Texas Judiciary Online - HTML Opinion

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Opinion issued May 31,=20 2007

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-06-00240-CV

MARK = McCOY,=20 Appellant

RENEE = ROGERS AND=20 TIMOTHY ROGERS, Appellees

On = Appeal from the=20 165th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2004-73163

O P I N = I O=20 N

Appellant, Mark McCoy, filed = this action=20 to set aside a deed conveyed pursuant to an execution sale of real = property that he previously owned. McCoy brings this appeal to = challenge=20 the summary judgment rendered in favor of appellees, Renee Rogers = and=20 Timothy Rogers, who purchased the property at the sale. McCoy = presents a=20 broad issue contending that the trial court erred by rendering = summary=20 judgment.^{=20
(1)} In two additional issues, McCoy contends that the = sheriff's=20 execution sale should be set aside (1) because of lack of = compliance with=20 the notice provisions of rules 637 and 647 of the Rules of Civil=20 Procedure, (2) because he was not notified of the sale at his home = address, and (3) because the Rogerses purchased the property at = half its=20 fair market value. We affirm.

Facts and Procedural = Background

This dispute concerns property, = a house,=20 located at 1736 Crownover in the Spring Branch Oaks subdivision in = Houston=20 (the property). McCoy owned the property before the sheriff's sale = challenged here; the Rogerses owned the property adjacent to = McCoy's.=20 Neither party used the respective properties as a primary = residence. The=20 Rogerses had previously sued McCoy for maintaining a nuisance on = his=20 property, which the City of Houston had boarded up and declared = dangerous.=20 As a result of that action, Cause No. 2002-60912, Tim Rogers = and Renee=20 Rogers v. Mark Alan McCoy (the underlying case), the parties = executed=20 and endorsed an agreed final judgment, which the trial court = signed on=20 December 16, 2003.

The agreed judgment awarded the = Rogerses=20 $25,000, plus $6,000 in attorney's fees, but recites that the = Rogerses=20 would forbear execution until February 14, 2004 to enable McCoy to = perform=20 needed repairs and improvements to the property and thus reduce = the=20 $25,000 indebtedness. To that end, the agreed judgment provided = that if=20 McCoy made the repairs and improvements specified in the judgment = by=20 February 14, 2004, he would receive a specified credit for those = repairs,=20 against the $25,000 judgment amount. If McCoy completed all the = repairs,=20 he would receive an additional credit of $1,500.^{=20
(2)} But, the agreed judgment also provided that if McCoy = did not=20 complete the specified repairs by February 14, 2004, the Rogerses=20

without further Court Order or = notice to=20 [McCoy] shall be entitled to (i) seek to have issued a writ of = execution;=20 (ii) such other and further remedies as allowed by law to enforce = and=20 collect such judgment in favor of [the Rogerses].

In addition to the credits = stipulated for=20 repairs and improvements, the agreed judgment recites that the = Rogerses=20 would provide McCoy an additional $0.50 credit for every $1.00 = that the=20 Rogerses received "upon the sale [of their adjacent property] . . = . that=20 is above $120,000; provided, however, that once the [agreed = judgment] has=20 been reduced to $6,000 by either payments and/or credits, [McCoy = would]=20 not be entitled to any additional credits."

The summary judgment evidence = shows that=20 the Rogerses met at the property with McCoy and a representative = of the=20 civic association for the Spring Branch Oaks subdivision on = February 16,=20 2004, two days after the compliance date stated in the agreed = judgment.=20 The Rogerses' counsel in the underlying case was also present. As = a result=20 of the meeting, it was determined that the repairs and = improvements=20 specified in the agreed judgment had not been made. The Rogerses = requested=20 a writ of execution on the following day, and they filed an = abstract of=20 the underlying judgment on March 2, 2004.^{=20
(3)}

The writ of execution issued on = April 1,=20 2004. The office of Harris County Constable Glen Cheek published = notice in=20 the Daily Court Review newspaper and notified all parties by = certified=20 mail that execution sale of the property would take place on June = 1, 2004.=20 See Tex. R. Civ. P. 647. The summary judgment record = includes a=20 copy of a postal notice, dated May7, 2004 and delivered to McCoy = at the=20 property address, reporting an attempted delivery of a certified = letter=20 from Constable Cheek on May 7, 2004, which was available for = pick-up after=20 May 8, 2004.^{=20
(4)} At the sheriff's sale on June 1, 2004, the Rogerses=20 purchased the property for $28,000 and subsequently obtained a = deed=20 reflecting their ownership.

On December 29, 2004, McCoy = filed this=20 action to set aside the sale and the deed and sought injunctive = and=20 declaratory relief. McCoy's live pleadings deny defaulting on the = repairs=20 and improvements required by the agreed judgment. Despite the = express=20 terms of the agreed judgment, which set the deadline date for = completing=20 all repairs and improvements at February 14, 2004 and authorized = the=20 Rogerses to seek execution without "further Court Order or notice = to=20 [McCoy]," McCoy also claimed that he was "entitled to notice" of = the sale,=20 that he had no knowledge of the sale until August 2004, and that=20 irregularities in the sale amounted to wrongful execution that = warranted=20 setting aside the sale and resulting deed to the = Rogerses.

The Rogerses filed a motion for = traditional summary judgment and supplemented their motion three = times=20 after McCoy amended his pleadings. They also filed a no-evidence = motion=20 for summary judgment after McCoy amended his pleading to allege = that the=20 Rogerses' conduct constituted fraud calculated to ensure that he = not=20 receive notice of the execution sale. The record before us does = not=20 contain a response by McCoy to the no-evidence motion. After = conducting an=20 oral hearing to consider the parties' arguments, the trial court = rendered=20 summary judgment for the Rogerses. A final judgment was rendered = in their=20 favor after resolving their claims for attorney's fees. McCoy = filed a=20 motion for new trial, which the trial court denied by written=20 order.

Standard of Review

We review summary judgments de = novo.=20 Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 = (Tex.=20 2005). In conducting our review, we indulge every reasonable = inference in=20 favor of the nonmovant, take all evidence favorable to the = nonmovant as=20 true, and resolve any doubts in favor of the nonmovant. = Id. A=20 defendant who moves for traditional summary judgment on the = plaintiff's=20 claims must conclusively disprove at least one element of each of = the=20 plaintiff's causes of action. Little v. Tex. Dep't of Criminal = Justice, 148 S.W.3d 374, 381 (Tex. 2004).

Rule 166a also = authorizes=20 summary judgment on no-evidence grounds. Tex. R. Civ. P. 166a(i). = A trial=20 court must grant a no-evidence motion for summary judgment if (1) = the=20 moving party's motion asserts that there is no evidence of one or = more=20 specified elements of a claim or defense on which the adverse = party would=20 have the burden of proof at trial; and (2) the adverse party = produces no=20 summary judgment evidence that raises a genuine issue of material = fact on=20 those elements. See id.; Sudan v. Sudan, 199 = S.W.3d 291,=20 292 (Tex. 2006); see = also=20 Flameout Design & Fabrication, Inc. v. Pennzoil Caspian = Corp.,=20 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.) = ("Thus,=20 a no-evidence summary judgment is similar to a directed = verdict."). Once=20 the movant specifies the element or elements on which there is no=20 evidence, the burden shifts to the non-movant, who would have the = burden=20 of proof on those elements at trial, to produce evidence that = raises a=20 fact issue on the challenged elements. Tex. R. Civ. P. = 166a(i);=20 Flameout Design, 994 S.W.2d at 834.

In reviewing a no-evidence = summary=20 judgment, we continue to apply the well-settled standards by which = we=20 assume all evidence favorable to the non-movant is true, and we = indulge=20 every reasonable inference and resolve all doubts in favor of the=20 non-movant. See Tex. R. Civ. P. 166a(i) and cmt. to 1997 = change;=20 Sudan, 199 S.W.3d at 292 (citing City of Keller v.=20 Wilson, 168 S.W.3d 802, 824 (Tex. 2005)); Flameout = Design,=20 994 S.W.2d at 834.

When, as here, a summary = judgment does=20 not specify the grounds on which it was granted, the appealing = party must=20 demonstrate on appeal that none of the proposed grounds is = sufficient to=20 support the judgment. See Star-Telegram, Inc. v. Doe, 915 = S.W.2d=20 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, = Inc.,=20 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.). = If=20 summary judgment may have been rendered, properly or improperly, = on a=20 ground not challenged on appeal, the judgment must be affirmed.=20 Ellis, 68 S.W.3d at 898; see Vawter v. Garvey, = 786=20 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of summary = judgment=20 without properly assigned error).

We will affirm the judgment if = any one of=20 the theories advanced in the motion is meritorious and defeats a = cause of=20 action. See Joe v. Two Thirty Nine Joint Venture, 145 = S.W.3d 150,=20 157 (Tex. 2004). We will not consider a ground for reversal that = was not=20 expressly presented to the trial court by written motion, answer, = or other=20 response to the motion for summary judgment. See Tex. R. = Civ. P.=20 166a(c) ("Issues not expressly presented to the trial court by = written=20 motion, answer[,] or other response shall not be considered on = appeal as=20 grounds for reversal."); City of Houston v. Clear Creek Basin=20 Auth., 589 S.W.2d 671, 677 (Tex.1979).

A. No-Evidence Summary=20 Judgment

As required by rule 166a(i), = the=20 Rogerses' motion seeking summary judgment on McCoy's fraud claims = listed=20 each of the elements that McCoy would have to prove in order to = prevail at=20 trial on his claim that they fraudulently contrived to ensure that = he was=20 provided notice of the execution sale at the property, rather than = at his=20 residence. See Tex. R. Civ. P. 166a(i). The Rogerses = argued that=20 no evidence existed on which McCoy could rely to prove any element = of his=20 fraud claim against them. McCoy did not file a response to the = rule=20 166a(i) motion. Because the trial court's order rendering summary = judgment=20 did not specify on which grounds the trial court granted relief, = the order=20 may have encompassed rendition on the no-evidence ground asserted = by the=20 Rogerses. As the nonmovant who seeks to set aside a summary = judgment that=20 lacks stated grounds for its rendition, McCoy's burden on appeal = is to=20 demonstrate that none of the arguments on which the Rogerses = relied=20 supports the judgment rendered. See Star-Telegram, 915 = S.W.2d at=20 473; Ellis, 68 S.W.3d at 898. We must affirm when a = judgment may=20 have been rendered, whether properly or improperly, on a ground = not=20 challenged on appeal. See Vawter, 786 S.W.2d at 264;=20 Ellis, 68 S.W.3d at 898.

As authorized by Malooly = Bros., Inc.=20 v. Napier, 461 S.W.2d 119, 121 (Tex. 1970), McCoy's brief on = appeal=20 includes a broad issue questioning whether the trial court erred = by=20 rendering summary judgment in favor of the Rogerses. A general = point of=20 error, contending that the trial court erred in granting the = motion for=20 summary judgment, authorizes the party against whom judgment was = rendered=20 to challenge all possible grounds on which the trial court might = have=20 relied in rendering judgment. See Plexchem Int'l, Inc. v. = Harris=20 County Appraisal Dist., 922 S.W.2d 930, 931 (Tex. 1996);=20 Malooly, 461 S.W.2d 119, 121 (Tex. 1970).

The challenging party must = also, however,=20 present those arguments and supporting authority in order to merit = reversal. See Wortham v. Dow Chem. Co., 179 S.W.3d 189, = 198 (Tex.=20 App.--Houston [14th Dist.] 2005, no pet.) (citing cases and noting = contrary, minority view); see also Maranatha Temple, Inc. v. = Enter.=20 Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st = Dist.] 1994,=20 writ denied) (applying rule 74(f) of former Rules of Appellate = Procedure,=20 governing briefing requirements, to decline to "perform = independent review=20 of the record and applicable law" to address alternate grounds = advanced=20 for traditional summary judgment not challenged by points of = error).^{=20
(5)}=20

Though=20 McCoy specifies two further issues or "questions" in addition to = his=20 Malooly issue, his brief includes neither an issue nor an = argument that challenges the no-evidence grounds asserted by the = Rogerses=20 in moving for summary judgment.

The settled=20 law that we apply here precludes our reversing a judgment for a = reason not=20 raised in a point of error. See Walling v. Metcalfe, 863 = S.W.2d=20 56, 58 (Tex. 1993); Vawter, 786 S.W.2d at 264 (summary = judgment);=20 Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 272 (Tex. = App.--Houston [1st Dist.] 2004, pet. dism'd); Ellis, 68 = S.W.3d at=20 898. Similarly, we may not grant relief unless the party asserting = error=20 provides argument and supporting authorities. Tex. R. App. P. = 38.1(e),=20 (h); Maranatha Temple, 893 S.W.2d at 106.

Despite=20 McCoy's broad Malooly challenge, therefore, and in = accordance=20 with Walling and Vawter and this Court's holding = in=20 Maranatha Temple, 893 S.W.2d at 106, we may not address = whether=20 the trial court erred by rendering no-evidence summary judgment in = favor=20 of the Rogerses on McCoy's claim that they fraudulently = manipulated=20 details of the execution to ensure that McCoy would not receive = notice of=20 the execution sale.^{=20
(6)} Accordingly, we affirm the portion of the judgment = of the=20 trial court that may have been rendered on McCoy's fraud = claim.

B.=20 Traditional Summary Judgment

McCoy's two=20 specific issues on appeal challenge whether the Rogerses = established that=20 they were entitled to summary judgment on their contention that = the agreed=20 judgment in the underlying case authorized them to execute against = the=20 property. McCoy first contends, in issue two, that he was entitled = to=20 notice of the constable's sale and that failure to notify him = constituted=20 an irregularity that warrants setting aside the sale.^{=20
(7)} In issue three, McCoy argues that lack of notice at = his=20 residence address, where the Rogerses had previously served him = with=20 notice, and inadequacy of the sale amount combined to warrant = setting=20 aside the sale. We address these issues together.

1.=20 The Rogerses' Rule 166a(c) Motion

In moving=20 for traditional summary judgment, the Rogerses relied principally = on the=20 terms of the agreed judgment, which had become final and had not = been=20 appealed. They argued that they proceeded as authorized by and in=20 accordance with the agreed judgment, which they and McCoy had = endorsed as=20 to form and substance, and the terms of which had a definite legal = meaning. The Rogerses emphasized, in particular, that the terms of = the=20 agreed judgment authorized execution without further court order = or notice=20 to McCoy.

The=20 Rogerses provided three affidavits in support of their motion. A=20 representative of the Spring Branch Oaks subdivision, Lois = Stromberg, and=20 their counsel in the underlying case, Jay Dushkin, both described = the=20 meeting at the property on February 16, 2004, at which McCoy was = also=20 present. McCoy does not dispute that he was present during this = meeting,=20 which took place one day before the Rogerses initiated the = execution=20 proceedings. During this meeting, it was determined that McCoy had = not=20 completed the repairs and improvements required by the agreed = judgment. In=20 his affidavit, Stromberg stated that "a few of the repairs [had = been]=20 started," but none were completed. In addition, Stromberg reported = that he=20 confronted McCoy and asked him directly whether he had completed = any of=20 the repairs, and that McCoy "indicated that he had not." Dushkin = also=20 averred that no repairs contemplated by the agreed judgment had = been made=20 and that none of the credits contemplated by the agreed judgment = were due=20 McCoy as of February 16, 2004. Renee Rogers supplied an affidavit = in which=20 she attested to the liens pending against the property as of = February 16,=20 2004 and provided copies of the pertinent lien documents that = included a=20 mortgage lien, many City of Houston liens, an association lien, = and a=20 federal tax lien for $36,645.97 that had been in effect against = the=20 property since 2002.

The=20 Rogerses' summary judgment evidence also included a copy of a = sworn=20 statement that McCoy had filed in support of an appraisal hearing = before=20 the Harris County Appraisal District (HCAD) on August 30, 2004, = two months=20 after the Rogerses purchased the property at execution, as well as = copies=20 of HCAD documents relating to the hearing. These documents show = that McCoy=20 estimated the market value of the property at $30,000. In = addition, McCoy=20 described the property as follows: "water pipes in ceiling busted; = roof=20 leaks; wood rot; dwg [sic] boarded."^{=20
(8)}

The=20 Rogerses contended they were entitled to summary judgment under = the=20 substantive law because the price paid at execution was not = inadequate and=20 there were no flaws in the execution process that would invalidate = the=20 sale. With respect to McCoy's claim of lack of notice, the = Rogerses argued=20 that there had been compliance with rule 647 and that they had = relied on=20 the constable in accomplishing notice. They concluded their motion = by=20 referring to the Texas policy that favors sustaining execution = sales.^{=20
(9)}

2.=20 McCoy's Response =

In the=20 affidavit that accompanied his single response to the Rogerses' = initial=20 motion for traditional summary judgment, McCoy averred that he had = never=20 resided at the property, which he had owned for 15 years, but = lived=20 instead at a different address that was known to the Rogerses = because they=20 served him with process at that address in the underlying case.^{=20
(10)} McCoy denied receiving any timely notice, to which = he=20 maintained he was entitled, despite the terms of the agreed = judgment, and=20 stated that he was not aware of the execution sale until August = 2004.=20 McCoy disputed the Rogerses' contention that he waived notice of = execution=20 by the terms of the agreed judgment and argued that those terms = applied=20 only to the Rogerses' decision to "seek" execution. He claimed = that fact=20 issues concerning irregularities in the sale process precluded = summary=20 judgment in favor of the Rogerses.

To Set Aside Sale, Irregularities Must Result = in=20 Grossly Inadequate Price

It is the=20 policy of the law to sustain execution sales, rather than to set = them=20 aside based on "mere irregularities occurring in the procedure by = which=20 those sales are made." Burnam v. Blocker, 247 S.W.2d 432, = 434=20 (Tex. Civ. App.-- Fort Worth 1952, writ ref'd); see Apex = Fin.=20 Corp. v. Brown, 7 S.W.3d 820, 827 (Tex. App.--Texarkana 1999, = no=20 pet.) (citing Burnam). The party seeking to set aside an=20 execution sale must prove (1) that the consideration received at = the sale=20 is grossly inadequate and (2) that irregularities in the = sale=20 tended to contribute to the inadequate price. See Stanglin v. = Keda=20 Dev. Corp., 713 S.W.2d 94, 95 (Tex. 1986) (holding that = execution=20 sale of three tracts in bulk was irregularity that caused grossly=20 inadequate consideration because market value of one lot, or two = lots at=20 the most, might have satisfied underlying indebtedness); Am. = Sav.=20 & Loan Ass'n v. Musick, 531 S.W.2d 581, 587 (Tex. 1975) = (trustee=20 sale); Onwuteaka v. Cohen, 846 S.W.2d 889, 893-94 (Tex.=20 App.--Houston [1st Dist.] 1993, writ denied) (trustee sale); = see also=20 Powell v. Stacy, 117 S.W.3d 70, 75 (Tex. App.--Fort Worth = 2003, no=20 pet.) (holding that trial court properly rejected multiple alleged = "irregularities" claimed to warrant setting aside trustee sale). = Both=20 conditions are necessary: neither inadequacy of price alone, nor = technical=20 irregularities alone, will warrant setting aside an execution = sale.=20 Musick, 531 S.W.2d at 587; Roquemore v. Kellogg, = 656=20 S.W.2d 646, 649-50 (Tex. App.--Dallas 1983, no writ). There must = also be a=20 causal connection between an irregularity of the sale and an = inadequate=20 selling price to set aside a sheriff's sale. Apex Fin., 7 = S.W.3d=20 at 828; see = Stanglin, 713=20 S.W.2d at 95.

A. Rule 647=20 Notice

Compliance=20 with the notice requirements for execution, whether contained in a = deed of=20 trust or as required by statute, is a prerequisite to the right of = the=20 trustee or sheriff to make the sale. Houston First Am. Sav. v. = Musick, 650 S.W.2d 764, 768 (Tex. 1983) (citing Goode v.=20 Davis, 135 S.W.2d 285, 292 (Tex. Civ. App.--Fort Worth 1939, = writ=20 dism'd judgm't cor.)) (trustee sale); see also Apex Fin., = 7=20 S.W.3d at 828 (noting that rule 647 requires sheriff to provide = judgment=20 debtor or debtor's counsel notice of sheriff's sale, either in = person or=20 by mail, and that failure to provide required notice constitutes=20 "irregularity" in execution sale) (citing Tex. R. Civ. P. 647; = Collum=20 v. DeLoughter, 535 S.W.2d 390, 392 (Tex. Civ. App.--Texarkana = 1976,=20 writ ref'd n.r.e.) (sheriff's sale)). The right to notice inures = to the=20 benefit of the judgment debtor and is, therefore, subject to = waiver by the=20 judgment debtor. See Goode, 135 S.W.2d at 292 (construing = former=20 article 3810 of Revised Civil Statutes, current version at Tex. = Prop. Code=20 Ann. =A7 51.002 (Vernon 2007)); Powell, 117 S.W.3d at 74 = (holding=20 that statutory notice provisions, for notice of default and = opportunity to=20 cure, were waived by provisions of note as to one obligor, though=20 provisions applied to co-obligor who used property as residence)=20 (construing Tex. Prop. Code Ann. =A7 51.002 (d)).^{=20
(11)}

In Apex=20 Financial, on which the Rogerses relied in the trial court in = seeking=20 traditional summary judgment, a former owner of property who = sought to set=20 aside a sheriff's sale made pursuant to a judgment lien, prevailed = on that=20 claim by summary judgment, which the purchaser at the sale = appealed. 7=20 S.W.3d at 824. The purchaser claimed that an underlying settlement = agreement barred any challenge to the sheriff's sale. See id. = at=20 826-27. In addressing this challenge, the court applied settled,=20 contract-interpretation principles to interpret the terms of the=20 settlement agreement. See id. at 826 (citing Forbau = v. Aetna=20 Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex. 1994); Reilly = v.=20 Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987); = Coker=20 v.Coker, 650 S.W.2d 391, 393-94 (Tex. 1983)). The court rejected the purchaser's = contention=20 after concluding that the settlement agreement did not estop a = challenge=20 to a sheriff's sale on the particular property in question. = Id.=20 at 827.

We apply the same = contract-interpretation=20 principles to the agreed judgment in this case. See Gulf Ins. = Co. v.=20 Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000) (stating = that=20 agreed judgment should be construed in same manner as contract). A = judgment rendered by consent, as here, has = neither less nor=20 more effect than a judgment rendered following litigation, except = that=20 "the consent excuses error and operates to end all controversy = between the=20 parties." See id. (citing Wagner v. Warnasch, = 295 S.W.2d=20 890, 893 (Tex. 1956)). Accordingly, we examine and consider the = entire=20 agreed judgment so that no provisions will be rendered = meaningless.=20 See id. (citing R & P Enters. v. LaGuarta, Gavrel = &=20 Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980)). As when = construing a=20 contract, our primary concern is to give effect to the written = expression=20 of the parties' intent expressed in the agreed judgment. See=20 Forbau, 876 S.W.2d at 134. Whether a contract is ambiguous is = a=20 question of law for the court to decide by examining the contract = as a=20 whole in light of the circumstances existing when the parties = executed the=20 agreed judgment. Reilly, 727 S.W.2d at 529. Yet, not = every=20 difference in the interpretation of a contract amounts to an = ambiguity=20 that will render summary judgment improper. See Forbau, = 876=20 S.W.2d at 134; Coker, 650 S.W.2d at 393-94.

As excerpted in full above, the express = terms of=20 the agreed judgment set February 14, 2004 as the default date for = McCoy to=20 complete the repairs and improvements listed in the agreed = judgment.=20 Failure to complete them authorized the Rogerses to seek execution = without=20 "further Court Order or notice to [McCoy]" and, in addition, any = other=20 legal remedies for collection and enforcement. We agree with the = Rogerses=20 that McCoy waived notice of execution based on this provision. = The=20 underlying case that resulted in the agreed judgment was an action = brought=20 by the Rogerses and based on claims that the blighted condition of = the=20 McCoy property constituted a nuisance that adversely affected the = market=20 value of their adjacent property. The Rogerses prevailed on those = claims.=20 The agreed judgment had a twofold purpose, as follows: (1) to = "enter=20 judgment in favor of [the Rogerses] and against [McCoy] and = the McCoy=20 property," but (2) to "forbear obtaining a writ of execution = on=20 the [j]udgment" pending McCoy's completing the repairs and = improvements=20 listed in the agreed judgment by February 14, 2004, for which = McCoy would=20 receive stated credits against the judgment. (Emphasis added.) The = agreement further provided that if McCoy filed a petition in = bankruptcy or=20 was brought involuntarily into bankruptcy, the Rogerses could = immediately=20 abstract the judgment and seek collection.

Construing=20 the agreed judgment as a whole, as we must, we conclude that it = served to=20 defer the Rogerses' right to execute, but only temporarily and = pending=20 McCoy's compliance. We further conclude that, by endorsing the = agreed=20 judgment as to form and substance, McCoy acceded to the terms = authorizing=20 the Rogerses to seek not = only=20 execution without "further Court Order or notice to [McCoy]," but = also,=20 any other legal remedies for collection and enforcement, and = thereby=20 waived the notice that he contends he was entitled to by rule 647. = Having=20 reached these conclusions, we hold that the Rogerses conclusively=20 established that lack of notice to McCoy, if any, did not = constitute an=20 irregularity in the constable's sale.

We overrule McCoy's second = issue.=20

B. Grossly Inadequate=20 Price
As settled = law=20 recognizes, to set aside the constable's sale and subsequent deed = to the=20 Rogerses, McCoy had to establish both technical irregularities in = the sale=20 and an inadequate price that results from those technical = irregularities.=20 See Musick, 531 S.W.2d at 587; Stanglin, 713 S.W.2d at 95; = Apex=20 Fin., 7 S.W.3d at 828; Roquemore, 656 S.W.2d at = 649-50.=20 Because both conditions must be present, and because we have = concluded=20 above that the agreed judgment negated the first condition--the = alleged=20 irregularity of lack of notice--as a matter of law, we need not = address=20 McCoy's third issue, in which he contends that the alleged = irregularity=20 resulted in an inadequate price.

We overrule McCoy's third = issue.=20

Conclusion

We affirm the judgment of the = trial=20 court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice = Radack=20 and Justices Keyes and Higley.=20

1. See Malooly Bros., Inc. v. = Napier, 461=20 S.W.2d 119, 121 (Tex. 1970).=20

2. In addition to cleaning and maintaining = the yard of=20 the property, clearing away debris, and mowing the front and back = lawns of=20 the property every two weeks, the judgment listed ten additional=20 categories of specific repairs and improvements to the interior = and=20 exterior of the property. The repairs and improvements included = roof=20 repair, replacement of deteriorated fascia boards, replacing = windows=20 currently covered by plywood and installing mini-blinds on the = interior,=20 painting, and repairing and replacing fencing, all of which had to = conform=20 to subdivision guidelines. The repairs and improvements had a = total credit=20 value of $15,000.=20

3. The terms of the agreed judgment = authorized the=20 Rogerses to abstract the judgment.=20

4. McCoy's trial counsel provided the notice = of=20 attempted delivery for the certified letter on November 4 or 5, = 2004.=20 Counsel's letter reporting the notice states that McCoy discovered = the=20 notice at the property after he learned of the June 1, 2004 = execution=20 sale.=20

5. See also Tex. R. App. P. 38.1(h) = (current=20 rule requiring that appellant's brief contain clear, concise = argument for=20 contentions asserted); Tex. R. App. P. 38.1(e) (current rule = requiring=20 that appellant's brief state all issues and points presented for = review;=20 further requiring that this Court consider statement of issue "as = covering=20 every subsidiary question that is fairly included").

6. This disposition does not end our = analysis because=20 the Rogerses' no-evidence motion addressed only McCoy's fraud = claims.=20 Compare Maranatha Temple, Inc. v. Enter. Prods. Co., 893 = S.W.2d=20 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied) = (declining to=20 address only unchallenged grounds after addressing = challenged=20 grounds) with Smith v. Houston Lighting & Power Co., = 7 S.W.3d=20 287, 290-91 (Tex. App.--Houston [1st Dist.] 1999, no pet.) = (affirming=20 summary judgment on all possible grounds because unchallenged = ground would=20 have been dispositive of entire case).=20

7. As part of issues two and three, McCoy = contends=20 that he was not provided the opportunity to "point out property to = be=20 levied upon," as required by rule 637. See Tex. R. Civ. = P. 637;=20 Collum v. DeLoughter, 535 S.W.2d 390, 393 (Tex. Civ.=20 App.--Texarkana 1976, writ ref'd n.r.e.) (holding that failure of=20 executing officer to provide opportunity for debtor to designate = property=20 for levy constituted "irregularity"). McCoy did not, however, = present this=20 argument to the trial court in opposing the Rogerses' motion. = Therefore,=20 he may not raise the argument here. See Tex. R. Civ. P. = 166a(c)=20 ("Issues not expressly presented to the trial court by written = motion,=20 answer or other response shall not be considered on appeal as = grounds for=20 reversal."); City of = Houston v.=20 Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979).=20

8. The Rogerses filed supplements to their = motion in=20 response to McCoy's amended pleadings, and in response to his = objections=20 to some of their summary judgment evidence. McCoy did not preserve = any=20 evidentiary objections, however, and presents no evidentiary = challenges on=20 appeal.=20

9. The Rogerses did not, however, as they do = on=20 appeal, contend that McCoy's failure to tender the amount owed = pursuant to=20 the agreed judgment precludes his attempt to set aside the = constable's=20 sale. Because they did not raise this contention in the trial = court in=20 support of their motion for summary judgment, they may not raise = it on=20 appeal. See Tex. R. Civ. P. 166a(c); Clear Creek = Basin=20 Auth., 589 S.W.2d at 677.=20

10. After making this assertion in his = affidavit,=20 McCoy amended his pleadings to allege fraud by the Rogerses in = seeking to=20 prevent notice to him of the execution sale. As addressed above, = we=20 decline to address any contentions related to McCoy's fraud = claims.=20

11. We note that the notice provisions of = section=20 51.002(d) of the Property Code, which governs sale of real = property=20 pursuant to "a deed of trust or other contract lien," do not apply = to the=20 execution pursuant to judgment at issue here. See Tex. = Prop. Code=20 Ann. =A7 51.002(a), (d) (Vernon 2007).=20

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