Chambers v. Hornsby

21 S.W.3d 446, 2000 Tex. App. LEXIS 2107, 2000 WL 329952
CourtCourt of Appeals of Texas
DecidedMarch 30, 2000
Docket14-99-00790-CV
StatusPublished
Cited by7 cases

This text of 21 S.W.3d 446 (Chambers v. Hornsby) 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
Chambers v. Hornsby, 21 S.W.3d 446, 2000 Tex. App. LEXIS 2107, 2000 WL 329952 (Tex. Ct. App. 2000).

Opinions

MAJORITY OPINION

PAUL C. MURPHY, Chief Justice.

Constable A.B. Chambers and Deputy Constable Darren Francis appeal from the denial of a summary judgment in the lawsuit filed by Andre Hornsby, Ethel Horns-by, Aaron McGilbrida, and Kehlin Faroag for damages and declaratory and injunc-tive relief. Because the uncontroverted evidence shows that appellants performed their duties in good faith and with reasonable diligence, we reverse the trial court decision and grant judgment in favor of appellants.

On April 22, 1998, a writ of execution was filed in the offices of Constable Chambers. The writ, issued on April 17, 1998, out of the 328th District Court in Fort Bend County, recited that a judgment was taken against Andre Hornsby in the amount of $3,000 plus interest at the time of execution. The writ showed two ad[448]*448dresses for Andre Hornsby, both in Houston, 2520 Calumet and 2522 Calumet. The evidence shows that Andre Hornsby lives with his wife, Ethel Hornsby, at 2522 Calumet, a property they own. The Hornsbys also own 2520 Calumet, which they lease to Faroag and McGilbrida.

To execute on 2520 Calumet, Constable Chambers’ staff took three steps to provide notice of sale: First, the property was advertised in the “Daily Court Review” for a period of three weeks. Second, the proposed sale was posted in three separate places in Harris County at least twenty days before the sale. Third, written notice of sale was sent to Andre Hornsby at 2522 Calumet and at 2520 Calumet. The evidence includes a receipt for certified mail sent to Mr. Andre Jose Hornsby at 2522 Calumet with no return receipt, that is, no “green card,” and a returned certified mail envelope, apparently unopened, addressed to “Mr. Andre Jose Hornsby” at 2520 Calumet.

The 2520 Calumet property was sold on July 7, 1998, at the Harris County Family Law Center in Houston. Elbar Investments, Inc., purchased the property and was presented with a Deed Under Writ of Execution by Deputy Constable Francis in the name of Constable Chambers.

Andre Hornsby alleges he received no notice of the sale. On September 10,1998, appellees sued Elbar Investments and appellants, alleging that notice was improperly sent to 2520 Calumet instead of 2522 Calumet, where Andre and Ethel Hornsby live. McGilbrida and Faroag, who live at 2520 Calumet and who apparently are being evicted by Elbar Investments, are suing for the loss of the enjoyment of the property.

Appellants moved for summary judgment on grounds of official immunity, alleging both absolute judicial immunity and immunity based on section 7.003 of the Civil Practices and Remedies Code. Tex. Civ.PRac. & Rem.Code Ann. § 7.003 (Vernon 1986). After the trial court denied their summary judgment motion, they appealed pursuant to section 51.014 of the Civil Practices and Remedies Code. Tex.Civ. Prac. & Rem.Code Ann. § 51.014(5) (Vernon 1997).

When we review a grant of summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, we take as true proof favorable to the nonmovant and indulge every reasonable inference and resolve any doubt in the nonmovant’s favor. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A trial court should grant a defendant’s motion for summary judgment if the defendant establishes all the elements of an affirmative defense as a matter of law. See id. A claim of official immunity is an affirmative defense. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). A summary judgment may be based on the uncontroverted proof of an interested witness or expert witness if the evidence is clear, positive, and direct, otherwise credible and free from contradiction and inconsistencies, and could have been readily controverted. See Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986).

In connection with the sale of real estate under execution, the selling officer must publish the notice of sale for three consecutive weeks in the newspaper, or post notice of the sale in three public places in the county, one of which must be the courthouse door if notice by publication cannot be effected. See Tex.R.Civ.P. 647. The officer also must provide sale notice either by mail or in person to the judgment debt- or or his attorney. See id. The officer is not liable for damages resulting from the execution of a writ issued by a court of this state if the officer: (1) in good faith executes the writ as provided by law and by the Texas Rules of Civil Procedure; and (2) uses reasonable diligence in performing [449]*449his official duties. See § 7.003(a) (Vernon 1986).

Here, Barbara Meloncon, the person responsible in Constable Chambers’s office for mailing notices of constable sales, stated in an affidavit that she sent the notice to both 2522 Calumet, the Hornsbys’ residence, and 2520 Calumet. The notice to 2520 Calumet was returned, apparently unopened, and the green receipt acknowledgment from 2522 Calumet was never returned to the constable’s office. Andre Hornsby stated in an affidavit that he never received the sale notice.

The proof includes an affidavit from Captain Cecil Lacy, in the office of Harris County Constable Dick Moore, Precinct 4, which provides, in part, as follows:

In my position as Captain, I am in charge of executions of civil processes. I have been involved in the execution of civil processes for approximately 14 years, have taught courses on this subject and written course textbooks on executions. I have in my career handled several thousand executions involving real estate.
I have reviewed the notices sent out in this lawsuit. These notices are the same notices we send out in executions involving this office. The fact that we do not receive a green card or a returned envelope for every notice we send out would not cause us to postpone a scheduled sale of real estate. It is very common for green cars to get lost in the mail or to come back after the sell [sic] has taken place. Based on my experience the personnel in Constable Chambers were acting as reasonably prudent officers would have acted in carrying out their duties and were acting in good faith and with reasonable diligence.

Appellees do not controvert this proof but argue only that questions of good faith and reasonable diligence are fact questions.

To prove that the officers acted in good faith, we rely on the test set out by the Supreme Court in City of Lancaster v. Chambers, 883 S.W.2d 650, as modified for the facts at issue, see Rhodes v. Torres, 901 S.W.2d 794 (Tex.App.-Houston [14th Dist.] 1995, no writ). Like the Dallas court in Richardson v. Parker, 903 S.W.2d 801

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21 S.W.3d 446, 2000 Tex. App. LEXIS 2107, 2000 WL 329952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-v-hornsby-texapp-2000.