Mekhail v. Duncan–Jackson Mortuary, Inc.

• Decision Date: 02 May 2012
• Docket Number: No. 01–11–00485–CV.,01–11–00485–CV.
• Citation: 369 S.W.3d 482
• Parties: Morad MEKHAIL d/b/a Abtrust, Appellant, v. DUNCAN–JACKSON MORTUARY, INC. f/k/a Jackson Mortuary, Inc., Appellee.
• Court: Texas Court of Appeals

369 S.W.3d 482

Morad MEKHAIL d/b/a Abtrust, Appellant,

v.DUNCAN–JACKSON MORTUARY, INC. f/k/a Jackson Mortuary, Inc., Appellee.

No. 01–11–00485–CV.

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

March 1, 2012.

Rehearing Overruled May 2, 2012.

Joseph G. Soliz, The Soliz Law Firm, Joseph H. Pedigo, Houston, TX, for Appellant.

Anthony W. Nims, Linebarger Goggan Blair & Sampson, L.L.P., Richard L. Spencer, Daniel Wilson, Johnson DeLuca Kurisky & Gould, P.C., Houston, TX, for Appellee.

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

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Morad Mekhail d/b/a Abtrust, appeals the trial court's grant of summary judgment in favor of appellee, Duncan–Jackson Mortuary, Inc. f/k/a Jackson Mortuary, Inc., setting aside a tax sale of Duncan–Jackson Mortuary's property. In five issues, Mekhail argues (1) payment of an amount less than the amount of the earlier judgment did not render the tax sale null and void, especially when the payment was not received until after the tax sale; (2) the legal principal of “substantial compliance” does not apply to the relevant statute; (3) Duncan–Jackson Mortuary's payment by e-check was not a sufficient mode of payment; (4) the trial court erred in granting Duncan–Jackson Mortuary's motion for summary judgment; and (5) the trial court erred in denying his motion for summary judgment.

We reverse and remand for rendition of a take-nothing judgment.

Background

At all relevant times prior to February 16, 2010, Duncan–Jackson Mortuary owned the property at issue in this appeal. On February 16, Harris County, on behalf of itself and seven other taxing authorities, obtained a default judgment against Duncan–Jackson Mortuary for delinquent taxes owed on the property. The judgment awarded Harris County $16,961.30 in taxes, penalties and interest, and research fees. The judgment set an interest rate of 1% on the base tax amount starting from February 1, 2010. The record reflects that the amount of interest accrued as of July 2, 2010 was $522.10. The judgment also awarded all court costs ($761.00 as of July 2, 2010), $110 for costs of service of process, and $35 for a Tax Master Fee. As of July 2, the total amount owed under the judgment was $18,389.40.

An order of sale on the property was issued on April 21, 2010. A constable's sale was set for Tuesday, July 6, 2010. Duncan–Jackson Mortuary was notified of the final judgment approximately four and one-half months prior to the sale and received notice of the date of the sale approximately 25 days prior to the sale.

On Friday, July 2, 2010, Duncan–Jackson Mortuary submitted an electronic payment to the Harris County Tax Assessor–Collector through its website. It paid $17,483.40, based on the Delinquent Property Tax Statement for the property. The statement showed the total amount, if paid in July 2010, to be $17,483.40. This is equal to the amount of the taxes, penalties, and interest plus the interest on the taxes reflected in the judgment. This amount does not include the court costs, service of process fee, and Tax Master Fee that were also included in the judgment.

The parties dispute when the payment was actually received by Harris County. Regardless, the tax sale proceeded on July 6. Mekhail was the highest bidder for the property and received a constable's deed for the property.

On August 5, 2010, Duncan–Jackson Mortuary initiated the underlying lawsuit, arguing that the tax sale should be set aside based on its July 2 payment. Mekhail answered. Harris County answered, but did not otherwise participate in the litigation.

Ultimately, Duncan–Jackson Mortuary and Mekhail filed competing motions for summary judgment arguing whether the evidence established as a matter of law that the tax sale could be set aside. The trial court ultimately found in favor of Duncan–Jackson Mortuary and set aside the tax sale. Mekhail brought this appeal.

Setting Aside Tax Sale

In his first issue, Mekhail argues the trial court erred by setting aside the tax sale because Duncan–Jackson Mortuary did not pay the full amount of the judgment and did not pay it before the date of the tax sale.

A. Standard of Review

We review a trial court's granting of a summary judgments de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Summary judgment is properly granted only when a movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). As must the trial court, we must 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. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm if any of the summary judgment grounds is meritorious. Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

When, as here, both parties file motions for summary judgment and the trial court grants one motion and denies the other, we determine all presented questions and may render a different judgment if appropriate. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005); CU Lloyd's v. Feldman, 977 S.W.2d 568, 569 (Tex.1998). Each party must carry its own burden, both as movant and in response to the other party's motion, as nonmovant. State v. Japage P'ship, 80 S.W.3d 618, 620 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (citing CU Lloyd's, 977 S.W.2d at 569).

B. Analysis

Section 34.08 of the Texas Tax Code allows a party to file an action challenging the validity of a tax sale. Tex. Tax Code Ann. § 34.08 (Vernon 2008). Duncan–Jackson Mortuary brought its action to set aside the tax sale, arguing that its payment to Harris County on July 2 rendered the tax sale on July 6 invalid based on section 33.53 of the Tax Code. SeeTex. Tax Code Ann. § 33.53 (Vernon 2008).

Duncan–Jackson Mortuary's and Mekhail's motions for summary judgment argue two sides of the same issue: whether, under authority of section 33.53, Duncan–Jackson Mortuary was entitled to have the tax sale set aside. Under subsection (e) of the section 33.53,

(e) If the owner pays the amount of the judgment before the property is sold, the taxing unit shall:

(1) release the tax lien held by the taxing unit on the property; and

(2) file for record with the clerk of the court in which the judgment was rendered a release of the lien.

Id. § 33.53(e).

Duncan–Jackson Mortuary acknowledges that it did not pay the full amount of the judgment ($18,389.40) prior to the tax sale. Strictly speaking, then, it has not satisfied the requirement of subsection (e). Duncan–Jackson Mortuary argues it should nevertheless be entitled to set aside the tax sale based on either of two legal principles: (1) de minimis non curat lex and (2) substantial compliance.

Neither of these legal principles has been previously applied to section 33.53. We must determine, then, whether either of these principles applies.

1. De Minimis Non Curat Lex

De minimis non curat lex is an infrequently used legal theory that “the law does not care for, or take notice of, very small or trifling matters.” Green v. Parrack, 974 S.W.2d 200, 206 (Tex.App.-San Antonio 1998, no pet.). The principle applies to very small amounts of money. See Phillips v. Parrish, 814 S.W.2d 501, 506 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (holding five dollar calculation error is de minimis ); Jones–Holt Enters., Inc. v. Hips, 643 S.W.2d 773, 776 (Tex.App.-San Antonio 1982, no writ) (holding four dollar loss is de minimis ); Thornhill v. Sharpstown Dodge Sales, Inc., 546 S.W.2d 151, 153 (Tex.Civ.App.-Beaumont 1976, no writ) (holding 42 cent overcharge is de minimis ). The principle does not apply, however, just because the number complained of is small. Green, 974 S.W.2d at 206 (holding 21 inch encroachment on property that is sixty-seven feet wide is not de minimis ). The law is invoked to excuse negligible deviations from the letter of the law. Id.

Here, while Duncan–Jackson Mortuary paid the taxes, penalties, and interest plus the interest on the taxes reflected in the judgment, it did not pay the court costs, service of process fee, and Tax Master Fee that were also included in the judgment. The unpaid amount, as of July 2, was $906. We hold that this is not a de minimis amount.

2. Substantial Compliance

“ ‘Substantial compliance’ means one has performed the ‘essential requirements' of a statute. The term has been applied to excuse deviations from a statutory requirement if such deviations do not seriously hinder the legislature's purpose in imposing the requirement.” J.C. Evans Constr. Co., Inc. v. Travis Cent. Appraisal Dist., 4 S.W.3d 447, 451 (Tex.App.-Austin 1999, no pet.) (citing Mo. Pac. R.R. Co. v. Dallas Cnty. Appraisal Dist., 732 S.W.2d 717, 721 (Tex.App.-Dallas 1987, no writ)). Substantial compliance is “determined on a case by case basis, depending in part on the size of the amount paid timely, the size of the amount left unpaid by the [deadline], and the promptness of the late payment.” Harris Cnty. Appraisal Dist. v. Dipaola Realty Assocs., 841 S.W.2d 487, 490 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

The principle of substantial compliance has been applied to two statutes in the Tax Code: sections 34.21 and 42.08. SeeTex. Tax Code Ann. §§ 34.21, 42.08 (Vernon Supp.2011); see, e.g., Page v. Burk, 582 S.W.2d 512, 514 (Tex.Civ.App.-Dallas 1979, no writ) (applying substantial compliance to section 34.21); J.C. Evans Constr., 4 S.W.3d at 451 (applying substantial compliance to section 42.08). Neither of these applications of the substantial compliance doctrine persuades us to apply that doctrine to section 33.53(e).

Chapter 42 of the Tax Code generally concerns appeals by property owners of the values imposed on property by various...