Jon Van Nguyen v. Alabama Thao Pham ( 2021 )

Affirmed and Majority and Concurring Opinions filed October 26, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00531-CV
JON VAN NGUYEN, Appellant
v.
ALABAMA THAO PHAM, Appellee
On Appeal from the 507th District Court
Harris County, Texas
Trial Court Cause No. 2016-64020
CONCURRING OPINION
I concur in this court’s judgment as there is legally- and factually-sufficient
evidence in the record to support the judgment. I write separately to briefly set out
Texas caselaw challenges to a certificate of acknowledgment and to explain why
part IV of the opinion misapplies that law.
A notary public is a state official appointed by the secretary of state who,
among other things, can take an acknowledgment of a written instrument in this
state. Tex. Gov’t Code Ann. §§ 406.001–.113; Tex. Civ. Prac. & Rem. Code Ann.
§ 121.001(3). The notary public “may not take the acknowledgment of a written
instrument unless the officer knows or has satisfactory evidence that the
acknowledging person is the person who executed the instrument and is described
in it.” Tex. Civ. Prac. & Rem. Code Ann. § 121.005(a). This statutory scheme
would be meaningless if a notary public’s acknowledgment did not constitute
prima facie proof of the identity of the person who executed the instrument. And
Texas appellate courts have most certainly given meaning to such
acknowledgements.
The majority correctly acknowledges the rule that “[c]lear and unmistakable
proof that either the grantor did not appear before the notary or that the notary
practiced some fraud or imposition upon the grantor is necessary to overcome the
validity of a certificate of acknowledgment,” citing Morris v. Wells Fargo Bank,
N.A., 334 S.W.3d 838, 843 (Tex. App.—Dallas 2011, no pet.). This rule dates back
at least to 1941 and the opinion of the El Paso Court of Civil Appeals in Stout v.
Oliveira, 153 S.W.2d 590, 597 (Tex. Civ. App.—El Paso 1941, writ ref’d w.o.m.)
(“To overcome an instrument in writing and purporting to be duly acknowledged,
the proof must be clear and unmistakable.”). Even 80 years ago, the reasoning
behind this requirement was “obvious”: “The reason is obvious, because, if the rule
were otherwise, titles would be insecure and ruinous consequences would ensue
from the doubt and uncertainty with which titles would be clouded.” Id. Stout
traced this reasoning back to a supreme court case from 1858, which provides:
We have held that the certificate of the officer taking the
acknowledgment of the wife to a deed of conveyance is conclusive of
the facts stated, but may be rebutted by proof of fraud, mistakes, or
imposition; and it has been intimated in some of the cases that to
invalidate the act as to third persons, a knowledge of the fraud,
imposition, etc., must be brought home to the grantee, and this rule as
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to notice was in effect given in charge by the court below. Where the
property is alienated in fee, and a consideration passes, it is but
reasonable, and it is necessary for the security of titles and the
protection of property that the certificate of the officer should be held
as conclusively, unless the fraud or wrong charged to impeach the
instrument were known to the grantee, as the circumstances were such
as should have impelled him to an inquiry which he neglected.
L.M. Wiley & Co. v. Prince, 21 Tex. 637, 640 (1858) (citations omitted). Prince, in
turn, relied on authority dating from 1851, when Chief Justice Hemphill appeared
to address the subject for the first time:
But to the question whether the certificate of the officer is
conclusive of the facts therein stated. This cause was argued at a late
day, and I have been unable to give the subject the thorough
examination to which it is entitled. But it seems to me, as well upon
principle as authority, that the certificate must be conclusive of the
facts therein stated, unless fraud or imposition is alleged.
To impeach the veracity of the certificate it will not be
sufficient to allege that there was no privy examination; that she did
not acknowledge the same to be her act and deed, &c. There must be
some acts alleged showing fraud; as, for instance, that there was a
fraudulent combination between the notary and the parties interested.
The certificate in this case is in conformity with the statute, and
cannot be impeached merely by saying that she was not examined
apart from her husband. But few authorities have been examined, and
the most important are not accessible.
Hartley v. Frosh, 6 Tex. 208, 216 (1851).
What, precisely, does the “clear and unmistakable” requirement entail?
Despite citing caselaw using this language, the court does not meaningfully engage
with this issue, which leads the court into analyzing “evidence” that is
impermissible.
Stout provides guidance as to how to apply the “clear and unmistakable”
requirement. In Stout, the party challenging his signature on a contract that bore a
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certificate of acknowledgment presented evidence that (1) the signature on the
document did not look like his own and (2) he did not remember signing the
document. Stout, 153 S.W.2d at 594–95. The Stout court held this evidence to be
insufficient. Specifically, the court held that the party challenging the notarized
document must present clear and unmistakable evidence that to show either that
“he had not appeared before [the notary], or, if he did, that the officer practiced
some fraud or imposition on him.” Id. at 596–97. However, “[t]o overcome those
recitals it was not enough to show the signature affixed to the lease contract was
not his own.” Id. at 596 (emphasis added) (“The legal effect of all the testimony
with respect to the signature is insufficient to constitute any proof[.]”).
The message of Stout is clear: it is not enough to rebut a notary’s
acknowledgment to simply say, “That’s not my signature.” To do so would be to
wreak havoc: “To permit this finding of the jury to stand and the title to be
overturned, would subject muniments of title to attack on the weakest sort of
unsatisfactory proof. This has not yet been done, and cannot be done.” Id. at 597.
In this case, Pham testified that that she did not sign or know about the deed.
This meets the requirement of presenting “clear and unmistakable” evidence not
that the signature on the deed does not match her own, but that she “had not
appeared before” the notary. See id. at 596–97; see also Pulido v. Gonzalez, No.
01-12-00100-CV, 2013 WL 4680415, at *4–5 (Tex. App.—Houston [1st Dist.]
Aug. 29, 2013, no pet.) (mem. op.) (testimony that purported signatory did not sign
deed sufficient to rebut prima facie evidence under Stout). The court, however,
continues in its analysis to consider factors that are not relevant to the “clear and
unmistakable requirement,” including evidence that the signature on the deed did
not match Pham’s signature, which the Stout court held to be “insufficient to
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constitute any proof” to rebut the prima facie case.1 Stout, 153 S.W.2d at 596. In
addition, the court considers Nguyen’s “admission” regarding a different property,
which has nothing to do with whether Pham presented clear and unmistakable
evidence that she did not appear before the notary or that the notary committed
fraud, as well as “representations” by Pham’s attorney about bringing the notary to
trial, which is not evidence at all. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.
1997) (unsworn statements of counsel generally do not constitute evidence).
Texas law has recognized for decades the importance of getting this issue
right and the disastrous consequences of not doing so. Because I fear the court’s
opinion may lead future readers into reversible error regarding the permissible
evidence to offer in the trial court when attempting to rebut prima facie evidence
under these circumstances, I cannot join part IV of the court’s opinion. I concur in
the judgment and otherwise join in the remainder of the opinion.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Bourliot, and Spain (Bourliot, J., majority).
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I am troubled by the following statement in the court’s opinion: “Pham’s purported
signature on the deed is basically just a scribble and clearly does not match her signature on
several other documents in evidence that she acknowledged signing, including her driver’s
license and affidavits.” This could be misinterpreted as this court sitting de novo as the
factfinder. I have examined the documents in the appellate record and were my personal opinion
on the similarity of the signatures of any legal moment, I could not join this court’s hopefully
unintentional suggestion that the signatures are so dissimilar that they could not all be Pham’s.
But my personal opinion on whether the signatures could or could not all be Pham’s has nothing
to do with whether there is legally- and factually-sufficient evidence to support the trial court’s
judgment.
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