Motion to Dismiss Denied; Affirmed and Memorandum Opinion filed March
26, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00712-CV
STEPHANIE ALLEN, Appellant
V.
HELEN JUNGENBERG, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. CV27264
MEMORANDUM OPINION
Appellant Stephanie Allen and another party sued appellee Helen
Jungenberg to quiet title, claiming adverse possession of real property that
Jungenberg purchased at a tax foreclosure sale. Jungenberg counterclaimed for a
declaration that she holds superior right to the property and that the clouds of title
be removed. Jungenberg filed a motion for traditional summary judgment on her
counterclaim, asserting her title to the property based on two grounds:
(1) application of the limitations statute, see Tex. Tax Code § 33.54; and
(2) enforcement of a Rule 11 agreement, see Tex. R. Civ. P. 11. The trial court
signed a final summary judgment, ordering that Jungenberg have title to the
property and that the plaintiffs take nothing.
Allen appeals, contending that the trial court erred by granting the summary
judgment because: (1) Jungenberg failed to include the tax sale judgment with the
summary-judgment evidence; (2) Jungenberg’s deed is void because Allen lacked
notice of the tax suit; and (3) the purported Rule 11 agreement does not contain
the essential elements of such an agreement. Jungenberg filed a motion to dismiss
the appeal, alleging that a post-judgment sale of the property has mooted Allen’s
appeal. Neither party is represented by counsel on appeal.
We deny the motion to dismiss and affirm the trial court’s judgment.
A. Motion to Dismiss
Jungenberg alleges in her unverified motion to dismiss that her post-
judgment sale of the property has mooted Allen’s claim to quiet title. See
Dominguez v. Dominguez, 583 S.W.3d 365, 371 (Tex. App.—El Paso 2019, pet.
denied) (holding that the post-judgment sale of the property to a third party mooted
the appellant’s claim to quiet title). As evidence of the sale, Jungenberg attaches to
her motion an unauthenticated document purporting to be a deed from Jungenberg
to a third party.
When a motion in this court depends on facts that are “(a) not in the record;
(b) not within the court’s knowledge in its official capacity; and (c) not within the
personal knowledge of the attorney signing the motion,” then the motion must be
verified or supported by affidavit “or other satisfactory evidence.” Tex. R. App.
P. 10.2. Jungenberg is not an attorney, and her motion depends on facts that are
2
not in the record or within the court’s knowledge. Thus, her motion is required to
be supported by evidence. See id. The complete absence of authentication of a
document is a defect of substance that makes the document incompetent as
evidence. Thus, we do not consider Jungenberg’s unauthenticated document
attached to her unsworn motion to dismiss. See In Estate of Guerrero, 465 S.W.3d
693, 703–07 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc)
(holding that there was “no competent evidence” of an agreement to arbitrate
because the party had completely failed to authenticate the documents attached to
its motions to compel arbitration).
Unlike in Dominguez, where the appellant did not dispute the appellee’s
assertion that the property had been sold, Allen contends that the purported transfer
is “disputed” because it is a “sham conveyance” to Jungenberg’s sister. See
Dominguez, 583 S.W.3d at 371 (relying on Tex. R. App. P. 38.1(g) for the
proposition that an appellate court will accept facts stated unless another party
contradicts them). Because Jungenberg does not support her motion with
competent evidence and Allen disputes Jungenberg’s factual assertions in Allen’s
appellate briefing, the record does not show this appeal is moot. So, we deny
Allen’s motion to dismiss this appeal.
B. Summary-Judgment Standard of Review
We review de novo a declaratory judgment granted on a traditional motion
for summary judgment. Wausau Underwriters Ins. v. Wedel, 557 S.W.3d 554, 557
(Tex. 2018). The movant has the burden to show that no genuine issue of material
fact exists and that the judgment should be granted as a matter of law. Kachina
Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). We take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Id.
3
C. Tax Sale Judgment
In her first issue, Allen contends that the summary judgment must be
reversed because, although Jungenberg filed her deed with the summary judgment
evidence, Jungenberg did not file the tax sale judgment. Allen claims that the tax
sale judgment is required to substantiate a judgment for title to property under
section 33.54 of the Tax Code.
Section 33.54, entitled “Limitation on Actions Relating To Property Sold
For Taxes,” provides for limitations on actions relating to the title to property
purchased at a tax sale. See Tex. Tax Code § 33.54. The general rule is that the
action must be commenced “before the first anniversary of the date that the deed
executed to the purchaser at the tax sale is filed of record.” Id. § 33.54(a)(1). The
statute also provides, “When actions are barred by this section, the purchaser at the
tax sale or the purchaser’s successor in interest has full title to the property,
precluding all other claims.” Id. § 33.54(c). Jungenberg relied on this statute as a
ground for the summary judgment declaring her ownership of the property.
For the first time on appeal, Allen contends that Jungenberg failed to meet
her evidentiary burden for summary judgment because, although Jungenberg filed
her deed with a recording date more than a year before Allen sued, Jungenberg did
not include the tax sale judgment with the summary-judgment evidence. Allen
relies on Volunteer Council of Denton State School, Inc. v. Berry, 795 S.W.2d 230,
237–39 (Tex. App.—Dallas 1990, writ denied), and its progeny. This court
declined to follow Berry in Jordan v. Bustamante, 158 S.W.3d 29, 40–41 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied) (citing Cedillo v. Gaitan, 981
S.W.2d 388 (Tex. App.—San Antonio 1998, no writ)). This court upheld the trial
court’s award of title to the successor of a tax sale purchaser, rejecting the
4
plaintiffs’ contention that the successor “was required to introduce the tax
judgment and order of sale in order to rely on § 33.54 limitations.” Id. at 41.
Jordan is binding precedent. See, e.g., Chase Home Fin., L.L.C. v. Cal W.
Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.]
2010, no pet.), quoted with approval in Brazos Elec. Power Coop., Inc. v. Tex.
Comm’n on Envtl. Quality, 576 S.W.3d 374, 382 n.6 (Tex. 2019). Thus, the trial
court’s summary judgment is not erroneous due to Jungenberg’s failure to include
the tax sale judgment with the summary-judgment evidence. See Jordan, 158
S.W.3d at 41.
Allen’s first issue is overruled.
D. Notice
In her second issue, Allen contends that Jungenberg’s deed is void “for
failure to give notice” in the tax suit, citing Mennonite Board of Missions v.
Adams, 462 U.S. 791, 798–99 (1983) (regarding constitutional requirement of
notice to mortgagee of publicly recorded mortgage).
We presume a judgment is valid unless the record affirmatively
demonstrates a jurisdictional defect. Remote Control Hobbies, L.L.C. v. Airborne
Freight Corp., No. 14-12-01088-CV, 2014 WL 1267073, at *1 (Tex. App.—
Houston [14th Dist.] Mar. 27, 2014, no pet.) (mem. op.) (citing PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 273 (Tex. 2012)). An appellant bears the burden of
presenting this court with a record affirmatively demonstrating that a default
judgment is void. Id. (overruling contention that turnover order was void
following an allegedly void default judgment).
Allen did not raise this argument in response to the motion for summary
judgment, nor did she file any evidence to substantiate her argument. She does not
5
cite to the record to support her contention on appeal that the “default tax judgment
that the property in question was subjected to, was based upon citation by
publication.” She cites only to her petition to contend that she was not a party to
the tax suit and was not contacted by lawyers during the tax suit. Her petition,
however, is not evidence. See, e.g., Chamie v. Mem’l Hermann Health Sys., 561
S.W.3d 253, 256 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Laidlaw
Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995));
Morris v. O’Neal, 464 S.W.3d 801, 808–09 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (affirming denial of bill of review; reasoning that statements in a
petition were insufficient evidence to show that a judgment was void).
Allen has failed to show that the tax sale judgment and subsequent deed is
void. See Morris, 464 S.W.3d at 808–09; Remote Control, 2014 WL 1267073, at
*1. Accordingly, the trial court did not err by granting summary judgment to
Jungenberg based on her deed.
Allen’s second issue is overruled.
E. Rule 11 Agreement
In her third issue, Allen contends that the trial court “granted more relief that
requested” because the purported Rule 11 agreement does not comport with the
essential elements of such an agreement.
We will affirm a summary judgment if any of the theories presented to the
trial court and preserved for appellate review are meritorious. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Because Allen has not
shown that the trial court erred on the section 33.54 ground, we need not and do
not address the propriety of the purported Rule 11 agreement as a ground for the
6
summary judgment. See id.; see also Tex. R. App. P. 44.1(a); Tex. R. App. P.
47.1.
Conclusion
Jungenberg’s motion to dismiss as moot is denied, and the trial court’s
judgment is affirmed.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Hassan.
7