Artemio Trevino v. Frio County, Dilley Independent School District, The City of Dilley and Dilley Independent School District, As Successor-In-Interest of The Frio-McMullen County Education District #17--Appeal from 218th Judicial District Court of Frio County

MEMORANDUM OPINION
No. 04-02-00695-CV
Artemio TREVINO,
Appellant
v.

FRIO COUNTY, Dilley Independent School District,

The City of Dilley, and Dilley Independent School District,

as Successor in Interest to the Frio-McMullen County Education District No. 17

Appellees
From the 218th Judicial District Court, Frio County, Texas
Trial Court No. 99-06-00186-CVF
Honorable Olin B. Strauss, Judge Presiding (1)

Opinion by: Karen Angelini, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

In 1994, Appellee Frio County filed a delinquent tax suit against Marshall L. Gaines for nonpayment of property taxes. Appellees Dilley Independent School District, the City of Dilley, and Dilley Independent School District, as Successor in Interest to the Frio-McMullen County Education District No. 17, entered the suit as intervenors. Later that year, the trial court granted judgment in favor of appellees, foreclosing the tax liens against the property. After notice of sale was properly published, a sheriff's sale was held. At the sheriff's sale, Appellant Artemio Trevino bought the property for $6,600.00.

Trevino later learned that MECO Federal Credit Union ("MECO") was a lien-holder on the property, but had not been joined as a party to the delinquent tax suit. MECO foreclosed on its lien. In response, Trevino filed a trespass to try title action, seeking a declaration that he, not MECO, possessed title to the property. MECO moved for summary judgment, arguing that the judgment foreclosing the tax liens was defective because MECO, a lien-holder, had not been joined as a party to the delinquent tax suit. And, as such, the tax sale and sheriff's deed were void. The trial court granted MECO's motion for summary judgment, finding that the judgment foreclosing the tax liens was defective because not all interested parties had been joined in the delinquent tax suit. The trial court entered judgment, awarding MECO title to the property.

Trevino then filed the underlying lawsuit, seeking reimbursement from appellees in the amount of $6,600.00. After a bench trial, the trial court ruled in favor of appellees, ordering that Trevino take nothing.

In his first issue, Trevino argues that the trial court "erred in failing to award [him] the $6,600.00 [he] paid for the property at the delinquent tax sale." According to Trevino, if we allow "the ruling of the trial court to stand it will result in an unjust enrichment at the expense of [Trevino]." Trevino emphasizes that his complaint centers on appellees being unjustly enriched. Trevino, however, failed to allege unjust enrichment in his original petition. Seven days before trial, Trevino filed his "First Amended Original Petition," which stated the following: "To allow the Defendants to retain the aforementioned $6,600.00 would amount to unjust enrichment." This statement was not contained within Trevino's original petition. On the day of trial, counsel for appellees stated, "The first thing I'd like to say is that plaintiff's original petition was amended. I have not seen a copy of it." In response, Trevino's attorney withdrew the amended petition: "Well, I'll go with the pleadings before it [was] amended, Judge. He has a copy of it, Judge." Once Trevino withdrew his amended petition, he no longer had a petition on file that stated a claim for unjust enrichment. (2) See Tex. R. Civ. P. 45, 47. As Trevino had not pled a claim for unjust enrichment, the trial court could not have erred in failing to grant Trevino relief on an unjust enrichment theory of recovery. We, therefore, overrule Trevino's first issue.

In his second issue, Trevino argues that the "trial court erred in its judgment in this cause because in so doing allowed the verdict in the trespass to try title case and this case to be totally inconsistent." Trevino sets out the following argument in support:

The problem here is that if they Appellant [sic] pays his money to the Appellees and if he is not allowed title to the property he at the very least should be refunded his money, in this case $6,600.00, from the Appellees. The two judgments are inconsistent. Judge Saxon hit the nail on the head when she said,

Don't you see a problem that an individual that has a piece of property with a big old mortgage on it, y'all don't join in the mortgage holder - and this wasn't something really obscure. This was something on file among the deed records here in the county. You don't join that mortgage holder in your suit, you take the property by tax sale alleging that everybody who has any interest in the property has been served, okay, you take a judgment and then you sell it to somebody who doesn't have any idea there's something out there, and then this lien holder comes in and takes the property, and has basically just paid the taxes on property he doesn't have.

We cannot find a legal argument contained within Trevino's discussion. Moreover, Trevino fails to cite support for his assertion that the trial court erred in entering "inconsistent judgments." Trevino has, therefore, improperly briefed this issue. See Tex. R. App. P. 38.1(h). As such, we overrule it.

Having overruled both of Trevino's issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

1. The Honorable Olin B. Strauss signed the final judgment in this case. The Honorable Stella Saxon presided over the bench trial.

2. Trevino does not claim that this issue was tried by consent. See Tex. R. Civ. P. 67.