City of Alvin v. Sallie Zindle--Appeal from 239th District Court of Brazoria County

Reversed and Remanded and Memorandum Opinion filed October 23, 2007

Reversed and Remanded and Memorandum Opinion filed October 23, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01147-CV

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CITY OF ALVIN, Appellant

V.

SALLIE ZINDLE, Appellee

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 32714

M E M O R A N D U M O P I N I O N

The City of Alvin appeals from a summary judgment favoring Sallie Zindle in a declaratory judgment action to determine ownership of mineral rights. The trial court granted Zindle=s motion for summary judgment and denied Alvin=s motion, thus awarding the property interest to Zindle. We reverse and remand.

Background

In 1989, Alvin, on its own behalf and on behalf of other taxing authorities, filed an action seeking to foreclose a tax lien on property owned by Zindle in Brazoria County. In 1991, the trial court in this underlying action issued a default judgment favoring Alvin and authorizing a foreclosure sale of the property. Alvin subsequently purchased the property at the foreclosure sale administered by the Brazoria County Sheriff. Although it is undisputed that property was foreclosed upon and sold, neither the judgment of foreclosure nor the order of sale appears in the record before us. The record contains a sheriff=s deed conveying certain property to Alvin; the deed describes the surface acreage sold but does not mention whether any associated mineral rights were intended to be included in the conveyance. In the present action, the parties have stipulated that since before the time of the tax foreclosure proceedings, a producing oil and gas lease existed on the property. Zindle was a successor in interest to the original lessor. The parties have further stipulated that Zindle=s royalty interest in the property (established through the lease) was taxed separately from the surface estate. At some point prior to the filing of the present lawsuit, Alvin asserted that it owns the minerals (or at least the royalty interest and right of reverter) in the land in question. In March 2005, Zindle filed the present action seeking a declaratory judgment that she, and not Alvin, owns the royalty interest and right of reverter. As stated, the trial court granted Zindle=s motion for summary judgment and denied Alvin=s motion.

Discussion

We review all summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because both parties filed traditional motions for summary judgment under rule 166a(c), the usual standard of review for such judgments applies. See Tex. R. Civ. P. 166a(c); Randall=s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). To be entitled to judgment, the moving party must establish that no material fact issues exist and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). When, as here, both parties have moved for summary judgment, the appealing party may challenge the denial of its own motion as well as the judgment in favor of the prevailing party. CU Lloyd=s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998). We are to review the summary judgment proof submitted by both parties, and if the proof allows, we determine all questions presented and render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

It is well-established that a sheriff=s deed is no evidence of title absent the judgment of foreclosure and order of sale. E.g., Mills v. Pitts, 48 S.W.2d 941, 942, 121 Tex. 196, 199 (Tex. 1932); Sani v. Powell, 153 S.W.3d 736, 742 (Tex. App.CDallas 2005, pet. denied). The reason for this is that the sheriff=s sole authority to sell property in a foreclosure sale is conferred by the judgment and order. See Clint ISD v. Cash Inv., Inc., 970 S.W.2d 535, 538 (Tex. 1998) (citing Mills). When the sheriff is ordered to sell certain property, the order gives him no authority to seize and sell any other property. Mills, 48 S.W.2d at 942, 121 Tex. at 199. If the sheriff exceeds his authority, as conferred by the judgment and order, the resulting sale is void and title does not vest in the purchaser. Clint ISD, 970 S.W.2d at 538, 540; Mills, 48 S.W.2d at 942, 121 Tex. at 199. Thus, even if the deed contains recitals purporting to describe the property that was foreclosed upon and ordered sold, the sheriff=s deed still does not constitute evidence of title absent the judgment and order. Sani, 153 S.W.3d at 742. Consequently, the sheriff could not have legally conveyed property interests that were not foreclosed upon and ordered sold. See Tex. Tax Code ' 34.01(n) (providing that a deed obtained through a foreclosure sale vests title in the purchaser Ato the interest owned by the defendant in the property subject to the foreclosure@)[1]; Clint ISD, 970 S.W.2d at 538; Mills, 48 S.W.2d at 942, 121 Tex. at 199; Sani, 153 S.W.3d at 742.

The key to the present case is what happened in the prior tax foreclosure case. There is no indication in the record that Zindle has or is challenging the default judgment in that case. However, although the record contains the sheriff=s deed purporting to convey title in the property, neither party introduced the underlying foreclosure judgment or order of sale as summary judgment proof. The agreed stipulation of facts between the parties does not obviate the need for the judgment and order of sale. Cf. Sani, 153 S.W.3d at 741-2 (holding that deemed admissions regarding terms of foreclosure judgment and order of sale did not eliminate need for actual judgment and order to prove title). While the parties agreed in the stipulation that Alvin=s claim Ais from a Sheriff=s Deed executed pursuant to the delinquent tax foreclosure of the surface,@ it does not explicitly identify what was ordered sold. Additionally, while the stipulation suggests that at the time of the tax foreclosure the oil and gas lease was the only known severance of mineral rights in the property, the stipulation leaves open the question of whether the judgment of foreclosure and associated order of sale may have themselves affected a severance of any mineral rights, such as of the royalty interest and right of reverter. Certainly, as the cases discussed above establish, if the judgement of foreclosure and order of sale authorized the sale of only the surface estate on which taxes were delinquent, the sheriff had no authority to sell any mineral interest; if he did so, such sale would be void. See Clint ISD, 970 S.W.2d at 538; Mills, 48 S.W.2d at 942, 121 Tex. at 199; Sani, 153 S.W.3d at 742. That determination, however, cannot be made based on the record before us. The judgment and order of sale are essential to deciding who now owns the royalty interest and right of reverter. Consequently, Alvin has not presented conclusive evidence that it has title to the property at issue. Likewise, without the judgment and order, Zindle cannot prove as a matter of law that Alvin does not have title to the property. Thus, the trial court erred in granting summary judgment favoring Zindle, and we cannot reverse and render judgment for Alvin.

Accordingly, we reverse the trial court=s grant of summary judgment favoring Zindle and remand for further proceedings in accordance with this opinion.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 23, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] Alvin interprets section 34.01(n) to mean that the purchaser receives title to the entire property even if the foreclosure was only against a particular interest and not the whole. Alvin, however, neither cites to any authority for this interpretation nor offers an explanation as to how the purchaser could legally be awarded more than the property interest that was foreclosed upon. We reject this interpretation and instead interpret the section, consistent with the Mills and Clint ISD line of cases, as providing that the deed vests title in the property interest that was foreclosed upon and ordered sold and not necessarily the entire property.