Court of Appeals of Texas, Twelfth District, Tyler
from the 87th District Court of Anderson County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
McKnight appeals the trial court's grant of summary
judgment in favor of John Moss. In a single issue, he
contends that Moss did not present legally sufficient
evidence in support of his motion for summary judgment. We
reverse and remand.
owned a piece of property in Anderson County, Texas. When his
property taxes became delinquent, Anderson County foreclosed.
Moss purchased the property at the tax sale. Following the
sale, McKnight exercised his right to redeem the property
under the Texas Tax Code. Anderson County sent Moss a notice
informing him of McKnight's redemption.
intervened in the foreclosure suit, filing a notice of
appearance and post-judgment motion to set aside. Moss
claimed McKnight did not comply with the redemption statute.
Specifically, Moss alleged he was not reimbursed for his
associated "costs, " as defined by the tax code. He
sought a declaratory judgment that he was entitled to
ownership of the property.
later moved for summary judgment on his claim. McKnight filed
a response, but it was untimely and not considered by the
trial court. After a hearing, the trial court granted
Moss's motion for summary judgment. This appeal followed.
only issue, McKnight argues the trial court erred in granting
summary judgment for Moss because the evidence is legally
movant for traditional summary judgment has the burden of
showing that there is no genuine issue of material fact and
that he is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). When the movant seeks
summary judgment on a claim in which he has the burden of
proof, he must prove all elements of his cause of action as a
matter of law. See Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999). Once the movant establishes a
right to summary judgment, the nonmovant must respond to the
motion and present to the trial court any issues that would
preclude summary judgment. See City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
Except to attack the legal sufficiency of the movant's
grounds for summary judgment, the nonmovant must expressly
present to the trial court in a written answer or response
any reason for avoiding the movant's entitlement to
summary judgment. McConnell v. Southside Indep. Sch.
Dist., 858 S.W.2d 337, 343 (Tex. 1993).
review a trial court's summary judgment ruling de novo.
Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). In doing so, we take as true all
evidence favorable to the nonmovant, resolve all conflicts in
the evidence in the non-movants' favor, and "indulge
every reasonable inference and resolve any doubts in the
nonmovant's favor." Steel, 997 S.W.2d at
223; see also Sudan v. Sudan, 199 S.W.3d 291, 292
(Tex. 2006); KPMG Peat Marwick v. Harrison Cnty. Hous.
Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A fact
issue arises when "reasonable and fair-minded jurors
could differ in their conclusions in light of all of the
evidence presented." Goodyear Tire & Rubber Co.
v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).