Cash Investments, Inc. v. Clint Independent School District

940 S.W.2d 693, 1996 Tex. App. LEXIS 5313, 1996 WL 674433

• Court: Court of Appeals of Texas
• Decided: November 21, 1996
• Docket: No. 08-95-00319-CV
• Status: Published

Opinions

OPINION

BARAJAS, Chief Justice.

This is an appeal from a declaratory judgment. Appellee foreclosed on several properties for non-payment of taxes. Appellant purchased the properties at a tax foreclosure sale. Because Appellee refused to release its liens on the properties, Appellant sued for declaratory relief to determine the validity of its title. The trial court declared that the tax foreclosure sale and subsequent sheriffs deed were void. We reverse and remand in part, and reverse and render in part.

I. SUMMARY OF THE EVIDENCE

The facts are undisputed. From 1980 to 1989, Appellee, a school district, assessed taxes against six tracts of land within its boundaries (“the properties”). Certain of those taxes were not timely paid and became delinquent. Consequently, in 1988, Appellee brought suit (“the tax suit”) to collect the delinquent taxes on the properties. The total taxes, penalties, and interest for the properties which Appellee sought to recover by the tax suit were as follows:

Tract 1: $13,243.65

Tract 2: 16,182.81

Tract 3: 119.71

Tract 4: 30,582.63

Tract 5: 3,576.49

Tract 6: 4,177.38

$67,882.67

In 1990, Appellee obtained a judgment in the tax suit for recovery of the taxes and for foreclosure of its tax liens (“the judgment”). The tax suit judgment, drafted by Appellee and stating that the aggregate market value of the properties was $1,126,334, provided, in pertinent part:

IT IS ORDERED that an Order of Sale be issued by the Clerk directed to the Sheriff or any Constable of said County, commanding such officer to seize, levy upon, and advertise the sale of each of said properties, and sell the same to the highest bidder for cash, as under execution, provided that none of said property shall be sold to any party, other than a taxing unit which is a party to the suit, for less than the amount of the market value of the property ... or the aggregate amount of the judgment against the property in said suit, whichever is lower....

Thereafter, the district clerk issued an order of sale, also drafted by Appellee, containing similar language:

[N]one of said property shall be sold to the owner of said property directly or indirectly, or to anyone having an interest therein, or to any party other than a taxing unit which is a party to the suit for less than the amount of the adjudged value of the property or the aggregate amount of the judgment against the property in said suit_ (Emphases added).

Subsequently, the Sheriff levied upon the properties and published a notice of sheriffs sale.

In March 1991, the Sheriff conducted a tax sale of the properties by public auction. Appellee did not appear at the tax sale, although the Sheriff delayed the sale approximately thirty minutes in order to give Ap-pellee an opportunity to appear.¹ Appellant made the highest cash bid of $360 for the properties.² Upon receiving payment, the Sheriff sold the properties to Appellant and delivered a sheriffs deed for the properties.³ It is undisputed that at the time of the tax sale and delivery of the deed, Appellant was not affiliated with any person who owned or held an interest in the properties.

Appellant purchased the properties subject to other delinquent taxes of the City and County of El Paso, and to all 1990 taxes. As of November 6, 1993, there were delinquent taxes, penalties, and interest of taxing units assessed against the properties, and to which Appellant’s interest therein was subject, totaling $120,326.41.⁴

After the tax sale, Appellant repeatedly asked the tax assessor for the payment amount necessary for Appellant to make full payment of all non-Appellee taxes, penalties, and interest. Thereafter, the tax assessor gave written notice to Appellee about Appellant’s tender and requested that Appellee release its tax Kens. Appellee refused to release its Kens, so the tax assessor would not accept AppeKant’s payment.

On November 10,1992, AppeKant sued for declaratory reKef to determine the vaKdity of its title. AppeKee contended that the Sheriff should not have sold the properties to Appellant at the tax sale for an amount less than either the adjudged value of the properties ($1,126,334) or the aggregate amount of the judgment ($67,882.67). AppeKant and the Sheriff deny that any such irregularity existed. The parties submitted the case to the trial court primarily upon written stipulations of fact, with only limited, uncontested testimonial and documentary evidence. The trial court adjudged that “the Sheriffs Sale of March 5, 1991, and the subsequent Sheriffs Deed, are void and no title shaK pass to Plaintiff.”

II. DISCUSSION

AppeKant attacks the judgment of the trial court in seven points of error. In its first point of error, AppeKant contends that the trial court erred “when it concluded that the tax sale and the deed were void and passed no title to Cash Investments, because Cash Investments was not bound by any minimum or sufficient bid requirement and could bid less than the market value or judgment amount against the properties.”

As previously noted, the order of sale contained the foKowing relevant language:

[NJone of the said property shaK be sold ... to any party other than a taxing unit which is a party to the suit for less than the amount of the adjudged value of the property or the aggregate amount of the judgment against the property in said suit_ (Emphasis added).

The real gravamen of AppeKant’s complaint is that “party ... which is a party to the suit” cannot mean “anyone,” as the trial court found. We agree.

Minimum bid requirements for orders of sale are set forth in Tex.Tax Code Ann. § 33.50(b) (Vernon 1992), which provides:

[T]he order of sale shaK specify that the property may not be sold to a person owning an interest in the property or to any party to the suit, other than a taxing unit, for less than the market value of the property stated in the judgment or the aggregate amount of the judgments against the property, whichever is less. (Emphasis added).

Id. As stipulated, AppeKant did not own an interest in the properties and was not a party to the tax suit. However, the trial court, despite the unambiguous language of Tex Tax Code Ann. § 33.50(b), determined that the Sheriffs sale and deed were void. We find this determination to be erroneous.

First, we find that the plain language of TexTax Code Ann. § 33.50(b) clearly requires the order of sale to restrict sales for a minimum bid to persons with an interest in the properties or who were parties to the tax suit. Quite simply, the statute does not prohibit the sheriff from selling the properties to anyone, save a taxing unit, for less than a minimum bid, as the trial court apparently concluded.

Perhaps the reason for the trial court’s mistake was reliance on State v. Rhodes, 327 S.W.2d 701 (Tex.Civ.App.—Dallas 1959, no writ). In Rhodes, the City of Dallas filed suit to set aside and declare void a tax foreclosure sale and to caneel the sheriffs deed. The grounds alleged were that the sale and deed were contrary to Tex.Rev.Civ.Stat.Ann. art. 7345b, contrary to the judgment entered by the court in the tax foreclosure suit, and contrary to the provisions of the order of sale issued by the court authorizing the sale.

The order of sale issued in Rhodes contained the following instruction to the sheriff:

[Njone of said tracts shall be sold to the owner of said tract directly or indirectly or to anyone having an interest therein or to any party other than a taxing unit which is a party to this suit for less than the amount of the adjudged value of said tract or the aggregate amount of the judgments against said tract in said cause, whichever is lower.

Id. at 702-03. At the public auction, H.R. Fender was thé high bidder with a bid of $80. The sheriff accepted Fender’s bid and thereafter executed a sheriffs deed conveying the. property to him.

The trial court rendered judgment in favor of the City of Dallas, setting aside the tax foreclosure sale, canceling the sheriffs deed to Fender, and ordering the Sheriff of Dallas County to return to Fender the $80 which he had paid for the property as highest bidder at the sale. In affirming the judgment of the trial court, the Dallas Court of Appeals interpreted TexRev.CivStatAnn. art. 7345b and declared the sale void “because the acceptance of Fender’s bid of only $80 violated the terms of the court’s judgment of foreclosure, and the express directions of the order of sale.” Rhodes, at 703.

Tex.Rev.Civ.StatAnn. art. 7345b, § 8, no longer in effect, was the predecessor to TexTax Code Ann. § 33.50(b). Tex.Rev. CivStatAnn. art. 7345b, § 8 provided that:

No property shall be sold for taxes under decree in such suit to the owner of said property, directly or indirectly, or to anyone having an interest therein, or to any party other than the taxing unit which is a party to the suit, for less than the amount of the adjudged value aforesaid of said property or the aggregate amount of the judgments against the property in said suit, which ever is lower. (Emphasis added).

As previously noted, TexTax Code Ann. § 33.50(b) is in substantially the same language as Tex.Rev.Civ.Stat.Ann. art. 7345b, § 8, except for the addition of “to the suit,” to wit:

[T]he property may not be sold to a person owning an interest in the property or to any party to the suit, other than a taxing unit_ (Emphasis added).

Rhodes interpreted the “or to any party ...” language in TexRev.Civ.StatAnn. art. 7345b, § 8 to mean that nobody (other than a taxing authority) could purchase the property for less than the judgment value or the adjudged value. However, the Legislature’s addition of the language “to the suit” makes the Rhodes interpretation of limited value. We give effect to all the words of a statute and do not treat any statutory language as surplusage if possible. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987); Perkins v. State, 367 S.W.2d 140 (Tex.1963). Moreover, it is a well settled rule of construction that the “express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others.” James v. Brown, 637 S.W.2d 914, 918 (Tex.1982); State v. Mauritz-Wells Co., 141 Tex. 634, 639, 175 S.W.2d 238, 241 (1943). Thus, we believe that the trial court erred in finding that the order of sale and TexTax Code Ann. § 33.50(b) prohibited the sheriff from selling the properties to a third party such as Appellant for less than the minimum bid.

In addition to the above, two other cogent factors serve to persuade us. First, the order of sale provides that “none of said property shall be sold ... to anyone having an interest therein, or to any party other than a taxing unit which is a party to the suit_” (Emphasis added). It is apparent to us that if “party” was intended to mean “anyone” in the second clause, the order of sale would have used that term as it did in the preceding clause. Second, we note that Appellee drafted the order of sale. In Texas, a writing is generally construed against its author to reach a reasonable result consistent with the intent of the parties. Temple-Eastex Inc. v. Addison Bank, 672 S.W.2d 793 (Tex.1984); Tubb v. Bartlett, 862 S.W.2d 740, 747 (Tex.App.—El Paso 1993, writ denied). Appellant should not be allowed to take advantage of any ambiguity in its own language.

Finally, Appellee contends that TexTax Code Ann. § 34.01 (c)(Vemon 1992) provides that a third party bid is insufficient if it falls short of the minimum bid (i.e. — the lesser of the aggregate amount of the judgment against the property or the market value of the property). Section 34.01(e) provides, in pertinent part:

If a sufficient bid is not received, the officer making the sale shall bid the property off to a taxing unit that is a party to the judgment for the aggregate amount of the judgment against the property or for the market value of the property as specified in the judgment, whichever is less.

TexTax Code Ann. § 34.01(c). We read Section 34.01(c) in light of the minimum bid requirements of TexTax Code Ann. § 33.50(b). As such, if the highest bidder is either a party to the suit or a person with an interest in the property, and the bid does not meet the minimum bid requirement, the bid is insufficient, and the property is sold to the taxing entity.⁵ Accordingly, we sustain Appellant’s Point of Error No. One.

In Points of Error Nos. Three and Four, Appellant contends that the trial court erred when it failed to find that (1) Appellee should waive all tax, penalty, and interest as to Appellant, and (2) Appellee was liable for all additional charges for the non-Appellee taxes. However, due to the trial court’s incorrect conclusion that the sheriffs sale and deed were void, the trial court never addressed these issues. As such, these findings remain for the trial court’s determination. Accordingly, we overrule Appellant’s Points of Error Nos. Three and Four to the extent they seek rendition of judgment for the above-mentioned taxes, penalties, charges, and interest and sustain Appellant’s alternative request for a remand on these issues. We do not reach the remaining points of error.

We reverse the judgment of the trial court in part, and reverse and render in part.

LARSEN, J., dissents.

1 . At oral argument, Appellee conceded that:

1) a school district's interest (is) protected by merely showing up and submitting a minimum bid, and

2) if the I.S.D. was there and bid, we wouldn’t be here today.

2 . At least five persons were present at the tax sale, with two persons bidding on the properties.

3 . For reasons unclear in the record, the deputy conducting the sale accepted the bid of $360.

4 . The properties were also subject to redemption. At the time the Federal Deposit Insurance Corporation ("FDIC”) gave notice of redemption, the FDIC held an interest in a promissory note dated January 1, 1983 in the original principal amount of $900,000, with such note being secured by liens on the properties. In response to the notice, Appellant advised the FDIC that the cost of redeeming the properties would be $1,602.50, plus $2,000 in attorneys’ fees. The FDIC thereafter declined to redeem the properties.

5 . Appellee relies on Danciger v. State, 140 Tex. 252, 166 S.W.2d 914, 915 (1942), for the proposition that the deputy conducting the sale must sell the property to the taxing unit if the bids do not reach the amount of the delinquent taxes. Dan-ciger, however, interpreted a statute which provided such treatment if there was "no bidder”, and is thus distinguishable.