Miramar Fairmount Partners, LLC and Calabaza Holdings, LLC v. 2902 Maple, LP, Anders P. Ting and Comerica Bank ( 2021 )

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?”
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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
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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).”
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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