Nichols v. Lincoln Trust Co. ex rel. Stern

8 S.W.3d 346, 1999 Tex. App. LEXIS 8467, 1999 WL 1023582
CourtCourt of Appeals of Texas
DecidedNovember 10, 1999
DocketNo. 07-99-0290-CV
StatusPublished
Cited by7 cases

This text of 8 S.W.3d 346 (Nichols v. Lincoln Trust Co. ex rel. Stern) 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.

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Nichols v. Lincoln Trust Co. ex rel. Stern, 8 S.W.3d 346, 1999 Tex. App. LEXIS 8467, 1999 WL 1023582 (Tex. Ct. App. 1999).

Opinion

JOHN T. BOYD, Chief Justice.

Presenting one issue which, he says, demonstrates the trial court erred in [347]*347granting a summary judgment in favor of appellee Lincoln Trust Company, Custodian for the benefit of Thomas Stern [Lincoln Trust], appellant Rayford Nichols, Jr. [Nichols] seeks reversal of that judgment. In the judgment, the trial court quieted title in Lincoln Trust with regard to property formerly ovraed by Nichols, which had undergone a tax foreclosure. In his issue, Nichols argues the trial court erred in denying him the two-year right of redemption granted by section 34.21 of the Texas Tax Code on residence homesteads. Agreeing, we reverse the judgment of the trial court.

A review of the factual history of this matter will be helpful to our discussion of the question before us. In 1992 or 1993, Nichols bought, among others, two pieces of property located in Lubbock County. The street addresses of those tracts are 1) 1521 E. Broadway, and 2) 1517 E. Broadway [the properties].1 In compliance with a 72nd District Court order, the Lubbock County Sheriff offered the properties for sale on March 3, 1998, but because he did not receive any bid equal to their adjudged value, pursuant to proper statutory procedures, the properties were “struck off’ to the Lubbock Central Appraisal District. The district recorded its deeds on March 11,1998.

Subsequently, on April 20, 1998, the properties were conveyed to Lincoln Trust. At the time they were conveyed to Lincoln Trust, the properties, and other properties not involved in this suit, were the subject ' of certain orders issued by the Structural Standards Commission of the City of Lubbock [the orders] dated June 18, 1996, and filed in the deed records of Lubbock County on July 11,1996. Having found that the structures located on the properties were “dilapidated, substandard, unfit for human habitation, and a hazard to the public health, safety and welfare,” those orders required that all structures on the properties be repaired, demolished or removed at least 5,000 feet outside the city limits, and the property be completely cleaned. On July 17,1996, Nichols filed suit in Lubbock County District Court against the City of Lubbock appealing these orders. His original petition was couched in general terms and claimed the properties were not in the condition alleged by the city, and he sought reversal of the orders and a “reasonable time to repair any alleged deficiencies in the properties in question.” In that pleading, he made no reference as to whether or not he was claiming any of the properties as his homestead.

On December 18, 1998, Nichols filed an application in the suit seeking a temporary injunction and temporary restraining order. As a basis for seeking that relief, he alleged that on November 20, 1998, the properties in question had been sold to Lincoln Trust through an involuntary tax sale, but that under Article 8, § 13 of the Texas Constitution and section 34.21 of the Texas Tax Code 2 [the Code], he was entitled to a right to redeem the property. He further alleged that he “has taken steps to acquire the necessary financing and fully intends to redeem the property ... prior to the deadline for redemption.” He also averred that if the injunctive relief was not granted, his “home will likely be demolished before the present case proceeds to final adjudication.”

Because Nichols’s claim of a right of redemption clouded its title, on January 28, 1999, Lincoln Trust filed an intervention in the pending suit asking for a judgment quieting its title against any right of redemption by Nichols. By the summary judgment which is the subject of this appeal, the trial court quieted title to the properties in Lincoln Trust, found that [348]*348Nichols’s right of redemption had expired, and assessed attorney’s fees and expenses in the amount of $1,583.97 against Nichols. Hence, this appeal.

In challenging the summary judgment, Nichols contends the properties were his homestead and, by virtue of section 34.21(a), he is entitled to a two-year redemption period which would not expire until April 20, 2000, two years from the date the deed to Lincoln Trust was filed of record.3 Lincoln Trust counters that because Nichols had not formally designated the property as his homestead as required by statute, he is not entitled to the two-year homestead redemption period. Rather, he is only entitled to the six-month redemption period for non-homestead property prescribed in section 34.21(b) of the Code and, because it was uncontrovert-ed that the six-month period had elapsed, Lincoln Trust concludes that it was entitled to the summary judgment.

Thus, the question which we must determine is which of the subsections of 34.21 are applicable here. A corollary to that question is whether an individual must file a formal application seeking a homestead tax exemption in order to be entitled to the two-year redemption period.

Because the properties were first “struck off” to the appraisal district and then sold to Lincoln Trust, if the properties were homestead, subsection (c) is applicable. In pertinent part, that subsection reads:

(c) If real property that was the owner’s residence homestead ... when the suit to collect the tax was filed has been resold by the taxing unit under Section 34.05, the owner of the property having a right of redemption may redeem the property within two years after the date on which the taxing unit files for record the deed from the sheriff or constable.... (Emphasis added).

Tex. Tax Code Ann. § 34.21(c) (Vernon Supp.1999). Section 34.21(g) provides that the term “residence homestead” has the meaning assigned by Section 11.13. Tex. Tax Code Ann. § 34.21(g) (Vernon Supp. 1999).

The dispute here arises from the meaning of “residence homestead” as used in section 34.21(c). “Residence homestead” is defined in section 11.13(j)(l) of the Code as:

a structure (including a mobile home) or a separately secured and occupied portion of a structure (together with the land, not to exceed 20 acres, and improvements used in the residential occupancy of the structure, if the structure and the land and improvements have identical ownership) that:
(A) is owned by one or more individuals, either directly or through a beneficial interest in a qualifying trust;
(B) is designed or adapted for human residence;
(C) is used as a residence; and
(D) is occupied as his principal residence by an owner or, for property owned through a beneficial interest in a qualifying trust, by a trustor of the trust who qualifies for the exemption. (Emphasis added).

Tex. Tax Code Ann. § 11.13(j)(l) (Vernon Supp.1999).

In pertinent part, section 11.43(a) of the Code provides:

(a) To receive an exemption, a person claiming the exemption, other than an exemption authorized by (other sections not relevant here), must apply for the exemption.

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8 S.W.3d 346, 1999 Tex. App. LEXIS 8467, 1999 WL 1023582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-lincoln-trust-co-ex-rel-stern-texapp-1999.