COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-009-CV
LARRY WATSON, APPELLANTS
SHERIDAN K. WATSON,
WELDON KENNEDY,
AND THENA KENNEDY
V.
BOBBY J. TIPTON APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
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OPINION
------------
Weldon and Thena Kennedy, their daughter Sheridan Watson, and her
husband Larry (collectively “Appellants”) appeal from the trial court’s grant of
summary judgment for Appellee Bobby J. Tipton. Because we hold that the
trial court did not err by granting summary judgment, we affirm the trial court’s
judgment.
I. F ACTS AND P ROCEDURAL H ISTORY
Weldon owns J.W. Kennedy, Inc. (“JWK”) in Weatherford, Texas. He
and his wife Thena live at 606 Hilltop Drive in Weatherford. Weldon’s daughter
Sheridan and her husband Larry live at 107 Oriole Street in Weatherford.
On June 13, 2005, Tipton filed two declaratory judgment actions—one
against the Kennedys, and the other against the Watsons. In each suit, Tipton
asked the trial court to construe the validity of a warranty deed and to declare
that Tipton held good and marketable title to the property described by the
deed.
In his suit against the Kennedys, Tipton alleged that on September 25,
2001, for consideration, the Kennedys executed a warranty deed (“the Kennedy
deed”) conveying to Tipton the property at 606 Hilltop. He alleged that the
Kennedys retained possession of the property under an agreement that they
would pay all taxes and insurance on the property and that the Kennedys
violated that agreement. He further alleged that in a subsequent forcible
detainer action, the Kennedys raised an issue of title by challenging the validity
of the deed.
Tipton made similar claims in his suit against the Watsons. He alleged
that on September 24, 2001, the Watsons conveyed to him by warranty deed
(“the Watson deed”) property at Lot Fifteen, Block Three in the Rolling Hills
2
Addition of Weatherford, a property known to him to have a municipal address
of 1318 Clear Lake Road, Weatherford, Texas. He claimed that the Watsons
retained possession of the property under an agreement that they would pay all
taxes and insurance on it, that the Watsons violated that agreement, and that
in a subsequent forcible detainer action he brought, the Watsons raised an issue
of title by challenging the validity of the deed.
The declaratory judgment actions were consolidated, and both the
Kennedys and the Watsons filed answers that included verified denials that they
executed the documents forming the basis of the lawsuit, verified denials of
the genuineness of their endorsements on those documents, and the affirmative
defense of release. They subsequently filed amended answers adding the
affirmative defenses of laches and lack of consideration.
After counsel for the Watsons and the Kennedys withdrew, Tipton filed
his first amended motion for traditional and no-evidence summary judgment on
his declaratory judgment action against the Watsons. In his no-evidence
motion, Tipton alleged that the Watsons had no evidence to support their
contentions that they did not execute the deed, that the endorsements on the
deed were not genuine, or that Tipton’s suit was barred by the doctrine of
release. He argued that because the deed was recorded in the public records,
the presumption that the deed is valid applies and that an acknowledgment on
3
a deed is conclusive evidence of the facts stated in the instrument. He restated
these assertions in his traditional motion for summary judgment, and to this
motion, he attached a copy of the Watson deed showing that it had been
recorded in October 2001.
On the same day, Tipton filed his first amended motion for traditional and
no-evidence summary judgment on his declaratory judgment action against the
Kennedys, raising the same arguments with respect to the Kennedy deed as he
raised regarding the Watson deed. He attached to the motion a copy of the
Kennedy deed showing that it had been recorded in January 2003.
The Kennedys and the Watsons, acting pro se, filed an amended answer
alleging that Tipton’s attorney Alex Tandy, either alone or in complicity with
Tipton, fraudulently obtained the signatures of the Watsons and Weldon and
fraudulently appended them to the deeds at issue. The answer also listed
twenty-two affirmative defenses in accordance with rule 94 of the Texas Rules
of Civil Procedure.1
On the same date, the Watsons and the Kennedys filed a joint response
to the summary judgment motions. To their response, they attached a number
of documents that they claimed raised a fact issue. Appellants filed a third
1
… See Tex. R. Civ. P. 94.
4
amended answer on the day of the summary judgment hearing, which included
a counterclaim for fraud and for failing to give constitutional and Federal Truth
in Lending notices and disclosures relating to their homestead property.
The trial court granted summary judgment for Tipton. The court’s order
states that the Kennedy and Watson deeds passed good and marketable title
to Tipton and also awards Tipton attorneys’ fees. The order further states that
it is a final order “and disposes of all claims and causes of action herein.” The
Kennedys and the Watsons appealed.
II. S TANDARD OF R EVIEW
A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of the claim. 2 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. 3 The summary judgment will be affirmed only if the record
2
… See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,
60 (Tex. 1986).
3
… IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
5
establishes that the movant has conclusively proved all essential elements of
the movant’s cause of action or defense as a matter of law. 4
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense.5 The motion must specifically state the
elements for which there is no evidence. 6 The trial court must grant the motion
unless the nonmovant produces summary judgment evidence that raises a
genuine issue of material fact.7 If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact, then
a no evidence summary judgment is not proper.8
4
… City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979).
5
… Tex. R. Civ. P. 166a(i).
6
… Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.
2002).
7
… See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).
8
… Moore v. K Mart Corp., 981 S.W .2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
6
III. A NALYSIS
A. Whether the summary judgment is interlocutory
In Appellants’ second point, they contend that the summary judgment is
interlocutory because it did not dispose of the counterclaim they raised in their
third amended answer. Because this point goes to this court’s jurisdiction, we
consider it first.
A judgment is final if it “disposes of all the remaining parties and claims,
based on the record in the case.” 9 Thus, if Appellants had a pending
counterclaim not disposed of by the judgment, then the judgment was not final.
Rule 63 of the Texas Rules of Civil Procedure provides that amended pleadings
offered within seven days of the trial shall be filed only after the trial court
gives the party leave to do so.10 The trial court shall grant leave to file the
amended pleadings unless the opposing party demonstrates surprise or
prejudice or “the amendment asserts a new cause of action or defense, and
thus is prejudicial on its face, and the opposing party objects to the
amendment.” 11 W e review a trial court’s denial of leave to file amended
9
… Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
10
… Tex. R. Civ. P. 63.
11
… Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990); see also Tex. R. Civ. P. 63, Hardin v. Hardin, 597 S.W.2d 347, 349–50
(Tex. 1980).
7
pleadings for abuse of discretion.12 For purposes of rule 63, a summary
judgment proceeding is a trial.13
In the trial court, Appellants filed their amended pleadings on September
21, 2006, the day of the summary judgment hearing, which clearly was not
within the time period provided by rule 63. Tipton objected to the late filing,
and the court upheld the objection, stating, “These documents are not timely
filed and the Court is not going to consider them today.”
On appeal, Appellants do not argue or cite any authority suggesting that
their amendment did not cause surprise and would not prejudice Tipton, that
their pleadings did not introduce a new substantive matter, or that the trial
court abused its discretion by denying them leave to file the amended pleadings
asserting their counterclaim. They argue only that they had filed a pleading
asserting a counterclaim and that the order granting summary judgment does
not dispose of that claim. Because the record is clear that the trial court denied
Appellants leave to file their third amended original petition and therefore any
new counterclaims asserted in it were not on file at the time the trial court
granted summary judgment, the summary judgment disposed of all the claims
12
… Hardin, 597 S.W.2d at 349–50.
13
… Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex.
1988).
8
before the court at the time of the judgment. Consequently, the summary
judgment is final and not interlocutory.14 We overrule Appellants’ second point.
B. Whether the trial court erred by granting summary judgment
In Appellants’ first point, they argue that the trial court erred by granting
summary judgment for Appellee. We first determine whether the trial court
erred by granting no-evidence summary judgment for Tipton.
Tipton argued in his motion that Appellants had no evidence on their
affirmative defense of release and on their verified denials that they executed
the deeds and that the endorsements on the deeds were genuine. Appellants
argue on appeal that they offered summary judgment proof of each element of
the “three affirmative defenses” for which Tipton claimed that they had no
evidence. As we discuss below, the verified denials relied on by Appellants are
not affirmative defenses subject to a no-evidence summary judgment motion.
Because these matters are not affirmative defenses, and because Appellants do
not raise error with respect to the trial court’s grant of summary judgment on
their other nineteen asserted affirmative defenses, we consider only the
affirmative defense of release.
14
… See Lehmann, 39 S.W.3d at 200.
9
In the trial court, Appellants attached evidence to their response, but they
did not explain to the trial court how any of the evidence supported their
affirmative defenses or raised a genuine issue of material fact on any matter
Tipton was required to prove. They stated only that “the court should deny
[Appellee’s] motion for summary judgment because [Appellants’] Second
Amended Answer and Exhibits[,] attached here[ ]to[ ]this response, . . . created
a fact issue on each el[e]ment of the affirmative defenses.”
Most of Appellants’ evidence falls into two categories: evidence relating
to an agreement between Tipton and Weldon, and evidence relating to a
conveyance by Terry Ellis to Appellants of the properties at issue.
Evidence in the first category includes
• a loan agreement acknowledged on April 5, 2002, between Weldon
as president of JWK and Tipton, which stated that Tipton had
advanced a total of $300,000 to Weldon individually and to JWK,
and that if the money advanced was not repaid by April 20, 2002,
Tipton would buy JWK for $3.5 million, including real property
owned by the company, the legal description of which places it in
the Joel Walker Survey, “locally known as 1318 Clear Lake” in
Weatherford, Texas;
• a certificate of resolutions dated April 5, 2002, filed of record on
May 15, 2002, signed by Weldon as president of JWK resolving
that the “attached agreement” (presumably the loan agreement that
was recorded with the certificate) was adopted as a sales contract;
and
• a letter from Sheridan to Tipton, notifying him that he had
defaulted on the agreement of April 5, 2002, and that the
10
agreement was therefore terminated and the advances would be
retained as liquidated damages.
Evidence in the second category includes the following instruments, all
executed by Terry Ellis as representative of the estate of Vivian Swearingin and
filed of record on October 23, 2002:
• a release of lien, dated June 20, 2002, stating that on September
25, 2001 [the day after the date of the Watson deed], the Watsons
executed and delivered to Ellis a promissory note concerning Lot
Fifteen, Block Three, Rolling Hills Addition, that the note had been
paid in full to Ellis as attorney in fact for Swearingin, and that
therefore Ellis released and quitclaimed all right, title, and interest
in the property described;
• a warranty deed dated June 20, 2002, conveying from Ellis as
attorney in fact for Swearingin to the Watsons all of Swearingin’s
interest in Lot Fifteen, Block Three of the Rolling Hills Addition in
Weatherford;
• a release of lien, dated June 20, 2002, stating that on September
25, 2001, in order to secure a promissory note executed by the
Watsons and payable to Ellis, Weldon had executed and delivered
to Ellis a warranty deed to the property at Lot One, Block Ten,
Roselawn Addition, with a local address of 606 Hilltop Drive, and
that the note had been paid in full to Ellis as attorney in fact for
Swearingin, and Ellis therefore released and quitclaimed all right,
title, and interest in the property described; and
• a warranty deed dated June 20, 2002, conveying from Ellis as
attorney in fact for Swearingin to Weldon her interest in Lot One,
Block Ten, Roselawn Addition, locally known as 606 Hilltop Drive
in Weatherford.
Appellants also contend that they provided evidence supporting their claims in
the form of affidavits attached to their second amended original answer. By
11
“affidavits,” Appellants refer to the fact that their answer was verified as
required for pleas under civil procedure rule 93.15
Appellants argue that their evidence was more than a scintilla to support
their affirmative defense of release. Appellants did not point out to the trial
court evidence supporting their affirmative defense of release as to Tipton, and
they do not do so in their brief on appeal. As best we can determine,
Appellants’ evidence of the defense of release was limited to a statement in
their second amended pleadings that Ellis, acting as the representative of
Swearingin, who they asserted was Tipton’s partner, executed a release and
conveyed the properties back to them after determining that no indebtedness
existed. Generally, a party’s pleadings, even if verified, are not competent
summary judgment evidence. 16 Furthermore, the pleadings here do not meet
the requirements of rule 166a because there is no indication that Appellants
have personal knowledge of the facts contained in them, and they do not assert
facts demonstrating that they have personal knowledge of the conclusions in
their pleadings. For example, there is no indication that Appellants have
personal knowledge of the facts asserted that Tipton or his attorney forged or
15
… See Tex. R. Civ. P. 93 (requiring certain pleas to be verified).
16
… Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656,
660 (Tex. 1995).
12
fraudulently attached Appellants’ signatures to the deeds. Nor is there any
indication that Appellants are competent to testify to those facts. Thus, the
pleadings are not competent summary judgment evidence. 17
Furthermore, Appellants fail to connect the rest of the evidence to their
affirmative defense. Tipton and Swearingin may have been partners—the
appellate record includes a check in the amount of $200,000 from Tipton and
Swearingin to the Watsons, drafted around the same time that the Watson and
Kennedy deeds were executed. But neither the Watsons nor the Kennedys
have raised the argument here or in the trial court that they executed and
delivered the deeds but did so to secure a debt rather than to convey title; they
expressly deny ever executing the deeds. Appellants did not point out to the
trial court or to this court any evidence that the deeds were not given to Tipton
individually, that the deeds were given to Tipton as security for a debt that Ellis
had authority to release, or that Ellis had the authority to convey the properties
to Appellants. A deed does not convey title when no title rests in the grantor, 18
and thus, because Appellants did not produce evidence raising a fact issue as
17
… See id. at 660–61 (holding that verified pleadings were not
competent summary judgment evidence when pleadings did not otherwise meet
requirements of rule 166a).
18
… Day & Co., Inc. v. Texland Petroleum, Inc., 718 S.W.2d 384, 390
(Tex. App.—Amarillo 1986), aff’d, 786 S.W.2d 667 (Tex. 1990).
13
to whether Ellis held title, the deeds from Ellis do not raise a fact issue as to
whether Ellis’s release of lien and warranty deeds defeated Tipton’s right to
recovery. The fact that the deed from Ellis to Weldon was recorded before the
Kennedy deed does not affect our holding. An unrecorded deed is binding on
a party to the deed,19 and thus, the Kennedy deed was binding on Weldon even
while it was unrecorded.20
Because Appellants did not produce more than a scintilla of evidence to
support their affirmative defense of release, the trial court did not err by
granting no-evidence summary judgment for Tipton.
We also hold that Tipton established his right to judgment on his
traditional motion for summary judgment. When a grantor transfers property,
title to the property vests in the grantee upon execution and delivery of the
deed conveying the property.21 Whether the grantor intended to deliver the
deed and convey the property in accordance with the deed is “determined by
examining all the facts and circumstances preceding, attending, and following
19
… Tex. Prop. Code Ann. § 13.001 (Vernon 2004).
20
… See id.
21
… Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257,
261–62 (Tex. 1975).
14
the execution of the instrument.” 22 But proof that the deed was recorded
creates a presumption of and establishes a prima facie case of delivery and
intent by the grantor to convey the land. 23 This presumption may be rebutted
by showing “(1) that the deed was delivered or recorded for a different purpose,
(2) that fraud, accident or mistake accompanied the delivery or recording, or (3)
that the grantor had no intention of divesting himself of title.” 24
Tipton produced copies of the deeds at issue and proof that the deeds
had been filed in the records of Parker County. The notarized deeds named him
as grantee and Appellants as the grantors. The Watson deed described the
property conveyed as Lot Fifteen, Block Three of the Rolling Hills Addition in
Weatherford, Texas, according to the map and plat of that addition in the
Parker County records. The deed from Weldon described the property
conveyed as Lot One, Block Ten, Roselawn Second Addition, “locally known
as 606 Hilltop Drive,” in Weatherford, Texas. By providing the deeds and
proving that the deeds were recorded, Tipton established a prima facie case
that the Watsons and Weldon delivered the deeds and intended to convey the
22
… Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no
pet.).
23
… Swenson, 517 S.W.2d at 261–62; Troxel, 201 S.W.3d at 297.
24
… Swenson, 517 S.W.2d at 262.
15
property described. A showing that the deeds were executed and delivered
with an intent to convey the property is sufficient to establish that the deeds
vested title to the properties in Tipton.25
On appeal, Appellants argue that the deeds are not entitled to the
presumption because the file stamp numbers suggest that the documents were
somehow altered and pages interchanged. Specifically, they point out that the
Watson deed has a file stamp and page number that is quite a bit lower than
the file stamp and page number of the Kennedy deed, indicating that the
Watson deed was filed much earlier than the Kennedy deed, which they argue
is contrary to what one would expect if the deeds had been signed one day
apart. A showing that fraud accompanied the recording of the deeds would
rebut the presumption that Appellants intended to convey the property to
Tipton.26
The evidence shows that the Watson deed was filed in October 2001 and
that the Kennedy deed was filed in January 2003; the Watson deed has a lower
record number because it was filed over a year before the filing of the Kennedy
deed. We have no evidence before us explaining why the Kennedy deed was
25
… Id. at 261–62.
26
… Id. at 262.
16
not filed until 2003, but Appellants make no argument as to how the delay in
filing raises a fact issue on whether fraud accompanied the delivery or
recording.
Appellants also argue that the record number for the Watson deed is
lower than the record number for an agreement between Weldon and Tipton
“which is known to have been executed on April 5, 2001”; Appellants claim
that this implies that the Watson deed was filed before April 5, 2001, which is
at fatal variance with the date on the Watson deed of September 24, 2001.
Whatever the date of the execution of the agreement, the evidence shows that
it was filed on May 15, 2002. Because the Watson deed was filed before that
date, it is no surprise that the Watson deed has a lower record number than the
agreement. This evidence does not raise a fact issue as to the validity of the
deeds or Appellants’ intention to convey the property.
Appellants next argue that with respect to the Kennedy deed, Kennedy’s
wife was required to join in its execution under property code section 41.004,
and because she did not, the deed does not not support Tipton’s declaratory
judgment action. Section 41.004 relates to abandonment of a homestead. 27
27
… Tex. Prop. Code Ann. § 41.004 (Vernon 2000).
17
The plea of homestead is an affirmative defense. 28 Accordingly, Appellants had
to affirmatively plead homestead and cannot raise it for the first time on
appeal.29 Nowhere in the trial court did they plead that the Kennedys’ property
was homestead property and that therefore, because Weldon’s wife did not join
in the deed, the deed was inoperative against her homestead right. Thus, they
cannot raise it now as a ground for reversal.30
Next, Appellants contend that Tipton presented no summary judgment
evidence that he paid consideration for the conveyances. Thus, they argue,
Tipton did not carry his burden of proof. Appellants do not cite any authority
supporting their argument that Tipton had to prove consideration to prevail. 31
And we note that Tipton did not have to prove consideration because mere lack
28
… Svacina v. Gardner, 905 S.W.2d 780, 782 (Tex. App.—Texarkana
1995, no writ); Bennett v. State Nat’l Bank, Odessa, Tex., 623 S.W.2d 719,
722 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).
29
… Clear Creek Basin Auth., 589 S.W.2d at 678 (holding that nonmovant
may raise sufficiency of the evidence for the first time on appeal but that any
other grounds for reversal must have been raised in the trial court).
30
… See id.
31
… See Tex. R. App. P. 38.1(i) (requiring briefs to contain arguments
supported by appropriate citations to authority).
18
of consideration would not have prevented the deeds from conveying title.32
Furthermore, as we discuss below, the acknowledgments on the deeds
constitute prima facie evidence that the deeds were executed for the
consideration stated therein. Finally, lack of consideration is an affirmative
defense on which Appellants, not Tipton, would have had the burden of proof.33
Because Tipton was not required to prove consideration to be entitled to
summary judgment, we reject Appellants’ arguments on the matter.
Appellants next assert that Tipton’s evidence suggests that the property
he alleged was conveyed to him by the Watsons was the JWK plant, which the
Watsons did not have authority to convey, and not the Watsons’ home address,
or if it was the Watsons’ home address, that property was their homestead.
The deed Tipton produced to show a conveyance from the Watsons to Tipton
described the property as Lot Fifteen, Block Three of the Rolling Hills Addition
in Weatherford, Texas, as described in the deed records of Parker County.
32
… Higgs v. Farmer, 234 S.W.2d 1021, 1022 (Tex. Civ. App.—Fort
Worth 1950, no writ) (stating that a conveyance of land need not be supported
by consideration to be effective); see also Uriarte v. Petro, 606 S.W.2d 22, 24
(Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (noting that
ordinarily, want of consideration alone, without a showing of fraud or undue
influence in obtaining the deed, will not be ground for voiding a deed).
33
… See 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101, 103 (Tex. 2004)
(noting that lack of consideration and failure of consideration are affirmative
defenses).
19
Appellants’ claim seems to be based on the fact that in his petition, Tipton
stated that this property “is known to [Appellee] to have a municipal address
of 1318 Clear Lake Road, Weatherford, Parker County, Texas.” They argue
that 1318 Clear Lake Road is the address of the company plant.
The Watsons did not argue to the trial court that the property described
was their homestead or make any argument as to why they could not convey
their homestead, and on appeal they make no argument and cite no authority
suggesting that they could not convey their homestead.34 And although Tipton
may have stated in his petition that the property described in the deed had a
municipal address of 1318 Clear Lake Road, the deed described the property by
lot and block, and in his motion for summary judgment, he asked for a
declaration that the deed passed good title to the property described in the
deed. Appellants did not argue or point to any evidence demonstrating that the
property described by lot and block was the same property as the 1318 Clear
Lake Road property or that the Watsons could not legally convey such property.
34
… See Tex. R. App. P. 33.1(a), 38.1(i); Pheng Invs., Inc. v. Rodriquez,
196 S.W.3d 322, 332 (Tex. App.—Fort Worth 2006, no pet.) (holding that
Appellants forfeited review of argument for which no authority or argument was
provided on appeal); Wilcox v. Hempstead, 992 S.W.2d 652, 656–57 (Tex.
App.—Fort Worth 1999, no pet.) (holding that argument is waived if not raised
in the trial court).
20
Furthermore, the trial court’s judgment described the property conveyed by the
lot and block description, not by a street address. We therefore reject
Appellants’ argument that Tipton’s evidence did not support a finding that the
Watson deed conveyed to him the property described in the deed.
Finally, we consider the effect of the verified denials by the Watsons and
by Weldon with respect to their execution of the deeds and the genuineness of
the endorsements on them. As stated above, these verified denials are not
affirmative defenses; they rebut the factual propositions of Tipton’s pleadings,
as opposed to accepting “the existence at one time or another of a prima facie
case” and establishing an independent reason why, even if he proves his
claims, he should not be allowed to recover. 35 Under rule 93 of the rules of civil
procedure, if Appellants had not made the verified denials, then the deeds and
the endorsements on them would have been accepted into evidence as fully
35
… See Heggy v. Am. Trading Employee Ret. Account Plan, 123 S.W.3d
770, 778 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (noting that
“[a]n affirmative defense does not rebut the factual proposition of the plaintiffs’
pleading, but instead, allows the defendant to introduce evidence to establish
an independent reason why the plaintiff should not prevail” and that “[a]n
affirmative defense generally accepts the existence at one time or another of
a prima facie case”); see also Tarrant County Hosp. Dist. v. GE Auto. Servs.,
Inc., 156 S.W.3d 885, 895 (Tex. App.—Fort Worth 2005, no pet.) (noting that
“[a]n affirmative defense establishes an independent reason why the plaintiff
should not recover on its asserted cause of action”).
21
proved.36 Because Appellants did make these verified denials, Tipton was
required to prove that Appellants executed the deeds and that the
endorsements on the deeds were genuine.
Both deeds were acknowledged and notarized by Lana Trimble, a notary
public of the State of Texas. The acknowledgment on the Watson deed states
that Larry and Sheridan Watson personally appeared before Trimble and
acknowledged that they executed the deed for the purpose and consideration
expressed in it.37 The acknowledgment on the Kennedy deed states that
Weldon appeared before her and made an identical acknowledgment. An
acknowledgment on a deed is prima facie evidence that the grantor executed
the deed for the consideration expressed in the deed. 38 Tipton therefore made
36
… See Tex. R. Civ. P. 93.
37
… See Tex. Civ. Prac. & Rem. Code Ann. § 121.006(b)(1) (Vernon
2005) (defining “acknowledged” as meaning “that the person personally
appeared before the officer taking the acknowledgment and acknowledged
executing the instrument for the purposes and consideration expressed in it”).
38
… See Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330
(Tex. App.—Dallas 1987, writ denied) (stating that “[t]he law is settled that a
certificate of acknowledgment is prima facie evidence that [the grantor]
appeared before the notary and executed the deed in question for the purposes
and consideration therein expressed” and that “[c]lear and unmistakable proof
that either the grantor did not appear before the notary or that the notary
practiced some fraud or imposition upon the grantor is necessary to overcome
the validity of a certificate of acknowledgment”).
22
a prima facie case as to the genuineness of Appellants’ signatures and as to
Appellants’ execution of the deeds. 39 To defeat Tipton’s right to recover on
these grounds, Appellants would have had to present clear evidence sufficient
to raise a fact issue on whether they executed the deeds or endorsed them.40
They produced no such evidence.
Having held that Tipton produced sufficient evidence to establish his right
to judgment and that Appellants failed to produce evidence raising a genuine
issue of material fact as to his right to judgment and failed to produce evidence
on their affirmative defense, we overrule their first point.
C. Whether the trial court erred by vacating a previously granted motion for
new trial
In Appellants’ third point, they argue that the trial court erred by
“ungranting” a previously granted motion for new trial because it did so outside
of its plenary power.
On October 24, 2006, Appellants filed a motion for new trial. By that
time, they had obtained new counsel. On January 5, 2007, the trial court
entered an order stating that the motion was granted. Tipton filed a motion to
reconsider in which he alleged that the new trial had been granted as to Weldon
39
… See id.
40
… See id.
23
only and asking the court to reconsider its ruling. On January 12, 2007, the
trial court entered an order vacating its order on the motion for new trial.
The order granting the motion for new trial was signed on the 105th day
after the court entered final judgment. This order was within the trial court’s
plenary power. 4 1 But Appellants, relying on the Supreme Court of Texas’s
opinion in Porter v. Vick,42 argue that a trial court loses power to set aside a
previously granted motion for new trial seventy-five days after final judgment,
and thus, because the motion for new trial in this case was granted after that
time period, the trial court could not have vacated the motion. After the parties
filed their briefs in this case, the supreme court overruled Porter v. Vick.43 In
Baylor Medical Center, the supreme court held that when a new trial is granted,
“the case stands on the trial court’s docket ‘the same as though no trial had
been had.’” 44 Thus, the trial court has the power to set aside an order granting
41
… See Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985); Tex. R.
Civ. P. 329b(a), (c), (e).
42
… 888 S.W.2d 789 (Tex. 1994).
43
… See In re Baylor Med. Ctr. at Garland, No. 06-0491, 2008 WL
3991132, at *3 (Tex. Aug. 29, 2008) (orig. proceeding) (internal citations
omitted).
44
… Id. at *2 (internal citations omitted).
24
a motion for new trial “any time before a final judgment is entered.” 45 Because
the trial court had the power to set aside the new trial order at any time before
a new final judgment was entered, the trial court did not err by “ungranting” the
motion. We overrule Appellants’ third point.
IV. C ONCLUSION
Having overruled each of Appellants’ points, we affirm the trial court’s
judgment.
LEE ANN DAUPHIINOT
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DELIVERED: November 6, 2008
45
… Id.
25