Thursday, May 22, 2008

Was the property purchased or merely rented by defendant who assumed payments on the mortgage?

Deed declared void ab initio. Summary judgment for original owner affirmed.

Kindsfather v. Green (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (real estate law, summary judgment in ownership dispute, title dispute, validity of deed, forged deed, trespass to try title, conversion, adverse possession, real esate transactions statute of frauds)


Appellant, Ray Kindsfather (“Kindsfather”), appeals from a summary judgment rendered in favor of appellee, Frank Green (“Green”). We determine whether the trial court erred in rendering summary judgment because either (1) Kindsfather provided the court with sufficient evidence of fact issues to preclude traditional summary judgment or (2) Kindsfather produced sufficient evidence to raise a genuine issue of material fact to preclude a no-evidence summary judgment. We affirm.


In November of 1987, Green acquired the property that is the subject of this suit. In May of 1995, Kindsfather moved onto the property with, he alleges, the understanding that he was purchasing the property by assuming Green’s mortgage and making a $5,000 payment to Green. In contrast, Green contends that his agreement with Kindsfather provided for Kindsfather only to rent the property, with Green maintaining ownership.

It is undisputed that Kindsfather made all of Green’s mortgage payments beginning in May of 1995 until the mortgage was paid in full in early 2005. In addition to paying the mortgage in full, Kindsfather asserts that he made at least $40,000 worth of improvements to the property.

Upon learning that the mortgage had been fully paid, Green discovered that Kindsfather was listed as the record owner of the property under a deed that purported to convey the property from Green to Kindsfather. Using this deed, Kindsfather had applied for and was given a home equity loan in 2003 in the amount of $96,000. There is a dispute as to whether there had been any contact between Kindsfather and Green from the time that Kindsfather moved onto the property until August of 2005, when Green sent Kindsfather a “notice and demand to vacate” letter.

On August 15, 2005, Green filed suit, asserting claims of trespass to try title, theft, and conversion and seeking declaratory judgment on the validity of the deed. On October 12, 2005, Kindsfather responded by general denial and also asserted the defenses of title by adverse possession, statute of limitations, laches, estoppel, unclean hands, and the statute of frauds and alleged claims of breach of contract, quantum meruit, and declaratory judgment.

Green moved for both traditional and no-evidence summary judgment. See Tex. R. Civ. P. 166a(c) (traditional); Tex. R. Civ. P. 166a(i) (no-evidence). The trial court granted the motion and issued certain declarations pursuant to Green’s request for declaratory relief. Specifically, the court declared that the special warranty deed purporting to transfer title of the property from Green to Kindsfather was forged and that, due to the forgery, the deed was invalid and void ab initio. The trial court declared that the property belonged to Green, that Green was entitled to possession of the property, and that Kindsfather had no title or interest in the property. The trial court also awarded damages in Green’s favor.

Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary judgment on its claim must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. “We review a no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences.” Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary judgment if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A. Traditional Summary Judgment

In his second motion for summary judgment, Green presented evidence to support his causes of action against Kindsfather, including his trespass to try title claim and Texas Theft Liability Act claim, and to establish his right to a declaratory judgment as to the validity of the deed over the property in dispute. Specifically, Green presented evidence that Kindsfather forged a deed purporting to convey the property from Green to Kindsfather and that Kindsfather refused to vacate when Green tried to remove him from the property. Green also presented evidence that Kindsfather used the forged deed to obtain a loan against the property, which resulted in a larger lien on the property and a loss of at least $30,000 in equity in the property.

1. Ownership of the Property

In his first point of error, Kindsfather contests the trial court’s granting of Green’s motion for summary judgment because Kindsfather presented evidence “that he had acquired ownership of the property through limitations, or adverse possession, or by contract.” He further argues that, if he did not establish a greater right to ownership of the property than Green’s right, he is nevertheless entitled to recover in quantum meruit for the improvements made to the property. We address each of these issues in turn.

a. Green’s Entitlement to Summary Judgment on Kindsfather’s Claims of Ownership by Deed

(1) Transfer by Deed

In his first point of error, Kindsfather argues that he “created a fact issue by showing that Green had agreed to sell [Kindsfather] the property” by transferring the property to him by deed.

Green put forth summary judgment evidence of his original deed to the property, which he filed in Harris County in November 1987, as well as Kindsfather’s 2004 deed. In addition to this evidence, Green presented an affidavit signed by the notary public who authenticated Kindsfather’s 2004 deed. In this affidavit, the notary public stated that Kindsfather was the only person who appeared before him on the day that he notarized the 2004 deed, Kindsfather’s name was the only name legible on the acknowledgment, and “Frank C. Green and” must have been added after he had placed his signature and seal on the deed.

Kindsfather does not admit or deny that he altered the deed or that Green signed the deed.
[Kindsfather asserts the Fifth Amendment to all questions regarding the forgery.] Kindsfather thus fails to raise a fact question as to whether he has a superseding deed. Therefore, no fact issue is raised as to ownership of the property by Green under the 1987 deed and Green’s evidence that the 2004 deed was forged.

(2) Transfer by Written Agreement

Kindsfather contends that his alleged agreement to purchase the property, despite the absence of a valid deed transfer, is a writing sufficient to overcome the statute of frauds and, alternatively, that he meets an exception to the statute of frauds because he made partial performance on the agreement, occupied the property, and made improvements to the property. Therefore, he argues, his assertion of a claim to the property is not barred by lack of a valid contract conveying the property to him, nor is it time-barred by the lapse of time between the creation of the contract in 1995 and his assertion of title to the property in 2004.

The statute of frauds provides that an agreement for the sale of real estate must be in writing. Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (Vernon Supp. 2007). The writing must contain all of the essential elements of the agreement, “so that the contract can be ascertained from the writings without resorting to oral testimony.” Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978). Kindsfather presented no writing that could overcome the statute of frauds. Kindsfather points to the loan-assumption papers as an adequate writing to defeatthe statue of frauds, but such papers are not part of the record.

Furthermore, Kindsfather does not establish an exception to the statute of frauds. He cites Choi v. McKenzie as supporting his assertion that an exception applies. There are three elements for partial performance to act as an exception to the statute of frauds: (1) payment of consideration, (2) possession, and (3) improvements to the property that would make the transaction a fraud if not enforced. Choi v. McKenzie, 975 S.W.2d 740, 743 n.2 (Tex. App.—Corpus Christi 1998, pet. denied). Although Kindsfather contends that he made an agreement to purchase the property from Green for his assumption of the mortgage and $5,000, he admits that the $5,000 was never paid, and he does not present evidence of improvements that would make the transaction a fraud if not enforced.

In the last part of his first point of error, Kindsfather argues that he providedbenefits to Green for which he is entitled to compensation in the form of $40,000worth of improvements to the property. Kindsfather cites no authority to support thisargument, nor does he provide any record citations. We decline to consider thischallenge because it is inadequately briefed. See Tex. R. App. P. 38.1(h); Stephensv. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet.denied, 181 S.W.3d 741 (Tex. 2005). We note that parties who represent themselvespro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys. See Mansfield State Bank v. Cohn, 573S.W.2d 181, 184–85 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.—Houston [1st Dist.] 1985, no writ).

There is no evidence of an agreement for the sale of the property to Kindsfather that satisfies the statute of frauds and no evidence that an exception to the statute of frauds would obviate the need for a contract of sale. Thus, Kindsfather failed to raise a fact issue as to whether Green agreed to sell him the property.

(3) Transfer by Adverse Possession

Kindsfather argues that he filed two affidavits, his own and that of Debbie Daniels, which were some evidence that Kindsfather agreed to sell him the property in return for $5,000 and Kindsfather’s assumption of the mortgage, that Green signed the assumption papers, that Kindsfather occupied the property “openly and with the intent to appropriate” it, and that Kindsfather made more than $40,000 in improvements on the property. Kindsfather contends on appeal that this evidence raises a fact issue on his defense of adverse possession.

Under Texas law, adverse possession requires “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A person seeking to establish title to land by virtue of the statute of limitations relating to adverse possession has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes, 802 S.W.2d at 645.

The true meaning of “hostile” in the context of adverse possession refers to whether the claim is inconsistent with the rights of the true owner. Taub v. Houston Pipeline Co., 75 S.W.3d 606, 626 (Tex. App.—Texarkana 2002, pet. denied) (noting that claim is hostile when acts performed by claimant and use made of land are of nature and character that would reasonably notify true owner of adverse claim). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.

Although the relationship between Kindsfather and Green is disputed (landlord/tenant or seller/owner), the evidence shows conclusively that Kindsfather was occupying the property with Green’s permission. Kindsfather presented evidence that he believed he was purchasing the property rather than leasing it. However, it is uncontested that Kindsfather took no action inconsistent with his agreement with Green that could be construed as “visible appropriation” (because the use was consistent with Green’s permission) from the time he took possession of the property in 1995 until at least 2003, when the special warranty deed was notarized and Kindsfather took out a loan against the property. Thus, Kindsfather presented no evidence to raise a genuine issue of material fact on his defense of adverse possession. We overrule point of error one.

B. No-Evidence Summary Judgment

Kindsfather’s second point of error states, in its entirety:

To overcome a No-Evidence Motion for Summary Judgment, it is incumbent on the nonmovant to produce more than a scintilla of evidence to raise an issue of fact on the challenged allegations. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003); Boales v. Brighton Builders, 29 S.W.3d 159 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The discussion of the facts as recited in Point One shows that Kindsfather has met this burden.

Because Kindsfather relies upon the same arguments that we overruled in our discussion of his point of error one, we overrule point of error two.

C. Off-Set for Improvements

In his third point of error, Kindsfather argues that he provided evidence of substantial improvements and repairs that he made to the property in dispute and “provided a fact issue as to his claims of unjust enrichment, quantum meruit, estoppel, and damages resulting from Green’s breach of contract.” He contends that this evidence should be used “as a recovery or set-off against Green.” We decline to consider this challenge because it contains no legal argument or references to legal authority and is, therefore, inadequately briefed. See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005). We overrule point of error three.


We affirm the judgment of the trial court.

Tim Taft

Panel consists of Justices Taft, Keyes, and Alcala.

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