Opinion issued August 16, 2012.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              No. 01-12-00098-CV
                           ———————————
                         STEVEN G. ELLIS, Appellant
                                        V.
                    DANIEL BUENTELLO, JR., Appellee


                   On Appeal from the 434th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11DCV188800


                        MEMORANDUM OPINION

      This case involves a dispute over title to real property.                  A

tax-foreclosure-sale purchaser, Daniel Buentello, sued Steven Ellis to quiet title

and for trespass to try title. The trial court granted summary judgment in favor of

Buentello on his claims. On appeal, Ellis contends that the trial court erred in
rendering summary judgment, because Buentello is enjoined from asserting his

claims and a fact issue exists with respect to ownership of the property. We

conclude that Buentello carried his summary judgment burden to establish his

claim to quiet title but failed to prove his trespass-to-try-title action as a matter of

law. We therefore affirm in part and reverse and remand in part.

                                     Background

      Ellis and Buentello assert competing claims of ownership to property located

in Fort Bend County, particularly Lot 11 in Block 1 of the Meadows on Koblen

subdivision (“Lot 11” or “the property”). Buentello claims that he holds good title

to the land through his purchase of it at a tax foreclosure sale. Ellis claims title to

the land based on a purported general warranty deed.

      The following course of events is relevant to these claims:            Buentello

purchased Lot 11 at an April 2009 tax foreclosure sale in Fort Bend County. A

“Correction Deed under Order of Sale in Tax Suits” reveals that Fort Bend County

had foreclosed on a tax lien it levied on Lot 11. The lien was based on a judgment

against Southwest Suburban Development Company (“Southwest Suburban”) for

tax delinquency. The execution deed after foreclosure lists Daniel Buentello as

grantee of Lot 11 from Constable A.J. Dorr, grantor.

      In May 2009, one month after Buentello purchased Lot 11 at the foreclosure

sale, Steven Ellis sued Southwest Suburban and its Vice President, Earl Atwood,

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“to remedy a wrongful foreclosure and fraud upon [his] title,” based on his interest

in Lot 11. Ellis’ suit was resolved in October 2010 by an agreed final judgment

and permanent injunction, enjoining Southwest Suburban from “entering the

subject tract” and “advertising, or offer[ing] to sell, or lease to purchasers or

lessee[s] the subject tract for any purpose.”

      After discovering Ellis’ suit against Southwest Suburban, Buentello sued

Ellis to quiet title. Buentello claimed that he had purchased the property in April

2009, and Ellis had placed a cloud on Buentello’s title by obtaining injunctive

relief against Southwest Suburban. Buentello also sued Ellis for trespass to try

title, claiming a superior interest in the land.

      Buentello moved for traditional summary judgment on his claims. See TEX.

R. CIV. P. 166(a). As summary judgment evidence, Buentello proffered: (1) his

affidavit in which he averred that he had purchased the property at a tax sale, (2) a

copy of the April 2009 deed, listing Buentello as grantee of the land from grantor,

Constable A.J. Door, (3) notice of the May 2009 lawsuit filed by Steven Ellis

against Southwest Suburban, and (4) a copy of the October 2010 “Agreed Final

Judgment and Permanent Injunction” resolving Ellis’s suit against Southwest

Suburban.

      In response, Ellis claimed that Buentello had purchased the property at a tax

sale, knowing that the County did not warrant title to the land. He further claimed

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that Buentello’s suit was barred by res judicata. In support of his motion, Ellis

attached: (1) a copy of Buentello’s deed from the County Sheriff, (2) two

photographs of land, (3) copies of selected pages from a law firm website

discussing tax sales, (4) a copy of a police report, (5) a copy of the October 2010

injunction, and (6) an unsworn statement in which Ellis declared that he possessed

a twenty-year-old general warranty deed to the property.

                                     Discussion

        Ellis claims that the trial court erred in granting summary judgment in favor

of Buentello.

   I.      Injunction Does Not Bar Summary Judgment

        Ellis claims that the trial court’s summary judgment order grants relief that

contravenes the October 2010 injunction. According to Ellis, the October 2010

injunction permanently enjoins Buentello from asserting any interest in Lot 11.

        Texas Rule of Civil Procedure 683 provides that every order granting an

injunction “is binding only upon the parties to the action, their officers, agents,

servants, employees, and attorneys, and upon those persons in active concert or

participation with them who receive actual notice of the order by personal service

or otherwise.” TEX. R. CIV. P. 683.        Generally, an injunction does not bind

non-parties who have not received notice of the order. See id.




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         Included in the summary judgment record is a copy of an October 2010

“Agreed Final Judgment and Permanent Injunction.” The final judgment resolves

Ellis’s suit against Southwest Suburban and its Vice President, Earl Atwood. It

grants monetary and injunctive relief in favor of Ellis. The portion of the judgment

granting injunctive relief provides that “[Southwest Suburban and Atwood], and

[their] officers, agents, servants, employees and any other persons, entities, or

claimants in active concert of participation with [them] shall be permanently

enjoined from: (1) entering the subject Tract 11 . . . [and] (2) advertising or

offer[ing] to sell . . . the subject tract for any purpose.”

         In his summary judgment response, Ellis concedes that Buentello is not a

party to the October 2010 injunction. And he acknowledges that Buentello is not

in “privity” with those parties bound by the injunction. Because Buentello is not a

party to the injunction nor a person alleged to have acted in concert with Southwest

Suburban, we conclude that the injunction does not preclude trial court’s summary

judgment.

   II.      Summary Judgment

         Ellis generally contends that the trial court erred in granting summary

judgment in favor of Buentello. We conclude that the trial court did not err in

granting summary judgment on Buentello’s suit to quiet title, but erred in granting

summary judgment on his trespass-to-try-title claim.

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         1. Standard of Review

      To prevail on a traditional summary judgment motion, a movant must prove

that there is no genuine issue regarding any material fact and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of Crim.

Justice, 148 S.W.3d 374, 381 (Tex. 2004). A party moving for summary judgment

on one of its own claims must conclusively prove all essential elements of the

claim. See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A

defendant may also prevail by traditional summary judgment if it conclusively

negates at least one essential element of a plaintiff’s claim or conclusively proves

an affirmative defense. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004). A matter is conclusively established if

reasonable people could not differ as to the conclusion to be drawn from the

evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

      If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 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. See Goodyear Tire

& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).




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      On appeal, we review de novo a trial court’s summary judgment ruling.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009).     In our review, we consider all the evidence in the light most

favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

Buentello moved for summary judgment on two claims: suit to quiet title and

trespass to try title. We address whether Buentello carried his summary judgment

burden to establish each claim as a matter of law in turn.

          2. Suit to Quiet Title

      Buentello’s suit to quiet title asserts that the final judgment and injunction

resolving Ellis’ suit against Southwest Suburban is a hindrance that creates the

appearance of a better right to title in Ellis than in Buentello and is, in fact, invalid.

A suit to quiet title—also known as a suit to remove cloud from title—rests on the

invalidity of the defendant’s claim to the property. Gordon v. W. Houston Trees,

Ltd., 352 S.W.3d 32, 42 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing

Longoria v. Lasater, 292 S.W.3d 156, 165 n.7 (Tex. App.—San Antonio 2009, pet.

denied)). In other words, the purpose of a suit to quiet title is to invalidate

the defendant’s claim to title. See Hahn v. Love, 321 S.W.3d 517, 531 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (plaintiff bears burden of establishing

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that adverse claim is cloud on title that equity will remove). It enables the holder

of “the feeblest equity to remove from his way to legal title any unlawful hindrance

having the appearance of better right.” Gordon, 352 S.W.3d at 42 (quoting Bell v.

Ott, 606 S.W.2d 942, 952 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.)). A

cloud on title exists when a claimant shows an outstanding claim or encumbrance,

which on its face, if valid, would affect or impair the title of the owner of the

property. Id. (citing Hahn, 321 S.W.3d at 531). A plaintiff thus must prove right,

title, or ownership in himself with sufficient certainty to enable a court to conclude

that he has a right of ownership and that the adverse claimant has created a cloud

on title that equity will remove. Hahn, 321 S.W.3d at 531.

      In order to prevail on his summary judgment motion, Buentello had the

burden to establish that Ellis (1) created a hindrance to Buentello’s title, having the

appearance of a better right to title than his own, that (2) appears to be valid on its

face, and that (3) for reasons not apparent on its face, is not valid. See Gordon, 352

S.W.3d at 42. The summary judgment record contains an injunction that Ellis

obtained in October 2010, enjoining Southwest Suburban and its officers, agents,

employees or servants from entering Lot 11 or offering to sell or lease it for any

purpose. The Agreed Final Judgment and Permanent Injunction is signed by a Fort

Bend County district judge and the district clerk and bears the Fort Bend County

filing stamp. It thus appears to be valid on its face and, if valid, would create the

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appearance that Ellis has an interest in Lot 11. See id. (transfer from previous

owner to trust, apparently predating sale of land at execution sale, created cloud on

execution-sale purchaser’s title). But the summary judgment evidence establishes

that the final judgment is not a valid cloud on Buentello’s title, due to reasons not

apparent on the face of the judgment. Buentello purchased the property at a tax

foreclosure sale in April 2009—eighteen months before Ellis obtained his

injunction. Ellis does not contest the fact that Buentello purchased the property in

April 2009. Rather, Ellis contends that a purchase at a tax foreclosure sale is not

warranted against competing claims. Ellis offered an unsworn statement claiming

to hold a general warranty deed to Lot 11, but he did not proffer any other evidence

of ownership into the record, like the deed itself. We conclude that Buentello

carried his summary judgment burden to quiet title and Ellis failed to raise a fact

issue on any of the elements of a suit to quiet title. Accordingly, the trial court did

not err in granting summary judgment on Buentello’s suit to quiet title.

          3. Trespass to Try Title

      Ellis claims that a fact issue exists with respect to ownership of the property.

According to Ellis, he or his neighbor has an interest in the property superior to

Buentello’s claim.    In contrast, Buentello claims that the trial court properly

entered summary judgment on his trespass-to-try-title claim and that Ellis cannot

assert the rights of his neighbor to defeat Buentello’s summary judgment motion.

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We do not address whether Ellis has standing to assert the rights of his neighbor,

because we conclude that, although Buentello carried his burden to quiet title,

Buentello did not carry his summary judgment burden to prove his claim of

trespass-to-try-title.

       A trespass-to-try-title action is a procedure to adjudicate completing claims

to title or the right to possession of real property. See TEX. PROP. CODE ANN.

22.001–.045 (West 2000 & Supp. 2011).           To prevail in a trespass-to-try-title

action, a plaintiff must usually establish (1) a regular chain of conveyances from

the sovereign, (2) superior title out of a common source, (3) title by limitations, or

(4) title by prior possession coupled with proof that possession was not abandoned.

Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004) (citing Plumb v. Stuessy,

617 S.W.2d 667, 668 (Tex. 1981)).          A trespass-to-try-title action requires a

plaintiff to prevail on the superiority of his title; it does not focus on the weakness

of a defendant’s title. See Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964).

       Buentello proffered a correction deed into the summary judgment record,

revealing that he purchased Lot 11 at a tax foreclosure sale. In his summary

judgment motion, Buentello claimed that the correction deed established that he

had received all rights, title, and interest in and to the property directly from the

sovereign, Fort Bend County.         Buentello offered no other deed indicating




                                          10
ownership of the property and did not seek to establish superior title by any other

method.

      We conclude that Buentello failed to establish a proper chain of title. A

trespass-to-try-title claimant must demonstrate a chain of conveyances tracing

ownership back to a governmental entity. See Martin, 133 S.W.3d at 265. A deed

from a foreclosure sale listing a constable as grantor of the property does not

establish title emanating directly from the sovereign.          See Mosby v. Post

Oak Bank, No. 14-10-00203-CV, 2011 WL 6425696, at *4, — S.W.3d — (Tex.

App.—Houston [14th Dist.] Dec. 22, 2011, pet. denied) (execution deed did not

establish conveyance emanating from sovereign).          A constable forecloses on

property pursuant to a writ of execution; she does not own the property or hold title

to it. Id. A sale pursuant to a writ of execution does not convey the property or

demonstrate that the sovereign conveyed title to the property; it is merely a

conveyance of the previous interest in the property. Id. A deed evidencing a

foreclosure sale thus does not establish that the sovereign conveyed title to the

property to the grantor. See id. This is true even when a county forecloses on its

statutory tax lien to satisfy a debtor’s ad valorem tax delinquency: The property is

sold as security to satisfy a monetary judgment in favor of the county for a tax

arrearage owed by the debtor, the holder of the property interest; the county does

not hold title to the property by virtue of its lien nor by its statutory authority to

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foreclose on the property. See TEX. TAX CODE ANN. §§ 32.01(a), 33.41 (West

2008) (granting lien on real property to secure payment of taxes and permitting

taxing unit to sue to foreclose lien securing payment of tax, sue to enforce personal

liability for tax, or both); see also id. § 33.53 (permitting order of sale to satisfy tax

delinquency). Rather, the county is exercising its right to sell the property to

satisfy a judgment determining the amount of delinquent ad valorem taxes owed by

the property’s owner. The power of foreclosure (i.e. the power to sell security to

satisfy a debt owed) does not connote ownership of the underlying property.

      Without further evidence of the chain of title, the proffer of the constable’s

correction deed from the foreclosure sale does not establish title emanating directly

from the sovereign. Because Buentello did not establish a superior title by the

proffer of a correction deed and he offered no further summary judgment evidence

of his superior title, we conclude that the trial court erred in granting summary

judgment on his trespass-to-try-title claim.

   4. Res Judicata Affirmative Defense

      In his summary judgment response, Ellis raised the affirmative defense of

res judicata. Buentello did not object or specially except to the failure to plead res

judicata as defense. A party may obtain summary judgment based on affirmative

defenses not pleaded if the nonmoving party does not object to the absence of an

answer containing those affirmative defenses and if the motion has merit. See

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Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494–95 (Tex. 1991). We

therefore consider whether the record supports summary judgment against

Buentello’s claims based on the affirmative defense of res judicata.

       “Res judicata bars the relitigation of claims that have been finally

adjudicated or that could have been litigated in the prior action.” Igal v. Brightstar

Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008) (citing Barr v. Resolution

Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992)). For res judicata to apply under

Texas law, the following elements must be present: (1) a prior final judgment on

the merits by a court of competent jurisdiction; (2) the same parties or those in

privity with them; and (3) a second action based on the same claims as were raised

or could have been raised in the first action. Citizens Ins. Co. of Am. v. Daccach,

217 S.W.3d 430, 449 (Tex. 2007).

      Ellis has not carried his burden to prove each element of the affirmative

defense of res judicata. Ellis concedes that Buentello was not a party to his suit

against Southwest Suburban. He also concedes that none of the parties to his

previous suit against Southwest Suburban are in privity with Buentello. Because

Ellis concedes an essential element of his res judicata defense, the trial court did

not err in refusing to grant summary judgment in his favor in this basis.




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                                       Conclusion

      We conclude that Buentello carried his summary judgment burden to prove

his claim quieting title to Lot 11.       Buentello did not, however, establish his

trespass-to-try-title claim as a matter of law. Accordingly, we affirm the trial

court’s summary judgment in part and reverse in part. We remand the case to the

trial court for further proceedings.




                                                Jane Bland
                                                Justice

Panel consists of Justices Bland, Massengale, and Brown.




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