Sani v. Powell

• Decision Date: 26 January 2005
• Docket Number: No. 05-03-00466-CV.,05-03-00466-CV.
• Citation: 153 S.W.3d 736
• Parties: Ali SANI, Individually 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.
• Court: Texas Court of Appeals

153 S.W.3d 736 Ali SANI, Individually 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. January 26, 2005.

[153 S.W.3d 737]

Alan L. Busch, Todd Alan Hoodenpyle, Gerard Singer & Levick, P.C., Addison, for Appellants.

Mark Asher Weisbart, James S. Brouner, Kessler & Collins, P.C., Dallas, for Appellees.

Wayne B. Ames, McKinney, Intervener.

Before Justices MOSELEY, FITZGERALD, and LANG.

[153 S.W.3d 738]

OPINION

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 void 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 below, 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 11 U.S.C.A. § 301 (West 2004). The filing of this petition triggered an automatic stay pursuant to chapter 11, section 362. However, the Taxing Authorities did not receive notice of Powell's bankruptcy filing until after the sale. 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

153 S.W.3d 739

Sale because of the bankruptcy filing. On December 18, Sani recorded the tax deed ("Deed").

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, the 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.

153 S.W.3d 740

STANDARD OF REVIEW

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. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

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 Tex. Tax Code Ann. § 33.54 (Vernon 2001). Sani contends that section 33.54 bars Powell's action because Powell brought his action to clear title more than thirty-one months after Sani recorded the Deed. See id. This was outside the two-year time period allowed by the statute. See id.

Typical of statutory limitations provisions, the section 33.54 bar applies only to certain claims, under specific circumstances. See id.; Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003) (reciting requirements for barring actions under Texas Insurance Code and Deceptive Trade Practices Act); Martin v. Cadle Co., 133 S.W.3d 897, 904-06 (Tex.App.-Dallas, 2004, pet.denied) (analyzing requirements for invoking three-year adverse possession limitations and four-year limitations on wrongful foreclosure actions); Liles v. Phillips, 677 S.W.2d 802, 807 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.) (analyzing whether four-year limitations under DTPA or two-year tort limitation applies to action for legal malpractice). A statute of limitations plea is an affirmative defense. Tex.R. Civ. P. 94. Thus, the defendant has the initial burden to show that it is entitled to invoke the particular bar. Love v. State Bar of Tex., 982 S.W.2d 939, 943 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988)).

153 S.W.3d 741

Powell argues that Sani failed to demonstrate that he is entitled to invoke the section 33.54 bar and cites us to Volunteer Council of Denton State School, Inc. v. Berry, 795 S.W.2d 230, 239 (Tex.App.-Dallas 1990, writ denied). Powell claims that...