Opinion issued August 3, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00762-CV
TRUST INVESTMENT GROUP MORTGAGE DIVISION, INC., Appellant
V.
ALIEF INDEPENDENT SCHOOL DISTRICT; FIRST CAPITAL INTEREST, L.L.C.; TRUST INVESTMENT GROUP, S.A.; ANGELES GONZALEZ, Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2003-06046
MEMORANDUM OPINION ON REHEARING
We issued our opinion in this cause on January 12, 2006. Appellant has moved for rehearing. We deny appellant’s rehearing motion. However, we withdraw our opinion and judgment dated January 12, 2006 and issue this opinion and judgment in their place. Our ultimate disposition of the trial court’s judgment remains unchanged.
This is an appeal from a summary judgment rendered in favor of appellees, Alief Independent School District (“Alief”), First Capital Interest, L.L.C. (“First Capital”), Trust Investment Group, S.A. (“Trust S.A.”) and Angeles Gonzalez. Appellants, Trust Investment Group Mortgage Division, Inc. (“Trust Mortgage”), filed a trespass to try title action asserting ownership to a piece of property sold as the result of a previous tax foreclosure suit. Trust S.A. filed a no-evidence motion for summary judgment, and Gonzalez filed a traditional motion for summary judgment. Each asserted that Trust Mortgage was collaterally estopped from relitigating the ownership of the property and that the statute of limitations bars Trust Mortgage from challenging the validity of the tax sale. The trial court granted both summary judgment motions. We affirm.
PREVIOUS TAX FORECLOSURE SUIT
On April 18, 1998, Sam Hoang Nguyen sold and conveyed by warranty deed to “Trust Investment Group, Inc.” property located on Rolke Road in Harris County, Texas (“Rolke Road property”). In February 2001, Alief and other taxing authorities brought suit to recover delinquent taxes levied against the Rolke Road property. Alief served process on Trust S.A., a foreign corporation. Trust S.A. defaulted, and the trial court entered a default judgment directing foreclosure of the property to pay the delinquent taxes. At the foreclosure sale, First Capital purchased the property for $35,000.00, and the deed was executed and filed of record on November 29, 2001. After the delinquent taxes were paid, the excess sale proceeds were placed in the registry of the court.
In May 2002, Trust S.A. exercised its redemption rights and redeemed the property from First Capital. Having exercised its right of redemption, Trust S.A. filed a motion in September 2002 to recover the excess sale proceeds from the foreclosure sale. Before the trial court ruled on this motion, Trust S.A. sold the Rolke Road property to appellee Angeles Gonzalez on November 10, 2002. On November 15, 2002, counsel for Trust Mortgage filed a notice of rehearing to determine the entitlement to the excess sale proceeds, and on June 25, 2003, the trial court determined the excess sale proceeds should be distributed to Trust S.A.
TRESPASS TO TRY TITLE SUIT
Before the trial court in the tax foreclosure suit ordered the proceeds to be paid to Trust S.A., Trust Mortgage filed this trespass to title action on February 5, 2003, in the same court with a different cause number. In 2004, after the trial court in the tax foreclosure suit ordered the proceeds to be paid to Trust S.A., Trust S.A. and Gonzalez filed their motions for summary judgment asserting that Trust Mortgage is estopped from relitigating the issue of ownership of the property and that Trust Mortgage is barred by the statute of limitations found within Section 33.54 of the Tax Code. In June 2004, the trial court signed an order granting each motion.
On appeal, Trust Mortgage claims ownership of the Rolke Road property. Trust Mortgage contends that Nguyen incorrectly inserted “Trust Investment Group, Inc.” as the grantee of the 1998 warranty deed instead of “Trust Investment Group Mortgage Division, Inc.” Trust Mortgage asserts that, because it is the true owner and was not served with process, the constable’s deed from the tax foreclosure suit is void. It also asserts that the statute of limitations does not apply in this case, and that the trial court erred in striking Trust Mortgage’s summary judgment evidence. Trust Mortgage, however, does not address Trust S.A.’s and Gonzalez’s collateral estoppel argument.
SUMMARY JUDGMENT
When there are multiple grounds for summary judgment, and the order does not specify the ground on which the summary judgment was rendered, the appealing party must negate all grounds on appeal. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)). If summary judgment may have been rendered, properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Id.
Gonzalez’s Motion for Summary Judgment
Gonzalez filed a traditional motion for summary judgment and raised collateral estoppel as one ground for summary judgment. The trial court’s order did not specify the particular grounds on which the summary judgment was rendered; thus, Trust Mortgage must defeat all grounds asserted in Gonzalez’s motion. See id. On appeal, Trust Mortgage has not challenged all summary judgment grounds, specifically collateral estoppel. Nor has Trust Mortgage asserted a general point of error that the trial court erred in rendering summary judgment against it. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). The trial court may have granted summary judgment on collateral estoppel grounds, and Trust Mortgage did not challenge those grounds on appeal. We affirm the trial court’s summary judgment granted in favor of Gonzalez. See Ellis, 68 S.W.3d at 898; Bynum v. Prudential Residential Servs., Ltd. P’ship, 129 S.W.3d 781, 795 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Trust S.A.’s Motion for Summary Judgment
Trust S.A. filed a no-evidence motion for summary judgment and raised collateral estoppel as a summary judgment ground. Collateral estoppel is an affirmative defense, and parties may not seek a no-evidence summary judgment based on an affirmative defense. Tex. R. Civ. P. 94; Adams v. First Nat’l Bank, 154 S.W.3d 859, 876 (Tex. App.—Dallas 2005, no pet.) (citing Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.)). On appeal, Trust Mortgage does not challenge all summary judgment grounds, specifically collateral estoppel. Nor does Trust Mortgage complain generally that the trial court erred in granting the summary judgment. See Malooly Bros., Inc., 461 S.W.2d at 121. Because the trial court may have improperly granted Trust S.A.’s no-evidence motion on collateral estoppel grounds and Trust Mortgage does not challenge those grounds, we affirm the trial court’s granting of Trust S.A.’s no-evidence summary judgment. See Ellis, 68 S.W.3d at 898; Bynum, 129 S.W.3d at 795.
CONCLUSION
Accordingly, we affirm the summary judgments granted in favor of Trust S.A. and Gonzalez.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.