Appellee’s Motion for Rehearing Granted; Opinion of February 3, 2011
Withdrawn; Affirmed and Majority and Dissenting Opinions on Rehearing filed
February 28, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-09-00617-CV


    DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE
   TRUSTEE FOR NEW CENTURY HOME LOAN TRUST 2006-2, Appellant

                                           V.

                     STOCKDICK LAND COMPANY, Appellee


                       On Appeal from the 215th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-60974


        MAJORITY               OPINION            ON     REHEARING

      We grant appellee’s motion for rehearing, withdraw our opinion issued on
February 3, 2011, and issue this majority opinion on rehearing.

      Following a tax sale of residential property, appellant Deutsche Bank National
Trust Company, as Indenture Trustee for New Century Home Loan Trust 2006-2 (the
“Bank”), brought a declaratory-judgment action against appellee, the tax-sale purchaser
Stockdick Land Company (“Stockdick”), seeking revival of an extinguished lien and
contending (1) the former owners redeemed the property or, in the alternative, (2)
pursuant to the doctrines of estoppel-by-deed and estoppel generally, the purchaser is
precluded from denying the property was redeemed. The Bank and Stockdick filed
competing motions for summary judgment. The trial court denied the Bank’s motion and
granted summary judgment in favor of Stockdick. For reasons outlined below, we affirm
the trial court’s judgment.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

        The property in question is located on Yoakum Boulevard in Houston, Texas.
Gordon Wittenberg and his wife Susan Wittenberg constructed a residence on the
property in 2003. However, title to the property was held by Tribus, Inc., a corporation
owned by the Wittenbergs. Tribus did not pay all of the property tax due for the years
2004 and 2005. During 2005, taxing authorities filed a collection suit against Tribus and
mortgagee, Frost National Bank. On behalf of Tribus, Gordon Wittenberg acknowledged
that the taxes were past due and stated that Tribus planned to pay under an installment
plan.

        On   May     25,      2006,   Tribus   conveyed      title   to   Susan   Wittenberg.1
Contemporaneously, the Wittenbergs refinanced the existing mortgage which had been
held by Frost National Bank. The new indebtedness was secured by a promissory note in
the principal amount of $650,000 in favor of New Century Mortgage Corporation,
secured by a deed-of-trust lien filed for record on June 9, 2006. New Century later
assigned this indebtedness and lien to the Bank. Subsequent to closure of the refinancing
transaction, most of the taxes assessed for 2004 and 2005 were paid. However, either
Tribus or the Wittenbergs owed $4,600 to Houston Independent School District, which
had been assessed for 2005. The taxing authorities sought to recover the unpaid taxes by
filing a tax suit in the 80th District Court (the “tax court”).

        1
        We refer to the Wittenbergs as owners because they are both named on the conveyance
documents.

                                               2
       During February 2007, the the tax court rendered a final judgment for taxes plus
penalties and interest totaling $6,847.63 and ordered foreclosure and sale. The tax court
determined that the market value of the property was $659,100.2 Other than taxing
authorities, the only parties to this judgment were Tribus and Frost National Bank. The
tax sale occurred on June 5, 2007. Stockdick purchased the property for $370,000.
Following receipt of the amount tendered by Stockdick, past due taxes for the years 2005
and 2006 were paid. After all taxes and fees were deducted, net proceeds from the tax
sale were $335,767.52. During the first week of December 2007, Stockdick entered into
a redemption agreement with the Wittenbergs.               The Wittenbergs agreed to remit
$462,500, consisting of $370,000 (price paid by Stockdick) in cash and a promissory note
for $92,500 (amount of statutory redemption premium). The usual real estate conveyance
documents were executed, including a quitclaim deed to the Wittenbergs, a promissory
note, vendor’s lien, and deed of trust. The quitclaim deed and the deed of trust were filed
in Harris County on December 10, 2007.
       The Wittenbergs were required to pay all principal and interest on the promissory
note by July 31, 2008. They paid $370,000 but wholly defaulted on the promissory note.
Stockdick proceeded with non-judicial foreclosure and sale of the property. On October
15, 2008 (approximately three weeks before Stockdick’s foreclosure and sale), the Bank
filed the declaratory-judgment action which is the subject of this appeal in the 215th
District Court (the “trial court”).       The Bank pleaded that the Wittenbergs fulfilled
statutory requisites to redeem the property. The Bank also pleaded that its lien was
reinstated as a valid and subsisting mortgage and is senior and superior to Stockdick’s
deed-of-trust lien. Stockdick filed an answer. Subsequently, the Bank filed a traditional
motion for summary judgment. Stockdick also filed a traditional motion for summary
judgment, asserting the following grounds:
       (1) The Wittenbergs did not redeem the property because they failed to remit


       2
          The tax court was required to include market value in its judgment. See Tex. Tax Code Ann.
33.50(a) (West 2008).

                                                 3
        $92,500 in premium required under section 34.21 of the Tax Code.3
        (2) Stockdick maintained its superior title by reserving a vendor’s lien to
        secure payment of the promissory note.
        (3) The Bank waived its claim that the Wittenbergs redeemed the property.
        (4) The Bank may not prosecute claims under the Declaratory Judgments
        Act; rather, this action should be filed as a trespass-to-try-title.

        In its response to Stockdick’s motion, and with specific reference to Stockdick’s
contention that execution and delivery of the deed did not result in redemption, the Bank
argued, inter alia, that fact issues on its affirmative defenses of estoppel-by-deed and
estoppel generally preclude summary judgment.4 The trial court granted Stockdick’s
motion, denied the Bank’s motion, and rendered a take-nothing judgment against the
Bank.
        Following disposition of both motions for summary judgment, the trial court
granted the Bank’s motion to supplement its pleadings. The Bank filed a second
supplement to its original petition and included the following allegations, in relevant part:
        The Bank has superior right to $335,767.52, constituting the excess proceeds after
        a tax sale of the property to Stockdick. Also, equity demands return of the excess
        proceeds to the Bank.
        The Texas Tax Code sets forth the statutory priorities for payment of excess
        proceeds, and the Bank is a qualified lien holder and former owner as prescribed
        by the statute.
        The Bank is entitled to a hearing on its petition to recover excess proceeds under
        the following theories of recovery: money had and received; restitution; unjust
        enrichment; constructive trust; and conversion.

            The trial court severed these new claims, and all matters pertaining to allocation
of proceeds from the tax sale are now pending in the tax court.5


        3
            See Tex. Tax Code Ann. § 34.21 (West Supp. 2011).
        4
          The Bank filed a first supplemental petition in which it pleaded the affirmative defenses of
estoppel-by-deed and estoppel generally.
        5
          We confine our analysis and disposition in this case to whether the Bank’s lien was revived
through redemption under relevant provisions in the Tax Code or through the equitable doctrine of quasi-
estoppel.

                                                   4
                                               II. ISSUES
        In its original brief, the Bank raises three principal issues: (1) the trial court erred
by denying the Banks’s motion for summary judgment because the Wittenbergs
redeemed the property and the Bank’s mortgage lien was reinstated; (2) the trial court
erred by granting Stockdick’s motion for summary judgment because redemption
occurred after the tax sale and the Bank’s mortgage lien was reinstated; and (3) there are
material fact issues pertaining to whether the property was redeemed.

        In its original brief, the Bank raised several sub-issues which are rendered moot by
our disposition of the Bank’s first two issues. On appeal, the Bank contends there are
fact issues pertaining to its affirmative defense of quasi-estoppel. However, as explained
below, the Bank did not sufficiently present or argue the affirmative defense of quasi-
estoppel in its response to Stockdick’s motion for summary judgment. The Bank argued,
inter alia, that Stockdick’s execution of a quitclaim deed to the Wittenbergs and retention
of sums paid to redeem the property implicate the equitable doctrines of estoppel-by-deed
and estoppel generally. On appeal, the Bank does not emphasize its estoppel-by-deed6
argument, and we conclude it is not applicable because the rights and duties of parties
involved in delinquent tax foreclosure and redemption are uniquely controlled by relevant
provisions of the Tax Code.7 We address quasi-estoppel because our dissenting colleague
heavily relies on this equitable doctrine to support her conclusion that the trial court’s
summary judgment in favor of Stockdick should be reversed.

                                    III. STANDARD OF REVIEW

        Relative to a traditional motion for summary judgment, if the movant’s evidence
conclusively establishes the right to judgment as a matter of law, the burden shifts to the

        6
          The defense of estoppel-by-deed is similar to the doctrine of after-acquired-title and precludes a
grantor from asserting an interest in previously conveyed property. See, e.g., Duhig v. Peavey-Moore
Lumber Co., 135 Tex. 503, 507–08, 144 S.W.2d 878, 880–81 (1940); Masgas v. Anderson, 310 S.W.3d
567, 571 (Tex. App.—Eastland 2010, pet. denied).
        7
          A purchaser at tax sale does not possess legal title to convey upon redemption; if the owner
redeems the property, it is restored to status quo ante. See UMLIC VP LLC v. T & M Sales & Envtl. Sys.,
Inc., 176 S.W.3d 595, 606–07 (Tex. App.—Corpus Christi 2005, pet. denied).

                                                     5
nonmovant to raise a genuine issue of material fact which would defeat summary
judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000). In our de novo review of a trial court’s summary judgment, we consider all
evidence in the light most favorable to the nonmovant, and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of the
summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755 (Tex. 2007). When, as in this case, the order granting summary judgment does not
specify the grounds upon which the trial court relied, we must affirm the summary
judgment if any of the independent summary-judgment grounds is meritorious. FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
         We review both the trial court’s grant of Stockdick’s motion for summary
judgment and denial of the Bank’s motion because both parties sought final summary
judgment. See CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (per
curiam).     Procedurally, we first consider the merits of Stockdick’s motion.        See
Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16, 20 (Tex. App.—Tyler
2003, no pet.). In reviewing the trial court’s rulings on cross-motions, we must consider
all summary-judgment evidence, determine all issues presented, and render the judgment
that the trial court should have rendered. FM Props. Operating Co., 22 S.W.3d at 872.
When both parties move for summary judgment, each party has the burden and neither
will prevail solely because the other party failed to discharge its burden. INAC Corp. v.
Underwriters at Lloyd’s, 56 S.W.3d 242, 247 (Tex. App.—Houston [14th Dist.] 2001, no
pet.).

                                      IV. ANALYSIS

         This is a case of first impression which implicitly presents the following issue:
Whether execution of a promissory note as consideration for redemption fulfills the
requirements of section 34.21 of the Texas Tax Code.

                                             6
        Our review of provisions in the Tax Code that govern foreclosure and sale of
property for failure to pay taxes and procedures for redemption after a tax sale reveals the
State’s strong public policy of compelling timely payment of property taxes. Mortgages
and liens are extinguished when a taxing authority forecloses for non-payment and sells
the property. However, the purchaser at a tax sale must provide opportunity for the
owner to redeem the property.          Holders of mortgages and liens face the prospect that
their interests will not be revived if the property is not redeemed. Statutory owners
(including lien holders) may redeem property sold at tax sale to a purchaser other than a
taxing entity by timely reimbursing all amounts paid by the purchaser plus a premium
amounting to twenty-five percent, or in some cases, fifty percent, of the purchase price.
See Tex. Tax Code Ann. § 34.21(a) (West Supp. 2011) 8; see also UMLIC VP, 176
S.W.3d at 607–08 (holding entity which had deed of trust on land sold at tax sale had
right to redeem property).

A.      Promissory note insufficient as consideration for redemption under section
        34.21

        Disposition of the core issue in this case turns on whether the Wittenbergs fulfilled
the “paying” requirement in section 34.21(a).9               Tex. Tax Code Ann. § 34.21(a).
Therefore, we begin our analysis by focusing on the plain meaning of applicable statutory
language:
        (a) The owner of real property sold at a tax sale to a purchaser other than a
        taxing unit that was used as the residence homestead of the owner . . . may
        redeem the property on or before the second anniversary of the date on
        which the purchaser’s deed is filed for record by paying the purchaser the
        amount the purchaser bid for the property . . . plus a redemption premium
        of 25 percent of the aggregate total if the property is redeemed during the
        first year of the redemption period. . . .

        8
          See footnote 9 for explanation regarding citation to version of section 34.21 available in the
2011 statutory supplement.
        9
          There is no dispute that the Wittenbergs failed to remit the amount due under the promissory
note, and redemption is not accomplished if an owner fails to remit the amount prescribed under the
statute. However, the non-payment of premium issue is subsumed by our conclusion regarding the
validity of a promissory note as consideration for redemption.

                                                   7
        ...
        (f) The owner of real property sold at a tax sale may redeem the real
        property by paying the required amount as prescribed by this section to the
        assessor-collector for the county in which the property was sold, if the
        owner of the real property makes an affidavit stating:
               (1) that the period in which the owner’s right of redemption must be
        exercised has not expired; and
               (2) . . . that the owner and the purchaser cannot agree on the amount
        of redemption money due, or that the purchaser refuses to give the owner a
        quitclaim deed to the property.

        (f-1) An assessor-collector who receives an affidavit and payment under
        Subsection (f) shall accept that the assertions set out in the affidavit are true
        and correct. The assessor-collector receiving the payment shall give the
        owner a signed receipt witnessed by two persons. The receipt, when
        recorded, is notice to all persons that the property described has been
        redeemed. The assessor-collector shall on demand pay the money received
        by the assessor-collector to the purchaser.10

Id. § 34.21 (emphasis added).

        In its original brief, the Bank contends the Wittenbergs fulfilled all statutory
requirements to redeem the property.11 The Bank also contends substantial compliance
with the statute is sufficient, but the parties have not cited, and our research has not
revealed, any binding authority directly addressing this question.                   Accordingly, we
presume for the sake of argument that the Wittenbergs were required to substantially
comply with section 34.21.




        10
           The redemption period for the Wittenbergs expired on March 20, 2010, the second anniversary
of the date on which the purchaser’s deed was filed for record. The versions of subsections (f) and (f-1)
quoted here apply to redemptions that take place on or after September 1, 2009. See Act of May 21,
2009, 81st Leg., R.S., ch. 374, §§ 2, 3, 2009 Tex. Gen. Laws 913, 914. Relative to redemptions that
occurred between June 5, 2007 and August 31, 2009, there was no subsection (f-1), and the text of
subsection (f) was different; however, the differences in these two versions are not material to statutory
construction responsive to the issue in this case. Accordingly, the current version is cited.
        11
            Conversely, in its response to Stockdick’s motion for summary judgment, the Bank argued
there is no statutory authority for Stockdick to retain a vendor’s lien and suggested section 34.21(f)
specifies that the tax-sale purchaser must grant a quitclaim deed without reservations.

                                                    8
        Stockdick contends the property was not redeemed because the Wittenbergs did
not pay statutorily prescribed redemption premium. The Legislature did not define the
terms “paying” or “pay.”           Moreover, the parties have not cited, and we have not
identified, any Texas authority addressing the textual meaning of the words “paying” or
“pay” or whether execution of a promissory note in favor of the purchaser constitutes
“paying” within the meaning of this statute. Accordingly, disposition of this appeal
necessarily involves interpretation of the word “paying” in section 34.21(a). 12                       In
construing a statute, our objective is to determine and give effect to the Legislature’s
intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If
possible, we ascertain that intent from the language in the statute and should not look to
extraneous matters to glean the Legislature’s intent. Id. If the language is unambiguous,
we adopt the interpretation supported by the plain meaning of the words. See St. Luke’s
Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). We must not engage in
forced or strained construction; instead, we must yield to the plain language chosen by
the Legislature. See id. (quoting RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d
605, 607 (Tex. 1985)).

        Consequently, we construe provisions based on ordinary meaning of the words.
See City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006). The
infinitive “to pay” has various meanings in ordinary usage, including both to give money
to another and to give to another what is due. See Webster’s Third New Int’l Dictionary
1659 (1993 ed.) (stating various definitions for “to pay,” including “to . . . discharge an
obligation to: make due return to” and “to make any agreed disposal or transfer of
(money)”).

        Our construction of the word “paying” in subsection (a) of section 34.21 is
informed by language in subsections (f) and (f-1). Under the latter subsections, if the
owner and purchaser do not agree on the redemption amount or if the purchaser refuses to
        12
          The right of redemption under section 34.21(a) is also expressed in article 8, section 13 of the
Texas Constitution. See Tex. Const. art. 8, § 13. The relevant language is substantially similar; however,
the Bank has not adverted to a constitutional right of redemption.

                                                    9
give the owner a quitclaim deed, the owner may redeem the property by “paying” the
redemption amount to the assessor-collector for the county in which the property was
sold. See Tex. Tax Code Ann. § 34.21(f), (f-1). Significantly, in subsection (f), the
Legislature refers to the redemption amount to be paid under subsection (a) as “the
amount of redemption money due.” Id. § 34.21(f) (emphasis added). In addition, after
the owner has paid the assessor-collector, the assessor-collector shall give the owner a
signed receipt and “shall on demand pay the money received by the assessor-collector to
the purchaser.”      Id. § 34.21(f-1) (emphasis added).   If the owner could “pay” the
assessor-collector by signing a promissory note then the assessor-collector would not
receive any money.

       We acknowledge the rule that “statutes which give the right to redeem are to be
regarded favorably and construed with liberality.” Buckholts v. Alsup, 56 S.W.2d 301,
305 (Tex. Civ. App.—Texarkana 1932, writ ref’d).          Following this admonition, we
construe section 34.21(a) liberally. However, we may not engage in liberal construction
as a license to contradict the plain meaning of the statute. See State v. PR Investments,
180 S.W.3d 654, 665 (Tex. App.—Houston [14th Dist.] 2005) (en banc), aff’d, 251
S.W.3d 472 (Tex. 2008).
      To support its argument that the redemption amount need not be paid in cash, the
Bank relies on Jensen v. Covington, 234 S.W.3d 198, 206–07 (Tex. App.—Waco 2007,
pet. denied). But the court in Jensen did not address the plain meaning of the term
“paying” in section 34.21 or whether a promissory note in favor of the purchaser
constitutes “paying.” Instead, the Jensen court concluded that tender of the redemption
amount was sufficient for compliance with section 34.21. See id. The court decided
whether the tender in that case was sufficient—not whether payment pursuant to
promissory note effected a redemption. See id. The Jensen case is not on point.

      Stockdick bore the burden of overcoming the presumption that redemption was
effective. See Gonzalez v. Razi, 338 S.W.3d 167, 171 (Tex. App.—Houston [1st Dist.]
2011, pet. filed).     The undisputed summary-judgment evidence militates the legal

                                            10
conclusion that the Wittenbergs failed to redeem the property. The Wittenbergs wholly
defaulted on the promissory note and failed to fulfill their statutory obligation to remit all
sums required to redeem the property. Under our interpretation and application of the
Tax Code to undisputed facts, Stockdick has fulfilled its burden. Accordingly, we hold a
promissory note does not constitute “redemption money” or satisfy the requirement of
“paying” sums required to be paid under sections 34.21(a) of the Tax Code. The Bank’s
first two issues are overruled.

B. The Bank failed to raise quasi-estoppel

        In its third issue, the Bank contends there are fact issues precluding the trial
court’s grant of summary judgment in favor of Stockdick. As previously explained, all
sub-issues pertaining to whether the property was redeemed by the Wittenbergs are
rendered moot by our disposition of the Bank’s first two issues. We address the Bank’s
quasi-estoppel13 arguments in order to respond to our dissenting colleague’s concerns,14

        13
            The law recognizes at least two independent doctrines of estoppel: equitable estoppel and
quasi-estoppel. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex. App.—Corpus Christi
1994, writ denied). Similar to equitable estoppel, quasi-estoppel requires mutuality of parties; the
doctrine may not be asserted by or against a “stranger” to the transaction that gave rise to the estoppel.
See Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 882 (N.C. 2004); see also Swilley v. McCain, 374
S.W.2d 871, 875–76 (Tex. 1964). The Bank argues that it had no knowledge regarding the Wittenbergs’
attempt to redeem the property and further denies any suggestion that it had an opportunity to redeem the
property before it filed this action for declaratory relief. Accordingly, the Bank admits it was a stranger to
the tax sale, the Wittenbergs’ attempt to redeem the property, and foreclosure proceedings. Consequently,
even if the Bank had properly presented and argued quasi-estoppel before the trial court, we question
whether it applies to the undisputed facts in this case. Our dissenting colleague cites no Texas authority
supporting the proposition that purported inconsistent conduct by party A (Stockdick) toward party B (the
Wittenbergs) will support the equitable remedy of quasi-estoppel advanced by party C (the Bank) when
party C is admittedly a stranger to the transaction between parties A and B.
        14
            Our dissenting colleague holds fast to the conclusion that the summary-judgment evidence
raises an issue regarding whether Stockdick, through language in the quitclaim deed, “took the position in
the Deed that the Wittenbergs had redeemed the Property in December 2007.” The dissent labors to
identify a fact issue supporting quasi-estoppel relative to the Bank’s lien by construing language in one of
several conveyance documents executed between Stockdick and the Wittenbergs. After supplying
dictionary definitions and case authority construing the words “pursuant to,” our colleague opines that the
deed is ambiguous regarding whether Stockdick and the Wittenbergs intended a present redemption,
without payment of all sums due under the contemporaneously signed promissory note or without
payment of all sums required to be paid under the Tax Code. Under this construction of language in the
quitclaim deed, there is no impediment for our colleague to reverse the trial court’s judgment with the
conclusion that there is a fact issue on whether Stockdick and the Wittenbergs intended a present
                                                     11
and with due consideration for the maxim that equity intervenes when the law provides
no remedy. LaSalle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007)
(equitable remedies apply only when there is no remedy at law).

        The Bank failed to present argument and evidence sufficient for this court to
consider its affirmative defense of quasi-estoppel.15 After Stockdick filed a motion for

redemption without payment of the amount due on the promissory note. Of course, this legal conclusion
would contravene the panel’s unanimous conclusion that the Wittenbergs did not redeem the property
because they failed to comply with relevant provisions of the Tax Code. Ostensibly, our colleague
construes the language to determine the intent of both parties to the conveyance documents. However,
our colleague’s analysis ends with the conclusion that “the Deed is reasonably susceptible to more than
one interpretation and thus is ambiguous as to whether Stockdick took the position that the Deed effected
a redemption that occurred in December 2007.” (emphasis added). The dissent fails to recognize the
incongruity of finding a fact issue on whether Stockdick “took the position” that the Wittenbergs
redeemed the property without paying the required redemption premium. Apparently, the dissent finds no
analytical impediment in juxtaposing legal construction of conveyance documents to determine the intent
of the two parties to that transaction with the separate question regarding whether Stockdick’s conduct
requires invocation of the equitable doctrine of quasi-estoppel. In search of a fact issue which
contravenes the trial court’s summary judgment, the dissent engages in mere sophistry by suggesting
Stockdick would ever “take the position” that redemption occurred without payment of redemption
premium. This entire dispute was germinated because of Stockdick’s insistence that it is entitled to
receive redemption premium before relinquishing its statutory tax title.
        15
           The dissent also suggests “a genuine fact issue exists as to whether it would be unconscionable
to allow Stockdick to maintain that no redemption occurred . . . .” However, the Bank did not mention
the word “unconscionable” in Section III of its response to Stockdick’s motion for summary judgment
which was entitled “Estoppel by Deed; Estoppel Generally.” In Section IV, entitled “Stockdick Should
Not Be Allowed a Windfall Above and Beyond the Redemption Premium,” the Bank used the word
“unconscionable” without any argument in support of the affirmative defense of quasi-estoppel. The
word quasi-estoppel was not mentioned in the Bank’s motion for summary judgment or in its responses to
Stockdick’s motion. Moreover, even if the Bank had sufficiently raised quasi-estoppel when this case
was pending in the trial court, Stockdick’s conduct was not unconscionable as a matter of law. Under
express provisions of the Tax Code, Stockdick was entitled to defend its tax title after the Wittenbergs
defaulted on the promissory note. First, under the Tax Code, the Bank’s lien was extinguished on the day
Stockdick purchased the property at the tax sale. See Tex. Tax Code Ann. §33.95 (West 2008). Second,
if Stockdick fulfills all statutory predicates and follows all procedures responsive to an owner’s right of
redemption, subject to the right of redemption, it is the legislative intent and public policy of this State
that Stockdick should receive title to the property free and clear of all liens. Id. §§ 34.01(n) (West 2008),
34.21(a), (e), (f), (j). Third, as a tax-sale purchaser, Stockdick is entitled to full reimbursement of the
amount it paid at the tax sale plus twenty-five percent redemption premium. See id. § 34.21(a). Fourth,
the Wittenbergs defaulted on their promise to pay redemption premium; therefore, Stockdick was
contractually entitled to retain $370,000 and foreclose. Fifth, there is no summary-judgment evidence that
Stockdick refused or obstructed the Bank from exercise of its right (under the Tax Code) to protect its
lien. Sixth, the purchaser at a tax sale is statutorily authorized to defend its tax title, subject to the right of
redemption, until expiration of the two-year period from the date of the tax sale. See id. It is axiomatic
that one does not engage in unconscionable conduct by lawfully defending and protecting statutory rights.
Accordingly, relative to Stockdick’s potential benefits and obligations under the Tax Code, it was not
                                                        12
summary judgment, the Bank supplemented its petition to include the counter-affirmative
defenses of estoppel-by-deed and estoppel generally. In its response to Stockdick’s
motion for summary judgment, the Bank did not specifically mention the word “quasi-
estoppel.” The Bank’s estoppel defense was stated as follows:

        Defendant Stockdick has now taken title to the property, including an
        equity position of $169,721, in full satisfaction of its rights against the prior
        owners under the accord and satisfaction agreement. The doctrine of
        estoppel by deed bars any attempt by Stockdick to deny its Quitclaim Deed
        (redemption deed) to the prior owners. Gutierrez v. Rodriguez[,] supra, 30
        S.W.3d at 561 (A party cannot accept the benefits of a deed and then attack
        it)[.]

        The doctrine of estoppel, generally, applies to Stockdick’s attempt to take
        the benefits of its accord and satisfaction agreement (including title to the
        property and a $169,721 equity position), and then deny the redemption and
        its own Quitclaim Deed. See Carle v. Carle, supra, 234 S.W.2d at 1004 (A
        party cannot accept the benefits of a judgment and then attack it)[.]

        When a nonmovant asserts a counter-affirmative defense, it must present argument
and summary-judgment evidence to raise a fact issue for each element of this defense.
See Hofstetter v. Loya Ins. Co., No. 01-10-00104-CV, 2011 WL 1631938, at *2 (Tex.
App.—Houston [1st Dist.] Apr. 28, 2011, pet. denied) (mem. op.); Rabe v. Dillard’s Inc.,
214 S.W.3d 767, 768 (Tex. App.—Dallas 2007, no pet.).16 Here, the Bank did not

inconsistent or unconscionable for Stockdick to accept the statutory benefits acquired at the tax sale then
defend its tax title against the Bank’s claim that the property was redeemed. See id. §§ 33.95, 34.21.
Relative to its relationship with the Wittenbergs, under the terms of conveyance documents, Stockdick did
not engage in inconsistent or unconscionable conduct by demanding reimbursement of $370,000 and
payment of $92,000 as redemption premium. Relative to the Bank, it is undisputed that Stockdick did not
take any action or engage in any conduct (other than purchasing the property at a tax sale) that impaired
the Bank from protecting its lien priority by redeeming the property. Relative to the Bank’s interest in
excess proceeds from the tax sale, we agree that Stockdick is acting inconsistently by contending the
property was not redeemed while retaining possession of the amount tendered as partial payment for
redemption. However, as indicated above, we do not agree that Stockdick’s conduct as purchaser at a tax
sale, and as a participant in the Wittenbergs’ attempt to redeem the property, was unconscionable. Under
the above tax code provisions, it is the public policy of Texas for a purchaser at a tax sale to retain title if
the property is not timely and properly redeemed. Finally, our dissenting colleague should not be
concerned about the dispute regarding lien priorities or allocation of excess proceeds from the tax sale.
All of those issues were severed from this case.
        16
          Our dissenting colleague mistakenly relies on several cases for the proposition that pleading
estoppel generally is sufficient to raise the affirmative defense of quasi-estoppel in a summary-judgment
                                                      13
present or argue all of the elements of the quasi-estoppel affirmative defense in its
response to Stockdick’s motion.             Consequently, it failed to raise any fact issues
whatsoever on this defense. Thus, unlike our dissenting colleague, we conclude that the
Bank failed to sufficiently present and argue quasi-estoppel in the trial court, and we may
not consider arguments raised for the first time on appeal. See Tex. R. Civ. P. 166a(c)
(movant must “state the specific grounds therefor”); Kelly v. Brown, 260 S.W.3d 212,
216 (Tex. App.—Dallas 2008, pet. denied) (explaining that to preserve grounds for
summary judgment, a party must raise them in the summary-judgment proceeding).17
The Bank’s third issue is overruled.18

proceeding. See 14-09-00617-CV (Frost, J., dissenting), at n.9. Our colleague refers to Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 155–56 & n.1 (Tex. 2004), suggesting that the “Bank’s discussion
of estoppel was sufficient to raise the affirmative defense of quasi-estoppel.” However, the court was
referring to sufficiency of pleadings and concluded that “these allegations raise the defense of equitable
estoppel.” Id. The cases cited by the dissent may support the proposition that mere mention of the word
“estoppel” in pleadings is sufficient to raise quasi-estoppel in the context of jury or bench trials. We
decline to extend this rule in the context of summary-judgment proceedings. The dissent also relies on
Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009). However, the Supreme Court in Timpte
reminds the reader that a trial court cannot grant a motion for summary judgment on grounds not
presented in the motion. Id. at 310–11 (citing Johnson v. Brewer & Pritchard, P.C., 73 S.W. 3d 193, 204
(Tex. 2002)); see also Tex. R. Civ. P. 166a(c) (providing that issues not raised in a “written motion,
answer or other response shall not be considered on appeal as grounds for reversal.” (emphasis added)).
In contrast with the Bank’s insufficient pleading and presentment of quasi-estoppel as an affirmative
defense in this case, the Court in Timpte concluded that the motion “unambiguously set out the elements
of Gish’s design defect claim.” Timpte, 286 S.W.3d at 311.
        17
           Relative to our dissenting colleague’s concerns, we note that summary judgment may not be
affirmed on a ground not presented to the trial court. State Farm Lloyds v. Page, 315 S.W.3d 525, 532
(Tex. 2010). “[T]o allow new grounds for a summary judgment to be urged on appeal . . . without the
trial court having the opportunity to consider and rule on such grounds[] would be contrary to the
provision of Tex. R. Civ. P. 166–A(c) authorizing summary judgment ‘on the issues as expressly set out
in the motion, or in an answer or any other response.’” Bickers v. State, 646 S.W.2d 668, 670 (Tex.
App.—Dallas 1983, no writ). The Bank failed to expressly present its affirmative defense by stating each
ground on which its motion was based. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,
341 (Tex. 1993) (plurality opinion). The motion must “stand or fall on the grounds expressly presented.”
Id.
        In responding to Stockdick’s motion for summary judgment, the nonmovant—here, the Bank—
was required to provide summary-judgment evidence to raise a fact issue for each element of the counter-
affirmative defense. See Hofstetter, 2011 WL 1631938, at *2; Rabe, 214 S.W.3d at 768; see also Tex.
Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996) (“An affirmative defense does not seek to
defend by merely denying the plaintiff’s claims, but rather seeks to establish ‘an independent reason why
the plaintiff should not recover.’” (citation omitted)). Specifically, to support its claim, the Bank was
required to plead and establish a fact issue regarding both elements of quasi-estoppel: conduct that is
inconsistent and unconscionable. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864
                                                   14
                                         V. CONCLUSION

        For all the reasons described above, we affirm the trial court’s grant of summary
judgment in favor of Stockdick and denial of the Bank’s motion for summary judgment.




                                        /s/     Charles W. Seymore
                                                Justice



Panel on Rehearing consists of Chief Justice Hedges and Justices Frost and Seymore.
(Frost, J., dissenting).




(Tex. 2000); Rodriguez v. Villareal, 314 S.W.3d 636, 643 (Tex. App.—Houston [14th Dist.] 2010 no
pet.); see also Vessels v. Anschutz Corp., 823 S.W.2d 762, 765–66 (Tex. App.—Texarkana 1992, writ
denied). Consequently, the trial court did not consider argument or evidence sufficient to rule on the
merits of the Bank’s quasi-estoppel defense.
        18
           Because we conclude the trial court properly granted summary judgment against the Bank and
in favor of Stockdick, we need not consider whether the relief sought by the Bank is available under the
Declaratory Judgments Act.

                                                  15
