Debra Gilder, Independent Administrator of the Estate of Johnny Allen Gilder, Sr. v. Cecil Boykin, Henry Chavez, Christina Chavez, Andres Alvarado, and Diana Francisco

Reversed and Remanded and Memorandum Opinion filed August 23, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00783-CV

DEBRA GILDER, INDEPENDENT ADMINISTRATOR OF THE ESTATE
OF JOHNNY ALLEN GILDER, SR., Appellant
V.

CECIL BOYKIN, HENRY CHAVEZ, CHRISTINA CHAVEZ, ANDRES
ALVARADO, AND DIANA FRANCISCO, Appellees

On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 18-10-25206

MEMORANDUM OPINION

This is an appeal of a no-evidence summary judgment in favor of appellees.
On appeal, appellant argues that the trial court erred in (1) granting appellees’ no-
evidence summary judgment motion and (2) failing to recuse or disqualify himself.
We reverse and remand for further proceedings.
 I. NO-EVIDENCE SUMMARY JUDGMENT MOTION

In her third issue, appellant argues that the trial court erred in considering
the “conclusory” no-evidence summary judgment motion. In her fourth issue,
appellant argues that the trial court erred in granting the no-evidence summary
judgment motion because the evidence submitted to the trial court showed genuine
issues of material fact on each element of her claim to quiet title.

A. General Legal Principles

We review a grant of summary judgment de novo. KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). The movant in a no-evidence summary
judgment motion contends that no evidence supports one or more essential
elements of a claim for which the nonmovant would bear the burden of proof at
trial. Id. Unless the nonmovant raises a genuine issue of material fact on each
challenged element the trial court must grant the motion. Id. The purpose of
identifying the challenged elements is to provide the nonmovant with adequate
information to oppose the motion. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
311 (Tex. 2009).

“[I]f a motion brought solely [as a no-evidence summary judgment] attaches
evidence, that evidence should not be considered unless it creates a fact question,
but such motion should not be disregarded or treated as a motion under subsection
(a) or (b) [of Rule 166a of the Texas Rules of Civil Procedure].” Binur v. Jacob,
135 S.W.3d 646, 651 (Tex. 2004). Generally, pleadings do not qualify as
summary-judgment evidence, even if sworn or verified. Regency Field Servs v.
Swift Energy Oper., LLC, 622 S.W.3d 807, 817 (Tex. 2021); Laidlaw Waste Sys.
(Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–61 (Tex. 1995). A party is
not permitted to rely on factual assertions contained in its own petition as summary

2
judgment proof. Regency Field Servs., 622 S.W.3d at 819; Hidalgo v. Surety S&L
Ass’n, 462 S.W.3d 540, 545 (Tex. 1971).

B. Factual Background

In October 2018, appellant Debra Gilder, Independent Administrator of the
Estate of Johnny Allen Gilder, Sr., filed a lawsuit to quiet title to real property
alleged to be partially owned by her husband, Johnny Allen Gilder, Sr. (Decedent),
at the time of his death. In the petition, appellant alleged that Decedent and his
brother Clarence Gilder (Brother) were co-owners of two lots. Decedent and
Brother’s interest in the two lots is evidenced by a deed dated October 2004 from a
grantor to both Decedent and Brother (First Deed). In her petition, appellant
alleged that a party alleging to be the heir of Brother purported to transfer
Brother’s interest in the two lots in fee simple to appellee Cecil Boykin in a deed
dated December 2013 (Boykin Deed). Appellant further alleged that Brother was
not deceased, so his purported heir could not have transferred Brother’s interest in
the deed to Boykin. Appellant alleged that the deed from Brother’s alleged heir to
Boykin purported to transfer the lots in fee simple to Boykin, despite not having
mentioned Decedent’s interest in the real property. Boykin then transferred one lot
to appellees Andres Alvarado and Diana Francisco by Special Warranty Deed
dated December 2017 (Alvarado Deed) and transferred another lot to appellees
Henry Chavez and Christina Chavez by Special Warranty Deed dated January
2018 (Chavez Deed). All of the above-mentioned deeds were attached to
appellant’s petition.

Appellant filed suit to quiet title against appellees alleging that their claims
to the two lots were clouding Decedent’s interest in the two lots. Appellees moved
for no-evidence summary judgment alleging that appellant had no evidence of any
of the three elements to a quiet title claim. Appellees attached the petition and

3
exhibits (the deeds referenced above and the trial court’s docket history) to their
no-evidence motion. Appellant did not file a response to the no-evidence motion.1
The trial court granted the motion and rendered a take-nothing judgment against
appellant.

C. Analysis

Appellant first argues that appellees’ motion is conclusory and fails to set
out specifically what elements were unsupported by evidence. We reject
appellant’s contention that appellees did not “set out any particular element of the
claims” on which appellant had no evidence. The motion sets out specifically
three elements of appellant’s claims that appellees alleged were unsupported by
any evidence. In the No-Evidence Summary Judgment Motion, appellees argued
that appellant had no evidence of: (1) “any interest in a specific property;” (2)
“[t]itle to the property is affected by a claim by a defendant; and” (3) “[t]he
[appellees’] claim, though facially valid, is invalid and unenforceable.” This is
sufficient under the Texas Rules of Civil Procedure. See Timpte Indus., 286
S.W.3d at 311 (motion stating in the “Conclusion” section the elements upon
which there was no evidence was sufficient to provide nonmovant notice of the
elements being challenged). We overrule appellant’s third issue.

Appellant next argues that appellees’ no-evidence motion fails because the
evidence attached to the motion raises a genuine issue of material fact on all three
elements challenged by appellees in the no-evidence motion. Appellees attached
the original petition and exhibits, namely four deeds conveying the two lots, to the
no-evidence motion. The First Deed shows appellant’s interest in the real property

1
In her second issue appellant argues that she did not receive proper notice of the no-
evidence summary judgment submission. Because we conclude that the no-evidence summary
judgment was improperly granted, we need not reach this issue.

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and there is no subsequent deed or testimony to show that appellant had ever
relinquished this interest. Looking at the evidence in the light most favorable to
the nonmovant, the deed is sufficient to raise a genuine issue of material fact as to
element one—appellant’s interest in a specific property. See MCG Drilling
Invests., LLC v. Double M Ranch, Ltd., No. 11-14-00299-CV, 2018 WL 2022590,
at *7 (Tex. App.—Eastland Apr. 30, 2018, no pet.).

The Boykin Deed shows that an alleged heir of Brother transferred the two
lots to appellee Boykin in fee simple. The Boykin Deed does not purport to
transfer Decedent’s interest in the real property and makes no mention of said
interest. The Boykin Deed further fails to connect the grantor with the title to the
real property. See Rilling v. Munoz, 344 S.W.2d 696, 697 (Tex. App.—San
Antonio 1961, writ ref’d n.r.e.) (concluding plaintiff’s claim to title was not
evidenced through deed from a purported widow of prior owner to plaintiff
because there was “no proof in this record as to when the [prior owner of real
property] died, or that he is in fact dead, or whether he died testate or intestate, or
whether administration was granted or was necessary, nor are there any other facts
in the record which would connect said grantors [purported widow] with the title to
said lot.”). Looking at the evidence in the light most favorable to the nonmovant,
the deed is sufficient to raise a genuine issue of material fact as to elements two
and three—title to the two lots is affected by a claim of an appellee and that the
appellee’s claim, though facially valid, is invalid and unenforceable. See Rife v.
Kerr, 513 S.W.3d 601, 614 (Tex. App.—San Antonio 2016, pet. denied)
(concluding fact issue remained where only one of the cotenants in the disputed
property transferred his half interest to another); see also Rilling, 344 S.W.2d at
697.

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 Further, the Chavez and Alvarado Deeds purport to transfer interest in the
real property from appellee Boykin to the other appellees. The Chavez and
Alvarado Deeds were recorded in the real property records in Waller County,
Texas, and thus, appellees’ claims to the real property are “facially” valid.
However, when reviewing all the deeds together, it becomes apparent that a
grantor, Decedent, is missing. Even assuming that the Boykin Deed is a valid
transfer of Brother’s interest, there is no deed showing any transfer of Decedent’s
interest in the two lots. Reviewing the chain of title from the First Deed to the
Chavez and Alvarado Deeds demonstrates a break in the chain of title and
undermines appellees’ claims to the two lots. Looking at the evidence in the light
most favorable to the nonmovant, this is sufficient to raise a genuine issue of
material fact as to elements two and three—title to the two lots is affected by a
claim of an appellee and that the appellees’ claim, though facially valid, is invalid
and unenforceable.

Appellees argue that “appellees collectively are bona fide purchasers” and
that this court cannot “simply overrule the trial court’s judgment without
something concrete in the record that evidences fraud or something toward and
tawdry on the part of Appellees.” Appellees then argue regarding their status as
“bona fide purchasers.” However, appellees’ status as alleged bona fide purchasers
is an affirmative defense on which appellees have the burden of proof. Madison v.
Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (“Status as a bona fide purchaser is an
affirmative defense to a title dispute.”). Appellees cannot file a no-evidence
summary judgment motion on a defense on which they have the burden of proof.
Waite v. Woodard, Hall & Primm, P.C., 137 S.W.3d 277, 280 (Tex. App.—
Houston [1st Dist.] 2004, no pet.). Additionally, appellant’s suit to quiet title does
not require appellant to prove fraud or any “toward or tawdry” conduct on the part

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of appellees. Appellees have failed to cite to any case law that requires such a
showing, and we have been unable to find any.2

We sustain appellant’s fourth issue.

II. RECUSAL AND DISQUALIFICATION

Appellant argues that the trial court judge should have “disqualified himself
when a member of his staff was an apparent witness in the proceeding.” Appellant
argues that because the trial court’s coordinator3 was “an apparent witness” in the
proceeding that the trial court judge should have disqualified himself. Appellant
asserts “[t]o Appellant, . . . as a reasonable person on the street, there would
necessarily be a question concerning the impartiality of the Judge concerning the
validity of the deeds presented by [appellees] in this matter since the Grantor’s
oath was taken by the Judge’s coordinator.”

A. General Legal Principles

“Judges may be removed from a particular case either because they are
constitutionally disqualified, Tex. Const. art. V, §11, . . . or because they are
recused under rules promulgated by this Court. Tex. R. Civ. P. 18a, 18b; Tex. R.
App. P. 16.” In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998). The
procedure and grounds for each type of removal are fundamentally different. Id.
“[A]ny orders or judgments rendered by a judge who is constitutionally
disqualified are void and without effect.” Id.

2
Appellees further did not move for summary judgment on this ground, and as a result, it
cannot be a basis for upholding the trial court’s judgment. See Tex. R. Civ. P. 166a(c); see also
G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (“Summary judgments, however,
may only be granted upon grounds expressly asserted in the summary judgment motion.”).
3
The coordinator allegedly notarized the Chavez and Alvarado Deeds.

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 Conversely, the “erroneous denial of a recusal motion does not void or
nullify the presiding judge’s subsequent acts.” Id. A judgment in such
circumstances may be reversed but is not “fundamental error” and can be waived if
not properly raised by motion. Id. If the trial court abused its discretion in
denying the motion for recusal and the trial court judge should have been recused,
the remedy is to reverse the judgment and remand for a new trial before a new
judge. Id. To preserve an issue of recusal for appeal, a party must file a motion
pursuant to the requirements of Rule 18a of the Texas Rules of Civil Procedure.
See Tex. R. App. P. 33.1(a); Johnson v. Sepulveda, 178 S.W.3d 117, 118 (Tex.
App.—Houston [14th Dist.] 2005, no pet.).

B. Recusal

There is no recusal motion in the appellate record and appellant fails to cite
to any to demonstrate that this argument is preserved on appeal. Because there is
no indication that appellant raised the issue of recusal to the trial court prior to
appeal, this issue is not preserved. See Tex. R. App. P. 33.1(a); Johnson, 178
S.W.3d at 118 (failure to strictly follow recusal procedures in Rule 18a resulted in
waiver of issue on appeal); Galvan v. Downey, 933 S.W.2d 316, 321 (Tex. App.—
Houston [14th Dist.] 1996, writ denied) (ruling that the error was not preserved
when there was no record of a motion to recuse).

C. Constitutional Disqualification

Constitutional disqualification may be raised for the first time on appeal.
McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.—Houston [1st Dist.] 1995,
writ denied); see also Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148
(Tex. 1982). There are three independent grounds for disqualification: (1) that the
judge served as a lawyer in the matter in controversy, or a lawyer with whom the
judge previously practiced law served during such association as a lawyer
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concerning the matter; (2) the judge has a financial interest in the case; or (3) either
party is related to the judge within the third degree by affinity or consanguinity.
TEX. CONST. art. V, § 11; Tex. R. Civ. P. 18b(a).

Here, appellant argues that the appearance of impartiality should result in
constitutional disqualification of the trial court judge. Appellant’s allegations
regarding recusal and disqualification are regarding a notary named Sheila Mundy.
Mundy notarized both the Chavez and Alvarado Deeds. Allegedly the same Sheila
Mundy is also the trial court’s coordinator.4 There is no indication in the record
that Mundy is an attorney or that Mundy is related to the trial court judge.
Appellant only alleges that Mundy may be a fact witness in the case.

The appearance of partiality is not a basis for disqualification of a judge in
Texas. In re Wilhite, 298 S.W.3d 754, 758 ((Tex. App.—Houston [1st Dist.] 2009,
no pet.); see also Tex. R. Civ. P. 18b(a). Instead, and unlike its federal
counterpart, the appearance of partiality is a basis for recusal. See In re Wilhite,
298 S.W.3d at 758 (“This part of the federal rule for disqualification matches the
Texas rule for recusal that states that a ‘judge shall recuse himself in any
proceeding in which: (a) his impartiality might reasonably be
questioned.’”(emphasis omitted) (citing Tex. R. Civ. P. 18b(2)). The only grounds
for constitutional disqualification are the three recited above. See id. There is no
evidence in the record that the trial court judge meets any of the three grounds for
disqualification.

We overrule appellant’s first issue.

4
We note that aside from having the same name and appellant’s allegations, there is no
evidence in the record that the notary and the coordinator are the same person.

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 III. CONCLUSION

We conclude the trial court erred in granting the no-evidence motion for
summary judgment. We further conclude that the trial court judge was not
constitutionally disqualified and appellant failed to preserve her issue regarding
recusal of the trial court judge. We reverse the judgment of the trial court and
remand the case to the trial court for further proceedings.5

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Spain, and Hassan.

5
We need not address appellant’s remaining issue because addressing it would not afford
appellant greater relief or change the disposition on appeal. See Tex. R. App. P. 47.1.

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