COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00178-CV

WALLY YAMMINE DBA BW 

CONSTRUCTION

APPELLANT

V.

WISE COUNTY AND BRIDGEPORT 

ISD

APPELLEES

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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 

 

1See Tex. R. App. P. 47.4.
2

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.
3

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,
4

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 

 

2Although 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” 
5

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).

4Because 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).