Hidalgo International, Inc. v. Sara Wolkowitz

Affirmed and Memorandum Opinion filed November 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-01120-CV
HIDALGO INTERNATIONAL, INC., Appellant
V.
SARA WOLKOWITZ, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2009-45506
MEMORANDUM OPINION
In this property-tax redemption case, appellant asserts two issues on appeal
from the trial court’s judgment on the jury’s verdict. Because appellant failed to
preserve error in the trial court as to either of these issues, we affirm the trial
court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff Hidalgo International, Inc. purchased real property
burdened by a substantial property-tax lien (hereinafter, the “Property”). The
Property was later sold at a tax sale in which the tax lien was foreclosed. Appellee
Sara Wolkowitz was the successful bidder at the tax sale and purchased the
Property. Hidalgo, as the former owner of the Property, sought to redeem the
Property under section 34.21 of the Texas Tax Code, which governs redemption of
real property sold at a tax sale. Hidalgo requested that Wolkowitz provide Hidalgo
with a written itemization of all amounts spent by Wolkowitz in costs on the
Property, as provided under section 34.21(i) of the Texas Tax Code. Wolkowitz
responded with an affidavit containing an itemized statement of what she
contended was the redemption amount. Hidalgo contends that Wolkowitz included
items in the calculation of the statutory redemption amount that are not permitted
to be included under section 34.21 of the Texas Tax Code.
Despite the apparent inability of Hidalgo and Wolkowitz to agree on the
redemption amount, Hidalgo did not seek to redeem the Property under section
34.21(f) of the Texas Tax Code by paying or tendering payment of the required
redemption amount to the assessor-collector for the county in which the Property
was sold. See Tex. Tax Code Ann. § 34.21(f) (West 2014). Hidalgo did not pay
any alleged redemption amount to Wolkowitz within the statutory time period for
redemption, nor did Hidalgo apparently make an unconditional tender of the
amount that it alleged was required for redemption within the statutory time period.
After the statutory time period for redemption had expired, Hidalgo filed suit
against Wolkowitz in the trial court below, apparently alleging that Hidalgo had
redeemed the Property and seeking lost-profits damages from a sale of the Property
that Hidalgo allegedly lost due to Wolkowitz’s conduct.
The case proceeded to a jury trial. At trial, Hidalgo did not assert a motion
for instructed or directed verdict. During the charge conference, Hidalgo did not
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voice any objections to the jury charge or request the submission of any
instruction, question, or definition not submitted in the court’s jury charge. The
jury answered the first question in a manner adverse to Hidalgo’s position at trial
and followed the trial court’s instructions not to answer the remaining questions in
the jury charge. Wolkowitz asked the trial court to render a final judgment on the
jury’s verdict in favor of Wolkowitz, and the trial court rendered such a judgment.
Hidalgo did not file a motion for judgment notwithstanding the verdict or a motion
to disregard any jury answer. Hidalgo did file a motion for new trial in which its
sole argument was that the trial court’s judgment is contrary to both law and fact
and should be set aside and a new trial granted.
II. ANALYSIS
On appeal from the trial court’s judgment, Hidalgo asserts that (1) the trial
court erred in rendering judgment based upon an immaterial answer to jury
question number one because the evidence conclusively proved that Wolkowitz
advised Hidalgo that she would reject a tender of the proper redemption amount,
thus excusing Hidalgo from tendering this amount; and (2) by improperly
demanding that certain items be included in the redemption amount, Wolkowitz
relieved Hidalgo from its duty to tender the redemption amount. Hidalgo contends
that, as a matter of law, its obligation to tender the redemption amount to
Wolkowitz was waived by Wolkowitz’s alleged insistence that inappropriate
amounts be included in the calculation of the redemption amount, and therefore,
the submission of jury question number one was improper.
Hidalgo did not raise any of these complaints in the trial court by means of a
motion for instructed or directed verdict, an objection to the jury charge, a motion
for judgment notwithstanding the verdict, or a motion to disregard any jury answer.
The only post-trial motion that Hidalgo filed was its motion for new trial, but in
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this motion, Hidalgo did not raise any of its appellate arguments. See Wagon
Wheel Club, Inc. v. Restaurant Equip. & Supply Co., 410 S.W.2d 788, 788–89
(Tex. Civ. App.—San Antonio 1967, no writ). Because Hidalgo did not voice any
of its appellate complaints in the trial court and obtain an adverse ruling from the
trial court, Hidalgo failed to preserve error in the trial court as to each of its
appellate arguments.1 See Tex. R. App. P. 33.1(a); Gammill v. Fettner, 297
S.W.3d 792, 801–02 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Halim v.
Ramchandani, 203 S.W.3d 482, 486–87 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). Accordingly, we overrule Hidalgo’s two appellate issues and affirm the
trial court’s judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
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Even if Hidalgo had preserved error, we would conclude that its appellate arguments lack
merit.
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