The parties have not cited and research has not revealed any cases addressing (1) the meaning that should be given to the terms “paying” or “pay” in this statute or (2) whether providing a promissory note to the purchaser constitutes “paying” within the meaning of this statute. The statute does not contain definitions of either “paying” or “pay,” so these terms must be construed based on their ordinary meaning. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n. 19 (Tex.2006). But, the infinitive “to pay” has various meanings in ordinary usage, including both to give money to another and to give to another what is due. SeeWebster's Third New Int'l Dictionary 1659 (1993 ed.) (stating various definitions for “to pay,” including “to ... discharge an obligation to: make due return to” and “to make any agreed disposal or transfer of (money)”). The proper construction of the word “paying” in subsection (a) of section 34.21 is informed by subsections (f) and (f–1) of this statute. Under the latter subsections, if the owner and the purchaser cannot agree on the redemption amount or if the purchaser refuses to give the owner a quitclaim deed to the property, the owner may redeem the property by “paying” the redemption amount to the assessor-collector for the county in which the property was sold, if the owner submits an affidavit that complies with section 34.21(f). SeeTex. Tax Code Ann. § 34.21(f), (f–1). Significantly, in subsection (f), the Legislature refers to the redemption amount to be paid under subsection (a) as “the amount of redemption money due.” Id. § 34.21(f) (emphasis added). In addition, after the owner has paid the assessor-collector, the assessor-collector shall give the owner a signed receipt and “shall on demand pay the money received by the assessor-collector to the purchaser.” Id. § 34.21(f–1) (emphasis added). If the owner could “pay” the assessor-collector by providing a promissory note for the redemption amount, then the assessor-collector would not have received any money, yet subsection (f–1) states that “paying” the assessor-collector results in receipt of money by the assessor-collector. Under the unambiguous language of subsections (f) and (f–1), to “pay” the assessor-collector, the owner must give money to the assessor-collector.
The redemption period for the Wittenbergs expired on March 20, 2010, the second anniversary of the date on which the purchaser's deed was filed for record. The versions of subsections (f) and (f–1) quoted above apply to redemptions that take place on or after September 1, 2009. See Act of May 21, 2009, 81st Leg., R.S., ch. 374, §§ 2, 3, 2009 Tex. Gen. Laws 913, 914. For redemptions occurring between June 5, 2007 and August 31, 2009, there was no subsection (f–1) of section 34.21, and the wording of subsection (f) was different; but the differences in these two versions of the statute are not material to the statutory-construction issue in this case. Therefore, the current version is cited.
It is not reasonable to construe the word “paying” to have a different meaning in subsection (a) of section 34.21 than it has in subsections (f) and (f–1).
In some cases courts state that a proper tender of the required amount of money is sufficient to redeem property under section 34.21. See Jensen v. Covington, 234 S.W.3d 198, 206–07 (Tex.App.-Waco 2007, pet. denied). Though a proper tender likely would be considered paying the money, this court does not need to address this subject because there is no issue as to whether the Wittenbergs made a proper tender.
It is reasonable to expect that an owner whose real property is sold at a tax sale is experiencing financial difficulties. Moreover, though some purchasers at tax sales may be favorably disposed to a redemption under section 34.21 by the owner, other purchasers may not want the property to be redeemed and may insist that all the requirements of the statute be satisfied. In the latter situation, it would not be reasonable to allow an owner to redeem the property based on a mere promise to pay, especially when the purchaser bought the property by paying cash at a tax sale.
As the Bank notes, the Supreme Court of Texas has stated that “statutes which give the right to redeem are to be regarded favorably and construed with liberality.” Buckholts v. Alsup, 56 S.W.2d 301, 305 (Tex.Civ.App.-Texarkana 1932, writ ref'd). Under this rule, section 34.21(a) must be construed liberally. See id. But this doctrine of liberal construction cannot be used as a license to contradict the plain meaning of the statute. See State v. PR Invs., 180 S.W.3d 654, 665 (Tex.App.-Houston [14th Dist.] 2005) (en banc), aff'd, 251 S.W.3d 472 (Tex.2008). No amount of liberal construction can transform the meaning of “money” to “promissory note” or “pay” to “promise to pay.” Such an interpretation is neither fair nor reasonable, nor in accordance with the purposes of the statute.
The Bank also asserts that the Wittenbergs were not obligated to strictly comply with the requirements of section 34.21 and that substantial compliance was sufficient. Though other Texas intermediate courts of appeals have held to this effect, the parties have not cited and research has not revealed any case from the Supreme Court of Texas or this court addressing this issue. It is presumed for the sake of argument that strict compliance was not required and that the Wittenbergs were required only to substantially comply with section 34.21. But, even operating under this presumption, providing a promissory note as “payment” of the redemption premium does not constitute substantialcompliance with section 34.21. See Burd v. Armistead, 982 S.W.2d 31, 35 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (holding that tender of amount that was more than sixty percent of the redemption amount under section 34.21 did not constitute substantial compliance). That is simply no compliance.
The Bank also relies on the opinion of the Tenth Court of Appeals in Jensen v. Covington. See234 S.W.3d 198, 206–07 (Tex.App.-Waco 2007, pet. denied). But the Jensen court did not address the meaning that should be given to the term “paying” in section 34.21 or whether providing a promissory note to the purchaser constitutes “paying” within the meaning of this statute. See id. Instead, the Jensen court concluded that tender of the redemption amount would be sufficient to comply with section 34.21 and then examined whether the tender in that case was a sufficient tender. See id. The Jensen case is not on point.
For the reasons stated above, to the extent the ordinary meaning of “paying” would allow an owner to redeem property under section 34.21(a) by giving a promissory note to the purchaser for all or part of the redemption amount, this construction is not reasonable in this context. Under the unambiguous language of the statute, an owner may not provide a promissory note to the purchaser to satisfy the requirement of “paying” the redemption amount under section 34.21(a). Therefore, the Wittenbergs did not satisfy the requirements of section 34.21(a). But this conclusion does not end the analysis because, as discussed in the following section, the Bank asserts that the doctrine of quasi-estoppel precludes Stockdick from denying that the Deed effected a redemption of the Property. Under this doctrine, Stockdick may be estopped from asserting under section 34.21(a) that no redemption occurred in December 2007. See, e.g., Forney 921 Lot Development Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 266–70 (Tex.App.-Dallas 2011, pet. filed) (holding that quasi-estoppel precluded contracting party from exercising its statutory right to terminate a contract under Water Code section 49.452(f)); Brooks v. Brooks, 257 S.W.3d 418, 423–24 (Tex.App.-Fort Worth 2008, pet. denied) (holding that quasi-estoppel precluded ex-husband from asserting his rights under settlement agreement and under Family Code section 6.602).
The trial court erred by granting summary judgment based upon Stockdick's first and second summary-judgment grounds.
In its first summary-judgment ground, Stockdick asserted that the Wittenbergs did not redeem the Property because they did not comply or substantially comply with the requirement that they pay Stockdick $92,500 in cash, which was the twenty-five percent premium required by section 34.21. SeeTex. Tax Code Ann. § 34.21(a). In its second summary-judgment ground Stockdick asserted that it maintained superior title to the Property by reserving a vendor's lien to secure payment of the Note. In response, the Bank asserted that the doctrine of quasi-estoppel precluded Stockdick from denying that the Deed effected a redemption of the Property.
The Bank sufficiently raised the defense of quasi-estoppel. See Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex.App.-Houston [14th Dist.] 1991, no writ) (holding that a pleading of estoppel is sufficient to raise quasi-estoppel); Eckland Consultants, Inc. v. Ryder, Stilwell, Inc., 176 S.W.3d 80, 87, n. 5 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (same as Steubner Realty 19 ). Though in its response to Stockdick's summary-judgment motion the Bank did not specifically use the term “quasi-estoppel,” the substance of the Bank's discussion of estoppel was sufficient to raise the affirmative defense of quasi-estoppel. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 155–56 & n. 1 (Tex.2004); Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex.App.-Houston [14th Dist.] 1997, pet. denied);Steubner Realty 19, Ltd., 817 S.W.2d at 164;Allen v. City of Baytown, No. 01–09–00914–CV, 2011 WL 3820963, at *7 (Tex.App.-Houston [1st Dist.] Aug. 25, 2011, no pet.); Coleman v. Revak, No. 01–07–00438–CV, 2008 WL 2466276, at *2 (Tex.App.-Houston [1st Dist.] June 19, 2008, no pet.); Eckland Consultants, Inc., 176 S.W.3d at 87, n. 5.
The doctrine of quasi-estoppel precludes a person from asserting, to another's disadvantage, a right inconsistent with a position previously taken. See Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex.App.-Houston [14th Dist.] 1991, no writ). This doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which it acquiesced, or from which it accepted a benefit. See Curry v. Pickett, No. 14–09–00188–CV, 2010 WL 3353952, at *4 (Tex.App.-Houston [14th Dist.] Aug. 26, 2010, no pet.) (mem. op.); Steubner Realty 19, Ltd., 817 S.W.2d at 164. Thus, under principles of quasi-estoppel, a person may not accept the benefits of a transaction or statute and then take a subsequent inconsistent position to avoid corresponding obligations or effects. See Cambridge Prod., Inc. v. Geodyne Nominee Corp., 292 S.W.3d 725, 732 (Tex.App.-Amarillo 2009, pet. denied); Brooks, 257 S.W.3d at 423–24;Mulvey v. Mobil Producing Texas and New Mexico, Inc., 147 S.W.3d 594, 607–08 (Tex.App.-Corpus Christi 2004, pet. denied). In its appellate brief, Stockdick states that parties can agree to modify their statutory rights by insisting on some but not all of these rights. Stockdick indicates that it made such an agreement in December 2007, but that the Wittenbergs did not comply with the terms of that agreement and therefore failed to satisfy the requirements of section 34.21, as modified by the parties' agreement.
Stockdick concedes that the December 2007 transaction between the Wittenbergs and Stockdick constituted an agreement by Stockdick as to the manner by which the Wittenbergs could redeem the Property, and Stockdick cites the documents from this transaction, including the Deed, as evidence of this agreement. This concession raises the issue of the terms to which Stockdick agreed in December 2007. In addition, the Bank argues that the doctrine of quasi-estoppel precludes Stockdick from asserting that the Deed did not effect a redemption. This raises the issue of whether Stockdick took the position in the Deed that the Wittenbergs had redeemed the Property in December 2007. Stockdick asserts that it did not take the position in the Deed that the Deed effected a redemption; rather, Stockdick asserts that it agreed the Wittenbergs could redeem the Property by paying $370,000 in cash and then paying on or before July 31, 2008, the amounts due under the Note.
The Deed is subject to the general rules of contract construction. See Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998); Brown v. Havard, 593 S.W.2d 939, 941 (Tex.1980); Marzo Club, LLC v. Columbia Lakes Homeowners Ass'n, 325 S.W.3d 791, 798 (Tex.App.-Houston [14th Dist.] 2010, no pet.). In construing the Deed, this court's primary objective is to ascertain and give effect to the intentions of the parties as expressed in the Deed. See Kelley–Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To ascertain the parties' true intentions, this court must examine the entire Deed in an effort to harmonize and give effect to all of its provisions so that none will be rendered meaningless. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex.1999). Whether the Deed is ambiguous is a question of law for the court. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). The Deed is ambiguous if its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. See id.
Section 34.21 indicates that after the owner of real property sold at a tax sale redeems the property from the purchaser under section 34.21(a), the purchaser should give the owner a quitclaim deed. SeeTex. Tax Code Ann. § 34.21(f). The undisputed summary-judgment evidence shows that Susan Wittenberg held title to the Property when it was sold at the tax sale and that Stockdick purchased the Property at the tax sale for $370,000.
In the Deed, Stockdick states that it conveyed to the Wittenbergs all of Stockdick's right, title, and interest in the Property, without warranty. Therefore, the Deed was a quitclaim deed, the type of deed used to effect a redemption of real property under section 34.21(a). See id.; Geodyne Energy Income Prod. P'ship I–E v. Newton Corp., 161 S.W.3d 482, 486–87 (Tex.2005) (concluding that document was a quitclaim deed because in that document a partnership stated that it conveyed all of its right, title, and interest in certain property, without warranty). As stated in the Deed, the consideration for the Deed was $370,000 in cash and the Note.
Stockdick concedes and the record reflects that Tribus conveyed title to the Property to Susan Wittenberg by a deed filed for record in June 2006. The summary-judgment evidence does not reflect that title to the Property was conveyed back to Tribus before the tax sale on June 5, 2007. Nonetheless, Stockdick asserts in its appellate brief that Tribus owned the Property at the time of the tax sale on June 5, 2007. That Tribus owned the Property when the tax collection suit was filed and that Tribus was liable for payment of the taxes did not prevent Tribus from conveying title to the Wittenbergs before the tax sale. SeeTex. Tax Code Ann. § 32.07 (West 2012) (stating that, with exceptions that do not apply to the case under review, property taxes are the personal obligation of the person (including an entity) who owns the property on January 1 of the year for which the tax is imposed and that such an owner is not relieved of this personal obligation because it no longer owns the property).
The Deed, which was executed by Stockdick and filed for record in the Harris County Real Property Records, expressly recites that it “is executed pursuant to redemption of the Property by [the Wittenbergs] from [the tax sale in question].” Under precedent from the Supreme Court of Texas “pursuant to” redemption of the Property means “in carrying out” redemption of the Property. See Syntax, Inc. v. Hall, 899 S.W.2d 189, 191–92 (Tex.1995); see also Bryan A. Garner, A Dictionary of Modern Legal Usage 454 (1987 ed.) (defining “pursuant to” as “in carrying out”). Therefore, by stating in the Deed that the Deed was executed pursuant to redemption of the Property by the Wittenbergs from the tax sale in question, Stockdick stated in the Deed that the Deed was executed in carrying out a redemption of the Property by the Wittenbergs. See Syntax, Inc., 899 S.W.2d at 191–92; Garner, supra, at 454. In addition, if the redemption were not to occur until the Note was paid in full, then one would expect that a quitclaim deed would not be executed until after the Note was paid. SeeTex. Tax Code Ann. § 34.21(f). The fact that Stockdick executed a quitclaim deed in December 2007 suggests that the redemption was occurring then. In addition, the principal amount of the Note was equal to the redemption premium. But, if the parties intended redemption to occur in the future, as the majority concludes, then the Wittenbergs would be paying more than the statutory redemption amount.
For example, on July 31, 2008, $98,582.19 was due under the Note, which is more than six thousand dollars in excess of the redemption premium of $92,500.
The majority suggests that Stockdick has complied with all applicable provisions of the Tax Code. See ante at pp. 316–17, n. 15. But Stockdick signed the Deed, which reasonably could be interpreted as effecting a redemption in exchange for cash and a promissory note, rather than for cash only, as contemplated by section 34.21. In addition, even under Stockdick's interpretation of its agreement with the Wittenbergs as to how they could redeem the Property, the Wittenbergs were required to pay more than the amount specified in the Tax Code ($462,500) to redeem the Property. SeeTex. Tax Code Ann. § 34.21(a).
The redemption premium was twenty-five percent until March 20, 2009, the first anniversary of the date on which the purchaser's deed was filed for record. SeeTex. Tax Code Ann. § 34.21(a).
On the other hand, in the Deed, Stockdick states that the Note was “secured by vendor's lien and superior title retained herein in favor of [Stockdick]” (hereinafter, “Vendor's Lien Language”). The Vendor's Lien Language in the Deed indicates that, as between Stockdick and the Wittenbergs, Stockdick retained superior title to the Property, giving Stockdick the option to treat the Deed as an executory contract and to choose to rescind this contract. See Minter v. Burnett, 90 Tex. 245, 38 S.W. 350, 353 (1896) (stating that reservation to grantor of superior title is only for purpose of enforcing payment of purchase money and has no application as between grantee and third parties); Lusk v. Mintz, 625 S.W.2d 774, 775 (Tex.App.-Houston [14th Dist.] 1981, no writ) (discussing grantor's right to rescind based on vendor's lien). Stockdick also had the option to seek judicial foreclosure of the vendor's lien or to pursue nonjudicial foreclosure under the deed of trust.
Stockdick chose to pursue foreclosure under the deed of trust and did not seek rescission based on the vendor's lien. Nonetheless, the presence of language reserving a vendor's lien and superior title, with the accompanying right to rescind the Deed, conflicts with the language indicating that the Deed is effecting a redemption of the tax sale. Such a redemption would restore title to the Property to what it was before the tax sale—the Wittenbergs holding title subject to the Bank's Lien—except that the tax liens would be discharged. See Assocs. Home Equity Servs. Co. v. Hunt, 151 S.W.3d 559, 561–62 (Tex.App.-Beaumont 2004, no pet.). One reasonably could construe the Vendor's Lien Language as reflecting an intent to override the Deed's language stating that the Deed was executed in carrying out a redemption. Under this construction, no redemption could have occurred in December 2007.
But it is also reasonable to construe the conflicting language as reflecting an intent to effect a redemption of the Property in December 2007, subject to Stockdick's right to rescind the redemption if the Wittenbergs defaulted under the Note, as opposed to foreclosing upon Stockdick's vendor's lien or its deed-of-trust lien. Under a third reasonable construction of the Deed's language, the conflicting parts could be construed as reflecting an intent to negate the rescission remedy that ordinarily goes along with a vendor's lien. Under this construction, the parties intended to effect a redemption in December 2007, and to secure payment of the Note with the vendor's lien and the deed-of-trust lien, but not to give Stockdick a right to rescind the December 2007 redemption.
This analysis is relevant to the question of whether the trial court erred in granting summary judgment based upon a genuine fact issue regarding quasi-estoppel. The Bank was not required to plead rescission.
The inescapable conclusion is that the Deed is reasonably susceptible to more than one interpretation and thus is ambiguous
as to whether Stockdick took the position that the Deed effected a redemption that occurred in December 2007.
Even if the Bank has not asserted or pleaded that the Deed is ambiguous, this court still may conclude that the Deed is ambiguous. See Watkins v. The Krist Law Firm, P.C., No. 14–02–00291–CV, 2003 WL 21786173, at *3–5 (Tex.App.-Houston [14th Dist.] Aug. 5, 2003, pet. dism'd) (mem. op.) (holding that contract was ambiguous even though the parties agreed that the contract was unambiguous); City of Bunker Hill Vill. v. Mem'l Vills. Water Auth., 809 S.W.2d 309, 310–11 (Tex.App.-Houston [14th Dist.] 1991, no writ) (holding that court was not bound by parties' agreement that contracts were unambiguous and holding that contracts were ambiguous).
See Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996); Coker v. Coker, 650 S.W.2d 391, 393–94 (Tex.1983); A.W. Wright & Assocs., P.C. v. Glover, Anderson, Chandler & Uzick, L.L.P., 993 S.W.2d 466, 470 (Tex.App.-Houston [14th Dist.] 1999, pet. denied);Gibson v. Bentley, 605 S.W.2d 337, 338–39 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.). Considering all the evidence in the light most favorable to the Bank, crediting evidence favorable to the Bank if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not, reasonable and fair-minded jurors could differ in their conclusions as to whether Stockdick took the position in the Deed that the Deed effected a redemption of the Property in December 2007.
On rehearing, Stockdick asserts that finding an ambiguity in this regard “casts a cloud on every real estate vendor's lien transaction in the state.” But the parties have not cited and research has not revealed any other Texas case involving a quitclaim deed in which the grantor reserved a vendor's lien and also stated that the deed was executed pursuant to redemption of the property from a tax sale. The case under review does not involve a deed outside of this redemption context, in which the grantor is simply conveying real property with a warranty and reserving a vendor's lien. Therefore, an ambiguity finding in this case would not have the widespread application and ramifications that Stockdick envisions.
See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); Steubner Realty 19, Ltd., 817 S.W.2d at 164. After the Wittenbergs failed to pay the Note, Stockdick asserted that no redemption had occurred in December 2007, and that Stockdick is entitled to keep the $370,000. Under the applicable standard of review, if Stockdick previously had taken an inconsistent position in this regard, a genuine fact issue exists as to whether it would be unconscionable to allow Stockdick to maintain that no redemption occurred in December 2007, given that Stockdick previously had acquiesced in or accepted a $370,000 benefit from an inconsistent position.
The Bank asserts it had no knowledge or notice of the proceedings in the tax court that “resulted in Stockdick's obtaining the [Remaining Proceeds] while ignoring [the Bank's] statutory priority to the [Remaining Proceeds].” Nonetheless, the Bank does not argue that it lacked an opportunity to redeem the Property. Rather, the Bank argues that it is entitled to rely upon the Deed as evidence that the Wittenbergs redeemed the Property in December 2007, thereby obviating the need for the Bank to redeem the Property. Under the Bank's interpretation of the Deed, there was no need for the Bank to redeem the Property after December 10, 2007, when the Wittenbergs redeemed the Property, thereby reinstating the Bank's Lien. The majority indicates that any prior inconsistent position by Stockdick that the Deed effected a redemption in December 2007, was a position taken only vis—vis the Wittenbergs. See ante at pp. 315–16, n. 13. But the alleged position was taken in the Deed, which was filed for record on December 10, 2007, in the Harris County Real Property Records. Therefore, the alleged inconsistent position was not taken only as to the Wittenbergs but as to the public at large, including the Bank.
See Steubner Realty 19, Ltd., 817 S.W.2d at 164. Therefore, a genuine fact issue exists as to whether Stockdick is precluded under the doctrine of quasi-estoppel from denying that in December 2007, the Wittenbergs redeemed the Property through the Deed.
The majority concludes, in the alternative, that as a matter of law Stockdick has not engaged in unconscionable conduct because Stockdick has been asserting its statutory or contractual rights. See ante at pp. 316–17, n. 15. But, Texas courts have held that a person may be estopped under the doctrine of quasi-estoppel from asserting the person's statutory or contractual rights. See Forney 921 Lot Development Partners I, L.P., 349 S.W.3d at 266–70 (holding quasi-estoppel precluded contracting party from exercising its statutory right to terminate a contract); Cambridge Prod., Inc., 292 S.W.3d at 732 (holding quasi-estoppel precluded contracting party from exercising its contractual rights); Brooks, 257 S.W.3d at 423–24 (holding that quasi-estoppel precluded ex-husband from asserting his rights under settlement agreement and under Family Code section 6.602); Mulvey, 147 S.W.3d at 607–08 (holding quasi-estoppel precluded party from asserting its preferential right to purchase under a contract); Eckland Consultants, Inc., 176 S.W.3d at 87–88 (holding quasi-estoppel precluded contracting party from asserting its rights under a provision of the contract).
See id. The trial court erred to the extent it granted Stockdick's motion for summary judgment based upon the first two grounds.
The majority claims that the Bank was a “stranger” to the tax sale and the Wittenbergs' efforts to redeem the Property. As the holder of the first lien that was foreclosed in the tax sale and that would be revived in any redemption of the Property, the Bank was hardly a stranger as the majority suggests. See ante at pp. 315–16, n. 13. In addition, the majority cites no Texas case requiring mutuality of the parties before a party can assert quasi-estoppel. See id. The main case cited by the majority applies North Carolina law. The other case does not apply quasi-estoppel; instead, it applies an old line of Texas cases under which a party is estopped in a subsequent judicial proceeding from taking a position contrary to a position he took in a former judicial proceeding, where the latter position is to the prejudice of the adverse party and the parties and the questions are the same. See Swilley v. McCain, 374 S.W.2d 871, 875–76 (Tex.1964) (citing Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269, 275–76 (1929) and similar cases). When listing the elements of quasi-estoppel, both the Supreme Court of Texas and this court have listed elements significantly different from the elements listed in Swilley and have not imposed any mutuality requirement. Compare Swilley, 374 S.W.2d at 875–76,with Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex.2000), and Steubner Realty 19, Ltd., 817 S.W.2d at 164.
The majority contradicts binding precedent regarding what a nonmovant must do to raise an affirmative defense in response to a traditional summary-judgment motion.
In its holding regarding quasi-estoppel, the majority does not reach the merits of this affirmative defense. See ante at pp. 325–29. Instead, the majority finds procedural default, concluding that the Bank failed to sufficiently raise the defense of quasi-estoppel in its summary-judgment response. See id. The majority determines that in this response, the Bank failed to present sufficient argument to raise quasi-estoppel in response to Stockdick's summary-judgment motion. See id. at pp. 326–27. Specifically, the majority concludes that the Bank failed to raise any fact issue regarding this defense because “the Bank did not present or argue all of the elements of the quasi-estoppel affirmative defense in its response to Stockdick's motion.” Ante at p. 318. In this strained analysis, the majority contradicts binding precedent under which the Bank's summary-judgment response is sufficient to expressly raise the defense of quasi-estoppel. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.2009) (holding that the requirement that summary-judgment grounds be expressly and specifically stated is analogous to the specificity required of a party's pleadings and is intended to provide the opposing party with adequate information regarding the summary-judgment issues); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 155–56 & n. 1 (Tex.2004) (concluding that party raised the defense of equitable estoppel in its pleadings even though it did not expressly state all of the elements of equitable estoppel); Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772–73 (Tex.1978) (concluding that requirement of Texas Rule of Civil Procedure 166a(c) that parties expressly state summary-judgment grounds parallels the requirements applicable to pleadings under Texas Rules of Civil Procedure 45(b) and 47(a)), overruled on other grounds by, City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 200 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (same as Timpte Indus., Inc.);Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex.App.-Houston [14th Dist.] 1997, pet. denied) (holding that summary-judgment grounds may be stated concisely, without detail and without argument); Steubner Realty 19, Ltd., 817 S.W.2d at 164 (holding that express assertion of estoppel is sufficient to raise the affirmative defense of quasi-estoppel). Today, the majority increases the burden that a nonmovant must satisfy to raise an affirmative defense in a summary-judgment response. Under the majority's analysis, the nonmovant must provide argument regarding the defense and also must expressly state each essential element of the defense. See ante at pp. 325–29. Under applicable law, these extra steps are not required to expressly raise a defense in a summary-judgment response. See Timpte Indus., Inc., 286 S.W.3d at 311;Joe, 145 S.W.3d at 155–56 & n. 1;Westchester Fire Ins. Co., 576 S.W.2d at 772–73;Dworschak, 352 S.W.3d at 200;Coastal Cement Sand, Inc., 956 S.W.2d at 565;Steubner Realty 19, Ltd., 817 S.W.2d at 164. This court should not create new requirements not imposed by the Supreme Court of Texas.
As with the rules of pleading, the intent of the requirement that a movant expressly state the summary-judgment grounds or that the nonmovant expressly state affirmative defenses is to provide the opposing party with fair notice of the issues. See Timpte Indus., Inc., 286 S.W.3d at 311;Westchester Fire Ins. Co., 576 S.W.2d at 772–73;Dworschak, 352 S.W.3d at 200. But, argument or analysis of the evidence is not required; instead, a concise identification of a liability theory or affirmative defense is sufficient to raise that theory or defense.
See Joe, 145 S.W.3d at 155–56 & n. 1;Coastal Cement Sand, Inc., 956 S.W.2d at 565;Steubner Realty 19, Ltd., 817 S.W.2d at 164; Allen v. City of Baytown, No. 01–09–00914–CV, 2011 WL 3820963, at *7 (Tex.App.-Houston [1st Dist.] Aug. 25, 2011, no pet.) (holding that summary-judgment ground may be raised in a footnote that concisely states the ground without detail or argument) (mem. op.); Coleman v. Revak, No. 01–07–00438–CV, 2008 WL 2466276, at *2 (Tex.App.-Houston [1st Dist.] June 19, 2008, no pet.) (holding that summary-judgment ground may be raised by merely identifying the claim or defense and that argument or discussion of the evidence is not required to raise defense) (mem. op.). The Bank met this standard.
The majority relies upon the plurality opinion in McConnell v. Southside Independent School District. See ante at pp. 318–19, n. 17. In this opinion, the plurality states that summary-judgment grounds may be stated concisely, without detail or argument. See McConnell v. Southside Independent School District, 858 S.W.2d 337, 340 (Tex.1993) (plurality op.).
The Bank sufficiently raised the affirmative defense of quasi-estoppel in its summary-judgment response.
In its petition the Bank invoked estoppel against “Stockdick's attempts to disclaim its own redemption deed,” sufficiently pleading quasi-estoppel. See Steubner Realty 19, Ltd., 817 S.W.2d at 164 (holding that a pleading of estoppel is sufficient to raise the defense of quasi-estoppel); Eckland Consultants, Inc. v. Ryder, Stilwell, Inc., 176 S.W.3d 80, 87, n. 5 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (same as Steubner Realty 19 ). Then, in its summary-judgment response, the Bank stated as follows:
• A quitclaim deed is the statutory method of conveyance after a redemption.
• The Deed documented an accord and satisfaction between Stockdick and the Wittenbergs.
• Having taken title under the accord and satisfaction agreement, Stockdick is now estopped to assert that it did not enter into an accord and satisfaction of its claim for the redemption consideration.
• Stockdick cannot take the benefit of its accord and satisfaction agreement and then disclaim that agreement.
• The doctrine of estoppel applies generally to Stockdick's attempt to take the benefits of its accord and satisfaction agreement and then deny the redemption and the Deed.
In the paragraph following this statement in the Bank's response, the Bank asserted that, by demanding cancellation of the Bank's $650,000 deed-of-trust lien against the Property, Stockdick was seeking “an unconscionable additional windfall.” The Bank did not expressly link this assertion with its defense that Stockdick was estopped from denying that the Deed effected a redemption; but, the Bank stated that it would be unconscionable to allow Stockdick to succeed in its position that no redemption occurred.
The Bank sufficiently raised the affirmative defense of quasi-estoppel in its summary-judgment response.
See Joe, 145 S.W.3d at 155–56 & n. 1;Coastal Cement Sand, Inc., 956 S.W.2d at 565;Steubner Realty 19, Ltd., 817 S.W.2d at 164;Allen v. City of Baytown, 2011 WL 3820963, at *7;Coleman v. Revak, 2008 WL 2466276, at *2;Smith v. Lagerstam, 2007 WL 2066298, at *2–3 (Tex.App.-Austin Jul.19, 2007, no pet.) (mem. op.); Eckland Consultants, Inc., 176 S.W.3d at 87, n. 5;Conquistador Petroleum, Inc. v. Chatham, 899 S.W.2d 439, 441–42 (Tex.App.-Eastland 1995, writ denied); Lochabay v. Southwestern Bell Media, Inc., 828 S.W.2d 167, 170 & n. 2 (Tex.App.-Austin 1992, no writ). The court errs in holding the Bank failed to do so.
The majority distinguishes the summary-judgment rule from the rules for pleading, concluding that cases like Steubner Realty and Eckland Consultants have no application. See ante at p. 318, n. 16. But the Supreme Court of Texas and this court have equated the standard for determining whether a summary-judgment ground or defense has been raised with the standard for determining whether a claim or defense has been raised in the pleadings. See Timpte Indus., Inc., 286 S.W.3d at 311;Westchester Fire Ins. Co., 576 S.W.2d at 772–73;Dworschak, 352 S.W.3d at 200.
The majority's construction of the Deed conflicts with binding precedent from the Supreme Court of Texas.
The majority concludes that as a matter of law Stockdick has never taken the position that the Wittenbergs redeemed the Property in December 2007. See ante at p. 316, n. 14. The Deed signed by Stockdick contains the statement that the Deed “is executed pursuant to redemption of the Property by Grantee from that certain tax sale conducted on or about June 5, 2007 under Cause No. 2005–74535.” Nonetheless, the majority concludes that the only reasonable interpretation of the Deed, deed of trust, and the Note is that Stockdick never took the position that the Deed effected a redemption in December 2007. See id. In doing so, the majority contradicts binding precedent from the Supreme Court of Texas under which “pursuant to” means “in carrying out.” See Syntax, Inc., 899 S.W.2d at 191–92. Thus, by stating in the Deed that the Deed was executed pursuant to the Wittenbergs' redemption of the Property, Stockdick took the position that the Deed was executed in carrying out a redemption of the Property by the Wittenbergs. See id. By concluding that as a matter of law Stockdick never took the position that the Wittenbergs redeemed the Property in December 2007, the majority goes against this precedent.
The trial court erred in granting summary judgment on the ground that the Bank waived its right to assert that a redemption occurred.
In its third summary-judgment ground, Stockdick asserted that as a matter of law the Bank waived its contention that the Wittenbergs redeemed the Property. Stockdick relies on a September 2008 letter from David Petroni of Carrington Mortgage Services, LLC. In the letter, Petroni states that Carrington has an active loan on the Property and wants to regain possession of the Property. Petroni asks for a redemption quote. The letter indicates that Petroni believed in September 2008 that the Property had not been redeemed. But, there is no summary-judgment evidence that Carrington or Petroni were agents of the Bank. Even if they were the Bank's agents, there is no evidence that Petroni was aware of the Deed, and the belief of one of the Bank's agents that no redemption had occurred would not operate to waive as a matter of law the Bank's right to assert that a redemption had occurred or that Stockdick was estopped from denying that a redemption had occurred.
Stockdick also asserts that the Bank made the conscious decision not to redeem the Property, not to participate in the foreclosure sale on November 4, 2008, and not to seek an injunction of this sale.
Presuming for the sake of argument that the Bank made these conscious decisions, the Bank would not thereby waive its right to assert that a redemption had occurred or that Stockdick was estopped from denying that a redemption had occurred.
Notably, Stockdick informed Petroni that the payoff amount was $113,777.54, an amount more than $21,000 greater than the redemption premium for the Property.
The only authority that Stockdick cites to support its argument is Rotge v. Murphy, a case that did not involve either a deed like the one in the case under review or issues of estoppel or whether a redemption had occurred. See198 S.W.2d 932, 935–36 (Tex.Civ.App.-San Antonio 1946, writ ref'd n.r.e.). In Rotge, the former owner did not make any attempt to redeem the property before the end of the redemption period; rather, she filed suit alleging that the tax sale was void. Id. She then argued that, if she were unsuccessful in that suit, she should be allowed to redeem the property even though the statutory deadline had passed. Id. The Rotge court did not hold that the owner had waived her right to redeem by filing suit; instead, the court held that it was too late for her to redeem the property. Id. The summary-judgment evidence does not prove as a matter of law that the Bank intentionally relinquished its right to pursue the claims it is asserting in this case. The trial court erred to the extent it granted Stockdick's summary-judgment motion based upon the third ground.
The trial court erred in granting summary judgment on the ground that the Bank cannot assert its claims under the Declaratory Judgments Act.
In its fourth summary-judgment ground, Stockdick asserted that the Bank cannot assert these claims under the Declaratory Judgments Act because the Bank seeks a determination of title to real property that may be made only in a trespass-to-try-title action. The Bank has sought relief only under the Declaratory Judgments Act. Under this statute, “[a] person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (West 2012). In this suit, the Bank seeks a declaratory judgment determining issues as to whether a redemption of the Property occurred and whether the Bank's Lien is still a valid lien on the Property. These issues involve the construction of the Deed.
Stockdick is the current owner of the Property. If the Bank succeeds in its arguments regarding the Deed and estoppel, then the Property is subject to the Bank's Lien.
In any event, title to the Property or to the liens is not in question. Stockdick relies upon Southwest Guaranty Trust Co. v. Hardy Road 13.4 Joint Venture. See981 S.W.2d 951 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). In that case, the court determined that the substance of the plaintiff's case was a suit to quiet title, in which attorney's fees were not recoverable. See id. at 957. The court held that the trial court did not abuse its discretion in denying attorney's fees because the trial court could have determined that the plaintiff could not use the Declaratory Judgments Act to obtain attorney's fees for a case that was really a suit to quiet title. See id. Stockdick also cites other cases in which courts have held that the Declaratory Judgments Act cannot be used when the substance of the suit is one to remove a cloud on title to real property or a suit over a boundary dispute between owners of real property. The substance of the Bank's suit is not one to quiet title, to remove a cloud on title to real property, or to resolve a boundary dispute. Therefore, these cases are not on point.
If the Bank were to succeed in its estoppel arguments, then Stockdick would be estopped from denying that a redemption occurred in December 2007, resulting in the reinstatement of the Bank's Lien. Because Stockdick's Lien would be subordinate to the Bank's Lien, the foreclosure of Stockdick's Lien would not affect the Bank's Lien. The majority suggests that the Bank is challenging Stockdick's right to foreclosure of Stockdick's Lien. The Bank is not challenging this foreclosure; rather, the Bank is seeking a declaration that the Bank's Lien is senior and superior to Stockdick's Lien notwithstanding the foreclosure of Stockdick's Lien.
The relief that the Bank seeks is available under the Declaratory Judgments Act, and the Bank is not required to pursue a trespass-to-try-title action. SeeTex. Civ. Prac. & Rem.Code Ann. § 37.004(a); Chase Home Finance, L.L.C. v. Cal Western Reconveyance Corp., 309 S.W.3d 619, 633–34 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Red Rock Props.2005, Ltd. v. Chase Home Fin., L.L.C., No. 14–08–00352–CV, 2009 WL 1795037, at *5–6 (Tex.App.-Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.); Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444–45 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Burd, 982 S.W.2d at 33 (affirming trial court's disposition of competing claims under the Declaratory Judgments Act as to whether a redemption occurred under section 34.21). The trial court erred to the extent it granted Stockdick's motion for summary judgment based upon the fourth summary-judgment ground.
Because none of grounds in Stockdick's motion for summary judgment provide a basis for affirming the trial court's judgment, this court should conclude that the trial court erred in granting the motion.
The trial court did not err in denying the Bank's summary-judgment motion.
On appeal, the Bank also asserts that the trial court erred in denying the Bank's motion for summary judgment. Though the Bank raised various issues, including estoppel, in response to Stockdick's summary-judgment motion, the Bank did not assert estoppel in its motion. Instead, the Bank moved for summary judgment based only on the ground that, as a matter of law, the Wittenbergs redeemed the Property under section 34.21(a), and therefore the Bank's Lien is now a valid first lien on the Property. These arguments lack merit for the reasons addressed above. Therefore, the trial court did not err in denying the Bank's motion for summary judgment.
Conclusion
Under the unambiguous language of Tax Code section 34.21, an owner may not provide a promissory note to the purchaser to satisfy the requirement of “paying” any part of the redemption amount under section 34.21(a). Thus, the Wittenbergs did not satisfy the requirements of section 34.21(a) for redeeming the Property. Nonetheless, there are genuine fact issues as to the meaning of the ambiguous language of the Deed and as to whether Stockdick is precluded under the doctrine of quasi-estoppel from denying that the Wittenbergs redeemed the Property through the Deed in December 2007. None of the grounds in Stockdick's summary-judgment motion provide a basis for affirming the trial court's judgment. Therefore, the trial court erred in granting this motion. Because the Bank did not prove its entitlement to summary judgment on the grounds asserted in its summary-judgment motion, the trial court did not err in denying this motion. Accordingly, this court should reverse the trial court's judgment and remand for further proceedings. Because this court does not do so, I respectfully dissent.