Opinion issued August 3, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00815-CV ——————————— DIANA GORDON OFFORD, Appellant V. APRIL CARSON, Appellee
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-250207
MEMORANDUM OPINION
This suit involves a dispute over a piece of real property located in Fulshear,
Texas (the Fulshear Lot). The Fulshear Lot has already been the subject of
litigation in at least two prior suits, which established the property as being part of
the Estate of Winter Gordon, the father of appellant Diana Gordon Offord and the grandfather of appellee April Carson. Carson subsequently filed the instant suit
against Offord seeking to remove the cloud on her title to the Fulshear Lot created
by a 2016 “Correction Deed” filed by Offord’s attorney naming Offord as the
grantee. The trial court granted summary judgment in favor of Carson, ultimately
declaring that the Correction Deed was invalid and that Carson “owns the property
in fee simple absolute, and [Offord] [is] barred from asserting any right, title or
interest in or to the property . . . as a result of the [Correction Deed].”
Offord challenges the trial court’s summary judgment on the grounds that
(1) the trial court erred in declaring the ownership of the Fulshear Lot based on
Carson’s suit for declaratory judgment and should, instead, have required Carson
to proceed with a trespass-to-try-title suit pursuant to Texas Property Code chapter
22, which does not authorize the award of attorney’s fees; and (2) the trial court
erred in declaring the correction deed invalid.
We modify the judgment to delete the attorney’s fees award, and we affirm
as modified.
Background
In February 2008, the Fort Bend County Court at Law No. 4 appointed
Offord as the “Guardian of the Estate of Winter Gordon,”1 her father. The order
1 The order identified Offord as the “Guardian of the Estate of Winter Gordon, Jr., a/k/a Winter Gordon, Sr.” He is referred to throughout the records as “Winter Gordon, Jr., a/k/a Winter Gordon, Sr.,” as Winter Gordon, Jr., as Winter Gordon, 2 appointing her Guardian found that Winter Gordon was “totally without capacity”
due to a mental condition and that appointment of Offord as the guardian of his
estate was appropriate.
In 2009, the Fulshear lot was the subject of a delinquent tax suit in the 240th
District Court of Fort Bend County filed by various taxing entities, including Fort
Bend County.2 As part of the lawsuit, Offord as “Guardian of the Estate of
Incapacitated Person, Winter Gordon,” filed “Motion to Quiet Title” to the
Fulshear Lot based on a claim of adverse possession. The final judgment in that
case (the 2010 Judgment) identified “Diana G. Offord, Guardian of the Estate of
Incapacitated Person, Winter Gordon (‘Offord’)” as a defendant and the cross-
complainant seeking title to the Fulshear Lot by adverse possession. The 2010
Judgment contained a finding that “Offord acquired title by peaceable and adverse
possession, upon the following described property as set out below, in fee simple,
free of any and all encumbrances and clouds of title and clear of the purported
interest of the Defendants [Fort Bend County et al.].”
Sr., and as Gordon Winter. For ease of reference, we refer to him simply as Winter Gordon. 2 It appears from the record that George Gordon and several other parties were the owners of record for the Fulshear Lot at the time the tax suit was filed. The relationship of these parties to Offord, Winter Gordon, or Carson is not explained in the record.
3 Following this judgment, Offord’s attorney, Diogu Kalu Diogu II, filed a
deed dated October 8, 2010 (2010 Deed). The 2010 Deed identified multiple
grantors, including George D. Gordon and the other cross-defendants from the
2010 Judgment. The grantee on the 2010 Deed was identified as “Diana G. Offord
AKA Diana Gordon Offord as Guardian of the Estate of Incapacitated Person,
Winter Gordon, Jr., A.K.A. Winter Gordon, Sr.” The 2010 Deed specifically
referred to the 2010 Judgment awarding title of the Fulshear Lot based on the
claim of adverse possession.
Winter Gordon died on October 7, 2011. Winter Gordon’s Last Will and
Testament was found valid and admitted to probate on October 5, 2015, in the Fort
Bend County Court at Law No. 2. Carson, Winter Gordon’s granddaughter, was
named as his sole heir. Records from the probate proceedings included an amended
inventory of Winter Gordon’s estate, dated April 25, 2016, showing that the
Fulshear Lot was an asset of Winter Gordon’s estate. The record also contained an
uncertified, unofficial copy of written objections and motion to amend the
inventory filed on Offord’s behalf by her attorney Diogu. Offord objected to the
inclusion of the Fulshear Lot as an asset of Winter Gordon’s estate, arguing that it
was not part of the estate, and seeking to amend the inventory accordingly. These
objections were filed June 1, 2016, but the record does not contain any indication
that the probate court ruled specifically on the objections and motion to amend the
4 inventory. Rather, the probate court approved the amended inventory dated April
25, 2016, confirming the Fulshear Lot as an asset of the Estate. The order
approving the inventory stated, “The foregoing Amended Inventory, Appraisement
and List of Claims of the above estate having been filed and presented; objections
having been heard on 9-19-16; the court having considered and examined the
same, is satisfied that it should be approved.”
While these proceedings were still unfolding in the probate court, Offord
created the “Correction Deed” for the Fulshear Lot dated August 2, 2016. Offord’s
attorney filed the Correction Deed naming “Diana Gordon Offord” as the new
grantee. The Correction Deed itself identified the reason for correction:
This is the correction deed, given and accepted to avoid a mutual mistake which INCORRECTLY NAMED DIANA GORDON OFFORD AS DIANA G. OFFORD AKA DIANA GORDON OFFORD AS GUARDIAN OF THE ESTATE OF INCAPACITATED PERSON, WINTER GORDON, JR AKA WINTER GORDON SR and is recorded in instrument number: 2010099315 of the Deed Records of Fort Bend County, Texas as such in substitution for such earlier deed dated on the 08th, October 2010 and it shall be effectual as of and retroactive to such date.
The 2016 Correction Deed, like the 2010 Deed, referenced the 2010 Judgment. The
Correction Deed was executed only by Offord’s attorney Diogu Kalu Diogu II and
filed in the real property records.
5 Following the probate court’s approval of the inventory, the executor of
Winter Gordon’s estate executed a deed conveying the Fulshear Lot to Carson as
the heir of Winter Gordon.
On April 3, 2018, Carson filed her petition in the underlying case in the
434th District Court of Fort Bend County, asserting that the Fulshear Lot remained
in Winter Gordon’s estate and, thus, was among the parcels of land inherited by
her following Gordon’s death. Carson further asserted that Offord
has clouded [Carson’s] title to real property by asserting an interest in the [Fulshear Lot] owned by Carson . . . based on a spurious “Correction Deed” purportedly made and executed by [Offord’s] counsel, Diogu Kalu Diogu, III, LL.M., on behalf of [Offord] on August 30, 2016, whereby [Offord] claims, individually, all right, title and interest in and to the real property.
Carson asserted that the Correction Deed was “invalid, subject to cancellation and
should be adjudicated a nullity” because the Fulshear Lot was the property of
Winter Gordon’s estate; Offord, as his guardian, was not authorized to transfer the
property; the Fulshear Lot was, thus, passed to Carson upon Winter Gordon’s
death and the admission of his will to probate; the Correction Deed was an
“unlawful attempt by [Offord and her attorney] to defraud [Carson]”; and the
“claim made by [Offord] to the Fulshear Lot clouds the title of [Carson] to the
land, depreciates the market value, and prevents [Carson] from enjoying the use of
the property and [Carson’s] own best interest as owner.” Carson asked that the trial
court declare the Correction Deed “cancelled, null and void, and of no further force
6 or effect,” that her title to the Fulshear Lot “be quieted,” and that she be adjudged
the owner of the Fulshear Lot entitled to possession. She also sought attorney’s
fees.
Offord responded with a general denial and specifically stated that she
“pleads not guilty as this is a trespass to try title action.” She further asserted that
Carson lacked standing to challenge the Correction Deed, and she made a demand
that Carson furnish to Offord and file with the court “a certified copy of abstract of
title to the premises in question [p]ursuant to Rule 791 and 792 of the Texas Rules
of Civil Procedure.”3
Carson moved for summary judgment on her claim that the Correction Deed
is invalid. Carson asserted that the Correction Deed was invalid pursuant to
Property Code section 5.029, permitting material corrections of conveyances,
because it was not executed by each party to the original instrument. She provided
documents setting out the transactions described above in support of her motion for
summary judgment. Offord responded that the Correction Deed made a
nonmaterial correction pursuant to section 5.028 and that Carson did not have any
valid claim to the Fulshear Lot because it never entered Winter Gordon’s estate. To
3 Carson did eventually file an abstract of title with the reservation that she nevertheless contended that it was not required and that the case was not a trespass-to-try-title suit. 7 support her claim, Offord relied on the 2010 Judgment, 2010 Deed, and 2016
Correction Deed, plus her own affidavit and that of her attorney.
The trial court granted Carson’s motion for summary judgment, determining
that the 2016 Correction Deed was invalid, and then held a hearing on the issue of
attorney’s fees. The trial court’s final judgment included findings that (1) the
Correction Deed “is not a valid correction deed, does not convey any right, title or
interest to the property therein described to Diana Gordon Offord, and should be
cancelled of record” and (2) Carson is entitled to recover reasonable attorney’s fees
from Gordon and that $15,023 was reasonable and necessary. The trial court
ordered, in its final judgment, that the Correction Deed “is null and void and
cancelled of record” and that Carson “owns the property in fee simple absolute,
and Defendant Diana Gordon Offord . . . [is] barred from asserting any right, title
or interest in or to the property . . . as a result of the [Correction Deed].” The trial
court also awarded Carson $15,023 in attorney’s fees pursuant to the Declaratory
Judgment Act (DJA), Civil Practice and Remedies Code section 37.009. This
appeal followed.
Summary Judgment Standard of Review
Offord’s primary complaint on appeal challenges the trial court’s grant of
summary judgment that formed the basis of the final judgment rendered in this
case. We review a trial court’s summary judgment de novo. Merriman v. XTO
8 Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor. Bush
v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020).
In a traditional summary-judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); Hillis v. McCall, 602
S.W.3d 436, 439–40 (Tex. 2020). A party moving for summary judgment on one
of its own claims must conclusively prove all essential elements of the claim. See
Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A defendant may
also prevail by traditional summary judgment if it conclusively negates at least one
essential element of a plaintiff’s claim or conclusively proves an affirmative
defense. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). A matter is
conclusively established if reasonable people could not differ as to the conclusion
to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005).
When, as here, the parties file cross-motions for summary judgment on
overlapping issues, and the trial court grants one motion and denies the other, we
review the summary-judgment evidence supporting both motions and render the
judgment that the trial court should have rendered. Merriman, 407 S.W.3d at 248.
9 Nature of Proceeding
In her first issue, Offord argues in part that the trial court erred in “declaring
the ownership of the [Fulshear Lot] based on an action for declaratory judgment”
and that the trial court should, instead, have required Carson to proceed with a
trespass-to-try-title suit pursuant to Texas Property Code chapter 22.
We first observe that Offord failed to file special exceptions. See TEX. R.
CIV. P. 91 (providing for filing of special exceptions to challenge defective
pleadings); Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021) (“The proper
response to a legally or factually infirm pleading is to file special exceptions
objecting to the pleading.”). In her answer, Offord asserted that “this is a trespass
to try title action” and demanded that Carson provide an abstract of title and
proceed pursuant to Texas Rules of Civil Procedure 791 and 792. Even if this
answer could be considered a challenge to the sufficiency of the pleadings, we
observe that Offord failed to obtain a hearing or ruling on any purported pleading
insufficiency. Failure to obtain a timely hearing and a ruling on special exceptions
waives the exceptions and does not preserve them for appeal. See Davis v.
Angleton Indep. Sch. Dist., 582 S.W.3d 474, 481 (Tex. App.—Houston [14th Dist.]
2018, pet. denied).
“In the absence of special exceptions or other motion challenging the
sufficiency of the pleadings, we construe a petition liberally in favor of the
10 pleader.” Brumley, 616 S.W.3d at 831. Texas courts consider the substance and not
the form of the pleadings to determine whether an action is properly considered as
one for declaratory judgment, trespass to try title, or to quiet title. Id. at 831–33;
Martin v. Amerman, 133 S.W.3d 262, 264, 268 (Tex. 2004); Gutierrez v. Lorenz,
No. 14-18-00608-CV, 2020 WL 1951606, at *6 (Tex. App.—Houston [14th Dist.]
Apr. 23, 2020, no pet.) (mem. op.).
The Supreme Court of Texas has recognized that “[t]he issue of whether a
claimant must seek relief related to property interests through a trespass-to-try-title
action, as opposed to a suit under the Declaratory Judgments Act, has been the
source of some confusion in [that] Court and others.” Lance v. Robinson, 543
S.W.3d 723, 735 (Tex. 2018). However, it has recently provided some clarification
on various causes of action to settle questions related to title:
By statute, a trespass-to-try-title action is the method of determining title to lands. Although related claims exist to determine narrower questions of possession, a cloud on a title, or a non-possessory interest, a trespass-to-try-title action is the exclusive remedy for resolving overarching claims to legal title. It embraces all character of litigation that affects the title to real estate. In a trespass-to-try-title action, a plaintiff may prove legal title by establishing: (1) a regular chain of title of conveyances from the sovereign to the plaintiff; (2) a superior title to that of the defendant out of a common source; (3) title by limitations (i.e., adverse possession); or (4) possession that has not been abandoned.
Brumley, 616 S.W.3d at 831–32 (internal quotations and citations omitted); see
TEX. PROP. CODE § 22.001(a) (“A trespass to try title action is the method of
11 determining title to lands, tenements, or other real property.”). A trespass-to-try-
title action “is typically used to clear problems in chains of title or to recover
possession of land unlawfully withheld from a rightful owner.” Martin, 133
S.W.3d at 265. The Supreme Court of Texas has determined that a trespass-to-try-
title action is the proper procedural vehicle “when the claimant is seeking to
establish or obtain the claimant’s ownership or possessory right in the land at
issue.” Lance, 543 S.W.3d at 736 (emphasis in original).
This court and others have recognized that “[t]he line segregating claims
impacting title to property that can be brought as declaratory judgment actions
from those claims impacting title that must be brought as trespass-to-try-title
actions is not a clear one under current Texas law.” AIC Mgmt. Co. v. AT&T
Mobility, LLC, No. 01-16-00896-CV, 2018 WL 1189865, at *10 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (mem. op.); Jinkins v. Jinkins, 522 S.W.3d
771, 785–76 (Tex. App.—Houston [1st Dist.] 2017, no pet.). “The uncertainty
originates with two legislative directives that appear to overlap to some degree.”
AIC Mgmt., 2018 WL 1189865, at *10; Jinkins, 522 S.W.3d at 786. While
Property Code section 22.001(a) mandates use of a trespass-to-try-title action to
determine title to land, the DJA however, provides that “[a] person interested under
a deed, will, written contract, or other writings . . . may have determined any
question of construction or validity arising under the instrument . . . and obtain a
12 declaration of rights, status, or other legal relations thereunder.” Jinkins, 522
S.W.3d at 786 (quoting TEX. CIV. PRAC. & REM. CODE § 37.004(a)). “These
statutes differ in their pleading and proof requirements, and only the DJA allows a
successful party to recover attorney’s fees.” Id.
The Supreme Court of Texas and this Court have held that, “[i]f a dispute
involves a claim of superior title and the determination of possessory interests in
property, it must be brought as a trespass-to-try-title action.” Jinkins, 522 S.W.3d
at 786; see Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926
(Tex. 2013). “[A] litigant’s couching its requested relief in terms of declaratory
relief does not alter the underlying nature of the suit.” Tex. Parks & Wildlife Dep’t
v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011); Jinkins, 522 S.W.3d at 786.
Courts, including the Supreme Court of Texas and this Court, have recognized
narrow circumstances in which a declaratory judgment action may be the
appropriate vehicle to resolve disputes related to property but not directly
involving questions of title. See e.g., Lance, 543 S.W.3d at 734–36 (holding that
declaratory judgment is available to resolve defendant’s authority to obstruct
claimant’s access to disputed area, such as easement); Sustainable Tex. Oyster Res.
Mgmt., L.L.C. v. Hannah Reef, Inc., 623 S.W.3d 851, No. 01-18-00088-CV, 2020
WL 7502493, at *10 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020, pet. filed)
(concluding declaratory judgment was proper vehicle for voiding defendant’s lease
13 and determining oystermen’s right to access public fishing grounds); Eggemeyer v.
Hughes, 621 S.W.3d 883, 893 (Tex. App.—El Paso 2021, no pet.) (citing Civil
Practice and Remedies Code section 37.004(c) and recognizing that boundary
disputes may be resolved through declaratory-judgment claim); Florey v. Estate of
McConnell, 212 S.W.3d 439, 448–49 (Tex. App.—Austin 2006, pet. denied)
(finding no bar to availability of DJA attorney’s fees in suit seeking adjudication of
validity of creditor’s deed of trust as it impacts his entitlement to proceeds from
sale of property because there was only “indirect impact” on title).
Trespass-to-try-title and declaratory-judgment claims are not the only
methods for determining rights to property. See Brumley, 616 S.W.3d at 831–32
(recognizing claim to remove cloud on title exists separately from trespass to try
title claim). The supreme court recognized that, although “the term ‘quiet title’ has
acquired a colloquial meaning encompassing many kinds of title disputes,
including those more aptly named as trespass-to-try-title actions,” a suit to quiet
title is “traditionally one in which the superior title holder seeks to remove a
challenge to that title.” Id. at 835. Thus, “[t]he plaintiff in a quiet-title suit ‘must
prove, as a matter of law, that he has a right of ownership and that the adverse
claim is a cloud on the title that equity will remove.’” Id. (quoting Lance, 543
S.W.3d at 739). “A suit to clear title or quiet title—also known as a suit to remove
cloud from title—relies on the invalidity of the defendant’s claim to the property.”
14 Gutierrez, 2020 WL 1951606, at *6; Essex Crane Rental Corp. v. Carter, 371
S.W.3d 366, 388 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Offord argues that the essence of Carson’s claim is a traditional trespass-to-
try-title claim and, thus, that Carson’s current declaratory-judgment action was
improper. Offord mischaracterizes the relief that Carson sought. Carson’s petition
sought a declaration that the “Correction Deed” was invalid in order to remove a
cloud on Carson’s title to the Fulshear Lot. Carson’s petition alleged that Offord
had “clouded” Carson’s title to the Fulshear Lot by asserting an interest in the
property “based on a specious ‘Correction Deed.’” Carson alleged that the
Correction Deed was “invalid, subject to cancellation and should be adjudicated a
nullity.” She made the following request for relief:
a. The [Correction Deed] and any related filings clouding [Carson’s] title to the Fulshear Lot be declared cancelled, null and void and of no further force or effect;
b. [Carson’s] title to the real property be quieted against [Offord];
c. [Carson] be adjudged the owner of the property and entitled to possession of the [Fulshear Lot];
d. [Offord] be adjudged to hold no estate nor interest of any kind in or to the Fulshear Lot;
e. Reasonable and necessary attorney’s fees and costs of the suit, and
f. Any other and further relief, in law or in equity, to which [Carson] is entitled.
15 Similarly, in her motion for summary judgment, Carson asserted that the
2010 Judgment and Deed “quiet[ed] title in the Estate of Winter Gordon.” She
asserted that there was no evidence of a sale or transfer to Offord, and she asserted
that the Correction Deed, attempting to substitute Offord individually in place of
Offord as the guardian of Winter Gordon’s estate, was invalid as a matter of law.
Carson asked the trial court to render summary judgment “cancelling” the
Correction Deed, and Carson asserted that her summary-judgment evidence
established that she was the owner of the Fulshear Lot and that Offord’s Correction
Deed was invalid.
Offord argues that the suit is a trespass-to-try-title suit. Considering the
pleadings, Carson’s suit is stated as a declaratory judgment action, but it is, in
substance, a suit to quiet title rather than a trespass-to-try-title claim. Rather than
seeking to clear a problem in the chain of title or to recover possession of land
unlawfully withheld from her, see Martin, 133 S.W.3d at 265 (describing
traditional purpose of trespass-to-try-title claims), Carson alleged that she was the
superior title holder seeking to remove the cloud on her title created by the invalid
Correction Deed. See Brumley, 616 S.W.3d at 835 (holding that suit to quiet title is
“traditionally one in which the superior title holder seeks to remove a challenge to
that title” and that quiet-title plaintiff must prove that she has right of ownership
and that adverse claim is cloud on title that equity will remove). Her suit was based
16 on the invalidity of the Offord’s claim to the property. See Gutierrez, 2020 WL
1951606, at *6 (describing basis of suit to quiet title); Essex Crane Rental Corp.,
371 S.W.3d at 388 (stating that suit to quiet title—also known as suit to remove
cloud from title—relies on invalidity of defendant’s claim to property). Carson did
not seek to establish or obtain her own right to ownership of the Fulshear Lot—she
contended that the previous court proceedings out lined above had already settled
that issue. Carson alleged, instead, that as the rightful title holder, she was entitled
to have the invalid Correction Deed removed as a cloud on her title. See Lance,
543 S.W.3d at 736 (stating that trespass-to-try-title claim was proper procedural
vehicle “when the claimant is seeking to establish or obtain the claimant’s
ownership or possessory right in the land at issue”); Essex Crane Rental Corp., 371
S.W.3d at 388 (stating that plaintiff in quiet-title claim must establish her superior
equity and right to relief and must prove, as matter of law, that she has right of
ownership and that defendant’s adverse claim is cloud on title that equity will
remove). Carson sought the declaration of her own ownership rights only as a
result of the removal of the cloud on title created by the purported Correction
Deed.
Considering the substance of Carson’s pleadings, Offord’s failure to file
special exceptions or pursue a ruling on her allegations that Carson’s pleadings
were inadequate, we reject Offord’s contention that the trial court should have
17 required Carson to proceed with a trespass-to-try-title suit pursuant to Texas
Property Code chapter 22. We overrule this portion of Offord’s first issue.
A. Validity of Correction Deed
In her second issue, Offord contends that the trial court erred in granting
Carson’s motion for summary judgment asserting that the Correction Deed was
invalid. Carson argued in her motion for summary judgment that the Correction
Deed purported to name a new grantee—Offord in her individual capacity as
opposed to Offord as the guardian of Winter Gordon’s Estate—and thus it
attempted to make a material correction governed by Property Code section 5.029.
Carson further asserted that, because the Correction Deed did not comply with the
requirements of section 5.029, it is invalid. Offord argues, on the other hand, that
correction of a name to avoid an ambiguity is an immaterial change under Property
Code section 5.028.
The Property Code authorizes the correction of an ambiguity or error in a
recorded original instrument of conveyance to transfer real property or an interest
in real property. See TEX. PROP. CODE § 5.027; Tanya L. McCabe Trust v. Ranger
Energy LLC, 531 S.W.3d 783, 794 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied); AIC Mgmt. Co., 2018 WL 1189865, at *6. Section 5.028, governing
“nonmaterial” corrections, provides in relevant part:
(a) A person who has personal knowledge of facts relevant to the correction of a recorded original instrument of conveyance may
18 prepare or execute a correction instrument to make a nonmaterial change that results from a clerical error, including:
(1) a correction of an inaccurate or incorrect element in a legal description, such as a distance, angle, direction . . . ; or
(2) an addition, correction, or clarification of:
(A) a party’s name, including the spelling of a name, a first or middle name or initial, a suffix, an alternate name by which a party is known, or a description of an entity as a corporation, company, or other type of organization;
(B) a party’s marital status;
(C) the date on which the conveyance was executed;
(D) the recording data for an instrument referenced in the correction instrument; or
(E) a fact relating to the acknowledgment or authentication.
TEX. PROP. CODE § 5.028.
The Property Code also provides for material corrections. See id. § 5.029.
Section 5.029 provides:
(a) In addition to nonmaterial corrections, including the corrections described by Section 5.028, the parties to the original transaction or the parties’ heirs, successors, or assigns, as applicable may execute a correction instrument to make a material correction to the recorded original instrument of conveyance, including a correction to:
(1) add:
(A) a buyer’s disclaimer of an interest in the real property that is the subject of the original instrument of conveyance;
19 (B) a mortgagee’s consent or subordination to a recorded document executed by the mortgagee or an heir, successor, or assign of the mortgagee; or
(C) land to a conveyance that correctly conveys other land;
(2) remove land from a conveyance that correctly conveys other land; or
(3) accurately identify a lot or unit number or letter of property owned by the grantor that was inaccurately identified as another lot or unit number or letter of property owned by the grantor in the recorded original instrument of conveyance.
Id. § 5.029(a). A correction instrument under section 5.029 must be:
(1) executed by each party to the recorded original instrument of conveyance the correction instrument is executed to correct or, if applicable, a party’s heirs, successors, or assigns; and
(2) recorded in each county in which the original instrument of conveyance that is being corrected is recorded.
Id. § 5.029(b).
A correction instrument that complies with section 5.028 or 5.029 is:
(1) effective as of the effective date of the recorded original instrument of conveyance;
(2) prima facie evidence of the facts stated in the correction instrument;
(3) presumed to be true;
(4) subject to rebuttal; and
(5) notice to a subsequent buyer of the facts stated in the correction instrument.
20 Id. § 5.030(a). A correction instrument replaces and is a substitute for the original
instrument. See id. § 5.030(b).
The Correction Deed here purports to correct the name of the grantee.
Following the 2010 Judgment awarding title by adverse possession to “Diana G.
Offord, as Guardian of the Estate of Incapacitated Person, Winter Gordon,” the
parties recorded a deed dated October 7, 2010, and referencing the 2010 Judgment.
The 2010 Deed identified multiple grantors, including George D. Gordon and the
other cross-defendants from the 2010 Judgment. The grantee on the 2010 Deed
was identified as “Diana G. Offord AKA Diana Gordon Offord as Guardian of the
Estate of Incapacitated Person, Winter Gordon, Jr., A.K.A. Winter Gordon, Sr.”
Winter Gordon died in 2011. In 2016, while his estate was still being
probated, Offord’s attorney filed the Correction Deed naming “Diana Gordon
Offord” as the new grantee. The Correction Deed itself identified the reason for
correction:
This is the correction deed, given and accepted to avoid a mutual mistake which INCORRECTLY NAMED DIANA GORDON OFFORD AS DIANA G. OFFORD AKA DIANA GORDON OFFORD AS GUARDIAN OF THE ESTATE OF INCAPACITATED PERSON, WINTER GORDON, JR AKA WINTER GORDON SR and is recorded in instrument number: 2010099315 of the Deed Records of Fort Bend County, Texas as such in substitution for such earlier deed dated on the 08th, October 2010 and it shall be effectual as of and retroactive to such date.
21 The 2016 Correction Deed, like the 2010 Deed, referenced the 2010 Judgment. The
Correction Deed was executed only by Offord’s attorney, Diogu Kalu Diogu II,
and filed in the real property records.
Thus, the 2016 Correction Deed identified a new grantee, changing the
identity of the grantee from Offord in her capacity as Winter Gordon’s guardian to
Offord in her individual capacity. Property awarded to “Diana G. Offord, as
Guardian of the Estate of Incapacitated Person, Winter Gordon,” cannot be
construed as belonging to Offord individually. Rather, as guardian, Offord was
entitled to “possess and manage all property belonging to the ward” and to “bring
and defend suits by or against the ward.” TEX. ESTATE CODE § 1151.101(a); Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (“Although a minor,
incompetent, or estate may have suffered an injury and thus have a justiciable
interest in the controversy, these parties lack the legal authority to sue; the law
therefore grants another party the capacity to sue on their behalf.”).
Thus, the change here—changing the grantee from Offord in her capacity as
Guardian of the Estate of Winter Gordon to Offord individually—is not correcting
a “clerical error” or making a correction or clarification of a party name; rather, it
is seeking to name a completely distinct legal entity as grantee. See TEX. PROP.
CODE § 5.028(a)(2)(A) (identifying nonmaterial, clerical corrections as including
“an addition, correction, or clarification of . . . a party’s name, including the
22 spelling of a name, a first or middle name or initial, a suffix, an alternate name by
which a party is known, or a description of an entity as a corporation, company, or
other type of organization”); AIC Mgmt. Co., 2018 WL 1189865, at *7 (holding
that substitution of “an entirely different party as grantee” was not clerical error
that could be corrected under section 5.028).
In AIC Management Co., this Court addressed whether a change in grantee
may be considered a “material” correction. 2018 WL 1189865, at *7. We observed
that, although section 5.029 “does not expressly contemplate a change in grantee to
be a ‘material’ correction within the statute, the statute employs, before its
enumerated list [of material corrections], the term ‘including.’” Id. (citing TEX.
PROP. CODE § 5.029). Generally, “‘[i]ncludes’ and ‘including’ are terms of
enlargement and not of limitation or exclusive enumeration, and use of the terms
does not create a presumption that components not expressed are excluded.” TEX.
GOV’T CODE § 311.005(13); AIC Mgmt. Co., 2018 WL 1189865, at *7. We thus
concluded that a correction seeking to change the identity of the grantee was a
material correction that required each party to the recorded original instrument to
execute the correction deed. AIC Mgmt. Co., 2018 WL 1189865, at *7, 9.
Here, as in AIC Management Co., the attempt to change the grantee from
Offord as the Guardian of the Estate of Winter Gordon to Offord individually is a
material change falling under section 5.029. Furthermore, the 2016 Correction
23 Deed was executed only by Offord’s attorney, so it did not comply with the
requirements of section 5.029 that the correction deed be executed by each party—
or if applicable, the parties’ heirs, successors, or assigns—to the original deed. See
TEX. PROP. CODE § 5.029(b). Because the Correction Deed does not comply with
the statutory requirements set out in section 5.029, it is not valid. See id.; Tanya L.
McCabe Trust, 531 S.W.3d at 798 (holding that requirement that each party to
recorded original instrument execute correction deed is essential to fulfilling
Legislature’s standard for permitting material correction).
We conclude that Carson established her right, as a matter of law, to have
the Correction Deed declared invalid and removed as a cloud on the title to the
Fulshear Lot.
B. Carson’s Title to the Fulshear Lot
As part of her complaint at trial and on appeal, Offord further contests the
trial court’s finding that Carson “owns the property in fee simple absolute, and
Defendant Diana Gordon Offord . . . [is] barred from asserting any right, title or
interest in or to the property . . . as a result of the [Correction Deed].”
Carson argued in her motion for summary judgment that there was “no
evidence that Defendant Offord ever acquired title to the Fulshear Lot.” Indeed,
Carson presented summary-judgment evidence supporting her contention that the
Fulshear Lot passed from the Estate of Winter Gordon through his will to Carson.
24 Offord argues,4 however, that the Fulshear Lot never belonged to the Estate of
Winter Gordon. She asserts that it was “undisputed from the record” that the owner
of the property at the time Offord became Winter Gordon’s guardian was George
Gordon and that Winter Gordon’s will could not have transferred the property to
Carson. Offord’s assertions disregard the nature of her role as guardian of Winter
Gordon’s estate prior to his death in 2011, and it ignores the effect of the 2010
Judgment and the rulings of the probate court in resolving Winter Gordon’s estate
following his death.
Offord was named guardian of Winter Gordon’s Estate in 2008. In 2009, the
Fulshear Lot was involved in a lawsuit filed by various taxing entities, including
Fort Bend County. The trial court rendered a final judgment in that case in 2010,
identifying “Diana G. Gordon, As Guardian of the Estate of Incapacitated Person,
Winter Gordon (“Offord”)” as a defendant in the tax suit and a cross-complainant
in the related “action to quiet title.” The 2010 Judgment included findings that
“Offord” had established the right to title of the Fulshear Lot through adverse
possession. Thus, the 2010 Judgment ordered that “Offord acquired title by
peaceable and adverse possession.”
By identifying “Offord” as meaning “Diana G. Offord, As Guardian of the
Estate of Incapacitated Person, Winter Gordon,” the 2010 Judgment thus awarded
4 This is from her reply brief, which clarified the arguments made in her opening appellant’s brief. 25 the Fulshear Property to the Estate of Winter Gordon. Offord was named as his
guardian, not in her individual capacity, because Gordon as an incapacitated person
lacked the capacity to sue or be sued. See Austin Nursing Ctr., 171 S.W.3d at 849.
As Winter Gordon’s guardian, Offord did not personally take title to the Fulshear
Lot; rather, she was entitled to “possess and manage all property belonging to the
ward.” See TEX. ESTATE CODE § 1151.101(a)(1); see also id. § 1151.003
(providing that guardian “may not dispute the right of the ward to any property that
came into the guardian’s possession as guardian of the ward” except in certain
circumstances not applicable here); id. § 1151.151(a) (“The guardian of the estate
shall take care of and manage the estate as a prudent person would manage the
person’s own property. . . .”).
Carson asserted in her motion for summary judgment that Offord could not
present any evidence that the Fulshear Lot had been granted to Offord individually.
The only evidence Offord provided with her response to the motion for summary
judgment was her own affidavit, in which she stated that she participated in her
individual capacity in the proceedings that resulted in 2010 Judgment, that the
court in the 2010 Judgment had awarded the property to her in her individual
capacity, and that her attorney had mistakenly “filed a deed for me as Guardian of
Winter Gordon Sr.” This self-serving affidavit, which contradicts recitations and
orders in the 2010 Judgment, is not sufficient summary-judgment evidence to raise
26 a fact issue regarding the effect of the 2010 Judgment. See Lujan, 555 S.W.3d at
88–90 (discussing “sham affidavit rule” and holding that, under specific facts of
that case, trial court did not err in considering tax documents as equivalent of
sworn statements and disregarding affidavit that contradicted that sworn evidence).
In addition to the 2010 Judgment awarding title to the Fulshear Lot to
Winter Gordon’s estate, Carson provided copies of Winter Gordon’s will naming
her as his sole heir. Carson further provided records from the probate proceeding,
demonstrating that the Fulshear Lot was listed in the inventory approved by the
probate court. And she presented the deed from the estate’s executor granting the
property to Carson as Winter Gordon’s sole heir. Offord, again, provided only her
conclusory affidavit testimony that the inventory was “bogus” and that “[i]t is clear
that the [Fulshear Lot] should not be a part of the will.” Thus, the record evidence
conclusively established that the Fulshear Lot passed from Winter Gordon’s estate
to his heir, Carson. As stated above, the evidence likewise established that the
2016 Correction Deed was not valid. The trial court correctly rendered its final
judgment based on the finding that the Correction Deed was invalid, ordering that
the Correction Deed “is null and void and cancelled of record” and that Carson
“owns the property in fee simple absolute, and Defendant [Offord] and all other
persons claiming under [Offord] are barred from asserting any right . . . to [the
Fulshear Lot] as a result of the [Correction Deed].”
27 We overrule Offord’s second issue.
C. Attorney’s Fees
Related to her first issue, Offord argues that because Carson’s suit could not
be brought under the DJA, that statute’s provision allowing attorney’s fees was
unavailable to Carson. As set out above, we concluded that, although Carson pled
her suit as a declaratory judgment, it was in substance a suit to quiet title.
Attorney’s fees are not available in quiet title disputes. Gutierrez, 2020 WL
1951606, at *6; Starbranch v. Crowell, No. 01-15-00429-CV, 2016 WL 796836, at
*2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2016, no pet.) (mem. op.).
The DJA does permit the recovery of attorney’s fees. See TEX. CIV. PRAC. &
REM. CODE § 37.009. However, a declaratory judgment action cannot be used
solely to obtain attorney’s fees. Starbranch, 2016 WL 796836, at *2 (“Attorney’s
fees are not available in a suit to quiet title or remove cloud from title, and . . . a
declaratory judgment action may not be used solely to obtain attorney’s fees that
are not otherwise authorized by statute.”); DAS Inv. Corp. v. Nowak, No. 01-03-
00140-CV, 2004 WL 396983, at *2–3 (Tex. App.—Houston [1st Dist.] Mar. 4,
2004, no pet.) (mem. op.) (holding that defendants could not recover attorney’s
fees under DJA because their counterclaim, which alleged that liens were
unenforceable and prevented defendants from having good and marketable title,
was essentially claim to quiet title). Here any declaration sought by Carson or
28 made by the trial court was to resolve the quiet-title dispute. We conclude that the
award of attorney’s fees was improper.
Accordingly, we modify the judgment of the trial court to delete the award
of attorney’s fees.
Conclusion
We modify the judgment to delete the award of attorney’s fees and affirm
the judgment as modified.
Richard Hightower Justice
Panel consists of Justices Kelly, Landau, and Hightower.