                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-08-456-CV


BERNARD DOLENZ, TRUSTEE                                            APPELLANT

                                        V.

JUAN BANDA                                                           APPELLEE

                                    ------------

           FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant Bernard Dolenz as trustee appeals from the summary judgment

in favor of Appellee Juan Banda on Dolenz’s action to recover certain real

property located in Fort Worth, Texas. In four issues, Dolenz argues that the

trial court erred by granting summary judgment because (1) the trial court ruled

against Dolenz before the time had elapsed for him to file a response; (2)



      1
          … See Tex. R. App. P. 47.4.
Banda’s summary judgment evidence failed to negate Dolenz’s claim of no title

because of the irregular sheriff’s sale; (3) Banda’s summary judgment evidence

failed to show that Banda has a duly registered deed; and (4) Banda failed to

overcome Dolenz’s affirmative defense of equitable tolling. Because we hold

that the trial court considered Dolenz’s response before signing its final

judgment, that Banda based his claim on a duly registered warranty deed, and

that Dolenz failed to raise a fact issue on the doctrine of equitable tolling, we

affirm.

                         Facts and Procedural History

      Dolenz and his ex-wife Dalila had once owned the property he now seeks

to recover (“the property”). The two divorced in 1980, and in 1990, Dolenz

conveyed his half ownership of the property to their son Bruce.

      In 1993, Dale Wells sued and recovered a default judgment against “Ken

Topham a/k/a Bernard J. Dolenz.” Dolenz and Ken Topham are not the same

person, however, and Wells did not intend to sue Dolenz in that suit.

Nevertheless, to satisfy the default judgment, in December 2001, the Tarrant

County Sheriff levied upon and sold the property to Gene DeVoll as trustee for

the North Texas Land Trust. That same month, Banda purchased the property

from the Land Trust, and DeVoll as trustee executed a warranty deed to Banda.




                                       2
This deed was recorded in Tarrant County’s real property records on December

28, 2001.

      In 2002, Bruce assigned his half interest in the property to Dalila. In

2005, Dalila assigned to Dolenz as trustee her rights, if any, in the property.

      Also in 2005, Dolenz brought an unsuccessful bill of review to set aside

the judgment against Topham. At the hearing, Topham testified that he had

never held himself out as Bernard Dolenz, and Wells’s attorney testified that he

had never intended to sue Dolenz. The trial court concluded that Dolenz did not

have standing to challenge a judgment against Topham by way of bill of review,

and, accordingly, the court denied his bill of review. In 2007, the Dallas Court

of Appeals vacated the trial court’s judgment of denial and dismissed the action

on the ground that Dolenz did not have standing.2

      In 2008, Dolenz, acting pro se, brought suit against Banda on a claim for

trespass to real property. Banda answered and filed a motion for summary

judgment alleging that he had established title to the property by adverse

possession. As summary judgment evidence, Banda attached the deed from

DeVoll. He also attached his own affidavit stating that when he bought the

property, it was unimproved, that he made improvements by stabilizing the



      2
     … Dolenz v. Wells, No. 05-06-00840-CV, 2007 WL 259196, at *2 (Tex.
App.—Dallas Jan. 31, 2007, pet. denied) (mem. op.).

                                       3
ground to allow for parking commercial trucks, that he began parking trucks on

the property two weeks after purchasing it, that he installed a metal privacy

fence to enclose the property, and that he has paid all property taxes on the

property.

      Dolenz filed a competing motion for summary judgment. He attached his

own affidavit asserting that he did not own the property at the time of the

sheriff’s sale.   He claimed that the sheriff could only convey what interest

Dolenz as the judgment debtor had in the property, and he had no interest in

the property at the time of its sale. He also claimed that he had brought suit

to recover the property within five years because he filed a bill of review on

August 22, 2005.

      The trial court apparently held a hearing on June 26, 2008, but continued

the case and requested that Dolenz submit evidence to show that he had

standing as trustee. There is no record of the hearing in the appellate record.

On July 25, 2008, the trial court notified the parties by letter that it had

decided to grant Banda’s motion and deny Dolenz’s motion, but it did not at

that time sign an order. Dolenz then retained counsel who, on August 22,

2008, filed a response to Banda’s summary judgment motion. This response

asserted the affirmative defense of equitable tolling. The summary judgment

hearing had been reset for August 29, 2008, and on that date the trial court

                                       4
signed an order granting summary judgment for Banda, from which Dolenz now

appeals.

                              Standard of Review

      A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative

defense. 3 To accomplish this, the defendant-movant must present summary

judgment evidence that establishes each element of the affirmative defense as

a matter of law.4 When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. 5

                                    Analysis

      Under Dolenz’s first issue, he argues that the trial court erred by granting

summary judgment because the trial court ruled against him before the time had

elapsed for him to file a response. We disagree with Dolenz. Although the

appellate record is not as clear as it could be, it demonstrates that the trial

court did not sign an order until after Dolenz filed a response and that even


      3
      … Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see
Tex. R. Civ. P. 166a(b), (c).
      4
          … Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
      5
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).

                                        5
after it signed an order, while it still retained plenary power, it considered the

issue Dolenz raised in his response.

      Banda filed his summary judgment motion on May 29, 2008, and Dolenz

filed his summary judgment motion on June 2, 2008. A hearing on the motions

was originally set for June 26, 2008. Dolenz did not file a response to Banda’s

motion within the deadline for filing a response under rule 166a(c) of the rules

of civil procedure.6 No record of a hearing on that date appears in the appellate

record, but both parties acknowledge that the trial court did begin the hearing

that day. Dolenz noted in a filing in the trial court that on that date, the trial

court continued the case to allow him the opportunity to show the court that

he had standing as trustee to bring suit. The hearing was then reset for August

15, 2008.

      On July 25, 2008, the trial court notified the parties by letter that it was

granting Banda’s motion and denying Dolenz’s. The court did not, however,

sign an order to that effect. Instead, it asked Banda’s attorney to submit an

order to the court by August 13, 2008. As of the day of the trial court’s letter,

Dolenz had still not filed any response to Banda’s motion.




      6
       … See Tex. R. Civ. P. 166a(c) (stating that except on leave of the court,
the nonmovant must file any response not later than seven days prior to the
day of the hearing).

                                        6
      On August 5, 2008, by which time Dolenz had still not filed any response

to Banda’s motion, the summary judgment hearing was again reset, this time

for August 29, 2008. Dolenz, having obtained counsel, finally filed a response

on August 22, 2008.

      On August 29, 2008, the trial court signed an order granting Banda’s

motion and denying Dolenz’s motion. This order stated that the motion was

heard on June 26, 2008.         Dolenz then filed a motion to reconsider on

September 24, 2008. Dolenz filed a letter brief on November 5, 2008, on the

issue of equitable tolling.

      On November 20, 2008, the trial court held what purported to be a

summary judgment hearing at which the court acknowledged that it had set

aside the summary judgment for the purpose of considering Dolenz’s equitable

tolling argument. But at the end of the hearing, the trial court noted that it had

not been presented with, nor had it signed an order on the motion to

reconsider. Accordingly, the trial court stated, the motion to reconsider had

been overruled by operation of law on November 12, 2008, and the court only

had plenary power for thirty days from that date.7 The trial court informed

Dolenz that, consequently, it had two weeks left with plenary power over the




      7
          … See Tex. R. Civ. P. 329b.

                                        7
matter and that it would allow Dolenz to amend his pleadings within that time

to include the facts that Dolenz relied upon to support his claim that equitable

tolling applied. Instead of amending, Dolenz filed this appeal.

      The record demonstrates that the summary judgment hearing was

originally set for and commenced on June 26, by which time Dolenz had not

filed a response.    The trial court could have ruled on the motions that day

without allowing Dolenz time to respond.8 After the trial court’s letter of July

25 but seven days before the trial court’s signing of the August 29 order,

Dolenz filed a response to Banda’s summary judgment motion. Thus, Dolenz

filed a response seven days before the trial court held the August 29 hearing

and signed its order granting summary judgment. Accordingly, the trial court

did not grant Banda’s motion before the time had elapsed for Dolenz to file a

response.

      Generally, when a trial court resets the date for the hearing on a summary

judgment motion, the nonmovant’s time to respond to the motion increases to

correspond with the new hearing date.9 We do not have the record from the

June 26 hearing, so we cannot determine whether the trial court continued the



      8
          … See Tex. R. Civ. P. 166a(c).
      9
     … See Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 798 (Tex.
App.—Houston [14th Dist.] 1998, no pet.).

                                           8
hearing only on the issue of Dolenz’s standing or whether the court would also

consider the parties’ summary judgment motions at the new hearing.            But

although the trial court’s August 29 order states that it heard the motion on

June 26, nothing in the order indicates that it did not consider Dolenz’s

response in its ruling.

      Furthermore, the trial court apparently orally granted Dolenz’s motion to

reconsider, but Dolenz never provided the court with an order to that effect.

And the trial court still allowed Dolenz the opportunity to amend his pleadings

on the equitable tolling issue, which Dolenz declined to do. The trial court not

only considered Dolenz’s response before signing its order, but it apparently

made every effort to allow Dolenz to assert a meritorious defense before it lost

plenary power. We overrule Dolenz’s first issue.

      In his second issue, Dolenz argues that the trial court erred by granting

summary judgment because Banda’s summary judgment evidence failed to

negate Dolenz’s claim of no title based on the irregular sheriff’s sale. He states

that “Banda may have acquired his title by a Warranty Deed, but the Sheriff’s

sale would have been a quitclaim deed, and it is on the strength of the quitclaim

deed that all subsequent deeds in the chain of title base their claim.”       We

disagree with Dolenz.




                                        9
      To show his entitlement to summary judgment, Banda alleged the

affirmative defense of adverse possession under section 16.025 of the civil

practice and remedies code.10 Under that statute, a person must bring suit

within five years to recover real property held adversely by another who

cultivates, uses, or enjoys the property; pays applicable taxes on the property;

and claims the property under a duly registered deed. The last element is at

issue in this appeal.

      The purpose of requiring a registered deed is “to define the boundaries of

the claim and give notice to the true owner of such adverse claim.” 11      For

purposes of the statute, the validity of the deed as a conveyance of title is

immaterial.12 A deed is sufficient under the statute if it gives notice of the

adverse claim and is not void on its face.13




      10
           … Tex. Civ. Prac. & Rem. Code Ann. § 16.025 (Vernon 2002).
      11
       … Davis v. Howe, 213 S.W. 609, 610 (Tex. Com. App. 1919, judgm’t
adopted); Thomas v. Sw. Settlement & Dev. Co., 131 S.W.2d 31, 34 (Tex.
Civ. App.—Beaumont 1939, writ dism’d judgm’t cor.).
      12
       … Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, 131–32 (1917);
Davis, 213 S.W. at 610.
      13
        … See Rosborough, 194 S.W. at 132 (stating that if a deed “describes
and purports to convey the land and tested by itself is upon its face a good
deed, it meets the requirement” of the limitations statute); Davis, 213 S.W. at
610 (“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.”).

                                      10
      To be effective as a deed, an instrument must be sufficient for the

grantor and grantee to be ascertained and must be signed and acknowledged

by the grantor and contain words showing the intention of the grantor to

convey title.14 Banda attached to his summary judgment motion the deed from

DeVoll. This deed named North Texas Land Trust as grantor and was signed

by DeVoll as trustee. It named Banda as grantee. The deed described the

property conveyed by lot and block and also by street address. Furthermore,

the deed stated that the grantor “does grant, sell, and convey” the property “to

have and to hold . . . to Grantee, his heirs, personal representatives,

successors, and assigns forever.”

      The deed named the grantor and the grantee, contained a signature by

the grantor and an acknowledgment, described the land being conveyed, and

used language indicating an intent on the part of the grantor to convey the land

described. Thus, the instrument had the appearance of validity on its face 15




      14
        … Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex. App.—Eastland 1987,
writ ref’d n.r.e.).
      15
        … See id. (stating that for a deed to be effective, the instrument must
be sufficient for the grantor and grantee to be ascertained and must be signed
and acknowledged by the grantor and contain words of grant or operative
words of grant showing the intention of grantor to convey title).

                                      11
and gave notice of exactly what property was being claimed adversely and by

whom. The deed was therefore sufficient to satisfy section 16.025.16

      Dolenz argues that Banda’s counsel made a judicial admission that Banda

claims the property through the sheriff’s sale and that the sheriff conveyed the

property by means of a quitclaim deed.        We disagree.     A quitclaim deed

generally will not satisfy the “duly registered deed” element of section 16.025

because such a deed purports to convey only whatever right, title, and interest

the grantor had and does not purport to convey the land itself or any particular

interest in the land. 17 Banda’s counsel did state that she believed the sheriff’s

deed was a quitclaim deed, but she further asserted that her client based his

claim on the deed from DeVoll and not on the sheriff’s deed.

      Finally, Dolenz cites Apex Financial Corporation v. Garza 18 for the

proposition that the sheriff could only convey the interest in the property that

appeared of record at the time of the sheriff’s sale. Thus, he argues, when a

judgment debtor—in this case, Dolenz—has no interest in the property sold at

the sale, then a purchaser acquires only the interest that the debtor had, which

in this case was nothing. Apex is inapposite. That case addressed a dispute


      16
           … See Rosborough, 194 S.W. at 132; Davis, 213 S.W. at 610.
      17
           … Porter v. Wilson, 389 S.W.2d 650, 654 (Tex. 1965).
      18
           … 155 S.W.3d 230 (Tex. App.—Dallas 2004, pet. denied).

                                       12
over property between a party asserting that it was a bona fide purchaser for

value of the property and another party asserting ownership under a quitclaim

deed.19     That case has no bearing on whether a party asserting adverse

possession may base its claim on a warranty deed from a purchaser at a

sheriff’s sale. Furthermore, the issue in this case is not whether the sheriff’s

deed conveyed good title but whether the deed from DeVoll to Banda satisfied

section 16.025. We overrule Dolenz’s second issue.

      In his third issue, Dolenz argues that the trial court erred by granting

summary judgment because Banda’s summary judgment evidence failed to

show that Banda has a “duly registered deed.” Dolenz asserts that a quitclaim

deed does not constitute a “duly registered deed” under section 16.025 and

that therefore Banda did not establish his right to judgment under that statute.

      Dolenz relies on Johnson v. McClintock 20 for the proposition that a party

may not rely on a quitclaim deed conveying any interest of a grantor in real

property, when that grantor has in fact no interest in the property, in order to

demonstrate a duly registered deed for purposes of section 16.025. But Banda

based his claim not on the sheriff’s deed but on the deed by which he acquired

the property—the deed from DeVoll.      That deed was a warranty deed that


      19
           … Id. at 234.
      20
           … 202 S.W.3d 821–23 (Tex. App.—Corpus Christi 2006, no pet.).

                                      13
conveyed not only the North Texas Land Trust’s interest in the property, but

the real property itself.21 The deed was valid on its face 22 and was registered

in the Tarrant County property records. It therefore met the requirements under

section 16.025 for a “duly registered deed.” We overrule Dolenz’s third issue.

      In Dolenz’s fourth issue, he argues that the trial court erred by granting

summary judgment because Banda failed to overcome Dolenz’s affirmative

defense of equitable tolling. Under this issue, Dolenz argues that the statute

of limitations in section 16.025 does not apply because he could not file suit

until he acquired the property, but if it does apply, the limitations period was

tolled. We first note that Banda did not have the burden to prove that equitable

tolling did not apply; rather, once Banda established the elements of section

16.025, Dolenz had the burden to at least raise a fact issue as to whether

equitable tolling applied.23 Dolenz did not meet that burden.



      21
        … See Porter, 389 S.W.2d at 654 (stating that quitclaim deed generally
will not satisfy five-year statute of limitations because it purports to convey
only whatever right, title, and interest the grantor had and does not purport to
convey the land itself).
      22
           … See Harlan, 732 S.W.2d at 392.
      23
        … See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999) (stating that in summary judgment proceeding,
if defendant-movant “establishes that the statute of limitations bars the action,
the nonmovant must then adduce summary judgment proof raising a fact issue
in avoidance of the statute of limitations”).

                                       14
      As to Dolenz’s argument that section 16.025 does not apply to him

because he could not file suit before he was harmed, that is, before he acquired

the property in 2005, we disagree. Once an adverse claimant begins adversely

possessing property and the limitations period begins to run, its running will not

be interrupted by the conveyance of the property by the true owner to a

subsequent purchaser.24 Thus, it is immaterial that Dolenz, whose interest in

the property is only through the conveyance from Dalila, could not have brought

suit sooner. Dalila’s conveyance of the property to Dolenz did not interrupt the

running of the limitations period, and he took the property burdened by Banda’s

adverse claim.25


      24
         … Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565, 568
(1950) (stating that once statute of limitations began to run against adverse
claimant’s cotenants, operation of statute was not affected by cotenants’
subsequent conveyance to appellee); Eastham v. Gibbs, 58 Tex. Civ. App. 627,
125 S.W. 372, 374 (Fort Worth 1910, no writ) (“[O]nce the statute of
limitation begins to run it is clear that it will not be interrupted in behalf of a
subsequent purchaser objecting to its operation for want of notice.”).
      25
        … See Eastham, 125 S.W. at 374; see also Langehennig v. Hohmann,
365 S.W.2d 203, 206 (Tex. Civ. App.—San Antonio 1963, writ ref’d n.r.e.)
(applying statute of limitations in trespass to try title actions brought by heirs
of original property owner); Sciraffa v. Flores, 274 S.W. 260, 261 (Tex. Civ.
App.—San Antonio 1925, writ dism’d w.o.j.) (holding that adverse claimants’
rights to property by virtue of adverse possession were not affected by
appellant’s obtaining title to the property under a favorable judgment in a
trespass to try title action against another party); but cf. Warnecke v. Broad,
138 Tex. 631, 161 S.W.2d 453, 454–55 (1942) (noting that limitations period
begins to run when cause of action accrues and holding that because deed of
trust did not convey title or right of possession to mortgagee, and thus

                                        15
      Dolenz further argues that if the statute of limitations does apply, the

doctrine of equitable tolling should also apply. That doctrine works to toll the

applicable statute of limitations in situations “where the claimant has actively

pursued his judicial remedies by filing a defective pleading during the statutory

period or where the complainant has been induced or tricked by his adversary’s

misconduct” into allowing the filing deadline to run.26

      Under the evidence produced in the trial court, neither situation applies

in this case. Although Dolenz brought a bill of review in 2005, that action was

to set aside the judgment against Topham. He did not bring a suit against

Banda to recover the property until 2008, well outside the statutory period.

And there was no evidence or suggestion that any party induced or tricked

Dolenz into allowing the limitations period to run before filing suit.    Dolenz

asserts that the circumstances of this case “are truly exceptional.” 27 But the


mortgagee could not sue to recover land from trespasser, statute of limitations
did not begin to run against mortgagee’s right to bring trespass action until
mortgagee bought property at foreclosure sale).
      26
       … Smith v. J-Hite, Inc., 127 S.W.3d 837, 843 (Tex. App.—Eastland
2003, no pet.); see also Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex.
App.—Dallas 2005, no pet.); Czerwinski v. Univ. of Tex. Health Sci. Ctr. at
Houston Sch. of Nursing, 116 S.W.3d 119, 122–23 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied).
      27
       … See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814
(2005) (noting that “[g]enerally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights

                                       16
evidence does not demonstrate any “extraordinary circumstance” precluding

Dolenz (or his wife or son when they owned the property) from bringing suit to

recover the property.28     Thus, the trial court did not err by concluding that

Dolenz’s assertion of equitable tolling did not defeat Banda’s right to summary

judgment on his affirmative defense of title by limitations.

      Although Dolenz asserts that “[t]here was obviously fraud committed by

someone before Banda,” this assertion does not help him establish an

“extraordinary circumstance.”      In Eckert v. Wendel, the Supreme Court of

Texas held that an adverse claimant could assert title by limitations under the

five-year statute even though the deed under which the claimant held the

property was, under the law at that time, void as in fraud of the grantor’s

creditors. 2 9 The court quoted Davis for the proposition that although a deed

obtained through fraud “is without effect as a muniment of title,” when it is

valid on its face and duly recorded, it gives notice of an adverse claim, and,

“there being no issue of fraud undiscovered or concealed,” the five-year statute

of limitations applies to a suit by the owner to recover the land. 30 Accordingly,



diligently, and (2) that some extraordinary circumstance stood in his way”).
      28
           … See id.
      29
           … 120 Tex. 618, 40 S.W.2d 796, 801 (Tex. 1931).
      30
           … Id. (quoting Davis, 213 S.W. at 611).

                                        17
in this case, even if “someone” committed fraud that resulted in the sheriff’s

sale, Dolenz and his predecessors had notice of the fraud, and thus section

16.025 was not tolled because of that fraud. We overrule Dolenz’s fourth

issue.

                                     Conclusion

         Having overruled each of Dolenz’s four issues, we affirm the trial court’s

judgment.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: June 25, 2009




                                         18
