Armstrong v. Armstrong, 08-16-00223-CV

• Court: Court of Appeals of Texas
• Writing for the Court: ANN CRAWFORD McCLURE, Chief Justice
• Citation: 570 S.W.3d 783
• Parties: Quentin Cole ARMSTRONG, Jr., Appellant, v. Paul C. ARMSTRONG, Appellee.
• Docket Number: No. 08-16-00223-CV,08-16-00223-CV
• Decision Date: 31 July 2018

570 S.W.3d 783

Quentin Cole ARMSTRONG, Jr., Appellant,
v.
Paul C. ARMSTRONG, Appellee.

No. 08-16-00223-CV

Court of Appeals of Texas, El Paso.

July 31, 2018

ATTORNEY FOR APPELLEE: Hon. C. Tony Wright, The Wright Lawfirm P.L.L.C., 6440 N Central Expy., Ste. 820, Dallas, TX 75206-4136.

ATTORNEY FOR APPELLANT: Hon. Tommy D. Sheen, 1931 East 37th Street, Suite 2, Odessa, TX 79762.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This appeal arises from a purported oral agreement between two brothers, Quentin Cole Armstrong, Jr., Appellant, and Paul C. Armstrong, Appellee, regarding the conveyance of an interest in real estate from Paul to Cole. After a dispute arose regarding an alleged breach of the oral agreement, Paul filed suit against Cole. In his petition, Paul claimed that Cole had failed to re-convey the real property interest as agreed, and had wrongfully received oil and gas revenues that were properly payable to Paul. His suit also sought an accounting and payment.

After a bench trial, the trial court ruled in Paul’s favor and ordered Cole to convey Paul’s interests by special warranty deed, and to provide true and correct copies of any mineral or surface lease affecting the property as well as an accounting under oath of all income received from the property. The trial court did not award damages but did issue findings of fact and conclusions of law. We reverse the trial court’s judgment and render judgment for Cole.

FACTUAL SUMMARY

Paul’s Testimony

Paul testified that after their father died, he and Cole each inherited a one-quarter

570 S.W.3d 786

interest, and their stepmother inherited a one-half interest, in the family land. In 2009 or 2010, Paul was in the midst of a divorce, and claimed to be in a poor emotional state. According to Paul, Cole was concerned about Paul’s potential actions regarding his portion of the family land and leases, and asked him to convey his interest with the understanding that Cole would later convey that interest back to Paul. Paul was divorced on or about March 18, 2011.

Multiple deeds were introduced into evidence. The first from Paul as Grantor to Cole as Grantee was dated May 12, 2010. The deed was recorded on May 19. Paul identified his divorce attorney as the person who had prepared the deed, confirmed his own signature on the document, and recalled signing it. He admitted that the property conveyance had been his attorney’s idea. The second general warranty deed showed a typed date of May 12, 2010, but the typed date had been scratched out and replaced by hand with "10 August 11." This document was dated and filed on August 10, 2011, and was recorded on August 26, 2011. Paul did not recall going to a notary and never knew that a deed dated August 10, 2011, had been filed. Nor did he know why the first deed was filed a second time. Paul also apparently signed a quitclaim deed that was the last of the several conveyances. Although he verified his signature and did not deny signing the instrument, Paul did not remember signing it. But he would have signed whatever his brother had given him and would only have signed the document at his brother’s request. The typewritten date on the quitclaim deed is February 22, 2012, but is followed by the typed phrase, "effective, however, as of September 1, 2011." The quitclaim deed was filed February 27, 2012.

A general warranty deed purporting to re-convey the property from Cole to Paul bears a typewritten date of March 29, 2011. Above the notary’s signature line is typed, "on this the ______ day of March, 2011 by Quentin Cole Armstrong." The document was notarized by Jessica Abila, who had been employed by Paul’s divorce attorney.¹ The deed was filed for record on May 25, 2011, and was recorded on June 7, 2011. When shown this instrument at trial, Paul declared it was the first time he had seen the document, and did not know that his brother had ever signed the property back to him. Paul had no recollection of the document, did not know who had prepared the deed, had no knowledge regarding its authenticity, did not know the notary public, and did not know that the document had been filed.

In the spring of 2013, Paul asked Cole to re-convey the property interest but Cole’s response was, "Not yet." Near the end of 2013, Paul asked again. This time, Cole declared that he would not re-convey the property to Paul. Paul trusted his brother, felt hurt and deceived by Cole’s refusal, and believed his brother had breached that trust. Paul admitted that he had no written documentation other than the deeds.

Paul’s testimony took a twist when he later testified that he had approached Cole about the proposed transfer of interest. When his divorce attorney had asked Paul to identify a trustworthy person to whom Paul could "convey [the property] so [he] could give it back," Paul answered, "My brother." Paul admitted that he "obviously" brought up the subject, and when asked whether the purpose of the conveyance was to "get it out of [his] name" in relation to his divorce, Paul testified,

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"Well, obviously it was."²

Cole was to re-convey the property whenever Paul asked him to do so, and no length of time was established.

The trial court judicially noticed the court’s divorce file. His wife’s inventory listed the land at issue as being Paul’s separate property. In other words, she did not claim a community property interest therein.

Cole’s Testimony

Cole admitted that he had not paid any consideration as recited in the deeds, and acknowledged that the conversations occurred prior to May 12, 2010. He denied that that the conveyance was due to Paul’s depression or pending divorce. He also denied he had promised to re-convey the property. He had not provided an accounting because he did not feel it was necessary. When asked why he would not re-convey the property, Cole testified:

A. He deeded it to me, and I told him I'm going to keep it.

Q. Pardon?

A. He deeded it to me, and I told him I'm going to keep it.

Q. Did you tell him in the spring of 2013 you weren't going to transfer it to him, ‘not yet,’ those exact words?

A. I don't recall saying ‘not yet.’ I told him it was my—he deeded it to me and I'm going to keep it.

Q. There wasn't any real consideration for this transfer, was there?

A. No.

Q. Huh?

A. There was no money.

* * * * *

Q. Isn't it true that you were supposed to go back by his attorney’s office and sign the deed back to him and a memorandum back to him?

A. No.

Q. So you just want something free. You want his one-fourth interest free.

A. No.

Q. Why—why are you saying that?

A. Well, I'm taking care of it. That’s all I can tell you.

Q. Pardon?

A. I'm taking care of it properly. That’s all I can tell you.

Q. And who are you taking care of it for?

A. The family.

Q. Whose family?

A. Our immediate family.

Q. Pardon?

A. The immediate family.

Q. Who specifically are you taking care of his one-fourth interest that he deeded it to you for?

A. I'm just taking care of his sons if they need any help.

Q. So you admit that you took this property basically as trustee for your brother’s interest.

A. Yes.

Q. And now, as a trustee, when he wants it back, you refuse to give it back to him.

MR. SCOGIN: Object to the question that he’s a trustee.

MR. WRIGHT: He admitted he was, Your Honor.

THE COURT: Well, that has legal connotations. I'm not going to hold this witness as an expert. But I'll overrule

570 S.W.3d 788

the objection, understanding that, you know, ‘trustee’ has a certain legal meaning that we may understand that he may not.

Although Cole admitted that earnings had resulted relative to "the leases," he was uncertain of the amount.

Cole delivered to his attorney a letter he had received from Paul’s attorney requesting that he re-convey the property to Paul. Cole had not received any recorded deeds from the county clerk, and did not recall who had prepared them. Regarding the general warranty deed that purported to re-convey the property, Cole denied that the signature was his. He had learned about it when someone from the bank told him that Paul had come in with "this document."

On October 4, 2011, Cole filed in the clerk’s office an affidavit of fact. He declared he had "acquired all of the one-fourth (1/4) interest of my brother, Paul C. Armstrong" in the property and had discovered "a general warranty deed dated March 29, 2011, recorded in Book 880, page 722, of the Official Public Records of Reeves County, Texas" showing that he had re-conveyed the property. He further declared, "I did not sign such document nor have I ever agreed to convey or re-convey this interest to anyone. As of this date, I still claim all of the interest conveyed to me under the General Warranty Deed, dated May 12, 2010, recorded in Book 843, page 182, of the Official Records of Reeves County, Texas."

Trial Court’s Ruling

After considering closing arguments, the trial court took the matter under advisement, and requested production of authorities, proposed judgments, and findings of fact. Findings and...