1st Coppell Bank v. Smith
| Decision Date | 05 November 1987 |
| Docket Number | No. 05-86-01179-CV,05-86-01179-CV |
| Citation | 742 S.W.2d 454 |
| Parties | 1ST COPPELL BANK, Appellant, v. Homer Lee SMITH and Paulette Smith, Appellees. |
| Court | Texas Court of Appeals |
Michael Lowenberg, Mary L. O'Connor, A. Lauren Carpenter, Dallas, for appellant.
Randall Reed, Dallas, for appellees.
Before HOWELL, STEWART and BAKER, JJ.
Homer Lee and Paulette Smith sued 1st Coppell Bank to enjoin foreclosure of their homestead and to remove a deed of trust as a cloud on their title. The Bank counterclaimed for breach of contract. After trial to the court, the court granted a permanent injunction and removed the Bank's deed of trust as a cloud on the Smiths' title. The court also denied the Bank relief on its counterclaim. In thirteen points of error, the Bank contends that: (1) the deed of trust is valid; (2) the Bank is entitled to protection as a bona fide purchaser; (3) a defective acknowledgement will not invalidate a deed of trust; (4) the contract which serves as the basis for the counterclaim is valid and enforceable; and (5) the Bank proved its affirmative defenses of unclean hands and estoppel. For the reasons below, we affirm the judgment of the trial court.
During the summer of 1983, the Smiths received $28,000 from John Gorman, III. In exchange, the Smiths gave Gorman, III a deed, absolute on its face, to their homestead. At the time of delivery, no name had been filled in as grantee. Although the Smiths intended that the grantee be Gorman, III or his company, Gorman, III inserted the names of his parents, John Gorman, Jr. and Katherine Gorman, as grantees. The trial court found that the Smiths and Gorman, III intended the purported sale to be a mortgage. The transaction was disguised as a sale to circumvent the homestead restriction.
On July 26, 1983, the Bank lent $28,000 to John Gorman, Jr. and Katherine Gorman, the indebtedness evidenced by a note and secured by a deed of trust on the Smiths' property purportedly conveyed to the Gormans. Both the deed from the Smiths and the deed of trust were filed of record on August 19, 1983. When payments on the note ceased, the Bank posted a notice of substitute trustee's sale to be held on April 1, 1986.
When the Smiths learned that the Bank was going to foreclose upon their home, they approached the Bank to negotiate an arrangement whereby the Smiths would assume the Gormans' obligations under the note and the Bank would not foreclose. The Smiths, their attorney and the Bank's attorney signed a letter stating that the Smiths would purchase their property from John Gorman, III for $5,000 cash and a $29,000 note. Gorman, III would give the Bank the $5,000 cash and assign the note to the Bank. The Bank would then release its deed of trust lien.
The Smiths did not sign the note as required by the agreement, so the Bank again posted the property for foreclosure. The Smiths sued the Bank to enjoin foreclosure and to remove a cloud from their title, contending that the Gormans' signatures on the deed of trust and note were forgeries, rendering the deed of trust void.
The trial court found that neither John Gorman, Jr. nor Katherine Gorman had executed the note or deed of trust. Further, the court found that neither John nor Katherine Gorman had authorized anyone to sign his or her name to the note or deed of trust. A forged deed, or deed of trust, is void, and does not pass title to land. Texas Osage Cooperative Royalty Pool, Inc. v. Cruze, 191 S.W.2d 47, 54 (Tex.Civ.App.--Austin 1945, no writ); Erwin v. Curtis, 5 S.W.2d 547, 548 (Tex.Civ.App.--Eastland 1928, writ ref'd). The Bank cannot foreclose under a void deed of trust. In points of error five and six, the Bank contends that there is no evidence, or in the alternative, insufficient evidence to support these findings of forgery because: (1) the Gormans did not deny that the signatures on the deed of trust were theirs; (2) the Smiths failed to lay the proper predicate for the admission of the expert's testimony; (3) the Smiths' handwriting expert was not qualified as an expert; (4) the expert failed to compare the purportedly forged signatures to sufficient signatures shown to be genuine; (5) Gorman, III signed his parents' names to the deed of trust with their authority; and (6) the Gormans ratified the deed of trust.
The Gormans testified that they did not know whether they signed the note or deed of trust. Although they thought the signatures looked like their signatures, the Gormans could not remember whether they signed the documents. The Bank argues, without citation of authority, that absent an unequivocal denial by the purported signatories there is no evidence to support a finding that the documents were forged. We can find no authority supporting the Bank's contention that the only competent evidence of forgery is testimony from the purported signatory that the signature is not his. In fact, we find some authority in conflict with that position.
In Buist v. Connell, 233 S.W.2d 458 (Tex.Civ.App.--Eastland 1950, writ ref'd), a handwriting expert testified that M.M. Buist had signed a deed in the name of P.H. Harris. Harris was a fictitious name ordinarily used by O.J. Connell to hold title to property. The court held the evidence sufficient to support the fact findings of forgery without the testimony of the purported signatory--a fictitious person--or the testimony of O.J. Connell, deceased at the time of trial. Certainly, this case illustrates that the Bank's position that the purported signatory must deny his signature is untenable.
The Bank also contends that the failure of the Gormans to deny their signatures prevents testimony of the handwriting expert. The Bank argues that expert testimony as to the authenticity of the Gormans' signatures was inadmissible absent denial of the signatures. Rule 702 of the Texas Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
TEX.R.EVID. 702 (emphasis added). The genuineness of the Gormans' signatures was a fact in issue without an unequivocal denial of the genuineness of the signatures. The parties do not cite, and we are unaware of, any authority requiring unequivocal denial of the genuineness of a signature as a predicate to expert handwriting testimony.
The Bank argues further that the testimony of Ray Walker, the proffered handwriting expert, should have been excluded because he was not shown to be qualified as an expert witness. Rule 702 of the Texas Rules of Evidence states that a witness qualified as an expert by knowledge, skill, experience, training or education may testify to assist the trier of fact to understand the evidence or to determine a fact in issue. The court's determination that a witness is qualified will not be disturbed on appeal unless a clear abuse of discretion is shown. Milkie v. Metni, 658 S.W.2d 678, 679 (Tex.App.--Dallas 1983, no writ).
Ray Walker testified that he had been a questioned document examiner for eighteen years. He had attended a number of seminars and courses concerning questioned document examining and had received his teaching certificate in Forensic Scriptotechniques from the Scriptology Institute of Colton, California. He completed a course of study at the International Graphoanalysis Society, including three years of residence training. Walker also testified that he had testified as a handwriting expert in Texas, Oklahoma, Arizona, Arkansas and Louisiana. He was certified to testify by the Air Force in New Mexico, the Pawhuska Indian Court, the Federal Mediation Court in Fort Worth and by federal courts in Dallas. He has been a court-appointed expert in both state and federal courts.
On voir dire by Bank's counsel, Walker testified that he has written several books on handwriting analysis, which is determining personality from handwriting. His training with the Scriptology Institute was in the area of handwriting analysis, not questioned document examination. His training at the International Graphoanalysis Society included both handwriting analysis and questioned document examination. Walker did most of his training twenty years ago and has not taken a seminar in questioned document examination in ten years. In arguing that Walker is not qualified as an expert, the Bank relies upon Carroll v. State, 276 Ark. 160, 634 S.W.2d 99 (1982). In Carroll, the Arkansas court held that the trial court did not abuse its discretion in rejecting an expert who had trained at the International Graphoanalysis Society and was primarily a graphologist, a person who discerns a person's personality from his handwriting. Carroll, 634 S.W.2d at 102.
Walker testified that although he was trained and experienced in graphoanalysis, he was also trained and experienced in analysis of questioned documents, including forgeries. During his eighteen years as a questioned document examiner, he had testified as an expert in a number of state and federal courts. We hold that the trial court did not abuse its discretion in allowing Walker to testify as an expert.
The Bank contends that the evidence is legally and factually insufficient to support the trial court's findings that the Gormans did not execute the deed of trust or note. The trial court's findings of fact are reviewable for legal and factual sufficiency by the same standards as are applied in reviewing the legal or factual sufficiency of evidence supporting a jury's answer to special issues. Baker v. Baker, 719 S.W.2d 672, 674-75 (Tex.App.--Fort Worth 1986, no writ); Okon v....
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