COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00421-CV
JACK BREWER, INDIVIDUALLY APPELLANT
AND D/B/A RESOLUTION TRUST
CO.
V.
GREEN LIZARD HOLDINGS, L.L.C. APPELLEE
SERIES SR
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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OPINION
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This is an appeal from a summary judgment for Green Lizard Holdings,
L.L.C. Series SR, on its claim for removal of a fraudulent lien against Jack
Brewer, individually and doing business as Resolution Trust Co. We affirm.
Background
Appellee sued appellant under sections 12.001–.002 of the Texas Civil
Practice and Remedies Code, the fraudulent lien statute. Specifically, appellee
contended that after it had purchased a lot in the city of Plano, Denton County,
Texas on May 1, 2012 at a delinquent tax sale, it had discovered that appellant
was occupying the property under a fraudulent deed purportedly signed by a
representative of LTG Jackson Joint Venture, the prior owner of the property.
Appellee also claimed that appellant had further filed a mechanic’s lien on the
property for services rendered after he had recorded the purportedly fraudulent
deed.
In his answer, appellant claimed that appellee lacked standing 1 to bring the
suit because the foreclosure sale at which appellee purchased the property was
invalid, because appellee’s claims are barred by estoppel, and because
attorney’s fees are not available in what appellant refers to as an action to quiet
title. He also brought a counterclaim seeking a declaratory judgment voiding the
sale at which appellee bought the property. Appellant argued that because the
cashier’s check by which appellee purchased the property is from a Sydney
Bellamy, not appellee, there is no evidence that appellee provided the tax
certificate required by section 34.015(b)(1)–(2) of the tax code. Tex. Tax Code
Ann. § 34.015(b)(1)–(2) (West 2008).
Appellee then moved for a traditional summary judgment on the following
grounds: (1) it had standing as the owner of the property to bring suit; (2) it
proved as a matter of law that the prior owner did not convey the property to
1
In an amended answer, he claimed that appellee lacked capacity to sue
him.
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anyone at any time before the property was sold at a foreclosure sale to Wells
Fargo Bank, National Association; (3) the tax sale at which appellee purchased
its interest was regular and valid; and (4) appellee was entitled to reasonable
attorney’s fees. See Tex. R. Civ. P. 166a(a). The trial court granted the
summary judgment and rendered a final judgment for appellee on
September 27, 2012.
Propriety of Summary Judgment
In two issues, appellant contends that the trial court erred by granting the
summary judgment motion on its merits and that the summary judgment is not
final because it did not dispose of his counterclaim. Included in the argument
under his first issue are his contentions that the trial court erred by overruling his
objections to certain parts of appellee’s summary judgment evidence: the
affidavits and attached exhibits of David Kochalka and Robert Miller.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to
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summary judgment on a cause of action if it conclusively proves all essential
elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986).
Objections to Summary Judgment Evidence
Appellant objected to Kochalka’s affidavit on the grounds that it was
conclusory, not the best evidence, and did not show an adequate basis of his
knowledge of the subject matter. In his affidavit, Kochalka averred that he
“is/was” the president of Jackson Ventures, Inc. and a partner in LTG Jackson
Joint Venture, which had owned the lot in Plano, Denton County, Texas. He
further averred that to the best of his knowledge and belief, the joint venture was
the sole owner of the property from September 26, 2008 through April 5, 2011
and that it never sold the property before the foreclosure sale to Wells Fargo on
April 5, 2011. Finally, he averred,
7. I have no knowledge of a Special Warranty Deed dated
April 1, 2011 and filed as Instrument Number 2011-92666 in the
Deed records of Denton County on September 30, 2011 which
purports to show that LTG Jackson JV sold the Property to an
entity calling itself Resolution Trust Co.
8. Neither I, nor any member of my firm, LTG Ventures,
Inc., nor any authorized member of Jackson Ventures, or LTG
Jackson JV sold the Property prior to the foreclosure sale
4/5/2011. I do not know, nor have I ever known the signatory on
that document, Cecil Englhardt. At no time did I authorize Cecil
Englhardt or anyone else to execute a deed on behalf of LTG
Jackson Joint Venture to Resolution Trust Co.
9.[] I do not know, nor have I ever known a company
called Resolution Trust Co owned by someone named Jack
Brewer, nor do I know a person by that name.
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A corporate employee is generally presumed to possess personal
knowledge of facts that he or she would learn in the usual course of employment
without having to otherwise prove personal knowledge. See, e.g., Energico
Prod., Inc. v. Frost Nat’l Bank, No. 02-11-00148-CV, 2012 WL 254093, at *6
(Tex. App.—Fort Worth Jan. 26, 2012, pets. denied) (mem. op.). Therefore,
Kochalka’s identification of himself as a partner in the joint venture that formerly
owned the property sufficiently showed his position and responsibilities and, thus,
was sufficient to show his personal knowledge so that his recitation of facts
regarding the entity was not conclusory. Id. Likewise, the affidavit is not
inadmissible under the best evidence rule. Id.
Appellant’s objections to Miller’s affidavit are similar: that it is self-serving
and conclusory and that it does not show personal knowledge. He also claimed
that the exhibits attached to the affidavit were not sufficient to prove appellee’s
standing or cause of action and further objected to Miller’s averments regarding
attorney’s fees.
Miller averred that he had been hired to represent appellee in the suit and
that a reasonable fee for his services would be $1,800. He also attached
certified copies of documents as summary judgment evidence. Miller filed a
supplemental affidavit in which he detailed additional services provided to
appellee in the case; he also stated that he has been an attorney in Dallas
County since 1978 and is familiar with a reasonable fee for the type of services
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provided. He further detailed the Arthur Andersen factors applicable to this
particular case and why they justified a total fee of $4,500 (at the rate of $300 an
hour for fifteen hours). See Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997) (op. on reh’g). Miller filed second and third
supplemental affidavits, detailing additional services provided to appellee as a
result of additional filings and hearings.
An affidavit filed by a summary judgment movant’s attorney that sets forth
his qualifications, his opinion regarding reasonable attorney’s fees, and the basis
for his opinion is not conclusory and will be sufficient to support summary
judgment if uncontroverted. Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507,
514 (Tex. App.––Fort Worth 2011, pet. denied); see also Tex. Civ. Prac. & Rem.
Code Ann. § 12.002(b)(3) (West Supp. 2012) (providing that a person injured
under the statute may recover reasonable attorney’s fees).
Summary Judgment
Appellant’s objections to the documents attached to Miller’s affidavit go to
the question of whether appellee met its summary judgment burden of proof to
show that there is no fact issue and that it is entitled to summary judgment.
Thus, we will review whether the trial court properly granted summary judgment.
In addition to Kochalka’s and Miller’s affidavits, appellee presented the
following summary judgment evidence: (1) the special warranty deed to
Resolution Trust Co. purportedly signed by Cecil Englhardt as “Authorized Agent”
of LTG Jackson Joint Venture, on April 1, 2011, which was filed in the Denton
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County property records on September 30, 2011; (2) the mechanic’s lien affidavit
filed by appellant on April 30, 2012; (3) a Certificate of Acknowledgement filed by
appellant on April 30, 2012 acknowledging his acceptance of the April 1, 2011
deed and ownership of the property; (4) a May 1, 2012 sheriff’s deed
acknowledging the sale of the property to appellee to satisfy a judgment lien on
the property against Wells Fargo for delinquent taxes; and (5) an April 5, 2011
Substitute Trustee’s Deed to Wells Fargo evidencing foreclosure on the deed of
trust from LTG Jackson Joint Venture as borrower. Also attached to the deed is
an affidavit from the substitute trustee averring that written notice of default and
opportunity to cure within twenty days was given after which he wrote the debtor
giving notice of acceleration of the note’s maturity, in accordance with the deed
of trust; that the notices were mailed via certified mail, return receipt requested,
to the debtor at the most current address; that he concluded that the
requirements of section 51.002(d) of the property code had been fulfilled; that he
mailed a notice of foreclosure sale to the debtor on March 14, 2011, the same
day he posted the notice of foreclosure on the courthouse door and filed the
notice with the clerk of Denton County; and that he confirmed with the official
federal database that the debtor is not in the military.
In his response, appellant contended that an inadequate time for discovery
had passed and that he had not received sufficient notice of the motion.
According to appellant, he did not receive the summary judgment motion until
August 8, 2012. The trial court heard appellee’s motion on September 27, 2012.
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Appellant did not attach evidence relevant to appellee’s claims or his
counterclaim.
To establish its claim for a fraudulent claim against real property, appellee
had to conclusively prove as a matter of law that appellant (1) made, presented,
or used a document with knowledge that it was a fraudulent claim against real
property, (2) intended the document be given legal effect, and (3) intended to
cause financial injury. Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a); Bernard v.
Bank of Am., N.A., No. 04-12-00088-CV, 2013 WL 441749, at *4 (Tex. App.—
San Antonio Feb. 6, 2013, no pet.) (mem. op.). Appellee presented evidence
that a corporate officer of the entity from which appellant purported to take his
title to the property had no knowledge of appellant and that the entity never
conveyed property to appellant. The deed appellant recorded in the property
records is dated before the foreclosure but was not recorded until several months
later. In his own answer, appellant states that he knew the property was
abandoned, neglected, and about to be foreclosed on and that he moved in and
began making repairs. Although he claimed in his answer that he persuaded a
representative of “the current owner” to deed him the property because that
owner had failed to maintain the property, he provided no evidence contradicting
appellee’s evidence that no authorized representative of the prior owner did so.
Nor did he provide any evidence that he filed the documents to protect a
legitimate interest in the property. Additionally, the mechanic’s lien and
certificate of acknowledgment were both filed on April 30, 2012, the day before
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the tax sale. We conclude and hold that the trial court properly granted summary
judgment for appellee on its fraudulent lien claim. See Bernard, 2013 WL
441749, at *4. We overrule appellant’s first issue.
Finality of Summary Judgment
In his second issue, appellant argues that the summary judgment is not
final because it did not dispose of his counterclaim. However, appellee moved
for summary judgment on appellant’s counterclaim under rule 166a(b),
contending that as a matter of law, appellant’s counterclaim was not viable
because section 34.015(b)(1)–(2) requires the “person” purchasing the property
to file a tax certificate and that “person” as defined in the Code Construction Act
does not mean the individual members or shareholders of a corporate entity.
See Tex. Tax Code Ann. § 34.015(b)(1)–(2); Tex. Gov’t Code Ann. § 311.005(2)
(West 2013) (defining “[p]erson” as a “corporation, organization, government or
governmental subdivision or agency, business trust, estate, trust, partnership,
association, and any other legal entity”); Tex. R. Civ. P. 166a(b). Appellant did
not argue any alternative construction in his response, and the trial court’s final
judgment, by granting relief on appellee’s motion for summary judgment,
necessarily denied appellant’s counterclaim. See Karen Corp. v. The Burlington
N. & Santa Fe Ry. Co., 107 S.W.3d 118, 125 (Tex. App.––Fort Worth 2003, pet.
denied). We overrule appellant’s second issue.
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Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
CHARLES BLEIL
JUSTICE
PANEL: GARDNER and WALKER, JJ.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: July 18, 2013
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