Miramar Fairmount Partners, LLC and Calabaza Holdings, LLC v. 2902 Maple, LP, Anders P. Ting and Comerica Bank

• Court: Court of Appeals of Texas
• Decided: March 19, 2021
• Docket: 05-19-01350-CV
• Status: Published

Opinion

Affirm and Opinion Filed March 19, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01350-CV

MIRAMAR FAIRMOUNT PARTNERS, LLC AND CALABAZA HOLDINGS, LLC, Appellants V. 2902 MAPLE, LP, ANDERS P. TING AND COMERICA BANK, Appellees

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-16-10049

MEMORANDUM OPINION Before Justices Schenck, Smith, and Garcia Opinion by Justice Smith Appellee 2902 Maple sued appellants Calabaza Holdings, LLC and Miramar

Fairmount Partners, LLC to quiet title and also sought declaratory judgment that a

remote/shared parking agreement, called the “Triparty,” was forged and therefore

void ab initio. Following a bench trial, the court entered judgment quieting title.

The court also entered findings of fact and conclusions of law.

In a single issue, Miramar asks this Court to reverse and render judgment in

its favor because, despite the trial court finding the Triparty was forged and void ab

initio, the unimpeached certificate of acknowledgement attached to the Triparty conclusively establishes the document was acknowledged by Fred Gauthier (the

person who’s signature was forged).1 Calabaza seeks reversal for the same reason.

Despite Miramar’s and Calabaza’s well-presented arguments, we conclude, under

the facts of this case, the evidence is legally sufficient to support the trial court’s

judgment.

Calabaza further argues the trial court improperly granted declaratory

judgment. Because the trial court did not grant a declaratory judgment, we need not

address Calabaza’s arguments.

The issues on appeal are well-settled and the parties are familiar with the

underlying facts; therefore, we issue this memorandum opinion. TEX. R. APP. P.

47.1.

Background

Because Miramar challenges the legal sufficiency of the evidence, we include

only those facts necessary for disposition of the appeal in the light most favorable to

the trial court’s judgment.

Citizen Uptown, LLC operated a bar on property it leased from Calabaza

Holdings, LLC. The bar needed additional parking to comply with the City of Dallas

requirements. Imran Sheikh, a managing member with Citizen, reached out to Fred

1 Miramar states its issue as, “Does the trial court’s judgment lack legally sufficient supporting evidence because the certificate of acknowledgment conclusively establishes the challenged signature’s authenticity?” –2– Gauthier, an officer of Comerica Bank and a trustee that operated 2902 Maple. On

October 13, 2015, Gauthier, as Vice President of Comerica Bank, and Sheikh on

behalf of Citizen Upton, signed a six-month parking agreement allowing Citizen

Uptown to use fifteen parking spaces located at 2902 Maple.

The City required documentation in its records of remote/shared parking

agreements. Around October 15, 2015, Sheikh met Gauthier to review the

document, referred to as the Triparty. Sheikh could not recall if a notary was present

at this meeting when Gauthier signed the document.

Gauthier signed an old template of the Triparty, and the City allegedly would

not accept it. Sheikh arranged to meet Gauthier and Barry Hancock, Calabaza’s vice

president, on November 2, 2015, to obtain signatures for an updated Triparty. It was

undisputed that Sheikh was the point person for getting Gauthier’s and Hancock’s

signatures. Gauthier testified Sheikh brought a two-page document that he signed

before Anders Ting, the branch manager of Comerica Bank and a notary public.

Gauthier described the document as “an affidavit of some sort supporting that there

was a contract for parking between the trust and Mr. Sheikh.” Gauthier did not keep

a copy of what he signed. In a later email dated July 26, 2016, Gauthier stated,

“What I recall signing was a brief document—not this.”

Ting testified Gauthier appeared before him on November 2, and Ting

notarized a document, but he did not recall what document or how many pages it

contained. He no longer had his notary book so he had no record of what he

–3– notarized. Both Ting and Gauthier testified that Gauthier appeared before Ting only

one time on November 2.

After acquiring Gauthier’s signature and his acknowledgment to some

document, Sheikh went to Hancock’s office. Hancock testified the document

presented to him was incorrect and needed revisions. He called his lawyer and then

made changes to the document before signing.

The revised Triparty was recorded in the Dallas County deed records.2 This

Triparty contained a certificate of acknowledgement that stated, “This instrument

was acknowledged before me on November 2, 2015 by Frederick J. Gauthier, as

Vice President of Comerica Bank, Trustee of the Mary Ann Thompson-Frenk “F”

Trust, sole member of 2902 Maple GP, LLC a Texas Limited Liability company,

general partner of 2902 Maple LP, a Texas Limited Partnership.” The certificate of

acknowledgment was a separate and distinct page attached to the Triparty. The

acknowledgment certificate did not identify or define what “This instrument” meant

and did not contain a footer like the other five pages of the Triparty. 3 Further, the

information around Gauthier’s forged signature (identifying Owner B, the printed

version of his name, and his title) was admittedly filled in by Sheikh.

2 Calabaza and Miramar produced another version of the Triparty during discovery that was attached to an email sent on November 2 at 11:04 a.m. by a Calabaza employee. This version of the Triparty was signed by Hancock, but not Gauthier, yet Ting’s acknowledgment page was attached. 3 Each page of the Triparty, except for the certificate of acknowledgment, had a footer stating, “REMOTE/SHARED PARKING AGREEMENT FOR OAK LAWN SPECIAL PURPOSE DISTRICT (Instrument)-PAGE 1 OF 5 (rev. 6-20-14).” –4– On July 26, 2016, Gauthier received an email from Hancock stating Calabaza

was selling its property to Miramar, and Miramar wanted a signed estoppel

certificate ratifying that the Triparty was still in effect. Attached to the email was

the estoppel certificate and the Triparty. Gauthier refused to sign the estoppel

certificate once he realized his signature on the Triparty was forged, a detail he was

unaware of until the email.

2902 Maple sued Calabaza and Miramar to quiet title and also sought a

declaratory judgment. The case proceeded to a bench trial.

Sheikh testified the specific details of the transaction “remain somewhat hazy.

I mean, I can’t remember what I wore last Monday, and that was three years ago.”

Gauthier, Hancock, and Ting testified about the events on November 2. It was

undisputed that Sheikh first obtained Gauthier’s signature and then Hancock’s

signature. It was undisputed Sheikh did not return for Gauthier’s signature after

Hancock revised the Triparty. The record was unclear as to exactly how or when

Ting’s acknowledgment page was attached to the disputed Triparty as that version

of the document was not presented to Gauthier for his signature.

Sheikh, however, admitted he was under an immense time crunch to file the

Triparty with the City by 11:00 am on November 2. He could not explain why there

were multiple versions of the Triparty with various signatures and acknowledgment

forms, none of which seemed to entirely match. He admitted he had multiple copies

–5– of parking agreements in his possession and “at any given point just when they’re

all being put together, a page could slip in with a certain agreement and vice versa.”

After trial, the court entered judgment quieting title. The parties requested

findings of fact and conclusions of law. The trial court issued the following findings

of fact relevant to this appeal:

1. Frederick J. Gauthier (“Gauthier”) did not sign the “Remote/Shared Parking Agreement for Property” recorded in the real property records of Dallas County on December 15, 2015 as Document 201500329982 (the “Triparty”). . . . 2. Gauthier did have authority to execute the Triparty agreement on behalf of Plaintiff. 3. The signature attached to the Triparty agreement which was alleged to be that of Gauthier was a forgery. The court made the following conclusions of law: 1. A forged deed is void and passes no title. The Triparty was forged and purported to convey a property right in 2902 Maple which granted the Fairmount Properties a right of possession to use parking on the property located at 2902 Maple in perpetuity.

2. The Triparty was void ab initio and passed no title to Calabaza. And because it was void, and not just voidable, it passed no title or property rights when conveyed by Calabaza to Miramar.

This appeal followed.

Sufficiency of the Evidence

A void instrument passes no title, and a forged deed is void ab initio. Morris

v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 843 (Tex. App.—Dallas 2011, no pet.).

Miramar does not challenge the forgery finding on appeal. Instead, Miramar argues

the certificate of acknowledgement is prima facie evidence that Gauthier appeared –6– before Ting and executed the Triparty for the purposes and consideration therein

expressed. Id.; see also Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326,

330 (Tex. App.—Dallas 1987, writ denied). Clear and unmistakable proof that either

Gauthier did not appear before Ting or that Ting practiced some fraud or imposition

upon Gauthier is necessary to overcome the validity of a certificate of

acknowledgment. Bell, 738 S.W.2d at 330. Neither party asserts that Ting

committed fraud; rather, the dispute centers on whether Gauthier appeared before

Ting and acknowledged the Triparty.

Findings of fact in a nonjury trial have the same force and dignity as a jury’s

verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Lewis v. Dallas

Soundstage, Inc., 167 S.W.3d 906, 912 (Tex. App.—Dallas 2005, no pet.). When a

complete reporter’s record is filed, the trial court’s fact findings may be reviewed

for legal and factual sufficiency under the same standards as jury verdicts. Id. In

doing so we do not substitute our judgment for that of the factfinder, even if we

would have reached a different conclusion when reviewing the evidence. Id. Rather,

when addressing a legal sufficiency challenge, we view the evidence in a light most

favorable to the finding, consider only the evidence and inferences that support the

finding, and disregard all evidence and inferences to the contrary. Id. We uphold

the finding if more than a scintilla of evidence exists to support it. Id.

Evidence is legally insufficient to support a jury finding when (1) the record

bears no evidence of a vital fact; (2) the court is barred by rules of law or of evidence

–7– from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

conclusively establishes the opposite of a vital fact. Shields Ltd. P’ship v.

Bradberry, 526 S.W.3d 471, 480 (Tex. 2017).

Miramar asserts that 2902 Maple’s failure to obtain findings impeaching the

certificate of acknowledgement means the certificate conclusively established the

truth of the its recitals—including that 2902 Maple, through Gauthier, executed the

instrument. As a result, Miramar claims the evidence conclusively establishes the

opposite of a vital fact and the judgment quieting title should be reversed. Miramar

relies on Bell v. Sharif-Munir-Davidson Development Corp., 738 S.W.2d 326, 330

(Tex. App.—Dallas 1987, writ denied).

In that case, Bell allegedly signed a deed and acknowledged it before a notary.

Id. at 328. Almost two years after closing, Bell was declared non compos mentis.

Id. His son brought suit alleging that Bell’s signature on the deed was forged. Id.

The trial court granted the defendants’ traditional motion for summary judgment.

We held the certificate of acknowledgment was prima facie evidence that Bell

appeared before the notary and executed the deed in question. Id. at 329. And, even

a forged deed could be adopted by the grantor when the grantor subsequently

acknowledged the deed unless the grantor provided clear and unmistakable proof

that either the grantor did not appear before the notary or that the notary committed

some fraud. Id. at 330. Because Bell failed to present evidence that he was not

–8– present when the deed was acknowledged or that the notary perpetuated a fraud, the

validity of the execution of the deed was conclusively shown. Id. We further relied

on other evidence that Bell intended to adopt the deed in question, even if forged,

because he accepted and retained the two million dollars he received for the property,

invested part of it, recognized the capital gains on his income tax return, and never

attempted to repudiate the sale during the time before he was declared non compos

mentis. Id.

Bell is distinguishable from the present facts. Unlike Bell, the evidence here

establishes that Gauthier did not and could not have appeared before Ting to

acknowledge the Triparty. It is undisputed that Sheikh first went to Gauthier’s office

for him to sign some document, then to Hancock’s office where Hancock made

changes to the Triparty, and then never returned to Gauthier for him to sign the

revised Triparty before filing it with the City. While Gauthier appeared before Ting

and acknowledged some document, that document was not the Triparty.

Further, the acknowledgment merely states that Gauthier acknowledged “This

instrument” without identifying the document. The record contains two

acknowledgment forms for Gauthier showing slight differences in Ting’s signatures.

Ting testified those were his signatures, but Gauthier only appeared before him once.

The record indicates someone shuffled pages between documents to put

together a completed Triparty and filed it with the City. Sheikh admitted he was

under an immense time crunch to file the Triparty with the City by 11:00 am on

–9– November 2, and could not explain why there were multiple versions of the Triparty

with various signatures and acknowledgment forms, none of which seemed to

entirely match. He admitted he had multiple copies of parking agreements in his

possession and “at any given point just when they’re all being put together, a page

could slip in with a certain agreement and vice versa.”

Under the facts of this case, we conclude the certificate of acknowledgment

does not conclusively establish that Gauthier appeared and executed or adopted the

Triparty. See Shields Ltd. P’ship, 526 S.W.3d at 480.

In reaching this conclusion, we reject Miramar’s assertion that the judgment

must be reversed because the trial court refused to issue findings of fact as to whether

Gauthier did not appear before Ting to sign the Triparty, despite 2902 Maple’s

request for such finding. Miramar argues the court’s failure to adopt 2902 Maple’s

proposed finding amounted to a refusal and, therefore, we may not presume any

findings as to the acknowledgment on appeal. See TEX. R. CIV. P. 299; see also

Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston

[14th Dist.] 1999, pet. denied). 2902 Maple responds the trial court did not need to

make any such findings because it was unnecessary, and the findings the court made

support the judgment. We agree.

Public policy favors the validity of judgments. See Vickery, 5 S.W.3d at 251.

Thus, there is a general presumption of validity extending to the judgments of courts

–10– of general jurisdiction. Id. Without such a presumption, a court’s judgment would

have very little import and “there would be no end to troublesome litigation.” Id.

Moreover, the presumption of validity extends to judgments derived with or

without the benefit of a jury. Id. In fact, the presumption of validity is perhaps even

stronger in a bench trial where an experienced judge, as is the case here, exercises

the functions of a jury and is charged with the responsibility of assessing the

credibility of the witnesses, logically evaluating the evidence, rationally resolving

factual disputes on the basis of such evidence, and correctly applying the law to the

facts. Id. These things the trial court is presumed to have done because the judge is

assumed to have conscientiously done his duty. Id.

Although the trial court’s findings of fact do not include any specific mention

of the certificate of acknowledgment, the findings do encompass all the facts

necessary to support its conclusions that the Triparty was void and passed no title or

property rights to Calabaza or to Miramar when Calabaza sold its property. As such,

we need not presume any facts. See, e.g., City of Brownsville v. Longoria, No. 13-

12-00224-CV, 2014 WL 1370115, at *10 (Tex. App.—Corpus Christi-Edinburg

Apr. 3, 2014, pet. denied) (mem. op.) (concluding no presumption of facts needed

when all essential facts for resolution of issue were found in findings). By finding

that Gauthier did not sign the Triparty recorded in the deed records and the signature

attached to the Triparty was a forgery, the court necessarily found that Gauthier did

not appear before Ting on November 2 and acknowledge the Triparty. If Gauthier

–11– did not sign the Triparty, which he did not because it was forged, then when he

appeared before Ting and acknowledged some document the morning of November

2, the court recognized based on the evidence in this case, the document could not

have been the Triparty.

We reject Miramar’s invitation to reverse a judgment based on a procedural

technicality regarding the rules of findings of fact and conclusions of law. The trial

court’s failure to include 2902 Maple’s requested finding of fact was not

“tantamount to a refusal” thereby requiring 2902 Maple to either request additional

findings or lose the presumption in support of the judgment for omitted elements.

See TEX. R. CIV. P. RS. 298, 299. Rather, as explained above, the court made the

necessary findings to support the judgment. We overrule Miramar’s legal

sufficiency challenge.

Calabaza joined Miramar in arguing that the trial court’s judgment was legally

insufficient. For the reasons stated above, and because Calabaza has not challenged

whether it was a proper party to the suit to quiet title, we likewise overrule

Calabaza’s sufficiency challenge.

We need not address 2902 Maple’s cross-issue in which it argues, in an

abundance of the caution, that the trial court erred by failing to enter findings of fact

that Gauthier did not appear before Ting with respect to the Triparty. TEX. R. APP.

P. 47.1.

–12– Declaratory Judgment and Attorneys’ Fees

Calabaza argues the trial court erred by granting a declaratory judgment

because there was no justiciable controversy between it and 2902 Maple.

The trial court did not grant a declaratory judgment. Rather, the final

judgment provided that “all claims by the Plaintiff relate solely to clearing title to

the real property and that the claims made under the Texas Declaratory Judgments

Act are surplusage and improperly pled for the sole purpose of seeking attorneys’

fees for claims which do not otherwise entitle any of the parties to such fees.” After

considering the pleadings and evidence, we strongly agree with the trial court’s

decision that this was nothing more than a suit to quiet title. Thus, we need not

address Calabaza’s arguments. TEX. R. APP. P. 47.1.

To the extent Calabaza and 2902 Maple challenge the trial court’s failure to

award attorneys’ fees under the Declaratory Judgment Act, their issues are without

merit. A party is not entitled to recover fees for claims that merely duplicate other

affirmative claims for which fees are unrecoverable. See MBM Fin. Corp. v.

Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009); see also CBIF Ltd.

P’ship v. TGI Friday’s Inc., No. 05-15-00157-CV, 2017 WL 1455407, at *12 (Tex.

App.—Dallas Apr. 21, 2017, pet. denied). Attorneys’ fees are not available in a suit

to quiet title or to remove cloud on title. See AMC Mortg. Servs., Inc. v. Watts, 260

S.W.3d 582, 588 (Tex. App.—Dallas 2008, no pet.). Thus, the parties had no legal

vehicle available from which to recover fees. As such, the trial court acted within

–13– its discretion by denying all parties recovery of their attorneys’ fees. See Brookshire

Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 313 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied) (trial court may decline to award attorney’s

fees to either party).

Conclusion

Having considered and overruled the issues and cross-issues presented by

Miramar, Calabaza, and 2902 Maple, we affirm the trial court’s judgment as to these

parties. We likewise affirm the trial court’s judgment as to appellees Comerica Bank

and Anders P. Ting because appellants have not raised any appellate issues as to

either party.

191350f.p05 Craig Smith CRAIG SMITH JUSTICE

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MIRAMAR FAIRMOUNT On Appeal from the 95th District PARTNERS, LLC AND Court, Dallas County, Texas CALABAZA HOLDINGS, LLC, Trial Court Cause No. DC-16-10049. Appellants Opinion delivered by Justice Smith. Justices Schenck and Garcia No. 05-19-01350-CV V. participating.

2902 MAPLE, LP, ANDERS P. TING AND COMERICA BANK, Appellees

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

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 19th day of March, 2021.

–15–