Burd v. Armistead

982 S.W.2d 31, 1998 Tex. App. LEXIS 1975, 1998 WL 149546
CourtCourt of Appeals of Texas
DecidedMarch 26, 1998
DocketNo. 01-96-00538-CV
StatusPublished
Cited by8 cases

This text of 982 S.W.2d 31 (Burd v. Armistead) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burd v. Armistead, 982 S.W.2d 31, 1998 Tex. App. LEXIS 1975, 1998 WL 149546 (Tex. Ct. App. 1998).

Opinion

OPINION

ANDELL, Justice.

The appellants (original owners) appeal a summary judgment granted in favor of the appellees (purchasers). We affirm.

Background

Columbia-Brazoria Independent School District sued to collect delinquent taxes on the original owners’ land. The court ordered the land sold, and the purchasers purchased it at a tax sale for $5,120.68.

[33]*33Over a period of several months, the purchasers paid $1,443.39 in back taxes on the property, as well as, $20 in recordation fees, $416.25 to remove appellant Jones from the property, $1,125 to remove trash, $3,578.43 to replace the existing septic system that did not comply with state and local regulations, and $7,108.69 to replace and paint fascia boards, treat the building for termites, replace the roof and carpet, and repair the water pipes, air-conditioning unit, and the electrical system.

The purchasers sent letters to notify the original owners of the mounting renovation costs and the amount the purchasers would accept for redemption. In response to the first letter, the original owners requested an itemization, then tendered a $6400.85 check and notified the purchasers that they would not pay some of the costs because they were not authorized by statute. The purchasers did not accept the check.

For the next year, the original owners did not contact the purchasers. Two days before the statutory redemption deadline, the original owners gave the Brazoria County Tax Assessor-Collector an affidavit that stated the amount owed was m dispute.1 A tax office clerk calculated the amount owed at $9,166.82, which the original owners paid. In return, the clerk issued a receipt for redemption of the properties.

The purchasers sued for a declaratory judgment that the redemption was not valid. The original owners filed a counterclaim seeking declaratory judgment in support of the redemption. Both parties moved for summary judgment. The court granted the purchasers’ motion, denied the original owners’ cause of action, and declared the redemption not valid.

In points of error one and two, the original owners assert the trial court erred in granting the purchasers’ motion for summary judgment, and in denying the original owners’ motion for summary judgment.2

Standard of Review

When both parties move for summary judgment, the nonprevailing party may appeal both the prevailing party’s motion as well as its own. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Each party [34]*34must carry" its own burden as the movant and, in response to the other party’s motion, as the nonmovant. James v. Hitchcock ISD, 742 S.W.2d 701, 703 (Tex.App.—Houston [1st Dist.] 1987, writ denied). As we review each of the motions for summary judgment, we must indulge all reasonable inferences and resolve all doubts in favor of the nonmovant. University of Tex. Health Science Ctr. v. Big Train Carpet, Inc., 739 S.W.2d 792, 792 (Tex.1987). When, as here, a court’s order does not specify the grounds relied on for its ruling, we will affirm the summary judgment if any of the theories advanced are meritorious. See Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989); Brown v. Cain Chemical, Inc., 837 S.W.2d 239, 242 (Tex.App.—Houston [1st Dist.] 1992, writ denied).

Redemption

An owner seeking to exercise his right of redemption under the Tax Code must pay a statutorily prescribed amount within two years of the tax sale, or the right to redeem expires. Tex. Tax Code ANN. § 34.21. When redeeming within the first year after sale, the original owner must pay 125 percent of the purchase price, taxes, penalties, interests, and costs incurred by the purchaser. See id. When redeeming within the second year after sale, the original owner must pay 150 percent of the purchase price, taxes, penalties, interests, and costs incurred by the purchaser. See id. Nonredemption within two years of the tax sale ripens title to the property in favor of the purchaser or its assigns. Id.; State v. Moak, 146 Tex. 322, 207 S.W.2d 894, 896-97 (1948).

The original owners tendered $9,166.82 to the tax assessor two days before their redemption deadline. They concede that the tax assessor miscalculated the amount due, and assert the proper calculation would be $9,864.25. They contend that, because their $697.44 shortfall was inadvertent and de minimis, redemption was valid. In the alternative, they contend they have substantially complied with the statute, thereby affecting a valid redemption. They add that they are willing to pay the shortfall amount.

The purchasers assert the original owners’ $9,864.25 calculation ignores numerous items of costs entirely. They note that the statute explicitly includes costs in the calculation, and allege they gave the original owners itemized notice of statutorily authorized costs. Accordingly, they claim the original owners’ tender was nowhere near the required amount — which the purchasers claim to be $29,175.06. Because they assert the original owners knowingly disregarded these costs and even underpaid the amount that would have been due exclusive of costs, the purchasers contend the original owners’ underpayment was neither inadvertent, de min-imis, nor in substantial compliance with the statute.

Definition of “Costs”

At the time the original owners attempted redemption, the statute did not expressly define costs. Neither party has cited, and we are unable to find, eases that define costs in the redemption context. However, while the case was pending before this Court, the legislature defined costs.3

Tax Code section 34.21(e)(2) reads:

[35]*35“Costs” includes the amount reasonably spent by the purchaser for the maintenance, preservation, and safekeeping of the property, including the cost of:
(A) property insurance;
(B) repairs or improvements required by a local ordinance or building code or by a lease of the property in effect on the date of the sale;
(C) discharging a hen imposed by a municipality to secure expenses incurred by the municipality in remedying a health or safety hazard on the property;
(D) dues or assessments for maintenance paid to a property owners’ association under a recorded restrictive covenant to which the property is subject; and
(E) impact or standby fees imposed under the Local Government Code or Water Code and paid to a political subdivision.

Tex. Tax Code Ann. § 34.21(e)(2) (Vernon Supp.1998).

Generally, in the absence of any specific language to the contrary, a statute will not be applied retroactively, even when there is no constitutional impediment against it. Lubbock Indep. School Dist. v.

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982 S.W.2d 31, 1998 Tex. App. LEXIS 1975, 1998 WL 149546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burd-v-armistead-texapp-1998.