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CAUSE NO. -243655
DAVID H. HAMILTON, AS TRUSTEE § IN THE DISTRICT COURT OF
OF T.H. TRUST
Plaintiff/Counter Defendant, §
ROBERT G. PATE AND JUDY K. PATE § FORT BEND COUNTY, TEXAS
§
Defendants/Counter Plaintiffs, §
GEORGE M. BISHOP
Cross Defendant, JUDICIAL DISTRICT
AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
MAY IT PLEASE THE COURT:
Plaintiff/Counter Defendant David H. Hamilton, Trustee of T.H. Trust files this Amended
idence Motion for Summary Judgment pursuant to Rule 166(i) of the Texas Rules of Civil
Procedure and would respectfully show the Court as follows:
I.
Sufficient Time has Expired to Allow This No Evidence Motion for Summary Judgment
Defendants/Counter-Plaintiffs Robert G. Pate and Judy K. Pate (“Pates”) filed a
counterclaim seeking to remove the alleged cloud on their title on July 18, 2018. In their
counterclaim, the Pates also claimed both statutory and common law fraud, breach of warranty of
a suit for declaratory judgment and conspiracy to defraud in the counterclaimThe Pates
amended their counterclaim on February 8, 2021 and on the same day sued David Hamilton in an
individual capacity.
Amended Evid. Motion for Summary Judgment PAGE 1
Facts
The Pates received a quitclaim deed from the Internal Revenue Service purporting to
quitclaim to them the interests of JAB Development Corporation in the property in question. While
the Pates are not bona fide or innocent purchasers as a matter of law, they have been proceeding
forward in this suit as if they were.
David Hamilton, Individually, and as Trustee for T.H. Trust moves for no evidence
summary judgmen sed on the Pates lack of evidence to support their causes of action for suit
to remove a cloud on title, statutory fraud, common law fraud, claim for breach of warranty of
title, declaratory judgment, filing a fraudulent lienand cons piracy to defraud.
rguments and Authorities
A court may grant evidence motion for summary judgment if the movant can show that
adequate time for discovery has passed and the nonmovant has no evidence to support one or more
essential elements of its claim or defense. Tex. R. Civ. P. 166(a)(i). An adequate time for
discovery has passed.
David Hamilton, Individually and as Trustee for T.H. Trust is entitled to summary
judgment because the Pates cannot, by depositions, answers to interrogatories, admissions on file,
or other admissible evidence, demonstrate there is any evidence to support their causes of actions
for suit to remove a cloud on title, statutory fraud, common law fraud, claim for breach of warranty
of title, declaratory judgment, filing a fraudulent lienand cons piracy to defraud.
It is well established in Texas that the grantee under a quitclaim conveyance cannot avail
himself of the defense of an innocent purchaser without notice; instead, he is deemed to take only
whatever title the grantor had at the time of the conveyance subject to all defects thereto and adverse
legal and equitable claims thereon and is deemed to be on notice of all outstanding legal or equitable
Amended Evid. Motion for Summary Judgment PAGE
unrecorded title in favor of third parties at the time the quitclaim instrument was delivered to him.
Woodward v. Ortiz, 237 S.W.2d 286, 291 92 (Tex. 1951); Simonds v. Stanolind Oil & Gas Co., 114
S.W.2d 226, 234 (Tex. 1938). Furthermore, a subsequent grantee in a chain of title that
includes a quitclaim, no matter how remote, takes subject to any unknown and
unrecorded interests that were outstanding at the time the quitclaim was executed See
Houston Oil Co. v. Niles, 255 S.W.604, 609 10 (Tex. Comm’n App. 1923, judgm’t adopted and holding
approved); see also Kirby Lumber Corporation v. Williams, 124 F.Supp. 456 (E.D. Tex. 1954).
Here, the Pates only took the Internal Revenue Service’s “chance of title.” Woodward, 237
S.W.2d at 291 92. Therefore, the Pates were on notice of the unrecorded interests of T.H. Trust at the
time of the Quitclaim Deed from the Internal Revenue Service and cannot now complain that they
thought they were getting title in the property in question.
IV.
The Pates Have No Evidence to Support Their Causes of Action
The Pates have asserted the following cause of action: suit to remove a cloud on title,
statutory fraud, common law fraud, claim for breach of warranty of title, declaratory judgment
filing a fraudulent lienand cons piracy to defraud.
Suit to Remove Cloudon Title
In a Suit to Remove Cloud on Title, the Pates are required to prove the following elements:
(1) an interest in specific property, (2) that title to the property is affected by a claim by the
defendant, (3) that the claim, although facially valid, is invalid or unenforceable. Sadler v. Duvall
815 S.W.2d 285, 293 n. 2 (Tex. App. Texarkana 1991, writ denied).
The Pates have not provided any evidence to support elements (1) 3) identified in the
preceding paragraphand cannot do so due totheir lack of status as bona fide purchasers
Amended Evid. Motion for Summary Judgment PAGE
B. Statutory and Common Law Fraud
To prove a claim for statutory or common law fraud against David Hamilton, Individually
and as Trustee for T.H. Trust, the Pates were required to prove tha (1) a material representation
was made, (2) that it was false, (3) that it was made with knowledge that it was false or was made
recklessly without any knowledge of its truth, (4) that it was made with the intent that is should be
acted upon, that the Pates acted in reliance upon it, and (5) that the Pates suffered injury as a result
of their reliance. Oilwell Division, United Sta es Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.
1973).
The Pates have not provided evidence to support elements (1) 5) identified in the
preceding paragraphand cannot do to their lack of status as bona fide purchasers
Breach of Warranty of Title
prove a claim for breach of warranty of title, the Pates were required to prove: (1)
execution and delivery of the deed containing the covenant, (2) the terms of the covenant, (3)
performance by the Pates of any conditions precedent, (4) facts showing a partial or total failure
of title, and the actual or constructive eviction of the Pates; (5) the consideration paid by the Pates;
(6) the value of the land or interest lost.
The Pates have provided no evidence of elements (1) 6) provided above and cannot do
so due to theirlack of status as bona fi de purchasers.
Declaratory Judgment
Even thought the Pates have filed suit to remove cloud from title, they are also seeking a
declaratory judgment apparently in an attempt to recover attorney s fees. In fact, the Pates are not
sure if they can use the Declaratory Judgment Act concerning a suit to remove cloud from title as
they acknowled in their original response to no evidence motion for summary judgment on page
Amended Evid. Motion for Summary Judgment PAGE
9 that it appears the Declaratory Judgment Act (DJA) may be used. While this tactic is improper
and will be addressed by a supplemental motion for summary judgment, the Pates have not
produced any evidence to support their claim for declaratory judgment. It is undisputed that they
received a quitclaim deed from the ternal Revenue Service. T.H. Trust purchased the property
in question at foreclosure in 2007. TheSubstitute Trustee s Deed wasexecuted on December 19
approximately three months before the Pates acquired their quitclaim deed from the Internal
Revenue Service.
The Pates annot provide any evidence to support a claim for declaratory judgment and
cannot due to their lack of status as bona fide purchasers
E. Filing a Fra ulent Lien
Under Section 12.001 of the Texas Practice and Remedies Code, the Pates assert that David
Hamilton, Individually and as Trustee for T.H. Trust filed a fraudulent lien. To prove that claim,
the Pates have to prove that they (1) own an interest in the disputed property, (2) that David
Hamilton, Individually, and as Trustee for T.H. Trust had knowledge that his filings were
fraudulent, and (3) that the Pates had intent to have the same legal effect as the documents they
purport to represent and that David Hamilton, Idividually, and as Trustee of T.H. Trust had intent
to cause injury.
The Pates cannot provide any evidence in support of the elements identified as (1) 3) in
the prece ng paragraph. Further, the Pates cannot provide any evidence as they were not bona
de purchasers of the property in question.
Amended Evid. Motion for Summary Judgment PAGE
F. Conspiracy to Defraud
The elements of a conspiracy are (1) two or more persons, (2) an object to be accomplished,
(3) a meeting of minds on the object or course of action, (4) one or more lawful, overt acts, and
(5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983).
The Pates cannot provide any evidence in support of the elements identified as (1) ) in
the prece ng paragraph. Further, the Pates cannot provide any evidence as they were not bona
de purchasers of the property in question.
WHEREFORE, David Hamilton, Idividually, and as Trustee for T.H. Trust asks the Court
to grant the No Evidence Motion for Summary Judgment on each of the Pates causes of action
and for such other and further relief that may be awarded at law or in equity.
Respectfully submitted,
/s/ Jeffrey R. Vaughan
Jeffrey R. Vaughan
State Bar No.
Vaughan Law Firm, P.C.
2909 Hillcroft Ave., Suite
Houston, Texas 770
Tel: (713)
Email: Jeff@LegalTrialTeam.com
COUNSEL FOR DAVID H. HAMILTON,
INDIVIDUALLY AND AS TRUSTEE FOR
T.H. TRUST
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing notice of appearance was
served upon all counsel of record on April
/s/ Jeffrey R. Vaughan __________
Jeffrey R. Vaughan
Amended Evid. Motion for Summary Judgment PAGE
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CAUSE NO. -243655 DAVID H. HAMILTON, AS TRUSTEE § IN THE DISTRICT COURT OF OF T.H. TRUST Plaintiff/Counter Defendant, § ROBERT G. PATE AND JUDY K. PATE § FORT BEND COUNTY, TEXAS § Defendants/Counter Plaintiffs, § GEORGE M. BISHOP Cross Defendant, JUDICIAL DISTRICT AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT MAY IT PLEASE THE COURT: Plaintiff/Counter Defendant David H. Hamilton, Trustee of T.H. Trust files this Amended idence Motion for Summary Judgment pursuant to Rule 166(i) of the Texas Rules of Civil Procedure and would respectfully show the Court as follows: I. Sufficient Time has Expired to Allow This No Evidence Motion for Summary Judgment Defendants/Counter-Plaintiffs Robert G. Pate and Judy K. Pate (“Pates”) filed a counterclaim seeking to remove the alleged cloud on their title on July 18, 2018. In their counterclaim, the Pates also claimed both statutory and common law fraud, breach of warranty of a suit for declaratory judgment and conspiracy to defraud in the counterclaimThe Pates amended their counterclaim on February 8, 2021 and on the same day sued David Hamilton in an individual capacity. Amended Evid. Motion for Summary Judgment PAGE 1 Facts The Pates received a quitclaim deed from the Internal Revenue Service purporting to quitclaim to them the interests of JAB Development Corporation in the property in question. While the Pates are not bona fide or innocent purchasers as a matter of law, they have been proceeding forward in this suit as if they were. David Hamilton, Individually, and as Trustee for T.H. Trust moves for no evidence summary judgmen sed on the Pates lack of evidence to support their causes of action for suit to remove a cloud on title, statutory fraud, common law fraud, claim for breach of warranty of title, declaratory judgment, filing a fraudulent lienand cons piracy to defraud. rguments and Authorities A court may grant evidence motion for summary judgment if the movant can show that adequate time for discovery has passed and the nonmovant has no evidence to support one or more essential elements of its claim or defense. Tex. R. Civ. P. 166(a)(i). An adequate time for discovery has passed. David Hamilton, Individually and as Trustee for T.H. Trust is entitled to summary judgment because the Pates cannot, by depositions, answers to interrogatories, admissions on file, or other admissible evidence, demonstrate there is any evidence to support their causes of actions for suit to remove a cloud on title, statutory fraud, common law fraud, claim for breach of warranty of title, declaratory judgment, filing a fraudulent lienand cons piracy to defraud. It is well established in Texas that the grantee under a quitclaim conveyance cannot avail himself of the defense of an innocent purchaser without notice; instead, he is deemed to take only whatever title the grantor had at the time of the conveyance subject to all defects thereto and adverse legal and equitable claims thereon and is deemed to be on notice of all outstanding legal or equitable Amended Evid. Motion for Summary Judgment PAGE unrecorded title in favor of third parties at the time the quitclaim instrument was delivered to him. Woodward v. Ortiz, 237 S.W.2d 286, 291 92 (Tex. 1951); Simonds v. Stanolind Oil & Gas Co., 114 S.W.2d 226, 234 (Tex. 1938). Furthermore, a subsequent grantee in a chain of title that includes a quitclaim, no matter how remote, takes subject to any unknown and unrecorded interests that were outstanding at the time the quitclaim was executed See Houston Oil Co. v. Niles, 255 S.W.604, 609 10 (Tex. Comm’n App. 1923, judgm’t adopted and holding approved); see also Kirby Lumber Corporation v. Williams, 124 F.Supp. 456 (E.D. Tex. 1954). Here, the Pates only took the Internal Revenue Service’s “chance of title.” Woodward, 237 S.W.2d at 291 92. Therefore, the Pates were on notice of the unrecorded interests of T.H. Trust at the time of the Quitclaim Deed from the Internal Revenue Service and cannot now complain that they thought they were getting title in the property in question. IV. The Pates Have No Evidence to Support Their Causes of Action The Pates have asserted the following cause of action: suit to remove a cloud on title, statutory fraud, common law fraud, claim for breach of warranty of title, declaratory judgment filing a fraudulent lienand cons piracy to defraud. Suit to Remove Cloudon Title In a Suit to Remove Cloud on Title, the Pates are required to prove the following elements: (1) an interest in specific property, (2) that title to the property is affected by a claim by the defendant, (3) that the claim, although facially valid, is invalid or unenforceable. Sadler v. Duvall 815 S.W.2d 285, 293 n. 2 (Tex. App. Texarkana 1991, writ denied). The Pates have not provided any evidence to support elements (1) 3) identified in the preceding paragraphand cannot do so due totheir lack of status as bona fide purchasers Amended Evid. Motion for Summary Judgment PAGE B. Statutory and Common Law Fraud To prove a claim for statutory or common law fraud against David Hamilton, Individually and as Trustee for T.H. Trust, the Pates were required to prove tha (1) a material representation was made, (2) that it was false, (3) that it was made with knowledge that it was false or was made recklessly without any knowledge of its truth, (4) that it was made with the intent that is should be acted upon, that the Pates acted in reliance upon it, and (5) that the Pates suffered injury as a result of their reliance. Oilwell Division, United Sta es Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex. 1973). The Pates have not provided evidence to support elements (1) 5) identified in the preceding paragraphand cannot do to their lack of status as bona fide purchasers Breach of Warranty of Title prove a claim for breach of warranty of title, the Pates were required to prove: (1) execution and delivery of the deed containing the covenant, (2) the terms of the covenant, (3) performance by the Pates of any conditions precedent, (4) facts showing a partial or total failure of title, and the actual or constructive eviction of the Pates; (5) the consideration paid by the Pates; (6) the value of the land or interest lost. The Pates have provided no evidence of elements (1) 6) provided above and cannot do so due to theirlack of status as bona fi de purchasers. Declaratory Judgment Even thought the Pates have filed suit to remove cloud from title, they are also seeking a declaratory judgment apparently in an attempt to recover attorney s fees. In fact, the Pates are not sure if they can use the Declaratory Judgment Act concerning a suit to remove cloud from title as they acknowled in their original response to no evidence motion for summary judgment on page Amended Evid. Motion for Summary Judgment PAGE 9 that it appears the Declaratory Judgment Act (DJA) may be used. While this tactic is improper and will be addressed by a supplemental motion for summary judgment, the Pates have not produced any evidence to support their claim for declaratory judgment. It is undisputed that they received a quitclaim deed from the ternal Revenue Service. T.H. Trust purchased the property in question at foreclosure in 2007. TheSubstitute Trustee s Deed wasexecuted on December 19 approximately three months before the Pates acquired their quitclaim deed from the Internal Revenue Service. The Pates annot provide any evidence to support a claim for declaratory judgment and cannot due to their lack of status as bona fide purchasers E. Filing a Fra ulent Lien Under Section 12.001 of the Texas Practice and Remedies Code, the Pates assert that David Hamilton, Individually and as Trustee for T.H. Trust filed a fraudulent lien. To prove that claim, the Pates have to prove that they (1) own an interest in the disputed property, (2) that David Hamilton, Individually, and as Trustee for T.H. Trust had knowledge that his filings were fraudulent, and (3) that the Pates had intent to have the same legal effect as the documents they purport to represent and that David Hamilton, Idividually, and as Trustee of T.H. Trust had intent to cause injury. The Pates cannot provide any evidence in support of the elements identified as (1) 3) in the prece ng paragraph. Further, the Pates cannot provide any evidence as they were not bona de purchasers of the property in question. Amended Evid. Motion for Summary Judgment PAGE F. Conspiracy to Defraud The elements of a conspiracy are (1) two or more persons, (2) an object to be accomplished, (3) a meeting of minds on the object or course of action, (4) one or more lawful, overt acts, and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). The Pates cannot provide any evidence in support of the elements identified as (1) ) in the prece ng paragraph. Further, the Pates cannot provide any evidence as they were not bona de purchasers of the property in question. WHEREFORE, David Hamilton, Idividually, and as Trustee for T.H. Trust asks the Court to grant the No Evidence Motion for Summary Judgment on each of the Pates causes of action and for such other and further relief that may be awarded at law or in equity. Respectfully submitted, /s/ Jeffrey R. Vaughan Jeffrey R. Vaughan State Bar No. Vaughan Law Firm, P.C. 2909 Hillcroft Ave., Suite Houston, Texas 770 Tel: (713) Email: Jeff@LegalTrialTeam.com COUNSEL FOR DAVID H. HAMILTON, INDIVIDUALLY AND AS TRUSTEE FOR T.H. TRUST CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing notice of appearance was served upon all counsel of record on April /s/ Jeffrey R. Vaughan __________ Jeffrey R. Vaughan Amended Evid. Motion for Summary Judgment PAGE