Offord v. Carson
| Decision Date | 03 August 2021 |
| Docket Number | 01-19-00815-CV |
| Parties | DIANA GORDON OFFORD, Appellant v. APRIL CARSON, Appellee |
| Court | Court of Appeals of Texas |
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-250207
Panel consists of Justices Kelly, Landau, and Hightower.
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.
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 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 crosscomplainant 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.]."
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 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.
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.
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 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...
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