Sani v. Powell , 2005 Tex. App. LEXIS 554 ( 2005 )

OPINION

Opinion by

Justice LANG.

Appellants Ali Sani and Fatemeh Sadat, individually and d/b/a Pyramid Realty (“Sani”), purchased land belonging to ap-pellees 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 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 84.21 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.

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. Crv. 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)).

Powell argues that Sani failed to demonstrate that he is entitled to invoke the section 38.54 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 under Berry, a proponent of the section 33.54 limitations bar has the burden to show authority to sell and statutory compliance by the offer and admission into evidence of the decree of foreclosure and order of sale as well as the tax sale deed, i.e., a prima facie claim to title pursuant to the tax deed. It is Powell’s position that Sani’s offer of Powell’s deemed admissions regarding a court ordered-sale and a deed executed in favor of Sani was insufficient to meet Sani’s burden required to raise limitations. However, Sani claims that the decision of this Court in Berry is erroneous and that he properly raised the defense of limitations. To support its position, Sani cites the San Antonio Court of Appeals’s opinion in Cedillo v. Gaitan, 981 S.W.2d 388, 390 (Tex.App.-San Antonio 1998, no pet.), which was critical of this Court’s analysis and conclusions in Berry. In order to resolve this dispute over the applicability of Berry, we must first review what evidence was before the trial court when it ruled on the motions for summary judgment.

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 actions 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:

2. 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].

3. On December 2, 1997, the Constable struck off and sold [the Property] to Counter-Plaintiff BASSAMP-OUR for the sum of $7,000.00.

4. 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.

This Court’s decision in Berry plainly provides that, in order to raise the statute of limitations under section 33.54 of the tax code, “a party must produce the same documentation that proves a valid tax deed.” Berry, 795 S.W.2d at 240. “[I]n order to prove title under a tax deed, the proponent must introduce into evidence the decree of foreclosure and the order of sale.” Id. at 238. The foreclosure judgment and order of sale establish in specific terms the sheriffs, or as in this case, constable’s, authority to proceed with the sale, the method of sale authorized, and the terms of the sale. See Clint Indep. Sch. Dist. v. Cash Inv., Inc., 970 S.W.2d 535, 537-38 (Tex.1998) (citing Mills v. Pitts, 121 Tex. 196, 199, 48 S.W.2d 941, 942 (1932)); Berry, 795 S.W.2d at 238; State v. Rhodes, 327 S.W.2d 701, 703 (Tex.Civ.App.-Dallas 1959, no writ). A mere recitation of the sheriffs authority to sell, for instance in the recitals of the deed, is insufficient. Berry, 795 S.W.2d at 238; Stark v. Stefka, 491 S.W.2d 757, 759 (Tex.Civ.App.-Austin 1973, no writ). This rule is one of long standing. Mills, 48 S.W.2d at 942; Berry, 795 S.W.2d at 238; Stark, 491 S.W.2d at 759 (citing Wofford v. McKinna, 23 Tex. 36, 43 (1859)); Nagel v. Taylor, 275 S.W.2d 561, 562 (Tex.Civ.App.-San Antonio 1955, writ dism’d w.o.j.); Fink v. Grevsgard, 123 S.W.2d 383, 384-85 (Tex.Civ.App.-Galveston 1938, writ ref'd). “If the sheriff acts outside the authority conferred by the foreclosure judgment and order of sale, the sale is void and title does not pass.” Clint Indep. Sch. Dist., 970 S.W.2d at 537-38 (citing Berry, 795 S.W.2d at 238, and Rhodes, 327 S.W.2d at 703).

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 not, 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.

Id. at 391 (citing Act of May 26, 1979, 66th Leg., R.S., ch. 841, § 1, sec. 33.54, 1979 Tex. Gen. Laws 2217, 2296, amended by Act of May 30, 1997, 75th Leg., R.S., ch. 1136, § 1, sec. 33.54, 1997 Tex. Gen. Laws 4299, 4299-4300, amended by Act of May 30,1997, 75th Leg., R.S., ch. 1192, § 1, sec. 33.54, 1997 Tex. Gen. Laws 4594, 4594-95 (current version, reflecting a two-year limitation, at Tex. Tax Code Ann. § 33.54 (Vernon 2001))).

Finally, the San Antonio Court of Appeals referred to the decision of this Court in Berry as no more than dicta. The Ben'y case came 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-enactment 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 reenacted 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 Tex. Gov’t Code Ann. § 312.005 (Vernon 1998); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). Also, the statute regarding limitations on actions to recover real property that pre-dated the codification of tax code section 33.54, and thus applied when Berry and Cedillo were decided, makes clear that section 33.54 applies to claims “respecting any land sold for delinquent taxes at a tax sale pursuant to judicial foreclosure of a tax lien.... ” Act of May 28, 1977, 66th Leg., R.S., ch. 663, § 1, 1977 Tex. Gen. Laws 1680, 1680 (codified without substantive revision at Tex. Tax Code Ann. § 33.54); see Cedillo, 981 S.W.2d at 393; see also Tex. Gov’t Code Ann. § 312.002(a) (Vernon 1998) (words in statutes “shall be given their ordinary meaning”); City of San Antonio, 111 S.W.3d at 25. Thus, limitations did not apply to any sale other than the type described. One could not show entitlement to raise limitations under section 33.54 without proof of compliance.

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 necessary 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 raised 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;....

Tex. Tax Code Ann. § 33.54(a) (emphasis added).

The italicized passages above direct that section 33.54 applies only to a tax deed resulting from a suit to collect delinquent taxes. 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 harmonious construction of sections 34.01 and 33.54. Id. at 240.

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, Sard’s receipt for purchase, and Powell’s deemed admissions to Sard’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 Sard did not meet his factual burden to assert the section 33.54 limitation. Accordingly, we decide 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.

B. Application of Law to Facts

Powell brought this action seeking to remove 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 recor-dation of the Sheriffs 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 Sheriffs 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:

1. judgment declaring (i) the judicial sale and subsequent transfer of Property to Purchaser, execution and recordation of the Sheriffs 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 Sheriffs 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

1 . Tex. Tax Code Ann. § 33.54 (Vernon 2001).

2 . “Anticipating Powell’s argument on this subject,” Sani devotes a substantial portion of his briefs to addressing the merits of the summary judgment. However, Sani does not direct this Court to any trial court error on these points, stating that argument on the merits “does not bear on [his] issue in this appeal.” Therefore, Sani presents nothing for review concerning the merits of Powell’s claim. See Tex.R.App. P. 38.1(e).

3 . Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (Vernon 2002)

4 . The dissent would reverse and remand for further proceedings based upon the conclusion that a material issue of fact bars Powell’s summary judgment. However, the dissent does not address the precise point raised by Sani. Sani claims we should reverse and render summary judgment in his favor since, in his view, section 33.54 bars Powell’s claims. Sani does not claim a fact issue exists, only that his proof shows, as a matter of law, that limitations bars the claims against him. Accordingly, we address only the point raised on appeal.

5 . This order does not appear in the record provided to this Court. However, the parties' pleadings and a letter from the trial court dated December 17, 2001, indicate that on June 25, the trial court announced its intention to set aside the summary judgment and grant a new trial. The parties' pleadings and a docket entry indicate a formal order to this effect was signed on January 4, 2002. On August 29, 2002, the trial court signed a second summary judgment order. Because the record does not indicate a contrary intent, we presume the second judgment vacated the June 6, 2001 judgment. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 39-40 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

6 . These claims included: trespass to try title, declaratory judgment that Powell failed to properly and effectively redeem the Property pursuant to section 34.21, wrongful institution of civil proceedings, and attorney's fees.

7 . We note that the legislature has brought forward that provision by re-enactment, but there is no indication that the changes abrogated the previous requirements.