1 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 (t he “County”) sued Sara Gleason to collect unpaid property taxes. In June 2010, the trial court signed a default judgment against Gleason. Th e record does not indicate that the2 County recorded an abstract of j udgment 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 propert y for sheriff’s sale and W. Properties, LLC purchased the prope rty 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 noti ce of the tax sale. In April 2014, the trial court denied Ki rkwood’s petition. In January 2015, Kirkwood filed a motion for new tria l, 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 reve rsed the trial court’s orders dismissing Kirkwood’s suit for lack of standing and la ck 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 file d a traditional motion for summa ry 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 in itially 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 mo tion for reconsideration and granted the motion for summary judgment on the issue of notice, dismissing Kirkwood’s cause of action without prejudice. In this s econd 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 court3 committed reversible error. We reverse the trial court’s order granting summary judgment and remand for further proceedi ngs 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 establishe s that there exists no genuine issue of material fact and that he is entitled to judgmen t 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-m ovant 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 th at 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. A pp.—Beaumont 2001, no pet.)

.4 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 lette rs to Gleason, the previous owner of the property; (2) published a legal notice bear ing the property’s desc ription in a local newspaper; (3) posted a le gal notice bearing the prope rty’s description at the courthouse; and (4) mailed a letter from a law firm to th e 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 cer tified mail cards bearing his signature. Finally, the County also submitted affidav its 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 outst anding back taxes. On the other hand, the County’s ow n summary judgment evidence also included a transcript of Kirkwood’s swor n testimony that, while he knew about the back taxes owed on the pr operty 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 included5 evidence that both the County and the la w firm representing the County had actual knowledge, well before the sa le, 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 indi cates that the law firm representing the County continued to accept payments from hi m 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 ac knowledges Kirkwood’s sworn testimony controverting actual notice, but asserts th at the testimony is not competent summary judgment evidence because (a) Kirkwood is an interested w itness and (b) his testimony is controverted by the County’s ev idence and is not “otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” While it is true that the na ked 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 creat e a fact issue requiring the denial of summary judgment. Fieldtech Avionics & Instru ments, Inc. v. Component Control.Com, Inc. , 262 S.W.3d 813, 827 (Tex. A pp.—Fort Worth 2008, no pet.). Similarly, while the rules governing su mmary judgment require that testimonial evidence of an interested witness be “cl ear, positive and direct, otherwise credible6 and free from contradictions and inconsistencies” in or der 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 requi red 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 a ny 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 i ssue of notice, the specific basis upon which the trial court granted summa ry judgment in the County’s favor. Therefore, we must sustain Kirkwood’s challenge to the trial court’s order dism issing 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 th is Court from reversing the trial court’s order granting summary judgment. Rule 44.1 provides that7 [n]o judgment may be re versed 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 di d render an improper judgment, Rule 44.1 does not prohibit this Court from re versing the trial court’s order. We also disagree with the County’s argum ent 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 ev idence” to support the trial court’s order. This argument wholly ignores that, as th e moving party, the County bore the burden of presenting not “some evid ence,” 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 standa rds for reviewing a motion for summary judgment are well established” by the Texas Supreme Court). The trial court’s duty in a summary judgment pro ceeding 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 lig ht of the clear mandates of how evidence8 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 th e County’s issue and, having sustained Kirkwood’s issue, reverse the trial cour t’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., Kr eger and Johnson, JJ.