Abel M. Siller, and Enriqueta Siller, Mario M. Siller, Angelina Siller, Santiago Siller, and Virginia Siller (Appellant/Cross Appellee) v. LPP Mortgage, LTD (Appellee/Cross Appellant)

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-11-00496-CV

Abel M. SILLER, Enriqueta Siller, Mario M. Siller, Angelina Siller, Santiago Siller, and
Virginia Siller,
Appellants/Cross-Appellees

v.

LPP MORTGAGE, LTD,
Appellee/Cross-Appellant

From the 218th Judicial District Court, La Salle County, Texas
Trial Court No. 02-04-00020-CVL
Honorable Fred Shannon, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice

Delivered and Filed: April 10, 2013

AFFIRMED

This appeal arises from a wrongful foreclosure suit brought by the Sillers against LPP

Mortgage, Ltd. After a jury verdict in favor of the Sillers, the trial court rendered a judgment

notwithstanding the verdict in favor of LPP Mortgage. On appeal, the Sillers argue that the trial

court erred in (1) applying the doctrine of judicial estoppel, (2) applying the doctrine of res

judicata, and (3) finding that there was no evidence to support the jury’s finding that the notice of

foreclosure sale had not been posted on the courthouse bulletin board for twenty-one days prior

to the foreclosure sale. In the event we determine the trial court erred in granting judgment
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notwithstanding the verdict, LPP Mortgage brings the following cross-issues: (1) the jury’s

finding that the notice of foreclosure sale was not posted on the courthouse bulletin board for

twenty-one days prior to the sale is against the great weight and preponderance of the evidence;

(2) the Sillers are not entitled to the equitable remedy of rescission of the foreclosure sale; and

(3) the jury’s finding that the property in question was not partnership property at the time it was

acquired is against the great weight and preponderance of the evidence. We affirm the judgment

of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1967, four brothers, Abel M. Siller, Mario M. Siller, Santiago Siller, and Jose Siller, Jr.

purchased 520 acres of land in La Salle County, and the property was deeded to the four

brothers. After purchasing the property, the brothers formed a partnership and began doing

business together by growing vegetables and raising cattle on the property. While the property is

mainly farming and grazing land, there are two houses and some barns on the property. Abel and

his wife have lived continually in the main house on the property. The other brothers and their

wives have lived on and off the property over the years. They all claim a homestead interest in

the property.

In the late 1970s and the early 1980s, after suffering through a series of natural disasters,

Mario, Abel, and Santiago sought a loan from the Small Business Administration (“SBA”) in the

amount of $234,000.00. The SBA promissory note was signed by the three brothers and their

wives. The brothers also signed a deed of trust pledging their interest in the property as collateral

for the loan. The partnership continued to operate its farming and ranching business, but around

1983 Jose Siller left the partnership. The three remaining brothers, however, continued to operate

the partnership. In the 1990s, the partnership had further financial difficulties and had difficulty

making payments on the SBA loan.
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In July 1999, to prevent foreclosure on the property, the partnership filed for Chapter 11

bankruptcy relief. Accompanying the partnership’s Chapter 11 petition was a list of assets, which

included “520 acres, La Salle, County” as an asset of the partnership; and a list of creditors,

which listed the SBA as having a claim of $108,500.00. None of the individual partners filed for

bankruptcy. The partnership later filed in bankruptcy court its First Amended Plan of

Reorganization, proposing the following:

Class 2 shall consist of the claim of the Small Business Administration (“SBA”),
which resulted from debt lawfully owed by the Debtor to SBA prior to the filing
of the petition for relief and which is secured by Debtor’s real property, generally
described as 520 acres located in LaSalle County, Texas . . . .

The Plan of Reorganization provided that the SBA “shall retain its statutory lien” and proposed

that the partnership would be allowed to continue making payments on the SBA’s Note over ten

years at an annual interest rate of five percent. On December 29, 1999, the partnership’s Plan of

Reorganization was confirmed by the bankruptcy court.

Following the partnership’s bankruptcy, the SBA assigned the Promissory Note and Deed

of Trust to LPP Mortgage. When the Sillers failed to make the first annual payment required by

the Plan of Reorganization and thereby defaulted on the Note, LPP Mortgage notified the Sillers

by certified mail that the Note was in default and that the La Salle Property would be foreclosed

if payment arrangements were not made. On August 9, 2001, LPP Mortgage sent the Sillers a

notice of foreclosure sale that was to be held on September 4, 2001. On September 4, 2001,

Elizabeth Martinez, the county attorney for La Salle County who was appointed substitute

trustee, handled the foreclosure sale and sold the property to LPP Mortgage for the amount of

$125,237.35.

The Sillers then sued LPP Mortgage for wrongful foreclosure on the grounds that the

property was their homestead and the property sold for grossly inadequate consideration as a

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consequence of irregularities in the sale. At trial, the jury charge contained three questions: (1)

whether the property was “partnership property”; (2) if the jury answered “no” to the first

question, it was instructed to answer whether the property was the “homestead” of any of the

Sillers; and (3) whether LPP Mortgage wrongfully foreclosed on the property. In a ten to two

verdict, the jury answered affirmatively on question one. It did not answer question two, and it

answered question three in the negative. The trial court then signed a judgment in accordance

with the verdict, and the Sillers appealed. On appeal, this court concluded that one of the jurors

was disqualified to serve as a juror in the underlying lawsuit as a matter of law. See Siller v. LPP

Mortgage, Ltd., 264 S.W.3d 324, 331 (Tex. App.—San Antonio 2008, no pet.). And, because the

juror’s disqualification would result in an unfavorable verdict being rendered against the Sillers

by fewer than ten qualified jurors, this court held that the Sillers were entitled to a new trial on

whether LPP wrongfully foreclosed on the property. Id. at 326, 331.

At the second trial, the jury was once again asked three questions. This time, however,

the jury determined that the property was not partnership property at the time it was acquired in

May 1967. The jury also determined that the property was the homestead of Abel Siller and

Enriqueta Siller, but that it was not the homestead of Mario Siller, Virginia Siller, Santiago

Siller, or Perfecta Siller at the time the deed of trust at issue was signed on February 9, 1981. The

jury also found that the notice of foreclosure sale was not posted on the La Salle County

Courthouse bulletin board at least twenty-one consecutive days prior to the foreclosure sale. On

April 21, 2011, the trial court signed a final judgment in conformity with the jury’s verdict. LPP

Mortgage then timely filed its Motion for Judgment Notwithstanding the Verdict, Motion to

Disregard Jury Verdict, and Motion for New Trial. On June 21, 2011, the trial court granted the

motion:

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• It is ORDERED, ADJUDGED, AND DECREED that Judgment
Notwithstanding the Verdict be GRANTED as to Question 1 and Question
2 because the evidence conclusively establishes the defense of judicial
estoppel and/or res judicata, which preclude [the Sillers] from asserting
that the Property is not owned by the Partnership;

• It is further ORDERED, ADJUDGED, AND DECREED that Judgment
Notwithstanding the Verdict be GRANTED as to Question 3 because the
undisputed evidence conclusively establishes that the notice of foreclosure
was posted at least 21 days before the foreclosure sale.

• Based on this ruling, the Final Judgment signed on April 21, 2011, is
hereby WITHDRAWN and SET ASIDE.

Also on June 21, 2011, the trial court signed an Amended Final Judgment, ordering that the

Sillers take nothing by their suit and that LPP Mortgage recover from the Sillers title to and

possession of the property. The Sillers bring this appeal, arguing that the trial court erred in

granting judgment notwithstanding the verdict because (1) LPP Mortgage waived the defense of

estoppel by failing to submit a request for a jury question on judicial estoppel; (2) LPP Mortgage

failed to conclusively establish application of judicial estoppel; (3) LPP Mortgage waived the

defense of res judicata by failing to submit a request for a jury question; (4) LPP Mortgage did

not conclusively establish the application of res judicata; and (5) there was some evidence to

support the jury’s finding that the notice of foreclosure was not posted at least twenty-one days

before the foreclosure sale. LPP Mortgage has brought a cross-appeal, arguing that if the trial

court’s ruling is not affirmed, then it is entitled to a new trial because (1) the jury’s finding that

the notice of foreclosure sale was not posted on the courthouse bulletin board at least twenty-one

days before the foreclosure sale is against the great weight and preponderance of the evidence;

and (2) the jury’s finding that the property was not partnership property is against the great

weight and preponderance of the evidence. LPP Mortgage also argues that the Sillers are not

entitled to the equitable remedy of rescission of the foreclosure sale.

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JUDICIAL ESTOPPEL

Judicial estoppel precludes a party who successfully maintains a position in one

proceeding from afterwards adopting a clearly inconsistent position in another proceeding to

obtain an unfair advantage. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643

(Tex. 2009). “The policies underlying the doctrine include preventing internal inconsistency,

precluding litigants from ‘playing fast and loose’ with the courts, and prohibiting parties from

deliberately changing positions according to the exigencies of the moment.” United States v.

McCaskey, 9 F.3d 368, 378 (5th Cir. 1993). The doctrine was designed to prevent “cold

manipulation and not an unthinking or confused blunder,” Johnson Service Co. v. Transamerica

Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973), and is applied when a party uses intentional self-

contradiction as a means of obtaining an unfair advantage in a legal proceeding. In re Coastal

Plains, 179 F.3d 197, 205 (5th Cir. 1999). Here, LPP Mortgage argued to the trial court that the

Sillers are judicially estopped from asserting in this lawsuit that the property is not owned by the

partnership because in the previous federal bankruptcy proceeding they asserted that the property

was an asset of the partnership.

The parties first disagree on whether federal or Texas law regarding judicial estoppel

applies in this case. The Sillers argue that “there is no consensus approach to judicial estoppel

among the federal circuits” and that “[t]his inconsistency in the application of judicial estoppel

among the federal circuit courts creates confusion and leads to uncertainty as to what approach

should be followed.” See In re Estate of Loveless, 64 S.W.3d 564, 579–80 (Tex. App.—

Texarkana 2001, no pet.) (questioning whether Fifth Circuit cases should be followed given lack

of consensus among federal circuits regarding judicial estoppel). According to the Sillers, “[a]t

least in Texas the law on judicial estoppel is consistent and its application is uniform.” LPP

Mortgage responds that when judicial estoppel is raised based on a position taken in a prior
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bankruptcy proceeding, Texas courts apply federal law as developed by the Fifth Circuit. We

agree with LPP Mortgage. A majority of Texas courts do apply federal judicial estoppel law

when the prior proceeding was in bankruptcy court. See Bailey v. Barnhart Interest, Inc., 287

S.W.3d 906, 910 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Tow v. Pagano, 312 S.W.3d

751, 756 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Cleaver v. Cleaver, 140 S.W.3d 771,

774–75 (Tex. App.—Tyler 2004, no pet.); Dallas Sales Co. v. Carlisle Silver Co., 134 S.W.3d

928, 931 (Tex. App.—Waco 2004, pet. denied); Stewart v. Hardie, 978 S.W.2d 203, 208 n.1

(Tex. App.—Fort Worth 1998, pet. denied); Andrews v. Diamond, Rash, Leslie & Smith, 959

S.W.2d 646, 649 n.1 (Tex. App.—El Paso 1997, writ denied); see also Thompson v. Continental

Airlines, 18 S.W.3d 701, 703 n.1 (Tex. App.—San Antonio 2000, no pet.) (“We will apply

federal law to the issue of judicial estoppel in order to promote the goal of uniformity and

predictability in bankruptcy proceedings and to give proper effect to the judgment of the

bankruptcy court.”). And, the primary purpose of judicial estoppel is to preserve the integrity of

the prior judicial proceeding. See Coastal Plains, 179 F.3d at 205 & n.2. That is, “the purpose of

judicial estoppel is not to protect the litigants; it is to protect the integrity of the judicial system.”

Id. at 210 (emphasis in original). “Thus, it makes sense to apply the law applicable to the prior

proceeding.” Dallas Sales, 134 S.W.3d at 931. Further, under the similar doctrine of res judicata,

the Texas Supreme Court has held that “the preclusive effect of a federal judgment is determined

by federal law.” John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 287

(Tex. 2002); see also Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1991)

(“[F]ederal law controls the determination of whether res judicata will bar a later state court

proceeding.). Because “[t]his approach operates to preserve the principle of finality of

judgments,” the Texas Supreme Court’s “approach in res judicata cases serves to preserve the

integrity of prior federal proceedings.” Dallas Sales, 134 S.W.3d at 931. Similarly, applying
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federal law when judicial estoppel is raised based on a position taken in a prior bankruptcy

proceeding also serves to preserve the integrity of prior federal proceedings. Id. Therefore, we

will apply federal law regarding judicial estoppel.

The Sillers first argue that the trial court erred in applying the doctrine of judicial

estoppel because LPP Mortgage waived the defense by not requesting a jury question on judicial

estoppel. They argue that even if we apply federal law, federal law on judicial estoppel requires

that the party who made the prior inconsistent statement have acted intentionally, not

inadvertently. According to the Sillers, because a person’s motivation or intent is considered to

be a question of fact, LPP Mortgage waived its defense of judicial estoppel by not requesting that

the jury make this fact determination. We disagree with the Sillers. Under federal law, “judicial

estoppel is an equitable doctrine invoked by a court at its discretion.” New Hampshire v. Maine,

532 U.S. 742, 750 (2001); see also Beall v. United States, 467 F.3d 864, 870 (5th Cir. 2006)

(explaining that in “especially egregious case[s] wherein a party has successfully asserted a

directly contrary position,” federal circuit courts may even raise judicial estoppel sua sponte).

Further, while the Supreme Court has named several factors that “typically inform” the decision

of whether a court should apply the doctrine in a particular case, it has refused to “establish

inflexible prerequisites or an exhaustive formula for determining the applicability of judicial

estoppel,” explaining instead that different considerations “may inform the doctrine’s application

in specific factual contexts.” New Hampshire, 532 U.S. at 750–51; see also Reed v. City of

Arlington, 650 F.3d 571, 574 (5th Cir. 2011) (noting that because the doctrine of judicial

estoppel is equitable in nature, it should be “applied flexibly, with an intent to achieve substantial

justice” and that application of the doctrine “should be guided by a sense of fairness, with the

facts of the particular dispute in mind”). Thus, LPP Mortgage did not waive its judicial estoppel

defense by failing to submit the question of inadvertence to the jury.
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Because judicial estoppel is an equitable doctrine and the decision of whether to invoke it

within a court’s discretion, we review a court’s decision to invoke the doctrine for abuse of

discretion. Coastal Plains, 179 F.3d at 205. And, because it is an equitable doctrine, it “cannot be

reduced to a precise formula or test.” Zedner v. United States, 547 U.S. 489, 504 (2006).

However, “several factors typically inform the decision whether to apply the doctrine in a

particular case.” Id. (quoting New Hampshire, 532 U.S. at 750). “First, a party’s later position

must be clearly inconsistent with its earlier position.” New Hampshire, 532 U.S. at 750. “Second,

courts regularly inquire whether the party has succeeded in persuading a court to accept that

party’s earlier position.” Id. Third, a court may consider “whether the party seeking to assert an

inconsistent position would derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.” Id. at 751. Further, in the context of a prior bankruptcy

proceeding, a court should apply the doctrine of judicial estoppel “against the backdrop of the

bankruptcy system and the ends it seeks to achieve.” Reed, 650 F.3d at 574 (citations omitted).

“These ends are to bring about an equitable distribution of the bankrupt’s estate among creditors

holding just demands, and to grant a fresh start to the honest but unfortunate debtor.” Id.

(citations omitted). “Therefore, judicial estoppel must be applied in such a way as to deter

dishonest debtors, whose failure to fully and honestly disclose all their assets undermines the

integrity of the bankruptcy system, while protecting the rights of creditors to an equitable

distribution of the assets of the debtor’s estate.” Id.

The Sillers argue that the trial court erred in applying the doctrine of judicial estoppel to

this case because they were not parties to the bankruptcy proceeding. They emphasize that it was

the partnership that filed the bankruptcy proceeding, not them individually. Thus, they argue that

the doctrine of judicial estoppel cannot bar them from claiming ownership of the 520 acres in

this lawsuit. Federal courts, however, have held that those in privity with a prior judgment are
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barred by the doctrine of judicial estoppel in a subsequent action. See In re 815 Walnut Assocs.,

183 B.R. 423, 431–32 (E.D. Pa. 1995) (explaining that “judicial estoppel clearly may be applied

against a party to a prior lawsuit or someone in privity with that party”) (emphasis in original);

Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp. 2d 1152, 1168–69 (C.D.

Ca. 2008) (“To determine whether plaintiffs are judicially estopped by statements to the

California inheritance tax appraiser made on behalf of Monroe’s estate, the court must first

examine whether plaintiffs are in privity with Frosch, such that they may be deemed the “same

party” as that which participated in the tax proceeding.”) aff’d, 692 F.3d 983 (9th Cir. 2012); see

also Maitland v. Univ. of Minn., 43 F.3d 357, 363-64 (8th Cir. 1994) (explaining that under the

doctrines of collateral estoppel, equitable estoppel, promissory estoppel, and judicial estoppel,

“the party who is to be estopped, or one in privity with that party, must have asserted a fact or

claim, or made a promise, that another party relied on, that a court relied on, or that a court

adjudicated”) (emphasis added); Long v. Knox, 155 Tex. 581, 588, 291 S.W.2d 293, 297 (1956)

(holding that husband’s heir was barred by doctrine of judicial estoppel because heir was in

privity with husband).

The Sillers argue that they are not in privity with the partnership. People may be in

privity in at least three ways: (1) they can control an action even if they are not parties to it; (2)

their interests may be represented by a party to the action; and (3) they may be successors in

interest, deriving their claims through a party to the prior action. E.E.O.C. v. Jefferson Dental

Clinics, 478 F.3d 690, 694 (5th Cir. 2007). In this case, there was evidence that Abel Siller,

Mario Siller, and Santiago Siller had the ability to control the federal bankruptcy lawsuit. They

had been partners of the partnership since it was formed in 1967. They were the only partners of

the partnership at the time of the bankruptcy proceeding in 1999 and acted on behalf of the

partnership in the bankruptcy proceeding. They made the decision for the partnership to hire the
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attorney to represent it in the bankruptcy proceeding. They met with the attorney regarding the

bankruptcy proceeding, and they signed numerous documents relating to the bankruptcy

proceeding. Several of these documents stated that the partnership owned the property at issue.

Thus, the trial court did not abuse its discretion in applying the doctrine of judicial estoppel to

the Sillers as there is evidence to support them being in privity with the partnership.

The Sillers also argue that the trial court erred in applying the doctrine of judicial

estoppel to Enriqueta Siller. 1 We disagree. Homestead protection “can arise only in the person or

family who has a present possessory interest in the subject property.” Laster v. First Huntsville

Props. Co., 826 S.W.2d 125, 130 (Tex. 1991); see TEX. CONST. art XVI, § 50(b) (“An owner or

claimant of the property claimed as homestead may not sell or abandon the homestead without

consent of each owner and the spouse of each owner, given in such manner as may be prescribed

by law.”). And, as a “partner or a partner’s spouse does not have an interest in partnership

property,” TEX. BUS. ORG. CODE ANN. § 152.101 (West 2007), if the property is partnership

property, neither the partners nor their spouses could claim it as their homestead. See Siller, 264

S.W.3d at 329. It is undisputed that Enriqueta Siller had no individual interest in the property.

Any rights she had to the property were derivative of her spouse, Abel Siller. And, because the

doctrine of judicial estoppel may extend to a wife, because her rights are derivative of her spouse

and because she is in privity with her husband, the trial court did not abuse its discretion. See

Long, 155 Tex. at 588, 291 S.W.2d at 297 (explaining that judicial estoppel extended to daughter

from father even though daughter was not party to previous proceeding because her claim was

derivative and she was in privity with him); cf. Cuauhtli v. Chase Home Finance LLC, 308 Fed.

1
The jury found in Question No. 2 that the property was the homestead of Abel Siller and his wife, Enriqueta Siller.
The trial court granted a judgment notwithstanding the verdict on Question 2 because it found that “the evidence
conclusively establishes the defenses of judicial estoppel and/or res judicata, which preclude Plaintiffs and
Intervenors from asserting that the Property is not owned by the Partnership.”

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Appx. 772, 773–74 (5th Cir. 2009) (explaining that although the husband and wife were not

identical parties, the trial court correctly concluded that their relationship was sufficient for claim

preclusion purposes). 2

In reviewing this record, we find no abuse of discretion by the trial court in applying the

doctrine of judicial estoppel. The evidence shows that Abel Siller, Mario Siller, and Santiago

Siller filed bankruptcy on behalf of the partnership and affirmed in that proceeding that the

property was owned by the partnership and was an asset of the partnership. The bankruptcy

petition and its accompanying schedules, which were signed by Abel Siller under penalty of

perjury, expressly state that the partnership owns “520 acres, La Salle County” and was indebted

to the SBA for $108,500.00.” The partnership’s second amended summary of schedules

represented that the partnership owned “520 acres in La Salle County.” The first amended plan

of reorganization, which was signed by Mario M. Siller, stated that the La Salle Property was an

asset of the partnership; the partnership owed a valid debt to the SBA, and that debt was secured

by a valid deed of trust on the La Salle Property. When making these statements to the

bankruptcy court, the Sillers were under an express, affirmative duty to disclose all assets, and

this duty is a continuing one. In re Coastal Plains, Inc., 179 F.3d at 207–08; see also Hall v. GE

Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (explaining the doctrine of judicial

estoppel applies to more than just sworn statements of a party and has never held that the

doctrine applies only to a party’s sworn statements). Given these repeated assertions to the

bankruptcy court, there is evidence that the Sillers’ conduct was not inadvertent.

2
We note that the Sillers cite Andrews v. Security National Bank, 121 Tex. 409, 50 S.W.2d 253, 256 (1932);
Geldard v. Watson, 214 S.W.3d 202, 208 (Tex. App.—Texarkana 2007, no pet.); and In re Daves, 770 F.2d 1363,
1469 (5th Cir. 1985), for the proposition that homestead rights of wives are independent and cannot be destroyed by
actions of their spouses. However, those cases are distinguishable from the facts presented here. Unlike the cases
cited by the Sillers, at issue in this case is not whether Abel Siller encumbered or conveyed away the homestead
rights of his spouse. Instead, the issue is whether Abel and Enriqueta are barred under the doctrine of judicial
estoppel from asserting homestead rights in the property because the bankruptcy proceeding established that they do
not actually own the property.

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After filing for bankruptcy and successfully preventing the foreclosure of the property,

the Sillers are now taking the opposite position in this lawsuit that the property was not owned

by the partnership. Further, there is evidence that the federal bankruptcy court accepted the

Sillers’ prior position that the property was owned by the partnership. We therefore find no abuse

of discretion by the trial court in applying the doctrine of judicial estoppel. 3

NOTICE OF FORECLOSURE

In Question No. 3, the jury was asked whether the notice of foreclosure sale was “in fact

posted on the La Salle County Courthouse bulletin board at least 21 consecutive days prior to the

foreclosure sale.” The jury answered, “No.” The trial court granted judgment notwithstanding the

verdict as to Question 3 because it found that the “undisputed evidence conclusively

establishe[d] that the notice of foreclosure was posted at least twenty-one days before the

foreclosure sale.” On appeal, the Sillers argue that the trial court erred in making this finding.

A trial court may disregard a jury verdict and render a judgment notwithstanding the

verdict if no evidence supports the jury finding on an issue necessary to liability or if a directed

verdict would have been proper. See TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713

(Tex. 2003). We review a judgment notwithstanding the verdict under a no-evidence standard,

“meaning we credit evidence favoring the jury verdict if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” Tanner v. Nationwide Mut. Fire Ins., 289

S.W.3d 828, 830 (Tex. 2009); see also Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709

(Tex. 2003) (“A trial court’s decision to grant a judgment notwithstanding the verdict should be

affirmed if there is no evidence to support one or more of the jury findings on issues necessary to

3
Having found no abuse of discretion by the trial court in applying the doctrine of judicial estoppel, we need not
determine whether the trial court erred in applying the doctrine of res judicata.

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liability.”). “If more than a scintilla of evidence supports the jury’s findings, the jury’s verdict

and not the trial court’s judgment must be upheld.” Wal-Mart, 102 S.W.3d at 709.

In Texas, a foreclosure sale may be rendered invalid based on noncompliance with the

deed of trust and statutory law. Section 51.002(b)(1) of the Property Code requires notice of the

foreclosure sale to be given at least twenty-one days before the date of the sale by “posting at the

courthouse door of each county in which the property is located a written notice designating the

county in which the property will be sold.” TEX. PROP. CODE ANN. § 51.002(b)(1) (West Supp.

2012). The deed of trust also required the substitute trustee to “advertis[e] the time, place and

terms of said sale, and the property to be sold, by posting for at least twenty-one (21) consecutive

days next before the date of sale written or printed notices thereof at the courthouse door of the

county in which the mortgaged property or real estate is located.” Because a trustee’s power to

sell the property is derived from the deed of trust and statute, compliance with these

requirements is considered a prerequisite to the trustee’s right to make the sale. Houston First

Am. Sav. v. Musick, 650 S.W.2d 764, 768 (Tex. 1983). Thus, a debtor may recover damages for

common-law wrongful foreclosure if the mortgagee fails to comply with statutory or contractual

terms. First State Bank v. Keilman, 851 S.W.2d 914, 921–22 (Tex. App.—Austin 1993, writ

denied).

Here, the evidence is undisputed that the notice of foreclosure sale was posted on the

bulletin board of the La Salle County Courthouse on August 9, 2001. Elizabeth Martinez, the

county attorney and substitute trustee in this case, testified that she filed the notice of foreclosure

sale on August 9, 2001, and made sure that it was posted on the courthouse bulletin board that

same day. Because Martinez’s office is right in front of the bulletin board, she saw that the notice

had been posted on the bulletin board that same day. Margarita Esqueda, the La Salle County

Clerk, testified that although she had no personal recollection of posting the notice, she knew she
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had posted the notice on August 9, 2001. Esqueda explained that it was the practice of the clerk’s

office to post a notice of foreclosure sale “right away,” within “five” or “ten minutes” of it being

filed. According to Esqueda, she was the one who file-stamped the notice of foreclosure sale on

August 9, 2001, and she was the one who issued a receipt to Martinez. And, Esqueda testified

that it was the practice of the clerk’s office for the clerk who filed a notice of foreclosure sale to

then immediately post the notice on the bulletin board. Esqueda testified that the bulletin board is

in a glass shadowbox, which is locked, and only she and her deputy clerks have access to the

key.

There is also undisputed evidence that the notice of foreclosure sale was removed from

the bulletin board after the foreclosure sale on September 4, 2001, more than twenty-one days

after it was posted. Martinez testified that because her office was right across from the bulletin

board, she “normally went to the board on a day-to-day basis” to confirm whether the notice was

still posted, and “it was always there.” According to Martinez, she saw the notice on the bulletin

board the day of the foreclosure sale. Martinez testified that she conducted the foreclosure sale

on the courthouse steps at 1:30 p.m. on September 4, 2001, and that another county employee

was present as a witness. Because there were no bidders, she made a bid on behalf of the bank, as

she had been instructed by the bank, received that bid, and executed the substitute trustee’s deed,

which conveyed title back to the bank. After the sale, she went to the clerk’s office, told them

that she had conducted the sale, and asked them to take the notice down. Martinez testified that

she then saw one of the deputy clerks take the notice down from the bulletin board. Mary Kelly,

a member of the public, testified that she was at the La Salle County Courthouse waiting to visit

a county judge. To pass the time, she started looking at the notices on the bulletin board. She

started reading the notice of foreclosure sale about the Sillers’ property and noticed that the sale

was going to happen that same day. Her husband reminded her who the Sillers were. She then
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heard two women talking. One of them asked her if she was there for the sale. She replied, “No.”

She then saw the two women exit the courthouse and stand on the steps. According to Kelly, it

looked as if the woman was “talking into thin air.” The women then came back inside and

disappeared. A short time later, the two women came back to the bulletin board. One of them

said, “Excuse me, ma’am, but we have to bother you again.” The woman then unlocked the case

and took down the notice about the Sillers’ property that Kelly had been reading. The woman

said, “Well, that sale is over.” The woman then locked the case and said to Kelly, “Have a good

day.”

The Sillers argue that there was evidence that the notice was not posted for the required

twenty-one days before the sale, pointing to their own testimony. Abel Siller testified that he

went to the courthouse “several days” before the foreclosure sale and on the day of the

foreclosure sale at 8:00 a.m. He testified that on both occasions he “did not see any notice.”

Similarly, Santiago Siller testified that he went to the courthouse on the day of the foreclosure

sale at around 9:00 a.m., looked at the bulletin board, and “didn’t see anything.” Mario Siller

also testified that four days before the foreclosure sale, he went to the courthouse bulletin board

and “didn’t see anything.” However, whether the notice was actually visible when the Sillers

went to the courthouse was not the issue. If a notice of foreclosure sale is “actually posted the

required number of days prior to the sale, it is not essential that [it] remain[s] intact and visible

during every one of the intervening days.” Keilman, 851 S.W.2d at 923 (quoting Chambers v.

Lee, 566 S.W.2d 69, 73 (Tex. Civ. App.—Texarkana 1978, no writ)). The issue is whether the

notice was posted the required number of days, and the undisputed evidence shows that it was. 4

4
We note that the Sillers complain that the trustee deed, as prepared by Martinez, recites that the notice of
foreclosure sale was posted in Cherokee County, Texas, not La Salle County, Texas. However, Martinez testified
that the reference to Cherokee County was a “typo” and that she has “never even conducted business in Cherokee
County.” Martinez confirmed that the notice was posted in La Salle County, not Cherokee County. See Gevinson v.

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CONCLUSION

Because the trial court did not abuse its discretion in applying the doctrine of judicial

estoppel and because there was no evidence to support the finding that the notice of foreclosure

had not been posted twenty-one days before the foreclosure sale, we affirm the judgment of the

trial court. 5

Karen Angelini, Justice

Manhattan Construction Co., 449 S.W.2d 458, 466 (Tex. 1969) (explaining that while “[i]t has been said that one
who introduces a document vouches for its accuracy and will not be allowed to impeach or contradict its recitals,”
this rule “has largely been engulfed by its own exceptions,” and a party may “disprove factual recitals in a document
introduced by him”).
5
Having so held, we need not address LLP Mortgage’s cross-issues.

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