In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-03-00466-CV
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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
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-1299-00
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DISSENTING OPINION
Before Justices Moseley, FitzGerald, and Lang
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's See Footnote1 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. Sani pled as an affirmative defense the statute of limitations set forth in section 33.54 of the tax code. He also referenced this affirmative defense in his response to Powell's motion for summary judgment. The majority, however, concludes that Sani did not meet his factual burden to assert the section 33.54 limitation because the summary judgment record does not contain the judgment foreclosing the tax lien and the order of sale on which his tax deed is based. The majority's conclusion is based on language from this Court's opinion in Volunteer Council of Denton State School, Inc. v. Berry, 795 S.W.2d 230 (Tex. App.-Dallas 1990, writ denied).
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. See Footnote2 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 Tex. Tax Code Ann. 33.54. See Footnote3 Thus the elements of Sani's affirmative defense are that: (1) the action relates to title; (2) the action is against the purchaser of the property at a tax sale; (3) the deed executed to the purchaser at the tax sale was filed of record; and (4) the action was not commenced before the second anniversary of the date the deed was recorded. See Footnote4 See id.
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 summary judgment motion, Sani needed only to raise a fact issue as to each element. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 504 (Tex. App.-Dallas 1997, no pet.). As the non-movant, he was not required-at this stage in the proceedings-to prove his limitations affirmative defense as a matter of law or even by a preponderance of the evidence. See Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 654 (Tex. App.-Waco 2000, pet. denied) (summary judgment reversed where fact issue raised on all elements of affirmative defense). In deciding whether Sani met this burden, it is axiomatic that the trial court (and we): take evidence favorable to Sani as true; indulge in every reasonable inference in his favor; and resolve all doubts in his favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
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 there 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. See Footnote5 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 plea in bar based on limitations pursuant to section 33.54 of the tax code (the same statute involved in this case). At trial Volunteer introduced the tax deed, but did not introduce the tax judgment or order of sale. Berry, 795 S.W.2d at 238. The trial court instructed a verdict in favor of Berry. Volunteer appealed, claiming among other things that the trial court should have instructed a verdict in its favor because section 33.54 precluded Berry's claim as a matter of law.
The Court determined that Berry established her claim of prior possession See Footnote6 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 Tex. Tax Code Ann., 34.01(n) (Vernon Supp. 2004-05). See Footnote7 See also Tex. Const. art. 8, 13(b) (deed to purchaser of property sold for unpaid taxes shall be held to vest a good and perfect title in the purchaser thereof).
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, See Footnote8 the Court stated that the proponent of a tax deed must show that the sale complied with the applicable statutory conditions. Berry, 795 S.W.2d at 238. The Court concluded that Wright was still good law, and thus [t]he benefit afforded by [section 34.01(d)] only comes into play when the deed proponent has complied with the law; it does not dispense with the need to prove compliance. Under this section, the proponent shows compliance by introducing the tax judgment and the order of sale. Id., 795 S.W.2d at 239.
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 constable sold the property to Sani (more specifically, to Bassampour) at a public sale [p]ursuant to an Order of Sale and Judgment . . . and that Sani (Basampour) received a deed to the [disputed property] and recorded same in the Deed Records. Thus Powell admitted the tax deed resulted from a judgment and order of sale in a tax suit. See Tex. R. Civ. P. 198.3 (matter admitted under rule 198 is conclusively established as to the party making the admission). Even if section 33.54 requires proof that the tax sale was held pursuant to a judgment and order of sale, that requirement was satisfied in this case-at least for purposes of responding to a motion for summary judgment-by Powell's admissions and the inclusion of the tax deed in the summary judgment record.
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 Tex. R. Civ. P. 783. Here, however, Powell's pleading asserted much more. His active pleading as of the date of summary judgment (third amended petition) alleged that Constable Jerry Kunkle conducted a judicial tax sale of the Property in which the Property was 'struck' off to Fatemah Sadat Bassampour ('Purchaser') for $7,000.00 in cash. See Footnote9 The same pleading also alleged: On December 18, 1997, on information and belief, a deed from Jerry Kunkle to Purchaser (the 'Sheriff's Deed') was recorded in Collin County, Texas. See Footnote10
Pleadings are not summary judgment evidence. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). However, they frame the issues that are in dispute and that need to be determined. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). Here Powell's own pleadings make clear that there was no dispute that Sani's deed was based on the judgment foreclosing the tax lien and an order of sale issued pursuant to that judgment. Indeed, Powell states in his brief on appeal that this action was brought to declare the tax sale void as a violation of the bankruptcy automatic stay, and not to challenge the tax sale as illegal or not in compliance with applicable state law.
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 avoid 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 defense-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 of 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 make without section 33.54. For example, if an action relating to title is filed against a grantee at a tax sale within six months of recording the tax deed, the grantee cannot rely on section 33.54 and has to prove that the tax sale was valid in order to support his claim under the tax deed. Under Berry, however, even if the action is filed three years after the tax deed was recorded, the grantee must still prove that the tax sale was valid by offering into evidence the judgment foreclosing the tax lien and the order of sale. In other words, Berry's interpretation of section 33.54 would give the grantee under the tax deed no benefit. If the grantee prevails, it is not because of the bar of limitations but because of the validity of his tax title. Section 33.54 is a limitation on actions relating to property sold for taxes. Tex. Tax Code Ann. 33.54. As such, it should offer a point of repose and further the policy of settlement and repose of land titles. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 757 (Tex. 2003); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) (stating that limitations statutes afford plaintiffs what legislature deems a reasonable time to present their claims and establish a point of repose). Under Berry's construction, section 33.54 does not.
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. Tex. Tax Code Ann. 33.54(c). The same is true of the adverse possession statutes: If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims. Tex. Civ. Prac. & Rem. Code Ann. 16.030(a) (Vernon 2002). Thus, invoking the limitations protection of section 33.54 is not the same as proving title under a tax deed and the proof requirements for tax deeds should not be applied to the limitations statute.
I also conclude that use of the word deed in section 33.54 does not imply that the deed must be valid or supported by a judgment and order of sale. This conclusion is supported by analogy to the adverse possession statutes of limitations. For example, the word deed as used in other statutes of limitations, such as the five-year adverse possession statute, does not mean a valid or unimpeachable deed that conveys title. See Tex. Civ. Prac. & Rem. Code Ann. 16.025 (Vernon 2002). See Footnote11 The five-year adverse possession statute requires that a person claim the property under a duly registered deed, but the validity of the deed as a conveyance of title is immaterial:

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. Comm'n 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 void on its face is deed for purposes of five-year adverse possession statute). The deed here is not void on its face-Powell's argument that the deed is void requires proof that he filed bankruptcy before the sale and the bankruptcy case was still pending on the date of the sale. Thus, the tax deed, even if void, was still a deed that was recorded and triggered the running of limitations under section 33.54. I conclude that whether a tax deed is void-so long as it is not void on its face-does not affect the applicability of the statute of limitations set forth in section 33.54 of the tax code.

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. See Footnote12 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.

JIM MOSELEY

JUSTICE

030466df.p05

Footnote 1 As does the majority's opinion, I refer to appellants collectively as Sani and appellees collectively as Powell.

Footnote 2 Sani did not move for summary judgment based on limitations.

Footnote 3 The text of section 33.54 is as follows:

(a) 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:
(1) before the first anniversary of the date that the deed executed to the purchaser at the tax sale is filed of record; or
(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.

Tex. Tax Code Ann. 33.54. (Vernon 2001). Previous versions of this statute were substantially the same.

Footnote 4 This statement assumes the property was Powell's residential homestead at the time the tax suit was filed, and thus that the longer, two-year, period applies.

Footnote 5 In a trespass to try title action, the plaintiff must recover, if at all, on the strength of its own title, not the weakness of the defendant's title. Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). Proof of title may be made by proving: (1) a regular chain of conveyances from the sovereignty of soil; (2) a superior title out of a common source; (3) title by limitations; or (4) title by prior possession coupled with proof that the possession has not been abandoned. Bacon v. Jordan, 763 S.W.2d 395, 396-97 (Tex. 1988).

Footnote 6 The doctrine of prior possession is based on the theory that one in possession should not be disturbed except by another person who has better title. Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 251 (Tex. 1964). Proof of prior possession is prima facie evidence of title and is good against one who has no title or fails to prove record title. Dinwitty v. McLemore, 291 S.W.2d 448, 451 (Tex. Civ. App.-Dallas 1956, no writ).

Footnote 7 At the time Berry was decided and the property in this case was sold, this language was found in section 34.01(d) of the tax code. Property Tax Code, 66th Leg., R.S., ch. 841, 1, sec. 34.01(d), 1979 Tex. Gen. Laws 2217, 2297 (amended 1999) (current version at Tex. Tax Code Ann. 34.01(n) (Vernon Supp. 2004-05)). For consistency with the discussion in Berry, I will refer to this provision as section 34.01(d).

Footnote 8 Wright construed former article 1059 of the revised civil statutes. This article was repealed with the enactment of the tax code. Property Tax Code, 66th Leg., R.S., ch. 841, 6, 1979 Tex. Gen. Laws 2217, 2329. Article 1059, quoted on pages 520-21 in Wright, provided that a tax deed would be prima facie evidence of certain facts and conclusive evidence of other facts. See Wright, 296 S.W.2d at 520-21. This language was not included in the language of tax code section 34.01(d), which provided in part that [t]he deed vests good and perfect title in the purchaser or his assigns subject to the defendant's right of redemption. Property Tax Code, 66th Leg., R.S., ch. 841, 1, sec. 34.01(d), 1979 Tex. Gen. Laws 2217, 2297 (amended 1999). Berry's statement that section 34.01 has not changed significantly since Wright seems misplaced. See Berry, 795 S.W.2d at 239.

Footnote 9 Again, Bassampour is one of the defendants referred to collectively as Sani here and in the majority opinion.

Footnote 10 Further, as the majority recognizes (in the context of Powell's attorney's fee claim), the face of Powell's original petition, as well as his third amended petition, make clear the substance of his claim for declaratory relief is a claim to quiet title, and that the essence of his suit is in trespass to try title. Thus, it is undisputed that Powell's action related to title to the disputed property. See Martin v. Amerman, 133 S.W.3d 262, 265-67 (Tex. 2004) (concluding statutory trespass to try title action is only appropriate method of resolving dispute that necessarily involves determination of title).

Footnote 11 Unlike civil practice and remedies code section 16.025, section 33.54 does not require possession of the property. Tex. Tax Code Ann. 33.54(a); see Rosborough v. Cook, 108 Tex. 364, 366, 194 S.W. 131, 132 (1917) (purpose of adverse possession is to give owner notice of adverse claim). The recording of the tax deed gives the owner notice of the adverse claim under section 33.54. See Tex. Prop. Code Ann. 13.002 (Vernon 1984) (recording of instrument is notice to all persons of the instrument).

Footnote 12 Sani argues he proved the limitations defense as a matter of law based on the deed and Powell's admissions and asks use to reverse and render judgment in his favor. However, Sani never moved for summary judgment on the ground that Powell's claims were barred by limitations. Thus, even if Sani is correct, we cannot reverse and render judgment on a ground not raised in his motion for summary judgment. Tex. R. Civ. P. 166a(c).