Memorandum Opinion of August 1, 2013 Withdrawn, Affirmed and
Corrected Memorandum Opinion filed August 15, 2013.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00964-CV

                       ROBERT HOLMES, Appellant

                                       V.

                          CRAIG CASSEL, Appellee

                   On Appeal from the 80th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2011-32230

    SUBSTITUTE MEMORANDUM OPINION

      We withdraw our opinion of August 1, 2013 and issue this substitute
memorandum opinion in its place.

      Robert Holmes appeals from the trial court‘s grant of Craig Cassel‘s motion
for summary judgment based on limitations. Holmes filed the present lawsuit
seeking to have the trial court declare a 1995 tax deficiency judgment and
subsequent sale of certain real property to Cassel void because Holmes claimed
record ownership of a one-half undivided interest in the subject property and was
not a party to the lawsuit, provided notice, or named in the judgment.1 In five
issues on appeal, Holmes asserts that the trial court erred in (1) ruling that Cassel
owns any interest in the tract in which Holmes claims an interest, (2) applying
limitations under the Texas Tax Code, (3) applying limitations under the three- and
five-year adverse possession statutes in the Texas Civil Practice & Remedies Code,
(4) failing to find a fact issue regarding the elements of adverse possession, and (5)
failing to find fact issues regarding Holmes‘ defenses of estoppel and waiver. We
affirm.

                                         Background

       In 1995, the Taxing Authorities initiated tax deficiency proceedings
involving property located at 5405 Griggs Road in Houston, Texas (the Property)
against Charles Bush and Gerald Monks, Trustee.2 At the time that the 1995
deficiency suit (the Tax Suit) was filed, Holmes allegedly owned an undivided
one-half interest in the Property, received by a deed from Bush and duly recorded
on December 30, 1983. Holmes was not named in the Tax Suit, nor was he served
with citation. On June 25, 1996, the trial court entered final judgment against Bush
and Monks in favor of the Taxing Authorities; Holmes was not named in this
judgment. An order of sale of the property was issued on March 5, 2003. 3 Cassel
purchased the Property at the tax sale.

       1
          In his original petition, Holmes included the following taxing authorities, who are not
parties to this appeal: Harris County, Harris County Education Department, Port of Houston
Authority of Harris County, Harris County Flood Control District, Harris County Hospital
District, Houston Independent School District, and Houston Community College System. For
ease of reference, we will refer to these entities hereinafter as the Taxing Authorities.
       2
           Monks was a record lien holder.
       3
         There is no explanation in the record for the delay between the tax foreclosure judgment
and the tax sale.

                                               2
       Cassel took possession of the Property after purchasing it. He maintained
the Property by having the yard cut, installing a new roof on the building located
on the Property, and partially demolishing and replacing a wall. Cassel rented
space in the Property to a club for about two years after he purchased the Property.
He paid the taxes on the Property.             Cassel maintained an actual and visible
―appropriation‖ of the Property from the time he purchased.

       In May 2011, Holmes filed suit against the Taxing Authorities and Cassel,4
seeking to declare the judgment from the Tax Suit void. In his petition, he asserted
that because he was not named in the Tax Suit or the judgment, this judgment was
void as to his one-half interest in the Property.              He further argued that any
conveyance of his interest in the Property to Cassel arising out of the judgment was
likewise void. He sought declarations from the trial court to support these claims.
Holmes attached a certified copy of a warranty deed from Charles Bush and
Charles Bush d/b/a Charles Bush Enterprises as grantor to Robert W. Holmes and
James E. Anderson as grantees of ―real property in Harris County, Texas,‖
described in the ―attached exhibit ‗A‘ for legal description,‖ executed on
December 6, 1983. The attached exhibit ―A‖ contained in our record is nearly
illegible, but appears to be a metes and bounds description of a tract or parcel of
land ―out of Reserve ‗C‘ of Royal Palms Addition . . . in the City of Houston,
Harris County, Texas, according to Plat recorded in Volume 57, Page 29 of the
Map Records of Harris County, Texas, said tract or parcel of land being more fully
described as follows: [illegible].‖ It appears that this deed and attachment were
recorded on December 30, 1983. Holmes did not provide a copy of the Tax Suit.


       4
         The Taxing Authorities answered by filing a jurisdictional plea, special exceptions, and
a general denial. The final judgment in this case expressly states that Holmes ―take nothing
against all defendants.‖ Holmes has not challenged the judgment as it relates to the Taxing
Authorities.

                                               3
      Cassel answered with a general denial and asserted the affirmative defenses
of statute of limitations under the Texas Tax Code, failure to comply with the Tax
Code‘s statutory prerequisites to filing suit, and the three- and five-year adverse
possession statutes under the Texas Civil Practice & Remedies Code. He also
counterclaimed against Holmes for a declaratory judgment to quiet title under his
August 5, 2003 deed. Cassel attached a copy of his August 5, 2003 deed (the Tax
Deed) to his counterclaim, which provides the following description of the
Property:

      .5347 ACRES, MORE OR LESS, OUT OF RESERVE ―C‖, ROYAL
      PALMS ADDITION, CITY OF HOUSTON, ACCORDING TO THE
      MAP OR PLAT THEREOF, RECORDED IN VOLUME 57, PAGE
      29 OF THE MAP RECORDS OF HARRIS COUNTY, TEXAS; AND
      BEING MORE PARTICULARLY DESCRIBED BY METES AND
      BOUNDS BY COUNTY CLERK FILE NUMBER ―E‖666591 OF
      THE OFFICIAL PUBLIC RECORDS OF HARRIS COUNTY,
      TEXAS.
      HCAD Number:       0912220000005

      Cassel subsequently filed a motion for summary judgment. In this motion,
he asserted that, pursuant to Texas Tax Code section 33.54(a), an action relating to
the title of property may not be maintained against a purchaser of property at a tax
sale unless that action is commenced before the first anniversary of the date that
the deed executed to the purchaser is filed of record.       Cassel purchased the
Property at a tax sale on August 5, 2003, and recorded his deed on February 9,
2004. Holmes did not file suit until May 27, 2011. Thus, Holmes was precluded
from maintaining suit pursuant to this section of the Tax Code.

      Cassel further argued that Holmes did not comply with Texas Tax Code
section 34.08(a). This subsection requires that, to challenge the validity of a tax
sale under this chapter, the challenging party must (1) deposit into the registry of


                                         4
the court an amount equal to the amount of delinquent taxes, penalties, and interest
specified in the judgment of foreclosure obtained against the property, as well as
all costs of the tax sale, or (2) file an affidavit of inability to pay. Tex. Tax Code
§ 34.08(a). Because Holmes did neither, Cassel contended that Holmes was barred
from challenging the tax sale. Finally, Cassel asserted that he met the requirements
of both the three- and five-year adverse possession statutes provided for in sections
16.024 and 16.025 of the Texas Civil Practice and Remedies Code.                  Cassel
attached an affidavit to his motion providing facts in support of his motion.5

      Holmes responded to Cassel‘s motion for summary judgment. He first
alleged that, as a matter of law, Cassel had no ownership interest in the Property
because Cassel‘s Tax Deed referred to an adjacent property.                Holmes also
contended that the Tax Code sections Cassel asserted as a bar to his claims were
inapplicable because he never contested Cassel‘s one-half interest in the Property;
rather, he asserted that the Tax Suit and Cassel‘s Tax Deed were void as to his
interest in the Property. Holmes further argued that ―any application of limitation
statutes is a denial of due process and is precluded under the open courts doctrine.‖
Holmes asserted that the doctrines of estoppel and waiver based on two emails
from Cassel‘s counsel, sent in June 2010 and January 2011, requesting that Holmes
pay one-half of the taxes applicable to the Property either prevented or created a
fact issue precluding summary judgment.

      Regarding Cassel‘s adverse-possession claims, Holmes claimed that Cassel
did not acquire the Property under ―color of title‖ as required by the adverse
possession statutes because the Tax Deed conveying title to Cassel actually did not
convey Holmes‘ property, as discussed above, or only conveyed to Cassel a one-
      5
        The Taxing Authorities responded to Cassel‘s summary-judgment motion, stating that
Cassel sought no affirmative relief from them and that they would neither file any further
response nor appear at the hearing on the motion.

                                            5
half interest in the Property. Further, he argued that Cassel‘s possession was not
hostile to his claim because he had paid one-half of the taxes, pursuant to the
emails described above.

       In his reply, Cassel explained that the Tax Deed under which he claims title
clearly references the Harris County Appraisal District (HCAD) account number
associated with the Property.6 Cassel argued that because the Tax Suit was for
delinquent taxes, the foreclosure could only have been for the property included
under that account, which was the Property located at 5405 Griggs Road. Cassel
noted that Holmes never paid any taxes on this Property until he paid half of the
2009 taxes and that Holmes never paid any delinquent taxes. Cassel objected to
Holmes‘ claims of waiver and estoppel as unpled affirmative defenses. 7 Cassel
further asserted that he met the requirements for claiming under ―color of title‖ for
purposes of the adverse possession statutes because the Tax Deed references the
proper HCAD account encompassing the Property.

       On June 12, 2012, the trial court signed an order granting Cassel‘s motion
for summary judgment. Holmes filed a motion for new trial on July 11, 2012,
repeating the arguments he made in his summary-judgment response. On August
1, 2012, Cassel filed a ―motion for a judgment nunc pro tunc,‖ seeking to have the
final judgment in a ―recordable format‖ with ―specific reference to the deed at
issue‖ and a ―reference that this is [a] final and appealable judgment.‖




       6
         Cassel attached a map from HCAD showing that this account number is associated with
the property located at 5405 Griggs Road.
       7
          On May 16, 2012, Holmes filed an answer to Cassel‘s counterclaim, which was served
on Holmes on March 15, 2012. In this answer, Holmes generally denied Cassel‘s counterclaims
and asserted the affirmative defenses of waiver, estoppel, and laches. This answer was not
timely filed. See Tex. R. Civ. P. 99(b).

                                             6
      The trial court signed a ―modified final judgment‖ on September 18, 2012,
ordering, adjudging, and decreeing that: (1) Cassel‘s motion for summary
judgment is granted; (2) Holmes‘ causes of action are barred by sections 33.54(a)
and 34.08(a) of the Texas Tax Code; (3) Holmes‘ causes of action are barred by
sections 16.024 and 16.025 of the Texas Civil Practice & Remedies Code; (4) all
right, title, and interest to the real property acquired by Holmes pursuant to
warranty deed dated December 6, 1983 and recorded on December 30, 1983 in the
Real Property Records of Harris County Clerk‘s File No. J299406, is vested in
Cassel by virtue of limitations running from May 6, 2003; and (5) Holmes take
nothing against all defendants, all costs are taxed against Holmes, and the
judgment is final and appealable. The trial court denied Holmes‘ motion for new
trial, and this appeal timely followed.

                                Standard of Review

      A traditional summary judgment under Rule 166a(c) is properly granted
only when the movant establishes that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To
determine if the nonmovant raises a fact issue, we review the evidence in the light
most favorable to the nonmovant, crediting favorable evidence if reasonable jurors
could do so, and disregarding contrary evidence unless reasonable jurors could not.
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A defendant who
conclusively negates a single essential element of a cause of action or conclusively
establishes an affirmative defense is entitled to summary judgment on that claim.
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). In reviewing
traditional summary-judgment motions, we must take as true all evidence favorable
to the nonmovant and draw every reasonable inference and resolve all doubts in

                                          7
favor of the nonmovant. PAS v. Engel, 350 S.W.3d 602, 308 (Tex. App.—Houston
[14th Dist.] 2011, no pet.); Mendoza v. Fiesta Mart, 276 S.W.3d 653, 655 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied). If the movant establishes that the
action is barred by limitations, the nonmovant must then adduce summary
judgment proof raising a fact issue in avoidance of the statute of limitations.
Roberts v. T.P. Three Enters., Inc., 321 S.W.3d 674, 675–76 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied) (citing KPMG Peat Marwick v. Harrison Cnty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).

                                      Discussion

      In his second issue, which is dispositive of this appeal, Holmes asserts that
the trial court erred in applying the Tax Code limitations to prevent him from
asserting his one-half interest in the property. [A]n 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 . . . before the first anniversary of the date that the
deed executed to the purchaser at the tax sale is filed of record.‖ Tex. Tax Code §
33.54(a). ―When actions are barred by this section, the purchaser at the tax sale . . .
has full title to the property, precluding all other claims.‖ Id. § 33.54(c).

      Holmes argues that, because he was not served with citation in the Tax Suit,
it is void as to him. But subsection (b) of Tax Code section 33.54 provides only
that a person who was not served with citation in the tax foreclosure suit but who
pays taxes on the property during the applicable limitations period and until the
commencement of an action challenging the validity of the tax sale is not subject to
the one-year limitations period provided by subsection (a). See id. § 33.54(b). ―It
is reasonable to expect one claiming an ownership in property to pay the taxes on
the property to avoid the limitations bar.‖ John K. Harrison Holdings, L.L.C. v.
Strauss, 221 S.W.3d 785, 789 (Tex. App.—Beaumont 2007, pet. denied). Statutes

                                           8
of limitations further the policy that one must diligently pursue legal rights or risk
losing them if they are not timely asserted. Roberts, 321 S.W.3d at 677 (citing City
of Murphy v. City of Parker, 932 S.W.2d 479, 481–82 (Tex. 1996)).

      Holmes does not allege that he paid taxes on the Property either before or
after the Tax Sale. Indeed, there is no indication in the record that Holmes paid
any taxes on the Property until 2010, when Cassel requested that Holmes pay one-
half of the taxes for the 2009 tax year. That payment was made approximately
fifteen years after the Tax Sale and about seven years after the Property was
purchased by Cassel. Although section 33.54(b) provides a means of avoiding the
bar of limitations, Holmes did not avail himself of it. See id.; cf. Roberts, 321
S.W.3d at 677 (concluding that there was no evidence in the summary judgment
record to support the appellants‘ claim that subsection (b) bars application of the
limitations period to them).

      Furthermore, Holmes did not deposit an amount equal to the delinquent
taxes, penalties, and interest specified in the final judgment of the Tax Suit or file
an affidavit of his inability to pay this amount prior to filing suit. A person may
not commence an action challenging the validity of a tax sale without doing so.
See Tax Code § 34.08(a) (providing that, to commence an action challenging the
validity of a tax sale under Tax Code Chapter 34, a person must ―deposit[] into the
registry of the court an amount equal to the amount of the delinquent taxes,
penalties, and interest specified in the final judgment of foreclosure obtained
against the property plus all costs of the tax sale‖ or ―an affidavit of inability to
pay‖ under Tex. R. Civ. P. 145).

      Finally, Holmes contends that, because he was not made a party to or given
notice of the Tax Suit and the trial court granted fee simple title in the Property to
Cassel, which improperly broadened the deed beyond its scope and terms, he was

                                          9
denied due process. These issues have been considered in a similar situation in a
prior opinion by this court. Irrespective of any potential merit of a property
owner‘s challenge to a tax sale, such claims must be brought within the limitations
period set forth in section 33.54. Roberts, 321 S.W.3d at 678–79 (citing cases
overruling such challenges to tax sales brought outside the statutory limitations
period). Accordingly, we overrule Holmes‘ second issue.

       Because the trial court properly granted summary judgment on limitations
under the Tax Code, we need not consider the other grounds stated in the
judgment.8 Accordingly, we overrule the remainder of Holmes‘ issues and affirm
the trial court‘s judgment.


                                           /s/     Martha Hill Jamison
                                                   Justice

Panel consists of Justices Frost, Jamison, and Donovan.




       8
         Even Holmes‘ claim that Cassel‘s deed allegedly referred to an adjacent tract of land
fails because, as discussed supra, such actions must be brought forth in the limitations period
established in Texas Tax Code section 33.54.

                                              10
