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In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

_________________ 

NO. 09-16-00337-CV 

_________________ 

CHARLES KIRKWOOD, Appellant 

V. 

JEFFERSON COUNTY, TEXAS AND W. PROPERTIES, LLC, Appellees 

________________________________________________________________________ 

On Appeal from the 172nd Judicial District Court 

Jefferson County, Texas 

Trial Cause No. E-194,967 

________________________________________________________________________ 

MEMORANDUM OPINION 

This is the second time this case has been before us on interlocutory appeal. 

The following is the factual and procedural background of the underlying suit as set 

out in Charles Kirkwood v. Jefferson County and W. Properties, LLC, No. 09-15-

00296-CV, 2016 WL 536852, *1 (Tex. App.—Beaumont Feb. 11, 2016, no pet.) 

(mem. op): 

In January 2010, Jefferson County (the “County”) sued Sara Gleason 

to collect unpaid property taxes. In June 2010, the trial court signed a 

default judgment against Gleason. The record does not indicate that the 
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County recorded an abstract of judgment in the county real property 

records. In August 2010, Gleason sold her property to Charles 

Kirkwood by warranty deed, with a notation that the grantee was 

responsible for all delinquent taxes. After almost three years, in March 

2013, the County posted the property for sheriff’s sale and W. 

Properties, LLC purchased the property at the March 2013 tax sale. The 

following August, W. Properties, LLC gave Kirkwood notice to vacate 

the premises. Kirkwood subsequently filed a petition for bill of review, 

in which he argued that he failed to receive notice of the tax sale. In 

April 2014, the trial court denied Kirkwood’s petition. In January 2015, 

Kirkwood filed a motion for new trial, which the trial court granted. 

However, the County filed motions to dismiss for lack of standing and 

for lack of jurisdiction. The trial court granted both motions. 

In the previous appeal, this Court reversed the trial court’s orders dismissing 

Kirkwood’s suit for lack of standing and lack of jurisdiction and remanded the matter 

back to the trial court. Id. at *2. In March 2016, after the case was remanded to the 

trial court, the County filed a traditional motion for summary judgment asserting that 

its evidence proved as a matter of law that Kirkwood had received actual notice of 

the intended tax sale before it occurred. The trial court initially denied the motion in 

June 2016. The County then filed a motion for the trial court to reconsider. In August 

2016, the trial court granted the County’s motion for reconsideration and granted the 

motion for summary judgment on the issue of notice, dismissing Kirkwood’s cause 

of action without prejudice. In this second appeal, Kirkwood again challenges the 

trial court’s order dismissing his cause of action. The County also raises one crossissue, arguing that Kirkwood failed to meet his burden to prove that the trial court 
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committed reversible error. We reverse the trial court’s order granting summary 

judgment and remand for further proceedings consistent with this opinion. 

We review a trial court’s grant of a motion for summary judgment de novo.

Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). A defendant is entitled to 

summary judgment if the evidence establishes that there exists no genuine issue of 

material fact and that he is entitled to judgment as a matter of law. Lear Siegler, Inc. 

v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Tex. R. Civ. P. 166a. In determining 

whether a party seeking summary judgment has met that burden, we view the 

evidence in the light most favorable to the non-moving party, disregarding all 

conflicts in the evidence and taking as true all evidence favorable to the non-moving 

party. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Harwell 

v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). “Every 

reasonable inference must be indulged in favor of the non-movant and any doubts 

resolved in [his] favor.” Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 

(Tex. 1985). We consider evidence that supports the position of the moving party 

only if such evidence is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio 

Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965); Procter v. RMC Capital 

Corp., 47 S.W.3d 828, 830 (Tex. App.—Beaumont 2001, no pet.). 
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Among the evidence the County submitted in support of its argument to the 

trial court that Kirkwood had actual notice of its intent to sell his property was sworn 

testimony that the County had (1) mailed letters to Gleason, the previous owner of 

the property; (2) published a legal notice bearing the property’s description in a local 

newspaper; (3) posted a legal notice bearing the property’s description at the 

courthouse; and (4) mailed a letter from a law firm to the address of the property, 

addressed to “Occupant.” There was also testimony by a county employee that she 

mailed a letter addressed specifically to Kirkwood, although she could produce no 

copy of such letter, nor other record of any correspondence bearing Kirkwood’s 

name, rather than “Occupant,” nor any certified mail cards bearing his signature. 

Finally, the County also submitted affidavits of two county employees indicating 

that they had discussed the intended sale in their respective conversations with 

Kirkwood when he came into the tax office in January 2013 and made a $2300 

payment toward the outstanding back taxes. 

On the other hand, the County’s own summary judgment evidence also 

included a transcript of Kirkwood’s sworn testimony that, while he knew about the 

back taxes owed on the property and was making regular payments on those back 

taxes along with his payment of current taxes, he never received actual notice of the 

County’s intended sale of his property. The County’s submissions also included 
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evidence that both the County and the law firm representing the County had actual 

knowledge, well before the sale, that Kirkwood, and not Gleason, was the owner of 

the property and that Kirkwood was the one making regular payments toward the 

back taxes. Kirkwood’s testimony also indicates that the law firm representing the 

County continued to accept payments from him toward the back taxes without ever 

telling him that a tax sale was pending or that the property could be sold even as he 

made payments. 

In its brief on appeal, the County acknowledges Kirkwood’s sworn testimony 

controverting actual notice, but asserts that the testimony is not competent summary 

judgment evidence because (a) Kirkwood is an interested witness and (b) his 

testimony is controverted by the County’s evidence and is not “otherwise credible 

and free from contradictions and inconsistencies, and could have been readily 

controverted.” While it is true that the naked testimony of an interested witness is 

generally insufficient to support the granting of summary judgment in a moving 

party’s favor, it can be sufficient to create a fact issue requiring the denial of 

summary judgment. Fieldtech Avionics & Instruments, Inc. v. Component 

Control.Com, Inc., 262 S.W.3d 813, 827 (Tex. App.—Fort Worth 2008, no pet.). 

Similarly, while the rules governing summary judgment require that testimonial 

evidence of an interested witness be “clear, positive and direct, otherwise credible 
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and free from contradictions and inconsistencies” in order for a summary judgment 

to be based on such evidence, there is no such strict requirement for testimonial 

evidence used to defeat summary judgment. See Tex. R. Civ. P. 166a(c); Brooks v. 

Excellence Mortg., Ltd., 486 S.W.3d 29, 39 (Tex. App.—San Antonio 2015, pet. 

denied).

Applying these principals and the required standard of review, when faced 

with the County’s evidence and argument that Kirkwood had actual notice of the 

sale on one hand, and the controverting evidence that Kirkwood never actually 

received any notice despite the County’s actual knowledge of his ownership on the 

other, this Court is required to resolve any factual conflicts in Kirkwood’s favor by 

disregarding the evidence supporting the County’s position and taking the evidence 

supporting Kirkwood’s position as true. Dorsett, 164 S.W.3d at 661; Great Am. 

Reserve Ins. Co., 391 S.W.2d at 47. The result of that analysis is the existence of a 

genuine issue of material fact as to the issue of notice, the specific basis upon which 

the trial court granted summary judgment in the County’s favor. Therefore, we must 

sustain Kirkwood’s challenge to the trial court’s order dismissing his cause of action. 

In one related counter-issue on appeal, the County argues that Rule 44.1 of 

the Rules of Appellate Procedure prohibits this Court from reversing the trial court’s 

order granting summary judgment. Rule 44.1 provides that 
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[n]o judgment may be reversed on appeal on the ground that the trial 

court made an error of law unless the court of appeals concludes that 

the error complained of: (1) probably caused the rendition of an 

improper judgment; or (2) probably prevented the appellant from 

properly presenting the case to the court of appeals. 

Tex. R. App. P. 44.1(a). Because our finding on Kirkwood’s challenge is a 

dispositive finding that the trial court did render an improper judgment, Rule 44.1 

does not prohibit this Court from reversing the trial court’s order. 

We also disagree with the County’s argument that the trial court’s order must 

be upheld on the ground that Kirkwood failed to show that the trial court abused its 

discretion because “there is at least some evidence” to support the trial court’s order. 

This argument wholly ignores that, as the moving party, the County bore the burden 

of presenting not “some evidence,” but evidence sufficient to negate the existence 

of any genuine issue of material fact. See Lear Siegler, 819 S.W.2d at 471. As we 

have described herein, the standard under which a trial court’s grant of summary 

judgment is reviewed is well established as de novo, not abuse of discretion. See 

Nixon, 690 S.W.2d at 548–49 (noting that “[t]he standards for reviewing a motion 

for summary judgment are well established” by the Texas Supreme Court). The trial 

court’s duty in a summary judgment proceeding is not to weigh the evidence 

presented or determine its credibility, but rather to simply determine whether any 

genuine issue of material fact exists in light of the clear mandates of how evidence 
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must be viewed in such a summary proceeding. Cummins v. Travis Cty. Water 

Control & Improvement Dist. No. 17, 175 S.W.3d 34, 53 (Tex. App.—Austin 2005, 

pet. denied). We therefore overrule the County’s issue and, having sustained 

Kirkwood’s issue, reverse the trial court’s order granting the County’s motion for 

summary judgment, and remand for further proceedings consistent with this opinion. 

REVERSED AND REMANDED. 

______________________________ 

 CHARLES KREGER 

 Justice 

Submitted on June 15, 2017 

Opinion Delivered September 28, 2017 

Before McKeithen, C.J., Kreger and Johnson, JJ.