James D. Yarbrough and Tarris Woods v. James C. Brooks

Affirmed in Part, Reversed in Part, Remanded, and Memorandum Opinion
filed September 2, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00748-CV

JAMES D. YARBROUGH AND TARRIS WOODS, Appellants

V.

JAMES C. BROOKS, Appellee

On Appeal from the Probate Court
Galveston County, Texas
Trial Court Cause No. PR-0078656-A

MEMORANDUM OPINION

This appeal involves the validity of real property conveyances in Galveston,
Texas. Appellee James C. Brooks sued to set aside two deeds transferring property
once owned by his mother. Brooks was identified on the first deed as the grantor,
but he claims both deeds are void. The trial court agreed with him and granted
summary judgment voiding the two deeds. The court also ruled that two subsequent
purchasers, appellants James D. Yarbrough and Tarris Woods, never obtained any
legal interest in the property. The trial court implicitly denied a cross-motion for
summary judgment filed by Yarbrough on his affirmative defenses and claims.

We conclude summary judgment in Brooks’s favor was improper. Based on
the record before us, he did not conclusively establish that the deeds were void for
the reasons advanced in his motion for summary judgment. Additionally, genuine
issues of material fact preclude summary judgment for Yarbrough, so the court did
not err in denying Yarbrough’s cross-motion. Accordingly, we affirm in part,
reverse in part, and remand the case to the trial court for further proceedings.

Background

A. Summary of facts and allegations

In an application to determine heirship, Brooks alleged his mother, Hilda
Brooks, died intestate on or about June 18, 2007. At the time of her death, Hilda
owned property located at 2919 Avenue K in Galveston (the “Property”). Brooks
asserted that Hilda had seven children besides himself: Clinton W. Brooks, Jr.
(deceased with living children); Frederick Brooks (deceased with living children);
Sandra Jacqou; Veronica Brooks (deceased with living children); Michael Brooks
(deceased with living children); Samuel K. Brooks; and Carl A. Brooks (deceased).

In June 2011, the sheriff sold the Property based on a judgment for unpaid
taxes. The sale was recorded in the official Galveston County real property records
on June 24, 2011. However, the Property was redeemed on September 12, 2011.
That day, Brooks purportedly transferred the Property by warranty deed to appellant
Woods (the “Woods Deed”). The Woods Deed was recorded on September 23,
2011. The Woods Deed is the first deed at issue in this appeal.

2
 Our record contains an affidavit of heirship, signed by Barbara Baldwin on
July 29, 2011, and recorded on September 16, 2011 (the “Baldwin Affidavit”). The
Baldwin Affidavit provided:1

1. My name is Barbara Baldwin and I live at _____________.[2] I am
personally familiar with the family and marital history of Mrs. Hilda
Mae Brooks, and I have personal knowledge of the facts stated in
this affidavit.
2. I knew Mrs. Brooks over 50 yrs years [sic]. She died on June 18,
2005, in Galveston, Texas. At the time of her death, she lived at
2919 Avenue K, Galveston, Texas.
3. Mrs. Brooks was married to Mr. Clinton Woodrow Brooks, (now
decease[d])
4. Mr. and Mrs. Brooks had the following children:
James Clinton Brooks
Veronica Brooks (decease[d])
Samuel Brooks (decease[d])

The Baldwin Affidavit differs factually from Brooks’s heirship application in
at least two respects. First, the Baldwin Affidavit listed Brooks as Hilda’s only
surviving child, whereas Brooks has identified other living heirs. The Baldwin
Affidavit also reflected that Hilda died on June 18, 2005, rather than June 18, 2007,
as Brooks alleged in his heirship application. Additionally, the Baldwin Affidavit
omitted certain information heirship affidavits generally include. See Tex. Est. Code
§ 203.002 (Form of Affidavit Concerning Identity of Heirs).

Approximately two years after the Woods Deed and the Baldwin Affidavit
were recorded, Woods transferred the Property by warranty deed with vendor’s lien
to appellant Yarbrough on September 12, 2013 (the “Yarbrough Deed”). The

1
The underlined portions reflect handwritten information.
2
Baldwin’s address was not shown.

3
Yarbrough Deed was recorded the next day. According to our record, Yarbrough
currently possesses the Property. The Yarbrough Deed is the second deed at issue
in this appeal.

Nearly five years later, on April 11, 2018, Brooks instituted the present
proceeding by filing an application to determine heirship and for a declaratory
judgment in which he sought to have the Baldwin Affidavit and both the Woods and
Yarbrough Deeds declared void for multiple reasons, discussed below. In amended
pleadings, Brooks named Yarbrough and Woods as defendants, but the record does
not show service of process on either defendant.

Yarbrough filed a petition in intervention on June 18. Yarbrough contended
that the deeds were not void but at most were voidable and that Brooks’s claims were
barred by the statute of limitations. Yarbrough also asserted he was a bona fide
purchaser who took the Property in good faith for valuable consideration and,
separately, that he owned the Property through adverse possession. Yarbrough
sought a declaratory judgment to quiet title and for equitable subrogation.

B. Summary judgment proceedings

Brooks and Yarbrough filed cross-motions for summary judgment. In
Brooks’s motion, he sought summary judgment on his claim to declare the Woods
and Yarbrough Deeds void. His key assertions for our purposes pertained to the
Woods Deed, which he claimed was void for several reasons pertaining to alleged
forgery or the omission of certain required information. We discuss his arguments
in detail below. Because the Woods Deed was void, Brooks continued, the
Yarbrough Deed was also void. Separately, Brooks argued the Baldwin Affidavit
was void because it did not comply with Estates Code section 203.002, regarding
the form of an affidavit concerning the identity of heirs. Brooks attached his

4
affidavit, which generally supported his version of events set forth in the motion.
He also attached copies of the recorded Woods Deed and Yarbrough Deed.

Yarbrough moved for partial summary judgment on his limitations defense
and his trespass to try title claim. He argued that neither the Woods Deed nor the
Yarbrough Deed was void because each deed sufficiently described the Property,
conveyed it to and from existing persons, was signed, and was not forged. At most,
according to Yarbrough, the deeds were voidable as obtained through fraud. But
because neither Brooks nor anyone else sought to set aside the voidable deeds during
the four-year limitations period,3 the deeds operated to transfer the Property to him.
As to his trespass to try title claim, Yarbrough claimed that he had peaceably and
adversely possessed the property under color of title for more than three years.

The record does not indicate that Woods was served with, or had notice of,
the summary judgment proceedings. When the trial court heard the cross-motions,
Woods still had not been served with process.

The trial court granted Brooks’s motion for partial summary judgment. The
order includes the following pertinent rulings:

(1) the Baldwin Affidavit was “defective and shall be corrected in a court
hearing to determine heirship, which will produce a proper judgment
naming all the heirs”;
(2) both the Woods and Yarbrough deeds were void as a matter of law,
though the order does not identify the specific ground on which the
court found both deeds void; and
(3) neither Woods nor Yarbrough ever had any legal interest in the
Property.

The order does not say so, but we construe it as implicitly denying
Yarbrough’s cross-motion for summary judgment. Yarbrough moved for

3
See Tex. Civ. Prac. & Rem. Code § 16.004.

5
reconsideration, but the trial court denied his motion. Thereafter, on August 27,
2019, the trial court severed “all claims” between Yarbrough and Brooks, thus
making the summary judgment order appealable. Yarbrough timely filed an appeal.

Meanwhile, Yarbrough filed an amended petition in the estate proceedings,
repeating most of his original claims and defenses as to Brooks and adding additional
claims against Woods for breach of the warranties contained in the Yarbrough Deed.
Yarbrough served Woods with the amended petition on October 24, 2019.
According to Woods, these events caused him to discover for the first time on
November 12 that a court had voided the two deeds to which he was a party. Woods
filed pleadings on November 12 in the severed action, including an answer and
counter- and cross-claims, and sought to set aside the summary judgment. The trial
court took no action on Woods’s pleadings but determined that Woods first learned
of the summary judgment order on November 12. Woods filed a notice of appeal in
the severed action and has filed a brief in our court.

Issues Presented

Yarbrough challenges the summary judgment order. In his appellate brief,
Yarbrough complains the trial court erred by: (1) declaring the Woods Deed and the
Yarbrough Deed void; (2) denying his cross-motion for summary judgment on
limitations; and (3) “ignoring” his adverse possession claim. Alternatively,
Yarbrough says fact issues exist on his bona fide purchaser status, limitations, and
adverse possession.

Woods has also filed an appellant’s brief. In sum, he contends the summary
judgment order declaring his lack of interest in the Property and voiding the deeds
violated his due process rights, or alternatively does not bind him, because Brooks
never served him with any pleading or citation. Woods also contests the merits of
summary judgment relief.
6
 For his part, Brooks has filed multiple briefs, signed by more than one
attorney.4 On the points we find dispositive, we conclude Brooks’s various briefs
may be construed consistently, and we consider all of them.

Standard of Review

We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Assoc., Inc., 556 S.W.3d 274, 278 (Tex. 2018);
Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co., 579 S.W.3d 540, 542 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). To prevail on a traditional motion for
summary judgment, the movant must show that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.
2000). If the movant produces evidence that conclusively establishes his right to
summary judgment, then the burden of proof shifts to the nonmovant to present
evidence sufficient to raise a fact issue. See Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). If a summary judgment movant fails in his initial
burden, the nonmovant has no obligation to respond. See Amedisys, Inc. v.
Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511-12 (Tex. 2014). We
consider all of the evidence in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts in the nonmovant’s favor. See
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

When both parties move for summary judgment on overlapping issues and the
trial court grants one motion and denies the other, we consider the summary

4
We set this appeal for submission on oral argument. On the day of argument, we were
alerted to a dispute regarding which counsel was authorized to speak for Brooks. As counsel were
unable to resolve the issue, we postponed argument to await a further filing from Brooks
designating authorized counsel. Receiving none after a reasonable period, we removed the case
from the oral argument docket and submitted the case on the briefs.

7
judgment evidence presented by both sides, determine all questions presented, and,
if we determine that the trial court erred, render the judgment the trial court should
have rendered. Tarr, 556 S.W.3d at 278; Texan Land & Cattle II, 579 S.W.3d at
542. Each party bears the burden of establishing that it is entitled to judgment as a
matter of law. City of Garland, 22 S.W.3d at 356.

Analysis

After careful examination of the summary judgment record, and for the
reasons explained below, we conclude that neither Brooks nor Yarbrough
established entitlement to judgment as a matter of law.

A. Baldwin Affidavit

We first note a ruling no party challenges: the trial court’s order that the
Baldwin Affidavit is “defective” and “shall be corrected in a court hearing to
determine heirship, which will produce a proper judgment naming all the heirs.”
Generally, and under certain conditions, an heirship affidavit constitutes prima facie
proof of the facts stated in the affidavit. See Tex. Est. Code § 203.001(a).5 But if
the affidavit is alleged to contain errors of fact, any interested party may offer
evidence to “prove the true facts.” Id. § 203.001(b). While a court must accept a
compliant heirship affidavit as prima facie evidence of the facts stated therein, a
court need not, and could not, accept it as conclusive evidence for summary

5
“A court shall receive in a proceeding to declare heirship or a suit involving title to
property a statement of facts concerning . . . the identity of the heirs of a decedent as prima facie
evidence of the facts contained in the statement if . . . the statement is contained in . . . an affidavit
or other instrument legally executed and acknowledged or sworn to before, and certified by, an
officer authorized to take acknowledgements or oaths, as applicable . . . and . . . the affidavit or
instrument containing the statement has been of record for five years or more in the deed records
of a county in this state in which the property is located at the time the suit involving title to
property is commenced. . . .” Tex. Est. Code § 203.001(a). Such an affidavit of heirship may be
in the form proscribed by Estates Code section 203.002. Id. § 203.001(c).

8
judgment purposes if another party presents genuine evidence of materially different
facts.

Here, Brooks argued that the Baldwin Affidavit failed to comply with section
203.002 in several respects and that it contained errors of fact, namely, the incorrect
identification of Hilda’s children and heirs. The trial court agreed, at least in part,
and ordered a future hearing to produce a judgment “naming all the heirs.” We note
this ruling to observe that the number and identity of Hilda’s heirs is a material fact
issue that has yet to be determined. As no party challenges this part of the order, we
leave it undisturbed.

B. Brooks’s Motion

In Yarbrough’s first and second issues, he argues the trial court erred in
concluding the Woods and Yarbrough Deeds were void. Because Brooks had the
burden of proof on his traditional motion for summary judgment, we look to whether
he conclusively established the Woods and Yarbrough Deeds were void for any of
the reasons he asserted in his motion.6

We begin with the Woods Deed. Both Brooks and Yarbrough filed identical
copies of the Woods Deed with their respective motions. It is entitled, “Warranty
Deed”; it consists in part of a pre-printed form, with the grantor name, grantee name,
and the property description completed by hand; it is signed by “James C. Brooks”
and acknowledged by a notary public; and it was filed in the county real property
records.

Because the trial court’s order does not specify the ground or grounds on which it ruled
6

the deeds were void, we examine all grounds Brooks raised in his motion. E.g., Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Roberts v. Wilson, 394 S.W.3d 45, 50
(Tex. App.—El Paso 2012, no pet.).

9
 A conveyance of an interest in real property must: (1) be in writing; (2) be
signed by the grantor; and (3) be delivered to the grantee. See Tex. Prop. Code
§ 5.021. This court and the First Court of Appeals have also said, if (1) from the
instrument as a whole a grantor and grantee can be ascertained and (2) there are
operative words or words of grant showing an intention by the grantor to convey to
the grantee title to a real property interest, (3) which is sufficiently described, and
(4) the instrument is signed and acknowledged by the grantor, then the instrument
of conveyance is a deed that accomplishes a legally effective conveyance. See
Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.—Houston [1st
Dist.] 2011, no pet.); Green v. Canon, 33 S.W.3d 855, 858 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied). In Texas, it is settled that title to real property will
vest upon execution and delivery of the deed. Stephens Cty. Museum, Inc. v.
Swenson, 517 S.W.2d 257, 261 (Tex. 1974); McGehee v. Endeavor Acquisitions,
LLC, 603 S.W.3d 515, 526 (Tex. App.—El Paso 2020, no pet.). Moreover,
recording of a deed establishes a prima facie case of delivery and the accompanying
presumption that the grantor intended to convey the land according to the terms of
the deed. Swenson, 517 S.W.2d at 261-62 (citing Thornton v. Rains, 299 S.W.2d
287 (Tex. 1957)).

As the movant, Brooks was required to produce conclusive evidence that the
Woods Deed was void. E.g., Drake Interiors, Inc. v. Thomas, 544 S.W.3d 449, 456
(Tex. App.—Houston [14th Dist.] 2018, no pet.). In his motion for summary
judgment, Brooks urged that the Woods Deed was void for four reasons:

(1) Brooks, the grantor, was not correctly named, in the sense that his name
was incorrectly written on the deed as “Jame” Clinton Brooks, while he
signed the document with his true name, “James C. Brooks”;
(2) the deed, when signed, did not identify the property because the form
was “blank” when Brooks signed it, and the property description was
added later without Brooks’s involvement or consent;
10
 (3) when Brooks signed the deed, he had no ownership interest in the
property because it had not yet been redeemed from the sheriff’s sale;
and,
(4) the deed was a “forgery” because the information written on the deed
after he signed it created a “false instrument.”

We examine each ground in turn.

1. Did Brooks prove conclusively that the Woods Deed is void because it
incorrectly named the grantor?

While admitting he signed the Woods Deed, Brooks argued that the deed was
void because the document identified the grantor as “Jame” Clinton Brooks, but
Brooks says he is “James” Clinton Brooks. But insofar as identifying the grantor is
concerned, for a deed to be valid it need show that a “grantor and grantee can be
ascertained” from the “instrument as a whole.” See Gordon, 352 S.W.3d at 43;
Green, 33 S.W.3d at 858. A slight misnomer, such as this one, generally does not
affect a deed’s validity. See Sides v. Saliga, No. 03-17-00732-CV, 2019 WL
2529551, at *8 (Tex. App.—Austin June 20, 2019, pet. denied) (mem. op.). The
acknowledgment by the notary also identifies the grantor as “James Clinton Brooks.”
Viewing the entire instrument, we conclude that Brooks did not prove as a matter of
law that Woods Deed is void because it insufficiently identifies Brooks as the
grantor.

2. Did Brooks prove conclusively that the Woods Deed is void because it
lacked a property description?

To be valid, a conveyance of real property must contain a sufficient
description of the property to be conveyed. AIC Mgmt. v. Crews, 246 S.W.3d 640,
645 (Tex. 2008). A property description is sufficient if the writing furnishes within
itself, or by reference to some other existing writing, the means or data by which the

11
particular land to be conveyed may be identified with reasonable certainty. Id.; see
Broaddus v. Grout, 258 S.W.2d 308, 309 (Tex. 1953).

We have in our record only one version of the Woods Deed. On its face, the
instrument sufficiently identifies the Property. It is signed by Brooks,
acknowledged, and recorded. Proof that a deed was recorded creates a presumption
and establishes a prima facie case of delivery and intent by the grantor to convey the
land. Watson v. Tipton, 274 S.W.3d 791, 799 (Tex. App.—Fort Worth 2008, pet.
denied). Therefore, the deed, as it appears before us, is presumed valid because it
bears all the necessary hallmarks of a valid land conveyance. For Brooks, as a
summary judgment movant, establishing conclusively that an acknowledged,
recorded deed is void would require evidence sufficient not only to rebut the
presumption of validity but also sufficient to prove invalidity as a matter of law.

Brooks contends the deed is void because it contained no property description
when he signed it. He presented affidavit evidence that when he signed the Woods
Deed, it was a “blank” deed form and “had no information at all regarding the
property or anything else.” If, however, evidence shows the parties agreed to add a
property description after a deed is executed, “the deed as augmented is valid and
conveys real property.” Barron v. Al Shmaisani, No. 02-19-00064-CV, 2021 WL
2253301, at *10-11 (Tex. App.—Fort Worth June 3, 2021, no pet. h.) (mem. op.);
Foster v. Lessing, 346 S.W.2d 939, 942 (Tex. App.—Waco 1961, writ ref’d n.r.e.);
cf. Republic Nat’l Bank of Dallas v. Stetson, 390 S.W.2d 257, 261 (Tex. 1965)
(holding that deed lacking description when executed conveyed nothing, where
undisputed evidence showed that grantor “gave no authority to anyone to fill in the
description or alter the document”). But here, Brooks disavowed any such

12
agreement to supply a property description later. Yarbrough did not present
controverting evidence on this issue.7

Be that as it may, because the recorded, facially valid deed appears in our
record and was attached to Brooks’s motion, we cannot conclude that Brooks’s
evidence does anything more than give rise to a fact question as to whether the deed
contained the property description when Brooks signed it. See AIC Mgmt., 246
S.W.3d at 647-49 (holding that adequacy of property descriptions conveyed in a
series of quitclaim deed transfers could not be conclusively determined on the record
before the court; remanding for further proceedings). In light of the recorded
instrument, which on its face controverts Brooks’s version of events, Brooks has not
established conclusively that the Woods Deed did not contain a sufficient property
description when he signed it.

Even assuming for argument’s sake that Brooks proved conclusively the deed
described no property when he signed it, we are nonetheless compelled to hold that
the absence of a property description would not entitle Brooks, on this record, to a
declaration as a matter of law that the Woods Deed is void. This is due to the notary
acknowledgement appearing on the face of the deed. The certificate of
acknowledgment is prima facie evidence that Brooks appeared before the notary and
executed the deed for the purposes and consideration therein expressed. E.g., Morris
v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 843 (Tex. App.—Dallas 2011, no pet.);
Watson, 274 S.W.3d at 802. To overcome the presumptive validity of such an
acknowledgement, Brooks needed to present “clear and unmistakable proof” that

7
As Woods, not Yarbrough, was the original grantee from Brooks, Yarbrough would be
expected to lack personal knowledge of the circumstances or the form of the Woods Deed when it
was signed.

13
either he did not appear before the notary or that the notary practiced some fraud or
imposition upon him. Morris, 334 S.W.3d at 843; Watson, 274 S.W.3d at 802.

Brooks’s affidavit contains no assertion that he did not sign the Woods Deed
before a notary. Although he asserts the deed was “blank” when he signed it, a
notary would not execute an acknowledgment until after the document was signed.
To be sure, Brooks claimed in his motion that the notary stamp “was added at some
later date unknow[n] to Mr. Brooks.” But his affidavit does not support that assertion
because it is notably silent regarding the circumstances surrounding the notary
acknowledgement. Thus, Brooks’s affidavit does not present “clear and
unmistakable proof” that he did not appear before the notary when he signed the
deed, as the Woods Deed reflects on its face. Morris, 334 S.W.3d at 843; Watson,
274 S.W.3d at 802. Nor has he presented evidence that the notary “practiced some
fraud or imposition upon him.” Watson, 274 S.W.3d at 802.

There exists yet another reason Brooks has failed in his summary judgment
burden: as an interested witness, his evidence does not pass muster under rule 166a.
Brooks is an interested witness because he is seeking to void a deed he signed as the
grantor. Although a “summary judgment may be based on uncontroverted
testimonial evidence of an interested witness,” such evidence must be “clear,
positive, direct, otherwise credible and free from contradictions and inconsistencies,
and could have been readily controverted.” Tex. R. Civ. P. 166a(c). Yarbrough
could not have readily controverted Brooks’s affidavit testimony regarding the
Woods Deed because he lacked the benefit of personal knowledge surrounding the
transaction’s circumstances. And Woods—a named defendant and the person best-
suited to refute Brooks’s statements—was not served with process before the
summary judgment ruling and thus lacked an opportunity to respond to Brooks’s

14
summary judgment evidence.8 Cf. Allied Chem. Corp. v. DeHaven, 752 S.W.2d 155,
157-58 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (“Self-serving
statements of interested parties, testifying as to what they knew or intended, do not
meet the standards of Texas courts for summary judgment.”); Bankers Comm. Life
Ins. Co. v. Scott, 631 S.W.2d 228, 231 (Tex. App.—Tyler 1982, writ ref’d n.r.e.)
(self-serving statements of interested parties regarding what they knew or intended
were “not susceptible to being readily controverted and [were] best left to the
determination of the trier of fact”).

Additionally, Brooks’s summary judgment evidence was not free from
contradiction and inconsistency. See Tex. R. Civ. P. 166a(c). For example, Brooks
presented a presumptively valid deed together with an affidavit attacking the deed’s
validity. When a movant provides such contradictory or conflicting evidence,
generally a fact issue is presented. See Bastida v. Aznaran, 444 S.W.3d 98, 108
(Tex. App.—Dallas 2014, no pet.) (discrepancy between party’s admission and
affidavit created a fact issue; thus, trial court erred in granting summary judgment);
Rankin v. Union Pac. R.R. Co., 319 S.W.3d 58, 63 (Tex. App.—San Antonio 2010,
no pet.) (“A fact question is created when the summary judgment record contains
inconsistent or conflicting summary judgment proof.”).

For these reasons, Brooks did not conclusively establish that the Woods Deed
is void because it lacked a property description.

8
In his combined answer, affirmative defenses, motion to strike and for sanctions, request
for declaratory judgment, counterclaim, and crossclaim, Woods alleged that Brooks conveyed the
Property to him under his authority as Hilda’s attorney-in-fact, presenting to Woods a durable
power of attorney signed by Hilda naming Brooks as her agent with power to act for her in “real
property transactions.” A copy of this instrument is attached to Woods’s pleading. Woods alleged
that Brooks did not inform him that, at the time of the conveyance, Brooks’s mother was dead.
However, the Woods Deed does not indicate that Brooks was conveying the property as Hilda’s
agent. And the Baldwin Affidavit, dated July 29, 2011, indicates that it was to be returned to
Woods after recording. Woods will have an opportunity to support his contentions on remand.

15
 3. Did Brooks prove conclusively that the Woods Deed is void because he
did not own the Property when he signed the deed?
Of course, Brooks cannot convey property that he does not own. See Trial v.
Dragon, 593 S.W.3d 313, 322 (Tex. 2019). But a grantor’s lack of actual ownership
does not result in a void instrument. Accord Jackson v. Wildflower Prod. Co., 505
S.W.3d 80, 87-88 (Tex. App.—Amarillo 2016, pet. denied) (“If, from the whole
instrument, a grantor and grantee can be ascertained, if there are operative words or
words of grant showing an intention of the grantor to convey title to a real property
interest to the grantee, and if the instrument is signed and acknowledged by the
grantor, it is a deed that is legally effective as a conveyance.”). If a grantor does not
own the property purportedly conveyed, he may be subject to a breach of warranty
claim, depending on the language of the deed.9 See Trial, 593 S.W.3d at 321-22
(holding that grantor breached general warranty deed at time of execution where he
purported to convey entire fee simple estate that he did not own); Lykken v.
Kindsvater, No. 02-13-00214-CV, 2014 WL 5771832, at *3 (Tex. App.—Fort
Worth Nov. 6, 2014, no pet.) (mem. op.) (“If a grantor does not own the estate in
land that he undertakes to convey, he breaches the covenant at the very moment the
deed is made.”). Summary judgment that the Woods Deed is void cannot rest on
this argument.

9
See Jackson, 505 S.W.3d at 88-90 (explaining differences between deeds and quitclaim
deeds; both convey the grantor’s interest in the property described to grantee, but a quitclaim deed
grants only whatever “right, title, and interest” the grantor has, whereas a deed purports to grant
and convey the described property; nature of given instrument is determined from intent of grantor
as expressed in the deed). The Woods Deed on its face purports to be a “Warranty Deed,” and
grants, sells, and conveys the Property from Brooks to Woods; it does not convey only whatever
right, title, or interest Brooks had in the Property. Thus, it is not a quitclaim deed.

16
 4. Did Brooks prove conclusively that the Woods Deed is void because it
was forged?
A forged deed is void as a matter of law and passes no title. See Nobles v.
Marcus, 533 S.W.2d 923, 925-26 (Tex. 1976); Morris, 334 S.W.3d at 843 (Tex.
App.—Dallas 2011, no pet.). “[T]o be a forgery, the signing must be by one who
purports to act as another.” Nobles, 533 S.W.2d at 925-26. Thus, “one who signs
his true name, and does not represent himself to be someone else of the same name,
does not commit a forgery because his act does not purport to be that of another.”
Id. at 926. In Nobles, the supreme court addressed whether a person’s signing his
own name to a deed—as occurred in today’s case—under a false power of attorney
caused the deed to be a forgery. There, Marcus, purporting to act as the vice
president of a company, executed a warranty deed conveying a company warehouse
to another. Id. at 924. At closing, a certificate alleged to be a copy of the minutes
of a board of director’s meeting showing that Marcus was the company’s vice
president was presented to the title insurance company, which issued a title insurance
policy. Id. However, Marcus had not been elected as the company’s vice president
nor had he been properly authorized to convey the property; as well, the certificate
presented to the title company was not the corporate resolution it purported to be.
See id. at 925. Judgment creditors of the company sought to set aside the deed
executed by Marcus due to alleged forgery. See id. at 924-25. The supreme court,
however, held that the deed was not forged because Marcus signed his own name.
Id. at 926. The court explained:

Marcus . . . merely signed his own name as vice-president when he had
no actual authority to do so. . . . Marcus’ signing of the deed conveying
the Alpha Welch Warehouse was not forgery. Marcus may be guilty of
falsely representing the power under which he executed the instrument
but he did not represent his act to be that of another.

Id. Thus, the deed was voidable, but not void. See id. at 926-27.

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 A similar result obtains here. Brooks does not dispute that he signed the
document in question. No one disputes that Hilda owned the Property at the time of
her death. After her death, Brooks, one of Hilda’s heirs, signed his own name to the
Woods Deed, which purports to convey real property Hilda owned to Woods.
Brooks bases his forgery argument solely on the proposition that the deed form was
blank when he signed it but was completed later. Those circumstances may
potentially show fraud, but they do not conclusively prove the deed was forged.

For all of the above reasons, we conclude that Brooks did not establish, as a
matter of law, that the Woods Deed was void. The trial court erred in ruling
otherwise.

Brooks’s challenge to the Yarbrough Deed is based solely on the argument
that the Woods Deed is void. As we have concluded the Woods Deed on this record
has not been conclusively shown to be void, the summary judgment voiding the
Yarbrough Deed cannot stand either. Whether either deed is void, or both, are
matters for the factfinder.

C. Yarbrough’s Motion

In his appeal, Yarbrough challenges the trial court’s implicit denial of his
cross-motion for summary judgment. In his third and fourth issues, Yarbrough
argues the trial court erred by denying him summary judgment on his statute of
limitations defense and on his adverse possession claim.

1. Did Yarbrough prove conclusively his entitlement to judgment based
on limitations?

According to Yarbrough, the trial court failed to recognize that the statute of
limitations barred Brooks’s claim to the Property. As the basis for his argument,
Yarbrough insists the Woods Deed was merely voidable, not void. If the Woods
Deed is voidable, the statute of limitations bars Brooks’s efforts to invalidate both
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deeds because he indisputably filed his claim more than four years after any cause
of action accrued.10 See Tex. Civ. Prac. & Rem. Code § 16.004; Wood v. HSBC
Bank USA, N.A., 505 S.W.3d 542, 548 (Tex. 2016) (“[W]hen an instrument is
voidable, a four-year statute of limitations applies to actions to cancel it.”); Ford v.
Exxon Mobil Chem. Co., 235 S.W.3d 615, 618-19 (Tex. 2007) (per curiam) (holding
that actions seeking to set aside voidable deeds must be filed no later than four years
after the cause of action accrues); In re Estate of Allison, No. 09-16-00066-CV, 2017
WL 4682171, at *4-5 (Tex. App.—Beaumont Oct. 19, 2017, pet. denied) (mem. op.)
(holding that cause of action accrued when decedent, who was a party to alleged
fraudulent conveyance scheme, executed the deeds).

Yarbrough supported his motion with an affidavit, in which he averred that:
(1) he purchased the Property from Woods for $84,000; (2) when he purchased the
Property he was not aware of any claims to the Property by Brooks or any other heirs
and he used a closing agent and title company to conduct a title search and obtain
title insurance; (3) after he purchased the Property, Brooks began to harass him, his
handyman, and his tenants regarding Brooks’s alleged claims; (4) Brooks knew of
Yarbrough’s possession and use of the Property more than three years before Brooks
asserted claims to it; (5) Brooks knew of Yarbrough’s recorded deed for more than
four years before Brooks filed his claims; and (6) Yarbrough paid property taxes on,
maintained tenants in, and improved and maintained the Property from the date of
purchase.

Brooks responded to Yarbrough’s motion by asserting that the Woods Deed
is void, not voidable, and he relied on his own summary judgment motion and
evidence. As we have explained, Brooks presented some evidence that, if accepted

10
In his response to Yarbrough’s summary judgment motion, Brooks acknowledged that
his claim is barred by the statute of limitations if the deeds are voidable.

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by a factfinder, might result in a ruling that the Woods Deed is void. If the Woods
Deed is void, Yarbrough’s limitations defense will not apply. E.g., Wood, 505
S.W.3d at 547-48 (explaining that when an instrument is void, it may be set aside at
any time). Therefore, it is premature, at this time, to rule as a matter of law on
Yarbrough’s limitations defense. The trial court did not err by implicitly denying
Yarbrough’s summary judgment motion on his limitations defense, and we overrule
Yarbrough’s third issue.

2. Did Yarbrough prove conclusively his entitlement to summary
judgment based on adverse possession?

In his fourth issue, Yarbrough contends the trial court erred in “ignoring
Yarbrough’s adverse possession claim.”

In his summary judgment motion, Yarbrough sought to show that he held the
Property “in peaceable and adverse possession under title or color of title” for more
than three years, and thus, he acquired title to the Property. See Tex. Civ. Prac. &
Rem. Code § 16.024 (“A person must bring suit to recover real property held by
another in peaceable and adverse possession under title or color of title not later than
three years after the day the cause of action accrues.”). However, a void deed does
not support Yarbrough’s adverse possession claim under the three-year statute. See
Johnson v. Bennett, 176 S.W.3d 41, 46 (Tex. App.—Houston [1st Dist.] 2004, no
pet.) (explaining that title cannot be conveyed for purposes of the three-year adverse
possession statute by a void deed because a void deed “is neither title nor color of
title”).

Because Brooks presented some evidence that the Woods Deed is void, and
because the factfinder must resolve that question, summary judgment on
Yarbrough’s adverse possession claim is likewise premature at this time. The trial

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court did not err in denying Yarbrough’s summary judgment motion based on the
three-year adverse possession statute.11 We overrule Yarbrough’s fourth issue.

D. Woods’s Appeal

Given our disposition, we need not address the issues raised by Woods in his
appeal. Upon remand, Woods will have the opportunity to appear and defend the
validity and enforceability of the Woods and Yarbrough Deeds.

Conclusion

Because Brooks failed to establish his entitlement to judgment as a matter of
law, the trial court erred in granting summary judgment in his favor. The court,
however, did not err in denying Yarbrough’s cross-motion for summary judgment.
Thus, we affirm the portion of the summary judgment order implicitly denying
Yarbrough’s cross-motion, and we affirm the portion of the order declaring the
Baldwin Affidavit defective. We reverse the order in all other respects and remand
for proceedings consistent with this opinion.

/s/ Kevin Jewell
Justice

Panel consists of Chief Justice Christopher and Justices Jewell and Poissant.

11
On appeal, Yarbrough urges alternatively that he acquired title under the five-year
adverse possession statute. See Tex. Civ. Prac. & Rem. Code § 16.025. However, he did not
present this ground in his summary judgment motion. A trial court cannot grant summary
judgment for a reason that the movant does not present to the trial court in writing. Cincinnati Life
Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). On appeal, we do not consider issues that
were not presented to the trial court. Mutual of Omaha Life Ins. Co. v. Costello, 420 S.W.3d 873,
878 n.7 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

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