      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                ON MOTION FOR REHEARING



                                        NO. 03-07-00240-CV



                                 Myrad Properties, Inc., Appellant

                                                   v.

   LaSalle Bank National Association, as Trustee for the Registered Holders of GMAC
 Commercial Mortgage Securities, Inc; Commercial Mortgage Pass-Through Certificates,
              Series 1997-C1; Robin Green; and Melissa Cobb, Appellees


      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
           NO. 220061.C, HONORABLE RICK MORRIS, JUDGE PRESIDING



                                            OPINION


                Myrad has filed a motion for rehearing. We withdraw our opinion, dissenting opinion

and judgment issued on January 25, 2008, and substitute the following in its place. We overrule

Myrad’s motion for rehearing.

                This is an appeal from a final summary judgment on claims arising from the non-

judicial foreclosure of two apartment complexes that had secured a single note under a single deed

of trust. The central issue in this case, presented in cross-motions for summary judgment, concerns

the legal effect of an error in the notice of foreclosure sale: a definition of the “property” to be sold

that incorporated a legal description of only one of the apartment complexes that secured the note,
but not the other. We affirm the portions of the district court’s judgment predicated on its resolution

of this legal issue. However, because fact issues preclude summary judgment as to a declaratory

claim that the debtor is entitled to a surplus, we must reverse this portion of the judgment and

remand it for further proceedings.


                                         BACKGROUND

Myrad’s obligations and default

               The following summary is taken from the undisputed summary judgment evidence.

In July 1997, the appellant, Myrad Properties, Inc., purchased two non-contiguous parcels of land

in Killeen that each contained a multi-family apartment complex—La Casa Apartments and Casa

Grande Apartments. The La Casa Apartment complex is the larger of the two, having 64 units, while

Casa Grande has only 21 units. Myrad financed its purchase by executing a note in the amount of

$1,050,000 payable to First Security Commercial Mortgage, L.P. (the Note). The Note was secured

by a “Deed of Trust, Security Agreement, and Fixture Filing” (the Deed of Trust). The Deed of Trust

covered “Property” defined to include, among other interests, the “Land”—“The real property

described in Exhibit A-1 and A-2 attached hereto and made a part hereof.” Exhibit A-1 is a metes

and bounds description of the parcel on which the La Casa Apartments are located, while A-2 is a

legal description of the Casa Grande parcel. The Deed of Trust further specified that the “Property”

also included improvements, fixtures, personal property, and various other rights and interests

related to the “Land.” The Deed of Trust was recorded in the real property records of Bell County.

In 1999, the Note and Deed of Trust were assigned to appellee LaSalle National Bank




                                                  2
Association, as trustee for investors in a large pool of loans.1 Since that time, LaSalle has been the

mortgagee and holder of the Note.

               The Note required Myrad to make monthly specified payments of principal and

interest. If Myrad failed to make the required payments, the Note and Deed of Trust authorized

LaSalle to assess late charges and to charge a higher default rate of interest until the default was

cured. Other remedies included declaring the entire unpaid amount of the “Debt” immediately due

and payable, which would include (1) the principal sum of the Note; (2) accrued interest, default

interest, late charges, prepayment consideration, and “other sums” as provided in the Note, Deed of

Trust, or other security documents; (3) “all other moneys agreed or provided to be paid” by the Note,

Deed of Trust, or other security documents; (4) “all sums advanced” pursuant to the Deed of Trust

“to protect and preserve the Property and the lien and security interest created thereunder”;

and (5)“all sums advanced and costs and expenses incurred” by LaSalle “in connection with the Debt

or any part thereof, any renewal, extension, or change of or substitution for the Debt or any part

thereof, or the acquisition or perfection of the security therefore, whether made or incurred at the

request of [Myrad] or [LaSalle].”

               Under the Deed of Trust, Myrad also agreed that LaSalle would have the right to sell

the “Property” through non-judicial foreclosure:


       sell for cash or upon credit the Property or any part thereof and all estate, claim,
       demand, right, title and interest of Grantor therein and rights of redemption thereof,


       1
           For simplicity, we will refer to this party simply as “LaSalle.” We will also use “LaSalle”
to refer to acts taken on its behalf by Capmark Finance, Inc., its mortgage servicer, except where the
distinction between these entities becomes relevant.

                                                   3
       pursuant to power of sale or otherwise, at one or more sales, as an entity or in parcels,
       at such time and place, upon such terms and after such notice thereof as may be
       required or permitted by law as follows. The Trustee, his successor or substitute, is
       authorized and empowered and it shall be his special duty at the request of the
       Beneficiary to sell the Property or any part thereof . . . at the courthouse of any county
       in the State of Texas in which any part of the Property is situated, at public venue to
       the highest bidder for cash between the hours of 10 o’clock a.m. and 4 o’clock p.m.
       the first Tuesday in any month after having given notice of such sale in accordance
       with the statutes of the State of Texas then in force governing sales of real estate
       under powers conferred by a Deed of Trust. . . .


               Myrad subsequently defaulted on its payment obligations. On August 3, 2006,

LaSalle, through its attorney, appellee Robin Green, issued to Myrad a notice of default, demand for

immediate cure and notice of intent to accelerate the indebtedness due under the note. This

document also referenced the correct book, page number and date of the recorded Deed of Trust,

“covering the real and personal property more particularly described therein and commonly known

as Casa Grande and LaCasa Apartments,” and noting the street addresses of each apartment complex.

Myrad admitted that it received this notice of default and was aware that it referenced both parcels.

               On August 29, 2006, LaSalle, through Green, issued to Myrad a notice of acceleration

of the indebtedness due under the note. As with the notice of default, this document referenced the

correct book, page number and date of the recorded Deed of Trust and the names and street addresses

of “Casa Grande and LaCasa Apartments.” Myrad admitted receiving this document and was aware

that it referenced both parcels.

               On October 16, 2006, LaSalle filed, in the Bell County real property records, its

Appointment of Substitute Trustees and Notice of Substitute Trustee’s Sale for Tuesday, November

7, between the hours of 10:00 a.m. and 4:00 p.m, at the Bell County Courthouse. See Tex. Prop.



                                                   4
Code Ann. § 51.002(a) (West 2007) (“A sale of real property under a power of sale conferred by a

deed of trust . . . must be a public sale at auction held between 10:00 a.m. and 4 p.m. on the first

Tuesday of a month. . . . [T]he sale must take place at the county courthouse in the county where the

land is located.”). LaSalle also served Myrad with a copy of each document via certified mail and

posted copies on the bulletin board outside the Bell County Clerk’s office. See id. § 51.002(b)

(requiring 21 days’ notice of sale by posting “at the courthouse door,” filing with the county clerk,

and service on each debtor).

                Because the contents and legal effect of the Notice of Substitute Trustee’s Sale are

at the center of the parties’ dispute, we quote it at length:


                        NOTICE OF SUBSTITUTE TRUSTEE’S SALE

        STATE OF TEXAS                          §
                                                §
        COUNTY OF BELL                          §

        Date:                                   October 6, 2006

        Borrower:                               Myrad Properties, Inc., a Texas Corporation

        Borrower’s Address:                     ....

        Holder:                                 LaSalle National Bank Association, as
                                                Trustees for the Registered Holders of GMAC
                                                Commercial Mortgage Securities, Inc.,
                                                Commercial Mortgage Pass-Through
                                                Certificates, Series 1997-C1

        Holder’s Address:                       ...

        Mortgage Servicer:                      Capmark Finance, Inc.

        Mortgage Servicer’s Address:            ...

                                                    5
       Substitute Trustees:                 Robin Green, Melissa Cobb, Janice Wright,
                                            Kenneth Strickland, Juanita Strickland, and
                                            Gloria Tanguay or any of them acting alone[2]

       Substitute Trustees’ Address:        Powell Goldstein LLP
                                            ....

       Deed of Trust:                       Deed of Trust, Security Agreement, and
                                            Fixture Filing

              Date:                         July 16, 1997

              Grantor:                      Myrad Properties, Inc., a Texas Corporation

              Lender:                       First Security Commercial Mortgage, L.P., a
                                            Delaware limited partnership

              Trustee:                      William Bradshaw

              Secures:                      Promissory Note (“Note”) dated July 16,
                                            1997, in the original principal amount of
                                            $1,050,000 executed by Grantor, payable to
                                            the order of Lender and currently held by
                                            Holder.

              Recording:                    Recorded July 16, 1997 in the Real Estate
                                            Records of Bell County, Texas (the
                                            “Records”) in Volume 3645, Page 300.

       Property:                            The real property described on Exhibit A
                                            attached hereto and made a part hereof for all
                                            purposes, together with all improvements and
                                            personal property described in the Deed of
                                            Trust.




       2
           Green and Cobb, both appellees, are attorneys with Powell Goldstein; Wright is a legal
assistant at the firm. The Stricklands and Tanguay were names provided by the service that Powell
Goldstein or Capmark retained to perform the deed of trust sale.

                                               6
The “Exhibit A” attached to the notice and incorporated into the definition of “Property,” however,

is a metes and bounds description of the Casa Grande parcel only.

                The Notice of Substitute Trustee’s Sale then states:


                Holder, acting by and through Mortgage Services, has appointed Robin
        Green, Melissa Cobb, Janice Wright, Kenneth Strickland, Juanita Strickland, and
        Gloria Tanguay, and each of them acting alone, as Substitute Trustees under the Deed
        of Trust upon the contingency and in the manner outlined in the Deed of Trust and
        in accordance with Chapter 51 of the Texas Property Code. Default has occurred
        pursuant to the provisions of the Deed of Trust. The indebtedness evidence by the
        Note is now wholly due. Holder, acting by and through Mortgage Servicer, has
        instructed Substitute Trustees, and each of them acting alone, to sell the Property
        toward the satisfaction of the Note.

               The Deed of Trust may encumber both real and personal property. Notice is
        hereby given of Holder’s election to proceed against and sell both the real property
        and any personal property described in the Deed of Trust in accordance with the
        Holder’s rights and remedies under the Deed of Trust and Section 9.604 of the Texas
        Business and Commerce Code.

                Notice is hereby given that on the Date of Sale, Substitute Trustees, or any
        one of them acting alone, will offer the Property for sale at public auction at the Place
        of Sale, to the highest bidder for cash, “AS IS”. THERE WILL BE NO
        WARRANTY RELATING TO TITLE, POSSESSION OR QUIET ENJOYMENT
        OR THE LIKE FOR THE PERSONAL PROPERTY INCLUDED IN THE SALE.
        Holder may bid by credit against the indebtedness secured by the Deed of Trust.


The notice was signed by Cobb.

                On November 2, Myrad’s bankruptcy counsel sent a letter to Cobb addressing

various issues related to the foreclosure. The letter referenced “Property: Casa Grande and

La Casa Apartments,” and began, “With your foreclosure on the above-referenced real estate set

next Tuesday . . . .”




                                                   7
                On November 7, Strickland conducted the substitute trustee’s sale on the Bell County

Courthouse steps. Strickland recited the date, book and page number where the Deed of Trust has

been recorded in the Bell County real property records, then read the legal description of the Casa

Grande but not the La Casa parcel. He then conducted the sale. Strickland, on behalf of LaSalle,

made a credit bid $978,000, an amount that LaSalle had calculated based on the estimated amount

of Myrad’s debt as of the date of foreclosure.

                LaSalle’s credit bid was the sole bid at the sale. LaSalle was issued a Substitute

Trustee’s Deed, similar in form to the Notice of Substitute Trustee’s Sale, that purported to convey

to it the “Property,” again defined as “[t]he real property described on Exhibit A attached hereto and

made a part hereof for all purposes, together with all improvements and personal property described

in the Deed of Trust.” As with the Notice of Substitute Trustee’s Sale, Exhibit A to the Substitute

Trustee’s Deed contained only a legal description of the Casa Grande parcel. This deed was

recorded on the same day.


Correction deed and underlying proceedings

                In the aftermath of the substitute trustee’s sale, Myrad asserted the view that the

Substitute Trustee’s Sale and deed had conveyed only the Casa Grande Apartments to LaSalle and

not the La Casa Apartments. On November 9, Myrad sued LaSalle, Green and Cobb seeking

declarations under the Uniform Declaratory Judgments Act3 that the substitute trustee’s sale “did not

act to convey any part of the La Casa Apartments”; that the sale (so viewed) “was a valid sale not




       3
           See Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (West 1997 & Supp. 2007).

                                                  8
subject to being set aside or otherwise collaterally attacked”; that by virtue of the sale, applying the

sale price to Myrad’s indebtedness results in the Deed of Trust being satisfied and extinguished; that

applying the sale price to Myrad’s indebtedness results in a surplus due and owing to Myrad; and that

“LaSalle no longer has any legal or equitable interest in the La Casa Apartments.” Myrad also

sought injunctive relief to bar the appellees from filing any reformed or corrected deed purporting

to assert any legal or equitable interest in the La Casa Apartments or otherwise interfering with

its rights in the complex.

               Myrad obtained a temporary restraining order but, on November 22, following an

evidentiary hearing that is part of the summary-judgment record, the district court dissolved the TRO

and denied Myrad’s application for temporary injunction. On the same day, LaSalle filed a

“Correction Substitute Deed.” The Correction Substitute Deed was materially identical to the

original Substitute Trustee’s Deed except that it attached an “Exhibit A” that tracked the definition

of “Property” from the Deed of Trust. That definition, again, explicitly encompassed both the Casa

Grande and La Casa parcels, as well as improvements, fixtures, personal property, and various other

rights and interests related to each parcel.

               Thereafter, Myrad amended its petition to add claims for declarations that the

“‘Correction Substitute Deed’ is invalid or void and/or unenforceable” and that it is the owner of the

La Casa Apartments. It also asserted a quiet title claim to set aside the Correction Substitute Deed,




                                                   9
as well as claims for damages from Cobb’s “breach of duty” as substitute trustee and conspiracy

to do the same.4

               The appellees counterclaimed for declarations that (1) the Substitute Trustee may file

a corrective deed to include foreclosure of the La Casa Apartments; (2) the foreclosure sale was

proper in all respects and had the effect of foreclosing Myrad’s interests in both the Casa Grande

Apartments and the La Casa Apartments; and (3) the Substitute Trustee’s sale did not result in the

Deed of Trust being satisfied and extinguished. In the event the court found the foreclosure sale was

not properly conducted, LaSalle pled in the alternative for a declaration that it maintained all legal

and equitable interests it was granted by the Deed of Trust and is entitled to re-conduct the

foreclosure sale under Texas law. LaSalle also asserted counterclaims for reformation of the

Substitute Trustee’s Deed to include the La Casa Apartments, that the Substitute Trustees be

authorized to rescind the Substitute Trustee’s sale and conduct another sale, and that a receiver be

appointed to manage the complexes pending resolution of its declaratory claims.


Summary-judgment motions

               The parties subsequently filed cross-motions for summary judgment. The appellees

sought summary judgment, on both traditional and no-evidence grounds, on each of Myrad’s claims.

They also sought summary judgment on their counterclaims for declarations that the substitute

trustee was authorized to file the correction deed, the foreclosure sale was sufficient to foreclose

Myrad’s interest in both the Casa Grande and La Casa Apartments, and that the substitute trustee’s


       4
         Myrad also asserted its breach-of-duty and conspiracy claims against Strickland, but
subsequently non-suited these claims against him.

                                                 10
sale did not extinguish or satisfy the Deed of Trust. In the alternative, the appellees moved for

summary judgment on their declaratory claim that if the sale was improperly conducted, LaSalle

maintained all legal and equitable interest in both the Casa Grande and La Casa Apartments under

the Deed of Trust and may rescind the sale and re-conduct the foreclosure.

               Myrad sought summary judgment on claims for declarations that the Substitute

Trustee’s sale did not convey the La Casa Apartments, that this sale (so viewed) was valid and not

subject to being set aside, and that the correction deed was invalid. It also sought summary judgment

that “by virtue of the Substitute Trustee’s Sale dated November 7, 2006, Myrad is entitled to a credit

of $978,000,” an element of its declaratory claim that the sale resulted in a surplus. Myrad also

sought summary judgment, on both traditional and no-evidence grounds, on the appellees’ claims

for reformation of the Substitute Trustee’s Deed or rescission of the substitute trustee’s sale.

               Following a hearing, the district court granted the appellees’ summary-judgment

motion “except for rescission” and denied Myrad’s motion in its entirety. It rendered final judgment

declaring that the substitute trustee’s sale had conveyed to LaSalle title to both the La Casa and Casa

Grande Apartments, that the correction deed had vested title in LaSalle to the property described

therein, and that Myrad should take nothing on its claims. Myrad appeals.


                                            ANALYSIS

               In three issues on appeal, Myrad asserts that the district court erred in granting the

appellees’ summary-judgment motion and in denying its motion. Myrad’s primary complaint is that

the district court erred in granting summary judgment on the appellees’ declaratory claims that the

November 7, 2006 substitute trustee’s sale had conveyed both the Casa Grande and La Casa

                                                  11
Apartments and that the correction deed had vested title to both parcels in LaSalle. Relatedly, Myrad

complains that the district court erred in denying summary judgment on Myrad’s declaratory claims

regarding the same issues, granting LaSalle’s motion against those claims, and in granting summary

judgment against Myrad’s quiet title claim.

               The cornerstone of Myrad’s arguments is its contention that the foreclosure sale had

the legal effect of conveying only the Casa Grande Apartments due to the erroneous property

description incorporated into the Notice of Substitute Trustee’s Sale and read by Strickland at the

sale. So viewed, this transaction, Myrad adds, was accurately memorialized in the Substitute

Trustee’s Deed. Consequently, Myrad maintains, the correction deed was invalid and unenforceable

because it purported to convey an entirely new estate rather than merely correcting a scrivener’s error

in the original deed. See Halbert v. Green, 293 S.W.2d 848, 851 (Tex. 1956).

               Myrad’s premise regarding the legal effect of the foreclosure sale is also the

foundation for the dissent’s portrayal of the issues presented5 and its assertions that LaSalle garnered




        5
          See Myrad Properties, Inc. v. LaSalle Bank, No. 03-07-00240-CV, ___S.W.3d ___, ___
(Tex. App.—Austin Mar. 28, 2008, no pet. h.) (Patterson, J., dissenting) (asserting that “this case
poses the questions whether (i) a lender, by referencing a deed of trust in the notice [of foreclosure
sale], automatically expands the properties subject to the sale . . . to include all of the properties
contained in the deed of trust” without regard to the contents of the notice and authorizes the trustee
“to unilaterally file a correction deed after the fact to enlarge the property subject to the sale”).

                                                  12
a “windfall” from the sale6 and unilaterally effected a separate conveyance merely by filing a

correction deed.7

               Myrad also contends that fact issues precluded the district court from granting

summary judgment against its declaratory claim that the sale yielded a surplus and its claims that

Cobb breached her duties as a substitute trustee and engaged in a conspiracy to do so.


Standard of review

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary

judgment, the moving party must prove that “there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion.”

Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the

movant’s motion and summary-judgment evidence establish its right to judgment as a matter of law,

the burden shifts to the nonmovant to defeat summary judgment. The nonmovant then has the

burden to respond to the motion and to present to the trial court any issues that would preclude

summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       6
           See id. at ___ n.10 (“Appellees have been granted a windfall and complete reprieve from
their admitted failure to strictly comply with statutory notice requirements.”), ___ (purporting
“fidelity to the statutory requirements of non-judicial foreclosure”).
       7
           See id. at ___ (accusing us of “render[ing] the Property description actually contained in
the Notice meaningless”), ___ (urging that “a party unilaterally could file a correction deed to vest
title in a separate piece of property regardless of whether the notice and sale as to the separate
property complied with public notice requirements, a result that would circumvent and eliminate the
statutory requirements”), ___ (“I would hold that a party cannot unilaterally file a correction deed
to vest title in a separate piece of property that was not noticed in compliance with statutory
requirements or specifically included in a non-judicial foreclosure sale.”).

                                                  13
Summary judgment is appropriate only when there are no disputed issues of material fact and the

moving party is entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548. In deciding

whether there exists a disputed fact issue precluding summary judgment, we treat evidence favorable

to the nonmovant as true, and we must resolve every doubt and indulge all reasonable inferences in

the nonmovant’s favor. Id. at 548-49.

                A no-evidence motion for summary judgment must be granted if, after an adequate

time for discovery, (1) the moving party asserts that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof at trial,

and (2) the nonmovant fails to produce more than a scintilla of summary-judgment evidence raising

a genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). A no-evidence summary

judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency

standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Perdue

v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.—Austin 2004, no pet.). A no-evidence summary

judgment will be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the

court is barred by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the

evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.

We view the evidence in the light most favorable to the nonmovant, disregarding all contrary

evidence and inferences. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997)). More than a scintilla of supporting evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id. “Less than a scintilla of



                                                   14
evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or

suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

               When, as here, both parties move for summary judgment on overlapping legal issues

and the district court grants one motion and denies the other, we review the summary-judgment

evidence presented by both sides, determine all questions presented, and render the judgment that

the district court should have rendered. Texas Workers’ Comp. Comm’n v. Patient Advocates of

Tex., 136 S.W.3d 643, 648 (Tex. 2004).

               The district court granted appellees’ summary-judgment motion on two of their

declaratory claims, rendering judgment declaring that the substitute trustee’s sale had conveyed to

LaSalle title to both the La Casa and Casa Grande Apartments and that the correction deed had

vested title in LaSalle to both complexes. Because the appellees had the burden of proof on these

claims, it had the summary-judgment burden of negating any genuine issue of material fact and

establishing that it is entitled to judgment on these claims as a matter of law. See MMP, Ltd.

v. Jones, 710 S.W.2d 59, 60 (Tex. 1996). As for the claims on which Myrad had the burden of

proof, because the appellees asserted both traditional and no-evidence summary-judgment grounds,

they are entitled to judgment as a matter of law if either (1) the record contains no more than a

scintilla of summary-judgment evidence raising a genuine issue of material fact on one or more

essential elements of Myrad’s claims, see Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

172 (Tex. 2003), or (2) the summary judgment evidence disproves, as a matter of law, one of the

essential elements of each of Myrad’s claims. See Little v. Texas Dep’t of Crim. Justice, 148 S.W.3d

374, 381 (Tex. 2004).



                                                15
Effect and validity of substitute trustee’s sale and correction deed

               We first address Myrad’s contentions regarding the legal effect of the substitute

trustee’s sale and validity of the subsequent correction deed. The parties concur that our resolution

of these issues turns on questions of law rather than disputed facts. We observe again that both

LaSalle and Myrad sought summary judgment regarding these issues. Further, Myrad prays on

appeal that we render judgment on its summary-judgment motion regarding these issues.

               Although the summary-judgment evidence was undisputed that Myrad had actual

notice that LaSalle was seeking to foreclose its lien on both the Casa Grande and La Casa

Apartments,8 we agree with Myrad and the dissent that the Deed of Trust and section 51.002 of the

property code required LaSalle to provide 21-day’s prior notice of the foreclosure sale to both Myrad

and the public. “The statutory notice provisions of section 51.002 seek to not only protect the debtor

by affording him a lengthy notice period in which he may cure, but also adequately inform the third

party public in order to maximize the likelihood of a profitable public sale at market value in which

the debtor may recover his equity in his property.” Jasper Fed. Sav. & Loan Ass’n v. Reddell,

730 S.W.2d 672, 674-75 (Tex. 1987). Because a trustee’s power to sell the property is derived from

the deed of trust and statute, strict compliance with these requirements is considered a prerequisite




       8
          In addition to receiving notices of acceleration and default that referenced both complexes,
Myrad’s bankruptcy counsel sent the November 2 letter to Cobb referencing “Property: Casa Grande
and La Casa Apartments” and acknowledging, “With your foreclosure on the above-referenced real
estate set next Tuesday, . . . .” (Emphasis added). On appeal, Myrad questions whether this letter
“is a clear indication that it was a statement made after an analysis of the notice of sale.” Although
Myrad is disputing that its counsel conceded the appellee’s interpretation of the Notice of Substitute
Trustee’s Sale, it does not appear to contest that it had actual notice that LaSalle was seeking to
foreclose Myrad’s interests in both apartment complexes.

                                                 16
to the trustee’s right to make the sale. See Houston First Am. Sav. v. Musick, 650 S.W.2d 764,

768 (Tex. 1983); Childs v. Hill, 49 S.W. 652, 653-53 (Tex. Civ. App.—Dallas 1898, no writ);

Texas Sav. & Loan Assoc. v. Seitzler, 34 S.W. 348, 349 (Tex. Civ. App.—Austin 1896, writ ref’d).

In other words, noncompliance with these requirements can render a foreclosure sale void. See id.

                The notice of the foreclosure sale must provide a description or other identification

of the property to be sold. See id. Myrad’s arguments are premised on the view that the substitute

trustee’s sale was invalid as a conveyance of both the Casa Grande and La Casa Apartments

because the Notice of Substitute Trustee’s Sale gave no notice complying with the Deed of Trust and

section 51.002 that the La Casa Apartments would be sold. Myrad emphasizes that the Notice of

Substitute Trustee’s Sale defined “Property” as “the real property described on Exhibit A attached

hereto and made a part hereof for all purposes, together with all improvements and personal property

described in the Deed of Trust,” and that Exhibit A included a legal description only of the Casa

Grande parcel. This “Property,” Myrad further points out, is the object of the notice’s subsequent

operative statements that “Holder . . . has instructed Substitute Trustees . . . to sell the Property

toward the satisfaction of the Note,” and that “Notice is hereby given that on the Date of Sale,

Substitute Trustees . . . will offer the Property for sale at public auction at the Place of Sale, to the

highest bidder for cash.” Cf. Williams v. J. & C. Royalty Co., 254 S.W.2d 178, 180 (Tex. Civ.

App.—San Antonio 1952, writ ref’d) (discussing use of defined terms in contracts).

                But, as the appellees observe, the Notice of Substitute Trustee’s Sale also included

the following statement:




                                                   17
       The Deed of Trust may encumber both real and personal property. Notice is hereby
       given of Holder’s election to proceed against and sell both the real property and any
       personal property described in the Deed of Trust in accordance with the Holder’s
       rights and remedies under the Deed of Trust and Section 9.604 of the Texas Business
       and Commerce Code.


(Emphasis added). Myrad insists that a reasonable person would understand this language to be an

election of remedies under section 9.604 that provides no information regarding what real or

personal property would be sold.9 We disagree. These statements unequivocally notify the reader

that LaSalle would be proceeding against and selling the real property and any personal property

described in the Deed of Trust. The real and personal property described in the Deed of Trust

included both the Casa Grande and La Casa parcels, and any improvements, fixtures, personal

property, and various other rights and interests related to them. Other portions of the Notice of

Substitute Trustee’s Sale provide detailed information regarding the Deed of Trust, including where

it was recorded. These components of the Notice of Substitute Trustee’s Sale provide notice

sufficient under the Deed of Trust and section 51.002 that both the Casa Grande and La Casa

Apartments would be sold. See Miller v. Gibralter Sav. & Bldg. Ass’n, 132 S.W.2d 606, 608

(Tex. Civ. App.—Beaumont 1939, writ dism’d judgm’t cor.) (reference in notice to recording

date of the deed of trust is sufficient because it provides prospective bidders with “means of

complete information”).




       9
         Section 9.604 of the business & commerce code provides that where a security agreement
covers both personal and real property, a secured party may proceed either under the U.C.C. as to
the personal property alone or against both in accordance with its rights with respect to the real
property. See Tex. Bus. & Com. Code Ann. § 9.604 (West 2002).

                                                18
               Myrad insists that any reader put on inquiry notice by the notice’s cross-references

to the Deed of Trust would review that instrument and ascertain that it permits LaSalle to “sell for

cash or upon credit the Property [defined therein as both apartments complexes] or any part thereof

. . . at one or more sales, as an entity or in parcels.” (Emphasis added). From this, Myrad suggests,

a reasonable person would conclude that LaSalle was foreclosing on only the Casa Grande

Apartments.10 However, the fact that LaSalle had the right to partially foreclose that Property—or

to foreclose on all of that Property, for that matter—would imply nothing about which of these

remedies it had elected.      That information would instead come from the notice itself,

which advised the reader that LaSalle would sell the real property and any personal property

described in the Deed of Trust.

               The problem with the Notice of Substitute Trustee’s Sale, in other words, is not the

absence of any notice that both the Casa Grande and La Casa Apartments would be sold, but that the

notice is internally inconsistent regarding what property would be sold. Texas courts have not


       10
            In support of these contentions and others, Myrad places great emphasis on “expert
opinions” in an affidavit it obtained from a real estate attorney. This testimony includes the
attorney’s opinions regarding the proper interpretation and legal effect of the Notice of Substitute
Trustee’s Sale and other instruments. Such opinions have no probative value and can neither support
nor defeat summary judgment. Cf. Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339
(Tex. App.—San Antonio 2000, pet. denied) (holding that expert testimony offered to interpret the
terms of a lease agreement was properly excluded because its construction or interpretation presented
a question of law for the court); Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d
112, 134 (Tex. App.—Corpus Christi 1999, pet. denied) (holding expert testimony giving legal
conclusions concerning interpretation of contract had no probative value and was properly excluded).
Although LaSalle did not object to this affidavit below, failure to object or obtain a ruling on a
substantively defective summary-judgment affidavit does not waive the substantive defect.
See Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 884 (Tex. App.—Dallas
2007, no pet.). However, we have considered the arguments asserted in the affidavit as an extension
of Myrad’s briefing.

                                                 19
regarded similar inconsistencies in foreclosure sale property descriptions to be fatal. See Mercer

v. Bloodworth, 715 S.W.2d 693 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). Mercer

involved a trespass-to-try-title action in which a party’s title claim rested upon the validity of a

foreclosure sale. The notice of trustee’s sale had “identified a different date of the deed of trust and

an incorrect recording reference,” but included a correct metes and bounds description of the

property and also correctly named the trustee. The court held that the error and inconsistency in the

notice did not render the sale invalid. In relevant part, it reasoned that “[a]nyone interested in

bidding at the sale could readily have contacted the trustee to clear up any confusion that may have

been created by the notice.” Id. The Notice of Substitute Trustee’s Sale here presents merely the

converse: it provides an inaccurate metes and bounds description of the property to be sold but a

correct citation to the deed of trust, identifies the Substitute Trustees, and provides detailed

contact information.    As in Mercer, the notice here enabled prospective bidders to readily

contact the substitute trustees to “clear up any confusion that may have been created by the notice.”

We conclude that the erroneous and inconsistent property description in the Notice of Substitute

Trustee’s Sale does not constitute a failure to comply with the requirements of section 51.002 and

the Deed of Trust with respect to the foreclosure sale of the La Casa Apartments.

                A foreclosure sale may also be rendered invalid based on affirmative acts by the

mortgagee that deter or “chill” bidding and adversely affect the sale price. See Pentad Joint Venture

v. First Nat’l Bank of LaGrange, 797 S.W.2d 92, 95-96 (Tex. App.—Austin 1990, writ denied).

Myrad appears to assert such a theory, contending that erroneous property description would have

confused or deterred any prospective bidders interested in purchasing both the Casa Grande and



                                                  20
La Casa Apartments. At least one court has held that, under Texas law, a similar under-inclusion

of property in a notice of foreclosure sale could be actionable under such a theory. See Resolution

Trust Corp. v. Summers & Miller Gleneagles Jt. Venture, 791 F. Supp. 653, 654-55 (N.D. Tex. 1992)

(Texas law). That case involved a deficiency claim in which the debtor, in defense, challenged the

validity of the foreclosure sale. The notice of foreclosure had erroneously transposed the legal

descriptions of two properties that were to be foreclosed in a manner that resulted in “an offer of

more land for sale than was actually the case as to one tract, and an offer of less land for sale than

was actually the case as to the other tract.” In the court’s view, there was “no question that an

irregularity in the foreclosure process occurred.” Id. at 654-55.

                We conclude that the inconsistent property description incorporated into the Notice

of Substitute Trustee’s Sale is the sort of irregularity in the foreclosure process that could potentially

have some propensity to confuse or deter potential bidders interested in purchasing both the Casa

Grande and La Casa Apartments. Cobb, in fact, admitted during her deposition that the property

description was “potentially” misleading. For the substitute trustee’s sale of both the Casa Grande

and La Casa Apartments to be invalid under a “chilled bidding” theory, however, Myrad also had

the burden of proving that (1) the price or consideration received in the sale was grossly inadequate,

and (2) such inadequacy was caused by the complained-of irregularity. Id. at 655; see also American

Sav. & Loan Assoc. of Houston v. Musick, 531 S.W.2d 581, 587 (Tex. 1975).11 Perhaps limited by




        11
               Cf. Charter Nat’l Bank–Houston v. Stevens, 781 S.W.2d 368, 371-74
(Tex. App.—Houston [14th Dist.] 1989, writ denied) (contrasting this general rule with exception
applicable where mortgagee deliberately chilled bidding and injured mortgagor seeks damages rather
than to set aside the sale).

                                                   21
its theory that the substitute trustee’s sale conveyed only the Casa Grande Apartments, Myrad does

not contend that there is any evidence that the Casa Grande and La Casa Apartments were sold for

a grossly inadequate price.12 Nor does Myrad present a fact issue that any potential bidders were

actually deterred by the erroneous property description. The sole competent evidence that Myrad

cites regarding the effect of the error is Strickland’s deposition testimony that on the date of sale, he

had gone to the Bell County Courthouse to sell more than one property, that there were persons

present bidding on other sales he had conducted there, that there were persons present at the sale of

the Myrad property that were potential bidders, and that no one other than LaSalle bid on the

property.13 This evidence is legally insufficient to support the inference that the other “potential

bidders” were actually deterred from bidding by the erroneous property description. See Summers

& Miller Gleneagles Jt. Venture, 791 F. Supp. at 655; see also Diversified Developers, Inc. v. Texas

First Mort. Reit, 592 S.W.2d 43, 45-46 (Tex. Civ. App.—Beaumont 1979, writ ref’d n.r.e.)

(similarly upholding directed verdict against claim to invalidate foreclosure sale on basis that



        12
           Nor would the price LaSalle paid at the sale—$975,000, bid as a credit against Myrad’s
outstanding debt—be grossly inadequate. La Salle’s appraiser testified that the Casa Grande and
La Casa Apartments were collectively worth between $1,170,000 and $1,180,000. However, in his
November 2, 2006 letter, Myrad’s bankruptcy counsel represented that an appraiser “has valued the
properties at almost double what your client(s) has asserted is owed.” Accepting this statement as
true, the sale price here is still proportionately much greater than those held not to be grossly
inadequate in cases involving similar errors in property descriptions. See Diversified Developers,
Inc. v. Texas First Mort. Reit, 592 S.W.2d 43, 45-46 (Tex. Civ. App.—Beaumont 1979, writ ref’d
n.r.e.) (overruling contention that consideration was grossly inadequate where appraised value of
property was $4 million and sale price was $2.5 million, the outstanding amount of the original
$6 million debt).
        13
           This is the sole evidence in the summary-judgment record that there were “potential
bidders” or that “third parties attended the foreclosure sale.” See ___ S.W.3d at ___, ___ n.15
(Patterson, J., dissenting).

                                                   22
previously-released property had been erroneously included in foreclosure notice; finding no

evidence that erroneous property description had caused a grossly inadequate price or that any

prospective bidder was prevented or deterred from bidding at the trustee’s sale); City of Keller

v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005) (“when the circumstances are equally consistent with

either of two facts, neither fact may be inferred”); Schlumberger Well Surveying Corp. v. Nortex Oil

& Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968) (noting that “a vital fact may not be established by

piling inference upon inference”).14

               We hold that the appellees established, as a matter of law, that the Notice

of Substitute Trustee’s Sale gave legally sufficient notice that both the Casa Grande and

La Casa Apartments would be sold at the foreclosure sale and that the appellees conclusively

negated any fact issue as to whether any irregularity rendered that sale invalid. We similarly

hold that the appellees met their burden regarding the substitute trustee’s sale itself.          The

summary-judgment evidence is undisputed that Strickland recited the date, book and page number

where the Deed of Trust has been recorded in the Bell County real property records, then read the

legal description of the Casa Grande but not the La Casa parcel. This notice parallels that given in

the Notice of Substitute Trustee’s Sale.

               We accordingly hold that the district court did not err in granting summary judgment

on the appellees’ declaratory claim that the substitute trustee’s sale had conveyed to LaSalle title to




       14
          These principles are dispositive of whatever implications the dissent draws from Myrad’s
claims of equity in the property. See id. at ___ n.10.

                                                  23
both the La Casa and Casa Grande apartments.15 It is undisputed that the original Substitute

Trustee’s Deed did not accurately reflect that conveyance. Consequently, the district court did not

err in granting summary judgment on appellees’s declaratory claim that the correction deed vested

title to both parcels in LaSalle. See Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859,

871 (Tex. App.—Dallas 2005, no pet.). Summary judgment was likewise appropriate on Myrad’s

overlapping declaratory claims and its quiet title action. As noted, Myrad’s assertions to the

contrary, as well as those of the dissent, are predicated on their incorrect views that the substitute

trustee’s sale conveyed only the Casa Grande Apartments.


“Breach of duty” and conspiracy

               Myrad also asserts that it has raised a fact issue precluding summary judgment on its

claims against Cobb for damages for “breaching duties” as a substitute trustee and conspiring to do

so. The appellees contend that summary judgment was appropriate on these claims for the same

reasons that it was appropriate regarding the validity of the substitute trustee’s sale and correction

deed. We agree with the appellees.

               As the appellees observe, a trustee or substitute trustee appointed under a deed of trust

to exercise a right of sale has a duty only to conduct the sale in compliance with the Deed of Trust

and to avoid affirmatively deterring prospective bidders by acts or statements made before or during


       15
           We express no opinion regarding whether, if the foreclosure sale had been invalid as a
conveyance of both the Casa Grande and La Casa Apartments, it would nonetheless have the legal
effect of conveying only the Casa Grande Apartments, as Myrad contends, or would have rendered
the entire sale invalid. See Shearer v. Allied Live Oak Bank, 758 S.W.2d 940, 942
(Tex. App.—Corpus Christi 1988, writ denied) (“Because the foreclosure sale was void, th[e] debt
is revived and considered outstanding.”).

                                                  24
a foreclosure sale. See First State Bank v. Keilman, 851 S.W.2d 914, 921 (Tex. App.—Austin 1993,

writ denied). These are the same duties that underlie Myrad’s theory that the foreclosure sale was

invalid to the extent that it purported to convey both the Casa Grande and La Casa Apartments.

Myrad’s “breach of trustee’s duty” claim for damages, in substance, is merely the alternative remedy

available where a foreclosure sale violates section 51.002 or the deed of trust, or chills bidding so

as to cause a grossly inadequate sale price—a claim for wrongful foreclosure damages. See Pentad

Joint Venture, 797 S.W.2d at 96.16 Summary judgment on Myrad’s “breach-of-trustee’s duties”

claim is, therefore, appropriate for the same reasons. And, because this holding negates the element

of an “unlawful action” or “unlawful means” necessary for Myrad to prevail on its conspiracy claim,

see Keilman, 851 S.W.2d at 925, summary judgment was appropriate on that claim as well.


Surplus

               Finally, Myrad asserts that it has raised a fact issue regarding its claim to a declaration

that LaSalle owes it a surplus. Because the amount of LaSalle’s successful credit bid—$978,000—is

undisputed, Myrad’s challenge turns on whether it has raised a fact issue regarding whether its

indebtedness at the time of foreclosure was less than the bid amount. We note again that LaSalle

moved for no-evidence summary judgment on this issue, placing the burden on Myrad to raise a fact

issue regarding each element of its claim.




       16
           Cf. Charter Nat’l Bank–Houston, 781 S.W.2d at 371-74 (recognizing exception where
mortgagee deliberately chilled bidding and injured mortgagor seeks damages rather than setting aside
the sale).

                                                  25
               We observe that the amount of Myrad’s indebtedness to LaSalle is a function of the

Note, the Deed of Trust, and the other loan and security documents. Under these instruments,

Myrad’s “debt” is defined as (1) “the payment of the indebtedness evidenced by the Note”; (2) “the

payment of interest, default interest, late charges, and other sums provided in the Note, this Security

Instrument or the Other Security Documents”; (3) “the payment of all other monies agreed to or

provided to be paid by Grantor in the Note, this Security Instrument or the Other Security

Documents”; (4) “the payment of all sums advanced pursuant to this Security Instrument to protect

and preserve the Property and the lien and the security interest created hereby”; and (5) “the payment

of all sums advanced and costs and expenses incurred by [LaSalle] in connection with the Debt or

any part thereof, any renewal, extension, or charge of or substitution for the Debt or any part thereof,

or the acquisition or perfection of the the security therefore, whether made at the request of [Myrad]

or [LaSalle].” LaSalle contends that Myrad’s debt at the time of foreclosure was $986,495.78,

itemized as follows:


                Unpaid principal:                               $       796,313.50
                Accrued interest (at note rate):                         45,788.03
                Additional interest (at default rate):                   36,497.70
                Prepayment charges:                                      88,457.22

                Outstanding late charges:                                  5,057.47

                Property protection advances:                             20,337.58

                Quote revision fee & misc. charges:                          170.00

                Total projected due as of Nov. 7, 2006:         $       992,621.50

                Reserves and suspense                                     <6,126.02>



                                                   26
                Net amt. proj. due as of Nov. 7, 2006:         $       986,495.7817

               Myrad disputes the following components of LaSalle’s calculation:


•      A $9,004 charge to Myrad’s insurance escrow, apparently reflected in LaSalle’s “Reserves
       and Suspense” line item, which was made to purchase coverage on the property a few days
       before foreclosure. Myrad adduced summary-judgment evidence that the premiums were
       refunded by the carrier on the day after foreclosure.

•      $13,516 of the “property protection advances,”which, Myrad contends,“did nothing to
       protect the apartments.”18

•      Various $50 charges for “miscellaneous” fees, totaling “at least $600,” which Myrad claims
       were “improperly charged” to its outstanding loan amount.

•      Myrad claims that LaSalle improperly failed to credit its reserve accounts with interest.19


       17
          Prior to the temporary injunction hearing, Joe Vickery of Capmark submitted an affidavit
containing calculations that correspond to these.

               Principal:                                       $     796,313.50
               Interest:                                               45,788.03
               Default interest:                                       36,497.70
               Other applicable charges:                              107,896.25
                                                                $     986,495.48

The $107,896.48 of “other applicable charges” matches the sum of prepayment charges
($88,457.22), outstanding late charges ($5,057.47), property protection advances ($20,337.58), and
“quote revision fee and misc. charges” ($170), net of reserves and suspense ($6,126.02) as reflected
in the revised Conditional Statement.
       18
           Myrad complains that LaSalle charged it for three appraisals of the apartments in the
amounts of $500, $5,200 and $950. It also takes issue with charges for environmental assessments—
$2,615 and $2,351—plus a $1,900 charge for review of those assessments. Myrad does not appear
to challenge the remaining component of the property protection advances, a $6,817.58 charge for
legal expenses.
       19
          Myrad does not quantify the amount of interest it claims it is owed on its reserve accounts.
Excluding only the $9,004 in challenged insurance payments, $13,517 in disputed property
protection advances, and Myrad’s estimated $600 in “improperly charged” miscellaneous fees from
LaSalle’s calculation of Myrad’s debt would yield a total debt of approximately $963,375. In other
words, Myrad is claiming a surplus of approximately $14,600 (the 978,000 credit bid less $963,375),
plus whatever amount of interest it claims to be owed on its reserve accounts.

                                                 27
                  We conclude that Myrad has raised a fact issue regarding the existence of a surplus.

Specifically, Joe Vickery, Capmark’s officer who oversaw the foreclosure on behalf of LaSalle,

testified that he authorized the $9,004 advance for insurance a few days before foreclosure, yet

acknowledged that the carrier refunded that amount on the day after foreclosure. This evidence

raises a fact issue as to whether LaSalle actually incurred the insurance charge that it purported to

charge to Myrad and include in its debt.

                  LaSalle argues that any dispute regarding the insurance charge is moot because it

stipulated, for purposes of the summary-judgment proceeding, that it would waive any deficiency

claim to the difference between the $986,495.48 it calculated as Myrad’s debt and its $978,000 credit

bid. We disagree. If the disputed insurance charge is excluded from LaSalle’s $986,495.48 debt

calculation—and Myrad has raised a fact issue as to whether it should be—its total debt, based

on LaSalle’s calculations, would be only $977,491.48. This figure is less than the amount of the

credit bid. Consequently, Myrad has presented a fact issue regarding the existence of a surplus.

                  Myrad has also presented summary-judgment evidence raising a fact issue as to

whether LaSalle violated its obligations under the loan documents to deposit Myrad’s reserve or

escrow funds in interest-bearing accounts. In particular, Myrad presented statements reflecting

debits and credits to its loan amount that did not contain any credits for interest. LaSalle did not

attempt to present summary-judgment evidence establishing that it had actually credited Myrad for

interest earned on its reserve or escrow accounts. On this record, we must conclude that Myrad has

raised a fact issue regarding its entitlement to this interest, which would further bear on the amount

of any surplus.



                                                   28
               For these reasons, we conclude that Myrad has presented a fact issue as to whether

it is owed a surplus. We sustain its issue.


                                         CONCLUSION

               We affirm the judgment of the district court in part and reverse in part. We affirm

the court’s final summary judgment declaring that the substitute trustee’s sale had conveyed to

LaSalle title to both the La Casa and Casa Grande apartments and that the correction deed had vested

title in LaSalle to the property described therein. We also affirm the district court’s take-nothing

summary judgment against Myrad’s claims with the exception only of its declaratory claim regarding

a surplus. We reverse the district court’s summary judgment on that claim and remand for further

proceedings consistent with this opinion.




                                              ____________________________________________

                                              Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton;
       Dissenting Opinion by Justice Patterson

Affirmed in part; Reversed and Remanded in part on Motion for Rehearing

Filed: March 28, 2008




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