Hays v. Butler (Tex.App.- Houston [1st Dist.] May 21, 2009)
(property tax litigation, validity of tax judgment void judgment, foreclosure, real estate litigation, title dispute)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00197-CV Lloyd Hays and Shelia Manus v. J. Dude Butler and Karen B. Butler
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon Wayne Mallia
O P I N I O N
Appellants, Lloyd Hays and Shelia Manus, appeal from the trial court's judgment rendered following a bench
trial that quiets title to the property in favor of appellees, J. Dude Butler and Karen B. Butler (the Butlers). In
their first issue, Hays and Manus contend the trial court erred by quieting title to the property in the Butlers
because Hays and Manus acquired their property through a series of transactions stemming from a tax
foreclosure sale, which limits the period of time that the sale can be challenged, and the Butlers did not
challenge the sale within that period of time. The second issue presented by Hays and Manus challenges the
trial court's award for the Butlers' attorney's fees.
We conclude the lawsuit is not barred by limitations, and therefore, do not reach the second issue that is
contingent on our reversal of the first issue.
We affirm the judgment of the trial court.
This lawsuit concerns a dispute over ownership of Block 17 of the Clifton Land and Production Company
Subdivision in Galveston County, Texas (hereinafter "Block 17"). Hays and Manus claim title through a series
of transactions traced back to the Clear Creek Independent School District. The Butlers claim title through
Obie Wayne Phillips and Velma Phillips.
More than 20 years ago, the Phillipses sued William Jeffrey, among other defendants, to quiet title in a
number of parcels of real property, including Block 17. In 1987, the 56th District Court of Galveston County
rendered judgment that the Phillipses recover fee simple title to and possession of multiple parcels, including
A 7.780 acre tract out of Blocks 16 and 17 of the Clifton Land and Production Company Subdivision, E.
Payne Survey in Galveston County, Texas according to the Plat as recorded in Vol, 254, Page 4 of the
Galveston County Clerk's Records, said tract being more particularly described by metes and bounds in
Exhibit "D" hereto which is incorporated by reference.
Phillips v. Jeffrey, No. 85-CV-1373 (56th Dist. Ct., Galveston County, Tex. Oct. 12, 1987). Attached to the
judgment as Exhibit D was a survey dated February 25, 1985, which described the tract as shown above, but
without the words "E. Payne Survey" and with a metes-and-bounds description. The judgment was recorded
in Galveston County on March 4, 1988.
Five years later, the 122nd District Court of Galveston County rendered a default judgment against Jeffrey
for unpaid property taxes. Among other things, the judgment awarded property described in Exhibit A to
Clear Creek ISD to be sold in satisfaction of the amount of the judgment. Clear Creek Ind. Sch. Dist. v.
Jeffrey, No. 93TX0016 (122nd Dist. Ct., Galveston County, Tex. Mar. 18, 1993). Exhibit A described the
property asLOTS 1 THROUGH 20, CLIFTON LAND AND PRODUCTION COMPANY SUBDIVISION, EDWARD
PAYNE SURVEY, ACCORDING TO THE MAP RECORDED IN VOL. 238, PAGE 8 OF THE OFFICE OF THE
COUNTY CLERK OF GALVESTON COUNTY, TEXAS.
Five years after the county seized Jeffrey's land, Clear Creek Independent School District conveyed to Jimmy
Brock by quit-claim deed the same real property that was described in Exhibit A in the 122nd District Court.
However, this deed additionally specified that the property was "the same property which relates to Clear
Creek Independent School District tax account number 4635-0017-0001-000." Jimmy recorded the deed in
Galveston County in June 1998.
Many deeds containing similar language, but never including "Block 17," were transferred and recorded
between 1998 and 2004. Jimmy conveyed the property by warranty deed to Cecilia Brock and Ivan
Menendez in 1998, and the deed was recorded. A year later, Menendez conveyed by warranty deed his
interest in the property back to Jimmy, and the deed was recorded. In 2003, the previous deed was refiled,
adding Cecilia's name to the deed. In 2004, Cecilia, as executor for Jimmy, conveyed by warranty deed
Jimmy's interest in the property to herself, and the deed was recorded.
In 2006, Cecilia, by warranty deed, conveyed the property to Hays and Manus, describing the property as:
ABSTRACT 164, PAGE 10, LOTS 1 THROUGH 20, BLOCK 17, CLIFTON LAND PRODUCTION COMPANYS
[sic] SUBDIVISION, GALVESTON COUNTY, TEXAS.
This was the first time since the 1987 judgment that quieted title in favor of the Phillipses that an instrument
purporting to transfer interest in Block 17 contained the words "Block 17." The deed was recorded.
Three weeks later, on August 24, 2006, the Phillipses, by warranty deed, conveyed the property to the
Butlers. The deed describes the property as:
A tract or parcel of land containing 2.869 acres of land, more or less, being known as Block 17 of the
CLIFTON LAND AND PRODUCTION COMPANY SUBDIVISION, a subdivision in Galveston County, Texas,
according to the map or plat thereof recorded in Volume 254, Page 4, and transferred to Plat Record 3, Map
Number 6, all in the Map Records in the Office of the County Clerk of Galveston County, Texas . . . . (1)
Taking these conveyances together and working back, Hays and Manus acquired the property for which they
claim title from Cecilia, who received it through a series of transactions from Jimmy, who received it from
Clear Creek ISD. The Butlers acquired the property for which they claim title from the Phillipses.
The Butlers filed suit to quiet title to Block 17 in their names. In their amended answer, Hays and Manus
generally denied the Butlers' claim to Block 17, asserting the affirmative defense that the claim was barred by
limitations in section 33.54 of the Texas Tax Code, and counterclaimed to quiet title to the property in their
names. In their amended petition, the Butlers additionally claimed title to Block 16 and, in the event the trial
court determined that Hays and Manus had title to Block 17, claimed a right-of-way for use of a roadway
running between Block 16 and Block 17. The trial court rendered a final judgment quieting title to Block 17 in
the Butlers, and awarding the Butlers $5000 in attorney's fees. (2) The trial court did not make findings of
fact or conclusions of law. Hays and Manus filed motions to reform the judgment and for a new trial, both of
which the trial court denied. The trial court severed the right-of-way claim, which is not at issue in this appeal.
Title to the Property
In their first issue, Hays and Manus assert the limitations period in section 33.54 of the Texas Tax Code
precludes the Butlers from bringing suit to quiet title. The Tax Code states, "When actions are barred by this
section, the purchaser at the tax sale or the purchaser's successor in interest has full title to the property,
precluding all other claims." Tex. Tax Code Ann. § 33.54(c) (Vernon 2008). (3) Hays and Manus, as the
successors in interest to property purchased at the tax sale, contend they have full title to Block 17,
precluding all claims, because the action by the Butlers is barred by limitations. Here, everyone agrees that
the Butlers did not file suit within the period of time required to challenge the property purchased at the tax
sale; the disagreement concerns whether the lack of a definite description of the land conveyed to Clear
Creek ISD means that title was never conveyed.
A tax judgment's property description must be sufficiently particular to allow a party to locate the specific land
being identified. See Manges v. Freer Indep. Sch. Dist., 728 S.W.2d 842, 843 (Tex. App.--San Antonio 1987,
writ ref'd n.r.e.). A property description is sufficient if the writing furnishes within itself, or by reference to
some other existing writing, the means or data by which the particular land to be conveyed may be identified
with reasonable certainty. See Broaddus v. Grout, 258 S.W.2d 308, 309 (Tex. 1953). A judgment for
foreclosure of a tax lien upon real estate which fails to describe a definite tract of land is void. See Arnold v.
Crockett Indep. Sch. Dist., 404 S.W.2d 27, 28 (Tex. 1966).
Though the Texas Supreme Court has shown a "willingness to read property descriptions in tax judgments
alongside the property descriptions in related petitions and judgment rolls to identify the property conveyed,"
AIC Management v. Crews, 246 S.W.3d 640, 647 (Tex. 2008), the extrinsic evidence must exist at the time of
the tax judgment. See AIC Mgmt., 246 S.W.3d at 648-49 (remanding for consideration of HCAD records at
time of deed); Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex. 1972); Willoughby v. Jones, 251 S.W.2d 508,
512 (Tex. 1952) (considering property description in deeds conveying title to owner prior to foreclosure).
The property to which the Butlers claim title is clearly described by block number, subdivision, county clerk
record volume and page, and metes and bounds. In contrast, the property to which Hays and Manus claim
title fails to adequately describe the property as a definite tract of land. Hays and Manus acquired property
from Cecilia in 2006 after Cecilia, through a series of exchanges, acquired the property from Jimmy, who
obtained it at a tax sale by Clear Creek ISD. The description of the property obtained by Clear Creek ISD in
the 1993 judgment is as follows:
•"LOTS 1 THROUGH 20, CLIFTON LAND AND PRODUCTION COMPANY SUBDIVISION, EDWARD PAYNE
•in "THE MAP RECORDED IN VOL. 238, PAGE 8 OF THE OFFICE OF THE COUNTY CLERK OF
GALVESTON COUNTY, TEXAS."
Clear Creek Ind. Sch. Dist. v. Jeffrey, No. 93TX0016 (122nd Dist. Ct., Galveston County, Tex. Mar. 18,
1993). Noticeably absent from this description of the property is the block number of the Clifton Land and
Production Company Subdivision in which lots 1-20 were located, and any metes and bounds description of
the property. While evidence at trial established that Block 17 consisted of exactly 20 lots, that same
evidence established that all blocks surrounding Block 17 consisted of at least 20 lots. Therefore, "lots 1
through 20, Clifton Land and Production Company Subdivision" described many, if not all, blocks in the
Clifton Land and Production Company Subdivision.
The property description in the 1993 tax judgment is insufficient because the writing does not within itself
identify the property with reasonable certainty, nor does the record before us show that the judgment refers
to some other existing writing, the means or data by which the particular land to be conveyed may be
identified with reasonable certainty. See Broaddus, 258 S.W.2d at 309. The 1993 tax judgment's property
description is not sufficiently particular to allow a party to locate the specific land being identified. See
Manges, 728 S.W.2d at 843. Because the 1993 tax judgment fails to describe a definite tract of land, it is
void. See Arnold, 404 S.W.2d at 28.
Hays and Manus attempt to cure the inadequacy of the 1993 judgment with extraneous evidence subsequent
to the 1993 judgment. First, Hays and Manus point out that Clear Creek ISD later conveyed this land to
Brock, with the additional specification that the property was "the same property which relates to Clear Creek
Independent School District tax account number 4635-0017-0001-000." However, this evidence cannot be
used to identify the property because it is extrinsic evidence that did not exist at the time of the tax judgment.
See Morrow, 477 S.W.2d at 541; AIC Mgmt., 246 S.W.3d at 648-49; Willoughby, 251 S.W.2d at 512.
Therefore, the inclusion of an identifying tax number in the deed from Clear Creek ISD to Jimmy Brock may
not be considered to provide more specific information about the property.
Second, Hays and Manus also point to the deed from Cecilia to the Butlers that contains the words "Block
17." Like the tax number information provided after the tax judgment, this evidence is extrinsic and cannot be
considered for the same reasons. See Morrow, 477 S.W.2d at 541; AIC Mgmt., 246 S.W.3d at 648-49;
Willoughby, 251 S.W.2d at 512.
We hold the 1993 tax judgment, to the extent it purports to foreclose Block 17, is void. Because the 1993
judgment is void, title to the property never vested in Clear Creek ISD. Without title, Clear Creek ISD--
through whom Hays and Manus claim title--could not rightfully convey the property. Hays and Manus
therefore lack title to the property. Although the tax code allows a purchaser or successor purchaser of land
conveyed at a tax sale to have "full title to the property," the tax code does not give title to property that was
void due to the lack of a definite description. We hold the trial court did not err by implicitly determining that
section 33.54 is inapplicable, and therefore, limitations under that section do not bar this lawsuit. We
overrule the first issue.Attorney's Fees
In their second issue, Hays and Manus contend the trial court erred by awarding the Butlers $5000 in
attorney's fees. However, in their brief, "Appellants concede that the trial court acted within its discretion in
awarding attorney's fees, provided that Appellees were the title owners of the property." Their assertion that
the trial court erred by awarding attorney's fees is dependent upon our determination of their first issue.
Hays and Manus present no other theories supporting the reversal of the trial court's award of attorney's
fees. Therefore, because we overrule the first issue on appeal, we also overrule the second.
We affirm the judgment of the trial court.
Panel consists of Chief Justice Radack and Justices Alcala and Hanks.
1. The metes and bounds description was as follows:
BEGINNING at a 1/2 inch iron rod set at the Westerly corner of said Blocks 16 and 17 in the Northeasterly
right-of-way line of Vicksburg (40.00 feet wide), said point being South 26 degrees 24 minutes 26 seconds
East, a distance of 333.00 feet from a 1/2 iron rod found,
THENCE North 63 degree 09 minutes 22 seconds East, a distance of 644.91 feet to a 1/2 inch iron rod found
THENCE South 27 degrees 16 minutes 56 second East, a distance of 128.11 feet to a 1/2 iron rod set for
THENCE South 51 degrees 45 minutes 33 seconds West, a distance of 660.89 feet to a 1/2 inch iron rod
found for corner in the said Northeasterly right-of-way line of Vicksburg,
THENCE North 26 degrees 24 minutes 26 seconds West, along said Northeasterly right-of-way line of
Vicksburg, a distance of 258.71 feet to the POINT OF BEGINNING of the herein described tract of land and
containing 2.869 acres of land, more or less.
2. In its final judgment, the trial court described Block 17 as:
a tract or parcel of land containing 2.869 acres of land, more or less, and being known as Block 17 of the
Clifton Land and Production Company subdivision, a subdivision in Galveston County, Texas, according to
map or plat thereof, recorded in Volume 254, Page 4, and transferred to Plat Record 3, Map No. 6, all in the
Map Records in the Office of the County Clerk of Galveston County, Texas . . . .
The trial court also included a metes and bounds description of Block 17, which is identical to the metes and
bounds description included in the deed from the Phillipses to Hays and Manus.
3. Section 33.54 of the Texas Tax Code states:
(a) Except as provided by Subsection (b), an action relating to the title to property may not be maintained
against the purchaser of the property at a tax sale unless the action is commenced:
(1) before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of
(2) before the second anniversary of the date that the deed executed to the purchaser is filed of record, if on
the date that the suit to collect the delinquent tax was filed the property was:
(A) the residence homestead of the owner; or
(B) land appraised or eligible to be appraised under Subchapter C or D, Chapter 23.
(b) If a person other than the purchaser at the tax sale or the person's successor in interest pays taxes on
the property during the applicable limitations period and until the commencement of an action challenging
the validity of the tax sale and that person was not served citation in the suit to foreclose the tax lien, that
limitations period does not apply to that person.
(c) When actions are barred by this section, the purchaser at the tax sale or the purchaser's successor in
interest has full title to the property, precluding all other claims.
Tex. Tax Code Ann. § 33.54 (Vernon 2008). If section 33.54 is applicable, the actions here are barred by
limitations because the actions were not filed until January 9, 2007, which is beyond the limitations period
described in the section.