Charles Kirkwood v. Jefferson County, Texas and W. Properties, LLC
09-16-00337-CV
| Tex. App. | Sep 28, 2017Background
- Jefferson County obtained a default judgment against prior owner Sara Gleason in a 2010 tax-collection suit; no abstract of judgment was shown recorded.
- Gleason deeded the property to Charles Kirkwood in August 2010; deed noted grantee responsible for delinquent taxes.
- In March 2013 the County posted the property for sheriff’s sale; W. Properties, LLC purchased it at the tax sale; W. Properties later sought possession.
- Kirkwood sued by bill of review claiming he never received actual notice of the County’s intended tax sale; trial court denied relief, later granted a new trial, then dismissed for lack of standing/jurisdiction; this Court reversed that dismissal and remanded.
- After remand the County moved for traditional summary judgment asserting Kirkwood had actual notice; the trial court granted summary judgment on notice (after reconsideration) and dismissed Kirkwood’s suit; Kirkwood appealed.
- The County’s summary-judgment proof included mailings to Gleason, published and posted notices, a mailing addressed to “Occupant,” and county employees’ testimony they discussed the sale with Kirkwood; Kirkwood testified under oath he never received actual notice despite making tax payments and the County’s knowledge he was the owner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on actual notice was proper | Kirkwood: sworn testimony he never received actual notice creates fact issue | County: evidence of mailings, publications, and employee testimony proves actual notice; Kirkwood an interested witness whose testimony is insufficient | Reversed — genuine fact issue exists; summary judgment improper |
| Whether interested-witness testimony can defeat summary judgment | Kirkwood: his testimony, though interested, is competent to create fact issue | County: his testimony is not sufficiently credible/contradiction-free to defeat summary judgment | Court: interested witness testimony may defeat summary judgment; do not require same strictness to defeat motion |
| Standard of appellate review of summary judgment | Kirkwood: de novo review; conflicts must be resolved for non-movant | County: urged deference/abuse-of-discretion standard or sufficiency of some evidence | Court: review is de novo; moving party must negate all genuine issues of material fact |
| Whether Rule 44.1 prevents reversal | Kirkwood: error was prejudicial and rendered improper judgment | County: Rule 44.1 limits reversal absent probable harm | Court: Rule 44.1 not a bar because reversal is based on finding of improper judgment |
Key Cases Cited
- Buck v. Palmer, 381 S.W.3d 525 (Tex. 2012) (summary-judgment standard and de novo review)
- Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991) (moving party’s burden on summary judgment)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (view evidence in light most favorable to nonmovant)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (every reasonable inference in favor of nonmovant)
- Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965) (consider only uncontroverted evidence supporting movant)