McCoy v. Rogers

• Decision Date: 31 May 2007
• Docket Number: No. 01-06-00240-CV.,01-06-00240-CV.
• Citation: 240 S.W.3d 267
• Parties: Mark McCOY, Appellant, v. Renee ROGERS and Timothy Rogers, Appellees.
• Court: Texas Court of Appeals

240 S.W.3d 267

Mark McCOY, Appellant, v. Renee ROGERS and Timothy Rogers, Appellees.

No. 01-06-00240-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 31, 2007.

Timothy A. Hootman, Houston, TX, for Appellant.

Allan D. Goldstein, Morris, Lendais, Hollrah & Snowden, P.C., Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.

OPINION

SHERRY RADACK, Chief Justice.

Appellant, Mark McCoy, filed this action to set aside a deed conveyed pursuant to an execution sale of real property that he previously owned. McCoy brings this appeal to challenge the summary judgment rendered in favor of appellees, Renee Rogers and Timothy Rogers, who purchased the property at the sale. McCoy presents a broad issue contending that the trial court erred by rendering summary judgment.¹ In two additional issues, McCoy contends that the sheriff's execution sale should be set aside (1) because of lack of compliance with the notice provisions of rules 637 and 647 of the Rules of Civil Procedure, (2) because he was not notified of the sale at his home address, and (3) because the Rogerses purchased the property at half its fair market value. We affirm.

Facts and Procedural Background

This dispute concerns property, a house, located at 1736 Crownover in the Spring Branch Oaks subdivision in Houston (the property). McCoy owned the property before the sheriff's sale challenged here; the Rogerses owned the property adjacent to McCoy's. Neither party used the respective properties as a primary residence. The Rogerses had previously sued McCoy for maintaining a nuisance on his property, which the City of Houston had boarded up and declared dangerous. As a result of that action, Cause No.2002-60912, Tim Rogers and Renee Rogers v. Mark Alan McCoy (the underlying case), the parties executed and endorsed an agreed final judgment, which the trial court signed on December 16, 2003.

The agreed judgment awarded the Rogerses $25,000, plus $6,000 in attorney's fees, but recites that the Rogerses would forbear execution until February 14, 2004 to enable McCoy to perform needed repairs and improvements to the property and thus reduce the $25,000 indebtedness. To that end, the agreed judgment provided that if McCoy made the repairs and improvements specified in the judgment by February 14, 2004, he would receive a specified credit for those repairs, against the $25,000 judgment amount. If McCoy completed all the repairs, he would receive an additional credit of $1,500.² But, the agreed judgment also provided that if McCoy did not complete the specified repairs by February 14, 2004, the Rogerses

without further Court Order or notice to [McCoy] shall be entitled to (i) seek to have issued a writ of execution; (ii) such other and further remedies as allowed by law to enforce and collect such judgment in favor of [the Rogerses].

In addition to the credits stipulated for repairs and improvements, the agreed judgment recites that the Rogerses would provide McCoy an additional $0.50 credit for every $1.00 that the Rogerses received "upon the sale [of their adjacent property] . . . that is above $120,000; provided, however, that once the [agreed judgment] has been reduced to $6,000 by either payments and/or credits, [McCoy would] not be entitled to any additional credits."

The summary judgment evidence shows that the Rogerses met at the property with McCoy and a representative of the civic association for the Spring Branch Oaks subdivision on February 16, 2004, two days after the compliance date stated in the agreed judgment. The Rogerses' counsel in the underlying case was also present. As a result of the meeting, it was determined that the repairs and improvements specified in the agreed judgment had not been made. The Rogerses requested a writ of execution on the following day, and they filed an abstract of the underlying judgment on March 2, 2004.³

The writ of execution issued on April 1, 2004. The office of Harris County Constable Glen Cheek published notice in the Daily Court Review newspaper and notified all parties by certified mail that execution sale of the property would take place on June 1, 2004. See TEX.R. CIV. P. 647. The summary judgment record includes a copy of a postal notice, dated May 7, 2004 and delivered to McCoy at the property address, reporting an attempted delivery of a certified letter from Constable Cheek on May 7, 2004, which was available for pick-up after May 8, 2004.⁴ At the sheriff's sale on June 1, 2004, the Rogerses purchased the property for $28,000 and subsequently obtained a deed reflecting their ownership.

On December 29, 2004, McCoy filed this action to set aside the sale and the deed and sought injunctive and declaratory relief. McCoy's live pleadings deny defaulting on the repairs and improvements required by the agreed judgment. Despite the express terms of the agreed judgment, which set the deadline date for completing all repairs and improvements at February 14, 2004 and authorized the Rogerses to seek execution without "further Court Order or notice to [McCoy]," McCoy also claimed that he was "entitled to notice" of the sale, that he had no knowledge of the sale until August 2004, and that irregularities in the sale amounted to wrongful execution that warranted setting aside the sale and resulting deed to the Rogerses.

The Rogerses filed a motion for traditional summary judgment and supplemented their motion three times after McCoy amended his pleadings. They also filed a no-evidence motion for summary judgment after McCoy amended his pleading to allege that the Rogerses' conduct constituted fraud calculated to ensure that he not receive notice of the execution sale. The record before us does not contain a response by McCoy to the no-evidence motion. After conducting an oral hearing to consider the parties' arguments, the trial court rendered summary judgment for the Rogerses. A final judgment was rendered in their favor after resolving their claims for attorney's fees. McCoy filed a motion for new trial, which the trial court denied by written order.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In conducting our review, we indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Id. A defendant who moves for traditional summary judgment on the plaintiff's claims must conclusively disprove at least one element of each of the plaintiff's causes of action. Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004).

Rule 166a also authorizes summary judgment on no-evidence grounds. TEX.R. CIV. P. 166a(i). A trial court must grant a no-evidence motion for summary judgment if (1) the moving party's motion asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the adverse party produces no summary judgment evidence that raises a genuine issue of material fact on those elements. See id.; Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); see also Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.) ("Thus, a no-evidence summary judgment is similar to a directed verdict."). Once the movant specifies the element or elements on which there is no evidence, the burden shifts to the non-movant, who would have the burden of proof on those elements at trial, to produce evidence that raises a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i); Flameout Design, 994 S.W.2d at 834.

In reviewing a no-evidence summary judgment, we continue to apply the well-settled standards by which we assume all evidence favorable to the non-movant is true, and we indulge every reasonable inference and resolve all doubts in favor of the non-movant. See TEX.R. CIV. P. 166a(i) and cmt. to 1997 change; Sudan, 199 S.W.3d at 292 (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005)); Flameout Design, 994 S.W.2d at 834.

When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.-Houston [1st Dist.] 2002, no pet.). If summary judgment may have been rendered, properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Ellis, 68 S.W.3d at 898; see Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex.1990) (proscribing reversal of summary judgment without properly assigned error).

We will affirm the judgment if any one of the theories advanced in the motion is meritorious and defeats a cause of action. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004). We will not consider a ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. See TEX.R. CIV. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer[,] or other response shall not be considered on appeal as grounds for reversal."); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979).

A. No-Evidence Summary Judgment

As required by rule 166a(i), the Rogerses' motion seeking summary judgment on McCoy's fraud claims listed each of the elements that McCoy would have to prove in order to prevail at trial on his claim that they fraudulently contrived to ensure that he was provided notice of the execution sale at the property, rather than at his residence. See TEX.R. CIV. P. 166a(i). The Rogerses argued that no evidence existed on which McCoy could rely to prove any element of...