### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00046- CV

Brian Paul Hun t, Appellant

v. CIT Gr oup/ Consume r F inan ce, Inc., A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0379 9, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Br i an Paul Hunt appea ls a district court’s judgme nt in favor of appe l l ee CI T Group/Consumer Finance (CI T) on claims of wrongf ul fore closure and fraud. The judgment decla red void a fore closure sale of rea l proper ty and a subsequent convey ance of t h e proper ty ,

awa rded CI T $58,000 in attorney ’s fee s, and g rante d CI T other relief

. We will aff

irm the judgme nt. Also, on motion of CI T , we will awa rd CI T $5,000 as just damag es ag ainst Hunt for filing a frivolous appe al.

BACK GR OUND

The rea l proper

ty at issue in t h i s ca s e i s a condominium unit on Be e Caves Road in Austin. The jury hear d evidenc e that, in 2003, the orig inal owner s of the prop er t y , Da v id

an d J amie McKe nzie, took out a home-e quity loan in the amount of $608,000, ex ec u t i n g a promissory note m ade pay able to Finance Americ a L L C. The note was secur ed by a deed of trustin the proper ty executed by the McKe nzies and Financ e Americ a and rec orded in the Travis County

rea l proper

ty rec ords. Subsequently , Financ e Americ a sold the note and assig ned its interests in the deed of trust to CI T. The McKe nzies eventua lly fell behind on their loan pay ments as well as their
proper ty taxes. I n 2004, Travis County place d a tax lien on the proper ty in the amount of $4,379.22.
I n J une 2005, Da

vid McKenzie executed a promissory note pay able to Ex odus Tax S pecia lists for the purpose of secur ing funds to pay the proper ty taxes he owed. Dessie Maria Andre ws, as “trustee ” for “Exodus Tax Specialists” (s h e wo u l d later char acte rize Ex odus in court filings as a d/b/a of herse lf) paid Travis County the $4,379.22 in ta x es owed on the proper ty and obtained a tax lien deed of t ru st on the proper ty

. See Act of May 29, 2005, 79th L eg ., R.S., ch. 1126, § 13,

sec. 32.06(a) (2), (a- 1), (b), 2005 Tex. Gen. L aws 3717, 3720-21 (ame nded 2007, 2009) (cur rent version at Tex. Tax Code Ann. § 32.06(a) (2),( a-1) -(a -3) (West 2008 & Supp. 2009)). Subsequently ,

asser ting that David McKe nzie had defa ulted on his note, Ex odus fore closed on the tax lien deed of
trust and appointed appellant Hunt substitut e trustee to sell the proper ty

. On October 4, 2005, Hunt

ex ec u ted a substitut e trustee’ s deed ref lecting that “Corner stone L imited” (which, the evidence indicated, share d the same addre ss as both Andre ws and Ex odus Tax Specialists) had purcha sed the
proper ty for $550,000. The deed rec ited that: “[n] otices stating the time, place and terms of sale of the proper ty wer e mailed, posted and filed, as require d by law;” Cornerstone “wa s the highe st bidder
at the public auction, for the amount of sale in the manner presc ribed by law;” the fore closure sale had beg un at the time stated in the Notice of Sale or within three hours there afte r, in t h e are a of

2the Tra

vis County courthouse desig nated for such sales; and “ [a] ll matters, duties, and oblig ations of [Ex odu s ] we re lawfully perf ormed

. . . including compliance with section 32.06 of the
Texas Tax C ode.”

Contrary to the repr es entations in the substitut e trustee’ s deed that he executed, Hunt later a dmitted at trial that he did not c omply with require ments that he ser ve McK enzie with notice of the sale by cer

tified mail and did not fi l e the fore closure notice with the Travis County Clerk’s office

. See Act of May 29, 2005, 79th L eg ., R.S., ch. 1126, § 13, sec. 32.06(c) (2), 2005 Tex. Gen. L aws 3717, 3721 (ame nded 2007, 2009) (cur rent version at Tex. Tax Code Ann. § 32.06(c) (2) (West 2008 & Supp. 2009)); Act of May 29, 2005, 79th L eg ., R.S., ch. 1126, § 14, sec. 32.065(b)( 5),
2005 Tex. Gen. L aws 3717, 3722 (ame nded 2007, 2009) (cur rent v er s ion at Tex. Tax Code Ann. § 32.065(b)( 5) (West 2008 & Supp. 2009)); Act of May 24, 2005, 79th L eg ., R.S., ch. 5 5 5 , § 1 ,

s ec. 51.002(b)( 2)-( 3), 2005 Tex. Gen. L aws 1482, 1482 (ame nded 2007) (cur rent vers i o n at Tex. Prop. Code Ann. § 51.002(b)( 2)-( 3) (West S u p p . 2 0 0 9 )). There was also uncontrove rted

ev i d en ce that neither CI T nor Financ e Americ a wer e g iven notice of the fore closure sale in the require d manner . See Act of May 29, 2005, 79th L eg. , R .S., ch. 1126, § 14, sec. 32.065(b)( 6),
2005 Tex. Gen. L aws 3717, 3722 (cur rent version at Tex. Tax Code Ann. § 32.065(b)( 6) (West 2008
& Supp. 2009)). Fur

ther, Hunt conce ded that the amount of sale ref lected in the substitut e trustee’ s deed w as incorr ect a

nd that no pay

ment was tende red to him for the proper ty

. L ater in the same month, Andre ws, now acting on behalf of Cornerstone, purported to sell the proper

ty to K err y Cairns. Cornerstone f

inance d the entire purcha se price , which Cairns

was to repa

y not later than April 30, 2006. Cairns and C o rner stone executed a promissory note

3secur ed by a deed of trust in the proper ty

. As of the time of trial in November 2008, Cairns had not paid off the amount owed to Corner stone, but Cornerstone ha d not forec losed its lien.

CI T lear ned of the fore closure and subsequent convey ance of the proper ty to Cairns afte r it beg an fore closing its lien on the proper ty afte r the McKe nzies defa ulted on their loan in Aug ust 2005. After lear

ning of these purported convey ance s, CI T made rede mption reque sts to pay the taxes so it could take back the proper ty and fore close. After Andre ws ref used, CI T sued Ex odus, Cornerstone, Andre ws, Hunt, and Cairns, alleg ing wrong ful fore closure, fra ud, and civil conspirac y , and seeking decla

ratory judgme nts that CI T was entitled to rede mption under tax code section 32.06 and disbursement of excess proce eds. CI T also named the McKe nzies as defe ndants and soug ht an order permitting non-

judicial fore closure on the proper ty

. The McKe nzies did not answe r or ap p ear. As for the rema ining defe ndants, the

rec ord ref lects rathe r tumultuous proce eding s below in which Hunt, Andre ws/Ex odus/Cornerstone, and Cairns eac h attempted to repr esent himself or herse lf and made numerous filings advanc in g
arg um ents that wer e fre quently not cog nizable in law and sometimes consisted of inflammatory attacks on CI T or the district court. Ultimately , CI T’s claims wer e tried to a jury

. The district court submitt ed, and the jury

found, that:

C CI T was a

junior lien holder in the prope rty ;

C the fore closure sa le by Ex odus to Cornerstone wa s not a public sale a t auction; 1

S ee Ac t of May 19, 1987, 70th L eg ., R.S., ch. 540, § 1, sec. 51.002(a) , 1987 Tex. Gen. 1 L aws 2174, 2174 (cur

rent version at Tex. Prop. Code Ann. § 51.002(a) (West 2007 & Supp. 2009)) (“A s al e o f rea l proper

ty under a power of sale confe rre d by a deed of trust or other contra ct lien must be a public sale at auction held betwee n 10 a.m. and 4 p.m. of the first Tuesday of a month.”). 4C the sale w as not held betwe en 10 a.m. a nd 4 p.m. on the first Tuesda y of a month; 2

C the sale did not take place at the Tra vis County

courthouse; 3

C notice of the sale wa s not posted at least 21 day s befor e the sa le date; 4

C a copy

of the sale notice wa s not filed with the Travis County cler k; 5

C written notice of the sale was not serve d by cer tified mail on David McKe nzie at least 21 day s befor e the sa le date; 6

See id. 2 See id. (“[T]he sal e m u s t t ak e p l ace at the county courthouse in the county in which 3 the land is locate d . . . .”). See Act o f M ay 24, 2005, 79th L eg ., R.S., ch. 555, § 1, sec. 51.002(b), 2005 Tex. Gen. 4 L aws 1482, 1482 (ame nded 2007) (“N otice of the sale, which must include a statement of the ear liest time at which the sale will beg in, must be g iven at least 21 day s befor e th e d ate of the sale by : (1) posting at the cour

thouse door of eac h county in which the proper ty is located a writt en noti ce desig nating the county

in which the prope rty

will be sold . . . .”). See Act of May 24, 2005, 79th L eg ., R.S., ch. 555, § 1, sec. 51.002(b)( 2), 2005 Tex. Gen. 5 L aws 1482, 1482 (ame nded 2007) (“N otice of the sale, which must include a statement of the ear liest time at which the sale will beg in, must be g iven at lea st 21 day s befor e the da te of the sa le by : . . . (2) filing in the office of the county cler k of eac h county in which the proper ty is loc ated a copy of the notice posted unde r Subdivision (1) . . . .”). See Act of May 29, 2005, 7 9 t h L eg., R.S., ch. 1126, § 14, sec. 32.065(b)( 5), 2005 Tex. 6 Gen. L aws 3717, 3722 (a m en d ed 2007, 2009) (“N otwithstanding any ag ree ment to the contra ry , a contra ct enter ed into under Subsection (a) betwee n a transfe ree and the proper ty owner under Secti o n 3 2

. 0 6 that is secur ed by a priority lien on the proper ty shall provide for a power of sale and fore closure under Chapter 51, Property Code, and:

. . . (5) requiring the tr an s feree to serve fore closure notices on the proper ty owner at the proper

ty owner ’s last known addre ss in the manner r e q u ir ed by Sections 51.002(b), (d), and (e) , Property Code, or by a commerc ially rea sonable del iv e r y service t h at maintains verifia ble rec ords of deliverie s for at least five y ear s from the date of delivery

. . . .”); Act of May 24, 2005, 79th L eg ., R.S., ch. 555, § 1, sec. 51.002(b)(3 ), 2 0 0 5 T ex . Gen. L aws 1482, 1482 (ame nded 2007) (“N otice of the sale, which must include a statement of the ear liest tim e at which the sale will be g in, must be g iven at lea st 21 day s befor e the da te of the sa le by : . . . (3) serving written notice of the sale by cer tified mail on eac h debtor who, acc ording to the rec ords of the mortg ag e ser vicer of the de bt is obli g ated to pay the debt.”)

. 5C written notice of the sale was not serve d by cer tified mail on Financ e Americ a at least 21 day s befor e the sa le date; 7

C an irreg ularity occur red in t h e foreclosure sale of the proper ty by Ex odus to Cornerstone, a

nd the irre g ularity

cause d a g rossly

inadequa te price ; and

C H u

n t, A ndrew s, Ex odus, and Cornerstone committed fra ud ag ainst CI T in con

n e c ti o n with the sale of the proper ty

.
The district court also submitt ed the amount of CI T’s attorney ’s fee s to the jury , which awa rded $58,000 in trial-level f

ees a nd a total of $35,000 in conting ent appe llate fe es. 8
Be tween the jury ’s verdic t and the final judgme nt, Hunt and Andre ws moved to disqualify

the judg e who had presided over the trial, the Hon. Stephen Yelenosky . This motion

was assig ned to the Ho n . P au l Da v i s, who denied it. J udg e Davis also awa rded CI T $2,495.00
in attorney ’s fee s incurre d in responding to t h e motion, imposed jointly and sever ally ag ainst Hunt and Andr ews.

See Act of May 29, 2005, 79th L eg ., R.S., ch. 1126, § 1 4 , s ec. 32.065(b)( 6), 2005 Tex. 7 Gen. L aws 3717, 3722 (“N otwithstanding any ag ree ment to the contra ry , a contract enter ed into under Subsection (a) betwee n a transfe ree and the proper ty owner under Section 32.06 that is secur ed by a priority lien on the proper ty shall provide for a power of sale and fore closure under Chapter 51, Property Code, and:

. . . (6) requiring , at the time the fore closure notices require d by Subdivis ion (5) are serve d on the proper ty owner , the transfe ree to serve a copy of the notice of s al e i n the same manner on the mortg ag e service r or the holder of all rec orded rea l proper ty liens encumbe ring the proper

ty that includes on the first pag e, in 14-point boldfac ed ty pe or 1 4 -p oint upperc ase ty pewr itten letters, a statement that rea ds substantially as follows: ‘PURSUANT TO TEXAS TAX CODE SECTI ON 3 2.06, THE FORECL OSURE SAL E REFERRED TO I N THI S DOCUMENT I S A SU P E R I OR TRANSFER TAX L I EN SUBJECT TO RI GHT OF REDEMPTI ON UNDER CERTAI N CONDI TI ONS. THE FORECL OSURE I S SCHEDUL ED TO OCCUR ON THE (DATE ).’” ). Whil e the jury was delibera ting, it sent out a question inquiring, “Can the jury awa rd more 8 fee s than [C I T’s] attorney reque sted? And, is there a limit ? ” 6After signing an initial version of the judgme nt on J anuar y 15, 2009, the district court signe d an amende d final judgme nt on Fe bruar y 3. The court acc epted the jury ’s finding s and made

sever al decla

rations based on those finding s. I t decla red that the Ex odus-to-Corner stone fore closure sale was wrong ful and void and set it aside. The court further decla red void the substitut e trustee’ s deed, Cornerstone’ s subsequent sale of the proper ty to Cairns, and all liens and secur ity interests held by Cornerstone ag ainst Cairns for the proper ty

. I t also awa

rded CI T the attorney ’s fee s the jury had found jointly

and seve rally

ag ainst Hunt, Andrew s, Ex odus, Cornerstone, a nd Cairns. The district court made additional decla rations having the eff

ect of enfor cing a rig ht of re demption on the part of CI T. I t de clar ed that the pa y off a mount on Ex odus’s tax-lien deed of trust (which ha d later be en tra nsfer red to Cairns) was $4,379.22 a nd that Hunt, Andre ws, Ex odus, Cornerstone, and Cairns we re eac h entitled to a cre dit in that amount ag ainst the attorney ’s fee s

awa rd, leaving eac h jointly and sever ally liable for $53,620.78 in trial-leve l attorney ’s fee s, plus any appellate fee s that might be incurre d later. The district cour t also decla

red tha t the pay off a mount on the tax-lien deed of tr

ust had bee n paid in full and that the tax-lien deed of trust was re lease d. Finally , the district court rendered judgme nt ag ainst the McKe nzies that CI T was immediately

authorized to commence proce eding s for non-judicia l forec losure of the proper ty

. This appea l ensued.

ANALYSIS Both Hunt and Andre ws, his co-de fenda nt below, have signe d an appellants’ brief.
Be fore turning to the issues prese nted, we must first addre ss a thresh o ld question of our subject7matter jurisdiction. CI T has moved to dismiss any appea l that Andre ws or, for that matter, Cairns 9

purports to asser

t on the g round that eac h failed to invoke this Court’s subject-matter jurisdiction by filing a timely notice of a

ppeal. There are sever al notices of a ppeal in the c lerk’s r ecor d:
(1) A November 20, 2008 “De fenda nts’ Notice of I nterloca tory [si c] Appea l” on behalf of Hunt, Andre ws, and Cairns, and signe d by eac h. The file stamp on this document ref

lects that it was filed with the district cler k on the same day as, but afte r, the jury ’s verdic t and sever al wee ks befor e final judgme nt. This notice does not re fer ence any specific order

of the district cour

t. (2) A J anuar

y 5, 20 0 9 “N o t ice of Appea l of Tempora ry Restraining Orde r” on behalf of Hunt, and signe d solely by him, appea ling a temporar y restra ining order that the district court had issued to preve nt him from attempting to sell the prope rty

ag ain. (3) A J anuar

y 15, 2009 notice of appea l on behalf of Hunt, and signe d solely by him, appea ling the initial version of the final judgme nt that the district court signe d on that same da

y . (4) Two amende d notices of appea l on behalf of Hunt and signe d solely by him, dated Fe bruar

y 6 and 10, th at ap p eal the amende d version of the final judgme nt signe d on Fe bruar y 3, as well as J udg e Davis’s order on his motion to disqualify

J udg e Ye lenosky

.
Thus, althoug h Hunt timely perf ecte d his appea l from the final judgme nt, see Tex. R. App. P. 26.1, 27.3, the sole notice of appea l that Andrew s and Cairns filed w as the Nove mber 20, 2008 “ Notice of I n t erlocatory [si c] Appea l,” in which Hunt also joined. This notice, which they appar ently filed following the jury ’s verdic t but well befor e the final judgme nt, does not purport to

Although Cairns has not signe d the brief and is not identified as one of i ts authors or 9 participa nts, the brief doe s identify him as a par

ty to the appea l. 8appea l from the judgme nt—to the contra ry , it is sty led an “interloc atory [si c] appea l.” Under these circ umstances, we hold that Andre ws and Cairns have eac h failed to timely perf ect an appea l f

rom the district court’s f

inal judgme nt. On th e o th e r hand, rule of appellate proce dure 27.1 provides that a “pre mature” notice of appea l is eff

ective and deeme d filed on the day of, but after , the event that beg ins the period for filing the appea l. See id. R. 27.1. Howeve r, for sever al rea sons, we conclude that the November 20,
2008 notice did not invoke our jurisdiction over the f inal judgme nt or any interlocutory order that

was ultimately merg ed into that judgme nt. I n addition to the fac t that the November 20, 2008 notice does not pur

port to appea l from the district c ourt’s judgme nt, it does not ide ntify any interlocutory order that is being appea led and, thus, did not invoke our jurisdiction over an y s u ch o rd er . Id.
R. 25.1(d) (“The notic e o f appea l must

. . . (2) state the date of the judgme nt or order appea led from

. . . .”). Andre ws and Cairns have not arg ued otherwise; indeed, they have not responde d to

1 0
CI T’s motion to dismiss

. Finally , we observe t h at Hunt has filed subsequent notices of appea l addre ssed to the final judgme nt, y et neither Andre ws nor Cairns has joined in these notices or timely filed t h ei r own notices of appea l from the final judgme nt. I n these circ umstances, we cannot conclude that Andre ws or Cairns has perf ecte d an appea l from the final judgme nt by virtue of their November 20, 2008 “Notice of I nterloca tory [si c] A ppeal” and rule 27.1. See Gee v. Mirwis , No. 01-04-00883- CV, 2006 WL 859286, at *4 n.4 (Tex. App.—Houston [1st Dist.] Mar. 30, 2006,

Also, the rec ord does not r efle ct that Andre ws, Cairns, or Hunt ever took further

action, 1 0 bey ond filing the November 2 0 , 2 0 0 8 notice, to prosec ute an interlocutory appea l, including forwa rding a copy of their notice to this Court, see Tex. R. App. P. 25.1(e) , and no such appea l was ever dockete d here

. 9order ) (mem. op.) (holding ear lier notice of appea l purporting to be from interlocutory order was not

a prema turely filed notice of appea l that could be considere d to have perf ecte d appea l when appellate
court deter

mined subsequent notice of appea l filed afte r final judgme nt w as signe d was untimely ). Consequently , we lack subject-matter jurisdiction to g rant Andre ws and Cai rn s appellate relief

. Tex. R. App. P. 2, 25.1(b), 26.3; Gee , 2006 WL 859286, at *2 (“The time for filing

a notice of appea l is jurisdictional in nature , and absent a timely filed notice of appea l or extension
reque st, we must dismiss an appea l for lack of jurisdiction.”). We g rant CI T’s motion to dismiss any purported “appe al” of Andre ws and Cairns for want of subject-matter jurisdiction. See Tex. R. App.
P. 42.3(a ). W e note, howeve r, that even if Andre ws or Cairns had invoked our jurisdiction, our reje ction of t he arg uments advanc ed by Hunt (discussed b el ow) would fore close their entitlement to relief a s well.

We now turn to the issues Hunt raises on appea l. Hunt prese nts eleve n issues, which we will addr ess in turn. 1 1

I n h i s first issue, Hunt complains that he was denied “equa lity under the law” and “d en i ed ac ce s s to the law resulting in outlawry .” The substance of Hunt’s complaint appea rs t o

re l ate to a ruling by the district court g ranting a motion in limine filed by CI T addr es s ed t o t h e offe ring of evidenc e or comments reg arding the appli ca b i l ity , contents, and eff ective dates of

As i n the district court, Hunt is acting pro se on appea l. We have attempted to fairly 1 1 construe Hunt’s issues and the substance of his arg uments. S ee T ex . R

. App. P. 38.9; Titt izer v. Union Gas Corp. , 171 S.W .3d 857, 863 (Tex. 2005) (per curiam). Nonethele ss, it rema ins that pro se litigants are held to the same proce dural and substantive standards as other l i t i gan t s . S ee Mansfield State Bank v. Cohn , 573 S.W .3d 181, 184-85 (Tex. 1978) (“The re cannot be two sets of proce dural rules, one for litigants with counsel and the other for litigants repr esenting themselves.”)

. 10any law. Hunt misunderstands the eff ect of a ruling on a motion in limine. A trial court’s ruling on a motion in limine is not a ruling that excludes or admits evidenc e. Fort W orth Hotel L.P. v. Enserch Corp. , 977 S.W .2d 746, 757 (Tex. App.—For t Worth 1998, no pet.). The purpose o f a motion in limine is to obtain a tentative ruling that preve nts a party from offe ring cer tain evi d en ce or ref err ing to cer

tain matters in front of the jury without first approa ching the bench for a ruling

. Id. Consequently , a trial court’s ruling on a motion in limine in itself “is never re versible err or,” Hartford Acc ident & Indem

. Co. v. McCardell , 369 S.W .2d 331, 335 (Tex. 1963), and it “pre serve s

n o t h i n g for revie w.” Kaufman v. Commission for Lawyer Discipline , 197 S.W .3d 867, 873 (Tex. A pp.—Corpus Christi 2006, pet. denied)

. Even if a trial court makes an err oneous ruling on

a motion in limin e, t h ere is no reve rsible err or unless the court err oneously admits or excludes evidenc e over a proper ob j ec t i o n at trial. Acord v. Gene ral Motors Corp. , 669 S.W .2d 111, 116 (Tex. 1984).

Hunt fails to provide any citation to the rec ord demonstrating that he or any other defe ndant attempted to offe r evidence and obtained an adver se ruling from the c ourt. See Tex. R. App. P. 33.1( a); Kaufman , 197 S.W .3d at 874. He has prese nted nothing for revie w. We ove rrule Hunt’s first issue.

I n his second issue, Hunt arg ues that t h e d istrict court lacke d subjectmatter jurisdiction beca

use CI T lacke d sta n d i n g t o asser t its claims—an asser

tion that Hunt and other defe ndants repe atedly raised unsucce ssfully in the district court. Hunt b as es t h i s standing 1 2

Hunt also asser

ts in the “Summary of Arg ument” portion of his bri ef t h at C I T lacke d 1 2 “ca pacity .” He does not return to capa city elsewhe re in his brief

. L eaving aside the fac t that lack of capa city is not a jurisdictional limit ation, see Austin Nursing Ctr., Inc. v. Lovato , 171 S.W .3d 845, 11challeng e on his view that CI T was require d to prove that it was a rec ord owner of the proper ty befor e Ex odus sold the proper ty to Cornerstone. As CI T observe s, Hu nt prese nts no authority in support of this notion, and it is without merit. The general test for standing in Texas courts is whether there is a “re al” (i.e., justicia b l e) controve rsy betwee n the parties that actua lly will be deter mined by the judicial decla ration soug ht. See Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 446 (Tex. 1993). CI T’s pleading s and proof at trial demonstrate that CI T, as a lienholder in the proper

ty , had a justiciable interest sufficie nt to invoke the district court’s subjectmatter jurisdiction over its cla ims. W e over rule Hunt’s se cond issue.
I n his third i ssue, Hunt contends that CI T’s suit was challeng ing the validity of a “tax sale” a

nd fails bec ause CI T did not pay the proper ty taxes into the re g istry

of the c ourt befor e commencing suit and “lac ks considera tion.” Simi larly , in his tenth issue, Hunt complains that “CI T

never paid taxes into the reg istry of the court” and that this “invalidates the suit.” As CI T points out, this case does not involve the validity of a tax sale, which is g overne d by chapte r 34 of the tax code, but instead conce rns a tax-li en transfe r, which is g overne d by chapte r 32 of the tax code. Compare
Tex. Tax Code Ann. ch. 32 (West 2008 & Supp. 2009) with Tex. Tax Code Ann. ch. 34 (West 2008
& Supp. 2009). Consequently , the proce dural require ment s Hu n t re fe renc es are inapposite. We

overr ule Hunt’s third and te nth issues.
I n his fo u rt h issue, Hunt complains that J udg e Yelenosky “struck” a November 6, 2008 order

signe d by

the Hon. Gisela

D. Triana -Doy al, a pr ior order by the Hon. L ora L ivingston,

849 (Tex. 2005) (c ontrasting capa city and standing ), CI T corr ectly observe s that Hunt has waived this arg ument by failing to raise it in a verifie d pleading

. See Tex. R. Civ. P. 93(1)- (2); Lovato , 171 S.W .3d at 849. 12and a subpoena for document production issued by defen dants to CI T. Hunt contends that

J udg e Yelenosky “struck” the order s and subpoena by g ranting CI T’s entire motion in limine, and in particula r, the motion prohibiting defe ndants from making reque sts befor e the jury for information from CI T’s counsel’s file. Hunt char acterizes the November 6, 2008 order as “a sanction ag ainst [C I T’s counse l] for his beha vior,” but CI T points out that the orde r in fac t relate s to CI T’s motion for continuance and that a motion for sa nctions that Andrew s had filed wa s actua lly denied by

the
court on November 12, 2008. CI T primarily contends that Hunt has waived this issue beca use of his failure to cite the re cord or authority or provide substantive a

naly sis.
We ag ree that Hu n t ’s b ri efing on these points prese nts nothing for this Court’s revie w. Hunt fails to show wher e he raised these issues befor e the trial court and to explain how they resulted in r ever sible err or. See Tex. R. App. P. 33.1, 44.1. Hunt fails to e x plain how the g rant of
C I T’s motion in limine neg ated the eff ect of the court’s prior order s reg arding the production of documents, or how CI T’s supposed failure to produce documents harme d the defe ndants. Hunt

never descr ibes the documents CI T had been order ed t o p roduce, and his brief does not cite to
any discovery reque sts, objections, or motion s that wer e made. Only one of the order s reg arding discovery to which Hunt ref ers appea rs in the rec ord. That order , the November 6, 2008 order signe d by J udg e Triana -Doy al, continues the trial and order s that “at the first hear ing” CI T is to provide “all orig inal documents which J udge L i v i n g ston previously order ed to be produce d to defe ndants.” There is no order sig ned by J udg e L ivingston in the rec ord. We ove rrule H unt’s fourth issue. See id. R. 33.1, 44.1.

13I n his fifth, six t h , an d eig hth issues, Hunt, in substance, claims err or in the jury

char g e. He complains of numerous asser ted “irre g ularities” in the jury char g e, i n cludi ng misint erpr etation s o f th e la w a n d immaterial questions. During the char g e confe renc e, Hunt objected
to one proposed question—the use of the words “fr aud” and “misrepr esenta tion” in the jury question submitt ing CI T’s fra

ud claim—and his objection was overr uled. T h e ch arge used these words to explain to the jury the leg al definitions of fra ud and misrepre sentation. Hunt provides no substantive analy sis to explain why the use of these words cause d reve rsible err or. See id

. R. 44.1. We overr ule these issues.
I n his seventh issue, Hunt arg ues that “[n] one of the ev i d en ce that was befor e the jury could substantiate the finding s.” We construe this issue as a challeng e t o t h e leg al and/or fac tual sufficie ncy of the evidenc e supporting the jury ’s finding s. Hunt failed to prese rve either ty pe of sufficie ncy challeng e. I n a jury trial, challeng es to the leg al sufficie ncy o f t h e ev idence are
prese rved by “(1) a motion for instructed verdic t, (2) a m o tion for judgme nt notwithstanding the verdic t, (3) an objection to the submissi on of the issue t o t h e jury , (4) a motion to disreg ard the jury ’s answe r to a vital fac t issue or (5) a motion for new trial.” Cecil v. Smith , 804 S.W .2d 509, 511 (Tex. 1991). Complaints of the fac tual insufficienc y of the evidenc e supporting a ju ry fi n d ing or that a jury finding is ag ainst the overw helming weig ht of the evidenc e must be raised in a motion for

new t ri al

. T ex . R. Civ. P. 324(b)( 2)-( 3). Neither Hunt nor any other defe ndant made any such motion or objection. There for e, Hu n t h as failed to prese nt any thing for revie w. Moreove r, Hunt fails to prese nt arg ument, authorities, rec ord citations, or other explanation why the evidenc e at trial fails to support any

specific finding s. We overrule Hunt’s suffic iency challeng e.

14Also, within both his fifth and seventh issues, Hunt complai n s , in substance,

of improper jury arg ument. Hunt asser ts that the district court err ed in permitting CI T’s counsel to make improper jury arg uments to “vili fy t h e d efe ndants” in violation of the court’s obliga tion

u n der Texas Rule of Civil Procedur e 269 “to stop the defa mation” without prompting, ci t i n g Texas Employe rs’ Ins. Co. v. Guerrero , 8 0 0 S.W .2d 859, 867 (Tex. App.—San Antonio 1990, writ denied)

. Hu n t arg ues that “[t] here was no evidenc e of fra ud, no evidenc e of improper behavior ,” but the defa

mation by CI T’s counsel “so inflamed the jury that the jury ignor ed the evidenc e, which wer e the only fac ts befor e it, and found in favor of the rhetoric .” He conclude s that this is one of the “ra

re instances of incura

ble harm from improper arg ument,” citing Standard Fire Ins. Co. v. Ree

se , 584 S.W .2d 835, 839 (Tex. 1979).
CI T responds that Hunt has waived this issue on appea l beca use he has failed to cite
to the rec o rd o r any fac ts supporting his asser tion and he has not met his burden under Ree se of showing that improper jury arg ument occur red. See id. We ag ree . To show improper jury arg ument, Hunt must prove (1) an err or, (2) that was not invi t ed o r provoked, (3) that was prese rved by the
proper trial predic ate, such as an objection, a motion to instruct, or a motion for mistrial, (4) that was
not cura ble by an instruction, a prompt withdrawa l of the statement, or a repr imand by the judge , and (5) that the arg ument constituted reve rsibly harmful err or by its nature , deg ree , and extent. Id. All of the evidenc e must be closely examined to deter mine (6) the ar gu m ent’s probable eff ect on a materia l finding , and (7) a reve rsal must come from an evalua tion of the whole case from voir dire
to closing arg ument. Id. at 840. Hunt fails to meet this burden becaus e he has not provided

rec ord citations showing which statements are the alleg edly improper arg ument or that he prese rved

15err or by

making a prope r objection and asking for a ruling

. Tex. R. App. P. 33.1, 38.1(i). He a lso fails t o o ff

er any substantive analy sis reg arding whether the alleg edly improper arg ument was unsupported by the evidenc e or was incura ble by instruction or other reme dy

. Id. R. 38.1(i); Ree se , 584 S.W .2d at 839; see also Phillips v. Bramlett , 288 S.W .3d 876, 883 (Tex. 2009) (noting that case s finding incurable harm ty pically involve unsubstantiat ed attacks “on the integ rity or vera city of a party or counsel, appea ls to rac ial prejudice , or the like”). Hunt has prese nted nothing for revie w. We overrule his fifth and seve nth issues.

I n addition to his jury -cha

rg e compla in

ts w it h in h is e ig h th is s u e

—

w h ic h p o s it s , “Doe s the final order in the case ref lect the reme dy pray ed for? ”—Hunt asser ts, “Althoug h no construction permit was applied for, the only thing missing f

rom J udg e Ye lenowsky ’s [sic] order is the kitchen sink. I t is presumed t hat i t was too heavy to attach to the document.” Hunt does not explain why or how these asser

tions demonstrate any

reve rsible er

ror. We over

rule Hunt’s e ighth issue.
I n Hunt’s ninth issue, he posits, “Were the proper ty taxes, at all time [si c] since 2004, paid by Cornerstone or Cairns? ” I n support of this issue, Hu n t asserts that “[i] t is the inviolate

ru l e i n Texas that he who pay s the proper ty tax g ets the proper

ty ,” but he cites no authority fo r this propositi on and provide s no analy sis to ex plain its rele vance to the case. We overr ule Hunt’s ninth issue. Finally , in his el ev en t h issue, Hunt complains of “judicial misconduct resulting in g ross err or.” I n support, Hunt revisits various complaints about the merits of the district court’s

16judgme nt and then launche s into a series of attacks on the integ rity and fa i rness of the presiding

judge . Hunt demonstrates no r ever sible err or. We overrule Hunt’s eleve nth issue. 1 3 Having overr

uled all of Hunt’s issues, we aff irm the district court’s judg ment.
I n addition to its arg uments for aff irming the district court’s judgme nt, CI T reque sts us to sanction Hunt under Texas Rule of Appellate Procedur e 45 and aw ard $25,000 in da mag es. CI T con t en d s that Hunt’s appea l is frivolous. Hunt has had notice of CI T’s reque st for sanctions for more than three months, but has not filed a response

.

Under rule 45, “[i] f the court of appea ls deter mines that an appea l is frivolous, it may —on motion of any party or on i t s o wn i n i t iative, after noti ce and a rea sonable opportunity for response —awa

rd eac h preva iling party just damag es.” Tex

. R. App. P. 45. To deter mine whethe r an appea l is frivolous, we apply an objective test. Smith v. Brown , 51 S.W .3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)

. We revie w the rec ord from the advocate’s viewpoint and decide whether he had rea sonable g rounds to believe the judgme nt could be reve rsed. Id. Although bad faith is no longe r dispositi ve or nece ssarily even materia l to deciding whether an
ap p ea l is frivolous, the prese nce of bad faith may be rele vant to deter mining the amount of th e sanction. Id. I n addition, the fac t that no response is filed to a reque st for sanctions is itself a fac tor

1 4

W e o b s er ve that while Hunt’s notice of appea l challeng es J udg e Davis’s order deny ing 1 3 his motion to disqualify J udg e Yelenosky , he has not prese nted an issue, arg ument, or authorities that would demonstrate r ever sible err or in that ruling

.

Rule 45 took eff

ect on September 1, 1997. I t repla ced former rule 8 4 an d b ro adened 1 4 appellate courts’ ability to awa rd sanctions by omitti ng lang uag e in the former rule authorizing the awa rd of “dama g es ‘f

o r d el ay ’ only if we found ‘that an appellant ha[d] taken an appea l for delay and without sufficient cause .’” Smith v. Bro w n , 51 S.W .3d 376, 380 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)

. Courts construed this lang uag e to require a finding that the appea l was taken in bad faith. Id. Most courts that have considere d the i ssue have conclude d that a s howing 17to consider in deter mining whether an appea l is frivolous. Chapman v. Hootman , 999 S.W .2d 118, 124 (Tex. App.—Houston [14t h Dist.] 1999, no pet.).

After revie wing the rec ord and briefing filed i n t h i s C ourt, we ag ree with CI T that Hunt had no rea sonable g rounds to believe the judgme nt could be reve rsed. Our rea sons include Hunt’s unsupported factua l statements (and misstatements), repe ated f ailures to pre serve err or for
appea l, and the abse nce of leg al merit i n his arg uments. His arg uments do not have “ a re asonable basis in law” so as to “constitute[] an informed, g ood-fa ith challeng e to a trial court j u d gment.”
Gene ral Elec. Credit Corp. v. Midland Cent. Appraisal Dist. , 8 2 6 S

. W.2d 124, 125 (Tex. 1991) (per curi am ). We also find Hunt’s unsubstantiated attacks on the presiding judge indicative of bad faith. Fur

thermore , Hunt has not challeng ed C I T’s claim for sanctions un d er ru l e 4 5 , despite notice and a

n opportunity

to do so. See id. We hold that Hunt’s appea l is objectively frivolous.
We may awa

rd “just damag es” if the appea l is objectively frivolous and injured CI T. Njuku v. Middleton , 20 S.W .3d 176, 178 (Tex. App

. — Da l las 2000, pet. denied). Hunt’s fil ing of this appea l has cause d CI T to expend time, money , eff ort and other resour ces to defe nd the appea l.
CI T has reque sted an awa rd of $25,000. Courts awa rd ing sanctions for a frivolous appea l under rule 45 ty pically awa

rd attorney ’s fee s for the appea l. See, e.g. , Smith , 51 S.W .3d at 382 ($5,000); Chapman , 999 S.W .2d at 125 ($5 , 0 0 0); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp. , 2 S.W .3d 393, 397 (Tex. App.—San Antonio 1999, no pet.) ($5,000); Diana Rivera & Assocs., P.C.

of bad faith is no longe r req u ired. Texas State Taekwondo Ass’n v. Lone Star State Taekwondo Ass’n , No. 08-01-00403- CV, 2002 WL 1874852, at *2 (Tex. App.—El Paso Aug

. 15, 2002, no pet.) (not desig nat ed fo r publication) (collec ting case s and holding sanctions appropr iate under either standard in case involving enfor cea ble Rule 11 ag ree ment waiving parties’ rig ht to appea l outcome of binding summary

jury trial). 18v. Calvillo , 986 S.W .2d 795 (Tex. App.—Corpus Christi 1999, pet. d en i ed) ($8,800). Proof by

aff idavit is a proper method of establishing the appropr iate sanction for the filing of a frivolous
appea l, Smith , 51 S.W .3d at 382, althoug h some courts have awa rded dam age s even when the appellee provided no evidenc e of damag es, see Lee v. Aurora Loan Servs., L.L.C

. , No. 06-08-00077- CV, 2009 WL 167067, at *3 (Tex. App.—Texarkana J an. 27, 2009, no pet.) (mem. op.) ( $7,500); Njuku , 20 S.W .3d at 178 ($5,000); Salley v. Houston Lighti ng & Power Co. , 801 S.W .2d 230, 232 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (aw arding $6,000 when trial court’s judgme nt

was non-mone tary

).
CI T asks us to awa

rd $25,000 without providing any basis fo r t h i s amount. The j u dg ment below has alre ady awa rded CI T $20,000 in attorney ’s fee s for an appea l to this Cou rt

. Neve rtheless, considering the nature of Hunt’s conduct in this appea l, including Hunt’s unsupported attacks on the district court, we awa rd CI T an additional $5,000 ag ainst Hunt as just damag es for this frivolous appe al.

_________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Apr il 15, 2010

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