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 Coun ty, 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. Jung enb erg 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 t wo gr ounds:2

(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 th at 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 bec ause 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 All e n’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 propert y ha s 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 eviden ce o f the sale, Jungenberg attache s 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 kn owledge i n its off icial 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 attor ney, and her mo tio n depends on facts that are3

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 t he docume nt inc omp etent 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 t her e 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 ap pellant did not dispute the appellee’ s

asse rti on 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 a n appe lla te 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
ap pellate briefing , the record does not show thi s 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 judgm ent. Wausau Underwriters Ins. v . Wedel , 557 S. W.3d 55 4, 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

e vidence fa vorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.4

C. Tax Sale Judgment
In her first issue, Allen contends that the summary judg ment must be reversed because , although Jungenb erg fil ed 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

s ection 33.54 of the Tax Code.

Section 33.54 , entitle d “ 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 rul e is that the action must be commenced “before the fir st 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 purc haser at the tax sale or the purchaser’s succes sor in int erest 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.

F or the first time on appeal, Allen contends tha t Junge nbe rg 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 evide nce. All en 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. Bust amante , 158 S.W.3d 29, 40

– 41 (Tex. App.

— Houst on [14th Dis t.] 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 the5

plaintiffs’ contention that the successo r “ 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. Reconveya nce Corp. , 309 S.W.3d 619, 630 (Tex. App.

— Hou ston [14t h D ist.] 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, t he trial

court ’s summary judgment is not erroneous due to Jungenberg ’s failure to inclu de the tax sa le 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 no tice” in the tax suit , citin g Mennonite Bo ard o f Missi ons 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 dem onstrates a jurisdictional d efect. Remote Control Hob bies, 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 appell ant bears the burden of
pr esenting 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 argume nt in response to the moti on for summary judgment, nor did she file any evidence to substantiate her argument. She does not6

cite to the record to support her contention on appeal that the “default tax judgment that the property in question was subjected t o, was based u pon citation by publication.” She cites only to her petition to contend that she was not a party to

t he 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 Herma nn Health Sys. , 561 S.W.3d 253, 256 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) (citing Laidlaw Waste Sys. (Dalla s), 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.) (aff

irming denia l 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; Remot e Control , 2 014 WL 1267073, at *1. Accordingly, the trial court did not err by granting summary judgm ent to Jungenberg based on her deed.
Allen’s second issue is overruled.

E. Rule 11 Agreement
In her third issue, Allen contends that the tr ial court “ gran ted more rel ief that requested ” because the purported Rule 11 agreement does not comport with the

esse ntial elements of such an agreement. We will affirm a summary judgment if any of the theories presented to the trial court and preserved fo r appellate rev iew are meri torious. 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 s ection 33.54 ground, we need not and do not address the propriety of the purported Rule 11 agreemen t as a groun d for the7

summary judgment. See id. ; see also Tex. R. App. P. 44.1(a); Tex. R. App. P. 4 7.1.
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

.