COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00178-CV
WALLY YAMMINE DBA BW APPELLANT
CONSTRUCTION
V.
WISE COUNTY AND BRIDGEPORT APPELLEES
ISD
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
The underlying case centers on property described in a sheriff’s tax deed
that was purchased at an allegedly void tax sale. Appellant Wally Yammine dba
BW Construction, appearing pro se, appeals the summary judgment granted in
favor of Appellees Wise County and Bridgeport ISD. Because Yammine no
1
See Tex. R. App. P. 47.4.
longer owned the property in question at the time he filed suit and therefore
lacked standing to pursue the relief set forth in the tax code, we will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Yammine purchased real property at a sheriff’s sale and received a
sheriff’s tax deed covering “150.31 acres of land, more or less.” A survey of the
property later revealed that the property was 21.3 acres short of the 150.3 acres
that Yammine had purportedly purchased. Yammine sold the “150.31 acres of
land, more or less” to Hy Capital, LLC. Six months later, Yammine filed suit
against Appellees for a “defect of acreage,” requesting that the additional
acreage be added, that Wise County pay the costs of the survey, and that he be
awarded damages for the taxes he had paid for two years on the purported 150
acres.
Appellees answered with a general denial and included in their answer the
affirmative defense of governmental immunity. Appellees later filed a plea to the
jurisdiction, arguing that Yammine had failed to plead any waiver of
governmental immunity and had failed to allege any facts that showed a waiver
of governmental immunity. Appellees also filed a motion for summary judgment,
arguing that Yammine was not entitled to the remedy for void or defective tax
sales described in section 34.07 of the tax code because he had sold the
property. Yammine did not file a response to Appellees’ plea to the jurisdiction or
to their motion for summary judgment.
2
The trial court held a hearing on Appellees’ motion for summary judgment
and ordered that Yammine take nothing against Appellees. The trial court did not
specify the ground(s) upon which the summary judgment was granted. This
appeal followed.
III. SUMMARY JUDGMENT STANDARD OF REVIEW
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
IV. OWNERSHIP REQUIRED FOR RELIEF UNDER TAX CODE
In his third issue, Yammine challenges whether his sale of the property to
Hy Capital, LLC prevents him from obtaining the relief allowed for a void tax sale.
Texas Tax Code section 34.07(d) states,
3
In lieu of pursuing the subrogation rights provided by this section to
which a purchaser is subrogated, a purchaser at a void tax sale or
tax resale may elect to file an action against the taxing units to which
proceeds of the sale were distributed to recover an amount from
each taxing unit equal to the distribution of taxes, penalties, interest,
and attorney’s fees the taxing unit received. In a suit filed under this
subsection, the purchaser may include a claim for, and is entitled to
recover, any excess proceeds of the sale that remain on deposit in
the registry of the court or, in the alternative, is entitled to have
judgment against any party to whom the excess proceeds have
been distributed. A purchaser who files a suit authorized by this
subsection waives all rights of subrogation otherwise provided by
this section. This subsection applies only to an original purchaser at
a tax sale or resale and only if that purchaser has not subsequently
sold the property to another person.
Tex. Tax Code Ann. § 34.07(d) (West 2008) (emphasis added).2
Here, Appellees attached to their motion for summary judgment a copy of
the deed evidencing Yammine’s sale of the property to Hy Capital, LLC. The
deed is dated May 5, 2010. Yammine filed his original petition on November 2,
2010, stating that he had discovered that the acreage was incorrect after he sold
the property. Reasonable jurors could not disregard this uncontradicted
evidence that, prior to filing suit, Yammine had sold the property to another
person.3 Thus, Appellees conclusively negated at least one essential element of
2
Although Yammine brought suit for breach of contract, his claim at trial
was broadly construed by Appellees to be a claim under section 34.07(d)
because of the relief he sought; his argument on appeal is similarly based on
section 34.07(d).
3
“Person” is defined in the Code Construction Act as including a
corporation, an organization, a partnership, or any other legal entity. See Tex.
Gov’t Code Ann. § 311.005(2) (West 2005). To the extent that Yammine argues
that he is one of the members of Hy Capital, LLC and thus remains an owner of
the property, his argument fails because Hy Capital, LLC is a separate “person”
4
Yammine’s cause of action. See Tex. Tax Code Ann. § 34.07(d); Fernandez,
315 S.W.3d at 508; see also Tex. R. Civ. P. 166a(b), (c). We overrule
Yammine’s third issue.4
V. CONCLUSION
Having overruled the dispositive issue necessary to final disposition of this
appeal, we affirm the trial court’s summary judgment granted in favor of
Appellees. See Tex. R. App. P. 43.2(a), 47.1.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: May 10, 2012
under the Act. See id.; accord Sanchez v. Mulvaney, 274 S.W.3d 708, 712 (Tex.
App.—San Antonio 2008, no pet.) (recognizing distinction between members and
limited liability company in that generally members are not individually liable for
the debts of a limited liability company).
4
Because Yammine’s third issue is dispositive, we need not address his
first and second issues. See Tex. R. App. P. 47.1 (stating that appellate court
need address every issue necessary to final disposition of appeal).
5