In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00387-CV __________________
NANNETTE CARLEY, Appellant
V.
SAALWAECHTER, INC., Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 20-12-14893-CV __________________________________________________________________
MEMORANDUM OPINION
Under the Texas Tax Code, an owner of real property may redeem
its ownership rights to property purchased at a tax-foreclosure sale by
paying an amount prescribed by a statutory formula if they pay the
statutorily prescribed amount within the time the statute prescribes,
which begins to run when the deed issued to the purchaser is recorded.1
1Tex. Tax Code Ann. § 34.21 (Supp.).
1 In this appeal, the issue is whether the trial court erred following a trial
to the bench in finding that the amount the owner tendered to redeem
her property from a tax foreclosure sale represented “an insufficient
payment” to satisfy what we refer to in the opinion as the statutory
formula. 2
We hold the trial court did not abuse its discretion in concluding the
property’s owner failed to tender an amount sufficient to substantially
comply with the statutory formula. For that reason, we will affirm the
trial court’s judgment.
Background
The property that is the subject of the dispute consists of a
residential lot that we will refer to as the Property, which is described in
the order authorizing the lot’s sale as Lot 19, Rustic Oaks, in the Bartley
Murray Survey, Abstract 343, Montgomery County, Texas. In March
2Id. § 34.21(a) (providing that an owner of real property sold at a
tax sale may redeem the property “by paying the purchaser the amount the purchaser bid for the property, the amount of the deed recording fee, and the amount paid by the purchaser as taxes, penalties, interest, and costs on the property, plus a redemption premium of 25 percent of the aggregate total if the property s redeemed during the first year of the redemption period”). The term costs is defined to include the (“amount reasonably spent by the purchaser for maintaining, preserving, and safekeeping the property”). 2 2019, five taxing entities obtained a judgment and decree of sale against
the Property’s owner, Nannette Carley. That judgment and the resulting
decree of sale were based on the ad valorem taxes levied against the
Property by five taxing entities that Carley, as the owner of the property,
had been assessed but failed to pay. The judgment lien awarded to the
taxing entities against the Property totaled $44,204. The judgment
against the Property describes the tax units’ claims as “valid claims for
delinquent taxes, penalties, interest, and costs allowed by law[.]”3
When Carley failed to cure the lien, a Montgomery County
constable conducted a tax foreclosure sale based on a court order, which
authorized the sale. Saalwaecther Inc. (“SI”) was the highest bidder for
the property at the sale, bidding $75,000 for the Property. On January
27, 2020, and based on the terms of the auction, Chris Jones (in his
capacity as a Montgomery County Constable) signed a Constables Deed
conveying the Property to SI.
3The five taxing entities listed in the judgment are the Tomball Independent School District, Montgomery County, the Montgomery County Hospital District, Montgomery County ESD 10, and Lone Star College. The judgment creating the lien was signed by the 284th District Court of Montgomery County, Trial Court Cause Number 17-11-13325. For simplicity, the monetary figures discussed in the opinion have been rounded to whole numbers. 3 In February 2020 and over SI’s objections, Carley returned to the
Property and moved back into the home. When Carley refused SI’s
demand to vacate, SI filed a Motion for Restraining Order and Temporary
Injunction. Following a March 2021 hearing, the trial court signed an
order granting SI’s request for temporary injunctive relief. The trial court
gave Carley twenty-one days to vacate the Property and ordered SI to
post a $100 bond.
In May 2020, Carley, through her attorney, contacted employees or
agents of SI and advised that she desired to redeem the Property. Her
attorney asked SI to account for the funds “you have spent for the tax
sale and related expenses so that Ms. Carley may make [an] offer to
redeem the [P]roperty from you in accordance with the Texas Property
Code.” According to SI’s petition, SI responded to Carley’s request and
advised her that as of July 1, 2020, SI had spent $133,783 on the
Property.
In November 2020, Carley tendered $101,650 to the Montgomery
County Tax-Assessor Collector together with an “Affidavit of Facts” in
which she represented that she was tendering the “correct amount” to
redeem the Property. In the “Affidavit of Facts,” Carley also represented
4 that she and SI did not agree “on the amount owed.” Carley’s Affidavit of
Facts starts with her statement: “I Nannette Carley, do affirm the
statements below are true and correct.” Although the Affidavit of Facts
includes a signature by a notary, the notary’s certificate states: “This
instrument was acknowledged before me on November 3, 2020 by
Nannette Carley.” Finally, the information included in Carley’s Affidavit
of Facts doesn’t explain the factual basis for Carley’s claim that $101,650
is the “correct amount” to redeem the Property from the tax-foreclosure
sale.
Relying on Carley’s Affidavit of Facts and payment, Montgomery
County’s Tax Assessor-Collector gave Carley a “Redemption Receipt.”4
On November 4, 2020, the Redemption Receipt was filed in the real
property records of Montgomery County. That same day, Carley went to
the Property and demanded that SI’s agents or employees leave. When
4Under section 34.21(f-1) of the Tax Code, the “assessor-collector
who receives an affidavit and payment . . . shall accept that the assertions set out in the affidavit are true and correct. The assessor-collector receiving the payment shall give the owner a signed receipt witnessed by two persons. The receipt, when recorded, is notice to all persons that the property described has been redeemed.” Id. § 34.21(f-1). We assume this was the purpose of the “Redemption Receipt” that the Tax-Assessor Collector issued here. 5 SI’s agents refused, the police were called, and the officers told Carley
that a judge would be needed to resolve the parties’ dispute.
On December 4, 2020, SI sued Carley seeking a declaration that
Carley’s redemption was a nullity, did not vest title to the Property in
Carley, and it sought to recover its attorney’s fees and costs. In its
petition, SI also claimed that Carley’s “Affidavit of Facts” was defective
because it lacked a jurat, and falsely represented that $101,650 was the
“correct amount” when as of July 2020, Carley knew the amount she owed
to redeem the Property was $133,783.
Carley, appearing pro se, filed an answer and counterclaim.
Responding to SI’s claim that the amount she tendered to redeem the
property was insufficient, Carley alleged that SI was claiming it was
entitled to costs other than those required to secure the Property and
“make it compliant with the applicable codes during the redemption
period[.]”
In October 2021, the trial court conducted a hearing on SI’s motion
for sanctions. 5 Carley didn’t appear for the hearing. Following the
5The motion for sanctions is one of several motions that is not before
us in the clerk’s record. The order the trial court signed granting SI’s Motion for Sanctions is in the clerk’s record. The order reflects that 6 October hearing, the trial court “ORDERED that as a sanction for her
conduct, each pleading that Nannette Carley filed in the above number
and styled cause is struck.” The trial court also ordered Carley to pay
“Montgomery County, Texas the sum of $33,000 within 10 days from the
date this Order is signed by delivering said sum to the Montgomery
County Treasurer[.]” Carley, who is also pro se in her appeal, didn’t
assign error to the trial court’s ruling on SI’s Motion for Sanctions.
In November 2021, the trial court called the case to trial. Carley
failed to appear for the trial. Just two witnesses testified for SI in the
trial, David Saalwaecther and SI’s company attorney, J. Randal Bays.
David testified that SI received a Constables Deed after SI bought the
Property at a tax foreclosure sale, which occurred on December 3, 2019.
David explained that after SI bought the Property, either Carley or
Carley’s attorney contacted him around July 2020 and requested an
accounting for the expenses SI incurred on the Property since it was
purchased. According to David, he provided Carley (or her attorney) with
what he described as the redemption amount for the Property. According
Carley didn’t appear for the hearing on the motion for sanctions even though she had notice of the “date, time, and location of the hearing[.]” 7 to David, Carley’s representation in November 2020 to the Tax Assessor-
Collector that $101,650 was the “correct amount owed for redemption”
was “not correct” for two reasons: first, $101,650 was not the correct
amount; and second, in the months between July and November 2020, SI
had additional costs, which SI claimed it was entitled to recoup from
Carley before she could satisfy the statutory formula by paying what SI
calculated under the statutory formula as the correct amount to the tax
office.
David Saalwaecther identified Exhibit 9 as a summary that SI
maintained in the ordinary course of business of the amounts SI paid for
the Property, for insurance, and to maintain and repair the Property
since December 3, 2019, plus the 25 percent statutory premium on the
aggregate amount. According to David and based on the itemized
summary, as of November 4, 2020, the redemption amount under the
statutory formula when Carley attempted to redeem the Property totaled
$165,462. 6
6The exhibit lists the purchase price of the property, the amounts
spent on maintenance and repairs, and the 25% redemption premium based on the “aggregate total” that a purchaser at a tax sale is authorized to collect when a property’s owner exercises a right of redemption in the first year of the prescribed redemption period. See id. § 34.21(a). 8 For his part, Randal Bays testified the attorney’s fees that his firm
charged SI were reasonable, necessary, and incurred in the firm’s
handling of SI’s suit. Bays explained that he was seeking a judgment of
$17,147 in attorney’s fees through the trial plus an additional award of
$15,000 in attorney’s fees should Carley appeal the judgment to the Court
of Appeals. 7 Itemized billing records were admitted as exhibits to support
Bays’s testimony about the fees his firm charged SI.
When the trial ended, the trial court found in SI’s favor, concluding:
(1) the “Affidavit of Facts,” which Carley provided to the Montgomery
County Tax Assessor-Collector on November 4, 2020, is not an affidavit
that authorized Montgomery County’s Tax Assessor-Collector to issue
the Redemption Receipt for the Property; (2) the Redemption Receipt
issued for the Property is invalid, void, and of no force or effect, so it does
not vest title to the Property in Carley; (3) the money Carley paid to the
Montgomery County Tax Assessor-Collector for taxes, penalties, and
interest on the Property to redeem it from foreclosure was an insufficient
amount for that purpose; and (4) the true and rightful owner of the
7Bays also asked for additional conditional awards of attorney’s fees
if Carley appealed to the Texas Supreme Court. 9 Property is Saalwaechter Inc., the entity that purchased the Property at
the tax-foreclosure sale. Finally, the trial court awarded SI $17,147 in
attorney’s fees, plus additional conditional awards of attorney’s fees,
which were made contingent on Carley exercising her right to appeal.
Carley, who is pro se in her appeal, filed a brief in which she raises
nine issues. Four of Carley’s issues—issues one, five, eight, and nine—
argue the evidence is legally and factually insufficient to support the trial
court’s judgment. In Carley’s second issue, she argues that the party that
buys a property in a tax sale may not file a suit challenging an owner’s
exercise of their right of redemption after the property is redeemed under
the Tax Code, section 34.21. 8 One of Carley’s issues, issue three, contends
the trial court erred in concluding that the “Affidavit of Facts” was not
an affidavit because it doesn’t contain a jurat—the certificate usually
found at the end of an affidavit signifying that the person who signed the
affidavit has sworn to the truth of the facts in the affidavit before an
officer authorized to administer an oath. 9 In Carley’s fourth issue, she
8Id. 9See Tex. Gov’t Code Ann. § 312.011(1) (an affidavit is a “statement
in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified by the officer under his seal of office”). 10 argues that a $100 bond the trial court set when it granted SI’s Motion
for Temporary Injunction was insufficient because the Property was
worth much more. In issue six, Carley argues that because the trial court
lacked jurisdiction over her person and the Property, the trial court erred
when it failed to grant her motion to dismiss. Last, in Carley’s seventh
issue, she claims that the trial court erred by considering photographs of
the Property because she objected to them in the Motion in Limine on the
grounds they were not properly authenticated.
Analysis
Standard of Review
For convenience, we will address Carley’s factual sufficiency issues
before addressing her other issues. We note that even though not
requested, the trial court included several findings of fact and conclusions
of law in its judgment. When parties haven’t requested findings of fact
and conclusions of law, we imply all the necessary findings needed to
support the trial court’s judgment, and we will uphold the judgment on
any legal theory supported by the evidence. 10
10See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
1992). 11 In a case tried to the bench, the trial court acts as the factfinder.11
In that role, the trial court decides what witnesses are credible, weighs
the testimony, and resolves any inconsistencies in the evidence when
reaching its verdict. 12 When reviewing the trial court’s findings for legal
and factual sufficiency, we use the same standards that apply to a case
tried by a jury. 13
In a legal sufficiency review, “the final test for legal sufficiency [is]
whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review.”14 Unlike a factual sufficiency
review, we consider and weigh all the evidence and will set aside a finding
only if the evidence that supports it is so weak that it makes the finding
clearly wrong and unjust. 15 Stated another way, we may not set aside a
finding challenged in an appeal unless the implied findings that support
11McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see
also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 12Id. 13Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City
of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). 14See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). 15Id.
12 the verdict are so contrary to the overwhelming weight of the evidence
that the findings being challenged are clearly wrong and unjust. 16
In this case, the fact issue that Carley disputes is whether the
evidenced supports the trial court’s finding that she failed to tender the
statutorily prescribed amount. Under Texas law, a party’s substantial
compliance with the statutorily prescribed formula for redeeming their
property from a tax foreclosure sale “may satisfy the statute’s
demands.”17 When the dispute is over whether the amount the owner
tendered substantially complied with the statutory formula, the
reviewing court doesn’t “engage in its own factual review, but decides
whether the record supports the trial court’s resolution of factual matters
and defers to the trial court’s factual determinations if it does.” 18 But if
the underlying facts are undisputed, the reviewing court determines
“whether the trial court properly applied the law to the facts in reaching
its legal conclusion.” 19
16See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.
1989); Cain, 709 S.W.2d at 176. 17Sorrell v. Estate of Carlton, 593 S.W.3d 167, 173 (Tex. 2019). 18Id. at 174 (cleaned up). 19Id. (cleaned up).
13 Issues One, Five, Eight, and Nine
A. Does the evidence support the judgment?
Before the trial, the trial court struck all of Carley’s pleadings.
Carley, who was also pro se in the trial, didn’t appear for the trial. On
appeal, Carley hasn’t challenged the trial court’s pretrial ruling striking
her pleadings.
Because the trial court struck Carley’s answer, the factual
allegations in SI’s petition (except as to any unliquidated damages) were
deemed admitted. 20 For that reason, in our review we have taken the
following allegations in SI’s petition as facts that were not disputed:
• Saalwaechter Inc. was the highest bidder for the Property in a court-ordered tax foreclosure sale, which occurred on December 3, 2019;
• On January 27, 2020, by a Constables Deed, Chris Jones, in his capacity as a Montgomery County Constable, conveyed the Property to Saalwaecther Inc.;
• In May 2020, Saalwaechter Inc., acting through its agents or employees, provided Carley a redemption price for the Property within the time required by the Tax Code;
20See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d
177, 183 (Tex. 2012) (noting that “the non-answering party in a no- answer default judgment is said to have admitted both the truth of facts set out in the petition and the defendant’s liability on any cause of action properly alleged by those facts”). 14 • In July 2020, Saalwaecther Inc. sent Carley a redemption amount for the Property after receiving a request from the attorney who represented her at that time.
• On November 4, 2020, Carley tendered $101,650 to the Montgomery County Tax Assessor-Collector and filed an affidavit with that office stating the “purchaser and I do not agree on the amount owed for redemption of said property.”
• Saalwaecther Inc. did not demand that the Tax Assessor- Collector turn over the money that Carley tendered to redeem the Property to it as the purchaser of the Property in the tax sale.
• On December 4, 2020, Saalwaecther Inc. sued Carley in a petition in which it raised three claims: (1) a claim for declaratory judgment; (2) a claim alleging trespass to try title; and (3) an equitable claim seeking to quiet title to the Property.
SI’s petition alleges that on July 1, 2020, SI provided Carley with
the accounting she requested regarding the expenses it had incurred on
the Property and “provided the requested information showing that
Saalwaecther, Inc. had spent $133,782.99 on the Property as of July 1,
2020.” Along with recouping the purchase price, penalties, interest, and
costs that SI included in its figure of $133,783, the statutory formula
allows the purchaser an additional “redemption premium of 25 percent
15 of the aggregate total” if the property’s owner redeems the property
within a year of the date the deed to the property was filed. 21
The trial court found the amount Carley tendered to the tax office—
$101,650—was an “insufficient payment to redeem the Property.” That
said, to determine whether the amount tendered is sufficient, the
payment tendered must be compared to the amount required under the
statutory formula. And under the statutory formula, “[o]nly the amounts
included in the itemization provided to the owner may be allowed for
purposes of redemption.” 22 Here, the parties didn’t request findings, so
the appellate record doesn’t include a finding that identifies the amount
the trial court determined Carley owed after applying the statutory
formula to the evidence admitted in the trial. Nonetheless, we must still
conclude on this record that the trial court did not abuse its discretion
when it concluded that SI established that Carley’s tender of $101,650
wasn’t sufficient to substantially comply with her obligations under the
statutory formula. 23
21Tex. Tax Code Ann. § 34.21(a). 22Id. § 34.21(i). 23Id.
16 As mentioned, the statutory formula doesn’t allow amounts to be
included as “costs for the purposes of redemption” unless they were
included in the itemization. 24 The evidence before the trial court shows
that SI provided Carley with an accounting on July 1, 2020. Therefore,
when the trial court applied the statutory formula, we assume the trial
court didn’t include the amounts that SI included in Exhibit 9 for
expenses that it paid to repair or maintain the Property after July 1,
2020, as those expenses could not have been properly included as “costs”
under the statutory formula based on the evidence presented in the trial.
Yet even when we exclude the items on Exhibit 9 that SI incurred
or paid after July 1, 2020, the trial court could have reasonably found
that the line entry items on SI’s itemization totaled $107,027 when SI
provided Carley with an accounting for its expenses on the Property in
early July 2020. In addition to that amount, the statutory formula allows
SI to collect an additional 25% premium on the “aggregate total,” or in
this case a premium of $26,757 (.25 x $107,027). Thus, when we imply
that the trial court applied the statutory formula to the evidence
presented in the trial, we conclude the evidence shows that Carley’s
24Id.
17 tender represents around 76% of the total sum the statutory formula
demanded that she pay to redeem her Property from the tax-foreclosure
We further conclude that based on Carley’s deemed admissions, the
trial court’s finding that she received an accounting on July 1, 2020, is
supported by the evidence. 25 Therefore, when Carley exercised her right
to redeem the Property in November 2020, she was aware she was
tendering a sum that was just 75% of what SI had incurred on the
Property based on the accounting she received from SI. Based on these
conclusions, we conclude the trial court’s finding that Carley’s tender was
“an insufficient payment” is reasonable. Consequently, we hold the trial
court did not abuse its discretion by concluding that Carley’s tender did
not substantially comply with the statutory formula.
After viewing the evidence in a neutral light, we further conclude
the trial court’s finding that Carley’s payment was insufficient is not so
contrary to the overwhelming weight of the evidence that it is wrong and
unjust. 26 Finally, we cannot say that when the trial court applied the
25See Paradigm Oil, Inc., 372 S.W.3d at 183. 26See Plas-Tex, Inc., 772 S.W.2d at 445; Cain, 709 S.W.2d at 176.
18 statutory formula to the evidence that it erred in properly applying the
law. 27
Issue Two
A. May a purchaser who acquires real property in a tax-foreclosure sale file a suit and challenge the property owner’s exercise of their right of redemption, a right created by section 34.21 of the Tax Code?
According to Carley, the Tax Code doesn’t provide for “setting aside
a tax sale redemption” after the taxing unit issues a signed receipt
acknowledging payment. We disagree.
First, we note that section 34.21(f-1) of the Tax Code requires the
“assessor-collector who receives an affidavit and payment under
Subsection (f) [to] accept that the assertions set out in the affidavit are
true and correct.” 28 Yet the legislature made the right of redemption in
section 34.21 contingent on the owner “paying the required amount as
prescribed by [section 34.21].” 29 At issue here is whether Carley paid the
required amount.
27See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002). 28Tex. Tax Code Ann. § 34.21(f-1). 29Id. § 34.21(f) (emphasis added).
19 Second, the redemption statute shows the legislature contemplated
there could be litigation over whether an owner tendered the required
amount, so within the statute, the legislature chose to relieve tax
assessor-collectors from liability “to any person for performing the
assessor-collector’s duties under this subsection in reliance on the
assertions in an [owner’s] affidavit.” 30 In our opinion, the language of the
statute shows the legislature contemplated litigation could arise between
parties over whether the owner tendered the required amount given the
complexity of the statutory formula and the rules the legislature created
to govern the statute’s application.
Third, nothing in sections 34.21, 34.22, or 34.23 of the Tax Code—
all the sections that address redemption—purport to bar a purchaser
from seeking relief in a court when a property owner fails to pay the
required amount in redeeming their property from a tax sale to defeat the
deed issued to the purchaser following the sale. 31 Thus, in Sorrell v.
Estate of Carlton, the Texas Supreme Court reviewed a judgment in a
case following a bench trial in which the issue was whether the amount
30Id. § 34.21(f-1). 31Id. §§ 34.21-.23.
20 that the owner tendered to the tax assessor-collector was sufficient to
satisfy the statutory formula under the evidence admitted in the trial.32
Nothing in that opinion suggests that a purchaser of real property sold
in a tax-foreclosure sale is barred from filing suit to challenge whether
the property’s owner tendered the required amount under the
legislatively prescribed formula.
Issue Three
A. Does the record support the trial court’s finding that the “Affidavit of Facts Nannette Carley provided to the Montgomery County Tax Assessor-Collector on November 4, 2020, is not an affidavit[?]”
The Government Code defines the term affidavit as “a statement in
writing of a fact or facts signed by the party making it, sworn to before
an officer authorized to administer oaths, and officially certified to by the
officer under his seal of office.” 33 In the trial court, David Saalwaecther
testified that the “Affidavit of Facts” Carley filed with the Tax Assessor-
Collector didn’t include a jurat, but instead contained only a verification
as to the truth of the facts in the document. 34 On appeal, Carley argues
32Sorrell, 593 S.W.3d at 169, 170, 175. 33Tex. Gov’t Code Ann. § 312.011(1). 34The “Affidavit of Facts” that Carley filed makes four positive assertions: (1) “The redemption period for this property has not expired[;]” (2) “I have contacted the purchaser of my home at [the address 21 that the trial court erred in finding that her Affidavit of Facts was
defective because it doesn’t have a proper jurat.
“A jurat is a certification by an authorized officer, stating that the
writing was sworn to before the officer.” 35 “While the Government Code
requires that an affidavit be sworn to, it does not require a jurat or clause
stating that the writing was sworn to before the officer.” 36 Here, except
as to Carley’s statement that the “correct amount owed for redemption of
said property is $101,650,” the remaining facts that Carley included in
her “Affidavit of Facts” were undisputed under the evidence SI presented
in the trial. And, as to whether Carley tendered the “correct amount” as
she claimed, the Tax Code doesn’t require the owner to include a
for the home;]” (3) “The purchaser and I do not agree on the amount owed for redemption of said property[;]” and (4) “The correct amount owed for redemption of the property is $101,650.00.” Items one through three were undisputed at trial and are undisputed in the appeal. The dispute both in the trial court and on appeal is primarily whether the amount Carley tendered to the tax office, $101,650, was the required amount or substantially complied with the required amount under Tax Code, section 34.21(a). See Tex. Tax Code Ann. § 34.21(a). 35Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314,
316 (Tex. 2012). 36Id. (citing Tex. Gov’t Code Ann. § 312.011(1); Perkins v.
Crittenden, 462 S.W.2d 565, 568 (stating that, while the statutory definition of “affidavit” requires that the affidavit be sworn to, it does not require “an authorized officer [to] attest[] to the oath”)). 22 statement about whether the property’s owner is tendering the “correct
amount” or the “required amount” to redeem the property from the
foreclosure sale. 37
The legislature’s decision not to require that an owner of real
property swear that they have tendered the required amount owed on
property sold in a tax foreclosure sale seems reasonable, as the owner
who lost the property through foreclosure isn’t the party that incurred
the costs of repairing or maintaining the property after the foreclosure
occurred. Stated another way, it would be difficult and perhaps in some
cases impossible for the property’s owner to determine if the costs
incurred by the purchaser after the date of foreclosure were incurred,
whether they were necessary, whether they were reasonable, or if they
have been paid.
37Tex. Tax Code Ann. § 34.21(f) (providing the owners affidavit must
state “(1) that the period in which the owner’s right of redemption must be exercised has not expired; and (2) . . . that the owner and the purchaser cannot agree on the amount of redemption money due[.]” Consequently, section 34.21(f) allows an owner to redeem the real property by “paying the required amount as prescribed by this section,” but it doesn’t require the owner to swear that the amount the owner calculated is the correct amount before an officer authorized to administer an oath. 23 Nonetheless, since we have already concluded that the trial court
didn’t abuse its discretion by ruling for SI because Carley failed to tender
the “required payment” under the Redemption Statute, we need not
decide whether the trial court erred when it found that Carley’s Affidavit
of Facts didn’t function as an affidavit because it lacked a proper jurat.38
That’s because even if we decided to resolve issue three in Carley’s favor,
she would not be entitled to a ruling from this Court reversing the trial
court’s judgment in light of our resolution of issues one, five, eight, and
nine. 39
Issue Four
A. Was the temporary injunction bond in an insufficient amount?
In issue four, Carley argues the trial court erred when it ordered SI
to post a $100 temporary injunction bond because the “taking” of her
“property under [SI’s] failed petition warrant[ed] a bond near one million
dollars.” Yet here, as we have explained, the trial court has rendered a
final judgment. The trial court’s judgment didn’t convert the temporary
injunction into a permanent injunction, and the judgment states all
38See id. 39Tex. R. App. P. 47.1 (requiring opinions to address each issue that
is necessary to resolving the appeal). 24 “relief requested by a party to this action that is not expressly given in
this Final Judgment is denied.”
When a trial court renders a final judgment, the appeal addressing
the trial court’s ruling on a temporary injunction “becomes moot.”40 We
are not authorized to issue opinions on matters that are moot. 41
Issue Six
A. Did the trial court possess jurisdiction over Carley and over the Property?
In issue six, Carley argues the trial court lacked jurisdiction over
her and the Property because the trial court never ruled on the pretrial
motions that she filed to dismiss SI’s suit. We disagree.
It is black-letter law that “a district court has subject-matter
jurisdiction to resolve disputes unless the Legislature divests it of that
jurisdiction.”42 “District Court jurisdiction consists of exclusive,
40Isuani v. Manske-Sheffield Radiology Grp., 802 S.W.2d 235, 236
(Tex. 1991). 41See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000) (explaining that because appellate courts do not have jurisdiction to render advisory opinions under article II, section 1 of the Texas Constitution, courts may not issue opinions on matters that have been mooted by the trial court’s rendition of a final judgment); see also Tex. R. App. P. 47.1. 42In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. 2021)
(citing In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004)). 25 appellate, and original jurisdiction of all actions, proceedings, and
remedies, except in cases where exclusive, appellate, or original
jurisdiction may be conferred by this Constitution or other law on some
other court, tribunal, or administrative body.” 43 Thus, we must presume
that the district court possessed the subject-matter jurisdiction it needed
to resolve this claim. 44 This case concerns property rights, and
“[t]ypically, the power to determine controverted rights to property by
means of a binding judgment is vested in the judicial branch.”45
SI’s suit was assigned to the 457th District Court, a court of general
jurisdiction. 46 Thus, the jurisdiction of the 457th District Court included
civil matters “in which the amount in controversy is more than $500,
exclusive of interest.” 47 As a district court, the 457th District Court also
had jurisdiction to “hear and determine any cause that is cognizable by
courts of law or equity and [to] grant any relief that could be granted by
either courts of law or equity.” 48 Consequently, the 457th District Court
43Tex. Const. art. V, § 8. 44Oncor, 630 S.W.3d at 44. 45Barshop v. Medina Cnty. Underground Water Conservation Dist.,
925 S.W.2d 618, 635 (Tex. 1996). 46Tex. Gov’t Code Ann. §§ 24.007, 24,997, 24.6001. 47Id. § 24.007(b). 48Id. § 24.008.
26 had the jurisdiction necessary to sign the judgment at issue in the appeal,
which granted SI’s request to clear the cloud Carley created on the deed
SI acquired in the tax sale under the process the legislature authorized
for a tax sale to occur. 49 Carley’s argument that SI didn’t have standing
to assert a claim to the Property is frivolous when it’s undisputed that SI
holds a Constables Deed to the Property, which was signed and filed of
record in January 2020.
Issue Seven
A. Did the trial court err in admitting photographs of the Property over the objections that Carley raised to their admission in her Motion in Limine?
In Carley’s seventh issue, she complains that she filed a Motion in
Limine that the trial court “disregarded[,]” and allowed SI to introduce
“pictures purporting to show damages to the [P]roperty which were not
authenticated [that] were insufficient to defeat [her] witness’ testimony
[about] the condition of the [P]roperty as well as appellant Carley’s own
pictures revealing the [P]roperty was left in a clean and undamaged
49See Tex. Const. art. V, §§ 1, 8; Tex. Gov’t Code Ann. §§ 24.007,
24.008. 27 condition with appellant Carley competent to authenticate her own
pictures, to wit: Rule 901.”
The record shows that Carley filed her Motion in Limine
approximately two months before the trial. Yet the record doesn’t show
that Carley ever obtained a hearing or a ruling on her motion. And as
mentioned, Carley didn’t attend the trial, so no objections were lodged to
the photographs of the Property when SI’s attorney offered them into
evidence in the trial.
Even if Carley had obtained a hearing and ruling on her motion in
limine, it is well established that rulings on motions in limine are not
sufficient to preserve a party’s claim of error for a later appeal. 50 That’s
because the purpose of “such a motion is to prevent the asking of
prejudicial questions and the making of prejudicial statements in the
presence of the jury without seeking the trial court’s permission.”51 To
preserve a claim for an appeal, a party must bring the claim to the trial
court’s attention through a timely request, objection, or motion, which as
50Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 425 (Tex. 1998); Miranda-Lara v. Rebert, No. 09-18-00325-CV, 2020 Tex. App. LEXIS 7001, at *4 (Tex. App.—Beaumont Aug. 31, 2020, no pet.). 51Wackenhut, 453 S.W.3d at 920 n.3 (cleaned up).
28 to a photograph requires the party to object to the photograph when it is
offered into evidence at trial since that’s when the trial court is in the
best position to rule on the merits of the party’s objection. 52
Conclusion
Because Carley’s issues lack merit, they are overruled. The trial
court’s judgment is,
AFFIRMED.
HOLLIS HORTON Justice
Submitted on August 21, 2023 Opinion Delivered January 18, 2024
Before Horton, Johnson and Wright, JJ.
52See Tex. R. App. P. 33.1 (emphasis added).