Summary
holding section 34.04(e) authorizes only interlocutory appeals of orders granting petitions for excess proceeds and dismissing interlocutory appeal of order denying petition for excess proceeds for want of jurisdiction
Summary of this case from Mount Vernon United Methodist Church v. Harris Cnty.Opinion
No. 05-15-01002-CV
07-14-2016
2012 PROPERTIES, LLC, Appellant v. GARLAND INDEPENDENT SCHOOL DISTRICT, CITY OF GARLAND, COUNTY OF DALLAS, DALLAS SCHOOL EQUALIZATION FUND, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, PARKLAND HOSPITAL DISTRICT, HEIRS AND UNKNOWN HEIRS OF LENA M. HOBBS, AND CHARLES RANDALL HOBBS, Appellees
On Appeal from the 134th Judicial District Court Dallas County, Texas
Trial Court Cause No. TX-12-40136-G
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Schenck
Opinion by Justice Myers
2012 Properties, LLC appeals the trial court's order denying appellant's motion to distribute to it excess funds from a property tax foreclosure sale. Appellant brings one issue on appeal, contending that equitable subrogation is allowed under Texas Tax Code section 34.04. See TEX. TAX CODE ANN. § 34.04 (West 2015). We conclude we lack jurisdiction over this appeal, and we dismiss the appeal.
BACKGROUND
Lena Hobbs owned a tract of land. She died intestate in 2005, and her heirs, her three children Charles Hobbs, Tonya Broyles, and Lisa Greunke, became the owners of the property. In 2012, various taxing units brought suit against the owners seeking judgment for unpaid property taxes.
The suit was originally filed by Garland Independent School District. Subsequently, the other taxing units intervened in the suit.
On June 12, 2013, the trial court rendered judgment for the taxing units awarding judgment against the owners for the property taxes for tax years 2010 and 2012 and declaring the taxing units had liens against the property securing payment of the taxes. The court's judgment stated the liens were foreclosed and that the clerk would issue an order of sale. The judgment required the clerk to issue a writ of possession to the purchaser at the foreclosure sale. The judgment also required that the proceeds from the sale be applied to the payment of the costs, that any excess proceeds be distributed to the taxing units in satisfaction of the taxes due, and that any remaining proceeds be paid to the clerk of the court. When the owners subsequently did not pay the judgment, the trial court ordered the property be sold. The trial court stated in the order for sale of the property that the property's fair market value was $54,760. Appellant was the successful bidder at the foreclosure sale on October 7, 2014, paying $35,100 for the property. After payment of the judgment and the costs and fees for the sale, excess funds of $28,130.27 were deposited in the registry of the court.
When appellant purchased the property, there were accrued but unpaid property taxes for the period between the June 12, 2013 judgment and the foreclosure sale on October 7, 2014. Although appellant was not personally liable for the payment of these taxes, the property was subject to a lien securing their payment.
On December 8, 16, and 29, 2014, the taxing units and one of the former property owners, Charles Hobbs, filed motions for distribution of the excess proceeds to them. The taxing units requested funds sufficient to pay the outstanding property taxes accrued since the judgment of foreclosure, and Charles Hobbs sought his share of the remainder of the excess proceeds as a former owner of the property. See TEX. TAX CODE ANN. § 34.04(c)(5).
On January 8, 2015, the trial court signed an order stating there was $27,780.27 deposited with the court as excess proceeds from the tax sale, and the court ordered the district clerk to release $8,436.29 of the proceeds (one third of $25,308.87) to Charles Hobbs's attorney.
On January 20, 27, and 28, 2015, appellant paid the full amount of the outstanding property taxes for 2014, and most, but apparently not all, of the property taxes, penalties, interest, and attorney's fees for 2013. In May 2015, one of the other former property owners, Tonya Broyles, filed a petition for excess proceeds. In June 2015, appellant filed its petition for excess proceeds. Appellant asserted that by paying the property taxes, it was equitably subrogated to the taxing units' liens and was entitled to recover from the excess proceeds the amount of tax it paid that had accrued before it purchased the property. See TEX. TAX CODE ANN. § 34.04(c)(2) (court shall order that excess proceeds be paid "to a taxing unit for any taxes, penalties, or interest that have become due or delinquent on the subject property subsequent to the date of the judgment").
On August 13, 2015, the court ordered the district clerk to release $8,436.29 from the excess proceeds to Tonya Broyles's attorney. That same day, the trial court signed an order denying appellant's petition for excess proceeds. On August 19, 2015, appellant filed a notice of appeal from "the trial court's judgment rendered on August 13th, 2015."
JURISDICTION
This Court's appellate jurisdiction originates in article V, section 6(a) of the Texas Constitution: "Said Court of Appeals shall have appellate jurisdiction . . . under such restrictions and regulations as may be prescribed by law." TEX. CONST. art. 5, § 6(a). The legislature provided the appellate courts with general appellate jurisdiction over all civil cases where there is a final judgment and the amount in controversy exceeds $250. TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West 2015). This Court has appellate jurisdiction over other matters as specifically provided by the legislature. See, e.g., id. § 51.014 (West Supp. 2015) (appellate jurisdiction to review interlocutory orders). However, our jurisdiction to review appeals from orders other than final judgments is strictly limited to the scope prescribed by the statute authorizing the appeal. CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011).
In a delinquent property tax proceeding, the final judgment is the order granting judgment to the taxing units for the unpaid taxes. Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A post-judgment order made for the purpose of enforcing or carrying into effect a prior judgment is not a final judgment, and it is not subject to appeal absent specific legislative authorization. Walter v. Marathon Oil Corp., 422 S.W.3d 848, 855 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also Wagner v. Warnasch, 295 S.W.2d 890, 892-93 (Tex. 1956) (consent judgment required party to construct cattle guards; court's subsequent order requiring party to construct cattle guards within sixty days or be held in contempt was not a final and appealable judgment); Kelly v. Wiggins, 466 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("post-judgment orders made for the purpose of enforcing or carrying into effect a prior judgment are not subject to appeal because they are not final judgments"). An order from a proceeding under Tax Code section 34.04 for distribution of excess proceeds from a tax foreclosure sale is a post-final-judgment proceeding; it is not a final judgment subject to appeal under section 51.02 of the Civil Practice and Remedies Code. Royal Indep. Sch. Dist., 273 S.W.3d at 764; cf. Kelly, 466 S.W.3d at 327-28 (judicial foreclosure order was not a final judgment but was a post-judgment enforcement order).
Section 34.04 of the Tax Code governs claims for excess proceeds from a tax foreclosure sale. Section 34.04(e) provides, "An order under this section directing that all or part of the excess proceeds be paid to a party is appealable." TEX. TAX CODE ANN. § 34.04(e). This provision does not permit an appeal of an order denying a petition for excess proceeds. Nichols v. County of Dallas, No. 05-09-01426-CV, 2011 WL 5027490, at *1 (Tex. App.—Dallas Oct. 24, 2011, pet. denied) (mem. op.).
Appellant argues that although the statute expressly allows appeals from orders directing that excess proceeds be paid to a party, the statute does not purport to prohibit an appeal from an order denying a request for payment of excess proceeds. However, the canon of statutory construction, "expressio unius est exclusio alterius," literally "the specific mention of one is the exclusion of the other," requires us to presume that the legislature's specific mention of one thing "is equivalent to an express exclusion of all others." Johnson v. Second Injury Fund, 688 S.W.2d 107, 108-09 (Tex. 1985) (quoting State v. Mauritz-Wells Co., 175 S.W.2d 238, 241 (Tex. 1943)). Applying that canon of construction, we must presume that when the legislature authorized appeals of orders under section 34.04 directing that all or part of the excess proceeds be paid to a party, the legislature expressly prohibited appeals from other orders. Moreover, we strictly construe statutes authorizing appeals from orders other than final judgments. CMH Homes, 340 S.W.3d at 447.
Appellant observes that before the statute was amended in 2009, section 34.04(e) provided the right to appeal "an order under this section." Act of May 17, 2001, 77th Leg., R.S., ch. 1430, § 27, 2001 Tex. Gen. Laws 5109, 5118, amended by Act of May 14, 2009, 81st Leg., R.S., ch. 254, § 2, 2009 Tex. Gen. Laws 698, 699. The Senate's bill analysis of the 2009 amendment of section 34.04(e) states the amendment "[m]akes a nonsubstantive change." Senate Finance Comm., Bill Analysis, Tex., H.B. 406, 81st Leg., R.S. (2009) ("(e) Provides that an order under this section directing that all or part of the excess proceeds be paid to a party is appealable. Makes a nonsubstantive change."). Appellant argues we should apply the legislature's intent as expressed in the bill analysis that the amendment does not make a substantive change and interpret section 34.04(e) as authorizing an appeal of any order under section 34.04, as the pre-2009 version of section 34.04(e) provided. Although we may "consider legislative history" when construing a statute "whether or not the statute is ambiguous on its face," TEX. GOV'T CODE ANN. § 311.023(3) (West 2013), we "do not resort to extrinsic aides, such as legislative history, to interpret a statute that is clear and unambiguous because the statute's plain language 'is the surest guide to the Legislature's intent.'" Sullivan v. Abraham, No. 14-0987, 2016 WL 1513674, at *4 (Tex. Apr. 15, 2016) (citations omitted) (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)). Section 34.04(e) is clear and unambiguous: orders directing that proceeds from a tax sale be paid to a party are appealable. The provision does not permit appeal of any other type of order. Because the statute is clear and unambiguous, we "do not resort to extrinsic aides, such as legislative history" to interpret the statute. Moreover, the Senate's Bill Analysis is not the only piece of legislative history discussing the amendment to section 34.04(e). The House's bill analysis states the amendment "clarifies that an order directing all or part of the excess proceeds to be paid to a party is appealable." House Ways & Means Comm., Bill Analysis, Tex. H.B. 406, 81st Leg., R.S. (2009). The House's bill analysis indicates the legislature intended the amended version to be a clearer expression of which orders may be appealed, namely, those orders directing that excess proceeds be paid to a party.
Appellant also argues that it would be arbitrary, capricious, and nonsensical for the legislature to permit appeals from orders to pay excess proceeds to a party but not to permit appeals from orders denying payment of excess proceeds to a party. We disagree. An order to pay proceeds is the order resolving the ultimate question of how some or all of the funds in the court's registry are to be distributed and thus is a final determination as to the funds ordered paid. An order denying payment of excess proceeds does not resolve the question of the disposition of any of the funds and leaves that issue pending before the trial court. Thus, the legislature's decision to allow appeals from orders to pay proceeds but not from orders denying payment of proceeds has a rational basis and is not arbitrary, capricious, or nonsensical.
Applying section 34.04(e) to this appeal, we have jurisdiction to review the trial court's order granting Tonya Broyles's petition for excess proceeds, but we do not have jurisdiction to review the trial court's order denying appellant's petition for excess proceeds.
Appellant's brief makes clear that appellant seeks to appeal the denial of its petition for excess proceeds. In the "Statement of the Case" section of its brief, appellant states, "This is an appeal from a petition for excess proceeds filed in a delinquent property tax suit after the sale of the subject property . . . . 2012 Properties, LLC appeals the order denying the relief requested in its petition." In the "Statement of Facts," appellant states, "The Court sided with the former owners and the taxing authorities, denying the petition of 2012 Properties, LLC. This appeal ensued." In its argument, appellant states, "Thus, the Court should have ruled in 2012 Properties, LLC's favor on its equitable subrogation claim," which was asserted in the petition for excess proceeds. In its prayer for relief, appellant requests "[t]hat the trial court's order denying the relief requested in 2012 Properties, LLC's petition be reversed" and "[t]hat this court hold that 2012 Properties LLC has established its equitable subrogation claim." The last page of appellant's brief before the appendix is the "Index of Appendix," which identifies the "Order Appealed From" as the order denying appellant's petition for excess proceeds. All of these excerpts from appellant's brief show appellant is appealing the denial of its petition for excess proceeds and not "[a]n order under this section directing that all or part of the excess proceeds be paid to a party." TEX. TAX CODE ANN. § 34.04(e).
Although appellant's brief contains assertions that denying equitable subrogation will unjustly enrich the former owners, appellant's arguments are in support of its argument that the trial court erred by denying appellant's petition for excess proceeds. The arguments do not purport to challenge the trial court's orders disbursing the excess proceeds to the former owners.
CONCLUSION
We conclude we lack jurisdiction over appellant's appeal. We dismiss this appeal.
/Lana Myers/
LANA MYERS
JUSTICE 151002F.P05
JUDGMENT
On Appeal from the 134th Judicial District Court, Dallas County, Texas
Trial Court Cause No. TX-12-40136-G.
Opinion delivered by Justice Myers. Justices Whitehill and Schenck participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.
It is ORDERED that appellees GARLAND INDEPENDENT SCHOOL DISTRICT, CITY OF GARLAND, COUNTY OF DALLAS, DALLAS SCHOOL EQUALIZATION FUND, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, PARKLAND HOSPITAL DISTRICT, HEIRS AND UNKNOWN HEIRS OF LENA M. HOBBS, AND CHARLES RANDALL HOBBS recover their costs of this appeal from appellant 2012 PROPERTIES, LLC. Judgment entered this 14th day of July, 2016.