Timothy Brooks v. Wells Fargo Bank, N.A.

AFFIRM; and Opinion Filed April 28, 2017.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00550-CV

TIMOTHY BROOKS, Appellant
V.
WELLS FARGO BANK, N.A., Appellee

On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-13646

MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Appellant Timothy Brooks (“Brooks”) appeals the trial court’s order granting summary

judgment in favor of appellee Wells Fargo Bank, N.A. (“Wells Fargo”) in a suit Brooks initiated

to quiet title to certain real property (the “Property”). Brooks contends the judgment must be

reversed because: (1) the order of dismissal is broader than the relief requested by Wells Fargo’s

motion; (2) Wells Fargo failed to support its motion with admissible evidence; (3) a fact issue

exists; and (4) Wells Fargo cannot establish it has superior title to the Property. We affirm the

trial court’s judgment. See TEX. R. APP. P. 43.2(c). Because all issues are settled in law, we

issue this memorandum opinion. Id. 47.4.
 BACKGROUND

The record before this Court establishes the following. At one time, Brooks’ parents co-

owned the Property. Brooks’ father died in 1974, at which point, Brooks’ mother became the

sole owner of the Property. On January 15, 1983, Brooks’ mother conveyed the Property to

Brooks. The public records include the filing on July 26, 1989, of a quitclaim deed by which

Brooks conveyed all of his right, title, and interest in and to the Property back to his mother.

That deed bears a notary acknowledgement on July 12, 1989, and a signature date of July 15,

1983.

On February 22, 2000, Brooks’ mother obtained a home–equity loan on the Property

from New Century Mortgage by which she granted it a security interest in the Property and the

power to sell the Property following a default on the loan. In 2003, she defaulted on the loan,

and the Property was sold at foreclosure to T.R. Taylor, Inc.

On July 29, 2004, T.R. Taylor, Inc. sold the Property to Allen R. Sheffield. In connection

with the sale, Sheffield executed a deed of trust, which granted Summit Mortgage Corporation a

security interest in the Property. The deed of trust included the power to sell the Property

following a default on the loan.

Thereafter, Brooks filed an eviction action against Sheffield and obtained a judgment

from the justice court on November 14, 2005, awarding him possession of the Property as

against Sheffield. On July 26, 2006, Brooks obtained a home–equity loan from Beneficial

Texas, Inc., which was purported to be secured by a lien on the Property.

Sheffield defaulted on his 2004 loan with Summit Mortgage Corporation, which had

subsequently been transferred and assigned to Washington Mutual Bank (“WAMU”), and

WAMU purchased the Property at a foreclosure sale on November 7, 2006. Thereafter, WAMU

filed a forcible entry and detainer action against Sheffield and all other occupants of the

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Property, and obtained a judgment on February 19, 2007, awarding it possession of the Property.

Brooks appealed that decision to the county court at law. On October 18, 2007, WAMU filed a

separate suit against Brooks in the district court. Both the county court at law and the district

court cases were stayed pending the resolution of the other. On December 5, 2012, the district

court dismissed WAMU’s case against Brooks having concluded WAMU no longer existed due

to the Federal Deposit Insurance Corporation’s (“FDIC”) take-over of its assets. The record

does not show the status or disposition of Brooks’ appeal of the judgment in favor of WAMU to

the county court at law.

On September 25, 2014, the FDIC, as receiver for WAMU, assigned Sheffield’s deed of

trust to Wells Fargo. And on October 13, 2014, JP Morgan Chase Bank, as attorney-in-fact for

the FDIC, conveyed the Property to Wells Fargo.

Wells Fargo then filed a forcible entry and detainer action against both Sheffield and

Brooks. The justice court entered judgment in favor of Sheffield and Brooks, which was later

reversed on appeal by the county court at law. Brooks appealed the county court at law’s

decision to this Court. That appeal is currently pending before this Court. See Brooks v. Wells

Fargo Bank, N.A., No. 05-16-00616-CV.

On November 21, 2014, Brooks, as a pro se plaintiff, sued Wells Fargo to quiet title to

the Property. Wells Fargo answered generally denying Brooks’ allegations and asserting various

defenses, including limitations. On January 7, 2016, Wells Fargo moved for summary judgment

on no-evidence and traditional grounds. In support of its no-evidence motion for summary

judgment, Wells Fargo asserted there is no evidence of Brooks’ ownership interest in the

Property, and no evidence that Wells Fargo’s title to the Property is invalid or unenforceable. As

grounds for traditional summary judgment, Wells Fargo asserted: (1) Brooks’ quiet title suit is

time-barred; (2) Brooks cannot demonstrate an ownership interest in the Property because the

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documents upon which he relies do not establish that Brooks has an ownership interest in the

Property; and (3) Wells Fargo has superior title to the Property.

On March 14, 2016, the trial court granted Wells Fargo’s motion without specifying its

reasons for doing so, and ordered “that all of the claims that Plaintiff Timothy Brooks

(“Plaintiff”) asserted or could have asserted against Defendant Wells Fargo Bank, N.A. in the

above-referenced lawsuit are DISMISSED WITH PREJUDICE.” Brooks filed a motion for new

trial, which was overruled by operation of law. This appeal followed.

DISCUSSION

We address Brooks’ challenges to the trial court’s decision to grant summary judgment

before we address Brooks’ challenge to the portion of the order dismissing all claims Brooks

could have asserted against Wells Fargo.

I. Admissibility of Wells Fargo’s Summary Judgment Evidence

In his second issue, Brooks contends the trial court committed reversible error by

granting summary judgment because Wells Fargo did not support the motion with an affidavit as

to the veracity and truthfulness of its evidence. In essence, Brooks asserts that all of Wells

Fargo’s evidence was inadmissible, and thus, cannot support a summary judgment. Affidavits

are just one form of evidence that is admissible to support a motion for summary judgment. A

defendant may move with or without supporting affidavits for a summary judgment in his favor.

TEX. R. CIV. P. 166a(b).

Rather than support its motion for summary judgment with an affidavit, Wells Fargo

submitted certified copies of public records concerning the Property. 1 Under the rules of

evidence, certified copies of public records are self-authenticating and do not require extrinsic

1
We note that Wells Fargo included a copy of its forcible entry and detainer petition against Sheffield and all other occupants that is not
certified. This document is not pivotal to the summary judgment.

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evidence of authenticity, such as an affidavit, in order to be admitted. TEX. R. EVID. 902(4).

Public records, such as those offered by Wells Fargo, are excepted from the rule against hearsay.

TEX. R. EVID. 803(8). Accordingly, we resolve Brooks’ second issue against him.

II. Summary Judgment

In his third and fourth issues, Brooks challenges the summary judgment, claiming a

question of fact exists and Wells Fargo cannot show superior title to the Property. Wells Fargo

filed both traditional and no-evidence motions for summary judgment. When a party files both

grounds for summary judgment, we must uphold the summary judgment if it can be sustained

under either method. Ketter v. ESC Med. Sys., Inc., 169 S.W.3d 791, 799 n.3 (Tex. App.—

Dallas 2005, no pet.). Although when both no-evidence and traditional summary judgment

motions are filed we usually address the no-evidence motion first, see Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004), here we will review the propriety of granting the

traditional summary judgment first because it is dispositive. See TEX. R. APP. P. 47.1.

We review a trial court’s granting of summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A traditional summary judgment motion may

be granted when “there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); Tex. Commerce Bank, N.A. v.

Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). “A defendant who conclusively negates at least one of

the essential elements of the plaintiff’s cause of action is entitled to summary judgment.” Little

v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004) (citing Randall’s Food

Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In a suit to quiet title, the plaintiff

must show: (1) that he has a right of ownership; and (2) that the adverse claimant has an invalid

claim to the property. Wilner v. Deutsche Bank Nat. Trust Co., No. 02-11-00287-CV, 2012 WL

6632508, at *3 (Tex. App.—Fort Worth Dec. 21, 2012, no pet.)(mem. op.). We must now

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determine whether Wells Fargo conclusively negated either Brooks’ right to ownership of the

Property, or any assertion that its claim of ownership is invalid.

In support of its traditional motion for summary judgment, Wells Fargo submitted

certified copies of: (1) the warranty deed conveying the Property to Brooks; (2) the quitclaim

deed conveying any right, title, and interest Brooks had in the Property back to Brooks’ mother;

(3) the home equity security instrument executed by Brooks’ mother; (4) the corrected substitute

trustee’s deed conveying the Property to T.R. Taylor, Inc.; (5) the warranty deed from T.R.

Taylor, Inc. to Sheffield; (6) the deed of trust executed by Sheffield in connection with his

purchase of the Property; (7) the justice court’s judgment awarding Brooks possession of the

Property; (8) the mortgage executed by Brooks after he obtained the judgment of possession; (9)

the substituted trustee’s deed conveying the Property to WAMU; (10) the justice Court’s

judgment awarding WAMU possession of the Property; (11) the appeal bond Brooks filed to

appeal the justice court’s decision; (12) the register of actions for the appeal of the justice court’s

judgment in favor of WAMU to the county court at law; (13) the docket sheet for the suit

WAMU filed against Brooks in the district court; (14) the corporate assignment of deed of trust

conveying the deed of trust executed by Sheffield in favor of Summit Mortgage Corporation, that

was subsequently transferred and assigned to WAMU, to Wells Fargo; and (15) the warranty

deed conveying the Property to Wells Fargo. In addition, Wells Fargo submitted an uncertified

copy of the forcible detainer petition it filed against Sheffield and all other occupants.

In response to Wells Fargo’s no-evidence and traditional summary judgment motions,

Brooks submitted: (1) the warranty deed from his mother; (2) the justice court’s judgment

awarding him possession of the Property as against Sheffield; (3) the mortgage he executed after

obtaining the judgment for possession, along with a voluntary designation of homestead, and an

affidavit and agreement; (4) a report from TETRS, LLC to his lender concerning the Property;

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(5) the order closing the district court case WAMU filed against Brooks; (6) the county court at

law’s order abating Brooks’ appeal of the justice court’s judgment in favor of WAMU; (7) the

order dismissing WAMU’s district court case for want of jurisdiction due to the FDIC’s seizure

of its assets; (8) the memorandum opinion and order of the United States District Court, Dallas

Division, remanding the case to the trial court after Wells Fargo removed the case to federal

court; (9) a motion for dismissal without prejudice of a justice court eviction case WAMU, its

successors and assigns, maintained against Sheffield and the occupants; and (10) the district

court’s order sustaining Wells Fargo’s plea to the jurisdiction in this case.

To establish Brooks does not have an ownership interest in the Property, Wells Fargo

presented and relied on a certified copy of the quitclaim deed whereby Brooks conveyed any

right, title, and interest he had in the Property to his mother. In response, Brooks asserted the

quitclaim deed did not transfer any interest he had in the Property because the deed shows

fraudulent actions and does not contain a warranty of title. On appeal, Brooks asserts because

the quitclaim deed contains a signature date of July 15, 1983, and a notary acknowledgement

date of July 12, 1989, a fact issue exists as to whether the quitclaim deed was forged, precluding

a grant of summary judgment in favor of Wells Fargo. We disagree. There is no requirement

that the signature date and the acknowledgement dates be the same. TEX. CIV. PRAC. & REM.

CODE ANN. § 121.008 (West Supp. 2016). Instead, the document must be acknowledged or

sworn to before and certified by an officer authorized to take acknowledgements or oaths before

it can be recorded in the public records. See TEX. PROP. CODE ANN. § 12.001(b) (West 2014).

The acknowledgment on the quitclaim deed does not say Brooks signed the deed before the

notary on the date of acknowledgement, rather it says: “This day appeared Timothy Wayne

Brooks. This Instrument was acknowledged before me on the 12th day of July, 1989.” The

quitclaim deed was filed in the property records on July 26, 1989, and was acknowledged to

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prior to the recording. Thus, the deed complied with the statutory requirements for recordation.

The difference in the signature and the acknowledgement dates does not create a fact issue as to

whether the signature was forged, and Brooks did not present an affidavit or any other evidence

to raise a fact issue as to the validity of the signature on the quitclaim deed.

As to Brooks’ assertion that quitclaim deed is not operative because it does not contain a

warranty of title, the very essence of a quitclaim deed is the conveyance of the grantor’s rights in

that property, if any, without professing that such title is valid, nor containing any warranty or

covenants for title. Geodyne Energy Income v. Newton Corp., 161 S.W.3d 482, 486 (Tex. 2005);

Apex Fin. Corp. v. Garza, 155 S.W.3d 230, 236 (Tex. App.—Dallas 2004, pet. denied). The

supreme court has long recognized the validity of quitclaim deeds. Geodyne, 161 S.W.3d at 486.

Thus, the fact that a quitclaim deed does not contain a warranty of title does not invalidate the

conveyance of any and all interest the grantor has in the property.

The justice court’s judgment awarding Brooks possession of the Property and ordering

Sheffield and all other occupants to vacate the Property does not establish title to the Property.

In fact, a justice court is expressly denied jurisdiction to determine or adjudicate title to land.

TEX. GOV’T CODE ANN. § 27.031(b)(4) (West Supp. 2015); Rice v. Pinney, 51 S.W.3d 705, 708

(Tex. App.—Dallas 2001, no pet.). A forcible detainer only addresses who, as between the

parties appearing, has the superior right to possess the property, not who has title to it. Rice, 51

S.W.3d at 708. A right to possession of property is not synonymous with fee ownership of

property. An owner is “one who has the legal or rightful title” regardless of whether the person

is also in possession. Bennett–Barnes Invs. Co. v. Brown Cnty. Appraisal Dist., 696 S.W.2d 208,

209 (Tex. App.—Eastland 1985, writ ref’d n.r.e.) (citing Webster’s New International Dictionary

of the English Language 1745 (unabridged 2nd ed. 1950)).

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 As this Court recognized in Rice, the two concepts are distinct: “the right to immediate

possession [can] be determined separately from the right to title,” and “the legislature

contemplated concurrent actions in the district and justice courts to resolve issues of title and

immediate possession, respectively.” Rice, 51 S.W.3d at 710. An adjudication of a right of

possession of the Property is no evidence of title to the Property. Thus, the justice court’s

judgment in favor of Brooks does not create a fact issue as to the ownership of the Property.

Likewise, the home–equity mortgage and the affidavit and agreement Brooks executed in

connection with the loan he obtained from Beneficial Texas, Inc. do not establish Brooks has

title to the Property. They merely establish Brooks obtained a loan from Beneficial Texas, Inc.

and, in the process of doing so, purported to encumber the Property with a lien. Brooks’

voluntary designation of homestead, the home–equity mortgage, and the affidavit and agreement

were executed on the same day and they were all to be returned to TETRS, LLC after recording.

Thus, Brooks executed the voluntary designation of homestead as part of the loan process as

required by the lender. It is no evidence of his actual ownership of the Property. See, e.g.,

Radford v. Hill, 185 S.W.2d 129, 131 (Tex. Civ. App.—Dallas 1944, writ ref’s w.o.m.) (self-

serving declarations of ownership are not proof of title).

The TETRS, LLC Report for Brooks’ lender, Beneficial Texas, Inc., does not create a

fact issue as to the ownership of the Property because the basis for its purported conclusion that

Brooks holds title to the Property is fatally flawed—it lists Sheffield as grantor and relies on the

justice court’s judgment awarding Brooks possession, not ownership, of the Property. Because

the justice court cannot adjudicate title as a matter of law, the basis for the TETRS, LLC

Report—the justice court’s judgment—is no evidence of title. Indeed, the TETRS, LLC Report

contains the following disclaimer of any opinion of title:

CAUTION TO CUSTOMER:

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 THIS REPORT IS CONFIDENTIAL AND MAY NOT BE RELEASED TO THE
BORROWER OR ANY OTHER THIRD PARTY. IT MAY BE USED FOR
LENDING PURPOSES ONLY . . . . THIS IS NOT A COLLECTION OR
FORECLOSURE REPORT, ABSTRACT OR OPINION OF TITLE, TITLE
BINDER, COMMITMENT, GUARANTY, OR POLICY . . . .

The remaining pleadings and orders cited by Brooks, including the district court’s orders

closing and dismissing the case WAMU filed against Brooks, the county court at law’s order

abating Brooks’ appeal of the justice court’s judgment in favor of WAMU, the memorandum

opinion of the United States District Court, remanding the case to the trial court after WAMU

removed the case to federal court, and the voluntary motion to dismiss the forcible detain case

maintained by WAMU, and its successors and assigns, against Sheffield and the occupant of the

Property, suffer from the same deficiency—none reflect a ruling or disposition of title. 2

Because the quitclaim deed divested Brooks of any ownership interest in the Property,

and none of the summary judgment evidence presented created a fact issue as to his ownership

post conveyance to his mother, Wells Fargo conclusively established Brooks does not have an

ownership interest in the Property. Having conclusively established Brooks does not have title to

the Property, Wells Fargo negated one of the elements of Brooks’ claim and was entitled to

summary judgment. Accordingly, we overrule Brooks’ third issue.

In his fourth issue, Brooks argues the trial court erred in granting summary judgment to

Wells Fargo when Wells Fargo cannot show superior title. But all that was before the court in

this suit was Brooks’ quiet title claim. Having negated one of the elements of Brooks’ claim,

Wells Fargo was not required to demonstrate it holds superior title to the Property in order to

obtain summary judgment. Nevertheless, Wells Fargo established it holds a valid interest in the

2
The justice court’s judgment awarding Brooks possession of the Property as against Wells Fargo, in addition to not being an
adjudication of title, was reversed by the county court at law, and is currently pending before this Court on appeal. Because that proceeding
concerns possession, not title, that case will not adjudicate title to the Property and does not impact whether Wells Fargo was entitled to summary
judgment.

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Property through competent evidence of the succession of title from Brooks’ mother to T.R.

Taylor, Inc., via foreclosure sale, to Sheffield, via sale by T.R. Taylor, Inc., to WAMU, via

foreclosure, to Wells Fargo, by sale following the FDIC’s seizure of WAMU’s assets.

For the first time on appeal, Brooks claims that the security instrument executed by his

mother, which allowed her lender to foreclose on the Property and transfer title to T.R. Taylor,

Inc., was “not even signed by the party taking out the alleged loan.” Notwithstanding the fact

that Brooks failed to preserve this argument for appeal, it is not supported by the record. The

security instrument bears the name of Brooks’ mother and contains a signature for her that is

properly notarized. We overrule Brooks’ fourth issue.

III. Summary Judgment Order

In his first issue, Brooks contends the trial court committed reversible error by granting

summary judgment as to all claims that Brooks “could have asserted” against Wells Fargo in the

lawsuit when Wells Fargo only asked for summary judgment on Brooks’ quiet title claim.

Brooks argues that by dismissing such claims, the trial court has in effect granted Wells Fargo

summary judgment on an affirmative defense—res judicata—that was not pleaded or addressed

in Wells Fargo’s summary judgment motion. Res judicata is an affirmative defense. TEX. R.

CIV. P. 94; Williams v. Nat’l Mortg. Co., 903 S.W.2d 398, 401 (Tex. App.—Dallas 1995, writ

denied). Res judicata bars a party from litigating matters in a later lawsuit that it could have

raised, but did not raise, in a previous lawsuit. Id. at 402. While Wells Fargo did not plead res

judicata as an affirmative defense, the judgment necessarily acts as a bar to matters which could

have been litigated in the suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 629 n.1 (Tex.

1992). As a result, assuming without deciding the trial court erred in including language

dismissing claims that Brooks could have asserted in this suit, the error was harmless. TEX. R.

APP. P. 44.1. We overrule appellant’s first issue.

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 MOTION

Related to this appeal, after this case was submitted to the panel, Brooks filed a Motion

for Clarification of this Court’s Order denying his Motion for Leave to File Corrected and

Supplemental Brief. Brooks filed his motion for leave six days before the case was submitted to

the panel and more than two months after he was notified of the submission date. His motion for

clarification was deferred to the submission panel, and we now deny it as moot.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

160550F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TIMOTHY BROOKS, Appellant On Appeal from the 162nd Judicial District
Court, Dallas County, Texas
No. 05-16-00550-CV V. Trial Court Cause No. DC-14-13646.
Opinion delivered by Justice Schenck.
WELLS FARGO BANK, N.A., Appellee Justices Bridges and Evans participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee WELLS FARGO BANK, N.A. recover its costs of this
appeal from appellant TIMOTHY BROOKS.

Judgment entered this 28th day of April, 2017.

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