Opinion
No. 04-03-00215-CV
Delivered and Filed: May 25, 2005.
Appeal from the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-18315, Honorable Karen H. Pozza, Judge Presiding.
Affirmed in Part; Reversed and Rendered in Part.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Beneficial Mortgage Corporation — B01 and Hollerbach and Associates, Inc. appeal the trial court's judgment dismissing their claims against Ralph Lopez, in his capacity as Sheriff of Bexar County, and its take-nothing judgment in favor of Wakefield Realtors, Inc. We affirm the judgment in favor of Wakefield. We affirm the dismissal of the claims against Sheriff Lopez in part, reverse it in part, and render judgment that Beneficial and Hollerbach take nothing from Sheriff Lopez.
Factual and Procedural Background
Beneficial sought to enforce a judgment lien by execution and hired Hollerbach and Associates to bid on the property at the Sheriff's sale. However, when Hollerbach arrived at the sale too late to register as a bidder, the Sheriff's office did not allow him to bid. Wakefield was the high bidder at the auction, bidding an amount significantly less than Beneficial's judgment. The Sheriff subsequently deeded the property to Wakefield. In this suit, Beneficial and Hollerbach seek a declaration that the Sheriff's sale was invalid and an order setting aside the sale. Beneficial also seeks damages from Sheriff Lopez and, from Wakefield, a return of revenue earned from the property. After considering the Sheriff's plea to the jurisdiction and alternative motion for summary judgment and the other parties' motions for summary judgment, the trial court dismissed the claims against Sheriff Lopez and rendered a take-nothing judgment in favor of Wakefield.
Immunity
Beneficial and Hollerbach first argue the trial court erred in dismissing the claims against Sheriff Lopez on grounds of sovereign immunity. The doctrine of sovereign immunity protects the state and its subdivisions, including counties, from suits for damages and deprives a trial court of subject-matter jurisdiction over such suits. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Travis County v. Pelzel Assocs., 77 S.W.3d 246, 248 (Tex. 2002). Beneficial's and Hollerbach's suit against Sheriff Lopez in his official capacity "is just another way of pleading a suit against the County, for which the Sheriff serves as agent." Battin v. Samaniego, 23 S.W.3d 183, 186 (Tex.App.-El Paso 2000, pet. denied). When sued in his official capacity, the Sheriff is protected by governmental immunity to the same extent as the county. Salazar v. Lopez, 88 S.W.3d 351, 353 (Tex.App.-San Antonio 2002, no pet.); see Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 280 (Tex.App.-Texarkana 2003, no pet.) ("[A] public official sued in his official capacity . . . is protected by the same sovereign immunity enjoyed by the state agency he represents."); McCartney v. May, 50 S.W.3d 599, 605-06 (Tex.App.-Amarillo 2001, no pet.) (official sued in his official capacity may raise sovereign immunity even if governmental entity is not a party). To defeat a claim of sovereign immunity, the claimant must allege and establish that immunity has been waived by "clear and unambiguous" legislative consent. Labrado v. County of El Paso, 132 S.W.3d 581, 592 (Tex.App.-El Paso 2004, no pet.); Pelzel, 77 S.W.3d at 248. However, neither Beneficial's original petition nor its live petition, filed after the Sheriff pleaded sovereign immunity, alleges that sovereign immunity has been waived. Nor does Beneficial present any argument on appeal that the county's immunity from a suit for damages has been waived. Accordingly, the trial court did not err in dismissing Beneficial's causes of action for damages against Sheriff Lopez.
Beneficial's petition and Hollerbach's plea in intervention each state they are suing "Ralph Lopez, as the Sheriff of Bexar County, Texas." The pleadings never refer to this defendant individually and do not complain of any individual acts of Sheriff Lopez; rather, they complain of the Sheriff's office's procedures, both generally and as they were implemented by a deputy at the sale. We conclude Beneficial and Hollerbach asserted claims against Sheriff Lopez only in his official capacity as the Sheriff of Bexar County. See Nueces County v. Ferguson, 97 S.W.3d 205, 215-216 (Tex.App.-Corpus Christi 2002, no pet.).
Beneficial and Hollerbach next contend that their claims for declaratory relief should not have been dismissed because they do not implicate sovereign immunity. See Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (plurality opinion) ("certain declaratory-judgment actions against state officials do not implicate the sovereign-immunity doctrine"). We agree. Beneficial and Hollerbach seek declarations that the Sheriff's registration procedures both generally and as applied to Hollerbach caused an irregularity in the sale that rendered the sale invalid. This claim does not attempt to subject the county to liability and thus does not implicate sovereign immunity. See id. at 855; Labrado, 132 S.W.3d at 594. The trial court therefore erred in dismissing the claims against Sheriff Lopez for declaratory relief.
Validity of Sale
Beneficial and Hollerbach next argue the trial court should not have granted the Sheriff's and Wakefield's motions for summary judgment on the issue of whether the sale was invalid and should be set aside. We disagree and hold that Sheriff Lopez and Wakefield conclusively established there was no irregularity in the sale.
A sheriff's sale of real property will be set aside only on proof of (1) an irregularity calculated to affect the sale, (2) a grossly inadequate sales price, and (3) a causal connection between the irregularity and the selling price. Apex Fin. Corp. v. Brown, 7 S.W.3d 820, 827-28 (Tex.App.-Texarkana 1999, no pet.) (citing McKennon v. McGown, 11 S.W. 532, 533 (Tex. 1889) and Kauffman Runge v. Morriss, 60 Tex. 119 (1883)). Beneficial and Hollerbach advance several arguments in support of their contention that the Sheriff's registration procedure for bidders constitutes an irregularity in the sale.
Beneficial and Hollerbach first contend that "[t]he record does not disclose what registration deadline procedure the Sheriff follows," that "it is impossible to know what the Sheriff's `registration' deadline is," and that the record does not establish "a reasonable explanation why Hollerbach could not register." We disagree. The uncontroverted summary judgment evidence conclusively establishes that everyone who wants to bid at an execution sale in Bexar County must register, either in the Sheriff's office on the day before the sale or on the courthouse steps between 9:30 and 10:00 a.m. on the day of the sale. A registrant provides his name, address, and telephone number; signs a document agreeing to pay the amount of a successful bid immediately following the auction; and acknowledges that the properties listed for auction are sold "as is" and without warranty. The registrant receives a card with a number and must use this number when bidding. A few minutes before 10:00 a.m., a deputy announces the sale is about to begin and that all bidders must complete the registration process. No registration is allowed after the sale begins. Only those who have registered are allowed to bid. The uncontroverted evidence also established that Hollerbach did not arrive at the courthouse until 10:15 or 10:20 a.m., after the sale had begun, but before the property at issue was auctioned. He was not allowed to bid because he had not registered before the Sheriff's sale began.
The only exception to the registration requirement is for Bexar County when it is foreclosing a tax lien.
The purported confusion about the registration procedure arises from two documents produced by the Sheriff's office during discovery. The documents are dated April 2000 and April 2002, and each is entitled "Frequently Asked Questions Regarding Bexar County Tax Foreclosure Sales." Although these documents state the deadline for registering in slightly different terms, each requires registration before the sale begins. Moreover, by their terms, these documents apply only to tax sales and there is no evidence that either of these documents was distributed to bidders in November 2000 or that Hollerbach saw either of the documents before the sale.
Beneficial and Hollerbach next argue the sale was irregular because the Sheriff did "not adequately notify potential bidders of his registration deadline and, therefore, fail[ed] to comply with Texas Rule of Civil Procedure 647's mandate that he provide notice of the time of the execution sale." We disagree. The notice of sale states:
And to me as Sheriff, directed and delivered, I will proceed to sell to the highest bidder, for cash at 10:00 a.m. on November 7 A.D. 2000, it being the first Tuesday of said month, at the south door of said Bexar County courthouse on the north side of West Nueva Street, in the City of San Antonio, the following property, situated in the County of Bexar and State of Texas and described as follows, . . .
. . .
A bidder at the sale must be registered at the time the sale begins with the sheriff, deputy sheriff or agent conducting the sale.
The notice clearly and unambiguously states that a bidder must be registered at the time the sale begins and that the sale begins at 10:00 a.m. Beneficial and Hollerbach's interpretation of the notice — that a bidder need not register before the sale begins at 10:00 a.m., but must do so before the auction of the property described in the notice begins — is not supported by the notice's plain and unambiguous language.
Beneficial and Hollerbach next argue that there was an irregularity in the sale because the Sheriff "violated [his] duty to obtain the best possible price for the Property and allow bidders all reasonable opportunity to bid." They effectively ask the court to invalidate the registration requirement if application of the requirement precludes someone from bidding. We decline to do so. Beneficial and Hollerbach cite no authority that precludes the Sheriff from adopting procedures to assist him in implementing his duty to conduct judicial sales. The registration requirement does not conflict with any rule or statute governing the conduct of execution sales or with the court's order of sale. There is no evidence the Sheriff violated his duties with respect to the sale. The sale complied with the applicable rules and statutes, seventy-four potential bidders timely registered for the sale, and the property was sold to the highest bidder. Moreover, the Sheriff did not deny Hollerbach a reasonable opportunity to bid: the notice of sale stated that all bidders must be registered by 10:00 a.m., and Beneficial advised Hollerbach in writing that "[y]ou will have to register for the sale with the Sheriff's office personnel between 9:30 a.m. and 10:00 a.m. on the southernmost courthouse steps." The property sold for less than the price Hollerbach was prepared to bid not because the Sheriff violated his duties, but because Hollerbach was late.
Finally, Beneficial contends there was an irregularity in the sale because the Sheriff did not "comply with the written Tax Sale Rules regarding minimum bid[s]." However, the minimum bid requirement applies only to execution sales based on judgments foreclosing tax liens and is based on statute. See Tex. Tax Code Ann. § 33.50 (Vernon 2001). Accordingly, because Sheriff Lopez and Wakefield conclusively established there was no irregularity in the sale, the trial court did not err in granting the summary judgment on the claims that the sale was invalid.
Because we hold there was no irregularity in the sale of the property, we do not address the contention that the property sold for a grossly inadequate price. See Apex, 7 S.W.3d at 827 ("[A]n otherwise valid sheriff's sale will not generally be set aside for inadequacy of price alone.").
Conclusion
Because Sheriff Lopez is entitled to sovereign immunity from Beneficial's claims for damages, but not from Beneficial's and Hollerbach's claim for declaratory relief, we affirm the trial court's judgment dismissing Beneficial's damages claims and reverse the judgment dismissing the claims for declaratory relief. However, because Sheriff Lopez and Wakefield conclusively established there was no irregularity in the Sheriff's sale, we render judgment in favor of Sheriff Lopez on the claims for declaratory relief and we affirm the judgment in favor of Wakefield.