Roy Day Jr. v. Knox County Appraisal District

• Court: Court of Appeals of Texas
• Decided: March 30, 2006
• Docket: 11-04-00269-CV
• Status: Published

Opinion

Opinion filed March 30, 2006

Opinion filed March 30, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-04-00269-CV

                                                    __________

                                          ROY DAY JR., Appellant

                                                             V.

               KNOX COUNTY APPRAISAL DISTRICT ET AL, Appellees

                                          On Appeal from the 50th District Court

                                                           Knox County, Texas

                                                     Trial Court Cause No. 8739

                                               M E M O R A N D U M  O P I N I O N

Roy Day Jr. filed suit to set aside a tax sale of property pursuant to a judgment for delinquent ad valorem taxes.  The trial court granted appellees= motions for summary judgment and dismissed appellant=s claims.^[1]  We affirm.

                                                               Background Facts

A judgment was entered against appellant for delinquent taxes due on three pieces of property in Knox County.  The trial court ordered the sale of these properties in October 2001.  Bobby Day purchased all three properties at public auction.  Sheriff=s deeds were recorded on November 6, 2001, and January 15, 2002.  Appellant then filed this suit to set aside the tax sale.

                                                                         Issues

Appellant challenges the trial court=s judgment with four issues.  Appellant alleges that the trial court erred because it did not consider his request for a tax abatement, did not consider that one of the three properties was a homestead, allowed Bobby Day to refuse his request for redemption, and denied him a jury trial.

            Did The Trial Court Correctly Grant Appellees= Motions For Summary Judgment?

The underlying judgment was entered in 1999.^[2]  Appellant=s properties were sold, and sheriff=s deeds were recorded on November 6, 2001, and January 15, 2002.  Appellant contends that approximately four months later he filed an application for property tax abatement exemption with the Knox County Appraisal District and provided a copy of his application to the trial court in this cause.  No application was included in the appellate record.  We will, however, exercise our discretion and assume that an application was filed in 2002.

Appellant argues that he is entitled to a tax abatement pursuant to Tex. Tax Code Ann. ' 33.06(a) (Vernon Supp. 2005) because he is 65 years of age or older.  This statute allows certain individuals to Adefer collection of a tax, abate a suit to collect a delinquent tax.@   Section 33.06(a), however, has no application to this suit because it is not a suit to collect a delinquent tax.  Furthermore, appellant=s attempted use of a 2002 abatement application is an impermissible collateral attack on the 1999 judgment because it is an attempt to establish that he did not owe any tax in 1999.  See Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167 (Tex. Civ. App.CAustin 1975, writ ref=d n.r.e.)(a collateral attack on a judgment is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose).  Appellant=s first issue is overruled.

Appellant asserts in his second issue that the trial court erred because one of the three properties is his homestead.  Appellant contends that it is, therefore, tax exempt pursuant to Tex. Tax Code Ann. ' 11.43 (Vernon Supp. 2005).  This is also an improper attempt to collaterally attack the 1999 judgment because it challenges his prior tax liability.  Appellant=s second issue is overruled.

Appellant contends that he was entitled to redeem his properties but that the purchaser, Bobby Day, wrongfully refused his offer of redemption.  The undisputed evidence establishes that sheriff=s deeds transferring the three tracts to Bobby Day were recorded on November 6, 2001, and January 15, 2002.  Appellant sent Bobby Day a letter dated November 24, 2003, requesting the opportunity to redeem the properties.

The Tax Code provides a two-year redemption period for the owners of residential homestead and agricultural use land which is sold at a tax sale.  Tex. Tax Code Ann. ' 34.21(a) (Vernon Supp. 2005).  The statute includes a formula for calculating the redemption price and requires an unconditional tender.  See Reynolds v. Batchelor, 216 S.W.2d 663, 666 (Tex. Civ. App.CFort Worth 1948, writ ref=d n.r.e.).  Even assuming appellant=s property qualified, his letter was insufficient as a matter of law because it was mailed more than two years after two of the sheriff=s deeds were recorded and because it was not an unconditional tender of the amount owed.  Appellant=s third issue is overruled.

Appellant contends in his fourth issue that the trial court erred by granting appellees= summary judgment motions and thereby depriving him of a jury trial because there was collusion and conspiracy between the taxing unit and Bobby Day.  Appellant appears to allege that summary judgment was improper because there were material questions of fact on his causes of action.  Appellant, however, directs this court to no evidence creating a question of fact.  Pleadings do not constitute summary judgment proof.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Consequently, appellant=s allegations, without evidence, are insufficient to overcome a no-evidence motion for summary judgment.  Tex. R. Civ. P. 166a(i).  Appellant=s fourth issue is overruled. 

                                                         Conclusion

Appellant has identified no error by the trial court.  The trial court=s judgment is affirmed.

PER CURIAM

March 30, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

---

     ^[1]Appellees consist of Knox County Appraisal District; Stanton Brown, individually and as former Chief Appraiser of the Knox County Appraisal District; Dean Homstad, individually and as Sheriff of Knox County; and Bobby Day.

     ^[2]Appellant appealed that judgment to this court.  We affirmed.  Day v. Knox County Appraisal Dist., No. 11-00-00073-CV, 2000 WL 34234266 (Tex. App.CEastland Aug. 31, 2000, no pet.)(not designated for publication).