Ali SANI, Individuаlly and d/b/a Pyramid Realty, and Fatemeh Sadat Bassampour, Individually and d/b/a Pyramid Realty, Appellants, v. John Warren POWELL and L. Annette Powell, Appellees.
No. 05-03-00466-CV
Court of Appeals of Texas, Dallas
Jan. 26, 2005
Accordingly, we dismiss the appeal for want of jurisdiction.
Mark Asher Weisbart, James S. Brouner, Kessler & Collins, P.C., Dallas, for Appellees.
Wayne B. Ames, McKinney, Intervener.
Before Justices MOSELEY, FITZGERALD, and LANG.
Opinion by Justice LANG.
Appellants Ali Sani and Fatemeh Sadat, individually and d/b/a Pyramid Realty (“Sani“), purchased land belonging to appellees John Warren Powell and L. Annette Powell (“Powell“) at a tax foreclosure sale. Shortly thereafter, Sani received and recorded a tax deed for the property. Sani appeals from a summary judgment declaring vоid the tax sale and deed which conveyed Powell‘s property to him.
Sani raises one issue in which he claims the trial court erred in failing to conclude that the two-year statute of limitations provided in section 33.54 of the Texas Tax Code1 barred Powell from bringing the underlying action.2 Powell asserts that section 33.54 does not apply because his intervening bankruptcy and the automatic bankruptcy stay rendered the tax sale and deed invalid. Alternatively, Powell asserts that Sani did not present the trial court with facts necessary to support his right to invoke the section 33.54 limitations. Powell argues that the record does not reflect statutory “compliance,” i.e., that the tax sale was duly authorized by court order, the method of sale was as ordered by the court, and the terms of sale were as ordered by the court. In one cross issue, Powell contends the trial court abused its discretion in denying Powell‘s claim for attorney‘s fees under the Texas Declaratory Judgments Act.3 Intervenor Wayne B. Ames, Powell‘s former counsel, joins in support of Powell‘s cross point. For the reasons set forth belоw, we affirm.4
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of a tax sale of Powell‘s residence and real property located in McKinney, Texas (the “Property“). On May 20, 1996, the Property was scheduled for a tax sale to take place on December 2, 1997 (the “Tax Sale“). The sale was to satisfy unpaid ad valorem taxes owed to the McKinney Independent School District (“MISD“) and Collin County (together, the “Taxing Authorities“). On December 1, 1997, Powell filed a petition seeking relief under chapter 11 of the Bankruptcy Code in order to protect his property from the impending Tax Sale. See
The Tax Sale was conducted as scheduled on December 2, 1997. Sani purchased the Property at this Tax Sale. On December 15, Powell‘s counsel, Wayne Ames, contacted MISD‘s counsel, Howard Steen, and discussed setting aside the Tax
On August 22, 2000, almost three years after the Tax Sale, Powell filed the underlying lawsuit seeking to remove cloud from title, quiet title, cancel the Deed, and recover unspecified damages and attorney‘s fees. Also, in his original petition, Powell asserted that (1) on December 4, 1998, he redeemed the Property pursuant to section 34.21 of the Texas Tax Code, and (2) since the time of the purported transfer to Sani, Powell remained in possession of the Property, openly, notoriously, and adversely to Sani. In response, Sani filed an original counterclaim asserting trespass to try title, wrongful institution of civil proceedings, and seeking declaratory relief that Powell failed to redeem the Property.
In April 2001, Sani moved for summary judgment in favor of all his claims and denying Powell‘s claims. Powell then moved for summary judgment in favor of his redemption cause of action. A June 6, 2001 order granting Sani‘s motion and denying Powell‘s motion was later set aside and a new trial granted.5 Subsequently, Powell filed a second amended petition in which he sought only declaratory relief on the same grounds set out in the original petition and that he was entitled to attorney‘s fees under the Declaratory Judgments Act.
In October 2001, Powell filed a motion for summary judgment on a single ground, that the automatic stay triggered by Powell‘s December 1 bankruptcy filing voided the Tax Sale and invalidated the Deed. Sani filed an amended answer asserting numerous affirmative defenses disputing the availability of bankruptcy protection for Powell and that Powell failed to effectively redeem the Property under section 34.21. Sani filed a first amended counterclaim reasserting his original counterclaims and adding claims for prejudgment interest and declaratory relief declaring that the Tax Sale and Deed were valid. Ames, Powell‘s first attorney in this action, intervened in the case in order to secure his attorney‘s fees. Ames filed a motion for summary judgment on this claim.
As directed by the trial court, Sani filed a supplemental response to Powell‘s motion for summary judgment and Powell filed a supplemental brief in support of his motion for summary judgment. In October 2002, thе trial court granted Powell‘s motion for summary judgment and denied both Sani‘s and Ames‘s motions for summary judgment. The trial court denied all of Sani‘s causes of action and affirmative defenses. Further, the judgment declared the Property vested in Powell, the Tax Sale void, and the Deed invalid. Finally, the judgment ordered that the sole remaining issue for trial was whether Powell was entitled to attorney‘s fees under the Declaratory Judgments Act. In January 2003, the trial court granted judgment in favor of Sani and against Powell on the issue of attorney‘s fees and concluded that “[a]ll other relief requested in this case not expressly granted is hereby denied.” This appeal followed.
The standards for reviewing a traditional summary judgment are well-established. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party‘s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law.
When reviewing a motion for summary judgment, the court takes the nonmovant‘s evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Willrich, 28 S.W.3d at 23-24. If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise a fact issue on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).
When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all questions presented. Id.
STATUTE OF LIMITATIONS
In his sole issue on appeal, Sani argues that the trial court erred in granting summary judgment in favor of Powell because Powell‘s underlying claim was barred by the limitations provision in the Texas Tax Code. See
Typical of statutory limitations provisions, the section 33.54 bar applies only to certain claims, under specific circumstances. See
Sani moved for summary judgment in favor of all his claims6 and denying Powell‘s claims. Powell requested summary judgment on the sole ground that the Tax Sale and recording of the Deed were void as a matter of law because both were aсtions taken in violation of the bankruptcy stay. In a supplemental response to Powell‘s motion for summary judgment, Sani argued that, among other things, the bankruptcy stay did not automatically invalidate the Tax Sale and Powell‘s action was barred by the section 33.54 limitations. In support of his section 33.54 limitations argument, Sani contends in his brief to this Court that he produced “evidence of the judgment and order of sale, and Powell admitted to that fact.”
The record shows that Sani introduced as summary judgment evidence Powell‘s deemed admissions to Sani‘s first request for admissions, the Deed, and Sani‘s receipt for payment in the amount of $7,000 from the Collin County tax assessor-collector. Powell‘s deemed admissions include the following:
- Pursuant to an Order of Sale and Judgment entered on May 20, 1996, by the 199th District Court, in favor of Collin County and Collin County CCD for itself and the use and benefit of the McKinney Independent School District against John Warren Powell, Sr., Cause No. 199-150-96, Constable Jerry Kunkle conducted a public sale of [the Property].
- On December 2, 1997, the Constable struck off and sold [the Property] to Counter-Plaintiff BASSAMPOUR for the sum of $7,000.00.
- After payment to the constable, Counter-Plaintiff received a deed to [the Property] and recorded same in the Deed Records Collin County on December 18, 1997 in Volume 4063, Page 0827.
Sani argues that the Deed, plus Powell‘s deemed admissions reciting statutory compliance and the constable‘s authority to sell, met the section 33.54 requirements to invoke the bar against Powell‘s action. We disagree.
The San Antonio Court of Appeals‘s criticism in Cedillo of the reasoning and authority in Berry is misplaced. That court criticized Berry in what it described as “at least two respects” of Berry‘s reasoning.
One point of criticism by the San Antonio Court of Appeals was that this Court relied upon old and distinguishable cases that construed equally old and distinguishable statutory predecessors to the tax code provisions applied in Berry. The San Antonio Court of Appeals wrote that the version of section 33.54 applicable to Cedillo does not require proof of the order of sale, and that the original 1895 version of section 34.01 declared that the tax deed “shall be held in any court of law or equity in this State to vest a good and perfect title in the purchaser thereof, subject to be impeached only for actual fraud.” Cedillo, 981 S.W.2d at 393 (citing Act of Apr. 13, 1895, 24th Leg., R.S., ch. 42, § 8, 1895 Tex. Gen. Laws 50, 52).7 In Cedillo, the San Antonio Court of Appeals held the tax deed is all that is needed to prove one‘s right to title. Further, that court said that the section 33.54 limitations provision does nоt, in any way, require the party seeking to raise the statute of limitations to make a prima facie case of valid sale by offering the order of sale along with the deed. In so stating, the San Antonio Court of Appeals cited the then-applicable version of section 33.54:
(a) [A] cause of action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless the action commences within three years after the deed executed to the purchaser at the tax sale is filed of record.
* * *
(c) When actions are barred by this section, the purchaser at the tax sale or his successor in interest shall be held to have full title to the property, precluding all other claims.
Finally, the San Antonio Court of Appeals referred to the decision of this Court in Berry as no more than dicta. The Berry case camе to the Dallas Court of Appeals after the trial court granted an instructed verdict on two grounds, that Berry had established title through (1) her unabandoned prior possession of the property and (2) the ten-year adverse limitations statute. Id. at 391 (citing Berry, 795 S.W.2d at 232). The San Antonio Court of Appeals reasoned that because the ten-year adverse possession claim was “proved” as one of the grounds for the instructed verdict, the analysis of the “continuous possession” claim and the application of its three-year statute of limitations was unnecessary. Id. at 392 (applying earlier version of section 33.54 with three-year limitation). We address these criticisms in order.
First, as to the San Antonio Court of Appeals‘s position that this Court in Berry erroneously interpreted then-current law based on inapplicable and outdated law, we cannot agree. The case law is clear, consistent, and legion that the proponent of a tax deed must prove his right to title by proof of the order of sale. Those cases follow the development and re-enaсtment of section 34.01 since 1895. Mills, 48 S.W.2d at 942; Stark, 491 S.W.2d at 759 (citing Wofford, 23 Tex. at 43); Nagel, 275 S.W.2d at 562; Fink, 123 S.W.2d at 384-85. As the San Antonio Court of Appeals observed, the then-current section 34.01 had changed little since 1895, although re-enacted several times. Cedillo, 981 S.W.2d at 393. However, that court did not take notice of the direction from the Texas Supreme Court that when the legislature re-enacts a statute without significant change, it is presumed that the lawmakers knew of and adopted the existing interpretation. Berry, 795 S.W.2d at 239 (citing Coastal Indus. Water Auth. v. Trinity Portland Cement Div., Gen. Portland Cement Co., 563 S.W.2d 916, 918 (Tex.1978)). The obligation of the proponent of a tax deed to prove “compliance with the law” by offering into evidence the order of sale is well supported. Clint, 970 S.W.2d at 537-38; Stark, 491 S.W.2d at 759; Nagel, 275 S.W.2d at 562; Fink, 123 S.W.2d at 384-85.
Second, the San Antonio Court of Appeals erred in its criticism that the section 33.54 limitations does not require prima facie proof of the validity of a tax sale by offering the order of sale and the deed. As this Court stated in Berry, sections 34.01 and 33.54 must be read and interpreted together. It is well-settled that statutes in pari materia are to be read and construed together in arriving at the intention of the legislature. Calvert v. Fort Worth Nat‘l Bank, 163 Tex. 405, 409, 356 S.W.2d 918, 921 (1962); Bowling v. City of Pearland, 478 S.W.2d 143, 145 (Tex. Civ.App.-Houston [14th Dist.] 1972, writ dism‘d w.o.j.); see also
Third, the San Antonio Court of Appeals‘s criticism of Berry is misplaced when it claims the analysis of the requirements for asserting the section 33.54 limitations is dicta. In Berry, this Court addressed an instructed verdict granted on both the adverse possession and the continuous possession claims. The instructed verdict was granted because Volunteer presented no evidence other than the tax deed. The San Antonio Court of Appeals wrote that it was not neсessary to address the continuous possession claim and application of the three-year statute of limitation to that claim because the ten-year adverse possession claim was unrebutted by the facts and, thus, the validity of the tax deed was immaterial to the adverse possession claim. Cedillo, 981 S.W.2d at 391. However, as clearly recited in the Berry opinion, Volunteer raised issues on appeal as to the ten-year adverse possession claim “that Berry had not established limitations as a matter of law; that contested fact issues exist on this subject; and that Berry failed to make a prima facie limitations case.” Berry, 795 S.W.2d at 241. This Court, in Berry, decided that the continuous possession claim was not subject to the statute of limitations under the facts, and said, “Consequently, it is not necessary to address Volunteer‘s complaint concerning adverse possession through limitations.” Id. It is clear from the Berry opinion that Volunteer‘s issues on appeal as to the adverse possession claim and the instructed verdict on that claim did not need to be addressed since this Court concluded that Volunteer had not properly rаised its section 33.54 limitations defense. Having made that decision, there was no purpose to be served by analyzing and deciding Volunteer‘s other issues and determining whether another basis for the instructed verdict, the adverse possession claim, was valid.
Now, we must address the language of section 33.54 that is applicable to this case. It is different from the version before this Court in Berry. The version of section 33.54 applicable to this case states:
Except as provided by Subsection (b), an action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless the action is commenced: ... (2) before the second anniversary of the date that the deed executed to the purchaser is filed of record, if on the date that the suit to collect the delinquent tax was filed the property was: (A) the residence homestead of the owner;....
The italicized passages above direct that section 33.54 applies only to a tax deed resulting from a suit to collect delinquent taxеs. The version of section 33.54 applicable to Berry referred to land sold “for delinquent taxes at a tax sale pursuant to a judicial foreclosure of a tax lien.” Berry, 795 S.W.2d at 238. The plain language in each version of the statute leads us to conclude that both statutes apply only to a court-ordered sale for delinquent taxes.
Additionally, in Berry, this Court noted another guiding rule of construction: a court must search for reasonable and har-
It would be absurd and inconsistent to say that section 34.01 requires documentation of authority, but that a deed holder can simply wait three years after recordation, present only the deed, and then claim the limitations protection due only to a valid deed under section 34.01.... To hold otherwise would extend the protection of limitations to an invalid or void deed that conveys no title.
Id. We conclude that the treatment of section 33.54 as a broad statute of limitations, as suggested by Sani, rather than a specific and narrowly applicable statute of limitations, would lead to absurd results. The plain meaning of the statutory sections directs this conclusion. See City of San Antonio, 111 S.W.3d at 25.
As in Berry, proof of such a sale, for which the statute of limitations affords protection, is not made by mere recitation, but rather by the order of sale itself, along with the deed. Wright v. Vernon Compress Co., 156 Tex. 474, 478–79, 296 S.W.2d 517, 520 (1956); Berry, 795 S.W.2d at 238; see Mills, 48 S.W.2d at 942; Stark, 491 S.W.2d at 759 (citing Wofford, 23 Tex. at 43); Nagel, 275 S.W.2d at 562; Fink, 123 S.W.2d at 384-85. We do not suggest that in Berry, or in this case, one is required to obtain adjudication of the validity of the deed. One must simply make out a prima facie case by admitting into evidence the court order of sale and the tax deed. In so doing, the party meets its initial burden to show that it is entitled to invoke this particular bar. Woods, 769 S.W.2d at 517; Love, 982 S.W.2d at 943.
Having refuted the criticisms of the San Antonio Court of Appeals and reflected upon the current version of section 33.54, we apply Berry to the case at bar. The record reveals that Sani introduced the recorded Deed, Sani‘s receipt for purchase, and Powell‘s deemed admissions to Sani‘s first request for admissions as summary judgment evidence. Sani did not introduce the decree of foreclosure and order of sale as required under Berry. We conclude that Sani did not meet his factual burden to assert the section 33.54 limitation. Accordingly, we decidе Sani‘s sole issue against him.
ATTORNEY‘S FEES UNDER THE TEXAS DECLARATORY JUDGMENTS ACT
In one cross issue, Powell contends that the trial court abused its discretion in denying his claim for attorney‘s fees under the Texas Declaratory Judgments Act. Sani argues the trial court properly denied Powell‘s claim for attorney‘s fees because the Texas Declaratory Judgments Act may not be used to claim fees to which the party would not otherwise be entitled.
A. Applicable Law
“A declaratory judgment action may not be used solely to obtain attorney‘s fees that are not otherwise authorized by statute or to settle disputes already pending before a court.” Southwest Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). “Attorney‘s fees are not available in a suit to quiet title or to remove cloud on title.” Id. at 957. “Any suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form.” Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex.App.-Eastland 2003, pet. denied). Because a claim for declaratory relief is “merely incidental to the title issues,” the Texas Declaratory Judgments Act will not supplant a suit to quiet title by allowing attorney‘s fees under such circumstances. Id. (quoting John G. & Marie Stella Kenedy Mem‘l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex.2002)); Southwest Guar. Trust, 981 S.W.2d at 957.
Powell brought this action seeking to rеmove cloud from title, quiet title, cancel the Deed, and recover unspecified damages and attorney‘s fees. In amended petitions, Powell replaced these claims with a request for declaratory relief which pleaded, in effect, a trespass to try title claim. His declaratory judgment pleadings plainly request the court to determine title to the Property:
Plaintiffs seek a declaratory judgment declaring that (i) the judicial sale and subsequent alleged transfer of Property to Purchaser, and execution and recordation of the Sheriff‘s Deed to Purchaser were and are void and of no force and affect, (ii) all right, title and interest and the proper title ownership to the Property remains and vests with Plaintiffs, (iii) the Sheriff‘s Deed is invalid and unenforceable, and (iv) that any cloud on title of Plaintiffs to the Property be removed and that the Property be quieted in the name of Plaintiffs.
In the prayer at the end of his pleading, Powell requested declaratory relief in pertinent part as follows:
- judgment declaring (i) the judicial sale and subsequent transfer of Property to Purchaser, execution and recordation of the Sheriff‘s Deed to Purchaser were and are void and of no force and affect, (ii) all right, title and interest and the proper title ownership to the Property remains and vests with Plaintiffs, (iii) the Sheriff‘s Deed is invalid and unenforceable, and (iv) that any cloud on title of Plaintiffs to the Property be removed and that the Property be quieted in the name of Plaintiffs.
In substance, Powell‘s claim for declaratory relief is a claim to quiet title. Although Powell couches his claims in terms of a request for a declaration, everything he requests of the court is necessary to, and a component of, the ultimate relief he seeks, which is to clear the Property‘s title. When the essence of the suit is in trespass to try title, attorney‘s fees are not recoverable. Hawk, 107 S.W.3d at 84; see Southwest Guar., 981 S.W.2d at 957. We conclude Sani established as a matter of law that Powell was not entitled to an award of attorney‘s fees under the Texas Declaratory Judgments Act. Accordingly, we resolve Powell‘s cross-issue against him.
CONCLUSION
Having resolved Sani‘s single issue on appeal and Powell‘s single cross issue against them, we affirm the trial court‘s judgment.
MOSELEY, J., dissents with opinion.
Opinion by Justice MOSELEY.
I agree with the majority‘s recitation of the facts of this case, and thus I do not repeat them here in detail. I also agree with the majority‘s conclusion that Powell‘s1 claims constitute a dispute over title to land, and that he is therefore not entitled to recover attorney‘s fees under the declaratory judgment act. See Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex.App.-Eastland 2003, pet. denied). However, I disagree with the majority‘s conclusion that Powell was entitled to summary judgment declaring the tax sale and deed void.
I believe Berry is inapplicable to the case before us. Applying Berry in this case imposes a higher burden than the law recognizes for relying on an affirmative defense to avoid summary judgment, and deviates from the standard of review applicable to such situations. Further, if the language and reasoning in Berry is applicable here, then I would conclude that Berry is incorrect in its interpretation of section 33.54. If Berry means that Sani‘s failure to introduce the judgment foreclosing the tax lien and the order of sale was fatal to his efforts to avoid summary judgment, then—in light of the summary judgment record in this case—Berry improperly elevates form over substance and should be overruled.
Because I believe Sani raised a genuine issue of fact as to each element of his statute of limitations affirmative defense, I would reverse the trial court‘s summary judgment and remand for further proceedings. Because the majority does not do so, I respectfully dissent.
TAX CODE SECTION 33.54
The Statute
An action relating to the title to property may not be maintained against the purchaser of the property at a tax sale unless it is filed within a certain time period after the tax sale deed was filed of record. See
Sani‘s Burden in Opposing Summary Judgment
To obtain his own summary judgment based on section 33.54, Sani would have had to prove these elements as a matter of law. To prevail on his section 33.54 limitations defense at trial, he would have had to prove each element by a preponderance of the evidence. However, to defeat Powell‘s
The Summary Judgment Record
Reviewing the record, and applying traditional standards of review, I believe Sani clearly raises at least a fact issue as to each element of his limitations defense. The majority opinion accurately describes the summary judgment record. It includes a copy of the tax deed, showing the deed was recorded “1997/12/18,” more than two years before Powell filed suit (as per the clerk‘s record) on August 22, 2000. The record also contained Powell‘s deemed admissions that: (1) the constable sold the property at a public sale “[p]ursuant to an Order of Sale and Judgment;” (2) “the Constable struck off and sold the property to Counter-Plaintiff BASSAMPOUR ...;” and (3) “[a]fter payment to the constable, Counter-Plaintiff received a deed to the [disputed property] and recorded same in the Deed Records (sic) Collin County on December 18, 1997 in Volume 4063, Page 0827.” In summary, I think therе is no dispute that, but for Berry, Sani clearly raised at least a fact issue as to each element of his limitations defense under section 33.54.
THE BERRY CASE
In Berry, however, this Court stated that “in order to invoke [section 33.54] limitations protection, a party must produce the same documentation that proves a valid tax deed.” Berry, 795 S.W.2d at 240 (emphasis added). According to Berry, this meant a person asserting limitations under section 33.54 was required to introduce the tax judgment and the order of sale. Id., at 239, 240 (citing Wright v. Vernon Compress Co., 156 Tex. 474, 479, 296 S.W.2d 517, 520 (Tex.1956)). The summary judgment record here contains the tax deed, but does not contain either the tax judgment or the order of sale.
Berry was a trespass to try title case. The plaintiff, Berry, relied on two of the four means of proving title in a trespass to try title case: prior un-abandoned possession and title by limitations based on more than ten years of adverse possession.5 The Volunteer Council of the Denton State School, Inc. answered, pleading “not guilty.” It claimed record title through a tax deed filed of record some eight years before Berry filed her trespass to try title claim. Volunteer also filed a special plеa in bar based on limitations pursuant to section 33.54 of the tax code (the same statute involved in this case). At trial
The Court determined that Berry established her claim of prior possession6 and, therefore, the burden shifted to Volunteer to prove a superior title through the tax deed or to prove its limitations affirmative defense. Id., 795 S.W.2d at 237 (“Having established a prima facie claim of possession, the burden of persuasion shifted to Volunteer to establish that Berry‘s prior possession claim was inferior to its own.“). The opinion framed the issue thusly: “We must determine whether the proponent need only introduce a recorded tax deed or whether the proponent must also introduce those documents that prove that the tax deed is valid.” Id., at 238-39. Volunteer argued that the tax deed was sufficient to prove its section 33.54 statute of limitations affirmative defense as a matter of law because the tax code provided that a tax deed “vests good and perfect title in the purchaser or his assigns,” subject to the defendant‘s right of redemption. See
This Court held that the recitations in Volunteer‘s tax deed did not prove its limitations case as a matter of law; instead, to prevail as a matter of law Volunteer had to introduce into evidence the tax judgment and the order of sale. See Berry, 795 S.W.2d at 239. The Court reasoned that “the recitals in the tax deed, by themselves do not conclusively establish compliance with the conditions precedent to a lawful sale.” Id., at 238 (citing Wright, 296 S.W.2d at 520 and Stark v. Stefka, 491 S.W.2d 757, 759 (Tex.Civ.App.-Austin 1973, no writ)). The Court rejected Volunteer‘s argument that section 34.01(d) of the tax code rendered the tax deed sufficient to prove title as a matter of law. Again citing Wright, which it said construed a prior version of section 34.01,8 the Court stated that “the proponent of a tax deed
The majority examines Berry, as well as Cedillo v. Gaitan, 981 S.W.2d 388, 390 (Tex.App.-San Antonio, 1998, no pet.), a case from the San Antonio Court of Appeals criticizing Berry. It then concludes that Sani did not raise issues of fact on his 33.54 limitations affirmative defense because he “did not introduce the decree of foreclosure and order of sale as required under Berry.”
Berry Inapplicable
Even if Berry was decided correctly, its facts are distinguishable from this case because of differences in the proof, pleadings, and procedures involved here.
First, there is no indication in Berry that the party opposing the applicability of section 33.54 admitted facts concerning the validity of the tax deed, which would have obviated the necessity of proving its validity by other means (i.e. by introducing the judgment foreclosing the tax lien and the order of sale). In contrast, here Powell admitted that the constаble sold the property to Sani (more specifically, to Bas-
Second, there is no indication from Berry that Berry‘s pleadings contained anything other than the standard assertions required to assert a trespass to try title claim. See
Third, even if Berry correctly held that, at trial, a party cannot prove its section 33.54 limitations affirmative defense as a matter of law without placing the tax judgment and the order of sale into evidence, requiring a non-movant to do so simply to аvoid summary judgment incorrectly goes beyond existing law. See Mo.-Kan.-Tex. R.R. v. City of Dallas, 623 S.W.2d 296, 298 (Tex.1981) (presumptions and burden of proof at conventional trial are immaterial to burdens in summary judgment practice); Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 287 (Tex.App.-Dallas 1989, writ denied). Applying Berry in the context of a response to a motion for summary judgment effectively increases the non-movant‘s burden and supplants the long-standing presumptions applicable to a summary judgment motion. See Nixon, 690 S.W.2d at 548-49.
Therefore, under the facts of this case I would hold that Sani can—and did—raise a fact issue as to each element of his section 33.54 limitations defense without placing into the summary judgment record the judgment foreclosing the tax lien and the order of sale.
Berry is Incorrectly Decided
Although this issue need not be reached if we concluded that the facts of Berry were distinguishable from those in this case, I disagree with the majority‘s conclusion that Berry correctly held that the only way to prove a section 33.54 limitations defense as a matter of law is through the admission of the tax judgment, the order of sale, and the tax deed. Such a holding effectively elevates a means of proving the section 33.54 limitations defensе—introducing the tax judgment and the order of sale—to the status of the elements of the limitations defense itself, foreclosing other means of proving the applicability of section 33.54.
Section 33.54 does not prohibit other means by which the purchaser at a tax sale may prove the validity of its tax deed. Neither does the logic underlying Berry and the cases on which it relies require the exclusion of other means of proving the tax deed‘s validity. That logic, as stated in Berry, is that “the recitals in the tax deed, by themselves do not conclusively establish compliance with the conditions precedent to a lawful sale.” Berry, 795 S.W.2d at 238 (citing Wright, 296 S.W.2d at 520, and Stark, 491 S.W.2d at 759). But even if the recitals in the deed are not conclusive as to the deed‘s validity, it does not follow that means other than introducing the tax judgment and the order of sale are per se ineffective to prove as a matter of law that a tax deed is valid. Surely other means---in particular the admissions of the party opponent---are competent to meet this burden.
Further, I would hold that Berry‘s construction of section 33.54 is not warranted by the plain meaning оf the statute and that it renders that section meaningless. Under the logic in Berry, the purchaser at a tax sale can be sued anytime and be put to the same proof he would have had to
Two statements are particularly illustrative of the incorrect logic shaping the result in Berry. First, the opinion in Berry stated that “in order to prove title under a tax deed, the proponent must introduce into evidence the decree of foreclosure and the order of sale.” Berry, 795 S.W.2d at 238 (emphasis added). Later the Berry opinion explains: “[I]n order to invoke limitations protection, a party must produce the same documentation that proves a valid tax deed.” Id., at 240. Thus Berry erroneously equated proving a limitation on actions under section 33.54 with proving title under a tax deed. They are not the same.
Statutes of limitation such as section 33.54 do not affect the substantive rights of the parties; they merely bar the remedy by which one party seeks to enforce its substantive rights. See City of Dallas v. Etheridge, 152 Tex. 9, 14, 253 S.W.2d 640, 643 (1952). “[N]o statute of limitations directly addresses the merits of a claim to which it is interposed as a bar. Instead, limitations rest on a legislative policy judgment that requires the diligent pursuit of one‘s legal rights at the risk of losing them if they are not timely asserted.” City of Murphy v. City of Parker, 932 S.W.2d 479, 481-82 (Tex.1996). Thus whether the tax deed is valid or void (as long as it is not void on its face) is irrelevant to the application of the legislatively mandated limitations period. Even if Powell has a good claim that the tax deed conveyed no title, he has only a limited time in which to bring suit on that claim.
In contrast to proving title through the tax deed, title resulting from the application of section 33.54 flows from the legislatively defined effect of the limitations bar, not from the validity of the tax deed itself: “When actions are barred by this section, the purchaser at the tax sale ... has full title to the property precluding all other claims.”
I also conclude that use of the word “deed” in section 33.54 does not imply that
For the purpose of limitation, it is wholly immaterial that the deed conveys no title. An instrument in the form of a deed not void on its face, even though the grantor be wholly without title, satisfies the requirement of the statute....
The whole object of the statute in requiring a deed and its due registration is to define the boundaries of the claim and give notice to the true owner of such adverse claim. This is accomplished by any apparently valid instrument having the essential parts of a deed. That the deed is in fact void is immaterial. So, likewise, is the ground of its invalidity. The sole inquiry is whether the instrument is a deed within the purview of the statute.
Davis v. Howe, 213 S.W. 609, 610 (Tex. Com.App.1919, judgm‘t adopted) (concluding that tax deed not void on its face was a deed for purposes of five-year adverse possession statute) (emphasis added).
Thus, a tax deed, even if invalid or without evidence of the judgment or order of
sale, may trigger the running of the five-year statute of limitations: “[W]hile a tax deed which is unsupported by an order of sale does not establish valid legal title, it is admissible for the purpose of showing the nature of the holder‘s possession and as a basis for protection of his claim of title under the 5-year statute of limitation.” Bavousett v. Bradshaw, 332 S.W.2d 155, 158 (Tex.Civ.App.-Amarillo 1959, writ ref‘d n.r.e.). See also Davis, 213 S.W. at 610-11; Rosborough v. Cook, 108 Tex. 364, 366, 194 S.W. 131, 132 (1917) (holding it is not character of deed as conveyance but notice given of adverse claim that triggers five-year statute of limitations based on registered deed); Lindley v. Mowell, 232 S.W.2d 256, 259-60 (Tex.Civ.App.-Eastland 1950, writ ref‘d n.r.e.). I would hold that the same principle applies to the statute of limitations set forth in section 33.54.
POWELL‘S ARGUMENT THAT DEED IS VOID BASED ON BANKRUPTCY STAY
Powell argues on appeal that even if Sani met his burden under section 33.54, that section does not apply because the deed was void. He did not, however, raise this ground in his motion for summary judgment. He did not raise it until after the trial court granted summary judgment when he responded to Sani‘s motion to reconsider the summary judgment. Regardless of the timeliness of Powell‘s arguments about section 33.54, they have no merit. Powell‘s main argument is based on the merits of his claim that the deed is void as a violation of the automatic stay. But even a void deed may be a deed for purposes of a statute of limitations. See Davis, 213 S.W. at 610—11 (tax deed not
CONCLUSION
In summary, Sani offered summary judgment evidence that he was the purchaser of the property at a tax sale, the tax sale was conducted pursuant to a judgment and order of sale, the tax deed executed to him was recorded, and Powell‘s action relating to title to the property was not commenced within two years of the recording of the tax deed. Taking this evidence as true, indulging every reasonable inference in favor of the non-movant, and resolving any doubts in his favor, as required by the standard of review, Sani raised a genuine issue of fact as to each of the elements required by section 33.54.12 As a result, the trial court erred in granting summary judgment for Powell when fact issues remained on Sani‘s affirmative defense. I would reverse the trial court‘s judgment and remand for further proceedings.
1990 CORVETTE and Richard Dean Gregoire, Appellant, v. The STATE of Texas, Appellee.
No. 05-04-01547-CV
Court of Appeals of Texas, Dallas
Jan. 26, 2005
Ronald E. Harden, The Harden Law Firm, L.L.P., Terrell, for Relator.
William E. Walton, Criminal District Atty., Kaufman, for Real Party In Interest.
Before Chief Justice THOMAS and Justices LANG-MIERS and MAZZANT.
OPINION PER CURIAM
PER CURIAM.
Appellant filed a petition for writ of mandamus. The Court determined that there was an adequate remedy at law and ordered that the petition be treated as a notice of appeal. On November 9, 2004, the Court ordered appellant to file his brief. Appellant has failed to do so.
On the court‘s own motion, this appeal is DISMISSED for want of prosecution. See