Roy Day, Jr. v. Knox County Appraisal District

11th Court of Appeals Eastland, Texas Memorandum Opinion Roy Day, Jr. Appellant Vs. No. 11-03-00086-CV -- Appeal from Knox County Knox County Appraisal District Appellee Roy Day, Jr. appeals the trial court=s award of excess proceeds to the Knox County Appraisal District from the sheriff=s sale of two properties. We affirm. The district court entered a judgment in favor of the Knox County Appraisal District against Roy Day, Jr. and others for delinquent taxes due on three properties. That judgment, which ordered foreclosure of the tax liens on the three properties, was appealed by Roy Day, Jr. In an unpublished opinion, this court affirmed the trial court=s judgment. Roy Day, Jr., individually and d/b/a D-Bar Oil Company v. Knox County Appraisal District, No. 11-00-00073-CV, 2000 WL 34234266 (Tex.App. Eastland August 31, 2000, no pet=n)(not designated for publication). Two of the properties were sold at a sheriff=s sale after this court=s decision became final; however, the third property was sold at a later time. The sale proceeds from the two properties were applied to the delinquent taxes due on the two properties as stated in the judgment and to taxes, penalties, and interest that had become due or delinquent on those properties subsequent to the date of the judgment. After satisfaction of the amounts due on the two properties, there remained excess proceeds of $13,922.11 which were deposited into the registry of the court. The record reflects that at some point the third property was sold; however, the sale proceeds were inadequate to pay the taxes, penalties, and interest due on the third property. The Knox County Appraisal District subsequently filed a petition to claim the excess proceeds and to have them applied to the remaining judgment deficiency. At the hearing, the Knox County Tax Assessor/Collector testified that the amount of delinquent taxes, penalties, and interest remaining to be paid on the third property was $18,382.41. The trial court ruled that the excess proceeds of $13,922.11, plus any interest earned since the deposit of that amount into the registry of the court, should be applied against the delinquent taxes, penalties, and interest still due on the third property under the original judgment. In two issues, appellant complains that the trial court erred in not granting him a continuance and in applying the excess proceeds from the sale of the two properties against the amounts due on the third property. We will first deal with the trial court=s ruling on the excess proceeds. Claims for excess proceeds are governed by TEX. TAX CODE ANN. ' 34.04 (Vernon Supp. 2004). Section 34.04(c) provides: (c) At the hearing the court shall order that the proceeds be paid according to the following priorities to each party that establishes its claim to the proceeds: (1) to the tax sale purchaser if the tax sale has been adjudged to be void...; (2) to a taxing unit for any taxes, penalties, or interest that have become due or delinquent on the subject property subsequent to the date of the judgment or that were omitted from the judgment by accident or mistake; (3) to any other lienholder...; (4) to a taxing unit for any unpaid taxes, penalties, interest, or other amounts adjudged due under the judgment that were not satisfied from the proceeds from the tax sale; and (5) to each former owner of the property, as the interest of each may appear.[1] The trial court did not err in ruling that the excess proceeds of $13,922.11 should be applied to the remaining judgment deficiency. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision=s words and terms. Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 865 (Tex.1999). The language of Section 34.04(c) is unambiguous. Proceeds from the sale of the two properties were correctly applied first to the amounts due on those properties in accordance with Section 34.04(c)(2). Section 34.04(c)(3) was not applicable. Therefore, the court turned to the next priority. Section 34.04(c)(4) states that excess proceeds shall be paid to a taxing unit for Aany unpaid taxes, penalties, interest, or other amounts adjudged due under the judgment that were not satisfied from the proceeds from the tax sale.@ This fourth priority encompasses all monies still owed under a judgment. Sale proceeds in excess of the taxes, penalties, and interest due on one property may be applied to the deficiencies remaining on other properties included in the same judgment. Nipper-Bertram Trust v. Aldine Independent School District, 76 S.W.3d 788 (Tex.App. - Houston [14th Dist.] 2002, pet=n den=d). Appellant=s second issue is overruled. In his first issue, appellant contends that the trial court erred in not granting his request for a continuance. At the beginning of the hearing, appellant verbally requested a continuance stating that he had just had emergency surgery and that he was taking Astrong medicine.@ The trial court denied his request. The trial court=s docket sheet indicates that the court had granted appellant=s two previous motions for continuance. TEX.R.CIV.P. 251 provides that a continuance shall not be granted Aexcept for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@ Appellant did not file a motion for continuance supported by an affidavit that showed good cause. Therefore, we must presume that the trial court did not abuse its discretion in denying appellant=s motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Moreover, appellant has not demonstrated how he was harmed by the denial of his motion for continuance. The only issue before the court below was a legal one: whether the excess proceeds from the sale of the two properties should be applied to the remaining judgment deficiency relating to the third property. Appellant=s first issue is overruled. The order of the trial court is affirmed. TERRY McCALL September 9, 2004 JUSTICE Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]The only change by the Legislature to Section 34.04(c) after the original judgment was the addition of the phrase Aas the interest of each may appear@ in subparagraph (5). The current language of subparagraphs (2) and (4) is the same as it was at the time of the hearing in this case.